UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


The  Complete  Law 
and  Practice 


IN  THE 

Probate  Courts  of  Ohio 

INCLUDING  THE 

Administration  and  Settlement  of  Estates  of   Deceased    Persons — Including  the 
Inheritance  Tax  and  Administration    of    Estates   by   Trust    Companies — The 
Guardianship  of  Infants,   Imbeciles  and   Drunkards — The  Assignments  for 
Benefit  of  Creditors — The  Law   Relating  to  the  Execution,    Construction 
and    Probate   of   Wills — The   Statutes   of    Descent    and    Distribution — 
Dower — Trustees — Appropriation  of    Property — Adoption   of   Child- 
ren— Juvenile    Court    Proceedings — Mothers'    Pensions — Road    and 
Ditch  Appeals — Appeals  in   Condemnation  of  Road   Material  — 
Appeals  in  Allowance  of  Sheep  Claims — Franchises — Proceed- 
ings    in    Aid     >f     Execution     Habeas     Corpus — Contempt 
and    other    Miscellaneous  Matters  (other  than  Criminal) 
Within    the    Jurisdiction    of    the    Probate    Court. 

WITH 

COMPLETE  AND  PRACTICAL  FORMS 

BY 

WILLIAM  M.  ROCKEL, 

(of  the  Springfield  Bar;   late  Probate  Judge  of   Clark   County);    former 
Judge  of  Circuit  Court,  Second  Judicial  District 

THIRD  EDITION 


VOLUME  I. 


CINCINNATI, 

THE  W.  H.  ANDERSON  CO., 

1922 


'->  /  ') 


117. 


1902 

COPYETCHT    RY 

THE   W.   TT.    AXDERSON"   CO. 

1911 

Copyright  by 

THE  W.   ir.  AXDERSOX  CO. 

1912 

CoPYKICiUT   BY 

THE  W.  H.  ANDERSON  CO. 

1922 

Copyright  by 

THE  W.  II.  AXDERSOX  CO. 


f 


PREFACE  TO  THIRD  EDITION 


The  author  has  gone  over  the  second  edition  carefully.  The 
errors  that  appeared  were  mostly  those  relating  to  statutory  mat- 
ter caused  by  legislative  change. 

Errors  discovered  are  corrected,  new  paragraphs  added  and 
statutory  changes  inserted ;  some  of  minor  character,  others  of 
much  importance.  Equally,  and  perhaps  of  greater  importance 
is  the  large  amount  of  new-  matter,  taken,  from  recent  Ohio 
decisions,  added  in  the  notes. 

Some  of  the  chapters  in  the  former  edition,  principally  re- 
lating to  appellate  procedure,  having  become  obsolete  by  reason 
of  statutory  changes,  are  omitted  and  new  ones  added,  resulting 
in  eight  entirely  new  chapters,  i.  e. :  Administration  of  Estates  by 
Trust  Companies,  Road  Appeals,  Ditch  Appeals,  Appeal  in  Con- 
demnation of  Road  Material,  Appeal  in  Allowance  cf  Sheep 
Claims  and  Orders  of  Fire  IMarshal,  Inheritance  Tax,  Juvenile 
Court  and  Mother's  Pension.  The  chapters  on  Inheritane  Tax 
and  Juvenile  Court,  while  limited,  contain  all  of  the  Ohio  law 
and  much  that  is  not  readily  accessible  elsewhere. 

The  author  would  be  devoid  of  gratitvide  did  he  not  feel  grate- 
ful for  the  expressions  of  commendation  made  by  the  Bench 
and  Bar  in  reference  to  former  editions,  and  he  sincerely  hopes 
this  will  merit  the  same  meed  of  commendation. 

WILLIAM  M.  ROCKEL. 

Springfield,  Ohio,  January  1,  1922. 


PREFACE  TO  SECOND  EDITION 


The  renumbering  of  the  various  sections  of  the  statute  law  of 
our  state,  is,  of  itself,  we  deem,  a  sufficient  reason  for  a  new 
edition  of  this  work.  In  addition,  we  have  had  since  the  first 
edition  came  from  the  press,  a  very  large  number  of  Ohio  decis- 
ions upon  questions  kindred  to  those  therein  discussed.  These 
have  been  carefully  scanned  and  cited  in  the  notes,  or  woven  in- 
to the  text.  Scarcely  a  page  of  the  first  edition  has  escaped  with- 
out some  change  being  made. 

It  is  gratifying  to  know  that  the  views  of  the  author,  have  in 
a  number  of  instances,  been  approved  by  the  courts  and  that  his 
work  has  generally  been  looked  upon  with  favor  by  the  Bar  of 
Ohio,  and  we  trust  that  it  will  not  only  have,  but  merit,  the  con- 
tinued favor  of  those  having  occasion  to  use  it. 

WILLIAM  M.  ROCKEL, 
Springfield,  Ohio,  March  1,  1912. 


PREFACE 


From  the  fact  that  causes  in  the  Probate  Court  are  usually 
submitted  to  the  Judge  without  the  intervention  of  a  Jury, 
generally  in  a  pro  forma  manner,  lawyer  and  layman  alike, 
ofttimes  fail  to  realize  the  very  many  important  matters  coming 
before  it  for  decision.  Recently,  resulting  perhaps  from  the 
decisions  of  our  Supreme  Court,  recognizing  its  capacity  and 
powers  conferred,  a  truer  conception  of  its  just  position  in  our 
judicial  system,  is  being  entertained.  In  youth  and  old  age, 
protecting  our  person  and  preserving  our  property,  after  we 
have  departed,  guarding  our  loved  ones  and  enforcing  our 
desires,  this  Court  has  charged  to  its  keeping,  our  dearest  and 
most  cherished  rights.  In  addition  to  its  jurisdiction,  over 
matters  of  a  fiduciary  character,  many  others  of  very  great 
importance  have  been  conferred  upon  it,  all  of  which,  except 
those  of  a  criminal  nature,  are  discussed  in  these  volumes.  The 
plan  adopted,  is  that  which  the  author's  experience  suggested 
as  the  most  convenient  and  useful,  to  the  active  practitioner. 
Recognizing  its  many  imperfections,  but  cognizant  of  an  honest 
effort,  ho  submits  the  result  of  his  labor,  trusting  that,  in  some 
degree,  it  may  aid  in  the  just  and  righteous  administration  of 
the  laws  coming  within  the  province  of  the  Probate  Court. 

WM.  M.  ROCKEL. 

Springfield,  Ohio,  January  1.  1903. 


CONTENTS 


CHAPTEE  1. 

ORGANIZATIUX  OF  (  OURT,  JUDGE,  ETC. 

SECTION.  PAGE. 

1.  Introductory    1 

2.  Organization,  etc 2 

2a.     Combined   witli   common   pleas 3 

2b.     Legislature  to  create  combined  court;  petition,  etc.    (§  1604-1)  ..  3 

2c.     How  petition  shall  be  signed;   verilleation    (§1604-2) 3a 

2d.     Conduct  of  election ;   form  of  ballot    (  §  IUU4-3 ) 3a 

2e.     Establishment  of  probate  division   (§  1004-4) 3b 

2f.     Petition  for  re-establishment    ( §  1004-5 ) 3b 

2g.     Re-establishment  on  increase  of  population    (§1604-6) 3c 

3.  Rank  of  Court 3c 

4.  Where  Court  iield 4 

5.  Term  of  Court 5 

6.  Who   may    be   judge    6 

7.  No  Probate  Judge  or  his  deputy  to  practice  law,  etc 8 

7a.     Need   not    be    indicted 8 

7b.     Exceptions     8 

8.  Can    not    act    when    interested ." 8 

9.  Administration,  etc.,  when   the   Probate  Judge   is   interested....  ]0 
9a.     Proceedings  in  Common  Pleas  Court 11 

10.  Procedure  whore  Judge  is  interested 11 

10a.     When  Common  Pleas  Judge  may  perform  duties  of  Proliate  .Judge  13 

11.  Custody    of    files,    etc 14 

12.  Deputy    clerks,    etc 14 

13.  Probate   Judges    may   administer    oaths,   take    acknowledgments 

and    depositions 16 

14.  Bond   of    Probate    Judge,    etc 16 

15.  Judge    shall    make   rules    of    practice    and    submit    thorn    to    the 

Supreme    Court 17 

16.  Miscellaneous    matters 17 

17.  Power   to    punish    contempt 17 

17a.     Authentication    of    records,    etc 18 

CHAPTER  2. 

JURISDICTION, 

18.  Constitutional  provision 19 

19.  Status  under  the  constitution 20 

20.  Equity   jurisdiction 21 

21.  Power  to  hear  common  law  actions  and  impanel  juries 22 

22.  Limited   jurisdiction 23 

23.  In  actions  for  sale  of  real  estate,  can  determine  title  to  land.. ..  23 

24.  Growth  of  the  jurisdiction  of  the  Probate  Court 24 

25.  Power  to  grant  injunctions 25 

26.  Power  to  appoint  receivers 26 

27.  Exclusive    jurisdiction 27 

28.  Concurrent    jurisdiction 29 

29.  Jurisdiction  exclusive  of  that  of  any  other  Probate  Court 30 

V 


VI  CONTENTS. 

SECTION.  PAGE. 

30.  Appellate    jurisdiction 31 

31.  Junsdictiou  to  review  iiiierior  Courts 3i 

32.  JShall  have  same   powers,  and   observe  rules  of  Conanon   Pleas 

so  far  as  applicable 31 

33.  Action    in    Common    Pleas    asking    direction    of    Court   respect- 

ing estate.     Who  may  bring 32 

33a.     When  suit  by  creditor 32 

34.  Comments    , , . .  ^ 33 

CHAPTER  3. 
GENERM.  PROVISIONS  UF  PRACTICE.     APPEAL,  ETC. 

35.  Probate  judge  to  determine  all  questions,  except,  etc 35 

36.  Code  of  civil  procedure  governs  when 36 

37.  Notice  of  proceedings  in  Probate  Court,  how  given 37 

,   38^  Depositions 3a 

39.  \\  hen  appeals  may  be  taken  from  Probate  Court  to  Court  of 

Common  Pleas 39 

40.  What  may  be  appealed 40 

41.  Who  may  prosecute  appeal 41 

42.  Trial  on  appeal 42 

43.  Bond   on   appeal,   when   not  required 43 

43a.  Amount    of    bond 43 

43b.  Rule  as  to  party  appealing  in  fiduciary  capacity  in  any  case.  ...     43 

44.  When    bond    need    not    be    given 43 

4.").  When    must    be    filed.     Written    notice    of    appeal 44 

AC).  To    whom    bond    should    be    made    payable 45 

47.  Amount    of    penalty    of    bond 46 

45.  Form    of    appeal    bond 47 

40.  Transcript.    \Mien    to   be    filed 48 

50.  Party    interested    must    file    transcript 48 

51.  Proceedings    in    Common    Pleas.      Certifying    same    back 49 

52.  Proceedings-    in    error 19 

53.  Entries,  nunc  pro  tunc,  power,  etc 51 


CHAPTER  4. 

ADMINISTRATION,  ETC. 

54.  Administration,  devolution  of  property 53 

55.  Necessity     for 54 

56.  Where  there  ought  to  be  no  administration 55 

57.  Where  there  may  be  no  administration 56 

58.  Form  of  bond  of  residuary  legatee 57 

59.  Liability  upon  the  bond 58 

60.  Discharge  of  lien  on   property 59 

61.  Officiating   without    appointment 59 

62.  Acts  done  by  rightful  executor  or  administrator  before  quali- 

fying     *0 


CONTENTS  Vn 
SECTION.                                                                                                                                                           PAGE. 

63.  Letters   relate   back   to   time   of   cicath 01 

64.  Time    within    which    letters    of    administration    will    be    granted,  lil 
65w     A])plicatiO|n     (12 

66.  Notice,     etc 63 

67.  Hearinj^     63 

CHAPTER  5. 
LETTERS  TESTAMENTARY. 

68.  Definition,     etc ()•') 

69.  Distinction   between   administrator   and   executor ij'i 

70.  Power  of   the  executor   prior  to   letters (i'} 

71.  When  application  can  be  made 67 

72.  In  wliat  court   application   should   be   made (iS 

73.  Will  must  be  duly  probated 6'J 

74.  Inhabitant     or    resident 69 

75.  The  estate  to  be  administered 71 

76.  Application    for    appointmegit 72 

77.  Oath     to    ai)plioation 7.'{ 

78.  Form    of    application    for    letters    testamentary 73 

79.  Who   are   capable   of   receiving  appointment 74 

80.  Named   in   the  will 74 

81.  Legally    competent 7-") 

82.  Residence    of    the    executor 76 

83.  Bond   of    executor    and    its    condition 77 

83a.     When   bond   not   required 77 

84.  Form    of    executor's    bond 7.S 

85.  When   bond   need   not   be  given 7'.i 

86.  Separate    bonds 7!l 

87.  Form    of   executor's    letters 80 

88.  The   order   of    appointment SI 

89.  Form    of    entry 81 

90.  Effect    of    order 82 

91.  How    the    order    may    be    attacked 83 

92.  Renunciation    83 

93.  Administration   during  the  minority  of   an   executor 83 

94.  An  executor  of  an  executor  cannot  administer  the  trust  of  first 

testator     84 

95.  The    power    of    executors    and    administrators    during    the    con- 

test   of    a    will bo 

96.  Contest    of    will.      jMay    borrow    money,    etc 86 

97.  Application   to   repair   buildings   and  borrow   money 87 

98.  Form   of  entry 87 

CHAPTER  6. 
ADMINISTRATOR   WITH    THE    WILL    ANNEXED. 

99.  Definition    88 

100.     If  executor  renounces,  etc.,  administration  to  be  granted 88 


Viii  CONTENTS 

SECTION.  PAGE. 

101.  Citation  of  executor 89 

102.  Entry  ordering  issue  of  citation 89 

103.  Form  of  citation  to  take  or  renounce  administration 90 

104.  If  executor  does  not  qualify.     Application,  etc 90 

105.  Bond  of  administrator  with  the  will  annexed 91 

106.  Powers  and  duties.     Personal  trust 91 

107.  Estate  directed  or  devised  to  be  sold  by  executor,  etc.,  failure 

of   executors  to  act,    who  may  sell 92 

CHAPTER  7. 

LETTERS  OF  ADMINISTRATION. 

108.  Definition,    etc 94 

109.  Death  of  party 95 

110.  Who   is   an   intestate 96 

111.  \Mien   and  where   application   should   be   made 97 

112.  Application,    etc 98 

113.  Form    of    application    for    letters    of    administration 98 

114.  To  whom   letters   of   administration   shall   be   granted 99 

115.  ^Mio    are    capable    of   being   appointed 100 

116.  Residence    of    administrator 101 

117.  Order  of  priority  among  those  entitled 102 

118.  When  entitled  in  the  same  degree 102 

119.  Renunciation,    waiver,    etc 104 

120.  Husband  and  widow 105 

121.  The    next    of    kin 106 

122.  The    creditor 106 

123.  To  such  person  as  the  Court  may  see  fit 107 

124.  Must  give  bond,  etc 107 

125.  Form    of  administrator's    bond 108 

126.  Granting  letters 109 

127.  Form    of    administrators  letters , 110 

CHAPTER  8. 

SPECIAL  ADMINISTRATION. 

128.  Definition HI 

129.  When  to  be  appointed 112 

130.  Delay  warranting  appointment 112 

131.  Application,  jurisdiction,  etc 113 

132.  Who    may    be  appointed 114 

133.  Must    give  bond 115 

134.  Form  of  special  administrators  bond 115 

135.  Form  of  entry  appointing  special  administrator 116 

136.  Form  of  special  administrator's  letters 116 

137.  Powers,  duties  and  compensation  of  special  administrator. . .  117 


CONTENTS  IX 
SECTION.                                                                                                                                                 PAGE. 

138.  Power  to  collect,  suit,  etc 117 

139.  Power    to   sell 118 

140.  Power  to  pay  debts,  fees,  etc 118 

141.  When    the  powers    cease 119 

142.  How  special  administrator  may  be  proceeded  against  by  the 

executor,     etc 119 

143.  Application  tor  citation,    etc 119 

144.  Form   of  aonlicati'^n • 120 

145.  Form   of   entry   ordering   citation 120 

146.  Form    of    citation 120 

147.  Journal  entry   ordering  writ  of   attachment 121 

148.  Form   of  writ   of   attachment 121 

149.  Entry   committing   to   jail t 121 

150.  Special    administrator    not    liable    to    creditors.      Limitation    of 

action    against    executor,    etc 122 

CHxVPTER  9. 

ADMINISTRATOR  DE  BONIS  NON. 

151.  Definition,     etc 123 

152.  When  to  be  granted 123 

153.  Must  be  some  estate  to  administer 124 

154.  Time  within  which  appointment  must  be  made 126 

155.  To  whom  granted  and  where 127 

156.  Application,    etc 127 

157.  Proceedings  by  administrator  or  executor  against  former  ad- 

ministrator  or  executor 128 

158.  Recovery    of    assets,    etc 128 

159.  Sales,    etc.,  of  former  executor   or  administrator  valid 130 

160.  Notice,    bond,    inventory 131 

CHAPTER  10. 

ADMINISTRATOR  DE  BONIS  NON  WITH  THE  WILL  ANNEXED. 

161.  Definition,  etc 132 

162.  Appointment,     etc 132 

162a.  Power  to  appoint  strancrer  to  sprve  with  executor 133 

163.  If,  after  administration  granted,  as   of  an   intestate,  a  will  be 

proved,  the  same  shall  be  revoked,  unless,  etc 133 

164.  Power   of   executor   or   administrator   in   such   cases 134 

CHAPTER  11. 
ANCILLARY   ADMINISTRATION. 

165.  Definition,    etc 135 

166.  Not  favored  and  limited   to   necessity   of   appointment 136 

167.  Difl"erence   between   ancillary   and   principal   administration....  137 


X  CONTENTS 

SECTION.  PACK. 

168.  When  appointment  may  be  generally   made 138 

169.  Powers   of   executor   and   administrator   under   will   made   out 

of  this  State 138 

170.  Adnlinistration  and  proceeding  when   decedent  was   not   a  res- 

ident of  the  State,  but  engaged  in  business  therein,  etc.  .  139 

171.  Where    appointment    shall    be    made 139 

172.  To   whom   and   in   what   time   granted 140 

173.  Application,    etc 141 

174.  Application     for    administration 142 

175.  Form   of  application  for  administration  under   §   10604 142 

176.  Notice.      Proof,    etc.,    required 143 

177.  Entry,  etc 144 

178.  Form    of    entry    ordering   administration 144 

179.  Form   of   application   for   letters   of   administration 144 

180.  Form     of    administrator  V     bond 145 

181.  Form     of     entry 146 

182.  Form    of   administrator's    letters 146 

183.  Powers,    duties,    etc 147 

184.  Payment    of    debts    and    distribution 148 

185.  Several    administrations    for    one    estate,    situate    in    different 

States     149 


CHAPTER  12. 
FOREIGN  AD]\nNISTRATION. 

180.     Definition,    etc 151 

187.  Foreign    executors    and    administrators    may   be    sued   here....  152 

188.  Law    governing    local    administrators    applies    to    foreign 154 

I88a.  Jurisdiction  of   courts 154 

189.  Same,    continued 154 

190.  Procedure    of    heir,    etc.,    against    foreign    administrator 155 

191.  Suit  against  foreign  administrator  by  heir  or  legatee 155 

193-     Form    of    refunding    bonds 157 

193.  May  be  required  to  secure  distributees  and  indemnify   sureties  157 
193a.  Other    remedies 158 

194.  Form    of    bond    to    secure    distributee    or    surety    from    foreign 

executor  158 

195.  May  prosecvitc  suits   in   this   State 159 

19().     Validity   of   voluntary   payment   to   foreign   administrators....  159 

197.  Foreign   executor   or   administrator   may   be   authorized   to   sell 

real    estate 160 

198.  Law    applicable    to    such    sales 161 

199.  Foreign    executor    or    administrator    to    give    bond    unless    al- 

ready   bound 162 

200.  Foreign  executor,  etc.,  to  give  further  bond  to  account"  for  sur- 

plus when  he  sells  more  than  is  necessary  to  pay  debts,  etc.  163 


CONTENTS  XI 

CHArTEK  13. 

JOINT  OR  CO-ADMINISTRATION. 
SECTION.  PAGE. 

201.  Definition,    etc 1^^ 

202.  Separate  or  joint  bonds 165 

203.  Power  of  one  to  hind  the  other  in  the  co-administration  of 

the    estate 166 

204.  Liability  for  act  of  co-administrator 167 

205.  Situs  of  property.     Taxation 170 

206.  Remedies  against  each  other "•  171 

207.  Division  of  commissions 1'- 

CIlAPTEJt  14. 

REVOCATION  OF  LETTERS.     RESIGNATION  AND  REMOVAL. 

208.  Power  of  court.     Nature  proceedings,  etc 17:1 

209.  Jurisdiction  to  revoke  letters 174 

210.  Resignation,  etc 175 

211.  Revocation    v/here  wrongfully    made 176 

212.  Form  of  I'Psignation  and  entrv.  ptf 177 

213.  Removal    of    executor    for    cause,    etc 178 

213a.  Proceedings    after    removal 178 

214.  Who  mubt  tile  application,  etc 178 

215.  Application    179 

216.  Form  of  application 180 

217.  Form  of  entry  for  hearing,  etc 181 

218.  Notice,     etc 181 

219.  Form  of  notice 182 

220.  Causes.     Habitual  drunkenness 182 

221.  Gross   neglect   of   duty 183 

222.  Incompetency     184 

223.  Fraudulent     conduct 185 

224.  Removal  from  the  State 186 

225.  Unsettled    demands 186 

226.  Any    other    causes 187 

227.  Other  statutory  causes 189 

228.  Hearing    and    entry 189 

229.  Effect   of    order   of   removal 190 

230.  Acts  after  his   removal,   etc 191 

231.  Termination  of  authority  by  completion  of  trust 192 

232.  Appeal  and  error 193 

CHAPTEE  15. 

BONDS,  EXECUTION,  FORM,  ETC. 

233.  Requirement  of  bond 195 

2S4.     To  whom   made   payable 196 


Xll  CONTENTS 

SECTION.  PAGE. 

235.  Good  signed   in   blank 197 

236.  Sufficient   condition 198 

237.  Execution,   form,   etc 200 

238.  Approval   and   custody 201 

239.  Liability  of  judge  in  accepting  bond,  etc 202 

240.  Amount    of    penalty 203 

241.  Sureties.     Qualification    and    number 204 

242.  Examination  of  sureties 206 

CHxiPTER  16. 

NEW  BONDS.     SURETIES,  ETC. 

243.  Application  for  release  of  surety,  etc 207 

243-1.  Application  bv  executor,  etc.    (  §  10861-1 ) 207 

243a.  Removal  on  failure  to  give  new  bond   ( §  10862) 208 

243b.  Costs     208 

244.  Application  and   cause 208 

245.  Form  of   application 209 

246.  Entry    ordering   notice,   etc 209 

947.     Notice,  form  of  notice,  hearijig,  etc 20!) 

248.  When    order    takes    effect 210 

249.  When  new  bond  may  be  required  by  interested  party 211 

250.  Liamlity  of  prior  suielies 211 

251.  Liability  of  sureties  on  new  bonds 212 

252.  If  bond  not  given,  may  be  removed  from  trust 213 

253.  Wlien   executor   or   administrator   to   give   bond   of    indemnity 

to    surety 213 

254.  Application,  procedure,  etc 214 

2.35.     Suflieient  cause  for  making  order 214 

256.  Form  of   indemnity  bond 214 

257.  Construction  placed  upon  such  bond 215 

258.  Additional    bonds 215 

259.  General  liabilities  of  sureties 216 

259a.  Reduction  of  bond 218 

CHAPTER  17. 

SUIT  ON  BONDS. 

260.  Procedure.    Remedy,  etc 219 

261.  Jurisdiction    221 

262.  Suit  by  creditor  on  liquidated  demands 222 

263.  Kind  and  nature  of  creditor's  claim 222 

264.  When  suit  could  be  brought  by  creditors 223 

265.  Suit  by  legatee  or  distributee  on  liquidated  demand 223 

266.  When  right  accrues  to  legatee,  etc 223 

267.,    At  what  time  action  may  be  brought 225 

268.  Suit    on    unliquidated    demand 226 

269.  When  Probate  Court  may  authorize  suit  to  be  brought 226 

270.  Application   for  leave,   etc 227 

271.  Form  of  application 228 


CONTENTS  XiU 

SECTION.  PAGE. 

272.  Entry    ordering    hearing    and    notice,    etc 228 

273.  Notice,    etc 228 

274.  Hearing,    etc 229 

275.  Form  of  entry  granting  leave  to  bring  suit 229 

276.  Defense    in    suit    on    administration    bond    for    not    filing    ac- 

count.    Costs 230 

277.  In   suit    on    bond,    claim    allowed    to    be    prima    facie    evidence 

only  of  its  justice.     How  such  claim  contested 230 

278.  Suit    by    succeeding    administrator    or    executor    on    bond 230 

279.  Time   within   wliich    suit   may   be   brought 231 

CHAPTER  18. 
INVENTORY 

280.  Definition.      Importance    of 232 

281.  Within    what    time    to    make    inventory 233 

282.  Wlien    may    be    omitted 234 

283.  Procedure    where    statement    is    filed    in    lieu    of    the    appraise- 

ment.    Form,  etc 235 

284.  Appraiser,    how    appointed 237 

285.  If  appraisers  fail  to  act  justice  may  appoint 238 

286.  Form   of   appointment   of   appraisers   by   justice 238 

287.  Inventory    to    be    made    and    by    wliom 238 

288.  How    and    when    notice    to    be    given 239 

289.  Service    and    form    of    notice 239 

290.  Appraisers'    oath ;    by    whom    administered 240 

291.  Form  of  oath,  etc 241 

292.  In   whose   presence  and   in   what   manner  the   articles   shall   be 

appraised     241 

293.  Detailed    statement    required 241 

294.  Value   to   be   given   articles 243 

295.  How  bonds  and  other  securities  to  be  inventoried  and  appraised  244 

296.  How  other   debts   shall   be   inventoried   and   appraised 244 

297.  How  inventory  of  money  and  bank  bills  to  be  stated 244 

298.  What    it    shall    include 244 

299.  When    real    estate    should    be    included . . 246 

300.  Signing    and    filing    inventory 247 

300a.  Monthly  statement  of  Probate  Court   to  county   auditor 247 

300b.  Taxes    and    penalty 247 

300c.  Beginning    of    each    succeeding    tax    year 247 

300d.  Compensation    of    Probate    Judge 247 

300e.  No    allowance    of    tax    inquisitors 248 

301.  Appraisers'    fees 248 

302.  Inventory   to   be   sworn   to   by   the   executor   or   administrator. 

Form   of   oath,   etc 248 

303.  Compulsory  return   of  inventory 249 

304.  Application    for    citation,    etc. ^9 

305.  Entry    and    writ    of    citation 250 


XIV  CONTENTS 

SECTION.  PAGE. 

306.  Removal  for  failure,  etc.,  and  granting  of  new  letters 251 

307.  Excuse   for   failure   to   return   an   inventory 251 

308.  Entry,    form,    etc 252 

309.  Eflfect    of    such    revocation 252 

:J10.     Prosecution  of  former  bond  by  administrator  de  bonis  non 252 

311.  New    assets    after    return    of    first    inventory 253 

312.  Exceptions   to   inventory   and   proceedings   thereon.     Appeal    to 

Common    Pleas 253 

312a.  Appeal    on    exceptions    to    inventory 254 

313.  Form    of    exceptions,    etc / .  .  254 

314.  Form    of    entry    ordering    notice 254 

315.  Notice,    etc ■. 255 

316.  Hearing    and    order 255 

317.  Appeal     256 

318.  Effect    of    inventory    as    evidence 256 

CHAPTER  19. 
WIDOW'S   AND  CHILDREN'S   ALLOWANCE. 

310.  Introductory     258 

320.  What   shall   not   be   deemed   assets,  etc 259 

32Ca.  Assets   not   to  be  administered   on   in   certain   cases 260 

321.  Comments.      Wearing    apparel,    etc 260 

322.  Disposition    of    such    property 262 

323.  Riglit   to   under   §    10654,   O.   C 262 

324.  Year's    allowance 263 

325.  Money   to  bo  set  off  if  necessary 263 

326.  Persons  entitled  to,  etc 263 

327.  Right    barred   by    will    or    contract 266 

328.  Nature  of  the  claim 268 

329.  Wiien    appraisers   fail   to   make   allowance 269 

330.  Apportionment   between  widow   and   children 270 

331.  Amount    of,    etc 270 

332.  Wlien    and    to    whom    payable 273 

333.  Allowance  may  be  increased  or  dimiiiislied  by  tiio  court 275 

334.  Petition    for,    etc 276 

335.  Who  may  file  petition 277 

336.  Form   of   petition   to   increase    or   decrease   allowance 277 

337.  Form   of   entry,  etc *. 278 

338.  Notice,    etc 279 

339.  Entry    on    hearing    to    increase    or    decrease 279 

340.  Error   and    appeal,   etc 280 

341.  Widow's     and     widower's     (juarantiiie 2S0 

CHAPTER  20. 
ADMINISTRATION   BY  TRUST  COMPANIES. 

342.  Trust    companies    acting   as    executor,    etc 282 

343.  Trust  companies  may  accept  business   when    (§   710-150) 284 


CONTENTS  XV 
SECTION.                                                                                                                                              PAGE. 

344.  Foreign  trust  company  may  do  business  when   (§  710-151)....  285 

345.  File  certificate  of  compliance  with  tax  commission    (§   710-152)  286 

346.  Examination    of    trust    company— Expense    (§    710-153) 286 

347.  Compliance  with  law  before  qualifying  as  executor,  etc.,   (§710- 

154)     286 

Retirement  from  State,  must  give  notice   (S  710-155) 287 

From   whom  moneys   may   be  received    (§   710-156) 288 

Court  may  order  money  deposited  with  company   (§  710-157)..  288 

Empowered  to  act  as  agent    (§   710-158) 288 

Management  of  trusts   (§  710-15!)) , 28!) 

May   accept   trusts   of   executorship,   etc.    (§    710-160) 28!) 

Capital    and    deposits    with    state    treasurer    held    as    security 

(§    710-161) 200 

Court   may   order   investigation   of   company    (§    710-162) 290 

Who  may  sign  papers  in  court    (§  710-163) 2!)1 

Investment   of   money,   etc.,   held    in   trust    (§    710-164) 2!)1 

Mingling  of  securities  prohibited  (§  710-165) 292 

Investment  of  trust  funds    (§  710-166) 292 

Reserve   fund   required    (§    710-167) 292 

CHAPTER  21. 

ASSETS   GENERALLY. 

363.  Definition    293 

364.  Personal    property,    definition 294 

365.  Fixture    295 

366.  Trees,    wood,    etc , 298 

367.  Manure    300 

368.  Emblements,    definition 300 

369.  When    emblements    shall    be    assets 302 

370.  Power    to    cultivate    and    gather    crops 302 

371.  Rent    of    farm    land 302 

372.  Rents    gejnerally     305 

373.  Leases    or    chattels    real 308 

374.  Annuities.      Dividends 311 

375.  Copyrights    and     patents 312 

376.  Pension    rnoney 313 

377.  Trust    property 314 

378.  Money  on  deposit 315 

379.  Fire   insurance   money 316 

380.  Life    insurance    money 316 

381.  Mutual   benefit   insurance 318 

382.  Good-will    of    business 320 

383.  Property  conveyed  by  decedent  to  defraud  creditors 320 

384.  Proceeds    of    real    estate 320 

385.  Choses    in    action,    etc 321 

386.  Mortgaged  premises  to  be  considered  personal  assets.     Executor, 

etc.,   may    take    possession 323 


XVI  CONTENTS 

SECTION.  PAGE. 

387.  Executor   or   administrator   may   discharge    mortgage.     Posses- 

sion   before    redemption     323 

388.  How   executor   or  administrator  to   foreclose   mortgage 323 

389.  Naming  a  person  as  executor  not  to  discharge  a  debt 324 

390.  Debt  of  an  executor  or  administrator  becomes  assets 325 

391.  Discharge  of  debt  in  a  will  against  an  executor,  etc.,  how  con- 

strued         327 

392.  A  debt  due  from  an  heir  or  legatee  is  assets 327 

393.  Assets   not   possessed   by   deceased 329 

CHAPTER  22. 
ASSETS  CONCEALED  OR  EMBEZZLED. 

394.  Nature    of    proceedings 330 

395.  Proceedings  when   property  of  estate  concealed  or  embezzled.  .  332 
395a.  When  Probate  may  reserve  case  to  Common   Pleas 332 

396.  Kind    and    scope    of    proceeding 332 

397.  Jurisdiction   of    court,   etc 333 

398.  Complaint,  etc 334 

399.  Parties     335 

400.  Form     of    complaint 336 

401.  Entry    ordering    citation,    etc 336 

402.  Imprisonment    for    disobeying    citation 337 

403.  Party  failing  to  appear  or  refusing  to  answer 338 

404.  Form  of  commitment  to  jail 338 

405.  E.xamination  to  be   in   writing 338 

406.  Examination    of    witncoscs    to    be    in    writing,    etc 338 

407.  Comments.      Form    of    examination 339 

408.  Judgment  of  court  thereon.     Lien 340 

409.  Trial.     Jury 341 

410.  Trial  issues 343 

411.  Verdict,    etc 344 

412.  Judgment     344 

413.  Transcript  to  be  filed  in  Common   Pleas  and  execution   issued.     346 

414.  If  jiulgment  in  favor  of  the  State,  when  prosecuting  attorney 

to    attend    to    it 346 

415.  Conveyance    to    evade    these    proceedings    void....- 346 

CHAPTER  23. 
PARTNERSHIP  ASSETS. 

416.  Right    at    common    law 347 

417.  Duties   of   surviving   partners 348 

417a.  Foreign    executor    or    administrator 34fl 

417b.  When   surviving   partners    may   make   application 349 

418.  Where   and  by  whom  application   to   be  made 349 

419.  Application     3.^0 

420.  Entry    ordering    notice,    etc 351 


CONTENTS  XVll 

SEX:nON.  PAGE. 

421.  Form  of  notice  of  hearing  application  for  appointment  of  ap- 

l)raisers    351 

422.  Form   of   entry   ordering   appraisement 352 

423.  Form    of    inventory    unci    appraisement 352 

424.  Entry    coiitirming    a])praisement,    etc 355 

425.  Oatli.      Inventory,    liovv    made,    etc 355 

426.  When    executor   to   have   appraisement   made 357 

427.  When    survivor    may    purchase    partnership    property 357 

427a.  Bond  of  surviving  partner 357 

4271).  When  survivor  refuses  to  purchase 358 

427c.  Will    may    define,  manner    of    settlement 358 

428.  Application  of  surviving  partner  to  take  at  an  appraisement.  .  358 

42!).     Form   of   bond   of   surviving    partner 359 

43(1.     Entry  of  court  approving  election,  etc 35!) 

430a.  When    bond    to    be    filed 360 

430b.  Evidence    of    notice , 360 

430c.  Presentment    of    claims 360 

430d.  Account    of    surviving    partner 360 

430e.  Discliarge    of    surviving    partner    and    sureties 360a 

430f.  Where   surviving   partner   elects   to   take   after  giving   bond...  360a 

431.  When    partner    fails    to    take 3()0b 

432.  When  statute  does  not  ajjply 360b 

433.  Right    of    surviving     partner 361 

434.  Where    e.xecutor    is    surviving    partner 362 

435.  Executor    continuing    the    business 363 

436.  Administrator    carrying    on    business 365 

437.  How   partnership  real  estate  to  be  conveyed 366 

438.  What    constitutes    partnership    real    estate 366 

439.  Form    of    executor's    deed 369 

CHAPTER  24. 
COLLECTION  OF  ASSETS. 

440.  General  duty  of  administrator  or  executor  to  collect 371 

441.  Duty   to   bring  suits,   etc 372 

442.  Diligence    required    373 

443.  Negligence    in    collecting 375 

444.  Statute  of   Limitations 377 

445.  When  more  than  twelve  months  allowed  to  collect  assets 378 

446.  Affidavit    in    such    case 378 

447.  When  and  how  application  for  extension  made,  etc 378 

448.  When   further  time   not  allowed 379 

448a.  What   further  time   will   be   allowed 379 

449.  Office  of  executor,  etc.,  not  to  cease 379 

CHAPTER  25. 
ASSETS.    COMPOL^^DING  CLAIMS. 

450.  How  executor,  etc.,  may  compound  with  debtor 381 

451.  Authority    to    compound 381 

452.  Application    for 383 

453.  Hearing,   etc 384 

454.  Order  of  compromise 385 

455.  Arbitration    385 

CHAPTER  26. 
ASSETS.     SALE   OF   DESPERATE    CLAIMS. 

456.  Disposition   of   desperate   claims 388 

457.  Jurisdiction    389 


XVI 11  CONTENTS 

SECTION.  PAGE. 

458.  Application  389 

459.  Wlien  notice  of  application  to  Court  for  their  sale  necessary. 

Publication  of  notice 390 

460.  Entry  ordering  notice 390 

461.  Form   of   notice,   etc 391 

462.  Required  proof 391 

463.  Public  or  private  sales,  terms  of  compounding  to  be  fixed  in 

order    .^ 391 

464.  Entry  of  public  sale 392 

465.  Form  of  notice  and  return  of  sale 392 

466.  Form  of  private  sale,  etc 393 

467.  Return  of  private  sale 393 

468.  Effect  of  order 394 


CIIAPTEK  27. 

ASSETS.  SALE  OF  PERSONAL  PROPERTY. 

469.  Regulated   by   statute 395 

470.  What  personal  property  the  executor  or  administrator  may 

sell,  and  when  appraisement,  etc.,  not  required 396 

470a.  Household  goods 307 

471.  Promissory  notes,  etc 398 

472.  Property  taken  bv  the  widow,  etc 399 

473.  Property    specifically    bequeathed 399 

474.  How  property  may  be  delivered  to  legatee   400 

475.  Form  of  redelivery  bond 401 

476.  Emblements   401 

477.  Request  not  to  be  sold  in  will 402 

478.  When  sale  to  be  made r 403 

479.  How  to  be  sold 403 

480.  Notice,    etc 404 

481.  Conduct   of   sale 405 

482.  What  credit  to  be  given 406 

483.  Security  to  be  taken 406 

484.  Sufficient    surety,    etc 406 

485.  When  executor  or  administrator  not  liable  for  loss........  407 

486.  Payment,  etc 408 

487.  Executor  or  administrator  to  make  out  lists  of  articles  liable 

to  sale.     Duty  of  clerk  of  such  sale 409 

488.  Construction  of  preceding  section 409 

489.  Sale  bill  to  be  signed  by  clerk,  sworn  to  by  the  executor  or 

administrator  and  filed.     Returns  of  private  sale 410 

490.  Form  of  sale  bill,  etc 410 

491.  How  return  of  sale  bill  enforced 411 

492.  Purchase  by  administrator  or  executor 411 

493.  Warranty    of    title 412 

404.     Property   imsold'   413 


CONTKNTK  XIX 

CUAPTEK  28. 

PRIVATE  SALE  OF  PERSONAL  PROPERTY. 

SECTION.  PAGE. 

495.  Statutory     provision 415 

496.  Application.     Essentials 4L5 

497.  Form  of  application  for  less  than  appraised  value 416 

498.  Entries,    etc 417 

499.  When  property  is  not  sold  within  six  months 417 

500.  Return  of  private  sale 418 

501.  Confirmation  of  sale 419 

502.  How  notes,  claims,  stocks,  etc.,  may  be  sold 419 

503.  1'  uriii  oL  application  and  entry 419 

504.  Sale  without  order,  etc 420 

505.  Sale  of  perishable  property 422 


CHAPTEK  29. 

ASSETS.     CARE   AND   MANAGEMENT. 

Preservation    of    property 423 

Notes,  etc.,  given  by  administrator 426 

Employment    of    attorney 427 

\^^lat    counsel    all-ivicd 4.30 

Amount  of  counsel  fees  allowed 434 

Taxation    437 

Custody  of  funds 438 

Failure  of  bank  where  deposited 439 

How  executor,  etc.,  guardian  and  trustee  may  invest  funds.  .  440 

When  investment  to  be  made 441 

Application  to  invest,  etc 443 

Insurance    444 

Carrying  on  bttsiness  of  the  deceased 444 

Carrying  otit  contracts  of  deceased 448 

Contract  not  binding,  etc 450 

Duty  as  to  mortgages,  etc 452 

Stocks 453 

Action  by  executor,  etc.,  to  complete  contract  for  sale  of  land  453 

Nature  of  proceedings 454 

Parties     454 

Petition    455 

Notice,    etc .' 456 

When  Court  may  order  conveyance.     Deed 456 

Hearing,    etc 457 

Entry    457 

Form   of  deed 457 

Heirs  of  deceased  ptirchaser  may  enforce  specific  performance  458 


XX  CONTENTS 

CHAPTER  30. 
ACTION   FOR  INJURY   BY   ^VRONGFUL   DEATH. 

SECTION.  PAGE. 

533.  Did  not  exist  at  common  law,  etc 459 

534.  Right  of  action  for  causing  death 460 

535.  Right  by  statute  of  other  State,  territory  or  coimtry,  enforced  460 

536.  Such    actions    shall    benefit    whom 461 

537.  Settlement,    etc 462 

538.  Application    463 

539.  Entry    allowing 463 

540.  Report  of  settlement 463 

541.  Apportionment    464 

542.  Entry  of  apportionment 465 

CHAPTER  31. 
NOTICE  OF   APPOINTMENT 

543.  Object  and  purpose  of  notice  of  appointment 466 

544.  AMien    and    how    given 468 

545.  Notice      469 

546.  Affidavit   as   evidence   of   notice 469 

547.  Proof    of    publication 470 

548.  Cases    where    notice    of   appointment    is    not   given    within    the 

proper  time,  or  evidence   not    perpetuated 470 

549.  Form   of   petition,  etc 470 

550.  Entry      471 

551.  Liability   for  omission   to  give   notice 471 

CHAPTER  32. 
PRESENTATION  ANT)  REJECTION  OF  CLAIMS. 

552.  Object   and    purpose 472 

553.  What    must    be    presented 474 

554.  Wliat  need  not  be   presented 474 

555.  Sufficient    presentation 476 

556.  ^^^len    waived     478 

557.  Authentication   of   proof 479 

557a.  Satisfactory   voucher,  etc 479a 

558.  When    not    required 480 

559.  Allowance   of   a   claim 481 

560.  Rejection  of  a  claim 483 

561.  AMien  claim  shall  be  rejected  at  instance  of  heir  or  creditor..  487 

561a.  Action  against  administrator   or   executor 487 

561b.  Notice      487 

562.  Comments     488 

563.  Requisition   to   reject   a    claim 489 

564.  Bond,    etc 489 

565.  Entry    ordering    notice 490 

566.  Form   of   notice,   etc 490 


CONTENTS  XXI 

SECTION.  PAGE. 

567.  Action  on  real  estate  stayed 491 

568.  How    action    brouglit 491 

(^^HArTEK  33. 

PRESENTATION    OF   CLAIMS    NOT    DUE. 

569.  Contingent  claims    493 

570.  Debts  not  due  paid  by  administrator,  etc 494 

571.  When  claims  allowed  by  Court 494 

572.  What   claims    included 495 

573.  Presentation  of  claim,  etc 496 

574.  Notice,    etc .* 497 

575.  Order  of  the  Court 497 

576.  Ordering  claim  paid 498 

577.  Ordering  fsset?  to  be  retained 498 

578.  Ordering    the    giving    of    bond 499 

579.  Form  of  bond 499 

580.  Allowance  of   court   not   conclusive,   etc 500 

581.  Action  to  be  brought  against  executor  or  administrator;  against 

heir    if   he   has   given   bond 500 

582.  Pleading    when    action    brought    on    bond 501 

583.  Appeal   and   error 501 

CHAPTER  34. 
CLAIMS  UNPAID  AT  SETTLEMENT. 

584.  Claim   due  must   be   presented,   etc 502 

585.  Estate  of  deceased  in  the  hands  of  heir,  etc.;   liable  for  certain 

debts     503 

586.  Jurisdiction,    etc 504 

587.  Heirs,   etc.,    to    contribute    to    pay    claims    after    settlement    of 

estate    and    how 504 

587a.  Limitation    505 

588.  Comments     505 

589.  Estate  of  any  heir,  etc.,  liable  after  his  death 506 

590.  Where   two   or   more   liable,   creditor   may   proceed   against   all 

in    one    action 506 

591.  Insolvency,   etc.,   of   heir   or   devisee   not    to   elfect   liability   of 

others     506 

592.  Amendments   allowed  to  bring  in   other   parties 506 

593.  Heirs,  etc.,  liable  to  contribution.     How  recoverable 506 

CHAPTER  35. 
AEBITRATION  OF  CLAIMS 

594.  Doubtful   claims   against   an   estate   to  be   referred  to   arbitra- 

tion      508 

595.  Construction    of    statute 508 

596.  Agreement  to  refer 510 

597.  How  proceeded  on  if  claim  is  less  than  one  hundred  dollars..  511 

598.  Duties   of   the  justice   of   the   peace 511 


XXll  CONTENTS 

SECTION.  PAGE. 

599.  If    it    exceed    one    hundred    dollars .512 

600.  Duties    of    probate    judge,    etc .oTi 

601.  Notice    and    oath    to    referees 513 

602.  Referees    to    report    to    court.      Proceedings,    powers    and    com- 

pensation   of    referees;    costs 514 

603.  Hearing,    etc 514 

604.  Witnesses    how    procured,    and,    etc 515 

605.  Filing  of  an  award 517 

606.  Form   of   confirmation   of   award 517 

CHAPTER  36. 

LIMITATION  OF  ACTIONS  BY  CREDITORS  AGAINST 
ADMIN^STRATQR. 

607.  Generally    518 

608.  Claim  barred  by  general  statute 520 

600.     When   claim   barred   if    not    sued    within    six    months    after    re- 
jection.     What    deemed    a    rejection 524 

609a.  Rejection    of    a    claim .525 

610.  Suit    on    rejected    claim 525 

611.  Time   witliin   which   action    can    not    be   brought .527 

612.  Construction  of  the  above  section ,527 

613.  Limitation   of   action    by   creditors 520 

614.  Construction    of    statute .530 

615.  Assets   received   after   eighteen    months 532 

616.  What    constitutes    new    assets .533 

617.  Action   of   creditors   against    iieirs,   etc.,   not   barred .533 

618.  Limitations    of   actions   against    administrators    de    bonis    non..  534 
618a.  Not  required  to  answer  to  .suit  brouglit  after  two  years .534 

619.  Administrator   de   bonis   non   liable   ftr   two   years   after  giving 

bond    .534 

620.  When   liable  for  actions   for   two   years 534 

621.  An  administrator  de   bonis   non   to  give   notice   of   liis   ajjpoint- 

ment    534 

622.  Barred    claims     not     revived     .534 

623.  To  be  further  liable  if  new   assets   received .535 

CHAPTER  37. 

EXECUTION.      COSTS.     JOINT    DEBTOR. 

624.  How  estate  of  deceased  joint  debtor  liable 536 

625.  Preceding  section  not  to  allect  rights  of  surety,  etc .537 

626.  How   and   when   execution   may   issue  against   executor 537 

627.  Revivor    of    actions    and    judgments .538 

628.  Executions    against    executor    or    administrator 5^0 

628a.  Action  upon  suggestion  of  waste 540 

629.  Costs  in  actions  against  an  estate,  wlien   not   recoverable 541 

630.  WHien   costs    allowed   and   by   whom 541 

CHAPTER  38. 
CLAIMS  OF  EXECUTOR  OR  ADMINISTRATOR 

631.  Debts    due    to    executor,    etc 546 

632.  General    law    applicable 547 


CONTENTS  XXIU 

SKCTION.  I'AOE. 

(i33.     Procedure    on    presentation    of    executor's    or    administrators 

claim    to    Probate    Court •')41) 

034.     Claim    under    fifty    dollars 550 

635.  Where    the    claim    exceeds    lifty    dollars 550 

636.  Presentation    of    claims 551 

637.  Entry  and  notice 552 

638.  Entry    and    notice    for    non-residents 552 

039.     Character    of    jtroof    reciuired 553 

640.     Allowance  or  (lisallowance  of  claim 554 

641,.     Hearinj^.       Exceptions.       Appeal 555 

641a.  Appeal   on   claims   by   executor   or   administrator   for   debt 555 

641b.  On  appeals   from   Probate   to   Common   Pleas  Court .5,55 

641c.  Bond     555 

642.  Error,  etc 555 

643.  Appeal  556 

644.  Form    of    appeal    bond 556 

645.  Debts   due   for  services   rendered    to   the   estate    by   others 557 


CHAPTER  39. 

ORDER  AND  TIME  OF  PAYMENT  OF  DEBTS  AND  ADMINISTRATOR'S 

COMPENSATION. 

646.  Generally    •'^BO 

647.  In  what  order  debts  to  be  paid 561 

648.  Can  not  be  paid  in  other  order 562 

649.  Funeral    expenses     564 

64!)a.  Funeral  expenses,  etc.     Husband  and  wife 568 

650.  Amount  to  be  allowed  as  funeral  expenses 568b 

651.  Tombstone    570 

652.  Last   sickness 571 

653.  p]xpenses  of  administration 573 

054.     Compensation  allowed  executors  or  administrator.     Further  al- 
lowance.    Effect  of  compensation   provided  by  will 573 

654a.  Further  allowance 574 

655.  When    entitled    to 574 

656.  How  calculated   . .  .  .^:. 577 

657.  Compensation    fixed    oy    will 577 

658.  Compensation  of  joint  administrators 579 

059.  Extra   compensation    580 

660.  Employment    of  •  agent.      Office    rent,    etc 583 

661.  Allowance  made  to  the  widow  and  children 585 

662.  Debts  due  the  United   States 585 

663.  Taxes,    etc 586 

664.  Wages    588 

665.  Debts  due  general  creditors   589 

060.  Previous  section    (10715)   not  to  affect  lien 590 

667.  W^hen    executor    or   administrator    may    proceed    to    pay    debts 

without   being   liable   for   deficiency    of   assets 591 

668.  Notice   of    demands,    etc 591 

669.  And  if   whole   estate   to   be   paid   and   afterwards   other   claims 

presented,  he   shall  not   be   liable   therefor 592 

670.  If    so    paid    away    as    to    leave    insufficient    assets    to    satisfy 

subsequent    claims.      How    far    liable    593 

670a.  May  prove  estate  insolvent 593 

671.  If  assets  are  exhausted  in  paying  preferred  claims.     Executor  or 

administrator  not  liable  for  payment  of  subsequent  claims.  593 


XXIV  CONTENTS 

SECTION.  PAGE. 

672.  Interest  on  claims 594 

673.  Payment  to  heirs,  etc.,  before  final  settlement 595 

CHAPTER  40. 

PAYMENT  OF  LEGACIES. 

674.  Introductory     597 

675.  Specific  legacy   598 

676.  General  legacy 600 

677.  Demonstrative  legacies  601 

678.  Gift  of  stock,  etc.,  general  or  special 602 

679.  Vested  and  contingent  legacies 604 

680.  Absolute  and  conditional  legacies 605 

681.  Cumulative,  repeated  and  substituted  legacies 607 

682.  Stated  amount  and  residuary  legacies 608 

683.  Lapsed  legacies  610 

684.  Void   legacies 612 

685.  Adeemed  legacies   614 

686.  Satisfied  legacies 616 

687.  Legacies,  in  lieu  of  dower 617 

688 .  Legacies  to  creditors  619 

689.  Legacy  to  a  debtor 620 

690.  Legacies  charged  on  land  621 

691.  Legacy  for  life 622 

692.  Legacies  in  the  nature  of  incomes  and  annuities 624 

693.  Abatement  of  legacies 626 

694.  General  rules  as  to  payment 627 

fi'^'i.     When  legacies  should  be  paid 628 

696.  If  any  legatee  require  legacy  to  be  paid  within  eighteen  months, 

court  may  require  him  to  give  bond 620 

697.  Application  for  order  requiring  payment 630 

698.  Form  of  application 630 

699.  Hearing,  etc 630 

700.  Form  of  bond 631 

701.  Form  of  entry,  approving  bond  and  ordering  payment 631 

CHAPTER  41. 

ADMINISTRATOR'S    AND    EXECUTOR'S    ACCOUNTING. 

702.  Duty  to  account   633 

703.  Executor  or  administrator  to  render  an  account,  etc 634 

703d.  When  to  make  oath  as  to  itemized  account 634 

704.  Where  to  bo  filed 635 

705      Time   extended    636 

706.  Time   allowed   to  collect   assets   not    to   operate   as   allowance 

of    further    time    to    file    account 636 

707.  Administrator,   etc.,   of  deceased   or   insane   administrator,   etc.. 

to  file  account   637 

708.  Successive  administration   637 


CONTENTS  XXV 
SECTION.                                                                                                                                                          PAGE. 

709.  Joint  executor,  etc 638 

710.  With  what  executor  or  administrator  shall  be  charged 639 

711.  Amount  of  sale  bill 640 

712.  Goods  and  chattels  not  included,  etc 640 

713.  Rights  and  credits  of  the  decedent 641 

714.  Proceeds  of  real  estate  sold 642 

715.  Interest,  etc 642 

716.  Profit  and  income.     Rents,  etc 645 

717.  How  chargeable  with  property  consumed  by  him 645 

718.  Increase  or  decrease  of  estate  not  to  affect  executor  or  admin- 

istrator     646 

Executor  or  administrator  not  responsible  for  bad  debts.  . .  .  646 

Entitled  to  what  credits 646 

Vouchers  to  be  produced  for  all  debts  paid 647 

Voucher,    what    is    proper 647 

What  items  may  be  allowed  without  vouchers 648 

Comments.    Affidavit,  etc 648 

Preparation  of  account 649 

Oath  to  account 651 

Form  of  administrator's  or  executor's  account 652 

Filing  and  entry 653 

Notice  of  filing  accounts  to  be  published 654 

Form  of  notice,  etc 654 

Entry  and  record  of  publication 654 

Importance  of  notice 655 

Examination  of  accountants  under  oath 656 

Hearing  when  no  exceptions  are  filed 656 

Entry  where  no  exceptions  are  filed 657 

Exceptions   657 

Form  of  exceptions 659 

Court  may  refer  account  to  special  commissioner 660 

Trial,  etc 660 

Evidence    661 

How  compelled  to  render  account 663 

Who  may  compel,  etc , 663 

When  and  how  account  may  be  opened  after  settlement 664 

Mistakes  or  errors 664 

Distribution  after  settlement 664 

Absence    of    party 604 

To  correct  errors  and  mistakes 665 

Opening  account  after  eight  months,  etc 667 

Error  and  appeal 670 

Statement  in  lieu  of  account 671 

Ancillary  account 671 

CHAPTER  42. 
DISTRIBUTION  IX  KIND. 

Methods  of  distribution 673 

Executor   or    administrator    may    distribute    certain    assets    in 

kind    ' 674 

Partial  distribution 674 

Return  of  assets  wlieii  necessarj' 674 


XXVI  CONTENTS 

SECTION,  PAGE. 

752.  Application    for,    etc 675 

753.  Hearing    and     order 675 

754.  Form    of    indemnity    bond 676 

754a.  Application  to  distribute  in  kind,  and  order  to  transfer  stock.  .  676a 

CHAPTER  43. 

DISTRIBUTION  OF  ASSETS  CONVERTED  INTO  IMONEY. 

755.  Definition,  etc 677 

756.  Kinds  and  when  made 678 

757.  Real    and    personal    estate 680 

758.  Law   of  domicile  controls 680 

759.  Creditors   of  heir 681 

760.  Set-off    against    heirs • 682 

761.  How    payment   of   distribution    enforced.      Petition    therefor...  68.3 
761a.  Citation 684 

762.  Nature    of   proceedings,   etc 684 

763.  Parties     686 

764.  Petition     687 

765.  Form    of    petition     688 

766.  Citation     68S 

767.  Entry    ordering   citation 68!) 

768.  Form   of  citation 68!t 

76!).     Service    of   citation 68!) 

770.  Service,   when    executor  or   administrator   non-resident 6110 

771.  Order  for  ])ublication 69(i 

772.  Form  of  notice 601 

773.  Proof  of  service 6!ll 

774.  Hearing    and    judgment.      Execution 602 

774a.  Lien      692 

775.  Trial,     proofs,    etc 692 

776.  Entry,     finding.       .ludgment 694 

777.  Probate   Court    may    bring   in    all   necessary   parties    and   deter- 

mine   all    questions 6!i4 

778.  Comments     6!)5 

77!).     I'robate   Court    sluill   on   motion   <if   citlicr   party   send    tiie   case 

to    Common     Pleas 696 

780.  Mot  ion,    etc 696 

781.  Common    Pleas    to    have    concurrent    jurisdiction     to     enforce 

order    of     distribution 696 

782.  Comments     697 

783.  Sureties.     Their  liability.     ^lav   be   made  parties  to  judgment. 

Defense     .' ' 698 

784.  Comments     698 

785.  Appeals   from   Probate    Court    and    frcmi    Common    Pleas.      Bills 

of    exceptions     699 

~785a.  ^^^len    an    appeal    may    be    taken    in    enforcement    of    orders    of 

distribution     699 

CHAPTER  U. 

INVESTMENT  OF  LXCLATMED  MONEY,  ANT)  ACCOL^NT  OF 
DISTKIBI'TION. 

786.  How   unclaimed  money   to  be   invested 701 

78()a.   Disposition  of  note  or  bond 701 

786b.  Limitations    702 

787.  Application  for  order  to  invest 702 


CONTENTS  XXVll 

SECTION.  PAGE. 

V88.     Entry  authorizing  investment 702 

789.  Return  of  investment 703 

790.  If  fund  cannot  be  invested 703 

791.  When  and  how  such  money  paid  owner 704 

792.  Application,  and  order  to  pay  money  to  owner 704 

793.  Entry  ordering  money  turned  over  to  claimant 705 

794.  Judge  responsible  for  safe  keeping  of  certificates,  etc 705 

795.  Account   of   final   distribution 705 

796.  Objects    of    the    above    provision 705 

797.  Form   of  account   of   final   distribution 700 

798.  Entry  and  order   of   discliarge 707 

79Sa.  Probate   Court   to   order   receipt    for   payment   of    incumbrances 

recorded,   etc 708 

798b.  Application   to  have   receipt  recorded,  etc 709 

798c.  Entry.     Notice    700 

798d.  Hearing  and  order 710 

CHAPTER  45. 
REAL  ESTATE.     SALE  WITHOUT  ORDER  OF  COURT. 

799.  Possession  of,  etc 711 

800.  Land  liable  for  debts 712 

801.  The  right  to  mortgage  and  lease,  etc 714 

802.  When  sale  is  authorized  by  will  no  order  of  sale  is  required.  .  714 

803.  Sufficient  authority    715 

804.  Title.    Devise  to  sell 716 

805.  Construction  of  power 718 

806.  Who  can  execute 719 

807.  Expiration  of  power 720 

808.  Control  of  Court  over  the  excution  of  the  power  of  sale 722 

809.  Form  of  deed  of  executor,  or  administrator  with  the  will  an- 

nexed    723 

810.  Sale  and  distribution 724 

CHAPTER  46. 

REAL  ESTATE.  SALE  BY  COURT  PROCEEDINGS. 

811.  Direction  of  will.    Or  statute  must  be  followed 726 

812.  Nature  of  the  action 728 

813.  In  what  Court  action  to  be  brought 729 

814.  Power  of  Court 730 

814a.  Release  of  lien , 730 

815.  Nature  of   power 730 

816.  When  action  may  be  brought 732 

817.  Limitations  as  to  the  time  of  bringing 732 

818.  For   what   the   action    may   be   brought 734 

819.  For    the    payment    of    legacies 735 

820.  What  may  be  sold 736 


XXviii  CONTENTS. 

SECTION.  PAGE. 

821.  When  can  not  be  sold 737 

822.  When  real  estate  fraudulently  conveyed  liable  to  sale 738 

823.  How    executor    or    administrator    to    get    possession    of    land 

fraudulently  conveyed  and  avoid  such  conveyance 738 

824.  Proceedings  where   property   is  fraudulently   conveyed 739 

825.  Petition  for  sale  equitable  interest 740 

825a.  The  order  and  sale 740 

826.  Persons  interested  may  give  bond  and  prevent  sale 741 

827.  Comments     741 

828.  Form  of  bond 742 


CHAPTER  47. 
REAL  ESTATE.     PLEADINGS,  PROCESS  AND  TRIAL. 

829.  Commencement  of  action,  etc 744 

830.  What  petition  for  sale  must  contain 746 

831.  Essentials  of  petition 746 

832.  When  assets  will  be  marshaled  in  conformity  with  the  will...  748 

633.     Necessary    parties     748 

834.     Parties   defendant    749 

835;     Administrator  de  bonis  non  to  complete  sale  made  by  e.xecu- 

tor  or  administrator 750 

836.  Form  of  petiti(m  for  sale  of  real  estate  to  pay  debts 751 

837.  Filing  the   petition 752 

838.  Service.     Waiver  of.     Consent  of  guardian 753 

839.  Actual    service    754 

840.  Constructive   service    754 

841.  How  publication  to  be  made 756 

842.  Copv  of  newspaper  to  be  mailed 757 

843.  Waiver    758 

844.  When  guardian  ad  litem  to  be  appointed.     iSuch  guardian  can 

not  waive  notice,  etc 758 

845.  How  appointed    760 

846.  Other  pleadings 761 

846a.  Dower  and  homestead   rights 763 

847.  When  court  to  order  real  estate  to  be  sold.     Term  of  sale....  763b 

848.  Proof   required    763b 

849.  Trial    if    contested 765 

850.  The  estate  of  the  heirs  in  the  land  set  off  to  the  widow  may 

be  sold 765 

851.  The  whole   to  be   sold   when  a   partial   sale   would   injure  the 

residue 760 

852.  Judgment  and   order  of   sale 766 

852a.  Entry   ot    appraisement.     Dower.     Homestead 767 

853.  Effect    of    order 767a 

854.  Costs  when   there  are   objections   to  granting   order   for   sale..  768 

CHAPTER  48. 
REAL   ESTATE.      APPRAISEMENT. 

855.  Object  and  purpose   770 

856.  Appraisement    when    no    dower    is    to    be    assigned 771 

857.  Appointment  of  appraisers.     Duty  as  to  dower  and  homestead. 

Copy    of    order    to    issue 772 


CONTENTS  XXIX 

SECTION.  PAGE. 

857a.  Dower    and    homestead 772 

857b.  Lands  in  two  or  more  counties 772 

858.  Judgment   and   order   to   appraise,   etc 773 

859.  Copy  of   order  and  form   of  return 773 

860.  Who   may    be    appraisers 775 

861.  Vacancy  in  office  of  appraisers;   how  filled 776 

862.  Valuation    776 

863.  Appraisers    may   be   sworn   by    whom 777 

864.  Actual    view    778 

865.  Employment  of   surveyor 778 

866.  Subdividing  and   platting 779 

867.  Assignment     of     homestead 780 

867a.  Homestead  for  decedent's  family 780 

867b.  Money  consideration   in  lieu  of  homestead 780 

868.  When    entitled    to    homestead 781 

869.  Assignment    of    dower 783 

870.  Dower   especially   assigned    to    be    charge    on    the    land 785 

871.  Report     785 

872.  Compensation  of  appraisers 785 

873.  Executor  or  administrator   to   give   bond,   etc 786 

874.  Form    of    bond 786 

875.  And  give  additional  bond   to  secure  further  assets   if   required 

in   what   court 787 

876.  Confirmation  of  appraisement  and  order  of  sale 787 


CHAPTER  49. 
REAL  ESTATE.     ADVERTISEMENT  AND  SALE. 

877.  The  sale  generally 789 

878.  Order    of    sale.      Dower 791 

879.  Wlien  sale  to  be  public  and  when  private 792 

880.  Sale    of    improved    land ;    unimproved 792 

880a.  Readvertisement     793 

881.  Private    sale 794 

882.  Affidavit   before   private   sale   confirmed 795 

883.  Public  sale.     Notice  of 795 

884.  Notice  to  contain  street  number,  or  name  of  township,  etc. . .  .  795 
•,884a.  Name  of  township  in  certain  cases 796 

885.  Notice  of  sale  in  German  or  Bohemian  newspaper 796 

886.  Points    to   be    observed 796 

887.  Form    of    notice    of    public    sale 799 

888.  Conduct    of    sale 799 

889.  W^lio    may    become    purchaser 801 

890.  Return.     Confirmation.     Order  for  deed 804 

890a.  Deferred  payments 804 

890b.  Sale    of    notes 804 

891.  Return  of   sale 804 

892.  Confirmation    806 

893.  Sufficient    confirmation     808 

894.  Errors    cured    by    confirmation 809 

895.  Entry    confirming    sale,    and    distributing    proceeds 810 

896.  Resale    812 

897.  Securing  payments    813 

898.  When  motion  to  be  set  aside  to  be  filed 814 

899.  Deed  evidence  of  validity  of  sale 816 

900.  Execution  and  kind  of  deed 816 


XXX  CONTENTS. 

SECTION.  PAGE. 

901.  Form  of  administrator'.s  or  txtcutoi'.s  deed 818 

902.  Purchaser's  right  and  title 811) 

902a.  Kemedv  of  purclia.ser,  if  sale  invalid 8:^1 

902h.  Uemedy  in  qtlier  cases  of  invalid  sales 822 

903.  How  money  arising  from  sale  of  land  to  be  applied 822 

904.  Comments    822 

905.  Surplus  of  proceeds  of  sale  to  be  considered  as  r^^al  estate 82:^ 

906.  Appeal  and  error 82;J 

CHAPTER  .^>0. 

DESCENT  AND  DISTRIBUTION. 

907.  Introductoi-y    827 

908.  Ancestor 828 

909.  Descent  and  devise 829 

910.  Deed  of  gift 830 

911.  By   purcha.se    831 

912.  Legal   representative 832 

913.  Next  of   kin 8.32 

914.  Relict  of  deceased  husband  or  wife 834 

915.  Order  of  descent  of  real  estate  where  title  came  by  descent  or  de- 

vise or  deed  of  gift 835 

916.  Comments    836 

917.  Order  of  descent  where  estate  came  by  purchase,  etc 837 

918.  When  real  estate  to  pass  to  husband  or  wife;    when   to  next  of 

kin  of  intestate   837 

919.  When  real  estate  to  pass  to  children  of  former  liusband  or  wife. 

etc 838 

920.  Descent  of  estate  which  came  from  former  husband  or  wife 838 

921.  Distribution  of   personal  estate ,Sj9 

921a.  When  personal  |)ioperty  to  escheat 839 

922.  Comments     ". 840 

923.  When  estate  to  descend  to  children  of  intestate  and  how 840 

924.  Descent  when  all  descendants  of  eqmil  degric  of  consan;.i:uinity .  .    840 

925.  When  there  are  living  both  cliildicii  and  heirs  of  deceased  chil- 

dren   of    intestate 841 

926.  Extent  of  application  of  last  section ,S41 

927.  I^revious  sections  apply   to   real   and   personal   propertv S41 

928.  Advancements  by  intestate  to  be  considered  as  part  of  estate..  842 

929.  Definition,   etc 842 

930.  What    constitutes    an    advancement 843 

931.  How   proven    845 

932.  When  advancement   is  greater  or  less   than   heirs'  share 846 

C33.     When   advancement  is   wholly   real   or  personal   estate 847 

934.  When   value   of   advancement    expressed    in    deed,    etc 847 

935.  Heirs  of  aliens  may  inherit;   aliens  may  hold  lands 848 

936.  Capability    of    bastards   as    to    inheritance 848 

937.  When    illegitimate    children    deemed    legitimate,    etc 848 

938.  Amount  of  personal  estate  to  which  a  widow  or  widower  is  enti- 

tled   upon    distribution     849 

939.  Comments     849 


CONTENTS  XXXl 

SECTION.  PAGE. 

940.  Construction  of  words,  "  living"  and  "  died  " 851 

941.  Posthumous  child  of  intestate  to  inherit 8.51 

942.  Permanent  leaseholds  to  descend  same  as  estates  in  fee 851 

CHAPTER  51. 

DOWER. 

943.  Mature.     Definition,    etc 852 

944.  Of  what  estate  a  widow  or  widower  endowed 8.55 

944a.  Mansion    liousc,   ctp S-IS 

945.  Widow   or   widower 855 

946.  Relinquished    857 

947.  How    barred 859 

»48.     Death  of  a  consort 861 

949.  To  what  property  the  right  attaches 861 

950.  Value  and  rights  when  lands  are  sold 86.3 

951.  Conveyance  in  lieu  of  dower 866 

952.  Effect  of  defective  conveyance  in  lieu  of  dower 867 

95.3.     Effect  of  eviction  from  premises  conveyed  in  lieu  of  dower 867 

954.  When  person  dwelling  in  adultery  is  barred  of  dower 868 

955.  Where  lands  aie  given  up  by  fraud 868 

956.  Dower  is  forfeited  by  waste 869 

057.      Assignment  of    869 

958.  Application    870 

CHAPTER  52. 

INSOLVENT  ESTATES  WHEN  SETTLED  BY  ADMINISTRATOR,  ETC. 

959.  When  estate  need  not  be  declared  insolvent 873 

960.  When  an   estate  should  be  declared  insolvent 874 

961.  Application    for    insolvency 876 

962.  Form  of  application 877 

963.  When  commissioners  not  appointed,  executor  or  administrator  to 

act  as   such 878 

964.  Entry  and  order  declaring  the  estate  insolvent 878 

965.  Executor   or    administrator    shall   give   notice   of   insolvency    of 

estate  to  creditors 878 

966.  Form  of  notice    879 

967.  Time  allowed  in  such  case  for  creditors'  to  present  claims.  List 

of    claims    to    be    filed 879 

968.  Comments     879 

969.  Claim  disallowed  may  be   submitted  to  referees 880 

970.  Presentation  and  proof  of  claims 880 

971.  If  not  referred,  creditors  to  commence  suit.     Limitation 882 

972.  Court  or  referee  to  award  costs 883 

973.  How  judgment  to  be  rendered  on  disallowed  claims 883 

974.  Preparation    of    report     883 


XXXU  CONTENTS 

iSECTION.  page:. 

975.  Report  of  claims   presented   in   insolvency 884 

976.  When  court  to  make  order  of   distribution  on  return  of  list  of 

debts     885 

977.  Hearing  and  order  of  distribution 885 

978.  Report  of  payment  of  dividends 887 

979.  Confirmation    of    distribution 888 

980.  When  court  to  make  further  order  of  distribution 888 

981.  Exceptions      888 

982.  Provisions    for   contingent    debts 889 

983.  When  contingent   debt  becomes   absolute 890 

984.  Dividends    thereon,   disposition    of    residue 890 

985.  Action  against  executor  or  administrator  of  insolvent  estates.  .   890 
985a.  Estate  declared  insolvent  while  action  against  it  pending 890 

986.  Comments     891 

987.  Claims   not   presented  as  required,  barred,  unless,  etc 891 

988.  If   surplus   remains   after   paying  debts   allowed,  other  creditors 

may    claim    it     892 

989.  How    divided   between    two    or   more   such   creditors 892 

990.  Executor  or  administrator  liable  only  for  assets  in  his  hands..   892 

991.  Creditors  may  sue  after  three  years  in  case,  etc 892 

992.  When  and  how  executor  or  administrator  may  be  compelled  to 

render   liis   account    to    court 892 

CHAPTER  53. 
SETTLiEMENT  OF  INSOLVENT  ESTATES  BY   COMMISSIONER,   ETC. 

993.  Wlien  estate  insolvent,  court  to  appoint  commissioners  to  audit 

claims 894 

994.  Comments     895 

995.  Duties   of   administrator,  .etc.,   when   commissioners    appointed..  896 

996.  Commissioners   to  give  notice  of   their  appointment,  etc 896 

997.  Form    of    notice,    etc 897 

998.  Time  allowed  creditors  to  present   and   prove  claims.     Commis- 

sioners   to    report    to    court 897 

999.  Presentation    of    claims    898 

1000.  Commissioners    examine    claimants    on    oath 899 

1001.  Any  one  of  commissioners  to  administer  oath 899 

1002.  Hearing  and  action  on  claim 899 

1003.  Report    of    the    commissioners 900 

1004.  Appeal  from  decision  of  commissioners,  how  perfected.     Hearing 

and  costs   900 

1005.  Procedure   and   appeal    901 

1006.  Form  of  bond,  and  notice  of  appeal 901 

1007.  Duty  of  commissioners  when  bond  or  notice  is  filed 902 

1008.  How  persons  should  proceed  who  have  omitted  to  appeal 903 

1009.  Comments     903 

1010.  AUow'ance  of  appeal  not  to  disturb  distribution  previously  made  904 

1011.  Distribution    among    creditors    after    commissionor's    return....  904 

1012.  Compensation    of    commissioners 904 


CONTENTS  XXXm 

CHAPTER  54. 

WILLS.     GENERALLY. 

SECTION.  PAGE. 

101 3.  Definition,  etc 905 

1014.  Distinguishing  characteristics   1)07 

1015.  Confusion  between  wills  and  other  instruments  in  writing 909 

lOlG.     Law   governing   will 911 

1017.  Right  to  make 912 

1018.  Who  may  make  a  will 913 

1019.  Any  person   913 

1020.  Full    age    913 

1021.  Sound  mind  and  memory 914 

1022.  Idiots,   imbeciles   and   lunatics 915 

1023.  Blind,  deaf  and  dumb  persons 917 

1024.  Person  under  a  guardianship   918 

1025.  Not   under    any   restraint 919 

1026.  Having    property    922 

1027.  May   give   any    person 923 

1028.  Bequest  or  devise  to  charitable  purpose,  when  void 924 

1029.  Corporation  and  charitable  uses 924 

1030.  Entailed  estates  pass  to  issue  of  first  donee 929 

1031.  Rule  against   perpetuities 929 

1032.  Contract  to  make  a  will 931 

1033.  Statutory  meaning  of  certain  words  as  applied  to  wills 932 

CHAPTER  55. 

WILLS.     EXECUTION. 

1034.  How   will    made 933 

1035.  In   writing    933 

1036.  Will  being  on  several  pieces  of  paper 934 

1037.  Signed  at  the  end 935 

1038.  By  party  making  the  same 937 

1039.  Signed  by  other  person 938 

1040.  Attestation    939 

1041.  Subscription    941 

1042.  In  presence  of  testator 942 

1043.  Two  or  more  competent  witnesses 945 

1044.  Effect  of  a  person  being  a  devisee  or  legatee 945 

1045.  Who  saw  testator  subscribe  or  heard  him  acknowledge 946 

1046.  Suggestions  for  drawing  wills 947 

1047.  Form  of  will 949 

CHAPTER  56. 

REVOCATION  OF  WILLS. 

1048.  General  principles   951 

1049.  How  will  expressly  revoked  or  cancelled 953 


^^^^IV  CONTENTS 

SECTION.  p^^^ 

1050     Tearing,  etc 9-3 

1051.  Interlineation    ,.-. 

1052.  By  some  other  will  or  codicil 955 

1053.  Destruction  of  second  will  not  to  revive  first,  unless,  etc 0.^6 

1054.  Revocation  of  later  will,   etc 956 

1055.  By    other   instrument    in    writing 957 

1056.  Revocation  by  sales,  or  conveyance  of  property,  etc 958 

1057.  Property  sold  by  bond,  sale  or  agreement  not  a  revocation 958 

1058.  Charge  or  incumbrance  not  deemed  a  revocation 959 

1059.  Conveyance,  etc.,  altering  but  not  divesting  estate,  not  a  revo- 

cation, unless,  etc 959 

lOCO.     "When   provisions  of  instrument   are  inconsistent  with  terms  of 

will.      Effect 9,59 

1061.  Marriage  will  not  revoke  the  will 959 

1062.  Revocation  by  birth  of  child 960 

1063.  Having  child  and  making  provision,  etc 960 

1064.  Child  absent,  reported   dead,  or  born  after   will  made  to  have 

portion  of  estate.     How  portion  raised. 962 

1064a.  How  contribution  apportioned 963 

1065.  Advancements  to  be  taken  into  account  in  such  settlement....    963 

CHAPTER  57. 

CUSTODY. 

1066.  Generally    964 

1067.  May  be  deposited  with  probate  judge.     Notice  of  probate 965 

1067a.  Notice   of   probate 965 

1068.  How  such  will  enclosed,  etc 965 

1069.  To  whom  it  may  be  delivered 966 

1070.  When  to  be  opened 966 

1071.  Comments   967 

1072.  Who  may  enforce  the  production  of  a  will  and  how 967 

1073.  Application   for   citation,   etc 968 

1074.  Form  of  entry  and  order  of  citation 968 

1075.  Attachment  or  warrant 969 

1070.     Into  what  counties  such  process  may  issue 970 

1077.  Liability  of  officer  serving  same 070 

1078.  Hearing,  etc 970 

1079.  Punishment  and  liability  of  person  refusing  to  produce  will. ...   971 

1080.  Form  of  entry  and  warrant,  etc 971 

CHAPTEE  58. 

WILLS.     PROBATE. 

1081.  Definition.     Nature  of  proceedings,   etc 972 

1082.  What  may  be  admitted  to  probate 974 

1083.  When  should  be  presented 976 

1084.  Effect  of  devisee  withholding  will  from  probate  for  three  years  977 


CONTENTS  XXXV 

SECTION.  PAGE. 

108.5.     Who   should   present   will   for   probate 977 

1086.  In  what  court  wills  should  be  probated !)7H 

lOSCa.  Persons  interested   in   probate  of   will   may  contest  jurisdiction 

of  court  to  entertain  application;   ajjpeal  from  decision....   981 
1086b.  Contest     081 

1087.  Application   for   probate 981 

1088.  Form  of  application  for  ]>iobate  of  will 98.3 

1089.  Time  of  hearing 98.3 

1090.  Entry   fixing   time,  etc 984 

1091.  To  whom  notice  should  be  given 984 

1092.  Service    of    notice 98.5 

1093.  Form  of  notice 980 

1094.  Essentials  to  be  proven   in   probate  of  will 986 

1095.  Examination   of    witnesses    to   will 987 

1096.  What  witnesses  may  be  heard.,  etc 987 

1097.  Form   of   testimony    ." 988 

1098.  How  will  proved,  if  witnesses  unknown  or  incomj)etent,  etc....   989 

1099.  Sufficient  testimony  wiiere  witness  is  dead  or  absent 989 

1100.  Form    of    testimony    of    subscribing    witnesses 991 

1101.  When  court  may  issue  commission  to  take  their  testimony 991 

1102.  Order   to    take   testimony   of   absent   witness 992 

1103.  Form   of   commission ^r^.'.-V.' .-. . .  992- 

1104.  Return   of   commissioner 993 

1105.  Admission  of  will  to  probate   9!I3 

1106.  Sufficient    proof,    etc 993 

1107.  Entry    ordering    probate 996 

1108.  Effect  of  order 997 

1109.  Record  of  title  by  will 999 

1109a.  Certificate  of  probate  judge  wiien   will  devises  real  estate 999 

1109b.  By   county   recorder 999 

1109c.  Fees 999 

1110.  Certified   copy   of   will,   etc.,   evidence 999 

1111.  Recorded  in  each  county  where  real  estate  is  situate 999 

1111a.  Record    of    title    by    descent 999c 

1112.  Uncontested    probate   after   one   year    binding 1000 

1112a.  Contests,  etc 1001 

1112b.  Set  aside  by  agreement lOOla 

1113.  Duty  of  judge  on  notice  of  contest 1001b 

1114.  Error,    etc 1002 

1115.  Repropounding    a    will .1003 

1115a.  Probating    second    will 1003 

1116.  Appeal  from  refusal  to  admit  will  to  probate 1004a 

1117.  How  appeal  perfected  and  proceedings  in  Common  Pleas 1004a 

CHAPTER  59. 
FOREIGN  AVILLS 

1118.  Introductory,    defintition,    etc 1005 

1119.  Will  executed  in  other  states  admitted  to  record  here  and   its 

effect.      Foreign    wills 1007 

1119a.  Record    of    foreign    will 1007 

1120.  Method    and    effect    of    such    admission 1008 

1121.  Application,    etc 1009 

1122.  Form  of  entry    1009 

1123.  Appeal,    error,    etc 1009 

1124.  Probate,  etc.,  of  will  made  out  of  the  United  States 1010 

1125.  Proceedings  to  admit  a  will  to  record  wliich  has  been  ^)robated 

without    the    state 1010  • 


XXXVl  CONTENTS 

SECTION.  PAGE. 

1126.  Application  or  motion  to  admit  a  copy  of  will,  etc 1011 

1127.  Entry    ordering    notice,    etc. . 1011 

1128.  Form    of   not.ce 1012 

1129.  Admission  of  such  will  to  probate 1012 

1130.  Admission  and  effect  of  admission   to  record 1013 

1131.  Entry  ordering  admission  of  will  made  in  foreign  countries  to 

probate  1013 

1131a.  Probate  of  foreign  will  of  later  date  than  one  already  admitted 

to  probate  in  this  state 101-1 

1131b.  Effect  of  admitting  later  will  to  probate 1014 

1131c.  Contests    1014 

1132.  Powers  of  executor  or  administrator  under  the  will  made  out 

of  this  state 1014 

1133.  Eights    of    purchaser    witiiout    knowledge    of    foreign    will.      No 

contest  of  foreign  will.     Effect,  if  set  aside  in  foreign  state.  1015 
1133a.  Foreign  will  can  not  be  contested  here 1015 

CHAPTER  60. 
SPOLIATED  WILLS. 

1134.  Definition,  etc 1016 

1135.  Wills  when  lost  or  destroyed  may  be  admitted  to  probate. ..  .1017 

1136.  There  must  have  been  a  will 1017 

1137.  Duly    executed    1018 

1138.  Not  revoked  at  death   of  testator 1010 

1130.  Lost,   spoliated    or    destroyed 1010 

1140.  Lost,   etc.,   subsequent   to  death   of   testator 1020 

1141.  After  testator   is   incapable,  etc 1021 

1142.  Application     1021 

1143.  Form     of     application 1023 

1144.  Notice    of    application 1023 

1145.  Order  of  notice,  etc 1024 

1146.  Examination   of    witnesses 1025 

1147.  Nature    of    proceedings 1025 

1148.  On  what   proofs   will   established.      IIuw   lost   or   spoliated    will 

may   be    probated    1026 

1148a.     Notice    1026 

1140.     Degree    of    proof 1027 

1150.  Proof    of    contents    1028 

1151.  Order    establishing    will 1020 

1152.  Effect   of   will    so    established 1030 

1153.  Error  and  appeal,  etc 1030 

1154.  When  record  of  will  destroyed,  authenticated  copy  of  the  will 

and  probate  tliereof   may   be   admitted  to   record 1030 

1155.  An  original  will  may  again  be  admitted  to  probate 1031 

1156.  Or  an  authenticated  copy  of   the  will  alone  may  be  admitted 

to    record     1031 

1156a.  Limitation  as  to  contests 1031 

1157.  Notice  that  copy  has  been  admitted  to  record  to  be  published, 

contest  of  same,  and  effect  if  not  set  aside 1031 

1157a.  Appeal    from   order   supplying   record   of    will    to   the   common 

pleas     '. 1031 

CHAPTER  61. 
NUNCUPATIVE  WILLS. 

1158.  Definition    1033 

^1150.     Nuncupative  will,  how  made  and  proved 1034 


CONTENTS  XXXVll 

BECTION.  PAGE. 

1 160.  Last   sickness 1034 

1161.  Personal  estate   1035 

1162.  Reduced    to    writing 1036 

1163.  Subscribed  by  competent  witnesses 1036 

1164.  Called    upon    person    present 1037 

1165.  Testamentary   words 1038 

1166.  Must  be  admitted  to  probate  within  six  months 1039 

1167.  Matter  pertaining  to  probate 1039 

1168.  Proof  required,   etc 1039 

1169.  F<)rm  of  will 1040 

CHAPTER  62. 

JOINT  AND  MUTUAL  WILLS. 

1170.  Definition    and    classification 1041 

1171.  Ohio   decisions    1042 

1172.  When   admissible   to   probate 1044 

1173.  Revocability  of  joint  and  mutual  wills 1045 

CHAPTER  63. 

CODICILS. 

1174.  Definition     1047 

1175.  Execution.      Revocation,    etc 1048 

1176.  Construction   of   will   and   codicil 1048 

1177.  Republication  of  will  by  a  codicil 1049 

1178.  Probate    of    codicil 1049 

1179.  Form  of  codicil    1050 

CHAPTER  64. 

CONSTRUCTION  OF  WILLS. 

1180.  Definition,  etc 1051 

1181.  General  rules  of  construction 1053 

1 182.  Rules   as   to   intention 1056 

1183.  Rules   as   to   repugnancy 1058 

1184.  Rules    for    supplying   words 1059 

1185.  When    extrinsic    evidence    admissible 1060 

1 186.  Parol   evidence    1062 

1187.  Declarations   of   the   testator 1064 

1188.  Devise  for  life,  remainder  to  heir  in  fee 1066 

1189.  Rule  in   Shelley's  case 1066 

1190.  Vesting  of  estates   1067 

1191.  Property  acquired  subsequent  to  making  of  will  passes 1069 

1192.  When  whole  estate  of  devisor  in  land  to  pass  by  the  devise.  .  .  .  1070 


XXXVlll  CONTENTS 

SKCTIOX.  PAGE. 

1193.  Life   estate   with   power   of   disposal ■ 1072 

1194.  Devise  or  bequest  not  to  lapse  by  the  death  of  devisee  or  legatee.1075 

1 195.  Lapsed    bequest 1075 

119G.  '"Heirs.'  how  construed 1077 

1197.  'Issue"   construed    1079 

1198.  "Children"   construed    1080 

1199.  "Xext  of  kin"  construed 1081 

1200.  "Relation"   construed    1082 

1201.  "Descendants"    construed    1082 

1202.  Disinheriting  heirs 1083 

1203.  Provisions    against    contesting 1085 

1204.  Restraints   of   alienation 1086 

1205.  Restraint  of  marriage 1088 

1206.  Wlien  real  estate  undevised  shall  be  applied  to   pay  debts   in- 

stead of  personalty    1089 

1207.  Contribution  when  devised  or  bequeathed  property  taken  to  pay 

debts  1089 

120S.     Except    when    will    otherwise    provides 1089 

1209.  But  whole  estate  liable  for  debts 1090 

1210.  Portion    of    child   born    after   execution    of   will   or   supposed   to 

be  dead,  or  of  witness  subject  to  contribution 1090 

1211.  If    iiny  liable   to   contribute   are    insolvent,   etc.,   how    others    to 

make   uji   deficiency 1090 

1212.  How    contribution    enforced. 1091 

1213.  Order  to   sell  land   to   pay   debts.     Not  alTected,  etc 1091 

CHAPTER  65. 
ELECTION   OF  WIDOW   OR  WIDOWER  UNDER   THE   ^^TLL. 

1214.  Inti  oductoy    1092 

1215.  Citation  to  widow   or   widower   to  make   election 10.93 

121.'3a.  Construction 1093 

1215b.  Election    time    extended 1094 

121.")C.  Dower   and    gift 1094 

1216.  When    citation    should    isb  ue 1094 

1217.  To     whom    issued 1095 

1218.  Form  of  citation  and  return  to  widow.     To  make  election. ...  1095 

1219.  Time   within    which    election    may    be    made 1096 

1220.  When  entitled  to  both  dower  and  the  provisions  made  in   the 

will    1096 

1221.  Election   or   non-election,   effect 1097 

1221a.  Election  to  be  noted 1097 

1221b.  Election    to    take    under    will 1097 

1222.  Election    made     in     person 1098 

1223.  Judoe    to    explain    wills,    etc 1099 

1224.  Election    to    be    made— Record 1100 

1225.  Election.      Entry,    etc 1101 

1226.  Election    made    by    acts    of    parties 1102 

1227.  Effect  of  election   to  take 1103 

1228.  Effect    of    election    not    to    take 1 1(»5 

122i).     How    election    set    aside 1 105 

1230.     Rights    of    devisee.      How    affected 1106 


CONTENTS  XXXIX 

SECTION.  PAGE. 

1231.  If   person   unable   to    appear    or    non-resident   of   county,    how- 

election   taken 1108 

1232.  Application  for  commission,  etc 1108 

1233.  Commission  to  take  such  election 1109 

1234.  Form  of  entrj',  etc 1110 

1235.  How  election  made  for  insane  or  imbecile  widow,  etc 1111 

1235a.  Entry    1111 

1236.  Application,    etc 1111 

1237.  Form    of   commission   as    to    insane   or   imbecile   widow's   elec- 

tion   1112 

1238.  Duty   of  commissioner    1112 

1239.  Duty    of    the    Court 1113 

CHAPTEH  66. 

GIFTS  CAUSA  MORTIS. 

1240.  Definition,  etc 11 14 

1241.  What  kind  of  property  may  be  given 1115 

1242.  Requisites   of   gift    1116 

1243.  In  view  of  death 1116 

1244.  Death   of   donor 1117 

1245.  Delivery  of  subject  to  gift 1117 

1246.  Gift  should  be  absolute 1119 

1247.  Revocation    of    gift 1119 

1248.  Evidence    of   gift 1 120 

1249.  Rights  of  creditors  and  family 1120 

CHAPTEK  67. 

TESTAMENTARY  TRUSTEES. 

1250.  Definition,    etc 1 122 

1251.  Distinction  between  executor   and  testamentary  trustee 1123 

1252.  Who  may  be  a  trustee 1126 

1253.  Jurisdiction   of   Probate   Court,   etc 1128 

1254.  Application,    etc 1129 

1255.  Form  of  application  for  appointment  of  trustee 1130 

1256.  Trustees  appointed  by  will  to  give  bond,  unless,  etc 1130 

1257.  Comments     1131 

1258.  Removed  on  failure  to  give  bond 1132 

1259.  Form  of  trustee's  bond 1132 

1260.  Appointment  of  trustee 1132 

1261.  Entry  for  appointment  of   trustee 1133 

1262.  Form  of  letters  of  trusteeship 1134 

1263.  Inventory    of    estate 1134 

1264.  Separate  bond  from  each  trustee  or  joint  bond 1135 

1265.  Surviving  trustee  may  execute  trust 1135 

1266.  When  Probate  Judge  may  appoint  person  to  execute  a  trust.  .  .  .  1135 


xl  CONTENTS 

SECTION.  PAGE. 

1267.  Trusts  created  by  foreign  will 1135 

1268.  Id.     Trustee  named  in  foreign  will  to  give  bond 1136 

1269.  How  trustee  appointed  by  foreign  Court  may  execute  a  trust.  .  .  1136 

1270.  Comments 1 136 

1271.  Probate  Court  may  appoint  a  trustee  under  a  foreign  will 1137 

1272.  Comments     1137 

CHAPTER  68. 

TRUSTEE   FOR  NON-RESIDENT. 

1273.  Introductory 1138 

1274.  How  trustees  are  appointed  for  non-residents 1139 

1275.  When  appointment  to  be  made 1139 

1276.  Jurisdiction 1140 

1277.  Bond    and    duties 1140 

1278.  Trustees  may  lease  or  sell  real  estate  as  guardian  of  minor.  .  .  .1140 

1279.  How  long  trustee  to  hold  office 1140 

1280.  When  and  to  whom  trustee  shall  pay  over  money 1141 

1281.  Comments 1141 

1282.  How  foreign  guardian,  etc.,  may  collect  money 1142 

1283.  Petition,    etc 1142 

1284.  Entry  and  notice 1143 

1285.  Hearing,    etc 1 143 

1286.  Trustee  may  loan  money  in  certain  cases 1144 

CHAPTER  G9. 

TRUSTEE.      DUTIES.      ACCOUNTING,   ETC. 

1287.  Duties  of  trustee 1145 

1288.  Principal  and  income 1147 

1289.  Dividends 1 149 

1290.  Gain   and   loss 1150 

1291.  Alterations  and  repairs 1151 

1292.  Expenses.     Taxes.     Insurance 1 152 

1293.  Trustees  must  render  biennial  account 1153 

1294.  Citations    and    notices 1 154 

1295.  Probate  Court  to  determine  as  to  execution  of  trust 1154 

1296.  Comments 1 154 

1297.  Appeal  from  determination  of  Probate  Court 1155 

1298.  Force  and  effect  of  aetermination 1155 

1299.  Allowance  of  compensation 1155 

1300.  When  Court  may  accept  resignation  of  trustee  or  remove  him.  .1156 

1300a.  When  trustee  under  a  will  may  be  removed 1156 

1300b.  Trustee  to  be  removed  when  guardian  appointed 1156 

1301.  Removal  of  trustee,  etc 1 156 

1302.  Causes  for  removal 1 158 

1303.  Distribution  of  fund 1 159 

1304.  Termination  of   trust 1160 


CONTENTS  Xli 

CHAPTER  70. 

GUARDIANS.     KINDS,  ETC. 

SECTION.  PAGE. 

1305.  Definition 1162' 

1306.  Natural    guardians 1163 

1.307.  Testamentary    cuardini)         1 1«4 

1308.  How  testamentary  guardian  to  be  designated 1165 

13U9.  lestauieiuaiy  guaruiun  to  have  preference.     His  duties,  powers 

and    liabilities 1166 

1310.  When  testamentary  guardian  shall  give  bond 1167 

1311.  Guardian  of  the  person  and  the  estate .1167 

1312.  Guardian  of  the  person 1108 

1313.  Duties  of  guardian  of  the  person,  etc 1108 

1 3 14.  Bond   of  guardian  of  person 1 1G2 

1315.  Guardian  of   the  estate 1169 

1310.     Duties  of  guardian  of  estate  only 1 170 

1317.  Other  kinds  of  guardians 1170 

1318.  Ancillary    guardians 1171 

CHAPTER  71. 

GUARDIAN.     APPOINTMENT  AND  BOND. 

1319.  Court  having  jurisdiction 1173 

1320.  When  necessary 1 174 

1321.  Minors .-^rr;". 1175 

1322.  Resident  of  county 1176 

1323.  Statement  of  ward's  estate  to  be  filed  and  bond  given.     Mort- 

gage in  lieu  of  freehold  surety.     Oath 1180 

1323a.  'Surety  in  lieu  of  freehold 1180 

1323b.  Oath 1180 

1324.  Application  for  appointment 1181 

1325.  Form  of  application  for  appointment  of  guardian 1181 

1326.  Notice    to    parties 1182 

1327.  When  minor  may  choose  guardian;  or  Court  may  appoint 1183 

1328.  How   made,   etc 1 183 

1329.  Parents'    choice 1185 

1330.  Court's    choice 1186 

1331.  Who    ineligible    by    law 1187 

1332.  Who    should    not    be    appointed 1 188 

1333.  Must  give  bond 1189 

1334.  Form   of   guardian's   bond 1190 

1335.  Mortgage  in  lieu  of  freehold  sureties 1191 

1336.  Oath 1191 

1337.  Bond  not  void  on  account  of  informality 1193 

1338.  One  bond  for  two  or  more  wards,  etc.,  fees 1193 

1339.  Order  of  appointment 1193 

1340.  Form    of    entry 1194 

1341.  Letters   of   guardianship 1194 

1342.  Appeal    and    error     1 196 


Xlll  CONTENTS 

CHAPTEE  72. 

BOND.     NEW.     ADDITIONAL.     SURETY. 

SECTION.  PAGE. 

•  1343.     Additional     bonds 1197 

1344.  Who  may  file  exceptions,  etc 1198 

1345.  Entry    ordering    notice,    etc 1198 

1346.  Notice  and   form • 1199 

1347.  Entry   ordering  additional   bond 1199 

1348.  New  bond.     Release  of  surety 1200 

1349.  Application,    etc 1201 

1350.  Notice,    etc 1201 

1351.  Entry    ordering    release 1202 

1352.  When  action  may  be  brought 1202 

1353.  Liabilities   of   sureties,   etc 1203 

CHAPTER  73. 
DURATION  OF  GUARDIANSHIP.     REMOVAL,  ETC. 

1354.  How  long  powers  of  guardian  to  continue.     His  settlement.  .  .  .1206 

1355.  Termination   of  trust 1206 

1356.  Marriage    of    ward 1208 

1357.  Resignation    1208 

1358.  Removal  of  guardian  by  the  Court 1209 

1.359.     Jurisdiction    and    procedure 1209 

1360.  Causes,    etc 1210 

1 360a.  Appeal   and   error 1212 

CHAPTER  74. 

POWERS  AND  DUTIES  OF  GUARDIANS  GENERALLY. 

1361.  Guardian's  relation  to  his  trust 1213 

1362.  Guardian's    duties    enforced 1215 

1363.  Power  of  Court  over  guardians  in  the  execution  of  their  trust.  .1216 

1364.  Procedure  when   Court  directs  tlie  manner  of  execution  of  the 

trust 1218 

1365.  Application  of  guardian  for  direction  as- to  tlie  management  of 

his    trust 121S 

1366.  Powers  of  guardian  of  person  and  estate.     Rights  of  parents.  .  1220 

1367.  Duties   prescribed   by   statute 1--1 

1368.  Inventory 1223 

1369.  Duties  as  to  custody  of  ward 1224 

1370.  Wards  may  be  bound  out  upon  approval  of  Probate  Court.  .  .  .1225 

1371.  Form  of  indenture  to  bind  out  a  ward 1226 

1372.  Rights  to  services  of  his  ward 1227 

1373.  Duties  as  to  maintenance 1228 

1374.  When   parent   may  receive   compensation   for   maintenance  and 

education 1230 


OONTKJMTS 


xliii 


SECTION.  PAGE. 

1375.  Duties  as  to  education 1231 

1376.  Religious    instruction 1232 

1377.  Fixed  allowance  made  by  tlie  Court  for  ward's  maintenance,  etc.  1233 

CHAPTER  75. 

POWERS  AND  DUTIES  IN  RELATION  TO  ESTATE. 

1378.  Management   of  estate 1234 

1379.  Carrying  on  business  of  the  ward 1236 

1380.  Must  pay  debts  of  the  ward 1237 

1381.  Collection   of    debts,    etc 1238 

1382.  Arbitration  and  compromise  of  claims 1239 

1383.  Actions  for  the  ward    1240 

1384.  Actions   against   the   ward 1241 

1385.  Investment  of  funds 1243 

1386.  Investment  of  funds  in  land 1245 

1387.  Form  of  application,  entry,  etc 1246 

1388.  Interest    on    funds 1247 

1389.  Deposit  of  funds 1249 

1390.  Personalty  received  from  administrator,  etc.,  in  kind 1249 

1391.  Sale  of   personal    estate 1250 

1392.  Management  of  real  estate,  etc 1251 

1393.  Rents    1252 

1394.  Repairs   1253 

1395.  Release  of  ward's  tax  title  by  guardian,  effect  of  tender  of  deed.  1254 
1390.  Partition  and  dower 1254 

1397.  Easement.     Appropriation    1255 

1398.  Completion  of   real   estate   contract.     Additional   bond 1255 

1399.  Contracts  between  ward   and   guardian 1255 

1400.  Ward's  right  of  action  against  the  guardian 1256 

1401.  Guardian's  right  of  action  against  the  ward 1256 

1402.  Employment  of  attorneys,  agents,  etc 1257 

1403.  Guardian  cannot  purchase  property  of  the  ward,  etc 1257 

1403a.  Discovery  of  assets  belonging  to  estate  of  vrard 1258 

1403b.  Imprisonment  for   disobeying   citation 1258 

1403c.  Examination  reduced  to  writing 1258 

1403d.  Costs,  etc 1258 

CHAPTER  76. 
GUARDIAN'S  SALE  OF  REAIL  ESTATE. 

1404.  Nature  of  action,  etc 1259 

1405.  Sale  of  personal  and  real  estate  of  minors.     One  application  for 

sale  of   real  estate  of  two  or  more  wards.     Two  or  more 
guardians    may    join 1260 

1406.  In  what  Court  action  to  be  brought 1261 

1407.  When  action   may   be  brought 1262 

1408.  Parties    to    action 1263 

1409.  What  may  be  sold 1264 

1410.  Petition  for  sale  of  real  estate 1265 

1411.  Essentials    of    petition 1266 


Xliv  CONTENTS 

SECTION.  PAGE. 

1412.  Form  of  petition 1267 

1413.  Notice  of  filing  petition,   etc 1268 

1414.  Ordering  notice,   etc 1268 

1415.  Service  of  notice 1269 

1416.  Form  of  notice,  publication,  etc 1270 

1417.  Guardian   ad    litem 1270 

1418.  Hearing  of  petition.     Appraisers.     Survey  into  tovsrn  lots 1272 

1419.  When  order  anuuld  be  granted i272 

i420.     Order  to  appraise 1273 

1421.  Oath  of  appraisers 1273 

1422.  Guardian  to  execute  additional  bond  before  sale 1274 

1423.  Form  of  guardian's  bond 1274 

1424.  Requirements  of  bond,  sureties,  etc 1275 

1425.  Order  of  sale  of  real  estate,  private  sale  when,  laying  out  in 

town  lots    1275 

1426.  Entry  ordering   sale 1276 

1427.  Public   sale    1277 

1428.  Private  sale 1277 

1429.  Report  of  sale,  fonfirmation  and  deed 1278 

1430.  Form  of  guardian's  deed 1278 

14.31.    Appeal  ana  error ii;sO 

CHAPTEE  77. 

LEASE  OF  WARD'S  REAL  ESTATE. 

1432.  Power  to  lease 1281 

1433.  Power  to  lease  for  fifteen  years 1282 

1434.  Petition   for   lease 1282 

1435.  Application    for    lease,    etc 1283 

1436.  Form  of  petition  to  lease  and  improve  real  estate 1283 

1437.  Notice.     Entry,  etc 1284 

1438.  Who  may  unite  in  application  and  proceedings  thereon 1285 

1439.  Appointment  of  appraisers.     Entiy,  etc 1285 

1440.  Order  to  view,  etc 1286 

1441.  Hearing  and  orders  thereon 1287 

1442.  Order  authorizing  lease,  etc 1287 

1443.  How  improvements  may  be  made 1287 

1444.  Report  of  guardian,  etc 128? 

1445.  When  lease  extending  beyond  minority  determines 1288 

1445a.  Lien  of  tenant  for  improvements 1288 

CHAPTER  78. 

POWER   TO   LEASE    REAL    ESTATE    FOR   PETROLEUM,   GAS   AND 
MINING  PURPOSES. 

1446.  Lease  for  petroleum  or  natural  gas  purposes 1289 

1447.  Power  to  lease  real  estate  for  petroleum  oil  or  natural  gas 

purposes    1290 


CONTENTS  Xlv 

SECTION,  PAGE. 

1448.  Petition  therefor    1290 

1449.  Notice  of  hearing 1290 

1450.  Court  to  prescribe  terms,  etc 1290 

1451.  Lease  for  mining  purposes 1291 

1452.  Power  to  lease  real  estate  for  ten  year3  for  mining  purposes. . .  .  1291 

1453.  Petition ;   time  for  hearing 1291 

1454.  Land  to  be  viewed  by  disinterested  freeholders 1292 

1455.  Probate    Court    to    order    lease 1292 

1456.  Royalty;    report    of    by   guardian;    bond    to   recover 1292 

1457.  Change    in   terms   of   leasing 1292 

1458.  Lands   owned   in   common    by    minors 1293 

CHAPTER  79. 
MORTGAGE  OF  WARD'S  LANDS. 

1459.  Statute  must  be  followed,  etc 1294 

1460.  Where    action    to    be    brought 1295 

1461.  Guardian  may  mortgage  real  estate  of  ward  in  certain  cases . .  1295 

1462.  For  whom  action  may  be  brought 1296 

1463.  When  application  may  be  filed 1297 

1464.  Petition  therefor;  what  to  contain 1297 

1464a.  Investigation  and  repoi  t 1298 

1465.  Essentials    of    petition 1298 

1466.  Form  of  petition 1299 

1467.  Proceedings  upon  filing  of  petition 1299 

1468.  Viewers,   when   to   be   appointed 1300 

1469.  Amount  to  be  borrowed,  etc 1300 

1470.  Entry    ordering   guardian    to   report.     What    rate   loan    to   be 

made    1300 

1471.  Order  and  report  of  guardian 1301 

1472.  Acceptance  and  confirmation  of  report  and  terms 1301 

1473.  Entry  confirming  report  and  making  distribution 1302 

1474.  Report  of  execution  of  mortgage,  etc 1302 

1474a.  Form  of  guardian's  mortgage 1302 

CHAPTER  80. 

FOREIGN  GUARDIANS. 

1475.  Rights,    duties,    etc 1304 

1476.  Effect  of  removal  of  ward  from  state,  and  appointment  of  for- 

eign   guardian     1305 

1477.  When  and  under  what  circumstances  the  guardian  here  may  be 

removed     1305 

1477a.  Foreign  state  must  have  similar  laws 1305 

1478.  Comments 1305 

1479.  What  to  be  done   if  guardian  here  removed 1306 

1480.  When  foreign  guardian  of  foreign  ward  may  demand  or  receive 

property  of  his  ward  in  this  State 1306 

1481.  Foreign  guardian  of  minors  may  sue  and  be  sued  in  this  State 

and    sell    real    estate 1306 

1481a.  Sale  of  their  lands 1307 


xlvi  COA'TENTS 

SECTION.  PAGE. 

1482.  Comments    1307 

1483.  Foreign  guardian  of  foreign  idiot,  imbecile  or  lunatic  may  dis- 

pose of  property  belonging  to    his  ward 130V 

CHAPTER  81. 

GUARDIAN'S  ACCOUNTING. 

1484.  Duty   to   account 1309 

1485.  When  and  where  to  be  filed 1310 

1486.  When  barred  by  lapse  of  time 1311 

1487.  What   it   should   contain 1311 

1488.  With  what  guardian  should  be  charged 1312 

1489.  Entitled  to  what  credits 1313 

1490.  Guardian's  compensation   1314 

1491.  Preparation  of  the  account,   etc 1316 

1492.  Notice,  hearing,  exception,  etc 1310 

1493.  Eifect  of  his  settlement  with  Court,  review  of  such  settlement.  .1317 

1494.  When  account  may  be  opened  up 131S 

1495.  Appeal  and  error 1319 

1496.  Settlement  with   succeeding   guardian 1319 

1497.  Settlement   with   ward 1321 

140S.  How  finding  of  Probate  Court  enforced 1323 

1499.  Settlement    by    executors,    administrators,    etc.,    of    guardian.-^. 

How     enforced     1 323 

1500.  Comments     1324 

CHAPTER  82. 
GUARDIAN    OF    LUNATIC,    IMBECILE    AND    IDIOT. 

1501.  Guardian  of  idiot,  imbecile  and  lunatic.     Who  is  an  imbecile.  .  1325 

l.'jOla.  (iuardian    tor    persons    confined    in    state    institutions 1326 

15(!2.     Court    having    jurisdiction 1326 

1503.  For   whom   appointment    made 1328 

1503a.  Guardians   for   incompetents   and   persons   confined   in    state    in- 
stitutions      1329a 

1504.  Application     for    appointment 1329b 

1505.  Form    of    application 1330 

1506.  Notice,  entry,  etc 1330 

1507.  Form    of    notice    and    service 1332 

15  8.     Hearing,   etc 1332 

1509.  \\'lien  order  should  be  made 13.33 

1510.  i'^ntry,    finding    person    incapacitated 1335 

1510a.  Costs,  etc 1.3.35 

1511.  Efi'ect    of    finding    of    disability 1336 

1512.  Who  may  or  .should   be  appointed 1336 

lo'lr};  ■  -When    guardianship    to    terminate 1.337 

1514.  Procedure    for    rt'moval,    etc 1337 

1515.  Apjioal    and    errcn- 1338 

1516.  Laws  ap])licable  to  guardians  of  lunatics,  idiots,  imbeciles  and 

tlieir    children     1338 

15ina.  Settlement    of    such    guardian 13,39 

1517.  E.\cei)tion    as    to    voucher    and    opening    account 1339 


CONTENT^ 


xlvii 


SECTION.  PAGE. 

1518.     Duties  of  guardian  as  to  welfare  of  ward 1340 

1.51!).     ])uty    of    guardian    as    to    existing    contracts l.'Ml 

ir)2U.     Insolvency    of    lunatics l;}4;i 

1521.  (Suit  by  guardian   of   idiot,   imbecile  or   lunatic,  and   revivor   of 

same    134.3 

1522.  Sale   of   real   estate   by   guardian    of    idiot,    imbecile   or    lunatic. 

Petition.      Private    sale.      Parties    defendant 1344 

1522a.  Petition ;     what    to    contain 1344 

1522b.  Husband   or   wife   to   be   made   defendant 1344 

1523.  Dower   of   insane,   idiotic   or    imbecile    person;    Jiow   assigned    or 

sold 1345 

1524.  Procedure    in    assignment    of    dower 1345 

1524a.  Application  to  sell  and  release  dower  right .134*) 

1524b.  Entry  authorizing  and  ordering  release  of  dower  rigiit,  etc.  .  .  .  134<ia 
1524c.  Guardian's    deed     134()a 

1525.  Guardian  empowered  to  lease  and  im[)rove  estate.     Terminatioi) 

of  lease.     Lien  of  tenant 134(;b 

1526.  Long  lease  by  guardian  may  be  authorized  by  court.     Lease  for 

three  years  without  order  of  court 134(ib 

1527.  Application  for  autliority   to  make   long  lease 1347 

1528.  Proceeding    on    sucii    a|)plication 1347 

1529.  '  Final  hearing  and  orders 1347 

1530.  Guardian  may   improve  real  estate   of   imbecile,  etc 1347 

1531.  Proceedings    '. 1348 

1532.  May   unite   with    owners    of    adjacent    jiroperty 1348 

1533.  Guardian's    report,    etc 1349 

CHAPTER  83. 
GUARDIANS  OF  DRUNKARDS,  IMPROVIDENTS,  ETC. 

1534.  Laws    relating   to   guardians    generally,    applicable 1350 

1535.  Wlien    guardian    to    be    appointed    for    drunkards 1350 

1535a.  Improvidents ;   spendthrifts 1.J51 

1536.  Procedure  to  appoint lo51 

1537.  Notice  to  be  served  on  party,  etc.     Sale  thereafter  invalid 1:'..'J2 

1538.  Incapacity    to    contract I;i52 

153!).  When   order   of  appointment    should   be    made 1;>52 

1540.  When    guardianship    shall    terminate 1353 

1541.  Procedure    to    terminate    1353 


CHAPTER  84. 

ASSIGNMENT.      JURISDICTION.      APPOINTMENT. 

1542.  Definition,   etc 1.3,54 

1543.  Effect    of    act   of    bankruptcy,    etc 1355 

1544.  Jurisdiction    of    Probate    Court 1358 

1545.  Jurisdiction  of  Court  of  Common  Pleas 1300 

1546.  Assignee  must  give   bond   in  Probate   Court 1361 

1546a.  Assignment ;     when    to    take    elfect 13()1 

1547.  Who    may    make 1362 

1548.  Who  may  be  assignee 13(53 

1549.  What  property  may  be  assigned 13(54 

1550.  How    made     13(55 

1551.  Filing    in    Probate    Court,    etc 1366 

1552.  Filing  deed   in   recorders   office 1366 

1.553.  Qualification    of    assignee 13(57 

1.554.  Bond,    etc 13(58 


Xlviii  CONTENTS 

SECTION.  PAGE. 

1555.  Order    of    appointment 1.369 

1556.  Effect  of  order  and  issue  of   letters 1369 

1557.  Notice    of    appointment 1370 

CHAPTER  85. 
RESIGXATION.     REMOVAL  OF  ASSIGNEE,  ETC. 

1558.  Introductory 1371 

1559.  On  failure  to  file  assignment  or  give  bond,  court  to  appoint  a 

trustee 1372 

1560.  Comments.     Removal  of  assignee 1372 

1561.  Resignation  of  assignee.     Appointment  of  trustee.     Filling  va- 

cancy.     Additional    trustees 1372 

1562.  Removal  of  assignee,  etc.,  by  the  court.     Effect  of  new  bond..  1373 

1562a.  Application    for    release    of    surety,    etc 1373 

1562b.  Application  by  trustee  for  release  of  surety 1373 

1562c.  Removal  for  failure   to   give   new   bond 1373 

1563.  Procedure,    etc 1373 

1564.  Election   of   trustee   or   trustees   by    creditors 1374 

1564a.  Proceedings    1374 

1565.  Application   for   election   of   trustee ...1375 

1566.  Form  of   petition   for   election   of   trustee 1375 

1567.  Entry    ordering    citation,    etc 1376 

1568.  Form    of    citation,    service,    etc 1376 

1569.  Hearing,    etc 1376 

1570.  Election   by   creditors,   etc 1377 

1571.  Entry.      Form,    etc 1378 

1572.  Trustee  appointed,  to  give  bond.     His  rights  on  giving  bond.  .1378 

1573.  Settlement  on  resignation,  removal  or  death.     How  enforced.  .1379 

1574.  Appointment  and  qualification  of  trustee  to  operate  as  a  con- 

vej-ance    1380 

1575.  Appeal  and  error   1380 

1576.  Unsettled  assignments  heretofoore  made.     Citation  of  assignee 

to   give   bail 1380 

1577.  Raising  an   assignment   1381 

CHAPTER  86. 

DUTY  OF  ASSIGNEE  AS  TO  CARE  AND  MANAGEMENT  OF 
PROPERTY. 

1578.  Introductory     1383 

1579.  When    transfer    or    assignment    void 13S4 

1579a.  To    whom    act    applies 13S4 

1579aa.\Vhen    purchaser   or   assignee    becomes    trustee 1384 

1570b.  Receiver ;     appointment    of 1385 

1579c.  Knowledge  of  fraudulent  intent  material;   mortgage,  provisions 

as    to     1385 

1580.  How    suit    brought 1386 

1580a.  When   creditor   may  bring   suit 1386 

1581.  For  what  cause  action  may  be  brought 1386 

1582.  When   sale   conclusively    presumed   to   be    fraudulent 1388 

1583.  ^^Tio  may  bring  the  action 1389 

1584.  Jurisdiction    1389 

1585.  Examination    of   assignor,    etc.     Orders    to    prevent    fraudulent 

transfer 1389 

15S5a.  Order    to    prevent    fraudulent   transfer 1300 

1586.  Procedure,  etc 1390 

1587.  Court,  on  application  of  three-fourths  of  creditors,  may  order 

business  of  assignor  carried   on  bv  assignee 1390 


CONTENTS.  xlix 

SECTION.  PAGE. 

1588.  Liability  of  assignee 1391 

1589.  Application     1391 

1590.  Form  of   application,  etc 1392 

1591.  Assignee  may  complete  sales  of  real  estate,  etc 1392 

1592.  Property    taken    possession    of    by    another    under    lien    or    exe- 

cution      1393 


CHAPTER  87. 
APPRAISEMENT,  EXEMPTION,  ETC. 

1593.  Introductory    1394 

1594.  Appointment  of  appraisers 1394 

1594a.  Real  estate  without  the  state 1395 

1595.  Appraisers,   etc 1395 

1596.  What  must  be  appraised 1396 

1597.  Return  of  inventory  and  schedule 1396 

1598.  Exempt  property  excepted  unless  expressly  waived,  and  wife's 

property.     Homestead  to  be  set  off 1396 

1598a.  Homestead 1398 

1599.  Who  entitled  to  exemption - 1398 

1600.  Dower   1399 

1601.  When  court  may  order  property  sold 1400 

1601a.  Five  hundred  dollars  in  lieu  of  exemption 1401 

CHAPTER  88. 
COLLECTION  OF    ASSETS    AND   SALE    OF    PERSONAL    PROPERTY. 

1602.  Shall  convert  assets  into  money 1403 

1603.  Diligence   required,    etc 1403 

1604.  When  and  what  to  be  sold ttt:  : 1404 

1605.  How   to   be   sold 1405 

1606.  Terms    of    sale 1405 

1607.  Form  of  application  for  sale  of  personal  property 1406 

1608.  Chattel  mortgage  claim,  etc \ 1407 

1609.  Public  sale  of  personal  property 1408 

1610.  Court  may  order  property  disposed  of  at  private  sale 1409 

1611.  Property  to  be  sold  at  auction  if  not  disposed  of  privately.  .  .  .1409 
1611a.  Compromise  or  sale  of  claims 1409 

1612.  Order,  etc.,  where  property  not  sold 1409 

1613.  Return  and  confirmation  of  sales.     Order  as  to  deed,  acceptance 

of  cash,  sale   of   notes,  etc 1410 

1614.  Report    of    sale 1410 

1615.  Compromise  of  sale  of  desperate  claims 1411 

1616.  Title  conveyed   1412 

CHAPTER  89. 
ASSIGNEE'S   SALE   OF   REAL   ESTATE. 

1617.  Introductory    1413 

1618.  Payment  of  liens,  etc 1413 

1618a.  Question   of  title 1414 

1618b.  Sale    of    premises 1414 

1618c.  Disposition   of   proceeds   of  sale 1414 

1618d.  Application  of  preceding  sections 1414 

1618e.  Homestead   exemptions    1414 

1618f.   Jurisdiction   of   court   in    action    to   foreclose   mortgage,   quiet 

title,  etc 1414 


1  CONTENTS. 

SECTION.     .  PAGE. 

1619.  Nature  of  action 1415 

1620.  Where  action  brought 141.> 

1621.  Parties    defendant    1416 

1622.  Form  of  petition 1416 

1623.  Procedure,  etc 1417 

1624.  Proceedings  to  lay  out  land  into  town  lots 1417 

1625.  Notice,  sale  of  real  estate 1418 

1626.  Return  of  sale,  confirmation,  etc 1419 

1627.  Form  of  deed  of  assignee  or  trustee.     Public  or  private  sale. .  .1419 

CHAPTER  90. 
PRESENTATION  OF  CLAIMS. 

1628.  Presentation  of  claims,  their   allowance  or   rejection 1421 

1628a.  Report  of  claims 1421 

1629.  When   to  be   presented 1422 

1630.  What  to  be  presented 1422 

1631.  Claims   secured   by   mortgage 1423 

1632.  How   presented.      Affidavit,   etc 1425 

1633.  Form  of  affidavit,  etc 1426 

1634.  How  to  be  allowed  or  rejected 1426 

1635.  When  claim  shall  be  disallowed  on  application  of  assignor  or 

creditor  and  proceedings   in  such  case 1426 

1G3G.     Procedure  under   §    11136  General   Code 1427 

1637.  When   suit   must   be   entered   on   rejected  claim 1427 

1638.  In  what  court  action  to  be  brought 142S 

1639.  Report    of    claims    filed 142!i 

CHAPTER  91. 
PAYlilENT  OF  PREFERRED  CLAIMS. 

1640.  Introductory     1430 

1641.  Costs    of    administration 1430 

1642.  Commission  of  assignee.     Further  allowance.     Counsel  fees,  etc.1432 

1642a.  Further    allowance;    counsel    fees 1432 

1043.     Ordinary    services    1433 

1644.  Ivxtraordinary    services.     Attorney    fees 1433 

1645.  Itemized   bill.     Affidavit,    etc 1435 

1G46.     Lien   existing   at   time   of   assignment 1436 

1647.  Claims   preferred  by  statute 1437 

1647a.  Lien    iind    sccvirities    1437 

1648.  Taxes 1437 

1649.  Labor  claims  under   §   11138,  (ieneral  Code 1438 

1650.  Liens  under    §   8339,  General   Code 1440 

1651.  Miscellaneous   matters,   relating   to   labor   claims 1440 

CHAPTER  92. 
ASSIGNEE,  ACCOUNT  AND  DISTRIBUTION. 

1652.  Introductory    1442 

1653.  Reports  and  settlements  of  assignee.     The  declaring  and  pay- 

ment of   dividends    1443 

1653a.  Dividends    1443 

1653b.  Dividends    reserved     1443 


CONTENTS.  li 

SECTION.  PAGE. 

1054.  When  it  must  be  filed 1444 

1055.  What  it  should  contain 1444 

1 656.  Assignee's   account 1445 

1657.  Filing  and   entry  ordering  notice 1446 

1658.  Hearing   account    1447 

1059.  Exceptions    1447 

1600.  Notice  to  creditors  of  dividends 1448 

1001.  Report  of   payment 1449 

CHAPTER  93. 
APPROPRIATION  OF  PRIVATE  PROPERTY. 

1062.  Introductory    1451 

1063.  Power  of  eminent  domain 1452 

1664.  Constitutional    provisions     1453 

1665.  Who   may   exercise  power 1455 

1606.     How  grant  to  exercise,  construed 1455 

1007.     When  may  be  exercised 1457 

1668.     What  and  how  much  may  be  taken ......... .1 145S 

1609.     Taking  property  without  right 1400a 

1670.  Additional  servitudes    1400b 

1671.  Compensation    1462 

1072.  Benefits 1463 

1073.  Evidence,  etc 1405 

CHAPTER  94. 

CONDEMNATION   PROCEEDINGS    BY   PRIVATE   CORPORATIONS. 

1074.  To  what  chapter  apjjlies 1470 

1075.  To  w^hat  does  not  apply 1471 

1676.     When  appropriations  can  be  made 1471 

1077.  Appropriation  of  property  of  minor,   idiot,   imbecile,  or   insane 

person    1472 

1077a.  Notice  to  ward 1472 

1078.  Proceedings  under   §   11040,  General  Code 1472 

1679.     Petition   for   appropriation   filed   in   Probate   Court 1475 

lOSO.     W' liere  to  be  filed 1475 

1681.  Petition  may  include  one  or  more  parcels.     In  what  county  to 

be    filed    1470 

1682.  Wlien  Probate  Judge  interested,   proceedings  to  be  commenced 

in   Common   Pleas.     Special   term   of 1476 

1682a.  Procedure   in   Common   Pleas   Court 1476 

1682b.  When  corporation  entitled  to  possession    1477 

1083.  Nature    of    proceedings     1477 

1084.  Amendments   allowed 1477 

1085.  Time  of  trials.     Adjournments,  discharge  of  juries    1477 

1080.     Essentials    of     petition 147S 

1087.  Parties,    etc 1480 

1088.  Form    of    petition 1481 

1089.  Filing  the  petition,  entry,  etc 1482 

1690.  Summons,  its  command  and  service  thereof.     Alias  summons.  .1483 


lii  CONTENTS 

SECTION.  PAGE. 

1691.  Notice 1483 

1692.  Service  by   publication,   how   proved    14S4 

1693.  Affidavit    and    form    of    notice 184.5 

1694.  Court  to  appoint  attorney  for  party  absent  or  under  disability. 14S5 

1695.  Jurisdictional   questions.     When   to   be   heard   and   determined. 

Burden  of   proof 1485 

1696.  When  to  be  heard 1486 

1697.  Existence   of   corporation 1487 

1698.  Right    to    make    appropriation 1487 

1699.  Inability    to    agree     14S8 

1700.  Necessity    for   appropriation 1488 

1701.  Jurors  to  be  drawn  from  box  and  venire  issued 1489 

1702.  Finding  and  order  to  draw  jury 1489 

1703.  How  panel  to  be  filled;  jurors  to  be  interrogated  by  court ....  1490 

1704.  Challenge  to  jurors  and  how  vacancies  filled 1491 

1705.  Cliallenge    of    jury 1491 

1706.  Oath  to  be  administered  to  jury 1492 

1707.  View    of    premises 1492 

1708.  Judge  must  deliver  to  sheriff  description  of  property.    May  ap- 

point persons  to  be  present  at  view,  etc 1493 

1709.  Entry  impaneling  a  jury 1494 

1710.  Is    the    view    evidence 1494 

1711.  Separate    owners    entitled    to    separate    trial.      They    hold    the 

affirmative    on    trial 1497 

1712.  Motion    for    separate    trial,    entry,    etc 1498 

1713.  Witnesses    may    be    examined    before   jury 1498 

1714.  Trial,   etc 1498a 

1714a.  Burden    of    proof 149Sa 

1715.  When  a  structure  is  partly  on  land  sought  to  be  appropriated.  1499 
1715a.  Veidict.     Motioa  for  new  trial.     Confirmation  of  verdict 1499 

1716.  Form   of  entry   and   verdict,  etc 1499 

1717.  Motion  for  new  trial,  etc 1.500 

1718.  New    trial.      Proceedings    tliereon.      Costs 1501 

1719.  Entry    confirming    verdict,    etc 1501 

1720.  Petition  in  error  may  be  tiled  by  either  party  in  Common  Pleas, 

when.      Bill    of    exceptions 1502 

1720a.  Petition    in    error 1502 

1720b.  Corporation  may  pay  judgment   and  enter  on   property 1502 

1721.  When   error   may   be   prosecuted \ 1503 

1722.  Proceedings    in    Common    Pleas   on   error.      Costs 1503 

1723.  When    corporation    may   have    possession    1504 

1724.  Entry    when    deposit   'm"de 1506 

1725.  When   and   how   corporation   may   abandon   proceedings 1506 

1726.  What   is  an   abandonment '. 150l)a 

1726a.  Wlien  action  may  be  brought  for  costs  and  expenses 1506b 

1727.  Entry  of  distribution  where  there  are  no  conflicting  claims. ..  .150fib 

1728.  When  Probate  Court  can   not   order  distribution 1507 

1729.  Conflicting    claims    adjudicated    in    Common    Pleas.      Petition 

therefor.      Disposition    of    fund 1508 

1729a.  Custody    of    the    funds 1508 

1730.  ."^uch    proceeding   a    civil    action 150S 

1731.  When    unfinished    roadbed    of    railway    company    may    be    con- 

demned      .* 1.508 

1731a.  Construction    of    terms 1509 

1732.  Judgment   and   costs   in   such    case.     When   jury   to    determine 

amount    of    compensation 1509 

1733.  In  what  courts  such   proceedings  may  be  commenced  and  how 

conducted     1509 


CONTENTS  liii 

SECTION.  PAGE. 

1733a.  Error    X510 

1733b.  ytatement    of    intention 1510 

1733c.  Failure   to  occupy  roadbed  for  one  year lolO 

1733d.  Interpretation   of   word   "roadbed" 1,510 

1734.  When  land  owner  may  compel  appropriation 1510 

1735.  When  land  owners  or  school  officers  may  notify  corporation  to 

institute  proceedings;   petition  on  failure  of  corporation  to 

act 1511 

1735a.  Demand    of    written    statement    describing    the    land    occupied 

without    appropriation 1511 

1736.  Who    may   bring    action 1512 

1737.  When    and    where    action    brought 1512 

1738.  Notice    to    corporation 1513 

1739.  Demand   of  description   of   property 1513 

1740.  Essentials    of    petition 1514 

1741.  Form    of    petition 1514 

1742.  Summons   in   such   case 1515 

1742a.  Summons  in   such  case 1515 

1743.  Procedure,    etc 1515 

1744.  When  corporation  may  be  enjoined  from  occupying  the  land..  1516 

1745.  Motion    for    injunction,    etc 1516 

1746.  Tender    made    by    corporation 1517 

1747.  School   lands,   how    appropriated 1518 


CHAPTER  95. 
CONDEMNATION   BY  MUNICIPAL   CORPORATIONS. 

1748.  Introductory    1519 

1749.  When    action    can   be    brought 1520 

1750.  Application   to  court,  etc 1524 

1751.  Essentials    of    application 1524 

1752.  Form   of  petition   or  application 1525 

1753.  Filing  of  application  or  petition 1526 

1754.  Service   of   notice   to   owners   of   property,   etc 1526 

1755.  Notice,    etc 1527 

1756.  Wlien    to    be    heard 1527 

1757.  Jurisdictional    questions,    preliminary    hearing 1528 

1758.  Court  to  fix  time  for  assessment  of  compensation  by  jury....  1529 

1759.  Entry  finding  on  preliminary  questions  and  ordering  jury 1530 

1760.  How   jurors    drawn    in   Probate    Court 1530 

1761.  Empaneling    jury,    etc 1531 

1762.  View   of   premises   may   be    required 1531 

1763.  How  jury  to  return  assessment.     Open  and  close  of  case,  etc.  .1531 

1763a.  Guardian    ad    litem 1531 

1763b.  Deposit   of   money 1532 

1763c.  How    assessment    signed 1532 

1763d.  When  appropriation  includes  part  of  building 1532 

1764.  Trial,  etc 1532 

1765.  Verdict  in  whole  or  in  part 15.33 

1766.  Form  and  return  of  verdict 1533 

1767.  Orders  as  to  payment  or  deposit  of  assessment 1534 

1767a.  Effect   of   payment   or   deposit 1534 

1767b.  Reappropriation   to  perfect  title 1534 

1768.  Distribution     of    funds 1534 

1770.  Costs,    how    paid 1535 

1771.  No  delay  from  doubt  of  ownership 1.535 

1772.  Interested  parties  may  give  bond,  etc 1535 


liv  CONTENTS 

SECTION.  PAGE. 

1773.  Review    of    proceedings 1536 

1773a.  Appeal  to  Court  of  Common  Pleas 1536 

1774.  Motion  and  proceedings  on  new  trial 1536 

1775.  Entry   confirming   verdict,   etc 1537 

1776.  Proceedings  in  error.     How  execution  of  order  suspended 1538 

1777.  Appeal  to  Court  of  Common  Pleas 153S 

1778.  Notice    of    intention    to    appeal 1538 

1779.  Appeal  by  guardian,  executor,  etc.,  and  married  woman 1530 

1780.  Probate    Court    shall    furnish    transcript 1540 

1781.  Original    papers    may    be    used 1540 

1782.  Corporation  not  to  appeal,  or  prosecute  error  except  on  leave..  1540 

1783.  Efi'ect  of  failure  to  pay  for  or  take  possession  of  land  within 

six    months     1540 

CHAPTER  96. 
ROAD  APPEALS. 

1784.  Appeals    in    road    matters 1542 

1785.  When  order  to  open   road  shall  be   executed 1544 

1786.  When    may    appeal 1544 

1787.  Matters   upon   which   appeal   may   be   taken 1544 

1788.  Matters   upon    which    appeals    lie 1544 

1789.  Questions  for  the  jury  and  the  court 1545 

1790.  Wlio   may    appeal 1546 

1791.  Notice  of  appeal  and  specifications  shall  be  in  writing 1547 

1792.  Notice  of  intention  to  appeal — When  to  be  given 1547 

1793.  Form  of  notice  of  intention  to  appeal 1548 

1794.  Bond     1548 

1705.     Form    of    appeal   bond 1548 

1796.  Date  when  notice  of  appeal  must  be  given 1549 

1797.  Appeal  by  minors   1549 

1798.  Commissioners  shall  transmit  papers  to  court   1549 

1799.  Transcript    1550 

1800.  Entry    in   Probate    Court 1550 

1801.  Hearing  of  preliminary  questions  and  motions 1.550 

1802.  Power  of  court  to  dismiss  action 1551 

1803.  Hearing  on   questions    1553 

1804.  Granting    appeal 1,554 

1805.  Trial  by  jury — Drawing,  etc 15.55 

1806.  Entry — Preliminary  hearing,  etc 1555 

1807.  When    cases    shall   be    consolidated 1556 

1808.  Challenge    of   jurors 1556 

1S09.     Oath  of  jurors — Form    1557 

1810.  Right  to  view   premises,  etc 1557 

1811.  View,    etc 1558 

1812.  Trial     1.558 

1813.  Verdict  of  jury ;   what  it  shall  contain 1559 

1814.  Verdict — Form,    etc I.V>'.) 


CONTENTS  Iv 

SECTION.  PAGE. 

1815.  Journal  entry  confirming  verdict,  etc 15G0 

1816.  Record  of   proceedings   in  Probate  Court 15GI 

1817.  Taxing  costs 1")G1 

1818.  Enforcement    of    judgment 1 '>(j- 

1819.  Transcript   and    papers    certified,    etc \')(]^^ 

1820.  When  orders  for  payment  of  compensation  and  damages  shall 

be     issued     15G3 

1821.  Additional   compensation — IIow    15G3 

1822.  Order  as   to  payment   of   damages 1  ")G3 

1823.  Entry— Form     I.IG  4 

1824.  Procedure  when  proceedings  for  appropriation  of  land  abandon- 

ed  , 1564 

1825.  Abandonment    1565 

1826.  Fees   and   compensation   of   officers    1565 

1827.  Procedure   after   judgment   establisliing    improvement 1565 

1828.  Reversal  of   order   dismissing   proceedings 15GG 

1829.  Appeal — Limitation   15GG 

1830.  Review  of  judgment  of   Probate  Court 15G6 

1831.  Proceedings   after   trial 1567 

1832.  Entry— Form     1567 

CHAPTER  97. 
CONDEMNATION  OF  MATERIAILS  FOR  ROAD  BUILDING. 

1833.  Power  to  purchase  materials  and  appropriate  land;  application 

to  court   (§7214) 1568 

1834.  Condemnation  of  road  material 1568 

1835.  What  may   be   condemned 1569 

1836.  Resolution  to  appropriate 1569 

1837.  Application  to  probate  judge 1570 

1838.  Notice  to  land  owner;  how  served;  contents   ( §  7215) 1570 

1839.  Proceedings   in  probate  court 1570 

1840.  Notice  to  land  owner 1571 

1841.  Appointment  of   appraisers;    assessment   of   value   and  damage 

(§  7216)     1571 

1842.  Entry    appointing    appraisers 1571 

1843.  Report  of   award 1572 

1844.  Copies    of    award    to    commissioners    and    owners;    summoning 

jury     (  §  7217 ) 1572 

1845.  Entry  of  return  of  award 1573 

1S46.     Form  of  appeal  bond 1573 

1847.     Costs  and  expenses 1574 

184S.     Bond  when  jury  trial  requested   ( §  7218) 1574 

1849.  Date   and  conduct   of   trial    ( §    7219) 1574 

CHAPTER  98. 

APPEAL  IN  CONSTRUCTION  OF  DITCHES,  SINIiHOLES, 
LEVIES,  ETC. 

1850.  Ditch    construction    and    appeal 1575 

1851.  What   deemed  final   order    (§    6473) 1576 


Ivi  CONTENTS 

SECTION.  PAGE. 

1852.  Final  order    1576 

1853.  Who   may    appeal    (§6474) 1577 

1854.  Persons   that   may   appeal 157S 

1855.  Notice  of  appeal   1578 

1856.  Form  of  notice  of  appeal .' 1579 

1857.  Perfection   of   appeal    (§6475) 1579 

1858.  Bond 1579 

1851).     Statement  to  be  filed  in  court  of  Common  Pleas,  etc 1580 

1860.  Form  of  statement 1580 

1861.  Auditor  to  file  transcript  (  §  6476) 1580 

1862.  Filing  of   transcript 1581 

1863.  Issue — how  determined 1581 

1864.  Trial  governed  by  rule  in  civil  cases   (§6477) 1582 

1865.  Trial  by  the  court 1582 

1866.  Trial  by  jury 1582 

1807.  View  of  location  by  jury   (§  6478) 1583 

1868.  Verdict  by  jury    ( §  6479 ) 1583 

1869.  Matters   pertaining  to  verdict.' 1584 

1870.  Judgment;  motion  for  new  trial   ( §  6480) 1585 

1871.  New  trial,  etc , 1585 

1872.  Transcript  after   judgment    (  §  6481 ) 15S6 

1873.  Proceedings  in  error    (  §  6482 ) 1586 

1874.  Proceedings  shall  not  suspend  construction   ( §  6483 ) 1587 

1874a.  'Stay   of   proceedings 1587 

lS74b.  When  owner  may  recover  tax  paid,  etc.   (§6484) 1587 

1874c.  Claims  from  owner  not  having  notice 1587 

1874d.  Evidence  in  action  to  recover  taxes,  etc.   ( §  6485) 1588 

1874e.  Action   in   proceedings   to   enjoin 1589 

1874f.  Not  enjoined  for  error — when   (  §  6486) 1590 

1874g.  When  injunction  will  not  lie 1590 

CHAPTER  99. 

PRESCRIBING   MODE  OF  USE   OF    STREET   BY  TELEPHONE   AND 
TELEGRAPH  COMPANIES. 

1875.  Introductory    1591 

1876.  How  right  to  use  public  ground  acquired 1592 

1876a.  Compensation   only  for  damages 1592 

1877.  Petition.      Form,   etc 1592 

1878.  Hearing  and  decree 1593 

CHAPTER  100. 

PARTITION. 

1879.  Introductory    1595 

1880.  Certificate  from  Probate  Court  when  proceedings  for  partition 

commenced  and  deficiency  of  assets  found 1597 

1881.  Application.      Form 1597 

1882.  Hearing  and  order  of  Court 1598 


CONTENTS  Ivii 

SECTION,  PAGE. 

1883.  Form  of  certificate    1.599 

1884.  Court   shall   order   so   much   proceeds   to  be   paid   to   him,   pro- 

vided,   etc 1599 

1885.  Proceedings  in  Court  of  Common  I'leas. 1600 

1886.  Form  of  motion  and  entry  ordering  money  paid 1600 

CHAPTER  101. 

ADOPTION  AND  DESIGNATING  HEIR.     COMMITTING 
VAGRANT   CHILD. 

1887.  Introductory.     Definition,  etc 1601 

1888.  How  a  child  may  be  adopted 1603 

1889.  Who  may  adopt    1603 

1889a.  Court  shall   fix   time   for  hearing 1004 

1889b.  Duties  of  next  friend,  etc 1605 

1890.  Adoption  by  stepfather  or  stepmother 1G05 

1890a.  Consents  required    1G06 

1891.  Who  may  be  adopted   1G07 

1892.  Application  and  form    1607 

1893.  How  consent  of  wife  ascertained 1609 

1894.  Consents  of  parents,  child  or  next  friend,  etc 1609 

1895.  The  order  of  the  court 1610 

1896.  Hearing   1611 

1897.  Entry  of   adoption    1611 

1898.  Recording  and  efi"ect  of  the  order 1612 

1899.  Extra-territorial  effect   1612 

1900.  Rights   of   inheritance    1613 

1901.  Power  to  revoke  order  of  adoption 1614 

1901a.  Child  must  have  resided  with  petitioner  six  months 1615 

1901b.  Wlaen  child  develops  certain  conditions — Order  may  be  revoked.  1615 

1902.  Heir-at-law,  how   designated,   etc 1615 

1903.  Nature  of  proceedings   1616 

1904.  Form  of  designation   1616a* 

1905.  Entry  designating  person  as  heir 1616a 

1906.  Parent  of  vagrant   or  incorrigible   child   may  be   summoned   to 

appear  before  Probate  Court   1616a 

1907.  Proceedings   under   §  8031    G.   C 1616b 

1908.  Entry,  on   filing  of  affidavit 1617 

1909.  Entry  ordering  child  committed    1617 

CHAPTER  102. 
PROCEEDINGS  IN  AID  OF  EXECUTION. 

1910.  Nature   of    proceedings    1618 

1911.  Examination  of  debtor  after  return  of  execution 1620 

1912.  When  and  where  can  be  brought 1621 

1913.  Who   can   bring    1622 

1914.  Application    1622 

1915.  Motion     1622 

1916.  Hearing  for  order  of  examination 1623 


Iviii  CONTENTS     - 

SECTION.  PAGE. 

1917.  Order     iJli 

1918.  Notice    1624 

1919.  Examination    of    party    1<>2.> 

1920.  Examination   of   debtor  before   return   of   execution 1626 

1921.  Proceedings  under  §  11769  G.  C 1626 

1922.  Wlien  order  of  arrest  may  issue,  and  proceedings  thereon 1627 

1922a.  Examination  of  debtor  and  bond 1627 

1923.  Proceedings  under  §  11770  G.  C 1627 

1924.  Warrant  to  arrest   1628 

1025.     Proceedings  for  arrest 1629 

1926.  Examination  of  debtor  of  judgment  debtor,  etc 1629 

1926a.  When  the  order  may  issue,  notice 1630 

1927.  Proceedings  under  §  11772  G.  C 1630 

1928.  Notice  to  judgment  debtor    1631 

1929.  Existence  of  fraud  not  to  excuse  examination 1631 

1030.     Reference  by  judge 1631 

1931.  Proceedings   may  be  continued 1632 

1932.  How   attendance  of   parties   and   witnesses   compelled 1632 

1933.  Examination  before  referee  to  be  certified.     Oath   of  witness.  .  1632 

1934.  How    disobedience    of    order    punislied 1632 

1935.  Power  to  enforce  by  contempt  proceedings 1632 

1936.  Debtor  may  pay  execution  against  creditor 1633 

1937.  Judge  may  order  property  to  be  applied  on  execution 1633 

1938.  Order  to  apply  property  or  money  on  judgment 16.34 

1939.  Property   that   may   be   reached 1634 

1940.  Property    that    can    not    be    reached 1635 

1941.  Order  to  apply  property  or  money,  on  judgment 1636 

1942.  Judge    may    appoint    receiver,    and    prohibit    transfer,    etc.,    of 

property     1636 

1943.  Appointment    of    receiver    1637 

1!)44.     Injunction     1637 

1945.  Liability  of  sheriff  on  official  bond;  undertaking  by  receiver.  .  .1638 

1946.  Proceedings   when    indebtedness   denied,   or   another   claims   the 

property  1638 

1947.  Proceedings   under   §  11784   G.   C 1638 

1948.  Pleadings  to  be  reduced  to  writing,  and  filed  with  clerk 1639 

1949.  Dismissal  and  second  proceedings    1639 

1950.  Appeal    and    review    1640 

CHAPTER  103. 
HABEAS   CORPUS 

1951.  Definition,    etc 1641 

1952.  Jurisdiction  of  Probate  Court    1642 

1953.  Who   entitled   to   writ    1644 

1954.  Who  maj-  make  application KU.i 

1955.  Requisites  of  application  tlicrefor    1646 

1956.  Form  of  application    1646 

1957.  When    the   writ   will  not    be  allowed 1647 


CONTENTS. 


lix 


SECTION.  PAGE. 

ID.'jS.     Wlicn  the  writ  must  be  t^rante.l 1048 

l!»r)'J.     Entry  ordering  writ 1  tils 

11)60.     Who  to  issue  the  writ,  and  when lOi!) 

I'JGl.     How  prisoner  may   be  designated 104'J 

1962.  Requisites  of  the  writ  in  certain  case 1649 

1963.  Form  of  writ  when  prisoner  not  in  custody  of  an  oliicer 1649 

1964.  Form  of  writ  when  defendant  is  an  officer 1600 

1965.  How  and  wliere  writ  may  be  served 1650 

1966.  How  executed  and   returned 1650 

1967.  What  shall  be  stated  in  tlie  return  of  the  writ 1650 

1968.  Form    of    return,    ote 1651 

1969.  Adjournment   of   cause 1652 

1970.  When  prisoner  shall  be  dischur^'cd  on  habeas  corpus 1652 

1971.  Hearing,  etc 1653 

1972.  Form   of   entry,    discliarging   jierson 1654 

1973.  Form  of  entry,  I'cnianding  prisoner 1654 

1974.  Second    application 1655 

1975.  Appeal  and  error 1655 

CHAPTER  104. 
coxTE:\irT. 

1976.  Jurisdiction  of  Pro1)ate  (oiirt 1657 

1977.  Kinds  of  contempt,  etc 1658 

1978.  Proceedings  for  contempt  in  presence  of  jiulge,  etc 1659 

1979.  Contempts  not  committed  in  presence  of  judge 1660 

1980.  Contempt    1660 

1981.  Written   charges,   etc 1661 

1982.  Entry  appointing  attorney  to  bring  action. 1662 

1983.  Form  of  charge 1662 

1984.  Entry   ordering   summons 1663 

1985.  Form  of  summons  and  attachment 1663 

1986.  Right  of  accused  to  bail 1664 

1986a.  Bail  bond  to  be  given  to  satisfaction  of  clerk 1664 

1987.  Trial  by  the  Court 1664 

1988.  Punishment  if  found  guilty 1665 

1989.  Imprisonment  till  order  obeyed 1665 

1990.  Form  of  commitment  for  contempt 1665 

1991.  Proceedings  when  party  released  on  !)ail  fails  to  appear 1666 

1992.  Right  of  Court  who  committed  prisoner  to  release  him 1666 

1993.  Judgment  final 1667 

1994.  Appeal    and   error 1667 

1995.  When  the  provisions  of  this  chapter  apply 1667 

CHAPTER  105. 

APPEALS   FROM  ALLOW^ANCE   ON  SHEEP   CLAi:\IS  AND   ORDERS 
OF   STATE   FIRE   MARSHAL. 

1996.  Claims  for  animals  killed  by  dogs 1669 

1997.  Owner  may  appeal  to  probate  court 1689 


Ix  CONTENTS 

SECTION.  PAGE. 

1998.  Perfecting   appeal    1670 

1999.  Essentials  of   petition    1670 

2000.  Petition— Form     1670 

2001.  Journal  entry   1671 

2002.  Number  of  witnesses  allowed 1671 

2003.  Hearing     1671 

2004.  Entry    finding,    etc 1672 

2005.  Limit    of    amoiint    allowed 1672 

2006.  Orders  of  state  fire  marshal 1072 

2007.  When  and  how  owner  may  have  hearing 1673 

2008.  Notice   to   state  fire   marshal   for   hearing 1674 

2009.  Right   of   appeal   to   Probate   Court 1674 

2010.  Perfection    of   appeal 1675 

2011.  Journal  entry  approving  bond  and  fixing  time  of  hearing 1675 

2012.  Hearing  and  finding,  etc 1C75 

CHAPTER  106. 
INHERITANCE  TAX 

2013.  Origin     1679 

2014.  Ohio    State    Historical 1679 

2015.  Constitutionality 1680 

2016.  Not  a  tax  on  property,  but  right  to  receive IGSO 

2017.  Object   and    purpose 1681 

2018.  When  law  takes  effect 1681 

2019.  Subsequent  increase    16S2 

2020.  Definition  of  terms    ( §  5331 ) 1683 

2021.  Property  on  wliich  tax  levied    (§5332) 1683 

2022.  Conditions  of  transfer  which  create  liability  for  tax 1685 

2023.  Resident  of  state  1685 

2024.  Non-resident    1686 

2025.  Widow's   years   allowance    ( §  5332-1 ) 1686 

2026.  When  subject  to  tax  in  another  state   (§  5333) 1686 

2027.  Property  in  foreign  jurisdiction 1687 

2028.  Deduction  for  tax  paid  under  U.  S.  Law 1687 

2029.  General  deductions    1687 

2030.  Situs  of  property    1688 

2031.  Property  not  subject  to  tax   (§  5334) 1600 

2032.  Exemption:    public  charities,  etc 1690 

2033.  Institutions  within  the  state 1695 

2034.  Exemptions — Personal    1696 

2035.  Rates  of  tax  on  property   (§  5335) 1697 

2036.  Schedule  of  rates  and  exemptions 1698 

2037.  Taxes  when  due  and  payable    (§  5336) 1699 

2038.  Time  of  payment  of  ta.x 1700 

2039.  Personal  liability  of  executor 1700 

2040.  Personal  liability   of  beneficiaries 1701 

2041.  Tax  on  legacy  retained    (§  5337) 1701 

2042.  When   property   is  charged   with   payment   of  legacy,  etc 1701 


CONTENTS  Ixi 

SECTION.  PAGE. 

2043.  Tax,  to  whom  paid.     Discount,  etc.    (§5338) 1702 

2044.  Time   limit  for  payment  of   tax 1702 

2045.  Petition    to    remit    interest — Form 1703 

2046.  Notice  of  motion  on  application  to  remit  interest — Form 1704 

2047.  Order  remitting  interest  from  8  to  5  per  cent. — Form 1704 

2048.  When   legatee   entitled  to  refunder    (§5339) 1704 

2049.  Refunder    of    tax 1705 

2050.  Powers  and  duties  of  Probate  Court   (§  5340) 1705 

2051.  Jurisdiction    of    Probate    Court 1706 

2052.  Essentials   of   application 1707 

2053.  Filing  and  notice 1708 

2054.  Application    for    determination    of    tax — Form 1708 

2055.  Application,   etc.,   where    no    administration — Form 1712 

2056.  Application,   etc.,   non-resident — Form 1713 

2057.  Application,  etc.,  small  estate — Form 1714 

2058.  Appraisement  by  county  auditor   (§  5341) 1715 

2059.  Appraisal    by    auditor 1716 

20G0.     Entry — Ordering   auditor   to   appraise — Form 1717 

20G1.     Writ    to    auditor    to    appraise — Form 1717 

20G2.     Duties    of    auditor 1718 

2063.  Notice   of  hearing  before   auditor — Form 1719 

2064.  Fixing    value    of    real    estate 1720 

2065.  Appraisal  of   personal   property 1720 

2066.  Value  of  future  or  limited  estate  determined    (§5342) 1721 

2067.  Fixing  value   of  future   or   contingent   interest 1722 

2068.  Application  to  superintendent   of  insurance — Form 1722 

2069.  Inheritance    taxation    table 1723 

2070.  Computation,    etc 1724 

2071.  Taxation  of  estate  dependent  upon  contingencies    (§5343) 1724 

2072.  When   contingencies   exist — Higher   rate 1725 

2073.  Estates  held   in   abeyance   or   expectancy    (§  5344) 1725 

2074.  When  tax  has  not  been  paid,  etc 1725 

2075.  Report  of  auditor— Form 1726 

2076.  Findings    of    Probate    Court    (§5345) 1727 

2077.  Proceedings  of  court  on  report  of  auditor 1728 

2078.  Journal    entry — Determining    tax    after    auditor's    appraisal — 

Form     1729 

2079.  •  Contents  of  notice  and  how  served 1730 

2080.  Form   of   notice   fixing   tax 1731 

2081.  Form   order   exempting   from   tax 1731 

2082.  Who  may  file   exceptions    ( §  5346) 1731 

2083.  Filing  exceptions 1732 

2084.  Form    of   exceptions 1732 

2085.  Order   for  hearing   exceptions — Form 1733 

2086.  Notice   of   hearing   exceptions — Form . . . .  • 1733 

2087.  Entry   on   hearing — Form 1733 

2088.  When    certified    to    auditor    (§5347) 1733 

2089.  Certifying  finding  to   auditor 1734 

2000.  Motion    to    modify    findings,    etc 1734 

2001.  Appeal  from  final   order    (§  5348) 1735 

2092.     Appeal — How    perfected 1735 


Ixii  CONTENTS 

SECTIOX.  PAGE. 

2093.     \Vho   may    prosecute    appeal 1736 

20:;4.     Tax    receipt,    etc.     ( §  5348-1 ) 1736 

2095.  Transfer    of    securities     ( §  5348-2) 1736 

2096.  Notice  of  transfer  to  auditor  and  tax  commission — Form 1737 

2097.  Transfer    without    knowledge     ( S  534S--2a  i 1738 

2098.  Transfer  of  stocks  of  corporation,  etc 1738 

2099.  Application   to   transfer    stock,   etc. — Form 1739 

2100.  Delivery  of  custody  of  securities,  deposits,  etc 17.39 

2101.  Application  for  consent  to  transfer — Form 1740 

2102.  Application   for   release   when   no   administration — Form 1740 

2103.  Collection   of  tax   after   eighteen   months    (§5348-3) 1741 

2104.  Prosecuting    attorney    to    represent    county     (§  5348-4) 1742 

21C5.     County  auditor  appoints  deputies   (§  5348-5) 1742 

210G.     Tax    commission    may    designate    examiners    (§5.348-6) 1742 

2107.  Records  to  be  made  by  Probate  Judge    (§5348-7) 1742 

2108.  Monthly  reports  to  state  auditor    (§  .5348-8) 1743 

2109.  Reports  by  recorder    (§  534S-8a) 1743 

2110.  Accounts   kept   by    county   treasurer    (§5348-9) 1744 

2111.  Fees,    etc.     (§5348-10) 1744 

2111a.  Probate    Judge's    fees     (§  5348-lOa) 1744 

2112.  Division    of    tax    (§5348-11) 1744 

2113.  Distribution    of    tax     (§5348-12) 17-15 

2114.  Wliere     tax     deemed     to     originate     on     property     in     State 

(§  5348-13)     1745 

2115.  Where    tax    deemed    to    originate    on    property    not    in    State 

(§  5348-14)     • 1746 

CHAPTER  107. 
inSCELLANEOUS. 


2116.  Introductory    

2117.  Marriage  license 

2118.  Inquests    of    lunacy 

2119.  Removal    of    drifts 

2120.  Railroad    drains 

2121.  Proceedings  to  oust  municipal  officer 

2122.  Same    proceedings     

2123.  Same.     Trial 

2124.  Removal   of   county   auditor 

2125.  Examination    of    charges;    removal;    successor 

2126.  Amercement     

2127.  Attendance    of    witness 

2128.  Justices  of  the  peace 

212Sa.  Miscellaneous    

2129.  Change  of  name,  definition,  etc 

2130.  Proceeding    to    change    name    of    person 

2131.  Re-issuing  of  certificates  of   stock   lost   or   destroyed 

2132.  Parties    and    notice 

2133.  Finding  and  order  of  court 

2134.  Rights    and    liabilities    under    new    certific;ite 

2135.  Proceedings  may  be  had  by  administrators  and  executors. 


CONTENTS.  Ixiii 

CHAPTER  108. 
DOWER,  ANNUITY,  AND  TRESEKT  VALUE  TABLES. 

SECTION.  PAGE. 

2136.  Introrhictory    1773 

2137.  Mortality    tables 1774 

213S.     lalculation  for  consummated  dower,  and  life  annuity 1776 

2139.  Dower  and  life  annuity  table  based  upon  the  Carlisle  table...  1777 

2140.  Dower  and  life  annuity  table  based  upon  American  table 1779 

2141.  Calculation  of  contingent  dower 1781 

2142.  Contingent  dower  table 1783 

2143.  Expectation  of  life  table 1786 

2144.  Table  for  ascertaining  present  value  of  certain  annuity 1788 

2145.  Table  for  ascertaining  present  value  of  a  sum  certain  due  and 

payable  at  end  of  a  stated  number  of  years 1793 

CHAPTER  109. 

JUVENILE   COURT. 

2147.  Nature  of  court 1707 

2148.  Historical     1798 

2149.  Object  and  purpose 1799 

2150.  Judge  of  court 1800 

2151.  What  courts  have  jurisdiction    (  §  1639) 1801 

2152.  Designation   of   judge 1802 

2153.  Juvenile   Court  defined    (  §  1639-1 ) 1803 

2154.  Seal  of  court— what  court  ( §  1640) 1803 

2155.  Appearance   docket   and   journal    ( §  1641 ) 1803 

2156.  Jurisdiction    of    subject    matter    (§1642) 1804 

2157.  Jurisdiction,  comments  1804 

2158.  Continuing    jurisdiction 1805 

2159.  When   jurisdiction   terminates    ( §  1643) 1806 

2160.  Delinquent   child   defined    (§  1644) 1806 

2161.  Who    is    delinquent    child 1807 

2162.  Dependent    child    defined     (§1645) 1808 

2163.  Who   is  dependent   child 1808 

2164.  Proper   parental   care    defined    (§  1646) 1808 

2165.  What  is  not   proper  parental  care 1809 

2166.  Who  may   file   complaint    (§1647) 1809 

2167.  Procedure — Filing   complaint,   etc 1809 

2168.  Complaint — A  delinquent,  etc.,  child.     Form  complaint  for  child.  1813 

2169.  Citation,  warrants,  etc.    (§  1648) 1814 

2170.  Citation    or    warrant 1815 

2171.  Journal  entry,  entry  for  hearing,  etc 1815 

2172.  Citation   to   child   and   custodian 1816 

2173.  Form   notice   to   parents 1816 

2174.  Service  of  citation,  etc.,  personally 1816 

2175.  Service    of   notice   by   publication 1817 

2170.     Form   of   affidavit. for 1S18 

2177.     Journal    entry   order   for   publication 1818 


Ixiv  CONTENTS 

SECTION,  PAGE. 

2178.  Notice  for  publication  and  sending  by  mail,  when  parent,  etc., 

out    of    state,    etc 1818 

2179.  Form    warrant    to    arrest    minors 1819 

2180.  Form  complaint  delinquency 1819 

2181.  Warrants    to    arrest,    etc 1820 

2182.  Journal  entry  order  for   warrant   to   arrest 1820 

2183.  Form — Warrant  to  arrest  on  complaint 1821 

2184.  Provisions  to  avoid  incarceration    ( §  1648-1 ) 1821 

2185.  Special  juvenile  court   room    ( §  1649) 1821 

2186.  Hearing    ( §  1650) 1821 

2187.  Trial  of  juvenile 1822 

2188.  Trial   of    adult 1823 

2189.  Jury   trial;    costs    (§1651) 1823 

2190.  Right   to   jury   trial 1824 

2191.  Commitment    of    child    (§1652) 1824 

2192.  Commitment    of    minors     etc 1825 

2193.  Examination  of  pliysicians    ( §  1652-1 ) 1825 

2194.  Commitment  to  institution  or  suitable  person  (§  1653) 1825 

2195.  Commitment   of  dependent  or   neglected   children 1826 

2196.  Journal  entry — Placing  child,  etc 1827 

2197.  Journal  entry — Finding,  judgment  and  order  of  the  court 1827 

2198.  Age  limitations    ( §  1653-1 ) 1828 

2199.  Penalty  for  abuse  or  aiding  and  abetting  delinquency  (§1654).  1828 

2200.  Commitment   for  causing  delinquency 1828 

2201.  Journal  entry — On  arraignment,  plea   of  guilty 1829 

2202.  Journal  entry— Judgment 1S30 

2202a.  Entry— Verdict    of    jury 1830 

2202b.  Entry— Judgment— Trial  by  jury 1830 

2203.  Failure  or  neglect,  etc.   ( §  1655) 1831 

2204.  Form   complaint    charging    abandonment,    etc 1831 

2205.  Commitment  for  non-support 1832 

2206.  Journal  entry — Non-support,  etc 1832 

2207.  Form— Bond   to   support 1833 

2208.  Sentenced  to   jail   or  workhouse 1S34 

2209.  Journal   entry — Sentence   to    workliouse 1834 

2210.  Provisions  in  case  of  workhouse  sentence   (§  1656) 1835 

2211.  Commitment  on  continuance  to  county  jail,  etc.   (§  1657) 1835 

2212.  Citation,  etc.,  on  hearing   ( §  1658) 1835 

2213.  Journal  entry — Order  for  arrest — On  hearing 1836 

2214.  Form   warrant   to   arrest 1836 

2215.  Transfer  of  case  to  Juvenile  Court   (§  1659) 1836 

2216.  Child  arrested  on  warrant  from  Justice  of  Peace  or  Police  Court, 

etc 1836 

2217.  Writs   to  whom   issued    ( §  1660) 1837 

2218.  E.xpense— How   paid    (§1661) 1837 

2219.  Probation   officer— Appointment    (§1662) 1837 

2220.  Appointment — Probation  officer 1838 


COMPLETE  LAW  AND  PRACTICE 

IN  THE 

PEOBATE  COUETS  OF  OHIO. 


CHAPTER  1. 

ORGANIZATION  OF  COURT— JUDGE,  ETC. 

§    1     Introductory.  §    8     Can   not   act  when  interested. 

§    2     Organization,    etc.  §    9     Administration,  etc.,  when  the 
§    2a  Combined  with  court  of  com-  probate  judge  is  interested. 

mon  pleas.  §    Oa  Proceedings   in   common    pleaa 
§    2b  Legislature     to     create     com-  court. 

bined    court;    petition,    etc.  §  10     Procedure   where   judge   is   in- 
§    2c  How   petition  signed;   verifica-  terested. 

tion.  §  10a  When     common     pleas     judge 
§    2d  Conduct  of  election.     Form  of  may  perform  duties  of  pro- 

ballot,  bate    judge. 

§    2e  Establishment   of    probate   di-  §  11     Custody     of     files,     ex     officio 

vision.  clerk,  etc. 

§    2f   Petition    to   re-establish.  §  12     Deputy   clerk,  etc. 

§    2g  Re-establishment    by    increase  §  13     Probate    judges    may    admin- 

of    poi)ulation.  ister    oaths,    take    acknowl- 

§    3     Rank  of  court.  edgements    and   depositions. 

§    4     Where   court  held.  §  14     Bond  of   probate  judge,  etc. 

§    5     Terms    of    court.  §  15     Judge     shall     make     rules     of 
§    6     Who   may   be  judge.  practice    and    submit    them 

§    7     No  probate  judge  or  his  dep-  to   the   Supreme   Court. 

uty   to   practice   law,  etc.  §  16     Miscellaneous    matters,    etc. 

§    7a  Need"^  not  be  indicted.  §  17     Power   to    punish    contempt. 

§    7b  Exceptions.  §  17a  Authentication    of    record. 

§  1.     Introductory. 

As  the  laws  regulating  the  devolution  of  property  are  as  old 
as  jurisprudence  itself,  they  must  of  necessity  at  all  times  have 
been  enforced  by  some  court.  In  England  some  part  of  such 
jurisdiction  was  exercised  by  the  ecclesiastical  courts.  But  the 
powers  of  ecclesiastical  courts  prior  to  the  independence  of  our 
country  were  restricted  to  the  judicial  cognizance  of  cases  aris- 
ing out  of  the  probate  of  wills,  the  granting  of  administration, 
and  the  payment  of  legacies.^ 

Other  powers  now  exercised  by  the  Probate  Court,  were  then 
exercised  by  the  courts  of  chancery  and  in  some  matters  the  com- 
mon law  courts.^     Jurisdiction  in  probate  matters  was  therefore 

iWoerner  on  Admin.  317.  2  Woerner    discusses    this    matter 

fully,   §§   137-141. 


§  2  ORGANIZATION^    ETC.  3 

found  in  various  English,  tribunals  until  the  act  of  1854,  when 
the  same  was  placed  under  the  jurisdiction  of  one  court,  desig- 
nated Court  of  Probate. 

Courts  by  this  name,  in  this  country,  were  first  established  in 
1784  by  the  act  of  the  Massachusetts  General  Court,  and  exist 
in  some  form  in  every  State  of  the  Union. ^  These  courts  enter- 
taining probate  jurisdiction  are  variously  designated.  Thus  in 
New  York  they  are  known  as  Surrogate  Courts,  in  Pennsylva- 
nia as  Orphan  Courts,  in  Ohio  and  a  number  of  other  States 
they  are  designated  Probate  Courts.  In  some  of  the  States  pro- 
bate jurisdiction  is  entertained  by  courts  of  general  jurisdic- 
tion,* and  in  some  other  States  *  they  have  what  is  called  a 
County  Court,  which  entertains  probate  jurisdiction  with  other 
jurisdiction  conferred  by  statute.  But  whether  probate  juris- 
diction is  exercised  alone  by  a  court  created  for  that  purpose  or 
by  a  court  exercising  general  jurisdiction,  the  law  relating 
thereto  is  a  distinct  part  of  our  jurisprudence." 

§  2.    Organization,   etc. 

By  the  constitution  of  1802  ^  the  Court  of  Common  Pleas  in 
each  county  had  jurisdiction  of  all  probate  and  testamentary 
matters,  the  granting  of  administration,  the  appointment  of 
guardians  and  such  other  cases  as  were  prescribed  by  law.  Thus 
until  the  constitution  of  1851,  all  matters  relating  to  probate  law 
were  enforced  by  our  Common  Pleas  Court.  Under  that  consti- 
tution the  Common  Pleas  Court  was  presided  over  by  one  judge 
and  two  associate  justices.     The  presiding  judge  was  a  member 

»  Wale  vs.  Willard,  2  Mass.  120.  and  changed  their  forms  and  mode 

*  Ind.  and  others.  of      proceeding.     Hubbell,      J.,      in 

5  Neb.  and  others.  Bronson     vs.     Burnett,     2     Pinney 

« Probate    Courts    are    only    in    a  (Wis.)    189;    1  Chand.  136. 

qualified  sense  the  mere  creatures  of  Our  probate  law  relating  to  wills, 

the  Statute.     Ther  are  as  truly,  as  appointment  of  administrators,  etc., 

any  other  judicial  tribunals,  the  off-  was   taken   from   the   Massachusetts 

spring  of  the  common  law.    They  ex-  la%r,   while  that  relating   to   inven- 

isted   in   substance   in   England   be-  tory    and    presentation     of    claims 

fore  the  usurpation  of  the  ecclesias-  was     taken     from    the    New    York 

tics   snatched   from   the   crown   this  Statute, 

rightful    portion    of    its    authority,  ^  §  5. 


3  COMBINED   WITH    COMMON   PLEAS  §  2a 

of  the  bar,  and  versed  in  legal  knowledge.  The  associate  mem- 
bers were  laymen ;  matters  relating  to  probate  jurisdiction  came 
more  directly  under  the  personal  supervision  of  these  associate 
justices,  and  the  clerk  of  the  court  by  virtue  of  his  office.  When 
our  judiciary  system  was  reorganized  by  the  constitution  of 
1851,  matters  relating  to  probate  jurisdiction  were  conferred 
upon  a  new  court,  which  was  called  a  Probate  Court.  The  con- 
stitutional provision  relating  to  its  organization  is  asi  follows: 

**  There  shall  be  established  in  each  county,  a  Probate  Court, 
which  shall  be  a  court  of  record,  open  at  all  times,  and  holden  by 
one  judge,  elected  by  the  voters  of  the  county,  who  shall  hold 
his  office  for  the  term  of  three  years,  and  shall  receive  such  com- 
pensation, payable  out  of  the  county  treasury,  or  by  fees,  or 
both  as  shall  be  provided  by  law."     [Const.  Art-.  IV.,  §  7.] 

§  2a.  Combined  with  common  pleas.  The  constitutional 
convention  of  1912  presented  an  amendment  permitting  a  com- 
bination of  the  Courts  of  Common  Pleas  in  all  counties  of  60,000 
population.  Under  this  provision  the  following  counties,  Henry, 
Adams  and  Wyandotte,  the  courts  have  been  combined. 

The  constitutional  provision  is  as  follows:  There  shall  be 
established  in  each  county,  a  Probate  Court,  which  shall  be  a 
court  of  record,  open  at  all  times,  and  holden  by  one  judge, 
elected  by  the  electors  of  the  county,  who  shall  hold  his  office 
for  the  term  of  four  years,  and  shall  receive  such  compensation, 
payable  out  of  the  county  treasury,  as  .shall  be  provided  by  law. 
Whenever  ten  per  centum  of  the  number  of  the  electors  voting 
for  governor  at  the  next  preceding  election  in  any  county  having 
less  than  sixty  thousand  population  as  determined  by  the  next 
preceding  federal  census,  shall  petition  the  judge  of  the  Court 
of  Common  Pleas  of  any  such  county  not  less  than  ninety  days 
before  any  general  election  for  county  officers,  the  judge  of  the 
Court  of  Common  Pleas  shall  submit  to  the  electors  of  such 
county  the  question  of  combining  the  Probate  Court  with  the 
Court  of  Common  Pleas,  and  such  courts  shall  be  combined  and 
.shall  be  known  as  the  Court  of  Common  Pleas  in  case  a  majority 
of  the  electors  voting  upon  such  question  vote  in  favor  of  such 
combination.  Notice  of  such  election  shall  be  given  in  the  same 
manner  as  for  the  election  of  county  officers.  Elections  may 
be  had  in  the  same  manner  for  the  separation  of  such  courts, 
when  once  combined.     [Adopted  Sept.  3,  1912,  §  7,  Art.  4.] 

§2b.    Legislature  to  create  combined  court — ^petition,  etc. 

§  1604-1.  Whenever  ten  per  centum  of  the  number  of  electors 
voting  for  governor  at  the  next  preceding  election  in  any  county 


§  2c  HOW   PETITION    SHALL   BE   SIGNED  3a 

having  less  than  sixty  thousand  population,  as  determined  by 
the  next  preceding  federal  census,  shall  petition  a  judge  of  the 
Court  of  Common  Pleas  of  any  such  county  not  less  than  ninety 
days  before  any  general  election  for  county  officers,  for  the 
sujjmission  to  the  electors  of  such  county  the  question  of  com- 
bining the  Probate  Court  with  the  Court  of  Common  Pleas  of 
such  county,  such  judge  shall  place  upon  the  journal  of  said 
court  an  order  requii'ing  the  sheriff  to  make  proclamation  that 
at  the  next  ensuing  general  election  there  shall  be  submitted 
to  the  electors  of  such  county  the  question  of  combining  the 
Probate  Court  with  the  Court  of  Common  Pleas  of  such  county. 
The  clerk  of  courts  shall,  thereupon,  make  and  deliver  a  certified 
copy  of  such  order  to  the  sheriff,  and  the  sheriff  shall  include 
notice  of  the  submission  of  such  question  in  his  proclamation, 
of  election  for  the  next  ensuing  general  election.     1 103  v.  960.] 

§  2c.  How  petition  shall  be  signed ;  verification.  §  1604-2. 
Each  elector  joining  in  a  petition  for  the  submission  of  said 
question  shall  sign  the  same  in  his  own  handwriting  (unless  he 
can  not  write  and  his  signature  is  made  by  mark)  and  shall 
add  thereto  the  township,  precinct  or  ward  of  which  he  is 
resident.  Such  petition  need  not  consist  of  but  one  paper,  but 
may  consist  of  as  many  parts  as  may  be  found  convenient.  One 
of  the  signers  to  each  separate  paper  shall  swear  before  some 
officer  qualified  to  administer  the  oath  that  the  petition  is  bona 
fide  to  the  best  of  his  knowledge  and  belief,  and  such  oath  shall 
be  a  part  of  or  attached  to  such  paper.  The  judge  upon  receipt 
of  such  petition  shall  deposit  the  same  with  the  clerk  of  courts. 

Objections.  No  signature  shall  be  taken  from  or  added  to 
such  petition  after  the  same  has  been  filed  with  the  judge.  Wlien 
so  deposited,  such  petition  shall  be  preserved  and  be  open  under 
proper  regulations  to  public  inspection,  and  if  it  is  in  conformity 
with  law,  it  shall  be  deemed  to  be  valid,  unless  objection  thereto 
is  duly  made  in  writing  by  an  elector  of  the  county  within  five 
days  after  the  filing  thereof.  Such  objections,  or  any  other 
questions  ari.sing  in  the  course  of  the  submission  of  the  ques- 
tion of  combining  said  courts,  shall  be  considered  and  detenuined 
by  the  judge  of  the  Court  of  Common  Pleas,  and  his  decision 
shall  be  final.     [103  v.  960.] 

§2d.  Conduct  of  election;  form  of  ballot.  §1604-3.  The 
election  upon  the  question  of  combining  said  courts  shall  be 
conducted  in  all  respects  as  provided  by  law  for  the  election  of 
county  officers,  so  far  as  said  law  may  be  applieable. 

The  board  of  deputy  state  supervisors  of  elections  shall  pro- 
vide separate  ballots,  ballot  boxes,  tally  sheets,  blanks,  stationery, 
and  all  such  other  supplies  as  may  be  necessary  in  the  conduct 
of  such  election. 


3b  ESTABLISHMENT    OP   PROBATE    DIVISION  §  2e 

Such  ballots  shall  be  printed  with  the  aflfirmative  and  negative 
statement  thereon,  to-wit : 


The  Probate  Court  and  the  Court  of  Common 
Pleas  shall  be  combined. 


The  Probate  Court  and  the   Court  of  Common 
Pleas  shall  net  be  combined. 


Returns  and  canvass.  Returns  of  said  election  shall  be 
made  and  said  returns  shall  be  canvassed  at  the  same  time  and 
in  the  same  manner  as  an  election  for  county  officers,  and  the 
board  of  said  deputy  state  supervisors  of  elections  shall  certify 
the  result  of  said  election  to  the  secretary  of  state,  to  the  probate 
judge  of  said  county  and  to  the  judge  of  the  Court  of  Common 
Pleas,  and  the  same  shall  be  spread  upon  the  journal  of  the 
Probate  Court  and  of  the  Court  of  Common  Pleas. 

If  a  majority  of  the  votes  cast  at  such  election  shall  be  in 
favor  of  combining  said  courts,  such  courts  shall  stand  com- 
bined and  consolidated  at  the  expiration  of  the  term  for  which 
the  probate  judge  has  been  elected  in  the  county  wherein  such 
election  has  been  held.     [103  v.  960.] 

§  2e.  Establishment  of  probate  division.  §  1604-4.  When 
the  Probate  Court  and  the  Court  of  Common  Pleas  have  been 
combined,  there  .shall  be  established  in  the  Court  of  Common 
Pleas  a  probate  division,  and  all  matters  whereof  the  Probate 
Court  has  jurisdiction  by  law  shall  be  filed  in  and  separately 
docketed  in  said  probate  division,  and  the  resident  judge  of  the 
Court  of  Common  Pleas,  shall  appoint  the  necessary  deputies, 
clerks  and  assistants  to  have  charge  and  perform  the  \rork 
incident  to  the  probate  division.  The  salaries  of  such  deputies, 
clerks  and  assistants  to  be  regulated  by  section  2980-1  of  the 
General  Code. 

Error  and  appeals.  Error  may  be  prosecuted  or  appeals 
taken  from  said  probate  division  to  the  Court  of  Appeals  in  all 
cases  where  the  same  lie  to  the  Court  of  Common  Pleas  in  coun- 
ties where  such  courts  have  not  been  combined.     [103  v.  960.] 

§  2f .  Petition  for  re-establishment.  §  1604-5.  At  any  time 
after  three  years  from  the  date  of  an  election  held  under  the 
provisions  of  this  act,  but  not  before,  another  election  may  be 
petitioned  for  and  shall  be  ordered  by  the  judge  of  the  Court 
of  Common  Pleas  as  provided  for  in  this  act,  either  to  perfect 


§  2g  RANK   OF    COURT  3c 

a  combination  of  said  court,  or  to  dissolve  said  combination  and 
to  re-establish  the  Probate  Court.     [103  v.  960.] 

§  2g.  Re-establishment  on  increase  of  population.  §  1604-6. 
"Whenever  in  any  county  where  such  courts  have  been  combined 
a  decennial  federal  census  shows  that  such  county  has  a  popula- 
tion of  60,000  or  more,  and  such  fact  is  certified  by  the  secretary 
of  state  to  said  Court  of  Common  Pleas  and  entered  upon  its 
journal,  the  Probate  Court  shall  be  re-established  in  such  county, 
and  a  probate  judge  shall  be  elected  for  the  regular  term  at  the 
next  ensuing  election  in  an  even  numbered  year,  and  the  records 
of  the  probate  division  of  the  Court  of  Common  Pleas  shall  be 
delivered  to  such  re-established  Probate  Court  upon  the  entry 
into  office  of  an  elected  probate  judge.     [103  v.  960.] 


§  3.    Rank  of  court.'^^ 

From  the  fact  that  in  many  matters  within  the  jurisdiction 
of  the  Probate  Court  proceedings  in  error  or  appeal  may  be 
prosecuted  to  the  Court  of  Common  Pleas,  and  also  perhaps 
from  the  fact  that  under  the  former  constitution  probate  matters 
were  largely  passed  upon  by  the  associate  justices  of  the  Court 
of  Common  Pleas,  arose  the  idea  that  the  Probate  Court  was  an 
inferior  court,  and  as  such  its  judgments  and  decisions  might 
be  reviewed  or  attacked  in  a  collateral  proceeding.  Soon  after 
the  organization  of  the  Probate  Court,  in  speaking  of  its  rank 
and  power,  the  following  language  is  used:  *'The  tribunal  in 
which  these  proceedings  were  had  was  a  court  of  record,  of  gen- 
eral common  law  and  chancery  jurisdiction ;  and  while  it  is  true 
that  in  the  exercise  of  this  particular  authority  it  may  be  re- 
garded as  a  tribunal  of  special  and  limited  powers  prescribed  by 
statute,  it  is  still  to  be  remembered  that  it  was  the  tribunal  cre- 
ated by  the  constitution,  ^vith  exclusive  jurisdiction  over  probate 
and  testamentary  matters,  and  had  no  one  single  characteristic 
of  those  inferior  courts  and  commissions,  to  which  the  rule  in- 
sisted upon  has  been  applied  by  the  English  and  American 
courts.  All  its  proceedings  are  recorded  and  constitute  records 
in  the  highest  sense  of  the  term,  importing  absolute  verity,  not 

7a  Cited,  Piider  vs.  Agler,  242  Fed. 
95;  62  Bull.  410. 


3d  ORGANIZATION,    ETC.  §  3 

to  be  impugned  by  averment  or  proof  to  tbe  contrary,  and  con- 
clusively binding  the  parties,  and  all  who  stand  in  privity  with 
them.  The  distinction  is  not  between  courts  of  general  and 
those  of  limited  jurisdiction,  but  between  courts  of  record,  that 
are  so  constituted  as  to  be  competent  to  decide  on  their  own  ju- 
risdiction, and  to  exercise  it  to  a  final  judgment  without  setting 
forth  the  facts  and  evidence  on  which  it  is  rendered,  and  whose 
records,  when  made,  import  absolute  verity ;  and  those  of  an  in- 
ferior grade,  whose  decisions  are  not  of  tliomselves  evidence,  and 
whose  judgments  can  be  looked  tlirough  for  the  facts  and  evi- 
dence which  are  necessary  to  sustain  them.  Orphans'  Courts 
and  Courts  of  Probate,  when  constituted  courts  of  record,  have 
uniformly  been  held  of  the  former  description."  * 

Logically  following  from  the  doctrine  above  was  a  holding  of 
the  court  in  a  future  decisioUj  that  the  Probate  Court  was  a 
court  of  record  in  its  fullest  sense,  and  that  its  records  imported 
absolute  verity,  and  that  as  such  a  court  it  was  competent  to  de- 
cide on  its  own  jurisdiction  and  to  exercise  it  to  final  judgment 
without  setting  forth  the  facts  and  evidence  upon  which  it  was 
rendered.® 

While  it  may  be  a  court  of  limited  jurisdiction,  it  is  not  an 
inferior  court.  Within  tlie  jurisdiction  conferred  upon  it,  it  is 
as  much  a  branch  of  the  judiciary  of  our  State  as  any  court  or 
judicial  tribunal,^"  its  powers  to  punish  for  contempt  are  the 
same  as  the  Court  of  Common  Pleas,^^  and  it  may  compel  obe- 
dience to  its  orders  and  decrees.  It  therefore  follows  that  its 
judgiuents  and  decrees  are  as  conclusive  upon  the  parties  to  the 
record  until  reversed  or  annulled  on  appeal,  writ  of  error  or 
direct  proceedings  in  chancery  for  fraud,  as  are  the  decrees  of  a 
chancery  court  or  the  judgment  of  a  court  of  common  law.  I^ot 
only  in  respect  to  the  binding  force  of  its  decrees  and  judgments 


s  Sheldon  vs.  Newton,  3  0.  S.  494.  lo  City  of  Toledo  vs.  Preston,  56  0. 

9  Schroyer  vs.  Richmond,  16  0.  S.  S.  361. 

455;  Wheeler  vs.  State,  34  0.  S.  394;  n  §  10500  G.  C,   §  1916. 

Lindemann    vs.    Ingham,    36    O.    S.  Orders  made  in  proceedings  to  sell 

1-15;    Wehrle   vs.   Wehrle,   39   0.   S.  real    estate   can    not   be   attacked   in 

366;  Arrowsmith  vs.  Harmoning,  42  exceptions  to  the  account  of  the  ad- 

O.  S.  254;  Slagle  vs.  Entrekin,  44  0.  ministrator.     In  re  Hess,  33   C.  C. 

S.  637;  10  M.  E.  Rep.  675;  Railroad  449. 
Co.  vs.  Village   of   Belle   Center,  48 
O.  S.  291.     See  §  90. 


§  4  WHERE    COURT    HELD  4 

is  it  equal  to  the  Court  of  Common  Pleas,  but  from  the  vast  in- 
terests which  may  be  affected  or  controlled  bv  its  decisions,  it 
stands  equally  important  in  the  maintenance  of  the  rights  of  our 
people.^' 

§  4.     Where  court  held. 

T]ie  place  at  which  the  court  shall  be  held  is  regulated  by  the 
following  section  of  the  General  Code. 

"A  probate  court  is  established  in  each  county  which  shall 
be  held  at  the  county  seat.  Such  court  shall  be  held  in  an 
office  furnished  by  the  county  commissioners,  in  which  the 
books,  records  and  papers  pertainiiig  to  the  court  shall  be  de- 
posited and  safely  kept  by  the  judge  thereof.  The  commis- 
sioners shall  provide  suitable  cases  for  the  safe  keeping  and 
preservation  of  the  books  and  papers  of  the  court,  and  fur- 
nish such  blank  books,  blanks  and  stationery  as  the  probate 
judge  requires  in  the  discharge  of  official  duties.  [R.  S. 
§523.]  '^ 

In  all  matters  where  the  judge  acts  in  his  judicial  capacity, 
such  action  must  be  done  at  his  office  in  the  county  seat  as  pre- 
scribed by  law,  otherwise  they  are  null  and  void.  But  when 
the  proceedings  are  not  what  might  be  termed  a  judicial  pro- 
ceeding, that  is,  proceedings  where  the  court  renders  a  judgment 
which  is  a  final  determination  of  the  rights  of  the  parties,  the 
court  might  perform  an  act  which  would  be  valid,  although  not 
done  at  the  place  designated  by  law.  Thus  it  has  been  held 
that  under  our  law  Avhich  provides  for  the  method  of  designating 
one  person  as  an  heir  of  another,  that  the  judge  might  take  the 
declaration  of  the  person  designating  the  heir,  although  such 
matter  was  not  held  at  the  office  of  the  probate  judge.^* 

In  matters  which  are  not  strictly  judicial  in  their  character 
the  judge  may  legally  act  anywhere  witliin  the  county.  Fol- 
lowing this  decision,  the  probate  judge  might  take  the  election 
of  the  widow  to  accept  or  reject  under  the  will  at  some  other 
place  than  at  his  office.^" 

i2Woerner  on  Admin.  326.  son,   3   N.   P.    (X.S.)    549;    16   Dec. 

13  l;iS3  G.  C.  4SG. 

14  Bird  vs.  Young,  56  0.  S.  210.  And   where   a    court   appointed    a 

15  See  §  1551.  as  to  filing  deed  of  trustee  who,  under  the  law.  had  no 
assignment  etc.  power    to    act,    this    question    could 

The  proceedings  can  not  be  ques-  not  be  raised  in  a  collateral  action, 

tioned  in  a  collateral  action.     Thus  I'nion  S.  B.  &  T.  Co.  Excr.  vs.  Tele- 

whcro  an  administrator  filed  his  pe-  graph   Co..   79  O.   S.   S9.     Reversing 

tition    to    sell    real    estate,    his    ap-  7  N.  P.   (X.S.)  609;  30  O.  C.  C.  3S0; 

pointment  could  not  be  questioned  in  19  Dec.  537 

that  action:  and  that  facts  not  He  is  not  obliged  to  keep  a  book 
jurisdictional  do  not  need  to  appear  of  daily  entries,  etc.  Commission- 
on  tlie  record.     Ferguson  vs    Fergu-  ers  vs.  Willard,  4  X.  P.  53 ;  4  Dec. 

419. 


5  OGGANIZATION,    ETC.  §5 

§  5.     Terms   of   court. 

It  will  be  observed  by  the  section  of  the  constitution,  quoted 
in  previous  section  two,  that  the  Probate  Court  shall  be  "  open 
at  all  times."  Considerable  difficulty  has  been  encountered 
upon  the  question  whether  the  Probate  Court  has  any  "  terms," 
and  if  so,  when  do  they  begin  and  when  do  they  end  ?  This 
matter  only  becomes  important  in  proceedings  in  error  or  where 
the  Court  might  wish  to  correct  its  own  records,  etc.  Section 
11631  of  the  General  Code  gives  certain  reasons  which  will 
allow  the  Court  of  Common  Pleas  or  the  Circuit  Court  to  vacate 
or  modify  its  own  judgment  or  order  after  the  term  at  which  the 
same  was  made  ;  and  section  11648  G.  C.  provides  that  the  provi- 
sions of  section  11631  shall  apply  to  the  Probate  Court  so  far  as 
the  same  may  be  applicable  to  its  judgments  or  final  orders  ;  and 
in  estimating  time,  the  Probate  Court  shall  for  this  purpose  hold 
in  each  year  three  "  terms  "  for  four  months  each,  the  first  com- 
mencing on  the  first  of  January  of  each  year.  It  has  been  held 
that  the  power  to  vacate  or  modify  its  own  judgments  did  not 
exist  in  the  Probate  Court  in  reference  to  proceedings  for  the 
settlement  of  the  estate  of  deceased  persons.^*' 

Where  an  adversary  proceeding  is  adjudicated  by  the  court, 
and  the  finding  and  decree  is  once  entered  in  one  of  the  terms 
of  the  court,  such  decree  cannot  be  set  aside  and  changed  at  suc- 
ceeding terms  at  the  mere  motion  of  one  of  the  parties,  but  only 
by  regular  proceedings  under  section  11578  G.  C.^^  This  deci- 
sion applies  the  section  of  the  General  Code  ^^  fixing  the  terms 
of  court  to  other  than  the  proceedings  brought  under  the  chapter 
of  which  that  section  is  a  part;  and  it  may  therefore  be  said  that 
in  all  matters  relating  to  practice  in  adversary  proceedings  in 
the  Probate  Court  that  such  court  has  three  terms  in  each  year, 
and  from  the  fact  of  the  court  being  in  session  all  the  time,  the 
first  term  begins  at  the  beginning  of  the  first  day  of  January 
and  ends  at  the  ending  of  the  last  day  in  April ;  and  the  second 

16  Kinsella   vs.  DeCamp,   15  C.  C.  corpus  proceedings  to  take  a  child 

494;  8  C.  L).  352.  from  tlie  children's  home,  it  having 

1''  Bid.  &  Loan  Co.  vs.  Speagle,  12  been  regularly  conmiitted,  a  motion 

C.  C.  761;    1  C.  D.  512.  was  made  for  a  rehearing.  On  the  re- 

is  §  11(543   G.  C.  hearing,  the  court  vacated  its  former 

The   Probate  court  has   no  terms  order;  this  tlie  Common  Pleas  Court 

except     for     purposes     specified     in  held    was    not   within    the    power   of 

§  11643,  G.  C.,  and  except  where  so  the    Probate    Court.      In    re    Jane 

specified  can   not  on   motion  vacate  Blake,  14  Dec.  89, 

or    modify    its    orders.      in    hahias  The  only  way  the  court  could  va- 


§  6  WHO    MAY   BE   JUDGE  6 

term  begins  at  the  beginning  of  the  first  day  of  May  and  ends 
at  the  ending  of  the  last  day  of  August ;  and  the  third  term  be- 
gins at  the  beginning  of  the  first  of  September  and  ends  at  the 
ending  of  the  last  day  of  December  of  each  year.  This  appli- 
cation of  the  use  of  "  term  "  of  court  has  been  held  to  apply  to 
an  application  for  setting  aside  an  order  of  sale  made  in  the 
Probate  Court/^ 

In  a  case  in  the  Supreme  Court  it  was  said  "  that  the  provi- 
sions of  both  these  subdivisions  "  to- wit  (11631  G.  C,  etc.)  apply 
only  to  judgment  and  orders  in  adversary  actions  or  proceedings 
inter  partes  and  not  the  settlement  of  accounts  of  an  executor  in 
the  Probate  Court. ^^  In  a  subsequent  case  in  the  opinion,  it  is 
said,  that  the  reason  given  for  the  above  conclusion  is  that  said 
section  relates  not  to  ex  parte  proceedings,  but  to  adversary  ac 
tions  and  proceedings  wherein  there  is  a  plaintiff  and  a  defend- 
ant^^ It  seems  therefore  that  as  that  part  of  the  Probate 
Court's  proceedings  where  the  nature  of  the  action  is  not  ad- 
versary that  the  court  has  no  "  terms."  ^^ 


6.     Who  may  be  judge. 


The  Probate  Court  is  presided  over  by  one  judge,  who  is 
elected  by  the  voters  of  the  county,  and  holds  his  office  for  the 
term  of  four  years.  There  are  no  particular  qualifications  pre- 
scribed by  statute  as  to  the  person  who  may  be  elected  to  this 
important  office.  It  therefore  follows  that  any  person  who  is 
eligible  to  an  elective  office  may  become  judge  of  the  Probate 
Court.  The  question  of  determining  whether  or  not  the  person 
selected  is  competent  or  not  is  left  to  the  decision  of  the  voters 
of  the  county.  From  the  fact  that  many  of  the  duties  pertain- 
ing to  the  office  of  the  Probate  Judge  are  largely  clerical,  and 

cate    its    former    order    after   term,  21  Rtavner's  Case,  33  0.  S.  4S1. 

f.-iSGo  R.  S.   (§11643  G.  C).  22  See'    §1901,    power    to    revoke 

Sec.  11643  G.  C,  does  not  confer  adoption, 

upon    the    Probate    Court   power   to  For     criminal     business     Probate 

hold    three    regular    terms    each    in  Courts    have    monthly    terms    com- 

each  year  for  all  purposes,  but  only  moncing    on    first    ^londay    of    each 

for   purposes   mentioned    in   chapter  month,      unless     commissioners     fix 

6.  of  title  4,  division  4.  G.  C.    Mans-  lonsrer  terms,  §  134.')7  G.  C. 

field  vs.  Cole,  16  N.  P.   (N.S.)   209;  Judjre   Bigger,   of   Franklin   Com- 

25   Dec.  231.  mon  Pleas,  in  a  hahrat  corpii.i  pro- 

10  Potter  vs.  Jennman,  4  N.  P.  78;  ceeding.    where    a    minor    had    been 

4  Dec.   444.  committed  to  a  children's  home,  held 

20  Johnson  vs.  Johnson,  26  O.   S.  that   the    Probate    Court   could    not 

363.  modify  its  judgn>ent,  except  as  pro- 


7  ORGANIZATION,    ETC.  §  6 

irom  the  further  fact  that  under  the  organization  of  the  former 
court  having  jurisdiction  of  probate  matters,  and  possibly  from 
the  fact  that  the  business  of  the  Probate  Court  in  many  coun- 
ties did  not  encourage  men  of  legal  knowledge  to  aspire  to  the 
position  of  Probate  Judge,  this  office  has  been  filled  in  many 
counties  in  this  State  by  persons  of  no  legal  acquirement  what- 
ever. As  the  jurisdiction  of  this  court  has  in  recent  years  been 
/greatly  enlarged,  and  tlie  business  of  the  counties  increased, 
thereby  increasing  emoluments  pertaining  to  the  office,  men  of 
judicial  and  legal  ability  have  been  elected  to  fill  this  position 
in  many  of  the  leading  counties.  Considering  the  vast  interests 
to  be  adjudicated  upon  by  this  court,  -and  tlie  very  great  con- 
fidence and  trust  placed  in  the  person  occupying  the  position  of 
Probate  Judge,  by  persons  interested  in  the  administration  of 
estates  and  like  affairs  of  a  trust  character,  the  position  ought  to 
be  occupied  not  only  by  a  man  of  good  legal  training,  but  of  a 
very  high  moral  character.^^ 

While  there  are  no  qualifications  prescribed  by  statute,  there 
are  some  disqualifications  provided,  thus : 

"No  person  shall  hold  at  the  same  time  by  appointment  or 
election  more  than  one  of  the  following  offices :  sheriff,  county 
auditor,  county  treasurer,  clerk  of  the  court  of  common  pleas, 
county  recorder,  prosecuting  attorney,  probate  judge,  and 
justice  of  the  peace."     [R.  S.  §  18.]-* 

vided    under    §§11631-11643,    G.    C,  in  the  country,  and  its  duties  should 

in    such    proceedings.      49    Bull    25.  be  strictly  and  faithfully  performed. 

Since    tliere    is    no    statutory   au-  Titles  must  necessarily  be  dependent 

thority  for  keeping  a  court  calender  in  part  on  proceedings  of  courts  of 

in  the  Probate   Courts   a  memoran-  probate;   for  which  reason  it  is  the 

dum   on  the   court   calender   is   not  duty  and  business  of  this  court  in 

evidence    to    establish    the    right   to  all  cases  to  require  a  strict  and  legal 

enter  a  nunc  pro  tunc  entry.     Stark  proceeding  in  that  court.     We  can 

vs.  Stark,  17  C.  C.    (X.S.)    398;   34  not  overlook  errors  that  affect  the 

C.  C.  135;   aff.,  88  0.  S.  586.  rights  and  property  of  persons,  but 

The  court  having  no  terms,  it  is  must  reverse  them."     Miller,  J.,  in 

doubtful    as    to    application    of    the  Humes  vs.  Cox,  1  Pinney  (Wis.)  551 

rule    as    to    Common    Picas    Courts  (1845).     "Judges  of  probate  are  se- 

having  control  over  the  docket  dur-  lected   not    only    with    reference    to 

ing  the  term  applies.     Mansfield  vs.  their    legal    qualifications,    but    to 

Cole,  16  N.  P.    (X.S.)   209;   25  Dec.  their  sound  discretion  also."     Rice, 

231.  J.,  in  Lunt  vs.  Auburs,  39  Me.  392, 

23  "The  office  of  judge  of  probate  397. 

is  one  of  the  most  important  offices  24  §  H  G.  C. 


§  7  JUDGE    CAN    NOT   ACT,    ETC.  8 

§  7.  No  probate  judge  or  his  deputy  to  practice  law,  etc. 
"Whoever,  being  the  judge  of  a  probate  court  or  his  deputy 
clerk  or  engaged  in  the  business  of  such  court  as  clerk  thereof, 
practices  law  or  is  associated  with  another  as  partner  in  the 
practice  of  law,  in  a  court  or  tribunal  of  this  state,  or  prepares 
a  petition  or  answer  or  makes  out  an  account  required  for  the 
settlement  of  an  estate  committed  to  the  care  or  management 
of  an  executor,  administrator,  guardian  or  other  person,  or 
appears  as  counsel  or  attorney  before  a  justice  of  the  peace, 
court  or  judicial  tribunal,  shall  be  fined  not  more  than  fifty 
dollars  and  removed  from  office."     [R.  S.  §  534.]-^ 

§  7a.  Need  not  be  indicted.  The  prosecuting  attorney  shall 
file  his  information  against  such  judge  or  deputy  clerk  in  the 
court  of  common  pleas,  and  proceed  as  upon  indictment.  [R.  S. 
§534.P=* 


§  7b.  Exceptions.  Section  twelve  thousand  eight  hundred 
and  fifty-four  shall  not  prevent  a  probate  judge  or  deputy 
clerk  from  finishing  business  commenced  by  him  prior  to  his 
election  or  appointment  provided  it  is  not  connected  with  his 
official  duty.     [R.  S.  §534.]-^t 


§  8.     Cannot  act  when  interested. 

It  is  an  elementary  principle  as  old  as  the  law  itself  that  no 
man  can  faithfully  serve  two  masters  whose  interests  are  in  con- 

25  §  12854  G.  C.  bate  judges   not  only  make  out  ac- 

See  §  1706  G.  C.  counts,    but    prepare    other    papers 

The  Probate  Judge  may  only  fin-  in  the  nature  of  answers,  petitions 

ish  business  not  connected  with  his  and    cross-petitions    for    actions    in 

office  commenced  before  his  election.  tlioir  own  court.     This   certainly   is 

Atty.  Gen'l,  Op.   1913,  p.   1142.  positively  forbidden  by  the  Statute, 

25*  §  128.5.5  G.  C.  and     judfres     should     certainly     not 

25t  §  12856  G.  C.  violate  the  law  themselves.    A  judge 

Probate    judges    have    great    diffi-  should    hold   himself   free   from   sus- 

culty  in  complying  with  some  parts  picion  in  all  of  his  actions  or  deal- 

of   the   above   section   of    the   G.    C,  ings.      The    penalty    is    very    severe 

especially    that    part    which    forbids  and    was    certainly    made    thus    in 

them  from  making  out  any  account  order     to     absolutely     prevent     the 

of  an  executor  or  guardian  especially  judge  from  acting  in  any  forbidden 

when   the   accovint   is   small.     I   am  capacity. 

reliably    informed    that    some    pro- 


9  ORGANIZATION,    ETC.  §  8 

flict,-"  and  that  no  one,  taking  into  consideration  the  character- 
istics of  human  nature,  can  act  justly  and  impartially  where  he 
is  an  interested  party.  By  a  subsequent  section  of  the  Gen- 
eral Code  -^  it  is  specifically  provided  that  a  Probate  Judge 
shall  not  be  granted  letters  testamentary  or  guardianship  and 
that  he  shall  not  act  in  any  matter  in  which  he  is  interested  as 
heir,  legatee  or  devisee ;  and  that  in  all  other  matters  and  pro- 
ceedings pending  in  the  Probate  Court  w^hich  would  properly  be 
disposed  of  or  decided  therein  in  which  the  judge  tliereof  is  in- 
terested in  any  manner  whatever,  the  jiidge  shall  be  incompetent 
to  sit  in  judgment  thereon.  Just  what  wall  constitute  such  in- 
terest in  tlie  judge  where  the  same  is  not  specifically  declared 
by  the  statute  must  rest  very  often  in  the  moral  sense  of  the  ' 
judge  himself.  No  judge  ought  to  let  himself  open  to  the  asper- 
sion that  he  is  willing  to  sit  in  judgment  on  a  case  involving  his 
own  aifairs  in  any  respect  whatever;  and  I  am  very  glad  to  say 
tliat  there  are  very  few  judges  who  are  willing  to  decide  any 
case  in  which  they  are  remotely  interested,  either  financially  or 
othei'^vise.  Generally  sucli  interest  is  either  by  reason  of  rela- 
tionship or  finance.  The  statute  directly  forbids  him  accepting 
tlie  appointment  himself,  but  does  not  say  anything  about  acting 
or  giving  appointments  to  his  relatives.  In  one  case  it  was  held 
that  it  was  a  manifest  violation  of  judicial  delicacy  and  pro- 
priety for  a  judge  to  appoint  his  son,  but  that  the  action  was  not 
void,  merely  voidable,"^  and  in  another  State  it  was  held  that 
the  appointment  of  a  brother  of  the  judge's  wife  w^as  void.^® 
The  disqualification  of  the  judge  has  often  been  said  to  be  that 
of  a  juror ;  and  the  latter  is  incompetent  generally  within  the 
ninth  civil  law  decree. ^'^  If  he  has  formerly  been  counsel  in  the 
case  he  ought  not  to  act.  Generally  it  may  be  said  interest  of 
the  judge  in  the  estate  will  disqualify  him  so  he  cannot  act.  If 
he  have  a  claim  against  the  estate  it  would  seem  that  he  cannot 

26  story   on   Agency,   210.  Hine     vs.     Hussey,     45     Ala.     496; 

27  §  11600  G.  C.  Hayes  ts.  Collier,  47  Ala.  726. 

28  Plowman  vs.  Henderson,  59  .  29  Hall  vs.  Thayer,  105  Mass. 
Ala.  559;  Roger  vs.  Franklin,  79  219,  and  cases  cited  on  cognate 
Ala.     505.       So    of    a    son-in-law;  principles. 

30  12  A.  &  E.  Ency.  of  law,  54. 


§  9  WHEN    JUDGE   INTERESTED  10 

act.^^  He,  if  he  have  an  interest  in  the  estate,  cannot  grant  let- 
ters of  administration ;  and  the  same  would  be  true  of  the 
clerk.^^  But  the  fact  that  his  aunt  by  marriage  is  a  legatee 
under  a  will  does  not  disqualify  him  (in  Maine). ^^  Xor  does 
the  fact  that  one  of  the  creditors  of  the  estate  is  his  father-in- 
law  disqualify  him  from  admitting  a  will  to  probate,^* 

In  the  absence  of  statute  it  is  said  any  interest  is  enough  to 
disqualify.^^  In  an  appropriation  proceeding  where  the  Pro- 
bate Judge  was  a  treasurer  of  the  company  but  not  interested 
otherAvise,  it  was  stated  by  the  reviewing  judge  that  it  was  the 
duty  of  the  Probate  Judge  to  certify  the  cause  to  the  Court  of 
Common  Pleas.^®  In  another  case,  where  the  Probate  Judge 
was  a  stoclvliolder  in  the  corporation,  it  was  held  that  although 
he  did  not  remember  at  the  time  the  case  was  heard  that  he  was 
a  stockholder,  yet  the  judgment  ought  to  be  arrested.^"  It  was 
likewise  held  that  the  judge  of  the  Court  of  Common  Pleas 
could  not  sit  in  a  case  where  it  was  sought  to  recover  on  a  bond 
given  to  such  court,  as  no  one  can  be  both  judge  and  party.^* 
The  next  section  provides  for  procedure  in  cases  where  the  judge 
is  interested. 

§  9.  Administration,  etc.,  when  the  probate  judge  is  interested. 
"Letters,  testamentary,  of  administration,  or  of  guardianship, 
shall  not  be  issued  to  a  person  after  his  election  to  the  office  of 
probate  judge  and  before  the  expiration  of  his  term.  If  a  pro- 
bate judge  is  interested,  as  heir,  legatee,  devisee,  or  other  manner 

31  Thornton  vs.  Moore,  61  Ala.  in  a  court  of  which  he  was  the  sole 
347.  jiidtre,  and  could   sit  alone  to  hear 

32  Sigourney  vs.  Sibley,  22  Pick,  and  decide  it.  Folger,  J.,  in  Mat- 
507.  ter  of  Ryers,  72  N.  Y.  1. 

33  Marston's    Appeal,    79   Me.    25.  3g  Giesy  vs.  C.  W.  &  Z.  R.  R.  Co., 
s4Aldrich's     Appeal,     110    Mass.       4  O.   S.   308. 

189;  19  A.  &  E.  Ency.  of  law.  title,  37  c.  W.  &  Z.  R.  R.  Co.  vs.  Gill, 

Probate  and  Letters  of  Administra-  10  W.  L.  J.  213. 

tion.  38  Court    of    Common    Pleas    V6. 

35  For   one,   I   should  be  loath  to  Sergeant,    Wright    482. 

hold  that,  by  force  of  a  legislative  This   does   not   apply  to   a   judge 

act,   one  could  bring  an  action,   in  elect  who  has  not   begun  his  term. 

uhich    liis    interests    were   involved,  State  v.  Hidy,  Gl   0.  S.   549. 


11  ORGANIZATION,    ETC.  §  9a 

in  an  estate  which  would  otherwise  be  settled  in  the  probate 
court  of  the  county  where  he  resides,  such  estate,  and  all  the 
accounts  of  guardians  in  which  the  probate  judge  is  interested, 
shall  be  settled  by  the  court  of  common  pleas  of  the  county.  In 
such  matters  and  cases  in  which  the  probate  judge  is  interested, 
the  original  papers  shall  be  by  him  forthwith  certified  to  the 
court  of  common  pleas.  In  other  matters  and  proceedings  in  a 
probate  court,  which  would  projierly  be  disposed  of  or  decided 
therein,  but  in  which  the  judge  thereof  is  interested  as  attorney 
or  otherwise,  or  in  which  he  is  required  to  be  a  witness  to  a 
will,  such  judge  shall,  upon  the  motion  of  a  party  interested  in 
the  proceedings,  or  upon  his  own  motion,  certify  the  matters  and 
proceedings  to  the  court  of  common  pleas  and  forthwith  file 
with  the  clerk  thereof  all  original  papers  connected  therewith." 
[R.  S.  §535.]^^ 

§  9a.  Proceedings  in  common  pleas  court.  ' '  When  a 
matter  or  proceeding  is  so  certified,  the  court  of  common  pleas, 
at  chambers,  by  a  judge  thereof,  or  in  open  court,  shall  hear 
and  determine  it  as  though  it  had  original  jurisdiction  of  the 
subject  matter.  Upon  final  decision  of  the  questions  involved 
in  such  proceedings,  the  final  settlement  of  the  estate  in  which 
the  judge  is  interested  as  executor,  administrator  or  guardian, 
or  when  his  interest  therein  ceases,  the  clerk  shall  deliver  to 
the  probate  court  from  which  they  came  the  original  papers 
and  make  and  file  therein  an  authenticated  transcript  of  the 
orders,  judgments  and  proceedings  of  the  common  pleas  court. 
Thereupon  the  probate  judge  shall  cause  record  thereof  to  be 
made  in  the  proper  records  of  similar  business."  [R.  S. 
§535.]  39* 

§  10.     Procedure  where  judge  is  interested. 

Although  a  party  about  to  bring  a  proceeding  may  be  satis- 
fied that  the  judge  is  disqualified,  yet  if  the  action  is  one  within 
the  jurisdiction  of  the  Probate  Court  it  must  be  brought  in 
that  court ;  and  then  a  motion  should  be  addressed  to  the  Court, 
setting  out  the  facts  and  asking  that  the  action  be  certified  to 
the  Court  of  Common  Pleas.  This  may  be  done  to  any  part  of 
the  proceedings  in  the  Probate  Court.    Thus,  if  an  action  were 

39§1589G.  C.  Ullman,    12    C.    C.    (N.S)     340;    31 

39*  §  1590  G.   C.  0.  C.  C.  370. 

See   §§11068,   11069,   11070  G.  C.  It  is  not  unconstitutional  for  Com- 

in  appropriation   proceedings.  mon  Pleas  to  act.     State  vs.  Archi- 

Duty    to    certify,    when.      In  re       bald,  52  0.  S.  5. 


§  10  WHEN    JUDGE   INTERESTED  12 

brought  in  the  Probate  Court  to  sell  real  estate,  and  the  Probate 
Judge  should  become  a  purchaser  of  the  land,  the  proceeding  up 
to  that  point  might  very  properly  have  been  passed  upon  bj  the 
Probate  Judge;  and  the  only  matter  that  would  need  to  be  certi- 
^fied  to  the  Court  of  Common  Pleas  would  be  the  report  of  sale, 
and  confiraiation  should  be  made  by  the  Common  Pleas  Court. 
So  in  the  probate  of  a  will  where  the  Probate  Judge  is  a  witness 
it  should  be  certified  up  to  the  Common  Pleas  Court  to  have  the 
testimony  of  the  witnesses  taken,  and  the  order  admitting  to  pro- 
bate made,  and  then  returned  to  the  Probate  Court  for  record 
and  further  proceedings.  The  motion  may  be  in  the  following 
form: 

(Title.) 

Now  comes  A.  D.,  administrator  (heir  at  law,  or  legatee,  etc.,)  of  C.  D., 
deceased,  and  moves  the  court,  that  a  report  of  sale  of  said  real  estate  of 
deceased  (or  that  the  probate  of  the  last  will  and  testament  of  said  C.  D. ) 

made  on  the day  of ,  be  certified  to  the  Court  of 

Common  Pleas  of County  for  an  examination  and  con- 
firmation (or  in  case  of  probate  of  will,  for  admission  of  said  will  to 
probate)  for  the  reason  that  the  Probate  Judge  of  the  county  in  which  said 
action  is  pending  is  a  purchaser  of  said  premises  (or  is  a  witness  to  said 
will). 

If  the  Court  is  satisfied  that  it  is  disqualified  to  act,  an  entry 
should  be  made,  which  may  l>e  in  the  following  form: 

(Title.)  EXTRY. 

This  day  this  cause  came  on  to  be  heard  upon  the  motion  of  A.  D.  to 
certify  the  report  of  sale  (or  prooate  of  will)  this  day  made  by  said 
administrator  to  the  Court  of  Common  Pleas  of  this  county.  Upon  con- 
sideration whereof,  said  motion  is  found  to  be  well  taken,  and  that  the 
judge  of  this  court  is  interested  therein  and  should  not  act  and  the  same 
is  hereby  granted. 

Wherefore  it  is  ordered  that  said  matter  be  certified  to  the  Court  of 
Common  Pleas  of  this  county,  and  that  all  original  papers  connected  with 
said  proceedings  be  filed  with  the  clerk  of  this  county,  as  required  by  law. 

After  the  same  is  certified  to  the  Court  of  Common  Pleas  it 
is  then  an  action  pending  in  that  court,  and  the  judge  has  power 
to  make  all  necessai7  orders  and  may  set  aside  an  order  made, 
just  the  same  as  if  it  was  an  original  action  brought  in  the  Court 
of  Common  Pleas.^"     After  the  matter  has  been  passed  upon  a 

40  Barr   vs.    Clostenpan.    7    C.    C. 
373;   4  C.  D.  637;    §  1590  G.  C 


13  ORGANIZATION,    ETC.  §  10a 

certified  copy  of  the  journal  entry  of  the  Court  of  Comraou 
Pleas  and  the  original  papers  should  be  returned  to  the  Pro- 
bate Court,  and  the  matter  disposed  of  and  recorded  in  said 
court,  the  same  as  if  the  action  had  not  been  certified  to  the 
Court  of  Common  Pleas.^^ 

§  10a.  When  common  pleas  judge  may  perform  duties  of 
probate  judge.  "When  it  is  made  to  appear  to  the  satisfaction 
of  a  couimon  pleas  judge  within  a  county  that  the  probate 
judge  thereof  is  absent  therefrom,  he  may  perform  the  duties 
conferred  upon  him  by  law  for  the  admission  of  patients  to  a 
hospital  for  the  insane  of  the  state,  or  when  it  is  made  to  appear 
that  the  probate  judge  is  incapacitated  on  account  of  illness,  or 
is  absent  from  his  county  in  obedience  to  an  order  issued  by  the 
governor  of  the  state  directing  him  to  perform  military  service, 
he  may  perform  all  the  duties  conferred  by  law  upon  such 
probate  judge.  The  record  of  such  cases  shall  be  made  and 
preserved  in  the  proper  records  of  the  probate  court  by  the 
deputy  clerk  thereof."     [103  v.  257.]  "* 

Prior  to  the  enactment  of  the  above  section  (1904),  there 
was  no  other  provision  whereby  the  duties  of  a  probate  judge, 
in  case  of  his  absence  or  sickness  could  be  performed  by  any 
one.  The  previous  section  merely  applied  to  cases  in  which 
the  probate  judge  was  interested.  It  was  often  a  matter  of  very 
great  inconvenience  in  case  of  absence  or  sickness,  that  matters 
could  not  be  heard  in  the  probate  court.  The  practice  arose 
in  such  cases  where  they  could  not  be  delayed  until  the  pro- 
bate judge  was  present,  for  the  deputy  to  act  for  the  judge 
and  permit  the  entries  to  remain  open  until  approved  or  signed 
by  the  judge.  This  was  a  questionable  practice,  but  perhaps 
the  best  that  could  be  done  under  the  circumstances. 

It  will  be  observed  that  the  above  section  of  the  General 
Code  does  not  permit  the  common  pleas  judge  to  act  in  the 
absence  of  the  probate  judge,  except  in  lunacy  cases.  In  case 
of  sickness,  it  permits  the  common  pleas  judge  to  act  for  the 
probate  judge  in  all  matters  in  this  court.  When  the  common 
pleas  judge  so  acts  it  migKt  be  advisable  to  let  the  journal 
entries  show  the  reason  why  the  common  pleas  judge  acts  and 
that  the  reason  be  such  as  is  authorized  by  the  statute.  In 
matters  that  are  within  the  exclusive  original  jurisdiction  of 
the  probate  court,  as  fixed  by  the  constitution  (see  §18),  the 
suggestion   occurs   w^hether  the   common   pleas   judge   can   con- 

41  See   §  1682,   when   certified,   etc.  objection    to    its    constitutional    va- 

As  the  Common  Pleas  Judjies  are  lidity  loses  much  of  its  force. 

now    elected    by    the    county,    under  *i*  §  1592  G.  C. 

State   vs.    Sheriff,    52    0.    S.    5,    one 


§  11  DEPUTY    CLERKS  14 

stitutionally  act  in  and  for  the  judge  who  has  been  duly 
elected  for  the  probate  court.  The  constitution  fixes  (see  §  2) 
who  shall  hold  or  occupy  the  position  of  judge  of  the  probate 
court  and  stipulates  that  it  shall  be  a  person  elected  by  the 
voters  of  the  county.  The  question  has  not  been  passed  on  to 
our  knowledge,  by  our  supreme  court  and  until  so  declared, 
it  will  be  considered  as  constitutional.  However,  the  power 
conferred  by  the  statute  should  be  strictly  construed  and  only 
should  the  common  pleas  judge  act  when  it  is  clear  that  the 
necessity  has  arisen  for  whicli  the  statute  makes  provision.'*^* 

§  11.  Custody  of  files.  Judge  may  act  as  clerk  or  appoint 
a  deputy.  Oath  of  deputy.  His  powers  and  bond.  "Each 
probate  judge  shall  have  the  care  and  custody  of  the  files, 
papers,  books,  and  records  belonging  to  the  probate  office.  He 
is  authorized  to  perform  the  duties  of  clerk  of  his  own  court. 
He  may  appoint  a  deputy  clerk  or  clerks,  each  of  whom  shall 
take  an  oath  of  office  before  entering  upon  the  duties  of  his 
appointment,  and  when  so  qualified,  may  perform  the  duties 
appertaining  to  the  office  of  clerk  of  the  court.  Each  deputy 
clerk  may  administer  oaths  in  all  cases  when  necessary,  in  the 
discharge  of  his  duties.  Each  probate  judge  may  take  a  bond 
with  such  surety  from  his  deputy  as  he  deems  necessary  to 
secure  the  faithful  performance  of  the  duties  of  his  appoint- 
ment."    [R.S.  §533.]  *2 

By  virtue  of  the  above  section  of  the  General  Code  the 
judge,  in  the  exercise  of  his  official  duty,  occupies  the  position 
that  is  ordinarily  filled  in  a  court  of  justice  by  two  persons. 
That  is,  he  is  judge  of  the  court  and  he  is  clerk  of  the  court.  As 
to  all  matters  coming  before  him,  where  the  act  required  to  be 
done  is  one  which  the  statute  specifically  declares  to  be  personal 
to  the  judge,  or  where  it  belongs  to  that  class  of  actions  Avhich 
are  known  as  judicial  acts,  the  judge  acts  strictly  in  his  capac- 
ity as  judge  of  the  Probate  Court.  "Where  the  act  to  be  per- 
formed is  not  personal  to  the  judge  and  is  such  an  act  as  is 
usually  performed  by  a  clerk  of  a  court  of  justice,  never  being 
more  than  a  ministerial  act,  then  the  judge  acts  in  his  capacity 
of  clerk.  The  powers  of  his  deputy  will  be  considered  in  the 
next  section. 

§  12.    Deputy  clerks,  etc. 

By  virtue  of  the  provisions  of  section  1584,  G.  C,  set  forth  in 
the  previous  section,  it  will  be  observed  that  the  Probate  Judge 
may  appoint  a  deputy  clerk,  etc.,  and  that  sueli  deputy  clerk 
shall,  before  entering  upon  the  duties  of  his  appointment,  take 

42  §  1,584  G.  C.  S.   .'->:    Knisht  vs.  Johnson.   13   Dec. 

41a  See  State  vs.  Archibold,  52  O.       715. 


15  ORGANIZATION,    ETC.  §  12 

an  oath  of  office,  and  when  so  qualified,  such  deputy  may  per- 
form any  or  all  the  duties  appertaining  to  the  office  of  clerk  of 
the  court ;  and  such  deputy  is  authorized  to  administer  oaths  in 
all  cases  in  which  it  is  necessary  in  the  discharge  of  his  duties  as 
such  deputy  clerk.  These  are  all  the  provisions  defining  the 
duties  of  a  deputy  clerk.  Like  the  Probate  Judge,  he  is  not 
permitted  to  practice  law,  etc.^^  The  deputy  clerk  can  perform 
no  act  of  a  judicial  character.*^*  The  constitution  provides 
there  shall  be  but  one  judge  and  all  acts  of  a  judicial  character 
can  never  be  performed  by  a  deputy.  As  a  general  rule,  judicial 
officers  cannot  appoint  deputies ;  and  the  deputy  appointed  by 
the  Probate  Judge  is  not  a  deputy  to  the  judge  in  his  judicial 
capacity,  but  is  a  deputy  to  him  in  his  clerical  capacity.  What- 
ever act  therefore,  by  virtue  of  any  statute,  the  Probate  Judge 
is  directed  to  do,  which  is  to  be  done  in  his  clerical  capacity,  can 
always  be  performed  by  his  deputy.  A  deputy  is  defined  as 
one,  who,  by  appointment,  exercises  an  office  in  another's  right, 
having  no  interest  therein,  but  doing  all  things  in  his  principal's 
name,  and  for  whose  misconduct  the  principal  is  answerable.** 
And  therefore  whatever  official  act  is  done  by  a  deputy  should 
be  done  in  the  name  of  his  principal,  and  not  in  the  name  of  the 
deputy.*^ 

The  authority  given  by  law  to  a  ministerial  officer  is  given  to 
the  inccumbent  of  the  office  and  not  to  the  deputy.  The  position 
of  deputy  clerk  is  not  an  office  within  the  meaning  of  the  consti- 
tution, and  therefore  a  female  is  eligible  to  that  position.*® 

The  statute  requires  that  the  deputy  be  sworn,  and  while  he 
might  do  some  valid  act  without  having  the  oath  administered, 
yet  where  a  person  was  acting  who  had  not  taken  an  oath  it  was 
held  a  person  could  not  be  convicted  of  perjury  for  falsely  mak- 
ing an  oath  before  such  person.*^     In  order  that  there  may  be 

43  §§  128.54-5-6  G.  C.  In    this    case    it    was    said,    "The 
43*  A  deputy  cannot  tike  the  elec-       acts  of  the  deputy   are    in   law    the 

tion  of  a  widow  to  take  under  the  acts    of    the    principal,    and    he    is 

will.     Mellinger  vs.  IMellinger,  5  C.  responsible   for   them.      The    deputy 

C.    (N.S.)    435;    26   C.   C.   683.     Af-  is    appointed   by    the    principal,   can 

firmed,  73  0.  S.  221.  be  appointed  by  no  one  else,  and  is 

44  4  A.  &  E.  P^ncy.  of  Law,  sub-  removable  at  his  pleasure.  The  ap- 
ject.  Deputy.  pointment    of    deputy    clerk    in    the 

45  A  deputy  of  an  office,  hath  no  Proltate  Court  r  -ed  not  be  approved 
interest  therein,  but  doth  all  things  by  any  other  person  or  court;  he 
in  his  master's  name.  Jacobs,  Law  is  entitled  to  no  salary  or  compen- 
Dic,  Deputies.  sation,  except  what  may  be  allowed 

See   Gibbens   vs.   Pickett,    31    Fla.  him    by   his   principal;    and    he   can 

147;    19   L.  R.   A.    177,   for   full  and  lawfully  do  no  act  against  the  will 

extended  note  upon  this  question.  of  his  principal." 

46  Warwick  vs.  The  State,  25  0.  S.  47  Straight  vs.  Tlie  State,  39  O.  S. 
21.  496. 


§  13  PROBATE   JUDGES  16 

sufficient  proof  of  this  oath  being  administered,  the  judge 
should,  when  making  the  appointment,  immediately  make  an  en- 
try of  such  fact  on  the  journal  and  recite  therein  that  the  oath 
was  duly  administered.  For  wrongful  acts  of  this  deputy  clerk 
the  Probate  Judge  is  responsible,  providing  such  acts  are  done 
in  the  performance  of  an  act  pertaining  to  his  office ;  and  in  or- 
der to  protect  the  judge  the  statute  directs  that  he  may  require 
the  deputy  to  give  him  bond. 

§  13.  Probate  judge;:!  may  administer  oaths,  take  acknowl- 
edgments and  depositions.  "A  probate  judge  may  administer 
oaths  authorized  by  law,  take  acknow^ledgment  of  deeds,  mort- 
gages, and  other  instruments  of  writing  required  by  law  to  be 
acknowledged,  and  take  depositions  in  a  case  where  authorized 
by  law."     [R.  S.  §526]^^ 

Unless  the  act  to  be  performed  is  one  which  is  required  in 
some  proceeding  in  the  Probate  Court,  the  deputy  could  not 
act  in  any  of  the  cases  above  authorized  by  law.  Such  acts 
are  personal  to  the  judge. 

§  14.  Bond  of  probate  judge.  Condition.  Deposited  with 
county  treasurer.  "Before  cnU'ring  upon  the  discharge  of  his 
dvities,  t'he  probate  judge  shall  give  a  bond  to  tlie  state  in  a 
sum  not  less  than  five  thousand  dollars,  with  sufficient  surety, 
approved  by  the  board  of  county  commissioners  or  by  the 
auditor  and  recorder,  in  the  absence  from  the  county  of  two 
of  the  commissioners,  and  iconditioned  that  he  will  faithfully 
pay  over  all  moneys  received  by  him  in  his  official  capacity, 
enter  and  record  the  orders,  judgments  and  proceedings  of  the 
court,  and  faithfully  and  impartially  perform  all  the  duties 
of  his  office.  Such  l)ond,  with  the  O'ath  of  office  indorsed 
thereon,  shall  be  deposited  with  the  county  trea.surer  and 
kept  in  his  office.  From  time  to  time,  as  the  state  of  business 
in  his  offifce  renders  necessary,  the  county  commissioners  may 
require  the  probate  judge  to  give  additional  l)oud."  [R.  S. 
§529.]^^ 

This  bond  could  only  be  made  to  cover  or  hold  the  judge 
responsible  for  a  wrongful  performance  of  a  ministerial  act. 
For  judicial  acts  he  is  not  liable  personally,  and  therefore 
would  not  be  liable  on  his  bond.'" 

48  §  15S2  G.  C.  An  action  against  a  Probate  Judge 

4a  §  1581  G.  C.  and  his  successors  in  oiiice  to  recover 

50  See     IngersoU     vs.     Smith,     36  certain  public  funds  received  by  him 

Bull.   3U2,   wUere   a   judge   was   held  in  his  oUicial  capacity,  is  subject  to 

not    liable    for    accepting    a    forged  tae  ten-year  limitation  prescribed  by 

bond.     §§  -238-241,    L)l)0.  §  112(j()  G.  C,  even  though  his  bonds- 

The     Probate     Judge     might     be  men   are   not  joined    in    the   action. 

liable    on    his    bond    if    he    fails    to  ^tate  vs.  Ferris,  23  Dec.  328;   12  X. 

require  an  inventory  to  be  tiled.    In  S.    (N.P.)    171.     !See  this  case  when 

re   Pickard's   Est.,   5   N,   P.   493;    7  successor  held  liable. 

Dec.  476. 


17  ORGANIZATION,    ETC.  §  15 

§  15.  Judges  shall  make  rules  of  practicce  and  submit  them 
to  the  Supreme  Court,  "The  several  judges  of  the  probate 
court  shall  make  rules,  not  inconsistent  with  the  laws  of  the 
state,  for  regulating  the  j)ra;ctice  and  conducting  the  business 
of  the  court,  wliich  they  shall  submit  to  the  supreme  court. 
The  supreme  court  may  alter  and  amend  such  rules,  and  make 
other  and  further  rules,  from  time  to  time  as  they  deem  neces- 
sary for  regulating  the  proceedings  in  all  the  probate  courts 
of  the  state  in  order  to  maintain  regularity  and  uniformity 
in  their  proceedings."     [R.  8.  §  536.]^^ 

§  16.     Miscellaneous  matters. 

The  judge  is  required  to  perform  numerous  other  duties.  He 
is  to  be  furnished  certain  books  which  shall  be  kept  in  his 
office.'"'-  And  where  there  are  destroyed  records  the  statute  pro- 
vides how  they  may  be  restored. °^  If  his  predecessor  has  failed 
to  properly  enter  upon  the  business  pertaining  to  the  office  it 
may  be  done  by  the  judge  and  proper  charges  made.^*  He  is 
likewise  required  to  return  to  the  auditor  the  fees  collected  in 
his  office  on  the  first  day  of  September  in  each  year.^^ 

§17.  Power  to  punish  contempt,  "The  probate  judge  has 
power  to  keep  order  in  his  court,  and  punish  any  contempt  of 
his  authority,  in  like  manner  as  such  contempt  might  be  pun- 
isihed  in  the  icourt  of  common  pleas."     [R.  S.  §  538.]"® 

Following  the  above  section  of  the  General  Code,  provision  is 
made  by  a  subsequent  section,  §  10501  G.  C,  that  the  Probate 
Judge  may  issue  warrants,  attachments  and  other  process,  and 
all  notices,  commission,  rules  and  orders,  not  contrary  to 
law,  that  are  necessary  and  proper  to  carry  into  effect  the 
powers  granted  to  him ;  and  the  sheriff,  deputy  sheriff,  cor- 
oners and  constables  shall  attend  his  court."'  And  that  such 
officer  is  liable  to  fine  and  amercement  as  provided  in  the  next 
section.®^  Another  section  provides  how  the  person  guilty  of 
contempt  may  be  punished."^  Procedure  in  contempt  cases 
will  be  made  the  subject  of  a  future  chapter.^** 

51  §  l.-)91    G.    C.      Generally    Pro-  «*§§  1586,  1587,  1583  G.  C. 
bate   Courts   have   no  fixed   rules   of  "•"'  §  1600  G.  C. 

practice.      I    know    of    none    except  ^6  §  10500  G.  C. 

Hamilton     County;     these     will    be  st  §  1506  G.  C. 

found   in   tlie  first  part   of   Goebel's  ^s  §  1597  G.  C;   §2010. 

Probate  Reports  no  1^  1508   G.  c. 

52  §U594   and    1595   G.    C.  6°  Cli.  107,  §1976. 

53  §§  12345,    12346,    12347,     12348  Attendance  of  witnesses,  §  2011. 
G.  C. 


§  17a  AUTHENTIFICATION   OF   RECORDS  18 

§  17a.  Authentication  of  records,  etc.  The  Probate  Court 
is  frequently  called  upon  for  copies  of  its  records  or  proceed- 
ings. If  the  copy  is  for  use  only  in  the  state,  a  copy  certified 
to  by  the  judge  under  the  seal  of  his  court  would  be  sufficient, 
and  it  might  be  that  if  done  under  his  name,  this  act  might  be 
performed  by  a  deputy,  as  such  certification  is  a  duty  pertain- 
ing to  the  office  of  clerk,  not  judicial  in  its  character,  and  it 
would  be  valid  if  done  in  the  name  of  the  judge  by  the  deputy. 
It  would  be  the  safer  plan,  however,  to  have  it  signed  by  the 
judge  himself. 

However,  when  the  act  is  to  be  performed  by  the  judge,  the 
certificate  must  be  signed  by  him  personally.  It  is  a  generally 
recognized  rule  that  a  person  w^ho  is  officially  in  charge  of  cer- 
tain documents,  may  certify  that  certain  papers  purporting  to 
be  copies,  are  true  and  correct  copies  of  the  originals  in  his 
possession  or  under  his  control.  If,  however,  the  papers  are 
to  be  used  outside  of  the  state,  then,  to  be  competent  evidence, 
they  must  be  authenticated  as  provided  in  the  following  United 
States  statutes : 

Records  of  Judicial  Proceedings,  etc.: 
*'The  acts  of  the  legislature  of  any  state  or  territory,  or  of 
any  country  subject  to  the  jurisdiction  of  the  United  States, 
shall  be  authenticated  by  having  the  seals  of  such  state,  terri- 
tory, or  country  affixed  thereto.  The  records  and  judicial  pro- 
ceedings of  the  courts  of  any  state  or  territory,  or  of  anj'  such 
country,  shall  be  proved  or  admitted  in  any  other  court  within 
the  United  States,  by  the  attestation  of  the  clerk,  and  the  seal 
of  the  court  annexed,  if  there  be  a  seal,  together  with  a  certifi- 
cate of  the  judge,  chief  justice,  or  presiding  magistrate,  that 
the  said  attestation  is  in  due  form.  And  the  said  records  and 
judicial  proceedings,  so  authenticated,  sliall  have  such  faith 
and  credit  given  to  them  in  every  court  within  the  United 
States,  as  they  have  by  law  or  usage  in  the  courts  of  the 
state  from  which  they  are  taken.  "^^ 

Under  the  above  United  States  statute  it  has  been  held  that 
a  certificate  of  the  same  person,  as  judge  and  ex-officio  clerk 
is  a  substantial  compliance  with  the  act.®-  But  it  must  be  signed 
by  the  person,  once  as  clerk,  and  again  as  judge,  etc.,'"'^  and  the 
attestation  must  be  by  the  person  himself  and  not  b}^  a  deputy.^* 
The  probate  judge,  being  both  judge  and  clerk  of  the  Probate 

61  Compiled  U.  S.  Stat.  Xo.   1519,       Baxter,  94  Pac.  155,  574:   Eoop  vs. 
§2478,   G.   C.  Clark,   4   Greene    (Iowa)    294. 

62  Catlin  vs.  Underhill,  Fed.  Cas.  «3  Millins  vs.  Houston,  41  Miss. 
Xo.  2523;  Keith  Bros.  vs.  Stiles.  92       59. 

Wis.    15;    Welder  vs.   ^McCombz.   10  64  See  Kansas  Pac.  By.  vs.  Cutter. 

Tex.  Civ.  App,  85;   State  vs.  Hinch-       19  Kans.  8.3;  Willock  vs.  Wilson.  178 
man,    27    Pa.    St.    479;    Brown   vs.      IMass.  68;  Morris  vs.  Palthin,  24  X. 

Y.  394:    82  Am.  Dec.  311. 


18a  AUTHENTIPICATION    OF   RECORDS  §  17a 

Court  in  Ohio,  he  would  sign  both  certificates.  The  first  in 
attested  by  him  as  clerk  and  the  second  he  certifies  that  the 
attestation  is  in  due  form,  as  the  presiding  judge  of  the  court. 
The  seal  must  always  be  attached. 

The  following  may  be  used  as  a  general  form,  etc. : 

CERTIFICATE  TO  COPIES. 
The  State  of  Ohio^ 

County,  ss. 

Pkobate  Coukt. 

I>  ,  Judge  and  ex-ofRcio  Clerk  of  the  Probate 

Court,  within  and  for  said  County,  having  the  custody  of  the  Files, 
Journals  and  Records  of  said  Court,  do  hereby  certify  that  the  fore- 
going  is   a   true   copy   of    \ 

as  the  same  appear.,  upon  the  records  of  said  Court;  and  I  further 
certify,  that  I  have  carefully  compared  tlie  foregoing  copy  with  the  original 
record,  and  that  the  same  is  a  full  and  correct  transcript  thereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  liand  and  affixed  the  seal 

of  said  Court,  at ,  Ohio,  this   

day  of  ,  A.  D.  19 . . . 


Probate  Judge  and  ex-officio  Clerk  of  said  Court. 

The  State  of  Ohio,  County,  ss. 

I,   ,  sole  Judge  of  the  Probate  Court,  within 

and  for  said   County   and   State,  the  same  being  a  Court  of  law  and  of 

record   do   hereby   certify   that    ,   whose   genuine 

signature  is  attached  to  the  foregoing  certificate,  is,  and  was  at  the  time 
of  signing  the  same,  ex-officio  Clerk  of  said  Probate  Court,  and  as  such, 
full  faith  and  credit  are  due  his  acts,  and  that  the  above  certificate  and 
attestation  are  in  due  form  of  law,  and  made  by  the  proper  officer. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal 

of  said  Court,  at Ohio,  this   

day  of   ,  A.  D.  19 . .  . 


Judge  as  aforesaid 

An  examination  of  the  United  States  statute  before  quoted 
will  disclose  that  it  only  applies  to  the  jiidicial  proceedings;  the 
next  section  of  the  United  States  statute 

applies  to  "all  records  and  exemplifications  of  books  which 
may  be  kept  in  any  public  office,  etc." 

"shall  be  proved,  *  *  *  by  the  attestation  of  the  keeper  of 
the  said  records  *  *  *  and  the  seal  of  his  office  annexed,  *  *  * 
together  with  a  certificate  6f  the  presiding  justice,  *  *  *  that 
the  said  attestation  is  in  due  form,  *  *  *  " 


§  17a  AUTHENTIFICATION   OF   RECORDS  18b 

This  section  further  provides  that 

"if  the  said  certificate  is  given  by  the  presiding  justice" 
then 

"it  shall  further  be  authenticated  by  the  clerk  *  *  *  of  said 
court  who  shall  certify,  under  his  hand  *  *  *  that  said  pre- 
siding judge  is  duly  commissioned  and  qualified." 

So  if  it  were  held  that  the  judge  signs  the  first  certificate  as 
judge,  the  second  would  have  to  be  signed  as  clerk,  and  this 
would  require  a  certificate  somewhat  different  in  wording  from 
that  given  in  the  previous  form.  But  it  seems  that  where  he 
signs  the  first  as  judge  and  ex-officio  clerk,  mentioning  that  he 
has  custody  of  the  records,  etc.,  that  then  the  presumption  is 
that  he  signs  in  the  capacity  of  keeper  of  said  records,  etc.,  and 
the  form  heretofore  given  may  be  used  in  the  authentification 
of  all  the  records  or  proceedings  in  the  Probate  Court. 

Section  1584,  G.  C,  §  11,  gives  to  the  judge  the  care  and  cus- 
tody of  the  records  in  the  probate  judge's  office,  as  well  as 
authorizing  him  to  act  as  clerk. 

Another  section  of  the  United  States  statutes  provides  that 
when  it  is  desired  to  have  the  record  of  a  country  outside  of  the 
United  States  certified,  so  as  to  entitle  it  to  record,  etc.,  on  appli- 
cation to  the  head  of  departments,  etc.,  when  certified  by  the 
American  Consul,  it  may  be  admitted  to  record  in  this  country.^^ 

65  See  §§  15330,  15331  and  15332,  thentication      of     depositions,     and 

Page's   Revised   Edition    of   General  §  11500  G.  C,  how  records  in  state 

Code.  offices  may  be  certified,  etc. 

Sec.    11541   G.   C.   applies   to  au- 


19 


JUEISDICTION 


§18 


CHAPTER  II. 

JURISDICTION. 


§  18 
§  19 
§20 
§21 

§22 
§23 


§24 

§25 
§26 

§27 


Constitutional  provision. 

Status  under  the  Constitution. 

Equity  jurisdiction. 

Power  to  hear  common  law  ac- 
tions and  empanel  juries. 

Limited  jurisdiction. 

In  actions  for  sale  ot  real  es- 
tate, can  determine  title  to 
land. 

Growth  of  the  jurisdiction  of 
the  Probate  Court. 

Power  to  grant  injunctions. 

Power  to  appoint  receivers. 

Exclusive  jurisdiction. 


§  28  Concurrent  jurisdiction. 

§  29  Jurisdiction   exclusive   of   that 

of  any  other  Probate  Court. 
§  30  Appellate  jurisdiction. 
§  31  Jvuisdiction  to   review   inferior 

courts. 
§  32  Shall    have    same    powers,    and 

observe  rules  of  common  pleas 

so  far  as  applicable. 
§  33  Action  in  common  pleas  asking 

direction  of   Court  respecting 

estate,  who  may  bring. 

§  33aA\nien   suit  by  creditor, 
§  34  Comments.i 


§  18.  Constitutional  provision.  "  Tlie  Probate  Court  shall 
have  jurisdiction  in  probate  and  testamentary  matters,  the  ap- 
pointment of  administrators  and  guardians,  the  settlement  of 
the  accounts  of  executors,  administrators,  and  guardians,  and 
such  jurisdiction  in  habeas  corpus,  the  issuing  of  marriage 
licenses,  and  for  the  sale  of  land  by  executors,  administrators, 
and  guardians,  and  such  other  jurisdiction,  in  auy  county  or 
counties,  as  may  be  provided  by  law."     [Const.  Art.  IV.,  §  8.]^ 


Plenary  power  is  conferred  by 
this  section  as  to  granting  letters, 
settling  accounts,  etc.  Truuipler 
vs.  Roger,  95  0.  S.  194.  See  State 
vs.  Archibold,  52  0.  S.  5;  Knight 
vs.  Jolmson,  17   Dec.  517. 

1  As  to  assignments  see  §§  1542 
to    1552. 

2  The  debates  of  the  Constitutional 
Convention  of  1851  show  v/hat  a 
narrow  escape  the  Probate  Court 
had  of  being  one  of  exceedingly  lim- 
ited jurisdiction  in  Ohio.  The  last 
clause  of  the  above  section  to-wit: 
"and  such  other  jurisdiction  as 
may  be  provided  by  law"  was  the 
bone    of    contention ;    and    certainly 


without  this  clause,  the  greater 
part  of  the  jurisdiction  now  ex- 
ercised by  the  Probate  Court  would 
have  been  kept  from  it,  and  the 
court  would  in  the  truest  sense  of 
the  term,  liave  been  one  of  special 
and  limited  jurisdiction.  This  last 
clause  has  permitted  the  legisla- 
ture to  confer  jurisdiction  in  mat- 
ters connected  with  the  jurisdiction 
specified  in  the  constitution  wiiich 
would  not  otherwise  have  been  per- 
mitted; and  the  very  large  jiiris- 
diction  of  assignments,  of  appro- 
priation, of  road  appeals,  of  ditch 
appeals,  and  numerous  other  mat- 
ters  would   never  have  found  their 


§  19  JURISDICTION  20 

§  19.    status  under  the  constitution. ^^ 

An  idea  seems  to  prevail  among  a  large  portion,  especially  of 
the  older  members  of  the  bar  of  Ohio,  which  sometimes  extends 
to  the  judiciary,  that  by  virtue  of  some  principle  of  organic  law 
the  Probate  Court  is  an  inferior  and  limited  court.  This  idea, 
by  virtue  of  recent  decisions  of  our  Supreme  Court.,  I  am  satis- 
fied, is  not  as  firmly  rooted  as  it  fonnerly  was.  The  reason  for 
its  prevalence  I  am  not  fully  able  to  understand.  Perhaps  it 
resulted  from  some  unfortunate  expression  of  the  Supreme 
Court ;  and  the  idea  may  have  been  encouraged  by  the  fact  that 
the  statutes  immediately  passed  after  tlie  adoption  of  the  consti- 
tution gave  to  the  Common  Pleas  Court  general  powers,  while 
in  many  instances  the  powers  granted  to  the  Probate  Court  were 
specified.  But  the  fact  remains  that  under  the  constitution  the 
capacity  to  receive  jurisdiction  is  just  as  great  in  the  Probate 
Court  as  it  is  in  the  Court  of  Common  Pleas.  If  either  court 
is  favored  by  the  constitution  it  is  the  Probate  Court,  for  the 
Probate  Court  has  jurisdiction  conferred  upon  it  by  the  consti- 
tution in  the  matters  mentioned  in  the  section  above  quoted, 
while  the  Court  of  Common  Pleas  has  no  jurisdiction  except 
such  as  may  be  conferred  upon  it  by  law.^ 

A  careful  reading  of  the  decisions  of  our  Supreme  Court 
where  jurisdiction  of  the  Probate  Court  is  denied,  in  a  matter 
because  it  is  one  of  limited  and  inferior  jurisdiction,  will  show 
that  it  is  not  because  the  constitution  does  not  permit  such  juris 
diction,  but  because  the  statute  does  not  grant  such  power.  So 
in  determining  whether  the  Probate  Court  has  jurisdiction  or 
not  the  sole  question  to  be  considered  is,  does  the  statute  any- 
where authorize  the  Probate  Court  to  act  in  the  matter  ?     If  it 


way  into  the  forum  of  the  Probate  See  §   1338  in  Guardians;    §    1544 

Court.      Some   of   the   best   law^-ers  in   Assignment. 

of  that  convention  seemed  to  be  of  2a  Cited     Puder    vs.    A"ler     292 

the  opinion,  that  the  Probate  Court  Yed.  95;   62  Bull.  411. 

should  be  confined  to  such   inferior  3  Const.   1851,  art.  4,   §4;    Steph- 

jurisdiction.     But   finally,   the   men  ens  vs.  State,  3  0.  S.  543. 

who    seemed    to   be   more   prophetic  The   Probate    Court   in   Ohio   has 

as  to  the  need   of   the   future,    led  common-law  jurisdiction.     State  vs. 

by  that  very  able  and  distinguished  Metzger,    10    X.    P.    (X.S.)    97:    21 

judge,  R.  P.  Ranney,  prevailed,  and  Dec.   72. 

the   clause  was   finally   inserted. 


21  EQUITY    JURISDICTION  §  20 

does,  and  places  no  limitation  on  its  power,  then  its  jurisdiction 
in  such  a  matter  is  as  complete  as  that  of  the  Court  of  Common 
Pleas.  These  matters  will  be  further  considered  in  a  subse- 
quent section. 

§  20.     Equity  jurisdiction. 

It  has  frequently  been  asserted  that  the  Probate  Court  has  no 
equity  power ;  and  for  a  long  time  it  was  insisted,  especially  in 
assignment  cases,  that  the  Court  could  not  exercise  such  power,* 
and  likewise  was  denied  in  the  sale  of  real  estate  by  executors. 
But  now  tliese  matters  have  been  settled  in  the  affirmative  by  the 
Supreme  Court.^ 

If  the  Probate  Court  has  no  equity  jurisdiction  it  is  because 
the  legislature  has  conferred  no  such  jurisdiction  upon  it.  It 
does  not  result  from  a.ny  inherent  incapacity  in  the  court  itself? 
In  a  recent  decision  of  our  Supreme  Court  it  is  well  said : 
"  That  if,  for  the  sake  of  argument,  we  assume  that  the  lan- 
guage of  that  section  does  not  in  terms  expressly  confer  the  ju- 
risdiction, does  it  follow  that  such  power  is  wanting?  Al- 
though the  Probate  Court  is  of  limited  and  statutory  jurisdic- 
tion, it  is,  we  think,  a  mistake  to  suppose  that  it  has  no  equity 
powers  unless  the  same  are  expressly  conferred.  A  power  given 
to  make  a  particular  order  implies  authority  to  hear  and  dispose 
of  all  questions  which  it  is  necessary  to  have  settled  before  the 
making  of  such  final  order,  unless  the  needed  authority  is  dis- 
tinctly denied."  ® 

Upon  this  matter  Woerner  says:'^  "Unless  a  warrant  for 
the  exercise  of  jurisdiction  in  a  particular  case  can  be  found  in 
the  statute,  given  either  expressly  or  by  implication,  the  whole 
proceedings  is  void ;  but  where  jurisdiction  is  conferred  over 

4  Keifer  vs.  Spence,  5  N.  P.  522 ;  the  executor  to  distribute  the  estate, 
5  Dec.  609;  Sayler  vs.  Simpson,  45  12  U.  L.  R.  561;  14  C.  C.  (N.S.) 
O.  S.   141;   Uvvyer  vs.  Garlough,  31       218;  34  C.  C.  201. 

O.  S.  158.  7  \\  oerner  on  Admin.,  §  142,  cited 

5  Doan  vs.  Bitely,  49  O.  S.  588.  in  Jones  vs.  Green,  21  C.  C.  98;    11 

6  Clapp  vs.  Banking  Co.,  50  O.  S.       C.  D.  548. 

See  Fisher  vs.  Fisher,  where  it  is  Has   chancery    power.      Spink   vs. 

held  the  Probate  Court  may  con-  Spink,  7  C.  C.  (N.S.)  89;  28  0.  CO. 
strue  a  will  so  far  as  necessary  for       94.     Affirmed,  78  0.  S.  390. 


§  21  POWEK    TO    HEAE    LAW    ACTIOXS^    ETC.  22 

any  subject  matter,  and  it  becomes  necessary  in  the  adjudication 
thereof  to  decide  collateral  matters  over  which  no  jurisdiction 
has  been  conferred  the  court  must  of  necessity  decide  such  col- 
lateral issues." 

It  may  therefore  be  said  that  when  a  power  is  conferred  upou 
the  Probate  Court  by  statute  unlimited  in  its  method  of  execu- 
tion that  the  Probate  Court  has  full  power  to  hear  and  adjudi- 
cate all  matters  relating  thereto  and  pass  upon  them  notwith- 
standing the  fact  that  in  doing  so  it  may  exercise  the  powers  of 
a  court  of  chanceiy  or  one  of  common  law  or  only  such  power 
as  is  strictly  confined  to  probate  jurisdiction.  By  virtue  of  the 
general  equity  power  conferred  upon  the  Court  of  Common 
Pleas  by  law,  where  the  remedy  afforded  by  the  Probate  Court 
is  inadequate,  in  order  that  there  may  not  be  a  failure  of  justice, 
the  Conmion  Pleas  \W11  entertain  jurisdiction.* 

§  21.     Power  to  hear  common  law  actions  and  impanel  juries. 

Following  out  the  principles  enunciated  in  the  previous  sec- 
tions, the  Probate  Court  cannot  only  hear  matters  coming 
strictly  within  its  probate  jurisdiction,  but  may  also  hear  and 
decide  matters  which  require  the  exercise  of  the  powers  of  a 
judge  presiding  over  a  court  of  common  law;  and  therefore 
where  a  matter  properly  comes  before  the  Probate  Judge,  whicli 
is  by  law  triable  by  jury,  he  may  empanel  a  jury  for  that  pur- 
pose.^ In  this  case  it  is  said:  "  So  that  under  the  constitu- 
tion the  Probate  Court  has  capacity  for  receiving  jurisdiction 
quite  as  gi'eat  as  that  of  the  Court  of  Common  Pleas.  It  is  not 
a  court  of  general  jurisdiction ;  but  tliat  is  because  such  powers 
have  not  been  conferred  on  it  by  statute  as  have  been  conferred 
on  the  Common  Pleas.  So  that  the  question  here  is,  not  what 
capacity  has  been  given  the  Probate  Courts  of  the  State  by  the 

8  Rote  vs.   Stratton,   2  X.   P.   27 ;  A   court   of   equity   only   can   en- 

3   Dec.    156.  force   a  trust.    Guion  vs.   Guion.   4 

See  §  267,  Surety,  Legatee.  Ree.  479. 

In    an    equity    case    it    was    said  ^  Ry.  vs.  O'Harra,  48  O.  S.  343. 

that  the  decree  of  a  Probate  Court  See  Wiler  vs.  Logan  ;^^utual  Gas 

in    Ohio,    involving   the    exercise   of  Co..  6  C.  C.   (X.S.)   206;  27  0.  C.  C. 

the  general  jurisdiction  of  a  court  R-  -o7.     Reversing   1   X.  P.    (X^'.S.) 

ot    equity,    must    be    considered    as  277:   14  Dec.  104.    Affirmed,  72  O.  S. 

coram  non  judice  and  void.     Gillil-  628. 
land  vs.  Sellars,  2  0.  S.  223. 


23  LIMITED    JURISDICTIOJSr  §  22 

constitution,  but  what  jurisdiction  has  been  conferred  on  them 
in  the  several  counties  of  the  State  by  the  legislature."  ^°  And 
it  was  further  held  that  the  laws  relating  to  struck  juries  and 
special  juries  might  be  called  into  exercise  by  the  Court  in  em- 
panelling a  jury," 

§  22.     Limited  jurisdiction. 

The  Probate  Court  is  frequently  spoken  of  as  a  court  of  lim- 
ited jurisdiction.  This  is  true  simply  from  the  fact  that  it  has 
conferred  upon  it  by  law  no  general  jurisdiction.  As  was  well 
idid  by  Justice  Shauck  in  a  recent  opinion,^^  "  While  the  Pro- 
bate Court  is  of  limited  jurisdiction,  the  limitation  chiefly  re- 
lates to  subject  matters."  Therefore  if  a  subject  matter  is 
within  its  jurisdiction,  as  to  such  a  subject  matter,  it  is  not  a 
^/ourt  of  limited  jurisdiction.  It  is  also  spoken  of  sometimes 
AS  a  court  of  inferior  jurisdiction.  But  in  the  recognized  use  of 
this  word  "  inferior,"  as  applied  to  courts  of  various  jurisdic- 
tions, this  application  may  be  wrongly  applied.  By  courts  of 
inferior  jurisdiction  is  generally  meant  those  courts  which  are 
not  considered  courts  of  record  and  whose  proceedings  do  not 
import  absolute  verity.^^  The  mere  fact  that  a  case  may  be 
prosecuted  in  error  or  appeal  from  the  Probate  Court  to  the 
Court  of  Common  Pleas  no  more  makes  the  Probate  Court  an 
inferior  court  than  it  does  the  Court  of  Common  Pleas,  from 
which  appeals  may  be  taken  and  error  prosecuted  to  the  Circuit 
Court. 

§  23.     In  actions  for  sale  of  real  estate,  can  determine  title  to  land. 

It  is  now  settled  beyond  question  that  in  an  action  brought  by 
an  administrator,  executor  or  assignee  to  sell  lands  or  real  estate 

10  Id.  354.  The   Probate    Court   has   full   juris- 

11  Quoted  with  approval,  Doan  vs.  diction   to   adjudicate   all   questions 
Bitely,  4!)  0.  S.  597.  arising   in   proceedings   properly   be- 

12  Brown  vs.  Reed,  56  0.   S.  264.  fore   it.     Wilberding  vs.   Miller,   90 

13  The      Constitution      so      states  0.  S.  29. 

(Const.,  Art.  IV,  §  7)  and  the  courts  Tlie    jurisdiction    of    the    Probate 

have   frequently    held    that    Probate  Court    will    not    be    interfered    with 

Courts     are     in     the     fullest     sense  by  a  writ  of  prohibition.     State  vs. 

courts     of     record     and     therefore  Lueders,   101   O.   S.   211;    or  manda- 

(Shryer  vs.  Richmond,  16  O.  S.  455)  mus,    State   vs.   Lueders,    101   O.   S. 

are  not  "inferior"  courts.     See  §20.  211. 


§  24  JURISDICTIOIf  24 

that  not  only  may  all  liens  upon  or  to  the  land  be  determined, 
but  that  the  title  to  the  land  itself  may  be  quieted  in  such  an 
action.  This  is  held  to  be  within  the  power  of  the  court,  al- 
though there  is  no  express  statutory  provisions  to  that  effect. 
The  court  holds  that  it  follows  from  the  power  given  to  sell  real 
estate,  and  that  it  will  be  presumed  that  the  legislature  intended 
that  the  real  estate  might  be  placed  in  that  condition  in  which 
it  would  bring  the  most  money ;  and  therefore  if  a  cloud  rests 
upon  it  that  question  ought  to  be  settled."^* 

Whether  or  not  the  title  could  be  quieted  in  an  action  brought 
by  a  guardian  to  sell  the  real  estate  of  his  ward  is  somewhat  of 
a  mooted  question.  The  reasoning  used  in  Doan  vs.  Bitely, 
given  in  a  note,  would  be  sufficient  for  holding  that  it  might  be 
done.  But  it  is  questionable  whether  it  fully  appears  that  the 
act  conferring  authority  on  guardians  to  sell  real  estate  gives 
the  Probate  Court  power  to  pass  upon  such  a  question.  The 
safer  course  would  be  for  the  guardian  in  such  cases  to  bring  his 
action  in  tlie  Court  of  Common  Pleas. 

§  24.     Growth  of  the  jurisdiction  of  the  Probate  Court. 

In  almost  every  matter  over  which  the  Probate  Court  has  at 
any  time  been  given  jurisdiction  there  is  a  constant  tendency  to 
enlarge  its  power ;  and  in  addition  the  court  is  constantly  receiv- 
ing new  and  distinct  jurisdiction  from  both  the  courts  and  law- 
making bodies.  The  competency  of  the  court  to  deal  with  vast 
and  complicated  affairs  is  more  and  more  in  evidence  from  addi- 
tional legislation   and   recent   decisions   of   the   courts,    and   it 

14  Doan  vs.   Bitely,  49  O.  S.  588;  diction,   if  capable  of  extrcising   it, 

Sayler  vs.  Simpson,  45  0.  S.  141.  to  determine  the  ultimate  rights  of 

The  policy  of  our  legislation  has  the  parties,  and  administer  to  them 

long  been  opposed  to  the  necessity  their  complete  remedy.      The  policy 

of    a    resort    to    different    jurisdic-  is  a   commendable   one,   v.-ith   which 

tions    and    multiplicity    of    actions,  the     statute     making    actions     like 

in    order    to    obtain    the    full    and  that   under    consideration,    civil   ae- 

final    relief    to    Mhich    parties    may  tions.  and  giving  the  Probate  Court 

be  entitled,  and  in  favor  of  clothing  co-ordinate     jurisdiction    with     the 

tribunals  once  acquiring  control  of  Court  of  Common  Pleas,  is  in  har- 

the  subject-matter   of   a    controver-  mony.     Doan  vs.   Bitely.   49   O.   & 

sy,  and  of  the  parties,   with   juris-  594. 


25  INJUNCTIONS  §  25 

therefore  follows  that  the  earlier  decisions  of  the  Supreme 
Court  are  not  of  much  value  for  the  purpose  of  assisting  one 
in  arriving  at  the  jurisdiction  of  the  court  today.  The  legis- 
lative mind,  having  become  convinced  that  these  courts  are  able 
to  deal  with  complicated  affairs,  it  is  easy  to  construe  an  act  of 
the  legislature  in  accordance  with  such  views,  and  hold  that  as 
to  the  matter  conferred  on  the  Probate  Court  it  has  full  and 
complete  jurisdiction.  It  must  not  be  forgotten,  however,  that 
the  Probate  Court  is  strictly  one  of  statutory  power,  except  as 
to  matters  specified  in  the  constitution,  and  if  he  statute  giving 
jurisdiction  does  not  contain  such  power,  expressly  or  impliedly, 
then  it  could  not  be  exercised.^^ 


§  25.     Power  to  grant  injunctions. 

A  further  evidence  of  this  growth  of  power  in  the  Probate 
Court  is  that  relating  to  injunctions.  In  the  Code  of  Pro- 
cedure adopted  immediately  after  the  constitution  of  1851  by 
section  239,  autliority  was  given  to  the  Probate  Court  to  grant  a 
temporary  injunction  in  an  action  pending  in  the  Court  of  Com- 
mon Pleas  when  the  judges  of  such  courts  were  absent.  But 
no  authority  was  given  to  the  probate  judge  to  grant  an  injunc- 
tion in  a  cause  pending  in  his  own  court.  The  law  remained  in 
that  condition  until  1885,  when  original  section  239  having  be- 
come sections  11827,  11878,  11879,  G.  C,  was  so  changed  as  to 
allow  the  Probate  Court  to  grant  an  injunction  at  the  time  of 
commencing  the  action  or  at  any  time  thereafter  in  causes  pend- 
ing therein  just  in  the  same  manner  as  judges  of  the  Common 
Pleas.  So  at  present,  if  an  action  is  pending  in  the  Probate 
Court  over  which  the  court  has  proper  jurisdiction  and  it  is 
proper  and  necessary  that  an   injunction   be   granted   therein, 

15  As    was    said    bj^    Judge    Sum-  are    to   be   measured   by    the   statu- 

mers  in  Jones  vs.  Green,  21   C.  C.  tory  grant  alone."    (Woerner,  §  392, 

101:     The  reason  is  not  that  Pro-  Doan    vs.    Bitely,    49    0.    S.    588; 

bate  Courts  have  not  the  power  to  Clapp    vs.    Banking    Co.,    50    0.    S. 

grant    equitable    relief,    for    "while  528),  but  the  reason   is  that  juris- 

they    possess    no    original    chancery  diction    of    the    subject-matter    has 

powers,  yet  within  the  scope  of  the  not  been  conferred, 

jurisdiction     conferred    upon     them  See  §  209,  Eevocation  of  letters, 

their    powers    are    not    confined    to  In    re   Geo.    H.    Miller's    Est.,    12 

either  legal  or  equitable  rules,  but  Dec.  562. 


§  26  JURISDICTION  26 

the  Probate  Court  has  full  and  ample  power  to  make  such 
order.  The  question  as  to  the  right  to  make  the  order  would 
depend  upon  the  fact  whether  or  not  the  court  had  jurisdic- 
tion of  the  action  pending  therein.  Where  the  Probate  Court 
grants  a  temporary  restraining  order  in  an  action  pending  in 
another  court  the  Probate  Judge  for  the  time  being  is  merely- 
authorized  to  act  for  such  action  as  a  judge  of  the  other  court. 
It  is  not  an  official  act  in  the  Probate  Court,  and  therefore  no 
original  entry  need  be  made  in  the  Probate  Court  of  such 
action.'"  The  laAV  authorizing  the  Proba'te  Judge  so  to  act  is 
constitutional.'^ 


§  26.     Power  to  appoint  receivers. 

In  two  particular  instances  is  the  power  to  appoint  receivers 
by  the  Probate  Court  in  matters  pending  therein  specifically 
provided  for  by  statute,  to-wit :  Where  a  partner  dies  and  there 
is  an  application  made,  and  the  partnership  assets  are  appraised 
and  the  surviving  partner  refuses  to  take  them,  the  Probate 
Court  is  a  court  of  competent  jurisdiction  for  the  appointment 
of  a  receiver  for  such  partnership  to  wind  up  and  dispose  of  the 
assets  in  accordance  with  the  law  providing  for  receivership  gen- 
erally.^® This  power  was  not  conferred  by  law  until  1890.^* 
The  other  case  in  which  specific  power  is  granted  is  under  the 
statute  in  proceedings  in  aid  of  execution.'" 

The  general  act  providing  for  the  appointment  of  receivers 
did  not  confer  power  on  the  Probate  Judge  to  appoint  receivers 
for  causes  pending  in  its  own  court  prior  to  the  amendment  of 
section  5587  in  1885.^^     The  statutes  formerly  only  gave  to  the 

16  The  Probate  Court  could  prob-  plaintiff  must  file  an  affidavit  that 

ably  not  punish  bj'  contempt  a  re-  the  Common  Pleas  or  Circuit  Judge 

fusal  to  obey  an  injunction  by  him  is  absent, 

granted    in    an    action    pending    in  is  §  SOOI,  G.   C,   §  427. 

Common  Pleas.     Such  matter  would  i^  Ohio   Laws,  vol.   87,   p.   98. 

properly    come    before    a    Common  20  §  11782,   G.    C,    §  1942. 

Pleas  Judge,  etc.  21  Ohio     Laws,     vol.     82,     p.     35. 

iTPhelon  vs.  Ry.  Co.,  5  C.  C.  §11894,  G.  C. 
545;  3  C.  D.  267.  The  General  Code  grants  to  Pro- 
Some  Probate  Judges  make  an  bate  Courts  the  same  right  to  grant 
entry  in  their  own  journal  so  as  injunctions  in  actions  pending  be- 
to  keep  a  record  in  their  own  office  fore  it  as  is  granted  to  judges  of 
of  tlieir  official  acts.  other  courts.  §  11877,  G.  C. 
The     statute    requires    that    the 


27  EXCLUSIVE     JURISDICTION  §  27 

Probate  Court  power  to  appoint  receivers  for  actions  pending 
in  the  Court  of  Common  Pleas  when  tlie  judges  of  such  court 
were  absent.^^ 

As  the  law  now  stands  the  Probate  Court  has  the  same  power 
to  appoint  receivers  for  actions  pending  in  its  own  court  as  the 
Common  Pleas  has  for  actions  pending  in  its  court.  Some  diffi- 
culty may  arise  in  the  application  of  the  law  of  receivership  to 
many  matters  coming  within  the  jurisdiction  of  the  Probate 
Court.  But  whether  or  not  a  receiver  can  be  appointed  must 
rest  upon  the  fact  whether  the  reason  of  such  desired  appoint- 
ment comes  within  one  of  the  clauses  set  out  in  section  11894 
G.  C.  There  is  a  general  clause  providing  that  receivers  may  be 
appointed  in  all  other  cases  where  they  have  been  heretofore  ap- 
pointed by  the  usages  of  equity.  It  would  therefore  seem,  that 
without  the  specific  authority  of  a  statutory  provision,  that  the 
Probate  Court  could  not  appoint  a  receiver  in  matters  which 
might  be  strictly  termed  probate  matters,  sucli  as  might  arise 
ex  parte  in  the  administration  of  an  estate  or  the  guardianship 
of  a  ward,  the  probating  of  a  will,  settling  of  accounts,  etc. 
The  pending  of  an  administration  of  an  estate  in  a  Probate 
Court  is  not  what  might  be  tenned  a  pending  action  therein." 

§  27.  Exclusive  jurisdiction.  ' '  Except  as  hereinafter  pro- 
vided, the  probate  court  shall  have  exclusive  jurisdiction : 

"1.  To  take  the  proof  of  wills,  and  to  admit  to  record  au- 
thenticated copies  of  wills  executed,  proved,  and  allowed  in  the 
courts  of  any  other  state,  territory,  or  country.  In  case  of  the 
sickness  or  unavoidable  absence  of  the  probate  judge,  any 
common  pleas  judge  may  take  proof  of  wills  and  approve 
bonds  to  be  given,  but  the  record  of  such  acts  must  be  pre- 
served in  the  usual  records  of  the  probate  court ; 

"2.  To  grant  and  revoke  letters  testamentary  and  of  ad- 
ministration ; 

"3.  To  direct  and  control  the  conduct,  and  settle  the  ac- 
counts of  executors  and  administrators,  and  order  the  dis- 
tribution of  estates; 

22  Ohio  Laws,  vol.  51,  p.  97.  appears    to    be    necessary    to    make 

23  The  appointment  of  a  receiver  such  appointment,  in  order  to  pre- 
is  merely  a  provisional  remedy  an-  serve  the  property  during  the  liti- 
cillary  and  auxiliary  to  the  main  gation  so  that  the  relief  awarded 
action,  and  can  only  be  made  in  an  by  the  final  judgment,  if  any,  may 
action  brought  to  obtain  some  other  be  effective.  Ry.  Co.  vs.  Duck- 
equitable  relief  where  the  court  has  worth,  2  C.  C.  518;  1  C.  D.  318. 
the    right   to    grant,    and    where   it  See  Special  Administration,  §  128. 


§27 


JURISDICTION 


28 


"4.  To  appoint  and  remove  guardians,  direct  and  control 
their  conduct,  and  settle  their  accounts ; 

"5.  To  grant  marriage  licenses,  and  licenses  to  ministers  of 
•the  gospel  to  solemnize  marriages ; 

"6.  To  make  inquests  respecting  lunatics,  insane  persons, 
idiots,  and  deaf  and  dumb  persons,  subject  by  law  to  guardian- 
ship; 

"7.  To  make  inquests  of  the  amount  of  compensation  to  be 
made  to  the  owners  of  real  estate  when  appropriated  by  any 
corporation  legally  authorized  to  make  such  appropriation ; 

"8.     To  try  contests  of  the  election  of  justices  of  the  peace; 

*'9.  To  qualify  assignees  and  appoint  and  qualify  trustees 
and  commissioners  of  insolvent  debtors,  control  their  conduct 
and  settle  their  accounts."     [R.  S.  §  524.]-* 


24  §  10492  G.  C. 

The  Probate  Court  has  full  juris- 
diction to  adjudicate  all  questions 
properly  before  it.  Wilberding  vs. 
Miller,  90  0.  S.  28. 

This  section  does  not  confer  juris- 
diction upon  the  Probate  Court  to 
supervise  and  control  a  testa- 
mentary trustee  in  the  administra- 
tion of  a  trust,  when.  Pike  vs. 
White,  22  C.  C.   (N.S.)    61. 

The  court  must  appoint  a  testa- 
mentarv  trustee  before  it  can  act. 
Herrislile  vs.  Flack,  3  0.  App.  444; 
23  C.  C.    (N.S.)   447. 

Jurisdiction  is  the  power  to  hear 
and      determine.  Sprankle      vs. 

Sprankle,  22  C.  C.    (X.S.)   480;   aflf. 
78  O.  S.  404. 

It  is  worthy  of  note  that  the 
above  section  has  remained  the  same 
since  1854,  with  the  exception  that 
clause  nine  was  added  by  the  codi- 
fiers  in  1880,  thereby  giving  to  the 
Probate  Court,  exchisive  jurisdic- 
tion in  assignment  matters.  It  is 
further  to  be  noted,  that  the  above 
section  is  a  general  provision  which 
applies  to  the  matters  relating 
therein  in  other  provisions  of  the 
General  Code.  Clause  one  beinc:  ap- 
plicable to  §§  10213  to  10603  G.  C; 
clause  two,  S§  10604  to  10636  G.  C; 
clause  three,  §§  10637  G.  C.  and 
following:  clause  four  to  §§  lOni.^ 
to  11037  G.  C:  clause  five.  §§11187 
to  11198  G.  C;  clause  six  to  §§  19.53 
to  1977  G.  C:  clause  seven,  §§  11038 
to  11001  G.  C;  clause  eight.  §§  o762 
to  5768  G.  C;  clause  nine,  §§  11092 
to  11180  G.  C. 

Under  this  section  it  is  held  that 
the  Probate  Court  has  jurisdiction 
to  order  an  administrator  to  receive 
payment,  of  an  unmatured  note. 
Denmead  vs.   Sharp,   14  Dec.  301. 


The  Probate  Court  has  no  author- 
ity to  direct  an  administrator  or 
executor  to  purchase  a  monument 
under  this  section.  In  re  Ferguson, 
6  N.  P.  (X.S.)  417;  18  Dec.  374. 
Affirmed  by  Supreme  Court. 

In  a  case  reported  in  49  Bull.  103, 
jurisdiction  was  exercised  on  appli- 
cation of  the  administrator  to  direct 
him  w^hat  he  should  do — to  deter- 
mine whether  he  should  carry  out  a 
contract  of  the  deceased  or  not.  The 
Probate  Court  has  no  power  to  di- 
rect an  administrator  to  allow  a 
claim  against  the  estate. 

It  is  well  settled  that  even  in 
matters  in  which  the  Probate  Court 
has  exclusive  jurisdiction,  that  if 
for  some  reason  the  Probate  Court 
has  no  power  to  pass  upon  a  cer- 
tain question  and  the  jurisdiction 
in  some  way  is  defective,  the  Com- 
mon Pleas  Court  still  retains  juris- 
diction. Thus  in  a  recent  case  in 
the  Supreme  Court.  Robinson  vs. 
Williams.  62  O.  S.  401.  where  a 
man  had  given  a  mortgage  and  then 
platted  the  ground  upon  wliich  tlie 
mortgage  was  given,  laid  out 
streets,  etc.,  without  any  release 
therefrom  of  the  person  holding  the 
mortgage  and  then  the  party  made 
an  assignment,  it  was  held  that  a 
foreclosure  of  the  mortgage  niiglit 
be  maintained  in  the  Court  of  Com- 
mon Pleas,  although  the  Probate 
Coiirt  had  exclusive  jurisdiction  of 
assignment  matters. 

By  the  constitution  it  is  made  a 
court  of  record,  and  it  is  declared 
that  it  shall  have  jurisdiction  in 
probate  and  testamentary  matters, 
the  appointment  of  administrators 
and  guardians,  and  the  settlement 
of  accounts  of  executors,  adminis- 
trators   and    guardians.      Constitu- 


29 


CONCURRENT    JURISDICTION 


28 


§28.  Concurrent  jurisdiction.  "The  probate  court  shall 
have  concurrent  jurisdiction : 

"1.  In  the  sale  of  lands  on  petition  by  executors,  adminis- 
trators, and  guardians,  and  the  assignment  of  dower  in  such 
cases  of  sale ; 

"2.  In  the  completion  of  real  contracts  on  petition  of  execu- 
tors and  administrators ; 

"3.  In  allowing  and  issuing  writs  of  habeas  corpus,  and  de- 
termining the  validity  of  the  caption  and  detention  of  the  per- 
sons brought  before  it  on  such  writs."     [R.  S.  §  525.]^^ 

It  is  a  well  settled  principle  of  law  that  where  courts  have 
concurrent  jurisdiction  that  that  court  which  first  obtains  juris- 
diction will  retain  it  to  the  exclusion  of  every  other  court."' 
Especially  is  this  true  where  the  remedies  afforded  by  each  are 
equal.  If  the  remedy  and  powers  of  the  courts  were  unequal 
then  it  might  be  said  that  that  court  would  retain  jurisdiction 
which  could  grant  to  all  parties  the  most  complete  remedy. ^^ 

An  action  or  proceeding  is  begun  in  a  certain  court  and  the 
jurisdiction  in  that  court  attaches  at  the  time  that  summons  is 


tion,  Art.  4,  §§  7  and  8.  Prima 
facie,  then,  whatever  is  done  by  the 
Probate  Court  in  these  matters  is 
done  by  the  proper  authority  or 
tribunal.  Following  the  provisions 
of  the  constitution,  the  general  as- 
sembly has  provided,  §  10492,  G.  C, 
that  the  Probate  Court  shall  have 
exclusive  jurisdiction  to  take  the 
proof  of  wills,  and  to  admit  to 
record  authenticated  copies  of  wills 
executed,  proved  and  allowed  in 
the  courts  of  any  other  State,  terri- 
tory or  country;  to  grant  and  re- 
voke testamentary  and  of  adminis- 
tration ;  and  to  direct  and  control 
the  conduct  and  to  settle  the  ac- 
counts of  executors  and  administra- 
tors, and  to  order  the  distribution 
of  estates.  These  statutory  pro- 
visions do  not  and  cannot  limit  or 
enlarge  the  jurisdiction  of  the  Pro- 
bate Court  in  the  matters  mention- 
ed. Whatever  is  done,  therefore, 
by  the  Probate  Court  in  the  mat- 
ters of  probate  of  wills,  appoint- 
ment of  executors  and  administra- 
tors  and   directing   and   controlling 


the  accounting  of  such  executors 
and  administrators  is  presumptive- 
ly within  the  jurisdiction  of  the 
court.  Hoffman  vs.  Fleming,  47 
Bull.  430. 

25  §  10493  G.  C. 

Where  courts  have  concurrent 
jurisdiction,  the  one  first  acquiring 
jurisdiction  will  retain  the  same. 
If  the  relief  is  different  each  may 
retain,  and  the  court  first  determin- 
ing the  question  common  to  both  is 
conclusive  on  the  other.  D.  U.  R.  R. 
PS.  D.  M.  Traction  Co.,  1  N.  P. 
(N.S.)  296;  14  Dec.  143.  Affirmed 
by  Circuit  Court,  4  C.  C.  (N.S.) 
329.  Affirmed  by  Supreme  Court, 
72   0.  S.   429,  644,  645. 

25  §  10493,  G.   C.  J 

26  Keating  vs.  Spink,  3  O.  S.  105 ; 
State  vs.  Railroad,  35  0.  S.  154. 

27  In  a  case  in  the  Probate  Court 
of  Clark  county  (Bateman  vs.  Mor- 
ris, 4  N.  P.  397 ;  7  Dec.  287 )  in  which 
the  administrator  brought  a  suit 
to  sell  the  lands  of  a  deceased  per- 
son after  a  suit  had  been  brought 
in  the  Court  of  Common  Pleas  to 
foreclose  a  mortgage   on  the  land, 


§29 


JURISDICTION 


30 


issued,  or  as  has  been  said,  at  the  time  the  right  to  begin  the 
inquiry  commences.^* 

§  29.  Jurisdiction  exclusive  of  that  of  any  other  probate 
court.  "The  jurisdiction  acquired  by  a  probate  court  over  a 
matter  or  proceeding  is  exclusive  of  that  of  any  other  probate 
court,    except    when    otherwise    provided    by    law."      [R.    S. 

§527.]-^ 

The  above  section  merely  puts  into  statute  form  the  rule  that 
applies  to  courts  of  concurrent  jurisdiction.  There  is  but  one 
case  in  Ohio  in  which  this  section  has  been  the  subject  of  a  re- 
ported decision.^"  In  this  case  there  was  an  application  for  let- 
ters of  administration  made  upon  the  estate  of  a  deceased  in 
Hamilton  County,  and  the  matter  was  submitted  to  the  Court, 
but  the  Court  refused  to  appoint  the  applicant  administrator. 
The  matter  then  went  over  until  some  eligible  person  should 


in  which  ccmmon  pleas  action,  the 
administrator  had  not  been  made  a 
party.  It  was  held  that  the  Pro- 
bate Court  would  retain  jurisdic- 
tion. The  reason  of  this  being, 
that  the  administrator  had  not 
been  made  a  party  and  that  as  it 
was  his  duty  to  pay  all  demands 
existing  against  the  estate  as  well 
as  the  right  of  the  heirs  to  insist 
that  the  personal  property  should 
first  be  applied  to  the  payment  of 
debts ;  and  therefore  the  adminis- 
trator was  a  necessary  party  in 
order  to  be  precluded  from  bring- 
ing an  action  himself  as  the  statute 
directs. 

It  seems  that  from  the  fact  that 
the  mortgage  is  merely  regarded  as 
security  for  the  debt,  that  before 
suit  could  be  brought  to  foreclose 
a  mortgage  the  debt  ought  to  be 
presented  to  the  administrator  just 
the  same  as  any  other  debt  against 
the  estate.  Some  have  gone  even 
so  far  as  to  insist  that  the  Probate 
Court  has  exclusive  jurisdiction  in 
the  administration  of  estates,  the 
same  as  in  assignment  cases,  but  in 
a  recent  case  in  the  Circuit  Court 
(Citizens    Sav.  Bank  vs.  Ide,  20  C. 


C.  665:  in  C.  D.  800),  this  was  ex- 
pressly denied  and  a  foreclosure  in 
the  Court  of  Common  Pleas  was  up- 
held wlicre  the  same  made  the  lieirs, 
administrator  and  all  other  lien 
holders  parties.  Public  policy,  if  no 
other  consideration,  requires  tliat  a 
construction  so  long  accepted  and  ac- 
quiesced in  should  not  be  disturbed. 

2S  Spinning  vs.  Life  Ins.  Co.,  2 
Dis.  336;  In  re  Wortliington.  4 
Dec.  381 ;  Bateman  vs.  Morris,  4  N. 
P.  3!)7;  7  Dec.  287. 

The  power  to  hear  and  determine 
a  cause  is  jurisdiction.  Sheldon  vs. 
Oren,  3  0.  S.  4!14. 

Some  of  the  Probate  Courts  have 
concurrent  jurisdiction  in  divorce 
and  partition  proceedings,  and  cer- 
tain criminal  actions. 

In  the  counties  of  Pickaway, 
Licking,  Richland,  Perry,  Defiance, 
Henry.  Fayette  and  Coshocton  Pro- 
bate 'Courts  have  concurrent  juris- 
diction in  divorce,  alimony,  parti- 
tion and  foreclosing  mortgages, 
§  10404  G.  C. 

29  §  1049S  G.  C. 

30  In  re  Worthington,  4  Dec.  381. 
It    is    not    special    legislation    to 

give  the  Probate  Court  jurisdiction 
in  cases  involving  the  question  of 
keepiner  saloons  open  on  Sunday. 
ObererN-s.  State,  28  0.  S.  620. 

Jurisdiction  not  lost  by  removal 
of  LMiardian  from  state.  Netting  vs. 
Strickland,  9  C.  D.  — ;  18  O.  C.  C. 
R.  136. 


31  APPELLATE   JURISDICTION  §  30 

1)6  presented  to  whom  the  court  might  grant  letters.  In  the 
meantime  application  was  made  by  another  party  to  the  Probate 
Judge  of  Lucas  County,  and  letters  of  administration  were 
granted  in  that  court.  In  a  very  thoroughly  considered  case 
Judge  Ferris  held  that  the  appointment  made  by  the  Lucas 
County  Court  was  void,  that  the  matter  was  exclusively  within 
the  jurisdiction  of  the  court  of  Hamilton  County,  and  that  the 
jurisdiction  attached  at  the  time  the  application  was  made. 

§30.     Appellate  jurisdiction. 

The  Probate  Court  has  jurisdiction  by  way  of  appeal  in  a 
number  of  matters  coming  from  inferior  boards,  etc.  Thus 
there  is  a  right  of  appeal  in  county  ditches,^^  township  ditches,^' 
drifts,^^  certain  pikes,^^  establishing  county  roads,^^  and  for 
material  for  improving  roads,^^  township  roads,^^  and  insolvent 
decedents'  estates.^^ 

These  matters  are  all  regulated  by  statute  and  where  not 
fully  considered  in  this  work  reference  must  be  had  to  the 
General  Code. 

§  31.    Jurisdiction  to  review  inferior  courts. 

The  Probate  Court  has  no  right  to  entertain  proceedings  in 
review  of  inferior  tribunals  by  way  of  a  bill  of  exceptions,  etc., 
but  under  and  'by  way  of  appeal  in  various  matters  mentioned  in 
the  preceding  section  the  court  has  power  to  review  the  action  of 
various  boards  and  inferior  tribunals,  and  if  erroneous  set  aside 
the  proceeding,  and  in  some  instances  when  the  proceedings  of 
the  inferior  tribunals  have  been  found  to  be  faulty  they  are 
set  aside  and  the  court  hears  the  matter  de  novo. 

§  32.  Shall  have  same  powers,  and  observe  rules  of  common 
pleas  so  far  as  applicable.  "In  the  exerci'fee  of  jurisdiction  the 
probate  judge  shall  have  the  powers,  perform  the  duties,  and 
be  governed  by  the  rules  and  regulations  provided  by  law  for 
the  courts  of  common  pleas  and  the  judges  thereof  in  vacation, 
so  far  as  they  are  consistent  with  laws  in  force."  [R.  S. 
§  537.]  ^° 

31  §  6460  a.  C,  §  1833.  37  §  7373  G.  C. 

32  §  6625  G.  C,  §  1857.  38  §§  7075-6  G.  C,  §  1805. 

33  §  6746  G.  C,  §  2000.  39  §  10890  G.  C. 

35  8§  654-5  G.  C.,  §  2004.  40  §  10499  G.  0. 

36  §  7062  G.  C.,  §  1785. 


§33 


JURISDICTION 


32 


The  matter  of  jurisdiction  as  applicable  to  individual 
branches  of  the  jurisdiction  of  the  Probate  Court  will  be  con- 
sidered when  treating  of  such  branches  in  future  chapters  in 
this  work  and  reference  must  be  had  to  such  places  for  further 
discussion  of  the  jurisdiction  of  the  Probate  Court.*^ 

§  33.  Action  in  common  pleas  asking  direction  of  court  re- 
specting estate,  who  may  bring.  ' '  An  executor,  administrator, 
guardian,  or  other  trustee,  may  maintain  an  action  in  the  court 
of  common  pleas  against  the  creditors,  legatees,  distributees,  or 
other  parties,  asking  the  direction  or  judgment  of  the  court  in 
any  matter  respecting  the  trust,  estate  or  property  to  be  ad- 
ministered, and  the  rights  of  the  parties  in  interest,  in  the 
manner,  and  as  fullv,  as  formerly  was  entertained  in  courts  of 
equity."     [R.  S.  §6202.]-'- 

§  33a.  When  suit  by  creditor.  "After  being  requested  in 
writing  by  a  creditor,  legatee,  distributee,  or  other  party  in 
interest,  to  bring  such  action,  if  an  executor,  administrator, 
guardian,  or  other  trustee  fails  for  thirty  days  so  to  do,  the 
creditor,  legatee,  distributee,  or  other  party  making  such  re- 
quest, may  institute  the  suit."     [R.  S.  §  6202. j*^* 


■11  As  to  grantinj?  letters  testa- 
montarv,  see  Chapt.  5.  §72:  Ancil- 
lary letters.  Chapt.  11.  §172;  Re- 
vocation of  letters,  Chapt.  14, 
§209:  New  bond.  Chapt.  IG.  §24.3: 
.<?uit  on  bonds,  Chapt.  17,  §  2fil ; 
Sale  of  desperate  claims,  Chapt.  26, 
§4.57;  Claims  unpaid  at  settle- 
ment. Chapt.  .34.  §.'586;  Arbitration 
of  claims.  Chapt.  .35,  §.50,5:  Pay- 
ment of  lesracios,  Chapt.  40.  §60.5; 
AccoiintinjT.  Cliapt.  41,  §704;  Dis- 
tribution of  assets,  Chapt.  43. 
§762;  Proceeding's  to  sell  real  es- 
tate. Chapt.  46.  §813;  Assiarnment 
of  dower,  Chapt.  .51,  §0.57;  Custody 
of  wills.  Chapt.  .57.  §'1067:  Pro- 
bate of  wills.  Chapt.  .58.  §1086; 
Testamentary  trustees,  Chapt.  67, 
§12.53;  Trustees  for  non-residents, 
Chapt.  68,  §1276;  Appointment  of 
puardians  of  minors.  Chapt.  71, 
§1310;  Cuardians  duties  enforced. 
Chapt.  74,  §1363,  et  sea.:  Sale  of 
guardians  real  estate.  Chapt.  76, 
§  1406;  Mort"-ao-e  of  wards'  lands. 
Chapt.  70,  §1460:  Ouardinn's  ac- 
count, Chapt.  81,  §  148.5.  and  Ouar- 
dians  of  lunatics,  etc..  Chant.  82, 
§  1.502;  Concealed  assets,  Chapt. 
22.  §  307;  Assignments,  §§  1542  and 
15.52. 


42  §  10857  O.  C. 

A  court  of  equity  only  can  enforce 
a  trust.  Guion  vs.  Guion,  4  Rec. 
476. 

A  will  may  be  construed  in  a  suit 
in  partition  and  accounting.  Pantz 
vs.  Po'or.  14  C.  C.  (N.S.)  218;  24 
C.   C.   201. 

One  who  has  no  trust  to  ad- 
minister can  not  maintain  action. 
TfK 

T''^nder  this  provision  an  executor 
mav  ask  the  court  to  determine 
whether  a  certain  sum  of  money 
paid  was  a  gift  or  ad^'ancement 
Ferris  vs.  Goodin.  10  C.  C.  (N.S.) 
477:    36   C.   C.   110. 

The  Probate  Court  has  no  iurisdie- 
tion  to  control  a  testamentary  trust, 
etc.  Pike  vs.  White.  22  C.  C  (N.S.) 
61. 

See  other  recent  cases.  ^fcKelvv 
vs.  McKelw.  14  C.  C.  (X.S.)  331, 
33  C.  C.  117:  Moores  vs.  Guinn.  1.5 
C.  C.   (y.S.)   31:  33  C.  C.  406. 

Incompetent  as  witnesses.  "Nriller 
vs.  ^m^er.  1.5  C.  C.  (N.S.)  481;  34 
C.  C.  43. 

Where  can  not  be  brought.  > 

16  C.  C.    (KS.)   .544. 

42*  §  108.58  G.  C. 


33  COMMENTS  §  34 

§  34.     Comments. 

It  was  a  common  practice  of  Chancery  Courts  for  trustees  to 
come  into  that  court  and  receive  instruction  upon  their  rights 
in  the  management  of  a  trust.  The  above  statute  is  a  recogni- 
tion of  this  rule.  Before  the  Court  will  give  relief,  however,  it 
must  be  shown  that  there  is  a  trust  involved.*^ 

The  Court  would  not  construe  a  will  under  the  above  section 
for  the  mere  fact  of  giving  an  opinion  of  the  Court  as  to  its 
effect  upon  certain  after-acquired  property.** 

The  person  invoking  the  jurisdiction  of  the  Court  must  show 
that  he  is  an  interested  party  and  that  he  invokes  the  Court  for 
his  ovim  safety  and  that  there  is  some  need  for  action  of  the 
Court.  Thus  where  an  executor  filed  a  petition  asking  whether 
or  not  he  should  erect  a  monument  and  did  not  state  that  there 
would  be  any  money  in  his  hands  or  coming  to  his  hands  which 
could  be  appropriated  for  that  purpose,  the  Court  refused  to  en- 
tertain jurisdiction.*^ 

Where  a  trust  is  created  for  the  benefit  of  one  body  or  society 
and  there  are  two  bodies  claiming  it,  the  executor  may  compel 
the  parties  claiming  the  fund  to  interplead  and  have  the  Court 
make  a  decision  thereof.*'' 

Generally  it  may  be  said  that  authority  is  granted  to  an  ex- 
ecutor to  maintain  a  civil  action  in  the  Court  of  Common  Pleas 
asking  the  direction  of  the  Court  in  any  matter  affecting  the 
trust  estate  or  property  to  b^.  administered  and  the  right  of  the 
parties  in  interest.*^ 

An  executor  may  bring  an  action  securing  direction  of  the 
Court  as  to  whether  a  legacy  is  payable  immediately  or  at  some 
future  time.*^ 

An  administrator  petitioning  for  the  sale  of  land  to  pay  debts 

43  Collins    vs.    Collins,    19    0.  S.           46  First     Presb.     See.     vs.     First 

468.  Presb.  Soc,  25  O.  S.  128. 

44Corry  vs.   Flemming,   29   O.  S.           4T  Merrick  vs.   Merrick,   37   O.   S. 

147;    Bowen    vs.    Bowen,    38    O.  S.       126. 

426.  48  Gordon  vs.   Groesbeck,  1  C.  C. 

45Rothgeb    vs.    Mauek,    35    O.  S.       320;    1  C  D.   176. 

503.      See   Chase   vs.    Isherwood,  1 
N.  P.  31 :  5  Dec.  1. 


§34 


JURISDICTION 


34 


may  have  a  construction  of  the  will  to  ascertain  to  whom  it  has 
given  the  title/^ 

A  guardian  may  bring  an  action  and  have  the  court  determine 
whether  a  certain  claim  shall  be  paid  or  not.°° 

It  has  recently  been  held  that  an  executor  or  administrator 
may  bring  an  action  under  the  above  section  to  have  the  Court 
pass  upon  the  question  whether  or  not  a  widow  of  a  deceased  is 
entitled  to  a  year's  allowance.^^ 

An  action  under  the  above  section  has  been  held  to  be  appeal- 
able/^' 


49  Farrar  vs.  Fallestine,  4  C.  C. 
235;  2  C.  D.  519. 

See  Hollister  vs.  Howe,  4  N.  P. 
168;  6  Dec.  157,  where  it  is  said 
an  administrator  or  trustee  under 
the  will  can  maintain  a  suit  to  con- 
strue the  will  if  there  is  anything 
to  construe. 

sowing  vs.  Hibbert,  7  N.  P.  124; 
8  Dec.   65. 

This  might  also  be  done  in  Pro- 
bate Court,  §  1362,  §  1360,  §  1364. 

siMcCalla  vs.  MeCalla,  46  Bull. 
280. 

See  §  329,  when  appraisers  fail 
to  make  allowance. 

62  Swing  vs.  Townsend,  24  O.  S.  1. 


See  Whittakers  Forms  719,  for 
petition  to  construe  will. 

The  superior  excellence  of  a  court 
of  general  jurisdiction  like  our  Com- 
mon Pleas,  resides  in  the  fact  that 
whatever  the  case  may  be,  there 
will  not  in  general  be  a  failure  of 
justice  from  the  want  of  power  in 
the  Court  to  hear  and  determine. 
Its  jurisdiction  is  in  all  cases  easily 
determined.  It  possesses  all  the 
powers  of  a  court  of  justice  that 
are  not  expressly  denied  to  it,  or 
exclusively  given  to  some  other  tri- 
bunal, and  in  all  questions  of  doubt, 
jurisdiction  is  resolved  in  its  favor. 
Judgment  in  both  cases.  Robinson 
vs.  Williams,  62  0.  S.  410. 


36  JUDGE   TO   DETERMINE  QUESTIONS  §  35 


CHAPTER  III. 

GENERAL  PROVISIONS  OF  PRACTICE,  APPEAL,  ETC. 

§  35    Probate    judge    to    determine  §  43b  Rule  sls  to  party  appealing  in 

all  questions,  except,  etc.  fiduciary    capacity    in    any 

§  36     Code    of    civil    procedure    gov-  case. 

erns,    when.  §  44  When  bond  need  not  be  given. 

§  37     Notice  of  proceedings  in  Pro-  §  45  When  must  be  filed.    Written 

bate   Court,   how   given.  notice    of   appeal. 

§  38     Depositions   and   evidence.  §  46  To     whom     bond     should     be 

§  39     When   appeals   may   be   taken  made  payable. 

from      Probate      Court      to  §  47  Amount    of    penalty    of   bond. 

Court    of    Common    Pleas.  §  48  Form    of    appeal    bond. 

§  40     What   may  be   appealed.  §  40  Transcript — when   to   be   filed. 

§  41     Who  may  prosecute  appeal.  §  50  Party     interested     must     file 

§  42     Trial  on  appeal.  transcript. 

§  43     Bond  on  appeal,  when  not  re-  §  51  Proceedings  in  Common  Pleas 

quired.  — certifying   same   back. 

§  43a  Amount   of  bond.  §  52  Proceedings   in   error. 

§  53  Entries,   nunc  pro   tunc,   etc., 
power. 

§  35.    Probate  judge  to  determine  all  questions,  except,  etc. 

"All  questions,  except  those  arising^  in  criminal  actions  and 
proceedings,  nnless  otherwise  provided  by  law,  shall  be  deter- 
mined by  the  probate  judge,  unless,  in  his  discretion,  he  orders 
them  to  be  tried  by  a  jury,  or  referred,  as  provided  for  ref- 
erences in  the  court  of  common  pleas."     [R.  S.  §  6400.]  ^ 

This  section  has  been  quoted  -  as  showing  the  intention  of  the 
legislature  to  confer  upon  the  judge  of  the  Probate  Court  all 
power  that  is  necessary  to  be  exercised  in  the  proper  trial  of  a 
subject  matter  over  which  his  court  has  jurisdiction.  It  recog- 
nizes the  fact  that  in  a  proper  case  he  may  call  a  juiy  or  may 
refer  the  matter  to  a  master  in  the  same  manner  as  a  judge  of 
the  Court  of  Common  Pleas.  It  should  be  read  in  conjunction 
with  section  10499,^  which  likewise  confers  upon  the  Probate 
Judge  the  same  powers  and  the  same  duties  as  judges  of  the 

1  §  limn  G.  C.  Trial  by  referee,  §§  11475,  11486. 

See  summoning  jnrv,  §  11419  G.  C.  2  Doan  vs.  Bitely,  49  0.  S.  .596. 

Trial    by    jury,     §§11447,     11465  3  §  32. 

G.  C.  Consent   is    necessarv    to    refer   a 

Trial    by    court,    §§  11469,    11474  case.     In  re  Gorman,  2' N.  P.   (N.S.) 

G.  C.  667;  15  Dec.  204. 


§  36  PROVISIONS    OF    PRACTICE  36 

Court  of  Common  Pleas  exercise  in  vacation  so  far  as  the  same 
are  consistent.* 

§  36.  Code  of  civil  procedure  governs  when.  ' '  The  provi- 
sions of  law  governing  civil  proceedings  in  the  court  of  com- 
mon pleas,  so  far  as  applicable,  shall  govern  like  proceedings 
in  the  probate  court,  when  there  is  no  provision  on  the  subject 
in  this  title."     [R.  S.  §  6411.]5 

In  reference  to  procedure  in  the  Probate  Court,  Woerner 
says,"  "  Although  Probate  Courts  are  mostly,  if  not  universally, 
courts  of  record,  having  a  seal,  a  clerk  or  authority  to  act  as 
their  own  clerk,  and  executive  officers,  yet  their  procedure  is  gen- 
erally sununarj',  requiring  no  pleading  in  the  technical  sense, 
nor  adherence  to  artificial  rules  in  the  statement  of  the  cause 
of  action  or  defense.  An  intelligible  statement  of  an  existing 
substantial  right,  which  the  Court  has  jurisdiction  to  enforce,  is 
a  sufficient  allegation  of  all  matters  necessary  to  sustain  a  judg- 
ment; and  the  simple  appearance  of  the  defendant  usually  en- 
titles him  to  rebut  the  proof  offered  by  the  other  side,  or  prove 
any  matter  in  defense ;  save,  perhaps,  a  cause  of  action  constitut- 
ing a  set-off  or  counterclaim,  of  which  the  other  side  must  have 
sufficient  notice  to  enable  it  to  prepare  any  defense  it  may  have 
to  the  same.  The  practice  in  county  courts  is  purposely  so 
framed  that  parties  can  attend  to  their  own  business  in  ordinary 
matters,  and  the  decision  should  be  so  rendered  as  to  subserve 
the  ends  of  justice  according  to  the  evidence,  without  regard  to 
technical  precision  in  pleading." 

In  a  great  many  of  proceedings  in  the  Probate  Court  a 
metliod  of  procedure  is  outlined,  but  where  an  action  in  the  Pro- 
bate Court  is  of  a  like  character  of  one  for  which  the  Civil  Code 
provides,  then  the  provisions  of  the  Civil  Code  are  to  be  applied 


4  See    §11410.    as    to    summoning  trial   by   referee.     Kinkead's   Pract. 

jiirv.     Kinkead's  Pract.  251.  217. 

See  §§  11447  to  11465  as  to  trial  5  §  11212  O.  C. 

by  jury.     Kinkead's  Pract.  178,  338,  Tliis    means    in    like    proceedings. 

246.     '  :Mansfield  vs.  Cole.  16  X.  P.  200;  25 

See  S§  11460  to  11474  as  to  trial  Dec.  231. 

by  court.     Kinkead's  Pract.  206.  The  coiirt  mav  erant  a  new  trial. 

See  §§  1147.5  to  11486  G.  C.  as  to  etc.     Doan  vs.  Bit.lv.  40  O.  S.  588. 

6  Woerner  on  Admin.  330. 


37  NOTICE   OP    PROCEEDINGS  §  37 

SO  far  as  practicable ;  and  thus  where  an  action  is  such  that  a 
jury  is  required  to  determine  the  issues  between  the  parties, 
the  code  in  reference  to  the  calling  of  a  jury  and  the  sub- 
mission of  the  case  applies.'^ 

And  it  has  been  held  in  actions  triable  by  jury  where  the 
same  is  waived  by  the  parties  the  Court  may  be  required  to 
state  its  findings  as  provided  by  section  11470  of  the  General 
Code.« 

§  37.     Notice  of  proceedings  in  Probate  Court,  how  given. 

"When  notice  of  any  proceedings  in  a  probate  court  is  re- 
quired by  law,  or  deemed  necessary  by  the  judge,  and  the 
manner  of  giving  it  is  not  directed  hy  statute,  he  shall  order 
notice  to  be  given  to  all  persons  interested  therein,  in  such 
manner  and  for  such  length  of  time  as  he  deems  reasonable." 
[R.  S.  §6406.]« 

The  above  general  provision  is  to  supply  a  method  and  man- 
ner of  giving  notice  in  proceedings  in  the  Probate  Court  where 
the  statute  does  not  specifically  provide  the  kind  of  notice  that 
should  be  given ;  and,  where  the  statute  does  not  provide  the 
kind  of  notice  that  should  be  given,  by  virtue  of  the  above 
statutory  provision,  the  same  is  left  in  the  absolute  discretion  of 
the  Probate  Judge.  Where  the  statute  provides  how  the  notice 
shall  be  given,  then  it  becomes  a  jurisdictional  fact  that  such 
notice  be  given  in  the  manner  the  statute  directs,  and  where  a 
proceeding  is  brought  in  tlie  Probate  Court  to  which  the  Code 
of  Civil  Procedure  applies,  then  the  notice  should  be  given  in  the 
manner  the  code  provides.  The  proceedings  in  the  Probate 
Court  are  generally  ex  parte  and  in  rem,  but  even  before  the 
Court  can  receive  jurisdiction  of  a  proceeding  in  rem  it  is  neces- 

7  See  Ry.  Co.  vs.   O'Harra,  48  0.  process  upon  him  either  actually  or 

S.   343;    Doan  vs.    Bitely,   49    0.    S.  constructively,   and   this   right,   rec- 

_„„  ognized   at  common   law   is   secured 

bv   constitutions    and    judicial    deci- 

sKittredge   vs.    Miller,    12    C.    0.  sions.     22   A.   &   E.    Ency.    of   Law, 

128;   5  C.  D.  391.  title.  Service  of  Process. 

9  s  11205    G     C  When    a   guardian    removes    from 

T  '   .          r      1          i  ,        .     .   1       f  the  State,  notice  can   be  served  by 

It   IS  a   fundamental   principle  of  publication.    Netting  vs.  Strickland, 

justice  that  no  valid  proceedings  can  9  C.  D.  844;  18  0.  C.  C.  136. 

be  had  against  any  person  until  he  There  is  no  provision  of  law  giv- 

should    have   been    notified    of    such       S"  "°*'^*^.  *''  f  -"^^If"  i",^"?,^^^^ 
,.  ,  .  ,       State.     Gilbert  vs.  (filbert,  13  C.  C. 

proceedings    by    proper     service    of      29;  7  C.  D.  60. 


§  3Y  PEOVISIOKS  OF   PRACTICE  38 

sarj  that  notice  in  some  manner  be  given.  Thus  in  the  admin- 
istration of  estates  a  notice  is  given  by  proclamation  in  a  news- 
paper/" and  therefore  many  proceedings  may  afterwards  be  had 
in  the  management  of  an  estate  which  would  be  legal  without 
any  particular  notice.  So  it  has  been  held  that  in  reference  to 
guardianships  that  after  the  appointment  has  been  made  the 
court  has  jurisdiction  of  the  subject  matter  and  may  proceed 
without  further  notice.  But  the  Court  should  err,  if  err  at  all, 
upon  the  fundamental  principle  that  the  rights  of  no  one  in  any 
respect  whatever  should  be  adjudicated  upon  without  the  party 
having  had  his  day  in  court  and  the  opportunity  to  defend  if  he 
chooses.  In  all  matters  where  notice  is  required  the  safer  plan 
of  procedure  is  for  the  Court  to  make  a  finding  that  a  notice  has 
been  given  as  required  by  law  or  the  former  order  of  the  Court ; 
this  will  prevent  the  question  whether  or  not  a  notice  was  given, 
from  being  raised  collaterally.  The  mere  fact  that  the  stat- 
ute requires  notice  to  be  given  ^\^ll  not  of  itself  make  the  pro- 
ceedings an  adversary  one.^^  And  where  the  proceeding  is  in 
rem  and  the  statute  requires  a  notice  t-o  be  given,  it  has  been  held 
that  the  proceeding  is  not  void,  although  such  notice  is  not 
given.  ^" 

10  Chapt.  31,   §  543.  decree  iti  rem,  and  actually  invests 

11  Barr   vs.    Closterman,    3    C.    C.       the  executor  or  administrator  with 
445;  2  C.  D.  251.  the  character  which  it  declares  be- 

i2Denson  vs.  Cilley,  8  O.  S.  604.  longs    to    him."      (2    Smith's    Lead 

The  remedy  by  due  course  of  law  Cas.,   7th  Am.  ed.,    §   593).     Subse- 

guaranteed  by  section  16  of  the  Bill  quent  acts  in  the  administration  of 

of    Rights,    extends    to    all    the   ad-  the  estate,  done  by  or  under  direc- 

versary  rights   of  persons  in   prop-  tion  of  the  court,  are  steps  in  the 

erty,  and  requires  that  before  there  same  proceedings.     With  respect  to 

is   a   judicial    determination   affect-  some  of  these  acts,  provision  is  made 

ing    such    right    process    to    obtain  that  notice  shall  be  given, 
jurisdiction      of    the   person    claim-  While   obviously   many   acts   may 

ing   it   shall   be   issued   and   served,  be  performed  in  the  administration 

except  that  the  legislature  may  pro-  of  the  estate  without  notice    (as  in 

vide  for  a  substituted  or  construct-  Treasurer   of   Franklin  Co.   vs.   Mc- 

ive  service  to  be  made  when  actual  Elvain,    5    Ohio,    200).    others    can 

service  is   impracticable.     State  vs.  not   be   properly    performed    in    the 

Guilbert,  56  0.  S.  575.  absence    of    it,    though    the    statute 

"  A    grant   of   probate    or    of   ad-  be   silent.     Of   the  latter   class  are 

ministration  is  in  the  nature  of  a  proceedings     to    appoint     new    *p- 


39  DEPOSITIONS — APPEAIj  §  38 

§  38.  Depositions.  ' '  Depositions  taken  according  to  the 
provisions  of  law  to  be  used  on  the  trial  of  civil  cases,  may  be 
taken  and  used  on  the  trial  of  any  question  before  the  probate 
court,  where  such  testimony  is  proper."     [R,  S.  §  6404.]  ^^ 

The  same  rules  of  evidence  are  applied  in  actions  tried  in  the 
Probate  Court  as  are  applicable  to  causes  which  are  tried  in 
the  Court  of  Common  Pleas.  The  presumptions  of  law  and  the 
proof  necessary  to  establish  a  cause  of  action  are  alike  in  all 
courts. 

§  39.  When  appeals  may  be  taken  from  Probate  Court  to 
Court  of  Common  Pleas.  "Appeal  may  be  taken  to  the  com- 
mon pleas  court,  by  a  person  against  whom  it  is  made,  or 
whom  it  affects,  from  any  order,  decision,  or  judgment  of  the 
probate  court  in  settling  the  accounts  of  an  executor,  admin- 
istrator, guardian,  and  trustee,  or  of  assignees,  trustees  or  com- 
missioners of  insolvents;  from  an  order  removing  or  refusing 
to  remove  an  executor,  administrator,  guardian,  assignee, 
trustee  or  other  officer  appointed  by  the  probate  court;  or  in 
proceedings  for  the  sale  of  real  estate  to  pay  debts ;  or  to 
change  the  allowance  made  by  appraisers  of  an  estate  to  a 
widow,  minor  child  or  children,  for  a  year's  support;  or 
against  one  suspected  of  having  concealed,  embezzled  or  con- 
veyed away  the  property  of  dead  persons ;  or  in  cases  for  the 
completion  of  real  contracts,  or  in  the  administration  by  as- 
signees, trustees,  or  commissioners,  of  insolvent  estates ;  or  in 
proceedings  to  appoint  guardians  or  trustees  for  idiots,  luna- 
tics, imbeciles,  or  drunkards.  The  cause  so  appealed  shall  be 
tried,  heard,  and  decided  in  the  court  of  common  pleas  in  the 
same  manner  as  though  the  court  of  common  pleas  had  original 
jurisdiction  thereof."     [R.  S.  §6407.]  " 

praisers,    and    the   act   of   sucli   ap-  trator.     Eoger  vs.  Trumpler,  38  C. 

praisers   in   making  allowance  to  a  C.  187. 

widow  for  a  year's  support.     Heck  Also  from  an  order  appointing  a 

vs.  Heck,  34  O.  S.  369.  guardian    for    a     drunkard,     Clark 

13  §  11206,   G.   C.  Common  Pleas.     But  not  from  the 

An  appeal  from  the  Probate  Court  appointment    of    an    administrator, 

refusing  to  appoint  a  guardian  of  a  Luburg    a's.    Luburg,     13    O.    App. 

lunatic,    takes    up    the    wdiole    case,  (1920). 

and  if  the  Common  Pleas  Court  de-  Other  statutes   providing  for  ap- 

cides  there  is  need  for  a  guardian.  peal  are  as  follows:    Appropriation 

it  may  appoint  one.     Guardianship  by  municipal  corporation.     §§  3695- 

of  Oliver,  77  0.  S.  475.  3606;    Proceedings    to    enforce    dis- 

14  §  11206  G.  C.  tribution,     §10859     G.     C,     §785; 

See  Mansfield  vs.   Cole,   14  N.  P.  Insolvent    estates,     §  10890    G.     C, 

209  as  to  power  of  court  to  vacate  §  1004;    Inventories,    §  10640   G.   C, 

its  former  orders  and  what  consti-  §993;      Claim     of      executor,      etc., 

tutes  a  final  order  appealed  from.  §§  10729-,32   G.   C,   §641;    From  re- 

An  appeal  lies  from  on  order  of  fusal  to  probate  will,  §  10532  G.  C, 

the  Probate   Court  determining  the  §  1116;  From  order  settling  account 

validity  of  an   account  rendered  by  of  guardian,   §  10954  G.  C,   §  1493; 

an   attorney   employed   by   adminis-  In    contest    of    election    of    probate 

judge,  §  7252  G.  C. 


§  40  PKOVISIOXS   OF   PRACTICE  40 

§  40.     What  may  be  appealed. 

As  a  general  rule  it  may  be  said  that  actions  pending  in  the 
Court  of  Common  Pleas  which  are  triable  by  jury  are  not  ap- 
pealable, and  all  actions  which  are  not  triable  by  jury  are  ap- 
pealable. If  an  ordinary  issue  were  tried  in  the  Probate  Court 
which  by  the  rules  of  law  was  triable  by  jury,  such  a  question 
could  not  be  tried  on  appeal.  But  the  rule  applicable  to  issues 
pending  in  the  Probate  Court  rests  upon  the  fact  whether  or  not 
the  statute  gives  a  right  of  appeal.  For  without  a  statute  giv- 
ing such  right  there  is  no  appeal  from  any  action  in  the  Probate 
Court;  and  as  a  general  rule  no  appeal  can  be  taken  from  an 
interlocutory  order;  it  must  be  an  appeal  from  what  is  known 
as  a  final  judgment  or  decree,  that  is,  one  which  disposes  of  the 
whole  merits  of  the  case  and  leaves  nothing  further  for  the  con- 
sideration of  the  court.^^ 

It  is  further  held  that  the  appeal  must  not  be  from  such  order 
as  merely  affects  the  administration  of  the  trust  and  therefore 
the  approval  by  the  Probate  Court  of  the  election  of  an  assignef 
for  creditors  is  not  appealable.^* 

It  has  likewise  been  held  that  a  refusal  to  confirm  a  sale  was 
not  appealable.^^  But  it  has  been  held  that  a  confirmation  of 
private  sale  by  an  assignee  of  certain  stocks  is  appealable,^^ 
and  that  confirmation  of  private  sale  of  real  estate  is  also  ap- 
pealable.^^ In  another  case,  however,  it  was  held  that  a  mere 
confirmation  of  sale  which  does  not  define  and  determine  rights 
of  parties,  but  merely  confirms  acts  in  obedience  to  a  former 
order  is  not  appealable.^"     If  a  confirmation  also  contains  a 

15  Kelley    vs.    Stanberry,    13    Ohio  icBrigel    V3.    Starbuck,    34    0.    S. 

408;   Teaff  vs.  Hewitt,  1   0.  S.  511;  2S0. 

Evans  vs.  Dunn,  26  0.  S.  439.  i^AuItman    vs.    Seiberling.    31    0. 

An  appeal  from  the  judgment  of  a  S.  201. 

Probate  Court  to  the  Court  of  Com-  is  Schumacher    Assignment,    5    X. 

mon  Pleas,  does  not  vacate  or  annul  P.  145:   5  Dec.  386. 

the     judgment     appealed     from,     it  is  Browne   vs.   Wallace,   60    0.    S. 

merely  suspends  its  execution  during  177. 

the    pendency    of    such    appeal,    and  -  '  Norwood   Park  Co.  Assignment, 

error  may  be  prosecuted  at  the  same  4  X.  P.  240;  6  Doe.  341. 

time.    Jennings  vs.  Walker,  10  C.  C.  The  court  in  Browne  vs.  Wallace, 

(N.S.)    586;   86  0.   S.   100.  00  0.  S,   177,  seems  to  make  a  dis- 


41 


WHO    MAY    APPEAL 


41 


distribution,  then  it  is  certainly  appealable."^  It  is  generally 
held  that  the  decree  in  foreclosure  finding  the  amount  and  or- 
dering the  sale  is  a  final  and  appealable  order. ^^  It  has  been 
held  that  an  appeal  lies  from  a  refusal  by  the  court  of  insolvency 
to  administer  upon  property  declared  to  have  been  conveyed 
in  fraud  of  creditors,^^  and  also  that  an  appeal  lies  from  a 
final  order  in  a  proceeding  to  recover  concealed  assets.^* 

§  41.     Who  may  prosecute  appeal. 

The  statute  relating  to  appeals  in  the  Court  of  Common 
Pleas  provides  that  "  a  party  or  other  party  directly  affected 
by  a  judgment  may  appeal  therefrom."  ^°  The  question,  there- 
fore, whether  or  not  a  party  has  a  right  to  appeal  will  depend 
upon  a  number  of  circumstances.  If  he  has  any  substantial 
right  which  will  be  in  any  manner  affected  by  the  judgment 
then  he  has  a  right  to  appeal.  Thus  it  has  been  held  that  a 
judgment  ordering  the  cancellation  of  the  lease  of  a  railroad, 
executed  by  its  owner  to  another  company,  is  a  judgment  direct- 


tinction  between  a  private  sale  and 
a  public  sale. 

21  Center  Bid.  Assoc,  vs.  O'Con- 
nor, 8  Rec.  99 ;  Kelley  vs.  Stanberry, 
13  Ohio  408;  Spence  vs.  Basey,  34 
O.  S.  42. 

22  Baker  vs.  Lehman,  Wright  522. 

23  In  re  Schumacher,  5  N.  P.  387 ; 
6  Dec.  125. 

24  Harris  vs.  Westervelt,  15  C.  C. 
534 ;  8  C.  D.  367.  The  matter  as  to 
appeal  will  be  discussed  in  various 
future  sections.  As  to  revocation  of 
letters,  chapt.  14,  §  232;  As  to  ex- 
ceptions to  inventories,  chapt.  18, 
§  317;  As  to  widow  and  children's 
allowance,  chapt.  19,  340;  As  to  as- 
sets concealed  or  embezzled,  chapt. 
22,  §  413;  As  to  presentation  of 
claims  not  due,  chapt.  33,  §  583; 
As  to  claims  of  executor  or  adminis- 
trator, chapt.  38,  §  643;  As  to  ae- 
eountinj?,  chapt.  41,  §  747;  As  to 
distribution  of  assets,  chapt.  43,  § 


785 ;  As  to  sale  of  real  estate,  chapt. 
49,  §  906 ;  As  to  settlement  of  in- 
solvent estates,  chapt.  53,  §  1005; 
As  to  probate  of  wills,  chapt.  58, 
§  1116;  As  to  spoliated  wills,  chapt. 
60,  §  1153;  As  to  election  of  widow, 
chapt.  65,  §1229;  As  to  appoint- 
ment of  guardians,  chapt.  71,  §  1342; 
As  to  removal  of  guardians,  chapt. 
73,  §1359;  As  to  guardian's  sale 
of  real  estate,  chapt.  76,  §1431; 
As  to  guardian's  accounting,  chapt. 
81,  §  1495;  and  As  to  guardians  of 
lunatics,   etc.,  chapt.   82,   §  1515. 

See  §  1659. 

A  proceeding  brought  to  vacate 
a  judgment  under  §  11631  G.  C, 
rendered  in  a  proceeding  to  sell  real 
estate  is  not  appealable,  as  to  course 
to  pursue  in  such  cases,  see  Fox  vs. 
Bank.  25  Bull.  28;  Bank  vs.  Mullen, 
18  Dec.  637. 

25  §§  12224-5  G.  C. 

The  section  relating  to  the  Pro- 
bate Court  provides  an  appeal  may 
be  taken  "by  any  person  against 
whom  such  order,  decision,  or  decree 
shall  be  made,  or  who  may  be  inter- 
ested thereby." 

§  11206  G.  C,  §39,  see   §  1514. 


§  42  WHO    MAY    APPEAL  42 

\y  affecting  the  stockholder  and  that  such  stockholder  has  a 
right  to  appeal."^ 

The  securities  on  a  guardian's  bond  may  except  to  the  finding 
of  the  Probate  Court  and  appeal  the  same.^^  The  guardian  of 
drunkard  has  no  right  to  appeal  from  a  decision  of  the  Probatje 
Court,  terminating  the  guardianship,^^  nor  an  administrator.^'' 

§  42.     Trial  on  appeal. 

The  cause  so  appealed  shall  be  tried,  heard  and  decided  in  the 
Court  of  Common  Pleas  in  the  same  manner  as  though  the  said 
Court  of  Common  Pleas  had  original  jurisdiction.^^  From  the 
liberal  policy  of  allowing  amendments  it  is  generally  held  that 
the  Court  on  appeal  may  allow  such  amendments  as  justice  may 
require  and  new  parties  may  be  brought  in  and  their  rights 
effectually  adjudicated  upon.^^  The  application  for  amend- 
ment is  addressed  to  the  sound  discretion  of  the  Court,^^  but 
amendments  cannot  be  permitted  whidi  will  have  the  effect  of 
changing  tlie  cause  of  action,  that  is,  an  action  at  law  could 
not  be  changed  into  a  suit  in  equity.^*  In  such  trial  the  Court 
acts  de  novo  and  is  not  concerned  with  the  decision  of  the  Court 
below  as  to  whether  it  was  right  or  wrong.^* 

The  Court  may  go  into  the  question  whether  the  appellant 
has  such  an  interest  as  will  entitle  him  to  appeal, ^^  and  gener- 

26  Henry  vs.  Jeanes,  47  0.  S.  116;  si  §  1120G  G.  C. 

see  48  0.  S.  443.  But    the    parties   do    not    have   a 

27  Netting  vs.  Strickland,  18  C.  C.  right  to  a  jury  trial.  Shroyer  vs. 
144;  9  C.  D.  841.     A  party  may  ap-       Riclimond,   16  0.  S.  467. 

peal  a   case,   even  though   it  is  not  32  Grant  vs.  Ludlow,   8   O.   S.    1 ; 

necessary  that  he  be  made  a  party  Potter  vs.  Norwood,  21   C.   C.  461; 

(Bowlus  vs.   Shanabarger,   19  C.  C.  Bausch  vs.  McConnell,  13  C.  C.  640; 

137;    10  C.  D.   167),   provided  such  7  C.  D.  547. 

party  has  some  interest  in  the  mat-  sa  Brock   vs.    Bateman,    25    O.    S. 

ter.  609. 

See   Comb   vs.   Jefferson.    3   Mete.  3*  Nelson    %'s.    Kennedy.    2    C.    D. 

72;  Studebaker  vs.  Markley,  7  Ind.  671;  4  C.  C.  498. 

App.  368.  se  Bruster  vs.  Anderson,  1  C.  D. 

29  Unreported  case.  Clark  County.  268;  1  C.  C.  479. 

C.  C.  3' In  re  Dunham,  8  C.  C.  160;  4 

30  See   Martin    vs.    Dershiem.    46       C.  D.  329. 
Bull.  172.     See  §  1778. 


43  APPEAL    BOND,    ETC.  §  43 

ally  all  questions  as  to  whether  or  not  the  appeal  has  been 
perfected  according  to  law.  It  is  a  general  rule  that  but  one 
appeal  may  be  allowed,  that  is,  if  a  case  is  appealed  to  the 
Common  Pleas  Court,  it  cannot  be  further  appealed  to  the 
Circuit  Court.^^ 

§43.  Bond  on  appeal — when  not  required.  "A  person  desir- 
ing to  so  appeal  from  an  order,  decision,  or  decree  of  a  probate 
court,  within  twenty  days  after  it  is  made,  must  give  a  bond, 
executed  to  the  adverse  party,  with  one  or  more  sufficient 
sureties  to  be  approved  by  such  court,  and  conditioned  that 
the  party  appealing  will  abide  and  perform  the  order,  judg- 
ment, or  decree  in  the  case,  of  the  appellate  court,  and  pay 
all  moneys,  costs,  and  damages  required  of,  or  awarded  against 
him."     [R.  S.  §6408.]="' 

§  43a.  Amount  of  bond.  "When  the  order,  decision,  or  de- 
cree, from  which  an  appeal  is  taken,  directs  the  payment  of 
money,  the  bond  must  be  for  double  the  amount,  and  in  other 
cases,  for  such  sum  as  the  probate  court  prescribes."     [R.  S, 

§6408.]=^"* 

§  43b.  Rule  as  to  party  appealing  in  fiduciary  capacity  in 
any  case.  "When  an  appellant  from  an  order,  judgment,  or 
decree,  in  or  by  any  state  court  or  tribunal  is  a  party  in  a 
fiduciary  capacity  in  which  he  has  given  bond  in  Ohio  for 
the  faithful  discharge  of  his  duties,  appeals  in  the  interest  of 
his  trust,  upon  written  notice  to  the  court,  within  the  time 
limited  for  giving  bond,  of  intention  to  appeal,  it  shall  be 
allowed  without  bond."     [R.  S.  §  6408.]  =^"1 

§  44.    When  bond  need  not  be  given. 

When  the  person  appealing  from  a  judgment  or  order,  etc., 
is  a  party  in  a  fiduciary  capacity  in  which  he  has  given  bond 
within  the  State  and  appeals  in  interest  of  the  trust,  he  need 
not  give  the  bond.  It  will  be  observed  that  there  are  three  con- 
ditions necessary  in  order  that  an  appeal  may  be  taken  from 

38  Bauer  vs.  Lohr,  6  Bull.  754;  In  Written  notice  does  not  take  the 
re  Correy,  4  C.  C.  220;  2  C.  D.  510;  place  of  an  appeal  bond  unless  it 
Moore  vs.  Moore,  46  0.  S.  89.                   appears    that    its    appeal    is    taken 

39  §  11207  G.  C.  by  a  party  in  a  fiduciary  capacity, 
39*  §  11208  G.  C.  and  in  the  interest  of  the  trust.  Est. 
30t  §  11209  G.' C.  of  Arkenberg,  1  X.  P.  (X.S.)  9; 
When  one  of  two  executors,   who  13  Dec.  656. 

is    also    a    devisee    under    the    will,  Where    a    ^ardian     is    removed, 

appeals  from  a  decision  of  the  Pro-  and  he  apneals,  he  must  give  bond, 

bate    Court    upon    the    allowance    of  In  re  Wallace,  4  N.  P.    (N.S.)    449; 

the  claim  of  his  coexecutor,  he  must  17  Dec.  136;  78  O.  S.  417.    Affirmed, 

give    bond.      Downing    vs.    Downing,  The  statutory  right  of  appeal  un- 

3  C.  r".   (N.S.)   623;  23  0.  C.  C.  384.  der    §6417    R.  '  S.,    removing   an   ex- 


§45 


PROVISIONS  OF  PRACTICE. 


44 


the  judgment  of  the  Probate  Court  without  a  bond  being  given. 
First,  the  person  appealing  must  be  a  party  in  a  fiduciary  ca- 
pacity. What  is  meant  by  that  is,  that  he  must  be  acting  as  ex- 
ecutor, guardian,  administrator,  trustee,  assignee,  etc.  Sec- 
ond, the  appeal  must  be  in  the  interest  of  the  trust.  This  has 
been  held  to  mean  by  the  Supreme  Court,  that  if  the  party  ap- 
peals from  a  judgment  affecting  adversely  his  own  pecuniary 
interest  he  is  required  to  give  bond.'*" 

Thus  an  assignee  of  an  insolvent  estate  who  has  a  personal 
claim  against  the  estate  cannot  appeal  without  giving  bond  from 
a  judgment  against  him,*^  because  it  is  not  in  the  interest  of 
the  trust.^2 

The  words  "in  the  interest  of  the  trust"  mean  for  the  bene- 
fit of  the  trust.  It  must  appear  in  the  plaintiff's  bill  of  par- 
ticulars, that  he  acted  in  a  fiduciary  capacity.*^ 

The  third  condition  is,  that  the  person  appealing  must  have 
given  bond  within  the  State,  therefore  an  executor  residing  out 
of  the  State  and  never  having  given  bond  here  is  not  entitled 
to  appeal  without  bond.** 

§  45.     When  must  be  filed.     Written  notice  of  appeal. 

The  bond  must  be  given  within  twenty  days  after  tlie  order 
is  made.  This  time  is  computed  by  excluding  the  first  day  and 
including  the  last.*^ 


ecutor,  does  not  conflict  with  §  524, 
giving  the  Probate  Court  exclusive 
jurisdiction  to  grant  and  revoke  let- 
ters testamentary.  In  re  Sells  Est., 
5  N.  P.    (X.8.)    (>2!);    li)  Dec.  5G7. 

40  Collins  vs.  JMillen.  57  0.  S.  289. 
An    executor    in   a   joint   suit   can 

appeal  the  cause  as  well  for  himself 
as  to  his  codefendants  without  giv- 
ing security.  Emerick  vs.  Armstrong, 
1  0.  513;  Hance  vs.  Chappell,  20 
C.  C.  214;  11  C.  D.  130;  Thomas  vs. 
Moore,  52  0.  S.  200. 

It  does  not  include  public  ofiicials 
— State  vs.  Smilev,  14  C.  C.  GOO;  8 
C.  D.  117;  14  C.  C.  609;  8  C.  D.  117. 

41  Biddle  vs.  Phippes,  2  C.  C.  61; 
1    C.    D.   363. 

42  The  court  can  not  relieve  a 
partv  from  giving  bond,  etc.  Thomas 
vs.  Moore,  52  0.  S.  200.  Where  one 
of  two  executors^  who  is  also  a  lega- 
tee under  the  will,  is  dissatisfied 
with  the  finding  of  the  Probate 
'Court  upon  the  allowance  of  a  per- 
sonal claim  of  a  coexecutor,  he  nuist 
give  bond.  Downing  vs.  Downing, 
23  C.  C.  3S9. 

This  clause  "in  the  interest  of  the 
trust,"  seems  not  to  have  been  in 
the  former  statutes.  Collins  V3. 
Millen,    57    O.    S.    294. 

Where  the  court  terminates  the 
guardianship  of  a  drunkard,  and  the 


guardian  appeals  from  such  order, 
such  a])peal  is  not  in  tlie  interest 
of  the  trust,  and  he  must  give  bond. 
Unreported  case,  C.  C.  Clark  Co. 

43  Brown  vs.  Larkin,  10  C.  D.  829. 

It  applies  to  appeals  from  justices 
of  the  peace.  Thomas  vs.  Moore, 
52  0.  S.  200. 

Wiiether  an  appeal  is  prosecuted 
in  tlie  interest  of  the  trust  must  be 
determined  from  the  record  and  the 
original  papers  in  the  case,  author- 
ized to  be  used  by  §6400  R.  S.; 
if  any  presumjjtion  of  fact  arises  it 
is  that  the  administrator  is  bene- 
ficiallv  interested.  In  re  Est.  Ark- 
enberg,  1  X.  P.  (N.S.)  0;  13  Dec. 
656. 

The  presumption  is  that  when  an 
administrator  appeals,  if  there  is 
any,  is  that  he  is  beneficially  inter- 
ested, and  written  notice  must  be 
filed  within  thirty-one  days  after 
judgment  is  returned.  Fergus  vs. 
McClure,  12  C.  C.  (N.S.)  87;  31 
O.  C.   C.  207. 

4  4  Work  vs.  Massie,  6  Ohio  503; 
Denison  vs.  Talmage,  29  O.  S.   433. 

An  a]»ppal  by  a  guardian  from 
judgment  terminating  the  trust  is 
not  in  interest  of  tiie  trust  and  a 
bond  must  be  filed  within  twenty 
days.    In  re  Robinson,  18  N.  P.  286. 

45  Bushong  vs.  Graham,  4  C.  C. 
138;    2    C.    D.    464.      In    an    appeal 


45  APPEAL.  BONDS,   ETC.  §  46 

If  the  party  apppalinsr  is  not  roniiirod  to  ffive  a  bond,  then 
he  must  p-ive  a  written  notice  to  the  fonrt  of  his  intention  to 
anneal,  within  the  time  limited  for  giving  a  bond,  that  is  twenty 
days  from  the  time  the  order  was  made.  If  bond  is  given  this 
notice  of  intention  to  appeal  is  not  required.*^  Bnt  otherwise 
the  statute  must  be  strictly  complied  with,  and  therefore  al- 
though there  has  been  some  holding  to  the  contrary,*^  it  is  now 
settled  beyond  question  that  tl^  mere  fact  of  a  notice  given  in 
the  journal  entry  will  not  be  suflficient.*^  The  notice  must 
be  separately  given  in  writing  to  the  Court.^^ 

This  is  a  matter  of  importance  and  attorneys  have  been  mis- 
led by  the  fact  that  notice  of  appeal  taken  from  the  Court  of 
Common  Pleas  was  formerly  sufficient  if  incorporated  in  the 
journal  entry. 

§  46.     To  Whom  bond  should  be  made  payable. 

The  bond  must  be  executed  on  the  part  of  the  person  appeal- 
ing to  the  adverse  part3^^° 

While  this  is  the  language  of  the  statute,  yet  if  a  mistake  is 
made  it  may  be  corrected.  Thus  where,  by  a  mistake,  an  ap- 
peal bond,  attempted  to  be  given  in  a  case,  is  defective  in  not 
naming  the  obligees,  and  is  therefore  invalid,  this  would  not 
entitle  the  appellee  to  a  dismissal  of  the  appeal  as  against  a 
motion  by  the  appellant  for  leave,  to  file  an  amended  appeal 
bond.^^ 

In  another  case  it  was  said  that  the  provisions  of  the  statute 

from  a  final  judgment  of  a  justice  §  G408  R.  S.,  for  one  acting  in  a 
of  the  peace  where  the  tenth  day  oc-  fiduciary  capacity,  are  not  cumula- 
curred  on  Sunday,  it  was  lield  that  tive,  but  mutually  exclusive,  and 
it  would  be  iu  time  if  filed  on  Mon-  relate  to  separate  and  distinct  char- 
day,  the  eleventh  day.  acters  of  appeal. 

Meyer    vs.    Seinsheimer,    5    N.    P.  Where    an    administrator    has    an 

281;    7   Dec.  409.  individual    interest    in    the    appeal, 

It   dates   from    the   time    entry   is  written    notice    of    his    intention    to 

filed,    not    from    the    time    the    oral  appeal    is    not    required    by    §  6408 

opinion  is   made.      State   v.   Seward,  R.  S. 

Iti  C.  C.  443;   9  C.  D.   1G8.  Written  notice  of  an  intention  to 

46  Keck  vs.  Douglass,  6  C.  C.  649;  appeal  does  not  take  the  place  of  an 
3  C.  D.  629.  appeal  bond,  unless  it  appears  that 

47  Hirsh  vs.  Kilsheimer,  12  C.  C.  the  appeal  is  taken  by  a  party  in  a 
291;    5    C.    D.    514.  fiduciary    capacity,    in    the    interest 

48  Browne  vs.  Wallace,  16  C.  C.  and  for  the  benefit  of  the  trust 
124;  8  C.  D.  704.  alone,    /n  re  Est.  Arkenberg  (1903), 


49  Willis  vs.  Willis,  20  C.  C.  664 
10  C.  D.  798.  AIT.  57  0.  S.  668 
Brown   vs.   Wallace,   21    C.   C.   417 


1  N.  P.   (X.S.)   9;   13  Dec.  650. 

As  to  appeal  bonds  in  condemna- 
tion, see  48  Bull.  942. 


Affirmed  Sup.  Ct.,  47  Bull.   163.  so  §  n207-9  G.   C,   §43. 

The    two    methods    for    perfecting  si  Ireland    vs.    Ireland,    11    C.    C. 

an    appeal,    which    are    provided   by       565;    5    C.   D.    277. 


§  47  PROVISIONS    OF    PKACTICE  46 

relating  to  appeals,  appeal  bonds,  and  proceedings  thereunder 
to  perfect  an  appeal,  are  remedial  in  their  character,  and  must 
be  liberally  construed  so  as  not  to  defeat  the  remedy  on  un- 
substantial grounds.  In  furtherance  of  this  beneficial  purpose, 
by  provision  of  statute,  a  bond  that  is  insufficient  in  form  or 
amount  may  be  amended  or  an  additional  or  new  bond  given, 
etc." 

§  47.     Amount  of  penalty  of  bond. 

The  statute  says  that  when  the  order,  decision  or  decree  from 
which  the  appeal  is  taken  directs  the  payment  of  money,  then 
the  penalty  shall  be  in  double  tlie  amount  thereof  and  in  other 
cases  in  such  amount  as  shall  be  prescribed  by  the  Probate 
Court.  The  words  "  if  the  order,  judgment,  or  decree  direct  tlie 
pajTnent  of  money,"  can  and  should  be  restricted  to  orders 
against  a  party  to  the  case  as  an  individual,  as  distinguished 
from  an  order  as  to  tlie  division  of  an  existing  fund  controlled 
by  the  court  or  in  the  hands  of  an  official  depositary.  Suck 
an  order  is  not  one  for  the  payment  of  money,  because  not  di- 
rected to  the  personal  resources  nor  in  legal  contemplation  affect- 
ing the  finances  of  an  individual,  but  is  as  it  purports  to  be,  the 
allotment  of  a  fund  held  only  for  purpose  of  partition ;  and 
therefore  where  the  Probate  Court  made  an  order  of  distribu- 
tion, among  other  things,  awarded  to  one  A.  W.  $1,600.  An- 
other claimant,  not  paid  in  full  by  reason  of  the  allowance  of 
this  claim  appealed  from  this  item  and  the  Probate  Court  fixed 
his  appeal  bond  at  $250,  it  was  held  sufficient.^^ 

This  question  is  very  fully  gone  into  in  another  case,  and  it 
is  there  held  that  in  order  to  avoid  a  hardship,  which  might 
occur  where  the  party  appeals  who  has  an  interest  in  but  a  small 
part  of  the  fund,  tlie  Court  would  be  inclined  to  follow  the  last 

B2  Smith  vs.  Frenzer,  12  C.  C.  250;  unless  corrected  by  giving  a  new  or 

5  C.  D.  658;  Aff.  40  Bull.  303.  independent  bond.     White  ts.  More- 

A  bond  given  to  the  State  of  Ohio  lidge    7  C.  C.  348;  4  C.  D.  629. 

does   not    comply   with    the   statute  sa  Wrr/ierfeldt's    Appeal,     2     Dec. 

and  on  motion  such  an  appeal  ma  473;  2*?  Bull.  226. 
properly  be  dismissed  by  the  court. 


47  APPEAL   BONDS  S  48 

part  of  the  section,  and  the  bond  would  be  fixed  in  such  a  sum 
as  the  Court  might  think  proper.^* 

Where  the  Court  found  that  an  administrator  de  bonis  non 
was  indebted  to  the  estate  in  a  large  sum  of  money,  which  it 
ordered  him  to  pay  to  his  successor,  and  the  administrator  ap- 
pealed, it  was  held  that  the  bond  in  such  a  case  must  be  double 
the  sum  of  the  judgment.^^ 

In  an  assignment  case  where  there  were  various  controversies 
between  the  secured  and  unsecured  creditors,  the  Court  held 
that  the  bond  did  not  need  to  be  double  the  amount  of  the  matter 
passed  upon  by  the  Court,  but  in  such  a  sum  as  the  Court  might 
fix,  which  was  $250.'^ 

It  seems  therefore  that  the  Court  will  not,  unless  strictly 
coming  within  the  law,  require  the  bond  to  be  in  double  the 
amount. 

§  48.    Form  of  appeal  bond. 

Know  all  Men   by  these  Presents: 

That  we   are  held  and  firmly  bound  unto 

in  the  penal  sum  of Dollars, 

to  the  payment  of  which,  well  and  truly  to  be  made,  we  do  hereby  jointly 
and  severally  bind  ourselves,  our  heirs,  executors  and  administrators. 
Signed  by  us,  and  dated  this day  of A.  D.  190 .. . 

The  condition  of  the  above  obligation   is   such,  that  whereas,   the   said 

taken  an  appeal  from 

a  certain rendered  against 

in  favor  of  the  said in  the 

Probate  Court,  within  and  for  the  County  of in  the 

State  of  Ohio,  on  the day  of A.  D.   190.  . .,  for 

the  sum  of Dollars, 

to  the  Court  of  Common  Pleas,  within  and  for  the  County  aforesaid. 

Now,   if  the   said 

shall  abide  and  perform  the  order  and  judgment  of  said  Court  of  Common 
Pleas,  and  shall  pay  all  moneys,  costs  and  damages,  which  may  be  required 


64  Mannix  vs.  Goebel,  1  C.  C.  550 ;  appeal,   an  application   for  writ   of 

1  C.  D.  307.     In  this  case,  the  court  mandamus   to   compel   the  court  to 

made  a  finding  that  the  assignee  of  fix  a  lower  bond  was  allowed. 

an  estate  was  indebted  to  the  estate  55  Jn  re  Estate  of  Ziegler,  3  N.  P. 

in   the   sum  of   $55,000   and   fix  the  307;  6  Dec.  54. 

bond      at      $111,000,      double      the  se  White   vs.    Morelidge,    7    C.    C. 

amount.     The   assignee    desiring   to  348;  4  C.  D.  629;  28  Bull.  286. 


§  49  PROVISIONS   OF   PRACTICE  48 

or  awarded  against by  said  Court,  then  this  obligation 

to  be  void,  otherwise  to  remain  in  full  force  and  virtue  in  law. 

( Signed ) 

I  approve  the  above  Bond  witti  the  sureties  thereto,  this day 

^f A.  D.   190.... 


Probate  Judge.57 

§49.  Transcript — when  to  be  filed.  ''Upon  the  giving  of 
such  bond,  or  notice,  when  that  only  is  required,  the  probate 
judge  shall  make  an  authenticated  transcript  of  the  docket  or 
journal  entries  in  the  cause,  and  the  order,  decision,  or  decree, 
appealed  from;  by  the  appellant's  filing  of  which,  w4th  the 
clerk  of  the  common  pleas  court  on  or  before  the  second  day  of 
its  next  term  after  such  bond  or  notice  was  given,  the  appeal 
shall  be  perfected.  The  original  papers  pertaining  to  the  cause 
may  be  used  upon  the  trial,  or  hearing  in  the  court  of  common 
pleas."     [R.  S.  §6409.]=« 

If  the  transcript  be  filed  in  time  it  may  be  amended  under 
§  11363  G.  C.  Omitted  entries  may  be  supplied  at  any  time 
before  final  judgment. "^^ 

§  50.     Party  interested  must  file  transcript. 

In  a  case  reviewing  the  authorities  of  the  State  pretty  thor- 
oughly ®°  it  is  held  that  when  a  person  appeals  from  the  decision 
of  the  Probate  Court  to  the  Common  Pleas  Court,  under  § 
11201  of  the  General  Code,  to  perfect  his  appeal,  he  must  file 
a  transcript  of  the  proceedings  in  the  former  court  with  the 
clerk  of  the  latter  court  within  the  time  therein  prescribed,  and 
it  is  not  the  duty  of  the  Probate  Judge  to  file  it.  That  the  fil- 
ing of  the  transcript  within  the  time  fixed  is  a  jurisdictional 
fact,  and  unless  it  was  done  within  the  required  time  the  Pro- 

5^  See  §  1778.  which  an  undertaking  or  notice  can 

58  §  11210  G.  C.  be  given.     Downing  vs.  Downing,  23 

It  must  be  filed  within  the  time  C.  C.  3S9. 

provided   by    statute,   to-wit,   or    or  59  Falconer  vs.  Martin  (Sup.  Ct.), 

before   the  second   day   of   the   term  47  Bull.  551. 

after  the  undertaking,  or   notice  is  so  in    matter     of    assignment    ot 

given — not    the     second     day,     etc..  Sears,  5  N.  P.  116;  7  Dec.  253. 

after  the  expiration  of  the  time  in 


49  PROCEEDINGS    IN    ERROR  §  51 

bate  Court  has  no  jurisdiction.""*  That  the  statutory  require- 
ment that  the  transcript  shall  be  filed  within  the  time  fixed  is 
mandatory  and  not  directory."^ 

§  51.  Proceedings  in  Common  Pleas — certifying  same  back. 
"Upon  the  decision  of  a  cause,  appealed  to  the  court  of  com- 
mon pleas,  the  clerk  shall  make  out  an  authenticated  transcript 
of  the  order,  judgment  and  proceedings  of  such  court  therein, 
and  file  it  with  the  probate  judge,  who  shall  record  it,  and  the 
proceedings  thereafter  be  the  same  as  if  such  order,  judgment, 
and  proceedings  had  been  had  in  the  probate  court."  [R.  S. 
§6410.]«2 

§  52.     Proceedings  in  error. 

The  statute  provides  that  a  judgment  rendered  or  final  order 
made  by  a  Probate  Judge,  etc.,  exercising  judicial  function  in- 
ferior to  the  Court  of  Common  Pleas  may  be  reviewed,  vacated 
or  modified  by  the  Court  of  Common  Pleas."''  This  provision 
of  our  statute  is  in  the  general  chapter  providing  jurisdiction  in 
error,  and  there  are  no  other  provisions  relating  to  the  Probate 
Court  except  that  which  relates  to  the  terms  of  such  court."'* 

It  therefore  follows  that  as  to  all  matters  of  practice  the  same 
rules  and  laws  apply  to  proceeding  in  error  from  the  Probate 
Court  as  apply  in  proceeding  in  error  from  the  Court  of  Com- 

60*  Downing  vs.  Downing,  23  C.  C.  cannot  l)e  prosecuted  from  the  Com- 

389.  mon    Pleas    Court    to    the    Circuit 

61  By  General  Code,  §11210,  it  is  Court.  North  vs.  Smith,  27  C.  C. 
made  the  duty  of  the  person  ap-  367;  5  C.  C.  (N.S.)  495.  Reversed, 
pealing    to    file    the    appeal    in    the  73  0.  S.  247. 

Court  of  Common  Pleas.     Biddle  vs.  Wliile   error   and   appeal   may   be 

Phipps,    2    C.    C.    62;     1    C.    D.    363.  concurrently   prosecuted,   and   if  the 

See   §  1780,   Municipal   corp.  appeal  be  dismissed  the  case  may  be 

See  §  1858,  Ditch  appeal.  heard   on   error.     Hull   vs.   Bell,   54 

62  §  11211    G.   C.  0.   S.   241. 

63  §  12241,  as  amended  (1902),  95  Yet  if  it  is  heard  on  appeal,  that 
vs.  392,  reads  as  follows:  "An  or-  necessarily  dismisses  the  error  pro- 
der  made  by  a  Probate  Court  re-  ceedings,  as  the  appeal  takes  the 
moving  or  I'efusing  to  remove  an  whole  case  to  be  reviewed.  Ginn  vs. 
executor,  administrator,  guardian,  Co.  Com.,  11  C.  C.  396;  58  0.  S. 
assignee,  trustee  or  other  officer  ap-  693. 

pointed    by    a    Probate    Court,    and  See   Jenney  vs.   Walker,   10  C.  C. 

a  judgment  rendered  or  final  order  (N.S.)    586;   80  0.  S.  100. 

made   by   a   Probate    Court,   justice  §  12241    G.    C. 

of  the  peace,  or  any  other  tribunal,  A  judgment  will   not  be  reversed 

board,  or  officer,  exercising  judicial  on  error  for  the  action  of  the  court 

functions,  and  inferior  to  the  Court  below,  in  regard  to  a  matter  of  dis- 

of  Common  Pleas,  may  be  reversed,  cretion.      Legg   vs.    Drake,    1    0.    S. 

vacated,  or  modified  by  the  Court  of  286. 

Common  Pleas."  64  §  ii643  G.  C. 

Under    this    act    it    is    held    error  §  39  infra. 


§  52  PROVISIONS   OF   PRACTICE  50 

mon  Pleas.  The  provisions  of  the  General  Code  therefore 
relating  to  exceptions,®^  and  the  chapter  relating  to  nevsr  trials," 
and  the  chapter  relating  to  new  trial  and  other  relief  after  judg- 
ment ®^  apply  to  proceedings  in  the  Probate  Court.  Error  can 
only  be  prosecuted  from  a  final  order  or  judgment  affecting  a 
substantial  right.®® 

It  has  been  held  that  tlie  order  must  not  only  affect  a  substan- 
tial right,  but  it  must  be  prejudicial.®^  The  substantial  right 
must  also  be  a  legal  right.  ^^ 

It  may  further  be  said  that  where  the  statute  leaves  a  matter 
in  the  absolute  discretion  of  a  judge,  as  for  instance  under  the 
former  statute  the  removal  of  an  administrator  from  his  trust, 
that  an  order  of  that  kind  will  not  be  reviewed  by  a  higher  court 
in  proceeding  in  eiTor.  Likewise  the  order  appealed  from  must 
be  one  by  the  judge  in  his  judicial  capacity;  if  it  is  a  minis- 
terial act  as  contra  distinguished  from  a  judicial  act,  then  the 
same  will  not  be  reviewed  in  proceeding  in  error.  Proceeding 
in  error  must  be  commenced  wit^iin  seventy  days  from  the  ren- 
dition of  the  judgment  or  making  the  final  order  complained 
^£71  'j'l^ig  (Ja^g  would  be  determined  from  the  date  of  the  jour- 
nal entry  rendering  the  judg-ment  or  making  the  order.  And 
this  is  so  notwithstanding  the  fact  that  a  motion  for  a  new  trial 
may  have  been  filed.  A  proceeding  in  error  is  commenced  by 
the  filing  of  a  petition  and  issue  of  summons.''^ 

65  §§  11559  to   11574  G.  C.  69  No^ig  ^,g    Martin,  4  C.  C.  365; 
Kinkead's  Pract.  508.  2  C.  D.  598. 

66  §§  11575  to  11581  G.  C.  70  Armstrono:       vs.       Herancourt 
Kinkead's  Pract.  498.  Bre\vin<T  Co.,  53  O.  S.  467. 

67  §§  11631  to  11643  G.  C,  7i  §  12270  G.  C. 
Kinkead's  Pract.  550.  72  Kink.   Pract.   617. 

68  §  12258  G.  C.  Sunday    is   not   excluded    in   corn- 
Kinsley    vs.    The    State,    3    O.    S.       puting   the   three   days   allowed   for 

508;   Holbrook  vs.  Connelly,  6  O.  S.  filing  a  motion  for  new  trial.     Chi- 

199;    Hobbs    vs.    Beckwith,    6    O.    S.  caco  Box  Co.  vs.  Washburn.  15  C.  C. 

252.  5 lb:  8  C.  D.  113. 

It  has   been   held   that   the   juris-  See   §  1717,  ^lunicipal  corp. 
diction  of  the  Probate  Court  to  ap-  The  order  made  upon  the  hearing 
point  an  administrator  dc  bonift  non  of  the  preliminary  question  in  con- 
is   exclusive   and   error   will    not   lie  demnation    proceedings,    is    a    final 
to  reverse  the  Probate  Court  where  order.      Davton    El.    U.    Ry.   Co.   vs. 
the  record   does   not  show  that  the  Traction  Co.,  48  Bull.  957. 
court,  without  right,  appointed  one  See    recent    decision    of    Supreme 
who    was    entitled    to    the    appoint-  Court  under  appropriations, 
ment.     Gardner  vs.  Mever,  27   Dec. 
198. 


51  EJSTTRIES,,    NUNC    PRO    TUNC  §  53 

§  53.     Entries,  nunc  pro  tunc,  power,  etc. 

It  is  said  to  be  an  inherent  power  in  all  courts  of  record  to 
correct  or  change  their  records  so  as  to  conform  to  the  truth; 
and  if  for  any  reason  the  entries  placed  upon  the  record  do  not 
conform  to  the  truth  and  give  the  decision  of  the  Court  as  it  was 
intended  to  be,  then  it  is  the  duty  of  the  Court  either  on  its  own 
motion  or  on  motion  of  an  interested  party  to  have  the  records 
made  correct.  The  question  is,  within  what  limits  must  this 
power  be  exercised  ?  It  is  a  settled  principle  of  law  that  the 
Court  may,  without  any  evidence  other  than  that  which  it  pos- 
sesses correct  its  own  records  during  the  term ;  even  after  the 
term  if  there  are  no  interfering  rights  or  equities,  and  may 
make  it  as  of  the  term  it  should  have  been  made,^^  and  the' 
statute  makes  provision  in  what  manner  judgments  may  be  va- 
cated or  modified  at  a  subsequent  temi.^* 

It  is  clearly  therefore  tlie  law  that  as  to  all  adversary  matters 
in  the  Pj-obate  Court  the  same  rule  applies  as  to  the  Court  of 
Common  Pleas,  for  as  to  such  matters  tlie  Probate  Court  has 
terms.  But  the  difficulty  experienced  is  as  to  that  large  class 
of  business  within  the  Probate  Court  for  which  it  has  no  terms, 
being  a  court  tliat  is  open  at  all  times.  It  has  sometimes  been 
claimed  that  in  administration  of  estates  the  Court  has  control 
over  its  docket  and  journal,  and  may  make  such  orders  from 
time  to  time  as  are  proper,  during  the  continuance  of  settlement 
of  the  estate.''^  As  to  such  matters  the  Probate  Court  has  no 
terms,  and  it  may  be  doubtful  if  the  Court  at  any  time  may  put 
on  a  nunc  pro  tunc  entry.  If  a  decision  is  properly  entered 
upon  the  journal  or  record  of  the  Probate  Court  it  is  final  un- 
less re^dewed  or  changed  in  some  method  provided  by  law  for 
such  particular  case.^^ 

Our  Supreme  Court  has  expressly  held  that  the  Probate 
Court  has  no  power  under  the  general  provisions  of  law  relating 
to  a  vacation  of  former  orders  of  the  Court  to  vacate  or  modify 

73  Elliott  vs.  Platter,  43  O.  S.  198.  76  Kinsella  vs.  DeCamp,   15  C.  C. 
See  §  5.                                                               494 ;   8  C.  D 

74  §  5354  R.  S. 

75  Bid.  &  Loan  Co.  vs.  Spiegel,  12 
C.  C.  761;   4  C.  D.  474. 


§53 


PROVISIONS    OF   PRACTICE 


52 


an  order  made  in  the  settlement  of  an  account  of  an  adminis- 
trator." 


'7  Johnson  vs.  Johnson,  26  O.  S. 
363. 

See  Woerner  on  Admin.  333. 

Kink.  Pract.  558.  Of  course  in  no 
instance  can  a  journal  entry  be 
changed  so  as  to  constitute  a  differ- 
ent decision  from  that  which  was 
actually  in  the  then  intention  of  the 
judge,  rendered.  But  where  a  jour- 
nal entry  does  not  state  the  actual 
decision  either  by  reason  of  mistake 
or  fraud,  or  inadvertence,  then  the 
judge  ought  at  any  time,  correct 
such  entry  to  conform  to  the  truth 
upon  due  notice  to  all  concerned, 
even  though  it  be  in  ex  parte  mat- 
ters. Ludlow  vs.  Johnson,  3  Ohio 
553. 

Every  court  of  record  has  a  super- 
vising charge  over  its  own  records 
and  papers  belonging  to  its  files,  and 
may  at  any  time  direct  the  correc- 
tion of  clerical  errors  or  substitu- 
tion of  papers  lost.  etc.  Hollister  vs. 
Judges,  8  0.  S.  201. 

The  power  conferred  upon  courts 


by  §  534  of  the  Code,  to  vacate  or 
modify  their  own  judgments  or  or- 
ders does  not  abridge  the  right  to 
maintain  an  original  action  im- 
peaching the  judgment,  etc.  Coates 
vs.  Chillicothe,  etc.,  23  0.  S.  415; 
Darst  vs.  Phillips,  41  O.  S.  514. 

A  court  has  no  power  to  correct 
its  journal  after  term,  if  the  judg- 
ment reads  as  intended  at  the  time 
made  notwithstanding  a  mistake  of 
law  or  fact  or  both  was  made  in 
rendering  the  judgment. 

A  judgment  as  shown  by  the 
record,  can  not  be  shown  to  be  false, 
except  the  evidence  is  such  as  to 
show  no  other  conclusion.  In  re 
Farkash,  54  Bull.  207. 

Cited  with  approval.  In  re  Far- 
kash, 54  Bull.  207. 

Memorandum  by  the  Probate 
Judge  in  court  calender,  inadmis- 
sible to  establish  decree  of  divorce 
nunc  pro  tunc.  Stark  vs.  Stark,  34 
C.  C.  135;  affirmed  no  opinion,  88 
O.  S.  586. 


53 


DEVOLUTION    OF   PROPEKTY 


§54 


CHAPTER  IV. 

ADMINISTRATION. 


!  54  Administration ;    devolution   of 

property. 
55  Necessity  for. 

!  56  Where    there    ought    to    be    no 
administration. 

I  57  Where  there  may  be  no  admin- 
istration. 

1 58  Form    of     bond    of     residuary 
legatee. 

i  59  Liability  upon  the  bond. 

t  60  Discharge  of  lien  on  property. 

161  Ofliciating      without      appoint- 
ment. 


§  62  Acts  done  by  rightful  executor 
or  administrator  before  qual- 
ifying. 

§  63  Letters  relate  back  to  time  of 
death. 

§  64  Time  within  which  letters  of 
administration  will  be  grant- 
ed. 

§  65  Application. 

§  66  Notice,    etc. 

§  67  Hearing. 


§  54.    Administration.      Devolution  of  property. 

At  common  law  the  real  estate  of  a  deceased  person  descends 
to  his  heir,  and  his  personal  property  goes  to  his  legal  represen- 
tative. The  reasons  for  an  arbitrary  distinction  between  the 
devolution  of  real  estate  and  personalty  never  existed  in  this 
country.  But  with  other  features  attaching  to  the  common  law 
it  has  engrafted  itself  into  our  jurisprudence;  and  with  some 
few  minor  statutory  regulations  is  followed  in  almost  all  of  the 
States  of  our  Union.  So  that  now  the  real  estate  descends  to 
the  heirs  and  devisees  subject  to  the  power  of  the  executor  or 
administrator  to  convert  the  same  into  personalty  for  the  pay- 
ment of  the  decedent's  debts.  The  real  or  personal  property 
set  apart  for  the  widow  and  minor  children  goes  to  them  abso- 
lutely, and  the  personal  property  goes  to  the  executor  or  the  ad- 
ministrator to  be  distributed,  after  payment  of  debts,  to  legatees 
or  next  of  kin.^ 


1  Woerner  on  Admin.  381. 

See  act  for  administration  of 
charitable  trusts,  §§  10085-10092 
G.  C. 

As  a  general  rule  administration 
is  a  prerequisite  to  the  distribution 
of  the  personal  estate  of  a  decedent. 


An  heir  cannot  maintain  an  action 
on  a  note  belonging  to  his  ances- 
tor. McBride  vs.  Vance,  73  0.  S, 
258. 

See  §  1111a  as  to  mode  of  trans- 
fer of  real  estate. 


§  55  ADMINISTRA.TION  54 

§  55.     Necessity  for. 

From  this  rule  of  the  common  law  that  the  title  to  all  per- 
sonal property  of  the  decedent  vests  in  the  executor  or  adminis- 
trator of  his  estate,  follows  the  rule  that  where  there  is  any 
personal  property  to  distribute  or  where  there  are  any  debts 
owing  by  the  decedent,  there  must  be  an  administration  of  the 
estate.^ 

No  one  can  sue  for  a  debt  due  the  decedent  except  an  admin- 
istrator or  executor ;  and  this  rule  applies  even  to  heirs  after  an 
administrator  has  settled  the  estate  and  all  debts  are  paid.^ 

It  has  even  been  held  that  a  division  of  all  the  assets  among 
the  heirs  without  an  administration,  they  paying  the  debts,  vests 
no  title  in  them,  nor  binds  a  subsequent  administrator,  and  that 
a  note  allotted  to  one  heir  cannot  be  collected  by  him.*  Like- 
wise tlie  creditors  of  the  estate  are  entitled  to  have  the  same  set- 
tled in  due  course  of  administration,  and,  if  it  be  necessary  to 
use  real  estate  to  pay  debts,  that  it  be  done  by  an  order  of  a  com- 
petent court,  and  hence  it  has  been  held  that  it  is  no  bar  to  an 
action  by  an  administrator  to  sell  land  to  pay  debts,  that  the 
heir  has,  without  an  order  of  court,  sold  the  same  at  private  sale 
and  applied  the  proceeds  in  satisfaction  of  preferred  claims.^ 

This  liability  of  real  estate  for  the  payment  of  debts  makes 
it  very  desirable  that  where  a  person  dies  o^vning  real  estate 
there  be  an  administration  of  his  estate.  For  if  there  be  no 
such  administration  there  is  no  evidence  upon  any  of  our  public 

2  The  term  Administration,  in  its  husband  is  entitled  to  all  the  per- 
primary    signification    and    general       sonal  property  of  his  deceased  wife, 

.     ,     ,     ,  ,      ,       ,.  it  IS  held  that  he  can  not  recover  the 

sense,    equivalent    to    conduct,    dis-       g^,„p     ,,^,j.    ^„    administrator    must 

tribution,  etc.,  is  also  applicable  to       bring  the  action.     Reed  vs.  Jordon, 

the    management    of    the    estate    of       1-  ^-  t'.   161;   5  C.  D.  527. 

minor    persons    of    unsound    minds,  r.  ^'f '"  V7^/nI'-T''       '''*       ^''''^' 

,       ,       ,           ,             ,  ,    .r             ,  Davton   413    (Oliio). 

drunkards    and    spendthrifts.      The  fhe   Federal   Court  can   not  take 

settlement,  management  and  distrib-  away  the  jurisdiction  of  the  Probate 

ution  of  the  decedent's  estate  to  the  Court.     Puder   vs.   Agler,   242    Fed. 

..           ,.,,  J   ,,        ,          A  u-       A  95;    62  Bull.  410. 

parties  entitled  thereto  and  his  ad-  ^  j^^^^^^jj  ^.^    Hundley,  3  W.  L.  M. 

ministration    of   the   estate.  126. 

Woerner  on  Admin.  9.  ^  Sidener  vs.  Hawes.  37  0.  S.  532. 

3  Davis    vs.    Corwine,    25th    O.    S.       ^  ^f  ^"'>' '■^  ^"^•^k^n^'^'.RO  ^'fl 

Tavlor  vs.  Thorn.  20  O.  .S.  56r»;   In 

668.  re'Sattler.    21     Bull.    161:     Goebel 

Even    where    under    the    law    the       183;  Taylor  vs.  Huber,  13  O.  S.  288. 


55  NECESSITY  FOR  §  56 

records  showing  that  the  real  estate  may  not  be  liable  for  some 
unsatisfied  debt  of  the  deceased.  Another  reason:  Under  our 
law  when  real  estate  descends  to  the  heirs  there  is  no  evidence 
without  an  administration  who  are  such  heirs.  This  may  not 
always  be  disclosed,  but  will  usually  be  found  in  the  application 
made  for  administration.  However,  it  has  recently  been  held 
that  where  it  appears  that  substantially  all  outstanding  debts  of 
the  deceased  testator  have  been  paid  by  the  parties  entitled  to 
the  fund  under  the  terms  of  the  will  of  deceased,  there  is  no 
necessity  for  an  administrator  or  executor  to  close  up  the  estate, 
and  courts  will  not  tolerate  or  encourage  proceedings  under  the 
direction  of  the  Probate  Court  for  the  administration  of  an 
estate  nor  the  expenditure  of  money  left  by  deceased  parties  for 
the  mere  forms  of  administering  upon  an  estate.^ 

If  there  are  no  claims  due  the  estate  to  collect,  or  if  there  are 
such  claims  and  the  creditors  are  willing  to  pay  them  to  the 
heirs,  and  the  heirs  pay  all  the  debts  of  the  decedent  and  there 
are  no  minor  heirs,  an  administration  may  be  dispensed  vdth, 
especially  if  the  decedent  owned  no  real  estate.  But  if  he 
owned  real  estate  or  there  exist  minor  heirs,  it  is  highly  desir- 
able, necessary,  I  may  say,  that  there  be  an  administration  of 
the  estate.^  * 

§  56.     When  there  ought  to  be  no  administration. 

A  good  many  States  have  provided  that  w^hen  the  property 
left  by  a  decedent  is  not  more  than  sufficient  to  pay  the  widoVs 
allowance,  etc.,  that  upon  a  showing  made  to  that  effect  in  the 
Probate  Court,  that  no  administration  be  required.  There  is 
no  statute  to  that  effect  in  Ohio.  But  it  has  often  occurred  to 
the  author  that  such  a  law  would  be  a  very  salutary  one.  For, 
in  the  language  of  a  distinguished  author,  "  The  soundness  of 
the  principle  upon  which  such  provisions  rest,   or  rather   ab- 

6  Catlin  vs.  Huestis,  11  C.  C.  120;  the   formalities    prescribed   by   law, 

6  C.  D.  23.  results   disastrously  to   those   inter- 

6*  See  §  800.  ested.     The   law   now   requires    that 

A    lawyer    of    35    years'    practice  before     property    inherited     can    be 

gives    h's    experience'  that    in    nine  transferred    there    must   be    an    affi- 

cases  out  of  ten  an  attempt  to  set-  davit   filed    showing  the  heirs,   etc. 

tie  an  estate  without  going  through  §  1111a. 


§  57  ADMIKISTEATION  56 

surdity  of  a  contrary  view  is  self-evident,  why  should  the  law 
compel  an  administration  where  there  is  nothing  to  be  admin- 
istered ?  The  appointment  of  an  administrator  in  such  case 
could  have  no  possible  effect  except  to  diminish  or  to  eat  up 
what  the  law  intends  for  the  support  of  widows  or  orphans."  ^ 

§  57.     When  there  may  be  no  administration. 

It  seems  that  the  only  instance  in  which  there  may  be  no  ad- 
ministration of  an  estate  is  where  the  testator  devises  his  prop- 
erty to  a  person  or  persons  and  also  makes  them  executors  to 
settle  his  estate,  which  is  found  in  the  f ollomng : 

Different  bond  may  be  given  when  executor  is  residuary  legatee. 
"If  the  executor  is  residuary  legatee,  instead  of  the  bond  pre- 
scribed in  the  two  next  preceding  sections,  he  may  give  a  bond 
in  a  sum  and  with  two  or  more  sureties  to  the  satisfaction  of 
the  court  with  condition  to  pay  all  the  debts  and  legacies  of 
the  testator  and  to  pay  over  such  estate  to  the  persons  entitled 
thereto  in  case  the  will  at  any  time  be  set  aside.  In  such  case 
he  shall  not  be  required  to  return  an  inventory,  unless  it  be 
made  to  appear  to  the  satisfaction  of  the  probate  court  that 
one  should  be  made  and  returned,  if  the  probable  value  of  the 
estate  is  less  than  five  hundred  dollars."     [R.  S.  §  5997.]^ 

"The  executor  shall  not  be  liable  for  legacies  paid  to  legatees 
other  than  himself,  after  eighteen  months  from  the  probating 
of  the  will,  and  before  an  action  to  set  aside  has  been  com- 
menced. The  legatee,  however,  shall  be  liable  to  repay  the 
legacy  and  interest  thereon  if  the  will  be  set  aside."  [R.  S. 
§5997;  vol.  102  V.  200.]^* 

Under  this  section  the  executor  and  legatee  must  give  bond 
to  the  satisfaction  of  the  Court  with  a  condition  to  pay  all  the 
debts  and  legacies  of  the  decedent,  and  the  executor  giving  such 
bond  at  once  becomes  liable  for  all  debts  of  the  testator.  But, 
as  will  be  seen  in  the  following  section,  the  real  estate  is  not 

7  Woerncr  on  Admin.  436.  See    Shields    vs.    Matthew,    as    to 
See  Carr  vs.  Hull,  63  O.  S.  394.  discussion  as  to  nature  of  bond.  22 

8  §  in60S  G.  C.  C.     C.      fX.S.)      SOS;     McBride     vs. 
8*  §  10609  G.  C.  Vance.  73  O.  S.  2.58. 


57  NO    ADMINISTRATION  §  58 

discharged  from  any  liability  for  the  debts  of  the  decedent. 
Such  bond  dispenses  witli  the  necessity  of  returning  an  inven- 
tory, unless  ordered  by  the  court,  where  the  estate  does  not  ex- 
ceed $500  in  value ;  and  also  dispenses  with  the  further  ac- 
counting to  the  Probate  Court  and  operates  as  an  admission  of 
sufficient  assets  and  a  guarantee  to  pay  all  debts,  since  as  there  is 
no  inventory  of  the  assets  required  to  be  filed,  there  is  no  means 
of  knowing  whether  the  assets  equal  the  debts  and  liabilities.® 

The  bond  cannot  be  surrendered  or  cancelled,  at  least  not  after 
the  expiration  of  the  time  within  which  the  law  requires  an  in- 
ventory to  be  filed.  The  filing  of  such  bond  confers  upon  the 
residuary  legatee  and  executor  the  right  to  collect  all  assets  of 
the  decedent  and  appropriate  the  same  to  his  own  use,  and  use 
and  convey  the  real  estate  without  any  further  control  or  ac- 
counting to  the  court.^*^ 

In  order  to  take  advantage  of  the  provisions  of  §  10608 
G.  C,  a  mere  designation  in  the  will  of  the  person  as  executor 
and  residuary  legatee  is  not  sufficient  to  authorize  a  person  to 
collect  demands  due  the  testator.  Such  persons  must  first  be 
appointed  by  the  court  as  executor. ^^ 

This  section  is  in  derogation  of  the  common  law,  and  there- 
fore must  be  strictly  construed.  Its  language  would  indicate 
that  it  would  not  apply  unless  the  residuary  legatee  was  also 
named  in  the  will  as  executor;  and  that  if  the  will  named  no 
one  or  a  different  person  the  residuary  legatee  could  not  take 
advantage  of  its  provision. 

§  58.     Form  of  bond  of  residuary  legatee. 

Know  all  Men  by  these  Presents: 

That   we 

and are  held  and  firmly  bound 

9  It  may  be  that   under   the   law  the    assets    of    the    estate.     Or    the 

which   now  seems  to   require   inven-  Court  Avill  require  the  inventory  to 

tories  in  every  case  to  be  filed  and  be  made. 

report  made  to  the  auditor,  the  ob-  lo  Woerner  on  Admin.  434,  435. 

ject  and  purpose  of  which  is  to  pre-  n  Tappan   vs.   Tappan,   30   N.   H. 

vent  the  estates  from  escaping  taxa-  50;   LafTerty  vs.   People's  Bank,   76 

tion,  that  a  statement  should  be  pre-  Mich.  35 ;  S.  C.  43  N.  W.  Rep.  34. 
Bsnted  to  the  Probate  Court  showing 


§  59  ADMINISTRATION  58 

unto  the  State  of  Ohio,  in  the  sum  of Dollars, 

to  the  payment  of  which  we  do  hereby  jointly  and  severally  bind  ourselves, 
our  heirs,  executors  and  administrators,  if  default  be  made  in  the  condition 
following: 

Whereas,  by  the  last  will  and  testament  of 

,  deceased,  duly  admitted  to  probate  by  the 

Probate  Court,  within  and  for  the  County  of ,  and 

State  of  Ohio,  the  said 

made  executor  and  residuary  legatee  of  all  the  estate,  both  real  and  per- 
sonal   of  said ,  deceased. 

Now    if   the    said 

shall  pay  all  the  debts  and  legacies  of  the  said  decedent,  and  pay  over  said 
estate  to  the  persons  entitled  thereto,  in  case  the  will  be  at  any  time  set 
aside, — together  with  the  charges  of  administration,  and  all  other  legal 
claims  against  said  estate,  then  this  obligation  to  be  void,  otherwise  to  be 
and  remain  in  full  force  and  effect. 

Signed   by   us   at 

Ohio,  this day  of ...  . 

A.  D.  190.... 

EXECUTED  IN  PRESENCE  OF 


§  59.     Liability  upon  the  bond. 

The  residuary  legatee  is  not  required  to  give  such  bond  —  he 
may  do  it  and  it  must  be  supposed  would  not  do  so  unless  satis- 
fied that  the  amount  of  assets  would  exceed  the  amount  of  debts 
and  liabilities.  The  residuary  legatee  who  gives  bond  is  also 
the  executor,  and  the  bond  is  in  the  place  of  the  bond  ordinarily 
required  of  an  executor.  It  creates  no  liability  nor  affords  a 
remedy  which  the  latter  does  not,  but  is  only  intended  to  provide 
for  the  payment  of  the  debts  of  the  testator  and  not  against  any 
unjust  claims.  The  residuary  legatee  has  only  to  pay  just 
claims  against  the  estate.  And  a  person  suing  need  not  show 
the  presentment  or  rejection  of  the  claim  as  is  ordinarily  re- 
quired in  a  suit  on  a  claim  against  an  executor  or  administra- 
tor.^^ In  such  an  action,  the  claim  not  having  been  previously 
established  in  an  action  against  the  executor  in  his  representa- 
tive capacity,  the  plaintiff  is  not  a  competent  witness  to  testify 
as  to  transactions  between  him  and  the  testator. 

12  See  §  475.  i'  Surety  on  the  bond  has  lien  on 

13  Stephens  vs.  Hartley,    13  O.  S.      residuary    share.      Tidd    vs.    Black, 
525.  4   C.    a    (N.S.)    216:    26   0.   C.    C. 

118. 


59  RESIDUARY    LEGATEE  §  60 

§  60.     Discharge  of  lien  on  property. 

Whether  the  giving  of  tlie  bond  releases  the  personal  prop- 
erty from  a  creditor's  right  to  have  the  same  applied  to  his  claim 
or  not  is  a  mooted  question.  The  weight  of  authority,  however, 
is  that  the  remedy  is  cumulative,  and  the  personal  property  is 
liable  unless  conveyed  to  a  bonafide  purchaser.^* 

The  right  as  to  real  estate  is  expressly  reserved  in  Ohio  by  the 
following  statute : 

"The  giving  of  the  bond  prescribed  in  the  second  preceding 
section  shall  not  discharge  the  lien  on  the  testator's  real  estate 
for  the  payment  of  his  debts,  except  such  part  as  has  been 
lawfully  sold  by  the  executor  to  one  who  purchased  in  good 
faith,  and  for  a  valuable  consideration."      [R.   S.   §5998.]^** 

§  61.     Officiating  without  appointment. 

While  the  laws  of  Ohio  do  not  recognize  an  administrator  or 
executor  de  son  tort,  yet  the  liabilities  of  an  intermeddler  \vith 
the  effects  of  a  deceased  person  are  discussed  in  the  books  under 
that  head.  If  an  injury  is  done  to  the  personal  property,  or 
real  estate  which  is  disposed  of  by  Avill,  of  a  deceased  per- 
son, the  action  to  recover  for  such  injuries  must  be  brought  by 
the  rightful  executor  or  administrator  and  not  by  creditor.^" 
Every  person,  other  than  the  legally  appointed  administrator 
or  executor,  dealing  with  the  effects  of  the  deceased  person  un- 
less his  acts  are  beneficial,  may  be  held  liable  for  his  acts  in 
reference  thereto.  If  the  creditor  pays  a  claim  to  any  person 
other  than  the  executor  or  administrator  he  is  still  liable  to  the 

1*  Thompson  vs.  Brown,   16  Mass.  administration,  but  the  widow  took 

172;    Laflferty    vs.    Bank,    76    Mich.  possession  of  all  the  personal  estate. 

35 ;  43  N.  W.  Rep.  34 ;  Kreamer  vs.  She  proceeded  to  collect  some  of  the 

Kreamer,   52  Kans.   597.  notes  that  drew  a  usurious  rate  of 

14*  §  10610  G.  C.  interest.     It  was  held  that  the  mak- 

15  Dixson    vs.    Cassel,    5    O.    533 ;  er  could  set  up  the  same  as  he  could 

Benjamin  Le  Baron,  15  O.  517;  Van  have  if  he  would  have  given  it  to 

Ausdal  vs.  Potterf.,  41  0.  S.  677.  an  administrator. 

In  the   latter   case   there   was   no 


§  62  ADMIlSriSTEATION  60 

rightful  administrator  for  a  payment  of  the  claim.  The  gen- 
eral rule  as  to  the  liability  of  an  intermeddler  might  be  stated 
that  if  his  acts  are  beneficial  to  the  estate  no  liability  would  be 
incurred,  but  if  they  were  injurious  he  would  be  responsible. 
Among  those  things  which  it  is  stated  a  person  may  do  without 
being  liable  are  notably  all  acts  or  offices  of  kindness  and  charity 
and  the  looking  to  the  preservation  of  the  property.  Mr.  Wil- 
liams mentions  such  as  locking  up  the  goods  for  preservation, 
directing  the  funeral  and  paying  expenses  thereof  out  of  his 
own  means  or  out  of  the  effects  of  the  deceased,  making  an  in- 
ventory of  his  property,  feeding  his  cattle,  repairing  his  houses 
or  providing  necessaries  for  his  children. ^^ 

Also  where  the  property  is  not  a  greater  amount  than  is  al- 
lowed by  law  for  the  immediate  support  of  the  family,  the 
widow  is  not  liable  for  so  using  the  assets.  Or  where  the  widow 
supports  the  family  of  one  absent  from  home  before  certain 
news  of  his  death,  or  being  compelled  to  vacate  the  premises, 
moves  the  furniture,  partly  to  an  auction  room  to  be  sold  and 
partly  to  another  house  to  be  used  by  her,  or  where  she  ap- 
propriates the  wearing  apparel  of  less  value  than  debts  which 
she  pays,  or  where  the  assets  appropriated  will  not  pay  the  ex- 
pense of  taking  out  administration.^^ 

§  62.     Acts  done  by  rightful  executor  or  administrator  before 
qualifying. 

An  administrator  or  executor  may,  by  relation,  ratify  and 
make  valid  all  acts  which  come  within  the  scope  of  a  rightful 
administrator's  or  executor's  authority;  and  whatever  dealings, 
justifiable  on  this  principle  and  in  the  interest  of  the  estate,  he 
may  have  had  with  it  before  his  appointment  are  cured  in 
modern  practice  by  the  grant  of  subsequent  letters.^®  Where 
an  act  is  done  in  good  faith  by  such  an  executor  or  administra- 
tor before  his  appointment  he  cannot  afterwards  avoid  it,  but 
will  be  an  estoppel  in  the  absence  of  fraud. ^^ 

16  Williams  on  Executors  261.  is  Sch.  on  Extrs..   §   195. 

17  Woerner  on  Admin.  418.  i9  Bennett  vs.  Lyndon,  8  App. 


61  TIME     WITHIN     GRANTED  §  63 

Indeed  it  may  be  said  tliat  where  an  executor  knows  of  his 
being  named  in  the  will  as  such,  it  is  his  duty  before  appoint- 
ment to  look  after  the  estate  and  preserve  it  with  reasonable  dili- 
gence; and  it  would  not  be  inappropriate  for  him  to  contract 
and  make  arrangements  for  all  funeral  expenses  and  matter  at- 
tached thereto.  Whether  or  not  his  right  in  this  respect  is  su- 
perior to  that  of  the  family  of  the  deceased  may  be  doubtful; 
generally  in  reference  to  such  matters  courts  are  inclined  to 
leave  that  to  the  family  of  the  decedent  and  that  their  wishes 
and  inclinations  about  such  matters  should  prevail.*" 

§  63.    Letters  relate  back  to  time  of  death.^^"^ 

For  general  purposes  it  may  be  said  the  letters  of  administra- 
tion relate  back  to  the  time  of  the  death  of  the  intestate  and 
vest  the  property  in  the  administrator  from  that  time.  On  this 
principle  an  administrator  may  maintain  trespass  for  injuries 
to  the  goods  of  the  intestate  committed  after  his  death  and  he- 
fort  the  appointment ;  or  maintain  an  action  on  a  contract  made 
with  the  defendant  before  appointment;  or  for  money  belong- 
ing tw  the  estate  collected  by  defendant  before  grant  of  letters ; 
and  ou  the  same  principle  the  heirs  have  no  power  before  the  ap- 
pointment of  an  administrator  to  bind  the  personal  estate  by 
agreement.*^ 

This  doctrine  of  relation  is  a  fiction  of  law  to  prevent  injus- 
tice and  the  occurrence  of  injuries  where  otherwise  there  would 
be  no  remedy ;  and  would  not  be  applied  in  case  where  the 
rights  of  innocent  parties  intervened.** 

A  conveyance  under  a  power  of  sale  in  a  will,  before  probate 
of  such  will,  by  one  nominated  as  executor  will  be  validated  by  a 
subsequent  probate  of  the  will.*' 

§  64.     Time  within  which  letters  of  administration  will  be  granted. 

There  is  no  provision  in  the  laws  of  our  State  requiring  ap- 
plication for  letters  of  administration  within  any  specified  time 

20  See  §§61,  70.  22  Per   Napton,  J.,   in   Wilson  vs. 
20a  Cited     and    approved,    In    re       Wilson,  54  Mo.  213,  216. 

Pollock,  60  Bull.  274;   17  N.  P.  492.  23  Brooks  vs.  McComb,  38  Fed.  R. 

21  Woerner   on  Admin.   386.  317;   Babcoek  vs.  Collins,  60  Minn. 

73. 


§  65  ADMINISTRATION  62 

from  the  death  of  the  testator.  Provision  is  made  for  the  cita- 
tion of  the  person  holding  a  will  to  produce  it  before  the  court 
for  probate.  Likewise  there  are  provisions  authorizing  the 
citation  against  an  executor  to  appear  and  take  or  decline  ad- 
ministration. There  is  also  provision  for  citation  against  other 
persons  who  are  by  right  entitled  to  administration  to  appear 
before  the  Court  and  either  decline  or  take.  But  there  is  no 
limitation  as  to  when  such  proceedings  must  or  may  be  had. 
Generally  it  may  be  said  that  so  long  as  there  are  assets  to  be 
administered  upon  or  any  other  reason  for  administration  of 
the  estate  letters  will  be  granted.  It  is,  however,  provided  that 
there  is  a  limitation  to  an  absolute  right  to  have  administration 
upon  an  estate ;  the  statute  relating  to  which  is  as  follows : 

''Administration  shall  not  be  originally  granted  as  of  right 
after  the  expiration  of  twenty  years  from  the  death  of  the 
testator  or  intestate.  But,  within  his  county,  each  probate 
judge  may  grant  letters  of  original  administration  upon  the 
estate  of  a  person  deceased,  after  the  expiration  of  twenty 
years,  upon  petition  of  the  next  of  kin  or  other  person  or  per- 
sons interested,  or  their  agent,  and  on  good  cause  shown  there- 
for. Before  allowing  the  prayer  of  such  petition,  such  judge 
may  direct  notice  thereof  to  be  given,  by  publication,  for  a 
period  not  exceeding  thirty  days,  in  one  or  more  of  the  news- 
papers printed  in  the  county  where  it  is  filed."  [R.  S. 
§6014.]=^* 

The  object  of  this  provision  seems  to  be  that  after  such  a 
great  lapse  of  time  an  administration  ought  not  to  be  granted 
without  notice  to  all  that  might  be  interested  or  affected  by 
such  administration  and  the  public  generally.^^ 

§  65.     Application. 

The  application  for  an  appointment  after  the  expiration  of 
twent}'-  years,  as  provided  in  the  above  section  of  the  Revised 
Statute,  should  set  forth,  in  addition  to  the  statements  re- 

24  §  10626  G.  C.  vs.  Biddle.  74  0.  S.   182;    reversing 

25  §  10626  G.  C.  4  C.  C.    (X.S.)    449. 

Statute    does    not    begin    to    run  See  McBride  vs.  Vance,  73  0.  S. 

until  notice  of  appointment.    Hoiles       258. 


63  NOTICE^   ETC.  §  66 

quired  in  an  ordinary  application,  the  reasons  that  now  exist 
for  such  an  application ;  that  is,  it  ought  to  state  why  an  admin- 
istration has  not  been  had  at  an  earlier  date.  And  if  the  de- 
cedent died  owning  real  estate  which  has  since  been  sold  the 
names  of  the  holders  of  such  real  estate  should  also  be  given. 
Likewise  the  names  of  all  other  persons  who  are  in  any  way  in-, 
terested  in  such  an  estate  should  be  given.*® 

§  66.     Notice,  etc. 

In  all  such  cases  the  Court  should  require  that  notice  be  given 
either  directly  to  all  interested  parties  or  by  publication.  If 
the  notice  is  given  by  publication  it  should  be  for  a  period  not 
exceeding  thirty  days.  It  is  not  very  specific  how  often  a  pub- 
lication should  be  made,  but  should  think  it  would  be  wise  to 
make  five  insertions  in  a  weekly  newspaper. 

FORM  OF  ENTRY. 
{Title.) 

A.  B.,  having  filed  his  petition  herein,  asking  for  letters  of  administration 
on  the  estate  of  E.   F.,   represented   in   said   petition  to   have  died  on  or 

about  the day  of and  then  being  a  resident  of  this 

county,  it  is  ordered  said  petition  be  for  hearing  on day  of 

and  notice  thereof  be  given  by  publication  as  required  by  law. 

FORM    OF    NOTICE. 

Notice  is  hereby  given  on day  of ,  the  under- 
signed filed  his  petition  in  Probate  Court, county,  Ohio. 

Asking  that  there  be  an  administrator  appointed  for  the  estate  of  the  late 

E.  F.,  who  died  on  or  about  the day  of ,  residing 

at ,  in  said  county,  and  said  petition  will  be  for  hearing 

on  the day  of at o'clock. 

§  67.     Hearing. 

Upon  the  day  of  hearing  a  copy  of  such  notice,  with  proof  of 
service  if  advertised,  as  the  case  may  be,  should  be  filed  in  court, 
and  if  the  Court  is  satisfied  that  there  is  good  reason  for  such 
appointment,   that    all   persons   interested   therein   within   the 

26  The  forms  used  under  appoint- 
ment of  executors  and  administra- 
tors may  readily  be  adopted. 


§  67  ADMINISTKATION  64 

county  have  had  due  notice,  such  administration  should  be 
granted  and  the  following  would  be  an  entry  showing  such  a 
fact: 

GRANT  OF  LETTERS. 

This  day  this  cause  coining  on  to  be  heard  and  it  being  shown  that  notice 
thereof  has  been  given  as  required  by  law  and  the  former  order  of  this 
Court  and  it  appearing  from  the  testimony  of  parties  that  good  cause  is 
shown,  it  is  hereby  ordered  and  the  Court  does  hereby  grant  to  C.  D.  letters 
of  administration  on  the  estate  of  E.  F.,  deceased,  late  of  said  county;  and 
thereupon  said  C.  D.  appeared  in  open  court,  presenting  his  bond  as  such 

administrator  in  the  sum  of dollars,  which  is  approved 

by  the  Court. 


65 


DEFINITION,  ETC. 


§68 


CHAPTER  V. 

LETTERS  TESTAMENTARY. 


§  68  Definition,  etc.  §  84 

§  69  Distinction  between  administra-        §  85 
tor  and  executor.  §  86 

%  70  Power  of  the  executor  prior  to       §  87 
letters.  §  88 

§  7 1  When  application  can  be  made.       §  89 

§  72  In     what      court      application       §  90 
should  be  made.  §  91 

§  73  Will  must  be  duly  probated.  §  92 

§  74  Inhabitant  or  resident.  §  93 

§  75  The  estate  to  be  administered. 

§  76  Application  for  appointment  §  94 

§  77  Oath  to  application. 

§  78  Form  of  application  for  letters 

testamentary.  §  95 

§  79  Who    are    capable    of   receiving 
appointment. 

§  80  Named  in  the  will.  §  96 

§  81  Legally   competent. 

§  82  Residence   of  the   executor.  §  97 

§  83  Bond  of  executor  and  its  con- 
dition. §  98 

§  83a  When  bond  not  required. 


Form  of  executor's  bond. 
When  bond  need  not  be  given. 
Separate  bonds. 
Form  of  executor's  letters. 
The  order  of  appointment. 
Form  of  entry. 
Effect  of  order. 

How  the  order  may  be  attacked. 
Renunciation. 

Administration  during  the  mi- 
nority of  an  executor. 
An  executor  of  an  executor  can 

not  administer  the  trust  of 

first  testator. 
The    power    of    executors    and 

administrators      during      the 

contest  of  a  will. 
Contest   of  will.     May  borrow 

money,   etc. 
Application  to  repair  buildings 

and  borrow  money. 
Form   of   entry.i 


§  68.     Definition,  etc. 

An  executor  is  a  person  appointed  by  a  testator  to  carry  out 
the  direction  and  request  of  his  will  and  dispose  of  his  property 
according  to  his  testamentary  provision  after  his  decease.^ 

Usually  every  will  designates  some  one  or  more  persons  to 
whom  the  testator  intrusts  the  carrying  into  effect  of  his  testa- 
mentary desire;  and  papers  have  been  upheld  and  deemed  and 


ISee  §  1013,  Wills,  etc. 
See  §  1081,  Probate  of  Wills. 
See    §  1250,    Testamentary    Trus- 
tees. 


2  Whart.  law  lex.  title  Executor. 
2  Bl.  Com.  494. 

See  chapter  13a,  Trust  companies 
as  executor. 


§  69  LETTERS    TESTAMENTARY  66 

entitled  to  probate  which  have  named  no  disposition  of  property 
whatever.^ 

The  mere  failure  to  mention  some  one  as  executor  does  not 
effect  the  validity  of  the  will,  for  the  Court  will  never  allow  a 
trust  to  fail  for  want  of  a  trustee. 

§  69.     Distinction  between  administrator  and  executor. 

The  functions,  powers,  duties,  rights  and  liabilities  of  execu- 
tors are  in  most  respects  identical  with  those  of  administrators. 
An  executor  being  named  in  the  will  as  the  person  whom  the  tes- 
tator desires  to  administer  his  estate,  and  from  that  fact  he  is 
entitled  to  receive  the  appointment  from  the  Court  of  Probate.* 
While  an  administrator  receives  his  right  to  administer 
from  some  provision  of  law,  and  the  Court  acting  upon  such 
provision,  grants  to  him  letters  of  administration ;  an  executor, 
so  far  as  no  other  provision  is  made  in  the  will  for  the  settle- 
ment of  an  estate,  acts  under  the  same  law  and  is  under  the 
same  responsibility  as  an  administrator.  But  in  all  matters  in 
the  administration  of  the  estate,  where  not  contrary  to  law,  he 
must  follow  the  provisions  of  the  will.  The  mere  fact  of  being 
named  as  executor  in  the  will  does  not  give  him  power  to  act  — 
it  merely  confers  upon  him  the  right  to  be  appointed  as  such 
executor  by  the  Probate  Court.^ 

§  70.     Power  of  the  executor  prior  to  letters. 

Our  statute  provides  as  follows : 

"No  executor  named  in  a  will,  before  letters  testamentary 
are  granted,  shall  have  any  power  to  dispose  of  any  part  of 
the  estate  of  the  testator  except  to  pay  funeral  charges,  nor  to 
interfere  with  such  estate  further  than  is  necessary  for  its 
preservation."     [R.  S.  §  6004.]« 

This  section  does  not  prohibit  such  possession  of  the  property 
under  the  will  as  niaj^  be  necessary  for  its  safety  until  the  pro- 

3  19  Am.  &  Eng.  Ency.  of  Law  5  §  1251.  Distinction  between  ex- 
178.                                                                      ecutor   and   testamentary  trustee. 

See  §  1026,  Having  property.  «  §  10616  G.  C. 

4  §§  79.  81  and  108. 


67  WHEN    APPLICATION    MADE  §  71 

bate  of  the  will,  but  merely  inhibits  the  exercise  of  any  power 
of  deposition  over  the  estate  or  any  interference  with  it.  But 
if  it  were  necessary,  for  example,  to  take  possession  of  the  per- 
sonal estate  for  its  protection,  in  any  respect,  the  executor  would 
be  justified  in  so  doing.' 

This  section  deprives  a  person  named  as  executor  in  the  will 
from  so  acting  as  to  become  a  representative  of  the  decedent  per- 
son.® 


§71.  When  application  can  be  made.  "  When  a  will  is  duly 
proved  and  allowed,  the  probate  court  shall  issue  letters  tes- 
tamentary thereon  to  the  executor,  if  any  be  named  therein, 
if  he  is  legally  competent,  and  accepts  the  trust  and  gives 
bond,  if  that  be  required.  Provided,  however,  if  the  executor 
named  in  a  will  be  a  non-resident  of  this  state,  the  court  may 
refuse  to  issue  letters  testamentary  to  such  person  named 
therein.  Otherwise,  the  court  shall  grant  letters  of  administra- 
tion on  the  estate  as  hereinafter  provided."  [R.  S.  §5995; 
108  V.  275.]  » 

It  will  be  noticed  from  the  above  statute  that  there  is  no  time 
limited  within  which  executors  must  qualify.  It  is,  however, 
generally  speaking,  highly  important  that  they  should  qualify 
as  promptly  as  possible.  They  should  have  a  reasonable  time 
after  the  will  is  probated  to  consider  whether  they  will  accept 
the  appointment.     In  the  next  chapter  it  will  be  seen  that  if 


7  §   62.  executor  nor  confer  title  upon  him, 
People  vs.  Commissioners,  31  Hun  but     are     the     authentic     evidence 

235;   Van  Schaack  vs.  Saunders,  32  of  the  power  conferred  by  the  will 

Hun  520.  and    which    existed    before    he    was 

8  Matter    of    Flandrow,    28    Hun  appointed.     The  property  of  the  tes- 
279.  tator  is  in  the  hands  of  the  execu- 

The  executor  derives  his  appoint-  tor  appointed  by  the  will,  before  the 

ment  and  title  to  the  estate  from  the  probate,  and  he  may  exercise  many 

will,  though  he  is  not  called  in  sub-  of  the  powers  of  an  owner  over  it. 

stantial  power  cf  deposition  or  ad-  He  cannot  dispose  of  it,  but  he  may 

ministration  until  the  Probate  Court  take  it  into  his  possession  for  safe 

grants    him    authenticated    evidence  keeping. 

of  his  right  in  the  form  of  letters  People  vs.  Barker,  150  N.  Y.  52; 

testamentary  upon  proof  of  the  will.  Hartnett  V.  Wandell,  60  N.  Y.  346; 

The  will  is  the  source  of  executor's  Morris,    Admin.,    vs.    Bills,    Wright 

title  and  general  powers.     The  let-  343. 

tera  testamentary   founded   on   pro-  See  §  61 ;  Woerner  on  Admin.  384 

bate  of  the  will   do  not   create  the  9  §  10605  G.  C. 


§  72  LETTERS    TESTAMENTARY  68 

they  do  not  qualify  they  may  be  cited  to  appear  before  Court, 
and  if  they  decline  to  take,  some  one  else  may  be  appointed.^** 

§  72.     In  what  court  application  should  "be  made.     ''Upon 

the  death  of  an  inhabitant  of  this  state,  letters  testamentary, 
or  letters  of  administration  on  his  estate,  shall  be  granted  by 
the  probate  court  of  the  county  in  which  he  was  an  inhabitant 
or  resident  at  the  time  he  died.  When  a  person  dies  intestate 
in  any  other  state  or  country,  leaving  an  estate  to  be  admin- 
istered within  this  state,  administration  thereof  shall  be 
granted  by  the  probate  court  of  a  county  in  which  there  is  any 
estate  to  be  administered.  The  administration  first  lawfully 
granted,  in  the  last  mentioned  case,  shall  extend  to  all  the 
estate  of  the  deceased,  within  the  state ;  and  exclude  the  juris- 
diction of  any  other  court."     [R.  S.  §  5994.] ^^ 

Under  this  section  it  is  held  that  although  the  will  of  a  testa- 
tor, wherever  domiciled  at  the  time  of  his  death,  may  be  ad- 
mitted to  probate  in  any  county  of  the  State  in  which  he  may 
have  left  real  or  personal  estate ;  yet,  if  the  testator  be  a  resident 
of  this  State  at  the  time  of  his  death,  letters  testamenary  on 
such  probated  will  can  issue  only  from  the  Probate  Court  of 
the  county  in  which  the  testator  resided.^'^ 

When  any  person  shall  die  in  any  otber  State  or  country, 
leaving  an  estate  in  tliis  State,  then  there  may  be  an  adminis- 
tration in  any  county  in  which  there  is  an  estate;  and  in  such 
cases  the  Probate  Court  first  assuming  jurisdiction  shall  have 
exclusive  jurisdiction,  and  no  appointment  can  be  made  in  any 
other  county.^^  Likewise  the  court  first  acquiring  jurisdiction 
over  the  estate  of  a  deceased  resident  of  this  State  acquires  ex- 
clusive jurisdiction. 

If  the  appointment  be  made  in  a  coimty  where  there  are  no 
assets  and  where  the  deceased  was  not  an  inhabitant,  although 
there  be  assets  in  another  county  of  the  State,  such  appointment 
is  not  void  —  it  is  merely  voidable  and  cannot  be  attacked  in  a 
collateral  proceeding/* 

10  §  101.     Citation  of  executor.  13  §  29.     Excl.  Juris. 

11  §  10604  G.  C.  §  111,  Appt.   Adm'r. 

See  §  11028  G.  C,  for  Trustees  of  A   person   sentenced   to   the   peni- 

persons  unheard  of.  tentiary  for  life  is  not  dead  so  that 

The  court  has  no  jurisdiction  to  letter  on  his  estate  can  issue.    Fra- 

appoint    an    administrator    for    the  zier  vs.  Fulcher,  17  0.  260. 

estate  of  a  person  who  was  a  non-  l^  Robinson    vs.    Enpins,    24    Fla. 

resident  at  the  time  of  his  decease.  2.37:    S.  C.  4  So.  Rep.  812:    Arnold 

Steel    Castings    Co.   vs.    Farkas.    15  vs.  Arnold.  62  Ga.  627:  ^hirphv  vs. 

N.  P.    (X.S.)    60n.  Creighton,  4.5  la.  179;  Gilchrist  vs. 

12  Limes  vs.  Irwin,  16  0.  S.  488. 


69  INHABITANT,    ETC.  §  73 

§  73.    Will  must  be  duly  probated. 

Several  facts  must  exist  to  give  the  court  jurisdiction  in  the 
appointment  of  an  executor.  Among  which  may  first  be  men- 
tioned the  fact  that  the  will  must  have  been  somewhere  duly 
probated.  Good  practice  demands  that  the  will  be  originally 
probated  in  the  county  in  which  the  Probate  Court  has  jurisdic- 
tion to  appoint  an  executor.  However,  if  the  will  has  been  pro- 
bated in  any  other  place  than  that  in  which  application  is  made 
for  letters  testamentary,  the  Probate  Court  should  first  require 
that  the  will  be  admitted  to  record  in  the  county  of  its  own 
jurisdiction.  In  no  instance  ought  letters  testamentary  be  is- 
sued until  this  has  been  attended  to,  although  it  may  not  be 
absolutely  essential  to  give  the  court  jurisdiction.^^ 

§  74.    Inhabitant  or  resident. 

The  next  jurisdictional  fact  is  that  the  decedent  was  an  in- 
habitant  or  resident  of  the  county  in  which  the  application  is 
made.  If  the  application  does  not  state,  it  will  be  presumed 
the  deceased  was  an  inhabitant  or  resident  of  the  county.^*^^  It 
has  been  said  that  it  was  not  always  easy  to  determine  the  place 
of  residence  of  a  person  at  the  time  of  his  death  so  as  to  fix 
jurisdiction  over  his  estate  in  the  proper  forum.  It  has  been 
defined  as  being,  in  the  common  law  sense,  the  place  where  one 
has  his  true,  fixed  and  permanent  home  and  principal  establish- 
ment, to  which  whenever  he  is  absent  he  has  the  intention  of 
returnino;.^''' 

Williams,  1  B.  Mon.  133;  O'Connor  dence  there.     But  a  person's  domi- 

vs.  Huggins,   113  N.  Y.  511;    S.  C,  cile  is  a  place  where  he  may  reside 

21  N.  E.  Rep.   184;    1  N.  Y.  Supp.  in  fact,  or  for  many  purposes  may 

377 ;   Sullivan  vs.  Fosdick,   10  Hun.  be  deemed  to  reside.    A  man's  domi- 

173.    Contra,  People's  Savings  Bank  cile,    as    the    word    implies,    is    his 

vs.   Wilcox,   15  R.   I.  258;   S.  C,   3  house,  his  home;  and  it  may  contin- 

Atl.  Rep.   211.  ue  such  for  many  years,  without  be- 

See   §    1086,   In   what   court  will  ing  actualy  inhabited  by  him.     But 

probated.  an  inhabitant  of  a  place  is  one  who 

16  See  §  1081,  et  seq.  Probate  of  ordinarily  is  personally  present 
wills.  there,  not  merely  in  itinere,  but  as  a 

^^1 6a  Miller    vs.    Miller,    13    N.    P.      resident  and  dwdler  therein.     A  per- 

17  Woprner   on   Admin.   442.  ^°"  who,   in   contemplation   of  law, 
A  habitation  is  a  place  of  abode,      has    a    domicile,    may,    nevertheless 

a  place  to  dwell  in;  and  an  inhabi-      as  a  matter  of  fact,  be  a  mere  wan- 
tant  is  one  who  has  an  actual  resi- 


§  74  LETTERS     TESTAMENTAEY  70 

Where  a  person  of  unsound  mind  or  a  minor  not  of  age  lias 
acquired  a  residence  he  cannot  of  his  own  accord  change  the 
same/*  Absence  for  reason  of  comfort,  business,  temporary 
convenience  and  the  like  do  not  intend  an  abandonment  of  the 
residence.  But  a  mere  temporary  residence  in  a  county  does 
not  give  the  court  of  that  county  jurisdiction  to  grant  letters; 
it  must  be  a  fixed  domicile  or  residence/^ 

If  a  person  has  left  one  domicile  to  acquire  another  in  a  differ- 
ent county,  but  die  on  the  way,  it  has  been  held  that  letters 
should  be  granted  in  the  place  of  destination ;  ^"  while  others 
favor  the  old  domicile ;  ^^  and  still  others  the  place  of  his  death.'* 

If  a  foreigner  traveling  in  this  State  die  here  our  courts  have 
no  jurisdiction  to  grant  letters  of  administration  unless  he  left 
assets  here.^^ 

If  an  inhabitant  of  a  county  die  an  administrator  for  him 
must  be  appointed  in  such  county,  although  he  have  no  assets 
there,  and  has  assets  in  another  county  of  the  State.^* 

To  work  a  change  of  domicile  there  must  be  a  concurrence  of 
the  intention  to  acquire  the  new  domicile  with  the  fact  of  hav- 
ing acquired  one  and  abandoned  the  former  one  without  the  in- 
tention of  returning  thereto.*^ 

derer,  and  not  an  inhabitant  of  any  existence.     21  Am.  &  Eng.  Eney.  of 

place.    Holmes  vs.  Oregon  &  Cal.  Ry.  Law  123. 

Co.,    5    Fed.    523;    10   Am.   &   Eng.  is  See  §  1322. 

Ency.  of  Law.  774.  is  George     vs.     Watson,     19    Tex. 

Residence   means   the   act   or   the  354;    Harvard    College   vs.   Gore,    5 

state  of  being  seated  or  settled  in  a  Pick.  370. 

place.      It    embraces    not   only   per-  20  Burnett  vs.  Meadows,  7  B.  Mon. 

sonal  presence  in  a  place,  but  an  at-  277;  S.  C,  46  Am.  Dec.  517;  Olson's 

tachment    to    it    by    those    acts    or  Will,  63  la.  145. 

habits  which  express  the  closest  con-  21  Cummings     vs.     Hodgdon,     147 

nection  between  the  person  and  the  Mass.  21 ;  Embry  vs.  Miller,  1  A.  K. 

place,  as  by  usually  sitting  or  lying  Marsh,  300;  S.  C,  10  Am.  Dec.  732; 

there.    In  re  Collins,  64  How.  Pr.  63.  State  vs.  Hallett.  8  Ala.  159. 

Residence  does  not  mean  precisely  22  Leak  vs.   Gilchrist,  2  Dev.   73 ; 

the  same  thing  as  domicile  when  ap-  Alford  vs.  Holbert,  74  Tex.  346. 

plied  to   succession   of   personal   es-  23  Aspinwall  vs.   Queen's,  2   Curt, 

tate,  but  rather  a  fixed  and  perma-  (U.  S.)    241.     Cited  in  T.  &  B.  In- 

nent  abode,  a  dwelling  place  for  th#  diana  Probate  Practice  41. 

time    being    as    contradistinguished  -*  R.  R.  Co.  vs.  Reeves,  8  Ind.  App, 

trom  a  mere  temporary  locality  of  667 ;  S.  C,  35  N.  E.  Rep.  199. 

25  Woerner   on  Admin.  443. 


71  ESTATE  TO    BE   ADMINISTERED  §  75 

To  create  legal  domicile  there  must  be  actual  residence  com* 
bined  with  intent  to  remain.^** 

§  75.     The  estate  to  be  administered. 

There  must  be  some  estate  to  be  administered  or  some  office 
for  the  executor  to  perform  before  there  can  be  an  appointment. 
It  will  be  sufficient  to  authorize  an  appointment  if  there  is  prop- 
erty in  some  other  county  in  the  State ;  even  if  there  be  none  in 
the  county  in  which  application  is  made.  Property  brought 
into  the  State  after  the  deceased's  death  for  the  mere  purpose  of 
giving  jurisdiction  confers  none."^  If,  however,  the  property 
is  brought  within  the  State  with  good  faith  and  not  for  the  pur- 
pose of  giving  jurisdiction,  the  courts  thereby  acquire  jurisdic- 
tion and  may  appoint  an  administrator.^® 

A  judgment  held  by  the  deceased  in  this  State  is  such  an 
asset  as  justifies  the  appointment  of  an  administrator  here,^" 
So  if  an  action  lies  to  set  aside  a  conveyance  in  fraud  of 
creditors.^^  So  if  a  debt  is  due  from  an  inhabitant  of  this  State 
to  the  deceased.^^ 

If  a  policy  of  insurance  on  property  in  this  State  be  issued 
here,  and  there  is  an  agent  of  the  insurer  upon  whom  process 
can  be  served  residing  in  this  State,  letters  may  be  granted 
here.^^  If  the  claim  prove  invalid,  yet  the  grant  of  letters  be- 
cause of  such  claim  Avill  be  valid. ^* 

Evidence  of  debt  payable  to  bearer,  or  which  transfer  title  to 

2S  Greene   vs.   Burkhard,   8   N.   P.  Smith   vs.   N.   Y.   Ins.   Co.,   57   Fed. 

237;    State  vs.  Kulm,  8  N.   P.   197.  Rep.   133. 

See    §§758,    1094,    1086.  so  Thomas    vs.    Tanner,    6    T.    B. 

On  application  to  probate  a  will  Mon.   52. 

the  Probate   Court  has   jurisdiction  ^i  Bowdoin  vs.  Holland,  10  Cush. 

to   fully    and    finally   determine   the  17. 

domicile  of  the  testator.   The  declar-  32  Stearns   vs.   Wright,   51    N.   H. 

ation  of  the  testator  in  his  will  as  600;    Murphy  vs.   Creighton,   45   la. 

to  his  place  of  residence  is  of  high  179;  Wyman  vs.  Halstead,  109  U.  S. 

character  in  determining  this  ques-  654. 

tion.      Wilbering   vs.    Miller,    90    O.  ^3  Xew  England  Ins.  Co.  vs.  Wood- 

S.  28.  worth,  11  U.  S.  138;  Smith  vs.  N.  Y. 

27  Christy   vs.   Vest,   36   la.   285;  Life  Ins.  Co.,  57  Fed.  Rep.  133.    See 

Varner  vs.  Pevil,   17  Ala.  286.  Sulz  vs.  Mutual,   etc.,   Ass'n,   28  N. 

29  Pinney      vs.      McGregory,      102  Y.   Supp.   263;    S.   C,   7   Misc.   Rep. 

Mass.  186;   Borer  vs.  Chapman,  110  593;  In  re  Miller,  5  Dem.  381. 

U.    S.    587;    Carroll    vs.    Hughes,    5  34  Sullivan    vs.    Fosdick,    10   Hun. 

Redf.    337;    In    re   Hooper,   5    Dom.  173;    Holyoke  vs.  Mutual  Life  Ins. 

242;    Fox   vs.    Carr,    16    Hun    434;  Co.,  22  Hun.  75. 


§  76  LETTERS    TESTAMENTAEY  72 

person  by  mere  delivery,  in  the  hands  of  an  applicant  in  this 
State  for  letters  will  confer  jurisdiction  to  grant  letters  here.^' 
Such  are  shares  of  stock  in  the  county  where  the  stock  books  are 
kept,  transfers  made  and  dividends  paid.^'' 

A  note  secured  by  a  mortgage  on  property  situated  in  this 
State  is  sufficient  to  authorize  the  granting  of  letters  here.^^  So 
real  estate  situated  in  this  Stat-e  authorizes  the  granting  of  let- 
ters.^^  A  folding  chair  is  sufficient  to  confer  jurisdiction.^" 
So  a  suit*  on  a  unliquidated  claim.'*''  So  a  claim  against  an  ad- 
ministrator who  has  distributed  the  assets  contrary  to  the  provi- 
sions of  a  will  he  knows  is  in  existence  when  he  made  the  dis- 
tribution.*^ 

§  76.     Application  for  appointment. 

Before  an  appointment  is  made  an  application  must  be  filed 
which  must  state  the  name  of  the  husband  or  widow  and  all  o' 
the  next  of  kin  of  the  deceased  known,  the  postoffice  address,  i/ 
known,  and  also  in  general  terms  as  to  what  the  estate  consist:* 
of  and  the  probable  value.*^ 

In  addition  it  must  state  that  the  will  has  been  proved  and 
that  the  testator  died  an  inhabitant  or  resident  of  the  county. 
It  must  also  be  under  oath.  It  is  exceedingly  important  that 
all  the  jurisdictional  facts  be  set  forth  in  the  application ;  while 
it  may  not  be  absolutely  necessary  to  support  the  jurisdictional 
power  of  the  Court  to  have  a  recital  of  all  the  facts,  yet  it  is  of 
the  highest  importance  that  a  record  should  be  made  of  all  facts 
and  circumstances  which  call  for  the  judicial  power  of  the 
Court.     The  application  affords  the  most  convenient  means  for 

35  Goodlet  vs.  Anderson,  7  Lea.  Nicrosi  vs.  Guily,  8.5  Ala.  365  ;  S.  C, 
286:  Shakespeare  vs.  Fidelity  Co.,  5  So.  Eep.  156;  Bishop  vs  Lalouette, 
r.^  ^  o^  ,-o  T.  cK  67  Ala.  107:  Lees  vs.  \\  etmore,  58 
97  Pa.  St.  1/3;   Beers  vs.  Shannon,  j^    j-^.  ^^^,^  ^.^   Coltrain,  19  Wend. 

73  N.  Y.  292;  Moore  vs.  Jordan,  36       37s. 

Kan    '^71  ^^  White  vs.  Xelson,  2  Deni.  265. 

36  Arnold  vs.  Arnold,  62  Ga.  627.  ''  Robinson    vs.    Epping,    24    Fla. 

,     ,  T.,     ,  •      i  iin       23(:    4  bo.  Rep.  812. 

37  Clark      vs.      Blackmgton,      110  ^^  j,j   ^^  Xesmith,   1   X.  Y.   Supp. 

Mass.  369.  243. 

38Apperson    vs.    Bolton,    29   Ark.  Where    the    estate    exceeds    $100 

.,^      T,         iv   1      ^     T.„^;„N     At    Til  there    must    be    an    administration. 

418;    Rosenthal   vs.   Renick.   44   111.  g^^^j^^^  ^.^    Bettman.  199  Fed.  838. 

202;  Sheldon  vs.  Rice,  39  Mich,  296;  42  §  io617  G.  C;   §  114. 


73  OATH  TO  APPLICATION  §  77 

the  proper  allegation,  so  the  finding  may  constitute  an  adjudi- 
cation of  all  the  necessary  f  acts.*^ 

It  would  likewise  be  proper  for  an  applicant  to  state  his  own 
place  of  residence ;  if  the  will  was  probated  in  any  other  place 
than  the  county  in  which  the  application  is  made  that  fact 
should  be  stated  and  the  name  of  such  place  given.  If  there  are 
any  minor  heirs  or  legatees  tlieir  names,  ages  and  guardians,  if 
known,  might  also  well  be  included.  As  to  the  averments  show- 
ing the  county  in  which  the  deceased  died  it  has  been  held  suffi- 
cient to  aver  that  he  was  "  late  of "  a  particular  county.** 
Also  the  statement  that  iinadministered  assets  remain  is  suffi- 
cient.*^ An  appointment,  however,  without  a  written  petition 
has  been  held  not  void,  merely  voidable.*®  Also  an  application 
for  an  administration  on  two  estates  in  one  petition  will  not  ren- 
der the  appointment  void.*^  The  application  should  also  show 
any  indebtedness  the  deceased  had  against  the  applicant.*^^ 
§  77.    Oath  to  application. 

The  statute  says  that  it  must  be  under  oath ;  by  this  is  meant 
not  that  it  should  be  verified  as  pleadings  generally  are,  but  that 
it  should  be  sworn  to  as  a  fact  and  not  as  a  matter  of  belief. 
However,  it  has  been  held  tliat  the  averment  "  to  the  best  of  af- 
fiant's knowledge  and  belief  "  is  sufficient.** 

Likewise  a  failure  to  verify  the  application  will  not  subject 
the  appointment  to  collateral  attack.*^ 

The  oath  may  be  taken  before  a  notary  or  any  person  em- 
powered to  administer  oaths. ^° 

§  78.     Form  of  application  for  letters  testamentary. 

The  State  of  Ohio, 

County,  ss. 

PROBATE  COURT. 
The  last  will  and  Testament  of who  died 

43  Woerner  on  Admin.  561.  47  Saul    vs.    Frame,    3    Tex.    Civ. 

44 /n  re  Crawford,  21   C.  C.  554;       App.  596. 

..    ,          T           1-7  r.  1    ooo  47a  §10617  G.  C:    §114. 

Abel  vs.  Love,  17  Cal.  233.  ,,  g^^^^^^^  ^.^   ^^right,  7  Barb.  39; 

45  Pumpelly  vs.  Tinkham,  23  Barb.  Roderigas   vs.   East  River  Inst.,  76 
321.  K.  Y.  316. 

46  Robinson   vs.    Epping,    24    Fla.  «  Appeal  of  Miller,  49  N.  W.  Rep. 
237  J  4  So.  Rep.  812.  50  Pickens  vs.  Hill,  30  Ind.  269. 


§  79  LETTERS   TESTAMENTARY  74 

on  the day  of ,  an  inhabitant  and  resident  of  said 

County,  having  been  heretofore  admitted  to  Probate  in  said  Court,  and  the 

undersigned,   whose   Post   Otfice   address   is County, 

Ohio,  having  been  named  therein  as  execut ,  hereby  makes  application 

for  letters  Testamentary  thereon. 

That   the    applicant   was indebted   to    deceased    in   the   sum 

of $ 

Said  decedent  left  Personal  Estate  composed  of  moneys, 

goods,    chattels,    rights   and   credits,   estimated    of   the 

value  of  about         -         -         -         -         -         -         -         -       $ 

And  Real  Estate  being 

Of  estimated  value  of  about  $ , — so  much  thereof 

as  is  directed  by  said  Will  to  be  sold,  being  of  about 

the  value  of $ 

Said  applicant  offers  bond  in  the  sum  of         -         -         -       $ 

with   and   

all  freeholders,  as  sureties,  and 

suggest    

and    as  appraisers. 

Said  decedent  died   leaving h husband 

widow — and  the  following  persons  all  the  next  of  kin  of  the  deceased,  to 
this  afSant  know. 

Tliat  said  applicant  was  indebted  to  deceased  at  the  time  of  his  death 
as  follows: 

NAME.  DEGREE   OF   KINSHIP.  P.    O.    ADDRESS. 

The  foregoing  application  was  signed  in  my  presence  and  sworn  to  before 

me  this day  of 190 . .  . 

Probate    Judge. 

Deputy    Clerk. 

§  79.    Who  are  capable  of  receiving  appointment. 

All  persons,  generally  speaking,  are  capable  of  becoming  exe- 
cutors who  are  capable  of  making  wills. ^^  This  is  the  common- 
law  rule  which  is  in  force  in  our  State.  The  only  limitation 
which  the  statute  designates  is  that  the  person  must  be  legally 
competent.  Recently  it  has  been  enacted  by  statute  that  cor- 
porations upon  complying  with  certain  provisions  incorporated 
in  the  law  may  become  executors.'"'-  As  to  who  are  legally  com- 
petent will  be  treated  of  in  a  subsequent  section. 
§  80.    Named  in  the  will. 

The  person  asking  the  appointment  must  be  named  in  the 
will.     This  does  not  necessarily  mean  that  he  should  be  desig- 

51  Sch.  Ex.  32.  constitutional  the  appointment  could 

52  §  3821c  R.  S.  This  law  was  not  be  attacked  collaterally.  See 
declared  unconstitutional,  and  it  was  53  Bull.  83-446 ;  79  O.  S.  89.  Later 
held  in  another  case  that  tlie  order  act  of  1919,  108  vs.  120,  §207a; 
of  the  Probate  Court  could  be  collat-  710-160  G.  C.  Chapter  13a.  No 
erallv  attacked.  Telegraph  vs.  Sav-  bond  is  required  except  on  applica- 
ings'Co.,  30  0.  C.  C.  380;   78  0.  S.  tion. 

398;    affirming,    witliout    report,    20  See  §  1252.  Wlio  may  be  trustee. 

Cir.  D.  380.     This  latter  case,  how-  Marriage    of  a    female    is    no    dis- 

ever,  was  overruled,  and  it  was  final-  qualification.  §  10636  G.  C. 
ly  held  that  even  if  the  law  was  un- 


75  LEGALLY  COMPETENT  §  81 

nated  by  his  name  in  the  will ;  it  will  be  sufficient  if  the  lan- 
guage used  by  the  testator  be  such  that  it  shows  an  intention 
that  a  certain  person  be  invested  with  the  character  of  execu- 
tor.^^  The  testator  may  even  delegate  the  appointment  to  a 
third  person.^* 

So  the  testator  may  empower  the  survivor  of  two  executors 
named,  or  a  single  executor,  to  appoint  a  co-executor  on  one 
hand  or  appoint  his  successors  on  the  other  hand  until  the  will 
shall  have  been  executed,  and  such  appointees  will  be  charged 
with  the  trust  estate  in  place  of  their  predecessors/* 

If  the  testator  used  the  word  trustee  and  yet  imposed  upon 
him  duties  involving  tlie  functions  of  an  executor,  this  is  a  good 
appointment.^'^ 

Where  the  testator  in  his  will  did  not  specifically  appoint  any 
executor,  but  nominated  four  persons  to  act  as  his  trustees,  and 
bequeathed  to  them  his  residuary  estate,  with  power  to  receive 
any  sums  due  to  the  residue,  and  to  give  and  discharge  for  the 
same ;  and  the  will  contained  directions  "  to  my  executors,"  as 
to  the  payments  of  his  debts,  and  as  to  the  manner  in  which  they 
were  to  deal  with  the  residue  and  other  portions  of  the  estate, 
and  generally  it  appears  that  the  testator  had  used  the  word 
trustees  and  executors  indefinitely  as  referring  to  the  same 
person,  it  was  held  that  the  trustees  were  executors.*^ 

§  81.     Legally  competent. 

Statute  provides  that  the  person  named  in  the  will  shall  be 
appointed  if  legally  competent,  but  it  fails  to  provide  as  do  the 
statutes  of  many  of  the  other  States,  what  is  considered  to  be 
legal  incompetence.  It  has  been  thought  by  some  ^*  that  where 
such  objections  exist  against  the  appointment  of  the  person  as 

53  Carpenter  vs.  Cameron,  7  ^6  Richards  vs.  Moore,  5  Redf.  278. 
Watts.  51 ;  Matter  of  Blancan,  4  67  /„  re  Melville,  15  Prob.  Div.  22. 
Redf.  151.  See    §    1308.     Testamentary   guard- 

54  Hartnett  vs.  Wandell,  60  N.  Y.  ian. 

346.  osGiauque  Settlements,  203. 

ssMulford  vs.  Mulford,  42  N".  J. 
Eq.   68. 


§  82  LETTERS  TESTAMENTAEY  76 

would  justify  his  removal  by  the  court  after  his  appointment 
there  would  be  sufficient  to  refuse  him  in  the  first  instance.  It 
has,  however,  been  held  by  several  Probate  Courts  in  Ohio  to 
the  contrary ;  and  that,  under  the  common  law  rule,  which  pre- 
vails in  Ohio,  none  are  legally  incompetent  except  minors,  idiots 
and  insane  persons.^^  And  that  where  the  person  was  not  thus 
legally  incompetent  he  was  entitled  to  receive  the  appoint- 
ment.®°  To  this  might  be  added  that  the  Probate  Judge  could 
not  receive  the  appointment  himself.^^ 

And  likewise  the  guardian  of  a  deceased  person  could  not  be 
appointed.  Courts  sometimes  permit  guardians  to  resign  and 
file  their  account,  and  then  appoint  them  administrators.  The 
difficulty  in  the  way  of  this  practice  is  that  the  administrator 
in  settling  with  the  guardian  is  one  person  acting  in  two  capaci- 
ties. It  may  perhaps  be  legally  done,  but  is  not  commended. 
There  is  no  special  provision  on  this  subject,  but  it  is  not  within 
the  duties  of  the  guardian  to  settle  up  the  estate  and  make  dis- 
tribution to  the  persons  entitled.  Formerly  it  was  held  that  a 
married  woman  could  not  act  as  executor,  but  this  is  now  abol- 
ished by  statute.^-  An  infant  improperly  appointed  is  an  admin- 
istrator de  facto  and  her  acts  are  valid  and  can  not  be  collaterally 
attacked."-^ 

§  82.    Residence  of  the  executor. 

At  common  law  non-residence  of  the  executor  did  not  dis- 
qualify him  to  act.  There  being  no  statutory  provision  on  the 
subject,  it  is  safe  to  assume  that  the  common-law  rule  prevails 
in  Ohio.  Yet  the  law  certainly  does  not  encourage  such  ap- 
pointments, for  it  is  provided  that  a  resident  executor  may  be 
removed  if  he  moves  from  the  State.  And  if  removal  from  the 
State  is  good  cause  to  terminate  the  trust,  non-residence  ought 
to  be  a  good  reason  for  refusing  it. 

And  it  may  be  said  that  it  is  not  advisable  where  the  same 

can  be  avoided  to  appoint  a  non-resident  as  executor.     In  fact 

no  one  ought  to  be  appointed,  ordinarily,  to  either  the  position 

59 /»?.  re  Sultzbach,  5   X.  P.  218;  of   his   iinsiiitability  would   need  to 

S.  C,  5  Dec.  510.  be  raised  upon  an  application  to  re- 

60  in  re  Oscamp,  5  Dec.  584;  7  N.  move.  In  re  Sell's  Est.,  5  X.  P. 
P.  685.  (X.S.)    629;    52   Bull.   610. 

61  §§  1589,   1590  G.  C,   §  9.  If   the  person   named   in  the  will 

62  §  10636  G.  C.  See  chapter  on  has  since  the  death  of  the  testator 
Letters  of  Administration,  §  115.  been  convicted  of  a  crime  the  court 
See  §  222,  Incompetencv,  1308,  and  might  refuse  to  appoint  him.  In  re 
1309,    Guardians.             ""  Marsh.  60  Bull.  — . 

If  the  person  named  is  capable  he  62aTowlin     vs.     Pesh      (W.     Va. 

must  be  appointed.,  and  the  question       1914),  80  S.  E.  450. 


77  MUST   GIVE   BOND  §  83 

of  executor  or  administrator  who  is  not  a  resident  of  the  county 
in  which  the  application  is  made ;  and  therefore  within  the  juris- 
diction of  the  court  to  control  and  govern  his  actions  concerning 
the  trust.  There  may,  however,  be  stronger  reasons  for  the  ap- 
pointment of  a  non-resident  as  executor,  by  reason  of  his  being 
named  in  the  will.  He  may  have  particular  knowledge  of  the 
affairs  to  be  administered  and  besides  he  was  selected  for  that 
purpose  by  the  decedent  who  is  presumed  to  have  known  his 
qualification.  In  a  recent  case  it  was  held  that  a  non-resident 
person  named  as  executor  must  be  appointed.^^"  The  statute  has 
now  been  amended  to  make  it  optional  with  the  court.®^*^ 

§  83.  Bond  of  executor,  and  its  condition.  "Every  executor 
before  entering  upon  the  execution  of  his  trust,  must  give  bond, 
with  two  or  more  sufficient  sureties,  in  such  sum  as  the  court 
orders,  payable  to  the  state   with  conditions  as  follows : 

"1.  To  make  and  return  to  the  court,  on  oath,  within  thirty 
days,  a  true  inventory  of  all  the  moneys,  goods,  chattels,  rights, 
and  credits  of  the  testator  which  are  by  law  to  be  administered, 
and  which  come  to  his  possession  or  knowledge ;  and,  also  if 
required  by  the  court,  an  inventory  of  the  real  estate  of  the 
deceased ; 

"2.  To  administer  according  to  law,  and  the  will  of  the 
testator,  all  his  goods,  chattels,  rights  and  credits,  and  the 
proceeds  of  all  his  real  estate,  sold  for  the  payment  of  debts, 
or  legacies,  which  comes  to  the  possession  of  the  executor,  or 
to  the  possession  of  any  other  person  for  him ; 

"3.  To  render  upon  oath,  a  just  and  true  account  of  his 
administration  within  twelve  months  and  at  other  times  when 
required  by  the  court  or  the  law.  Failing  to  do  so  for  thirty 
days  after  he  has  been  notified  of  the  expiration  of  the  time  by 
the  probate  judge,  he  may  forthwith  be  removed  by  the  court 
and  he  shall  receive  no  allowance  for  services,  unless  the  court 
enters  upon  its  journal  that  such  delay  was  necessary  and 
reasonable."     [R.  S.  §5996;  vol.  102-200'.]«3 

§  83a.  When  bond  not  required.  "When  two  or  more  per- 
sons are  appointed  executors,  none  shall  intermeddle  or  act 
as  such  but  those  who  give  bond  as  before  prescribed;  except 
that  when,  by  the  terms  of  a  last  will,  the  testator  expresses  a 
wish  that  his  executor  may  execute  it  without  giving  bond,  the 
court  admitting  it  to  probate,  at  its  discretion  may  grant  let- 
ters testamentary,  with  or  without  bond;  and  when  granted 
without  bond,  at  any  later  period,  upon  the  application  of  a 
party  interested,  may  require  bond  to  be  given,  and  on  default 
in  giving  it  the  executor  may  be  removed."     [R.  S.  §  5996.]®^* 

62b  Tn  re  Season^ood,  37  O.  C.  C.  S3*  §  10607  G    C 

200;  2.5  O.  C.  C.   (KS.)   369.  An  order  for  a  bond  must  comply 

62c  §]  0605  G.  C-   §71.  with    this    section.     In   re   Willson, 

63  §  10606    G.    C.  14  N    P.  443 


§  84  LETTERS   TESTAMENTARY  78 

The  bond  must  be  in  such  a  sum  as  the  Court  may  direct, 
usually  double  the  amount  of  the  assets  to  be  administered, 
and  must  be  signed  by  two  securities  required  by  law  to  be 
inhabitants  of  the  State ;  and  usually  required  by  the  rules 
of  the  court  to  be  freeholders  and  resident  of  the  county. 
Valid  letters  testamentary  cannot  be  granted  until  satisfac- 
tory bond  is  given.^* 

§  84.     Form  of  executor's  bond. 

Know  all  Men  by  these  Presents,  That  we, 

and are  held  and  firmly  bound  to  the 

State  of  Ohio,  in  the  penal  sum  of 

Dollars,  to  the  payment  of  which  sum,  well  and  trly  to  be  made,  we  do  bind 
ourselves,  our  heirs,  executors  and  administrators,  jointly  and  severally 
by  these  presents. 

Signed  by  us  and  dated  at Ohio,   this 

day  of ,  in  the  year  one  thousand  nine  hundred  and 

The  Condition  of  the  above  Obligation  is  such.  That  if  the  above  bound 
Execut of  the  last  Will  and  Testa- 
ment of deceased    late  ol 

,  in  the  County  of aforesaid: 

First,  Shall  make  and  return  to  the  Probate  Court,  within  and  for  said 
County,  on  oath  within  thirty  days,  a  true  inventory  of  all  the  moneys, 

goods,  chattels,  rights  and  credits  of  the  Testa which  are  by  law  to  be 

administered,  and  which  shall  have  come  to  .  .  h .  .  .  .  possession  or  knowl- 
edge; and,  also,  if  required  by  said  Court,  an  inventory  of  the  real  estate 
of  the  deceased ; 

Second,  Shall   administer,   according  to  law,   and   the   Will   of   the   Tes- 

tat ,  all  h .  .  .  .  goods,  chattels,  rights  and  credits,  and  the  proceeds  of 

all  h .  .  . .  real  estate  that  may  be  sold  for  the  payment  of  h . .  .  .  debts  or 
legacies,  which  shall  at  any  time  come  to  . .  h .  .  . .  possession,  or  to  the 
possession  of  any  other  person  for  .  .  h .  .  .  .  ;  and. 

Third,  Shall  render,  upon  oath,  a  just  and  true  account  of  ..h.... 
administration,  within  twelve  months,  and  at  any  other  times  when 
required  by  said  Court  or  the  law;  and  failing  so  to  do  for  thirty  days 
after  .  .he.  .  . .  shall  have  been  notified  of  the  expiration  of  the  time  by  the 


64  See  S  233  ef  seq.  on  bonds,  even  where  the  will  desires  the  same 

See  §  280  et  srq.  on  inventory.  to    be    omitted.      In   re   Willson,    14 

See  §  506  ct  scq.     Care  and  man-  X.  P.  44. 

agement.  A  party  "interested"   is   any  one 

See  §  702  ct  seq.     Accounting.  who  has  any  right  in  the  property 

The    matter   of    requiring   a    bond  to  be  administered.     Id. 

rests  with  the  discretion  of  the  court 


79  BOND    NOT    NEEDED  §  85 

Probate  Judge,  . .  he .  .  . .  shall  receive  no  allowance  for  services,  unless  the 
Court  shall  enter  upon  its  journal  that  such  delay  was  necessary  and 
reasonable; 

Then  this  obligation  to  be  void;  otherwise  to  remain  in  full  force  and 
virtue  in  law. 

Executed  in  Presence  of       

This  bond  approved  in  open  Court,  this. .  .  .day  of A.  D.  19. . .. 

Probate  Judge. 

§  85.     When  bond  need  not  be  given. 

Statute  provides  that  when  the  will  expressly  provides  that 
the  executor  maj  be  excused  from  giving  bond  that  the  letters 
may  be  issued  without  such  bond.  If  the  Court  deems  the  same 
expedient,  bond  may  be  omitted.  It  may  be  difficult  to  say  just 
what  circumstances  ought  to  exist  to  induce  the  Court  to  dis- 
pense with  the  bond.  It  seems  to  be  left  in  the  sole  discretion 
of  the  Court.  An  Appellate  Court  would  not  interfere  with 
this  discretion  unless  it  be  plainly  in  conflict  with  the  letter  and 
spirit  of  the  law.®^  I  think,  however,  it  may  be  stated  that  it  is 
a  general  rule  among  Probate  Judges  tliat  where  any  party  in 
interest  demands  that  the  bond  be  given  that  it  will  then  be  re- 
quired, otherwise  the  directions  of  the  testator  will  be  followed ; 
and  the  Court  should,  if  it  has  any  reason  to  suspect  the  integ- 
rity, the  mental  capacity  or  financial  ability  of  the  executor, 
protect  the  estate  and  interest  of  all  concerned  by  requiring  such 
bond.«« 

It  would  seem  from  the  wording  of  §  10607  G.  C. ;  §  83,  that 
only  the  court  admitting  the  will  to  probate  may  dispense  with 
the  bond,  and  that  if  an  application  be  made  in  a  court  other 
than  that  which  admitted  tlie  will  to  probate,  the  general  pro- 
vision of  the  statute  must  be  complied  with  and  the  bond 
given. ®^ 

§86.  Separate  bonds.  "When  two  or  more  persons  are 
appointed  executors,  administrators,  or  testamentary  trustees, 
the  court  may  take  a  separate  bond,  with  sureties  from  each. 

esWoerner   on   Admin.   544.  «7  See  §§  1310,  1333  Gdns. 

66  See    chapt.    16,    §    243.      New 
bonds. 


§  87  LETTERS   TESTAMENTARY  80 

or  a  joint  bond,  with  sureties  from  all  of  them  together.  In 
all  bonds  with  sureties,  given  by  executors,  administrators,  or 
trustees,  all  the  sureties  must  be  inhabitants  of  this  state,  and 
such  as  the  court  approves.  The  bonds  shall  be  filed  in  the 
court  taking  them."     [R.  S.  §  5999.] *^« 


If  the  executors,  administrators  or  testamentary  trustees  so 
desire,  it  is  a  general  practice  to  allow  each  of  them  to  make  a 
separate  bond.  But  where  there  is  no  request  of  that  kind  it 
is  usual  to  make  a  joint  bond.  The  general  form  of  bond  here- 
inbefore given  will  answer  the  purpose  of  a  separate  or  joint 
bond  —  it  being  treated  as  a  separate  one  if  executed  by  one  and 
a  joint  bond  if  executed  by  all.** 

§  87.     Form  of  executor's  letters. 

The  state  of  Ohio, County,  ss. 

I, Judge   of   the 

Probate  Court  within  and  for  said  County,  in  the  name  and  by  the  authority 
of  the  State  of  Ohio,  do  by  these  presents  MAKE  KNOWN  that  in  said 

Probate  Court  at on  the 

day  of one   thousand   nine   hundred   and 

the  last  will  and  testament  of 

late  of in  said  Count,  deceased    (a  copy 

of  which  is  hereto  annexed)  was  duly  proved  and  allowed,  by  said  Court, 
and  that  the  administration  of  all  and  singular  the  Goods,  Chattels.  Rights 

and  Credits  of  the  said  deceased  any  way  concerning 

last  Will  and  Testament  was  committed  to 

in  the  County  aforesaid,  the  Execut 

in  the  said  Will  and  Testament  named ;  and  the  said  Execut shall : 

First,  Make  and  return  to  the  Court,  on  oath,  within  thirty  days,  a 
true  inventory  of  all  the  ]\Ioneys,  Goods,  Chattels,  Rights  and  Credits  of  the 

Testa which  are  by  law  to  be  administered,  and  which  shall  have 

come   to possession   or    knowledge,    and   have   the    same   appraised 

by    

three  suitable  disinterested  persons,  and  also,  if  required  by 

the  Court,  an  inventory  of  the  real  estate  of  the  deceased. 

Second,  Shall  administer  according  to  law  and  the  will  and  the  Tes- 
ta  all Goods,  Chattels,  Rights  and  Credits,  and  the  pro- 
ceeds of  all Real  Estate  that  may  be  sold  for  the  payment  of 

debts  or  legacies,  which  shall  at  any  time  come  to 

possession,  or  to  the  possession  of  any  other  person  for ;  and 

es§  10611  G.  C.  ters  are  issued  if  the  proper  order 

69  See  chapt.  13,  §  201,  Co.  Admin.  is  made  in  the  journal.     Fields  vs. 

See    §  1264,    Testamentary    trustees.  Block,  4  C.  C.   (N.S.)   216:  20  0.  C. 

A  person  who  is  eligible  may  be  C.  113. 

legally   appointed,   although   no   let- 


81  ORDEK    OF    APPOINTMENT  §  88 

Third,  Shall  render,  upon  oath,   a  just  and  true  account  of 

administration  within  twelve  months,  and  at  any  other  times  when 
required  by  said  Probate  Court  or  the  law ;  and  failing  so  to  do,  for  30  days 
aiiter  he  shall  have  been  notified  by  the  expiration  of  the  time,  by  the 
Probate  Judge,  he  shall  receive  no  allowance  for  services,  unless  the  Court 
shall  enter  upon  its  journal  that  such  delay  was  necessary  and  reasonable. 

And  we  hereby  appoint  the  said 

Execut of  all  and  singular  the  said  Goods, 

Chattels,  Rights  and  Credits  which  were  of  the  said 

deceased. 

In  testimony  tchereof,  I  have  hereunto  affixed 

the  Seal  of  said  Court  at 

in   said    County, 

this day    of 190 ..  . 

Probate   Judge. 

§  88.     The  order  of  appointment. 

The  order  should  designate  the  person  and  the  estate  over 
which  he  is  appointed.  An  order  granting  letters  on  one  estate 
out  of  a  number,  without  stating  which  one,  applies  to  none, 
and  is  void.'° 

An  order  providing  that  "  A.  be  and  herebj  is  appointed  ad- 
ministrator on  giving  proper  bond,"  fixing  tbe  amount  of  the 
bond  (and  the  surety)  is  an  absolute  and  not  a  conditional  grant 
if  the  bond  be  filed  on  the  same  day  ^^  or  before  revoked.  An 
order  granting  letters  is  an  adjudication  that  all  the  facts  ex- 
isted which  were  necessary  to  give  the  court  jurisdiction,  and 
that  all  steps  had  been  taken  that  were  necessary  to  the  issuance 
of  the  letters.''^ 

The  fact  that  the  appointment  is  made  hurriedly  does  not 
render  it  void,^^  even  if  made  on  the  day  of  the  death  of  the 

decedent.^* 

§  89.     Form  of  entry. 

APPROVAL   OF    BOND    AND   GRANTING   LETTERS. 

This  day  came  A.  B.  and  filed  his  application  to  be  appointed  executor 
under  the  will  of  C.  D.,  and  at  the  same  time  filed  his  bond  in  sum  of 

TOHarwood  vs.  Wylie,  70  Tex.  107;  S.  C,  23  Pac.  Rep.  528;  24  Pac. 
638;  S.  C,  7  S.  W.  Rep.  789.  Rep    381. 

71  Tucker   vs.   Harris,    13   Ga.    1;  73  Bowen    vs.    Stewart,    128    Ind. 

Haskins  vs.  Miller,  2  Dev.  L.  360.  507. 

'2  In  re  Griffith's  Estate,  84  Gal.  74  in  re  Comfort's  Estate,  12  Psk. 

Co.  Ct.  Rep.  571. 


§90 


LETTERS   TESTAMENTARY 


82 


Dollars   with   E.    F.   and   G.   H.,   sureties   thereon. 

Whereupon  the  Court  finds  that  the  allegations  of  the  said  application  are 
true,  and  that  the  bond  is  sufficient  according  to  law  and  the  same  ia 
hereby  approved,  and  it  is  ordered  that  letters  testamentary  be  granted  to 
A.  B. ;  and  that  H.  I.,  J.  K.  and  L.  M.  be  appointed  appraisers.^o 

§  90.     Effect  of  order. 

The  Probate  Courts  of  this  State  being  courts  of  record  and 
competent  to  decide  on  their  own  jurisdiction,  and  exercise  it 
to  final  judgment,  their  records  import  absolute  verity.^® 

And  therefore  an  order  m^ade  of  an  appointment  of  an  execu- 
tor or  administrator  cannot  be  attacked  collaterally.^®*  No  evi- 
dence can  be  adduced  showing  anything  contrary  to  the  record. 
It  will  conclusively  be  presumed  in  all  collateral  proceedings 
that  the  order  was  made  upon  full  proof  of  all  the  facts  neces- 
sary to  authorize  it;  and  letters  issued  under  the  seal  of  the 
court  are  conclusive  evidence  of  the  authority  of  the  executor 
to  act.  If  any  attack  is  to  be  made  upon  the  order  of  the  Court 
it  must  be  made  in  a  direct  proceeding  in  the  court  in  which  the 
order  itself  was  made.^^ 


TB  If  real  estate  is  to  be  appraised, 
in  view  of  the  statute  which  requires 
appraisers  of  real  estate  to  be  free- 
holders, while,  perhaps  not  absolute- 
ly essential,  it  will  follow  the  spirit 
of  the  law  if  the  appraisers  be  free- 
holders; and  where  real  estate  is 
expected  to  be  appraised,  the  follow- 
ing should  be  added  to  the  above 
entry.  ''  And  il  is  ordered  that  said 
executor  include  an  inventory  and 
appraisement  of  all  real  estate  of 
said  decease." 

'«  Uy.  Co.  vs.  Village  of  Belle 
Center,  48  O.  S.  273;  Astram  vs. 
Ten  Eck,  28  Bull.  265. 

7c*  T.  &  0.  C.  Ry.  vs.  Beard,  20  C. 
C.  681. 

77  See  §  208  et  seq.  on  resignation 
and  removal.  See  §  1558,  assign- 
ments. 

All  questions  necessarily  arising 
in  the  ease  becomes  res  adjudicata 
by  the  final  order  of  appointment, 
which  binds  all   the  world  until  set 


aside  or  reversed  by  a  direct  pro- 
ceeding for  that  purpose.  Schroyer 
vs.   Richmond,   16   0.  S.  455. 

But  the  jurisdiction  of  the  court 
is  a  matter  into  wliicli  inquiry  may 
be  made  even  in  collateral  proceed- 
ings where  the  record  contains  no 
finding  of  fact  expressly  showing 
jurisdiction.  Scobey  vs.  Gano,  35 
0.   S.   550. 

An  inquiry  into  the  truth  or  fal- 
sity of  statements  made  to  the  court, 
is  not  a  collateral  attack  upon  the 
findings  of  the  court,  and  a  decree  of 
court  cannot  estop  a  person  from 
asserting  that  in  procuring  the  de- 
cree a  false  statement  was  made,  or 
perjury  committed,  that  statement 
inducing  a  wrong  finding.  Com- 
mercial Gaz.  Co.  vs.  Dean,  25  Bull. 
251. 

An  order  of  the  Probate  Court, 
appointing  an  executor,  if  made 
without  jurisdiction,  is  void,  and  it 
may  be  disregarded  in  any  other 
court,  but  if  made  in  the  exercise 
of  proper  jurisdiction  over  the  sub- 


83  RENUNCIATION  §  91 

§  91.    How  the  order  may  be  attacked. 

The  order  of  appointment  may  be  attacked  in  the  same  man- 
ner as  judg-ments  of  courts  of  general  jurisdiction  are;  and  for 
cause  may  be  set  aside  or  vacated.  No  appeal  will  lie  from  the 
order  of  the  Probate  Court  making  an  appointment  of  an  execu- 
tor or  administrator  or  guardian.'"^  If  the  order  is  to  be  set  aside 
in  a  higher  court  it  must  be  by  proceedings  in  error.^^ 
§  92.    Renunciation. 

Renunciation  is  a  declination  of  an  executor  to  accept  the 
trust.  If  he  so  desires  he  may  do  so  voluntarily ;  if  he  neither 
takes  nor  declines  the  court  may  under  sec.  10612  G.  C.  (§  100) , 
issue  a  citation  for  him  to  appear,  either  to  take  or  decline ;  if  he 
refuses  to  take,  it  will  be  held  that  he  declines.  It  is  very  com- 
mon practice  for  him  to  file  a  paper  declining  to  serve.  After 
letters  have  been  granted  and  he  has  qualified  as  executor,  he 
cannot  renounce  the  appointment  made  in  the  will ;  he  must 
then  resign  if  he  does  not  desire  to  administer  the  trust.^® 

And  if  he  renounces  the  office  he  may  retract  such  renuncia- 
tion, provided  no  administrator  has  been  appointed  previous  to 
his  retraction. ^° 

An  agreement  made  with  persons  in  interest  before  a  testa- 
tor's death  and  contrary  to  his  expressed  wishes  by  one  named 
as  executor,  to  renounce  the  executorship  for  a  stated  consid- 
eration, is  contrary  to  public  policy  and  void.  In  general,  any 
agreement  for  a  consideration  to  renounce  an  executorship  is 
illegal,  and  a  court  of  equity  will  refuse  to  enforce  it.^^ 

§  93.     Administration  during  the  minority  of  an  executor. 

"When  a  person  appointed  executor  is  under  the  age  of 
twenty-one  years  at  the  time  of  proving  the  will,  administra- 
tion may  be   granted  with  the  will  annexed,   during  his  mi- 

ject-matter  and  estate,  although  heard  in  the  Probate  Court,  may- 
based  upon  erroneous  conclusions  of  have  an  adverse  judgment  reviewed 
law  and  fact,  it  can  not  be  coUater-  on  error.  McCallip  vs.  Sharp,  13 
ally  attacked.  Bank  vs.  Telegraph  Dec.  650;  affirmed,  69  0.  S.  650; 
Co^,  79  0.  S.  89.  ]Miller  vs.  Miller,  36  O.  C.  C.   195, 

77a  This  view   is  sustained  by  the  19  O.  C.  C.    (N.S.)    203. 

recent  case  of  Luburg  vs.  Luburg,  13  79  Goods  of  Veiga,  32  L.  J.  P.  9. 

0.    App.    (1920).      Appeal    may    be  so    Eobertson     vs.     McGeoch,     11 

had  from  appointments  of  guardians  Paige  640;  Taylor  vs.  Tibbats,  13  B. 

for    idiots,    lunatics,    improvidents,  Mon.    177;     Casey    vs.    Gardiner,    4 

etc.  Bradf.   13;    Davis  vs.  Inscoe,  84  N. 

78  Can  not  be  attacked  collaterally.  C.    396 ;    Harrison    vs.    Harrison,    4 

T.   &  O.   C.   R.  vs.   Beard,  20  C.   C.  Notes  Cas.  434.     See  §  119. 

681.  81  Sch.  on  E.vecutor,  §  48. 

Any  person  having  a  right  to  be 


§  94  LETTERS    TESTAMENTARY  84 

nority,  unless  there  be  another  executor  who  will  accept  the 
trust,  in  which  ease  the  estate  shall  be  administered  by  him 
until  the  minor  arrives  at  full  age,  when  he  may  be  admitted 
as  executor  with  the  former,  upon  giving  bond  as  before  pro- 
vided."    [R.  S.  §  6001.]  8^' 

It  "will  be  observed  that  this  section  only  applies  to  where  the 
person  named  in  tlie  will  as  executor  is  under  the  age  of 
twenty-one  years.  There  is  in  Ohio  no  such  thing  as  an  admin- 
istrator to  act  while  a  person  entitled  to  letters  of  administration 
is  under  age.  The  law  favors  the  rapid  settlement  of  estates; 
and  even  under  this  provision,  if  the  estate  can  be  settled  in  the 
ordinary  time  or  by  a  provision  of  the  will,  before  the  person 
named  as  executor- arrives  at  the  age  of  maturity,  it  should  be 
done;  and  it  is  only  where  the  proper  administration  of  the 
estate  will  require  it  to  be  prolonged  until  the  minor  arrives  of 
age  that  he  should  be  permitted  to  exercise  his  trust.  The  per- 
son appointed  such  administrator  is  governed  by  the  law  gen- 
erally applicable  to  the  administrations  of  estate. ^^ 

§  94.  An  executor  of  an  executor  can  not  administer  the 
trust  of  first  testator.  "The  executor  of  an  executor  has  no 
authority,  as  such,  to  administer  the  estate  of  the  first  testa- 
tor. On  the  death  of  the  sole  or  surviving  executor  of  a  last 
will,  administration  of  the  estate  of  the  first  testator,  not 
already  administered,  may  be  granted,  with  the  will  annexed, 
to  such  person  as  the  court  deems  fit  to  appoint."  [R.  S. 
§6003.]^* 

This  section  abrogates  the  common  law  rule,  for  it  was  ac- 
cording to  the  common  law  doctrine  that  an  executor  of  an  ex- 
ecutor, how  far  soever  in  decree  remote,  stands  as  to  the  points 

S2  §  10613  G.  C.  istered  and  turned  over  the  surplus, 

83  Administrators  during  minority  he  may  show  this  undr  the  plea  of 

are  said  to  possess  all  the  authority,  plenc  administravit  in  defense  of  a 

for  the  time  being,  of  general  admin-  suit     by     creditors.        Woerner     on 

istrators,   whatever   may   have   been  Admin.    404. 

the    prevailing    opinion     in    earlier  S4  §  10615  G.  C. 

times;    their  acts  are  binding  upon  An    administrator    with    the    will 

the  estate,  and  when  their  office  has  annexed  means  here  the  same  as  an 

expired  by  reason  of  the  majority  of  administrator    under    §  10617    G.    C. 

the  executor  or  administrator  in  his  Seasongood  vs.  Seasongood,  23  O.  C. 

own  right,  they  are  liable  to  credi-  C.    (N.S.)    360. 

tors  for  devastavit,  but  only  to  the  If    two    are    named   and   one    dies 

executor    or    administrator    for    the  the  other  should  be  appointed.  In  re 

assets;    and   if  he  has  only   admin-  Marsh,  50  Bull.  5. 


85  POWEK  DURING  CONTEST^  ETC.  §  95 

both  of  being,  having  and  doing  in  the  same  state  and  plight, 
as  the  first  and  immediate  executor.^^ 

When  the  executor  dies  then  all  his  powers,  or  any  one  through 
him,  so  far  as  administration  of  the  estate  is  concerned,  ceases. 
The  only  thing  the  executor  of  the  deceased  executor  can  do,  and 
that  which  he  must  do,  is  to  file  an  account  of  the  deceased  ex- 
ecutor's trust  within  six  months  after  the  date  of  the  appoint- 
ment of  the  executor  or  administrator  of  such  deceased  ex- 
ecutor.®* And  for  the  purpose  of  compelling  such  accounting 
the  court  has  the  same  power  over  the  executor  or  administrator 
of  the  deceased  executor  or  administrator  as  is  had  over  the  ex- 
ecutor or  administrator  during  his  lifetime.®^ 

§  95,  The  power  of  executors  and  administrators  during  the 
contest  of  a  will.  "When  a  will  is  contested,  the  executor,  or 
the  administrator  de  bonis  non,  wath  the  will  annexed,  or  the 
testamentary  trustee  during  the  contest  may  control  all  the 
real  estate  not  specifically  devised,  included  in  the  will,  and 
all  the  personal  estate  of  the  testator,  not  before  such  contest 
duly  administered ;  collect  the  debts,  and  convert  all  assets 
into  money,  except  such  as  are  specifically  bequeathed ;  pay  all 
taxes  on  such  real  and  personal  property,  and  all  debts  ac- 
cording to  law ;  if  necessary  to  preserve  the  real  property  from 
waste,  repair  buildings  and  other  improvements;  insure  them, 
upon  an  order  therefor  first  obtained  from  the  court  having 
jurisdiction  of  such  executor,  administrator,  or  testamentary 
trustee,  and  for  such  repairs,  taxes  and  insurance,  advance 
or  borrow  money  on  the  credit  of  such  estate,  which  shall  be  a 
charge  thereon.  They  also  may  receive  and  receipt  for  a  dis- 
tributive share  of  an  estate  or  trust  to  which  such  testator 
would  have  been  entitled,  if  living.  The  probate  court  may 
require  such  additional  bonds  as  from  time  to  time  seems 
proper."     [R.  S.  §  6019a.] «« 

85  Williams  Ex.  959.  to  remove  the  administrator.  In  re 
The  reason  given  by  Blackstone  is,  Schonacker,  58  Bull.  78,  yet  the 
"for  the  power  of  the  executor  is  Court  of  Common  Pleas  cannot  de- 
founded  upon  the  special  confidence  clare  it  at  an  end.  Sanker  vs. 
and  actual  appointment  of  the  de-  Mattison,  11  C.  D.  125;  20  0.  C.  C. 
ceased;   and  such  executor  is  there-  229. 

fore  allowed  to  transmit  that  power  ss  See  §§  10820-21  G.  C;    §  707. 

to   another   in   whom    he    has   equal  87  See    §  707,    Admin,   of   deceased 

confidence.     2  Bl.  Conn.  506.  must  file  acct. 

While  breaking  the  will    may  be  88  §  10633  G.  C.   See  §  10635  G.  C. 

sufficient  cause  for  the  Probate  Court  §  159,  as  to  legality  of  sales  made. 


§  96  LETTERS   TESTAMENTARY  86 

§  96.     Contest  of  will.      May  borrow  money,   etc. 

Substantially  by  virtue  of  the  provisions  of  this  section  the 
functions  of  the  administrator  as  to  the  distribution  of  the  estate 
are  suspended.  He  has  power  to  proceed  to  collect  the  debts 
and  to  convert  all  the  assets  into  money,  except  such  as  are  spe- 
cifically bequeathed.  Likewise  he  is  to  have  control  of  the 
real  estate  included  in  the  will,  but  not  specifically  devised ;  if 
specifically  devised,  it  would  be  under  the  control  of  the  legatee. 
Likewise,  if  not  at  all  devised,  it  would  be  under  the  control  of 
the  heirs,  unless  a»  application  would  be  made  by  the  executor 
or  administrator  to  sell  the  real  estate  to  pay  debts.  For  a  con- 
test of  the  will,  will  not  suspend  the  right  of  an  executor  to  file 
a  petition  to  sell  real  estate  to  pay  debts.  As  to  the  property 
under  his  control,  both  real  and  personal,  he  has  the  power  to 
preserve  the  same ;  and  whenever  it  is  necessary  to  preserve  the 
real  estate  from  waste,  or  repair  the  buildings,  he  may  insure 
the  same,  and  may  borrow  money  for  that  purpose.  For  it 
must  be  remembered  that  generally-  no  administrator  or  executor 
can  borrow  money  upon  the  responsibility  of  the  estate ;  if  he 
borrows  money  for  a  proper  purpose  he  may  credit  himself  with 
it  in  his  account,  but  it  is  done  upon  his  o^vn  responsibility. 
Even  under  this  statute,  if  made  a  charge  upon  the  estate,  it 
must  be  done  with  the  approbation  of  the  Probate  Court.^^  He 
can  not  sell  real  estate  to  make  distribution. 

An  executor  is  not  bound  to  assume  the  burden  of  the  defense 
of  a  contest  of  the  will  by  the  heirs  at  law,  but  may  properly 
throw  the  same  upon  the  legatees  or  devisees.®" 

etc.,— if  will  is  set  aside,  etc.— a  new  Tlie  Court  of  Common  Pleas  can- 
judgment  setting  aside  the  will  does  not  appoint  a  receiver  of  real  estate 
not  revoke  the  order  o4  appointment.  specifically  devised  in  an  action  to 
Sanker  vs.  Mattison,  20  C.  C.  229;  contest  a  will  devising  the  same. 
11   C.   D.    125.  Burgess  vs.  Sullivan,  2  X.  P.   (N.S) 

88  As    to    borrowing    money.     See  327:    14   Dec.   712. 

Smith   V6.   Hayward    (aff.   45   Bull.  As  soon  as  a  will  is  probated  the 

228)  5  N.  P.  501;  S.  C,  5  Dec.  462;  devisee    is    entitled    to    control    the 

Welsh  vs.  Perkins,  5  0.  52.  same.    This  case  does  not  decide  that 

90  Andrews'  Ex'rs  vs.  His  Adm'rs,  there  might  not   be  a  receiver,  but 

7  0.  S.  143 ;   In  matter  of  Estate  of  the  mere  fact  of  a  contest  will  not  be 

Jacob   Seegar,   1   Dec.   113;    7   X.   P.  sufficient — no    receiver    can    be    ap- 

208;  In  re  Estate  of  Daniel  Laws,  18  pointed   afterward. 
Bull.    198;    17   Bull.   SO. 


87  BOKKOW    MONEY  §  97 

§  97.    Application  to  repair  buildings  and  borrow  money. 

This  application  is  made  in  the  discretion  of  the  Probate 
Court,  and  while  it  may  be  granted  without  any  notice  to  any 
ini;erested  party,  yet  where  the  sum  is  considerable,  it  should 
not  be  granted  without  notice  to  such  parties.  The  application 
may  be  in  the  following  form : 

(Title.) 

A.  B.  represents  to  the  Court,  that  on  the day  of , 

he  was  appointed  executor  under  the  will   of  C.  D.,  that  afterwards,   on 

the day  of ,  a  petition  was  filed  in  the  Court  of 

Common  Pleas  of county,  by  E.  F.  to  contest  said  will, 

which  said  suit  is  still  pending.  Your  petitioner  further  represents,  that 
under  the  will  of  the  said  deceased,  certain  real  estate  (here  described  the 
name),  came  into  his  possession.  That  said  buildings  on  said  property  are 
in  a  very  bad  condition,  and  badly  in  need  of  repairs.  Likewise  they 
should  be  kept  insured,  and  that  he  has  no  money  in  his  hands,  that  can 
be  applied  for  that  purpose.  He  represents,  that  it  will  require  for  re- 
pairs  (here  insert  what  it  is    proposed  to  be  done),  which  will  cost  about 

dollars;    and    that   insurance   and    taxes    thereon    will 

amount  to dollars;  therefore  he  asks  that  he  may  have 

authority   to   borrow  the   sum   of dollars,   to   pay   such 

taxes  and  insurances  on  said  property,  and  make  needed  repairs  thereon. 

sign. 

A.  B.  being  duly  sworn,  says  the  allegations  in  the  above  application 
are  true. 


§  98.     Form  of  entry. 

This  day  this  cause  came  on  to  be  heard,  upon  the  application  of  A.  B., 
executor  of  C.  D.,  for  permission  to  borrow  money  to  pay  taxes,  costs  of 
insurance,  and  make  certain  repairs  on  the  real  estate,  devised  under  the 
will  of  said  C.  D. ;  and  it  appearing  to  the  Court  I'lat  it  is  proper  and 
necessary  for  a  preservation  of  said  estate  that  said  expenditure  be  made, 
and  that  the  amount  asked  for,  is  reasonable,  and  that  such  expenditure 
will    be   for   the  benefit  of   said   estate.       Wherefore   authority    is   hereby 

granted  to  said  A.  B.  to  borrow  the  said  sum  of dollars, 

to    bear    interest    not    exceeding %    and    payable    within 

months  from  this  date;  and  the  sum  will  be  a  charge  upon  the 

assets  belonging  to  said  estate. 


99  ADMINISTRATOR   WITH    WILL   ANNEXED  88 


CHAPTER  YI. 

ADMINISTRATOR  WITH  THE  WILL  ANNEXED. 

§    99  Definition.  §  105  Bond    of    administrator    with 

§  100  If  executor  renounces,  etc.,  ad-  the  will  annexed. 

ministration  to  be  granted.  §  106  Powers  and  duties  —  Personal 

§  101  Citation  of  executor.  trust. 

§  102  Entry  ordering  issue  of  cita-  §  107  Estate   directed  or  devised  to 

tion.  be    sold    by    executors,    etc., 

§  103  Form   of   citation   to   take   or  failure   of    executors   to   act, 

renounce  administration.  who  may  sell. 
I  104  If  executor   does   not  qualify. 

Application,  etc. 

§  99.     Definition. 

Whenever  the  person  designated  in  the  will  declines  to  serve, 
or  where  there  is  a  will  without  designating  any  person  as  execu- 
tor, the  person  appointed  by  the  court  to  administer  the  estate 
is  known  in  law  as  an  administrator  with  the  will  annexed. 
Like  an  administrator,  he  receives  his  sole  authority  to  act  from 
the  court  making  the  appointment.  But  like  an  executor,  he 
administers  the  estate  in  accordance  with  the  directions  of  the 
will.  His  duties  are  therefore  more  closely  allied  to  those  of 
an  executor  than  an  administrator.  When  it  is  proper  to  make 
such  an  appointment  is  provided  for  in  the  following  section :  * 

§  100.  If  executor  renounces,  etc.,  administration  to  be 
granted.  "If  a  person  named  as  executor  in  the  will  of  a  de- 
cedent refuses  to  accept  the  trust,  or,  if  after  being  duly  cited  for 
that  purpose,  neglects  to  appear  and  accept,  or  if  he  neglects  for 
twenty  days  after  probate  of  the  will  to  give  bond,  as  before 
prescribed,  the  court  shall  grant  letters  testamentary  to  the 
other  executor,  if  there  be  any  capable  and  willing  to  accept 
the  trust,  and  if  there  is  no  such  other  executor  named  in  the 
will,  commit    administration  of  the   estate,   with   the  will  an- 

a  When    a    will    is    contested    and  See  §161,  as  to  the  appointment 

broken  tlie  duties  of  an  administra-  of   an  administrator  to  act  jointly 

tor    witli    tlie    will    annexed   ceases.  with  an  executor. 
In  re  Schonaker,  55  Bull.  78. 


89  CITATION    OP    EXECUTOR  §  101 

nexed,   to   such   person   as   would   be   entitled   thereto   if  the 
deceased  had  died  intestate."     [R.  S.  §  6000.] ^ 


§  101.     Citation  of  executor. 

If  the  person  named  in  the  will  fails  to  accept  within 
twenty  days  after  probate  of  a  will  he  must  be  cited  to  appear 
before  the  court,  and  either  accept  or  decline.  This  citation 
may  be  issued  on  the  court's  own  motion,  but  it  would  be  more 
regular  if  some  interested  party  would  appear  and  file  an  appli- 
cation for  the  issue  of  such  citation.  The  application  may  be 
in  the  following  form : 

{Title.) 

The   undersigned    respectfully   represents   that  he  is   interested   in   the 

estate  of  C.  D.,  deceased,  as ,  that  the  will  of  the  said 

C.  D.  was  duly  probated  in  Probate  Court,  of County, 

Ohio,   on day    of : 190 . . . ,    and   that   A.    B.    was 

named  in  said  will  as  executor  thereof.  That  twenty  days  time  has 
elapsed  since  the  said  will  was  probated  and  the  said  A.  B.  has  neglected 
to  give  bond  and  qualify  as  such  executor.  Wherefore  the  undersigned 
asks  that  he  be  cited  by  the  Court  to  appear  on  a  day  to  be  named  and 
accept  or  decline  said  trust. 

sign 

State  of  Ohio, County,  ss. 

The  undersigned  being  duly  sworn,  says  the  facts  stated  in  the  foregoing 
application  are  true. 

2 


§  102.    Entry  ordering  issue  of  citation. 

This  day  came and  filed  herein  his  application 

for    an   issue   of    the    citation    against ,    who   is 

named  in  the  will  of as  executor  therein ;  and  has 

failed  to  accept  said  trust  as  required  by  law,  and  said  cause  is  set  for 

hearing  on day  of at o'clock,  and 

it  is  ordered  that  a  writ  of  citation  be  issued,  directing  the  said 

to  appear  in  this  court  on  or  before  that  day,  and  accept  or 

decline  said  trust. 


1  §  10612   G.   C,  Probate  Court  must  appoint  B,  if  he 

2  See     §1328,     choice     of     Gdn.;  is    not   mentally   or   physically   dis- 
§  1257,  Trustees.  qualified.     In  re  Sells,  5  N.  P.  629, 

Where  A  and  B  were  named  joint  52  B.  610. 
executors.     A  refused  to  serve,  the 


§  103        ADMINISTKATOE  WITH  WILL  ANNEXED  90 

§  103.    rorm  of  citation  to  take  or  renounce  administration. 

Probate  Court County,  Ohio. 

In  the  Matter  of 

the  estate  of 


Deceased. 

No 

Appointment  of 

CITATION. 

To    

of Deceased. 

You  are  hereby  cited  to  appear  before  the  Probate  Court  within  and  for 

said   County,   at   the   Court   House,    in on    or 

before  the day  of A.  D.   190.  .  .,  at 

o'clock M.,  and  make  knowTi  your  intention  to  take  or  renounce  the 

administration  of  the  estate  of  said   decedent,  or  the  administration  will 
tnen  and  there  be  committed  to  some  other  suitable  person. 

In  witness  whereof,  I  have  hereunto  set  my 
hand  and  affixed  the  seal  of  said  Court,  at 
this day   of 190 


Probate  Judge.3 

§  104.     If  executor  does  not  qualify,  application,  etc. 

If  on  the  day  set  for  hearing  the  executor  appears  and 
chooses  to  accept,  he  will  be  required  to  make  application,  as 
provided  in  the  previous  chapter.  If  he  does  not  appear  or 
declines  to  accept,  and  there  is  another  person  mentioned  in 
the  will  as  executor,  then  such  other  person  shall  be  qualified  as 
sole  executor.  If  there  is  no  other  person  mentioned  in  the  will 
then  the  application  for  an  appointment  of  an  administrator 
with  the  will  annexed  should  be  made ;  and  the  form  of  this  ap- 
plication would  be  similar  to  that  used  bv  an  executor,  and  in 
addition  should  state  that  the  executor  has  declined,  etc.  If 
the  exeoutor  has  made  a  written  declination  it  should  be  at- 
tached to  the  application;  and  the  party  appointed  wonld  be 
required  to  jsrive  bond  with  similar  conditions  as  those  of  an 
executor.*     The  persons  entitled  to  such  administration  are  to 

3  See  §  1328.  another  person  with  liim,  unless  for 

4  See  next  section.  good  reasons  it  is  necessary  so  to  do. 
When   two  persons   are  named  in       It  may  be  douhtful,  unless  all  con- 

a   will    and    one   of   said   persons    is  cerned  agree,  wlietlier  tlie  court  has 

deceased     before     the     testator     the  a  right  so  lo  do.     In  re  Marsh,  50 

court   will   appoint  the   survivor   as  Bull.  5. 
sole  executor  and  will  not  associate  See  §  162. 


91  POWERS    AND    DUTIES  §  105 

be  preferred  in  the  order  provided  for  in  §  10617  G.  C.^  for  the 
appointment  of  an  administrator.  In  some  States  it  is  held  that 
the  legatees  under  the  will  are  entitled  to  be  appointed  admin- 
istrators with  the  will  annexed.  But  such  is  not  the  law  in 
Ohio.  The  entry  providing  for  the  appointment  of  an  admin- 
istrator with  the  will  annexed  should  state  the  fact  that  the  ex- 
ecutor has  declined  or  has  been  cited  and  refused  to  accept." 

§  105.      Bond    of    administrator    with    the    v^rill    annexed. 

"Every  person  who  is  appointed  administrator  with  the  will 
annexed,  before  entering  on  the  execution  of  his  trust,  must 
give  bond  in  like  manner  and  with  like  conditions  as  required 
of  an  executor."     [R.  S.  §6002.]^ 


§  106.     Powers   and   duties.      Personal  trust. 

It  is  provided  by  the  Code  in  New  York  that  where  letters 
of  administration  with  the  will  annexed  are  granted,  the  will  of 
the  deceased  shall  be  observed  and  performed,  and  the  admin- 
istrator with  such  will  annexed  will  have  the  rights,  powers  and 
are  subject  to  the  same  duties  as  if  they  had  been  named  execu- 
tor in  the  will."  While  there  is  no  statute  similar  to  the  above 
in  our  State,  yet  it  very  properly  expresses  the  duties  of  such  an 
administrator.  While  there  is  little  doubt  but  what  the  above 
rule  is  the  true  one,  the  difficulty  occurs  in  its  application  where 
the  duties  and  trusts  placed  upon  the  original  executor  are  not 
such  as  are  usually  needed  in  the  administration  of  an  estate.* 

5  Chapt.  7,  Letters  of  Admin,  §  Where  the  will  gives  a  power  to  the 
114.  donee  in  a  capacity  distinctively  dif- 

6  Thompson  vs.  Meek,  7  Leigh.  ferent  from  his  duties  as  executor, 
419;  Robertson  vs.  McGeoch,  11  so  that  as  to  such  duties  he  is  to 
Paige  640;  DePeyster  vs.  Clenden-  be  regarded  wholly  as  trustee  and 
ing,  8  Paige  295;  Newton  vs.  not  at  all  as  executor;  and  where 
Cocke,   10  Ark.   169.  the  power  granted  or  the  duty  in- 

7  §  10614  G.  C.  volved  imply  a   personal   confidence 

8  "  The  debate  has  turned  mainly  reposed  in  the  individual  over  and 
upon  the  inquiry  what  were  the  dis-  above  and  beyond  that  which  is  or- 
tinctive  duties  of  an  executor  as  dinarily  implied  by  the  selection  of 
such, and  when  they  were  to  be  re-  an  executor,  there  is  no  room  for 
garded  as  not  appertaining  to  his  doubt  or  dispute.  In  such  case  the 
ofRce,  but  as  personal  to  the  trustee.  power  and  duty  are  not  those  of  ex- 


§  107        ADMINISTEATOK  WITH  WILL  ANNEXED  92 

An  executor  is  always  a  trustee  for  the  personal  estate  for 
those  interested  under  the  will.^  It  may  be  said  that  where 
the  trust  is  a  personal  one,  that  is,  one  that  is  especially  reposed 
in  the  executor,  that  it  does  not  follow  and  vest  in  the  adminis- 
trator with  the  will  annexed.  This  question  is  very  ably  dis- 
cussed by  a  learned  author,  who  deduces  ths  following  conclu- 
sion: 

"  The  general  rule,  then,  may  be  stated  to  be  that  where  the 
provision  defining  the  trust,  when  considered  separately  or  in 
connection  with  the  rest  of  the  will,  is  imperative,®*  or  evidences 
no  intention  on  the  pai't  of  the  testator  of  reposing  any  such 
special  or  personal  confidence  or  discretion  in  the  executors  as 
would  dissociate  the  trust  confided  to  them  from  their  ofiice 
as  executors,  or  prevent  them  from  fully  administering  it,  an 
administrator  with  the  will  annexed  will  be  entitled  to  complete 
the  execution  of  the  trust.^" 


§  107.  Estate  directed  or  devised  to  be  sold  by  executors,  etc., 
failure  of  executors  to  act,  who  may  sell.  "\Vhen  a  last  will 
and  testament  is  admitted  to  probate,  or  a  will  made  out  of 
this  state  is  admitted  to  record  as  hereinbefore  provided,  and 
lands,  tenements,  or  hereditaments  are  given  or  devised  by  such 
will  to  the  executors  therein  named,  or  any  of  them,  to  be 
sold  or  conveyed,  or  such  estate  thereby  is  ordered  to  be  sold 
by  such  executors,  or  any  of  them,  and  one  or  more  of  the 
executors  so  named  dies,  refuses  to  act,  or  neglects  to  take 

ecutors,   virtute  officii  and  do  not  663;  Bingham  vs.  Jones,  25  Hun  6; 

pass  to  the  administrator  with  tha  Pratt  vs.  Stewart,  49  Conn.  339. 
will  annexed.     But  outside  of  such  »  Wager  vs.  Wager,  89  N.  Y.  161. 

cases  the  instances  are  numerous  in  »*  Clifford   vs.    Morrell,    22    App. 

which  by  the  operation  of  a  power  Div.  470. 

in  trust,  authority  over  the  real  es-  lo  Jessup's  Sur.  Prac.  557 ;  Matter 

tate  is  given  to  the  executor  as  such  of  Post,  9  N.  Y.  Supp.  449;  Opinion 

and  the  better  to  enable  him  to  per-  of    Ransom,     Surr.,    Jessup's     Sur. 

form  the  requirements  of  the  will."  Prac.  558;  Hood  vs.  Hood,  85  N.  Y. 

Jessup's  Sur.  Prac.  556;   Wager  vs.  561,  571;  Mott  vs.  Ackerman,  92  N. 

Wager,  89  N.  Y.  161;  DePeyster  vs.  Y.  539;  Bain  vs.  Matteson,  54  N.  Y. 

Clendenning,   8  Paige  295;   Conklin  663;   Matter  of  Clark,  5  Redf.  466. 

vs.  Egerton,  21   Wend.  430;   25  Id.  See  §  1265  et  seq.,  Surviving  Trus- 

224;    Rooms  vs.   Philips,  27   N.   Y.  tee,  etc. 
357;   Bain  vs.   Matteson,   54   N.   Y. 


93  POWERS,   ETC.  §  107 

upon  himself  the  execution  of  the  will,  then  all  sales  and  con- 
veyances of  such  estate  by  the  executor  or  executors  who  took 
upon  himself  or  themselves  in  this  state  the  execution  of  the 
will,  or  the  survivor  or  survivors  of  them,  shall  be  as  valid 
as  if  the  residue  of  the  executors  had  joined  in  the  sale  and 
conveyance.  But  if  none  of  the  executors  named  in  such  will 
take  upon  themselves  its  execution,  or  if  all  the  executors 
who  take  out  letters  testamentary,  die,  resign,  or  are_  removed 
before  the  sale  and  conveyance  of  such  estate,  or  die,  resign 
or  are  removed  after  the  sale  and  before  the  conveyance  is 
made,  the  sale  or  conveyance  or  both  shall  be  made  by  the 
administrator  with  the  Avill  annexed."     [R.  S.  §  5980.]^^ 


In  construing  these  statutes  it  is  held  that  they  confer  upon 
the  administrator  with  the  will  annexed  all  powers  given  to  the 
executor  for  the  purpose  of  paying  debts  or  legacies  or  both,  and 
especially  when  there  is  an  equitable  conversion  of  land  into 
money  for  the  purpose  of  such  payment  or  distribution,  and 
where  the  power  of  sale  is  imperative  and  does  not  grow  out  of 
a  personal  discretion  confided  to  the  individual ;  but  no  discre- 
tionary trust  or  power  conferred  upon  the  executor,  or  for  a  spe- 
cial purpose  collateral  to  the  ordinary  duties  of  an  executor  or 
administrator,  or  indicating  a  special  confidence  reposed  in  the 
individual/'* 

11  §  10590  G.  C.  sell  real  estate.     Taylor  vs.  Gallo- 

l2Woerner  on  Admin.  724.  way,  1  0.  117. 

When  the  will  names  two  execu-  See   Fleishman  vs.   Shoemaker,  2 

tors  and  only  one  qualifies,  he  may       C.  C.  152;  Williams  vs.  Beach,  17  O. 

171;  Mitchell  vs.  Dunlap,  10  0.  117. 


§108 


LETTEKS  OF  ADMINISTKATION 


94 


CHAPTEH  YII. 

LETTERS  OF  ADMINISTRATION. 


§  108  Definition,  etc. 

§  100  Death  of  party. 

§  110  Who  is  an  intestate. 

§  1 1 1  When  and  where  application 
should  be  made. 

§112  Application,  etc. 

§  113  Form  of  application  for  let- 
ters of  administration. 

§114  To  whom  letters  of  adminis- 
tration shall  be  granted. 

§  115  Who  are  capable  of  being  ap- 
pointed. 

§116  Residence  of  administrator. 

§  117  Order  of  priority  among  those 
entitled. 


§  118  When  entitled  in  the  same 
degree. 

§  119  Renunciation,  waiver,  etc. 

§  120  Husband  and  widow. 

§  121  The  next  of  kin. 

§  122  The  creditor. 

§  123  To  such  person  as  the  Court 
may  see  fi.t. 

§  124  Must  give  bond,  etc. 

§  125  Form  of  administrator's  bond. 

§  126  Granting  letters. 

§  127  Form  of  administrator's  let- 
ters. 


§  108.     Definition,  etc. 

An  administrator  is  a  person  appointed  by  the  Probate  Court 
to  administer  the  estate  of  a  person  who  dies  intestate.  The 
important  distinction  imder  the  laws  of  our  State  between  ex- 
ecutor and  administrator  is  in  the  duties  pertaining  to  the  ad- 
ministration of  an  estate.  Where  not  contrary  to  law,  and  the 
provisions  of  the  will  cover  the  matter  of  a  settlement  of  the  tes- 
tator's estate,  an  executor  must  follow  the  directions  of  the  will. 
And  the  authority  of  an  administrator  is  measured  by  the  law 
of  the  forum  of  his  appointment,  while  the  executor  not  only 
has  those  powers,  but  other  and  greater  powers  conferred  by 
the  will.  Or  the  will  may  circumscribe  or  restrain  the  powers 
which  the  law  confers  on  the  administrator,  so  long  as  it  is  not 
repugnant  to  the  law  of  the  forum,^ 

As  an  administrator  derives  his   authority  solely  from  the 

court.,  as  a  general  rule  it  has  been  said  that  his  title  to  the 

property  of  the  deceased  vests  from  the  time  of  his  appointment. 

Yet  for  particular  purposes  it  relates  back  to  the  death  of  the 

1  Saunderson  vs.  Stearns,  6  Mass.   37;  Scott  vs.  West,  63  Wis.  529. 


95  DEATH    BY   PARTY  §  109 

intestate,  and  allows  the  administrator  to  recover  for  injuries  to 
the  estate  of  the  intestate  which  occurred  before  his  appoint- 
ment. And  therefore  the  heirs  have  no  right  before  the  ap- 
pointment of  an  administrator  to  bind  the  personal  estate  by  an 
agreement.^ 

§  109      Death  of  party. 

The  most  important  and  essential  point  in  appointing  a  per- 
son to  administer  an  estate  is  that  the  party  formerly  owning 
the  estate  is  dead.  This  means  extinction  of  life,  not  what  is 
known  as  a  civil  death ;  and  while  some  very  few  cases  hold  to 
the  contrary,  the  great  weight  cf  authority  is  that  there  can  be 
no  valid  administratien  of  the  estate  of  a  living  person  .  If  let- 
ters are  granted  upon  such  an  estate  they  are  absolutely  void; 
and  all  action  thereunder  is  invalid.  It  is  therefore  highly  im- 
portant that  indisputable  proof  be  offered  to  the  court  making 
the  appointment  of  the  death  of  a  party.  Where  the  proof  is 
only  such  that  may  arise  from  unexplained  absence  for  at  least 
seven  years  it  might  be  proper,  together  with  other  circum- 
stances attending  the  case,  to  warrant  the  court  in  making  the 
appointment.  But  the  person  accepting  such  appointment 
would  do  so  at  great  risk,  as  well  as  the  person  dealing  with 
such  an  administrator.  Some  States  provide  by  statute  that 
an  unexplained  absence  for  a  certain  number  of  years  is  con- 
clusive proof  of  a  party's  death,  for  the  purpose  of  administering 
upon  his  estate.  It  seems  to  me  that  such  a  law  is  a  wise 
one,  for  usually  the  unexplained  absence  of  a  person  for  seven 
years  is  the  fault  of  the  absentee,  and  property  ought  not  to  be 
tied  up  in  an  uncertain  manner  for  an  indefinite  time.^ 

Where  the  testator's  death  is  controverted,  or  is  not  stated  in 
the  petition  for  probate,  on  positive  personal  knowledge,  the  bur- 
den of  proving  it  is  upon  the  proponent,* 

2  1  Woerner  on  Admin.  383,  385;  a  prima  facie  presumption  and  may 
§69,  Distinction  between  Extr, ;  be  rebutted,  and  one  so  absent  is 
§  1251,  Distinction  between  Test.  Tr.  not  thereby  estopped  from  claiming 

3  1  Woerner  on  Admin.  444,  449;  his  rights  in  property.  Oglesby  vs. 
Sch.  Extr.,  55.  Rose,  21    Dec.  291. 

4  Prout  vs.  McNab,  6  Dem.  152.  See  Curry  vs.  Pierrot,  12  O.  App. 
A   person   in   the  penitentiary  for       506,  where  it  was  held  that  a  pre- 

life  is  not  civilly  dead.  sumption   of   death   was   not  shown 

The  presumption  of  death  arising       from  the  facts. 
from  absence  of  seven  years  is  but 


§  110  LETTERS  OF  ADMINISTEATION  96 

If  the  fact  can  only  be  imperfectly  proved,  circumstances 
must  be  shown  sufficient  to  raise  a  legal  presumption  of  death. 
It  is  necessarily  impossible  to  give  any  standard  by  which  to 
measure  the  sufficiency  of  circumstantial  evidence  of  death; 
mere  information  and  belief,  founded  on  nothing,  is  of  course 
not  proof  in  any  legal  sense.^ 

It  is  not  necessary,  speaking  generally,  that  any  specific  pe- 
riod of  time  should  elapse  to  create  the  presumption  of  death, 
but  it  may  arise  whenever  the  facts  of  the  case  will  warrant." 

§  110.    Who  is  an  intestate  ? 

An  intestate  is  a  person  who  dies  without  leaving  any  valid 
will  to  dispose  of  his  real  or  personal  property.  A  person  may 
die  intestate,  first,  as  one  who  has  never  made  a  will;  second, 
one  who  has  made  a  will  but  revoked  it  validly  prior  to  his 
death ;  third,  one  who  has  made  a  will  defectively,  executed  so  as 
not  to  be  entitled  to  probate  under  our  statute.  So  a  man  may 
leave  a  valid  will  to  pass  personal  property,  but  not  real  estate. 
He  will  then  be  intestate  as  to  real  property,  but  testate  as  to 
personal. 

There  is  no  presumption  that  the  deceased  left  a  will.^ 
But  it  should  be  proven  to  the  satisfaction  of  the  court  making 
the  appointment  that  there  is  no  will,  and  for  this  purpose  the 

5  Roderigas  vs.  East  River  Savings  stances  produced  tc  the  surrogate, 
Bank,  76  N.  Y.  316.  was  sufficient  to  justify  the  issuing 

6  In  the  matter  of  Nolting  (43  of  letters  of  administration,  and 
Hun  456),  it  appeared  that  the  al-  that  the  surrogate  erred  in  refusing 
leged  decedent  had  left  his  home  un-  to  do  so.  Redf.  Sur.  Prac.  153. 
der  the  depression  following  an  at-  The  fact  that  a  passenger  on  an 
tack  of  delirium  tremens,  declaring  ocean  vessel  was  last  seen  about  10 
his  intention  to  commit  suicide,  and  o'clock  at  night,  when  the  steamer 
had  gone  toward  the  river;  that  was  in  mid  ocean,  and  was  never 
thereafter  he  had  not  been  heard  seen  or  heard  of  afterwards,  though 
from  for  more  than  10  years,  al-  diligent  search  was  made,  is  suffi- 
though  previously  he  had  communi-  cient  to  justify  a  finding  that  he  la 
cated  regularly  with  his  relatives.  dead.  Travelers  Ins.  Co.  vs.  Rosch, 
Held   that,   from  his   silent  absence  23  C.  C.  491. 

during  10  years,  the  law  would  raise  ^  Stokesberry  vs.  Reynolds,  57  Ind. 

a  presumption  of  his  death,  which,        425. 
coupled  with  the  facts  and  circum- 


97  WHO   IS   INTESTATE  §  111 

testimony  of  witnesses  may  be  heard.  If  it  appear  that  there 
has  been  a  will,  although  it  may  be  claimed  that  the  will  was 
revoked,  or  that  it  is  invalid,  the  court  ought  not  to  grant  ad- 
ministration until  the  fact  is  determined  whether  or  not  the 
will  is  still  existing.^  A  special  administrator  might  be  ap- 
pDinted  as  provided  by  §  10619  G.  C.° 

§  111.     When  and  where  application  should  be  made. 

There  is  no  designated  time  in  which  a  person  entitled  to  be 
appointed  administrator  of  an  estate  should  apply  for  such  au- 
thority. The  application  must  be  made  within  a  reasonable 
time,  depending  upon  the  circumstances  of  each  case.  It  has 
been  held  that  eighteen  days  was  not  an  unreasonable  time  for 
a  person  living  in  an  adjoining  county  to  make  an  application.^" 

In  the  State  of  Indiana  it  is  provided  by  statute  ^^  that  if  the 
person  who  is  entitled  to  administration  does  not  qualify  within 
twenty  days  from  the  time  of  the  decedent's  death  that  letters 
may  be  granted  to  the  next  of  kin  or  such  other  persons  as  may 
be  entitled  thereto.  In  the  State  of  New  York  it  is  said  ^^  that 
no  administration  can  be  granted  other  than  to  the  person  en- 
titled thereto,  unless  they  renounce  their  right  in  writing,  or 
they  be  cited,  if  residents  of  the  State,  and  to  appear  and  take 
or  decline  to  take.  While  such  m-ight  not  be  the  law  in  Ohio, 
yet  it  surely  would  be  good  practice,  and  no  letters  ought  to  be 
granted  until  those  entitled  thereto  have  renounced  their  right, 
unless  a  very  considerable  time  has  elapsed.  The  same  rule 
which  applies  to  the  granting  of  letters  testamentary,  so  far  as 
the  same  relate  to  the  court  in  which  the  same  are  granted,  ap- 
plies to  the  granting  of  letters  of  administration,  and  therefore 
whatever  was  said  under  that  subject  will  apply  here.^*  The 
jurisdiction  of  the  court  attaches  from  the  time  of  filing  the  ap- 


8/n  re  Taggart's  Estate,  16  N.  Y.  is  Jessup's   Sur.   Prac.  62. 

Supp.    514.  i<  §  72  Application  for  Extr. 

B  See  chapt.  8  on  Special  Adminis-  The  laws  of  Ohio  are  applicable  to 

tration,   §   129.  estates   of   deceased    inmates   of   the 

10  Todhunter  vs.  Stewart,  39  O.  S.  National   Soldiers'  Home  near  Day- 

181.  ton,     Ohio.       Howell    vs.     Soldiers' 

"§  2227   (1881);  §  2380   (1894).  Home,  8   O.  L.   R.   121.    • 


§  112  LETTERS    OF   ADMINISTRATION  98 

plication,  and  the  subsequent  appointment  by  another  court  of 
the  State  is  void.^^ 

§  112.    Application,  etc. 

Whatever  was  said  under  the  chapter  of  letters  testamentary 
in  reference  to  the  importance  of  the  application  is  true  here, 
and  in  addition  the  application  should  state  the  time  of  the 
death  of  the  party,  and  that  there  is  no  existing  will.  If  the 
application  is  filed  by  a  person  other  than  the  one  who  is  en- 
titled to  the  letters  it  should  be  stated  that  such  a  person  has  de- 
clined to  serve.  If  none  of  the  parties  who  are  entitled  to 
qualify  appear  within  a  reasonable  time  a  citation  should  be 
issued,  requiring  them  to  appear  in  the  court  and  accept  or  de- 
cline." 

§  118.    Form  of  application  for  letters  of  administration. 

The  State  of  Ohio, 

County,   SS. 

IN  PROBATE  COURT. 

being  duly  sworn,  says  that 

a  resident  of  the  Township  of 

in  said  County,  died  on  or  about  the day  of 

A.  D.   190...,  and  that  there  is  not,  to  the  knowledge  of  this  affiant,  any 

last  Will  and  Testament  of  said  decedent;  that  said  tlecedent  left 

h . .  . .  widow ,    whose   postoffice    address   is 

and  the  following  persons,  h .  .  .  .  only  heirs  at  law. 

NAME.  DEGREE  OF  KINSHIP.     POSTOFFICE  ADDRESS. 

That    

above  named  are  children  of  said  decedent  under  15  years  of  age  at  the  time 
of  said  decease. 

The  undersigned,  whose  Post  Office  address  is asks 

to  be  appointed  Administrator  of  the  estate  of  said  decedent,  and  on  h . .  . . 

Oath   aforesaid    says:      That   the    applicant   was indebted    to    the 

deceased   in   the   siun  of       -       - $ 

The  amount  of  personal  property  will  be  about       -       -     $ 

And   of    real    estate,    about $ 


Total. 


That  the  applicant  is  indebted  to  for  proceedings  against  a  person  en- 
deceased  in  the  sum  of  $ .  titled  to  administration. 

15  7j)   ye  Worthington.  4  Dec.  381.  If  there  are  several  of  a  class  en- 

16  The  form   of   application   for  a  titled    to    act,    tlie    court    niisiht   ap- 
citation  against  an  executor  and  the  point  one  of  the  class — but  it  would 
proceedings  thereunder  used   in   the  be  better  to  notify  all    in  the  class 
preceding  chapter,   may   be  adopted  before   one   of   their   number   is   ap- 
pointed. 


99  TO   WHOM   GRANTED  §  114 

And    offers    a    bond    as    administrator    of    said    estate    in    the    sum    of 

$ ,  with whose  post  office  address  is 

Ohio,   and 

whose  post  office  address  is Ohio, 

as  sureties  thereon. 

Sworn  to  before  me  and  signed  in  my  presence  this • day  of 

190.... 

Probate  Judge. 


DECLINATION. 

The  undersigned of  the  said 

decedent,  hereby  declines  tlie  administration  of  said  estate  and  recommends 
tue  appointment  of as  administrator. 


§  114.  To  whom  letters  of  administration  shall  be  granted. 
"Administration  of  the  estate  of  an  intestate  shall  be  granted 
to  persons  hereinafter  mentioned,  residents  of  this  state,  in 
the  following  order : 

"1.     The  husband  or  widow  of  the  deceased; 

"2.  One  or  more  of  the  next  of  kin  of  the  deceased.  The 
court  may  grant  letters  of  administration  jointly  to  the  hus- 
band or  widow  and  one  or  more  of  such  next  of  kin,  and  upon 
failure  of  the  person  or  persons  so  entitled  to  administer  the 
estate  voluntarily  either  to  take  or  renounce  such  administra- 
tion, if  resident  within  the  county,  they  must  be  cited  by  the 
court  for  that  purpose ; 

"3.  If  the  persons  so  entitled  to  administration  are  incom- 
petent, or  evidently  unsuitable  for  the  discharge  of  the  trust, 
or  if  witnout  sufficient  cause  they  neglect  to  take  administra- 
tion of  the  estate,  the  court  shall  commit  it  to  one  or  more 
of  the  principal  creditors,  if  there  be  any  competent  and 
willing  to  undertake  the  trust ; 

"4.  If  there  be  no  such  creditor,  and  the  court  is  satisfied 
the  estate  exceeds  the  value  of  one  hundred  dollars,  it  shall 
commit  administration  to  such  other  person  as  it  deems  fit. 
Letters  of  administration  shall  not  be  issued  upon  the  estate 
of  an  intestate  until  the  person  to  be  appointed  has  made  and 
filed  an  affidavit  that  there  is  not,  to  his  knowledge,  a  last 
will  and  testament  of  such  intestate.  Before  being  appointed 
executor  or  administrator,  every  person  shall  make  and  file 
an  application  under  oath,  which  must  contain  the  names  of 
husband  or  widow  and  all  the  next  of  kin  of  the  deceased  to 
such  person  known,  their  postoffice  addresses  if  known,  and 
also  a  statement  in  general  terms  as  to  what  the  estate  con- 


§  115  LETTERS   OF   ADMINISTRATION  100 

sists  of  and  the  probable  value  thereof,  and  also  a  statement  of 
any  indebtedness  the  deceased  had  against  such  person  making 
said  application."     [R.  S.  §  6005;  101  v.  226.]  ^' 

V 

§  115.    Who  are  capable  of  being  appointed. 

The  administrator  receives  his  authority  from  the  eonrt 
making  the  appointment,  and  in  no  sense  rests  upon  the  wishes 
of  the  deceased ;  therefore  the  rule  as  to  who  are  competent  to 
receive  the  trust  is  not  so  strict  in  the  cases  of  granting  letters 
of  administration  as  in  granting  letters  testamentary.  If  any 
of  the  causes  which  would  justify  his  removal  by  the  court 
after  the  appointment  is  made,  exist  against  the  applicant,  he 
might  be  considered  as  being  evidently  unsuitaMe  and  the  ap- 
pointment refused  him.  The  court  has  a  wide  discretion  in 
this  matter  and  should  not  appoint  any  one  that  it  is  satisfied 
will  not  be  for  the  welfare  of  the  estate. ^^ 

The  court  is  not  bound  to  appoint  an  unsuitable  person.^^ 

In  one  case  it  was  held  that  the  husband  who  has  a  claim 
against  the  estate  antagonistic  to  the  heirs  and  legatees,  and  that 
their  existed  animosity  of  feeling  between  him  and  the  heirs, 
that  he  was  an  unsuitable  person  and  was  refused  the  appoint- 
ment.^" 

In  other  States  it  has  been  held  that  a  professional  gambler 
is  not  competent.-^  Nor  a  habitual  drunkard.--  Nor  an  im- 
provident man,  if  his  fault  is  so  great  as  to  be  likely  to  en- 
danger the  estate.-^  Nor  intestate's  mistress.-*  Nor  a  felon 
convicted   in   this    State."      Nor   an   insolvent    or    bankrupt.-^ 

17  §  10617  G.  C.  26  Cornpropst's  Appeal,  33  Pa,  St. 

18  For     causes     of     removal,     see       537. 

chapt.  on   resignation  and   removal,  Where    a    treaty    with    a    foreign 

§  208   ct  seq.     Marriage   is  now  no  country  provides  that  consuls   may 

disqualification,  §  10036  G.  C.  be  appointed  administrators  of  the 

19  In  re  Dillers  Application,  5  N.  estates  of  citizens  of  the  country 
P.  255;   S.  C,  6  Dec.  182.  they  represent,  dying  in  this  coun- 

20 /n  re  Brennan,  5  X,  P.  490;   5  try,  wlien  such  consul  is  absent  he 

Dec.  4fl9.  mav   designate   one   to   act.      In    re 

21  McMahan  vs.  Harrison,  6  X.  Y.  Steinger,  22  Dec.  88;  12  X^.  P.  107. 
443;    S.   C,    10   Barb.   659.  Under    a   treaty   with    Sweden    it 

22  Elmer  vs.  Kechl*.  1  Redf.  472;  has  been  held  that  the  appointment 
Smith  vs.  ^Moore,  3  How.  (^liss.)  40.  of  a  foreign  consul  was  still  in  the 

23  //;  re  Cutting,  5  Dem.  456;  Mc-  discretion  of  the  court.  Pazano  vs. 
Gregor  vs.   McGregor.   3    Abb.   App.  Cerri.  93  0.  S.   345. 

Dec.  92.  The  same  under  treatv  with  Italy. 

24  Plaisance's   Estate,   :Mvr.   Prob.  In  re  Costanso.  60  Bull".  413. 
(Cal.)    117.                              '  See  also  Cerri  vs.  Telephone,  219 

25  O'Brien's  Estate,  67  How.  Pr.  Fed.  285;  13  O.  L.  R.  425;  In  re 
503.  Toderello.     15    X'.    P.    593;     In    re 

Balboa,  16  X".  P.  9. 


101  RESIDENCE  OF  ADMINISTRATOR  §  116 

But  a  poor  man  may  be.^^  Nor  a  person  having  any  interest 
adverse  to  the  estate.^"  ISTor  a  debtor  to  the  estate.^^  Nor  one 
hostile  to  one  or  more  of  the  distributees.^^  Nor  a  surviving 
partner  of  the  individual  estate.^^ 

Illiteracy,  as  a  general  rule,  is  not  a  disqualification/* 
Neither  will  eccentricities  of  character,^®  nor  old  age,^®  unless 
they  are  such  as  make  them  evidently  unsuitable.^^ 

§  116.    Residence  of  administrator. 

It  will  be  observed  that  no  person  who  resides  out  of  the 
State  shall  be  appointed  administrator.  In  all  cases  the  ap- 
pointee must  at  least  be  a  resident  of  the  State.  The  Probate 
Court  in  Hamilton  County  has  a  rule,  which,  if  it  has  received 
the  sanction  of  the  Supreme  Court, ^^  and  I  presume  it  has, 
may  be  enforced,  that  a  non-resident  of  the  county  will  not  be 
appointed  either  as  executor  or  administrator  or  guardian.'** 
This  rule,  while  a  salutarj^  one,  may  work  a  hardship  in  some 
cases,  and  while  it  ought  to  be  generally  enforced,  it  would 
not  be  wise  in  all  instances. 

In  re  estate  of  Ulhom  it  was  held  that  the  Probate  Court  is 
authorized  to  refuse  to  appoint  a  son  of  the  deceased  as  admin- 
istrator of  the  estate  on  the  ground  that  he  is  a  non-resident  of 

29Levaii's  Appeal,  112  Pa.  St.  294.  35  McGregor      vs.      McGregor,      1 


30  State  vs.  Keinliardt,  31  Mo.  95 
Wright  vs.  Wright,  72  Ind.  149 
Jones    vs.    Whiteliead,    6G    Ga.    290 


Keyes  133. 

36  Matter  of  Berrien,  3  Dem.  263. 
ST  See   1   Woerner  on  Admin.  524. 


Heron's  Estate,  6  Phiia.  87.  See    §  1332,   Gdns.;    §222,   Incorape- 

31  Territory  vs.  Valdez,  1  X.  Mex.  tency. 

533.   Pr.;    Succession   of   Chaler,   39  Under  the  Federal  Keserve  Act  a 

La.  Ann.  308.  national  bank  may  be  permitted  to 

32  Bridgman  vs.  Bridgman,  30  W.  act  as  administrator,  etc.     63  Bull. 
Va.   212;    Drew's  Appeal,  56  X.  H.  6. 

319;   Moody  vs.  Moody,  29  Ga.  519.  See  chapter  13a  as  to  trust  com- 

33  Brown's  Estate,   11   Phila.   127;  panics. 

In  re  Garber's  Estate,  74  Cal.  338;  38  §  1591  G.  C. 

Hevvard  vs.  Slegel,  52  111.   336;   Al-  The    court,    however,    refused    to 

temus'    Estate,    32    La.    Ann.    364;  follow  it  in  the  case  of  an  e.xecutor 

Cornell   vs.   Gallagher,    16   Cal.   367.  named   in   the    will.      In    re   Season- 

34  Gregg  vs.  Welson,  24  Ind.  227;  good,  27  0.   C.  C.  200;   23  O.  C.  C. 
Wilkey's  Appeal,  108  Pa.  567;   Em-  (N.S.)   369. 

erson  vs.  Bower's  14  N.  Y,  449.  39  Rule     14,     Goebel     Rep.       See 

§  1502;    Gdns. 


§  117  LETTEES    OF    ADMINISTRATION  102 

the  State,  and  instead  grant  letters  of  administration  to  a  cred- 
itor of  the  estate  not  of  kin  of  the  deceased.*" 

§  117.    Order  of  priority  among  those  entitled. 

The  order  of  priority  established  by  statute  is  as  follows: 
First,  to  the  husband  or  widow  of  the  deceased  or  next  of  kin ; 
second,  to  a  creditor ;  tbird,  where  the  estate  exceeds  the  value 
of  one  hundred  dollars,  any  person  the  court  may  think  fit. 
Tbe  court  must  pursue  tbe  order  prescribed  by  the  statute  if 
the  persons  preferred  have  the  proper  qualifications.  It  has 
no  discretion  to  vary  the  order.*^  This,  however,  does  not  pre- 
vent the  person  so  preferred  from  associating  one  not  preferred 
with  him,  even  over  the  protest  of  the  next  in  degree  entitled  to 
the  appointment.*^  And  if  an  administrator  has  been  ap- 
pointed the  court  can  associate  the  person  preferred  with  the 
appointee.*^ 

§  118.    When  entitled  in  the  same  degree. 

If  there  is  but  one  person  in  the  same  class  the  Court  will 
have  no  discretion,  if  such  person  is  not  incompetent  or  evi- 
dently unsuitable.  But  where  there  are  a  number  of  persons 
in  the  same  class  the  Court  may  find  considerable  difficulty  in 
selecting.  In  such  cases  the  Court  has  an  absolute  discretion 
which  will  not  be  disturbed  on  appeal  except  for  a  very  gross 
case  of  abuse.** 

In  some  States  even  where  persons  are  in  the  same  class  the 
law  provides  where  one  of  such  class  shall  have  preference  over 

40  12  C.  C.  765;  4  C.  D.  526,  §  74,       vs.  Young,  5  Gill  197;   In  re  Scan- 
,        ,     .  ...    ,  .-.  Ion's   Estate,  2  Pa.   Dist.   Rep.    /42; 

as  to  what  constitutes  residence.  j,^^  ^.^   Kiester,  6  N.  P.  216;  8  Dec. 

41  Hayes  vs.  Hayes,  75   Ind.  395 ;       q^Q. 

Pendleton  vs.  Pendleton,  6  Sni.  &  M.  ''2  Shropshire  vs.  Withers.  5  J.  J. 

448;  Muirhead  vs.  Mtiirhead,  6  Sm.  ^^^^^^^lO;  Quintard  vs.  Morgan,  4 

'  Dem.   Ib8. 

<&   M.   451 ;    Matter   of   Williams.    5  43  Read  vs.  Howe,   13  la.  50. 

Dem.   292    (approved  44  Hun  67);  44  Bowie  vs.   Bowie,  73  Md.  232; 

Cook  vs.  Carr,  19  Md.  1 ;  Wickwire  Wallis  vs   Cooper    123  Ind.  40;  Sue- 

T^     1     o/^«     o     -xu  cession   of   Boudreaux,  42   La.   Ann. 

vs.  Chapman,   15  Barb.  302;   Smith  296;  State  vs.  Fowler,  108  Mo.  465. 


103  WHEN    IN    SAME    DEGREE  §  118 

the  other.  But  in  our  State  there  is  no  such  provision,  and 
while  resting  in  the  absolute  discretion  of  the  Probate  Judge, 
it  will  not  be  amiss  to  give  some  instances  of  the  manner  in 
which  such  discretion  has  been  exercised.*  In  cases  of  conflict- 
ing claims,  the  applicant  upon  whom  a  majority  of  the  parties 
in  interest  agree  will  generally  be  preferred.*^  But  not,  of 
course,  unless  the  nominee  belongs  to  the  same  class.  Other 
things  being  precisely  even,  the  scale  may  be  inclined  by  the 
preference  of  an  older  over  a  younger  person,*®  or  of  a  male  over 
a  female,*^  and  an  unmarried  over  a  married  woman ;  *^  one  ac- 
customed to  business  over  one  inexperienced.** 

It  is  said  that  the  fact  that  an  applicant  had  twice  been  a 
bankrupt  militates  against  him  to  the  preference  of  one  who  had 
not  been  bankrupt.^"  And  so  does  the  fact  that  one  being  next 
of  kin  is  also  a  creditor.^^  Nor  will  one  be  appointed  who  is 
in  such  hostility  to  the  others  as  will  disqualify  him  from  fairly 
considering  their  claims^^" 

It  has  been  the  practice,  whether  fully  justified  in  the  law 
or  not,  where  the  members  of  a  clasS'  cannot  agree  on  one  of 
their  class,  or  where  there  is  exceeding  great  hostility  between 
the  members  of  one  class  and  another  class,  where  they  may  sus- 
tain the  relation  of  parent,  brother  and  sister,  that  the  Court 
will  appoint  none  of  them,  but  will  grant  the  administration  to  a 
disinterested  person.  Experience  has  demonstrated  that  this 
is  a  very  salutary  rule,  and  without  qi\estion  results  in  the  best 
administration  of  the  estate  and  for  the  welfare  of  all  con- 

46  Mandeville  vs.  Mandeville,  35  *»  Williams  ys.  Wilkins,  2  Phillim. 
Ga.  243,  247;  McBeth  vs.  Hunt,  2  loO;  Atkinson  vs.  Hasty,  21  Neb. 
Strob.  L.  335,  341;  Cartwright  in  re       663,  667. 

(Eng.),    1    Freem.    258;    Sawbridge  so  Bell  vs.   Timiswood,   2  Phillim. 

vs.  Hill,  L.  R.,  2  P.  &  D.  219;  Mur-  22. 

dock  vs.  Hunt,  68  Ga.  164,  166.  bi  Wms.    Ex.     (427);    Webb.    vs. 

«Wms.  Ex.    (427);  Warwick  ts.  Needham,   1   Add.   494;    Owings  Y8. 

Greville,    1    Phillim.    123,    125;    Cop-  Bates,  9  Gill  463,  466. 

pin  vs.  Dillon,  4  Hagg.   361.   376;  52  Drew's  Appeal,  58  N.  H.  319. 

Hill's  Case,  55  N".  J.  Eq.  764.  *  This   discretion   will   not  be   re- 

47  In  re  Drowne,  1  Connolly  163,  viewed,  unless  abused.  McCallip  vs. 
169;  Hill's  Case,  supra;  Iredale  vs.  Sharp    13  Dec.  650. 

Ford    1   Sw    &  Tr    305;  Chittenden  A   finding   of   the   Probate    Court 

vs  Knightr2  Lee.  559;  Wickwire  vs.  that  the  next  of  km  -  -d-t  7  un- 

s     '                      '  suitable,  will  not  be  disturbed  unless 

Chapman,   15   Barb.   302.  ^^^^  ^^^^^^.^  ^^.^^  ^^^^^^^  the  discretion. 

48  Administration  of  Curser,  89  N.  Affirmed    09   0.  S.  500. 
Y.  401,  404.  ' 


§  119  LETTEES  OF  ADMINISTKATION  104 

cerned.  Whether  or  not  when  that  condition  exists  they  are 
evidently  unsuitable  within  the  statute  I  am  not  fully  prepared 
to  aver,  but  there  are  cases  in  which  I  think  it  may  justly  be 
held  that  when  this  condition  of  the  affairs  exist  they  are  all  evi- 
dently unsuitable. 

It  is  said  that  no  notice  is  necessary  to  the  other  parties  in 
the  same  class  with  the  applicant,  and  the  appointment  may 
be  made  ex  parte  to  any  of  those  who  are  equally  entitled.^^ 

§  119.    Renunciation,  waiver,  etc. 

The  right  given  by  statute  to  administer  may  be  renounced. 
But  no  appointment  should  be  made  over  the  right  of  a  person 
entitled  to  an  appointment  without  the  record  in  some  manner 
showing  the  fact  that  the  right  has  been  lost.  The  renuncia- 
tion may  be  spontaneous,  in  which  case  it  should  be  in  -writing 
and  filed  with  the  court,  or  it  may  be  under  citation  of  an  inter- 
ested party.  The  renunciation  may  be  absolute  or  conditional ; 
in  any  case  it  may  be  retracted  before  an  appointment  is  made. 
If  the  renunciation  is  made  on  the  condition  that  a  certain  per- 
son be  appointed,  and  such  person  does  not  receive  the  appoint- 
ment, the  renunciation  is  void.®* 

The  right  may  be  waived  by  neglect  to  appear  and  qualify 
for  an  unreasonable  length  of  time.  It  may  also  be  waived  by 
contract  expressly  made,  in  which  such  right  for  a  valuable  con- 
sideration is  surrendered.     The  safe  way,  however,  is  where 

B3  Woerner  on  Admin.  531.  Notice  void,     Rinehart  vs.  Rinehart,  27  N. 

ought  to  be  given,  however.  J.  Eq.  475. 

B4  Compensation    cannot    be    col-  So  a  widow,  renouncing  in  favor  of 

lected   for   introducing  a   person   to  a  particular  person,  is  not  bound  by 

another  for   the  purpose  of  having  the   renunciation   if    this    person   is 

the  person  introduced  appointed  ad-  not  appointed.    See  §  92  McClellan's 

ministrator.     Swiggett  vs.  White,  8  Appeal.  16  Pa.  St.  110.   116. 

Bull.  22.  And  a  widow  renouncing  her  right 

All   the   next  of   kin   having  re-  as    administratrix    is,    nevertheless, 

nounced  in  favor  of  the  eldest  among  on  the  discovery  of  a  will,  entitled 

them,  if  he  could  find  security,  the  to  letters  cum  testamento  annexo.  if 

appointment  of  his  nominee,  on  his  the  executors  do  not  qualify.     Bro- 

failing  to  obtain  security,  was  held  die  vs.  Mitchell,  85  Md.  516. 

See  §  115. 


105  HUSBAND  OK  WIDOW  §  120 

the  person  entitled  has  not  appeared  and  qualified,  to  cite  him 
to  appear  in  court  for  that  purpose. 

An  agreement  to  secure  an  appointment  as  administrator  of 
one  not  entitled  thereto  by  law  and  furnish  him  with  bond  is 
void.''' 

§  120.    Husband  and  widow. 

The  surviving  husband  or  vdfe  is  entitled  if  not  evidently 
unsuitable  or  incompetent  to  letters  of  administration.  This 
right  exists  only  where  there  is  an  actual  marriage  relation.'" 

A  marriage  absolutely  void  from  the  beginning  confers  no 
right." 

But  if  the  marriage  was  only  voidable  and  not  avoided  before 
the  death  of  the  consort  the  right  exists.'* 

The  abandonment  by  the  one  of  the  other  does  not  destroy 
the  right.'** 

The  fact  that  they  lived  apart  for  several  years  before  death 
occurred  will  not  destroy  the  right,**"  even  though  the  surviving 
party  agree  to  make  no  claim  on  the  deceased's  estate.®^ 

It  is  a  disputed  matter  whether  such  a  right  can  be  surren- 
dered by  an  ante-nuptial  agreement.®^  But  if  the  contract  is 
clear  that  it  was  the  intention  to  relinquish  this  right  it  will 
be  valid.^^ 

It  is  also  held  that  the  adultery  of  the  consort  might  destroy 
the  right ®^ 


55  Clifford  vs.  Brown,  15  Bull.  386 
See  Woerner  on  Admin.  529,  et  seq 
See  §  1094,  Probate  of  Will. 

56  O'Gara  vs.  Isenlohr,  38  N.  Y 
296;  See  Smith  vs.  Smith,  1  Tex 
621;  S.  C,  46  Am.  Dec.  121. 

57  Bowning  vs.  Reave,  2  Phillim 
69. 

58  Elliott  vs.  Gurr,  2  Phillim.  16 
White  vs.  Lowe,  1  Redf.  376 ;  Park 


60 /n  re  Ross'  Estate,  11  Pa.  Co. 
Ct.  Rep.  601 ;  S.  C,  1  Pa.  Dist.  Rep. 
744. 

61  Garretson  vs.  Garretson,  4  Ohio 
C.  C.  336;  S.  C.  Geobel,  187;  21 
Bull.  54.     Case  discussed. 

62  Fowler  vs.  Kell,  14  Sm.  &  M. 
68;  Ward  vs.  Thompson,  6  Gill.  & 
J.  349;  Bray  vs.  Dudgeon,  6  Mnf. 
132;   Maurer  vs.  Naill,  5  Md.  324; 


er's  Appeal,  44  Pa.  St.  309;   Smith  Grovane  vs.  Grovane,  1  Har.  &  M. 

vs.  Smith,  1  Tex.  621.  346.    See  §  327. 

59  Coover's    Appeal,    52    Pa.    St.  63  19  Am.  &  Eng.  Ency.  of  Law, 

427;  Nusz  vs.  Grove,  27  Md.  391;  192. 

Altemus'  Case,  1  Ashm.  49.  «*  See  21  Bull.  54. 


§121  LETTERS    OF     ADMINISTRATION  106 

§  121.     The  next  of  kin. 

If  there  be  no  surviving  husband  or  wife,  or  if  such  husband 
or  wife  renounce  the  trust,  then  the  right  is  conferred  on  the 
next  of  kin.  Who  are  such  next  of  kin  is  given  in  Williams 
on  "  Executors,"  and  it  is  said  the  rule  there  made  is  substan- 
tially followed  in  most  of  the  American  States.  The  rule  given 
by  him  is  as  follows :  "  In  the  first  place  the  children ;  and  on 
the  failure  of  children  the  parents  of  the  deceased  are  entitled 
to  the  administration ;  then  followed  by  brothers  and  sisters ; 
then  grandfathers  and  grandmothers ;  then  nieces  and  nephews ; 
great-grandfathers  and  great-grandmothers;  and  lastly  cou- 
sins." «" 

If  the  husband  is  entitled  to  his  wife's  property,  and  if  the 
next  of  kin  be  a  married  woman  and  she  renounces,  the  grant  is 
made  to  the  husband,  for  he  is  interested,  and  the  grant  must 
follow  the  interest  and  the  wife  cannot  by  renouncing  deprive 
her  husband  of  his  right."^*^ 

It  has  been  held  that  in  detennining  who  are  the  next  of  kin, 
adopted  children  must  be  considered. ^^ 

The  court  is  not  bound  to  appoint  two  because  they  have  equal 
claims.®* 

§  122.     The  creditor. 

The  next  in  order  to  which  the  statute  gives  the  right  of  ap- 
pointment is  the  creditor. 

A  person  applying  under  this  head  should  have  a  prima  facie 
claim  against  the  estate  of  the  deceased.  If  two  creditors  have 
equal  claims,  the  first  applying  should  be  appointed  even  if  the 
claims  are  doubtful,  if  the  applicant  is  a  person  of  good  charac- 
ter  he  ought  to  be  appointed. 

The  creditor  of  an  alleged  distributee  has  no  right  as  such 
to  apply  for  letters  of  administration  upon  the  estate  of  the  an- 
cestor, nor  to  intervene  in  such  a  proceeding.®' 

65  Wms.  on  Ex.  425.  67  Estate    of    McCully,    13    Phila. 
The  words  '^next  of  kin,"  as  used       296. 

in   §  10617   G.  C,  mean   those   rela-  es  Succession  of  Gains.  7  So.  Rep. 

tives   who,   at  the   time   of  appoint-  788.     See  §  913.  Descent,  etc. ;  §1199, 

ment,  would    inherit   in   case  of   in-  Construction  of  Wills. 

testacy.     Hence,  children  and  other  69  [n    re    Pitchlvnn's    Estate.     19 

relatives    of    such    persons,    in    esse,  Wash.  T^aw  Rep    563 

of     "°,^  |"c^"^^«^^-       -^icCallip     vs.  A  cashier  of  a  cor.ooration  mav  be 

Sharp    13  Dec.  6o0  appointed,  where  the  eorfwration  is 

66  VVoerner  on  Admin.  522.  ^  creditor.     McCallip  vs.  Sharp,   13 

Dee.  650. 


107  court's  choice  §  123 

A  tender  bj  the  heirs  to  the  creditor  of  the  amount  of  his 
claim  deprives  the  creditor  of  his  statutory  right  to  be  appointed 
administrator. '" 

A  cause  of  action  which  does  not  survive  the  debtor  does  not 
support  his  claim  to  administer  the  estate/^ 

The  practice  in  Probate  Court  generally  is  that  where  the 
next  of  kin  and  the  husband  or  wife  declines,  the  person  recom- 
mended by  them  to  be  appointed,  receives  the  appointment. 
The  right  of  such  appointee  is  perhaps  under  the  statute  not 
superior  to  that  of  tlie  creditor,  but  unless  the  creditor  is  in 
danger  of  losing  his  claim  by  insolvency  of  the  estate  the  rea- 
sons for  appointing  such  recommended  person  are  very  strong, 
for  he  has  the  confidence  of  those  who  are  most  familiar  with 
the  estate  and  presumably  are  most  interested  in  its  welfare, 
and  is  more  likely  to  receive  their  aid  in  securing  a  good 
administration,  etc. 

§123.     To  such  person  as  the  court  may  see  fit. 

Further  provision  is  that  if  there  be  no  creditor  competent 
to  undertake  the  trust  it  should  be  given  to  such  person  as  the 
court  may  think  fit,  but  the  appointment  in  such  case  is  limited 
to  the  fact  that  it  must  be  sho\vn  that  the  estate  exceeds  the 
value  of  one  hundred  dollars ;  ^"  and  in  such  case  it  is  important, 
for  it  goes  to  the  jurisdiction  of  the  court  that  it  be  shown  af- 
firmatively in  the  application  and  that  the  court  make  a  finding 
that  the  estate  exceeds  one  hundred  dollars  in  value ;  for 
without  such  finding  the  appointment  is  void  as  being  beyond 
the  jurisdiction  of  the  court. 

§  124.     Must  give  bond,  etc. 

The  court  having  determined  that  tlie  party  is  dead  upon 
whose  estate  an  administrator  is  desired,  and  that  the  deceased 
left  an  estate  and  that  a  certain  person  is  entitled  to  be  ap- 

70  Culley  vs.  Mohlenbrock,  36  111.  Other  things  being  equal,  the  court 
App.   84.                                                         will    appoint    as    administrator    the 

71  Woerner  on  Admin.  522.  one     desired     by    the    beneficiaries. 
72 As  to  amount  and  kind  of  as-       Sargent  vs.  Corbley,  7  C.  C.    (N.S) 

sets,  generally  to  entitle  administra-       226;  28  0.  C.  C.  125. 

tion,    see    §    75,    chapt.    on    Letters 

Testamentary. 


§  125  LETTERS   OF  ADMINISTRisTION  108 

pointed,  the  next  matter  in  order  will  be  the  giving  of  a  proper 
bond.  This  bond  must  be  signed  by  two  securities,  who  must 
be  inhabitants  of  the  State  and  should  be  residents  of  the  county 
and  freeholders ;  and  the  practice  is  to  make  the  penalty  in  dou- 
ble the  amount  of  the  supposed  assets.  The  statute  relative  to 
giving  bonds  is  as  follows: 

"Before  entering  on  the  execution  of  his  trust,  every  admin- 
istrator shall  give  bond  with  two  or  more  sufficient  sureties, 
in  such  sum  as  the  court  orders,  payable  to  the  state,  with 
conditions  as  follows : 

"1.  To  make  and  return  into  court  on  oath,  within  thirty 
days,  a  true  inventory  of  all  moneys,  goods,  chattels,  rights 
and  credits  of  the  deceased,  w^hich  have  or  may  come  to  his 
possession,  or  knowledge,  and,  if  required  by  the  court,  an. 
inventory  of  the  decedent's  real  estate; 

"2.  To  administer  according  to  law  all  the  moneys,  goods, 
chattels,  rights  and  credits  of  the  deceased,  and  the  proceeds 
of  all  his  real  estate  sold  for  payment  of  his  debts,  which  come 
to  the  possession  of  the  administrator  or  to  the  possession  of 
any  person  for  him ; 

"3.  Upon  oath  to  render  a  true  account  of  his  adminis- 
tration, within  twelve  months,  and  at  other  times  when  re- 
quired by  the  court  or  the  law.  Failing  so  to  do  for  thirty 
days  after  he  has  been  notified  by  the  probate  judge  of  the 
expiration  of  the  time,  he  may  forthwith  be  removed  by  the 
court  and  he  shall  receive  no  allowance  for  services,  unless 
the  court  enters  upon  its  journal  that  such  delay  was  necessary 
and  reasonable. 

"4.  To  pay  any  balance  remaining  in  his  hands,  upon  the 
settlement  of  his  accounts,  to  such  persons  as  the  court  or  the 
law  directs ; 

"5.  To  deliver  the  letters  of  administration  into  court  in 
case  a  will  of  the  deceased  be  thereafter  duly  proved  and 
allowed."     [R.  S.  6006;  vol.  102  v.  200.]  " 

§  125.     Form  of  administrator's  bond. 
(Revised   Statutes,    §   6006.) 


Know  all  Men  by  these  Presents,     That  we. 
and    


73  §  10618     G.     C.        See     §  1333  paid  the  money  and  it  was  used  to 

Gdns. ;  see  §  233  on  Bonds.  pay  funeral  expenses,  unpaid  board, 

Tlie  bond  can  not  be  extended  be-  and    suit   was    brought    against   the 

yond    its    plain    term.      Murphy    vs.  company    a    motion    to    arrest    from 

Dorsey,    3    C.    C.     (X.S.)     119;    23  the  jurv  was  sustained.     Insurance 

O.   C.'C.   157.  Co.  vs."Burbank.  3  App.  302.   19  0. 

Where     an     industrial     insurance  C.  C.  (N.S.)  557,  26  O.  C.  C.  280. 


109  GRANTING  LETTERS  §  126 

are  held  and  firmly  bound  unto  the  State  of  Ohio,  in  the  penal  sum  of 

Dollars,    to    the   payment    of    which    we    do 

hereby  jointly  and  severally  bind  ourselves,  our  heirs,  executors  and  ad- 
ministrators if  default  be  made  in  the  condition  following: 

Whereas,     Letters  of  Administration  upon  the  estate  of 

deceased,  were  granted 

to  the  said by  the  Probate  Court  of 

County,  in  the  State  of  Ohio,  on  the day  of 

A.  D.   190 ...  ;     Now  if  the  said 

as  Administrat.  .  .  .of  the  estate  of  said 

deceased  shall : 

First,  Make  and  return  into  Court,  on  oath;  within  thirty  days;  a  true 
inventory  of  all  Moneys,  Goods,  Chattels,  Rights  and  Credits  of  the  de- 
ceased, which  have  or  shall  come  to  . .  h .  .  . .  possession  or  knowledge ;  and, 
also,  if  required  by  the  Court,  an  inventory  of  the  real  estate  of  the  deceased. 

Second,  Administer  according  to  law,  all  the  Moneys,  Goods,  Chattels, 
Rights  and  Credits  of  the  deceased,  and  the  proceeds  of  all  h.  .  .  .  real  estate 
that  may  be  sold  for  the  payment  of  h .  .  .  .  debts,  which  shall  at  any  time 
come  to  the  possession  of  the  administrat.  .  .  .,  or  to  the  possession  of  any 
other  person  for   . .  h 

Third,  Render,  upon  oath,  a  true  account  of  .  .  h .  .  .  .  administration 
within  twelve  months,  and  at  any  other  times  when  required  by  the 
Court  or  the  law,  and  failing  so  to  do  for  thirty  days  after  ..he.,  shall 
have  been  notified  of  the  expiration  of  the  time  by  the  Probate  Judge,  . .  he 
..shall  receive  no  allowance  for  services,  unless  the  Court  shall  enter  upon 
its  journal  that  such  delay  was  necessary  and  reasonable. 

Fourth,  Pay  any  balance  remaining  in  .  .h.  .  hands  upon  the  settlement 
of  .  .h.  .  accounts,  to  such  personr  as  the  Court  or  the  law  shall  direct;  and, 

Fifth,  Deliver  the  letters  of  administration  into  Court,  in  case  any  will 
of  the  deceased  shall  be  thereafter  duly  proved  and  allowed; 

Then  this  obligation  to  be  void;  otherwise  to  remain  in  full  force  and 
virtue  in  law. 

Signed  by  us,  and  dated  at Ohio,  this day  of 

190 

EXECUTED  IN  PRESENCE  OF 


This  bond  approved  in  open  Court,  this day  of 190.  .  . 

Probate  Judge. 

§  126.     Granting  letters. 

The  entry  granting  letters  of  administration  ought  to  show 
that  all  the  jurisdictional  facts  have  heen  affirmatively  passed 
upon  by  the  Court.     For  the  form  of  a  proper  entry  '*  the  one 

74  §  89,  Executors,  etc.  the  blanks  may  be  filled.     Sonrada 

One  who  signs  in  blank  the  printed       vs.  David,  15  N.  P.  257. 
form,  consents  by   implication  that 


§  127  LETTEKS    OF    AD^S^^ISTRATION  110 

under  the  chapter  on  letters  of  administration  can  be  easily 
adopted." 

§  127.     Form  of  administrator's  letters. 


The  State  of  Ohio,   County,  ss. 

To  All  who  shall  see  these  Presents,  Greeting: 

Be  it  known,  That  by  the  Court  of  Probate,  of  said  County,  Administra- 
tion of  all  and  singular  the  Goods,  Chattels,  Rights,  Credits  and  Estate, 

which  were  of late  of  said  County, 

deceased^  has  been  granted  unto 

whose  duty  it  shall  be  to  have  all  and  singular 

the  said  Goods,  Chattels,  Rights  and  Credits  appraised  by 

and  to  return  upon  oath,  within  thirty  days,  a  true  inventory  thereof,  also 
of  the  moneys  belonging  to  the  said  decedent  at  the  time  of  h . .  .  .  death ;  to 
administer,  according  to  law,  all  the  said  Moneys,  Goods,  Chattels,  Rights 
and  Credits,  ( and  also  the  proceeds  of  the  Real  Estate  of  said  decedent,  which 
may  be  sold  for  the  payment  of  h.  .  .  .debts),  which  shall  at  any  time  come 

into  the  possession  of  said  Administrat.  .  .  .or  of  any  person  for ; 

to  render   upon   oath   a   true   account   of administration,     (within 

twelve   months,   and   at   any   other   times   when   required   by   the   Probate 

Court  or  the  law,  and  failing  so  to  do  for  thirty  days  after 

shall  have  been  notified  of  the  expiration  of  the  time  by  the  Probate  Judge, 

shall  receive  no  allowance  for  services  unless  the  Court  shall  enter 

upon  its  journal  that  such  delay  was  necessary  and  reasonable;  and  to  pay 

any  balance  remaining  in hands  upon  settlement accounts, 

to  such  persons  as  the  Court  or  the  law  shall  direct). 

Witness  my  hand  and  the  Seal  of  said  Court,  at 

Ohio,  this day  of A.  D.  190.  .  . 


Probate  Judge. 

By 

Deputy  Clerk. 

The  State  of  Ohio, County,  ss 

1,  Sole  Judge  and  Ex-Officio  Clerk  of  the  Probate  Court  within 
and  for  the  said  County,  certify  that  the  foregoing  is  a  true 
copy  of  the  original  Letters  of  Administration,  granted  in  the 
premises  by  said  Court,  and  remaining  on  file  in  my  ofEce. 
Witness  my  hand  and  the  seal  of  said  Court,  at 

this day    of 

A.  D.  190.... 


Probate  Judge  and  Ex-Officio  Clerk  of  the  Probate  Court 

75  As    to    the    manner    of    setting  legally    made   can   not   be   attacked 

aside   an   illegal   appointment.      See  collaterally.      Carr  vs.   Hull,   65   O. 

chapter  on  resignation  and  removal.  S.  394. 

An     appointment,     although     il« 


Ill 


DEFINITION 


§128 


CHAPTER  VIII. 

SPECIAL  ADMINISTRATION. 


128  Definition. 

129  When  to  be  appointed. 

130  Delay      warranting     appoint- 

ment. 

131  Application,  jurisdiction,  etc. 

132  Who  may  be  appointed. 

133  Must  give  bond. 

134  Form   of   Special  Administra- 

tor's bond. 

135  Form  of  entry  appointing  spe- 

cial administrator. 

136  Form    of    special    administra- 

tor's letters. 

137  Powers,  duties  and  compensa- 

tion of  special  administrator. 

138  Power  to  collect,  suit,  etc. 

139  Power  to  sell. 

140  Power  to  pay  debts,  fees,  etc. 


§  141  When  the  powers  cease. 

§  142  How  special  administrator 
may  be  proceeded  against  by 
the  executor,  etc. 

§  143  Application  for  citation,  etc. 

§  144  Form  of  application. 

§  145  Form  of  entry  ordering  cita- 
tion. 

§  146  Form  of  citation. 

§  147  Journal  entry  ordering  writ  of 
attachment. 

§  148  Form  of  writ  of  attachment. 

§  149  Entry  committing  to  jail. 

§  150  Special  administrator  not  lia- 
ble to  creditors  —  limitation 
of  action  against  executor, 
etc. 


§  128.     Definition. 

A  temporary  or  special  administrator  is  an  officer  appointed 
by  the  Probate  Court  to  take  charge  of  a  decedent's  estate  until 
a  final  appointment  can  be  made.  This  kind  of  administration 
it  is  said,  seldom  occurs,  the  Probate  Courts  preferring,  for  the 
convenience  and  security  of  all  concerned,  to  have  the  adminis- 
tration of  the  settlement  of  estates  as  simple  as  practicable.^ 

It  is  said  that  they  are  limited  in  their  powers,  usually  to 
the  collection  and  preservation  of  the  property  of  a  decedent, 
until  a  proper  administrator  is  appointed,  and  that  it  is  not 
necessary  for  them  to  file  an  inventory.^ 


13  Redf.  on  Wills  113;  Sch.  Ex. 
§  135;  Wms.  on  Ex.  513;  Woerner 
on  Admin.  406. 


2Tomlinson   vs.    Wright,    12   Ind. 
App.  292. 


§  129  SPECIAL   ADMINISTRATION  112- 

But  our  law  contemplates  that  there  be  an  inventory,  for 
it  is  provided  that  it  shall  be  a  condition  of  the  bond  that  an 
inventory  be  returned  within  thirty  days,  etc.^ 

§  129.  When  to  be  appointed.  ''When,  by  reason  of  a  suit 
concerning  the  proof  of  a  will,  or  from  other  cause,  there  is 
delay  in  granting  letters  testamentary  or  of  administration, 
the  court  may  appoint  a  special  administrator  to  collect  and 
preserve  the  effects  of  the  deceased."     [R.  S.  §  6007.]* 

It  will  be  noticed  that  two  things  exist  by  virtue  of  this  stat- 
ute before  such  an  administrator  can  be  appointed.  First,  that 
there  is  a  suit  concerning  the  proof  of  the  will ;  second,  if 
from  any  other  cause  there  shall  be  a  delay  in  granting  letters. 
As  to  what  is  meant  to  be  included  within  the  phrase  of  any 
other  cause,  the  statute  gives  no  directions.  In  some  of  the 
States  it  has  been  provided  what  should  constitute  at  least  some  . 
of  the  other  causes  for  the  appointment  of  a  special  adminis- 
trator. In  iSTew  York  it  is  provided  that  if  a  person  is  sup- 
posed to  be  dead  and  his  abode  cannot  be  ascertained,  and  there 
are  circumstances  which  afford  reasonable  grounds  to  believe 
either  that  he  is  dead,  or  becomes  a  lunatic,  or  that  he  has  been 
secreted,  confined  or  otherwise  unlawfully  made  away  with,  a 
temporary  administrator  may  be  appointed.^ 

And  in  Indiana  it  is  provided  that  where  anyone  is  intermed- 
dling with  the  estate,  or  that  there  is  no  one  having  authority 
to  take  care  of  the  same,  a  special  administrator  may  be  ap- 
pointed.*    Special  letters  may  be  granted  if  a  mil  is  lost.' 

§  130.     Delay  warranting  appointment. 

It  is  not  every  delay  that  will  warrant  the  appointment  of  a 
special  administrator.  It  is  not  to  be  taken  as  warranting  the 
exercise  of  the  power  unless  the  condition  of  the  estate  may  be 

3  §  10620  G.  C;  §  133;  §310,  Pros-  When   for   any  cause  there   is   a 
ecution  ao:ainst,  etc.  dalay  in  granting  letters,  a  special 

4  §  10610  G.  C.  administrator  may  be  appointed,  to 

5  §  2670   Civil   Code.  collect    and    preserve    the    assets    of 

6  §  2301  R.  S.  1804.  the  estate.     McBride  vs.  Vance,  73 

7  Goods  of  Campbell,  2  Hazz.  555;  0.  S.  298. 
Goods  of  Metcalf,  1  Add.  Ec.  Rep. 

343. 


113  APPLICATION,    ETC.  §  131 

such  that  possible  harm  or  inconvenience  could  result  from  such 
delay  to  the  party  interested.  But  where  there  are  no  such 
conditions,  or  the  estate  is  not  of  such  character  that  necessary 
delay  in  having  some  person  authorized  to  take  charge  of  the 
estate  will  necessarily  or  probably  cause  the  loss  of  the  estate,  or 
likely  to  impair  the  rights  or  remedies  of  persons  interested 
therein,  a  case  is  not  made  out  for  the  appointment  of  a  tem- 
porary administrator.^  Customarily,  where  a  contest  occasions 
a  delay  in  the  issuance  of  letters,  a  temporary  administrator 
will  be  appointed  for  the  purpose  of  getting  in  assets  and  con- 
serving the  estate. 

It  has  been  held  to  be  a  clear  case  for  the  granting  of  such 
letters  when  there  are  outstanding  numerous  promissory  notes, 
unsecured,  to  realize  on  which  diligence  in  prosecuting  the  same 
would  be  required.^'* 

A  special  administrator  may  be  appointed  for  the  sole  pur- 
pose of  prosecuting  or  defending  a  particular  suit  instituted  by 
or  against  a  person  who  may  die  while  it  is  pending. ^^ 

So  an  administrator  may  be  appointed  for  the  sole  purpose  of 
instituting  and  carrying  on  a  particular  suit  if  there  be  a  pres- 
ent necessity  for  it.^^ 

§  131.     Application,  jurisdiction,  etc. 

The  application  may  be  made  by  any  person  interested,  and 
it  must  be  made  in  the  same  court  in  which  it  would  be  proper 
for  an  administrator  to  be  appointed.^^  It  must  be  sworn  to 
and  be  in  writing,  and  should  give  the  probable  value  of  the 
assets,  the  time  of  death  and  residence  of  the  deceased  and  such 
other  facts  as  will  warrant  the  court  in  making  the  appointment. 
It  may  be  very  much  doubted  whether  the  applicant  will  be  re- 

8  Matter  of  Eddy  (N.  Y.)   10  Misc.  12  Goods  of  the  Elector  of  Hesse, 

211.  1   Hagg.   93;    Woolley  vs.  Green,   3 

10  Matter  of  Eddy,  10  Misc.  211;  Phillim.  314;  Ex  parte  Lyon,  60 
Matthews  vs.  Am.  Cent.  Ins.  Co.,  154  Ala.  650;  Mcxirthur  vs.  Scott,  113 
N.  Y.  449.  U.  S.  340. 

11  Wade  vs.  Bridges,  24  Ark.  569;  i3  §  ni,  when  application  made 
Lothrop's  Case,  33  N.  J.  Eq.  248;  for  Admin.;  §  72,  when  application 
Wolflfe  vs.  Eberlein,  74  Ala.  99.  made  for  Exec. 


§  132  SPECLAX  ADMINISTBATION  114 

quired  to  set  out  the  names  and  addresses,  and  ages,  if  minors, 
of  the  heirs  at  law,  yet  no  harm  could  be  done  if  this  was  fol- 
lowed. Therefore  the  form  given  for  the  appointment  of  an  ad- 
ministrator or  executor  might  be  used  in  making  the  application 
for  a  special  administration ;  and  in  addition  to  the  facts  there- 
in set  forth  it  should  be  alleged  that  there  was  a  contest  pending 
for  the  proof  of  the  will,  or  some  other  fact,  which  would  show 
the  necessity  of  the  appointment  of  an  administrator  to  serve 
imtil  a  regular  administrator  could  be  appointed. 

§  132.     Who  may  be  appointed. 

It  will  be  observed  that  the  granting  of  a  special  administra- 
tion and  the  selection  of  a  person  to  be  appointed  is  given  by 
the  statute  to  the  discretion  of  a  judge;  and  it  has  been  held 
that  it  is  an  absolute  discretion.^* 

As  to  the  manner  in  which  this  discretion  should  be  exer- 
cised it  has  been  said :  "  It  is  important  that  a  person  in- 
trusted with  temporary  administration  should  be  not  only  com- 
petent and  honest,  but  disinterested ;  and  if  he  had  to  be  either 
a  relative  or  a  creditor  of  the  deceased  it  might  often  be  very 
difficult  to  select  a  temporary  administrator  who  should  be  in- 
different as  between  the  parties  to  a  contest  among  applicants 
for  permanent  administration  or  a  contest  over  the  probate  of  a 
will."  '^ 

In  one  case  the  Court,  declined  to  appoint  a  party  to  the  liti- 
gation." 

Also  if  the  person  be  named  as  executor  in  the  will  and  as  the 
chief  beneficiary  thereunder,  or  if  he  has  any  hostile  interest  to 
the  heirs  or  next  of  kin,  he  should  not  be  appointed. ^^ 

So  where  the  person  named  as  executor  in  the  will  is  charged 
by  the  contestants  with  having  exercised  undue  influence  upon 
the  deceased  he  will  be  rejected  as  temporary  administrator.^* 

14  Greece  vs.  Helm,  91  Mich.  450.  it  Howard  vs.  Dougherty,  3  Redf. 

15  Judge   Bartlett.     In   matter   of       535. 

Plath,   56  Hun  223.  ^^  Cornwell  vs.   Cornwell,   1   Dem. 

16  Crandell  vs.  Shaw,  2  Redf.  (N.  1 ;  In  re  Wanninger's  Estate,  3  N.  Y. 
Y.)    100.  Supp.    137. 


115  BOND,    ETC.  §  133 

§  133.  Must  give  bond.  ' '  Before  entering  upon  the  duties 
of  his  trust,  every  sucli  administrator  must  give  bond,  with  two 
or  more  sufficient  sureties,  in  sueli  sum  as  the  court  orders,  pay- 
able to  the  state,  with  condition  that  he  will  make  and  return 
into  court,  within  three  months,  a  true  inventory  of  the  moneys, 
goods,  chattels,  rights,  and  credits  of  the  deceased,  which  have 
or  may  come  to  his  possession  or  knowledge,  and  that  he  will 
truly  account,  on  oath,  for  the  moneys,  goods,  chattels,  debts, 
and  effects  of  the  deceased,  received  by  him  as  such  special 
administrator,  whenever  required  by  the  court,  and  deliver 
them  to  the  person  appointed  executor  or  administrator  of  the 
deceased,  or  to  such  person  as  is  lawfully  authorized  to  receive 
them."     [R.  S.  §6008.]i« 

It  will  be  observed  that  as  to  surety,  penalty,  etc.,  the  same 
law  applies  to  the  bond  of  a  special  administrator  as  to  a  gen- 
eral administrator. "° 

§  134.     Form  of  special  administrator's  bond. 

Know  all  Men  by  these  Presents,    That  we 

and are   held   and   firmly 

bound  unto  the  State  of  Ohio  in  the  penal  sum  of 

Dollars,  to  the  payment  of  which  we  do  hereby  jointly  and  severally 
bind  ourselves,  our  heirs,  executors  and  administrators  if  default  be  made 
in  the  condition  following: 

Whereas,    Letters  of  Special  Administration  upon  the  estate  of 

,  deceased,  were  granted  to  the  said 

by   the   Probate    Court    of 

County,  in  the  State  of  Ohio,  on  the day  of 

A.  D.   190 ...  ;  Now  if  the  said as  Special 

Administrat of  the  estate  of  said 

deceased,  shall: 

First,  Make  and  return  into  Court,  on  oath;  within  three  months,  a 
true  inventory  of  all  Moneys,  Goods,  Chattels,  Rights  and  Credits  of  the 
deceased,  which  have  or  shall  come  to.  .h.  .possession  or  knowledge;  and, 
also,  if  required  by  the  Court,  an  inventory  of  the  real  estate  of  the  deceased. 

Second,  That.. h.. will  render  a  true  account  under  oath  of  all  the 
Moneys,  Goods,  Chattels,  Debts  and  Effects  of  the  deceased  that  shall  be 
received  by  ..h..  as  such  Special  Administrator  Avhenever  required  by  the 
Court;  and  will  deliver  the  same  to  the  person  who  shall  be  appointed 
executor  or  administrator  of  the  deceased,  or  to  such  other  person  as  shall 
be  lawfully  authorized  to  receive  the  same. 

19  §  10620  G.  C.  20  §  233  et  seq.  on  bonds. 


§  135  SPECIAL   ADMINISTRATION  116 

Then  this  obligation  to  be  void;  otherwise  to  remain  in  full  force  and 
virtue  in  law. 

Signed  by  us,  and  dated  at ,  Ohio,  this 

day  of 190..  .. 

EXECUTED    IN    THE    PRESENCE    OF 


This  bond  approved  in  open  Court,  this day  of 190.  .  . 

Probate  Judge. 

§  135.    Form  of  entry  appointing  special  administrator. 

This  day  this  cause  came  on  to  be  heard  upon  the  application  of  A.  B. 
filed  herein  for  a  special  administrator  upon  the  estate  of  C.  D. ;  and  the 
same  was  submitted  to  the  Court,  whereupon  the  Court  finds  the  allegations 
of  said  application  are  true;   and  it  further  appearing  to  the  Court,  that 

said  A.  B.  has  filed  his  bond  herein  in  the  sum  of 

Dollars,    with and 

sureties  thereon.  The  said  bond  is  hereby  proved,  and  it  is  ordered  that 
letters  of  Special  Administration  be  granted  to  said  A.  B.  as  in  such  cases 

made,  and  provided  by  statute ;  and ,   

and ,  are  appointed  appraisers  of  said  estate. 

§  136.    Form  of  special  administrator's  letters. 

The  State  of  Ohio,   County,  ss. 

To  All  who  shall  see  these  Presents,  Greeting: 

Be  it  known,  That  by  the  Court  of  Probate,  of  said  County,  Adminis- 
tration of  all  and  singular  the  Goods,  Chattels,  Rights,  Credits  and  Estate, 

which  were  of ,  late  of  said 

County,  deceased,  has  been  granted  unto 

whose  duty  it  shall  be  to  have  all  and  singular  the  said  Goods,  Chattels, 

Rights   and   Credits   appraised   by and   to 

return  upon  oath,  within  three  months,  a  true  inventory  thereof,  also  of 
the  moneys  belonging  to  the  said  decedent  at  the  time  of  h .  .  death ;  to 
administer,  according  to  law,  all  the  said  Moneys,  Goods,  Chattels,  Rights 
and   Credits,   which   shall  at  any   time  come   into   the  possession   of   said 

Administrat. ,  .  .or   of   any   person   for ;    to   render 

upon  oath  a  true  accoimt  of administration,  at  such  time 

as  the  Court  direct,  and  deliver  all  the  Goods,  Chattels,  Debts  and  Effects 
of  the  deceased,  received  by  him  to  the  person  who  shall  be  appointed 
executor    (or  administrator  of  said  estate),  whenever  required. 

Witness  my  hand  and  the  Seal  of  said  Court,  at 

Ohio,   this dav   of A.   D.    190. . . 


Probate  Judge. 

By 

Deputy  Clerk. 


117  POWERS,   ETC.  §  137 

§  137.  Powers,  duties  and  compensation  of  special  adminis- 
trator. "Such  special  administrator  must  collect  the  goods, 
chattels,  and  debts  of  the  deceased,  and  preserve  them  for 
the  executor  or  administrator  who  thereafter  is  appointed. 
For  that  purpose  he  may  begin  and  maintain  suits  as  admin- 
istrator, and  also  sell  such  perishable  and  other  goods  as  the 
court  orders  sold.  He  shall  be  allowed  such  compensation  for 
his  services  as  the  court  thinks  reasonable,  if  he  forthwith 
delivers  over  to  the  executor  or  administrator  who  supersedes 
him,  the  propertv  and  effects  of  the  estate,  as  hereinafter  pro- 
vided."    [R.  S.  §6009.]-! 


§  138.     Power  to  collect,  suit,  etc. 

It  is  one  of  the  principal  duties  of  a  special  administrator  to 
preserve  the  estate,  and  to  accomplish  this  he  has  the  same 
power  as  a  general  administrator.  He  may  employ  persons  to  as- 
sist him  in  taking  care  of  it,  gathering  crops,  feeding  stock, 
etc.,  the  same  as  a  general  administrator.  Likewise  he  has 
power  to  bring  suit  to  collect  outstanding  debts  due  the  estate. 
In  this  respect  he  occupies  the  same  relation  as  that  known  in 
law  as  an  administrator  'pendente  lite.  The  power  of  a  special 
administrator  is  limited  by  the  statute.  But  whatever  he  may 
lawfully  do,  it  is  binding  upon  the  estate.  ^^ 

This  power  to  collect  is  undisputable,  and  it  necessarily  im- 
plies the  further  power  to  do  whatever  is  requisite  in  order  to 
perfect  the  chose  in  action  so  that  collection  can  be  enforced. ^^ 

The  power  to  do  any  act  includes  the  power  to  do  all  that  is 
reasonable  to  do  it  effectively.^* 

The  general  power  to  collect  being  conferred  on  the  special 
administrator,  I  have  no  doubt  that  by  permission  of  court  he 
may  compound,  compromise  or  sell  desperate  claims  in  like 
manner  as  a  general  administrator  could. 


21  §  10G21   G.  C.  24  Id.  by  Vann,  J.,  at  page  460; 

22Woerner  on  Admin.  401.  See  §       Hall   vs.   Lauderdale,   46  N.   Y.    70, 

440,  Collection  of  assets.  73;   Parker  vs.  Supervisors,   106  N. 

23  Matthews    vs.    American  Cent.       Y.  392. 
Ins.  Co.,  154  N.  Y.  449,  460. 


§    139  SPECIAL  ADMINISTRATIOISr  118 

§  139.     Power  to  sell 

A  special  administrator  has  no  power  to  sell  any  property 
except  by  order  of  court.  The  power  given  a  general  adminis- 
trator to  sell  personal  property  at  public  sale  without  an  order 
of  court  does  not  exist  in  a  special  administrator.  The  statute 
does  not  seem  to  confer  any  power  whatever  upon  a  special  ad- 
ministrator to  sell  real  estate ;  and  I  very  much  doubt  if  he  has 
any  control  whatever  over  real  estate.  Possibly  if  he  were  ap- 
pointed to  take  charge  during  the  contest  on  proof  of  a  will  he 
might  take  control  of  property  devised  in  the  will,  other  than 
that  which  is  specifically  devised,  and  perform  such  acts  in  its 
preservation  as  is  provided  under  sec.  10633  G.  C.-'^  If  per- 
sonal property  is  sold  an  application  should  be  made  to  the 
court  as  is  provided  for  the  private  sale  of  personal  property. 

§  140.     Power  to  pay  debts,  fees,  etc. 

Our  statute  is  silent  upon  the  power  of  a  temporary  adminis- 
trator to  pay  debtSj  and  if  he  has  no  power  to  pay  debts  he 
could  not  sell  real  estate  for  that  purpose.  Indeed  it  is  very 
questionable  whether  under  our  statute  a  special  administrator 
has  any  authority  whatever  over  real  estate.  It  is  said  that  in 
the  absence  of  statutory  authority  he  has  no  power  other  than 
may  be  necessar}^  to  collect  the  effects ;  not  even  to  invest  or  dis- 
tribute them,  nor  to  pay  legacies  or  debts,  but  if  they  were  to  be 
paid  bona  fide  they  will  be  allowed."*' 

It  seems  that  the  only  power  he  has  to  pay  out  moneys  of  the 
estate  is  for  his  o'<vn  necessary  expenses."^ 

It  has  even  been  held  that  he  had  no  power  to  pay  funeral 
expenses.^* 

It  is  provided  by  statute  that  a  special  administrator  is  en- 
titled to  such  compensation  as  the  court  may  think  reasonable. 
As  incidental  to  the  powers  to  sue,  a  temporary  administrator 

25  §  95.  27  Pharishe's  Estate.  29  Barb.  627. 

26  VVoerner  on  Admin.  401.  28  Cogswell's  Estate,  4  Redf.  241. 


119  WHEN  POWERS  CEASE.  §  141 

has  of  course  the  power  to  employ  counsel  and  to  pay  them  a 
reasonable  sum  for  necessary  legal  services. 

§  141.  When  the  powers  cease.  ' '  Upon  the  granting  of  let- 
ters testamentary  or  of  administration,  the  power  of  the  special 
administrator  shall  cease,  and  he  forthwith  must  deliver  to 
the  executor  or  administrator  all  the  goods,  chattels,  moneys, 
and  effects  of  the  deceased  in  his  hands.  The  executor  or 
administrator  may  be  admitted  to  prosecute  any  suit  begun 
by  the  special  administrator,  as  an  administrator  de  bonis  non 
is  authorized  to  prosecute  a  suit  commenced  by  a  former 
executor  or  administrator."     [R.  S.  §  6010.]-^ 

The  functions  of  a  temporary  administrator  of  a  decedent 
continue  until  the  qualification  of  the  executor  or  of  the  ad- 
ministrator-in-chief; that  is  to  say,  until  the  issuance  of  per- 
manent letters.  It  is  not  necessary  that  an  application  for  the 
revocation  of  letters  of  temporary  administrators  of  decedents 
should  be  made.  The  very  term  temporary  administrator 
suggests  that  the  authority  of  such  an  officer  is  to  be  deemed 
extinguished  by  the  issuance  of  letters  testamentary  or  letters 
of  administration-in-chief.^" 

§  142.  How  special  administrator  may  be  proceeded  against 
by  the  executor,  etc.  "If  such  special  administrator  neglects 
or  refuses  to  deliver  over  the  property  and  estate  to  the  ex- 
ecutor or  administrator,  as  provided  in  the  next  preceding 
section,  by  citation  and  attachment  the  court  may  compel  him 
to  do  so.  The  executor  or  administrator  also  may  proceed,  by 
civil  action,  to  recover  the  A'alue  of  the  assets  from  him  and 
his  sureties."     [R.  S.  §  6011.]^^ 

§  143.     Application  for  citation,  etc. 

If  upon  demand  of  the  general  administrator  the  special  ad- 
ministrator should  neglect  to  turn  over  to  the  general  adminis- 
trator the  funds,  property  and  papers  in  his  possession  belonging 
to  the  estate,  it  would  be  the  duty  of  the  general  administrator  to 

29  §  10622    G.    C.  31  §  10623  G.  C. 

sojes.  Sur.  Prac.  595    (N.  Y.). 


§  144  SPECIAL    ADMINISTRATION  120 

file  an  application  in  the  Probate  Court  asking  that  a  citation  be 
issued  against  him  for  his  failure  to  perform  the  duties  devolv- 
ing upon  him  in  reference  to  the  delivery  of  such  property.  .In 
addition  to  the  proceedings  provided  by  citation  the  general  ad- 
ministrator may  commence  a  suit  against  such  special  admin- 
istrator for  the  goods  in  his  possession  as  provided  for  an  ad- 
ministrator de  bonis  non. 

§  144.     Form  of  application. 

{Title.) 
The  undersigned  respectfuly  represents  that  on  the day  of 

he  was   duly   appointed   administrator    (or   executor)    of  the 

estate  of  C.  D.,  deceased,  lately  a  resident  of  said  county.  That  prior  to 
his  appointment  as  such  administrator  E.  F.  was  appointed  by  the  Pobate 
Cout  of  this  county  as  a  special  administrator  of  the  estate  of  said  C.  D., 
deceased.  That  he  has  demanded  of  said  special  administrator  that  he 
deliver  to  him  (here  specify  the  poperty  by  name)  as  he  is  required  by  law 
to  do.  But  the  said  C.  D.  as  such  special  administrator  has  refused  and 
neglected  to  do  so.  Wherefore,  the-  said  administrator  (or  executor)  asks 
the  Court  for  a  writ  of  citation  against  the  said  C.  D.  that  such  proceed- 
ings may  be  had  to  enforce  such  delivery  as  may  be  authorized  and  required 
of  him  by  law. 

Sign. 

Sworn  to  and  subscribed  in  my  presence  this day  of 

Sign. 

§  145.     Form  of  entry  ordering  citation. 

{Title.) 

This  day  came  A.  B.,  administrator  of  the  estate  of  C.  D.,  and  filed 
herein  his  application  for  a  citation  against  C.  D.,  a  special  administrator 
of  said  estate.  The  same  appearing  in  proper  form  and  duly  verified,  it  is 
ordered  that  a  citation  be  issued  against  said  C.  D.  to  appear  before  this 

court  on  the day  of to  answer  for  his  neglect  and 

refusal  to  deliver  to  said  administrator  the  effects  in  his  possession  belong- 
ing to  said  estate. 

§  146.    Form  of  citation. 

state  of  Ohio,    ....   county,  ss. 

To  A.  B.,  special  administrator  of  the  estate  of  [or  executor  of  the 
last  will  and  testament]  of  C.  D.  deceased: 

You  are  hereby  required,  on  or  before  the  ....  day  of  ....  A.  D.  190.  . 
to  deliver  to  E.  F.,  executor  of  the  last  will  and  testament  [or  admin- 
istrator of  the  estate]  of  C.  D.  deceased,  all  the  goods,  chattels,  moneys 
and  effects  of  said  decedent  in  your  hands  according  to  law,  or  to  appear 


121  ATTACHMENT^   ETC.  §  147 

in  this  court  on  ....  day  of  ....  190..,  and  show  cause  why  an  attach- 
ment should  not  issue  against  you  for  your  default. 

Witness  my  signature  and  the  seal  of  the  Probate  Court,  at this 

day  of   A.  D.   190... 

[seal]  Probate  Judge.32 

§  147.    Journal  entry  ordering  writ  of  attachment. 

State  of  Ohio,  on  application  of  E.  F.,  executor,  etc.,  vs.  A.  B., 
special  administrator,  etc.  The  writ  of  citation  having  been  returned 
served,  upon  said  A.  B.,  defendant,  requiring  him  on  or  before  the  .... 
day  of  ....  A.  D.  190..,  to  deliver  to  said  E.  F.,  executor,  etc.,  all 
the  goods,  chattels,  moneys  and  effects  of  said  decedent  in  his  hands;  and 
said  A.  B.  having  failed  to  comply  with  the  order  aforesaid,  or  to  show 
cause  why  an  attachment  should  not  issue  against  him  for  his  default,  it 

is  ordered  that  a  writ  of  attachment  issue  to  the  sheriff  of  county, 

to  bring  the  body  of  said  A.  B.  into  this  court  forthwith,  to  abide  such 
order  as  the  court  may  make  concerning  him  in  this  behalf.ss 

§  148.    Form  of  writ  of  attachment. 

State  of  Ohio,   ....   county,  ss. 
To  the  sheriff  of  said  county,  greeting: 

Whereas,  A.  B.,  special  administrator  of  the  estate  of  C.  D..  deeea,3ed, 
was  by  the  order  of  the  Probate  Court  of  said  county  required  to  deliver 
to  E.  F.,  the  duly  appointed  executor  [or  administrator  of  the  estate]  of 
tne  last  will  and  testament  of  said  decedent,  all  the  goods,  chattels,  moneys 
and  effects  of  said  decedent  in  his  hands,  on  or  before  the  ....  day  of  .  .  .  . , 
190.  .,  or  to  show  cause  why  an  attachment  should  not  issue  against  him 
for  his  default,  and  the  said  A.  B.  having  failed  to  comply  with  the 
order  aforesaid,  you  are  therefore  commanded  to  take  the  said  A.  B.  and 
have  his  body  forthwith  before  said  court,  to  abide  such  order  as  may 
be  made  concerning  him  in  this  behalf.  Hereof  fail  not  and  bring  this 
writ  with  you. 

Witness  my  signature  and  the  seal  of  said  Probate  Court,  etc.s* 

§  149.     Entry  committing  to  jail. 

This  day  this  cause  came  on  to  be  heard  upon  the  application  for  a 
citation  filed  by  A.  B.,  administrator  of  E.  F.,  against  C.  D.,  special  ad- 
ministrator of  the  estate  of  E.  F.,  and  the  said  C.  D.  was  examined  by  the 
Court  under  oath  in  reference  to  his  neglect  and  refusal  to  deliver  to  A.  B. 
the  administrator  of  E.  F.,  property  belonging  to  said  estate  in  his  posses- 
sion. Whereupon  after  hearing  the  testimony,  the  Court  finds  that  said 
administrator   is   entitled    to    the    following:      (Here    describe    property), 

32  Whit.  Prob.  Code  235.  84  Whittaker's  Probate  Code,  235. 

83  Whittaker  Probate  Code,  §  235. 


§  150  SPECIAIi    ADMINISTRATION  122 

now  in  possession  of  said  C.  D. ;  and  that  said  C.  D.  is  detaining  the 
same  without  cause.  It  is  therefore  ordered  that  the  said  C.  D.  be 
committed  to  the  jail  of  this  county,  there  to  remain  until  he  shall  deliver 
said  property,  when  he  will  otherwise  be  legally  discharged. 

§  150.  Special  administrator  not  liable  to  creditors — limita- 
tion of  action  against  executor,  etc.  "Such  special  adminis- 
trator shall  not  be  liable  to  an  action  by  a  creditor  of  the 
deceased.  The  time  of  limitation  for  suits  against  the  estate 
shall  begin  to  run  from  the  time  of  granting  letters  testamen- 
tary or  of  administration  in  the  usual  form,  as  if  such  special 
administration  had  not  been  granted."     [R.  S.  §  6012.1^^ 

It  will  be  observed  under  the  provisions  of  the  above  section 
that  no  suit  can  be  brought  or  maintained  against  such  special 
administrator.  From  this  the  opinion  is  strengthened  that  a 
special  administrator  is  not  to  pay  any  of  the  debts  of  the  de- 
cedent, for  if  it  be  within  his  province  to  pay  the  debts,  it 
would  also  be  within  the  power  of  a  creditor  to  enforce  such 
payment  by  suit. 

35  §  10624  G.  C.  questionable  whether  he  must  give 

As  a  special  administrator  has  no       notice  of  his  appointment, 
power    to    pay    debts     it     may    be 


123  DEFINITION^  ETC.  §  151 


CHAPTER  IX. 

ADMINISTRATOR  DE  BONIS  NON. 

§151  Definition,   etc.  §  157  Proceedings  by  administrator 
§  152  When  to  be  granted.  or    executor    against    former 

§153  Must  be  some  estate  to  admia-  administrator  or  executor. 

ister.  §  158  Recovery  of  assets,  etc. 

§  154  Time    within    which    appoint-  §  159  Sales,  etc.,  of  former  executor 

ment  must  be  made.  or  administrator  valid. 

§  155  To  whom  granted  and  where.  §  160  Notice,  bond,  inventory,  etc. 
§  156  Application,  etc. 

§  151.     Definition,  etc. 

Where  the  office  of  the  ordinary  administrator  becomes  va- 
cant by  death,  resignation  or  removal,  and  the  estate  remains 
unsettled,  and  a  person  is  appointed  to  complete  the  adminis- 
tration, such  person  is  known  as  an  administrator  de  bonis  non.^ 

In  Foster  vs.  Wise  it  is  said :  "  In  legal  propriety  there  is  no 
such  office  as  administrator  de  bonis  non  under  our  statute  regu- 
lating the  settlement  of  the  estate  of  a  deceased  person.  An 
administrator  appointed  to  fill  the  place  of  a  personal  represen- 
tative who  resigns  or  has  been  removed  is  a  successor  in  the 
trust  of  his  predecessors,  and  he  is  clothed  -with  all  the  rights  of 
the  estate  he  is  appointed  to  administer,  and  is  therefore  en- 
titled to  recover  the  indebtedness  of  his  predecessors  to  the  es- 
tate or  assets  received  and  conferred  to  his  own  use,  as  well  as 
such  as  remains  in  specie."  ^ 

§  152.     When  to  be  granted. 

The  statute  providing  when  such  an  administrator  shall  be 
appointed  and  who  the  appointee  shall  be  is  as  follows : 

1  12  Am.  &  Eng.  Ency.  of  Law  If  an  executor  dies  or  resigns  it 
219.                                                                       is  the  duty  of  his  successor  to  com- 

2  46  0.  S.  25.  pel    an    accounting    of    the    trust. 

Railway  vs.  White,  80  O.  S.  413. 


§  153  ADMINISTRATOR    DE    BONIS    NON  124 

"When  a  sole  executor  or  administrator  dies  without  having 
fully  administered  the  estate,  the  court  shall  grant  letters  of 
administration,  "with  the  will  annexed,  or  otherwise,  as  the 
case  may  require,  to  some  suitable  person,  to  administer  the 
goods  and  estate  of  the  deceased  not  administered,  in  case 
there  be  personal  estate  to  be  administered  to  the  amount  of 
twenty  dollars,  or  debts  to  that  amount  due  from  the  estate." 
[R.  S!  §  6018.]  ^^ 

It  will  be  observed  that  the  above  section  only  alludes  to 
vacancies  occurring  by  death.  The  filling  of  such  vacancy 
occurring  from  other  causes  is  provided  for  in  other  sections. 
Thus  in  §  10627  G.  C.,*  provision  is  made  that  where  the  execu- 
tor or  administrator  resigns  a  successor  may  be  appointed. 
And  §  10629-30  G.  C.^  provides  '^  that  where  an  executor  or 
administrator  is  removed  a  successor  shall  be  appointed  in  like 
manner  as  if  the  administrator  or  executor  so  removed  were 
dead. 


§  153.     Must  be  some  estate  to  administer. 

The  above  section  provides  not  only  that  there  must  be  some 
estate  yet  remaining  unadministered,  but  also  further  provides 
that  there  must  be  personal  estate  to  the  amount  of  at  least 
twenty  dollars  unadministered  before  a  legal  appointment  can 
be  made.  A  full  compliance  with  these  provisions  must  be 
shown ;  and  if  the  goods  had  been  converted  by  the  ordinary  ad- 
ministrator, representative  or  creditor  they  would  have  been 
entitled  by  law  to  maintain  an  action  for  a  conversion.  But 
such  action  could  not  be  maintained  by  an  administrator  de 
bonis  non,  and  therefore  conyersion  by  the  former  administrator 
of  the  assets  of  an  estate  is  in  law  a  complete  administration  of 
the  assets  so  converted.'' 

Likewise  it  was  held  where  it  was  claimed  that  under  a  will 
the  executor  had  made  a  wrong  distribution  that  there  was  noth- 

3  §  10631  G.  C.  7  7n  re  Herckelrath.  1  Dec.  696. 

4  §  210.  See  Can-  vs.   Hull.  6.5  0.   S.  394. 

5  See  chapter  14  on  removals,  etc.  In  re  Hess,  3  X.  P.  62,  4  Dec.  413. 

6  §213. 


i 


125  ESTATE    TO    ADMINISTER  §  153 

ing  to  be  administered  on,  an  application  for  an  administrator 
de  bonis  non  was  refused.^ 

An  estate  is  not  fully  administered  upon  so  long  as  anything 
remains  to  be  done  to  vest  the  title  of  the  estate  in  the  bene- 
ficiary, whether  a  creditor,  devisee,  legatee  or  next  of  kin,  which 
no  one  but  the  administrator  can  do.  Such  would  be  paying  a 
legacy  or  distributing  the  assets,^  even  though  all  the  assets  have 
been  reduced  to  money,^*^  and  all  the  assets  distributed  if  there 
be  debts  to  pay/^ 

Likewise  one  may  be  appointed  to  defend  a  suit,  even  though 
all  the  assets  have  been  distributed  for  the  purpose  of  defending 
the  distributees/^ 

If  the  final  settlement  of  an  administrator  be  set  aside  an 
administrator  de  bonis  non  may  be  appointed/^  So  one  is  nec- 
essary where  money  is  to  be  paid  to  an  estate/*  But  such  an 
administrator  cannot  be  appointed  solely  to  make  a  conveyance 
of  real  estate  which  the  former  administrator  failed  to  make/^ 

The  owner  of  a  claim  against  an  estate,  holding  unadminis- 
tered  property,  may  properly  procure  the  appointment  of  an 
administrator  de  bonis  non  to  take  possession  of  the  property 
and  surrender  the  property  to  him/" 

An  administrator,  who  was  one  of  the  residuary  legatees,  hav- 
ing partly  administered  the  estate,  left  his  home,  and,  though 
several  years  had  elapsed,  no  trace  of  him  could  be  discovered. 
It  was  held  that  the  court  might  revoke  the  grant  made  to  him, 
and  make  a  fresh  grant  de  bonis  non  to  another  of  the  residuary 
legatees/^ 

s/n  re  Estate  of  Sophia  Hess,  3  12  Scott   vs.    Crews,    72   Mo.   261; 

N.  P.  62;  S.  C.  4  Dee.  413  Hayward  vs.  Place,  4  Dem.  487. 

9  Alexander  vs.  Stewart,  8  G.  &  J.  is  Byerly  vs.  Donlin,  72  Mo.  270. 
226;   University  vs.  Hughes,   90  N.  1*  Hinton  vs.  Bland,  81  Va.  588. 
C.  537;  Scott  vs.  Crews,  72  Mo.  261.  is  Grayson    vs.    Weddle,    63    Mo. 

10  Donaldson  vs.   Raborg,   26   Md.       523;  Long  vs.  Joplin  Mining  Co.,  68 
312;  De  Valengin  vs.  Duffy,  14  Pet.      Mo.  422. 

282.  Contra — Adams  vs.  Richardson,  5 

11  Brattle    vs.    Converse,    1    Root       Tex.  Civ.  App.  439 ;  S.  C,  27  S.  W. 
174;  Brattle  vs.  Gustin,  1  Root  425;       Rep.  29. 

Bancroft  vs.  Andrews,  6  Cush.  493;  16  Deans   vs.    Wilcoxon    (Fla.),   7 

State  vs.  Framer,  54  Mo.  439.  So.  Rep.  163. 

IT  In  re  Covell.  15  Prob.  Div.  8. 


§  154  ADMINISTRATOR  DE  BONIS  NON  126 

Under  our  statute  the  assets  oi  an  estate  are  not  regarded  as 
administered  until  they  have  been  collected  and  applied  as  re- 
quired by  law  or  the  will  of  the  testator.^® 

§  154.     Time  within  which  appointment  must  be  made. 

There  is  no  specified  time  within  which  an  appointment  of  an 
administrator  de  bonis  non  may  be  made.  It  may  be  stated 
that  as  a  general  rule,  so  long  as  there  are  assets  remaining  un- 
administered  the  appointment  may  be  made;  for  it  has  been 
held  that  an  executor's  or  administrator's  office  does  not  end 
until  all  the  outstanding  assets  are  administered,  and  thus  new 
assets  were  administered  over  twenty  years  after  distribution.^' 

The  statute  limiting  the  granting  of  letters  to  within  twenty 
years  after  the  death  of  the  decedent  is  limited  in  its  language 
to  the  granting  of  original  letters  of  administration. ^° 

A  distinguished  author  says :  "  The  administration  de  bonis 
non  may  be  granted  after  any  length  of  time,  but  lapse  of  time 
and  other  circumstances  may  raise  a  presumption  that  all  debts 
against  an  estate  are  barred  or  paid,  and  that  the  remaining 
assets  belong  to  the  heirs,  in  which  case  the  administration  can- 
not be  reopened  by  the  appointment  of  an  administrator  de  bonis 
non.  If  nothing  remains  to  be  done  to  complete  administration 
the  grant  of  letters  de  boi^is  non  is  merely  nugatory.^^ 

Of  course  there  never  can  be  any  valid  appointment  of  an  ad- 
ministrator de  bonis  non  so  long  as  there  does  not  exist  a  va- 
cancy ;  in  other  words,  until  the  general  administrator  or  ex- 
ecutor has  been  removed  either  by  resignation,  order  of  court, 
or  death. 

But  the  court  need  not  wait  until  the  fonner  administrator 
has  filed  an  account,  for  jurisdiction  over  such  former  adminis- 
trator is  retained  until  the  account  is  passed  upon.^^ 

JSSlagle   vs.   Entrekin,    44   O.    S.  "Taylor  vs.  Thorn,  29  O.  S.  569; 

6,39.      Citing;     Tracy,   vs.    Card,    2  Lafferty  vs.  Shinn,  38  O.  S.  46. 
Ohio    St.    431;     Curtis    vs.    Lynch,  20  §  10626  G.  C;    §64. 

Admr.,  19  Ohio  St.  392;  Douglas  vs.  21  Woerner  on  Admin.  395. 

Day,   28   Ohio   St.    175;    Casoni   vs.  22  Slagle    vs.    Entrekin,    44    0.    S. 

Jerome,    58    N.    Y.    315;    Balch   vs.  C39. 
Hooper,  32  Minn.   158. 


127  TO   WHOM   GRANTED  §  155 

§  155.     To  whom  granted  and  where. 

Of  course  only  the  court  granting  the  original  letters  can  ap- 
point an  administrator  de  bonis  non.  For  the  court  once  hav- 
ing jurisdiction  of  the  matter  will  retain  it  to  the  exclusion  of 
every  other  court  until  the  matter  is  fully  adjudicated.  This 
is  a  general  principle  of  law,  and  I  have  no  doubt  will  be  fol- 
lowed in  the  law  of  administration.  The  statute  does  not  give 
to  any  particular  person  the  right  to  be  appointed  administrator 
de  bonis  non  if  cause  for  the  same  should  exist,  but  leaves  the 
same  to  the  discretion  of  the  court  when  it  says  that  letters  may 
be  granted  to  a  suitable  person.  While  the  court  in  the  exer- 
cise of  its  discretion  may  appoint  any  one  it  deems  suitable,  yet 
it  would  be  well,  following  the  general  theory  of  to  whom  ad- 
ministration should  be  granted,  that  the  order  provided  for  in 
the  appointment  of  a  general  administrator  should  be  fol- 
lowed.^* 

§  156.    Application,  etc. 

The  essentials  laid  down  in  the  application  for  a  general  ad- 
ministrator should  be  followed  ^*  in  the  making  of  an  appli- 
cation for  an  administrator  de  bonis  non,  except  that  the  allega- 
tion of  death  may  be  omitted.  It  must  be  particular  in  setting 
out  the  fact  and  making  the  showing  to  the  court  that  assets  re- 
main unadministered  in  an  amount  of  not  less  than  twenty 
dollars.  It  also  ought  to  contain  the  further  allegation  showing 
that  the  former  administrator  is  dead,  has  resigned  or  been  re- 
moved, and  should  include  the  date  of  such  removal.  While 
the  records  of  the  court  may  show  this  fact,  yet  as  this  is  sub- 
stantially a  new  proceeding  and  this  being  a  jurisdictional  fact, 
it  should  be  alleged  in  the  application.  With  these  few  altera- 
tions the  form  of  application  given  in  the  chapter  on  letters  of 
administration  may  be  used.  Likewise  the  forms  given  in  that 
chapter  may  be  readily  changed  for  use  in  the  appointment  of 
an   administrator  de   bonis  non.     The  entry  granting  letters 

23  See  §  117,  Order  of  Priority.  under  the  statute   had  the  right  to 

24  §  112,    Letters    of    Adniinistra-       be    appointed.      The    executrix    of   a 
tion-  deceased  administrator  has  no  right 

Error     will     not     lie     unless     the       to     prosecute    error.       Gastrier    vs. 
record  shows  that  the  court  denied       Meyer,  27  Dec.  198,  19  N.  P.  353. 
the   appointment   to    some   one   that 


§  157  ADMINISTRATOR    DE    BONIS    NON  128 

ought  to  show  the  jurisdictional  fact  that  the  former  adminis- 
trator has  been  removed. 

§  157.  Proceedings  by  administrator  or  executor  against 
former  administrator  or  executor.  "An  administrator  or  ex- 
ecutor appointed  in  the  place  of  an  executor  or  administrator 
who  has  resigned,  been  removed,  or  whose  letters  have  been 
revoked,  or  authority  extinguished,  shall  be  entitled  to  the 
possession  of  all  the  personal  effects  and  assets  of  the  estate 
unadministered,  and  may  maintain  a  suit  against  the  former 
executor  or  administrator  and  his  sureties  on  administration 
bond,  for  them  and  for  all  damages  arising  from  the  mal- 
administration or  omissions  of  the  former  executor  or  admin- 
istrator."    [R.  S.  §  6020.] -5 

§  158.     Recovery  of  assets,   etc. 

When  the  administrator  de  bonis  non  is  qualified  he  is  en- 
titled to  all  the  assets  belonging  to  the  deceased,  whether  the 
same  had  been  converted  by  a  general  administrator  or  still  re- 
main in  specie.  If  they  have  not  been  converted  by  the  gen- 
eral administrator  the  title  at  once  vests  in  the  administrator 
de  bonis  non,  and  he  may  recover  the  same  from  any  person  who 
owes  or  wrongfully  detains  the  same  in  the  same  manner  that 
a  general  administrator  could."®  If,  however,  the  general  ad- 
ministrator has  converted  them,  that  is,  has  changed  them  into 
money,  then  if  the  same  are  not  turned  over  to  the  administrator 
de  bonis  non  he  must  sue  as  provided  in  the  above  section,  that 
is,  upon  the  bond,  for  without  this  statutory  provision  ^^  an  ad- 
ministrator de  bonis  non  could  not  sue  the  general  administra- 
tor ;  and  the  only  provision  given  by  statute  is  that  upon  the 
bond,  and  therefore  that  course  must  be  followed. 

In  Slagle  vs.  Entrekin  it  is  said  ''that  under  §  10634  G.  C. 
an  administrator  or  executor  appointed  to  fill  the  place  of 
one  who  has  resigned  or  been  removed,  etc.,  is  entitled  to  re- 
ceive from  the  latter  his  indebtedness  to  the  estate  on  account 
of  assets  received  and  converted  to  his  own  use ;  the  language 

25  §  10634  G.  C.  27  Wilson  vs.  Pelton,  40  0.  S.  308. 

At  common  law  no  suit  could  be  The    object   of    this    section    is    to 

maintained.     Blizzard  vs.  Filler,  20  transfer    the    whole    of    the    estate 

O.  479.  to   the   administrator  de   bonis   non. 

26Jelke   vs.    Goldsmith,    52    0.    S.  Tracy  vs.   Card,   2   0.   S.    432. 
499. 


129  RECOVERY    OF   ASSETS  §  158 

'  personal  effects  and  assets  of  the  estate^  unadministered/  as 
used  in  this  section,  includes  such  indebtedness  as  well  as  such 
*  effects  '  and  '  assets  '  as  remain  in  specie,  and  he  may  maintain 
a  suit  against  such  former  administrator  or  executor,  and  his 
sureties  on  his  administration  bond  and  recover  the  same."  ^* 

The  usual  way  will  be  to  have  a  former  administrator  file 
an  account  and  thus  have  the  court  to  determine  the  amount  that 
is  owing  from  that  source  before  an  action  is  brought.  But 
this  is  not  necessary.^* 

Likewise  no  notice  of  the  appointment  is  necessary  to  be 
given  before  suit  is  brought.  All  the  parties  are  bound  to  take 
notice.^** 

Assets  received  and  not  accounted  for  by  a  removed  adminis- 
trator gives  a  recovery  on  his  bond  for  their  value.^"* 

Leave  of  court  to  sue  on  an  executor's  bond  need  not  be  ob- 
tained.^^ 

If  the  estate  is  not  finally  settled  and  the  administrator  has 
gone  away  suit  can  be  brought.^" 

And  his  sureties  may  be  sued  alone  without  following  the 
principal  debtor  into  another  jurisdiction.^^ 

And  judgment  against  the  former  administrator  for  assets 
not  accounted  for  is  evidence  against  his  sureties,  and  can  only 
be  impeached  by  them  for  fraud  or  mistake.^* 

No  liquidation  of  the  amount  is  necessary  before  suit,^''  nor  is 
it  necessary  to  have  the  claim  reduced  to  judgment^*     Where 

28  44  O.  S.  639;  Foster  vs.  Wise,  Gandolfo  vs.  Walker,  15  0.  S.  251, 
46  O.  S.  25;  Hodge  vs.  Hodge,  90  278;  Slagle  vs.  Entrekin,  44  0.  S. 
Me.  505;  40  L.  R.  A.  33.  637. 

29  Douglas  vs.  Day,  28  0.  S.  175;  See  Faran  vs.  Robinson,  17  O.  S. 
Montgomery  vs.  Goepper,  4  Bull.  67.  242. 

30  Treasurer  vs.  McElvain,  5  O.  For  discussion  of  suit  on  bond, 
200.  see  Kinkead's  Pleading  323;  and  for 

30*  O'Connor  vs.  State,   18  O.  225.  for™   of    petition,   see   Whitt.    Code 

See   Woerner   on   Admin.   751   for  Forms,   136. 

general  discussion  of  this  matter.  See  §  278,  Suit  by  succeeding  ad- 

31  Gutridge  vs.  Vanatta,  27  O.  S.  min'strator. 

"iRS    369  •  ^^  Douglass  vs.  Day,  28  O.  S.  175; 

32  Luce  vs.  Treasurer,  W.  654.  Montgomery  vs.  Goepfer,  4  B.  67. 

36  Treasurer   vs.   McElvain,   5,   6, 


33  Luce  vs.  Treasurer,  W.  654. 

34  O'Connor  vs.  State,  18  0.  225; 


200. 


§  159  ADMINISTRATOR    DE    BONIS    NON.  130 

no  assets  come  into  the  possession  of  the  previous  adminis- 
trator no  action  can  be  maintained.'*^ 

§  159.     Sales,  etc.,  of  former  executor  or  administrator  valid. 

"When  letters  of  administration  are  revoked,  or  an  executor 
or  administrator,  or  administrator  with  the  will  annexed,  is 
removed  or  resigns,  or  a  will  is  declared  invalid,  all  previous 
sales,  whether  of  real  or  personal  property,  made  lawfully 
and  in  good  faith  by  the  executor  or  administrator,  or  admin- 
istrator with  the  will  annexed,  and  with  good  faith  of  the 
purchasers,  and  all  lawful  acts  done  in  the  settlement  of  the 
estate  or  execution  of  the  will,  shall  be  valid  as  to  such 
executor  or  administrator,  or  administrator  with  the  will  an- 
nexed. But  the  sums  paid  out  or  distributed  to  legatees  or 
other  distributees,  when  necessary  for  the  proper  execution 
of  a  will  or  administration  of  an  estate,  may  be  recovered 
from  the  persons  receiving  them."     [R.  S.  §  6021.]^^ 

The  provisions  of  this  section  placed  in  statutory  form  that 
which  is  recognized  as  a  general  rule  of  law,  and  it  would 
therefore  follow  that  whatever  acts  the  general  administrator 
did  in  the  execution  of  his  trust,  which  were  within  his  author- 
ity, would  not  only  bind  the  administrator  de  bonis  non,  but 
also  give  to  an  administrator  de  bonis  non  the  right  to  enforce 
such  contracts  for  the  benefit  of  the  estate.^** 

It  would  also  follow  from  this  rule  that  if  the  general  admin- 
istrator has  performed  an  illegal  act,  going  beyond  the  bounds 
of  his  legal  duty,  such  act  would  not  be  binding  upon  the  admin- 
istrator de  bonis  non.  Hence  it  has  been  held  that  an  adminis- 
trator de  bonis  non  may  proceed  against  his  predecessor  as  well 
as  purchasers  from  him  to  annul  a  fraudulent  sale  of  the  prop- 
erty of  the  estate.""  And  he  is  not  liable  for  a  warranty  of  the 
preceding  administrator,  because  an  administrator  cannot  bind 
the  estate  by  a  contract  of  warranty.  If  a  claim  against  the 
estate  is  presented  to  a  former  administrator  it  need  not  again 
be  presented  to  the  administrator  de  bonis  non.'^'^ 

37  Jones   vs.   Willis,  47   Bull.   342.  Where   a  will   is  discovered  after 

38  §  10G35  G.  C.  a  full  settlement  of  the  estate,  there 

39  Woerner  on  Admin.  752.  can    be    no    interference    with    the 
4oJclke   vs.    Goldsmith,    52    0.    S.  former      settlement.      Barkaloo     vs. 

499.  Emerick,  18  0.  268. 

41  Thomas  vs.  Chamberlain,  30   0. 
S.    112. 


131  NOTICE  BOND  INVENTORY  §  160 

But  the  allowance  of  such  claim  would  not  be  conclusive  as 
to  its  validity,  for  it  might  afterwards  be  disputed  and  con- 
tested by  an  administrator.*^ 

§  160.     Notice,  bond,  inventory,  etc. 

It  is  the  duty  of  an  administrator  de  bonis  non  to  give  a 
notice  of  his  appointment,  the  same  as  a  general  adminis- 
trator.*^ 

The  statute  makes  no  specific  provisions  as  to  the  giving  of 
a  bond  by  an  administrator  de  bonis'  non.  But  there  is  no  doubt 
but  what  he  is  required  to  give  it  the  same  as  a  general  admin- 
istrator. An  inventory  shall  not  be  required  unless  in  the 
opinion  of  the  court  this  is  necessary,**  It  seems  to  me  this 
matter  may  well  be  left  in  tlie  discretion  of  the  Court,  If  the 
only  assets  that  remain  unadministered  have  been  converted  by 
a  former  administrator,  there  can  be  no  practical  use  for  going 
through  the  forms  of  filing  an  inventory.  Especially  is  this 
true  where  the  former  administrator  has  filed  an  account  in 
the  court,  for  such  an  account  will  then  show  all  the  assets  with 
which  the  administrator  de  bonis  non  may  be  chargeable.  But  if 
for  some  reason,  such  as  a  former  administrator  going  beyond 
the  jurisdiction  of  the  court,  so  that  the  court  could  not  compel 
the  filing  of  an  account,  or  if  there  existed  assets  unadmin- 
istered in  specie,  then  it  would  be  advisable  to  have  an  inventory 
made  and  filed  in  the  court.  This  should  be  done  for  the  pro- 
tection of  an  administrator  de  boiis  non  as  well  as  for  those 
who  may  be  interested  in  such  a  trust. 

An  administrator  of  a  deceased  or  insane  administrator  must 
file  an  account  within  six  months  from  his  appointment.*^ 

42  Id.  121.  Barkloo  vs.  Emerick,  18  Ohio  268. 

Where  an  estate  has  been  fully  ^3  §  10757  G.  C. 
settled,  and  all  the  money  in  the  Cited  Croxton-Murray  Co.  vs  Hub- 
hands  of  the  administrator  have  bard,  28  C.  C.  354. 
been  paid  over  in  pursuance  of  an  The  fact  that  the  statute  now 
order  of  court,  should  a  will  be  dis-  puts  that  duty  on  the  Probate  Judge 
covered  and  proved  subsequent  to  does  not  create  a  new  or  different 
such    settlement,    the    executor    can  rule. 

not  compel  the  former  administrator  **  §§  11637-38  G.  C.     See  §  281. 

to  account  for  the  money  or  property  45  §  11822  G.   C.     See   §  707,  230. 

by    him    received    and    paid    over. 


§  161  ADM^E   DE   BONIS   NON  WILL^   ETC.  132 


CHAPTER  X. 

ADMINISTRATOE  DE  BONIS  NON  WITH  THE 
WILL  ANNEXED. 

§  161     Definition,  etc.  §  163    If,      after     administration 

§  162     Appointment,  etc.  granted,  as  of  an  intestate, 

1 162a  Power  to  appoint  stranger  to  a  will  be  proved,  the  same 

serve  with  executor.  shall  be  revoked,  unless,  etc. 

§  164     Power  of  executor  or  admin- 
istrator in  such  cases. 

§  161.     Definition,  etc. 

Where  the  authority  of  a  sole  or  surviving  executor  or  ad- 
ministrator with  the  will  annexed  is  extinguished  before  the 
estate  is  completely  administered,  the  person  appointed  by  the 
court  to  finish  the  administration  of  such  an  estate  is  known  as 
an  administrator  de  bonis  non  with  the  will  annexed.  He  occu- 
pies a  position  different  from  that  of  any  other  person  whose 
duty  it  is  to  administer  an  estate.  In  his  relation  to  the  estate 
of  the  deceased  he  occupies  the  same  position  as  an  administra- 
tor with  the  will  annexed.  That  is,  he  must  administer  the 
estate  according  to  the  will  of  the  deceased.  In  his  relation  to 
the  previous  executor  or  administrator  he  occupies  the  same 
position  as  an  administrator  de  bonis  non.  By  the  common 
law  an  executor  of  an  executor  having  had  the  right  to  ad- 
minister the  estate  over  which  the  deceased  executor  was  execu- 
tor, the  position  of  an  administrator  de  bonis  non  with  the  will 
annexed  as  such  was  not  often  met  with.  But  that  rule  of  the 
common  law  having  been  abolished  by  statute,^  it  makes  a  not  in- 
frequent kind  of  administration. 

§  162.     Appointment,  etc. 

The  same  rule  as  was  heretofore  laid  down  in  the  appoint- 
ment of  an  administrator  de  honis  ncn  and  an  administrator 

1  §  10615  G.  C:    §94. 


133  APPOINTMENT^  ETC.  §  162a 

with  the  will  annexed  applies  to  an  administrator  de  bonis  non 
with  the  will  annexed.  Likewise  the  duties  and  general  powers 
of  such  an  officer  will  be  similar  to  either  that  of  an  administra- 
tor with  the  will  annexed  or  an  administrator  de  bonis  non.  As 
to  who  should  he  appointed,  the  same  section  that  provides  for  an 
administrator  de  bonis  non  also  applies  for  an  administrator  de 
bonis  non  with  the  will  annexed.' 

He  must  give  bond,  must  account  and  generally  perform  the 
duties  mentioned  in  the  preceding  chapters.  The  forms  pro- 
vided there  can  with  little  alteration  be  adopted  for  an  appoint- 
ment of  an  administrator  de  bonis  non  with  the  will  annexed. 
Care  should  be  taken  in  the  filing  of  the  application  to  see  that 
it  contains  an  allegation  that  the  previous  executor  or  adminis- 
trator has  resigned  or  been  removed.  Likewise  it  should  show 
that  assets  remain  unadministered  to  the  value  of  twenty  dol- 
lars, and  the  entry  making  the  appointment  should  also  con- 
tain these  jurisdictional  facts. 

§  162a.    Power  to  appoint  stranger  to  serve  with  executor. 

If  several  persons  are  named  in  a  will  and  one  refuses  to  qualify, 
can  someone  else  be  appointed  in  the  place  of  the  one  refusing 
to  serve?  I  am  satisfied  this  can  not  be  done  if  the  remaining 
executors  do  not  give  their  assent,  and  there  is  much  doubt  if  it 
can  be  done  with  their  consent.  If  one  executor  resigns  or 
refuses  to  qualify  the  others  have  the  right  to  administer  the 
estate,  and  so  long  as  the  remaining  executors  are  competent 
and  qualify  it  is  not  in  the  power  of  the  court  to  appoint  one  not 
named  in  the  will.  It  is  directly  so  held  in  Terry's  appeal,  67 
Conn.  181.  It  is  nowhere  expressly  so  provided,  but  the  language 
of  section  10615,  G.  C.  (§  94),  and  other  provisions  lead  to  the 
same  conclusion ;  where  it  is  desirable  that  all  concerned  should 
act  with  the  remaining  executors,  all  had  better  resign  or 
decine  to  accept,  and  then  let  the  court  appoint  all  as  administra- 
tors de  bonis  non  wi'th  the  will  annexed. 

§  163.  If,  after  administration  granted,  as  of  an  intestate,  a 
will  be  proved,  the  same  shall  be  revoked,  unless,  etc.  ' '  After 
granting  letters  of  administration  as  of  an  intestate  estate,  if  a 
will  of  the  deceased  be  duly  proved  and  allowed,  the  first 
administration  shall  be  revoked,  unless  before  such  revocation 
a  petition  contesting  the  probate  of  such  will,  be  filed  in  the 
court  of  common  pleas ;  in  which  case,  in  the  discretion  of  the 
probate  court,  the  administration  may  be  continued  in  the 
hands  of  the  original  administrator,  until  the  final  determina- 
tion of  such  contest.     If  the  "w^ill  is  sustained,  the  first  admin- 

2  §  10631  G.  C;   §  152. 


§  164  ADM  'r   DE   bonis   NON  —  WILL  134 

istration  must  be  revoked.  In  either  ease,  upon  the  revocation 
of  the  first  administration  and  the  appointment  of  an  executor 
or  administrator  with  the  will  annexed,  he  shall  be  admitted 
to  prosecute  or  defend  any  suit,  proceeding,  or  matter  begun 
by  or  against  the  original  administrator,  in  like  manner  as  an 
administrator  de  bonis  non  is  authorized  to  prosecute  or  de- 
fend a  suit  commenced  by  a  former  executor  or  administra- 
tor."    [R.  S.  §6019.]  ^* 

§  164.    Power  of  executor  or  administrator  in  such  cases. 

Under  the  above  section  where  the  power  of  an  administrator 
has  been  extinguished  by  the  establishment  of  a  will,  then  an 
executor  is  appointed  under  the  will.  Such  former  adminis- 
trator would  be  required  to  settle  his  accounts  the  same  as  if 
removed  or  resigned,  and  the  original  executor  would  in  some 
respects  occupy  the  position  of  an  administrator  de  bonis  non 
with  the  will  annexed.  So  far  as  his  relation  to  the  previous 
administrator  would  exist,  they  would  be  similar  to  an  adminis- 
trator de  bonis  non.  If  the  case  is  appealed,  the  Court  may  in 
its  discretion  continue  the  administration  in  the  hands  of  the 
first  administrator  until  the  final  proceedings  of  the  contest  have 
been  accomplished.  This  section  particularly  confers  upon  the 
new  executor  or  administrator  with  the  \vill  annexed,  power  to 
prosecuto  and  defend  any  suit,  proceeding,  or  matter  commenced 
by  or  against  the  original  administrator.  Distinction  between 
the  administrator  originally  appointed  under  the  above  section, 
and  that  of  a  special  administrator,  is  that  he  was  regularly  ap- 
pointed for  the  purpose  of  accomplishing  the  full  administra- 
tion of  the  estate,  and  not  for  a  special  purpose,  but  whose  ad- 
ministration was  terminated  by  the  fact  that  a  valid  will  of 
the  testator  was  established  in  court.^ 


2*  §  10632  G.  C.  If  an  executor  dies   or  resigns   it 

3  If  the  will  is  ebntested  a  verdict  is  the  duty  of  his  successor  to  com- 

rendercd  setting  aside  the  will,  and  l>i'l     an     accounting    of     the     trust. 

proceedings  in  error  commenced,  tlie  Railway  vs.  White,  87  0.  S.  413. 

court  will  not  appoint  a  receiver. 


135 


DEFINITION^  ETC. 


§165 


CHAPTER  XL 

ANCILLARY  ADMINISTRATION. 


165  Definition,  etc.  §  174 

166  Not    favored    ana    limited    to 

necessity  of  appointment.  §  175 

167  Difference     between    ancillary 

and  principal  administration.       §  176 

168  When    appointment    may    be       §  177 

generally  made.  §  178 

169  Powers    of    executor    and    ad- 

ministrator under  will  made       §  179 
out  of  this  State. 

170  Administration    and    proceed-        §  180 

ing  when  decedent  was  not  a       §  181 
resident  of  the  State,  but  en-       §  182 
gaged     in    business    therein, 
etc.  §  183 

171  Where   appointment    shall   be       §  184 

made. 

172  To   whom   and   in   what   time       §  185 

granted. 

173  Application,  etc. 


for     administra- 


Application 
tion. 

Form  of  application  for  ad 
ministration  under  section. 

Notice  —  proof,  etc.,  required. 

Entry,  etc. 

Form  of  entry  ordering  ad- 
ministration. 

Form  of  application  for  let- 
ters of  administration. 

Form  of  administrator's  bond. 

Form  of  entry. 

Form  of  administrator's  let- 
ters. 

Powers,  duties,  etc. 

Payment  of  debts  and  dis- 
tribution. 

Several  administration  for  one 
estate,  situate  in  different 
States.i 


§  165.     Definition,  etc. 

The  words  "  ancillary  administration  "  have  been  thus  de>- 
fined :  "  A  local  and  subordinate  administration  of  such  part 
of  the  assets  of  a  decedent  as  are  found  within  a  State  other 
than  that  of  his  domicile,  and  which  the  law  of  the  State 
where  thej  are  found  requires  to  be  collected  under  its  authority 
in  order  that  they  may  be  applied  first  to  satisfy  the  claims  of 
its  own  citizens,  instead  of  requiring  the  latter  to  resort  to  the 
jurisdiction  of  principal  administration  to  obtain  payment;  the 
surplus,  after  satisfying  such  claims,  to  be  remitted  ta  thb  place 
of  principal  administration."  ^ 


1  See  §  749.  Ancillary  account- 
ing. 

2  Century  Dictionary. 

There  may  be  instances  where  the 
tax  commission  might  proceed  to 
have  an  ancillary  administration 
to  collect  the  inheritance  tax,  al- 
though this  can  generally  be  done, 
by    application    to    have    the    value 


fixed  by  the  Probate  Court.  Where 
it  appears  in  the  order  of  the  court 
appointing  an  administrator  that 
the  deceased  was  a  resident  of  an- 
other state,  the  administration  in 
Ohio  must  be  ancillary  to  that  of 
the  other  state  of  which  he  was  a 
resident.  Miswald  vs.  Marks,  19  C. 
C.  605,  10  C.  D.  355. 


§  166  ANCILLARY    ADMINISTRATION  136 

This  definition  is  an  excellent  one  and  emphasizes  the  fact 
that  ancillary  administration  is  a  secondary  or  subordinate  one. 
The  statutory  provisions  consequently  providing  for  the  grant- 
ing of  ancillary  letters  testamentary  or  of  administration  with 
the  veil!  annexed  or  of  administration  upon  a  foreign  grant  of 
administration,  are  conditioned,  first,  by  a  regard  for  the  rights 
of  creditors  resident  in  the  State  and  their  protection,  and  sec- 
ond, by  principles  of  comity  under  which  the  Ohio  law  recog- 
nizes the  status  of  a  foreign  executor  or  administrator  in  his 
own  State  or  country,  whose  right  to  distribute  the  estate  after 
the  payment  of  debts  and  administration  expenses  in  this  State 
is  safeguarded.^ 

§  166.     Not  favored  and  limited  to  necessity  of  appointment. 

It  was  a  well-settled  rule  of  common  law,  that  executors  and 
administrators  could  not  sue  or  be  sued  except  in  the  country 
from  which  they  derived  their  appointment.  Therefore  if  a 
creditor  wished  to  bring  suit,  to  reach  the  estate  he  must  first 
have  a  representative  appointed  by  the  local  court.  But  our 
statute,  having  piovided  that  executors  and  administrators  may 
both  sue  and  be  sued  if  within  the  jurisdiction  of  our  State  in 
the  same  manner  as  local  administrators  or  executors ;  the  neces- 
sity for  an  ancillary  administration  does  not  exist  to  the  same 
extent  that  it  formerly  did.  It  is  the  general  policy  of  the  law 
to  have  the  administration  of  tlie  estate  as  simple  as  possible. 
Therefore  ancillary  administration  is  not  favorexi,  and  such  an 
administrator  will  only  be  appointed  when  it  is  actually  neces- 
sary to  protect  the  interest  of  a  resident  of  this  State.  And 
that  no  ancillary  administrator  will  be  appointed  until  all  reme- 
dies against  the  foreign  administrator  have  been  exhausted ;  and 
that  if  the  resident  creditor  has  had  ample  opportunity  to  pres- 
ent his  claim  to  the  foreign  administrator,  and  if  rejected  to 
have  brought  suit  against  him  within  the  jurisdiction  of  the 
court  in  which  an  ancillary  administration  is  asked  for,  and  has 

3  Jessup's  Sur.  Prac.  650.  See  §   1318.  Ancillary  guardians; 

See   interesting   art    in    21    Cent.       §  749,  Ancillary  accounting. 
Law  J.  186. 


i 


137  DIFFERENCE^  ETC.  §  167 

failed  to  so  act,  the  court  might  refuse  to  make  such  an  ap- 
pointment.* 

The  administration  of  an  ancillary  administrator  is  limited 
to  the  purpose  for  which  appointment  has  been  made ;  and  if  he 
goes  beyond  his  powers  he  will  be  responsible  even  if  done  by  the 
sanction  of  the  court.^ 

§  167.     Difference  between  ancillary  and  principal  administration. 

The  difference  between  an  ancillary  and  principal  adminis- 
tration is  material  and  important  when  there  are  several  admin- 
istrations. When  the  deceased  dies  in  another  State  or  country, 
custody,  management  and  distribution  is  proper  in  that  State, 
and  are  exclusively  under  the  control  of  the  administrator  there 
appointed.® 

The  administration  granted  in  the  country  of  the  decedent's 
residence  is  principal  administration,  the  other  is  ancillary. 
The  ancillary  administrator  is  auxiliary  to  the  original  foreign 
administrator,  and  subordinate  to  him  so  far  as  the  collection 
of  the  assets  and  proper  distribution  of  them,  and  is  confined  to 
the  collection  of  the  assets  and  the  payment  of  the  debts  due 
the  citizens  of  the  State,  leaving  any  balances  that  may  remain 
to  be  remitted  to  the  State  of  the  decedent's  domicile,  and  there 
be  disposed  of  in  accordance  with  the  laws  of  such  State.^ 

It  is  the  object  of  the  ancillai-y  administrator  to  administer 
the  assets  found  within  the  State  and  remit  the  proceeds  to  the 
parent  administration.  But  if  there  are  many  creditors,  the 
courts  having  control  of  such  ancillary  administration  will  not 
allow  the  estate  to  be  remitted  to  the  foreign  State  until  such 
creditors  are  first  paid.  If  the  general  estate  is  solvent  they 
are  paid  in  full,  but  if  not,  they  are  paid  'pro  rata,  taking  all 
the  estate  and  all  liabilities  in  account  to  ascertain  such  pro 
rata  payments.* 

*ln  re  McCreight,  6  N.  P.  481.  7  Swearingen  vs.  Morris,   14  O.  S. 

B  Swearingen  vs.  Morris,  14  O.  S.  430. 
428.  8  Williams   vs.   Welton,   28    0.   S. 

8  Wms.  on  Ex.  291;  3  Redf.  on  451. 
Wills  28. 


§  168  ANCILLARY    ADMINISTRATION  138 

So  far  as  it  may  be  necessary  to  protect  the  resident  creditor, 
the  assets  belonging  to  the  decedent  in  this  State  must  be  con- 
verted into  money  and  such  debts  paid ;  and  if  it  be  necessary 
such  an  administrator  might  file  a  petition  to  sell  real  estate  of 
a  decedent  in  this  State. 

§  168,    When  appointment  may  be  generally  made. 

There  seem  to  be  three  statutes,  to-wit,  §  10604,^  §  10625  ^o 
and  §  10540/^  which  provide  for  the  appointment  of  what  may 
be  termed  an  ancillary  administrator.  Under  §  10604,  G.  C, 
which  is  the  section  which  provides  for  the  appointment  of  an 
original  executor  or  administrator,  it  also  provides  "that  when 
any  person  shall  die  intestate  in  any  other  State  or  country, 
leaving  an  estate  to  be  administered  within  this  State,  the 
administration  thereon  shall  be  granted  by  the  Probate  Court 
in  any  county  in  the  State  in  which  there  is  any  estate  to  be 
administered ;  and  the  administration  which  shall  first  be 
lawfully  granted  shall  extend  to  all  the  estate  of  the  deceased 
within  the  State  and  shall  exclude  the  jurisdiction  of  the 
Probate  Court  of  every  other  county." 

The  above  part  of  §  10604  provides  for  the  appointment 
where  a  non-resident  should  die  intestate.  If  the  non-resident 
should  die  testate  the  appointment  would  be  made  under  the 
following  section. 

§  169.  Powers  of  executor  or  administrator  under  will  made 
out  of  this  State.  "After  allowing  and  admitting  to  record  a 
will,  pursuant  to  either  of  the  next  four  preceding  sections,  the 
court  may  grant  letters  testamentary  thereon,  or  letters  of  ad- 
ministration with  the  will  annexed,  and  must  proceed  in  the 
settlement  of  the  estate  found  in  this  state.  The  executor  tak- 
ing out  letters,  or  the  administrator  with  the  will  annexed,  shall 
have  the  same  power  to  sell  and  convey  the  real  or  personal 
estate,  by  virtue  of  the  will  or  the  law.  as  other  executors  or 
administrators  with  the  will  annexed."     [R.  S.  §5941.] ^2 

«  §  72.  11   $   169. 

10  §   170.  12  §   10540  G.  C. 


139  WHEN   NON-RESIDENT  §  170 

It  would  seem  that  the  provisions  of  sections  10604  and  10540 
G.  C,  were  broad  enough  to  enable  the  court  to  appoint  an 
ancillary  administrator  in  every  case  where  one  was  needed. 
But  for  some  reason,  which  has  never  been  very  clear,  the  fol- 
lowing was  also  enacted  into  our  statute  law. 

§  170.  Administration  and  proceeding  when  decedent  was 
not  a  resident  of  the  State  but  engaged  in  business  therein,  etc. 

"When  a  person  dies,  whether  testate  or  intestate,  not  being  at 
the  time  of  death  a  resident  of  this  state,  but  having  been  en- 
gaged in  business  herein,  as  partner  or  otherwise,  and  leaving 
in  this  state  property  belonging  in  whole  or  in  part  to  his  estate, 
the  probate  court  of  the  county  in  which  such  business  was 
prosecuted,  or  of  an.y  county  in  which  the  property  is  situated, 
or  where  a  debtor  of  such  decedent  resides,  upon  the  applica- 
tion of  a  creditor  of  his,  whose  claim  is  founded  on  a  contract 
made  or  a  right  of  action  which  accrued  in  this  state,  shall  grant 
to  such  creditor  or  other  person,  administration  of  all  and  singu- 
lar the  assets  of  such  decedent  in  this  state.  The  proceeds  of 
such  assets  shall  be  applied  to  the  payment  of  the  debts  proved 
against  such  estate  before  the  administrator.  The  surplus,  if 
any,  must  be  paid  into  the  court  granting  administration  for 
the  benefit  of  the  estate  of  the  decedent,  in  the  state  where  he 
resided  at  the  time  of  his  death."     [R.  S.  §  6013.] ^^ 

§  171.     Where  appointment  shall  be  made. 

By  the  general  provisions  mentioned  in  §  10604  G.  C,  the 
Court  may  grant  an  administration  in  any  county  in  which  there 
are  assets  to  be  administered.  This  right  seems  to  be  enlarged 
under  §  10625  G.  C,  so  that  the  application  may  be  made  either 
in  the  county  in  which  his  business  has  been  prosecuted  or  the 
county  in  which  the  property  is  situated,  or  in  the  county 
where  the  debtor  may  reside.  It  will  be  observed  further  that 
a  considerable  number  of  conditions  must  exist  in  order  to  enable 
the  application  to  be  made  under  §  10625  G.  C.  that  are  not 

13  §  10625   G.   C. 


§  172  ANCILLARY    ADMINISTRATION  140 

required  if  made  under  §  10604.  The  only  thing  that  is  required 
ander  §  10604  is  that  there  is  an  estate  in  the  county,  and  that 
the  party  has  died  intestate  in  another  country.  While  under 
§  10625,  if  the  decedent,  whether  he  died  testate  or  intestate, 
was  a  non-resident  of  the  State,  and  engaged  in  business  here, 
whether  it  was  partnership  or  not,  leaving  an  estate  in  this 
State,  the  administrator  may  be  appointed.  But  it  is  further 
provided  that  the  creditor  in  making  such  an  application  must 
have  a  claim  which  is  founded  on  a  contract  made,  or  right  of 
action,  which  accrued  within  this  State  before  the  grant  could 
be  made. 

In  that  it  provides  that  an  administrator  may  be  appointed 
for  a  testate  in  the  county  other  than  that  in  which  there  are 
assets  §  10625  is  broader  than  §  10604.  But  in  requiring  that 
it  can  only  be  made  by  a  creditor  who  has  a  claim  founded  on  a 
contract  made,  or  right  of  action  accrued,  in  this  State,  §  6013 
is  narrower  than  §  10604. 

Even  if  the  person  would  have  died  testate  an  application 
might  have  been  made  under  the  general  provision,  for  if  no 
will  would  have  been  produced  the  court  might  have  made  an 
appointment.^* 

If  an  appointment  is  sought  under  a  foreign  %\-ill  as  a  matter 
of  course  the  appointment  would  be  made  in  the  county  in  which 
the  foreign  will  had  been  admitted  to  probate,  as  provided  in 
§  10540  G.  C. 

§  172.     To  whom  and  in  what  time  granted. 

There  is  no  statutory  limit  within  which  the  application  for 
an  appointment  of  an  ancillary  administrator  must  be  made.  I 
have  no  doubt  the  rule  applicable  to  the  appointment  of  admin- 
istrators and  executors  generally  would  be  applicable,  and  it  has 
been  held  that  it  might  be  granted  at  any  time,  at  least  within 
twenty  years  after  the  decedent's  death.^^ 

ISTeither  is  there  any  provision  as  to  whom  letters  should  be 

14  Bustard  vs.  Dabney,  4  0.  68.  isMcKee  vs.  Simpson.  36  Fed.  R. 

248. 


J 


141  APrLICATION,   ETC.  §  I'i^S 

granted,  except  in  §  10625  G.  C,  where  it  is  said  that  it  may  be 
granted  to  the  creditor  making  the  application,  or  some  other 
person.  I  am  inclined  to  believe  that  in  the  appointment  of 
an  ancillary  administrator  or  administration  of  a  non-resident 
deceased  person,  the  Court  may  use  its  discretion  and  appoint 
whoever  will  administer  the  estate  for  the  best  interest  of  all 
concerned.  Generally  it  might  be  said  that  this  should  be  the 
creditor,  but  unless  the  estate  is  insolvent  a  creditor's  right 
would  not  b©  superior  to  that  of  any  other  suitable  person ;  and 
there  might  exist  many  substantial  reasons  why  the  creditor 
should  not  receive  the  appointment. 

§  173.     Application,  etc. 

If  the  application  be  made  under  §  10G04  G.  C,  the  allega- 
tions required  will  be  that  the  decedent  died  intestate,  residing 
in  a  State  other  than  our  own,  and  that  there  is  an  estate  to  be 
administered  in  the  county  in  which  the  application  is  made. 
In  addition  there  must  be  shown  that  there  is  some  reason  for 
the  administration.  The  mere  fact  that  the  non-resident  dies 
intestate,  owning  property  in  this  State,  will  not  alone  warrant 
an  appointment.  But  if  it  is  shown  that  there  is  personal 
property  in  this  State,  or  outstanding  debts,  or  credits  of  the 
decedent,  it  would  be  proper  to  make  an  appointment.  But  if 
there  was  only  real  estate  and  no  debts  or  credits,  no  appoint- 
ment should  be  made.  If  the  application  is  tiled  under  §  10625 
G.  C,  it  ought  to  state  that  the  person  died,  and  at  the  time 
of  his  death  he  was  not  a  resident  of  this  State,  but  he  was 
engaged  in  business  here;  and  that  he  had  property  in  the 
county  within  which  the  application  was  made ;  or  that  a  person 
owing  the  decedent  resided  in  such  county ;  and  further  it  must 
be  alleged  that  the  claim  of  the  creditor  making  the  application 
is  founded  on  a  right  of  action  which  accrued  within  this  State. 
It  seems  the  practice  has  been  that  when  making  the  appoint- 
ment for  an  ancillary  administrator  that  the  court  must  first 
pass  upon  the  question  whether  or  not  an  appointment  will  be 
made. 

This  practice  should  undoubtedly  be  followed  if  the  applica- 


§  174  ANCILLARY    ADMINISTRATION  142 

tion  is  made  under  the  provisions  of  §  10625,  G.  C.  It  might 
not  be  unwise  to  follow  it  if  the  application  is  made  under 
§  10604,  G.  C.  But  if  the  application  be  made  under  §  10540, 
G.  C,  it  should  be  made  as  an  original  application  is  made  for  the 
appointment  of  an  executor  or  administrator  with  the  ^^•ill  an- 
nexed. The  admitting  to  record  of  a  foreign  will  would  make 
out  a  case  justifying  an  administration;  and  the  allegation  of 
such  admission  to  record  in  the  application  would  be  sufficient. 

§  174.     Application  for  administration. 

(Under  §  6013  Revised  Statutes.) 

To  the  Probate  Court  of County,  Ohio. 

The   undersigned,   a   creditor   of   the   decedent,   asks  of   this   Court  that 
Administration  be  granted  upon  all  and  singular  the  assets,  situate  within 

the  State  of  Ohio,  of ,  deceased,  who,  at 

the  time  of  h .  .  .  .   death  was  a  resident  of  the  county  of , 

in   the   State   of .and   whose   death   occurred   on 

the day   of 190.  .  .,   and   who   at  that  time  was 

engaged  in  the  pro.secution  of  business  in  the  County  of , 

in  the   State  of  Ohio,  as 

and  left  in  said  County  of ,  in  the  State  of  Ohio, 

property   belonging  to  his   estate: — the   undersigned,   creditor,   states  that 

,  a  debtor ....  of 

said  decedent,  resides  in  said County,  Ohio.     He 

further  states  that  his  claim  against  said  decedent  is  founded  on  a  contract 

made  or  right  of  action  accrued  within  this  State,  viz. : 

(Here  state  if  there  was,  or  is,  an  administrator  in  the  State  where  de- 
cedent died.)  Wherefore  petitioner  asks  that  an  administrator  be  ap- 
pointed to  administer  upon  the  property  of  said  decedent  intestate  in  this 
State. 

Dated ,    190... 

The  State  of  Ohio, County,   ss. 

,  named  in  the  foregoing  petition, 

being  sworn,  says  that  the  statements  therein  are  true  as.  .he  verily  believes. 


Sworn  to  and  subcribed  before  me  this day  of , 

A.  D.   190... 

,   Probate   Judge. 

§  175.     Form   of  application  for  administration  under   §  10604. 

To  the  Probate  Court  of Comity,  Ohio: 

The  undersigned    (here  state  the  fact  showing  the  interest  of  the  peti- 
tioner)  asks  of  this  court  that  an  administration  be  granted  upon  all  and 


143  NOTICE^  ETC.  §  176 

singular  assets,  situated  within  the  State  of  Ohio,  of  A.  B.,  deceased,  who 

died  on  or  about  tlie day  of ,  and  was  a  resident  of 

the  county  of ,  in  the  State  of 

,  and  that  said  A.  B.  died  intestate, 1 6  leaving  the  following 

described  property  within  this  county   to  be  administered  upon.     To  wit: 

Further  alleges  (here  allege  the  reason  why  the  application  is  made). 
(If  the  applicant  knows,  he  should  further  state  than  an  administrator 
was  appointed  in  the  State  in  which  the  decedent  lived  and  whether  or 
not  the  said  administrator  is  still  acting. ) 

Wherefore  the  Petitioner  requests  that  there  be  an  administrator  appoint- 
ed to  administer  upon  the  property  of  the  said  A.  B.,  situated  in  the  State 
of  Ohio. 

Sign. 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day 

of 

§176.     Notice  —  proof,  etc.,  required. 

As  no  one  has  a  preference  in  the  right  of  appointment,  but 
the  same  rests  in  the  discretion  of  the  Conrt.  Notice  is  not  re- 
quired before  an  administrator  of  a  non-resident  be  appointed. 
But  if  no  notice  is  given,  a  motion  to  set  aside  an  appointment 
filed  within  a  reasonable  short  time  after  it  is  made,  and  by  one 
not  having  had  notice,  will  be  entertained,  th.e  same  as  if  objec- 
tions would  have  been  made  to  the  appointment  in  the  first  in- 
stance. It  is  held,  that  if  an  appointment  is  sought  under 
§  10625,  G.  C,  that  the  Court  must  be  satisfied  that  there  is 
strong  probability  that  the  creditor  applicant  can  in  a  court 
of  law  establish  the  fact  that  he  is  the  creditor  of  the  decedent, 
and  that  upon  the  question  whether  or  not  the  applicant  is  a 
creditor  the  Court  may  hear  such  testimony  as  it  deems  ad- 
visable; and  further  that  the  decedent  must  not  only  at  his 
decease  have  been  a  non-resident  of  this  State,  but  he  must  also 
have  been  engaged  in  the  prosecution  of  business  in  this  State.^'' 

Likewise  it  has  been  held  that  in  order  to  justify  the  Court  in 
making  such  appointment,  it  must  appear  that  it  is  necessary  to 
do  so  to  protect  the  interest  of  the  creditor  in  this  State;  and 
that  a  creditor  by  his  laches  may  lose  his  right  to  enforce  such 

18  If   said   party    died   testate   and       state    that    fact    as    provided    under 
the  will  has  been  admitted  to  record,       §  10540  G.   C. 

17  In  re  McCreight,  G  N.  P.  479. 


§  177  ANCILLARY    ADMINISTRATION  144 

appointment,  at  least  unless  he  affirmatively  shows  that  he 
lias  no  other  remedy  by  which  to  protect  himself.^®  If  the  ap- 
pointment is  sought  under  §  10604,  G.  C,  the  same  evidence  will 
be  required  as  to  jurisdiction,  etc.,  other  than  the  decedent  was  a 
non-resident  of  the  State,  as  if  the  application  were  made  for  an 
original  administrator.  If  made  under  §  10540,  G.  C,  it  must 
of  course  show  that  the  will  had  been  admitted  to  record. 
While  a  non  resident  person  may  be  appointed  executor  under 
a  foreign  will,  yet  it  is  not  obligatory  on  the  Court  to  do  so, 
for  if  it  is  good  cause  to  remove  a  local  administrator  or  execu- 
tor because  he  moves  from  the  State,  it  certainly  would  be  good 
cause  not  to  appoint  him  in  the  first  instance,  by  reason  of  his 
non  residence. 

§  177.     Entry,  etc. 

The  entry  should  show  an  affirmative  finding  on  all  the  juris- 
dictional facts ;  and  in  one  case  it  was  held  that  where  these 
words  appeared  in  an  entry  to-wit:  "  It  is  ordered  that  said 
Mitchell,  a  brother,  be  and  is  hereby  appointed  administrator 
of  the  estate  of  the  deceased,  late  of  the  City  of  Marine, 
Michigan  " ;  that  this  was  a  substantial  finding  by  the  Court, 
that  the  deceased  was  not  at  the  time  of  his  death  a  resident  of 
Ohio.^« 

§  178.     Form  of  entry  ordering  administration. 

{Title.) 

This  day  came  A.  B.   (here  designate  character  in  which  the  application 
is  made),  and  filed  herein  his  application  that  there  be  an  administration 

ordered  on  the  estate  of  late  C.  D.,  a  resident  of 

coujity,    State ;  and  the  same  was  submitted 

to  the  Court.  Whereupon  the  Court  finds  the  allegations  contained  in  the 
said  application  are  true,  and  that  there  ought  to  be  an  administration 
upon  the  estate  of  the  said  C.  D.,  situate  in  the  State  of  Ohio. 

§  179.     Form  of  application  for  letters  of  administration. 

Deceased. 

To  the  Probate  Court  of County,  Ohio: 

Administration  having  been  heretofore  ordered  upon  all  and  singular  the 

18  In  re  McCreight,  6  N.  P.  481.  i9  In  re  Meswald  vs.  Marks,  19  C. 

C.  605;  10  C.  D.  355. 


145  BOND,    ETC.  §  180 

assets  situate  within   tlii*   State,  of 

deceased,  who  at  the  time  of  h .  .  .  .  death  was  a  resident  of  the  Counjty  of 
,  in  the  State  of -  tlie  under- 
signed, whose  postoffice  address  is    , 

County,    Ohio,    asks   that    such    administration   be   granted 

unto  h .  .  .  . ,  and  upon  h .  .  .  .    oath  says  that  the   applicant  was    

indebted  to  the  deceased  in  tlie  sum  of  $ ;  that  all  the  prop- 
erty, situate  within  the  State  of  Ohio,  belonging  to  the  estate  of  said 
decedent,  is  about  as  follows,  to-wit: 

Personal  Estate,  -  -  -  -  -  -$ 

Real  Estate,  -  -  -  -  -  -         $ 

Total, $ 

And  offers  a  bond  in  the  sum  of  $ ,  with 

and   as  sureties 

thereon,  and  suggests and 

as  appraisers. 


Sworn  to  and  subscribed  before  me  this day  of 

A.  D.  190.... 

,  Probate  Judge 

By ,  Deputy  Clerk. 

§  180.     Form  of  administrator's  bond. 

In  the  Probate  Court  of County,  Ohio. 

In  the  Matter  of  the   Estate  of Deceased. 

Know  all  Men  by  these  Presents : 

That   we 

and    

are  held  and  firmly  bound  unto  the  State  of  Ohio,  in  the  penal  sum  of 
Dollars,  to  the  pay- 
ment of  which  we  do  hereby  jointly  and  severally  bind  ourselves,  our  heirs, 
executors  and  administrators  if  default  be  made  in  the  conditions  following: 

Whereas,  An  application  duly  made  to  said  Court,  administration   had 

been  before  that  time  ordered  by  the  Probate  Court  of 

County,  Ohio,  "  upon  all  and  singular  the  assets,  situate  within  the  State 

of  Ohio,   of deceased,   who   at  the 

time  of  h .  .  .  .  death,  was  a  resident  of 

County,  in  the  State  of and  such  administration 

was  on  the day   of A.   D.    190...,   granted   by 

said  Court  unto 

Now,    if    the   said as    administrat 

as  aforesaid,  shall: 

First,  Make  and  return   into  said  Court,  on  oath,  with  thirty  days,  a 
true  inventory  of  all  Moneys,  Goods,  Chattels,  Eights  and  Credits  of  the 
deceased,  situate  within  the  State  of  Ohio,  which  have  or  shall  come  to 
h.  .  .  .possession  or  knowledge;  and  also,  if  required  by  said  Court,  an  in- 
ventory of  the  real  estate  of  said  deceased. 

Second,  Shall  administer  according  to  law  all  the  Moneys,  Goods,  Chat- 
tels, Rights  and  Credits  of  the  said  deceased,  situate  within  the  State  of 


§  181  ANCILLARY   ADMINISTRATION  146 

Ohio,  and  the  proceeds  of  all  h .  .  .  .  real  estate  within  said  State,  that  may 
be  sold  for  the  pajTnent  of  h .  .  .  .  debts,  which  shall  at  any  time  come  to  the 
possession  of  said  administrat.  .  .  .,  or  to  the  possession  of  any  other  person 
for  h 

Third,  Shall  render  upon  oath  a  just  and  true  account  of  h.  .  .  .  admin- 
istration, within  twelve  months,  and  at  any  other  time  when  required  by 
said  Court  or  the  law,  and  failing  so  to  do  for  thirty  days  after  h. . .  .shall 
have  been  notified  of  the  expiration  of  the  time  by  the  Probate  Judge  h.  .  . . 
shall  receive  no  allowance  for  h ....  services,  unless  the  Court  shall  enter 
upon  its  journal  that  such  delay  was  necessary  and  reasonable. 

Fourth,  Shall  pay  any  balance  remaining  in  h.  .  .  .hands  upon  the  settle- 
ment of  h .  .  .  .  accounts,  to  such  persons  as  said  Court  or  the  law  shall  direct. 

Sealed  with  our  seals,  and  dated  this day  of A.  D.  190. . . 

EXECUTED   IN   PRESENCE  OF 


§  181.     Form  of  entry. 

This  day  came  A.  B.  and  filed  herein  his  application  for  letters  of  admin- 
istration upon  the  estate  of  C.  D.,  a  non-resident  of  this  State;  and  at  the 

same  time   filed  herein   his   bond   in  the   sum   of Dollars, 

with  E.  F.  and  G.  H.  sureties  thereon;  and  the  same  was  submitted  to  the 
Court.  Whereupon  the  Court  finds  that  said  application  is  in  proper  form 
and  the  allegations  therein  are  true;  and  that  the  bond  given  is  sufficient 
in  amount  and  proper  in  form ;  and  the  same  is  hereoy  approved  and  the 
Court  further  finds  the  said  A.  B.  is  a  suitable  person  to  administer  upon 
the  said  estate. 

Wherefore  it  is  ordered  by  the  Court,  that  letters  of  administration  be 
granted  to  said  A.  B. ;  and  that  G.  H.,  H.  I.  and  J.  K.  be  appointed  ap- 
praisers of  said  estate. 20 

§  182.     Form   of   administrator's   letters. 

The  state  of  Ohio,   County,  ss. 

To  All  who  shall  see  these  Presents,  Greeting: 

Be  it  knoicn.  That  by  the  Court  of  Probate  of  said  County,  administration 

of  all  and  singular  the  assets,  situate  within  the  State  of  Ohio,  which  were 

20  This  form  of  entry  may  be  tion  never  becomes  ancillary.  For  if 
changed  to  some  extent  where  re-  no  administration  be  held  or  re- 
quired for  an  application  made  un-  quired  at  the  domicile  of  the  dece- 
der  §§  10540  and  10G04.  I  do  not  dent,  the  administration  here  might 
think  it  is  necessary  to  provide  in  be  original:  and  the  entry  of  the 
the  entry  that  the  administration  is  court  in  making  the  appointment 
an  ancillary  one.  There  may  be  oc-  could  not  change  the  law  in  this 
casions  arising  when,  if  the  applica-  respect. 

tion  bo  made  under   §§  10540  G.   C.  See  Swearingen  vs.  Morris,   14  0. 

and  10604  G.  C,  that  the  administra-  S.  424. 


147  POWERS,   ETC.  §  183 

of    late  of    

County,  in  the  State  of    ,   deceased,  has  been  granted 

unto ,  whose  duty  it  shall  be  to  have  all 

and  singular  the   said  assets,  appraised  by    

and  to  return  upon  oath,  within  thirty  days.,  a  true  inventory  thereof,  to 
administer  according  to  law  all  the  said  assets,  and  also  the  proceeds  of 
the  real  estate  of  said  decedent,  situate  within  said  State  of  Ohio,  which 

may   be  sold   for   the   payment   of debts,   which   shall   at   any   time 

come  into  the  possession  of  said  administrat.  .  .  .or  any  person  for ; 

to  render  upon  oath  a  true  account  of administration 

months,  and  at  any  other  time  when  required  by  the  Probate  Court  or  the 
law;  and  failing  so  to  do  for  thirty  days  after  he  shall  have  been  notified  of  the 
expiration  of  the  time  by  the  Probate  Judge,  he  shall  receive  no  allowance 
for  services,  unless  the  Court  shall  enter  upon  its  journal  that  such  delay 

was  necessary  and  reasonable ;  and  to  pay  any  balance  remaining  in 

hands  upon  settlement  of accounts  to  such  persons  as  the  Court  or 

the  law  shall  direct. 

Witness,    ,  Judge  of  said  Court 

at ,  this day 

of A.  D.  190.... 

,  Probate  Judge, 

And  Ex-officio  Clerk  of  Said  Court. 
By ,'  Deputy  Clerk. 

The  State  of  Ohio, County,  ss. 

I, ,    Judge   of    the    Probate   Court 

within  and  for  said  county,  certify  that  the  above  is  a  true  copy  of  the 
original  Letters  of  Administration  granted  in  the  premises  by  said  Court, 
and  remaining  on  file  in  my  office. 

Witness  my  hand  and  the  seal  of  said  Court,  at 

this day  of A.  D.  190. . .. 

,    Probate   Judge. 

And  Ex-officio  Clerk  of  the  Probate  Court. 

§  183.    Powers,  duties,  etc. 

It  is  not  every  administration  of  the  estate  of  a  non-resident 
that  is  ancillary,  but  whether  it  be  ancillary  or  not,  so  far  as 
the  law  is  applicable  to  that  part  of  the  administration  of 
the  estate  which  applies  to  the  appointment,  collection  of  assets, 
and  payment  of  the  debts  to  creditors  residing  in  this  State,  the 
laws  of  this  State  apply ;  and  may  be  said  to  be  similar  to  those 
applicable  to  an  adminstration  of  an  estate  of  a  deceased  resi- 
dent. It  is  only  when  it  comes  to  the  distribution  of  what 
remains  in  the  administrator's  hands  after  the  debts  of  local 


§  184  ANCILLARY    ADMINISTRATION  148 

creditors  have  been  paid,  that  any  other  law  other  than  the  laws 
of  our  own  State  apply.     Then  it  becomes  very  important. ^^ 

§  184.     Payment  of  debts  and  distribution. 

As  above  mentioned  the  first  thing  for  an  administrator  of 
the  estate  of  a  non-resident  in  the  matter  of  distributing  w^hat 
he  has  collected,  is,  that  he  first  pay  the  expenses  of  adminis- 
tration ;  second,  such  debts  as  may  be  proved  against  the  estate 
by  the  creditor  here;  and  if  there  are  legatees  who  reside  here 
a  distribution  will  be  made  to  them.  But  it  is  here  vitally 
important  to  distinguish  whether  the  assets  come  from  personal 
property  or  real  estate.  If  they  come  from  personal  property, 
they  must  be  distributed  according  to  the  laws  of  the  domicile 
of  the  deceased.  After  distribution  has  been  made  to  local 
creditors  and  heirs  or  legatees  residing  here,  the  residue  may 
be  remitted  to  the  original  administrator.  But  this  is  not 
obligatory  and  the  court  may  use  its  discretion.'"  It  seems 
that  under  the  provisions  of  §  10625  G.  C.,-'*  it  is  contemplated 
that  such  remaining  sum  be  paid  over  to  the  original  adminis- 
trator; and  I  doubt  if  the  Court  could  make  any  other  order 
if  the  appointment  was  made  under  that  section.    If  the  assets  in 

21  Woerner  on  Admin.  374.  were  no  creditors  in  N.  Y.,  but  all 
If    an    ancillary    executor    or    ad-       the  next  of  kin  of  the  intestate,  five 

rainistrator  has  been  properly  ap-  brothers  and  five  sisters  all  resided 
pointed  he  becomes,  so  far  as  our  in  N.  Y.  On  the  application  of  the 
courts  are  concerned  in  protecting  Kings  County  administrator  for  a 
his  rights,  and  those  of  the  creditors  final  accounting,  the  foreign  admin- 
within  this  State,  a  local  executor  or  istrator  presented  a  petition  claim- 
administrator,  ing  the  right  to  intervene  as  princi- 
In  Phelps,  2  W.  L.  G.  120.  i  al  administrator  and  asking  for  the 
2-*  S  170.  transmission  of  the  property  to  him 

22  See  Matter  of  accounting  of  for  distribution  under  the  Pennsyl- 
Hughes,  95  N.  Y.  55,  at  p.  60.  In  yania  law.  The  Court  of  Appeals  in 
the  Hughes  case,  the  decedent  was  a  reversing  the  decree  of  the  Surro- 
lesident  of  Pennsylvania,  where  he  gate  which  granted  his  application, 
died  intestate.  Soon  after  his  death  held  that  as  it  did  not  sufficiently 
his  brother  was  appointed  adminis-  appear  that  there  were  creditors  to 
trator  of  his  estate,  in  N.  Y.,  by  ^e  paid  in  Pennsylvania,  and  as  all 
the  Surrogate  of  Kings  County.  A  the  next  of  kin  were  all  residents  of 
week  later  an  administrator  of  the  the  State  presumably  consenting  to 
property  of  the  deceased  was  ap-  distribution  in  N.  Y.,  and  as  the 
pointed   in  Pittsburg,   Penn.     There 


149  SEVERAL   ADMINISTRATIONS  §  185 

the  hands  of  the  administrator  came  from  the  sale  of  real  estate, 
then  the  law  of  'the  place  of  the  real  estate  would  control  its  dis- 
tribution.-^ 

§  185.    Several  administrations  for  one  estate,  situated  in  dif- 
ferent States.- "^ 

As  each  administration  of  a  non-resident  of  the  State  is 
controlled  exclusively  by  the  laws  of  the  State  in  which  each 
respective  appointment  is  made  the  following  general  prin- 
ciples will  be  applicable  to  such  administration  and  that  if  de- 
cedent leave  property  in  different  States,  there  must  be,  as  a 
rule,  an  administrator  in  each  State,  although  there  will  be  only 
one  domestic  administrator  and  the  remainder  will  usually  be 
ancillary.  Usually  the  same  person  ^vill  be  appointed  in  each 
State,  unless  his  non-residence  disqualifies  him,  and  that  person 
is  the  one  who  takes  out  letters  at  the  domicile  of  the  decedent.^* 

The  administration  in  one  State  is  wholly  independent  of  that 
in  another."^  And  the  fact  that  administration  has  been  granted 
in  one  State  does  not  impair  or  abridge  that  in  another.^® 
There  is  no  privity  between  administrators  in  different  States,^' 
although  there  may  be  between  executors  of  the  same  estate  in 
different  States."^     The  personal  estate  is  to  be  distributed  to 

transmission  of  the  funds  under  such  25  Sherman  vs.  Page,  supra. 

circumstances   to   the   Pennsylvania  26  Henderson    vs.    Clark,    4    Litt. 

administrator  would  merely  subject  277;    Naylor   vs.    Moody,   2    Blackf. 

the  assets  to  double  commissions,  it  247;  Grant  vs.  Reese,  94  N.  C.  720; 

would  be  an  idle  show  of  courtesy  Aspden  vs.  Nixon,  4  How.  467 ;  Pond 

to    remit    the    funds    to    a    foreign  vs.  Makepeace,  2  Met.  114;  McLean 

jurisdiction.     "When  the  only  effect  vs|   Meek,  18  How.  16. 

would  be  to   deplete   it  by  unneces-  27  Taylor    vs.    Barron,    35    N.    H. 

sary    charges    and    expenses    to    the  484;  Stacy  vs.  Thrasher,  6  How.  44; 

prejudice  of  all  parties  interested."  Hill  vs.  Tucker,  13  How.  4.58;   Cres- 

Opinion  of  Andrews,  J.,  at  page  63.  well  vs.  Slack,  68  la.  110. 

23  Woerner  on  Admin.  375.  28  Hill  vs.  Tucker,  supra;  Goodall 
23a  Cited  Albrccht  vs.  Hoflfman,  24  vs.  Tucker,  13  How.  460. 

Dec.  21,  16  N.  P.  209.  {Contra — Grant  vs.   Reese,  94  N. 

24  Woodruff  vs.  Schultz,  49  la.  C.  720)  ;  Hooper  vs.  Hooper,  125  N. 
430;  Sherman  vs.  Page,  85  N.  Y.  Y.  400;  Garland  vs.  Garland,  84  Va. 
123;    Fletcher  vs.   Sanders,   7   Dana  181. 

345;    Schultze  vs.  Pulver,   11   Wend.  See  Woerner  on  Admin.  360. 

361 ;  Hunter  vs.  Brvson,  5  Gill  &  J. 

483. 


§  185  ANCILLARY    ADMINISTRATION  150 

heirs  and  legatees,  however,  according  to  the  law  of  the  domicile 
of  the  deceased.^®  Each  administration  is  limited  to  the  prop- 
erty having  a  situs  within  its  jurisdiction.^**  A  judgment 
against  one  cannot  be  used  as  a  cause  of  action  against  another, 
so  as  to  affect  assets  under  the  control  of  the  other.^^  A  judg- 
ment obtained  by  a  foreign  administrator  against  a  debtor  of 
the  estate  cannot  be  sued  upon  by  the  domiciliary  adminis- 
trator, nor  by  any  other  administrator  who  does  not  succeed  the 
one  so  obtaining  such  judgment.^*  But  see  as  to  construction 
of  wills  to  the  contrary. ^^  If  a  judgment  be  rendered  against 
an  estate  in  one  State  and  partly  paid,  and  then  suit  brought 
against  the  estate  on  the  same  claim  in  another,  it  is  not  neces- 
sary to  plead  such  judgment  and  part  payment;  and  such  admin- 
istrator is  not  estopped  from  disputing  such  claim  by  reason  of 
the  fact  tliat  he  had  defended  it  in  the  first  State ;  for  he  cannot 
bind  the  estate  outside  of  the  last  State.^* 

29  Russell  vs.  Madden,  95  111.  485.  Marks,   10   C.   D.   357 ;    19   0.   C.  C. 

30MeCord  vs.  Thompson,   92  Ind.  605. 

565;     Reynolds     vs.     McMullen,    55  32  Talmage   vs.    Chapel,    16   Mass. 

Mich.  568.  71. 

31  Brodie    vs.    Brickley,    2    Rawle.  33  Washburn    vs.    Van    Steenwyk, 

431;     Braithwaite    vs.    Harvey,    36  32      :\Iinn.      336;      McCartney      vs. 

Pac.  Rep.  38;  Slauter  vs.  Chenowith,  Osburn,  118  111.  403;   S.  C,  121  111. 

7  Ind.  211;   Low  vs.  Bartlett,  8  Al-  408;  Staigg  vs.  Atkinson,  144  Mass. 

len,    259;    Judy   vs.   Kelley,    11    III.  564,  as  to  real  estate. 

211;   Rentschler  vs.  Jamison,  6  Mo.  34  Braitlnvaite  vs.  Harvey,  36  Pac. 

App.  135.  Rep.  38. 

Where  the  decedent  was,  at  the  A  judgment  recovered  against  a 
time  of  his  death,  a  resident  of  an-  domiciliary  administrator  in  Ala- 
other  State,  administration  must  bo  bama  can  not  furnish  a  right  of 
ancillary,  and  funds  in  the  hands  action  brought  by  a  judgment-credi- 
of  the  administrator  here  are  prop-  tor  against  an  ancillary  adniinis- 
erly  ordered  over  to  the  administra-  trator  of  the  same  estate.  Albrecht 
tor  in  the  other  State.    Meswald  vs.  vs.  Hoffman,  24  Dec.   19;    16  X.  P. 

209. 


i 


151 


DEFINITION 


§186 


CHAPTER  XII. 


FOREIGN   ADMINISTRATION. 


§  186  Definition,  etc. 

§  187  Foreign  executors  and  admin- 
istrators  may   be   sued  here. 

§  188  Law  governintr  local  admin- 
istrators  applies   to   foreign. 

§  188a  Jurisdiction  of  courts. 

§  180  Same — continued. 

§  100  Procedure  of  heir,  etc.,  against 
foreign   administrator. 

§  101  Suit  against  foreign  admin- 
istrator  by   heir    or    legatee. 

§  102  Form   of    refunding   bond. 

§  103  May  be  required  to  secure  dis- 
tributees and  indemnify 
sureties. 

§  103a  Other  remedies. 

§  104  Form  of  bond  to  secure  dis- 
tributee or  surety  frqpi 
foreign   executor. 


§  195  May  prosecute  suits  in  this 
State. 

§  196  Validity  of  voluntary  pay- 
ment to  foreign  administra- 
tors. 

§  197  Foreign  executor  or  adminis- 
trator may  be  authorized  to 
sell  real  estate. 

§  198  Law  applicable  to  such  sales. 

§  199  Foreign  executor  or  adminis- 
trator to  give  bond  unless  al- 
ready bound. 

§  200  Foreign  executor,  etc.,  to  give 
further  bond  to  account  for 
surplus  when  he  sells  more 
than  is  necessary  to  pay 
debts,  etc.i 


§  186.     Definition,  etc. 

By  the  phrase  foreign  executor  or  administrator,  the  Court 
never  means  the  mere  non-residence  of  the  individual  holding 
the  office,  but  the  foreign  origin  of  the  representative  capacity." 
It  is  not  the  residence  of  an  executor  or  administrator  outside 
of  the  State  which  makes  a  foreign  executor  or  administrator, 
but  the  creation  of  his  official  character  imder  and  by  force  of 
law  foreign  to  our  own.  The  representative  character  therefore 
is  the  sole  product  of  the  foreign  will  and  depending  upon  it 
for  existence,  cannot  pass  beyond  or  have  any  force  or  effect 
outside  of  the  jurisdiction  of  its  origin.  But  by  the  comity  of 
States  by  which  one  State  always  respects  the  jurisdiction  of 


iSee    chapt.    11,    §     16.5    et    seq. 
Ancillary  Administration. 


2  Hopper   vs.   Hopper,    12.5   N.   Y. 
400. 


§  187  FOEEIGN    ADMINISTEATION  152 

another  when  not  in  conflict  with  the  rights  of  citizens  of  its 
own  jurisdiction,  the  duties,  powers  and  rights  of  such  foreign 
executors  or  administrators  are  generally  respected  and  fol- 
lowed. The  foreign  executor  or  administrator  mav  reside  in 
this  State,  and  the  local  executor  or  administrator  may  reside  in 
any  other  State.  A  foreign  executor  or  administrator  may  be 
ancillary  to  one  in  this  State  or  the  local  executor  or  admin- 
istrator may  be  ancillary  to  one  residing  here  and  appointed 
by  a  foreign  Court.  The  common  law  rule,  that  executors  and 
administrators  have  no  authority  beyond  the  jurisdiction  of 
the  State  that  gave  them  their  appointment  and  cannot  be  sued 
or  sue  in  their  representative  capacity  in  any  other  State,  has 
been  completely  abrogated  by  statutory  provision  in  our  State,  as 
will  be  seen  from  the  following  sections  of  the  General  Code 
made  a  part  of  this  chapter.  They  have  particularly  all  the 
rights  and  all  the  liabilities  of  a  local  administrator  or  executor 
and  there  would  seem  to  be  no  necessity  for  appointing  an  an- 
cillary or  local  administrator  in  this  State,  when  jurisdiction 
could  be  acquired  over  the  foreign  executor.^ 

§  187.     Foreig-n  executors  and  administrators  may  be  sued 
here.     "An  executor  or  administrator,  duly  appointed  in  any 
other  state  or  country,  or  his  legal  representatives,  may  be 
prosecuted  in  an  appropriate  court  in  this  state,  in  his  capacity  • 
of  executor  or  administrator."     [R.  S.  §  6129.]* 

The  above  section  only  gives  jurisdiction  over  foreign  execu- 
tors when  service  can  be  gotten  upon  them  in  this  State.  If 
they  do  not  place  themselves  in  such  a  position  that  a  legal 
service  could  be  had  upon  them  no  valid  judgment  could  be 
recovered.  A  foreign  administrator  cannot  be  compelled  to 
appear  in  any  of  our  courts  unless  as  above  stated  he  brings 
himself  within  the  jurisdiction  of  the  local  court,  but  he  may 

3  See  §  1132,  Powers  under  will  therein,  no  right  to  review  accounts 
made  out  of  state.  §  165,  Ancillary  of  an  executor  appointed  in  another 
Administration.  State,  over  property  situate  in  this 

4  §  10763  G.  C.  State.    In  re  Crawford,  68  O.  S.  58; 
It    is    a    generally    accepted    rule       affirming  21   C.  C.  554;    11   Cir.  D. 

that   the   power   of    an    administra-  605. 

tor  or  executor  over  the  estate  of  a  This  section  has  stood  for  forty 
deceased  person  emanates  from  the  years  and  never  been  constitution- 
laws  of  the  State  where  he  receives  ally  attacked.  Craig  vs.  Ry.,  2  X. 
his  appointment.  It  does  not  dc  P.  56;  3  Dec.  74. 
jure  extend  to  other  States  and  can  An  administrator  appointed  in 
not  confer,  as  a  matter  of  right,  any  Michigan  can  not  bring  an  action  in 
authority  to  collect  assets  of  the  the  Federal  Court  for  wrongful 
deceased"  in  another  State.  death  in  Illinois.  See  Bernard  vs. 
A  Probate  Court  in  this  State  has,  Shane,  201  Fed.  453;  11  0.  L.  R.  43. 
although  the  will  has  been  probated 


153  SUE  AND  BE  SUED  §  187 

do  SO  voluntarily.®  "  It  is  a  matter  concerned  where  the  au- 
thorities differ/'  says  a  distinguished  author,®  "  Whether  an 
administrator  is  guilty  of  laches  or  negligence  in  failing  to 
collect  assets  beyond  the  jurisdiction  of  his  forum,  or  obtaining 
letters  in  the  foreign  jurisdiction  in  which  there  may  be  proper- 
ty belonging  to  the  estate."  At  most  an  administrator  of  this 
State  cannot  be  charged  with  assets  in  another  State,  unless  it 
be  shown  that  he  could,  under  the  laws  of  that  State,  have  col- 
lected and  recovered  such  assets,  using  ordinary  diligence  in 
order  to  do  so.^  If  a  foreign  administrator  appears  in  court 
and  proceeds  to  trial  without  objection  he  cannot  then  be  heard, 
that  the  Court  has  no  jurisdiction  to  hear  and  determine  the 
cause.* 

Concerning  the  above  section  it  was  said,  by  Judge  Ranney,  ' 
"  that  by  the  administration  laws,  all  foreign  executors  and  ad- 
ministrators may  sue  and  be  sued  in  this  State,  like  those  of 
our  own  appointment,  thereby  in  most  cases  making  it  unneces- 
sary that  an  ancillary  administration  should  be  instituted.  In 
quite  an  extended  opinion  in  one  of  our  lower  courts  ^°  it  was 
held  that  the  above  section  was  constitutional  and  that  a  Court 
in  our  State  would  not  go  into  the  question  whether  or  not  a 
judgment  recovered  against  a  foreign  administrator  would  be 
effective.  It  has  been  laid  down  in  a  reconsideration  of  the 
matter,  that  it  is  a  rule  in  Pennsylvania  that  a  foreign  executor 
within  the  jurisdiction  of  their  court  is  liable  to  be  sued  by  a 
resident  creditor  of  his  decedent ;  and  such  suit  will  be  sustained 
unless  it  entrenches  unduly  upon  the  jurisdiction  of  another 
court  already  attached,  or  would  expose  parties  to  inequitable 
burdens,  although  in  that  State  there  is  no  statute  specifically 
making  them  liable.^^ 

BLampton  vs.  Nichols,  2  C.  S.  C.  lo  Craig  vs.  Ry.  Co.,  2  N.  P.  64; 

R.  55.  3  Dec.  146. 

6  Woerner  on  Administration  364.  n  Laughlin  vs.   Solomon,  180  Pa. 

7  Goodwin  vs.  Jones.  3  Mass.  514;  St.  177;  2  Prob.  Rep.  Ann.  74  and 
Hamilton  vs.  Carrington   ( S.  C),  1!)  notes. 

S.    E.    Rep.    616;    Leonard    vs.    Put-  Service  may  be  had  by  attachment 

man,  51  N.  H.  247;   Judge  vs.  Kel-  against   a   non-resident   executor,   if 

ley,  11  111.  211;  Sheldon  vs.  Rice,  30  the  property  of  the  decedent,  which 

Mich.  206.  is   attached,   is    in  this   State.     Am. 

8  Hamilton  vs.  Taylor,  2  C.  S.  C.  Steel  Wire  Co.  vs.  Mevers,  22  Dec. 
R.  402.                         ■  733. 

9  Swearingen  vs.  Morris,  14  0.  S.  See  Williams  vs.  Welton,  28  O. 
424.  S.  457. 


|§  188  FOREIGN    ADMINISTRATION  154 

§  188.  Law  governing  local  administrators  applies  to  for- 
eign. "The  provisions  concerning  settlements  of  the  estates 
of  deceased  persons,  and  the  remedies  and  proceedings  herein 
given  against  executors  and  administrators  appointed  by  the  law 
of  this  state,  shall  also  apply  to  foreign  administrators  or  execu- 
tors appointed  by  the  laws  of  any  state  or  country,  and  residing 
in  this  state,  or  having  assets  or  property  herein."  [R.  S. 
§6130.]  12 

§  188a.  Jurisdiction  of  courts.  "The  several  courts  of  pro- 
bate, common  pleas  and  superior  courts,  shall  have  the  same 
power  and  authority  over  such  foreign  executors  and  adminis- 
trators as  if  they  were  appointed  under  the  laws  of  this  state." 
[R.  S.  §6130.]  12* 

§  189.     Same  —  continued. 

There  are  no  judicial  decisions  to  aid  in  the  construction 
of  the  above  section,  but  it  would  seem  that  if  the  foreign  ad- 
ministrator resided  in  any  county  in  this  State,  or  brought 
himself  within  the  jurisdiction  of  any  Probate  Court  of  a 
county  in  which  there  were  assets  of  a  non-resident  decedent,^^ 
that  such  foreign  administrator  might  by  citation,  be  brought 
into  a  Probate  Court  of  such  county  and  compelled  to  give 
bond,  make  an  inventory  and  sale  of  the  estate  and  file  an  ac- 
count just  the  same  as  if  he  were  a  local  administrator;  and 

A  very  interesting  case  in  which  personal    service   might    be   had    on 

it  was  sought  to  compel  an  admin-  him.     The  Philadelphia  court  there- 

istrator  in  this  State  to  go  into  an-  fore  rendered  a  judgment  in  favor  of 

other    State    and    litigate    a    claim  the   wife   and    paid    her   the    claim, 

against  an  estate  is  that  of  Cross  vs.  Under  the  laws  of  Ohio   (§  3628),  a 

Armstrong,  44  O.  S.  613.  part  of  this  policy  would  have  be- 

Tlie  decedent  had  had  his  life  in-  longed    to    the   creditors    of    the   de- 

sured  with  a  Pennsylvania  company  ceased ;  and  in  a  suit  by  the  admin- 

for  $10,000,  payable  on  its  face  to  istrator  against  the  widow  for  such 

his  wife.     After  his  death  the  wife  portion  of  the  money  paid  to  her  by 

had  possession  of  the  policy  and  en-  the  Insurance  Co.  it  was  held  that 

tered   suit  thereon   in   the   Common  the  Court  of  Pennsylvania  could  not 

Pleas    Court    of    Philadelphia;    and  determine   a    right   against   the   ad- 

raade  the  administrator   of  the   de-  ministrator    in    Ohio    and   that   the 

ceased  a  party  to  that  action.     The  administrator  was  not  bound  by  the 

administrator   did   not   appear,   nor  Philadelphia  suit. 

did     anything     which     voluntarily  12  §  10764  G.  C. 

brought  him  within  the  jurisdiction  12*  §  10765   G.   C. 

of  the  Philadelphia  court  so  that  a  is  Cross   vs.  Armstrong,   44   0.   S 

613. 


155  PEOCEDUKE   OF   HEIK  §  190 

that,  if  a  Court  once  acquired  jurisdiction  of  such  an  adminis- 
trator in  a  proceeding  to  compel  him  to  do  any  of  the  things 
which  the  law  requires  of  a  local  administrator,  such  admin- 
istrator would  thereafter  be  within  the  jurisdiction  of  such 
Court;  and  if  he  failed  to  comply,  a  local  administrator  de 
bonis  non  might  be  appointed  to  take  charge  of  the  effects ;  and 
then  after  paying  local  creditors  or  resident  heirs  and  legatees, 
the  Court  might  order  the  remainder  paid  to  the  foreign  admin- 
istrator. Of  course,  here  like  in  the  other  provisions  of  our 
statutes,  a  foreign  administrator  must  bring  himself  within  the 
jurisdiction  of  a  local  court,  before  any  proceedings  can  be  had. 
Such  foreign  administrator  might  be  compelled  to  file  an  ac- 
count and  thereafter  suit  can  be  brought  by  any  distributee  as 
provided  in  the  case  of  local  administrator.  Likewise  in  the 
matter  of  the  presentation  of  claims,  and  the  statutory  limit 
applicable  to  suits  on  rejected  claims,  and  generally  it  may  be 
said  that  such  foreign  administrator  having  been  brought  within 
the  jurisdiction  of  a  certain  Probate  Court  of  our  State  would 
be  held  responsible  in  all  the  administration  of  such  estate,  the 
same  as  a  local  administrator. 

§  190.     Procedure  of  heir,  etc.,  against  foreign  administrator. 

"Any  common  pleas  court  or  superior  court  may  compel  a  for- 
eign administrator  or  executor  residing  in  this  state,  or  having 
assets  or  property  herein,  to  account  at  the  suit  of  an  heir,  dis- 
tributee, or  legatee,  who  is  resident  in  this  state,  and  make 
distribution  of  the  amount  found  in  his  hands  to  the  respective 
heirs,  distributees,  or  legatees,  according  to  the  law  of  the  state 
granting  such  letters.  When  suits  are  pending,  or  unsettled 
demands  against  such  estate,  the  court  also  may  require  a  re- 
funding bond  to  be  given  to  such  executor  or  administrator  by 
the  heirs,  distributees,  or  legatees  entitled  thereto  in  case  the 
amount  paid  is  needed  to  pay  debts  of  the  estate."  [R.  S. 
§6131.]^* 

§  191.     Suit  against  foreign  administrator  by  heir  or  legatee. 

The   above  section  further  enlarges  the   right  of  residents 
to  enforce  claims  they  may  have  against  foreign  administra- 

14  §  10766  G.  C. 


§  191  FOREIGN    ADMINISTRATION  156 

tors,  provided  such  administrators  reside  in  this  State,  or  have 
property  here  belonging  to  the  decedent.  It  would  seem  that 
the  previous  section  (6130)  would  have  provided  for  every  case 
that  might  have  occurred,  but  the  above  section  is  probably  in- 
tended to  more  particularly  apply  to  a  case  where  in  a  foreign 
administration,  it  had  been  found  that  a  certain  amount  was 
due  to  a  resident  of  Ohio.  But  whatever  may  have  been  the 
intent,  it  certainly  confers  on  a  Superior  or  Common  Pleas 
Court  full  power  to  j)rotect  any  local  distributee,  legatee  or 
heir;  and  probably  puts  into  statute,  a  rule  which  would  have 
been  enforced  by  a  court  of  equity  without  statute.  The  above 
statute  seems  to  have  an  equity  proceeding  in  contemplation 
when  it  provides  that  a  foreign  administrator  may  be  compelled 
to  account,  accounting  being  a  proceeding  in  equity.  For  it  has 
been  elsewhere  held,  that  an  executor  may  be  compelled  by  a 
court  of  equity  in  a  State  to  which  he  may  have  removed,  to 
disclose  with  what  funds  he  has  purchased  property,  the  char- 
acter of  the  funds,  whether  he  holds  the  property  as  trustee  and 
for  what  use  and  trust.^^  And  also  that  where  an  executor  or 
administrator  removes  the  property  of  the  estate  in  his  charge 
without  having  completed  the  administration,  to  any  other  State, 
and  fails  to  obtain  new  letters  of  administration  there,  a  court 
of  equity  will  grant  relief  to  any  person  whose  interest  is  there- 
by jeopardized,  on  the  ground  that  where  the  trust  fund  is  in 
danger  of  being  wasted  or  misapplied,  the  court  of  chancery 
on  application  of  those  interested  will  interfere  to  protect  the 
lunds  from  loss.^'' 

It  is  said  that  it  may  be  stated,  however,  as  a  general  propo- 
sition, that  the  liability  of  an  administrator  for  property  fraud- 
ulently or  without  having  been  fully  administered,  brought  from 
the  State  in  which  he  received  his  appointment  to  another  State, 
is  to  the  creditors  and  distributees  alone,  and  does  not  authorize 
the  grant  of  letters  in  the  latter  State.^' 

15  Woerner  on  Admin.  371.  it  McCabe  vs.  Lewis,  76  Mo.  296. 

16  Woerner  on  Admin.  370;  Cal-  Wlion  a  married  woman  died  dom- 
houn  vs.  King,  5  Ala.  523;  Seller  iciled  in  this  State  and  her  husband 
•vs.  Dnnn,  3  Head.  87 ;  Dillard  vs.  obtains  letters  in  Pennsylvania,  suit 
Harris.  2  Tenn.  Ch.  193.  cannot  be  maintained  in  this  State 


157  BOND^   ETC.  §  192 

§  192.     Form  of  refunding  bond. 

Know  all  Men  by  these  Presents: 

That  we,  E.  F.,  G.  H.  and  I.  J.,  are  firmly  bound  unto  C.  D.,  the  adminis- 
trator   (or  executor)    of  A.  B.,  deceased,  and  his  successors  in  the  sum  of 

Dollars    (double  the  amount  of  the  liability) 

to  the  payment  of  which  we  hereby  jointly  and  severally  bind  ourselves,  if 
default  be  made  in  the  condition  following: 

Whereas,  on  the day  of in  the  county  of 

State  of C.   D.   was 

duly  appointed  and  qualified  as  administrator  (or  executor)  of  the  estate  of 
A.   B.,    deceased.     Whereas,  afterwards  there  was  proceedings   had   in   the 

Court,   of County 

in  the  State  of  Ohio,  C.  D.  to  account  to 

and  heir   (distributee  or  legatee)   who  is  resident  in  this 

State,  for  his  said  share  of  said  estate.     And  whereas  afterwards,  to- wit: 

On  the day  of ,  an  order  was  made  in  said 

Court  of County,   Ohio.     Finding  that,  the   said 

K.  L.  is  entitled  to  the  sum  of Dollars,  as  such  heir 

etc.,  of  A.  B.,  deceased.  And,  whereas  it  was  ordered  that  the  said  K.  L. 
make  to  said  C.  D.  a  refunding  bond  to  save  the  said  C.  D.  harmless  from 
any  liability  which  might  result  to  him  from  the  payment  of  said  sum  to 

K.  L.     There  now  being  unsettled  demands  (or  suit  pending  in  the 

Court,    of County )    against 

said    estate.     Now    if    the   said   K.    L.    shall   refund    the    said   amount  of 

Dollars,  so  ordered  paid  to  him  by  the 

Court,    of County,    so 

much  thereon  as  may  be  necessary  to  satisfy  any  demand  that  may  arise 
from  pending  suits  or  unsettled  claims  or  otherwise  that  may  be  recovered 
against  the  estate  of  said  A.  B.,  deceased ;  and  shall  indemnify  C.  D.  against 
all  loss  and  damage  on  account  of  payment  of  such  sums  as  ordered  by 
the  Court.  Then  this  obligation  shall  be  void;  otherwise  it  shall  remain 
in  full  force. 

Signed  by  us  this day  of 190 .... 

§  193.  May  be  required  to  secure  distributees  and  indemnify 
sureties.  "When  a  foreign  administrator  or  executor  has 
wasted,  misapplied,  or  converted  assets  of  such  estate,  or  has 
insufficient  property  to  discharge  his  liability  on  account  of  the 
trust,  or  his  sureties  are  irresponsible,  distributees,  heirs,  or 
legatees,  in  any  such  court  may  compel  him  to  secure  the 
amounts  respectively  due  to  them,  and  any  of  his  sureties  may 
require  indemnity  on  account  of  their  liability  as  bail."  [R.  S. 
§6132.]i« 

by  an  heir  while  the  matter  remains       Adams  vs.  Adams,  7  0.  S.  84. 
unsettled  in  the  Pennsylvania  court.  is  §  10767  G.  C. 


§  193a  FOREIGN   ADMINISTRATION  158 

§  193a.  other  remedies.  ' '  The  several  provisional  remedies 
and  proceedings  authorized  in  such  courts,  also  apply  to  the 
person  and  property  of  such  administrator  or  executor.  Such 
courts  may  make  any  order  or  decree  touching  his  property  and 
effects,  or  the  assets  of  such  estate,  necessary  for  the  safety  and 
security  of  those  interested  therein."      [R.  S.  §6132.]^** 

This  section  is  a  continuation  of  the  matters  referred  to  in 
§  10766,  G.  C,  and  specifically  confers  on  the  Court,  ample 
power  to  protect  a  resident  distributee,  heir  or  legatee,  and 
seems  to  apply  further,  that  if  he  has  given  surety,  that  the 
Court  may  order  him  to  protect  such  surety.  Neither  §  10747 
G.  C,  nor  §  10766  give  any  rights  to  creditors.  A  creditor  must 
work  out  his  right  through  §  10764-65  G.  C. 

§  194.     Form  of  bond  to  secure  distributee  or  surety  from  foreign 
executor. 

Know  all  Men  by  these  Presents: 

That  we,  E.  F.,  G.  H.  and  I.  J.,  are  firmly  bound  unto  C.  D.  an  heir 

(distributee  or  legatee)  of  A.  B.,  deceased,  in  the  sum  of 

Dollars  to  the  payment  of  which  we  hereby  jointly  and  severally  bind 
ourselves  if  default  be  made  in  the  condition  following: 

Whereas,  on  the day  of ,  in  the  county  of 

,    State    of ,    E.    F.    was    duly 

qualified  and  appointed  administrator   (or  executor)   of  the  estate  of  A.  B., 

deceased.     Whereas,  afterwards  there  was  proceedings  had  in  the 

Court,  of ,  in  the  county  of 

in  the  State  of  Ohio,  to  compel  the  said  E.  F. 

to  secure  the  sum  of Dollars,  which  was  due  to  the 

said  C.  D.  as  such  heir    (distributee  or  legatee)    from  the  estate  of  said 

A.  B. ;  and,  whereas,  afterwards,  to-wit:     on  the day  of 

an  order  was  made  in  tha  said  Court  of County,  Ohio, 

in  which  it  was  ordered  and  decreed  that  the  said  E.  F.  should  execute  and 

deliver  to  the  said  C.  D.  a  bond  in  the  sum  of Dollars, 

to  secure  him  in  the  payment  of  the  said  sum  so  found  due  him.     Now  if 

the  said  E.  F.  shall  pay  to  the  said  C.  D.  the  said  amount  of 

Dollars  so  found  due  him  by  the Court,  of 

and  fully  satisfy  the  said  C.  D.  in  all  de- 
mands therefor,  then  this  obligation  shall  be  void,  otherwise  it  shall  remain 
in  full  force. 

Signed  by  us  this day  of A.  D.  190 


18*  10768  G.  C. 


159  PAYMENT,    ETC.  §  195 

§  195.  May  prosecute  suits  in  this  State.  "An  executor  or 
administrator,  duly  appointed  in  any  other  state  or  country,  may 
commence  and  prosecute  an  action  or  proceeding  in  any  court 
in  this  state,  in  his  capacity  as  such,  in  like  manner  and  under 
like  restriction,  as  a  non-resident  is  permitted  to  sue."  [R.  S 
§6133.]^« 

This  section  places  a  foreign  administrator  on  the  same  plane 
of  any  non-resident  person  in  the  bringing  of  suits  in  the  inter- 
est of  the  estate.  In  the  absence  of  such  statute  no  aation  could 
be  brought.^"^  Where  an  administrator  had  brought  suit  to 
collect  assets  belonging  to  his  decedent  it  was  sought  to  raise  a 
question  in  the  higher  court  that  an  ancillary  administrator 
ought  to  have  been  appointed  in  this  State.  The  court  declined 
to  go  into  that  question,  saying  that  whether  or  not  an  ancillary 
/idministrator  ought  to  be  appointed  was  a  matter  that  rests  in 
the  Probate  Court ;  and  that  where  there  were  no  creditors  in 
Ohio  and  tlie  eifect  would  be  to  accumulate  necessary  charges 
to  the  estate  the  Probate  Court  might  probably  refuse  to  grant 
letters,  or  where  they  might  have  been  granted,  revoke  them. 
But  this  was  a  matter  proper  only  for  a  consideration  of  the 
Probate  Court.'" 

It  has  also  been  held  in  this  State  that  where  a  foreign  ad- 
ministrator appeals  a  case  that  he  must  give  an  appeal  bond. 
In  that  respect  differing  from  a  local  administrator.'^ 

§  196.     Validity  of  voluntary  payment  to  foreign  administrators. 

It  is  said  that  upon  the  question  of  the  validity  of  the  volun- 
tary payment  of  a  debt  to  a  foreign  executor  or  administrator 
the  authorities  are  not  unanimous,  and  that  the  tendency  is  in 
the  direction  of  recognizing  the  validity  of  such  payment,  unless 
there  are  creditors  in  the  home  State  whose  debts  are  unpaid 
or  there  exists  a  local  administration.'' 

In  our  own  State  where  plaintiff's  intestate  resided  in  Ten- 
ia §  10769  G.  C.  22  Woerner  on  Admin.  364. 
19a  Bernard    vs.    Shane,   220   Fed.  Payment  by  an  Oliio  debtor  to  an 
220.                                                                      administrator  appointed  by  another 

20  Purcell    vs.    Heinberger,    1    W.       state    tlian    Oiiio,    prior    to    the    ap- 
L.  B.  205;  3  Dec.   (Rep.)   343.  pointment    of    an    administrator    in 

21  Work   vs.   Massie,   6   Oliio  .503.       Ohio   is   a  satisfaction  of   tlie  debt. 
See  Kinkead's   PI.,   §  41   for  man-       Crawford  vs.  Missionary  Society,  22 

ner  of   bringing   suits   against  non-       Dec.  804. 
residents. 


§197 


FOREIGN    ADAIINISTnATION 


160 


nessee,  where  he  died,  and  had  on  deposit  money  in  this  State, 
and  administration  was  first  granted  in  Tennessee  and  after- 
wards in  this  State,  the  parties  with  whom  he  had  made  the 
deposit  promised  to  pay  the  same  to  the  Tennessee  administra- 
tor, without  notice  that  one  had  been  appointed  in  this  State. 
The  local  administrator  brought  suit,  and  it  was  held  that  he 
could  not  recover,  because,  by  the  law  of  Ohio,  a  foreign  admin- 
istrator has  authority  to  collect  debts  and  the  liability  attached 
at  the  time  of  making  the  promise.^^ 

From  this  proposition  it  is  said  that  a  debtor  is  liable  to  pay 
whenever  he  may  be  reached  by  the  administrator.^* 

It  has  been  held  that  a  foreign  administrator  cannot  release 
the  mortgage  on  land  against  the  domestic  administrator." 
But  I  very  much  doubt  whether  this  would  be  the  law  in  Ohio, 
for  the  Supreme  Court  now  holds  that  the  debt  is  the  principal 
thing  and  the  mortgage  an  incident.  If  the  foreign  adminis- 
trator has  power  to  receive  payment  of  the  debt  it  would  follow 
that  he  could  cancel  the  mortgage. 

^  197.  Foreign  executor  or  administrator  may  be  author- 
ized to  sell  real  estate.     ' '  When  an  executor  or  administrator 


23  Weitzell  Admr.  vs.  Cinn.  Sav- 
ings, 1  W.  L.  J.  393;  Stevens  vs. 
Gay  lord,  11  Mass.  264. 

24  Woerner  on  Admin.  364. 
Nelson,  J.,  of  the  Supreme  Court 

of  the  United  States,  says :  "  Ther« 
is  doubtless  some  plausibility  in  it 
(the  objection  to, the  validity  of  the 
voluntary  payment  to  a  foreign  ad- 
ministrator), growing  out  of  the 
interest  of  the  home  creditors.  But 
it  has  not  been  regarded  of  sufficient 
•weight  to  carry  with  it  the  judicial 
mind  of  the  country.  With  the  ex- 
ception of  the  case  in  Tennessee 
none  have  been  referred  to,  nor  have 
our  own  researches  found  any  main- 
taining the  invalidity  of  the  pay- 
ment. The  question  has  been  direct- 
ly and  indirectly  before  several  of 
the   courts   of   the   States,    and   the 


opinions  have  all  been  in  one  direc- 
tion, in  favor  of  the  validity." 

Wilkins  vs.  Ellett,  9  Wall.  740, 
742,  referred  to  with  approval  in 
Wyman  vs.  Halstead,  109  U.  S.  654. 
The  cases  referred  to  by  Justice  Nel- 
son are:  Williams  vs.  Storrs,  6 
John.  Ch.  353;  Doolittle  vs.  Lewis, 
supra;  Vroom  vs.  Van  Home,  10 
Pai.  549,  557;  Schulz  vs.  Pulver,  11 
Wend.  361 ;  Trecothick  vs.  Austin, 
4  Mason  16,  33;  Stevens  vs.  Gay- 
lord.  1 1  Mass.  256 ;  Nisbet  vs.  Stew- 
art, 2  Dev.  &  B.  L.  24 ;  Parsons  V9. 
Lyman,  20  N.  Y.  103,  108. 

Some  of  these  decisions  contain 
mere  dicta  or  intimations  on  the 
point  under  consideration. 

25  Stone  vs.  Scripture,  4  Lans. 
186;  Stevens  vs.  Gaylord,  11  Mass. 
256. 


161  SALES  OF  REAL  ESTATE  §  198 

is  appointed  in  any  other  state,  territory,  or  foreign  country,  on 
the  estate  of  a  person  dying  out  of  this  state,  and  no  executor  or 
administrator  thereon  is  appointed  in  this  state,  the  foreign 
executor  or  administrator  may  file  an  authenticated  copy  of  his 
appointment  in  the  probate  court  of  any  county  in  which  there 
is  real  estate  of  the  deceased,  together  with  an  authenticated 
copy  of  the  will,  if  there  be  one ;  after  which,  under  an  order 
of  the  court,  he  may  be  authorized  to  sell  real  estate  for  the 
payment  of  debts  or  legacies  and  charges  of  administration,  in 
the  manner  and  upon  the  terms  and  conditions  prescribed  in  the 
case  of  an  executor  or  administrator  appointed  in  this  state, 
excepting  in  particulars  wherein  a  different  provision  is  herein- 
after made."     [R.  S.  §  6168.] ^^ 

§  198.     Law  applicable  to  such  sales. 

This  statute  confers  upon  foreign  administrators  the  right  to 
sell  real  estate  situated  in  this  State  under  the  same  rules  ap- 
plicable to  local  administrators.  Statutes  authorizing  these 
sales  are  liberally  construed,  but  prescribed  formality  cannot 
be  supplied  by  presumption.^^  It  would  therefore  be  essential 
that  all  formalities  be  complied  with.  A  decree  of  another  State 
authorizing  an  administrator  to  sell  Ohio  lands  to  pay  debts  is 
■wholly  void  and  passes  no  title.^^ 

But  where  one  of  the  heirs  assented  to  and  promoted  the  for- 
eign decree  his  interest  passes  to  the  buyer  at  the  sale.^® 

The  buyer  at  such  sale  cannot  compel  the  heirs  to  reimburse 
him,  but  the  court  will  require  the  taxes  to  be  repaid  as  a  condi- 
tion of  quieting  the  title.^° 

The  Indiana  statute,  in  conferring  the  power  on  foreign  ad- 
ministrators to  sell  real  estate,  is  very  similar  to  our  own,  and 
comments  under  their  statute  will  be  applicable  to  our  own. 

The  executor  derives  his  authority  to  sell  from  the  laws  of 
the  place  where  he  attempts  to  operate,  and  in  the  case  of  a  for- 

26  §  10813  G.  C.  29  Salmond  vs.  Price,  13  O.  368. 

27Goforth    vs.    Longworth,    4    O.  soNowler  vs.  Coit,  1  0.  .519. 

129.  Power  to  sell  under  a  will  becomes 

28  Nowler  vs.  Coit,  1  O.  519;  Sal-  legally   inoperative  when   the   estate 

mond  vs.  Price,  13  O.  368;  Blake  vs.  is  settled.     Ward  vs.  Barrows,  2  O. 

Davis,    20    O.    231,    244;    Price   vs.  S.  241. 
Johnston,    1    O.    S.    390.      See    also 
Henry  vs.  Doctor,  9  O.  49. 


§  199  FOKEIGX    ADMIXISTKATION  162 

eign  administrator,  where  local  laws  exist,  he  must  substan- 
tially comply  with  them  before  he  can  secure  the  authority  to 
sell  lands.^^ 

In  a  proceeding  for  the  sale  of  real  estate  in  this  State  by  a 
foreign  executor,  the  sale  is  to  be  authorized  in  the  same  manner 
and  upon  the  same  terms  as  in  the  case  of  an  executor  appointed 
in  this  State,  except  that,  if  it  is  shown  that  sufficient  surety 
for  application  of  the  proceeds  has  been  given  in  the  State  or 
county  where  the  executor  is  appointed,  and  a  duly  authenti- 
cated copy  of  such  bond  is  filed  in  the  court  where  the  petition  is 
made,  no  further  bond  will  be  required.^' 

The  petition  must  show :  First,-  what  amount  of  personal 
property,  if  any,  has  come  to  his  hands ;  second,  the  amount  of 
the  debts  outstanding  against  the  estate  of  the  deceased,  so  far 
as  the  same  can  be  ascertained,  and  the  insufficiency  of  the  per- 
sonal estate  to  pay  the  same ;  third,  a  description  of  the  real 
estate  of  the  deceased  liable  to  be  made  assets,  showing  the  State 
and  county  where  the  same  is  located ;  fourth,  the  names  and 
ages  of  the  heirs,  legatees  or  devisees  of  the  deceased ;  fifth,  tbat 
the  executor  has  filed  in  the  court  an  authenticated  copy  of  his 
appointment ;  sixth,  that  the  will  of  the  testator  has  been  duly 
probated. ^^ 


§  199.  Foreign  executor  or  administrator  to  give  bond 
unless  already  bound.  "When  it  appears  to  the  court  grant- 
ing tile  order  of  sale  that  such  foreign  executor  or  administrator 
is  bound  with  sufficient  surety  or  sureties  in  the  state  or  country 
in  which  he  was  appointed,  to  account  for  the  proceeds  of  such 
sale,  for  the  payment  of  debts  or  legacies  and  charges  of  admin- 
istration, and  a  copy  of  such  bond,  duly  authenticated,  is  filed 
in  court,  no  further  bond  for  that  purpose  shall  be  required  of 
him  here.  Otherwise,  before  making  such  sale,  he  must  give 
bond  to  the  state  of  Ohio  with  two  or  more  sufficient  sureties, 
conditioned  to  account  for  and  dispose  of  such  proceeds  for  the 
payment  of  the  debts  or  legacies  of  the  deceased  and  the  charges 

31  Lucas   A's.    Tucker,    17    Ind.    41.       Thornton  and  Blackledge  on  Admin. 
32Rapp  vs.  Matthias,  35  Ind.  332.        (Indiana). 
33  Rapp  vs.  Matthias,  35  Ind.  332. 


163 


ADDITIONAL    BOND 


§200 


of  administration,  according  to  the  laws  of  the  state  or  country 
in  which  he  was  appointed."      [R.  S.  §6169.]^* 

§  200.  Foreign  executor,  etc.,  to  give  further  bond  to  ac- 
count for  surplus  when  he  sells  more  than  is  necessary  to  pay 
debts,  etc.  "When  such  foreign  executor  or  administrator  is 
authorized  by  order  of  the  court  to  sell  more  than  is  necessary 
for  the  payment  of  debts,  legacies,  and  charges  of  administra- 
tion, before  making  the  sale,  he  shall  give  bond,  with  two  or 
more  sufficient  sureties,  to  the  state  of  Ohio,  conditioned  to 
account,  before  the  court,  for  all  the  proceeds  of  the  sale  that 
remain,  after  pa.yment  of  such  debts,  legacies,  and  charges  and 
to  dispose  of  them  according  to  law."     [R.  S.  §  6170.]^'^ 

The  two  preceding  sections  relate  to  bonds  of  such  foreign  ad- 
ministrators. If  there  is  any  doubt  about  the  bonds  being  in- 
sufficient or  there  are  local  creditors,  heirs,  distributees  or  lega- 
tees, I  have  no  doubt  that  under  the  provisions  of  §  10764  G.  C, 
§  188,  the  bond  might  be  required  and  perhaps  should  be  re- 
quired, for  it  is  the  duty  of  our  local  courts  to  protect  the  people 
of  our  o\\Ti  State,  and  not  require  them  to  go  into  a  foreign 
jurisdiction  to  secure  their  rights.  The  form  generally  ap- 
plicable in  such  cases  will  be  very  similar  to  the  one  required 
by  local  administrators  in  the  sale  of  real  estate.^® 


34  §  10814  G.  C. 

35  §  10815  G.  C. 

36  For  the  law  applicable  to  the 
sale  of  real  estate  by  an  executor  or 
administrator,  see  chapt.  46  on  that 
subject. 


§  811,  et  seq. 

Additional  bond  may  be  required 
when  bond  is  insufficient.  Wade  vs. 
Graham,  4  0.   126. 

See  Griswold  vs.  Frink,  22  O.  S. 
79,  as  to  surplus,  etc. 


§  201  JOINT   ADMINISTEATION  164 


CHAPTER  XIII. 

JOINT  OR  CO-ADMINISTRATION. 

§  201  Definition,  etc.  §  204  Liability  for  act  of  co-admin- 

§  202  Separate  or  joint  bonds.  istrator. 

§  203  Power  of  one  to  bind  the  oth-        §  205  Situs      of      property  —  Taxa- 

er    in    the    co-administration  tion. 

of  the  estate.  §  206  Remedies  against  each   other. 

§  207  Division    of    commissions. 

§  201.     Definition,   etc. 

Joint  executors  are  tliose  who  are  joined  in  the  execution  of 
a  will.  In  law,  however  numerous  joint  executors  may  be,  they 
constitute  but  one  person.^ 

Formerly  a  distinction  seems  to  have  been  made  between 
joint  executors  and  joint  administrators.^  But  now,  in  respect 
to  their  rights,  duties  and  liabilities,  co-administrators  stand 
upon  the  same  footing  as  co-executors,  with  this  difference :  that 
their  powers  and  duties,  being  defined  by  positive  law,  are  not 
capable  of  any  special  variation  as  may  be  those  of  executors.' 

Joint  executors  or  joint  administrators  may  act  independ- 
ently, the  act  of  any  one,  within  the  scope  of  his  authority,  being 
considered  the  act  of  all.  As  is  said :  "  If  a  man  appoint  sev- 
eral executors  they  are  esteemed  in  law  but  as  one  person,  rep- 
resenting the  testator,  and  therefore  the  act  done  by  any  one  of 
them  which  relate  either  to  the  deliveiy,  gift,  sale,  payment, 
possession  or  release  of  the  testator's  goods  are  deemed  the  act 
of  all,  for  they  have  a  joint  and  entire  authority  over  the 
whole."  * 

1  Schouler  Extrs.  &  Admrs.,  §  400,  where  tliere  is  but  one  executor,  un- 

Bouvier  Law   Diet. ;   Ames  vs.  Arm-  U>ss  assented  by  all  parties  in  inter- 

stronir,     10(5    Mass.    15;     Barry    vs.  est  it  would  be  void. 

Lambert.  !tS  N.  Y.  300.  -  Hudson  vs.  Hudson.  1   Atk.  4fi0. 

Sec  S  lfi2a  as  to  the  appointment  3  Schouler  Kxtrs.  &  Admrs.,  §  404. 

of  an  administrator  to  act  with  an  •'Bacon's    Abridg.,   p.    37;    Herald 

execTitor.      The    same    rule    applies  vs.   Harper.   S    Blkf.    170;    Long   vs. 

where  a  purchase  is  made  by  a  joint  Rodman,     5S      Ind.      5S;      Schouler 

executor  of  the  assets  of  the  estate  Extrs.  &  Admrs.,  §  400. 
from  his  co-executor  as  in  the  case 


165  BONDS^  ETC.  §  202 

One  executor  cannot  prevent  a  co-executor  from  taking  pos- 
session of  the  assets  of  the  estate,  nor  can  he  take  such  assets 
from  him  after  he  has  taken  possession." 

Joint  letters  should  not  be  granted  where  one  of  the  parties 
thereto  objects.® 

In  this  State  every  person  named  in  a  will  as  executor  must 
qualify  and  give  bond  if  required  to  entitle  him  to  letters. 
Failing  in  this  he  shall  have  no  power  to  act  as  executor. 

One  executor  may  qualify  for  general  purposes  and  another 
for  a  special  purpose,  if  such  appears  from  the  will  to  be  the 
intention  of  the  testator.'^ 

And  where  one  executor  fails  to  qualify  or  renounces  his 
trust,  letters  may  issue  to  others  named  in  the  will.* 

§  202.     Separate  or  joint  bonds. 

It  is  provided  by§  10611,  G.  C,  §  86,  that  where  two  or 
more  persons  are  appointed  administrators  or  executors  or  testa- 
m^itary  trustees  that  a  bond  may  be  taken,  which  is  joint  or 
several.  I  think  it  might  be  stated  as  a  general  rule  that  sev- 
eral bonds  are  preferable  to  joint  bonds,  and  Avhere  a  separate 
bond  is  given  the  penalty  in  each  should  be  in  the  same  amount 
as  that  in  the  joint  bond,  for  as  one  administrator  has  full  con- 
trol and  power  over  the  estate,  he  may  take  to  himself  a  com- 
plete administration  of  the  estate.     Therefore  his  bond  should 

5  Hali  vs.  Carter,  8  Ga.  388 ;  ministrator  Oi*  executor  are  vast  and 
Wood  vs.  Brown,  34  N.  Y.  337.  complicated,  it  may  be  well  to  join 

6  Brubaker's  App.,  98  Pa.  St.  21.  with  him  some  one  to  share  the  re- 

7  Schouler  Extrs.,  §  40.  sponsibility  and  give  advice,  etc.    But 

8  Schouler  Extrs.  &  Admrs.,  §  41,  from  the  fact  that  one  possesses  the 
§  10G21  G.  C,  §  137;  Miller  vs.  power  of  all,  if  he  is  of  a  mind  to 
Meetch,   8   Pa.   St.   417.  exercise  the  power,  association  with 

As  a  general  rule  it  may  be  said,  others  does  not  necessarily  result  in 
that  joint  administration  of  an  es-  a  benefit  to  the  estate ;  and  where 
tate  is  not  to  be  commended.  For  the  estate  is  small  my  observation 
usually  the  entire  administration  of  and  experience  has  been  in  favor  of 
the  estate  depends  upon  one,  even  the  single  administration  in  prefer- 
though  there  be  a  number  of  persons  ence  to  a  joint  administration, 
appointed.  Where  the  estate  is  large  See  §  709.  Successive  Administra- 
and  the  interests  intrusted  to  the  ad-  tion;  §  1264,  Joint  Trustee. , 


§  203  JOINT    ADMINISTRATION  166 

be  in  full  amount.  If  a  separate  bond  were  given,  the  bonds- 
men would  only  be  liable  for  that  which  came  within  the  ad- 
ministration of  such  administrator  giving  the  bond.  But  if  the 
bond  is  joint,  additional  difficulties  are  incurred,  and  where  the 
property  comes  into  joint  possession,  if  waste  is  committed  by 
one  of  the  administrators  after  the  death  of  the  other,  it  will  be 
the  right  of  the  surety  that  the  estates  of  both  the  administrators 
shall  be  exhausted  before  the  surety  shall  be  subjected  to  the 
surviving  administrator's  fraud.  Such  administrators,  as  be- 
tween themselves  and  the  surety,  are  principals,  and  the  surviv- 
ing administrator  and  the  representatives  of  the  deceased  ad- 
ministrator will  be  jointly  liable  to  indemnify  the  surety  if  he 
has  been  subjected  to  the  waste  committed  by  one  of  the  princi- 
pals after  the  death  of  his  associates.® 

§  203.     Power  of  one  to  bind  the  other  in  the  co-administration 
of  the  estate. 

Since  joint  executors  and  joint  administrators  are  regarded 
in  law  as  constituting  but  one  person  and  the  title  of  each  ex- 
tends to  the  entire  personal  estate  of  the  testator  or  intestate, 
each  one  has  for  most  purposes  as  full  and  ample  power  over  the 
estate  as  if  he  were  the  sole  representative,  unless  otherwise  pro- 
vided by  statute ;  and  therefore  one  may  collect  the  assets  of  the 
estate  and  give  a  receipt  to  debtors,  com|K)und,  compromise  or 
release  debts  due,  or  causes  of  action  belonging  to  the  estate,  dis- 
charge mortgages,  pledge  or  mortgage  the  estate  to  secure  ad- 
vances of  money  necessary  for  administration  purposes,  where 
the  same  is  permitted  by  the  court  or  statute,  sell  or  otherwise 
dispose  of  the  assets  of  the  estate,  notes  and  other  choses  in  ac- 
tion, submit  matters  to  arbitration  and  assent  to  legacies.^" 

3  Eckert  vs.  Myers,  45  0.  S.  525.  misconduct  of  the   other.     Seymour 

Where  two  executors  give  a  joint  vs.  Stone,  4  W.  L.  M.  323. 

and  several  bond  with  sureties,  they  Overruling — Chenniel  vs.  Stone,  3 

are  liable  for  the  misconduct  of  each  W.  L.   M. 

other,  and  are  each  bound  to  indem-  lo  17  Am.  &  Eng.   Ency.   of  Law, 

nify    the    sureties    against    loss    by  2nd    ed.    620;    Woerner    on    Admin. 

733;  Schouler  on  Extrs.  400. 


167  LIABILITIES^   ETC.  §  204 

In  the  conveyance  of  real  estate,  as  a  matter  of  course,  where 
it  rests  in  the  discretion  of  the  executors  to  make  the  sale,  a 
valid  sale  cannot  be  made  unless  they  all  join.  But  if  the  sale 
is  made  by  an  order  of  the  court  on  petition  for  tliat  purpose,  I 
apprehend  that  a  deed  executed  by  one  in  conformance  to  such 
order  would  be  valid,  although  there  are  some  holdings  that  all 
the  administrators  must  join  in  the  petition. ^^ 

One  administrator  may  accept  a  claim  that  is  presented  to 
him  for  allowance  against  the  estate,  but  such  acceptance  will 
not  preclude  the  other  administrators  from  resisting  its  pay- 
ment. ^^ 

A  notice  of  dishonor  or  protest  to  one  or  several  co-executors 
of  the  deceased  endorser  is  sufficient.^^ 

One  executor  cannot  bind  his  co-executor  by  confession  of 
judgment.^*  Of  course  one  executor  cannot  bind  a  co-executor 
to  an  act  which  by  the  will  was  extended  to  all  in  the  nature  of 
a  trust ^° 

§  204.     Liability  for  act  of  co-administrator. 

Ordinarily  one  joint  executor  or  administrator  is  not  liable 
for  the  assets  which  come  into  the  hands  of  another,  nor  for  the 
laches  or  mismanagement  of  the  co-executor  or  administrator, 
unless  he  consent  to  or  join  in  any  act  which  results  in  a  loss 
to  the  estate.  In  which  case,  though  the  loss  be  the  direct  con- 
sequence of  the  default,  carelessness  or  mismanagement  of  the 
other,  they  will  all  be  equally  liable.  So  if  the  executor  mis- 
manage or  waste  the  estate  he  becomes  liable.  What  consti- 
tutes such  negligence  as  to  make  one  liable  for  devastavit  or 
mismanagement  of  the  estate  by  his  co-executor  or  co-adminis- 
trator, depends  largely  on  the  cireiunstances  of  each  case.^^ 

If  the  executor  is  conscious  of  the  mismanagement  of  tlie  co- 

11  See  Woerner  on  Admin.  734.  13  Bank  vs.  Wallace,  13  S.  C.  347 ; 

12  Forsyth    vs.    Ganson,    5    Wend.       Beals  vs.  Peck,  12  Barb.  245. 

558;  Hall  vs.  Boyd,  6  Pa.  St.  267;  i<  Forsyth    vs.    Ganson,    5    Wend. 

Haramon  vs.  Huntley,  4  Cow.  493;       558;  S.  C,  21  Am.  Dec.  241. 
Weston  vs.  Miirnan,  4  Ind.  271;  Mc-  is  See   Seymour  vs.   Stone.   §   202, 

Cann  vs.  Sloan,  25  Md.  575.  Separate  and  joint  bonds. 

16  Woerner  on  Admin.    738. 


§  204  JOINT    ADMINISTRATION  168 

administrator  and  acquiesce  in  it,  or  if  he  be  negligent  in  taking 
steps  to  prevent  the  loss,  he  will  he  liable. ^^ 

But  if  he  could  show  that  his  own  conduct  was  within  the 
usual  rule  of  prudence  under  like  circumstances,  and  that  he 
did  not  contribute  to  the  loss  upon  such  a  standard  of  liability, 
he  is  excused ;  for  the  cardinal  doctrine  is  that  co-executors  are 
liable  for  their  own  acts  and  conduct,  and  not  for  the  acts  or  con- 
duct of  their  co-executors.^® 

In  our  own  State  it  was  held  that  although  where  one  of  two 
executors  is  insolvent  during  the  whole  period  of  his  executor- 
ship, the  claim  due  from  him  to  his  testator  ought  to  be  included 
in  the  inventory  among  the  credits  and  effects  of  the  decedent, 
as  required  in  §  10691,  G.  C.  Such  executors  will  not  be  held 
liable  for  the  same  as  for  so  much  money  in  their  hands,  nor 
will  they  be  required  to  apply  and  distribute  the  same  in  pay- 
ment of  the  debts  and  legacies  and  among  the  next  of  kin  as 
part  of  the  personal  estate  of  the  deceased.^** 

If  co-trustees  authorize  one  of  their  number  to  manage  a 
fund,  etc.,  tliey  will  all  be  responsible.^^ 

Generally  mere  passive  conduct  will  not  be  sufficient,  but 
some  positive  act  on  the  part  of  the  co-administrator  is  neces- 
sary.^^ 

IT  17  Am.  &  Eng.  Ency.  of  Law,  estate.    In  order  for  one  co-executor 

2nd   ed.   620,  and  authorities  there  to  only  be  liable  for  his  own  acts, 

cited.  presupposes  entirely  independent  ac- 

18  Schouler  on  Extrs.  402.  tions  on  the  part  of  the  one  in  de- 

19  Brown  vs.  Harshman,  9  C.  C.  1 ;  fault;  and  the  other  is  liable  if  he 
6  C  D.  10.  This  case  is  cited  with  in  any  way  contributes  thereto, 
approval  in  the  case  of  McCoy  vs.  whether  intentionally  or  otherwise, 
Allen,  608  (6  C.  D.  659),  of  the  as  by  voluntary  and  unnecessary 
same  volume,  but  is  denied  in  the  paying  over  or  delivering  assets  of 
case  of  Perkins  vs.  Scott,  212,  in  the  the  estate  to  him,  or  enabling  him 
same  volume.  The  case  of  Allen  vs.  in  any  way  to  obtain  possession  of 
McCoy  was  reversed  in  the  57  O.  S.  the  assets.  If,  however,  there  are 
641  on  the  authority  of  McGaughey  good  reasons  for  turning  over  the 
vs.  Jacoby,  54  O.  S.  487.  The  same  assets,  and  the  parties  act  in  good 
principle  would  reverse  the  decision  faith,  he  might  not  be  responsible.20 
made  by  the  Circuit  Court  in  Brown  20  Jn  re  Osborn,  87  Cal.  1. 

vs.  Harshman;  and  -vpould  establish  21  state  vs.  Gulford,   15  0.  593. 

the  opposite  rule  and  would  make  a  22  17  Am.  &  Eng.  Ency.  of  Law, 

joint  executor  liable  for  a  debt  due  2nd   ed.   628. 
from  the  insolvent  co-executor  to  the 


1G9 


POWERS    OF    EACH 


§  204 


It  is  not  negligence,  however,  to  fail  to  examine  a  co-admin- 
istrator's bank  account  for  two  years  ;,"^  nor  failure  to  attempt 
to  withdraw  the  funds  from  his  hands  on  notice  of  his  insol- 
vency ;  ^*  nor  is  the  estate  of  an  administrator  liable  for  a  waste 
committed  by  the  otlier  administrator  after  the  death  of  his  co- 
administrator."^ But  if  several  administrators  agree  among 
themselves  that  each  shall  take  a  certain  distinct  part  of  the 
estate,  and  none  of  them  shall  intermeddle  with  the  other's  por- 
tion, they  will  be  all  liable  for  any  act  of  neglect  of  one  of  their 
number  resulting  in  loss  to  the  estate.^* 

If  two  joint  administrators  sign  a  receipt  for  money  it  raises 
a  presumption  that  both  received  it,  and  the  burden  of  showing 
that  one  did  not  receive  the  money  and  that  he  had  not  the  power 
to  control  or  secure  it  is  upon  him  who  denies  liability.^^ 

23  Irwin's  Appeal,  35  Pa.  St.  294.       acquiescence  of  the  legatees  in  such 


24  Worth  vs.  McAden,  1  Dev.  &  B. 
Eq.  199. 

25  Young's  Appeal,  99  Pa.  St.  74. 

26  Knight  vs.  Haynie,  74  Ala.  542; 
Weldy's  Appeal,  102  Pa.  St.  454. 

27  Monell  vs.  Monell,  5  Johns.  Ch 
283 ;  Sterrett's  Appeal,  2  Pen.  &  W 
419;  Hall  vs.  Carter,  8  Ga.  388, 
Stewart  vs.  Conner,  9  Ala.  803 ;  Nett 
man  vs.  Schremnij  23  la.  521 ;  Ed 
monds  vs.  Crenshaw,  1  Harp.  Ch 
224 ;  McKim  vs.  Aulbach,  130  Mass 
481. 

But  see  Wilson's  Appeal,  115  Pa. 
St.  95. 

The  fact  that  legatees  complain 
continuously  to  two  co-executors, 
both  before  and  after  an  accounting 
by  the  managing  executor,  of  the 
non-payment  of  their  legacies  by  the 
managing  executor,  and  that  such 
co-executors  are  chargeable  with 
knowledge  of  the  mingling  by  the 
managing  executor  of  the  money  of 
the  estate  with  his  private  funds  does 
not  render  them  liable  for  waste 
committed  by  him  in  an  amount 
greater  than  the  balance  shown  to  be 
due  the  estate  by  the  account,  the 


account,  and  the  managing  execu- 
tor's reputation  of  pecuniary  abil- 
ity and  personal  integrity,  excusing 
the  co-executors  from  making  fur- 
ther inquiries  which  would  lead  to 
the  ascertainment  of  such  waste. 
Weyman  vs.  Thompson  (N.  J.  Ch.), 
25   Atl.  Rep.   205. 

Though  the  entire  management  of 
an  estate  was  in  the  hands  of  one 
of  three  executors,  and  though  two 
co-executors  never  had  possession  of 
any  assets,  yet  such  co-executors  by 
joining  the  other  in  an  account  final, 
in  so  far  as  allowance  for  disburse- 
ments and  the  ascertainment  of  as- 
sets acknowledge  to  have  been  re- 
ceived are  concerned,  become  jointly 
chargeable  for  the  balance  due  the 
estate  by  such  accoimting  and  by  the 
decree  of  the  orphans'  court  allow- 
ing it  with  interest;  and  the  fact 
that  the  account  was  prepared  by 
the  managing  executor,  and  that  the 
two  co-executors  signed  it  on  his  re- 
quest without  investigation,  because 
of  their  confidence  in  his  integrity 
and  on  his  assurance  that  they 
would  be  relieved  of  all  responsibil- 


§205 


JOINT    ADMINISTRATION 


170 


§  205.     Situs  of  property.     Taxation."* 

It  sometimes  becomes  important  where  there  are  two  execu- 
tors to  determine  tlie  situs  of  the  property.  Generally  it  may 
be  said  that  the  situs  of  the  property  is  at  the  residence  of  the 
executor  or  administrator  who  has  actual  possession  and  control 
of  it.  The  question  arises  perhaps  oftener  in  the  matter  of  list- 
ing the  property  for  taxation.  In  Ohio  v.  Matthews  ^*  it  was 
held,  that  where  three  executors  of  an  estate  resided  in  the  same 
township,  two  of  them  within  the  corporate  limits  of  a  village, 
the  other  witliout  such  limits,  and  the  three  having  possession, 
in  the  law  of  taxable  moneys,  bonds,  and  stocks  of  the  estate,  the 
same  must,  in  view  of  the  equities  and  analogies  of  the  statutes 
—  which  does  not  expressly  provide  for  such  case  —  be  entered 
for  taxation,  one-third  as  of  the  place  of  residence  of  each  ex- 
ecutor. 

In  another  case,^*  where  there  were  four  executors  and  two 
of  them  resided  in  Mahoning  county,  the  late  domicile  of  the 
decedent,  and  one  resided  in  the  same  county  but  in  the  city  of 
Youngstown,  and  tlie  other  in  the  city  of  Cleveland;  and  the 
assets  of  the  estate  were  kept  at  the  late  residence  of  the  de- 
ceased, it  was  held  that  one-fourth  of  the  assets  were  taxable  in 
Youngsto^vn  and  the  balance  in  the  county  of  Mahoning.     Xo 


ity  thereby,  does  not  relieve  them  of 
such  liability,  as  such  conduct  of 
the  managing  executor  does  not 
amount  to  a  fraud  on  his  co-execu- 
tors. VVeyman  vs.  Thompson  (N.  J. 
Ch.) ,  25  Atl.  Rep.  205.  An  executor 
being  about  to  leave  the  State  tem- 
porarily, turned  over  to  his  co-execu- 
tor the  funds  in  his  hands.  There- 
after he  took  no  part  in  the  man- 
agement of  the  estate,  but  his  co- 
executor  attended  to  the  business. 
The  executors  filed  a  joint  account 
four  years  after  the  time  prescribed 
by  the  statute.  At  this  time  said 
executor  knew  that  there  was  a 
shortage,  which  he  personally  made 
up  without  reporting  it.     He  never 


made  any  effort  to  have  a  final  set- 
tlement on  such  account.  It  was 
held  that  his  co-executor  having 
thereafter  used  the  funds  on  hand 
at  the  time  of  such  report,  and  hav- 
ing become  insolvent,  the  executor 
was  liable  therefor.  The  fact  that 
the  money  and  sole  management  of 
the  estate  was  turned  over  to  said 
co-executor  with  tlie  concurrence  of 
one  having  a  power  of  attorney  to 
collect  moneys  due  non-resident  ben- 
eficiaries of  the  estate  in  no  way 
relieves  said  executor  from  respon- 
sibilitv.  In  re  Osborn's  Estate,  87 
Cal.  I:  S.  C.  25  Pac.  Rep.  157. 

2"a  The  statute  now  requires  that 
the  property  be  listed  from  the 
place  where  decedent  died.  See 
§5371-3:    107  v.  31. 

2S  10  0.  S.  431. 

29  Todd  vs.  Hughes,  3  O.  L.  J.  206. 


171  REMEDIES    AGAINST    EACH    OTHER  §  206 

part  of  it  being  assessed  against  the  executor  residing  in  Cleve- 
land. 

In  a  later  case  ^°  it  was  held  that  where  an  estate  was  com- 
mitted to  two  or  more  persons  residing  in  different  counties  the 
property  must  be  listed  by  the  executor  having  actual  possession 
and  control  and  at  his  place  of  residenca^^ 

§  206.     Kemedies  against  each  other. 

As  co-executors  or  administrators  are  considered  in  law  as 
one,  as  a  matter  of  course  they  could  not  sue  each  other  for  mat- 
ters pertaining  to  the  administration  of  the  estate.  Yet  it  has 
been  held  that  this  rule  only  holds  good  while  the  co-executors 
are  both  alive,  and  that  if  one  dies  the  survivor  might  bring 
suit  against  the  representatives  of  the  deceased  co-administra- 
tor. Also  where  only  one  qualifies  under  a  will  he  may  sue 
the  executor  who  has  not  qualified.*^ 

Where  one  of  two  executors  has  in  his  hands  the  balance  re- 
maining for  distribution  an  action  can  be  maintained  against 
him  without  joining  his  co-executor  or  administrator.^^ 

A  court  of  equity  would  not  aid  one  co-executor  against  the 
wrongful  acts  of  the  other  so  long  as  there  was  a  remedy  else- 
where. Our  statutes  confer  full  and  ample  jurisdiction  on 
the  Probate  Court  to  remove  a  mismanaging  executor  or  admin- 


30  Brown  vs.  Noble,  42  0.  S.  405.  The  executors  qualified  before    and 

31  See  Sommers  vs.  Boyd.  48  0.  S.  reported  to  the  Surrogate's  Court  of 
648;  Woerner  on  Aamin.  691a.  New    York.      Under    these    circum- 

A  resident  of  New  York   died  in  stances,  the  Auditor  of  Erie  county 
that    State,    having   appointed    four  has  no  right  to  place  at  least  one- 
executors  of  his  last  will.     Three  so  half  of  the  personal  property  of  the 
appointed  lived  in  New  York,  one  in  estate  upon  the  tax  duplicate  of  said 
Erie    county,    Ohio.      One    executor  county    for    taxation,    and    plaintiff 
failed  to  qualify,  one  qualified  and  had  a  remedy  by  injunction  to  pre- 
subsequently    resigned,    leaving    the  vent  him  from  doing  so.     Hawk  vs. 
other  two  in  charge  of  the  estate^-  Benn,  6  C  C.  452;  3  C.  D.  535. 
one  residing  in  New  York  and  the  See  §  511  as  to  Taxation, 
other  in  Ohio.     The  property  of  the  32  Marsh  vs.  Oliver,  14  N.  J.  Eq. 
estate   was   all   held   in   New   York,  259. 
tione  of   it  being  brought  in   Ohio.  83  Negley  vs.  Guard,  20  O.  310. 


§  207  JOINT    ADMINISTRATION  172 

istrator,  or  require  him  to  give  additional  bond.     In  this  State 
a  court  of  equity  would  hardly  interfere.^* 

§  207.     Division  of  commissions. 

When  the  compensation  is  made  in  the  form  of  commissions 
on  the  value  or  amount  of  the  estate,  the  rate  of  the  commission 
is  not  ordinarily  affected  by  the  number  of  the  executors  or  ad- 
ministrators, but  the  amount  which  may  be  allowed  will  be  di- 
vided among  them,  and  as  a  general  rule  an  equal  division  will 
be  made.  There  is,  however,  no  rule  of  law  or  equity  which 
declares  that  co-representatives,  without  regard  to  the  time 
spent,  responsibility  assumed  or  service  rendered,  are  entitled 
to  an  equal  pro  rata  share  of  the  statutory  fees.  On  the  con- 
trary, it  has  often  been  held  that  if  their  services  are  unequal  the 
Court  of  Probate  will  give  to  each  a  share  of  the  commissions  in 
proportion  to  the  services  rendered  by  him.^° 

But  such  apportionment  cannot,  it  seems,  be  made  by  a  court 
of  law  in  an  action  by  one  executor  or  administrator  against  an- 
otlier  to  recover  a  share  of  the  commissions.  The  parties  may 
also,  by  agreement,  arrange  with  one  another  as  to  the  duties 
and  compensation  of  each.^* 

34  See  Woerner  on  Admin.  740;  kins,  7  C.  C.  (N.S.)  240;  28  0.  C. 
Schouler  Extrs.  403.  C.  208. 

35  See  §  658.  Commissions  joint  Where  one  administrator  died  al- 
admrs. ;  Andress  vs.  Andress,  46  most  at  the  beginning  of  the  admln- 
N.  J.  Eq.  528 ;  Hill  vs.  Nelson,  1  istration,  and  the  survivor  did  sub- 
Deni.  (N;  Y.  )  357;  Matter  of  Har-  stantially  all  the  work  of  settling 
ris,  4  Dem.  (N.  Y. )  463;  Waddill  the  estate,  it  was  held  that  he  was 
vs.  Martin,  3  Ired.  Eq.  (38  N.  Car.)  entitled  to  the  entire  commissions, 
562 ;  Grand  vs.  Pride  1  Dev.  Eq.  to  the  exclusion  of  the  representa- 
(16  N.  Car.)  269;  Hodge  vs.  Haw-  live  of  the  deceased  executor.  Mar- 
kins,  1  Dev.  &  B.  St.  Eq.  564;  tin  vs.  Jones,  87  Md.  43,  distinguish- 
Walker's  Estate,  9  S.  &  R.  (Pa.)  ing  Richardson  vs.  Stansbury.  4  Har. 
223;  Stevenson's  Estate,  1  Pars.  Eq.  &  J.  (]\Id.)  275. 

Cas.   (Pa.)    18.  36  17  Am.  &  Eng.  Ency.  of  Law, 

See  also  Mount  vs.,  Slack,  39   N.  2nd  ed.  633. 

J.  Eq.  230;  45  N.  J.  Eq.  129.     The  See  §  645  et  seq.    Commission  of 

court  may  apportion  commissions  be-  Extrs. 
tween  coexecutors.    Meyers  vs.  Hop- 


173 


FOWEB   OF    COURT 


§208 


CHAPTER  XIV. 

REVOCATION  OF  LETTERS  —  RESIGNATION  AND 
REMOVAL. 


208  Power  of  co'irt — Nature  pro-  §219 

ceedings,   etc.  §  220 

209  Jurisdiction  to  revoke  letters. 

210  Resignation,    etc.  §221 

211  Kevocation   where   wrongfully  §222 

made.  §  223 

212  Form   of   resignation   and  en-  §  224 

try,  etc.  §  225 

213  Removal      of      executor      for  §  226 

cause,   etc.  §  227 

i  213a  Proceedings  after  removal.  ' 

i  214  Who     must     file     application,  $  229 

etc.  §  230 

i  215  Application.  j  231 
i  216  Form  of  application. 
i  217  Form    of    entry    for    hearing, 

etc.  §  232 
i  218  Notice,  etc. 


Form  of  notice. 

Causes  —  Habitual      drunken* 

ness. 
Gross  neglect  of  duty. 
Incompetency. 
Fraudulent  conduct. 
Removal  from   the  State. 
Unsettled  demands. 
Any  other  causes. 
Other  statutory  causes. 
Hearing  and  entry. 
Effect  of  order  of  removal. 
Acts  after  his  removal,  etc. 
Termination   of   authority  by 

completion   of   trust. 
Appeal  and  error.i  * 


§  208.     Power  of  court.      Nature  proceedings,  etc. 

As  the  Probate  Courts  of  tliis  State  are  courts  of  record,  com- 
petent to  decide  on  their  own  jurisdiction  and  exercise  it  to  final 
judgment,  and  their  records  import  absolute  verity;^  it 
follows  that  where  an  appointment  of  an  administrator  or 
executor  is  made,  however  erroneous  it  may  be,  it  could  not  be 
ignored  or  set  aside  except  by  the  court  that  made  it,  and  in  a 
direct  proceeding  for  that  purpose.  Although  some  courts  have 
held  that  if  a  Probate  Court  made  an  appointment  where  it  had 
no  jurisdiction  in  the  matter,  that  such  appointment  would  be 


i*See  §  1300  et  seq..  For  removal  i  Ry.  Co.  vs.   Belle  Center,  48   O. 

of  trustee.     See  §  1358,  For  removal  S.  273;  Astram  vs.  Ten  Eck,  28  Bull, 

of  gdn.     See  §   151,  Admr.  dc  bonis  265. 
non. 


§  209  RESIGNATION   AND   KE^MOVAL  174 

a  nullity,  and  that  another  court  having  jurisdiction  might 
make  a  valid  appointment  without  the  first  being  revoked.^ 

But  such,  it  occurs  to  me,  is  not  the  law  in  Ohio.  The  grant 
of  letters  of  administration  are  said  to  he  in  the  purest  sense 
proceedings  in  rem,  and  in  a  contest  for  the  right  of  administra- 
tion there  are  strictly  no  parties  plaintiff  or  defendant.  The 
applicants  are  all  actors,  some  of  whom  may  withdraw  and 
others  come  in  at  any  time  during  the  progress  of  the  cause, 
even  after  the  appeal.  Objections  to  the  grant  of  letters  will 
be  heard  from  any  person  claiming  to  be  interested.  If  his 
right  to  appear  is  disputed  the  question  will  be  decided  upon 
proof.  ^ 

The  authority  of  an  administrator  or  executor  to  act  may 
be  extinguished  in  a  number  of  ways.  First,  the  grant  may 
have  been  improperly  made,  as  for  instance,  if  made  in  the 
wrong  court  or  to  the  wrong  person,  or  if  granted  to  an  ad- 
ministrator when  there  was  an  existing  will,  or  an  administrator 
already  appointed,  or  for  a  living  person ;  second,  it  may  be 
terminated  by  a  voluntary  act,  that  is,  by  resignation  of  the  ad- 
ministrator or  by  deatli ;  third,  it  may  be  terminated  by  the 
removal  of  the  administrator  or  executor  for  cause  by  the  court ; 
fourth,  it  may  be  terminated  by  a  completion  of  the  adminis- 
tration. These  different  methods  will  be  treated  of  more  fully 
in  the  following  sections.* 

§  209.    Jurisdiction  to  revoke  letters. 

Among  the  matters  which  are  intrusted  to  the  exclusive  juris- 
diction of  the  Probate  Court  is  "To  grant  and  revoke  letters 
testamentary  and  of  administration."  ^  This  settles  beyond 
question  tliat  no  court  but  the  Probate  Court  can  exercise  juris- 
diction to  revoke  letters  of  administration ;  and  it  may  be  said 
further,  upon  the  principle  tliat  where  a  court  of  competent  ju- 
risdiction once  acquires  control  of  the  subject  matter  in  litiga* 

a  Woerner  on  Admin.  569.  trustee;    §    1359,  Removal  of  gdn.; 

s  Woerner  on  Admin.  565.  §  1558,  Removal  of  assignee. 

*  See  §  707,  Admr.  of  deceased  to  r,  §  ]^()492  q    C. 
file   account;    §    1301,    Removal    of 


175 


KESIGNATION 


§210 


tion,  that  it  will  retain  control  to  the  exclusion  of  every  other 
court.,  that  the  court  which  grants  the  letters  of  administration 
is  the  only  court  which  has  jurisdiction  to  revoke  them." 

The  mere  fact  of  a  will  being  set  aside,  in  a  suit  on  contest, 
will  not  vacate  tlie  order  appointing  an  administrator.' 

§  210.     Resignation,  etc. 

At  common  law  an  executor  could  not  resign  after  having 
accepted  the  trusty  nor  could  an  administrator;  and  it  is  said 
that  even  now  it  is  very  much  doubted  whetlier  an  administra- 
tor can  resign  if  the  court  declines  to  accept  the  resignation.^ 
This  matter  is,  however,  definitely  settled  in  Ohio  by  the  fol- 
lowing statute :  ^ 

"The  court  issuing  letters  testamentary  or  appointing  an  ad- 
ministrator, if  it  deems  fit,  upon  good  cause  shown,  may  receive 
the  resignation  of  such  executor  or  administrator,  and  appoint 
an  administrator  in  his  place."      [R.  S.   §  6015.]'' 


«  Formerly  neither  appeal  nor  er- 
ror would  lie  from  the  decision  of 
the  Probate  Judge.     §  24,  §  232. 

7  Sanker  vs.  Mattison,  20  C.  C. 
230;  11  C.  D.  125. 

A  note  given  for  the  purpose  of 
■ecuring  a  resignation  where  the 
trustee  is  subject  to  removal  for  mis- 
conduct, etc.,  is  without  considera- 
tion and  cannot  be  enforced.  With- 
ers vs.  Ewing,  46  0.  S.  400. 

8  Baier  vs.  Baier,  4  Dem.  162. 

9  §  10627  G.  C. 

A  testator,  domiciled  in  Mississip- 
pi, devised  his  entire  estate  to  C, 
his  heirs  and  assigns,  with  full 
power  to  dispose  of  the  same  and 
apply  the  proceeds  upon  specified 
trusts.  By  subsequent  clauses  he 
named  C.  co-executor  with  two  oth- 
ers, limiting  the  power  to  sell  and 
convey  to  C.  alone;  and  provided 
that  if  C.  should  die  or  should  "  re- 
fuse to  take  upon  himself  the  execu- 
tion of  the  will,"  C.'s  power  should 
pass  to  W.  C,  accepted  the  trust, 
was  qualified  as  executor  and  took 
upon  himself  the  execution  of  the 
will.    Afterward  he  executed  a  resJ«r- 


nation,  both  as  trustee  and  as  exec- 
utor, and  on  an  ex  parte  applica- 
tion, an  orphan's  court  in  Missis- 
sippi made  an  order  accepting  it, 
and  appointed  W.  his  successor.  No 
law  of  that  State  gave  power  to  any 
court,  upon  such  an  application,  to 
divest  a  trustee,  holding  title,  of  his 
powers  or  estate.  Soon  after  C. 
(who  did  not  convey  to  W.)  resumed 
action  as  trustee;  for  value  con- 
veyed part  of  the  Ohio  land  to  a 
hona  fide  purchaser,  received  the 
purchase  money,  and  placed  it  in  the 
hands  of  the  chief  executor,  who 
duly  applied  and  accounted  for  it. 
W.  never  acted  or  claimed  to  act  as 
to  the  land. 

Held:  1.  The  resignation  was  not 
such  a  "refusal  to  take  upon  him- 
self the  execution  of  the  will"  as 
transferred  title  to  W.  Veazie  vs. 
McGugin,  40  O.  S.  365. 

It  is  not  necessary  to  state  in  the 
entry  "that  the  removal  was  made 
that  the  court  deems  it  fit  and  upon 
good  cause  shown"  the  resignation 
is  received.  State  vs.  Moffit,  13  C. 
C.  (N.S.)  152,  169;  23  0.  C.  C.  238; 
affirmed,  no  opinion,  82  O.  S.  433. 


g  211  RESIGNATION   AND   KEMOVAL  l76 

§  211.     Revocation,  where  wrongfully  made. 

It  may  be  said  to  be  an  inherent  power  residing  in  every 
court  to  correct  an  error  which  it  may  have  committed.  Thus 
the  court  might  of  its  own  motion,  although  it  will  not  generally 
do  so,  set  aside  an  appointment  which  has  been  wrongfully 
made.  "  This  power,"  says  Judge  Gray,  "  does  not  make  tlie 
decree  of  the  Court  of  Probate  less  conclusive  in  any  other 
court  or  in  any  way  impair  probate  jurisdiction.  But  renders 
that  jurisdiction  more  complete  and  effectual."  ^^ 

Thus  where  an  appointment  was  made  without  notice  the 
same  was  on  motion  reheard  upon  the  application  of  an  inter- 
ested party  and  revoked/"  Also  where  letters  of  administra- 
tion had  been  granted  to  the  wrong  person,  a  motion  to  set  the 
same  aside  was  sustained.^^  Other  instances  of  the  exercise  of 
such  power  is  as  follows :  Such  as  issuing  them  in  the  wrong 
county,^*  or  when  the  alleged  decedent  is  alive ;  ^^  or,  in  the  case 
of  an  executor,  that  the  will  was  admitted  to  probate  through 
fraud,^®  or  that  a  later  will  should  be  admitted,^^  or  where  a 
will  had  been  previously  probated  and  overlooked,^^  or  discov- 
ered after  the  grant ;  ^^  even  a  foreign  will ;  ""  or  where  a  person 
not  preferred  is  appointed  before  the  expiration  of  tlie  time  dur- 
ing which  preference  is  given  by  the  statute  to  another,  where 
a  time  is  given  by  statute ;  ^^  or  where  there  is  no  estate  to  be 


2.  The  action  of  the  orphan's  court  i6  Hamberlin  vs.  Terry,   1   &m.   & 

did  not  affect  C.'s  powers  as  trus-  M.  Ch.  589. 

tee,  and  his  deed  was  valid.     Veazie  i^  Waters  vs.  Stickney,  12  Allen  1. 

vs.  McGugin,  40  O.  S.  365.  is  Watson  vs.  Glover,  77  Ala.  323. 

11  Waters   vs.    Stickney,    12   Allen  is  Edelen  vs.  Edelen,   10  Md.  52; 
1,  15.  Fatton's  Appeal,  31  Pa.  St.  465. 

12  In  re  McCreight.  6  N.  P.  479.  ^o  Dalrymple  vs.  Gamble,  66  Md. 

13  Todhunter  vs.  Stewart,  39  0.  S.  298. 

181.  21  Mills  vs.  Carter,  8  Blackf.  203; 

1*  Jeflfersonville     R.     R.     Co.     vs.  Skelly  vs.  Veerkamp.   30  Mo.   App. 

Swayne,   26    Ind.   477;    Croxton   vs.  49;  Mullanphy  vs.  County  Court,  6 

Renner,    103    Ind.    223;    Wilson   vs.  Mo.   563;    Dunham   vs.   Roberts,   27 

Frazier,  2  Humph.  30.  Ala.   701 ;   Public  Admr.  vs.   Peters, 

15  Donaldson  vs.  Lewis,  7  Mo.  App.  1  Bradf.  100;   Kerr  vs.  Kerr,  41  N. 

403.  Y.  272. 


177  FORM    OP   RESIGNATION  §  212 

administered,--  or  granted  to  a  person  disqualified,-^  as  to  a 
minor,-*  or  to  one  not  preferred,-''  or  where  an  administrator  de 
honis  non  is  appointed  before  there  is  a  vacancy  in  the  office.^® 
If  the  court  revoke  letters  of  administration  it  will  be  pre- 
sumed, until  the  contrary  appear,  that  the  same  court  granted 

them,-'' 

§  212.     Form  of  resignation  and  entry,  etc. 

As  a  general  rule,  the  administrator  wishing  to  resign,  will 
prepare  his  account  and  tender  his  resignation  with  the  filing  of  . 
such  account  by  writing  the  same  in  the  account.  If  for  some 
reason  it  was  desired  to  have  the  resignation  acted  upon  before 
the  filing  of  an  account,  or  the  passing  thereon  by  tlie  Probate 
Court,  such  resignation  might  be  made  in  open  Court;  but  it 
would  be  better  to  make  it  in  writing  and  the  following  might 
be  used  as  a  form : 

To  the  Honorable  Probate  Judge  of County,  Ohio: 

Dear  Sir: — Desiring  to  sever  my  connection  as  administrator  (or  execu- 
tor) of  the  estate  of  A.  B.,  I  hereby  tender  my  resignation  as  such  admin- 
istrator (or  executor)  and  beg  that  the  same  may  be  accepted  by  you. 

Sign. 

If  the  resignation  is  tendered  other  than  in*  the  account  filed 
the  following  might  be  used  as  a  form  of  entry  • 

This  day  came  A.  B.,  administrator  (or  executor)  of  C.  D.,  and  filed 
herein  his  written  resignation  of  said  trust  and  asks  that  the  same  be 
accepted  by  the  court;  and  the  same  appearing  to  be  for  the  best  interest 
of  all  concerned  the  said  resignation  is  accepted;  and  said  C,  D,  is  ordered 

to  file  his  account  of  his  administration  of  said  estate,  within 

days  in  this  court.2s 

22  Estate  of  Huckstep,  5  Mo.  App,  Slagle  vs.  Entrekin,  44  0.  S.  637. 
'    581 ;  Townsend  vs.  Pell,  3  Dem.  367.            The  receipt  of  the  resignation  and 

23  Koger  vs.  Franklin,  79  Ala,  appointment  will  be  sufficient,  al- 
50.5.  though   no   journal    entry   be   made 

24  Carow  vs  Morvatt,  2  E.  M,  Ch.  Johnson  vs.  Schwenk,  99  O.  S.  124, 
56.  See  S  227, 

25  Morgan  vs.  Dodge,  44  N.  H.  2.5-5.  The  authority  of  an  administrator 
2C  Creath  vs.  Brent,  3  Dana   130;        continues  until  terminated  by  one  of 

Griffith    vs.    Frazier,    S    Cranch    9;  the    methods    provided    by    statute. 

Springs  vs,  Erwin.  6  Ired.  L.  27.  Meyer  vs.  Watt,  48  0,  S,  545, 

27  State  vs.  Johnson,  7  Blackf.  He  is  not  liable  for  acts  after  hia 
520,  resignation  has  been  accepted.     Mc- 

28  By  accepting  resignation  the  Cullough  vs.  Moffitt,  23  O.  C.  C, 
Court  does  not  lose  jurisdiction  over  238;  13  0.  C,  C.  (N.S.)  152;  af- 
the  administrator  to  compel  him  to  firmed,  82  0.  S,  433, 

file  an  account. 


§  213  RESIGNATION    AND    KEMOVAL  178 

§  213.    Removal  of  executor  for  cause,  etc. 

The  third  method  of  extinguishing  an  administrator  or 
executor's  connection  with  the  estate  is  by  removal  for  cause, 
and  this  is  provided  for  in  the  following  provision  of  the 
General  Code: 

"The  probate  court  may  remove  any  executor  or  adminis- 
trator, he  having  not  less  than  five  daj^s'  notice  thereof,  for 
habitual  drunkenness,  gross  neglect  of  duty,  incompetency, 
fraudulent  conduct,  removal  from  the  state,  or  if  there  are  un- 
settled claims  or  demands  existing  between  him  and  the  estate, 
which  the  court  thinks  may  be  the  subject  of  controversy  or 
litigation  between  him  and  the  estate,  or  persons  interested 
therein,  or  for  any  other  cause  which  in  its  opinion  renders  it 
for  the  interest  of  the  estate  that  such  executor  or  administra- 
tor be  removed."     [R.  S.  §  6017 ;  102  v.  101.]  '^ 

§  213a.  Proceeding's  after  removal.  ' '  The  other  executor  or 
administrator,  if  any  there  be,  may  proceed  to  discharge  the  trust 
as  if  the  executor  or  administrator  so  removed  were  dead.  If 
there  be  no  other  executor  or  administrator  the  court  may  com- 
mit the  administration  of  the  estate  not  already  administered  to 
some  other  person  or  persons,  in  like  manner  as  if  the  executor 
or  administrator  so  removed  were  dead."  [R.  S.  §  6017.]-'** 

§  214.     Who  must  file  application,  etc. 

I  have  no  doubt  that  the  court,  may  of  its  own  motion  remove 
an  administrator  or  executor  for  cause,  just  as  well  as  it  may 
revoke  letters  of  administration  when  they  have  been  wrong- 
fully issued,  but  the  more  usual  practice  is  that  an  application 
should  be  filed  in  court  to  invoke  its  action  in  the  premises ;  and 
■while  our  statute  does  not  provide  that  the  application  shall  be 
made  by  a  party  in  interest,  yet  the  courts  have  frequently  held 
that  such  an  application  must  be  filed  by  a  party  in  interest,  and 
that  the  court  would  not  act  where  it  did  not  appear  that  the 
person  making  the  application  had  some  interest  in  the  matter.'" 

In  this  State  it  has  been  held  that  a  prosecuting  attorney  has 
sufficient  interest  to  file  an  application  for  removal  if  an  admin- 
istrator fails  or  refuses  to  file  an  inventory.'^ 

29  §  10620,  G.   C.  state.     It  leaves  the  matter   in  the 
29*  §  10630,  G.   C.  discretion  of  the  judge.     Seasongood 

30  See  Woerner  on  Admin.  581,  v.   Seasongood,   23   O.   C.   C.    (N.S.) 

31  See   In    re    Pickards,    5    X.  P.       369. 

493;  7  Dec.  476.  The    jurisdiction    of    the    Probate 

This  section  does  not  require  the  Court  is  exclusive.     Munger  vs.  Jef- 

court   to    remove    an    administrator  fries,  7  X.  P.  55:  10  Dec.  12. 
merely  because  he  moves  to  ano£lier 


179  APPLICATION  §  215 

A  creditor  who  is  entitled  to  the  letters  may  move  for  the  re- 
moval of  an  administrator  if  the  appointment  was  made  within 
the  time  he  had  priority  over  a  stranger.^^  So  one  injured  in 
the  maladministration  of  the  estate.^*  So  may  the  widow/* 
or  a  legatee  under  a  will  when  it  has  been  revoked  and  an  appeal 
taken,^^  or  a  legatee  or  his  assignee,^*^  or  sureties  conceiving 
themselves  in  danger  from  their  principal's  misconduct,^^  or 
any  of  the  heirs  of  the  estate,  especially  if  solvent.^^ 

Only  next  of  kin  may  ask  for  the  removal  of  an  administra- 
tor on  the  ground  that  he  is  not  the  next  of  kin.?^  And  if  one 
next  of  kin  yield  his  right  to  a  stranger,  he  may  not  thereafter 
revoke  his  consent  and  ask  for  a  removal/" 

An  administrator  whose  appointment  is  void  because  of  a 
former  appointment  may  not  .^sk  for  tlie  removal  of  such  prior 
appointee  on  the  ground  that  his  appointment  is  voidable.*^ 

An  illegitimate  son  cannot  ask  to  have  his  mother  removed 
as  administrator  of  his  putative  father's  estate  on  the  ground 
that  she  was  never  married  to  him,  for  he  has  no  interest  in 
the  estate.*^ 

The  natural  guardian  of  an  infant  legatee  cannot  apply  for 
a  removal,*^  nor  may  the  creditor  only  of  the  administrator.** 

§  216.     ADplication. 

It  has  been  a  common  practice  in  preparing  an  applicatiofi 
for  removal  of  the  administrator,  to  simply  set  out  the  words-  of 
the  statute  without  naming  in  detail  the  acts  that  are  alleged 

32  Ferris  vs.  Ferris,  89  111.  452.  39  Edmundson  vs.  Roberts,  1  How, 

33  Succession    of    Decuir,    23    La.       ^^^1^?;'  ^^^-   -r^.   ,    ,„  m        mr^ 

40  Cole  vs.  Dial,  12  Tex.  100. 
Ann.   166.  41  Coltart  vs.  Allen,  40  Ala.   155. 

34  Evans    vs.    Buchanan,    15    Ind.  42  Myatt  v.  Myatt,  44  111.  473. 
438;    Pace   vs.   Oppenheim,    12   Ind.  ^^  Quin  v.  Hill,  6  Dem.  39. 

'  44  Carroll  vs.   Hull,   21   La.   Ann. 

561 
35Newhou3e  vs.  Gale,  1  Redf.  217.  ^^  §  1514^  Procedure  for  removal 

36Yeaw  vs.    Searle,   2   R.   I.  164;  of   gdn. ;    §1563,   Procedure    for    re- 

Susz  vs.  Forst,  4  Dem.  346.  moval  of  assignee. 

,  -P  ,«-  If  the  administrator  is  insolvent, 

37  De  Lane's   Case,   2   Brev.  167;  ^^^  ^^^^^^  ^^  ^^.^  ^^^^  ^^jg,^^  ^^^^^^ 

Hardaway  vs.  Parham,  27  Miss.  103.        ]jjg   removal.     Yakev  vs.   Strunk,   7 

38  Reed  vs.  Crocker,  12  La.  Ann.       N.  P.  (N.S.)    177;   18  Dec.  734. 
445. 


§  216  RESIGNATION    AND   REMOVAL  180 

to  constitute  the  cause  for  removal.  In  a  very  able  opinion, 
Judge  Fisher,  of  the  Common  Pleas  Court,  held  that  under 
§  10629-30  of  the  General  Code,  an  application  for  the  removal  of 
an  administrator  or  executor,  must  state  the  facts  which  consti- 
tute the  alleged  causes  of  removal.  It  is  not  sufficient  to  charge 
mismanagement,  maladministration  or  misapplication  of  the 
funds  in  general  terms ;  and  that  it  v^as'  an  error  in  the  Probate 
Court  to  overrule  a  motion  to  maJie  more  definite  and  certain 
such  a  general  charge.*^  The  Court  further  held  in  this  ease, 
that  the  application  must  show  that  the  person  making  the  same 
has  an  interest  in  the  estate,  and  also  that  the  proceedings  are 
adversary  in  their  character.  From  this  decision,  which  was 
affirmed  by  the  Circuit  Court.,  and  which  I  have  no  doubt  states 
the  law  correctly,  it  will  be  necessary  to  set  out  in  detail  in  the 
application  for  removal,  sufficient  cause  to  make  out  a  prima 
facie  case.*® 

§  216.     Form  of  application. 

(Title.) 

Now  comes  the  said  A.  B.  and  represents  that  he  is  an  heir-at-law  of  the 
said  decedent,  C.  D..  and  legatee  under  the  will  of  the  said  C.  D.,  and  as 
such  is  interested  in  the  administration  of  the  estate  (or  if  the  party  is 
interested  in  any  other  way,  so  state),  and  he  further  represents  to  the 
court  that  the  said  E.  F.,  executor  of  the  said  C.  D.,  has  been  guilty  of  thi 
following  misconduct  in  the  management  of  said  estate,  to-wit: 

First,  That  he  has  been  guilty  of  gross  neglect  of  duty  in  the  settlement 
of  said  estate  in  the  following  way.  (Here  allege  any  of  the  matters  which 
in  a  subsequent  section  are  held  to  constitute  gross  neglect  of  duty. ) 

Second,  That  said  executor  is  wholly  and  duly  incompetent  to  settle 
said  estate.  (Here  allege  the  manner  which  it  is  claimed  will  constitute 
the  incompc?tency. ) 

Third,  That  said  executor  has  been  guilty  of  fraudulent  conduct  in  the 
settlement  of  said  estate.  (Here  allege  the  fact  upon  which  it  is  claimed 
the  fraudulent  conduct  rests.) 

Fourth,  That  there  are  unsettled  claims  existing  between  said  executoi 
and  the  decedent,  etc.  (Here  allege  in  what  manner  the  existence  of  such 
a  claim  would  be  a  good  ground  for  his  removal.) 

Fifth,  That  he  has  been  guilty  of  habitual  drunkenness.  (This  allegation 
might  be  sufficient  without  further  definiteness. ) 

Sixth,    That  said  executor  has  removed  from  the  State. 

Seventh.  ( It  might  be  further  alleged  whatever  matter  it  is  claimed  will 
be  sufficient  to  cause  his  removal.) 

45  Fox  Exrs.  vs.  Keister,  6  N.  P.  •*«  See    §  254,    Application    in   re- 

327:  8  Deo.  636:  9  Dec.  316.  lease  of  bondsman. 


181  NOTICE^  ETC.  §  217 

Wherefore  the  said  A.  B.  prays  that  a  notice  may  be  issued  to  said  E.  F., 
executor  of  said  C.  D.,  requiring  him  to  appear  in  this  court  and  answer 
said  charges  as  provided  by  law;  and  that  he  be  removed  from  said  trust. 

Sign. 

State  of  Ohio,     County,  ss. 

A.  B.,  being  first  duly  sworn,  says  that  the  allegations  of  his  above  appli- 
cation are  true,  as  he  verily  believes. 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day  of 

A.  D.  190.... 

§  217.     Form  of  entry  for  hearing,  etc. 

This  day  came  A.  B.  and  filed  herein  his  application  for  the  removal  of 
E.  F.,  executor  of  the  estate  of  said  C.  D. ;  and  the  same  is  set  for  hearing 

on   the day   of ,    at o'clock 

....M.  And  it  is  ordered  that  a  notice  of  the  said  application  and  the 
causes  therein  alleged  for  the  removal  of  said  E.  F.  and  the  time  of  hearing 
same  be  issued,  directed  to  (here  insert  name  of  person  who  is  to  serve  the 
same),  for  the  said  E.  F.  to  appear  in  this  court  at  the  time  the  said 
cause  is  set  for  hearing,  and  answer  the  same;  and  that  said  notice  be 
served  on  said  E.  F.  at  least  twenty  days  before  the  time  of  hearing  thereof. 

§  218.     Notice,  etc. 

Only  the  statute  providing  for  the  removal  of  an  adminis- 
trator or  executor  for  cause,  provides  that  notice  should  be  given 
to  the  executor  or  administrator.  But  if  an  application  or  mo- 
tion were  filed  to  tenninate  an  administrator  or  executor's  au- 
thority, by  reason  that  the  letters  were  wrongfully  issued,  a 
proper  practice  would  be  to  give  the  same  notice  as  is  required 
tinder  §  10629-30,  G.  C.  Of  course,  as  a  general  rule,  it  may  be 
said,  that  no  administrator  can  be  removed  unless  he  has  the 
notice  required  by  statute.*'^  It  will  be  observed  that  this  notice 
must  be  served  on  the  administrator  or  executor  at  least  five 
days  before  his  removal.  If  the  administrator  had  absconded 
and  gone  to  parts  unknown,  so  that  no  personal  service  could  be 
n:ade  on  him,  or  if  he  has  gone  beyond  the  jurisdiction  of  the 
court,  then  it  would  be  well  to  give  notice  by  publication.  The 
first  insertion  being  at  least  five  days  before  the  time  of 
hearing. 

47  Woerner  Admin.  575.  are  without  merit.     In  re  Breckin- 

The  constitution   of  a   motion   to  ridge   Est:,  7   C.  C.    (N.S.)    80;   27 

remove  an   executor   is  not   a   sum-  O.  C  C.  688. 

mary  and   ex  parte  proceeding,  but  See    as   to   notice  by   publication, 

one    in   which    the   executor    should  Netting  vs.  Strickland,  9  C.  D.  844; 

be  allowed  to  show  that  the  charges  18   0.  C   C.    136. 


§  219  RESIGNATION  AKD  REMOVAL  182 

§  219.    Ponn  of  notice. 

{Title.) 

To 

You  are  hereby  commanded  to  notify  E.  F.,  administrator  (or  executor) 

of  the  estate  of  C.  D..  that  on  the day  of 

an  application  was  filed  in  this  court  for  his  removal  from  said  trust, 
because  of  his  alleged  unlawful  acts  therein,  which  are  as  follows.  (Here 
state  and  set  out  in  detail  the  grounds  upon  which  the  removal  is  asked.) 

And  said  application  is  set  for  hearing  on  the day  of; 

A.    D.     190...,    at o'clock,    at    which 

time  it  is  ordered  that  said  E.  F.  will  appear  in  this  court  and  answer 
respecting  said  charges.  If  said  E.  F.  fails  to  appear  the  court  will  proceed 
to  hear  the  same  in  his  absence,  and  make  such  orders  as  the  facts  will 
justify. 

Witness  my  hand  and  seal  of  this  court,  on  this day  of 

Sign. 

Probate  Judge.** 

§  220.     Causes.     Habitual  drunkenness. 

The  drunkenness  contemplated  by  this  section  should  be  such 
habitual  indulgence  on  the  part  of  the  executor  or  administrator 
as  would  render  him  incapable  of  devoting  the  necessary  time 
and  the  proper  degree  of  attention  to  the  administration  of  the 
estate.'*^     But  the  proof  that  the  executor  or  administrator  ha5 
been  seen  intoxicated  from  time  to  time  is  not  sufficient.     Sur 
rogate  Tucker  held  the  statute  contemplated   "  habitual,   con 
tinned,  inveterate  and  irremediable  habits  of  drunkeniiess,  iu 
capacitating  him  for  the  transaction  of  business."  ^° 

48  This  notice  may  be  served  by  being  a  common  drunkard  can  bv 
any  party.  In  which  case  the  party  substantiated,  without  proving  tha<; 
making  the  services  should  make  an  ,,  j  ^  .  ,  , 
affidavit  on  the  back  of  the  original  ^^^  P^''^^'"  accused  of  it  has  been 
notice  of  the  time  and  manner  in  constantly  drunk  during  the  timi 
which  the  notice  was  made.  If  the  covered  by  the  complaint,  or  eve» 
notice  is  served  by  the  Sheriff  he  that  his  drunkenness  was  a  mattei 
Will  make  the  usual  return.  The  t  j  -i  mi  ■, 
original  notice  should  be  filed  with  °^  ^^''^  occurrence.  The  law  no- 
the  papers  and  made  a  part  of  the  where  undertakes  to  define  how 
record  of  the  case.  many  instances    of    intoxication,    in 

See   §  1568,  Removal  of  assignee.      „„„  „;..„„  4-;„„     v,   n  u    j  j       e 

49  See   Matter    of    Cadv.    36    Hun      ^""J  ^''^^  ^'™^'  '^^"  ^^  '^^''^'^  '"^- 
122;  affirmed  103  N.  Y.  678.  ficient  to  fix  upon  a  man  the  impu- 

50  Elmer  vs.  Kechele,  1  Redf.  472.      tation  of  being  a  common  drunkard. 
See   Collins    vs.    Collins,    22    Dec.      The  use  of  the  word  '  common '  im- 

345,   where   a    number   of   cases   are  ,      j.  j     -^    ,         , 

cited  and   quoted   from  as   to  what  P"""^    frequency,    and    it    has    been 

will    constitute    habitual     drunken-  ^^^^   'that   to   convict   a   man   upon 

iiess.  snc'h  a  charge,  it  must  be  shown  that 

In  Com.  vs.  McXamee,  112  Mass  he  is  an  habitual  drunkard."     P,vi- 
28o,    it    is    said:      'The    charge    of 


183  GROSS  NEGLECT  OF  DUTY  §  221 

§  221.     Gross  neglect  of  duty. 

Just  what  might  be  comprehended  within  the  phrase  "  gross 
neglect  of  duty,"  and  which  would  be  sufficient  to  remove  an  ad- 
ministrator or  executor,  has  not  been  passed  upon  by  our  courts. 
It  no  doubt  is  meant  to  include  acts  that  are  not  included  within 
the  meaning  of  habitual  drunkenness,  incompetency,  fraudulent 
conduct,  etc.  A  similar  phrase  is  used  in  the  divorce  laws  as 
a  cause  for  divorce,  and  there  it  has  been  held  that  gross  neglect 
of  duty  is  an  omission  or  forbearance  to  perform  those  duties 
imposed  by  the  marriage  relation.^^  So  it  may  be  said  that  a 
gross  neglect  of  duty  of  an  executor  or  administrator  in  the  ex- 
ecution of  his  trust  would  be  an  omission  or  forbearance  to  per- 
form those  duties  which  are  imposed  upon  him  by  the  law  of 
administration.  A  failure  to  properly  discharge  his  duties 
might  be  the  result  of  various  causes  depending  particularly 
upon  each  case;  and  what  will  constitute  a  failure  sufficient  to 
justify  a  removal  must  rest  largely  in  the  discretion  of  the 
Court.  The  first  object  that  should  always  be  kept  in  view  in 
the  administration  of  an  estate,  and  in  passing  upon  the  relation 
ji  an  administrator  or  executor  thereto,  is  that  the  estate  is  ad- 
ministered to  the  best  interest  of  all  concerned.     An  adminis- 


dence  of  habitual  intoxication  from  that    he    should    always    be    drunk, 

the  use  of  chloroform   held   not   to  Occasional   acts   of   drunkenness   do 

sustain  a  complaint  charging  a  per-  not  make  one  an  habitual  drunkard, 

son  with  being  a  "  common  drunk-  Nor  is  it  necessary  that  he  should 

ard."     Com.  vs.  Whitney,   11   Cush.  be    continually    in    an    intoxicated 

(Mass.)   477.  state.     A  man  may  be  an  habitual 

Ludwick  vs.  Com.,  18  Pa.  St.  172.  drunkard,  and  yet  be  sober  for  days 

Said  the  Court  in  this  case:     "To  and  weeks  together.     The  only  rule 

constitute  an  habitual  drunkard,  it  is,  has  he  a  fixed  habit  of  drunken- 

is  not  necessary  that  a  man  should  ness?     Was  he  habituated  to  intem- 

be  always  drunk.     It  is  impossible  perance    whenever    the    opportunity 

to  lay   down   any   fixed   rule  as   to  off"ered?     We  agree  that  a  man  who 

when    a    man    shall    be    deemed    a  is  intoxicated  or  drunk  one-half  his 

habitual  drunkard.     It  must  depend  time  is  an   habitual  drunkard,  and 

upon  the  decision  of  the  jury,   un-  should  be  pronounced  such." 

der  the  direction  of  the  Court.     It  See  §   1563,  Removal  assignee;   § 

may,  however,  be  safely  said,  that  1539,  Removal  guardian, 

to  bring  the  man  within  the  mean-  5i  Schwartz  vs.  Schwartz,  7  N.  P. 

ing  of  the  act  it   is   not  necessary  194;   6  Dec.   525. 


§  222  RESIGNATION  AND  REMOVAL  184 

trator  ought  not  to  be  removed,  and  the  Court  will  not  remove 
him,  for  a  trivial  cause,  but  if  the  surrounding  circumstances 
are  such,  no  matter  what  may  be  the  cause,  that  the  estate  will 
not  be  properly  administered,  such  executor  or  administrator 
has  lost  his  usefulness  to  the  trust,  and  his  connection  therewith 
ought  to  be  terminated.  A  court  should  bear  in  mind,  however, 
that  very  often  heirs  or  others  interested  in  an  estate  are  un- 
just and  wrong  in  their  criticisms  of  the  administrator  or  ex- 
ecutor/" 

The  New  York  statute  provides  that  improvidence  shall  be  a 
cause  of  removal,  and  it  is  said  that  the  improvidence  contem- 
plated by  this  section  is  that  want  of  care  or  foresight  in  the 
management  of  the  property  which  does  render,  or  would  be 
likely  to  render,  the  estate  and  effects  of  the  decedent  unsafe 
and  liable  to  be  lost  or  diminished.^^ 

§  222.     Incompetency. 

Whatever  would  be^  a  sufficient  ground  to  prevent  the  appoint- 
ment of  an  executor  or  administrator,  if  newly  discovered  or 

52  In    speaking    of    this    hostility,  quire  that  the  trustee  should  make 

etc.,    the    Court    in    the    matter    of  way  for  one  who  will   manage  the 

Havemeyer,  3  App.  Div.  N.  Y.  519,  estate   according   to   the   rules   pre- 

says :     "  But  when  this  condition  of  scribed  for  the  management  of  such 

hostility  between  those  interested  in  estates  and  who  will  act  in  sympa- 

an  estate  and  its  trustee  exists,  it  thy    with    the    beneficiaries    rather 

becomes      material      to      determine  than  in  hostility  to  them." 

whether  the  feeling  of  hostility  has  53  Matter  of  Cutting,  5  Dem.  456, 

been  caused  by  an  honest  endeavor  457,    citing    Coope    vs.    Lowerre,    1 

on  the  part  of  the  trustee  to  carry  Barb.  Ch.  45;   Goggshall  vs.  Green, 

out  his  trust  and   perform  his  du-  9  Hun  471;  McMahon  vs.  Harrison, 

ties,  in  opposing  the  wishes  of  the  6  N.  Y.  443 ;   Emerson  vs.   Bowers, 

beneficiaries  for  an  illegal  and  im-  14  N.  Y.  449;   O'Brien  vs.  Neubert, 

proper     disposition     of     the     trust  3  Dem.   156;   Blank  vs.  Morrison,  4 

funds,  or  whether  it  has  been  caused  Dem.  297 ;   McGregor  vs.  McGregor, 

by  an  attempt  of  the  trustee  to  man-  1  Keyes,  133;  Hayward  vs.  Place,  4 

age  the  estate  in  a  manner  not  au-  Dem.  487. 

thorized   by   law   or  by   the  will   of  Affirmed    in    Supreme   Court   and 

the  testator  from  whom  he  received  Court  of  Appeals, 

his  authority  to  act.     If  the  latter  See  §  1302,  Causes  for  removal  of 

appears,  we  think  that  the  interests  trustee, 

of  those  concerned  in  the  estate  re-  gee   115,   who   may  be  appointed. 


185  FRAUDULENT  CONDUCT  §  223 

created,  would  be  svifficient  to  remove  him  after  the  appointment 
is  made.  As  this  matter  of  incompetency  has  been  gone  into 
rather  fully  in  the  chapters  relating  to  the  appointment  of  ad- 
ministrators and  executors,  for  further  investigation  as  to  who 
may  be  considered  incompetent,  reference  thereto  will  be 
made.'* 

Incompetency  may  be  used  as  synonymous  to  unfitness,  which 
has  been  defined  as  implying  no  want  of  capacity  or  mental  in- 
firmity, but  unfitness  arising  out  of  the  situation  of  the  person 
in  connection  with  the  estate  of  which  he  is  administrator,  by 
reason  of  being  indebted  to  it,  or  having  claims  upon  it,  or  in 
the  interest  he  has  under  a  will,  or  his  situation  as  an  heir  at 
law." 

A  specification  of  incompetency  will  not  be  supported  by 
proof  that  an  administrator  could  neither  read  nor  write.  The 
Court  said :  "  This  qualification  would  be  very  useful,  but  we 
cannot  deem  it  absolutely  essential.  Such  persons  possess 
neveilJieless  very  considerable  business  capacity."  ^® 

§  223.    Fraudulent  conduct. 

Fraudulent  conduct  means  dishonest  conduct.  If  there  is 
one  thing  above  another  which  a  court  will  demand  from  a  per- 
son acting  in  a  fiduciary  capacity,  it  is  that  of  absolute  honesty. 
If  an  administrator  is  shown  to  have  been  dishonest  in  any  of 
his  dealings  in  any  matter  concerning  the  welfare  of  the  estate, 
the  Court  ought  to  have  no  hesitation  in  removing  him.  Just 
what  conduct  on  the  part  of  the  administrator  or  executor  would 
constitute  fraudulent  conduct  is  difficult  to  determine,  for  the 
manifold  ways  of  committing  fraud  are  as  various  and  wide  a« 
the  ingenuity  of  man.  An  act  may  be  unlawful  and  not  fraud- 
ulent; thus  where  an  executor  vdth  the  knowledge  of  all  inter- 
ested parties,  bid  in  property  at  a  sale  of  his  own  as  such 
executor  at  a  fair  price,  it  would  not  be  such  fraudulent  con- 
duct so  as  to  justify  his  removal.'^ 

54  See  §§   81,   115.  57  Fox  vs.  Keister,  6  N.  P.  327;  0 

55  Thayer  vs.  Homer,  11  Mete.  104.       Dec.  316. 
58  Gregg  vs.  Wilson,  24  Ind.   227. 

See  §  1302. 


§  224  RESIGNATION  AND  KEMOVAL  186 

Likewise  there  might  be  many  other  acts  done  by  the  executor 
or  administrator  which  are  not  strictly  within  the  letter  of  the 
law,  but  which,  if  done  honestly  and  openly,  would  not  justify 
the  court  in  ordering  his  removal/* 

§  224.     Removal  from  the  State. 

Removal  from  the  State  is  made  a  cause  to  justify  the  Court 
in  removing  an  administrator  or  executor.  The  mere  fact  that 
the  executor  or  administrator  removes  from  the  State  will  not 
be  sufficient  to  compel  the  court  to  remove  him.  It  is  a  mat- 
ter largely  in  the  discretion  of  the  court,  and  if  the  interests  of 
the  estate  will  be  best  subserved  by  continuing  the  administrator 
or  executor  he  will  not  be  removed.^^  Generally  it  may  be  said 
that  it  is  no  excuse  that  he  had  gone  to  another  State  because 
the  greater  part  of  the  decedent's  estate  was  there  situated  and 
he  could  better  administer  it  there.®" 

The  fact  of  becoming  a  non-resident  does  not  of  itself  vacate 
the  office,  for  that  requires  the  judgment  of  the  court/ ^ 

If  an  administrator  becomes  a  soldier  by  joining  the  regular 
army  he  disqualifies  himself  to  act  and  may  be  removed.®^ 

§  225.     Unsettled  demands. 

It  is  not  every  claim  that  an  executor  or  administrator  may 
have  against  an  estate  that  will  justify  his  removal,  for  §  6100 
fully  recognizes  that  such  claim  may  be  settled  without  a  re^ 
moval  of  the  executor  or  administrator,^^ 

There  it  is  provided  that  the  court  must  pass  upon  the  claim 
of  an  executor  or  administrator  and  all  interested  persons  made 
parties,  and  the  same  may  be  appealed  to  the  Court  of  Common 

fis  Woerner  on  Admin.  575.  pointment,  that  if  the  estate  is  such 

B9  Cutler  vs.  Howard,  9  Wis.  309 ;  that  it  needs  his  care  and  attention 

Scott  vs.  Lawson,   10  La.  Ann.  547.  to  any  extent,  the  Court  should  ex- 

60  Ewing  vs.  Ewing,  38  Ind.  390.  ercise  its  power  of  removal. 

61  State  vs.  Rucker,  59  Mo.  17.  See   §    1302. 

62  Berry  vs.  Bellows,  30  Ark.  198;  «  See  §  631  et  seq. 

Hebert  vs.  Jackson.  28  La.  Ann.  377.  As  to   what   will   constitute   suffi- 

As  a  general  rule  it  may  be  said,  cient   ground   to   remove,    see  In  re 

that  if  an  executor  or  administrator  Breckinridge    Est.,    7    C.    C.    (N.S.) 

takes   himself   beyond   the   jurisdic-  SG;    17  Cir.  D.  CSS,  column  687;   27 

tion   of   the   court   making   the   ap-  0.  C.  C.  688. 


187  ANY    OTHEK    CAUSE  §  226 

Pleas  by  any  person  who  is  aggrieved  by  the  decision  of  the 
Probate  Court.  The  law  of  this  State  further  being,  that  if  the 
executor  or  administrator  owed  the  estate  anything,  that  the 
same  becomes  assets  in  his  hands  for  which  he  is  liable  on  his 
bond.  As  it  is  never  to  be  presumed  that  a  law  is  made  with- 
out purpose,  we  must  conclude  therefore  that  there  can  exist  a 
condition  of  affairs  over  unsettled  demands  existing  between  the 
estate  and  the  executor  or  administrator  which  will  justify  the 
court  in  ordering  his  removal.  If  there  are  such  claims  exist- 
ing as  will  prevent  a  proper  administration  of  the  estate,  the 
executor  or  administrator  ought  to  be  removed,  but  the  mere 
fact  of  the  existence  of  certain  claims  will  not  be  sufficient.^^ 

§  226.    Any  other  causes. 

If  sufficient  cause  for  removal  cannot  be  found  to  exist  under 
the  above  mentioned  causes,  the  court  will  certainly  have  power, 
where  there  is  a  wrongful  or  injurious  administration  of  the 
estate,  to  remove  the  executor  or  administrator  under  the  desig- 
nation, or  any  other  cause  which  in  the  opinion  of  such  court 
renders  it  not  for  the  interest  of  the  estate  that  such  executor  or 
administrator  he  removed.  The  Masachusetts  statute,  from 
which  State  it  is  said  we  have  received  most  of  our  probate  law, 
had  an  almost  similar  omnibus  clause,  about  which  Justice 
Parker  says :  "  The  statute  gives  a  very  broad  discretion  to  the 
judge,  evidently  intended  not  to  define  or  limit  the  disabilitiea 
which  should  be  the  cause  of  removal,  but  to  leave  room  for  ap- 
plication of  the  power  to  all  causes  which  may  occur  to  render 
execution  of  the  will  or  administration  of  an  estate  too  per- 
plex." «« 

As  a  cause  for  removal  it  has  been  held  to  be  sufficient  that 

«5  In  re  Worthjngton,  5  N.  P.  63 ;  charge  the   administrator's   account 

6  Dec.  524.           '  in  Probate  Court." 

"  The    Court,"    says    Woerner,     §  Fisher,  J.,  in  Fox,  Extr.,  vs.  Keis- 

271,  "will  not  remove  an  adminis-  ter,  6  N.  P.  327;  9  Dec.  316. 

trator  regularly  appointed,  upon  the  See  §  1302. 

suggestion  of  a  party  who  was  privy  <»8  Winship  vs.  Bass,  12  Mass.  199. 

to  the  appointment,  that  the  admin-  The  clause  cited  in  In  re  Schon- 

istrator    is    indebted    to    the    estate,  aker,  55  Bull.  7S.     In  this  case  it  is 

which   is  denied  by  the  administra-  licld  that  where  a  will   is  contested 

tor;  the  proper  remedy  being  to  sur-  and  broken,  the  duties  of  an  admin- 
istrator with  the  will  annexed  cease. 


§  226  RESIGNATION  AND  REMOVAL  188 

at  time  of  instituting  the  proceeding  there  was  and  still  con- 
tinues to  be  acrmionious  and  hostile  feeling  between,  aji  execu- 
tor and  testator's  widow,  and  also  a  legatee,  which  intercepts 
and  prevents  such  managing  and  husbanding  of  the  estate  as 
prudence,  sound  policy  and  interest  of  the  devisees  and  cred- 
itors require. ^^ 

A  failure  to  keep  proper  accounts  may  be  sufficient  for  a  re- 
moval.*® 

A  refusal  to  obey  an  order  of  court  is  sufficient  to  justify  the 
removal  of  an  administrator.^'* 

He  may  be  removed  if  he  has  committed  waste,  is  wasting  or 
squandering  the  estate,^**  or  is  neglecting  or  mismanaging  it,^^ 
or  make  improper  investments  or  mingles  the  trusts  funds  ^vith 
his  own  if  connected  with  other  acts  of  neglect,^'  or  converts  the 
assets  to  his  own  use,'^  or  is  gTiilty  of  gross  carelessness  in  its 
management,'*  or  fails  to  redeem  property  on  request  made,''* 
or  gives  miauthorized  preferences  (perhaps),^^  or  has  allowed 
a  fraudulent  claim,"^  or  conveys  assets  of  the  estate  to  his  sure- 
ties to  indemnify  them,'^  or  fails  to  perform  the  duties  of  his 
trust.'" 

67  Estate  of  Pike,  45  Wis.  391;  1  ^i  Lucich  vs.  Medin,  3  Nev.  81; 
Prob.  Rep.  332.  In  this  case  it  is  Travis  vs.  Insley,  28  La.  Ann.  784; 
said  that  a  quarrel  between  an  ex-  Fernbacher  vs.  Fernbacher,  4  Dem. 
eeutor  and  devisee  or  legatee  is  not  227;  S.  C.  17  Abb.  N.  C.  339;  Gray 
in  every  case  a  cause  for  removal  of  vs.  Gray,  39  N.  J.  Eq.  332. 

an    executor.      The    blame    of    such  '^'^In  re  Simon's  Estate,   155  Pa. 

may  rest  entirely  on  the  devisee  or  St.  215;  S.  C.  26  Atl.  Rep.  424. 

legatee   and    its   existence   may   not  73  Gibson   vs.   Maxwell,    11    S.   E. 

endanger  the  interests  of  any  one  or  Rep.  615. 

interfere  in  the  least  with  the  prop-  7*  Rogers    vs.    Morrison,    21    La. 

er  execution  of  the  trust.     In  such  Ann.    455;    Reynolds    vs.    Zink,    27 

a  case  if  the  executor  performs  his  Gratt.  29. 

duties  it  would  or  might  be  an  abuse  73  Glines  vs.  Weeks,  137  Mass.  547. 

to  remove  him.  76  Foltz  vs.  Prouse,  17  111.  487. 

68  In  re  Simon's  Estate,  155  Pa.  77  Owens  vs.  Link,  48  Mo.  App. 
5)t.  215;  S.  C.  26  Atl.  Rep.  424.  534, 

69  Wright  vs.  McNatt,  49  Tex.  425.  78  Fleet  vs.  Simmons,  3  Dem.  542. 
Such  as  filing  an  account  or  giv-  79  Marsh  vs.   People,    15   111.   284; 

K^i'TIs?'''     "^'^""^  ^^"  ^^''^'^^^'^'  Chew  vs.  Chew,  3  Grant  Cas.  289; 

""vo'x^wcomb  vs.  Williams.  9  Met.  Wildridge  vs.   Patterson,    15   Mass. 

525;    Emerson  vs.  Bowers,  14  Barb.  148. 
658. 


189  STATUTORY    CAUSES  §  227 

§  227.     Other  statutory  causes. 

In  addition  to  the  matter  specified  in  §  10629-30,  G.  C,  there 
are  a  number  of  other  statutory  causes  for  the  removal  of  an  ad- 
ministrator or  executor.  Thus  he  may  be  removed  if  he  fails 
to  file  an  inventory,***  or  if  he  neglects  and  refuses  to  return  a 
sale  bill  within  the  time  required  by  law,^^  or  if  he  neglects  to 
file  his  account.*^ 

Likewise  if  he  is  ordered  to  give  a  new  bond  and  he  fails  to  do 
so  within  the  time  required^^  Also  if  he  is  required  by  court 
to  give  a  bond  of  indemnity  to  his  sureties  and  he  fails  to  do  so 
he  may  be  removed.** 

In  all  of  these  specified  causes  the  party  having  failed  to  com- 
ply with  the  statutory  provisions  and  the  Court  mights,  perhaps, 
after  having  given  him  the  order  to  do  a  certain  act,  remove  the 
executor  or  administrator  without  a  further  hearing;  but  the 
better  practice  would  be  to  file  an  application  for  his  removal 
the  same  as  in  any  other  case.  In  addition  to  these  specified 
causes  for  removal,  if  the  administrator  refuses  and  neglects  to 
perform  any  other  order  given  by  the  court  or  required  by  stat- 
ute, such  as  the  giving  of  bond,  etc.,  he  may  be  removed. 

§  228.     Hearing  and  entry. 

On  the  day  set  for  hearing,  proof  of  service  of  notice  should 
be  filed  in  the  case  and  the  evidence  should  be  heard  in  like 
manner  as  in  any  trial ;  and  if  the  charges  are  not  sustained  a 
very  short  entry  of  dismissal  will  be  sufficient.  If  sustained 
the  following  form  may  be  used: 

{Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  application  of  A.  B., 
filed  herein  for  the  removal  of  E.  F.,  executor  of  the  estate  of  said  C.  D. ; 
and  it  appearing  to  the  court  that  said  E.  F.  hai?  had  due  and  legal  notice 
of  this  proceeding  and  the  time  of  hearing  thereon  as  required  by  law  (and 
if  such  be  the  fact,  state;  and  the  said  E.  F.  being  now  here  in  court),  and 
the  said  cause  came  on  for  hearing  and  was  submitted  to  the  court  upon  the 

80  See  §  infifiO  G.  C,  §  306.  Application    for   removal    and   re- 

81  See  §10711   G.  C,  §491.  covery   of   concealed   assets   may   be 

82  See  §  10«2.'5  G.  C,  §  709.  joined    in    one    action.      Harris    vs. 

83  See  §  10S66  G.  C,  §  2.52.  Westervels,    15   C.   C.  534;    8   C.   D. 

84  See  §  10867  G.  C,  §  253.  368. 


§229  BESIGNATION   AND  BEMOVAL  190 

said  application  and  the  testimony  of  divers  witnesses;  and  was  argued  to 
the  court  by  counsel,  whereupon  the  court  finds  that  the  said  E.  F.  has 
been  guilty  of  ( here  insert  the  ground  of  removal  alleged  in  the  application, 
which  the  court  finds  to  be  true),  and  orders  that  the  said  E.  F.  be  removed 

as  executor  of  the  estate  of  the  said  C.  D.,  and  that  within days 

he  file  a  full  account  of  his  administration  of  said  estate,  in  this  court  as 

required  by  law,  and  the  costs  of  this  proceeding,  $ are  taxed 

against ,   and   judgment   for   said 

sum,  $ ,  the  costs  herein,  is  rendered  against 86 

§  229.    Effect  of  order  of  removal. 

The  removal  authorizes  the  administratar  de  bonis  non  to  im- 
mediately take  possession  of  all  the  effects  of  the  deceased,  and 
bring  suit  for  that  purpose.^® 

The  removal  of  one  administrator  and  the  appointment  of 
another  to  supersede  him  is  a  judicial  proceeding  of  sufficient 
notoriety  and  all  connected  therewith  are  bound  to  take  notice 
of  it.«' 

Where  an  obligor  is  appointed  administrator  of  the  obligee 
the  debt  is  not  thereby  extinguished,  but  is  merely  suspended 
and  the  debts  become  assets  in  the  hands  of  the  obligor  as  ad- 
ministrator.*^ 

By  accepting  the  resignation  of  an  administrator  pending 
the  settlement  of  his  accounts,  the  Probate  Court  does  not  there- 
by lose  its  jurisdiction  over  his  person  or  the  settlement  of  his 
accounts,  and  may  proceed  to  hear  and  determine  exceptions 
thereto,  and  ascertain  the  amount  due  from  him  to  the  estate, 
in  like  manner  as  if  he  had  continued  in  the  execution  of  his 
trust;  and  the  amount  so  found  due  will,  in  the  absence  of 
fraud  and  collusion,  be  conclusive  not  only  upon  him  but  upon 
his  sureties,  in  an  action  upon  the  administration  bond,  unless 
an  appeal  has  been  taken  or  the  judgment  has  been  reversed 
upon  a  proceeding  in  error.** 

8B  See  §  10624  G.   C.  Since  the   above  was  written  the 

86  See  §  157 ;  Admrs.  of  Pitcher  Supreme  Court  has  expressly  de- 
vs.   Reese,  6  0.  418    (176).  cided    in    accordance    with    the    au- 

87  Treasurer  vs.  McElvain,  5  0.  thor's  views,  and  that  the  court  does 
200.  not  lose  jurisdiction  over  him  until 

88  Bigelow  vs.   Bigelow,  4  0.    138.  his    account     is    filed    and    settled, 

89  In  a  recent  case  it  was  held  notwithstanding  the  fact  that  the 
that  the  Probate  Court  has  no  juris-  court  may  have  made  an  order  of 
diction  to  compel  an  administrator  removal.  In  re  Morrison,  68  O.  S. 
to  file  his  account  after  he  has  been  252. 

removed.       If    this    is    the    law    it  In  re  Miller,  8  N.  P.  385. 

ought  not  to  be,  and  I  doubt  if  it  is.  See  James  vs.  West.  47  Bull..  857, 

The   removal    is   not   complete    until  where   the   practice  of  filing   an  ao- 

the  account  is  filed.  count   after    removal   was   followed. 


191  ACTS   AFTER  REMOVAL  §  230 

Where  upon  the  settlement  of  the  accounts  of  an  administra- 
tor or  executor,  who  has  resigned  or  been  removed,  the  amount 
due  from  him  to  the  estate  has  been  ascertained  and  determined 
by  the  Probate  Court,  it  is  not  error  in  the  court,  to  order  its 
payment  to  his  successor  in  the  administration  of  the  estate.^" 

As  to  the  effect  of  the  resignation  the  statute  provides  as  fol- 
lows : 


"The  acceptance  of  such  resignation,  and  the  appointment 
of  another  administrator,  shall  not  affect  tlie  liability  of  the 
former  executor  or  administrator,  or  his  sureties,  previously  in- 
curred."    [R.  S.  §  6016.  ]«i 

§  230.     Acts  after  Ms  removal,  etc. 

After  the  removal  of  an  executor  or  administrator  he  has 
nothing  to  do  except  to  turn  over  all  property  in  his  hands  and 
file  his  final  report-.     All  other  acts  are  invalid.^^ 

If  the  executorship  is  terminated  by  death,  his  successor  must 
within  six  months  file  an  account.  As  a  matter  of  course,  hav- 
ing no  control  over  the  estate,  the  removed  administrator  or  ex- 
ecutor will  not  be  liable  for  any  act  affecting  the  estate  after  his 
removal.'*^ 

If  a  suit  be  pending  against  him  in  his  representative  capac- 
ity he  may  plead  his  removal  and  his  successor  must  be  substi- 
tuted.'* 

All  sales  made  and  all  acts  done  in  good  faith  by  an  executor 
or  administrator  previous  to  his  removal  are  valid.'^ 

The  removal  terminates  the  authority  of  the  removed  admin- 
istrator, over  the  assets  received  as  well  as  those  not  received.® 

See  In  re  Morrison's  Est.,  8  N.  P.  If    the    court    refuses    to    remove 

385.  him    and    an    appeal    is    taken,    his 

90  Slagle  vs.  Entrekin,  44  0.  S.  authority  continues  until  the  appeal 
637;  Woerner  58!).  is  heard.     Melanpy  vs.   B.  &  L.,   13 

91  §  10628  G.  C.  Dec.  192. 

92  0\von«  vs.  Cowan,  7  B.  Mon.  The  resignation  can  take  effect 
152;  Stubhlefield  vs.  McRaven,  5  even  though  no  other  administrator 
Sm.  &  M.  130.  is  appointed.     State  vs.  Moffitt,   13 

93  Marsh  vs.  People,  15  111.  284.  C.  C.   (N.S.)    152,  159. 

94  National  Bank  vs.  Stanton,  116  If  tlie  administrator  is  discharged 
Mass.  "435.  t^ie  mere  fact  that  he  permits  a  suit 

95  §  6021  Pv.  S.,  §  159,  Sales  of  against  the  estate  to  be  continued 
former  executor,  etc.  will    not   be   sufficient   to    hold    him 

See  §  160,  Notice,  bonds,  etc.  responsible.     State  vs.  Moffitt,  33  O. 

See  §95,  Power  during  contest.  C.  C.  230;    13  0.  C.  C.    (N.S.)    152; 

96  Weaver  vs.  Reese,  6  O.  421.  affirmed,  82  O.  S.  433. 


§  231  EESIGNATION  AND   REMOVAL  192 

§  231.     Termination  of  authority  by  completion  of  trust. 

The  object  and  purpose  of  the  appointment  of  an  executor 
or  administrator  having  been  accomplished,  as  a  matter  of 
course,  his  authority  terminates,  but  unless  it  is  terminated  by 
one  of  the  modes  provided  by  statute  it  continues  until  the 
estate  is  fully  settled.  Where  an  administrator  files  what  pur- 
ports to  be  his  final  account  in  Probate  Court,  and  the  court 
having  found  upon  the  hearing  of  the  account  that  the  executx)r 
had  w^ell  and  faithfully  discharged  his  duties  and  paid  out  to  the 
proper  person  or  persons  all  moneys  in  his  possession  as  execu- 
tor ;  and  further  ordered  that  the  account  be  made  final  and  that 
said  executor  be  discharged  from  his  trust,  that  he  distribute 
among  legatees  and  distributees  of  the  estate  of  the  decedent 
all  of  the  uncollected  assets  of  said  estate.  It  was  held  that  this 
was  not  such  a  finding  as  would  prevent  the  administrator  from 
proceeding  to  convert  uncollected  choses  in  action  of  said  estate 
into  money.®^ 

The  Court  says :  "  The  primary  duty  of  the  executor  wilsh 
respect  to  the  choses  in  action  is  to  collect  them,  and  he  is  re- 
lieved of  that  duty  only  when  he  has  otherwise  disposed  of  them 
in  one  of  the  modes  above  mentioned.  It  is  not  shown  by  the 
record  that  the  executor  had  disposed  of  the  note  sued  on  by 
him.  He  had  not  distributed  to  anyone  entitled  to  its  proceeds, 
nor  had  any  distributee  of  the  estate  agreed  to  receive  it,  nor 
had  he  sold  it,  or  filed  it  with  tlie  Probate  Court  for  creditors 
or  distributees.  On  the  contrary,  it  appears  that  he  still  re- 
tained the  note  and  his  duty  remained  as  long  as  he  continued 
to  be  executor  to  collect  the  same  by  suit  or  otherwise,  and  ac- 
count for  the  proceeds.  In  a  settlement  made  when  that  is  done, 
whatever  he  or  the  Probate  Court  may  call  it,  is  not  his  final 
settlement."^* 

Discussing  the  order  made  in  this  case,  the  Court  further 
says :  "  But  we  find  no  power  conferred  upon  that  court  to 
discharge  an  executor  or  administrator  from  his  trust  upon  the 
settlement  of  what  is  called  a  final  account,  thus  extinguishing 

»7  Weyer  vs.  Watt,  48  0.  S.  546.  97*  id.  550. 


193  APPEAL  AND  EKROR  §  2o2 

his  authority  as  trustee.  Unless  therefore  the  order  of  the  Pro- 
bate Court  operated  as  a  removal  of  the  plaintiff  from  his  trust 
or  as  a  resignation  of  it  by  him,  his  authority  as  executor  con- 
tinued notwithstanding  the  order."  From  this  authority  it 
may  be  said  that  the  usual  order  made  in  the  Probate  Court 
upon  tlie  filing  of  what  purports  to  be  a  final  account  in  which 
it  is  generally  stated  that  an  account  is  approved  and  that  there 

is  balance  in  the  hands  of  the  executor  of  dollars, 

which  he  is  ordered  to  distribute  according  to  law,  etc.,  will  not 
release  such  administrator  or  executor  if  there  are  still  out- 
standing assets  to  be  administered  upon ;  and  if  such  executor 
wishes  to  be  released  in  such  a  case  he  should  tender  his  resigna- 
tion witli  the  filing  of  his  account,  for  in  such  a  way  can  he  only 
surrender  his  authority,  unless  removed  for  cause,  before  the 
trust  is  completely  administered.®^ 

§  232.     Appeal  and  error. 

The  question  whether  the  decision  of  tlie  Probate  Court,  in 
the  matter  of  removing  an  administrator  is  subject  to  review  by 
a  higher  court  in  the  nature  of  an  appeal  or  proceedings  in  error 
has  been  of  sufficient  uncertainty  to  reach  the  Supreme  Court. 
In  re  estate  of  Samuel  Stell,^^  it  was  held  that  an  appeal  will 
not  lie  to  the  Court  of  Common  Pleas  from  the  order  of  the 
Probate  Court  removing  an  administrator. 

The  same  question  came  before  the  court  again  in  the  case  of 

98  An    administrator    is    not    dis-  McCIaskey    vs.    Barr    (Ohio),    79 

charged    from    his    trust    until    full  Fed.     408;      Fewlass     vs.     Keeshan 

administration  is  accomplished,  and  (Ohio),  88  Fed.  573. 

therefore  an  administrator  was  not  See  Hicks  vs.  Stone,   11  Bull.  67. 

discharged  by  filing  in  the  Probate  See  §  798,  Order  of  discharge. 

Court    a    written    statement    under  99  15  Q.  S.  484. 

oath  that  no  assets  had  ever  come  Statute  as  amended  specifically  al- 

into  his  hands  as  administrator;  lows  appeal.  See  §  39.  95  v.  416- 
and  that  no  claim  of  any  kind  had 

ever  been  presented  to  him,  except-  §  11043  G.  C. 

ing  such  as  had  been  fully  paid  by  When  an  appeal  has  been  taken 
the  widow,  and  that  having  received  from  a  motion  to  remove  an  admin- 
no  funds  as  administrator  and  hav-  istrator,  this  does  not  affect  the 
ing  paid  out  nothing,  he  filed  the  right  of  the  administrator  to  act, 
statement  under  oath  as  his  final  and  he  can  collect  a  judgment  pend- 
account  as  administrator  and  for  ing  the  appeal.  Melanpy  vs.  B.  &  L., 
the  discharge  of  his  trust.  13  Dec.  192. 


§  232  EESIGNATION  AND  REMOVAL  194 

Ebersole  vs.  Schiller/'"'  when  the  court  again  held  that  there  is 
no  right  of  appeal  to  the  Court  of  Common  Pleas  from  the  Pro- 
bate Court,  reviewing  tlie  removal  of  an  administrator. 
Whether  or  not  the  proceedings  in  error  would  lie  has  been  a 
matter  of  some  doubt/°°* 

In  the  case  of  Fox  vs.  Kiester/°^  it  was  held  that  the  order  of 
the  Probate  Court  in  removing  an  executor  or  administrator  is 
an  order  affecting  a  substantial  right  made  in  a  special  proceed- 
ing and  may  be  reviewed  on  error  on  application  to  the  Court 
of  Common  Pleas. 

This  decision  was  affirmed  bv  the  Circuit  Court. ^°^ 

But  in  quite  a  recent  decision  in  the  Supreme  Court  ^°^  it  was 
held  that  an  order  of  the  Probate  Court  removing  an  executor 
is  not  a  subject  to  be  reviewed  on  petition  in  error  in  the  Court 
of  Common  Pleas. 

The  Court  expresses  itself  very  briefly,  but  it  says :  "  A  con- 
clusion reached  in  the  Common  Pleas  and  Circuit  Courts  that 
an  order  of  the  Probate  Court,  removing  an  executor,  is  not 
subject  to  review  on  petition  in  error,  is  justified  by  the  section 
(6017)  of  the  statute  as  well  as  by  the  views  which  this  court 
has  heretofore  expressed  upon  tlie  general  subject."  ^°* 

100  50     O.     S.     701 ;     Perrine     vs.  turb  a  finding  of  the  Probate  Court 

Printz,  Dayton  65.  to  the  effect  that  the  next  of  kin  is 

100*  The  law  as  amended    ( 1902 ) ,  "evidently   unsuitable,"  or  that  the 

95  V.  392,   §  12241    G.   C,   §  52,  pro-  applying    creditor    is     incompetent, 

vides  that  error  may  be  prosecuted.  within  the  meaning  of  §  6005,  R.  S., 

1016  X.  P.  210;  S  Dec.  030.  unless   it   appears   that   the   Probate 

102  Id.  332.  Court  abused  its  discretion.    McCal- 

103  Monger    vs.    Jeffrie-.    43    r;iill.  lip  vs.  Sharp,  13  Dec.  450. 

217;  62  d.  S.  149;  Martin  vs.  Der-  The  statute,  §6407  R.  S.   (§  11206 

shem,  46  Bull.  172.  q.    C),    giving   right   to   appeal   to 

10*  Now  changed  by  statute.     See  Common  Pleas  Court,  does  not  con- 

§  ^2.  flict   with    §  524   R.    S.    ( §  10492    G. 

Citing  in  re  Still,   15  O.  S.  484;  c.),  giving  Probate  Courts  original 

Brigle  vs.   Starbuck,   34   0.   S.   280;  exclusive   jurisdiction   to   grant   and 

Kbersole  vs.  ShiUer.  50  O.  S.  701.  revoke   letters  testamentary.      In  re 

See   §   1575,   Removal  of  assignee.  Sells'  Est.,  5   X.  P.    (X.S.)    629;    19 

Although   the  refusal  of  the  Pro-  j^^^    ggy 
bate  Court  to   consider  the  applica-  The  Circuit   Court,   however    cau- 
tion of  the  next  of  kin  or  of  a  cred-  ^^^  ^^^j^,,,  ^j^^  ^^^-^-^^  „f  tl^^  Court 
itor    for    letters    of    administration,  of  Common  Pleas.     Smith  vs.  Bracy, 
may    be    reviewed    in    the    Common  32  0    C    C    383 
Pleas  Court,  that  court  will  not  dis- 


195  REQUIREMENT    OF    BOND  §  233 


CHAPTER  XV. 

BONDS,  EXECUTION,  FORM,  ETC. 

§  233  Requirement    of    bonds.  §  239  Liability   of  judge   in   accept- 

§234  To   whom   made   payable.  ing  bond,  etc. 

I  235  Good   signed   in  blank,  §  240  Amount  of  penalty. 

§236  Sufficient   condition.  §241  Sureties  —  Qualification      and 

§237  Execution,   form    etc.  number. 

§  238  Approval    and    custody.  §  242  Examination   of  sureties. 

§  233.     Requirement  of  bonds. 

In  a  work  of  this  character  it  will  not  be  proper  to  go  into 
the  historical  origin  of  the  law  requiring  the  giving  of  bonds. 
Suffice  to  say  that  the  legislatures  have  always  been  solicitous 
in  making  provision  for  the  safety  of  the  beneficiaries  of  trust 
estates ;  and  that  our  statutes  contemplate  that  whenever  a  trus- 
tee is  appointed  other  than  that  of  an  executor  or  trustee  under 
a  will  dispensing  with  bond,  that  a  bond  be  given,  indeed  until 
such  bond  is  given,  no  appointment  ought  to  be  made ;  and  some 
courts  have  held  that  an  administrator  or  executor  where  the 
bond  is  not  dispensed  with  could  perform  no  legal  acts  in  rela- 
tion to  the  administration  of  his  trust,  until  a  bond  was  given.^ 

But  such,  it  seems,  is  not  the  law  of  Ohio,  for  in  several  in- 
stances it  was  held  that  the  giving  of  a  bond  is  not  a  jurisdic- 
tional requirement,  and  that  the  failure  to  give  such  bond  does 
not  of  itself  render  the  appointment  void.^ 

And  in  another  case  it  was  held  that  the  omission  of  an  ad- 
ministrator to  give  bond  with  the  requisite  number  of  sureties 
upon  it,  will  not  affect  his  right  to  recover  in  an  action  where 

1  Woemer  on  Admin.  546.  Judge  Pugh   in  the  case  of  Martin 

sMitchel    vs.    Albright,    20    Bull.       et  al.  vs.  Falconer,  23  Bull.  333. 
101.     This    case    was    followed    by 


§  234  BONDS  EXECUTION^    ETC.  196 

letters  have  been  issued  by  the  Probate  Court  upon  the  bond  as 
given  and  which  remains  unrevoked.^ 

In  this  case  it  is  also  said  that  such  an  appointment  is  void- 
able and  not  void,  and  therefore  cannot  be  collaterally  im- 
peached.* 

These  cases  cited  seem  to  follow  the  decisions  of  the  New 
York  court,  and  that  if  advantage  is  to  be  taken  of  a  defective 
bond  in  any  way  it  must  be  in  a  direct  proceeding  in  the  court 
that  made  the  appointment.^ 

§  234.     To  whom  made  payable. 

The  general  practice  is  that  all  trustees'  bonds  are  made  pay- 
able to  the  State  of  Ohio,  the  State  being  held  to  be  a  trustee 
for  all  parties  interested  in  the  administration  of  the  estate. 
Where  the  statute  makes  provision  to  that  effect,  bonds  should 
be  made  payable  to  the  person  for  whose  benefit  they  are  spe- 
cially given.  But  the  courts  would  not  be  strict  about  this  mat- 
ter, and  if  an  executor's  bond  should  be  made  payable  to  one  of 
the  interested  parties  or  to  any  person,  it  would  be  held  that 
such  person  was  a  trustee  for  whoever  might  be  interested,  and 
for  any  person  for  whose  benefit  it  was  intended  that  the  bond 
was  given.*' 

3  Slagle  vs.  Entrekin,  44  O.  S.  637.  But    where    the   testator    was    de- 

*  Sch.     Exrs.     142 ;     Bigelow     vs.  pcribed    as    James,    when    it    should 

Comegj's,  5  O.  S.  256.  have  been  Joseph,  the  sureties  were 

5  Bloom  vs.  Burdick,  1  Hill  130 ;  not  held.  McGooney  vs.  State,  20 
37   Am.  Dec.  299.  0.   93. 

See  §§  1333,  1337,  1343,   155*4.  Likewise  wnere  made  to  the  Su- 

6  A  bond  made  payable  to  the  preme  Court  instead  of  District 
"  Governor  "  instead  of  the  State  is  Court.  Myers  vs.  Parker,  6  O.  S. 
not  void.     Sikes  vs.  Truitt,  4  Jones  .^^02. 

Eq.    361;    Johnson    vs.    Fugnay,    1  But  where   the   bond   by   mistake 

Dana  514;   Farley  vs.  McConnell,  7  was    made   to    an    administrator    de 

Lans.  428.  lonis   non,    instead    to    an    adminis- 

If  made  to  the  "  county,"  instead  trator  de  bonis  non  with  the  will 
of  -'people."  Bay  vs.  Brock,  44  annexed,  the  surety  was  held.  New- 
Mich.  45.  berger  vs.   Finney,  17  C.  C.  215;  9 

Or  "  people  of  the  State  "  instead  C.  D.  720. 
of   State,  Teris  vs.   Randell,   6   Cal. 
632. 


197  SIGNED    IN    BLANK  §  235 

§  235.  Good  signed  in  blank.  "All  official  bonds,  and  bonds 
of  executors,  administrators,  guardians  and  trustees,  bonds  re- 
quired or  authorized  to  l)e  taken  by  or  before  a  court,  judge, 
public  board  or  officer,  judicial  or  ministerial,  bonds  of  in- 
demnity, and  all  other  bonds  conditioned  to  become  void  upon 
the  performance  by  the  parties  thereto,  or  any  of  them,  of  the 
stipulations  therein  contained,  shall  bind  and  render  liable 
thereon,  both  principals  and  sureties  therein,  whether  at  the 
time  of  tlie  signing  thereof  by  such  obligors,  or  any  of  them, 
the  amounts  of  such  bonds  be  filled  in  or  left  in  blank,  if  such 
amounts  be  filled  in  before,  or  at  the  time  of  the  approval  or 
acceptance  of  such  bonds,  and  such  filling  in  may  be  done  in  the 
absence  of  any  or  all  of  the  obligors,  and  without  any  express 
authority  for  that  purpose  from  them  or  any  of  them."  [R.  S. 
§6.]^ 

Before  the  passage  of  the  above  section  of  the  General  Code 
no  blank  could  be  filled  in.^ 

It  wall  be  observed  that  the  above  statute  only  provides  that 
the  amounts  of  such  bonds  may  be  filled  in  after  they  have  been 
signed  in  blauk.  It  has  been  held,  however,  that  the  omission 
of  the  names  of  sureties  or  obligors  in  the  body  of  the  bond  does 
not  affect  its  validity  or  their  obligation.^  But  if  a  bond  were 
written  without  any  obligee  it  is  very  questionable  if  it  could  be 
enforced,  although  in  a  proper  case  it  might  be  reformed ;  then, 
after  reformation,  be  enforced.^" 

Omissions  may  be  supplied  by  construing  the  decree  of  ap- 
pointment and  bond  together.^^ 

A  blank  bond  executed  by  the  principal  and  sureties  has  been 
held  sufficient  to  sustain  the  qualification  and  appointment  until 
the  vacation  of  the  letters.^^  But  a  judgment  at  law  upon  such 
a  bo  ^d  has  been  refused.^^ 

7  §  5  G.  C.  signed    it    in    blank.      Sourada    vs. 

8  State    vs.    Boring,    15    O.    507;       David,  15  N.  P.  257. 

Famulener   vs.    Anderson,    15    O.    S.  As  to  signature  obtained  by  fraud, 

47.3.  see    Sourada    vs.    David,    15    N.    P. 

9  McLain  vs.  Simington,  37  0.  S.        (N.S.)   257. 

660;    Partridge  vs.  Jones,   38   0.   S.  10  State  vs.  Watson,  2  Cleve.  314; 

375;    Bid.    Assn.    vs.    Cummings,    45  Abrams  v.  Kounts,  4  O.  214. 

0.  S.  64.  See  Gardner  vs.    Woodyear,    1    O. 

Some  of  these  bonds  were  on  spe-  170;  State  vs.  Slough,  12  C    C.  105; 

cialties,  etc.  5  C.  D.  697. 

In  a  recent  case  it  was  held  tliat  n  State  vs.  Price,  15  Mo.  375. 

tlie  sureties  were  liable  even  thougli  12  Spencer  vs.   Gaboon,  4   Dev.  L. 

tiiey  were  misled  as  to  wlio  was  the  225. 

principal    in   the    bond,    where   they  13  Cowling    vs.    Justice,    6    Rand. 

340. 


§  236  BONDS  EXECUTION^    ETC.  198 

It  is  valid,  although  omitting  to  state  in  terms  the  conditions 
on  which  the  obligation  might  be  enforced,  or  which  would  ren- 
der the  bond  void/* 

The  omission  of  the  penalty  does  not  render  the  bond  void, 
for  the  law  construes  it  with  reference  to  the  amount  the  penalty 
should  have  been/^ 

The  omission  of  the  name  of  the  decedent  does  not  render  it 
void,  for  the  papers  on  file  may  be  referred  to  to  supply  the 
omission/^ 

Such  immaterial  blanks  in  a  bond  as  date  or  name  of  the 
obligor  may  be  filled  in  at  any  time.  The  bond  is  valid  with- 
out them.^^ 

^  236.  Sufficient  condition.  ' '  A  bond  payable  to  the  state 
of  Ohio,  or  other  payee  as  may  be  directed  by  law,  reciting  the 
election  or  appointment  of  a  person  to  an  office  or  public  trust 
under  or  in  pursuance  of  the  constitution  or  laws,  and  condi- 
tioned for  the  faithful  performance,  by  such  person,  of  the 
duties  of  the  office  or  trust,  shall  be  sufficient,  notwithstanding 
any  special  provision  made  by  law  for  the  condition  of  such 
bond."     fR.  S.  §7.]i« 

The  provisions  of  5  6,  G.  C,  would  make  valid  a  bond  of 
an  executor  or  administrator  if  it  failed  to  set  out  in  detail  all 
the  conditions  mentioned  in  the  section  requiring  bond,  etc.  A 
bond  with  the  will  annexed,  conditioned  that  the  administrator 
will  properly  discharge  his  duties  as  administrator,  is  not  for 
that  reason  void.^" 

The  bond  is  valid,  altliough  the  sureties  are  not  named  in 
the  body  of  the  lx3nd."" 

The  bond  is  effective,  although  its  conditions  are  not  strictly 
in  accordance  with  the  requirements  of  the  statute,  but  provide 

14  Rose    vs.    Winn,    51    Tex.    545 ;  18  §  6  G.  C. 

Newton  vs.  Cox,  76  Mo.  352.  19  Owen  vs.  State,  25  Ind.  371. 


15  State  vs.  Britton,  102  Ind.  214 
Soldini  vs.  Hyams,  15  La.  Ann.  551 
^fason  vs.   Fuller,   12  La.   Ann.   68 


20  Jover  vs.  Cooper,  2  Bailey  L. 
199;  Stone  vs.  Wilson,  4  McCord 
203. 


Shalter's  Appeal,  43  Pa.  St.  S3.  Covers  all  the  duties  required  of 

16  State  vs.  Price,  15  Mo.  375.  the  official  during  his  term,  whether 

17  Famulemer  vs.  Anderson,  15  0.  imposed  by  statute  before  or  after, 
S.  473.  etc.    Dawson  vs.  State,  38  0.  S.  1. 


199 


SUFFICIENT    CONDITION 


§236 


in  different  and  more  general  terms,  for  the  faithful  execution 
of  the  trust. '^ 

Where  the  will  is  annexed  a  condition  to  administer  accord- 
ing to  the  will,  instead  of  according  to  the  law,  does  not  render 
the  bond  void.^^ 

If  it  has  more  conditions  than  the  statutes  require,  such  addi- 
tional conditions  will  be  regarded  as  surplusage.^^ 

The  bond  is  valid  although  only  one  surety  sign  where  two 
are  required.^* 

Private  arrangement  between  the  principal  and  sureties  in 
what  maimer  tlie  bond  should  be  filled  out  and  used  will  not 
avoid  it  as  to  third  persons  who  relied  upon  it  as  actually  pre- 
sented and  approved.^® 

A  surety  who  signed  the  bond  conditionally  must  retract  be- 
fore the  bond  is  approved  and  the  court  and  innocent  parties 
have  placed  reliance  upon  it.*** 

When  the  name  of  a  person  is  signed  to  an  administrator's 
bond  without  his  knowledge,  and  afterwards,  and  before  its  ap- 
proval by  the  court,  he  is  informed  thereof,  and  does  not  object, 
it  is  toO'  late  to  demand  relief  from  liability  after  the  adminis- 
trator has  committed  waste.^^ 

The  bond  of  an  executor,  given  to  secure  the  faithful  dis- 
charge of  his  duties  as  executor,  cannot  be  construed  as  condi- 
tioned for  the  faithful  discharge  of  his  duties  as  trustee  of  a 
trust  created  by  the  will.^^ 


21  Probate  Court  vs.  Strong,  27 
Vt.  202;  Lanier  vs.  Irvine,  21  Minn 
447 ;  Judge  of  Probate  vs.  Claggett 
36  N.  H.  381;  Pettingill  vs.  Pet 
tingill,  60  Me.  411;  Casoni  vs 
Jerome,  58  N.  Y.  315;  Holbrook,  vs 
Bentley,  32  Conn.  502;  Newton  vs 
Cox,  76  Mo.  352;  McFadden  vs 
Hewett,  78  Me.  24. 

22  Hall  vs.  Cashing,  9  Pick.  395 
Hartzell  vs.  Com.,  42  Pa.  St.  453. 

23  Woods  vs.  State,  10  Mo.  698 
Grant  vs.  Brotherton,  7  Mo.  458 
Ordinary  vs.  Cooley,  30  N.  J.  L.  179 

24Slagle   vs.    Entrekin,    44    0.    S 


637;    Steele    vs.    Tutwiler,    68    Ala. 
107. 

25  Franklin  vs.  De  Priest,  13 
Gratt.  257;  Brown  vs.  Davenport, 
76  Ga.  799;  Field  vs.  Van  Cott,  5 
Daly  308;  Cohea  vs.  State,  34  Miss. 
179. 

26  Canal,  etc.,  Co.  vs.  Brown,  4 
La.  Ann.  545. 

2T  State  vs.  Hill,  50  Ark.  458 ;  .S. 
C,  8  S.  W.  Rep.  401. 

28  Hinds  vs.  Hinds,  85  Ind.  312; 
Coggeshall  vs.  State,  112  Ind.  561. 
See  Foster  vs.  Wise,  46  O.  S.  27; 
Kaufman's  Estate,  Goebel,  98. 


§  237  BONDS  EXECUTION,,    ETC.  200 

An  official  bond  conditioned  to  discharge  the  duties  of  an 
officer  "  according  to  law  "  embraces  tlie  duties  required  by 
laws  enforced  during  tlie  term  of  the  officer,  whether  enacted 
before  or  after  the  execution  of  the  bond.^" 

§  237.     Execution,  form,  etc. 

These  provisions  of  §§5  and  6,  G.  C,  were  no  doubt  en- 
grafted in  our  statutes  from  the  fact  that  the  persons  whose 
duty  it  was  to  act  on  such  bonds  were  public  officials ;  not  hav- 
ing a  direct  interest  in  the  matter,  minor  details  might  very 
easily  be  overlooked,  and  then  our  Supreme  Court  had  given  a 
very  strict  construction  to  that  class  of  bonds,  especially  when 
considering  the  same  in  relation  to  the  sureties  thereon.  In  the  . 
ease  of  State  vs.  Medary,^*'  it  is  said :  "  The  bond  speaks  for 
itself,  and  the  law  is  that  it  shall  so  speak,  and  that  the  liability 
of  sureties  is  limited  to  tlie  exact  letter  of  the  bond.  The 
sureties  stand  upon  the  wordsof  the  bond,  and  if  the  words  will 
not  make  them  liable  nothing  can.  There  is  no  construction, 
no  equity,  against  sureties.  If  the  bond  cannot  have  effect  ac- 
cording to  its  exact  words  the  law  does  not  authorize  the  court 
to  give  it  effect  in  some  other  way  in  order  that  it  may  pre- 
vail." " 

This  strict  construction  seems  to  have  been  given  to  a  bond 
because  it  was  a  specialty  under  seal.  Whether  the  abolish- 
ment of  seals  would  make  any  difference  might  be  a  question, 
but  there  is  enough  uncertainty  about  the  matter  that  Probate 
Judges  and  their  deputies  should  exercise  great  care  in  this 
matter  of  taking  bonds ;  more  than  I  know  they  generally  do. 
Some  Probate  Judges  require  that  the  bonds  be  signed  in  open 
court.      This  is  a  very  good  rule,  but  difficult  to  put  into  prac- 

29  Dawson  vs.  State,  38  0.  S.  1.  meaning  and  intention  of  the  parties 

30  17  O.  554.  was  plain,   that  time  has   gone  by; 
.31  Judge  Longworth,  in  Partridge       and  the  only  object  of  the  court  is, 

vs.    Jones    (38    0.    S.    375),    quoted  that  when  the  meaning  and   inten- 

with  approbation  the  following :    "  If  tion  of  the  party  are  plain  no  gram- 

ever  there  was  a  time  when  courts  matical  inaccuracy  and  want  of  the 

listened  to  trivial  and  verbal  inac-  appropriate  words  shall  render  the 

curacies  in  contracts  when  the  real  instrument  unavailing." 


201  APPEOVAL  AND  CUSTODY  §  238 

tice;  when  done  elsewhere  there  is  always  danger  of  forgery  or 
misrepresentation. 

§  238.     Approval   and  custody. 

It  is  provided  by  §  11,  G.  C,  that  every  officer  on  receiving 
an  official  bond  which  by  law  is  required  to  be  filed  or  deposited 
with  him,  shall  immediately  on  receiving  such  bond  record  the 
same  in  a  book  to  be  kept  by  him  for  that  purpose ;  and  §  522, 
G.  C,  says  that  each  judge  shall  have  the  care  and  custody  of 
all  files,  papers,  books  and  records  belonging  to  his  office ;  and 
by  §  10611,  G.  C,  it  is  provided  that  the  bonds  shall  be  filed 
in  the  court  taking  the  same  and  the  bonds  shall  be  such  as  the 
court  shall  approve.  The  following  is  a  general  statute  relating 
to  the  same : 

"All  bonds  required  or  authorized  by  law  to  be  given  in  the 
probate  court,  on  being  accepted  and  approved  by  the  probate 
judge,  shall  be  filed  in  his  office."     [R.  S.  §  6401. ]32 


In  reference  to  the  approval  and  custody  of  such  bonds  I 
know  of  no  Ohio  decisions  relating  thereto.  Courts  elsewhere 
have  held  that  the  bond  is  valid,  although  no  formal  approval 
is  entered  thereon  or  of  record. ^^  , 

Merely  finding  the  bond  on  file  in  the  clerk's  office  will  raise 
a  strong  presumption  that  it  was  approved.^* 

It  cannot  be  taJven  from  the  clerk's  office.  A  certified  copy 
of  it  may  be  given  in  evidence.^^ 

If  it  and  its  record  is  destroyed  it  may  be  restored.^® 

In  an  action  on  a  bond  it  is  not  necessary  to  first  show  its  ap- 

32  §11200  G.  C.  34McClure  vs.   Colclough,    5   Ala. 

33  State  vs.  Chrisman,  2  Ind.  126;  65.  See  United  States  vs.  Dandridge, 
James  vs.  Dixon,  21  Mo.  538;  Henry  12  Wheat  64;  Apthrop  vs.  North,  14 
vs.  State,  9  Mo.  778;  State  vs.  Farm-  Mass.    107. 

er,  54  Mo.  439 ;  Brown  vs.  Wheather-  35  Miller  vs.  Gee,  4  Ala.  359. 

by,  71  Mo.   152;   Cameron  vs.  Cam-  so  Tanner  vs.  Mills,  50  Ala.   356. 

eron,  15  Wis.  1 ;  Ford  vs.  Adams,  43 
Ga.  340. 


§  239  BONDS  EXECUTION,  ETC.  202 

proval  before  introducing   it  in  evidence;   that  fact  may  be 
shown  aftenvards.^^ 

§  239.     Liability  of  judge  in  accepting  bond,  etc. 

The  matter  of  the  extent  of  the  liability  of  a  Probate  Judge 
in  accepting  a  bond  that  proves  deficient  in  some  manner  is  per- 
haps of  more  interest  to  the  Probate  Judge  in  the  nature  of  in- 
formation, as  to  a  proper  discharge  of  his  duties,  than  in  the 
enforcement  of  such  liability,  if  there  be  one ;  for  as  yet  there  is 
no  reported  case  in  our  State  in  which  it  was  sought  to  hold  the 
Probate  Judge  responsible.  ^Vhether  he  is  responsible  or  not, 
or,  if  responsible,  under  what  conditions,  is  a  mooted  question. 
If  the  act  of  accepting  a  bond  is  a  judicial  act,  the  weight  of 
authority  is  that  he  could  never  be  held  responsible.  If  the  act 
is  a  ministerial  one,  which  seems  to  be  the  prevailing  opinion, 
he  would  be  responsible  in  the  exercise  of  ordinary  care.  Yet 
it  has  been  held  that  even  if  it  were  a  ministerial  act,  he  would 
only  be  responsible  for  acting  wilfully  or  maliciously.^* 

In  another  case  it  was  held  that  it  must  be  shown  that  he 
acted  wilfully,  corruptly  or  maliciously.^® 

The  line  of  demarcation  between  judicial  acts  and  ministerial 
acts  is  exceedingly  fine,  and  tlie  courts  are  not  in  harmony.  In 
Michigan  *°  it  is  held  that  the  approval  of  the  form  and  security 
of  a  bond  is  a  judicial  act,  for  which,  if  the  body  or  person 
whose  duty  it  is  to  prove  the  same,  acts  wrongfully,  there  is  no 
redress. 

In  Iowa  *^  it  is  held  that  the  approval  of  a  bond  is  simply  the 
ascertainment  of  two  facts,  the  amount  which  the  person  acting 
as  surety  was  worth  and  the  amount  of  the  penalty.  The  as- 
certainment of  neither  fact  involved  the  determination  of  a 
question  of  law  or  fact  upon  valid  evidence.  In  the  Court's 
opinion  it  was  not  a  judicial  determination.      Elsewhere  it  is 

37  Allen    vs.    State,    61    Ind.    268.  39  Tompkins   vs.    Sands,    8   Wend, 

See  Myers  vs.  State,  47  Ind.  293.  462;  24  Am.  Dec.  46. 

ssMcTerre    vs.    Lebow,    85    Tenn.  ^o  Bay  Co.  vs.  Brock,  44  Mich.  45. 

121.  *i  Hubbard   vs.   Switzer,   47   Iowa 

681. 


203  AMOUNT   OF   PENALTY  §  240 

said  the  approval  or  rejection  of  the  bond  is  essentially  a  minis- 
terial act,  though  coupled  with  discretion/^ 

The  better  doctrine  it  seems  would  be  that  the  Probate  Judge 
ought  to  exercise  ordinary  care  and  especially  should  he  be  held 
liable  for  gross  negligence.'*^ 

In  some  States  the  judge  is  held  liable  if  he  takes  a  defective 
guardian's  bond,  this  construction  depending  largely  upon  the 
peculiar  wording  of  the  statute.** 

In  a  case  not  reported  it  was  held  *^  that  a  Probate  Judge  is 
not  liable  for  accepting  a  forged  bond. 

§  240.    Amount  of  penalty. 

There  is  nowhere,  as  far  as  I  have  been  able  to  discover,  any 
statutory  provision  fixing  the  amount  of  penalties  in  adminis- 
trators' or  executors'  bonds.  The  general  practice  is  to  make 
it  double  the  value  of  the  property  which  is  to  be  administered. 
Care  should  be  taken  that  sureties  on  the  bond  are  possessed  of 
property  sufficient  to  equal  double  that  of  property  to  be  se- 
cured, excluding  what  might  be  exempted  to  them  under  the 
homestead  or  other  exemption  laws  of  our  State.*^ 

The  acceptance  of  an  insolvent  surety  will  not  affect  the  va- 
lidity of  the  appointment,  nor  the  validity  of  the  administra- 
tor's acts.*^  Nor  will  the  fact  that  the  bond  is  insufficient  in 
amount.*^ 

4  2Adamson  V3.  LaFayette,  41  Mo.  Judicial   act  —  is   an   act   of   any 

226.  public  ofRcer  involving  the  exercise 

<3  See  Miirfree  on  Official  Bonds,  of  his  judgment  or  discretion  on  a 

§§   50,   51,   etc.;   Mechem  on   Public  question  affecting  tne  right  of  any 

Offices,  §§  619,  635,  643,  657,  686.  party. 

The   following   are    definitions    of  44  Woerner  on  Gdns.   119. 

ministerial   and  judicial   acts,   from  <5  Ingersoll    vs.    Smith,    36    Bull. 

the  Century  Dictionary:  302. 

Ministerial  acts  are  "Those  acts,  <«  Woerner  on  Admin.  555;   §6891 

offices  and  powers  that  are  to  be  per-  G,  C. 

lormed  or  exercised  uniformly  on  a  *''  Slagle  vs.  Entrekin,  44  Ohio  St. 
given  state  of  facts  in  a  prescribed  637;  Herriman  vs.  Janney,  31  La- 
manner,  in  obedience  to  law  or  the  Ann.  276. 

mandate  of  legal  authority,  without  48  Mumford    vs.    Hall,    25    Minn. 

depenrlence  on  the  exorcise  of  indEr-  347. 
ment  as  to  the  propriety  of  so  do- 
ing." 


§  241  BONDS  EXECUTION,    ETC.  204 

In  determining  the  amount  of  the  estate,  only  property  in 
this  State  will  be  considered.*^ 

Sureties  who  are  legatees  with  no  property  except  such  as  is 
derived  from  the  will  are  not  sufficient.^*' 

The  acceptance  of  non-freehold  sureties  does  not  vitiate  the 
bond,^^  nor  a  sale  of  real  estate.^^ 

They  need  not  be  freeholders  of  the  county  where  the  bond 
is  given,^^  but  should  be. 

A  bond  which  divides  up  the  penalty  among  the  sureties  is 
not  absolutely  void,  but  is  not  favored. °* 

And  the  same  is  true  of  several  bonds  in  lieu  of  a  single 
bond." 

Trust  companies  may  become  sureties  or  act  as  administra- 
tors without  giving  bond.^® 

A  husband  may  be  surety  for  his  wife.''^ 

§  241.     Sureties.      Qualification  and  number. 

It  is  provided  by  statute  that  "  sureties  must  be  residents  of 
this  State  and  worth  in  tlie  aggregate  double  the  sum  to  be  se- 
cured beyond  tlie  amount  of  their  debts,  and  have  property  lia- 
ble to  execution  in  this  State  equal  to  the  sum  to  be  secured."  ^* 

The  provisions  of  tliis  section  are  directory  and  if  not  fully 
complied  with  would  not  vitiate  the  bond,  and  if  a  non-resident 
or  an  insolvent  should  attach  his  signature  to  the  bond  he  would 
be  held.  Of  course  any  interested  person  might  make  an  ap- 
plication to  require  an  additional  or  new  bond.  Where  a  rule 
of  court  forbids  attorneys  going  on  such  bonds  and  an  attor- 
ney violated  the  rule,  it  was  held  that  the  bond  was  valid  and 
the  attorney  could  not  escape  his  legal  responsibilities 
thereon.^'* 

49  Le^^'is   vs.   Grognard,    17   N.  J.  In   settlement  of  an   account  the 
Eq.  425.  judge  niay  allow  for  premium  paid 

50  Ellis  vs.  Witt}',  63  Miss.  117.  on  the  bond  not  above  one-half  per 

51  Hicks  vs.  Chouteau,  12  Mo.  341.  cent,   per  annum  on  the  amount  of 

52  Johnson  vs.  Clark,  18  Kan.  157.  the    bond,    unless    it    is    double    the 

53  Barksdale  v.  Cobb,  16  Ga.  13.  liability  of  the  administrator,  then 

54  Baldwin  vs.   Standish,   7    Cush.  it  is  one-fourth  per  cent,  per  annum. 
207.  57  /„,  re  Grove,  6  Dem.  369. 

55  People  vs.  Lott,  27  111.  215.  5S  §  6801  G.  C. 

56  See  §§9571,  9572  and  9573  G.  59  Wallace   vs.    Scoles,    6    0,    428 
C.,  and  chapter  13a,  §  207m  and  710-  (181). 

162  G.  C. 


205  SURETIES — QUALIFICATION  §  241 

It  is  also  provided  by  another  section  of  the  General  Code  ""^ 
that  sureties  shall  be  inhabitants  of  this  State.  As  it  has 
been  remarked  before  in  this  work,  good  practice  demands 
that  sureties  be  residents  of  the  county  in  which  the  bond  is 
given,  for  when  a  person  is  taken  who  is  a  non-resident  of  the 
county,  it  is  difficult  for  the  court  to  ascertain  his  financial 
standing;  and  not  only  that,  if  anything  should  occur  that  suit 
is  required  to  be  brought  upon  the  bond,  the  person  desiring  to 
bring  such  suit  might  be  compelled  to  go  a  considerable  distance 
in  a  strange  county  to  enforce  a  surety's  liability.  This  might 
result  to  great  inconvenience  to  the  persons  interested,  and  the 
court  ought  always  in  every  way  in  its  power  protect  the  bene- 
ficiaries of  a  trust  estate.  In  other  sections  ^^  it  is  provided 
that  there  shall  be  at  least  two  sureties  on  the  bond,  but  if  a 
bond  were  taken  with  but  one  surety  thereon  the  bond  would 
be  a  valid  one.**^ 

It  has  been  recently  provided  ^^  that  corporations  known  as 
surety  companies  may  become  sureties  on  administrators',  ex- 
ecutors' or  trustees'  bonds.***  Before  such  a  corporation  can  be 
taken  as  surety,  it  must  comply  with  the  laws  of  the  State 
to  the  satisfaction  of  the  Commissioner  of  Insurance.  The 
usual  way  in  such  cases  is  for  the  company  desiring  to  do  busi- 
ness in  a  certain  Probate  Court  to  file  in  that  court  a  certificate 
from  the  Commissioner  of  Insurance  to  the  effect  that  the  com- 
pany has  complied  with  the  laws  of  our  State.  This  being  done 
it  would  be  well  for  the  court  to  place  upon  record  an  entry 
which  may  be  in  the  following  form: 

In  the  matter  of Company. 

This    day    came Company,    by    its    representative 

,  and  filed  herein  a  certificate  of  a  com- 
missioner of  insurance  in  the  State  of  Ohio,  showing  that  said  company 
had  complied  with  the  laws  of  the  State  of  Ohio;  and  upon  examination, 
the  said  certificate  appearing  to  be  regular  and  in  conformity  to  law,  it  is 

80  §  10611  G.  C,  §  86.  It    is   unconstitutional    to    compel 

61  §10011  G.  C,   §  83;    §  10618  G.  an  administrator  or  executor  to  give 

C.    §  124.  only  as  surety  on  his  bond  a  surety 

e2  Slagle    vs.    Entrekin,    44    0.    S.  company,   and   an   act   of   the  Legis- 

G37.  lature   with    such    a   requirement   is 

«:'§§  9510-11   G.   C,    §§9568-69-70  void.      State   vs.    Robins,    71    0.    S. 

G.  a  273. 

«<  In  re  Bank,  4  Dec.  228 ;  3  N.  P. 
286;  §9571  G.  C. 


§  242  BONDS EXECUTION,  ETC.  206 

hereby    ordered    that    said be    accepted    as 

Burety  on  the  bond  of  any  executor,  administrator,  trustee  or  guardian 
hereafter  appointed  by  this  court. 

§  242.    Examination  of  sureties. 

Our  statute  provides  that  a  "  court  or  officer  authorized  by 
law  to  prove  the  surety  may  require  such  person  to  testify  orally 
or  in  "writing  touching  his  sufficiency  ;  but  this  shall  not  in  itself 
exonerate  the  officer  in  action  for  taking  an  insufficient  sure- 
ty." ^°  If  the  examination  is  taken  orally,  the  ordinary  oath 
should  be  administered  to  the  party  before  proceeding  -with, 
the  examination.  The  Court  should  fully  satisfy  itself  that 
the  party  has  the  requisite  qualification  before  accepting  him  as 
surety.  Very  often  the  inconvenience  attaching  to  the  surety 
appearing  in  court  and  qualifying  results  in  the  substitution 
of  some  other  method,  generally  by  affidavit.  The  affidavit  may 
be  in  the  following  form. 

State  of  OhiOj 

County,  ss. 

A.  B.,  one  of  the  sureties  on  the  bond  of  C.  D.,  as  administrator    (or 
executor)  of  the  estate  of  E.  F.,  deceased,  being  duly  sworn,  says  that  he  is 

a  resident  of in  the  County  of 

Ohio.     That  he  is  worth  beyond  the  amount  of  his  debts,  at  least 

Dollars;  and  that  he  has  property  liable  to  execu- 
tion in  this  State  equal  to  the  sum  of  the  bond  upon  which  he  has  attached 
his  name  as  surety. 

Sign. 

Sworn  and  subscribed  before  me  this day  of 

85  §  10218  G.  C. 


207 


APPLICATION    FOR   RELEASE 


§243 


CHAPTER  XVI. 
NEW  BONDS— SURETIES,  ETC. 


§243 

§  243-1 
§243a 

§243b 

§244 

§245 

§^46 

§247 

§248 
§249 


§250 


release    of       §  251 


etc. 
give 


Application    for 

surety,  etc. 
Application  by  executor 

Removal   on    failure   to 
new  bond. 

Costs,   etc. 

Application  and  cause. 

Form  of  application. 

Entry  ordering  notice,  etc. 

Notice,  form  of  notice,  hear- 
ing, etc. 

When  order  takes  effect. 

When  new  bond  may  be  re- 
quired by  interested 
party. 

Liability  of  prior  sureties. 


§252 
§253 


Liability  of  sureties  on  new 
bonds. 

If  bond  not  given  may  be  re- 
moved from  trust. 

When  executor  or  adminis- 
trator to  give  bond  of  in- 
demnity to  surety. 

Application,  procedure,  etc. 

Sufficient  cause  for  making 
order. 

Form  of  indemnity  bond. 

Construction  placed  upon 
such  bond. 

Additional  bonds. 

General  liabilities  of  sureties. 


§254 
§255 

§256 

§257 

§258 
§259 
§  259a  Reduction  of  bond. 


§  243.  Application  for  release  of  surety,  etc. 

The  fact  that  the  surety  assumes  his  obligation  on  the  bond 
without  any  consideTation  moving  to  him  from  the  obligor, 
has  induced  the  body  making  power  of  our  State  to  enact 
statutes  giving  a  vigilant  surety  full  and  ample  opportunity 
to  protect  himself.  He  may  require  that  the  administrator  or 
executor  indemnify  him  by  another  bond,  Or  if  there  is  any 
cause,  demand  a  new  bond.  The  ^atute  providing  for  release, 
is  as  follows: 

"A  surety  of  an  execator  or  administrator,  or  the  executor  or 
administrator  of  a  surety,  at  any  time  may  make  application 
to  the  proper  probate  court  to  be  released  from  the  bond  of 
such  executor  or  administrator,  by  filing  his  written  request 
therefor  with  'the  judge  of  such  court,  and  giving  at  least  five 
days'  notice,  in  writing,  to  such  executor  or  administrator.  If, 
upon  the  hearing,  the  court  is  of  opinion  that  there  i.s  good 
reason  therefor,  it  shall  release  such  surety.  The  death  of  a 
surety  always  shall  be  good  cause."     [R.  S.  §6204.]^ 

§  243-1.  Application  by  executor,  etc.  §  10861-1.  An  ex- 
ecutor or  administrator,  at  any  time  may  make  application  to 
the  proper  probate  court  for  the  release  of  his  sureties,  by  filing 
his  written  request  therefor  with  the  judge  of  such  court,  and 
giving  at  least  five  days'  notice,   in  writing,  to  such   sureties. 

1  §  10861  G,  C.  See  §  1257,  under  bonds;  §  1563.  removal  of  assignee; 
foreign      will;      §  1343,     additional       §  1554,  assignee's  bond. 


§  243a  NEW   BONDS — SURETIES,    ETC.  208 

If,  upon  hearing,  the  court  is  of  opinion  that  there  is  good  rea- 
son to  release  said  sureties  it  shall  order  said  executor  or  ad- 
ministrator to  file  an  account,  as  provided  by  law,  and  said 
sureties  shall  be  released  upon  said  executor  or  administrator 
filing  a  new  bond  and  its  approval  by  the  court.     [107  v.  401.] 

§  243a.  Removal  on  failure  to  give  new  bond.  §  10862.  If 
such  executor  or  administrator  fails  to  give  new  bond,  as  by 
such  court  directed,  he  must  be  removed  and  his  letters  super- 
seded. Such  original  surety  or  sureties  shall  not  be  released 
until  the  executor  or  administrator  so  gives  bond,  but  the 
original  surety  or  sureties  shall  be  liable  for  said  executor  or 
administrator's  acts  only  from  the  time  of  executing  the  original 
bond  to  the  filing  and  approval  by  the  court  of  the  new  'bond. 
[107  V.  401.]  1* 

§  243b.  Costs.  "The  costs  of  such  proceeding  shall  be  paid 
by  the  surety  applying  to  be  released,  unless  it  appears  to  the 
•court  that  the  administrator  or  executor  is  insolvent,  incom- 
petent, or  is  wasting  the  assets  of  the  estate."     [R.  S.  §  6204.] ^f 

§  244.     Application  and  cause. 

It  will  be  observed  that  the  statute  does  not  designate  what 
shall  constitute  a  good  cause  for  the  release  of  a  surety.  I 
may  say  that  as  a  general  practice  the  application  will  be 
granted  for  .the  mere  asking,  although  the  court  may  refuse 
to  do  so  unless  it  appears  that  the  administrator  or  executor 
has  changed  in  his  financial  condition  since  his  appointment,  or 
that  he  is  wasting  or  mismanaging  the  estate. 

This  statute  is  remedial  and  should  be  construed  favorably 
towards  the  surety.-  It  applies  to  any  bond  given  by  an  ad- 
ministrator, of  whatever  kind.'  "While  some  of  the  courts  have 
held  that  when  an  application  for  release  is  made,  no  reason 
need  be  assigned,  such  decisions  have  been  generally  made  under 
a  statute  which  gives  the  surety  an  absolute  right  of  release  and 
does  not  leave  it  with  the  discretion  of  the  court.  Under  our 
statute,  it  being  left  to  the  discretion  of  the  court,  the  applica- 
tion ought  to  contain  a  reason  for  the  desired  release. 

1*  §  10862     G.     C.       This     statute  vs.  Watson,  3  Redf.  43;  Johnson  vs. 

gives    the    surety    ample    protection.  Fugunay,  1  Dana  514;  Harrison  vs. 

Souhrada  vs.  DaVid,  15  X.  P.   (X.S.)  Turbeville.  2  Humph.  242;  Jones  vs. 

257.  Ritter.  52  Ala.  280;  People  vs.  Cur- 

it  §  10863  G.  C.  rv.  50  111.  35 ;   Allen  vs.  Sanders,  34 

2  Kendrick  vs.  Wilkinson,  18  Ind.  X.  J.  Eq.  203. 

206;    Sifford   vs.    ^klorrison,    63   :\rd.  3  Kendrick  v,  Wilkinson,   18  Ind. 

14;  DeLane's  Case,  2  Brev.  167;  Mc-  206. 
Kay  vs.  Donald,  8  Rich.  331;  Lewis 


209  FORM  OF  APPLICATION,   ETC.  §  245 

§  245.     Form  of  application. 

{Title,  etc.) 

The  undersigned  A.  B.,  surety  on  the  administration  bond  of  C.  D.,  as 
executor  (or  administrator)  of  the  estate  of  E.  F.,  deceased,  hereby  makes 
an  application  under  the  provisions  of  section  No.  6204  et  seq.  of  R.  S.,  to 
be  released  from  the  bond  of  said  C.  D. ;  and  alleges  that  the  said  C.  D.  is 
(here  insert  the  cause  assigned  for  removal). 

Wherefore  said  A.  B.  prays  that  the  said  C.  D.  may  be  ordered  to  appear 
in  court  to  answer  said  application;  and  that  A.  B.  may  be  released  as 
surety  on  said  bond;  and  that  said  C.  D.  as  executor  (or  administrator) 
be  directed  to  file  a  new  bond,  and  that  said  A.  B.  be  released  from  all 
further  liabilities  thereon.* 

Sign. 

§  246.     Entry  ordering  notice,  etc. 

Upon  the  filing  of  an  application  of  a  surety  to  be  released,  a 
Court  should  make  an  entry  ordering  that  the  cause  be  set  for 
hearing  on  a  certain  day,  and  that  notice  be  issued  to  said 
administrator  or  executor.  The  entry  may  be  in  the  following 
form: 

(Title.) 

This  day  came  A.  B.  and  filed  herein  his  application  to  be  released  as 
surety   upon   the   bond   of   C.   D.,   executor    (or   administrator)    of   E.    F. 

Wherefore  it  is  ordered  that  said  cause  be  set  for  hearing  on  the 

day  of ,  at o'clock . .  .  M.     It  is 

ordered  that  a  notice  of  the  said  application  and  the  causes  therein  alleged 
for  the  release  of  the  said  A.  B.,  surety  on  the  bond  of  said  C.  D.,  and  the 
time  set  for* hearing  the  same,  be  issued  to  (here  insert  the  name  who  is 
to  serve  the  same)  for  the  said  C.  D.  to  appear  in  this  court  at  the  time 
the  said  cause  is  set  for  hearing  and  answer  the  same ;  and  that  said  notice 
be  served  on  said  C.  D.  at  least  five  days  before  the  time  of  hearing. 

§  247.     Notice,  form  of  notice,  hearing,  etc. 

As  to  notice  and  form  of  notice,  what  was  given  under 
former  chapters  on  resignation  and  removal  will  be  applicable 
here ;  and  the  form  of  notice  provided  there  can  very  easily 
be  adopted  for  the  form  required  here.**  And  for  form  of 
entry,  what  has  been  heretofore  said  in  a  previous  chapter 
will  also  be  applicable-  here.°  The  following  may  serve  as  a 
form  of  entry: 

4  This  application  should  be  veri-  4*  §218. 

fled.  5  §  228. 


§  248  NEW  BONDS SURETIES,  ETC.  210 

{Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  application  of  A.  B. 
filed  herein ;  requesting  that  the  said  A.  B.  may  be  released  as  surety  upon 
the  bond  of  C.  D. ;  and  it  appearing  to  the  court  that  the  said  C.  D.  has  had 
due  and  legal  notice  of  this  proceeding  and  the  time  of  hearing  thereon  as 
required  by  law;  and  the  said  cause  came  on  to  be  further  heard  and  was 
Bubmitted  to  the  court  upon  the  said  application  and  testimony.  Where- 
upon the  court  finds  that  the  said  C.  D.  (here  state  cause  for  removal)  and 
orders  that  the  said  C.  D.  give  a  new  bond  as  executor   (or  administrator) 

of  the  estate  of  E.  F.,  within days,  and  that  upon  the  giving 

of  said  new  bond  A.  B.  be  released  from  all  further  liabilities  as  surety  of 

the  said  C.  D.     And  the  costs  of  this  proceeding * 

Dollars,   are  taxed   against ,   and   judgment   for 

said  sum Dollars  costs  herein  is  rendered 

against 

It  is  further  ordered  that  said  A.  B.  file  an  account  of  his  said  trust 
herein  within days. 

The  law  does  not  require  that  an  account  be  filed,  but  in 
order  to  show  what  amount  the  sureties  on  the  new  and  old 
bonds  might  be  respectively  responsible  for,  it  would  be  well 
to  order  an  account.^* 

§  248.    When  order  takes  effect 

So  far  as  tlie  administrator  or  executor  is  concerned,  the 
order  takes  effect  from  its  date  of  entry.  But  so  far  as  it 
concerns  the  releasing  of  the  surety,  it  only  takes  effect  when  a 
new  valid  bond  has  been  filed,  and  received  the  approval  of 
the  Probate  Judge;  and  if  a  bond  should  be  filed  that  was  ille- 
gal or  void,  the  sureties  would  not  be  discharged,  although  it 
might  have  received  the  approval  of  the  Court.  The  case  of 
Howenstine  v.  Sweet, ^  is  an  interesting  one  on  this  question. 
Here  the  administrator  had  been  ordered  to  file  a  new  bond 
within  the  time  required  by  the  order  of  the  Court.  lie  pre- 
sented  a  bond  which   appeared   regular  and   proper   and   the 

6*  The    statute    further    provides,  doubt  for  the  purpose  of  preventing 

that    unless    the    administrator    or  a  capricious  application  for  removal, 

executor  is  insolvent  or  incompetent  If  the  release  was  granted  without 

or  is  wasting  the  assets,  the  cost  of  good  cause  the  statute  would  require 

the   proceeding   should   be   paid   by  the  cost  to  be  paid  by  the  applicant, 

the    surety.      This    provision   is   no  See  §  273. 

8  13  C.  C.  239;  7  C.  D    498. 


211  EEQTJIKED  BY  INTEBESTED  PAKTY  §  249 

same  was  approved  by  the  Probate  Judge.  Afterwards  it  was 
discovered  that  the  new  bond  was  a  forgery,  and  it  was  held 
that  the  sureties  on  the  original  bond  had  not  been  released. 

To  the  same  effect  was  Stevens  v.  Allman,'  when  a  justice 
of  the  peace  attempted  to  make  a  new  official  bond,  by  having 
other  securities,  attach  their  names  to  the  original  bond.  The 
Court  held  that  this  did  not  release  the  sureties. 

§  249.     When  new  bond  may  be  required  by  interested  party. 

A  new  bond  may  be  required  on  the  application  of  an  inter- 
ested party  as  well  as  upon  the  application  of  a  surety  to  be 
released.     The  statute  relating  thereto  is  as  follows : 

"When  the  sureties  on  a  bond  of  an  executor  or  adminis- 
trator are  insufficient,  on  the  petition  of  a  person  interested  and 
after  notice  to  the  principal  in  the  bond,  the  court  may  require 
a  new  bond  to  be  given  with  two  or  more  sufficient  sureties." 
[R.  S.  §6205.]« 

The  method  of  procedure  adopted  under  the  provisions  of 
§  10861-3,  G.  C,  §  240,  would  be  very  applicable  to  the  proceed- 
ing instituted  under  this  section  by  an  interested  party.  It 
does  not  require  that  any  specified  length  of  notice  be  given, 
but  it  would  be  well  to  follow  the  five  days'  notice  required 
in  the  previous  section. 

§250.  Liability  of  prior  sureties.  ''When  a  new  bond  is 
required  as  above  provided,  the  sureties  in  the  prior  bond  shall 
nevertheless  be^  liable  for  all  breaches  of  the  condition  com- 
mitted before  the  new  bond  is  approved  by  the  court."  [R.  S. 
§6206.]  9 

The  wording  of  this  section  is  not  quite  similar  to  the  latter 
part  of  10862  G.  C.  (§  243a),  but  I  apprehend  the  meaning  is  the 
same.  Considerable  contention  has  arisen  about  whether  or  not 
the  giving  of  a  new  security  will  relieve  the  old  one  from  his 
liability.     In  reference  to  a  guardian's  bond  it  was  held,  that 

7  19  0.  S.  485.  9  §  10865  G.  C. 

8  §  10864  G.  C. 


§  251  NEW  BONDS SURETIES,  ETC.  212 

where  a  guardian  of  the  person  and  property  of  a  minor,  having 
received  after  giving  bond,  money  belonging  to  his  ward,  em- 
bezzled the  same,  a  subsequent  discharge  of  the  surety  in  such 
bond  and  tlie  acceptance  by  the  Probate  Court  of  the  bond  with 
other  surety  in  lieu  of  the  first  bond,  will  not  exonerate  such 
surety  in  the  first  bond  with  respect  to  the  money  so  embezzled/^ 
In  another  case  it  was  held  that  when  successive  bonds  with 
different  sets  of  sureties  have  been  given  by  an  executor  and  the 
devastavit  occurred  before  the  execution  and  approval  of  any 
of  the  bonds,  the  liabilities  of  the  sureties  in  the  subsequent 
bonds  is  secondary  to  that  of  the  sureties  on  the  bond  sub- 
sisting and  in  force  at  tlie  time  the  estate  was  wasted;  and 
if  the  former  had  made  good  the  loss,  such  sureties  may  recover 
against  the  latter  the  full  amount  paid  by  them  on  account 
thereon.^^  In  this  case  the  Court  say  "this  last  section  (6206) 
expressly  provides  that  the  sureties  in  the  prior  bond  shall  be 
liable  for  all  breaches  of  its  condition  which  occurred  before 
the  approval  of  the  new  bond.  The  new  bond  is  not  given 
for  the  benefit  of  the  sureties  in  the  old  one,  but  for  the 
benefit  of  the  estate."  ^^ 

§  251.     Liability  of  sureties  on  new  bond. 

Whether  or  not  the  sureties  on  the  new  bond  were  liable  for 
acts  of  an  administrator  or  executor  which  occurred  before  the 
giving  of  such  new  bond  is  always  one  of  some  difiiculty.  This 
matter  was  passed  upon  in  our  Supreme  Court  in  Foster  v. 
Wise.^'*  In  this  case  it  was  found  that  prior  to  the 
time  that  a  new  bond  had  been  given,  the  executor  had 
collected  all  the  assets  and  converted  them  to  his  own  use. 
The  sureties  on  the  new  bond  claimed  that  they  were  only  liable 
for  such  assets  as  were  converted  by  the  executor  after  the 
execution  of  the  bond  of  which  they  were  sureties.      The  Court 

10  Eichelberger  vs.  Gross,  42  0.  S.  testamentary  trustee  are  liable  for 
549.  default   on   the   part  of   the   trustee 

11  Corrigan  vs.  Foster,  51  0.  S.  in  not  accounting  for  funds  ".vhieh 
225.  were  misappropriated  before  the  exe- 

12  See  §§  1353,  1424,  1554.  cution   of   the   bond,   wliere   the   ac- 
The   right   of  contribution   among       count   was    filed    and    the   judgment 

sureties  is  founded  in  contract,  etc.  linding  the  amount  due  was  tendered 

Oldham  vs.  Brown,  28  O.  S.  41 ;  Rus-  after    the    execution    of    the    second 

sell  vs.  Failer,  1  O.  S.  327.  bond.     Smith  vs.  Worley,  12  0.  App. 

12*  46  0.  S.  20.  367. 

Sureties  on  the  second  bond  of  a  See  18  Cyc.  1251. 


213  INDEMNITY,    ETC.  §  252 

refused  to  accept  this  view,  saying  "  the  fact  that  prior  to  exe- 
cuting the  bond  the  administrator  had  converted  the  assets  to  his 
own  use,  in  no  way  affected  the  obligation  to  account  for  all 
that  had  been  received  by  him  belonging  to  the  estate.  It  was 
to  secure  this  obligation  that  the  bond  was  required  to  be  given." 
In  a  subsequent  decision  upon  the  facts  of  the  same  case,^^  it 
was  held  that  while  such  sureties  were  responsible,  yet  if  they 
are  required  to  meet  a  loss  they  could  sue  the  sureties  of  the 
former  bond.  It  therefore  results  that  where  a  defalcation  has 
occurred  during  the  existence  of  the  prior  bond,  and  a  new  bond 
is  given,  that  the  new  bond  becomes  just  so  much  additional 
surety  for  such  defalcation.^* 

§  252,    If  bond  not  given,  may  be  removed  from  trust.    "In 

the  cases  specified  in  the  next  two  preceding  sections,  if  the 
principal  does  not  give  such  new  bond  within  the  time  ordered 
by  the  court,  he  shall  be  removed  from  his  trust  and  some  other 
person  may  be  appointed  in  his  stead,  as  the  circumstances  of 
the  case  require."     [R.  S.  §  6207.] ^^ 

§  253.  When  executor  or  administrator  to  give  bond  of  in- 
demnity to  surety.  "If  an  executor  or  administrator  wastes  or 
unfaithfully  administers  the  estate,  on  the  application  of  a 
surety  in  the  administration  bond,  the  court  granting  the  letters 
may  order  such  executor  or  administrator  to  render  an  account, 
and  to  execute  to  such  surety  a  bond  of  indemnity,  with  sureties 
approved  by  it.  Upon  neglect  or  refusal  to  execute  such  bond 
within  the  time  ordered,  the  court  may  remove  him,  and  revoke 
his  letters  testamentary,  or  of  administration,  and  appoint  an- 
other administrator  in  his  place."     [R.  S.  §6208.]^8 

13  51   O.  S.  226.     See  Woerner  on       ministrator   upon   whose   bond   they 
Admin.  551.  are  surety. 

1*  See  §  1424.  A  bond  given  under  this   section 

15  §  lOSCG  G.  C.  binds  the  obligors  for  any  loss  sus- 

18  §  insoT  G.  C.  tained    by    obligees    on    account    of 

This   section   gives   to   sureties   a       liability    for    executor    existing    at 

method  other  than  that  provided  by       the  time  of  its  execution  and  there- 

5  6204   R.  S.   to  protect  themselves       after  paid  by  the  obligees.     Buffing- 

against  the  wrongful  acts  of  an  ad-       ton  vs.  Bronson,  61  O.  S.  231.     Se« 

§  1554,  Assignees. 
See  §§249,250. 


S  854  NEW  BONDS SURETIES^  ETC.  214 

§  254.     Application,  procedure,  etc. 

The  applications,  notices,  entries,  etc.,  which  have  been 
heretofore  provided  in  this  work  for  a  release  of  surety  on  an 
executor  or  administrator's  bond  can  easily  be  adopted  for  a 
proceeding  under  §  10867  Gr.  C.^' 

§  255.    Sufficient  cause  for  making  order. 

It  is  provided  that  if  the  executor  or  administrator  shall 
waste  or  unfaithfully  administer  the  estate,  the  Court  may 
make  the  order.  In  the  subsequent  section,  it  is  provided 
what  constitutes  unfaithful  administration,  which  is  as  follows: 

"If  an  executor  or  administrator  unreasonably  delays  to  raise 
money,  by  collecting  debts  and  effects  of  the  deceased,  or  by 
selling  the  real  estate,  if  necessary,  and  he  can  obtain  an  order 
therefor,  or  neglects  to  pay  what  is  in  his  hands ;  and  if,  because 
of  such  delay  or  neglect,  the  estate  be  taken  in  execution  by  a 
creditor,  it  shall  be  unfaithful  administration  in  such  executor 
or  administrator,  and  he  shall  be  liable  on  his  administration 
bond  for  all  resulting  damages."     ^R.  S.  §6209.]^® 


§  256.     Form  of  indemnity  bond. 

Know  all  Men  by  these  Presents. 

That  we,  C.  E.  B.,  as  principal,  and  J.  M.  S.  and  E.  M.  are  held  and  firm- 
ly bound  unto  J.  P.  B.  and  J.  R.,  in  the  sum  of dollars, 

for  the  payment  of  which  well  and  truly  to  be  made,  we  do  hereby  bind 
ourselves,  our  heirs,  executors  and  administrators. 

Witness  our  hands  and  seals  this day  of 

190.... 

The  condition  of  this  obligation  is  stich  that,  whereas  the  above  named 
J.  P.  B.  and  J.  R.  are  sureties  for  the  said  C.  E.  B.,  in  a  certain  bond  as 
executor  of  the  estate  of  M.  L. 

Now,  therefore,  if  the  said  C.  E.  B.  shall  save  and  keep  the  said  J.  P.  B. 
and  J.  R.  harmless  from  all  loss  or  damage  by  reason  of  being  sureties  on 
the  said  bond  of  C.  E.  B.  and  such  executor  of  the  estate,  then  this  obliga- 
tion to  be  void,  otherwise  to  be  and  remain  in  full  force  and  virtue  in  law. 

E.  M. 
J.   M.   S. 
C.  E.  B. 

17  §  215  et  seq.  is  §  10868   G.   C. 


215  ADDITIONAL    BONDS  §  257 

§  257.     Construction  placed  upon  such  bond. 

An  indemnity  bond  executed  in  pursuance  of  §  10857  of  the 
G.  C,  conditioned  that  the  obligors  shall  save  and  keep  the 
obligees  harmless  from  all  loss  or  damage  by  reason  of  their 
being  sureties  on  the  bond  of  an  executor,  is  not  limited  in  its 
obligation  to  such  loss  or  damage  as  should  arise  from  the 
failure  of  the  executor  to  pay  over  money  of  the  estate  which 
came  to  his  hands  after  its  execution,  but  binds  the  obligors  for 
any  loss  or  damage  sustained  by  the  obligees  on  account  of 
liability  for  tlie  executor  existing  at  the  time  of  its  execution 
and  thereafter  paid  by  the  obligees.^" 

§  258.     Additional  bonds. 

Several  sections  of  the  G.  C.  provide  for  the  giving  of  ad- 
ditional bonds/'*  and  in  addition  to  these  statutory  provisions 
I  have  no  doubt  the  Court  may  of  its  own  motion  require  ad- 
ditional bonds  to  be  given  at  any  time  when  it  is  believed  by  the 
Court  that  the  bond  already  given  is  insufficient.  There  is 
quite  a  distinction  between  a  new  bond  and  an  additional 
bond :  A  new  bond  relieves  the  original  surety  from  all  wrong- 
ful acts  of  the  administrator  or  executor  which  occurred  after 
the  new  bond  has  been  approved  by  the  Court.  Where  an  addi- 
tional bond  is  given,  the  liability  of  the  surety  on  the  original 
bond  continues.  As  to  all  acts  of  the  administrator  or  executor 
after  the  giving  of  the  additional  bond  the  two  sets  of  sureties 
are  equally  responsible.  As  to  such  acts,  they  occupy  the  rela- 
tion of  co-sureties  for  the  administrator,  and  are  liable  for 
contribution  to  equalize  the  burden  incident  to  the  situation.^* 

It  has  been  held  where  an  administrator  on  his  appointment 
gives  the  bond  required  by  statute  for  the  faithful  adminis- 
tration of  his  trust  as  a  whole,  and  afterward  in  a  proceeding 
instituted  by  him  to  sell  real  estate  of  the  deceased  to  pay  debts, 
gives  another  bond  as  required  by  statute  for  the  faithful  dis- 

i9Buffington  vs.  Bronson,  61  O.  S.  21  Daum  vs.  Kenast,   18  C.  C.  1; 

231.  9  C.  D.  867. 

20  §§  10G33,  10789,  10790  G.  C. 


§  259  NEW  BONDS  SUKETIES,  ETC.  216 

charge  of  his  duties  under  such  proceeding,  such  new  bond 
does  not  take  the  j)lace  of  the  former  general  administration 
bond,  but  the  sureties  upon  the  administration  bond  are  jointly 
liable  with  the  sureties  on  the  bond  under  the  proceeding  to  sell 
real  estate  for  the  faithful  discharge  of  his  duties,  in  such 
proceeding  in  accounting  for  the  proceeds  of  the  sale,  and  an 
action  can  be  obtained  against  all  such  co-sureties  jointly.^^ 
Of  course  the  sureties  on  the  additional  bond  would  not  be 
liable  for  a  devastavit  that  occurred  prior  to  the  giving  of  the 
bond,  unless  the  conditions  of  the  bond  were  such  as  to  make 
them  liable,  the  same  as  if  a  new  bond  were  given.  That  is,  if 
the  condition  was  merely  that  the  administrator  would  faith- 
fully administer  his  trust.  But  I  apprehend  that  if  an  addi- 
tional bond  were  given  to  cover  certain  assets  that  the  surety 
on  such  bond  could  not  be  held  liable  for  a  waste  of  other  assets, 
and  that  if  an  additional  bond  were  given  conditioned  on  the 
faithful  performance  of  certain  acts,  the  surety  on  such  bond 
would  not  be  liable  for  other  wrongful  acts  of  the  adminibtrator 
even  tliough  they  were  committed  after  the  giving  of  such  bond. 
As  to  such  acts  sureties  on  the  original  bond  would  alone  be 
responsible.^^ 

§  259.  General  liabilities  of  sureties. 
The  fact  that  the  signature  of  one  of  the  sureties  was  forged 
has  been  held  not  to  constitute  a  defense  to  the  surety  who 
signed,  believing  it  to  be  genuine.-*  The  contract  of  suretyship 
is  always  strictly  construed,  and  the  liability  is  limited  to  the 
official  acts  of  the  principal."'^  Acts  that  do  not  lie  within  the 
line  of  official  duty  and  authority,  not  under  color  of  office,  the 
officer  may  incur  personal  but  not  official  responsibility,  and 
for  these  acts  the  sureties  are  in  no  way  responsible.-*'  Some 
difficulty  has  been  experienced  in  determining  the  liability  for 
acts  done  merely  under  the  color  of  the  office.  Acts  done  vir- 
tute  officii,  are  where  they  are  within  the  authority  of  the  officer, 
but  in  doing  them  he  exercises  that  authority  improperly,  or 
abu.ses  the  confidence  which  the  law  reposes  in  him,  for  these 

22  Id.,  Sterritt  vs.  Lingu,  4  N.  P.  24  Stern  vs.   People,    102  111.  540; 
366;  Id.,  6  Dec.  481.                                       Sewell   vs.    Breatliett  Lodge,    150   S. 

23  See  Sch.  Exrs.  148;  Woerner  on       W.  Rep.  677. 

Admin.    546,   548.      See    §875,    Real  25  T.ucht  vs.  Behrens,  28  0.  S.  240; 

estate;    §  1353,   Liability   of   surety,       Curtis  vs.  Bank,  30  O.  S.  570;  Hall 
etc.  vs.  Williamson,  9  0.  S.  17;  Myers  V9. 


217  GENERAL    LIABILITIES    OR    SURETIES  §  259 

the  surety  is  liable.  But  for  acts  done  colore  officii  whieli  are 
of  such  a  nature  that  his  office  gives  him  no  authority  to  do, 
then  the  surety  in  many  States  is  held  to  be  not  responsible.-'' 

However,  in  Ohio,-^  as  well  as  in  the  great  majority  of  the 
States,  sureties  have  been  held  liable  for  acts  done  under  either 
case.-"  The  rule  is  that  a  surety  is  bound  by  a  judgment 
against  his  principal,^"  unless  there  was  fraud  or  collusion 
between  the  administrator  and  those  who  seek  to  enforce  the 
payment. ^^  In  some  States  a  surety  may  appeal  from  such  a 
judgment,  though  not  a  party  to  the  record.^-  The  surety  is 
not  discharged  by  the  death  of  his  principal.^^ 

The  death  of  an  administrator  of  an  unsettled  estate  does  not 
start  the  running  of  the  statute  of  limitations  in  favor  of  the 
sureties  on  his  administration  bond,  since  the  liability  of  the 
deceased  administrator  is  not  fixed  until  the  decree  of  the 
■court  approving  the  final  account  submitted  by  his  adminis- 
trator, and  the  statute  does  not  begin  to  run  until  the  rendi- 
tion of  such  decree.^* 

An  administrator  was  also  guardian  of  certain  minor  dis- 
tributees, who  before  the  settling  of  the  administration  account, 
attained  their  majority.  In  such  case  the  liability  to  the 
distributees  was  not,  by  virtue  of  the  vesting  in  one  person, 
the  capacity  of  both  debtor  and  creditor,  transferred  from  the 
administration  to  the  guardian's  bond,  as  at  the  time  payment 
could  have  been  demanded,  the  guardian 's  right  to  receive  funds 

Parker,  6  0.  S.  502;   McGovern  vs.  Carmack    C.    Com.,    5    Binn.    (Pa.) 

State,  2  0.  S.  93;  State  vs.  Conover,  184;    Holliman  vs.  Carroll,  27  Tex. 

4   Dutch.    (N.   J.)    224;    People   vs.  23;     Saiigster    vs.    Com.,    17    Gratt 

Lucas,    93    N.    Y.    585;     Clark    vs.  (Va.)    124. 

Lamb,  76  Ala.  406;  State  vs.  Davis,  so  Goodwin  vs.   Wilson,   1   Blackf. 

88   Mo.  585;  'Gerber  vs.   Ackley,  37  344;   Governor  vs.  Shelby,  2  Blackf. 

Wis.  43.  26;    Salyer    vs.    State,    5    Ind.    202; 

26  McKee  vs.  Griffin,  66  Ala.  211.  Speer  vs.  Pichmond,  3  Mo.  App.  572; 

27  Carey  vs.  State,  34  Ind.  105;  People  vs.  Stacy,  11  111.  App.  506; 
Brown  vs.  Mosely.  11  S.  &  M.  Martin  vs.  Tally, '72  Ala.  23 ;  McClel- 
(Miss.)  354;  McElhany  vs.  Gille-  Ian  vs.  Downey,  63  Cal.  520;  Morri- 
land,  30  Ala.  183;  State  vs.  Conover,  son  vs.  Lavell,'81  Va.  519;  Slagle  vs. 
4  Dutch.  (N.  J.)  224;  State  vs.  Entrekin,  44  O.  S.  637.  See  Nichol- 
Lonjr,  8  Tred.    (X.  C.)    415;    Gerber  son  vs.  Carr,  3  Blackf.  104. 

vs.  Acklev,  32  Wis.  233.  3i  Wolff  vs.   Shaeffer.  4  Mo.   App. 

28  State  vs.  .TpnninjTs.  4  0.  S.  418;  367:  S.  C.,  74  Mo.  154;  Scofield  vs. 
Hubbard  vs.  Elden,  43  O.  S.  380.  Churchill,  72  N.  Y.  565. 

29  Van  Pelt  vs.  Littler.  14  Cal.  32  McCartnev  vs.  Garneau,  4  Mo. 
194;  Charles  vs. . Raskin.  11  Towa  App.  566;  People  vs.  Stacv.  11  Til. 
329;  Hnran  vs.  People.  10  TU.  App,  App.  .506;  Buch's  Appeal,  102  Pa. 
21:    Turner    vs.    Sisson.    137    Mass.  St.  502. 

191:    State  vs.  Moore.    19  Mo    360;  ^s  State    vs.    PTouston,    4    Blackf. 

Turner    vs.    Killian,     12    Xeb.    5«0;  291 

Cumminjjs  vs.  Brown.  43  "N".  Y.  514;  ^4  Williams  vs.  State,  10  So.  Rep. 

People    vs.    Lncas,    93    N.    Y.    585;  52;  S.  C,  68  Miss.  680. 


§  259a  NEW   BONDS — SURETIES,    ETC.  218 

had  ceased.^^    In  the  absence  of  fraud,  etc.,  the  surety  is  bound 
by  the  finding  of  the  Probate  Judge.^° 

§  259a.  Reduction  of  bond.  Sometimes  an  estate  can  not 
be  settled  in  full  during  the  first  year  and  it  becomes  necessary 
to  continue  the  bond  for  a  longer  time,  and  very  often  but  a 
comparatively  small  amount  of  the  original  assets  remain  for 
distribution.  "Where  a  private  individual  is  the  surety  this 
does  not  become  a  material  matter  provided  the  bondsman  is 
willing  to  remain  on  the  bond;  but  if  a  surety  company  is 
bondsman,  it  is  material  to  have  the  costs  reduced  by  having 
the  bond  reduced.  In  such  cases  an  application  should  be  filed 
in  the  Probate  Court  setting  forth  the  reasons  for  such  reduc- 
tion, and  an  entry  permitting  the  same.  The  following  may 
serve  as  general  forms : 

FORM. 
"In  re  Estate  of 


[    Application  to  Reduce  Bond. 


Now  comes  ,  administrator  of  estate  of   ,  and 

represents  to  the  court  that  he  has  tiled  his  first  account  in  said  estate  and 

has  made  disposition  of  assets  amounting  to  $ ,  and  still  has  on  hand 

assets  of  said  estate  of  the  par  value  of  $ ,  his  liability  being  pro- 
tected by  the  surety  company  of    ,  and  he  says   it   would  be 

to  the  interest  of  said  estate  to  reduce  the  original  bond  from  $ to 

$ to  cover  his  liability  for  remaining  assets  in  his  possession." 


Administrator. 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this 

day  of  ,  192..." 

FORM. 
"In  re  Estate  of       |      ^^^^^  ^^  ^^^^^^  ^^^^ 

This  matter  came  on  for  hearing  upon  application  of  the  administrator 

of  the  estate  of    for  reduction  of  his  bond  from  $ to 

$ ,  and  upon  evidence,  no  good  reason  appears  why  said  bond  should 

not  be  reduced;  and  it  appearing  to  the  court  that  it  would  be  to  the  best 
interests   of   said  estate  to   reduce  said  bond,   it  is  therefore  'ordered  that 

said  bond   be  reduced  from  $ to  $ ,   and  the   liability  of  the 

surety  on  said  bond  of  said  administrator  be  reduced  accordingly." 

35  Burnside  vs.  Robertson,  6  S.  E.       trator  dc   bonis  non,   instead  of  an 
Rep.  843;   S.  C,  30  S.  C.  459.  administrator  de  bonis  non  with  the 

Such    bond    is    strictly    construed  will  annexed,  the  surety  on  the  bond 

and  when  an  administrator  received  was  held.     Newberger  vs.  Finney,  17 

money    from    an     insurance     policy  C.  C.  215;  9  C.  D.  720. 

which   belonged   to   such   persons   as  The  surety  is  estopped  to  deny  a 

the    insured    might    designate,    the  legal    appointment    of    an    executor, 

bondsmen    were    not    liable.      Mur-  where    the    bond    recites    such    fact, 

phey  vs.  Dorsey.  23  C.  C.  157.  HoflFman  vs.  Fleming.  47  Bull.  430. 

36  Gardner  vs.  Eshhrock,  34  Bull.  Where    an    administrator    gave    a 
287.  general    bond,   and    afterwards   gave 

A    surety    upon    a    juderment    for  an    additional   bond   to   sell    real   es- 

$2,300  can  not  be  liable  for  a  iudsr-  tate,   both   bonds   are   equally   liable 

ment  of   .$2,346.     Hall   vs.   William-  for  failure  of  administrator  to  pay 

son.  9  O.  S.  17.  inheritance  tax.     Hunt  v.   Bonding 

But  where  by  mistake  an  adminis-  Co.,  58  Bull.  249. 


219  SUIT  ON  BONDS  §  260 


CHAPTER  XVII. 

SUIT  ON  BONDS. 

$  260  Procedure  —  Remedy,   etc.  6  271  Form  of  application. 

8  261  Jurisdiction.  §  272  Entry    ordering    hearing    and 

§  262  Suit  by  creditor  on  liquidated  notice,  etc. 

demands.  §  273  Notice,  etc. 

§  263  Kind  and  nature  of  creditor's  §  274  Hearing,  etc. 

claim.  §  275  Form  of  entry  granting  leave 

§  264  When   suit  could  be  brought  to  bring  suit. 

by  creditor.  §  276  Defense   in   suit   on  adminis- 

§  265  Suit  by  legatee  or  distributee  tration   bond   for   not   filing 

on    liquidated     demand.  account  —  Costs. 

S  266  When  right  accrues  to  legatee,  §  277  In    suit    on    bond,    claim    al- 

etc.  lowed  to  be  prima  facie  evi- 

§  267  At  what  time  action  may  be  dence    only    of    its    justice. 

brought.  How    such    claim    contested. 

§  268  Suit  o"n  unliquidated  demand.  §  ^78  Suit    by    succeeding    adminis- 

,    ^  trator   or  executor   on   bond. 

§  269  When  Probate  Court  may  au-  §  279  Time  within  which  suit  may 

thorize  suit  to   be  brought.  be  brought. 
§  270  Application  for  leave,  etc. 

§  260.    Procedure.     Remedy,  etc. 

In  the  two  preceding  chapters  we  have  treated  of  the  manner 
in  which  bonds  should  be  given,  their  forms  and  liabilities 
thereon.  It  now  remains  to  speak  of  the  manner  in  which 
the  rights  sought  to  be  protected  by  such  bonds  may  be  enforced. 
The  giving  of  a  bond  by  an  administrator  or  executor  never  re^ 
leases  him  from  a  personal  liability  for  any  devastavit  of  the 
estate;  and  therefor  it  has  been  very  properly  held  that  the 
remedy  on  a  bond  is  a  cumulative  one.*  As  a  matter  of  course 
no  liability  would  exist  on  a  bond  given  by  an  administrator 
or  executor  unless  he  had  been  guilty  of  such  conduct  as 
would  have  made  him  personally  liable.     But  such  personal 

1  Thomas  vs.  Chamberlain,  39  O.  S.  119. 


§  260  SUIT  ON   BONDS  220 

liability  of  the  administrator  or  executor  must  have  been  such 
an  one  as  resulted  from  a  wrongful  exercise  of  his  rightful 
authority  as  such  official,  it  must  be  an  act  which  was  within 
his  authority.  Thus  if  an  administrator  gives  a  note  in  settle- 
ment of  some  claim  against  the  estate  and  thereafter  refuses  to 
pay  the  note,  this  would  not  be  such  misconduct  on  his  part 
as  would  authorize  a  suit  on  the  bond  as  the  giving  of  notes  was 
beyond  his  power.' 

The  bonds  given  by  an  administrator  or  executor  being  stat- 
utory it  may  be  said  that  the  remedy  thereon  is  also  statutory, 
and  the  action  in  order  to  exist  must  come  within  the  provisions 
of  the  statute.  Several  distinctions  are  made  by  the  various 
sections  as  to  tiie  manner  in  whicli  an  action  on  the  bond  can 
be  brought.  By  §§  10869  G.  C.  (§  262)  and  10870  G.  C.  (§  265), 
the  action  can  only  be  brought  when  the  demand  has  in  some 
manner  been  passed  upon,  or  is  what  is  called  a  liquidated  de- 
mand. It  can  be  brought  by  a  creditor,  legatee,  or  distributee, 
and  is  brought  for  the  benefit  of  the  person  who  institutes  the 
action.  The  other  action  provided  for  is  on  unliquidated  de- 
mand ;  and  is  brought  by  any  person  interested ;  but  for  the 
benefit  of  all  who  may  be  interested  in  the  estate.  In  the  latter 
case  the  action  can  only  be  instituted  after  leave  is  granted  by 
the  Probate  Court.  These  distinctions  will  be  discussed  further 
in  the  following  sections  of  this  chapter.^ 


2  Curtis  vs.  Bank,  39  O.  S.  579.  See  §  612,  Limitation  of  action 
See  Flickinger  vs.  Sauni,  40  0.  S.  against  Admin.;  §  762,  Distribution 
591,  whp^e  it  was  held  that  the  ex-  of  assets  j  §  784,  Sureties  and  liabil- 
ecutor  was  personally  liable,  but  not  ities. 

on  his  bond.  Suit    should    be    brought    against 

3  As  it  is  not  within  the  province  all  the  obligors.  It  is  error  to  ren- 
of  this  work  to  go  into  the  detail  der  a  several  judgment  against  one 
of  the  practice  and  jurisdiction  of  or  more,  leaving  the  action  to  pro- 
courts  other  than  the  Probate  Court,  ceed  against  the  others.  Voss  vs. 
and  as  all  actions  on  bonds  are  Loomis,  1  C.  C.  20;  1  C.  D.  12. 
brought  in  such  other  courts,  we  Citing  23  0.  S.  243;  27  0.  S.  674. 
must  content  ourselves  with  refer-  In  an  action  on  the  bond  where 
ence  to  standard  works  treating  on  the  bond  recites  the  appointment  of 
these  subjects.  See  Kinkead's  PI.,  an  administrator,  and  the  bond  is 
§  354 ;  Whittakers  Forms,  134.  approved  by  the  Probate  Court,  sur»- 


2'^^!  JURISDICTION  §  261 

§  261.     Jurisdiction. 

Some  confusion  formerly  arose  as  to  the  court  in  which  the 
suit  on  an  administrator's  bond  should  be  brought.  Before  the 
adoption  of  the  present  constitution  the  Court  of  Common  Pleas 
had  probate  jurisdiction  and  the  statute  provided  that  a  suit  on 
such  bond  should  be  brought  in  the  court  in  which  it  was  filed. 
It  was  claimed  therefore  that  suvfli  action  must  be  brought  in  tbe 
Probate  Court  as  that  was  the  court  in  which  the  bond  was 
filed.  But  this  was  denied.*  It  has  also  been  held  tliat  a  justice 
of  the  peace  has  no  jurisdiction  in  a  suit  on  an  administrator's 
bond.^  The  codifiers  out  of  several  former  sections,  evolved 
the  following  as  our  present  statute : 

"An  action  on  the  bond  may  be  brought  in  the  common  pleas 
or  superior  court  of  the  county  in  which  it  was  given,  for  the 
particular  relief  only  to  which  the  plaintiff  is  entitled,  or  be 
framed,  in  the  petition  or  any  cross-petition  filed  in  the  case, 
with  a  view  to  a  settlement  of  all  matters  for  which  the  prin- 
cipal in  the  bond  is  accountable.  Heirs,  devisees,  legatees, 
widow,  or  next  of  kin,  or  others,  who  may  be  liable  on  account 
of  assets  coming  into  their  hands,  or  otherwise  are  proper  par- 
ties to  be  made  defendants.  When  the  action  is  framed  for 
that  purpose  and  the  necessary  parties  are  before  the  court,  it 
may  adjust  and  settle  the  estate  in  whole  or  part,  rendering 
all  judgments  renuired,  and  awarding  costs  as  it  deems 
proper."     [R.  S.  §  6215.]« 

This  section,  it  will  be  observed,  leaves  no  open  question  as  to 
the  court  having  jurisdiction.  Likewise  it  makes  ample  provi- 
sion for  settling  all  demands  that  may  exist  between  the  parties. 
The  action  must  be  brought  in  the  county  in  which  the  bond  is 
filed.' 

ties    on    the   bond    are    estopped    to  s  §  10874  G.  C. 

deny  tlie  due  appointment     Hoffman  ,  Hackworth  vs.  Robinson,  31  O.  S. 

vs.  Heming,  47  Bull.  430,  Sup.  Ct. 

4  Dawson  vs.  Dawson,  25  0.  S.  656.  See  §  784,  Sureties  may  be 
443;    Reed  vs.   Reed,    10   C.   C.  44;  made  parties,  etc. 

6  C.  D.  19. 

5  Hackworth   vs.  Robinson,  31   O. 
S.  655. 


§  262  SUIT  ON  BONDS  222 

§  262.     Suit  by  creditor  on  liquidated  demands. 

The  various  sections  provide  for  suits  bj  persons  in  various 
capacities.  If  tlie  demand  is  an  unliquidated  one,  unless  the 
suit  be  by  an  administrator  de  bonis  non,^  leave  of  the  Probate 
Court  must  first  be  obtained.  The  following  {?.  the  section 
providing  for  suit  by  a  creditor  on  a  liquidated  demand. 

"After  a  creditor  is  entitled  by  law  to  payment  of  his  debt 
by  the  executors  or  administrators,  and  the  amount  of  the 
claim  either  has  been  admitted  to  be  just,  allowed  bv  them 
ascertained  by  judgment  or  award  against  them,  or  bv  an  order 
ot  distribution,  the  bond  they  gave  for  the  discharge  of  their 
trust,  may  be  put  in  suit  by  such  creditor,  if  upon  demand 
made  by  him,  they  neglect  to  pay  his  claim."     [R.  S.  §  6210.]^ 

§  263.     Kind  and  nature  of  creditor's  claim. 

It  will  b^  observed  that  the  claim  or  demand  must  be  one  that 
has  been  admitted  or  allowed  by  tlie  executor,  or  if  it  has  not 
been  allowed  by  the  executor,  that  it  has  been  ascertained  by  a 
suit  tliereon  as  provided  for  in  the  section  referring  to  rejected 
claims,  or  it  must  be  the  amount  found  by  an  award  of  arbitra- 
tion, or  it  must  be-  an  amount  which  the  Probate  Court  has  or- 
dered to  be  distributed.  The  only  instance  in  which  the  probate 
Court  can  order  a  certain  amount  distributed  to  a  creditor  is, 
when  the  estate  is  declared  insolvent,  then  tlie  Court  ascertains 
the  amount  due  to  each  creditor;  and  no  doubt  that  is  the  re- 
quirement here  alluded  to,  when  it  permits  a  creditor  to  sue 
on  an  order  of  distribution.^** 


8  See  8  628,  Executions  against;  rata  the  amount  or  the  entire 
§  157,  Proceeding  against  former  amount,  as  the  assets  may  prove, 
admin.  etc.     Smoclc  vs.  Bouse,  12  C.  C.  46; 

9  §  10869  G.  C.  5  C.  D.  293. 

10  See  State  vs.  Cutting,  2  0.  S.  1 ;  Tlie  remedy  on  the  bond  is  cumu- 
Cadwallader  vs.  Longley,  1  D.  407.  lative.     Thomas  vs.  Chamberlain,  39 

When  a  claim  is  not  disputed  or  O.  S.  112. 

rejected,  upon  its  presentation,  it  is  Action     must     aver     a     demand, 

a  sufficient  allowance  to  allow  a  suit  Woodson  vs.  State,  17  O.  161. 
to   be   brought   for   the    money,   pro 


223  WHEN    BROUGHT    BY    CREDITOR  §  264 

§  264.     When  suit  could  be  broug-ht  by  creditor. 

Before  suit  can  be  brought,  there  must  be  a  demand  made, 
but  there  need  not  be  obtained  a  leave  of  Probate  Court.^^ 
Likewise  it  must  be  shown  that  the  administrator  has  received 
assets  applicable  to  the  payment  of  such  claims.  The  provisions 
of  §  10740  G.  C,  §  611,  excepting  the  executor  or  administrator 
from  suit  of  creditor  for  twelve  months  from  date  of  bond,  or 
further  time  allowed  by  Court,  has  no  application  to  suits  upon 
the  administration  bond ;  and  where  the  debt  of  a  creditor  has 
been  allowed  and  the  executor  or  administrator  has  funds  in  his 
hands  applicable  to  its  payment,  if  the  estate  is  solvent  the 
creditor  is  entitled  by  law  to  its  payment  within  twelve 
months  from  the  date  of  administration  bond.  If  not  paid  he 
may  after  the  expiration  of  that  time,  upon  demand,  bring 
suit  upon  the  bond  and  recover  notwithstanding  further  time  is 
given  to  collect  the  remaining  assets  of  the  estate.^- 

§  265.     Suit  by  legatee  or  distributee  on  liquidated  demand. 

"Such  suit  also  may  be  brought  by  a  legatee,  after  he  is  enti- 
tled to  the  payment  of  his  legacy,  and  by  the  widow,  or  other 
distributee,  to  recover  her  share  of  the  personal  estate,  after 
an  order  of  the  court,  ascertaining  the  amount  due  to  her,  if 
the  executor  or  administrator  neglects  to  pay  it  when  de- 
manded."    [R.  S.  §6211.] '3 

§  266.     When  right  accrues  to  legatee,  etc. 

The  same  rule  applies  to  a  legatee,  widow  or  distributee  under 
the  provisions  of  §  10870  G.  C.  (§  265)  as  applies  to  a  creditor 
under  §  10869  G.  C.   (§  262).^*     It  will  be  observed  that  there 

11  State  vs.  Cutting,  2   0.   S.   1.  the  estate  of  a  cosurety,  it  was  held 

12  Greer  vs.  State,  2  0.  S.  575.  that   the   living   surety   could    plead 
In    this    case    a    query    was    made       this  set-off.     Fisher  vs.   Cassidy,  49 

whether  or  not  a  suit  could  be  sus-  O.    S.   421. 

tained  after  one  year,  and  before  the  In   an  action  brought   under    this 

expiration  of  eighteen  months.     The  section    there    must    be    a    demand 

probabilities  are  that  the  suit  could  made    before    there    is    a    right    to 

not  be  maintained  until  the  expira-  sue,   and  the  amount  must  be  fixed 

tion  of  eighteen  months.     See  Ham-  by    a    court    of    competent    jurisdic- 

merle  vs.  Kramer,   12  0.   S.  252.  tion,  before  such  right  exists.    Henry 

See  present  statute.  vs.  Doyle,   82   O.    S.    113. 

13  §  10870  G.  C.  See  §  761  ct  src,. 

Where  an  action  was  brought  by  a  i4  state  vs.   Cutting,  2   0.  S.   1. 

distributee   against   a   livin?   surety, 
who  Iiad  received  a  distribution  from 


§  266  SUIT   ON    BONDS  224 

are  three  persons  under  §  10870  G.  C.  that  may  bring  an  action. 
First  is  a  legatee,  after  he  shall  be  entitled  to  the  payment  of 
his  legacy.  The  question  here  might  arise  whether  a  legatee 
could  bring  suit  on  the  bond  without  an  order  of  the  Probate 
Court  directing  the  executor  to  pay  such  a  claim.  If  the  legacy 
is  a  general  one,  that  is,  one  the  amount  to  which  the  legatee  is 
entitled,  would  depend  upon  what  remains  for  distribution,  I 
have  no  doubt  that  the  legatee  must  pursue  the  same  course  as 
a  distributee.  But  if  the  legacy  is  a  specific  one  and  the 
amount  of  the  same  is  not  and  cannot  be  disputed  by  the  execu- 
tor, the  right  would  accrue  under  the  same  conditions  as  a 
creditor's  claim.  A  very  interesting  decision  upon  the  right 
of  the  legatee  to  enforce  payment  of  his  legacy,  is  that  of  Isher- 
wood's  Estate. ^°  Here  the  legacy  was  a  specific  one  and  an 
application  was  filed  in  the  Probate  Court  of  Lucas  County  to 
have  an  order  made  on  the  executors  to  pay  the  legacy.  It  was 
admitted  that  the  estate  was  ample  to  pay  all  debts  and  the 
Court  held  that  it  had  authority  to  order  the  executor  to  pay 
such  legacy,  and  also  had  power  where  it  was  shown  that  ample 
and  sufficient  assets  remained,  to  pay  all  possible  debts,  to 
order  payment  to  be  made  without  giving  an  indemnity  bond. 
The  second  person  provided  for  is  the  widow.  From  the  read- 
ing of  this  section  one  would  be  inclined  to  believe  that  the 
only  right  conferred  on  the  widow,  was  to  recover  on  the  bond 
when  some  order  had  been  made  by  the  Probate  Court,  ascer- 
taining her  distributive  share  of  the  personal  estate ;  and  such 
was  the  view  taken  by  Judge  White  in  Dawson  vs.  Dawson.^® 
ISTo  doubt  she  has- such  a  remedy,  but  has  she  the  right  to  re- 
cover on  the  bond,  when  the  administrator  or  executor  refuses  to 
pay  the  allowance  made  to  her  for  her  year's  maintenance? 
This  matter  is  not  free  from  doubt,  but  when  the  inventory  is 
returned  and  approved  by  the  Court,  and  no  exceptions  have 
been  taken  thereto,  the  amount  coming  to  the  widow  has  been 
fixed  and  ascertained ;  and  there  is  no  other  order  of  the  Court 
needed  in  the  ascertainment  of  such  amount.  The  reasons  there- 
fore for  holding  that  the  widow  might  recover  on  such  a  claim, 

16  7  N.  P.  332 ,  5  Dec.  143.  Such    legacy    is    payable    in    one 

16  25  O.  S.  449.  year,  etc. 


"225  TIME   ACTION   BROUGHT  §  267 

are  very  strong.  For,  after  the  amount  coming  to  her  is  fixed, 
she  certainly  has  as  good  a  right  as  a  creditor  whose  claim 
has  been  allowed,  or  a  legatee  whose  claim  is  specific.  No 
doubt  she  could  have  an  order  of  the  Probate  Court,  directing 
the  administrator  or  executor  to  pay  the  same  on  showing  that 
he  could  do  so  without  any  personal  liability.  The  third  class 
entitled  to  sue  under  the  provisions  of  10870  G.  C,  are  distrib- 
utees after  an  order  of  Court  has  been  had,  ascertaining  the 
amount  that  is  due  them.  The  action  would  not  lie  where  no 
further  proceedings  were  had  than  the  filing  of  an  account  and  a 
general  order  of  distribution  made  thereon ;  for  it  should  not  be 
forgotten  that  the  only  order  that  a  Probate  Court  can  make  in 
passing  upon  an  account,  is  an  order  to  distribute  according  to 
law." 

In  order  to  ascertain  what  is  due  to  each  distributee,  or  where 
the  legacy  is  a  general  one — indefinite  in  amount,  or  to  a  widow 
in  relation  to  her  share  of  the  personal  estate,  a  suit  would 
need  to  have  been  first  brought  in  a  Probate  Court  or  other 
court;  and  a  finding  made  in  such  case  determining  the  exact 
amount  coming  to  each  person.  The  action  brought  by  a  credi- 
tor, a  legatee,  a  widow,  or  distributee  under  the  provisions  of 
sees.  10870  and  10869  G.  C.  is  for  the  benefit  of  the  persons  in- 
stituting the  action.^* 

§  267.     At  what  time  action  may  be  brought. 

After  the  Probate  Court  or  other  court  under  the  provisions  of 
§10848-49  (§761)  has  ascertained  the  amount  coming  to  a  distrib- 
utee the  action  may  be  maintained.  But  if  such  suit  is  brought 
within  eighteen  months  from  the  time  that  the  administrator 
has  given  notice  of  his  appointment,  such  distributee  must  first 
give  an  indemnity  bond  to  protect  such  administrator  from  lia- 
bility for  all  further  claims  against  said  estate."     A  specific  leg- 

17  Bank  vs.  Beebe,  62  0.  S.  41.  etc.    Gardner  va.  Ashbrook,  34  Bull. 

18  In   an  action   on  the  bond   the       287. 

sureties,  in  the  absence  of  fraud,  etc.,  i9  Dawson   vs.    Dawson,   25   O.   S. 

are  bound  by   the   finding  made  by      443. 
the  Probate  Judge  as  to  the  amount. 


§  268  SUIT  ON  BONDS  226 

acy  does  not  become  due  until  one  year  after  the  time  letters  have 
been  granted  and  no  action  could  be  had  thereon,  until  eighteen 
months  from  such  apppointment.  Whether  or  not  the  Court 
might  in  any  case  permit  such  an  action  without  an  indemnity 
bond  may  be  questioned.  But  if  the  case  heretofore  referred 
to,^**  is  to  be  followed  there  may  be  cases  when  the  action  might 
exist  without  such  a  bond  having  been  given.  The  general 
statute  of  limitations  applies  and  no  action  could  be  maintained 
if  more  than  ten  years  had  elapsed  since  the  action  accrued.^^ 

§  268.     Suit  on  unliquidated  demand. 

If  an  administrator  or  executor  has  committed  a  devastavit, 
any  person  interested  although  the  demand  may  be  unliquidated, 
may  bring  an  action  on  the  bond.^"  The  action  in  such  a  case 
may  be  brought  in  the  name  of  the  person  who  institutes  the 
action.  It  might  be  brought  in  the  name  of  the  State,  and 
such  would  be  the  better  practice."^  But  whatever  is  recovered, 
will  be  for  the  benefit  of  all  interested  in  the  estate.'^*  Thus  it 
would  seem  tliat  where  a  person's  claim  is  fixed  and  specific,  the 
action  should  not  be  brought  under  the  provisions  of  sees.  10868 
(§  255),  10871  (§  269),  but  rather  under  sees.  10S69-10870,  G.  C. 
Before  an  aetion  can  be  brought  on  an  unliquidated  demand, 
leave  of  the  Probate  Court  in  which  the  appointment  was  made, 
must  be  procured.  The  object  and  purpose  of  such  leave  is  to 
guard  the  executor  and  his  sureties  against  groundless  prosecu- 
tion and  mere  technical  breaches  without  substantial  injury.-^ 

§  269.    When  Probate  Court  may  authorize  suit  to  be  brought. 

Sees.  10869  and  10871  (§§265  and  269),  having  provided 
for  the  recovery  against  the  obligors  of  a  bond,  where  the  claim 

20  Isherwood's  Estate,  7  X.  P.  23  Migliton  vs.  Dawson,  38  0.  S. 
333;  5  Dec.  143.  650. 

21  See  §  11226  G.  C;   §20.  24  Dawson   vs.    Dawson,   25    0.    S. 

22  Under  former  law  it  was  held  443;  Greer  vs.  State,  2  0.  S.  574. 
that  an  action  for  devastavit  could  See  Woodson  vs.  State,  17  0.  161, 
not  be  maintained.  Stewart  vs.  for  decision  under  former  statute 
Treasurer,  4  0.  98;  Treasurer  vs.  requiring  a  demand  before  suit  could 
Kemp,  5  0.  240.  be  brought. 

25  State  vs.  Cutting,  2  0.  S.  8. 


227  APPLICATION  FOR  LEAVE  §  270 

has  been  liquidated,  it  remains  to  provide  a  remedy  to  an  inter- 
ested person  who  may  be  injured  by  a  devastavit  of  the  adminis- 
trator or  executor,  but  whose  claim  has  not  been  reduced  to  a 
settled  demand.  In  order  to  save  the  bondsman  from,  possibly, 
a  needless  litigation,  it  is  provided  that  before  such  suit  can  be 
filed,  the  court  having  jurisdiction  over  an  administrator  or 
executor  must  give  leave  to  file  the  same.  The  statute  relating 
thereto  is  as  follows: 

"When,  on  the  representation  of  a  person  interested  in  the 
estate  of  a  deceased  testator  or  intestate,  it  appears  to  the  pro- 
bate court  that  the  executor  or  administrator  has  failed  to  per- 
form his  duty,  in  any  other  particular  than  is  specified  in  the 
next  two  preceding  sections,  the  court  may  authorize  any  cred- 
itor, next  of  kin,  legatee,  or  other  person  agsrrieved  by  such 
maladministration,  to  bring  a  suit  on  the  bond."  [R.  S. 
§6212.]-« 


§  270.     Application   for  leave,   etc. 

While  the  statute  does  not  indicate  that  the  application  should 
be  in  writing  and  a  finding  made  thereon  of  record,  yet  no  doubt 
such  would  be  the  proper  practice.  And  in  another  State  under 
a  very  similar  statute  it  is  said  that  the  petition  should  state 
clearly  all  the  facts  necessary  for  the  consideration  of  the  Court, 
or  properly  to  be  notified  to  an  adverse  party,  upon  the  petition. 
The  citation  ought  to  be  issued  to  the  administrator  and  his 
sureties,  and  that  a  petitioner  ought  to  see  tliat  the  citation  is 
served  in  the  manner  required  by  its  terms. '^ 

It  is  further  said  that  the  petitioner  must  be  prepared  at  the 
time  fixed  for  hearing,  to  show  that  the  administrator  has  so 
failed  to  perform  his  duties  and  to  render  proper,  a  suit  on  his 
bond.  And  the  order  can  only  be  made  by  a  decree  in  writing."® 
It  may  be  doubted  whether  it  is  absolutely  essential  that  a  notice 
be  issued  to  either  the  administrator  or  the  sureties  on  the  bond. 
But  it  would  be  wise  to  do  so. 


2e§  10871   G.   C.  Bennett    vs.    Woodman,    116    Mass. 

27  Smith  Probate  Law,  398;  Rich-       518. 
ardson   vs.   Oakman,    15   Gray.    57;  28  Fay  vs.  Rodgers,  2  Gray.  175. 


§  2T1  SUIT  ON  BONDS  228 

§  271.     Form  of  application. 

{Title.) 

Now  comes  A.  B.  and  represents  to  the  court  that  on  the day  of 

the  said  C.  D.  was  appointed  and  is  still  acting  as 

administrator  (or  executor)  of  the  estate  of  E.  F.  He  further  represents 
that  he  is  an  interested  person  in  the  administration  of  said  estate  in  this, 
to-wit: 

( Here  set  out  in  detail  the  interest  that  the  party  filing  the  application 
claims  to  have.)  Said  A.  B.  further  represents  that  the  said  C.  D.  has 
committed  a  devastavit  in  the  administration  of  the  said  estate  in  the 
following  manner,  to-wit: 

(Here  insert  the  manner  in  full  which  it  is  claimed  an  injury  is  being 
committed. ) 

Wherefore  said  A.  B.  prays  that  the  court  may  issue  a  citation  for  said 
C.  D.  to  appear  in  this  court  on  the  day  to  be  named,  and  state  a  cause 
why  the  said  A.  B.  should  not  be  granted  leave  to  commence  a  suit  on  the 
bond  of  the  said  C.  D. ) ,  and  that  upon  the  hearing  of  said  cause  he  may 
be  granted  leave  to  bring  such  suit. 

Sign.29 

§  272.     Entry  ordering  hearing  and  notice,  etc. 

While   as  before  herein   indicated  it  may  not  be  necessary 

that  notice  be  issued  to  the  administrator  and  his  bondsman,  it 

would  be  well  to  do  so ;  and  the  entry  may  be  in  the  following 

form: 

This  day  came  A.  B.  and  filed  herein  his  application  for  leave  of  court 
to  bring  suit  on  the  bond  of  C.  D.,  filed  herein  as  executor  (or  admin- 
istrator) of  the  estate  of  E.  F.     Wherefore  it  is  ordered  that  said  matter  be 

set  for  hearing  on  the day  of ,  at o'clock, 

and  that  a  notice  thereof  be  issued  and  directed  to  (here  insert  name  of 
person  who  is  to  serve  the  same),  notifying  the  said  C.  D.,  G.  H.  and  I.  K. 
of  the  matter  set  forth  in  said  application  and  the  time  of  hearing  same. 

§273.     Notice,  etc. 

The  form  of  notice  given  under  other  chapters  of  this  work, 
commanding  the  administrator  or  executor  to  appear  before 
court,  may  be  used  in  this  instance.^"  And  what  has  been  there 
said  about  the  service  of  said  notice  and  the  proof  of  sen'iee  is 
applicable  here. 

29  This    application    ought    to    be  3o  §  247. 

sworn   to    as   petitions    are   usually 
verified. 


229  HEARING  §  274 

§  274.     Hearing,  etc. 

As  to  what  might  constitute  siich  a  devastavit  as  would  justify 
the  Court  in  giving  leave  to  sue,  etc.,  will  depend  upon  the  par- 
ticulars of  each  case.  It  is  provided  in  a  previous  section,^^ 
"  that  if  an  executor  or  administrator  shall  unreasonably  delay 
to  raise  money,  by  collecting  the  debts  and  effects  of  the  de- 
ceased, or  by  selling  the  real  estate  if  necessary,  and  he  can 
obtain  an  order  therefore,  or  shall  neglect  to  pay  what  he  has  in 
his  hands;  and  if,  in  consequence  of  such  delay  or  neglect, 
the  estate  of  the  deceased  shall  be  taken  in  execution  by  an^ 
other  of  his  creditors,  it  shall  be  deemed  unfaithful  admin- 
istration, and  such  executor  or  administrator  shall  be  liable  on 
his  administration  bond,  and  all  damages  occasioned  thereby." 
In  addition  to  the  provisions  of  this  section  there  might  be  a 
great  many  other  instances  in  which  the  Court  would  be  justified 
in  granting  leave.  Thus  if  the  administrator  had  failed  to  file 
an  inventory  or  even  if  he  filed  an  account  and  tlie  account 
did  not  correctly  state  the  assets,  leave  could  be  granted.  But 
leave  ought  not  to  be  granted  if  there  is  no  immediate  danger  of 
the  applicant  or  the  estate  suffering  an  injury.  The  administra- 
tor and  perhaps  his  bondsman  ought  to  have  an  opportunity  to 
arrange  the  difficulty  without  litigation  if  possible;  The  leave 
ought  never  to  be  granted  unless  a  good  cause  is  sho^vn.  It 
ought  not  to  be  had  for  the  mere  asking.  The  Court  ought  to  go 
into  the  fact  that  the  person  filing  the  application  has  some  in- 
terest at  stake,  as  well  as  a  finding  that  there  has  beeu  a  prima 
facie  devastavit. 

§  275.     Form  of  entry  granting  leave  to  bring  suit. 

(Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  application  heretofore 
filed  in  this  court  by  A.  B.  for  leave  from  this  court  to  bring  suit  on  the 
bond  of  C.  D.  as  executor  (or  administrator)  of  the  estate  of  E.  F.,  and 
it  appearing  to  the  Court  that  said  C.  D.  had  due  and  legal  notice  of  the 
said  application  and  the  time  for  hearing  thereon.  The  same  came  on  to  be 
heard  upon  the  said  application  and  testimony. 

Whereupon  the  Court  finds  good  cause  has  been  shown  for  granting  to  the 
said  A.  B.  the  leave  of  this  court  to  bring  a  suit  on  the  said  bond  of  the  said 

31  §  10808  G.  C,  §  255. 


§  276  SUIT   ON   BONDS  230 

C.  D.  and  his  sureties   thereon.     Wherefore  it   is  ordered  that  leave  be 
granted. 

§  276.  Defense  in  suit  on  administration  bond  for  not  filing 
account — costs.  "In  actions  on  a  bond  of  an  administrator  or 
executor,  for  its  breach  by  not  filing  his  final  account  at  the  time 
required  by  law,  or  by  order  of  the  court,  the  defendant  may 
aver  and  give  in  evidence  any  facts  tending  to  show  that  the 
breach  did  not  occur  because  of  neglect  or  unreasonable  delay 
of  the  administrator  or  executor  to  settle  the  estate  or  file  the 
account.  If  the  defendant  makes  good  his  defense,  he  shall  re- 
cover of  the  plaintiff  his  costs.  In  no  case  brought  for  such 
breach  shall  the  plaintiff  recover  more  costs  than  damages." 
[R.  S.  §6213.]=^=^ 

§  277.  In  suit  on  bond,  claim  allowed  to  be  prima  facie  evi- 
dence only  of  its  justice.  How  such  claim  contested.  "When 
suit  is  brought  upon  the  administration  bond,  by  a  creditor 
whose  claim  has  been  allowed  or  admitted  by  the  executor 
or  administrator,  such  allowance  or  admission  shall  be  prima 
facie  evidence  only  of  the  validity  and  justice  of  such  claim. 
The  executor,  administrator  or  other  defendants  in  the  suit 
upon  the  administration  bond,  may  contest  it,  and  by  the  ver- 
dict of  a  jury,  if  either  party  requires  it,  the  court  may  deter- 
mine the  amount  or  justice  of  the  claim.  If  neither  party 
demands  a  jury,  the  court  by  reference  to  a  master  or  other- 
wise, shall  decide  upon  the  claim."     [R.  S.    §  6216.]  ^^ 

§  278.     Suit  by  succeeding  administrator  or  executor  on  bond. 

"We  have  thus  far  considered  in  this  chapter  sections  of  the 
General  Code  conferring  power  upon  a  creditor,  legatee,  widow, 
distributee  or  any  person  who  might  be  interested,  to  bring  suit 
on  the  bond.  This  would  include  every  one  in  his  individual 
capacity,  but  not  that  in  an  official  relation.  This  is  provided 
for  in  the  following  section : 

"When  the  powers  of  an  executor  or  administrator  cease  by 
death,  removal,  resignation,  or  otherwise,  a  succeeding  admin- 
istrator, or  co-executor,  or  co-administrator,  may  maintain  an 
action  on  his  bond  against  any  of  the  obligors  thereof,  or  their 

32  §  10872  G.  C.  443;  Hackworth  vs.  Robinson,  31  O. 

See  Dawson  vs.  Dawson,  25  O.  S.       S.  655. 

33  §  10875  G.  C. 


231  TIME SUIT    BROUGHT  §  279 

legal  representatives,  for  any  breach  of  its  conditions."     [R.  S. 

§  6214.]^* 

It  will  be  observed  that  the  provisions  of  the  above  section  are 
very  much  similar  to  those  of  sec.  10634  G.  C,  which  have  been 
sufficiently  commented  on,  in  the  chapter  relating  to  administra- 
tor de  bonis  non.^** 

§  279.     Time  within  which  suit  must  be  brought. 

The  time  within  which  a  suit  on  an  administrator's  bond  can 
be  brought  to  reach  the  funds  omitted  fi-om  what  purports  to  b© 
a  final  account  of  an  executor  or  administrator,  is  ten  years  from 
the  time  the  cause  of  action  accrues,  and  the  action  accrues  and 
the  statute  begins  to  run  on  the  date  when  th©  administrator's 
final  account  is  heard  and  passed  upon.^^ 

Interest  may  be  recovered  on  an  administrator's  bond  from 
the  time  the  demand  is  made  on  the  sureties.^® 

34  §  10873  G.  C.  36  Webb  vs.   Roettinger,   12   C.   C. 
34*  §  158.                                                    730;  4  C.  D.  270;  Aff.,  37  B.  56. 

35  Gilbert  vs.  Marsh,  4  N.  P.  338; 
1  Dec.  230. 


§280 


INVENTORY 


232 


CHAPTER  XYIII. 

INVENTORY. 


§  280  Definition  —  Importance  of. 

§  281  Within  what  time  to  make 
inventory. 

§  282  When  may  be  omitted. 

§  283  Proceedure  where  statement 
is  filed  in  lieu  of  the  ap- 
praisement —  Form,  etc. 

§  284  Appraiser,  how  appointed. 

§  285  If  appraisers  fail  to  act  Jus- 
tice may  appoint. 

§  286  Form  of  appointment  of  ap- 
praisers by  Justice. 

§  287  Inventory  to  be  made  and  by 
whom. 

§  288  How  and  when  notice  to  be 
given. 

§  289  Service  and  form  of  notice. 

§  290  Appraisers'  oath;  by  whom 
administered. 

§  291   Form  of  oath,  etc. 

§  292  In  whose  presence  and  in 
what  manner  the  articles 
shall  be  appraised. 

S  293  Detailed    statement    required. 

§  294  Value  to  be  given  articles. 

§  295  How  bonds  and  other  securi- 
ties to  be  inventoried  and  ap- 
praised. 

§  296  How  other  debts  shall  be  in- 
ventoried and  appraised. 

§  297  How  inventory  of  money  and 
bank  bills  to  be  stated. 

§  298  What  it  shall  include. 

§  299  When  real  estate  should  be 
included. 


§  300  Signing  of  inventory;  reten- 
tion of  copy  and  return  of 
original. 

§  300a  Monthly  statement  of  pro- 
bate court  to  county  auditor. 

§  300b  Taxes  and  penalty. 

§  300c  Beginning  of  each  succeeding 
tax  year. 

§  300d  Compensation  of  probate 
judge. 

§  300e  No  allowance  of  tax  inquisi- 
tors. 

§  301  Appraisers'  fees. 

§  302  Inventory  to  be  sworn  to  by 
the  executor  or  administra- 
tor.    Form  of  oath,  etc. 

§  303  Compulsory  return  of  inven- 
tory. 

§  304  Application    for   citation,   etc. 

§  305  Entry  and  writ  of  citation. 

§  306  Removal  for  failure,  etc.,  and 
granting  of  new  letters. 

§  307  Excuse  for  failure  to  return 
an  inventory. 

§  308  Entry,  form,  etc. 

§  309  Eff'ect   of   such  revocation. 

§  310  Prosecution  of  former  bond 
by  administrator  de  bonis 
non. 

§311  New  assets  after  return  of 
first   inventory. 

§  312  Exceptions  to  inventory  and 
proceedings  thereon.  Appeal 
to    common    pleas. 

§  312a  Appeal  on  exceptions  to  in- 
ventory. 

§  313  Form   of   exceptions,  etc. 

§  314  Form  of  entry  ordering  no- 
tice. 

§  315  Notice,    etc. 

§  316  Hearing  and  order. 
§  317  Appeal. 

§  318  Effect  of  inventory  as  evi- 
dence. 


§  280.     Definition.    Importance  of. 

An  inventory  is  defined  to  be  a  list,  schedule  or  enumeration 
in  writing,  containing  article  by  article  the  goods,  chattels,  rights 


233  DEFINITION IMPORTANCE  §  281 

and  credits,  and  in  some  cases  the  lands  and  tenements  of  a  per- 
son or  persons.^  The  word  "inventory"  in  this  chapter  includes 
appraisement.     [R.  S.  §  6023. j' 

The  taking  of  a  proper  inventory  is  one  of  the  most  important 
duties  devolving  upon  an  administrator  or  executor  in  the  dis- 
charge of  his  trust.  It  is  important  to  him  because  it  shows,  or 
should  show,  just  exactly  what  property  is  to  be  administered, 
and  the  probable  value  of  it.  In  a  controversy  with  an  heir  or 
creditor,  it  is  invaluable  to  him  as  showing  these  facts,  and  thus 
prevent  him  from  being  charged  for  that  which  may  never  have 
come  into  his  possession.  To  the  heir,  creditor  or  other  inter- 
ested person  in  the  estate  it  is  alike  invaluable,  for  if  there  is  no 
inventory,  or  if  the  inventory  be  an  improper  one,  no  informa- 
tion is  given  to  the  heir  or  creditor  as  to  what  the  administrator 
ought  to  be  properly  charged  with.  It  also  follows  that  great 
care  should  be  exercised  in  having  all  the  assets  of  the  estate  enu- 
merated, and  likewise  a  value  fixed  tliereon.  The  statutes  seem 
to  cover  the  matter  fully  as  to  the  time  within  which  it  should 
be  made  and  returned,  penalty  for  not  returning,  etc.  Our 
statute  provides  an  additional  reason  for  the  filing  of  an  inven- 
tory when  in  certain  cases  it  requires  the  payment  of  an  in- 
heritance tax.^ 

A  number  of  matters,  such  as  proceedings  where  the  person 
was  supposed  to  have  embezzled  assets  belonging  to  the  estate, 
widow's  allowance,  the  inheritance  tax  and  what  constitutes  as- 
sets will  be  made  the  subjects  of  separate  chapters.^* 

§281.  Within  what  time  to  make  inventory.  "Within 
thirty  days  after  his  appointment,  every  executor  and  admin- 
istrator, and  administrator  de  bonis  non  shall  make  and  return 
upon  oath,  into  court,  a  true  inventory  of  the  goods,  chattels, 

111    Am.   &   Eng.   Ency.   of   Law,  ing  an  inventory,   is   to  enable   the 

812.     Our  inventory  law  was  origi-  Probate  Judge  and  the  i)arties  in  in- 

nally  taken  from  New  York.  terest    to    know    what    property    be- 

2  §  10637  G.  C;   §  593.  longs  to  the  estate.    Without  it  tliey 
An  appraisal  is  an  essential  part  could    not   understandingly   call    the 

of  an  inventorv.  Sprankle  v.  Odell,  executor  to  an  account.  Moore  vs. 
22  C.  C.   (X.S.")   4S0.  ITolmos,  32  Conn.  553;   Woerner  on 

3  Tlie  great  object  of  this   inipor-       Admin.  6R0. 

tant  requirement  of  the  law,  requir-  3*  See  §§  1593,  319,  342. 


§  282  INVENTORY  234 

moneys,  rights  and  credits  of  the  deceased,  by  law  to  be  admin- 
istered, and  which  have  come  to  his  possession  or  knowledge ; 
except  that  if  their  probable  value  be  less  than  five  hundred 
dollars,  the  court  may  direct  it  to  be  omitted.  If  his  predeces- 
sors have  so  done,  an  administrator  cle  ionis  non  shall  not  bt 
required  to  return  and  file  an  inventory,  unless,  in  the  opinion 
of  the  probate  court,  it  is  necessary."  [R.  S.  §6023;  102  v. 
201.]-^ 

§  282.     When  may  be  omitted. 

As  the  statutes  now  stand  an  inventory  can  only  be  omitted, 
first,  where  the  probable  value  of  the  property  to  b©  administered 
is  less  than  $500  in  value;  second,  where  an  administrator  de 
bonis  -non  is  appointed  and  the  former  administrator  filed  an 
inventory,  if  the  estate  was  such  that  he  ought  to  have  filed  one; 
third,  if  the  executor  is  a  residuary  legatee,  unless  it  is  made  to 
appear  to  the  Court  that  an  inventory  should  be  made  and  that 
the  estate  is  $500  in  value,  it  may  be  omitted.^ 

As  a  general  rule  it  may  be  said  that  in  every  ease  where  there 
are  minors  having  an  interest  or  where  the  estate  exceeds  $500 
an  inventory  should  be  required.  A  practice  not  strictly  in  ac- 
cordance with  law  has  been  followed  in  some  courts,  that  where 
the  estate  consists  entirely  of  notes,  stocks,  moneys  or  such  ar- 
ticles that  have  a  value  which  can  be  readily  ascertained  from  a 
mathematical  calculation,  that  a  written  statement  of  the  execu- 
tor or  administrator  under  oath,  giving  a  description  of  the  kind 
and  value  of  such  articles,  is  accepted  in  lieu  of  the  ordinary  ap- 
praisement. This  gives  to  the  Court  and  all  persons  in  interest 
with  less  annoyance  and  cost  to  the  estate,  the  same  information 
as  an  inventory  and  appraisement.  Where  there  is  a  widow  or 
there  is  other  personal  property,  it  cannot  be  used.  It  is  said 
that  time  alone  constitutes  no  bar  against  the  requirement  of  an 
inventory  where  the  statute  fails  explicitly  to  sanction  the  omis- 
sion. But  if  a  long  period  has  elapsed,  such  as  forty  years,  a 
presumption  might  arise  eitber  that  the  estate  had  been  fully 

4  §  10638  G.  C.  inventory,  Sprankle  vs.  Odell,  22  O. 

5  §§  10008-9   G.   C.,   §57;    §10638       C.  C.  (N.S.)  480. 

G.  C.  §  281.  It  is  clearly  the  duty  of  the  court 

An    appraisement    is   part   of    the       to  require  an  anpraisal.     In  re  Pick- 

ards,  5  X.  P.  493 ;  7  Dec.  476. 


235  WHEN  MAY  BE  OMITTED  §  283 

settled  or  that  there  were  no  assets  available ;  and  time  in  con- 
nection, with  other  circumstances  may  operate  much  sooner  to 
dispense  with  the  filing  of  an  inventory.® 

It  is  likewise  provided  by  statute  ^  that  if  a  testator  shall  ex- 
press a  VN^sh  that  there  be  no  appraisement  of  his  household 
goods  and  furniture,  that  the  Court  may  omit  the  same  upon  an 
application  of  any  party  in  interest.  Under  the  law  as  it  now 
stands  it  seems  to  be  the  imperative  duty  of  the  Probate  Court 
to  require  an  inventory  in  eveiy  instance  where  the  value  of  the 
estate  is  $500.  Unless  possibly  under  ^  10608-9,  G.  C,  where  the 
executor  is  residuary  legatee,  there  the  Court  seems  to  have  a 
discretion.  But  taken  in  connection  with  the  provisions  of  the 
law  applying  to  the  inheritance  tax  and  other  provisions  requir- 
ing the  Probate  Judge  to  make  monthly  statements  to  the  audi- 
tor, it  seems  that  even  in  the  case  of  a  residuary  legatee  an  in- 
ventory ought  to  be  required. 

And  it  will  be  tlie  duty  of  a  Probate  Judge  to  enforce  the  fil- 
ing of  an  inventory  in  all  such  cases.® 

In  the  case  of  an  administrator  de  bonis  non,  where  an  inven- 
tory has  been  once  returned,  the  provisions  of  the  inheritance 
tax  have  been  satisfied  and  therefore  the  giving  of  a  new  inven- 
tory may  very  properly  vest  in  the  discretion  of  the  Probate 
Court, 

§283.     Procedure     where   statement  is  filed   in  lieu   of  the  ap- 
praisement.    Forms,  etc. 

If  no  inventory  or  appraisement  is  to  be  filed,  as  a  usual  mat- 
ter it  goes  by  default,  and  no  order  is  made  in  reference  thereto. 
If,  however,  it  is  desired  to  omit  a  regular  appraisement  and  sub- 
stitute a  statement,  it  may  be  done  in  the  following  manner :  ® 

6  Sell,  on  Exrs.  231.  See  In  re  there  are  reasons  why  an  appraise- 
Rierdon,  5  N.  P.  516;  5  Dec.  606.  ment    by    appraisers    ought    to    he 

7  §§10697-8  G.  C,   §470.  omitted,    if    it    can    be    done    with 

8  In  re  Estate  of  Pickards,  5  N.  P.  no  injury  to  anyone.  Sometimes  the 
493;  7  Dec.  476.  If  he  fails,  he  may  family  are  very  much  averse  to  hav- 
be   liable   on   his   bond.  ing  three  men  go  through  all  their 

0  I  wish  to  state  that  the  filing  of  family  affairs.      If  a  full   statement 

such   a  statement   is  not  exactly  in  is  filed  by  an  administrator  it  seems 

conformity    to    law,    but    experience  that  the  law  is  reasonably  complied 

has  demonstrated   that   many  times  with  and  no  one  is  injured. 


§  283  INVENTOKY  236 

(Title,  etc.) 

Now  comes  A.  B.,  executor  (or  administrator)  of  the  estate  of  C.  D., 
and  represents  to  the  court  that  (here  insert  whatever  the  reason  may  be 
for  asking  that  a  regular  appraisement  be  dispensed  with ) .  He  further 
represents  that  he  herewith  presents  a  full  and  complete  exhibit  of  all  the 
personal  property  of  said  decedent  with  the  value  thereon  as  near  as  he 
could  ascertain  the  same;  and  he  asks  that  the  same  may  be  accepted  by 
the  court  in  lieu  of  an  inventory  and  appraisement  of  said  personal  property 
and  that  such  inventory  and  appraisement  be  dispensed  with.  (Here  in- 
sert a  full  itemized  account  of  every  article  of  property,  bonds,  or  notes  of 
the  decedent,  with  its  fair  value.) 

State  of  Ohio, 
County,  ss. 

Personally  appeared  before  me,  A.  B.,  executor  (or  administrator)  of  the 
estate  of  C.  D.,  who  being  duly  sworn  says  that  the  foregoing  statement 
of  the  personal  property  of  the  said  C.  D.  is  in  all  respects  just  and  true; 
that  it  contains  a  true  and  correct  account  of  all  the  personal  estate  and 
property  of  the  deceased,  which  has  come  to  the  knowledge  of  the  said 
A.  B.,  particularly  all  money,  bank  bills,  or  other  circular  mediums  be- 
longing to  the  deceased,  and  all  just  claims  of  the  deceased  against  said 
A.  B.  or  other  persons,  according  to  the  best  of  his  knowledge. 

Sign. 

Sworn  to  and  subscribed  before  me  this ....  day  of 


Upon  the  filing  of  such  a  statement,  if  tlie  Court  thinks 
proper,  it  may  accept  the  same.  The  acceptance  of  such  a  state- 
ment, being  somewhat  irregular,  would  not  preclude  the  order- 
ing of  a  regular  appraisement  at  some  future  time/" 

FORM  OF  ENTRY. 
(Title.) 

This  day  came  A.  B.,  executor  (or  administrator)  of  the  estate  of  C.  D., 
and  filed  in  this  court  his  detailed  statement  of  all  the  personal  property 
of  the  deceased  under  oath ;  and  asks  the  Court  that  the  same  may  be 
accepted  in  lieu  of  a  regular  appraisement  of  the  said  personal  estate,  and 
that  no  further  appraisement  of  said  estate  be  required;  and  it  appearing 
to  the  Court  that  said  statement  is  a  reasonable  and  fair  exhibit  of  all 
the  personal  property  of  the  deceased.  The  same  is  accepted  in  lieu  of  a 
regular  appraisement,  unless  the  same  shall  be  required  by  future  order  of 
the  Court;  and  it  is  further  ordered  that  said  statement  be  filed  and  re- 
corded in  the  book  of  inventories. 

10  As  to  the  forms  and  procedure 
to  be  used  in  compelling  the  making 
of  an  inventory.     §  303. 


237  APPRAISERS  —  APPOINTED  §  284 


§  284.    Appraiser,  how  appointed. 

The  question  whether  or  not  an  inventory  shall  be  filed,  ought 
to  be  determined  at  the  time  the  letters  are  issued,  if  that  be 
possible,  for  it  is  a  usual  practice  to  designate  the  names  of  the 
appraisers  in  the  entry  making  the  appointment ;  and  also  desig- 
nate them  in  the  letters  of  appointment.  The  statute  in  relation 
thereto  is  as  follows : 

"The  estate  and  effects  comprised  in  the  inventory,  unless  an 
appraisement  thereof  has  been  dispensed  with  by  an  order  of 
the  court,  shall  be  appraised  by  three  suitable  disinterested  per- 
sons, appointed  by  the  court,  and  sworn  to  a  faithful  discharge 
of  their  trust.  If  part  of  such  estate  or  effects  be  in  any  other 
county,  any  disinterested  justice  of  such  county  may  ap- 
point the  appraisers  of  the  estate  and  effects  therein."  [R  S 
§  6028.]" 

The  question  sometimes  arises  under  this  section  whether  they 
should  be  freeholders  or  not.  If  the  appraisement  is  only  to  in- 
clude personal  property,  unquestionably  they  need  not  be  free- 
holders. If  it  is  also  expected  to  appraise  real  estate,  it  being 
a  requirement  of  the  law  to  have  real  estate  appraised  by  three 
disinterested  freeholders  of  the  vicinity,  it  might  be  well  in  such 
cases  to  appoint  men  as  appraisers  who  are  qualified  under  the 
statute  to  appraise  real  estate,  although  an  appraisement  of  real 
estate  with  the  personal  property  by  a  non-freeholder  would 
probably  not  be  void.  The  Court,  in  appointing  the  appraisers, 
takes  the  suggestions  of  the  administrator  or  executor.  But 
care  should  be  taken  to  ascertain  that  the  persons  appointed  are 
satisfactory  to  the  heirs  and  widow,  as  well  as  to  the  executor 
or  administrator,  for  they  are  all  interested  parties.  Another 
question  that  sometimes  arises  in  practice  is,  whether  the  ap- 
praisers can  act  for  personal  property  situated  in  another  county. 
I  am  of  the  opinion  that  they  can,  and  that  it  is  not  the  purpose 
of  the  statute  to  exclude  the  appraisers  appointed  by  the  Court 
making  the  appointmput  of  the  administrators,  from  appraising 
personal  assets  of  the  estate  whenever  they  are  found.     The  pro- 

11  §  10644  G.  C.  Ree    §  860.       In    appraisement    of 

Tlic   appraisers   need   not  be   resi-  mal    estate,    they    must    be    "of    the 

dents  of  the  county  of  the  adminis-  vicinity"    and    "freeholders."        See 

trator's   appointment:     the  only   re-  §  857. 

quirement  beinjj  that  they  be  "three 

suitable  disinterested   persons." 


§  285  INVENTORY  238 

vision  that  a  justice  of  the  peace  may  appoint  appraisers  for 
property  in  another  county  is  one  of  convenience,  and  not  neces- 
sarily followed.  Of  course,  if  there  is  real  estate  to  be  sold, 
then  a  different  rule  might  apply. ^" 

§  285.     If  appraisers  fail  to  act  justice  may  appoint. 

The  general  practice  is  for  the  administrator  to  notify  the 
persons  appointed  appraisers,  of  their  appointment  and  the  day 
and  place  where  they  are  expected  to  act. 

If  the  administrator  ascertains  in  time  to  communicate  with 
the  Court  that  some  one  of  the  appraisers  will  be  unable  to  at- 
tend, he  should  notify  the  Court  and  permit  the  judge  to  substi- 
tute another.  If  such  is  greatly  inconvenient  a  justice  may  ap- 
point under  the  following  provisions  of  our  statute: 

"If  by  neglect,  sickness,  or  other  cause,  appraisers  fail  to 
attend  to  the  performance  of  their  duty,  any  justice  of  the  peace 
in  the  county  in  which  the  property  to  be  appraised  is  situated, 
may  appoint  others  to  supplv  the  place  of  such  delinquents." 

[R.  S.  §6029.]" 

§  286.     Form    of    appointment    of    appraisers    by    justice. 

"When  a  justice  appoints  appraisers  he  shall  make  a  certificate 
of  the  appointment  which  shall  be  returned  by  the  executor  or 
administrator  with  the  inventory,  and  which  in  substance  shall 
be  as  follows : 

To ,  of county : 

You  are  hereby  appointed  to  appraise,  on  oath,  the  estate  and 
effects  of ,  late  of ' county,  de- 
ceased.   Given  under  my  hand  this day  of 

[R.  S.  §  6030. ]  1*  justice"  of  the  peace. ' ' 

§  287.    Inventory  to  be  made  and  by  whom.    ' '  After  giving 
the  notice  required  in  the  next  following  section,  the  executor  or 
administrator,  with  the  aid  of  the  appraisers,  if  an  appraise- 
rs See  §  1595,  Assignment.  A  justice  of  the  peace  is  entitled 

13  §  10645  G.  C.  to  a  fee  of  40  cents  for  making  the 

14  §  10646  G.  C.  '  appointment.     §  1746  G.  C. 


239  NOTICE,   ETC.  §  288 

ment  is  made,  shall  make  the  inventory  herein  directed."     [R.  S. 
§6031.]  ^5 

The  law  contemplates  that  an  administrator  will  be  expedi- 
tious in  the  settlement  of  the  estate.  It  requires  a  sale  to  be 
made  within  three  months ;  likewise  requires  the  inventory  to  be 
filed  within  30  days.  And,  in  addition  to  these  matters,  there 
may  be  notes  to  collect,  legal  rights  to  be  enforced,  the  claims 
of  the  widow  and  children  to  be  protected,  that  require  an  inven- 
tory to  be  made  at  the  earliest  possible  convenience,  so  that  no 
rights  will  suffer.  In  order  that  the  various  articles  in  the  sale 
bill  and  inventory  will  correspond  in  number  and  position,  it 
may  be  an  advantage  to  have  the  inventory  made  a  few  days 
before  the  sale. 

§  288.    How  and  when  notice  to  be  given. 

Before  an  appraisement  can  be  had,  a  notice  provided  for  in 

the  following  section  must  be  made: 

"Not  less  than  five  days  previous  thereto,  a  written  notice, 
stating  the  time  and  place  of  making  such  inventory,  must  be 
served  on  the  widow,  legatees,  and  next  of  kin  residing  in  the 
county  where  the  property  may  be,  by  the  executor  or  admin- 
istrator, and  also  be  posted  in  two  of  the  most  public  places  in 
the  township  where  the  decedent  last  dwelt,  and,  in  every  such 
notice,  the  time  and  place  at  which  .such  appraisement  will  be 
made,  shall  be  specified."     [R.  S.  §  6032.] i« 

§  289.    Service  and  form  of  notice. 

It  is  absolutely  essential  to  a  valid  appraisement  that  notice 
be  given  as  required  in  the  above  section.  It  must  be  given  to 
the  widow,  legatees  and  next  of  kin  who  reside  in  the  county,  and 
it  must  be  put  up  in  two  public  places  in  the  township.  The 
statute  says  in  the  most  public  places.  It  may  be  a  matter  of 
some,  difficulty  to  determine  what  are  the  two  most  public  places. 
However,  it  would  seem  that  the  spirit  of  the  law  would  be  com- 
plied with  if  the  notice  be  posted  in  such  places  that  it  would 
15  §  10647  G.  C.  le  §  10648  G.  C. 


§  290  INVENTORY  240 

likely  notify  creditors  and  other  interested  persons  of  the  time 
and  place  of  the  inventory.  "Wliere  there  is  a  doubt  on  this 
subject  it  would  be  well  to  put  up  more  notices  than  the  law 
requires.  A  usual  practice  is  to  put  up  one  notice  at  or  near 
the  residence  of  the  deceased.  This  notice  should  be  put  up  or 
served  by  the  administrator.  It  would  be  legal  if  served  by  any- 
one else.  An  affidavit  as  to  the  manner  of  serv^ice  and  place 
w^here  the  notices  were  put  up  should  be  filed  in  court.  The 
usual  practice  is  to  have  it  made  on  the  inventory.  The  form 
of  notice  may  be  as  follows: 

NOTICE  OF  APPRAISEMENT. 

Estate  of ,   deceased. 

Notice  is  hereby  given  that  an  inventory  and  apraisement  of  the  estate 
and  property  of ,  late  of county,  de- 
ceased, will  be  taken  at ,  late  residence  in 

township,  on  the day  of ,  A.   D.    190..,   commencing  at 

o'clock. .  .  .M.,  and  ccmtinuing  from  day  to  day  until  completed. 

•  Dated  this day  of 190.  .. 

Administrator,  —  Executor. 

FORM   OF    AFFIDAVIT    OF    SERVICE. 
(Title.) 

A.  B.,  administrator  of  the  estate  of  C.  D.,  deceased,  being  duly  sworn 
says  that  copies  of  the  annexed  notice  were  posted  up  as  follows:  (Hera 
mention  where  they  were  posted.)      In  the  township  of  the  late  residence 

of  the  deceased;  and  that  on  the day  of the  same 

were  served  by  (here  mention  manner  of  service) ,  to , 

the  widow,   ,  the  next  of  kin  of  the  deceased. 

Sign. 

Sworn  to  and  subscribed  before  me  this day  of 

§  290.  Appraisers '  oath ;  by  whom  administered.  ' '  Before 
proceeding  to  the  execution  of  their  duty,  the  appraisers  must 
take  and  subscribe  an  oath,  to  be  inserted  in  or  annexed  to  the 
inventory,  before  an  officer  authorized  to  administer  oaths,  that 
they  will  truly,  honestly  and  impartially  appraise  the  estate  and 
property  exhibited  to  them,  and  perform  the  other  duties  re- 
quired by  law  in  the  premises  according  to  the  best  of  their 
knowledge  and  ability.  In  the  absence  of  such  officer,  the  ad- 
ministrator or  executor  may  administer  the  oath."  fR.  S. 
§6033.]!' 

17  §  10649  G.  C. 


241  OATH,    ETC.  §  291 

§  291.    Form  of  oath,  etc. 

Any  person  authorized  by  law  to  administer  oaths  or  the  admin- 
istrator or  executor,  may  administer  the  oath.  The  following 
may  be  used  as  a  form  in  which  the  oath  can  be  administered: 

You  and  each  of  you  do  solemnly  swear  that  you  will  truly,  honestly  and 
impartially  appraise  all  the  estate  of  said  A.  B.,  deceased,  which  may  be 
exhibited  to  you;  and  that  you  will  perform  the  other  duties  required  of 
you  by  law  as  appraisers  of  the  said  estate,  according  to  the  best  of  your 
knowledge  and  ability.     This  you  do  as  you  shall  answer  unto  God. 

This  oatli  is  veiy  often  given  in  the  form  of  an  affidavit  at- 
tached to  the  inventory  as  follows : 

State  of  Ohio, 

County,    ss. 

E.  F.,  G.  H.  and  I.  J.,  appraisers  of  the  personal  estate  of  C.  D.,  de- 
ceased, being  sworn  say  that  they  will  truly,  honestly  and  impartially  ap- 
praise the  estate  and  property  of  the  said  deceased  which  may  be  exhibited 
to  them  and  perform  the  other  duties  required  of  them  by  law  in  the 
premises  as  appraisers,  according  to  the  best  of  their  knowledge  and 
ability. 

Sign. 

Sworn  to   and   subscribed   before  me  this day   of i8 

§  292.  In  whose  presence  and  in  what  manner  the  articles 
shall  be  appraised.  "In  the  presence  of  such  of  the  next  of 
kin,  legatees,  or  creditors  of  the  testator  or  intestate,  as  attend, 
and  the  widow  if  there  be  one,  the  appraisers  shall  proceed  to 
estimate  and  appraise  the  property  and  estate.  Each  article  or 
item  must  be  set  down  separately,  with  its  value  in  dollars  and 
cents,  distinctly  in  figures,  opposite  to  the  articles  or  items,  re- 
spectively."    [R.  S.  §6034.]!^ 

§  293.     Detailed  statement  required. 

The  statute  is  plain  in  reference  to  the  persons  who  are  en- 
titled to  be  present,  and  further  says  that  they  shall  appraise  the 
property  and  estate.  This  does  not  mean  real  estate  unless  spe- 
cially  ordered.     As  to  what  will  constitute  assets  to  be  appraised 

18  This   applies   to   real   estate  as  See  §  1505,  Assignments 

well  as  personalty.  19  §  10650  G.  C. 

See  §  10798  G.  C. 


§  293  INVENTOEY  242 

will  be  found  treated  of  in  a  subsequent  chapter,  §  363  et  seq. 
Each  item  shall  be  set  down  separately  with  the  value,  in  dollars 
and  cents,  distinctly  in  figures  opposite.  Verj'  great  difficulty 
is  sometimes  experienced  by  a  failure  to  properly  comply  with 
the  law.  A  distinguished  author  says :  ^°  "  It  may  be  assumed 
as  the  experience  of  courts  and  judges  that  a  large  proportion  of 
the  litigation  arising  in  the  settlement  of  estates  is  due  to  inat- 
tention and  inaccuracy  in  making  inventories  and  keeping  the  ac- 
counts, under  tlie  mischievous  delusion  that  honesty  and  good 
faith  are  sufficient  to  accomplish  the  ends  of  administration. 
But  this  is  not  only  a  question  of  policy  addressing  itself  to  the 
judgment  of  parties  managing  the  estate  ;  it  is  a  legal  obligation. 
The  statute  in  nearly  every  State  requires  not  only  a  full  and 
true  inventory,  etc.,  but  also  directs  tliat  each  article  of  property 
shall  be  separately  appraised  and  its  value  noted.  It  is  the 
duty  of  the  Court  to  which  an  inventory  is  returned  to  reject  it 
if  not  made  in  compliance  with  law,  and  require  a  new  one 
which  shall  be  in  due  form." 

When  the  statute  says  that  it  shall  be  made  out  in  detail  it  does 
not  mean  or  allow  that  articles  shall  be  grouped  together  and  ap- 
praised as  a  whole,  but  it  means  just  what  it  says.  Thus  in  one 
case  where  items  were  put  do^\'n  as  "  Cash,  bonds,  notes,  etc., 
$13,993.06,"  "  Household  goods  and  kitchen  furniture,  $298,^' 
"  Horses,  cows  and  swine,  $268,"  it  was  held  that  this  did  not, 
strictly  spealcing,  constitute  an  inventory.  ^^ 

20  Woerner  on  Admin.  668.  the  rights   of  parties,   impose  upon 

21  Vanmeter  vs.  Jones,  3  N.  J.  520.  courts  the  painful  duty  of  groping 
"  The  whole  difficulty,"  says  the  for  the  truth  in  the  dark,  or  of  de- 
Ordinary,  in  delivering  the  opinion  ciding  by  uncertain  and  unreliable 
of  the  prerogative  court,  "  has  grown  tests  of  truth.  The  court  below  was 
out  of  the  defective  character  of  the  misled  entirely  by  the  defects  and 
inventory,  and  exhibits  in  a  striking  virtual  misrepresentations  of  the  in- 
point  of  view  the  impropriety  of  ventory  and  this  court  was  saved 
suffering  such  inventories  to  be  filed.  from  falling  into  the  same  error 
They  do  not  answer  to  the  design  of  mainly  by  exhibits  offered  on  the 
the  law.  They  fail  to  furnish  to  part  of  the  exceptant.  In  this  case, 
parties  interested  the  very  informa-  it  is  true,  the  loss  of  the  mistake 
tion  which  they  were  designed  to  would  have  fallen  where  it  justly  be- 
supply.  They  often  lead,  as  in  this  longed,  on  the  head  of  the  party 
case,    to   useless    litigation,    imperil  guilty  of  the  negligence  that  occa- 


243  VALUE,    ETC.  §  294 

The  inventory  of  an  administrator  of  a  deceased  partner 
should  only  refer  to  his  interest  in  the  partnership  as  of  a  certain 
character,  and  where  located,  without  undertaking  to  give  the 
items  of  property  belonging  to  such  partnership,  since  the  ad- 
ministrator cannot  have  control  of  it  until  the  partnership  affairs 
are  settled."" 

§  294.     Value  to  be  given  articles. 

The  three  subsequent  sections  "^  specifically  provide  how 
bonds,  mortgages,  notes  and  securities  for  the  payment  of  money 
shall  be  appraised,  and  how  moneys  in  bank  or  on  hand  shall 
be  set  down.  The  above  section  applies  more  particularly  to 
tangible  personal  property.  It  is  very  important  that  a  fair 
value  be  returned  in  the  appraisement,  for  such  value  is  prima 
facie  evidence  as  to  its  value  against  the  administrator,  although 
it  is  not  conclusive.  It  is  one  means  of  ascertaining  the  value  of 
an  article  to  consider  its  cost.  But  this  should  not  govern  its 
value  alone.  As  a  general  rule,  it  may  be  said  that  the  ap- 
praisers are  to  fix  a  value  on  the  property  which  in  their  judg- 
ment it  will  bring  at  a  public  sale.  This  might  sometimes  be 
an  inequitable  value,  but  it  is  the  best  rule  probably  that  can  be 
formed.^* 

The  whole  matter  is  left  to  the  judgment  of  the  appraisers, 
and  they  should  not  consider  the  fact  that  the  widow  may  take  it 
at  its  appraised  value,  but  should  give  to  each  article  that  value 
which  they  believe  it  will  bring  when  put  upon  the  market.  It 
is  said  that  an  administrator  is  not  obliged  to  have  articles  in- 
ventoried that  are  in  anotlier  State,  or  those  that  are  due  from 

sioned  it.     But  it  falls,  it  is  to  be  source  of  litigation,  and  as  opening 

feared,  too  often  upon  unsuspecting  a  wide  door  to  fraud  and  injustice, 

heirs    and   confiding   relatives,   who  Justice   requires    that   in   all    cases 

are  made  the  victims  of  the  careless-  the    requirements     of     the    statute 

ness  or  fraud  which  covers  up  the  should   be   strictly   complied   with." 

real  truth  under  the  shelter  of  gen-  (p.  518  et  seq.) 

eral    and   unintelligible   inventories.  22  Loomis  vs.  Armstrong,  29  N.  W. 

I  feel  it  my  duty  to  protest  earnest-  Rep.   867;    S.   C,   63   Mich.   355;    § 

ly    against    the    practice,    not    only  416,  Partnership  assets. 

from  the  embarrassment  it  has  occa-  23  §§  G035,  6036,  6037  R.  S. 
sioned  in   this   particular  case,  but  '         24  See  Woerner  on  Admin.  670. 

because    I    regard    it   as    a   fruitful  23  §§  10651,   10052,   1CC53   G.  C. 

2i  See  Woerner  on  Admin.  070. 


§  295  INVENTORY  244 

parties  in  another  State. -^  But  no  harm  would  result  in  having 
them  included.  Where  any  article  is  in  litigation,  or  its  title 
questioned,  or  where  any  bond,  note  or  judgment  is  doubtful,  it 
should  be  so  designated  in  the  inventory. 

§  295.  How  bonds  and  other  securities  to  be  inventoried  and 
appraised.  "The  inventory  must  contain  a  particular  state- 
ment of  all  bonds,  mortgages,  notes,  and  other  securities  for  the 
payment  of  money,  belonging  to  the  deceased,  known  to  such 
executor  or  administrator,  specifying  the  name  of  the  debtor  in 
each  security,  the  date,  the  sum  originally  payable,  the  indorse- 
ments thereon,  if  any,  with  their  dates,  and  the  sum  which,  in 
the  judgment  of  the  appraisers,  can  be  collected  on  each  claim." 
[R.  S.  §6035.]-^« 

§  296.    How  other  debts  shall  be  inventoried  and  appraised. 

"The  inventory  also  must  contain  a  statement  of  all  debts  and 
accounts  belonging  to  the  deceased,  known  to  such  executor  or 
administrator,  specifying  the  name  of  the  debtor,  the  date,  the 
balance  or  thing  due,  and  the  value  or  sum  which  can  be  col- 
lected thereon,  in  the  judgment  of  the  appraisers."  [R.  S. 
§603  6.]  27 

§  297.     How  inventory  of  money  and  bank  bills  to  be  stated. 

"The  inventory  also  must  contain  an  account  of  all  moneys, 
w^hether  in  specie  or  bank  bills,  or  other  circulating  medium, 
belonging  to  the  deceased,  wliich  have  come  to  the  hands  of  the 
executor  or  administrator.  If  none  has  come  to  his  hands,  the 
fact  must  be  so  stated  in  the  inventory."     [R.  S.  §  6037.]-^ 

The  form  furnished  by  Probate  Judges  will  show  in  just  what 
manner  bonds,  notes  and  moneys  should  be  stated  in  the  in- 
ventory. 

§  298.     What  it  shall  include. 

The  inventory  shall  include  an  appraisement  of  all  the  per- 
sonal property  belonging  to  the  testator   (some  articles  are  not 

25  See    §  298,    What    it    shall    in-  27  §  10632  G.  C. 
elude;   Redf.  Surr.  Prac.  334.  2s  §  10653  G.  C. 

26  §  10651  G.  C.  , 


245  WHAT  IT  SHALL  INCLUDE  §  298 

to  be  deemed  as  assets),"'*  whether  such  property  is  in  his  pos- 
session or  in  the  possession  of  another.^" 

But  property  belonging  to  another,  and  clearly  distinguishable 
from  the  mass  of  the  property  of  the  estate,  need  not  be  inven- 
toried." 

He  must  inventory  his  own  indebtedness  to  the  estate/^  and 
all  property  within  his  knowledge,  whether  in  this  or  another 
State.'' 

It  is  not  his  duty,  however,  to  inventory  property  fraudu- 
lently conveyed.'* 

It  is  his  duty  to  inventory  all  property  of  the  estate  in  an- 
other's possession.'^  Property  claimed  by  another,  but  found 
among  the  assets  of  the  estate,  must  be  inventoried  unless  it 
clearly  appear  that  such  property  does  not  belong  to  the  de- 
ceased.'® 

He  cannot  be  compelled  by  Court,  however,  to  include  prop- 
erty belonging  to  another,  though  in  his  possession  as  adminis- 
trator.''^ 

A  leasehold  estate  for  less  than  life  is  a  chattel  real,  is  per- 
sonal property,  and  should  be  inicluded  in  the  inventory.'^ 

Where  testator  had  executed  an  oil  lease  of  his  lands  in  con- 

29  See   §10654  G.  C.   under  chap-  751;   S.  C,  24  Atl.  Rep.  785;   Snod- 

ter  on  widow's  allowance,  §  320.    As  grass  vs.  Andrews,  30  Miss.  472. 

to  what   will   constitute   assets,   see  ss  Turner  vs.  Ellis,  24  Miss.  173; 

subsequent  chapter.     §  363.  Williams    vs.    Morehouse,    9    Conn. 

so  Vanmeter  vs.  Jones,  3  N.  J.  Eq.  470.      See   Hignutt    vs.    Cranor,    62 

520;  Pursel  vs.  Pursel,  14  N.  J.  Eq.  Md.  216;   Silverbrandt  vs.  Widmay- 

514;    McNeel's    Estate,    68    Pa.    St.  er,    2    Dem.    263.      See    Appeal    of 

412;    Bourne  vs.   Stevenson,  58  Me.  Weiss,  133  Pa.  St.  84;  S.  C,  19  Atl. 

499.  Rep.  311. 

31  Trecothick  vs.  Austin,  4  Mason  36  Bourne   vs.    Stevenson,   58   Me. 

16 ;  Farrelly  vs.  Ladd,  10  Allen  127  ;  504 ;  Waterhouse  vs.  Bourke,  14  lia. 

Prescott  vs.  Ward,  10  Allen  203.  Ann.  358 ;   Mulford  vs.  Mulford,  40 

3-' §    390;    Weems   vs.    Bryan,    21  N.  J.  Eq.   163;  Washburn  vs.  Hale, 

Ala.  302;  Gregory  vs.  State,  119  Ind.  10   Pick.   429;    Speakman's   Appeal, 

503;   Kealhofer  vs.  Emmert    (Md.),  71   Pa.   St.   25;    Gold's   Case,   Kirby 

29  Atl.  Rep.  68.  100;    Robbins  vs.   Robbins    (Ky.)    I 

33  This    is   not   a   universal    rule;  S.  W.  Rep.  152. 

Woerner   on   Admin.   665.     Butler's  37  Snodgrass  vs.  Andrews,  30  Misa, 

Estate,  38  N.  Y.  397;  Sherman  vs.  472. 

Page,  85  N.  Y.  123.  38  §  942;  McCarty  vs.  Burnet,  84 

34  Gardner  vs.   Gardner,    17   R.   I.  Ind.  23. 


§  299  INVENTORY  246 

sideration  of  a  royalty  of  part  of  the  oil,  the  oil  produced  after 
his  death,  and  accruing  as  such  royalty,  is  not  of  the  corpus,  but 
a  part  of  the  income  of  the  estate.^® 

Animals  ferw  naturw  which  are  confined  or  in  the  immediate 
possession  of  man,  such  as  tame  pigeons,  deer,  rabbits,  pheasants, 
partridges,  or  animals  kept  in  a  room  or  cage,  or  fish  in  a  box, 
tank  or  net.'*"  And  d'oves  in  a  dove  house  ^^  belong  to  the  admin- 
istrator; while  animals  feroR  naturce  in  a  park,  not  tame  or  re- 
claimed from  their  wild  state,  fish  in  a  pond,  and  the  like,  go 
to  the  heir  if  the  decedent  left  them  upon  his  own  freehold  estate ; 
but  if  he  left  them  on  leased  premises,  being  less  than  a  freehold 
estate,  then  to  the  administrator.*- 

§  299.     When  real  estate  should  be  included. 

There  are  advantages  and  disadvantages  attached  to  the  ap- 
praisement of  real  estate  with  the  personal  property.  It  is  an 
advantage  that  it  saves  expense  and  trouble.  It  is  a  disadvan- 
tage that  the  appraisers  are  not  selected  for  that  purpose;  and 
that  the  proceedings  in  the  action  to  sell  real  estate  do  not  con- 
tain this  jurisdictional  fact  of  a  proper  appraisement  other  than 
by  mere  reference.  If  there  is  a  widow  who  is  entitled  to  dower, 
the  appraisement  made  with  the  personal  property  should  never 
be  made  to  answer  the  appraisement  contemplated  by  a  proceed- 
ings to  sell  real  estata  In  very  many  cases,  however,  it  will  do 
no  harm  where  there  is  a  probability  that  the  real  estate  will 
have  to  be  sold,  to  include  an  appraisement  of  it  with  the  per- 
sonal property.  The  section  of  our  statute  providing  for  such 
appraisement  is  as  follows: 

"If,  at  the  time  of  granting  letters  testamentary  or  letters  of 
administration,  the  court  deems  fit,  it  may  order  the  executor  or 
administrator  also  to  include  in  the  inventory  an  appraisement 
of  all  the  real  estate  of  the  deceased."     [R.  s!  §  6025.]*^ 

39  In   re   Woodburu's   Estate,    138  4i  Com.  vs.  Cliace,  9  Pick.   15. 
Pa.  St.  606;  S.  C,  27  W.  N.  C.  305;  «  Ferguson  vs.  IVfiller,  1  Cow.  243. 
21  Atl.   Rep.   16.  See   §294. 

40  Buster  vs.  Newkirk,   20   Johas.  43  §  10641  G.  C. 
75;    Pierson  vs.   Post,  3   Caine   175. 


247  SIGNING   AND   FILING  §  300 

§  300.  Sigiiiiig'  and  filing  inventory.  ' '  Upon  the  completion 
of  the  inventory  it  shall  be  signed  by  the  appraisers  at  the  end 
thereof  and  said  appraisers  shall  certify  that  the  foregoing  in- 
ventory is  a  true  and  correct  appraisement  of  the  property 
exhibited  to  them  and  it  shall  not  be  necessary  for  the  appraisers 
to  sign  each  schedule  thereof.  A  copy  of  the  inventory  shall 
be  retained  by  the  executor  or  administrator,  who  shall  return 
the  original  to  the  probate  court."  [R.  S.  §6044;  107  v. 
548.]^* 

§  300a.  Monthly  statement  of  probate  court  to  county  au- 
ditor. "At  the  end  of  each  month  the  court  shall  deliver  to 
the  county  auditor,  a  statement  showing  as  to  each  inventory  the 
aggregate  value  of  each  class  of  property  other  than  real,  as 
shown  by  the  inventories  filed  during  that  month,  for  his  use 
and  the  use  of  the  proper  board  of  equalization  in  the  perform- 
ance of  their  respective  duties  in  relation  to  returns  for  taxation 
of  personal  property,  moneys,  rights  and  credits,  and  the  equali- 
zation and  correction  thereof."     [R.  S.  §  6044.]*'** 

§  300b.  Taxes  and  penalty,  "Taxes  or  penalty  lawfully 
placed  on  a  duplicate  or  added  by  the  county  auditor  or  board 
of  equalization  because  of  a  failure  to  make  a  true  return,  or  of 
making  a  false  return  for  taxation,  shall  be  a  debt  of  the  de- 
cedent, to  have  the  same  priority  and  be  paid  as  other  taxes,  and 
collectable  out  of  the  property  of  the  estate  either  before  or  after 
distribution,  by  any  means  provided  bv  law  for  collecting  other 
taxes.  No  distribution,  or  payment  of  inferior  debts  or  claims 
shall  defeat  such  collection ;  but  no  such  tax  or  penalty  can  be 
added  before  notice  to  the  executor  or  administrator,  and  an 
opportunity  is  given  him  to  be  heard.  All  taxes  omitted  by  the 
deceased  must  be  charged  on  the  tax  lists  and  duplicate  in  his 
name."     [R.  S.  §  6044. ]*«* 

§  300c.  Beginning  of  each  succeeding  tax  year.  "In  all  ad- 
ditions to  the  personal  tax  lists  and  duplicate  made  by  a  county 
auditor,  each  succeeding  tax  year  shall  be  considered  as  begin- 
ning at  the  time  of  the  completion  of  the  annual  settlement  with 
the  county  treasurer,  of  the  duplicate  for  the  previous  year." 
[R.  S.  §  6b44.]^''t 

§  300d.  Compensation  of  probate  judge.  ' '  The  probate 
judge  shall  be  entitled  to  the  same  compensation  as  for  other  like 
services,  to  be  taxed  as  a  part  of  the  costs  of  administering  such 
estate."     [R.  S.  §6044.]  ^^j 

4*  §  10G60  G.  C.  44»*  §  10062  G.  C. 

***  §  10G61  G.  C.  -4  §  10GG3  G.  C. 

•tJt  §  10GG4  G.  C. 


§  300e  INVENTORY  248 

§300e.  No  allowance  of  tax  inquisitors.  "No  percentage, 
nor  part  of  any  iiicreased  tax  on  the  property  of  such  estate, 
covered  by  such  inventory,  for  the  years  which  it  is  required  to 
be  listed  in  the  name  of  the  executor  or  administrator,  shall  be 
allowed  or  paid  to  a  person  under  a  contract  for  securing  for 
taxation,  or  putting  on  the  tax  list  or  duplicate  property  improp- 
erly or  otherwise  omitted,  or  not  listed  or  returned  for  taxation. '  * 
[R.  S.  §6044.]^^! 

§  301.  Appraisers'  fees.  "Each  appraiser  shall  be  paid  two 
dollars  per  day,  or  such  amount  as  the  probate  judge  may  allow 

for  his  services."     [R.  S.  §  6045.] « 

Experience  has  demonstrated  in  many  instances  this  amount 
to  be  an  inadequate  compensation.  If  the  appraisement  is 
only  a  few  moments'  work  you  may  get  competent  men 
to  attend  to  it.  But  if  it  is  a  day's  wx^rk,  difficulty  will 
be  experienced  in  getting  any  person  to  perform  the  duties, 
unless  he  does  it  as  a  matter  of  accommodation ;  and  this 
should  not  be,  for  the  statute  expressly  provides  that  the  ap- 
praiser should  be  a  disinterested  person ;  that  is,  one  Avho  is  en- 
tirely free  from  any  iniluence  from  either  the  heir,  widow, 
legatee  or  administrator.  The  difficulty  in  leaving  the  matter 
entirely  to  the  discretion  of  the  Court  is  that  very  often  ap- 
praisers will  ask  a  larger  sum  than  the  estate  ought  to  be  taxed 
with.  If  the  administrator  cannot  procure  competent  men  for 
the  amount  allowed  by  statute  he  ought  to  procure  the  consent 
of  the  heirs  to  pay  them  an  additional  sum  or  else  give  them 
such  a  sum  as  he  thinks  just,  and  assume  the  responsibility  that 
it  may  ultimately  be  allow^ed  to  him  in  his  account.*® 

§  302.  Inventory  to  be  sworn  to  by  the  executor  or  admin- 
istrator. Form  of  oath,  etc.  "Before  such  inventory  is  re- 
ceived by  the  probate  court,  the  executor  or  administrator  shall 
take  and  subscribe  an  oath  or  affirmation  before  the  judge,  his 
deputy,  or  other  officer  authorized  to  administer  oaths,  stating 
that  the  inventory  is  in  all  respects  just  and  true ;  that  it  con- 
tains a  true  statement  of  all  the  estate  and  property  of  the  de- 
ceased which  has  come  to  his  knowledge,  and  particularly  of  all 
money,  bank  bills,  or  other  circulating  medium  belonging  to  the 
deceased,  and  of  all  just  claims  of  the  deceased  against  such 

44i  §§  10664,  10665  G.  0.  46  See  §  1595,  Assignments. 

44  See  §  663,  Taxes.  Former  statute  allowed  $1. 

46  §  10666  G.  C. 


249  COMPULSORY    RETURN  §  303 

executor  or  administrator,  or  other  persons,  according  to  the 
best  of  his  knowledge.  Such  oath  must  be  endorsed  upon  or 
annexed  to  the  inventory."     [R.  S.  §  6046.]*^ 

§  303.  Compulsory  return  of  inventory.  "If  an  executor  or 
administrator  neglects  or  refuses  to  return  such  inventory  within 
thirty  days  after  his  appointment,  the  probate  court  shall  issue 
an  order  requiring  him,  at  an  early  day  therein  named  to  return 
an  inventory  according  to  law."     [R.  S.  §  6047;  102  v.   201.]  *^ 

§  304.     Application  for  citation,  etc. 

The  order  provided  for  in  this  statute  (10668,  G.  C),  is  not  an 
order  to  compel  an  inventory  to  be  taken,  but  it  is  to  compel  an 
inventory  to  be  returned  after  it  has  been  ordered  that  one  be 
made.  While  it  may  be  said  that  it  is  the  duty  of  the  Court 
to  enforce  returns  of  an  inventory  without  motion,  yet  it  is  per- 
haps the  general  practice  that  such  things  are  done  upon  the 
application  of  some  one.  And  the  statutes  of  some  States  *" 
specifically  provide  that  a  creditor  or  party  in  interest  may  file 
such  an  application ;  and  therein  has  been  held  that  the  appli- 
cation must  show  that  the  applicant  is  a  creditor  or  otherwise 
interested  in  the  estate. ^'^ 

*"  §  10G67  G.  C.  clfes  exceed  a  few  in  number,  no  at- 

The   same  form   of   oath   may   be  tempt  should  be  made  to  fill  out  the 

used  as  is  given  in  a  previous  sec-  inventory    as    the   work   progresses, 

tion  of  this  chapter  in  the  filing  of  a  But  first  the  work  should  be  done, 

statement  in  lieu  of  a  i  account.     §  rough  notes  taken,  then  transcribed 

283.     The  form  of  a  general  inven-  to  the  paper  which  is  to  be  filed  as 

tory  is  always  provided  by  tlie  Pro-  an  invcntoiy  in  the  Probate  Court, 

bate  Court  upon  an  application;  and  It  is  very  trying  on  the  patience  of 

as  it  is  of  considerable  length  in  its  the  probate  judges  to  accept  the  in- 

entirety,    it    will    be    omitted    from  ventories    that    are    sometimes    pre- 

this  volume.   These  forms  are  usual-  sented  to  him,   in  the  discharge  of 

ly  gotten  up  in  such  a  manner  that  his  duties.     A  copy  must  be  retained 

if   a   fair   degree   of   intelligence  be  by  the   administrator, 
exercised  on  the  part  of  the  apprais-  4S  §  10GG8  G.  C.     See  §  283,  State- 

ers   and   the  administrator,  no   mis-  jnent  fur  inventory;  §491,  Sale  bill; 

take  need  be  made  in  properly  filling  §  741^  Account;  §  1597,  Assignment. 
them  out.     They  ought  to  be  filled  49  X.  Y.   §2716  Civil  Code, 

out  in   ink,  transcribed  from  rough  so  Redf,   Sur.   Prac.   390. 

notes  taken  by  the  appraisers  in  the  Query:     Is     right     ever     barred, 

performance  of  their  duties.     Where  Gilbert  vs.   Marsh,  4  N.   P.   338;    7 

the  estate  is  of  any  size  or  the  arti-  Dec.  23U. 


§  305  INVENTORY  250 

But  even  there  it  is  within  the  power  of  the  Court  to  compel 
a  return  of  its  own  motion. ^^ 

The  application  may  be  in  the  following  form : 

( Title. ) 

The    undersigned    respectfully    represents    that ,    late    of 

said  county,  died  on  or  about  the day  of ,  leaving  an 

estate  to  be  administered,  worth  about dollars.       That  on  or 

about    the day    of was    appointed    administrator     ( or 

executor)    of  the  estate  of  the  said ,  deceased;   and  has 

neglected  and  failed  to  return  an  inventory  of  said  estate,  as  required  by 
law.  Your  petitioner  further  represents  that  he  is  interested  in  the  said 
estate  (here  state  the  manner  in  which  the  person  claims  an  interest  in 
the    estate),    and    prays    that    a    citation    may    be    issued,    requiring    said 

to  appear  before  said  court  on  the day  of 

at   o'clock.     Then  and  there  to  show  cause,  if  any  he  may  have, 

why  he  should  not  return  an  inventory  of  said  estate. 

Sign. 

§  305.     Entry  and  writ  of  citation. 

The  order  granting  tlie  writ  will  be  made  without  any  other 
evidence  of  the  failure  to  return  the  inventory  than  that  which 
the  application  and  the  records  of  the  court  show.  The  entry 
may  be  in  the  following  form  : 

On  this  day  came  A.  B.  and  filed  herein  his  application  for  a  writ  of 
citation  against  C.  D.,  administrator  (or  executor)  of  the  estate  of  E.  F., 
alleging  that  the  said  C.  D.  has  failed  and  neglected  to  return  his  inventory 
as  required  by  law. 

Wherefore  it  is  ordered  that  a  writ  of  citation  be  issued  requiring  said 

A.  B.  to  return  said  inventory  to  this  court  on day  of , 

or  show  cause  before  this  court  on  that  day  why  the  same  has  not  been 
done ;  and  if  he  fails  to  do  so  he  will  be  removed  from  his  said  trust. 

FORM  OF  WRIT  OF  CITATION. 

( Title. ) 
State  of  Ohio. 

County,   Probate   Court,   ss. 

To  F.  R.,  sheriff:  You  are  commanded  to  cite  and  give  notice  to  A.  B. 
to   appear   before   the    Probate   Court   at   the  court  house   in   the   city   of 

of  said  county  and  show  cause  why  he  should  not  return 

an  inventory;  and  that  if  he  fails  to  return  the  inventory  or  to  show  cause 

51  Thompson     vs.     Thompson,     21 
Barb.    107. 


251  REMOVAL  FOR  FAILURE  TO  FILE  §  306 

for  not  so  doing,  he  may  be  removed  from  his  said  trust  as  provided  by  law 
and  of  this  writ  make  due  return. 

Witness  my  hand  and  seal  of  said  court,  this day  of 

Sign. 

Probate   Judge. 

§  306.     Removal  for  failure,  etc.,  and  granting-  of  new  letters. 

"After  personal  service  of  such  order  by  an  officer  or  person 
authorized  to  make  the  service,  if  such  executor  or  administrator, 
by  the  day  appointed,  does  not  return  such  inventory  under  oath 
or  fails  to  obtain  further  time  from  the  court  to  return  it,  or  if 
such  order  can  not  be  served  personally  by  reason  of  his  ab- 
sconding: or  concealing  himself,  the  court  may  remove  him  and 
new  letters  shall  be  granted,  as  provided  by  law.  [R.  S. 
S  6049.1" 


§  307.     Excuse  for  failure  to  return  an  inventory. 

After  an  inventory  has  been  once  ordered  under  the  provisions 
of  our  law,  which  seem  to  contemplate  the  filing  of  an  inventory 
in  the  administration  of  every  estate,  it  could  only  be  a  want  of 
assets  that  would  give  a  sufficient  excuse.  It  is  not  the  mere 
filing  of  a  paper  purporting  to  be  an  inventory  tliat  will  satisfy 
the  law,  and  therefore  the  writ  might  issue  to  compel  the  filing 
of  a  proper  inventory.  It  might  also  be  issued  where  tliere 
were  new  assets  which  came  into  the  hands  of  the  administrator 
or  executor  after  a  former  inventory  had  been  filed. ^^  Since  one 
of  the  reasons  for  filing  an  inventory  is  to  ascertain  what  the  as- 
sets of  the  deceased  were,  for  the  purpose  of  taxation,  the  fact 
that  tlie  estate  has  been  settled  by  agreement  and  all  the  debts 
paid  would  not  be  a  sufficient  excuse ;  and  it  is  no  excuse  for  a 
failure  to  make  and  return  an  inventory  that  the  assets  have  no 
present  existence,  that  is,  have  been  disposed  of  by  the  repre- 
sentative.^* 

Nor  is  it  an  answer  to  the  application  to  compel  the  return  of 
an  inventory  that  the  administrator  has  assets  largely  in  excess 
of  the  debts  of  the  testator,  and  that  he  offers  to  give  security 

52§  inonn  Cx.  C.  »*  Ri]vo,-hrnndt    vs.    Widmayer,    2 

53  Sec  §  10683  G.  C,  §  311.  Dem.   203. 


§  308  INVENTORY  252 

for  tlie  payment  of  all  debts,  or  that  it  would  be  troublesome  and 
expensive  to  make  an  inventory,  or  to  allege  that  the  petitioner 
is  actuated  by  curiosity  and  a  design  to  abuse  the  process  of  the 
court/^ 

It  is  very  doubtful  if  it  were  shown  that  the  applicant  was 
not  an  interested  party  that  it  would  be  a  sufficient  excuse -to  dis- 
pense with  the  order. ^^ 

§  308.     Entry,  form,  etc. 

If  before  the  time  set  for  the  administrator  or  executor  to  file 
the  inventory  or  show  cause  why  he  should  not  be  removed,  the 
administrator  appears  and  files  an  inventory,  one  that  is  satis- 
factory to  tlie  Court,  a  very  short  entry  of  dismissal  is  sufficient. 
If,  however,  he  fails  to  make  a  proper  retuni,  then  the  entry  may 
be  in  the  following  form : 

(Title.) 

This  day  this  matter  came  on  to  be  further  heard  upon  the  application 
of  A.  B.,  requiring  C.  D.  to  make  return  of  an  inventory  in  the  matter  of 
the  administration  of  the  estate  of  E.  F.,  as  required  by  law;  and  it 
appearing  to  the  court  that  said  C.  D.  has  had  due  and  legal  notice  of  the 
order  heretofore  made  (here  if  the  administrator  has  absconded  or 
conceals  himself  so  that  the  order  could  not  be  served,  so  state  in  the 
entry),  it  further  appearing  to  the  court  that  said  administrator  (or 
executor)    has  failed  to  return  said  inventory.     It  is  hereby  ordered  that 

he  be  removed  as  administrator  of   said  estate;    and  that  whithin 

days  from  this  date  he  file  in  this  court  an  account  of  his  trust;  and  that 

the    costs    of    these    proceedings,    amounting    to dollars,    be 

taxed  against  said  C.  D.,  and  judgment  be  rendered  therefor. 

§  309.  Effect  of  such  revocation.  "Such  letters  shall  super- 
sede all  former  letters  testamentary  or  of  administration,  deprive 
the  former  executor  or  administrator  of  all  power,  authority,  or 
control,  over  the  estate  of  the  deceased,  and  entitle  the  person 
appointed,  to  take,  demand,  and  receive  his  goods  and  effects 
wherever  they  are  found."     [R.  S.  §  6050.]^^ 

§  310.  Prosecution  of  former  bond  by  administrator  de  bonis 
non.     "In  every  case  of  revocation,   the  bond  given  by  the 

55  Forsyth  vs.  Burr,  .37  Barb.  540.  57  §  10670  G.  C. 

56  See    Redf.    Sur.    Prac.    398. 


253  NEW   ASSETS  §  311 

former  executor  or  administrator,  must  be  prosecuted,  and  a 
recovery  had  thereon,  to  the  full  extent  of  any  injury  sustained 
by  the  estate  of  the  deceased,  by  his  acts  or  omissions,  and  to 
the  full  value  of  all  the  property  of  the  deceased,  received  and 
not  duly  administered  by  him."     [R.  S.  §  6051.] ^« 

§  311.     New  assets  after  return   of  first  inventory. 

It  very  often  happens  that  after  an  inventory  has  been  taken 
it  will  be  ascertained  that  some  articles  have  been  overlooked. 
This  is  the  rule.  It  is  hardly  to  be  expected  that  you  will  get 
every  article.  If  in  such  cases  they  are  of  considerable  amount 
the  inventory  should  be  amended  by  either  again  calling  together 
the  original  appraisers  and  notifying  the  persons  entitled  to  be 
]iresent,  or  the  administrator  may  assume  the  risk,  if  any  tliere 
be,  and  return  the  articles  in  his  possession  in  his  account.  If 
uew  assets  come  into  the  possession  of  an  administrator  or  execu- 
tor after  he  has  filed  his  inventory,  a  new  inventory  may  be 
made.  The  same  rules  will  apply  to  the  new  inventory  as  to  the 
orig-inal.  It  is  provided  for  in  the  following  section  of  the  Gen- 
eral Code: 


"Wlienever  personal  property,  or  assets  of  any  kind,  not  men- 
tioned in  any  inventory  that  has  been  made,  come  to  the  knowl- 
edge or  possession  of  an  executor  or  administrator,  he  must 
cause  them  to  be  appraised  in  manner  aforesaid,  and  an  in- 
ventory to  be  returned,  within,  two  months  after  discovery 
thereof.  The  making  of  such  inventory  and  return  may  be 
enforced  in  the  same  manner  as  in  the  case  of  the  first  inven- 
tory."    [R.  S.  §6061.1^9 

^  312.  Exceptions  to  inventory  and  proceedings  thereon. 
Appeal  to  Common  Pleas.  "Within  six  months  after  the  re- 
turn of  an  inventory  a  person  interested  in  the  estate  may  file 
exceptions  to  it.     Thereupon,  the  court  shall  set  a  day  for  their 

58  §  10671  G.  C.  §  260.     Also  for  proceedings  by  at- 
As  to  comment  applicable  to  the  tachment,  see  chapter  on  Special  Ad- 
above   section,   see   chapters   on   Ad-  ministrator,  §  128  ct  seq. 
ministrator  de  bonis  non,  §  151 ;  "Re^  59  §  10683  G.  C. 
moval  and  resignation,  §  208;  Bonds, 


§  312a  in\t:ntqry  254 

hearing,  and  cause  written  notice  of  such  filing  and  of  the  time 
for  the  hearing  to  be  given  to  the  executor  or  administrator,  not 
less  than  five  days  before  that  time.  For  good  cause  the  hearing 
may  be  continued  for  such  time  as  the  court  deems  reasonable. 
At  the  hearing  the  executor  or  administrator,  and  any  witness 
may  be  examined  under  oath.  The  court  must  enter  its  finding 
on  the  journal  and  tax  the  costs  as  may  be  equitable."  [R.  S. 
§6024;  102  V.  201.]  «o 

§  312a.  Appeal  on  exceptions  to  inventory.  ''Wlien  a  per- 
son interested  in  an  estate  which  is  in  the  course  of  adininistra-^ 
tion,  files  exceptions  to  an  inventory  thereof,  in  the  probate  court, 
either  party  may  appeal  from  its  finding,  order,  or  Judgment  or 
hearing  thereof,  to  the  court  of  common  pleas."  [R.  S. 
§  6024.]  sf"* 

§  313.     Form  of  exceptions,  etc. 

The  above  section  of  the  General  Code  seems  to  contain  the 
entire  proceedings  for  exceptions  to  an  inventory.  First,  it  pro- 
vides that  any  interested  person  may  file  it ;  second,  that  it  may 
be  done  within  six  months  after  the  return  of  the  inventory,  and 
that  a  day  shall  be  set  for  hearing  when  a  trial  may  be  had ;  costs 
taxed  as  may  be  equitable  and  that  an  appeal  may  be  taken  by 
an  aggrieved  party.  The  following  may  be  used  as  a  form  for 
exceptions : 

{Title.) 

Now  comes  A.  B.,  one  of  the  creditors  of  said  estate  of  (or  here  insert 
other  capacity),  and  files  an  exception  to  the  inventory  of  the  estate  of 

C.   D.   filed   in   this   court  on  the day   of by   E.   F., 

executor  (or  administrator).  In  this  to- wit:  (Here  set  out  in  detail 
whatever  the  fault  may  be  to  the  inventory,  whether  it  be  the  omission  of 
the  assets  or  the  improper  statement  of  one.) 

Wherefore  the  said  A.  B.  prays  that  a  hearing  may  be  had  thereon  and 
the  court  make  such  an  order  as  the  facts  and  the  law  require. 

§  314.     Form  of  entry  ordering  notice. 

The  above  exceptions  having  been  filed,  the  statute  directs  that 
notice  thereof  be  given  to  the  administrator,  which  may  be  pro- 
vided for  by  the  following  entry : 

60  §  10639,   G.   C.  The  question  as  to  an  allowance 

60*  §  10640,  G.  C.  of  a  widow  may  be  raised  on  excep- 

A  creditor  of  an  heir  at  law,  or  tions.     In  re  Est.  of  Scott,  19  Dec. 

distributee  of  a  decedent,  whose  es-  577. 

tate  is  being  administered  upon,   is  The  Court  of  Common  Pleas  can 

not  an  interestetl  person  witliin  the  not  dismiss  an  appeal  from  an  order 

meaning     of     the     statute.       In     re  overruling     exceptions     to     an     ap- 

Stursis   6  X.  P.   (X.S.)  331:  18  Dec.  praisement  on  the  ground  that  the 

344  '^    '  executor  filed  exceptions  to  his  own 

And   the   question   n^av   be   raised  inventory.      Sprankle    vs.    Odell     22 

where  the  matter  has  been  appealed,  O.  C.  C.   (X.S.)   480;  affirmed,  /8  0. 

in  the  Court  of  Common  Pleas.     Id.  S.  404. 


255  EXCEPTIONS,    ETC.  §  315 

(Title.) 

This  day  came  A.  B.  and  filed  in  this  court  his  exceptions  to  the  inven- 
tory herein  filed  by  C.  D.  as  administrator  (or  executor)  of  the  estate  of 
E.  F. 

Wherefore  it  is  ordered  that  notice  thereof  be  given  to  the  said  C.  D.  as 

required  by  law  and  that  the  hearing  of  said  exceptions  is  set  for  the 

day   of ,    at o'clock. 

And  that  said  notice  be  served  or  delivered  to  said  executor  (or  admin- 
istrator )    by not  less  than  5  days  before  said  day  of 

bearing. 

§  315.    Notice,  etc. 

The  notice  may  be  served  by  anyone.  If  served  by  a  private 
individual  it  should  contain  an  affidavit  of  its  manner  of  service. 
If  by  a  sheriff,  the  usual  return ;  it  may  be  in  the  following 
form: 

(Title.) 

To (here  insert  person  to  make  the  service)  :     You 

are  hereby  commanded  to  notify  C.  D.  that  on  the day  of 

A.  B.  filed  in  this  court  exceptions  to  his  inventory  of  the  personal  prop- 
erty of  the  estate  of  E.  F.  Exceptions  thereto  are  as  follows:  (Here 
state  the  exceptions  to  the  inventory).     And  you  further  take  notice  that 

the  court   has  fixed  the day   of ,  at o'clock, 

as  the  time  for  hearing  said  exceptions. 

§  316.     Hearing  and  order. 

The  Court  will  order  subpoenas  issued  on  application  of  any 
interested  party  for  witnesses  to  appear  and  testify  in  the  mat- 
ter of  such  exceptions  on  the  day  set  for  hearing,  and  the  or- 
dinary course  of  a  trial  will  be  pursued ;  whatever  the  finding 
may  be,  it  should  be  entered  upon  the  journal.  The  following 
may  be  used  as  a  form  of  entry : 

This  day  this  matter  came  on  to  be  heard  on  the  exception  of  A.  B.  to  the 
inventory  of  C.  D.,  administrator  (or  executor)  of  the  estate  of  E.  F.,  and 
was  submitted  to  the  court  by  testimony  of  witnesses.  The  said  C.  D., 
administrator,  being  present  (or  if  the  administrator  is  not  present,  say 
that  the  court  furher  finds  that  the  said  C.  D.  has  had  due  and  legal  notice 
of  said  hearing).  Whereupon  the  court  finds  (here  state  whatever  the 
finding  may  be)  and  the  court  orders  (here  state  what  orders  may  be 
made  as  to  the  costs  and  if  the  administrator  desires  to  appeal  and  add 
to  the  entry),  and  thereupon  said  administrator  gives  notice  of  appeal. 


§  317  INVENTORY  256 

§  317.     Appeal. 

The  law  specifically  provides  that  from  any  judgment,  order 
or  decision  of  the  Probate  Court,  on  the  hearing  of  such  excep- 
tions, an  appeal  may  be  taken  to  the  Court  of  Common  Pleas.*'^ 
I  presume  the  matter  could  also  be  taken  up  on  error,  but  on 
this  question  I  have  no  distinct  authority  other  than  the  general 
provision  of  our  statute,  which  provides  for  error.  Upon  an 
order  made  to  direct  the  return  of  the  inventory  the  statute 
makes  no  provision.  Therefore  there  would  be  no  right  of  ap- 
peal, neither  is  there  any  right  of  appeal  when  the  administra- 
tor is  removed  for  failure  to  make  a  return  of  the  inventory,  and 
it  may  be  questionable  if  there  is  a  remedy  by  proceedings  in 
error.^^ 

§  318.    Effect  of  inventory  as  evidence. 

The  inventeiy  is  prima  facie  evidence  both  as  to  extent  and 
value  of  the  personal  property  left  by  the  decedent,  and  casts  the 
burden  upon  one  seeking  to  impeach  it  to  show  that  articles  were 
deemed  of  greater  value  than  the  appraised  value  was.®^ 

The  administrator  is  prima  facie  liable  for  the  amount  of 
money  at  which  the  articles  have  been  inventoried.®* 

If  it  is  shown  that  assets  were  disposed  of  for  more  than  the 
inventory  price,  the  administrator  of  course  is  liable  for  that 
amount.  Where  assets  are  taken  by  the  administrator  at  the  in- 
ventory price,  and  it  is  showm  that  they  are  of  greater  value  than 
the  price,  he  must  answer  for  tlie  same.®* 

It  is  only  where  a  \\ddow  occupies  the  position  of  administra- 
tor or  executor  that  an  administrator,  etc.,  could  rightfully  take 
the  property  at  its  appraised  value.  The  unexplained  omission 
of  an  administrator  to  make  any  claim  of  set-off  or  defense  to  a 

61  §S  10630-40  G    C,  §  312.  of  appeal  from  the  Common  Pleas 

No  provision  is  made  for  the  man-  Court  to  the  Court  of  Appeals.     In 

ner  in  which  an  appeal  may  be  per-  re     Christman     Est.,     13     O.     App. 

fected    and    therefore    as    to    bond,  (1920).             ,   „   ^             ,-o    x-    ^' 

transcript    the    general    provisions.  63  Matter   of   Eodgers,    la3    .\.    \. 

gee  §§  41  to  60  316. 

See  In  re  Estate  of  Scott,  19  Dec.  6  4  Ames    vs.    Downing,     1    Bradf. 


577 


321. 


62  See  §  39,  §  52,  Monger  vs.  Jef-         J'^  Zilkin    vs.    Carhart,    3    Bradf. 
fries,  62  0.  S.  155.   There  is  no  right       376. 


257  AS   EVIDENCE  §  318 

demand  against  himself  in  the  inventory',  is  evidence  against  the 
validity  of  such  a  defense."" 

And  where  an  executor,  in  preparing  the  inventory  of  an  es- 
tate, includes  therein  a  promissory  note  given  by  him  to  the  tes- 
tator, which  note  was  then  out-lawed,  this  was  held  a  sufficient 
acknowledgment  in  writing  to  remove  the  bar  of  the  statute  of 
limitation."^ 

Where  a  bank  deposit  is  inventoried  as  cash,  but  the  money  is 
not  collected  before  the  bank  fails,  the  administrator  is  not  abso- 
lutely concluded,  but  the  inventory  may  be  shown  to  be  incorrect 
upon  a  final  accounting.®* 

Where  upon  the  subsequent  accounting  it  appears  that  certain 
items  have  realized  much  less  than  their  inventory  value,  the 
executor  or  administrator,  in  order  to  avail  himself  of  the  rule 
that  he  should  sustain  no  loss  or  decrease  Avithout  his  fault  in 
part  of  the  estate,  but  shall  be  allowed  for  such  property  or  loss 
without  his  fault  upon  the  settlement  of  his  account,  must  show 
affirmatively  the  facts  in  regard  to  tlie  alleged  depreciation  or 
loss.'" 

36  Lloyd  vs.  Lloyd,  1  Redf.  399.  e^  Underbill     vs.     Newburger,     4 

67  Ross  vs.  Ross,  6  Hun  80 ;  Mat-       Redf.    499.      See   Redf.    Surr.    Prac. 

ter  of  Daggett,  22  N.  Y.  Supp.  911.       406;  Jess.  Surr.  Prac.  898. 
88  Sheerin    vs.    Public   Admin.,    2 

Kedf.  421. 


§319 


WIDOW  S    ALLOWANCE 


258 


CHAPTER  XIX. 

WIDOWS'  AND   CHILDREN'S  ALLOWANCE. 


§  319  Introductory. 

§  320  What  shall  not  be  deemed  as- 
sets, etc. 

§  320a  Assets  not  to  be  adminis- 
tered  on   in   certain    cases. 

§  321  Comments. — Wearing  apparel, 
etc. 

§  322  Disposition  of  such   property. 

§  323  Right  to,  under  §  10654,  G.  C. 

§  324  Year's   allowance. 

§  325  Money  to  be  set-off  if  neces- 
sary. 

§  326  Persons  entitled  to,  etc. 

§  327  Right  barred  by  will  or  con- 
tract. 

§  328"  Nature  of  the  claim. 

§  329  When  appraisers  fail  to  make 
allowance. 


330  Apportionment  between   wid- 

ow and  children. 

331  Amoimt  of,  etc. 

332  When  and  to  whom  payable. 

333  Allowance   may    be   increased 

or  diminished  by  the  Court. 

334  Petition  for,  etc. 

335  Who  may  file  petition. 

336  Form  of  petition  for  increase 

or  decrease  allowance. 

337  Form  of  entry,  etc. 
33S  Notice,  etc. 

339  Entry  en  hearing  to  increase 

or  decrease. 

340  Error  and  appeal,  etc. 

341  Widow's  and  widower's  quar- 

antine. 


§  319.     Introductory. 


When  a  man  dies  with  an  existing  marriage  relation  between 
himself  and  his  wife,  or  leaving  children,  the  law  gives  to  such 
snr\"iving  wife  and  children  certain  rights  in  his  property. 
Since  the  statnte  has  placed  man  and  woman  on  an  equality  in 
reference  to  tlieir  property  rights,  it  is  Cfuestionable  whether  the 
law  onght  not  to  be  the  same  in  reference  to  the  rights  of  a  sur- 
viving husband  and  children  in  the  property  of  a  deceased  wife 
as  it  is  in  reference  to  a  suiwiving  ^vife  and  children  in  the  prop- 
erty of  a  deceased  husband.     But  it  is  not  so  in  this  State,^  ex- 


1  Hance,  Gdn.,  vs.  Cliappell,  20  C. 
C.  214;  11  C.  D.  139.  Reversed 
where  mother  was  a  widow  and  held 
that  her  children  were  entitled  to  al 
lowance  out  of  her  estate.  Matter 
of   Estate   of   Hinton,   4.5    Bull.   423 

Same   doctrine  approved,   3   C.   C 
(N.S.)    608;   In  re  Glenn,  23   0.   C 


C.  397;  13  Cir.  D.  39S;  columns 
171,  732. 

See  chapter  41,  §  14,  as  to  Home- 
stead rights.  See  §  903  et  scq.  De- 
scent and  Distribution. 

The  widow's  allowance  is  exempt 
from  inlieritance  tax  to  the  extent 
of  $3000.00.     See  chapter  106. 


259  NOT    DEEMED    ASSETS  §  320 

cept  as  to  the  dower  interest,'  and  the  distributive  share  of  the 
personal  property,^ 

Upon  these  two  the  law  has  been  amended  so  as  to  place  them 
on  an  equality.  The  various  ways  in  which  a  widow  is  inter- 
ested in  the  property  of  the  deceased  husband  may  be  said  to  be 
the  following:  First,  the  interest  of  the  wife  in  the  husband's 
real  estate;  second,  the  interest  in  his  personal  property  on  dis- 
tribution ;  third,  the  property  which  is  ordered  to  be  set  aside 
to  her  and  the  children,  and  which  are  not  to  be  deemed  assets 
of  the  estate;  fourth,  an  allowance  made  to  support  the  widow 
and  the  children  for  one  year;  fifth,  what  is  known  as  tJie 
widow's  quarantine.  The  first  of  the  above  mentioned  wiJ 
be  more  properly  considered  when  we  deal  in  the  sale  of 
real  estate  (§  943  et  seq.  Dower).  Or  when  tlie  subject  of 
election  under  will  is  considered  (§  121-i,  et  seq.).  The  sec- 
ond will  be  considered  when  treating  of  the  distribution  to  be 
made  by  an  administrator  or  executor.  The  other  three  will 
be  considered  in  this  chapter.* 

§  320.    What    shall  not  be  deemed  assets,  etc. 

There  is  certain  specified  property  which,  according  to  the 
statute,  is  not  to  be  deemed  assets  of  the  estate.     The  only  au- 

2  §§  860G-7    G.   C,    §  944.  nearly  all  the  homestead  and  exemp- 

3  §  8592  G.   C,   §938.  tion  laws;   the   immunities   enacted 

4  These  provisions,  like  the  kin-  by  these  statutes  are  extended  to 
dred  subject  of  the  homestead  ex-  this  association  of  persons,  or  to  the 
emption  laws,  are  of  purely  Ameri-  head  thereof,  for  the  benefit  of  all 
can  origin.  They  owe  their  exist-  its  members."  "  The  relation  of  hus- 
ence  to  a  humane  and  benevolent  band  and  wife,  parent  and  child,  is 
consideration  for  the  distress  and  the  unit  of  civilization,  and  the 
helplessness  of  widows  and  orphans  State  has  thought  to  encourage  that 
newly  bereft  of  their  protector  and  relation  by  protecting  it  from  ab- 
supporter,  and  to  a  wise  public  pol-  solute  want,  arising  from  the  vicissi- 
icy,  recognizing  the  true  relation  of  tudes  of  life."  Wocrner  on  Admin. 
the  State  to  the  family  as  its  organ-  160. 

ic,  constituent  element.  "  The  protec-  See    §    661,    Payment   of;    §    939, 

lion  of  the  family,"  says  Thompson  Distribution   of   personal   property; 

in  his  valuable  works  on  Homesteads  §    944,    Of   what  estate   endowed;    § 

and  Exemptions,  "  from  dependence  1026,   Property   under   will. 
and  want  is  the  expressed  object  of 


§  320a  WIDOW 's  allowance  260 

tliority  and  control  which  the  administrator  may  have  over  such 
property  is  that  he  may  have  access  to  it  in  order  that  the 
appraisers  may  view  the  same  and  set  it  apart  to  the  use  of  the 
wife  and  children.     The  section  relating  thereto  is  as  follows: 

§  320a.    Assets  not  to  be  administered  on  in  certain  cases. 

"When  a  person  dies  leaving  a  widow,  or  minor  child,  or  chil- 
dren, under  the  age  of  fifteen  years,  the  following  property  shall 
not  be  deemed  assets  or  administered  as  such,  but  must  be  in- 
cluded and  stated  in  the  inventory  of  the  estate,  and  signed  by 
the  appraisers,  without  appraising  it : 

1.  One  family  sewing  machine,  to  be  retained  by  the  ^^ddow 
absolutely  as  her  own  property,  and  all  stoves  set  up  and  kept 
in  use  by  the  family; 

2.  The  family  bible,  family  pictures,  and  school  books  used 
by  or  in  the  family  of  the  deceased,  and  books,  not  exceeding 
one  hundred  dollars  in  value,  which  were  kept  and  used  as  part 
of  the  family  library  before  his  death ; 

3.  One  cow,  or  if  there  be  no  cow,  household  goods,  to  be 
selected  by  the  widow,  or  if  there  be  no  widow,  by  the  guardian 
or  next  friend  of  such  minor  child  or  children,  not  exceeding 
forty  dollars  in  value,  or  if  there  be  no  household  goods  such 
as  the  widow  or  guardian  or  next  friend  desires  to  select,  then 
forty  dollars  in  money ;  all  sheep  to  the  number  of  twelve,  their 
valuation  not  to  be  greater  than  seventy-five  dollars,  and  the 
wool  shorn  from  them ; 

4.  All  the  wearing  apparel  and  ornaments  of  the  family  and 
of  the  deceased,  all  the  beds,  bedsteads,  and  bedding,  cooking 
utensils,  and  table-ware  necessary  for  the  use  of  the  family,  one 
clock,  and  any  other  articles  of  personal  property  not  to  exceed 
one  hundred  dollars  in  value,  which  the  widow,  or  if  there  be 
no  widow,  the  guardian  or  next  friend  of  such  minor  child  or 
children,  may  select,  to  be  valued  by  the  appraisers."  [R.  S. 
§6038.]^ 

§  321.     Comments.     Wearing-  apparel,  etc. 

It  may  be  obserA^ed  that  several  conditions  are  requisite  in 
order  that  property  may  be  set  off.  First,  there  must  be  a 
wndow,  or  if  there  be  no  widow,  there  must  be  a  minor  child  or 
children  under  the  age  of  fifteen  years.  The  widow  here  means, 
as  elsewhere,  the  sur\'iving  consort  of  a  deceased  husband  who 
sustained  a  family  relation  with  her  husband,  or  if  she  did  not, 
it  was  not  the  result  of  any  fault  of  her  own.^ 

5  §10654  G.  C  6  In   re  Estate  of  Eotli,   6   N.  P. 

498. 


261  DEFINITION,    ETC.  §  321 

Children,  as  a  matter  of  course,  means  legitimate  children, 
and  would  include  adopted  children  as  well  as  those  of  his  own 
blood ;  but  not  his  step-children.  It  seems  from  tlie  wording 
of  the  first  division  of  the  section  relating  to  the  property  that 
should  be  set  off,  that  it  becomes  the  property  of  the  widow  ab- 
solutely. Under  the  second  division  it  is  a  general  practice 
where  the  estate  is  not  large  to  set  all  such  property  apart  to  the 
use  of  the  widow  or  children,  for  generally  it  takes  a  large 
number  of  such  articles  to  exceed  $100  in  value ;  and  if  there 
are  no  creditors  whose  interests  may  be  affected,  even. if  the 
amount  is  above  $100,  it  may  he  proper  to  give  it  to  the  widow 
and  children  at  once.  Under  the  third  division,  if  there  is  a 
cow  it  should  be  set  off.  Or  if  there  is  no  cow,  household  goods 
may  be  selected,  not  exceeding  $40  in  value.  If  there  is  neither 
cow  nor  household  goods,  then  $40  is  to  be  allow^ed  in  money, 
and  in  addition  twelve  sheep,  etc.  Under  the  fourth  division 
the  articles  therein  mentioned  not  to  exceed  $100  in  value. 

A  watch,  watch  chain,  key  and  seals,  a  finger  ring  usually 
worn  by  the  deceased  during  his  life,  a  sword  and  sword  belt 
of  an  officer  in  the  United  States  army  or  navy,  worn  according 
to  militar)'  rules  and  regulations,  cannot  be  regarded  as  "  wear- 
ing apparel " ;  but  it  is  otherwise  as  to  such  officer's  epaulets, 
which  are  a  part  of  his  coat;  and  a  bosom  pin,  which  is  attached 
to  his  shirt.^     So  jeweliy  and  rings  may  be  wearing  apparel.* 

To  entitle  the  widow  to  the  possession  of  articles  enumer- 
ated (e.  g.,  sheep  and  swine),  the  deceased  husband  must  have 
had,  or  his  personal  representative  must  have,  such  an  ownership 

7  Sawyer  vs.  Sawyer,  28  Vt.  249.  luxuries  are  not  within  the  meaning 

In  tlie  case  of  Socket  vs.  Wishon,  of  the  term.     A  gold  watch  may  be 

6  N.  P.  155,  the  above  case  is  cited  included,    but    not    a   diamond    ring. 

and    reviewed,    and    the    Court    ar-  In    i-e    Henry,     14     Fed.     Dec.     353 

rives  at  the  conclusion  that  a  watch  (1905). 

and   chain   of  reasonable   value,    ha-  See  in  a  recent  case  where  a  oon- 

bitually  worn  by  a  person,  is  wear-  ductor's   watch   was   held  not   to   be 

ing  apparel.  included  within  the   term   "wearing 

Tlie    term    "wearing    apparel"    in-  apparel"    nor     "ornament."      In    re 

eludes  that  which   is  worn  for  com-  Est.  of  A.  G.  Post,  8  0.  L.  R.  492; 

fort    and    convenience.      It   may    be  55  Bull.  382. 

cheap    or    expensive,    according    to  s  Frazier  vs.  Barnum,  19  N.  J.  Eq. 

mode  of  life  and   business,   and   the  316;    Becket    vs.    Wishon,    5    N.    P. 

social,  business  and  professional  re-  155. 

quirements  of  the  wearer.     But  mere 


§  322  widow's  allowance  262 

and  possession  of  them  at  the  time  of  the  making  of  the  inven- 
tory, as  will  permit  of  their  delivery  to  the  widow.  When  he 
had  but  half  interest  therein,  they  cannot  be  delivered  to  her,  nor 
can  any  allowance  be  made  therefor.^ 

§  322.  Disposition  of  such  property.  ' '  Sneh  articles,  except 
the  wearing  apparel  of  the  deceased,  shall  remain  in  the  pos- 
session of  the  widow,  if  there  be  one,  during  the  time  she  lives 
with  and  provides  for  such  minor  child  or  children,  when  she 
ceases  to  do  so,  she  must  be  allowed  to  retain  as  her  own  her 
wearing  apparel,  ornanients,  and  one  bed,  bedstead,  and  the 
bedding  for  it.  The  other  articles  so  exempted,  and  not  con- 
sumed, shall  then  belong  to  such  minor  child  or  children.  If 
there  be  a  widow,  and  no  minor  child  or  children,  then  such 
articles  shall  belong  to  the  widow."     [R.  S.  §  6039.] i<> 

§  323.     Right  to  under  §  10654  G.  C.  (§  320). 

Immediately  upon  the  death  of  the  husband  and  father  the 
goods  enumerated  in  this  section  vest  in  the  widow  and  chil- 
dren," and  they  may  sell  them.^^  They  pass  to  her  admin- 
istrator as  against  her  husband's  heirs,  other  than  his  children, 
or  administrator.^^  This  allowance  is  made  regardless  of  the 
fact  that  the  decea.sed  has  left  a  will,^*  unless  the  will  made 
special  provision  as  to  the  rights  of  the  widow  or  the  property. 
The  administrator  can  not  sell  't'hem,  even  under  an  order  of 
court ;  and  if  he  do  will  be  liable.^^  A  widow  who  has  been 
divorced  is  not  entitled  to  any  of  the  property  specified  under 
this  statute,^®  nor  one  who  has  deserted  her  husband  for  years.^^ 

9  Baueus  vs.  Stover,  24  Hun,  109.       Graves  vs.  Graves,   10  B.  Mon.  31; 
An    engagement    ring,    a    brooch,       ^lorris  vs.  Morris,  9  Heisk.  814. 

finger   rings  and  earrings  are  wear-  is  Dobson  vs.   Butler,   17   Mo.   87 ; 

ing   apparel.      In  re   Hannab   Levy,  Hettrick    vs.    Hettrick,    55    Pa.    St. 

47   Bull.    186.  290. 

10  §  10655  G.  C.  1'  Tozer  vs.  Tozer,  2  Amer.  L.  Reg. 

11  Hastings  vs.  Meyer,  21  Mo.  (0.  S.)  510;  In  re  Rotb,  6  N.  P. 
519;  Kellogg  vs.  Graves,  5  Ind.  509.  496:    9    Dec.    429;    see    §§226,    227, 

12  McFarland  vs.  Paze,  24  Mo.  156.  Removal  of  Admin. 

13  Cummings  vs.  Cummings,  51  See  In  re  McMillan,  8  C.  C.  (N.S.) 
Mo.  261;  Estate  of  Moore,  57  Cal.  294;  28  0.  C.  C.  645.  as  to  widow 
446.  living    separate   from    her    husband, 

14  Nelson  vs.  Wilson,  61  Ind.  255.  holding  widow  is  entitled  to  same. 

15  Carter  vs.  Hinkle,  13  Ala.  529; 


263  PERSONS    ENTITLED  §  324 

§  324.  Year's  allowance.  "The  appraisers  also  must  set  off 
and  allow  to  the  widow,  and  children  under  the  age  of  fifteen 
years,  if  any  there  be,  or  if  there  be  no  widow,  then  to  such 
children,  sufficient  provisions  or  other  property  to  support  them 
for  twelve  months  from  the  decedent's  death.  Tf  the  mdow  or 
such  children,  since  then,  and  previous  to  such  allowance,  have 
consumed  any  part  of  the  estate  for  their  support,  the  appraisers 
shall  take  that  into  consideration  in  determining  the  amount  of 
the  allowance."     [R.  S.  §6.040.]^^ 

^  325.  Money  to  be  set-ofiP  if  necessary.  "When  there  is  not 
sufficient  personal  property,  or  property  of  a  suitable  kind,  to 
set  off  to  the  widow  or  children,  as  provided  in  the  next  pre- 
ceding section,  the  appraisers  must  certify  what  sum  or  further 
sum,  in  money,  is  necessary  for  the  support  of  such  widow  or 
children."     [R.  S.  §  6041. l'^^ 

§  326.    Persons  entitled  to,  etc. 

The  same  persons  are  entitled  to  what  is  known  in  law  as  a 
widow's  year's  allowance,  as  are  entitled  to  the  property  directed 
to  be  set  apart  under  §  10654,  G.  C.-*^  As  a  general  rule  it 
may  be  said  that  so  long  as  an  absolute  divorce  has  not  been 
procured,  the  wife  is  entitled  to  the  allowance.  Thus  where  a 
wife  living  separate  and  apart  from  her  husband  brought  an 
action  for  alimony  and  obtained  a  decree  requiring  the  husband 
to  pay  her  a  definite  sum  semi-annually  during  her  life,  it  was 
held  that  this  would  not  deprive  her  of  the  right  to  have  set 
aside  to  her  a  year's  allowance,  provided  there  were  assets  be- 
longing to  the  estate.'^^ 

In  another  case  where  a  husband  had  deserted  his  wife  in 

18  §  10656  G.  C.  C.  575.]      §  6042  R.   S.;    §  10658  G. 

The  question  whether  the  person  C;    107  v.  547. 

is  in  fact  the  widow  can  be  raised  i^  §  10357  G.  C. 

by  exceptions  to  the  inventory  and  20  Children  under  15  years  of  age 

the  judgment  of  the  Probate  Court  are    entitled    to    allowance    out    of 

can  be   appealed  from   to  the  Com-  mother's     estate.       In     re     Hinton, 

mon    Pleas    Court   under    §6024    R,  (Sup.  Ct.)  ;   45  Bull.  423;    64  0.  S. 

S.      In    re    Est.    of    Scott,    19    Dec.  485;  In  re  Glenn,  23  C.  C.  397. 

577.  When    the    widow    has    consumed 

"The  appraisers  shall  not  include  property    of    a    greater    value    than 

in     the     inventory     the     provisions,  the  allowance  made  to  her,  slie  will 

property,   or  money  set  off  and   al-  be  presumed  to  have  been  paid.   Est. 

lowed    by    them    to    the    widow    or  of  ^IcDermott,  13  Dec.  390. 

children,   but  these   must  be   stated  It     can     be     allowed     out     of     a 

in     a     separate     schedule     and     re-  mother's  estate.     Hinton,  In  re,  64 

turned,   with    the   inventory,   to   the  O.  S.  485. 

court,  by  tlie  executor,  or  adminis-  21  Lockwood  vs.  Krum,  34  0.  S.  1. 
trator."'     [38    v.    146,    §47;     S.    & 


§  326  widow's  allowance  264 

Germany  and  afterwards  came  to  the  United  States  and  with- 
out being  divorced  from  the  wife  in  Germany  married  in 
the  United  States,  and  for  a  period  of  more  than  20  years 
lived  with  his  American  wife  who  remained  in  entire  ignorance 
of  the  wife  in  Germany,  the  wife  in  Germany  making  no  effort 
to  locate  her  husband  until  after  she  discovered  his  death. 
In  this  case  it  was  held  that  the  right  of  the  widow  to  the 
year's  allowance  rests  upon  the  existence  of  the  family  rela- 
tion ;  that  the  establishment  of  the  mere  fact  that  the  marriage 
relation  once  existed  and  was  never  legally  severed  will  not  be 
sufficient  to  establish  the  widow's  claim  to  the  year's  allow- 
ance. The  claimant  must  show  that  the  marriage  relation 
existed  at  the  time  of  the  decedent's  death,  or  if  it  did  not, 
that  it  w^as  against  her  wish  and  ■v\dthout  her  fault.'" 

In  another  case  it  was  held,  that  where  a  husband  aban- 
doned his  wife  and  she  thereafter  committed  adultery,  that  she 
would  not  be  barred  of  either  her  dower  right,  or  her  year's 
allowance,  and  that  if  the  administrator,  knowing  the  fact  that 
the  marriage  relation  with  the  deceased  was  not  dissolved,  paid 
the  allowance  to  the  supposed  widow,  that  such  action  on  the 
part  of  the  administrator  was  fraudulent  and  the  real  widow 
might  recover.  ^^  The  courts  of  other  States  are  not  in  accord 
as  to  the  right  where  the  marriage  had  never  been  legally  dis- 
solved. Thus  in  Iowa  it  was  held  that  where  the  wife  and  hus- 
band lived  apart  for  seven  years,  he  boarding  with  others  and 
neither  contributing,  or  being  asked  to  contribute,  to  her  sup- 
port, that  she  was  not  entitled  to  an  allowance,^*  while  under 
somewhat  similar  circumstances  a  ISTew  York  court  declined  to 
follow  the  construction  given  by  the  Iowa  court. ^^ 

However,  it  seems  that  the  true  rule  is,  that,  if  the  wife 
deserts  the  husband  without  any  fault  of  his;  although  a  legal 
separation  has  not  been  had,  that  she  is  not  entitled  to  the 
allowance."^     Whether  or  not  a  non-resident  widow  and  chil- 

22  In  re  Roth,  6  X.  P.  498  -.  9  Dee.  Agreement  of  separation  will  not 

429.  bar  riglit.     Knese  vs.  Hake,  16  Dec 

23Gwinner   vs.    Gwinner,   Dayton,  466:   s"  0.  L.  R.  610. 

155,   156,   157.  -'4  Linton  vs.  Crossbr,  56  Iowa  386. 

The  mere  fact  that  they  live  apart  25  :Matter   of   Shedd,    6   Hun   367 ; 

will  not  bar  right  of  widow  in  hus-  133  N.  Y.  601. 

bend's  estate.     In  re  JNIclMillen,  8  C.  26  Tozer  vs.  Tozer,  2  Am.  L.  Reg. 

C.   (N.S.)   294;   28  0.  C.  C.  645.  510. 


265  PERSONS  ENTITLED  §  326 

dren  are  entitled  to  have  set  apart  to  them  property  as  provided 
in  the  sections  of  the  G.  C.  refen-ed  to  in  this  chapter,  is  a 
question  upon  which  the  courts  of  various  States  are  not  in  ac- 
cord. It  has  never  come  directly  before  our  courts.^''*  In  a 
recent  case  in  Tennessee  in  which  all  of  the  decisions  were  re- 
viewed, it  was  held  that  a  non-resident  widow  was  not  entitled 
to  receive  such  property.^^  It  seems  that  the  decision  of  the 
Tennessee  court  is  followed  by  the  majority  of  cases. ^® 

Likewise  it  has  been  held  that  the  children  of  a  non-resident 
are  not  entitled  to  the  allowance,  where  there  is  no  widow,  al- 
though the  deceased  had  been  living  in  the  State  some  time 
prior  to  his  deatli,  but  had  expressed  the  intention  of  returning 
to  his  home  in  another  State,  as  the  provisions  of  the  statute 
were  intended  for  residents."^  Our  Circuit  Court,  however, 
has  held  in  a  case  where  a  deceased  died  leaving  a  divorced 
wife  and  one  son  in  Germany,  and  a  second  wife  and  children 
in  this  country,  that  the  child  in  Germany  was  entitled  to  have 
an  allowance  made  to  him  out  of  the  estate  of  his  father.^" 
The  widow  must  be  a  resident  at  the  time  of  the  deeedent's 
death.  It  will  not  be  sufficient  if  she  has  changed  her  resi- 
dence to  the  State  of  the  decedent's  death  at  the  time  the 
appraisement  is  made.^^  Some  of  the  courts  make  a  distinc- 
tion where  the  husband  died  a  resident  of  another  State  and 
where  he  died  resident  in  this  State.^"  Generally,  however, 
they  hold  that  regardless  of  the  fact  where  the  husband  died, 

26*  See    recent    case,    McCalla   vs.  App.  26  Pa.  233 ;  Odiornes  App.  80 

McCalla,  46  Bull.  230.  Pa.    504.     Courts   holding   contrary, 

27  Grayham  vs.  Stull,  21  L.  R.  A.  Kapp    vs.    Admin.,    2    Bradf.    258; 
241.     Case  is  fully  annotated  by  giv-  Mitchell  vs.  Word,  64  Ga.  208;  Shaf- 
ing  reference   to   decisions  and   also  fer  vs.  Richardson,  27  Ind.   122 ;  In 
gives  statutory  provisions  of  various  re  Gill's  Estate,  79  Iowa  296. 
States.  29  Veil  vs.  Koch,  27  HI.   129. 

28  The  cases  holding  in  accord  with  3o  Banse  vs.  Muhne,  13  C.  C.  501; 
the  Tennessee  court  are,  Talma.lge  7  C.  D.  224.  The  author  doubts  the 
vs.  Talniadge,  6G  Ala    199 ;  Auerbach  soundness  of  this  decision. 

vs.   Pritcher,   58   Ala.   451.     Person  3i  Medley    vs.    Dunlap,    90    N.    C. 

ex  parte,  76  Ala.  521 ;   Shannon  vs.  527. 

White.    109  Mass.    146;    Richardson  32  Succession   of   Christie,   20   La 

vs.  Lewis,  21  Mo.  App.  531 ;  Medley  Ann.  383. 

vs.   Dunlap,   90   N.    C.   527;    Spiers 


§327 


WIDOW  S   ALLOWANCE 


266 


if  the  widow  is  a  non-resident  she  is  entitled  to  the  allow- 
ance. Especially  would  this  be  true  where  the  making  of 
such  allowance  would  inflict  injury  upon  the  rights  of  residents 
of  our  State.^^  If  the  claimant  was  never  married  to  the 
deceased,  she  is  not  entitled  to  the  allowance,  though  he  treated 
her  as  his  wife  and  they  intended  to  marry."*  A  wife  left  her 
husband  because  her  children  by  a  former  marriage  did  not  get 
along  well  with  him,  and  it  was  agreed  that  in  future  the  hus- 
band and  wife  should  not  "bother"  each  other.  He  subse- 
quently had  a  woman  of  bad  reputation  keep  house  for  him, 
to  which  the  wife  made  no  objection.  It  was  held  that  the 
wife  was  not  entitled  on  his  death  to  the  $300  exemption,^^ 
Her  remarriage  before  claiming  her  allowance  does  not  bar  her 
claim.^*^ 

§  327.    Right  barred  by  will  or  contract. 

A  good  deal  of  controversy  has  arisen  over  the  question 
whether  or  not  a  widow  may  bar  her  right  to  the  statutory 
year's  allowance  by  contract  or  by  election  to  take  under  the 
will  of  her  deceased  husband.  So  far  as  it  concerns  the  right 
to  the  allowance,  if  there  be  children  living,  it  is  settled,  I 
think,  beyond  question.  In  such  cases  no  contract  ante-nuptial 
or  post-nuptial,  or  election  under  the  will,  can  bar  the  right. 
But  it  seems  to  be  the  rule  now  in  Ohio,  that  where  there 
are  no  children,  the  widow  can  by  ante-nuptial  contract  or  post- 
nuptial contract  or  election  under  will  bar  the  right. ^^ 


33  Since  the  text  was  written  the 
Supreme  Court  has  decitled  that  it 
can  not  be  allowed  to  a  widow,  in 
an  ancillary  administration.  Mc- 
Calla  vs.  McCalla,  46  Bull.  280. 

She  may  waive  her  allowance,  as 
where  she  administers  the  estate  and 
does  not  claim  it.  Est.  of  John  Mc- 
Dermott.   13  Dec.   390. 

She  need  not  make  a  demand,  but 
is  probably  barred  if  she  does  not 
do  so  within  six  years  from  the  time 
the  estate  is  administered  Tipon. 
Esther  vs.  Darby,  17  Dec.  780;  5 
O.  L.  R.  102. 

She  may  also  be  estopped  bv  her 
conduct.  40  Bull.  8.5.  Waived,  etc. 
In  re.  Patterson,  58  Bull.  305;  11 
O.  !L.  W.   373. 

The  following  was  held  did  not 
constitute  a  waiver  of  the  widow 
who  was  also  executrix:  "That  no 
claim  is  made  for  expenses  or  com- 
pensation on  account  of  said  trust. 
bv  affiant,  other  than  the  amount 
found  due  her  bv  her  last  account 
and  her  year's  allowance,  which  she 
is  content  to  leave  in  the  farm." 


However,  if  the  widow  makes  dis- 
tribution without  paying  herself,  it 
may  be  held  to  be  a  waiver. 

34  Appeal  of  Grimm.  131  Pa.  St. 
199;  S.  C,  25:  W.  N.  Cas.  180;  18 
Atl.  Rep.  §  1061:  State  vs.  Lichten- 
berg   (Wash.),  29  Pac.  Rep.  999. 

35  In  re  Ross'  Estate  (Pa.  Orph. 
Ct.),  6  Kulp.  521. 

36  jfi.  fp  Diller's  Application,  5  N. 
P.  255:  6  Dec.  182:  Bacon  vs.  Per- 
kins (Mich.1.  58  N.  W.  Rep.  835; 
Jn  re  Ross'  Estate.  6  Kulp.  521.  held 
that  the  widow  was  entitled  to  stat- 
utory allowance  although  her  late 
husband  had  left  her  on  account  of 
her  bad  character,  and  nothing  but 
divorce  would  deprive  her  of  the 
statutorv  vear's  allowance.  The 
Court  decides  this  case  without  ref- 
erence to  anv  authoritv.  See  §  323, 
Riirht  under  S  10624  G.  C. 

37  Perhaps  the  most  recent  case  on 
this  subject  is  that  of  Broadstone 
vs.  Baldwin,  reported  in  the  5th  N". 
P.  39:  8  Dec.  236.  This  was  under 
an  antenuptial  contract  wherein  it 
was  provided  that  the  widow  should 


267  BARKED  BY  WILL  OR  CONTRACT  §  327 

However,  a  widow  will  not  be  barred  even  if  there  be  no 
children,  unless  the  will  or  contract  indicates  beyond  question, 
that  it  was  the  intention  to  bar  such  a  right;  and  if  a  will 
merely  contained  provisions  for  her,  expressed  to  be  in  lieu  of 
dower  and  all  other  claims  on  the  estate  of  the  decedent, 
this  would  not  bar  her  right^^  This  case  (Collier  vs.  Collier) 
might  be  broad  enough  to  hold  that  there  could  be  no  provi- 
sions made  in  the  will  to  bar  her  year's  allowance.  However, 
it  has  been  held,  although  by  an  inferior  court,  that  if  the 
will  fairly  construed  showed  it  to  have  been  the  intention 
of  the  testator  in  making  a  bequest  to  a  wife  that  the  same 
should  be  in  lieu  of  the  statutory  allowance,  that  it  would  be 
a  ban^"* 

No  ante-nuptial  contract  making  provision  for  a  wife  in 
case  of  her  survivorship,  and  expressed  to  be  in  bar  and  full 
satisfaction  of  all  such  part  or  share  of  the  personal  estate  of 
her  husband  which  she  may  claim  or  be  entitled  to  by  law, 
will  operate  as  a  bar  in  equity  to  her  claim  under  the  statute, 
unless  it  appears  that  the  provisions  of  the  contract  in  favor  of 
the  wife  have  been  fairly  performed.*"  Under  cases  where  it  is 
not  shown  that  the  post  or  ante-nuptial  agreement  was  fair, 
reasonable  or  just  under  all  the  circumstances  of  the  case,  but 
merely  that  an  agreed  price  had  been  paid,  it  was  held  that  it 
was  not  a  bar.*^  It  may  be  said  then  that  the  rule  in  Ohio 
is  that  where  a  fair  contract  is  made,  either  post-nuptial  or  ante- 
nuptial, and  which  is  carried  into  execution,  which  if  fairly 
construed  show  an  intention  to  exclude  the  statutory  year's  al- 
lowance, and  there  be  no  children,  it  will  be  held  to  bar  the 
right;  or  if  the  provision  made  in  a  will  for  the  widow  be 
such  that  if  a  fair  construction  be  given  to  the  intention  of 

release  all  her  interest  in  her  hus-  bar  to   her  year's   allowance.     Thia 

band's    property,    and    also    agreed  case   was   affirmed   by   the    Supreme 

never  to  set  up  any  claim  for  dower  Court  without  report. 

for  herself  in  any  real  estate,  or  for,  38  Collier  vs.  Collier,  3  O.  S.  369. 

or  to  any  distributive  share  of  his  39 /n  re  Estate  of  Witner,  7  N.  P. 

personal  property,  or  for  a  year's  al-  143. 

lowance    to    her    support   as    widow.  ^o  Phillips   vs.    Phillips,    14   0.    S. 

In    quite    an    extended    opinion,    in  308. 

which  Judge  Smith  reviews  a  great  ^i  Garetson  vs.  Garetson,  4  C.  C. 

number  of  cases,  he  holds  that  such  336;    Affirmed,    29    Bull.    220;    See 

a  contract  is  not  opposed  to  any  rule  Spanjiler  vs.   Dukes,   39   O.   S.   642; 

of  public  policy;  and  that  it  is  good  Woerner  on  Admin.  174. 


§  328  WIDOW 'S   ALLOWANCE  268 

tlie  testator,  it  is  meant  to  exclude  the  statutory  year's  allow- 
ance, and  if  the  widow  elects  to  take  under  the  will  and  there 
be  no  children,  it  will  bar  her  right.  If  there  be  children,  how- 
ever, as  hereinbefore  stated,  no  act  of  'the  widow  will  bar  the 
right.*- 

§  328.    Nature  of  the  claim. 

After  the  decease  of  the  husband,  the  claim  for  year's  allow- 
ance becomes  a  debt  of  the  estate  ;  such  an  one  as  may  authorize, 
if  there  be  not  sufficient  personal  property  to  meet  the  same, 
the  executor  to  sell  real  estate.*^  But  it  is  not  such  a  debt 
that  will  prevent  the  husband  while  living  from  disposing  of 
his  property.  Therefore  no  right  would  exist  to  set  aside  a 
conveyance  if  fraudulently  made,  even  if  such  conveyance  had 
been  made  to  defeat  such  allowance.**  If,  however,  a  fraudu- 
lent conveyance  of  property  was  made  with  the  intent  to  de- 
fraud creditors  and  it  was  set  aside,  such  property  would  then 
become  assets  of  the  estate,  and  the  widoVs  allowance  would  be 
a  debt  to  be  paid  therefrom.*^ 

When  the  allowance  is  once  made  it  becomes  a  vested  right, 
and  if  tbe  widow  dies  her  executor  may  collect  the  same.*®  In 
some  States  it  ha-s  been  held  that  the  right  vests  at  the  hus- 
band's death.*^  It  is  further  held  by  our  Supreme  Court 
that  tlie  right  vests  whether  the  allowance  has  been  set  off  by 
the  appraisers  or  not;  and  that  if  the  widow  died  before  the 
appraisers  act,  it  will  still  be  their  duty  to  make  the  allowance 
and  that  her  executor  can  collect  the  same.*^  It  has  been  made 
a  query  whether  or  not  the  amount  allowed  could  be  increased 
or  diminished  in  case  the  widow  died  after  its  allowance,  and 

42  See  §  323,  Right  under  §  6038;  ceased,  it  was  superior  to  the  mort- 

§1026,  wills;    also   §947.  gage,    and    therefore    she    did    not 

In  a  recent  case  it  was  held  that  waive  her  right  to  a  year's  allow- 
a  widow  can  not  by  any  act  of  her  ance  by  giving  a  mortgage  on  the 
own  excuse  the  appraisers  from  set-  real  estate.  See  49  Bull.  85. 
ting  off  her  year's  allowance.  Neely  Unless  it  be  fair  and  the  husband 
vs.  Neely,  1  N.  P.  (N.S.)  97;  48  has  revealed  the  extent  of  his  prop- 
Bull.  929.  erty    to    his    wife,    an    ante    nuptial 

It  seems  to  me  this  is  too  broad.  contract  will  not  bar  her  right,  etc. 

The  facts  in  the  case  need  to  be  ex-  Stotler  vs.   Stotler.  27  Dec.  303. 

amined.     It  accords  with  the  text  in  43  Allen  vs.   Allen,   18  O.   S.  235; 

that  there  was  an  unmarried  daugh-  Dorah  vs.  Dorah,  4  O.   S.  293. 

ter,  but  not  a  minor.     But  it  seems  4-*  Lockwood  vs.  Krum,  34  O.  S.  I. 

to  me  the  decision  could  be  justified  45  Allen  vs.   Allen,    18   O.   S.   235, 

on  an  entirely  different  ground.  The  ^6  Dorah   vs.   Dorah,  4  O.   S.  292. 

right  to  have  the  real  estate  of  de-  ■»"  See    Kellog    vs.    Gregg,    5    Ind. 

ceased  sold  to  pay  debts,  was  supe-  509;   And  case  cited  in  Woerner  on 

rior    to    any    mortgage    the    widow  Admin.   177. 

could  place  thereon;   and  her  year's  4 s  Bane   vs.   Wick,    14   0.   S.   514; 

allowance,  being  a   debt  of  the  de-  Dorah   vs.   Dorah,   4   0.   S.   297. 


269  WHEN    APPRAISKES    FAIL,    ETC.  §  329 

before  payment,  or  whether  the  court  would  be  confined  to 
that  allowed  by  appraisers.  Our  courts  would  probably  hold 
that  the  death,  of  the  widow  would  make  no  difference  in  the 
allowance  to  be  made,  and  that  if  she  died  the  Court  would 
have  the  same  right  to  review  the  same  as  if  she  were  living  and 
make  the  same  order,  as  if  she  were  alive,  and  that  her  death 
would  not  alone  be  sufficient  cause  to  increase  or  decrease  the 
amount  allowed  by  the  appraisers.** 

§  329.     When  appraisers  fail  to  make  allowance. 

The  widow  and  minor  children  are  not  required  to  make  a 
demand.  It  is  the  duty  of  the  appraisers  to  make  this  allow- 
ance without  demand.^"  It  may  be  said  that  the  mere  lapse 
of  time  would  not  bar  such  right  and  tliat  the  right  to  have  an 
allowance  made  where  the  same  was  omitted  by  the  appraisers 
exists  as  long  as  there  are  assets  of  the  estate  to  be  administered. 
In  one  case  it  was  held  that  a  delay  of  two  years  would  not 
be  fatal  to  the  right.^^  If  one  set  of  appraisers  do  not  make 
the  allowance,  the  Court  may  appoint  another  set.^^  The 
property  is  to  be  set  off  out  of  the  personal  estate  of  the  deceased, 
but  if  there  is  not  sufficient  personal  property  to  set  it  off  in 
kind,  then  it  is  allowed  in  money ;  and  if  the  assets  in  the  hands 
of  the  administrator  derived  from  the  personal  property  be  not 
sufiicient  to  pay  the  allowance,  real  estate  may  b,e  used  and 
applied  for  that  purpose.^^ 

49  The    year's    support    after    the  53  See  Woerner  on  Admin.  186. 
same  is  allowed  to  a  widow  may  be  The   appraisers   are  not  to  judge 
barred  within  the  two  years  provided  upon  the  fact  whether  the  widow  is 
for  in  §  6113.    In  re  Glenn,  23  C.  C.  entitled  to  an  allowance  or  not;  this 
397.  is  a  matter  for  the  court.     The  Pro- 

50  In  re  Estate  of  Rierdon,  5  N.  P.  bate  Court  might  pass  upon  the 
516;  S.  C.  5  Dec.  606;  Bane  vs.  question  where  appraisers  fail  to 
Wick,  14  0.  S.  514;  Neely  vs.  Neely,  allow  anything.  But  after  an  allow- 
1    X.    P.    (N.S.)    97;    48    Bull.    929.  ance  has  been  made  the  administra- 

The  settlement  of  an  adniinistra-  tor  may  have  the  Common  Pleas  to 

tor  will  not  be  opened  up  after  forty  pass  upon  the  question.     §  34. 
years    in   order   to   let   in  the   claim  If  a  stated  sum  is  set  off  to  the 

of   a   widow   to   her  year's   support,  widow,   and   likewise    a    stated    sum 

where   no   such    claim    was    asserted  to  each  of  the  minor  children  unless 

at   the  time   the  estate   was   closed.  the    widow    supports    tlie    children, 

Evans   vs.   Evans,    13   C.   C.    (N.S.)  and   thev   are    supported    elsewliere, 

62;    31    O.   C.   C,   635;    affirmed   83  she  is  not  entitled  to  receive  it.     It 

0.   R.  — .  must    be    applied    to    the    cliildren's 

51  Lisk  vs.  Lisk,  155  Mass.  153.  support.     In  re  Patterson,  58   Bull. 
S2Heck  vs.  Heck,  34  0.  S.  369.  312;    11   O.  L.   Pv.  373. 


§  330  WIDOW 'S   ALLOWANCE  270 

§330.    Apportionnient  between  widow  and  children."^ 

The  statute  provides  that  the  allowance  shall  be  made  'to 
the  widow  and  children.  It  is  also  held  that  the  widow  is 
entitled  to  receive  the  same  from  the  administrator  or  executor. 
But  this  only  applies  where  the  widow  has  charge  and  provides 
for  the  children.  If  for  any  reason  the  children  and  widow  do 
not  live  together  the  Court  or  the  appraisers  may  apportion 
the  same,  and  if  they  fail  to  do  so,  the  Court  may  make  such 
order  as  is  just  and  proper  in  the  case.  A  need  of  apportion- 
ment may  exist  under  different  circumstances ;  thus  if  the 
wife  and  husband  have  lived  apart  and  the  custody  of  the 
child  was  given  to  the  husband,  or  if  the  child  has  a  guardian, 
or  in  case  where  there  are  two  sets  of  children.  While  not 
specifically  provided  that  either  the  appraisers  or  the  Court 
may  make  such  apportionment  the  right  has  been  upheld.^* 

JSTo  rule  can  be  given  where  an  apportionment  is  to  be  made 
as  to  the  amount  to  be  given  each.  Thus  the  only  case  found 
reported  in  Ohio,  the  Probate  Court  and  the  Common  Pleas 
Court  did  not  agree  in  their  opinion.  Each  case  will  depend 
upon  its  own  individual  circumstances.  Under  the  provisions 
of  §  10655,  G.  C,  in  reference  to  the  property  specifically  set 
apart  under  §  10654,  G.  C,  it  is  specifically  provided  that  if  the 
widow  ceases  to  live  with  the  children  what  property  she  may  re- 
tain as  her  own  and  what  shall  be  delivered  over  to  the  children. 

§  331.     Amount  of,  etc. 

There  is  no  rule  which  can  be  given  to  fix  the  amount  that 
should  be  set  apart  to  the  widow  and  the  children  for  their 
year's  allowance.  Each  case  will  in  some  respects  differ  from 
every  other,  but  in  making  the  provision  it  should  be  remem- 
bered that  it  is  made  for  the  purpose  of  supporting  the  widow 
and  children  for  a  period  of  one  year  after  the  decease  of  the 
husband,  father  or  mother.  The  amount  allowed  should  be  in 
such  sum  as  will  maintain  them  in  the  same  condition  that  they 
enjoyed  during  the  lifetime  of  the  husband.  If  there  are  no 
creditors  whose  rights  will  be  affected,  it  should  be  liberal 
in  amount.     But  if  the  estate  is  insolvent,  then  the  amount  al- 

53a  Cited /n  re  Patterson,  58  Bull.  ^i  In    re    Pollard    Estate,    Goebel 

312;    11  0.  L.  E.  373.  214;    Womaek   vs.    Boyde,    31    Miss. 

443 ;  Davis  vs.  Ganse,  85  Me.  167. 


271 


AMOUNT   OF 


§331 


lowed  should  only  be  such  as  will  give  to  the  wife  and  children 
a  year's  maintainance,  taking  in  consideration  the  manner  in 
which  they  had  heretofore  lived.^^  In  some  States  the  fact 
that  the  wife  had  separate  property  has  been  taken  into  consid- 
eration. I  am  not  aware  of  any  adjudication  upon  this  ques- 
tion in  Ohio;  the  general  practice  is  to  make  the  allowance  re- 
gardless of  the  wife's  separate  estate.^*'  This  allowance  is  made 
for  temporary  support  and  not  to  furnish  the  wife  with  capital 
for  business  purposes,  or  establish  a  fund  from  which  a  perma- 
nent income  may  be  derived.^'^  Whether  or  not  the  amount 
should  draw  interest  depends  upon  additional  facts.^^^ 


55  In  re  Estate  of  Mullen,  5  N.  P. 
392;  6  Dec.  134. 

An  allowance  is  excessive  when  it 
is  more  tlian  twice  as  much  as  the 
family  have  lived  on  previously,  par- 
ticularly when  so  large  an  allowance 
will  prevent  a  payment  of  debts,  etc. 
$2,200  cut  down  to  $1,200.  In  re 
Eahe,  12  Dec.  590. 

56  See  Woerner  on  Admin.  180. 
If  the  wife's  means   enabled  the 

husband  to  live  in  a  style  beyond 
that  which  he  could  have  given  his 
family  Avithout  such  aid  such  fact 
might  be  considered. 

57  3  Hollenbeck  vs.  Pixley,  3  Gray 
521. 

In  this  case  Chief  Justice  Shaw 
speaks  as  follows,  as  to  the  right 
and  object  of  the  year's  allowance. 
"Though  no  general  rules  have  or 
can  be  established  regulating  this 
judicial  discretion,  yet,  to  some  ex- 
tent, the  consideration  of  justice  and 
expediency  on  which  the  law  is 
founded  are  plain  and  obvious,  and 
from  them  we  may  infer  the  inten- 
tion of  the  legislature.  The  case 
supposes  the  death  of  a  husband 
leaving  a  widow.  In  the  great  ma- 
jority of  cases  he  will  have  had  a 
housekeeper;  in  many,  a  parent;  in 
many,  leaving  children  helpless  and 
dependent.  In  many  cases  the  wid- 
ow, by  the  decease  of  her  husband, 
may  become  the  head  of  the  house- 
hold and  family;  new  duties  and  ob- 


ligations may  rest  upon  her,  causing 
an  immediate  demand  for  neces- 
saries, sometimes  even  before  letters 
of  administration  can  be  granted. 
The  purpose  of  the  statute,  we 
think,  is  to  make  a  personal  allow- 
ance  to  her  to  meet  these  necessi- 
ties. But  no  one  of  these  circum- 
stances constitutes  a  condition  to 
this  allowance,  or  a  decisive  test  of 
its  fitness.  The  parties  may  not 
have  been  housekeepers,  or  even  liv- 
ing together  at  the  time  of  the  hus- 
band's decease.  She  may  have  been 
absent  at  a  hospital  or  infirmary, 
for  the  recovery  of  her  health,  bodily 
or  mentally,  and  stand  in  immediate 
need;  or  she  may  be  on  a  visit  to  her 
friends;  or  by  mutual  consent  and 
for  their  common  benefit  they  may 
seek  employment  in  different  places 
— as,  for  instance,  the  husband  at 
sea,  the  wife  in  a  school  or  factory. 
But  these  are  all  'circumstances' 
— and  they  are  often  numerous  and 
various — to  be  taken  into  considera- 
tion by  the  judge  to  determine 
whether  any  allowance  shall  be  made 
and,  if  any,  what.  The  amount  of 
money  left  by  the  husband,  and  the 
amount  of  the  separate  estate  and 
means  of  the  wife  are  also  important 
circumstances  bearing  upon  the 
question  of  her  necessities." 

57a  See  Palmer  vs.  Robinson,  24  0. 
C.  C.  125. 


§  331  widow's  allowance  272 

The  allowance  must  be  made  with  reference  to  the  state 
of  the  family  at  the  time  of  the  decedent's  death  and  not  at  the 
time  that  the  appraisement  is  made.^^  Of  course  if  some  mem- 
ber of  the  family  has  died  or  if  there  was  a  child  born  after 
the  decease  of  the  father,  this  might  make  a  difference  in  the 
amount  to  be  allowed.  While  if  the  estate  be  insolvent,  the 
amount  should  not  proceed  on  a  liberal  basis ;  yet  the  fact  that 
there  is  an  insolvent  estate,  will  in  no  measure  deprive  the 
widow  and  children  of  their  right  to  have  such  an  amount  as 
will  properly  sustain  them.  Of  course  Avhere  there  are  valid 
liens  on  the  real  or  personal  property  an  allowance  will  not 
affect  them.^^ 

Experience  demonstrates  that  the  amount  is  variable ;  de- 
pending often  on  the  different  ideas  of  the  appraisers  as  well 
as  the  varied  conditions  of  different  families  and  their  mode 
of  living.  Likewise  there  is  a  difference  between  city  and 
country,  and  between  large  cities  and  small  cities.  Where  the 
estate  is  small  and  there  are  no  children,  the  allowance  is  some- 
times as  low  as  two  hundred  dollars.  Generally,  I  think,  in 
small  estates  it  is  somewhere  around  four  or  five  hundred  dol- 
lars, in  larger  estates  it  is  more.  It  is  obvious  that,  while 
statutes  with  respect  to  the  widov/  award  should  be  liberally 
construed,  yet  the  allowance  should  be  within  the  bounds  of  rea- 
son, and  the  construction  given  them  should  be  reasonable.^" 
In  a  note  will  be  appended  a  number  of  selections  made  by  J. 
Woerner  of  the  amounts  allowed.''^ 

58 /m  re  Hayes,  112  X.  C.  76;  Por-  Thompson,  in  his  valuable  Treatise 

ter  vs.  Porter,  165  Mass.  157.  on     Plomesteads     and     Exemptions. 

59  Jones  vs.  Allen,  G  X.  P.  518.  Thus   it  was  held  in  a  late  Illinois 

60  Boyer  vs.  Boyer,  21  111.  App.  case,  Boyer  vs.  Boyer,  21  III.  App. 
5.34,  537.                   '  534,  537. 

61  Woerner  Admin.   167-169.  That  the  Court  would  not  be  jus- 
It  may  be  of  assistance  to  widows,       tified    in    approving    the    report    of 

executors  and  administrators,  and  to  commissioners   sho^ving  on   its   face 

attorneys     and     Courts,    to    collate  the  attempt  to  force  results  and  to 

some    of    the    cases    illustrative    of  make  up  to  the  widow  an  amount 

what  Appellate  Courts  deem  reason-  not  warranted  by  a  proper  valuation 

able,  and  what  unreasonable  allow-  of  the  property  allowed  her  by  the 
ance,  in  the  method  observed  by  Mr. 


273 


WHEN    AND    TO    WHOM    PAYABLE 


832 


§  332.     When  and  to  whom  payable. 

The  statute  is  silent  as  to  when  the  amount  set  apart  to  the 
widow  in  money  is  payable.      She  is  entitled  to  have  possession 


statute.  In  this  case  the  deceased 
left  an  estate  in  personalty  of  over 
$135,000  in  value;  the  commission- 
ers appraised  the  personalty  secured 
by  state  to  the  widow  at  $806.50  and 
estimated  the  amount  to  be  allowed 
her  at  $7,075,  which  award  was  re- 
jected by  the  County  Court  to  whom 
the  report  was  made ;  whereupon  the 
widow,  administratrix,  appealed  to 
the  Circuit  Court,  and  asked  leave 
to  substitute  a  new  estimate  of  the 
commissioners,  awarding  her  $6,629, 
which  the  Circuit  Court  refused,  and 
affirmed  the  action  of  the  County 
Court  in  rejecting  the  original  re- 
port. On  appeal  to  the  Appellate 
Court,  the  action  of  the  Circuit  was 
confirmed  in  both  respects,  on  the 
ground  that,  whether  the  Circuit 
had  power  to  act  upon  a  new  report 
from  the  commissioners  or  not,  the 
new  report  must  be  rejected  as  well 
as  the  original  one,  as  being  unrea- 
sonable and  excessive. 

Several  cases  from  New  Hamp- 
shire indicate  the  unwillingness  of 
its  court  of  last  resort  to  allow  un- 
due partiality  to  be  shown  to  the 
widow  at  the  cost  of  either  creditors, 
children  or  collateral  distributees. 
Thus,  where  an  estate  amounted  to 
$2,250,  the  debts  to  $575,  and  there 
were  no  lineal  descendants,  an  allow- 
ance of  $600  to  the  widow  was  on 
appeal  cut  down  to  $200.  Foster  vs. 
Foster,  36  N.  H.  437. 

WHiere  the  whole  estate  was  worth 
$11,000  and  that  out  of  which  the 
widow  was  entitled  to  dower  .$2,000, 
an  allowance  of  $2,000  was  on  ap- 
peal reduced  to  $300.  Duncan  vs. 
Eaton,  17  N.  H.  441. 


Out  of  an  estate  worth  $25,000 
there  being  no  debts  except  volun- 
tary bonds  to  two  sons,  disputed, 
and  without  valuable  consideration, 
the  land  assigned  as  dower  yielding 
a  net  income  of  $200  per  year,  $1,250 
allowed  by  the  Probate  Court  was 
reduced  to  $750.  Kingman  vs. 
Kingman,  31  N.  H.  182. 

So  in  an  insolvent  estate,  amount- 
ing to  $6,400,  in  which  the  widow 
had  been  allowed  $600,  and  her 
dower  was  worth  $643,  besides  own- 
ing a  house  in  her  own  right  worth 
$566,  a  further  allowance  was  held 
unreasonable,  and  set  aside.  Cum- 
mings  vs.  Allen,  34  N.  H.  194,  197. 

In  Massachusetts  an  allowance  of 
$895,  beside  her  wearing  apparel, 
was  deemed  reasonable  for  a  widow 
of  "  elevated  quality  and  degree." 
(Her  husband  had  been  sheriff  of  the 
county  at  the  time  of  his  death,  and 
for  many  years  a  major-general  of 
militia,  "  an  office  of  much  distinc- 
tion and  trust.")  Crane  vs.  Crane, 
17  Pick.  422,  428. 

In  another  case,  where  the  real  es- 
tate amounted  to  $4,000,  the  per- 
sonal estate  to  $6,000,  and  the  only 
heir  was  the  intestate's  father,  an 
allowance  of  $3,000  was  cut  down  to 
.$1,000,  considering  that  the  widow 
would  get  $500  on  distribution,  as 
the  one-fourth  of  the  residue  after 
paying  debts.  Washburn  vs.  Wash- 
burn, 10  Pick.  374. 

And  in  a  later  case,  where  it  ap- 
peared that  an  intestate's  estate, 
wholly  personalty,  amounted  to  over 
$163,000,  but  was  insolvent;  that 
the  widow  had  a  private  income  of 
$1,200  a  year;   that  there  were  no 


§332 


widow's  allowance 


274 


at  once  of  the  specific  articles  set  aside  to  her  and  her  children. 
Taking  the  object  and  the  purpose  of  this  year's  allowance  it 
should  be  given  to  her  just  as  soon  as  the  administrator  or  exec- 
utor can  do  so.*'^^    Therefore  it  may  be  said  'that  it  is  payable  at 


children,  and  that  she  and  her  hus- 
band had  been  living  without  charge 
with  her  father;  and  that  they  were 
persons  of  high  social  standing,  ac- 
customed to  a  costly  mode  of  living 
— an  allowance  of  $5,000  by  the  Pro- 
bate Judge  was  reduced  on  appeal 
to  $500.  Dale  vs.  Bank,  155  Mass. 
141. 

In  Maine  the  widows  seem  to  fare 
better.  Out  of  an  estate  in  which 
the  personalty  was  insufficient  to 
pay  the  debts,  leaving  $700  to  be 
paid  out  of  the  proceeds  of  real  es- 
tate valued  at  $2,000.  the  widow  (of 
a  packet  master  sailing  between 
Eastport  and  Belfast)  was  allowed 
$500.  Brown  vs.  Hodgdon,  31  Me. 
G5,  70. 

In  another  instance  the  widow  of 
one  whose  estate  amounted  to  be- 
tween $500,000  and  $600,000  was  al- 
lowed by  the  Probate  Judge  $75,000, 
which  sum,  on  appeal  by  one  of  the 
executors,  was  by  the  Appellate 
Court  increased  to  $85,000.  Gil- 
man  vs.  Gilman,  53  Me.  184,  191. 

More  liberal  views  are  entertained 
in  some  other  States.  Tlius  it  is 
held  in  Georgia  that  "  the  wise  and 
liberal  policy  of  our  legislation  cer- 
tainly designed  to  include  in  the 
years'  support  something  more  than 
a  bare  subsistence,  with  clothes  and 
shelter,  and  perhaps  the  means  of  lo- 
comotion for  the  family."  Hence  it 
is  error,  in  passing  upon  the  report 
of  the  commissioners  setting  aside 
the  year's  support  to  reject  evidence 
to  show  the  amount  of  outlay  made 
by  the  decedent  in  the  maintenance 
and  education  of  his  adult  children, 


the  gifts  made  to  them  upon  attain- 
ing their  majority  and  the  advances 
made  to  some  of  them  for  which 
they  were  not  required  to  account. 
Cheney  vs.  Cheney,  73  Ga.  66,  70. 

An  allowance  of  $5,000  made  by 
the  Ordinaiy  in  addition  to  certain 
household  and  kitchen  furniture  and 
other  personal  property  was  on  ap- 
peal to  the  Superior  Court  reduced 
by  the  verdict  of  a  jury  to  $2,500; 
and  it  was  held  by  the  Supreme 
Court  that  the  rejection  of  the  evi- 
dence above  alluded  to  and  of  the  ex- 
pense of  keeping  minors  at  school 
and  college,  unduly  restricted  the 
jury  and  a  new  trial  was  ordered. 
Cheney  vs.  Cheney,  supra. 

In  California  the  widow  of  a  de- 
cedent whose  estate  was  valued  at 
$10,000,000,  mainly  community  prop- 
erty and  free  of  debt,  Avas  allowed 
$2,500  per  month  out  of  the  estate 
and  the  Supreme  Court  refused  to 
disturb  the  allowance. 

In  Illinois  the  "family"  for  which 
provisions  is  to  be  made  by  the  al- 
lowance is  held  to  include  not  only 
the  widow  and  minor  children  but 
also  adult  children  living  with  her, 
a  woman  who  had  been  raised  in  the 
family,  the  superintendent  of  the 
farm  under  the  widow's  control,  the 
housekeeper,   cook   and   other   house 

servants.  An  allowance  of  $400  for 
beds  and  bedding,  of  $1,600  for  fur- 
niture, and  of  $1,642  for  a  year's 
provisions,  was  held  reasonable  out 
of  an  estate  valued  at  $500,000. 
Strawn  vs.  Strawn,  53  111.  263,  272; 
Bover  vs.  Boyer,  21  111.  App.  534. 

6ia  See  Steward  vs.  Barry,  102  0. 
S.  —  (1921),  where  this  doctrine 
is  followed. 


275  INCREASED    OR    DIMINISHED  §  333 

once  upon  its  allowance,  unless  the  matter  be  brought  to  the 
Probate  Court,  increased  or  decreased,  and  there  be^  appealed. 
I  have  ho  doubt  where  the  administrator  has  funds  in  his 
hands  applicable  to  the  payment  of  such  allowance,  and  refuses 
or  neglects  to  do  so.  that  an  order  of  the  Probate  Court  might 
be  had,  compelling  him  to  make  such  application ;  whether  a 
suit  might  be  had  on  the  bond  before  an  order  of  the  Probate 
Court  is  made  (§  266)  is  not  clear,  but  it  is  a  liquidated  de- 
mand and  the  action  might  lie.  The  better  course  to  proceed, 
however,  would  be  to  file  an  application  in  the  Probate  Court  to 
compel  the  administrator  to  pay  the  amount.  Our  statute  does 
not  say  to  whom  it  is  payable,  whether  it  is  payable  to  the 
widow  alone  or  to  the  children,  or  to  both  of  them.  Undoubted- 
ly unless  the  Court  sees  fit  to  make  an  apportionment  of  the 
allowance,  it  should  be  paid  to  the  widow  for  the  heirs  are 
minors  and  unable  to  receipt  or  account  for  any  part  thereof, 
without  the  appointment  of  a  guardian,  which  tlie  law  does  not 
contemplate.^^ 

§  333.  Allowance  may  be  increased  or  diminished  by  the 
Court.  "On  petition  of  the  widow,  or  other  person  interested, 
the  probate  court  may  review  the  allowance  made  to  the  widow 
or  children,  and  increase  or  diminish  it,  and  make  such  order 
in  the  premises  as  it  deems  right."      [R.  S.  §  6043.]''^ 

62  Says   Strong,  J.:      "It  was   as-  curse."     (p.  232.)     To  the  same  ef- 

sumed  her  affection  for  the  children  feet  Johnson  vs.  Corbett,  11  Paige, 

would  be  a  sufficient  safeguard  for  265. 

their    interests.      In   most   cases   the  See   §  661,  payment  of  debts,  etc. 
widow  is  the  motiier  of  the  children.  If  the  administrator  has  doubts  he 
If  she  be  but  a  stepmother,  they  are  may  file  a  petition  in  the  Court  of 
generally    safe    in    her    regard,    not  Common    Pleas.      Under    §§  10857-8 
only  for  them,  but  for  the  deceased.  G.  C,   S  34. 
Certainly  it  would  not  tend  to  the  63  §  10659  G.  C. 
promotion   of   domestic   harmony   to  Our  Supreme  Court  recognizes  the 
invite  the  children    (or  relatives  of  fact  that  the   administrator   sliould 
the  first  wife  using  the  names  of  the  have  one  year  to  ascertain  condition 
children)    to  assail  the  cliaracter  of  of   estate   and   collect  assets.     Gray 
their  father's   widow,  though   but  a  vs.  Case  School,  62  O.  S.  1. 
stepmother,  and  contest  her  right  to  Allowance   made   in   a   proceeding 
administer    a    bounty   given    by    the  to  sell  i-eal  estate,  lx;longing  to  her 
law  for  herself  and  her  deceased  hus-  deceased   husband,  to   pay   debts,  to 
band's    family.      Were   such    a   door  which  no  error  was  prosecuted,  can 
open    tliere    is    reason    to    believe    it  not  be  collaterally   attacked   by  ex- 
would    not    unfrequently    call    forth  ceptions     to     her     account     as     ad- 
some  of  the  worst  passions,  and  the  ministratrix.     In  re  Hess,  14  0.  C. 
bounty  of  the  legislature,  instead  of  C.   (N.S.)   463;  23  0.  C.  C.  449. 
being    a    blessing,    would    prove    a 


§  334  WIDOW'S    ALLOWANCE  276 

§  334.     Petition  for,  etc. 

This  section  contemplates  that  the  appraisers  have  acted 
and  set  aside  some  portion  of  the  husband's  estate  to  the  sup- 
port of  the  mdow  or  children.  If  the  i.ppraisers  have  failed  to 
malve  any  allowance,  the  application  should  not  be  made  under 
this  section.  The  Court  should  call,  back  and  instruct  the 
original  appraisers  to  attend  to  their  duties.  If  that  were 
unable  to  be  done,  the  Court  might  order  a  new  appraisement,^* 
The  allowance  is  to  be  increased  or  decreased  on  the  petition  of 
the  widow  or  other-  interested  person.  This  petition  should  set 
out  sufficient  facts  to  make  out  a  prima  facie  case,  and  it  should 
be  sworn  to.^^  It  should  be  made  at  as  early  a  date  as  the 
same  can  be  done.  Whether  or  not  the  provisions  of  §  10639 
(§  312),  G.  C,  which  provide  that  exceptions  may  be  filed  any 
time  within  six  months,  applies  to  this  application  for  review,  is 
very  questionable.  If  the  allowance  made  to  the  widow  and  chil 
dren  is  to  be  made  on  a  separate  schedule  and  merely  returned 
with  the  inventory  it  would  rather  seem  that  this  for  the  purpose 
of  review,  etc.,  is  to  be  considered  separate  and  apart  from 
the  inventory.  A  reasonable  time  should  be  allowed  in  which 
to  file  this  petition  for  review,  as  to  the  time  within  which  the 
petition  should  be  filed,  the  statute  does  not  expressly  provide, 
and  there  is  none  implied.'"'  It  is  said  that  it  is  the  duty  of 
the  Appellate  Court  to  hear  and  determine  the  question  anew, 
and  make  such  allowance  in  lieu  of  the  allowance  made  by  the 
appraisers  as  may  appear  reasonable  and  proper.^"    In  one  case 

A  paper  styled  a  motion  that  sets  "In  exercising  the  discretion  vest- 
forth  sufiicient  facts  is  sufficient.  ed  in  Probate  Courts,  and  coinmis- 
In  re  Ralie,  12  Dec.  590.  sioners  appointed  by  them  to  desig- 

64  Heck  vs.  Heck,  34  O.  S.  369.  nate  and  set  apart  the  property  and 

65  In  re  Rahc,  12  Dec.  590.  money    allowed   for    the    provisional 

66  Sherman  vs.  Sherman,  21  0.  S.  support  of  the  family,  they  are  not 
631.  to  proceed  in  an  arbitrary  or  capri- 

If  the  administrator  should  pay  cious  manner,  setting  up  their  own 
over  the  money  to  the  widow  in  fanciful  views  or  unsupported  indi- 
good  faith,  it  would,  in  the  opinion  vidual  opinions  as  the  criterion  by 
of  tlie  author,  be  too  late  for  any  which  to  measure  the  rights  of  the 
person  to  file  an  application  to  re-  family  on  the  one  hand;  and  of  the 
view  thereafter,  at  least  so  far  as  creditors,  heirs  or  legatees,  on  the 
to  hold  the  administrator  respon-  otlier;  but  tliey  exercise  a  sound  ju- 
sible.  This  is  approved  in  Steward  dicial  discretion  subject  to  be  re- 
vs. Barry,  102  O.  S.  —   (1021).  viewed     and     corrected     on     appeal. 

67  Cnmmings  vs.  Allen,  34  X.  H,  Piper  vs.  Piper,  34  N.  H.  563,  566; 
194;  Oilman  vs.  Oilman,  53  Me.  191. 


277  WHO   MAY   FILE   PETITION  '  §  335 

it  was  held  proper  to  entertain  a  petition  for  review  although, 
it  was  not  filed  until  after  the  expiration  of  twelve  months 
from  the  death  of  the  widow.^^  If  filed  after  payment  how 
should  alfect  administrator,  etc.*'*^ 

§  335.     Who  may  file  petition. 

The  widow  or  other  interested  person  may  bring  the  action 
to  review  tlie  allowance  made  by  the  appraisers.  A  person 
with  whom  the  widow  lived  during  the  twelve  months  and  until 
her  death  and  who  supported  and  took  care  of  her  and  incurred 
expenses  for  her  in  sickness,  and  who  has  a  valid  claim  against 
her  estate,  "  is  a  person  interested,"  and  within  the  meaning 
if  this  section  may  file  a  petition  for  review.^''  Of  course  an 
executor  or  administrator  of  a  deceased,  widow,  or  a  guardian 
of  a  minor  child  or  possibly  a  person  acting  as  next  friend  of  the 
minor  child  might  file  a  petition  to  have  the  allowance  reviewed. 

§  336.     Form  of  petition  to  increase  or  decrease  allowance. 

A  form  of  petition  herein  given  is  by  a  widow  in  behalf  of 
herself  and  her  children  for  increase. 

{Title.) 

Now  comes  A.  B.,  widow  of  C.  D.,  and  respectfully  represents  that  the 
appraisers  of  the  personal  estate  of  the  said  decedent  allowed  the  sum  of 

dollars    in    money    in    addition   to    the    articles    specifically    set 

apart  for  the  support  of  herself  and  E.  F.  and  G.  H.,  minor  children, 
under  fifteen  years  of  age,  of  said  decedent,  for  one  year  from  the  time  of 
his   death.     That  said   sum  is   wholly  insufficient   to  support  herself   and 

her  said  children  and  that  she  will  require  an  additional  sum  of 

dollars. 

Wherefore  she  prays  that  said  allowance  may  be  increased  by  the  said 

sum  of dollars  and  that  the  executors  or  administrators  of  said 

estate  be  directed  to  pay  said  additional  sum  to  her  as  provided  by  statute. 


Applegate  vs.  Cameron,  2  Bradf.  119.  §§10857-8    G.    C,    pass    upon    the 

Cited,   VV  oern.  Admin.  §  7U.  question  whether  the  widow  is  enti- 

«»  Sherman  vs.  Sherman,  21  O.  S.  tied  to  any  allowance.     iUcCalla  vs. 

634.  AicCalla,  40   Bull.  280.     As   to  evi- 

An  application  to  review  must  be  dence,  etc.,  see  In  re  Bahe,  12  Dec. 

filed  in  tlie  I'robate  Court  that  made  5'JU. 

tlie  appointment,  it  having  original  ''^^  Steward   vs.  Barry,    102  0.   S. 

and    exclusive    jurisdiction.      Moore  —   (1!J21). 

vs.  Idler,  6  C.  C.    (N.S.)    19;   2U  O.  e 9  Sherman  vs.  Sherman,  21  0.  S. 

C.  C.  502.  631. 

The  administrator  may   have  the  The     administrator     should     have 

Court     of     Common     Pleas,     under  notice.    Heck  vs.  lleck,  34  O.  S.  369. 


§  337  widow's  allowance  278 

State  of  Ohio, 
Clark  County,  ss. 

A.  B.,  being  first  duly  sworn,  says  that  the  allegations  of  the  above 
petition  are  true,  as  she  verily  believes. 

Sign. 

Sworn  to   before  me  and   subscribed   in  my   presence   this day   of 

,    190... 

FORM  FOR  DECREASE  OF  ALLOWANCE. 
(Title.) 

Now  comes  A.  B.,  a  creditor  of  the  estate  of  C.  D.,  and  respectfully  repre- 
sents that  the  appraisers  of  the  personal  estate  of  said  decedent  allowed 
to  the  said  E.  F.  for  the  support  of  herself  and  the  minor  children  of  the 

said   C.    D.,    under   fifteen  years   of   age,   the   sum   of dollars. 

He  further  alleges  that  the  said  sum  is  in  excess  of  the  amount  required 
to  support  said  widow  and  children  for  one  year  in  the  manner  and  condi- 
tion that  the  deceased  was  accustomed  to  support  them  during  his  life,  and 
further  alleges  that  the  said  estate  is  insolvent  and  that  under  the  cir- 
cumstances the  allowance  made  by  the  appraisers  is  unjust  and  not  such 
as  the  law  contemplates.  (He  further  alleges  that  the  said  widow  has  had, 
during  the  lifetime  of  her  husband  a  very  large  estate  of  her  own  and 
that  she  contributed  during  the  lifetime  of  her  husband  from  her  own 
separate  estate  the  sum  of dollars  annually  in  support  of  her- 
self and  the  family  of  her  husband.  )'70 

Wherefore  the  said  A.  B.  prays  that  the  said  allowance  be  reduced  to  the 

sum  of dollars  and  that  the  administrator    (or  executor)    of  the 

estate  of  said  C.  D.  may  be  directed  to  pay  said  widow  as  an  allowance 

made    for    her    year's    support,    the    sum    of dollars,    instead    of 

dollars  allowed  by  the  appraisers.'^fi 

§  337.     Form  of  entry,  etc. 

(Title.) 

This   day    came and   filed   herein   her   application    fo.* 

increase  (or  decrease)  of  the  allowance  made  to  the  widow  and  children  of 
said  C.  D.  by  the  appraisers  of  the  personal  property,  and  the  said  cause 

is  set  for  hearing  on  the day  of  ,  at o'clock 

and  it  is  ordered  that  notice  of  the  filing  of  said  petition  and  the  time  of 
hearing  thereon  be  given  to  the  (here  insert,  if  the  application  is  filed  by 
the  widow,  the  name  of  the  administrator;  and  if  filed  by  a  creditor  insert 

70  It  has  been  heretofore  said  that  far  beyond  that  which  the  husband 

the  widow  is  entitled  to  the  allow-  would  have  been  enabled  to  furnish 

ance  made  to  her  regardless  of  her  them  from  his  own  efforts  or  estate, 

separate  estate,  yet  if  her  separate  it    seems   that   this    fact   should    be 

estate  was  used  to  maintain  herself  taken  in  consideration, 
and  her  children  during  the  life  time  '^i  Verified  as  the  preceding  form, 

of  her  husband  and  probably  enabled  etc. 
them  to  live  in  a  style  and  condition 


279  NOTICE  OF  HEARING  §  388 

the  name  of  the  administrator  and  the  widow),  at  least days  before 

said  hearing. 

§  338.     Notice,  etc. 

The  statute  does  not  provide  tliat  notice  should  be  given  of 
this  kind  of  a  proceeding,  but  the  executor  or  administrator 
represents  the  estate  and,  in  a  sense,  the  creditors ;  upon  the 
plainest  principles  of  justice  he  is  entitled  to  notice  of  these  pro- 
ceedings.^^ Likewise  it  may  be  said  that  for  the  same  reason 
the  widow  ought  to  be  notified;  and  the  proceeding  without 
such  notice  would  be  very  justly  set  aside  in  a  higher  court. 
Form  of  notice  may  be  in  the  follovdng: 

To    (here  insert  the  name  of  the  person  who  is  to  make  the  service)  : 

You  are  hereby  commanded   to   notify that  on   the 

day  of one  A.  B.   (here  state  whether  a  creditor  or  widow, 

etc.,)  filed  in  the  Probate  Court  of County,  Ohio,  an  applica- 
tion to  increase  (or  diminish)  the  allowance  made  to  the  widow  and 
children  of  said  C.  D.   deceased,  and  said  application   is   set  for  hearing 

on   the day  of ,   at o'clock,   and   that 

the  said (here  insert  the  name  of  the  person  to  be 

notified)   will  take  notice  of  said  hearing. 

§  339.     Entry  on  hearing  to  increase  or  decrease. 

(Title.) 

This  day  this  cause  came  on  to  be  heard  on  the  petition  of  A.  B.  to  review 
the  allowance  made  to  the  widow  and  children  of  C.  D.,  deceased,  for  an 
increase  (or  decrease)  of  the  amount  allowed  to  them  by  the  appraisers 
of  the  personal  property;  and  the  same  was  heard  upon  the  testimony 
of  witnesses  and  was  submitted  to  the  court.  Whereupon  the  court  finds 
that  all  the  parties  interested  therein  had  due  and  legal  notice  of  said 
proceeding  in  conformity  to  law  and  the  form  or  orders  of  the  court.  The 
court  further  finds  that  the  allowance  made  to  the  said  widow  and  children 
of  C.  D.,  deceased,  ought  to  be  increased  (or  decreased),  wherefore  it  is 
ordered  and  adjudged  that  said  allowance  as  fixed  by  the  appraisers  be, 

and  it  is  hereby  set  aside.     And  the  court  finds  that  the  sum  of 

dollars  is  necessary  for  the  support  of  said  widow  and  children,  and  fixes 
her  said  allowance  at  said  sum ;  and  orders  that  the  sum  be  paid  to  her  by 
the  administrator  from  and  out  of  the  first  money  of  the  estate  coming 
into  his  hands,  applicable  to  that  purpose.     The  court  further  orders  that 

the  costs  of  this  action,  amounting  to dollars,  be  paid  by 

,   and   a   judgment  is  hereby   rendered   for   the   same.     To   all  of 

which  orders  and  decisions  of  the  court  the  said excepts 

and  hereby  gives  notice  to  appeal  the  same  and  asks  the  court  to  fix  the 
amount  of  the  appeal  bond. 

72  Heck  vs.  Heck,  34  0.  S.  370. 


§  340  widow's  allowance  280 

As  a  general  rule  it  may  be  said  that  the  costs  of  such  actions 
are  taxed  against  the  estate.  But  if  it  appears  to  the  Court 
that  justice  demands  otherwise,  the  order  should  be  made  ac- 
cordingly. 

§  340.     Error  and  appeal,  etc. 

Section  11206  (§  39),  G.  C,  specifically  provides  for  appeal  in 
such  cases ;  and  no  doubt  the  same  can  be  reviewed  on  proceed- 
ings in  error.  But  the  order  of  the  Probate  Court  in  overruling 
an  application  of  the  widow  for  a  review  of  the  allowance  made 
her  by  the  appraisers  for  a  year's  support  from  the  estate  of  her 
deceased  husband,  is  an  adjudi-cation  of  the  rights  of  the  widow 
and  other  persons  interested  as  to  the  question  of  allowance, 
and  unless  such  order  is  vacated  by  appeal  or  other  proceeding, 
is  a  final  determination  between  them ;  and  a  second  application 
for  review  cannot  be  entertained  by  the  Court.''^  Like  other 
orders  made  by  the  Probate  Court,  such  order  cannot  be  ques- 
tioned collaterally,  however  unjust  and  disproportionate  it  may 
seem  to  be.^* 

§341.    Widow's  and  widower's  quarantine. 

"  The  widow  or  widower  may  remain  in  the  mansion  house 
of  the  deceased  consort  free  of  charge  for  one  year,  if  dower  is 

Ts  Moore  vs.  Moore,  46  0.  S.  89.  expected   to   take   into   account   the 

The  question  as  to  whether  she  is  age  of  the  widow,  her  condition  and 

the    widow    may    be    reviewed    on  prospect  as  to  health,  and  all  sur- 

,  •         J.     Ji  "   •          i.                1  ti,  roundinff     circumstances.        It      the 

exceptions  to  the  inventory,  and  the  .  ,         *'                  ■i.j.  j   ^.           •    ,.  „„ 

.  ^                ,                 ,       'l               r  widow  was   permitted   to   review  as 

action   may   he   appealed   from,      hi  ^^^^^  ^^  ^^^^  ^-^^^^^  ^^g-j.^^  ^1^^  q^e^. 

re  Scott  Est.,  19  Dec.  577.  tion  involved,  because  of  a  changed 

The  duty  of  the  Court  was  to  re-  condition  of  health,  it  would  follow 

view  the  proceedings  of  the  apprais-  that,  in  a  case  where  the  widow  was 

ers.     That  duty  it  performed  in  the  ill  at  the  time  tlie  appraisers  acted, 

case  first  brought,  and  made  a  final  and  recovered  later,  the  administra- 

order    and  its  power  over  the  ques-  ^'or-  or  any  interested  person,  might 

,.        '         J.1       u  ,       1 „i„j       Ti  •„  seek  such  continued  reviews  bv  the 

tion   was   thereby   exhausted,      ihis  j.   r       j.i  Xt 

•'  i       •        1  same   court   for   the   purpose   oi    re- 

conclusion     may     seem     to     involve  ^^^^.^^^  ^^^^  allowance,  and  thus  the 

hardship,  but  a  contrary  one  would  question  of  allowance  be  kept  open, 

involve    the  most    perplexing  uncer-  to  the  unreasonable  embarrassment 

tainties  as  to  the  rights  of  widows  and  injury  of  those  interested  in  the 

and    the    duties    of    administrators.  settlement  of  the  estate. 
If  a  widow  may  have  such  a  ques-  See  In  re  Hess,  14  O.  C.  C.  (N.S.) 

tion    again    reviewed    by    the    same  463 ;  23  O.  C.  C.  449. 

Court,    an    administrator    or    other  '^^l}'^^'^"^  ^  ''^-     ^.'v  ""T  I'i  v\ 

.    ,         ,    ,  rr^i  .  Pick.  23 :   Bovden  vs.   v\  ard.  38   Vt. 

person  interested  may.     Ihe  apprais- 
ers, in  making  their  allowance,  are 


28i  widow's  quaeantine  §  341 

not  sooner  assigned."  This  provision  made  by  statute  of  our 
State  in  reference  to  dqwer  in  law  is  a  widow's  quarantine.'^ 
At  common  law  this  was  fixed  at  the  period  of  forty  days,  from 
which  fact  it  derived  its  name  of  quarantine.  It  might  more 
properly  be  treated  of  when  speaking  about  dower  in  real 
estate.  For  if  for  any  reason  the  dower  right  has  been  for- 
feited or  does  not  attach,  the  right  of  quarantine  will  fail. 
As  the  widow  has  no  right  to  any  part  of  the  real  estate  until 
the  same  is  set  aside  and  at  common  law  there  being  no  pro- 
vision made  for  a  year's  allowance  as  the  laws  now  generally 
provide,  this  provision  was  made  for  her  temporary  support 
until  she  could  have  dower  set  aside  to  her.  It  is  a  personal 
right  attaching  to  her  alone  and  not  to  the  children.'^ 

The  right  of  a  widow  to  remain  in  the  mansion  house  of  her 
deceased  husband,  as  provided  by  statute,  is  not  restricted  to 
a  personal  continuance  in  the  house  merely,  but  she  is  entitled 
to  a  reasonable  enjoyment  of  the  possession  of  the  premises, 
and  may  therefore  either  personally  occupy  them  or  she  may 
rent  them,  as  she  may  deem  best  promotive  of  her  comfort. 

If  the  administrator  of  her  husband's  estate  assumes  to  con- 
trol the  mansion  house  of  the  decedent,  and  denying  the  widow's 
right  to  the  possession  thereof,  rents  it  to  another  person,  the 
widow  is  entitled  to  remain  in  the  premises.  If  the  admin- 
istrator has  collected  the  rents  to  which  the  widow  is  so  entitled, 
and  has  appropriated  them  to  the  payment  of  debts  due  from  his 
intestate,  she  may  elect  to  charge  him  in  either  his  personal  or 
representative  character,  and  he  can  not  defeat  a  recovery  by 
her  in  an  action  against  him  in  his  representative  capacity, 
on  the  ground  that  he  is  personally  liable  therefor. 

An  administrator  who,   without  authority,   collects  rents  of 

his  intestate's  real  estate',  and  uses  them  as  assets  in  paying  the 

debts  of  the  estate,  is  liable  to  the  party  entitled  to  such  rents 

and  he  may  recover  the  amount  thereof  of  the  administrator 

or  in  his  representative  character. '^^ 

628;  Drew  vs.  Gordon,  13  Allen  120;  76  Johnson  vs.   Corbett,   11   Paige, 

Richardson  vs.  Merrill,  32  Vt.  27.  26.5. 

76  §§  8606-7    G.    C,    §944.  ■?■?  Conger.  Admin.;  Atwood.  28  0. 

S.  134. 


§342 


ADMINISTRATION    BY    TRUST    COMPANIES 


282 


CHAPTER  XX. 
ADMINISTRATION  BY  TRUST  COMPANIES. 


i  342  Trust     companies     acting     as       §  351 

executor. 
343   (§710-150  G.  C.)     Trust   com-       §352 
panies   may  accept   business 
when.  §  353 

1344   (§710-151      G.     C.)        Foreign 

trust   companies   may   when.       §  354 

i345  (§710-152  G.  C.)  File  certifi- 
cate of  compliance  with  tax 
commission.  §  355 

346  (§710-153  G.  C.)  Examina- 
tion of  trust  company — Ex- 
pense. §  356 

,347   (§710-154   G.   C.)     Compliance 

with    law    before    qualifying      §  357 
as  executor,   etc. 

1348   (§710-155   G.   C.)     Retirement       §358 
from  state  must  give  notice. 

349  (§710-156  G.  C.)    From  whom      §359 

moneys  may  be  received. 

350  (§710-157   G.   C.)     Court   may       §360 

order  money  deposited  with 
company. 


§710-158  G.  C.)     Empowered 
to  act  as  agent. 
§710-1.59  G.  C.)    Management 
of   trusts. 

§  710-160  G.  C.)  May  accept 
trusts  of  executorship,  etc. 
§710-161  G.  C.)  Capital  and 
deposits  with  state  treas- 
urer. 

§710-162  G.  C.)  Court  may 
order  investigation  of  com- 
panr. 

§710-163   G.   C.)      AVho   may 
sign  papers  in  court. 
§710-164   G.   C.)     Investment 
of  monev  held  in  trust. 
§  710-165' G.  C.)    iUngling  of 
securities   proliibited. 
§710-166   G.   C.)     Investment 
of   trust   funds. 
§710-167     G.     C.)       Reserve 
fund   required. 


§342.  Trust  companies  acting  as  executor,  etc.  Leading 
text-book  writers  say : 

''Whether  a  corporation  aggregate  can  be  an  executor  has 
long  been  doubted. ' '  ^ 

In  some  parts  of  the  United  States  this  point  is  decided  ad- 
versely as  to  aggregate  corporations  in  general,-  although  com- 
panies may  now  be  found  whose  charters  permit  the  exercise  of 


1  Schouler  Executors,  3rd  ed.  §  32. 
Citing  Williams  Executors,  7th  ed. 

228-229. 


~  Georgetown  College  vs.  Brown. 
34  Md.  450;  Thompson's  Estate,  33 
Bait.  334. 


283  ADMINISTRATION    BY    TRUST    COMPANIES  §  342 

such  functions  in  connection  with  the  care  and  investment  of 
trust  funds.^ 

"In  the  United  States  the  prevalence  for  authority,  once 
■against  the  competency  of  corporations  aggregate  to  act  as  exec- 
utors, seems  now  to  turn  the  other  way. ' '  * 

But  it  is  held  that  a  corporation  can  not  lawfully  be  appointed 
unless  the  right  to  administer  has  been  conferred  by  the  charter.' 
The  first  law  granting  to  safe,  deposit  and  trust  companies  power 
to  act  as  executors  was  passed  in  1891  and  limited  the  ^  appoint- 
ment to  counties  having  a  city  of  the  first  grade  of  the  first  class. 
This  was  amended  in  1894  to  make  it  apply- to  cities  of  the  first 
or  second  grade  of  the  first  class,''  and  in  1896  it  was  amended 
to  apply  to  a  city  of  the  first  or  second  grade  of  the  first  class, 
or  third  grade  of  the  second  class,''  and  again  amended  in  1897 
to  apply  to  the  foregoing  and  all  counties  containing  a  city, 
which  by  the  preceding  federal  census  had  a  population  of  33,000 
or  more,  except  cities  of  the  second  grade  of  the  second  class," 
again  amended  in  1898  to  apply  only  to  counties  containing  a 
city  of  the  first  class  and  counties  containing  a  city  of  the  second 
class  of  33,000  population.^"  In  1904  the  law  was  declared  un- 
constitutional, as  being  a  statute  of  general  nature  and  not  of 
uniform  operation  throughout  the  state.^^ 

The  statute  was  again  under  consideration  by  the  Supreme 
Court  in  1908,  and  while  the  question  was  then  made  as  to  the 
legal  capacity  of  the  corporation  to  act,  the  case  was  decided 
on  another  question,  i.  e.,  the  right  to,  in  a  collateral  action,  set 
aside  the  appointment  made  by  the  Probate  Court,  and  it  was 

3  Schouler  Executors,  3rd  ed.  §  33.  6  88  vs.  407. 

4  Woerner  Admin.  §  233.    See  Rice  7  91  vs.  255,  Cincinnati  and  Cleve- 
Pro.  Prac.  328.  land. 

5  18  Cyc.  95;  Henry  Pro.  Prac.  8  92  vs.  62. 
§32;  Thornton  &  Blackledge,  Ad-  9  93  vs.  337. 
ministration,  47;  a  large  number  of           10  94  vs.  132. 

the  states  now  authorize  by  statute  H  Schumaker  vs.  McCallip,  69  0. 

certain     corporations    to    serve    as       S.   500;    Telegraph   Co.   vs.   Savings 
executors,  etc.  Co.,  30  C.  C.  380. 


§  343  ADMINISTRATION   BY   TRUST    COMPANIES  284 

held  that  even  though  the  corporation  was  legally  incompetent 
to  act,  the  order  of  the  Probate  Court  could  not  be  set  aside/- 
While  I  suspect  there  were  some  attempts,  no  law  was  passed 
until  1819,  when  as  a  part  of  the  general  ^^  codification  of  the 
banking  laws,  the  present  statute  was  enacted  into  law.  The 
fact  that  the  matter  was  left  in  abeyance  for  15  years,  and  then 
not  enacted  as  a  separate  law,  indicates  that  there  was  no  crying 
demand  for  the  law.  Wliile  it  may  in  some  instances  work  well, 
in  the  administration  of  estates,  it  becomes  machine  work, 
and  the  individuality,  a  thing  often  of  much  value  and  desir- 
ability, is  lost.  That  follows  when  an  artificial  and  not  a  natural 
person  assumes  the  execution  of  the  matters  connected  with  the 
administration  of  estates. 

The  trust  company  looks  at  the  matter  from  a  cold  business 
standpoint.  Of  course  where  it  is  named  in  the  will,  there  is 
nothing  to  do  but  make  the  appointment ;  but  in  other  instances 
the  court  should  be  well  satisfied,  that  Jhe  best  interests  of  the 
estate,  and  the  beneficiaries,  will  be  better  secured  by  the  ap- 
pointment of  the  corporation  than  of  an  individual,  before  the 
corporation  will  be  preferred. 

Note:  The  Federal  Reserve  Act  provides  that  the  Federal 
Reserve  Board,  may  by  special  permit  to  National  Banks  apply- 
ing therefor,  when  not  in  contravention  of  state  or  local  law, 
the  right  to  act  as  trustee,  executor,  administrator  or  registrar 
of  stocks  and  bonds.  Whether  banks  could  so  act,  unless  also 
so  authorized  by  the  laws  of  the  state,  may  be  questioned.  My 
own  judgment  would  be  that  if  not  permitted  by  some  statute 
of  the  state,  they  could  not  so  act.^* 

§343.  Trust  companies  may  accept  business  —  when. 
§  710-150.  No  trust  company,  or  corporation,  either  foreign  or 
domestic,  doing  a  trust  business  shall  accept  trusts  which  may  be 
vested  in,  transferred  or  committed  to  it  by  a  person,  firm,  asso- 

12  Bank  vs.  Telegraph,  70  0.  S.  89.       attack  of  the  orders  of  the  Probate 
This    is    a   very    interesting   deci-       Court, 
sion    on   the   question    of   collateral  i^  108  vs.  80-129. 

14  See  63  Bull.  7. 


285  ADMINISTRATION    BY    TRUST    COMPANIES  §  344 

ciation,  corporation,  court  or  other  authority,  of  property  within 
this  state,  until  its  paid  in  capital  is  at  least  one  hundred 
thousand  dollars,  and  until  such  corporation  has  deposited  with 
the  treasurei  of  state  in  cash  the  sum  of  one  hundred  thousand 
dollars,  except  that  the  full  amount  of  such  deposit  by  such 
corporation  may  be  in  bonds  of  the  United  States,  or  of  this 
state  or  any  municipality  or  county  therein,  or  of  any  other 
state  or  any  municipality  or  county  therein,  or  in  the  first  mort- 
gage bonds  of  any  railroad  corporation  that  for  five  years  last 
past  has  earned  at  least  five  per  cent,  net  on  its  issued  and  out- 
standing capital  stock,  which  securities  and  the  sufficiency 
thereof  shall  be  approved  by  the  superintendent  of  banks.  From 
time  to  time  said  treasurer  shall,  with  the  approval  of  the  super- 
intendent of  banks,  permit  withdrawals  of  such  securities  or 
cash,  or  part  thereof,  upon  deposit  with  him  and  approval  of 
the  superintendent  of  banks,  of  cash  or  other  securities  of  the 
kind  heretofore  named,  so  as  to  maintain  the  value  of  such  de- 
posits as  herein  provided,  and  so  long  as  it  continues  solvent  he 
shall  permit  it  to  collect  the  interest  on  its  securities  so  deposited. 
[108  V.  118.]^^ 

§  344.     Foreign  trust  company  may  do  business  —  when. 

§  710-151.  Every  foreign  trust  company  shall,  upon  being 
admitted  to  do  business  within  this  state  as  otherwise  provided, 
by  law,  file  a  certified  copy  of  its  certificate  of  admission  with 
the  superintendent  of  banks,  together  with  a  certified  copy  of 
the  last  published  statement  made  by  it  and  filed  with  the  proper 
department  of  the  state  in  which  it  is  organized  and  doing 
business,  and  upon  approval  thereof  and  of  the  funds  and  se- 
curities to  be  deposited  as  in  the  preceding  section  provided,  he 
shall  certify  that  fact  to  the  treasurer  of  state,  and  upon  deposit 

15  If  any  trust  company  seeks  the  there  should  be  filed  in  such  court 

appointment    of    executor,    adminis-  a    statement    from    the    proper    au- 

trator   or   trustee   in   any   court,   or  thorities  that  the  provisions  of  this 

the     deposit    of     any     trust     funds,  section  have  been  complied  with. 


§  345  ADMINISTRATION    BY    TRUST    COMPANIES  286 

of  such  funds  and  securities  with  the  treasurer  of  state  the 
superintendent  of  banks  shall  thereupon,  and  upon  the  payment 
of  a  license  fee  of  one  hundred  dollars  therefor,  license  said 
trust  company  to  transact  business  within  this  state  for  the 
period  of  one  year  thereafter.     [108  v.  118.] 

§  345.     File  certificate  of  compliance  with  tax  commission. 

§  710-152.  Every  foreign  trust  company  doing  a  trust  business 
in  this  state  shall  annually  within  thirty  days  after  complying 
with  all  the  provisions  of  law  in  relation  to  foreign  corporations 
transacting  business  within  this  state,  file  with  the  superintend- 
ent of  banks  a  certificate  of  the  Tax  Commission  of  Ohio  as  to 
such  compliance  together  with  a  copy  of  the  last  published  state- 
ment of  said  corporation,  and  if  such  trust  company  is  not  in 
default  as;  to  any  trust  matter  or  estate  within  this  state,  the 
superintendent  of  banks  shall  thereupon,  and  upon  payment  of 
a  fee  of  one  hundred  dollars  therefor,  license  said  corporation 
to  transact  business  within  this  state  for  a  further  period  of 
one  year.     [108  v.  119.] 

§  346.    Examination  of  trust  company — expense.     §  710-153. 

The  superintendent  of  banks  shall  have  the  right  to  examine, 
by  any  deputy,  examiner  or  person  especially  appointed  for 
that  purpose,  the  books  or  affairs  of  any  foreign  trust  company, 
or  any  corporation  doing  a  trust  business,  as  to  any  and  all 
matters  relating  to  any  trust,  estate  or  property  within  this  state 
and  concerning  which  such  trust  company  is  acting  in  a  trust 
or  representative  capacity,  the  expense  of  which  shall  be  charged 
to  and  paid  by  such  trust  company.     [108  v.  119.] 

§  347.  Compliance  with  law  before  qualifying  as  executor, 
etc.  §  710-154.  No  such  trust  company,  foreign  or  domestic, 
authorized  to  accept  and  execute  trusts,  either  directly  or  in- 
directly through  any  officer,  agent  or  employe  thereof,  shall 
certify  to  any  bond,  note  or  other  obligation  to  evidence  debt, 
secured  by  any  trust  deed  or  mortgage  upon  or  accept  any  trust 


287  ADMINISTRATION   BY   TRUST    COMPANIES  §  348 

concerning  property  located  wholly  or  in  part  in  this  state,  with- 
out complying  with  the  provisions  of  sections  150,  151  and  152 
of  this  act.  But  nothing  herein  contained  shall  prevent  a  for- 
eign corporation  from  qualifying  as  executor  or  administrator 
of  property  in  this  state,  after  appointment  as  executor  or  ad- 
ministrator by  the  courts  of  any  other  state  as  provided  hy  law, 
when  the  decendent  was  a  resident  of  such  state  at  the  time 
of  his  death,  or  from  acquiring,  holding  or  transferring  title  to 
lands  or  other  property  within  this  state  as  trustee  to  secure 
any  bond,  note  or  other  obligation  aforesaid,  or  from  certifying 
thereto,  but  provided  always,  that  by  the  laws  of  such  other 
state  a  trust  company  organized  and  doing  business  under  the 
laws  of  this  state  shall  have  equal  privileges  as  to  any  similar 
estate,  deed  or  trust  of  property  in  such  other  state.    [108  v.  119.] 

§  348.  Retirement  from  state  must  give  notice.  §  710-155. 
Upon  the  retirement  from  this  state  of  any  foreign  trust  com- 
pany, notice  of  such  proposed  retirement  shall  be  published  once 
each  week  for  four  consecutive  weeks  in  a  newspaper  of  general 
circulation  in  the  city  or  village  in  which  the  principal  place 
of  business  of  such  company  is  located  within  this  state  and 
proof  of  such  publication  shall  be  filed  with  the  superintendent 
of  banks.  Such  company  shall  within  thirty  days  after  -the 
expiration  of  the  period  provided  for  in  such  notice,  file  its 
application  in  the  court  of  common  pleas  of  the  county  in  which 
its  principal  place  of  business  is  located  within  the  state,  for 
authority  to  withdraw  from  the  treasurer  of  state  the  securities 
or  fund  deposited  with  him  under  the  provisions  of  section  150 
of  this  act;  and  said  court,  if  satisfied  that  such  company  has 
fulfilled  and  met  all  of  its  obligatioi^s  may  so  find  and  may 
authorize  the  withdrawal  of  such  securities  by  such  trust  com- 
pany; and  upon  receipt  of  a  certified  copy  of  such  order,  the 
superintendent  of  banks  shall  so  certify  to  the  treasurer  of  state 
and  thereupon  .such  treasurer  of  state  shall  deliver  and  sur- 


§  349  ADMINISTRATION    BY   TRUST    COMPANIES  288 

render  to  such  trust  company  the  securities  or  funds  heretofore 
•deposited  with  him  for  the  faithful  performance  of  the  trusts 
assumed  by  such  trust  company.     [108  v.  119.] 

§  349.  From  whom  moneys  may  be  received.  §  710-156.  A 
trust  company  may  receive  and  hold  moneys,  or  property  in 
trust,  or  on  deposit  from  executors,  administrators,  assignees, 
guardians,  trustees,  corporations  or  individuals  upon  such  terms 
and  conditions  as  may  be  agreed  upon  between  the  parties. 
[108  V.  120.y^ 

§350.  Court  may  order  money  deposited  with  company. 
§  710-157.  Any  court  in  this  state,  including  probate  courts, 
may  by  order,  decree  or  otherwise,  direct  moneys  or  property 
under  its  control,  or  paid  into  court  by  parties  to  an  action  or 
legal  proceedings,  or  which  are  brought  into  court  by  reason 
of  an  order,  judgment  or  decree,  in  equity  or  otherwise,  to  be 
deposited  with  a  trust  company,  by  such  court  designated  upon 
such  terms  and  subject  to  such  instructions  as  are  expedient. 
[108  V.  120.]" 

§  351.  Empowered  to  act  as  agent,  etc.  §  710-158.  A  trust 
company  may  act  as  agent  or  trustee  for  the  purpose  of  reg- 
istering, countersigning  or  transferring  the  certificates  of  stock, 
bonds,  or  other  evidences  of  indebtedness  of  a  corporation,  asso- 
ciation, municipality,  state  or  public  authority,  upon  such  terms 
as  may  be  agreed  upon,  and  act  as  trustee  under  any  mortgage 
or  deed  of  trust  to  secure  bonds  issued  by  any  corporation,  asso- 
ciation, municipality  or  body  politic,  and  may  accept  and  exe- 

16  Executors,  etc.,  before  they  of  funds  generally.  Before  the 
make  deposits  in  any  such  company,  court  sliould  order  or  approve  the 
should  be  assured,  in  some  satis-  investment  of  any  funds  in  any 
factory  manner  that  the  trust  com-  trust  company,  it  should,  require  a 
pany  is  authorized  as  required  by  showing  to  be  made,  that  the  com- 
law  to  do  business   in  this  state.  pany  has  complied  with  the  law  re- 

17  If  an  investment  is  sought  quired  from  it,  before  it  can  do  busi- 
under      this      section,      application  ness  in  this  state. 

should  be   made   as   for   investment 


289  ADMINISTRATION    BY    TRUST    COMPANIES  §  352 

cute  any  other  corporate  or  municipal  trusts  not  inconsistent 
with  the  laws  of  the  state.     [108  v.  120.] 

§352.  Management  of  trusts,  etc..  §  710-159.  A  trust  com- 
pany may  act  as  agent,  and  take,  accept  and  execute  any  and 
all  trusts,  duties  and  powers  in  regard  to  the  holding,  manage- 
ment and  disposition  of  any  property  or  estate,  real  or  personal, 
which  may  be  committed  or  transferred  to,  or  vested  in  said  trust 
estate,  and  the  rents  and  profits  thereof  or  the  sale  thereof,  as 
may  be  granted  or  confined  to  it  by  any  person,  association, 
corporation,  municipal  or  other  authority ;  and  may  act  as  trustee 
under  any  will  or  deed  or  other  instrument  creating  a  trust  for 
the  care  and  management  of  property  under  the  same  circum- 
stances and  in  the  same  manner,  and  subject  to  the  same  con- 
trol by  the  court  having  jurisdiction  of  the  same  as  in  the  case 
of  a  legally  qualified  person.     [108  v.  120.] 

§  353.    May  accept  trusts  of  executorship,  etc.   §  710-160.  A 

trust  company  may  take,  accept  and  execute  all  such  trusts 
which  may  be  committed  to  it  by  order  of  any  court  of  record  or 
probate  court  of  this  or  any  other  state  or  of  the  United  States, 
to  act  as  executor,  administrator,  assignee,  guardian,  receiver, 
or  trustee,  or  in  any  other  trust  capacity,  and  receive  and  take 
title  to  any  real  estate  which  may  be  the  subject  of  any  such 
trust ;  and  such  courts  of  record  and  probate  courts  may  appoint 
.such  trust  company  to  act  as  executor,  administrator,  assignee, 
guardian,  receiver,  trustee  or  in  any  other  trust  capacity,  pro- 
vided that  any  such  appointment  as  guardian  shall  apply  to  the 
estate  only  and  not  to  the  person.  But  no  such  trust  company 
shall  be  required  to  assume  or  execute  a  trust  without  its  con- 
sent thereto.     [108  v.  120.y^ 

18  Before   the  trust  company   can  file  a  certificate  of  its  admission  to 

receive    such    appointment    it    must  do  business  with  the  superintendent 

have    deposited    the    bond    required  of    banl-:s,    G.    C.     S  710-151.      Also 

by   G.    C.    §710-150    (§343).     If   it  with     the    tax    commission,     G.     C. 

is   a   foreign   corporation    it   should  §  710-152.      An    exception    is    made 


§  354  ADMINISTRATION    BY   TRUST    COMPANIES  290 

§  354.  Capital  and  deposits  with  state  treasurer  held  as 
security.  §  710-161.  The  capital  stock  of  such  trust  company, 
with  the  liabilities  of  the  stockholders  existing  thereunder,  and 
the  fund  deposited  with  the  treasurer  of  state  as  provided  by 
law  shall  be  held  as  security  for  the  faithful  discharge  of  the 
duties  undertaken  by  .such  trust  company  in  respect  to  any 
trust,  and  no  bond  or  other  security,  except  as  hereinafter  pro- 
vided, shall  be  required  from  any  such  trust  company  for  or  in 
respect  to  any  trust,  nor  when  appointed  executor,  administrator, 
guardian,  trustee,  receiver,  assignee,  or  depositary;  except  that 
the  court  or  officer  making  such  appointment  may,  upon  proper 
application,  require  any  trust  company  which  shall  have  been  so 
appointed  to  give  such  security  for  the  faithful  performance  of 
its  duties  as  to  the  court  or  officer  shall  seem  proper,  and  upon 
failure  of  such  trust  company  to  give  security  as  required  may 
remove  such  trust  company  and  revoke  such  appointment.  [108 
v.  121.]  ^« 

§  355.    Court  may  order  investigation  of  company.   §  710-162. 

Any  judge  of  a  court  in  which  such  trust  company  is  acting  in 
such  trust  capacity,  if  he  deems  it  necessary,  or  upon  the  written 
application  of  any  party  interested  in  the  estate  which  it  holds 
in  a  trust  capacity,  at  any  time,  may  appoint  a  suitable  person 

where  the  appointment  is  made  in  order  bond  on  the  mere  asking  of 
a  foreign  jurisdiction,  G.  C.  §  710-  the  same  by  some  person  in  inter- 
154.  And  before  such  appointment  est,  and  I  am  inclined  to  believe  it 
is  made  the  court  should  have  was  the  intention  to  apply  the  same 
knowledge  that  these  conditions  have  rule  here.  If  no  application  for 
been  complied  with.  bond  is  made  none  will  be  required 
19  This  section  gives  the  court  by  the  court,  the  assumption  being 
power  to  require  bond,  if  any  inter-  that  a  proper  or  sufficient  bond  has 
ested  person  makes  a  proper  appli-  been  filed  with  the  state  officials, 
cation.  .Just  what  showing  is  re-  There  may  be  instances  where, 
quired  before  the  court  will  require  however,  the  bond  Avill  not  be 
such  bond  is  not  clear.  Must  some  sufficient,  and  the  court  would  be 
cause  be  shown,  or  will  the  mere  justified  on  its  own  motion  in  re- 
asking  suffice?  Generally,  when  bond  quiring  a  bond. 
is    dispensed    with,    the    court    will 


291  ADMINISTRATION    BY   TRUST    COMPANIES  §  356 

or  persons,  who  shall  investigate  the  affairs  and  management  of 
such  trust  company  concerning  such  trust  and  make  sworn  re- 
port to  the  court  of  such  investigation.  The  expense  thereof 
shall  be  taxed  as  costs  against  the  party  asking  for  such  exami- 
nation, or  the  trust  fund  of  such  trust  company  as  the  court 
decrees.  Such  court  at  any  time  may  examine  any  officers  of 
such  trust  company,  under  oath  or  affirmation,  as  to  its  trust 
matters  in  the  court,  or  as  to  its  affairs  and  management  while 
considering  its  appointment  in  such  capacity  ,•  and  for  any  cause, 
applicable  to  natural  persons  in  the  same  capacity,  order  that 
such  trust  company  forthwith  settle   its  trust.      [108  v.   121.] 

§  356.  Who  may  sign  papers  in  court.  §  710-163.  In  pro- 
ceedings in  the  probate  court  or  any  court  of  record,  connected 
with  any  authority  exercised  under  this  act,  all  accounts,  returns 
and  other  papers  may  be  signed  and  sworn  to  in  behalf  of  such 
trust  company  by  a  duly  authorized  officer  thereof.  The  exami- 
nation and  answers  of  such  officer  under  oath  shall  be  received 
as  the  examination  and  answers  of  the  trust  company.  The 
court  may  order  and  compel  any  of  its  officers  to  attend  such 
examinations  and  to  answer  such  questions  as  may  be  put  to 
him  relating  to  any  such  proceeding,  in  all  .respects  as  other- 
wise provided  by  law.     [108  v.  121.] 

§  357.  Investment  of  money,  etc.,  held  in  trust.  §  710-164. 
In  the  management  of  money  and  property  held  by  it  as  trustee, 
such  trust  company  may  invest  such  money  and  property  in  a 
general  trust  fund  of  the  trust  company.  But  it  shall  be  com- 
petent for  the  authority  making  the  appointment  to  direct 
whether  such  money  and  property  shall  be  held  separately  or 
any  part  thereof  invested  in  a  general  trust  fund  of  the  trust 
company.  The  trust  company  always  shall  follow  and  be  en- 
tirely governed  by  the  directions  contained  in  any  will  or  instru- 
ment under  which  it  acts.     [108  v.  122  "" 


§  358  ADMINISTRATION   BY   TRUST   COMPANIES  292 

§  358.    Mingling-   of   securities   prohibited.      §  710-165.     No 

property  or  securities  received  or  held  by  any  trust  company 
in  trust  shall  be  mingled  with  the  investments  of  the  capital 
stock  or  other  properties  belonging  to  such  trust  company  or  be 
liable  for  its  debts  or  obligations.  Moneys  pending  distribution 
or  investment  may  be  treated  as  a  deposit  in  the  trust  depart- 
ment, or  may  be  deposited  in  any  other  department  of  the  bank, 
subject  in  other  respects  to  the  provisions  of  law  relating  to 
deposit  of  trust  funds  by  trustees  and  others.      [108  v.  122.] 

§  359.  Investment  of  trust  funds.  §  710-166.  A  trust  com- 
pany may  invest  in  or  loan  its  trust  funds  upon  the  securities, 
bonds  and  other  interest-bearing  obligations  enumerated  in  sec- 
tions 111,  112  and  140  of  this  act,  but  subject  to  all  limitations 
as  to  the  amount  of  the  investment  or  loan  therein  or  thereon 
as  provided  by  law,  and  in  stocks  and  bonds  of  corporations 
when  authorized  by  the  affirmative  vote  of  the  board  of  direc- 
tors, or  of  the  executive  committee  of  such  trust  company. 
[108  V.  122.] 

§  360.  Reserve  fund  required.  §  710-167.  A  trust  company 
shall  keep  the  same  reserve  as  is  required  of  savings  banks,  and 
shall  be  governed  by  the  same  provisions  of  law  in  all  respects 
relating  thereto,  but  shall  not  be  required  to  keep  a  reserve  on 
trust  funds  or  property  held  in  trust.     [108  v.  122.] 


293 


ASSETS    GENEIUXLY 


DEFINITION 


^363 


CHAPTER  XXI. 

ASSETS  GENERALLY. 


§  363  Definition. 

§  364  Personal  property,  definition. 

§  365  Fixture. 

§  366  Trees,  wood,  etc. 

§  367  Manure. 

§  368  Emblements,  definition. 

§  369  When  emblements  shall  be  as- 
sets. 

§  370  Power  to  cultivate  and  gather 
crops. 

§  371   Rent  of  farm  land. 

§  372  Rents  generally. 

§  373  Leases  or  chattels  real. 

§  374  Annuities.      Dividends. 

§  375  Copyrights  and  patents. 

§  376  Pension  money. 

§  377  Trust  property. 

§  378  Money  on  deposit. 

§  379  Fire  insurance  money. 

§  380  Life  insurance  money, 

§  381  Mutual  benefit  insurance. 

§  382  Good-will  of  business. 


§  383  Property    conveyed    by    dece- 
dent to  defraud  creditors, 
§  384  Proceeds  of  real  estate. 
§  385  Choses  in  action^  etc. 

§  386  Mortgaged  premises  to  be 
considered  personal  assets. 
Executors,  etc.,  may  take 
possession. 

§  387  Executor  or  administrator 
may  discharge  mortgage. 
Possession  before  redemp- 
tion. 

§  388  How  executor  or  administra- 
tor to  foreclose  mortgage. 

§  389  Naming  a  person  as  executor 
not  to  discharge  a  debt. 

§  390  Debt  of  an  executor  or  admin- 
istrator   becomes    assets. 

§  391  Discharge  of  debt  in  a  will 
against  an  executor,  etc., 
how    construed. 

§  392  A  debt  due  from  an  heir  or 
legatee    is    assets. 

§  393  Assets  not  possessed  by  de- 
ceased.i 


§  363.     Definition. 

The  word  assets  is  derived  from  the  French  word  assez, 
meaning  sufficient,  and  originally  signified  a  sufficiency  of  prop- 
erty to  pay  the  decedent's  debts.  In  a  course  of  time  the  idea 
of  sufficiency  gave  way  to  that  of  applicability ;  and  in  modern 
usage  the  term  means  property  applicable  to  the  payments  of 
the  decedent's  debts,  and  includes  every  kind  of  property  owned 
by  a  decedent,  tangible  or  intangible,  legal  or  equitable.^  This 
definition  is  a  general  one  and  there  may  be,  if  not  real,  ap- 
parent exceptions.  Unless  otherwise  provided  by  will  the  real 
estate  of  a  decedent  passes  to  his  heirs  directly  and  the  personal 


1  See  Chap.  20,  §  506  et  seq.  care 
and  manage  of  estate. 


2  11   Am.    &   Eng.   p]ncy.   of   Law, 
2d.   ed.   829, 


§  364  ASSETS   GENERALLY  294 

property  to  the  administrator.  Over  the  real  estate  the  admin- 
istrator has  no  control  whatever ;  other  than  when  the  personal 
projierty  is  insufficient  to  pay  the  debts.  He  may  file  his  peti- 
tion in  Probate  Court  and  have  the  land  sold  for  that  purpose. 
The  proceeds  of  such  sale  are  assets  in  his  hands  for  payment  of 
debts  and  if  more  is  sold  than  is  required,  to  distribute  the  re- 
mainder. He  has  no  right  to  collect  the  rents  even  when  the 
estate  may  probably  be  insolvent.^  The  powers  of  an  adminis- 
trator or  executor  in  reference  to  real  estate  will  be  discussed  in 
a  subsequent  chapter  under  the  title  of  sale  of  real  estate,  etc. 
What  we  wish  more  particularly  to  deal  with  in  this  chapter 
is  personal  property.* 

§  364.     Personal  property,  definition. 

Under  the  name  of  things  personal  are  included  all  sorts  of 
things  movable  which  attend  a  man's  person  wherever  he  goes. 
Chattels  are  real,  or  personal  chattels.  Real  are  such  concern- 
ing the  realty  as  a  term  for  years,  etc.  Chattels  personal  are 
cattle,  foAvl,  deer,  fish  in  a  tank,  tithes  severed  from  the  nine 
parts,  trees  sold  or  reserved  upon  sale.  The  terms,  goods,  and 
chattels  include  choses  in  action  as  well  as  those  in  possession.^ 

It  is  sometimes  very  difficult  to  determine  the  dividing  line 
between  certain  classes  of  property,  as  to  whether  it  is  real  or 
personal.  That  kind  of  property  which  if  it  stood  by  itself 
would  be  personal  property ;  and  which  when  connected  to  real 
estate  would  be  real  property  is  known  as  a  fixture.  It  there- 
fore follows  that  personal  property  which  were  it  not  attached 
to  the  real  estate  would  go  to  the  administrator,  by  reason  of 
its  connection  with  real  estate  goes  to  the  heir. 

3  Overturf  vs.  Dugan,  29  O.  S.  230.  mortgagor,  belongs  to  his  adminis- 

4  See  §  470,  Sale  of  Personal  Prop-  trator,  and  the  mortgagee  lias  no 
■erty;  §712,  Adm's  accounting;  right  to  replevin  the  same.  Lighter 
§  1549,    What   property   may   be   as-  vs.  Kraft,  IG  Dec.  474. 

signed;    ch.    29,    §506    ct   scq.,   care  Unfiled   chattel   mortgage   is   void 

and  management  of  assets.  as    to    creditors,    a"d    administrator 

5  Cooley's  Blackstonfe,  vol.  2,  283.  takes  charge  of  such  propertv.  con- 
Advancements    are    not    assets    in  verts  it  into  money,  and  distributes 

the    sense    that    the    administrator  the  proceeds  to  creditors  as  provided 

must  look  after  them,  but  they  must  by  law.    Kilbourne  vs.  Fay,  29  0.  S. 

be  considered  in  the  distribution  of  264. 

the  estate.     Tobias   vs.   Richardson,  Growing  crops  are  sometimes  con- 

5  C.  C.    (N.S.)    74;   26  O.  C.  C.  81;  sidered    as    personal    property    and 

affirmed,  72  0.  S.  626.  sometimes  as  partaking  of  the  value 

Personal    property    covered    by    a  of  realty.    ]\Iiller  vs.  Miller,  24  Dec. 

mortgage  if  in  the  possession  of  the  1. 


F 


296  FixTUKE  §  365 

§  365.     Fixture. 

All  courts  and  text  book  writers  have  recognized  a  difficulty 
in  giving  the  definition  of  a  fixture.  A  distinguished  author 
says:  "  The  old  notion  of  physical  attachment  is  said  by  some 
courts  to  be  exploded ;  the  true  criterion  to  deteraiine  whether 
the  fixture  constitute  a  part  of  the  realty  or  not,  or  rather  where 
property  treated  as  personal  becomes  annexed  to  and  goes  with 
realty  as  fixtures,  must  depend  upon  the  circumstances  of  each 
case  viewed  in  the  light  of  the  policy  of  the  law  and  of  the  in- 
tention of  parties."  " 

In  an  early  case  in  Ohio  it  is  said  a  fixture  "  Is  an  article 
which  was  a  chattel,  but  which  being  affixed  to  the  realty  be- 
came accessory  to  it  and  parcel  of  it.  The  true  criterion  of  a 
fixture  is  the  united  application  of  the  following  requisites,  to 
wit:  First.  Actual  annexation  to  the  realty  or  something  ap- 
purtenant thereto.  Second.  Application  to  the  use,  or  pur- 
pose, to  which  that  part  of  the  realty  with  which  it  is  con- 
nected is  appropriated.  Third.  The  intention  of  the  party 
making  the  annexation  to  make  a  permanent  accession  to  the 
freehold."  ' 

There  are  several  rules  pertaining  to  persons  in  different 
relations  in  reference  to  fixtures,  that  is,  as  between  vendor 
and  vendee,  mortgagor  and  mortgagee,  the  law  favors  the 
grantee.  As  between  the  heir  and  administrator  the  general 
rule  is  that  nothing,  after  having  been  annexed  to  the  freehold 
,  can  be  severed  and  removed  by  the  executor  or  administrator, 

« Woerner  on  Admin.  601.  tinction  not  merely  artificial,  but 
7  Teaflf  vs.  Hewitt,  1  0.  S.  511.  founded  on  reason  and  the  nature  of 
The  difficulty  which  has  always  things— regarding  not  only  the  nat- 
perplexed  investigation  upon  this  ural  qualities  of  immobility  on  the 
subject  has  been  the  want  of  some  one  hand  and  mobility  on  the  other, 
certain,  settled  and  unvarying  stand-  but  also  the  legal  constitution  and 
ard,  by  which  it  could  be  determined  incidents  to  which  each  class  respec- 
what  amounts  to  a  fixture,  or  what  tively  is  subject.  In  the  great  or- 
connection  with  the  land  will  deprive  der  of  nature,  when  we  compare  a 
a  chattel  of  its  peculiar  legal  quali-  thing  at  the  extremity  of  one  class 
ties  as  such,  and  make  it  accessory  with  a  thing  at  the  extremity  of  an- 
te the  freehold.  Fixtures  belong  to  other,  the  difTerence  is  glaring;  but 
that  class  of  property  which  stands  when  we  approach  the  connecting 
upon  the  boundary  line  between  the  link  between  the  two  great  divisions, 
two  grand  divisions  of  things  real  it  is  often  difficult  to  discover  the 
and  things  personal,  into  which  the  precise  point  where  the  dividing  line 
law  has  classified   property;   a  din-  is  drawn. 


§  365  ASSETS  GENERALLY  296 

unless  some  good  and  sufficient  reason  should  appear  why  that 
which  has  been  made  a  part  of  the  inheritance  should  be  con' 
verted  into  realty  contrary  to  the  design  of  the  freehold,  as  it 
would  appear  from  the  annexation.^  When  the  question  of 
the  removal  of  a  fixture  arises  between  a  landlord  and  tenant, 
it  is  well  established  that  the  tenant  may  sever  and  remove  all 
fixtures  of  a  chattel  nature  erected  by  him  upon  the  leased 
premises  for  the  purpose  of  ornament  or  domestic  convenience 
and  to  carry  on  the  trade,**  but  the  removal  must  be  made  with- 
out serious  injury  to  the  freehold  and  while  the  tenant  is  still 
in  possession. 

There  are  several  kinds  of  fixtures  depending  largely  upon 
the  manner  and  purpose  for  which  they  are  attached  to  the 
real  estate.  Thus  agricultural  fixtures,  which  include  things 
placed  on  realty  in  the  farming  of  the  land,  seem  to  be  placed 
upon  the  same  footing  as  trade  fixtures.  Trade  fixtures  are 
those  erected  by  a  tenant  on  leased  premises  for  the  purpose  of 
carrying  on  a  trade  or  manufactory  and  removable  by  him. 
Such  fixtures  include  buildings,  machinery,  store  fixtures,  steam 
engines,  boilers,  gas  fixtures,  bowling  alleys  and  appurten- 
ances.^° 

In  a  recent  Ohio  case  it  was  held  that  the  machinery  of  a 
manufactory  that  supplies  the  motive  power,  as  the  engine, 
boiler,  and  their  usual  attachments,  as  contradistinguished  from 
that  propelled  by  it,  where  permanently  annexed  to  foundations 
resting  upon  the  freehold,  is  generally  held  to  be  a  fixture, 
though  susceptible  of  being  removed  without  any  material  in- 
jury to  the  same  or  the  freehold,  and  while  by  the  agreement  of 
parties  the  property  may  be  made  to  preserve  the  character  of 
realty,  yet  when  it  is  attached,  but  for  the  agreement  it  would 
be  a  fixture,  such  agreement  will  be  of  no  avail  against  subse- 
quent mortgagee  of  the  realty.^^ 

Domestic  fixtures  are  annexations  made  by  tenant  to  the 
dwelling  house  which  he  occupies  to  render  his  occupation  more 

8  Am.   &   Eng.   Ency.   of   Law   47.  nCase     Mamifacturing     Co.     VB. 

»  Am.  &  Eng.  Ency.  of  Law.  48.  Garven,  45  O.  S.  289. 

10  Am.  &  Eng.  Ency.  of  Law,  61. 


297 


FIXTURE 


365 


favorable  or  more  convenient.  They  are  divided  intxD  two 
classes,  useful  and  ornamental.  They  are  removable  by  the 
tenant  where  tlieir  removal  does  not  materially  injure  the 
dwelling.^"  A  house,  fence,  or  other  erection  on  the  land  of 
another,  with  the  mutual  intention  that  it  is  to  be  held  as  the 
builder's  property,  continues  to  be  personal  property,  and  may 
be  removed  at  the  end  of  the  license.^^  So  the  road-bed  of  a 
railway  and  the 'rails  fastened  to  it  may  be  trade  fixtures 
removable  as  personal  property.^*  Hay  scales,  annexed  to  the 
realty  in  the  usual  manner,  go  to  the  heir  as  real  estate,  al- 
though they  had  been  included  in  the  inventory  as  personalty.^^ 
So  water-wheels,  millstones,  running  gear,  and  bolting  appara- 
tus of  a  grist  and  flouring  mill,  and  other  fixtures  of  a  like 
nature,  are  constituent  parts  of  the  mill,  descending  with  the 
real  estate,^®  while  carding  machines,  looms  and  other  machin- 
ery used  in  manufacturing  cloth,  which  are  complete  in  them- 
selves and  capable  of  being  used  in  one  place  as  well  as  in 


12  8  Am.  &  Eng.  Ency.  of  Law,  54. 

A  temporary  fence  built  by  a  les- 
see is  not  a  fixture  and  a  renewal 
of  the  lease  without  mention  of  the 
right  to  remove  the  fence  did  not 
constitute  the  fence  a  fixture.  Chaf- 
fee vs.  Fish,  2  Dec.  89;  IN.  P.  211. 

A  building  constituting  a  trade 
fixture,  erected  upon  a  contingency 
over  which  the  lessee  has  no  control 
upon  lands  leased  for  a  term  may,  in 
the  absence  of  an  express  agreement, 
be  removed  before  or  within  a  rea- 
sonable time  after  the  expiration  of 
the  term.  Wittenmeyer  vs.  Bd.  of 
Ed.,  6  C.  D.  258;  10  C.  C.  119. 

A  boiler  standing  upright  on  a 
good  foundation  and  used  to  spray 
oil  on  the  brick  kilns,  is  not  as  be- 
tween landlord  and  tenant  a  fixture. 
Com.  Barker  vs.  Brick  Co.,  4  Dee. 
270;   3  N.  P.  230. 

A  pressed  brick  iron  machine 
placed  on  a  brick  foundation,  set 
four  feet  in  the  ground,  and  fast- 
ened to  it  by  bolts  to  keep  it  firm. 


erected  in  its  place  before  the  wall 
of  the  building  was  completed,  and 
such  size  that  it  could  not  be  taken 
out  of  the  house,  without  taking  it 
apart,  or  taking  out  a  part  of  the 
wall,  is  a  fixture.  Barker  vs.  Brick 
Co.,  4  Dec.  270;  3  N.  P.  230. 

A  reservoir  constructed  for  an  elec- 
tric light  plant,  for  the  purpose  of 
storing  water  sufficient  to  supply  the 
steam  engines  operating  such  plant, 
is  a  part  of  the  main  structure  of 
such  plant  and  is,  therefore,  an  ap- 
purtenance to  the  property.  Brush 
El.  Co.  vs.  Warwick,  6  Dec.  475;  4 
N.  P.  279. 

13  Chaffee  vs.  Fish,  1  N.  P.  211; 
Brown  vs.  Turner,  113  Mo.  27. 

14  Northern  R.  R.  vs.  Canton,  30 
Md.  347,  352;  R.  R.  vs.  Deal,  90  N. 
C.  110;  Wagner  vs.  Cleveland,  etc., 
R.  R.  Co.,  22  0.  S.  563. 

15  Dudley  vs.  Foote,  63  N.  H.  57. 
10  House  vs.  House,  10  Paige,  158; 

Lapham  vs.  Norton,  71  Me.  83. 


§  366  '        ASSETS  GENEEALLY  298 

another,  not  requiring  to  be  fitted  in  the  building  and  fixed  to  it 
only  to  give  stability  to  the  machinery,  are  held  to  be  person- 
alty/^ But  if  machinery,  though  so  constructed  as  to  be  port- 
able and  easily  conveyed  from  place  to  place  as  may  be  de- 
sired, is  affixed  with  the  intention  and  for  the  purpose  of  being 
used  as  a  permanent  stiiicture  in  connection  with  the  building, 
it  becomes  part  of  the  realty/^  So  with  pictures,  glasses,  etc., 
taking  the  place  of  wainscoting ;  for  "  the  house  ought  not  to 
come  to  the  heir  maimed  and  disfigured."  ^^ 

§  366.     Trees,  wood,  etc. 

Somewhat  similar  in  the  fact  that  the  property  in  question 
may  under  certain  circumstances  be  real  estate  and  go  to  the 
heir,  and  under  other  conditions  be  personal  property  and  go  to 
the  executor  or  administrator,  is  that  of  trees,  bushes,  vines,  etc 
As  a  general  rule  so  long  as  they  are  not  severed  from  the 
soil,  they  go  to  the  heir."°  But  even  growing  timber  if  it  has 
been  sold  by  the  deceased,  the  title  passes  away  and  his  heir  will 
be  bound,  and  such  property  is  then  personal  property ;  and 
should  the  person  to  whom  it  is  sold  die,  his  executor  will  be 
entitled  to  it.  In  reference  to  a  nursery,  that  is,  trees  that 
have  been  grown  for  the  purpose  of  removal,  will  also  go  to  the 
executor.  Likewise  coal,  petroleum,  building  stone  and  many 
other  substances  are  until  detached,  a  part  of  the  realty  and 
go  to  the  heir.  However,  when  timber  is  detached,  or  coal, 
building  stone,  etc.,  sold  and  moved  away,  they  become  personal 
property  and  belong  to  the  administrator."^ 

17  Tobias  vs.  Francis,  3  Vt.  425;  Ward  vs.  Kilpatrick,  85  N.  Y.  413. 
Gale  vs.  Ward,  14  Mass.  352 ;  Walk-  20  7  An-.  &  Eng.  Ency.  of  Law. 
er  vs.  Sherman,  20  Wend.  636;  3  241;  Williams  on  Exr's  708;  Price 
Redf.  on  Wills  161,  pi.  4;  Hill  vs.  vs.  Brayton,  19  Iowa  309;  Maples 
Wentworth,  28  Vt.  428,  432.  vs.  Millon,  31  Conn.  59S;  Jones  vs. 

18  Potter   vs.   Cromwell,   40  N.  Y.  Timmons,  21  O.  S.  596. 

287.  21  Hirth  vs.  Graham,  50  O.  S.  57. 

And   such   intention   maj  be   pre-  Where  the  intestate  may  have  in- 

sumed      from      the      circumstances.  tended   to   construct  a  building  for 

Voorhees  vs.  McGinnis,  48  N.  Y.  278.  the  improvement  of  his   real  estate 

19  Cave  vs.  Cave,  2  Vern.  508 ;  and  furnished  building  materials  for 
Guthrie  vs.    Jones,    108   Mass.    191;  consummating   the    work,    and    died 


299  TREES  WOOD,    ETC.  §  366 

Somewhat  akin  to  the  subject  of  trees  is  that  of  their  fruit, 
such  a  production  is  known  as  a  diattel  vegetable,  unless  it  has 
been  severed.  Trees  and  the  fruit  and  products  therefrom, 
follow  the  title  of  the  soil  upon  which  they  grow;  and  when 
the  owner  of  the  land  dies,  they  descend  to  the  heir.^^  This, 
however,  only  applies  so  long  as  the  fruit  remains  on  the  trees 
unripe  and  unready  for  harvesting.  If  it  is  ripe  and  sold, 
or  even  if  unripe  and  sold,  under  certain  circumstances  it 
might  be  considered  personal  property."^  In  a  recent  case  in 
Ohio  it  was  held  that  grapes,  even  before  they  were  severed, 
were  not  real  estate,  but  were  personalty ;  ^*  but  in  a  recent 
case  in  Minnesota  it  was  held  that  blackberries  while  growing 
on  the  bushes  were  real  estate."^ 

Where  land  is  sold  and  the  trees  are  reserved,  they  likewise 
become  personal  property  and  go  to  the  administrator  of  the 
person  reserving  them.^®  It  is  said,  however,  that  if  trees 
are  sold  to  be  cut  in  some  future  indefinite  time,  they  retain 
their  character  as  real  estate.  Likewise  hops  have  been  held 
to  be  personal  property.'^  A  fence  enclosing  a  field,  of  what- 
ever material  or  construction,  whether  having  posts  inserted  in 
the  ground  or  not,  is  part  of  the  freehold."®  Nor  does  it  cease 
to  be  so,  though  accidentally  or  temporarily  detached  therefrom 
without  intent  on  the  part  of  the  owner  to  divert  it  permanently 


before  completing  the  same,  the  ma-  sale  of  an  interest  in  land      Purner 

terials    furnished    ujjon   the    ground  vs.  Piercy,  40  Md.  212,  S.  C.  17  Am. 

for  the  completion  of  the  building,  Rep.  591 ;  Compare  Rodwell  vs.  Phil- 

although    personal   chattels    merely,  lips,  9  M.  &  W.  502. 

may  be  regarded  as  belonging  to,  and  24  Mason  vs.  Lemmon,  .3  N.  P.  116; 

a  part  of  the  realty,  as  well  as  the  affirmed  56  0.  S.  793;   See  38  Bull. 

unfinished  structure  upon  the  land.  197;  4  Dec.  322. 

Pence  vs.  Pence,   11  O.  S.  296;   See  25  See  Sipe  vs.  Murphy,   28  Bull. 

Fletcher  vs.  Ashburner,  1  Bro.  C.  C.  212. 

497;  Gray  vs.  Hawkins,  8  O.  S.  449.  2r  3  Redf.  on  Wills  151. 

See  Miller   vs.   Miller,  24   Dec.   1,  27  See  28  Bull.  211. 

as  to  nursery  stock.  „_,  _,     . "                 _         n       ^      /-i 

22  Woerner  on  Admin.  596.  ^^  Smith     vs.     Carroll,     4     Green 

23  The  sale  of  a  crop  of  peaches  (Towa)  146 ;  Glidden  vs.  Bennett,  43 
then  growing  in  the  seller's  orchard,  ]<[_  h.  306;  Kimball  vs.  Adams,  52 
the  buyer  to  gatlier  and  remove  tlie  ^.           . 

peaclies    as    tliey    mature,    held    not  '•  •  o-    • 
within  the  Statute  of  Frauds  as  a 


§  367  ASSETS  GENERALLY  300 

from  its  use.""  But  rails  in  stacks,  not  having  been  used  for  a 
fence,  are  personalty.^*'  On  the  same  principle,  hop  poles,  nec- 
essary in  cultivating  hops,  are  part  of  the  real  estate,  though 
taken  do^vn  for  the  purpose  of  gathering  the  crop,  and  piled  in 
the  yard  with  the  intention  of  being  replaced  in  the  season  of 
hop-raising.^^  That  keys,  doors,  windows,  bolts,  rings,  etc., 
belonging  to  a  house,  though  temporarily  detached  therefrom, 
belong  to  the  realty,  is  self-evident.^^ 

§  367.     Manure. 

Manure  made  upon  a  farm  by  a  tenant,  in  the  absence  of  a 
special  contract  or  custom,  belongs  to  the  lands,  and  cannot 
be  sold  separately  on  an  execution  against  him.^^  Manure 
from  the  barn-yard  of  a  homestead,  although  neither  rotten  nor 
incorporated  with  the  ground,  but  in  a  pile  for  future  use, 
belongs  to  the  realty.^*  But  manure  made  in  a  livery  stable,  or 
in  any  manner  not  connected  with  agriculture  or  husbandry, 
is  personalty,  and  goes  to  the  executor.^^  Likewise  if  manure 
is  made  from  hay,  purchased  and  brought  upon  the  farm  by  a 
tenant.^®      Manure  in  heaps  is  held  to  be  personalty.^®* 

§  368.     Emblements,  definition. 

This  term  is  defined  by  the  Century  Dictionary  as  follows:  '^f 
Those  annual  agricultural  products  which  demand  culture,  as 
distinguished    from    those    which    grow    spontaneously;    crops 

29  Goodrich  vs.  Jones,  2  Hill  (N.  Plumer  a^s.  Plumer,  30  N.  H.  558, 
Y.)    142.  568:   Kittredge  vs.  Woods,  3  N.  H. 

Oil    extracted    from    the    land    be-  503;    Lassell    vs.    Reed,    6    Me.    22; 

comes  personal  propertv.    Digbv  vs.  Snow    vs.    Perkins,    6ft    N.    H.    493; 

Difjbv.  5  C.  C.   (N.S.)   130;  26  0.  C.  Norton  vs.  Crai«r.  68  M.  275. 

C.  417.  3  5  Snow  vs.  Perkins.  60  N.  H.  493; 

30  Clark  vs.  Burnside.   15   111.   62.  Daniels    vs.    Pond.    21     Pick.    367; 

31  Bishop  vs.  Bishop,  11  N.  Y.  123.  Xeedham  vs.  Allison,  24  N.  H.  355. 

32  Cave  vs.  Cave,  2  Vern.  SOS ;  36  Corey  vs.  Bishop,  48  N.  H.  146. 
Gvithrie  vs.  Jones,  108  Mass.  191;  36*  Parson  vs.  Camp,  11  Conn. 
Ward  vs.  Kilpatrick.  85  N.  Y.  413.  525. 

33  Sawyer  vs.  Twiss,  6  Post,  (N.  ]\Ianure  is  a  fixtvire  made  on  a 
H.)  345;  ]\Iiddlehrooke  vs.  Corwin.  farm;  but  hay  and  straw  are  not, 
15  Wend.  (N.  Y.)  169;  Wetherbe  and  may  be  removed  by  a  tenant  at 
vs.  Ellison,  19  Vt.  379;  Lassell  vs.  the  close  of  his  term.  Garrett  vs. 
Reed.  6  Me.  222:  Daniels  vs.  Pond,  Brent,  6  C.  C.  (N.S.)  509;  27  0.  C. 
21  Pick.   (Mass.)  367.  C.  463. 

Compare  Staples  vs.  Emery,  7  Me.  Sfif  An    administrator    is    entitled 

201.  to  costs  for  taking  care  of  a  crop. 

34  Fay  vs.  Muzzey,   13  Gray   53 ;       See  §  660. 


301  EMBLEMENTS,   ETC.  §  368 

which  require  annual  planting,  or,  like  hops,  annuul  training 
and  culture.  Emblements  thus  include  corn,  potatoes,  and  most 
garden  vegetables,  but  not  fruits  and  generally  not  grass.  They 
are  deemed  personal  property  and  pass  as  such  to  the  executor 
or  administrator  of  the  occupier,  instead  of  going  to  the  heir,  if 
he  die  before  he  has  cut,  reaped  or  harvested  them.  The  term 
includes  every  product  of  the  earth  yielding  an  annual  profit, 
as  the  result  of  labor,  as  corn,  vpheat,  grain,  hops,  saffron,  flax, 
melons  and  the  like.^^ 

But  it  is  said  that  parsnips,  turnips,  etc.,  belong  to  the  realty 
because  it  is  not  right  that  the  executor  should  take  products 
from  the  soil,  except  potatoes  which  are  held  to  come  within 
the  description  of  emblements.^®  This  exception  as  to  roots 
may  be  questionable,  and  the  rule  at  this  day  would  rather  be 
that  all  such  roots  that  grow  annually,  the  result  of  labor, 
would  also  be  emblements.  The  general  exception  is  made  as  to 
grass,  but  I  can  conceive  that  certain  kinds  of  grass  would  also 
be  emblements,  such  perhaps  as  clover,  millet,  etc.  There  may 
be  some  difficulty  as  to  clover,  but  it  is  a  crop  that  rarely  ex- 
tends more  than  two  years,  and  requires  labor  and  expense ; 
and  it  seems  to  me  ought  to  be  included  as  an  emblement  going 
to  the  administrator.  Especially  is  this  true,  if  the  matter 
rests  upon  the  fact  that  when  tlie  estate  may  be  terminated  by 
an  event,  the  time  whereof  is  uncertain,  he  has  a  right  to  reap 
that  which  he  has  sown.^^ 


37  §  476,  Emblements.  tion    of   an   estate   is    uncertain,    it 

38  Woerner  on  Admin.  598.  would  greatly  discourage  the  culti- 
3&  Noble  vs.  Tyler,  61  O.  S.  438.  vation   of    the    land,    if    every    such 

In  this  case  it  is  said  that  although  tenant  must  sow  at  his  peril.  Hence 
this  may  to  some  extent,  trench  it  is  that  the  right  to  harvest  grow- 
upon  the  occupancy  of  the  tenant  of  ing  crops,  sown  and  cultivated  be- 
the  next  estate  in  remainder  or  re-  fore  the  termination  of  the  partic- 
version,  this,  however,  cannot  be  ular  estate,  in  no  legal  sense  in- 
said  to  impair  the  next  estate;  for  fringes  upon  the  next  estate  in  pos- 
it is  an  incident,  created  by  law,  of  session.  Every  such  estate  is  cre- 
every  estate  in  reversion  or  remain-  ated  subject  to  such  contingency; 
der  —  a  burden,  if  it  be  one,  imposed,  and  the  right  is  an  incident  to  every 
as  we  have  said,  in  the  interest  of  estate  whose  termination  is  not  fixed 
agriculture;  for,  when  the  termina-  by   some   definite   time.     When   the 


§  369  ASSETS  GENERALLY  302 

Of  course  the  executor's  or  administrator's  right  to  the  crops, 
extends  only  to  such  as  were  planted  before  the  death  of  the 
deceased.  The  selling  of  the  real  estate  hv  an  administrator 
thereafter  to  pay  debts  would  malce  no  difference  as  to  crops 
that  might  have  been  planted  subsequently  thereon,  for  under 
our  law  the  purchaser  at  a  judicial  sale  acquires  no  right  to 
the  landlord's  share  of  a  tenant's  growing  crop/**  In  such  cases 
the  heirs  would  receive  such  crops.*^  It  is  said  that  the  widow 
is  entitled  to  the  crop  growing  on  land  assigned  to  her  as 
dower,  but  she  is  not  entitled  to  the  grass  or  fruits  on  her 
husband's  land  not  assigned  for  dower,*^  If  she  as  dowress, 
sow  the  land  and  marr  j,  the  crop  will  go  to  her,  on  the  husband's 
death  in  preference  to  his  executor  or  administrator.  But  if 
she  marry,  and  her  husband  sow  the  land  and  die,  the  crop  will 
go  to  his  executor,  for  it  is  well  established  upon  the  termina- 
tion of  a  freehold  estate  held  by  the  husband  in  right  of  his 
wife,  the  emblements  will  go  to  the  husband  or  bis  represen- 
tative. 

§  369.  When  emblements  shall  be  assets.  "The  emblements 
or  annual  crops  raised  by  labor,  whether  severed  or  not  from 
the  land  of  the  deceased,  at  the  time  of  his  death,  shall  be  assets 
m  the  hands  of  the  executor  or  administrator,  and  be  iucluded  in 
the  mventory."     [R.  S.  §  6026.] ^^ 

§  370.  Power  to  cultivate  and  gather  crops.  ' '  The  executor 
or  administrator,  or  the  person  to  whom  he  sells  such  emble- 
ments, at  all  reasonable  times,  may  enter  upon  the  lands  to  cul- 
tivate, sever,  and  gather  them."     [R.  S.  §  6027.]" 

§  371.     Rent  of  farm  land. 

As  a  general  rule  there  is  not  much  difficulty  for  the  execu- 
tor to  determine  the  property  of  which    he  should  take  charge, 

time  of  the  termination  of  an  estate  -ta  Woerner  on  Admin.  599. 

is     definitely     known,     the     reason  43  §  10642  G.  C. 

ceases,  and  no  such   right  exists.  See   §476,  Emblements. 

40Albin  vs.  Riegel,  40  0.  S.  339;  44  §  10643  G.  C. 

Seybolt  vs.  Burtner,  4  W.  L.  J.  551.  See    §  1393,   Rents,   Gdn. 

41  Millikin  vs.  Wellive,  37  0.  S.  See  §  801,  Power  to  mortgage  or 
468.                                                                  trade. 


303 


RENT    OF    FARM    LAND 


371 


where  the  land  is  fanned  by  a  deceased  or  by  a  tenant  on  shares, 
but  when  the  farm  is  rented  out  for  cash  rent  tliere  is 'some 
trouble.  It  has  been  stated  that  rent  due  and  payable  at  the 
time  of  the  death  of  the  decedent,  goes  to  the  administrator. 
But  in  a  recent  case  our  Supreme  Court  held  this  was  not  true, 
that  if  the  rent  had  been  earned,  although  by  the  terms  of  an 
agreement  it  was  not  payable  until  a  future  date,  that  fact 
did  not  prevent  the  administrator  from  recovering  the  rent!*^ 

In  another  case  it  was  held  that  where  farm  lands  are 
leased  for  a  term  made  up  of  calendar  years,  with  the  rent 
payable  at  a  fixed  period  therein,  in*  the  absence  of  other  testi- 
mony, the  mere  fact,  tliat  the  land  is  to  be  farmed  will  not 
convert  the  rent  into  emblements,  and  give  the  right  thereto  to 
the  administrator.*®      In  another  case  where  the  landlord  rent- 


45  Noble  vs.  Tyler,  61  0.  S.  438. 
In  this  case  the  deceased  was  the 
owner  of  a  life  estate.  On  the  15th 
of  August,  1892,  she  leased  her  farm 
to  be  seeded  in  the  fall  1892,  and 
farmed  for  the  year  1893.  That  the 
tenant  seeded  about  36  acres  in  the 
fall  1892  in  wheat,  which  was  har- 
vested in  June,  1893,  fifteen  acres  of 
timothy  harvested  July,  1893,  and 
that  in  the  spring  of  1893,  he  plant- 
ed forty-two  acres  in  corn  on  said 
farm  and  it  was  all  laid  by  as  early 
as  July,  1893,  but  was  not  gathered 
and  harvested  until  November,  1893; 
that  at  the  date  of  said  lease  said 
tenant  gave  his  note  for  Eight  Hun- 
dred Dollars  for  said  rent,  payable 
to  the  deceased  on  or  about  the  1st 
of  March,  1894.  That  said  deceased 
died  in  August,  1893.  It  was  held 
that  the  administrator  could  recover 
on  this  note  upon  the  death  of  the 
administrator's  decedent.  The  per- 
son entitled  to  the  possession,  went 
into  immediate  possession. 

See  §   1393. 

46  Dye  vs.  Dimick,  4  N.  P.   185. 
In  this  case  the  decedent  on  October 


24th,  1894,  leased  to  Dimick  the 
farm  for  a  period  of  three  years 
from  March  1st,  1895,  upon  the  con- 
dition that  the  rent  should  be  Nine 
Hundred  Dollars,  payable  in  two 
payments  oi  Four  Hundred  and 
Fifty  Dollars  each  on  Nov.  1st,  1896, 
and  March  1st,  1897.  The  first  in- 
stallment of  rent  due  November  1st, 
1896,  was  paid.  The  landlord  died 
November  18th,  1896.  The  question 
was,  who  was  entitled  to  the  rent 
that  was  due  March,  1897.  It  was 
shown  that  the  tenant  farmed  the 
premises  in  1896  in  wheat,  corn  and 
other  products,  that  the  crops  were 
all  gathered,  or  at  least  matured  be- 
fore the  landlord's  death,  and  that 
no  crops  were  or  could  be  raised  on 
the  said  farm  for  the  balance  of  said 
year  ending  March  1st,  1897,  the 
Court  held  that  this  rent  went  to 
the  devisee  and  not  to  the  executor. 
Under  the  principle  laid  down  in  the 
case  of  Noble  vs.  Tyler,  supra,  that 
where  the  rent  has  been  earned,  al- 
though it  is  not  payable,  it  should 
go  to  the  executor,  this  decision 
seems  to  be  questionable. 


§  371  ASSETS  ge:nerally  304 

ed  a  farm  for  the  sum  of  Three  Hundred  Dollars  cash  to  raise 
thereon  a  crop  of  corn,  and  after  the  corn  was  planted  and  gath- 
ered in  July,  the  landlord  died,  the  tenant  paid  the  rent  to  the 
executor.  The  Court  held  that  the  remainderman  could  not 
recover  any  portion  of  it  from  tlie  executor.*'  Whether  or  not 
rents  may  be  apportioned  between  the  executor  and  the  remain- 
derman in  the  absence  of  statute  may  be  questionable.*^  But 
it  seems  that  the  true  rule  ought  to  be  where  a  farm  is  rented 
for  cash  rent  for  a  definite  period,  and  the  tenant  for  life  dies 
before  the  rent  is  paid,  that  it  ought  to  be  apportioned  between 
the  executor  and  the  remainderman,  giving  to  the  executor 
such  portion  of  the  rent  as  would  have  gone  to  him  if  the  dece- 
dent had  planted  the  farm  in  annual  crops,  or  had  rented 
it  on  share  rent,  as  the  statute  gives  the  executor  the  emble- 
ments or  annual  crops,  raised  by  labor,  whether  severed  or  not. 
If  such  use  of  the  farm  exliausts  its  value  for  the  entire  period, 
then  the  entire  rent  should  go  to  the  executor.  If  it  does  not 
exhaust  its  value,  then  whatever  is  the  proportionate  value  of 
the  farm  from  the  time  that  the  landlord  died  until  the  end  of 
the  term,  subject  to  the  right  of  the  tenant  to  remove  the  em- 
blements or  annual  crops,  under  the  same  conditions  that  the 
administrator  could  have  removed  them,  if  they  would  have 
been  planted  by  the  deceased,  should  be  apportioned  to  the 
remaindemian.*^ 

47  Van    Hayes   vs.    West,   3    C.    C.  disturbed.      Capallo   ts.   Weiman,    9 

64;    2  C.  D.  37.  C.  C.    (X.S.)    412;    29  0.  C.  C.  542. 

The  Court  seems  to  have  held  that  *^  Woerner  on  Admin.  637. 
neither  the  administrator  nor  the  o  The  above  is  not  given  as  a 
remainderman  could  have  collected  rule  established  by  court,  but  one 
this  money,  but  as  it  was  volunta-  which  would  oe  fair  and  just.  The 
rily  paid  to  the  administrator,  the  rules  of  good  husbandry  require, 
remainderman  could  not  recover.  that  certain  times  be  fixed  for  enter- 
But  in  the  opinion  the  Court  seems  ing  and  leaving  under  farm  leases, 
to  justify  the  payment  of  the  rent  These  periods  are  generally  fixed  in 
to  the  administrator  because  if  the  the  spring  and  fall.  Thus  if  a  ten- 
landlord  had  lived  and  planted  the  ant  goes  into  possession  on  the  1st 
crop,  his  executors  would  have  been  of  IMarch,  for  one  year  under  cash 
entitled  to  recover  it.  rent,  he  is  entitled  to  the  use  of  all 

Where   a    life   tenant   dies   during  parts  of  the  land  for  one  crop,  and 

the   term,   an  equitable   distribution  if  there  is  wheat  on  the  land  when 

among  claimants  of  rent   due   after  he  goes  into  possession,  he  is  entitled 

the  death  of  the  tenant  will  not  be  to  put  out  as  much  wheat  as  there 


305 


RENTS   GENERALLY 


§372 


In  considering  tliis  matter  of  rent  it  should  not  be  forgotten 
that  the  owner  of  the  fee  can  make  a  lease  of  his  premises  for 
any  time  that  he  sees  fit,  and  if  he  dies  it  will  not  affect  the 
termination  of  such  lease.  But  if  the  owner  is  only  tenant  for 
life,  he  can  not  make  a  valid  lease  for  a  longer  time  than  the 
termination  of  his  estate.  Another  matter  that  should  be  remem- 
bered is  that  where  real  estate  is  devised,  it  is'  very  often  con- 
sidered that  the  rights  of  the  devisee  are  superior  to  either  that 
of  the  heir  or  the  administrator.  An  administrator  would  not 
be  responsible  for  failure  to  collect  rent  between  the  time  the 
property  is  ordered  for  sale  and  the  date  of  sale.*^^ 

§  372.    Rents  generally. 

As  before  herein  stated,  real  estate  descends  to  the  heir  and 
not  to  the  administrator.  The  rule  follows  that  all  the  rent 
which  accrued  at  the  death  of  the  testator  would  go  to  the 
administrator  and  that  which  would  accrue  thereafter  becomes 
the  property  of  the  heir.^" 


was  when  he  went  into  possession; 
and  for  the  purpose  of  reaping  and 
gathering  this  grain  he  can  go  onto 
the  farm  after  his  lease  is  termin- 
ated. Likewise  good  liusbandry  and 
custom  takes  the  buildings  with  the 
land  for  the  period  of  the  lease. 
Therefore,  whether  or  not,  where  a 
tenant  for  life,  leases  real  estate  for 
a  period  of  one  year,  as  is  the  cus- 
tom of  the  country,  and  dies  before 
the  expiration  of  the  year,  the  ten- 
ant can  remain  until  the  end  of  his 
period,  is  a  matter  T  am  not  sure 
about.  Tf  the  above  rule  is  adopted, 
he  could  hold  to  the  end  of  his 
tenancy  without  affecting  injuri- 
ously, the  interests  of  any  one. 

49a  7n  re  McCary,  22  Dec.  697. 

50  7  Am.  &  Eng.  Encv.  of  Law 
278. 

Rent  accruing  after  the  death  of 
the  testator  under  a  lease  made  by 
him,  passes  to  the  devisee  of  the 
premises  leased,  vinless  otherwise 
disposed  of  by  the  will,  and  if  to 
the  executor,  he  becomes  liable  to 
the  devisee  for  money  bad  and  re- 
ceived. Loveless  vs.  Erie  R.  R.,  35 
O.  C.  C.  87. 

The  Probate  Court  does  not  neces- 
sarily have  any  jurisdiction  over  the 
rents.      The    administrator    neither 


has  the  right  against  the  consent 
of  the  heirs,  nor  is  he  required  to 
accept  the  estate  or  collect  the  rents 
therefrom.  He  may  receive  the  in- 
come of  the  real  estate  by  the  re- 
quest of  the  heirs,  or  with  their 
acquiescence.  He  would  not  be  re- 
garded as  a  trespasser  in  so  doing, 
unless  done  in  opposition  to  their 
interests,  or  in  defiance  of  their 
wishes.  It  is  often  convenient,  and 
sometimes  of  decided  advantage  for 
him  to  do  so;  as  where  the  heirs 
are  minors  without  guardians;  or 
are  abroad,  or  unacquainted  with 
the  management  of  affairs  and  where 
the  administrator  may  be  himself 
an  heir,  or  have  intimate  business 
or  family  relations  with  the  estate, 
and  in  other  cases.  In  many  cases, 
there  is  an  understanding  or  agree- 
ment, that  the  administrator  shall 
take  the  rents,  and  account  for  them 
as  assets  for  the  benefit  of  the  es- 
tate, where  such  a  course  may  save 
a  sale  of  the  real  estate  for  debts,  or 
where  the  heirs  get  the  advantage  of 
them  in  the  general  distribution.  In 
such  case  the  administrator  would 
account  in  the  Probate  Court  for 
such  rents  with  the  general  assets 
according  to  such  agreement,  but 
not  necessarily  by  force  of  any  re- 


§  372  ASSETS  GENERALLY  306 

To  this  general  rule  there  may   be  some  exceptions  as  re- 
ferred to  in  the  previous  section.     Likewise  when  the  rent  has 
been  paid  in  advance  for  a  tenn.     Rent  that  is  payable  in  ad- 
vance accrues  at  the  time  specified  for  its  payment ;  and  on  the 
death  of  the  lessor  after  that  time,  within  the  period  for  which 
the  rent   is   reserved,    it   passes   to   tlie   administrator.^^     Rent 
accrues  at  the  time  it  is  earned  and  the  mere  fact  that  it  is 
payable  in  the  future  -udll  not  give  it  to  the  heir.^-     If  the 
term   for  which  the  rent  was  to  be  paid   is  passed,    and   the 
rent  is  unpaid,  it  belongs  to  the  administrator.      If  the  term 
is  not  passed,  and  the  rent  remains  unpaid,  it  belongs  to  the 
heir.      If  the  rent  for  the  term  has  been  paid  in  advance  and 
the  owner  dies  during  the  term,  the  money  so  collected  Avould 
belong  to  the  administrator.     A  tenant  for  life  cannot  lease  the 
premises  for  a  longer  period  than  until  his  death,  unless  it 
might  be  in  the  case  of  farm  lands  under  and  by  virtue  of  the 
provisions  of  sees.  10642  and  10643,  G.  C.  (§§  369  and  370).    If 
the  o\\Tier  rents  a  piece  of  property  and  receives  therefore  a 
note,  such  note,  although  it  might  not  be  due  until  after  the 
death  of  the  owner,  passes  to  the  administrator. 

^Vhere  the  will  directs  the  sale  of  land  by  the  executors  after 
a  period  named,  it  effects  a  conversion  from  that  time  and  the 
executors  are  thereafter  entitled  to  the  rents. ^^  But  before 
execution  of  the  power,  they  have  no  authority  to  collect  the 
rents  and  profits ;  if  they  do  so  collect,  they  are  accountable 
therefor,  in  the  interest  of  the  beneficiaries,  and  the  insertion 

quirements  of  the  statute.     Such  we  Griswold  vs.  Chandler,  5  X.  H.  492 ; 

believe   to   be   a   somewhat   common  Jones'  Appeal,  3  Grant    (Pa.)    250; 

practice.  Conger  vs.  Atwood,  LS  Ohio  St.  134. 

Peters,  J.,  in  Kimball  vs.  Sumner,  si  n   Am.  &  Eng.   Ency.   of  Law 

62  Me.  305,  310.  841,    2nd-ed;    Matter   of   Weeks,   5 

See  also  Stearns  vs.  Stearns,  1  Dem.  (X.  Y.)  194;  Miller  vs.  Craw- 
Pick.   (Mass.)    157.  ford.   26   Abb.   X\   Cas.    (X.   Y.    Su- 

Shaw,  C.  J.,  in  Wilson  vs.  Shearer,  prenie     Court)      376,     disapproving 

9  Met.    (Mass.)    504;    Xewcomb  vs.  Matter  of  Eddy.  10  Abb.  X.  Cas.  (N. 

Stebbins,  9  Met.    (Mass.)    540;   Pal-  Y.  Supreme  Ct.)   396. 

mer   vs.    Palmer,    13   Gray    (Mass.)  52  Xoble  vs.  Tyler.  61  O.  S.  432. 

326;    Gibson    vs.    Farley,    16   Mass.  ss  Shumway  vs.   Harmon,   4   Hun 

280;  Almy  vs.  Crapo,  100  Mass.  221,  411. 

218;   Taylor,  Landl.  &  Ten.   §   390;  *§  3G9,  §370. 


I 


307 


RENTS     GENERALLY 


§372 


of  the  items  in  their  account  is  properly  made/*  The  rent 
is  due  at  midnight  of  the  last  day  of  the  term,  unless  other- 
wise fixed  by  the  lease. ^^  The  rent  of  the  lands  of  an  insolvent 
intestate  accruing  between  the  death  of  the  intestate  and  a  sale 
of  the  lands  for  the  payment  of  the  debts  by  an  administrator, 
belong  to  the  heir  and  not  to  the  administrator.^® 

The  administrator  has  no  right  to  collect  the  rent  of  the 
mansion  house,  and  if  he  does  collect  the  same,  he  is  liable  to  the 
widow  for  the  amount  so  collected.'^^  Where  the  administrator 
has  taken  possession  of  real  estate  other  than  has  been  set  aside 
for  the  payment  of  debts,  collects  the  rents  and  accounts  for 
them  and  applies  them  to  discharge  of  the  debts  due  from  the 
estate,  he  is  entitled  to  be  credited  for  money  paid  for  taxes 
and  repairs.^^  Likewise  where  an  administrator  by  the  advice 
of  a  family  and  infant  heir  receives  rents  from  the  real  estate 
and  applies  them  in  the  payment  of  debts  of  the  ancestor's 
estate  instead  of  selling  lands  for  that  purpose  and  the  ar- 
rangement is  beneficial  to  the  heir,  the  heir's  administrator 


54  Matter    of    Boyd,    4    Redf.    154. 
A  general  devise  to  executors  to 

sell  and  distribute,  in  a  specified 
way,  the  proceeds  of  real  estate,  does 
not  convert  it  into  personalty,  so  as 
to  make  them  accountable  for  such 
as  has  not  been  sold,  as  personalty, 
upon  their  final  accounting,  and,  if 
a  sale  is  not  made  within  a  proper 
time,  the  remedy  is  by  application 
to  the  Court  to  compel  them.  Mat- 
ter of  Hunter,  3  Redf.  175. 

55  Although  the  time  of  sunset  is 
the  time  appointed  by  law  to  demand 
rent,  to  take  advantage  of  a  condi- 
tion of  re-entry,  or  to  tender  it  to 
save  a  forfeiture,  yet  the  rent  is  not 
due  till  midnight  of  the  rent-day. 
If  the  lessor  dies  after  sunset,  and 
before  midnight,  the  rent  belongs  to 
the  heir ;  for,  the  lessor  dying  before 
it  was  completely  due,  the  personal 
representative  can  take  no  title  to 
it.     If,  however,  the  tenant  had  vol- 


untarily paid  the  rent  on  the  rent- 
day,  and  then  after  it  was  paid,  and 
before  midnight,  the  lessor  had  died, 
such  payment  would  be  a  good  sat- 
isfaction against  the  heir  or  re- 
mainderman, and  the  executor  would 
not  be  liable  to  refund  to  him. 
Wms.  Exrs.   (7th  Eng.  ed.)  823. 

Lord  Kenyon's  judgment  in  Left- 
ley  vs.  Mills,  4  Term  Reps.  (Eng.) 
170. 

Blackstone,  J.,  in  Cutting  vs.  Der- 
by, 2  W.  Bl.  (Eng.)  1075;  Clun's 
Case,  10  Coke  127 ;  Duppa  vs.  Mayo, 
I  Saund.  (Eng.)  275,  note  17; 
Norris  vs.  Harrison,  2  Madd.  (Eng.) 
268;  Rockingham  vs.  Penrice,  1  P. 
Wms.  177  s.  c;  2  Salk.  (Eng.)  578. 

56  0verturf  vs.  Dugan,  29  0.  S. 
230. 

57  Conger  vs.  Atwood,  28  O.  S.  134 
(§341). 

58  /n  re  Turpin's  Estate,  7  N.  P. 
569. 


§  373  ASSETS   GENERALLY  308 

cannot  afterward  recover  such  rents  from  the  administrator 
of  the  ancestor,  ahhough  the  arrangement  has  the  effect  to 
change  the  distribution  of  the  infant's  estate  to  the  extent  of 
the  rents  so  applied.^"  If  an  administrator  receives  rents 
which  he  is  not  entitled  to  and  receives  that  which  properly 
belong  to  the  heirs,  he  may  be  required  to  account  for  the 
same.®°  At  common  law,  rent  was  not  portionable.^^  Some 
States  as  well  as  England  have  statutes  in  relation  to  the  appor- 
tionment of  rents,  but  none  exists  in  Ohio.  Whether  under 
certain  circumstances  a  Court  of  Equity  might,  like  an  English 
court  in  the  case  of  an  annuity  apportion  the  rent,  is  a  new 
question  in  Ohio.®' 

§  373.     Leases  or  chattels,  real. 

The  estate  of  a  deceased  person  may  occupy  either  the  posi- 
tion of  lessor  or  lessee  of  certain  real  estate.  When  the  de- 
ceased's estate  occupies  the  position  of  lessor,  then  the  duty 
of  the  •  administrator  in  reference  thereto,  would  be  for  the 
collection  of  the  rents  due  therefrom.  This  has  been  spoken  of 
in  the  preceding  section.  If  the  deceased  was  the  lessee,  then 
such  a  lease  would  become  assets  in  the  hands  of  the  adminis- 
trator. Ordinary  leases  are  considered  when  speaking  of  the 
different  kinds  of  property   as  chattels   real.      It  is  generally 

59  White  vs.  Turpin,  16  O.  S.  270.       could  not  be  recovered  either  in  law 

60  Campbell   vs.   McCormick.    1    C.       or  equity. 

C.  504;   1  C.  D.  281.  Jenner    vs.    Morgan,    1    P.    Wms. 

61  Noble  vs.  Tyler,  61    0.   S.  432;        (Eng.)    392;   Hay  vs.  Palmer,  2  P. 
Van  Hayes  vs.  West,  3  C.  C.  66;  2       Wms.    (Eng.)    502;   3  Kent  471. 

C.  D.  38.  See  also  Cutter  vs.  Powell,  6  T. 
At  common  law  rent  could  not  be  R.  (Eng.)  320;  Stillwell  vs.  Dough- 
apportioned  with  respect  to  time.  ty,  3  Bradf.  (N.  Y. )  359;  Marshall 
Hence,  if  a  tenant  for  life  made  a  vs.  Moseley,  21  X.  Y.  280. 
lease  for  years,  reserving  rent,  and  627  Am.  &  Eng.  Ency  of  Law  280. 
died  between  two  rent-days,  the  ac-  See  §  1393,  Gdns. 
crued  rent  was  lost,  both  to  the  ex-  Rents  of  lands  occurring  after  an 
ecutor  and  the  remainderman,  or  assignment,  as  between  general  cred- 
reversioner,  however  great  the  frac-  itor,  and  a  mortgage  which  pledges 
tional  portion  of  the  year  might  be  such  rent,  etc..  should  be  applied  on 
since  the  last  day  of  payment,  and  the      mortgage.        Hutchinson      vs. 

Straub,  45  Bull.  390. 


309  LEASES CHATTEL    AND    REAL  §  o73 

considered  to  be  an  interest  in  real  estate  and  less  than  a  free- 
hold.^^ 

In  the  absence  of  statutory  provisions,  no  matter  what  would 
be  the  length  of  time,  were  it  for  one  year  or  a  thousand  years, 
it  would  be  a  chattel  real  and  become  assets  in  the  hands  of  the 
administrator.  In  Ohio,  however,  permanent  leasehold  estates 
renewal  forever,  shall  be  subject  to  the  same  law  of  descent  as 
estates  in  fee/'* 

A  lease  made  to  a  man  "  and  to  his  heirs,"  or  "  and  to  his 
heirs  forever,"  etc.,  is  not  changed  in  its  character  by  introduc- 
ing these  words  of  inheritance,  but  remains  a  chattel  none  the 
less;  and  so  of  a  lease  from  year  to  year,  so  long  as  both  parties 
please  —  the  interest  of  the  tenant  being  personal  assets  after 
his  death.*'^ 

An  estate  granted  to  A.,  which  is  to  exist  during  the  lifetime 
of  B.,  and  then  cease,  has  not  a  definite  space  of  time  to  exist, 
measured  by  years,  months  or  days,  for  it  is  uncertain  how  long 
B.  may  live.  This  estate  of  A.  is  therefore  not  a  chattel,  but  a 
freehold  estate ;  and,  as  estates  of  freehold  go  to  the  heir  or 
devisee,  this  estate,  upon  the  death  of  A.,  goes  to  his  heirs  and 
not  his  administrator,  if  B.  be  still  alive.®*^ 

If  an  estate  be  limited  to  A.  and  his  assigns  during  his  life, 
it  is  a  freehold  estate ;  but  if  it  be  limited  to  A.  and  his  assigns 


63  Real  chattels  are  chattels  which  A  ground  rent  is  a  freehold  estate. 

are  annexed  to  or  concern   real  es-  McCarmon     vs.     Cooper,     1     N.     P. 

tate,   as  a  lease  for  years  of   land.  (N.S.)  154;    12  Cir.  D.  677;   afRrni- 

And  the  duration  of  the  lease  is  im-  ing  09  0.  S.  366. 

material,  whether  it  be  for  one  or  a  Bouv.   Law  Die,  Art.   "Chattels." 

thousand  years,  provided  there  be  a  o4  §  8507  G.  C,  §  942. 

certainty  about  it,   and  a  reversion  Perpetual  leasehold  estates  are  to 

or  remainder  in  some  other  person.  be  treated  as  estates  in  fee  simple, 

A  leas",  to  continue  until  a  certain  only    in    being   subject   to  judgment 

sum  of  money  can  be  raised  out  of  liens  and  execution  the  same  as  real 

the  rents  is  of  the  same  description ;  estate,    and    are    not    considered    as 

and  so  in  fact  will  be  found  to  be  estates    of    inheritance,    within    the 

any    other    interest    in    real    estate  meaning  of  the  dower  act. 

whose  duration  is  limited  to  a  time  '''■'  Murdock    vs.    Eadcliff,    7    Ohio 

certain  beyond  which  it  can  not  sub-  119. 

sist   .and   which   is,   therefore,   some-  «<>  Bank  vs.  Roosa,  13  Ohio  334, 
thing  less  than  a  freehold. 


§  373  ASSETS  GENERALLY  310 

for  one  hundred,  or  any  oiner  certain  number  of  years,  if  A. 
shall  so  long  live,  it  is  a  chattel.*'^ 

The  duties  of  an  administrator  in  reference  to  a  leasehold 
interest  is  very  well  set  forth  in  the  opinion  of  Judge  Spear  in 
Becker  vs.  Walworth  (45  O.  S.  169),  which  is  as  follows: 

"  That  a  leasehold  interest  in  a  term  for  years  passes,  upon 
the  death  of  the  lessee,  to  the  personal  representative,  and  not 
to  the  heir,  and  that  such,  representative  thereby  becomes  an 
assignee  of  tlie  lease  by  operation  of  law,  is  elementary.  He 
may  dispose  of  the  unexpired  term  by  sale,  as  of  other  assets, 
and  by  assignment,  and  thus  avoid  personal  liability  for  rents 
coming  due,  though  the  estate  would  remain  liable  to  the  lessor 
upon  the  covenants  in  the  lease.  But  if  the  representative 
enters  into  possession  of  the  leased  premises,  he  thereby  incurs 
liability,  in  his  personal  character,  to  tlie  extent  of  profits  actual- 
ly received.  If  the  rent  be  of  less  value  than  the  profits  of  the 
land,  as  the  law  prima  facie  supposes,  so  much  of  the  profits 
as  suffice  to  make  up  the  rent  belongs  equitably  to  the  lessor, 
and  cannot  lawfully  be  otherwise  applied;  hence  the  personal 
liability  to  the  extent  stated.  It  may  be  charges  against  the 
representative  Avho  refuses  to  so  pay  over  that  he  owes  and  un-- 
lawfully  detains.  So  that,  while  his  personal  liability  does  not 
exceed  what  the  property  yields,  nevertheless  the  rents  re- 
ceived by  him,  being  treated  not  so  much  as  assets  as  profits 
of  the  land,  the  law  specifically  appropriates  them  to  the  benefit 
of  the  landlord  to  an  amount  equal  to  the  rents  reserved  in  the 

6T  Murdock    vs.    RadclifT,    7    Ohio  an    estate    in    lands   as    is    conveyed 

119.  by  livery  of  seizin,  or  in  tenements 

"  An  estate  of  freehold,  liherum  of  any  incorporeal  nature,  by  what 
tenementum,  frank-tenement,  is  de-  is  equivalent  thereto.  As.  therefore, 
fined  by  Britton  to  be  '  the  posses-  estates  of  inheritance  and  estates 
sion  of  the  soil  by  freeman.'  And  for  life  could  not  by  common  law  be 
St.  Germyn  tells  us  that  '  the  pos-  conveyed  without  livery  of  seizin, 
session  of  the  land  is  called  in  the  these  are  properly  estates  of  free- 
law  of  England  the  frank-tenement  hold;  and  as  no  other  estates  are 
or  freehold.'  Such  estate,  therefore,  conveyed  with  the  same  solemnity, 
and  no  other,  as  requires  actual  pos-  therefore  no  others  are  properly 
session  of  the  land,  is  legally  speak-  freehold  estates." 
ing,  freehold."     Hence,  "  It  is  such  2  Bl.  Com.  104. 


311  ANNUITIES DIVIDENDS  §374 

lease.  The  representative  takes  the  lease  as  assignee  by  virtue 
of  his  office,  as  he  takes  other  chattel  interests  of  the  deceased. 
The  term  is  assets  in  his  hands,  and  he  is  none  the  less  an  as- 
signee because  the  liability  incurred  is  not  in  all  respects  as 
onerous  as  that  of  an  assignee  in  fact.  The  rule  is  not  a  hard 
one.  It  but  enjoins  good  faith,  and  a  proper  discharge  of 
duty."  '' 

As  such  a  lease  is  binding  on  the  estate  of  the  decedent,  it 
must  be  disposed  of  in  some  manner.  If  the  administrator 
continues  to  occupy  the  same,  he  must  pay  the  rent,  and  see 
that  it  is  fulfilled  according  to  the  contract  made  with  the  de- 
cedent. The  estate  is  liable  for  this  rent,  whether  it  is  occu- 
pied or  not,  unless  released  by  the  owner.  Such  a  lease  should 
be  disposed  of  by  sale  or  otherwise,  as  will  be  to  the  best  in- 
terests of  the  estate.  If  it  is  sold  according  to  law  at  public 
sale  or  otherwise,  the  administrator  will  be  relieved  from  fur- 
ther personal  responsibilities.  No  rule  can  be  given  to  guide 
an  administrator  or  executor  in  such  a  case.  In  some  instances 
it  might  be  to  the  advantage  of  the  estate  to  retain  the  leasehold 
interest,  and  in  others  it  would  be  to  the  advantage  of  the 
estate  to  dispose  of  it  speedily.  The  safer  plan  would  be  to 
apply  to  the  Court  for  an  order  to  sell  the  same  where  the 
landlord  refuses  to  allow  a  surrender  of  the  lease. 

An  administrator  of  the  assignee  of  a  perpetual  leasehold  is 
not  personally  liable  for  the  rent  and  taxes  to  the  owner  of  the 
fee  covenanted  in  the  lease."^ 

§  374.     Annuities.     Dividends. 

An  annuity  is  defined  to  be  a  yearly  payment  of  a  certain 
sum  of  money  granted  to  another  for  life,  or  for  a  term  of 
years,   and  when   charged  upon   the  real  estate  it  is  called   a 

68  Citing    Taylor's    Landlord    and  on  Pleadings  383 ;   Howard  vs.  Hei- 

Tenant,   §  434,  461;    3  Williams  on  nersehit,   16  Hun  177. 
Exr's,  1854;  Suttliff  vs.  Atwood,  15  69  Gausen  vs.  Moosmann,  5  N.  P. 

O.    S.    186;    Jevens   vs.    Harridge,    1  254. 

Saundprs   1;   Tremeere  vs.  Morison,  See  §  799,  Sale  of  real  estate.     $ 

1  Bingham  New  Cases  89;   1  Chitty  801,  Mortgage,  etc. 


§375 


ASSETS  GENERALLY 


312 


rent  charge.  As  personal  property,  an  annuity  passes  to  the 
personal  representative ;  but  if  granted  with  words  of  inheri- 
tance, it  is  descendable  and  goes  to  the  heir  to  the  exclusion  of 
the  executor.^'' 

Shares  of  stock  in  a  corporation,  owned  by  the  decedent  at 
the  time  of  his  death,  are  personal  property  and  pass  to  the 
administrator.'^  And  the  same  is  true  of  dividends  declared 
after,  but  for  a  period  that  expired  before,  the  decedent's  death, 
eveoi  though  the  stock  be  given  by  will  to  a  legatee.^^ 

§  375.     Copyrights  and  patents. 

All  copyrights  pass  to  the  administrator.^^  The  adminis- 
trator has  also  the  right  to  all  patents,  and  may  apply  for  and 
take  out  a  patent  for  the  benefit  of  the  estate.^*     So  he  may 


70  Woerner  on  Admin.  632. 

''I  Citizens'  street  K.  W.  Co.  vs. 
Robbins,  128  Ind.  441);  W  eyer  vs. 
Second  National  iianlv,  57  Ind.  198. 

How  sold,  see   §  572. 

72  Jolinson  vs.  Bridgewater  Mfg. 
Co.,  14  Gray  274;  Wells  vs.  Cowles, 
4  Conn.  182. 

An  annuity  may  be  assigned  the 
same  as  other  personal  property. 
Trust  Co.  vs.  Kirby,  17  Dec.  194; 
40  L.  R.  304. 

See  Wilberding  vs.  Miller,  90  0. 
S.  28,  where  the  matter  is  very  fully 
discussed  as  to  whether  the  surplus 
accumulated  from  earnings  belongs 
to  the  life  tenant  or  remainderman. 
Also  see  Worthington,  Trustee,  vs. 
McAlpin,  IS  X.  P.  436. 

See   §  1289,  as  to  Dividends. 

73  Wilson  vs.  Rousseau.  4  How. 
646;  Dudley  vs.  Mayhew,  3  N.  J.  9. 

The  right  of  an  author  to  the  ex- 
clusive sale  or  use  of  his  intellectual 
productions,  including  books,  maps, 
charts,  pamphlets,  magazines,  en- 
gravings, prints,  dramatic  and  mvisi- 
cal  compositions,  paintings,  draw- 
ings, photographs,  sculpture,  models, 
busts,  designs,  and  the  right  of  in- 
ventors, originating  any  new  and 
useful  art,  machine,  manufacture,  or 


composition  of  matter,  or  any  new 
and  useful  improvement  therein,  are 
species  of  property  uiiKnowu  at  com- 
mon law,  and  of  purely  statutory 
origin,  both  in  England  and  America. 
For  the  encouragement  and  de- 
velopment of  learning  and  literature, 
and  to  promote  the  progress  of  use- 
ful arts  and  sciences,  Congress  has 
secured  to  the  autiior  or  inventor 
the  absolute  and  indefeasible  inter- 
est and  property  in  his  literary 
production,  or  the  subject  of  his 
invention,  for  a  specified  time, 
which,  upon  certain  conditions,  may 
be  extended  for  a  further  term  of 
years.  During  tliis  period  it  has 
impressed  upon  these  productions 
all  the  qualities  and  characteristics 
of  property,  has  enabled  the  author 
or  inventor  to  hold  and  deal  with 
the  same  as  property  of  any  other 
description,  and  on  his  death  it 
passes  with  the  rest  of  his  personal 
estate,  to  his  lesal  representatives, 
becoming  part  of  his  assets. 

Citing  Wilson  vs.  Rousseau,  4 
How.  (U.  S.)  646,  674;  Dudley  vs. 
:Nrayhew.  3  X.  Y,  9. 

74  Stimpson  vs.  Rogers,  4  Blatchf. 
333. 


313  PATENTS PENSIONS  COPYRIGHTS         §  376 

take  out  an  extension  of  either  a  patent  or  a  copyright.^'*     He 
may  sell  it.''^ 

For  all  infringements  of  a  patent  or  a  copyright,  the  admin- 
istrator may  sue,  even  joining  with  the  holder  of  a  moiety 
thereof  in  anotlier  State,  and  without  taking  out  letters  of  ad- 
ministration in  such  StateJ^  But  in  the  case  of  trade-marks, 
the  heir  and  not  the  administrator  seems  to  be  entitled  to 
them/* 

§  376.     Pension  money. 

By  the  pension  laws  of  Congress  and  United  States  statutes 
(sec.  4718),  an  accrued  pension  is  declared  not  to  be  considered 
as  a  part  of  the  assets  of  the  pensioner's  estate,  nor  liable  to  be 
applied  to  the  payment  of  his  debts,  but  shall  inure  to  the  sole 
benefit  of  the  widow  and  children.  This  law  of  exemption  is 
said  to  be  founded  on  just  views  of  human  generosity,  and 
should  be  liberally  construed  in  favor  of  the  debtor  and  his 
family.^**  Hence  pension  moneys  received  by  a  widow,  and 
passing  unexchanged  for  other  property  to  her  executor,  are 
not  liable  for  her  debts  where  she  leaves  children  under  sixteen 
years  of  age.**'  But,  otlierwise,  where  the  pensioner  received 
his  pension  in  his  lifetime,  and  deposited  it  in  a  bank,  taking 
a  certificate  of  deposit,  which  he  had  at  the  time  of  his  death, 
the  money  collected  on  such  certificate  by  the  executor  is  assets 
applicable  to  the  payment  of  debts.*^ 

75  Washburn  vs.  Gould,  3  Story  79  Wilcox  vs.  Hawley,  31  N.  Y. 
122;  Brooks  vs.  Bicknell,  3  McLean  648;  Shaw  vs.  Davis,  55  Barb.  389; 
250,  432.  Lockwood  vs.  Younglove,  27  Id.  505; 

76  Wintermute  vs.  Reding,  1  Fish-  Van  Buren  vs.  Loper,  29  Id.  388. 
er  Pat.  Cases  239;  Brooks  vs.  Bick-  so  Hodge  vs.  Leaning,  2  Dem.  553. 
nell.  supra.;  Pitts  vs.  Jameson,   15  si  Beecher  vs.  Barber,  6  Dem,  129. 
Barb.  310.  In   the   case   of   Fulwiler   vs.    In- 

77  Whittemore  vs.  Cutter,  1  Gall.  field's  Guardian  3  C.  D.  338;  6  C.  C. 
429;  Smith  vs.  Mercer,  3  Pa.  L.  36;  affirmed,  32  Bull.  374,  it 
Jour.  Eep.  529;  Kirk  vs.  Du  Bois,  is  held  that  pension  money  is  not 
28  Fed.   Rep.  460.  exempt  from  liability   for  the  pen- 

78Kidd    vs.    Johnson,    100    U.    S.  sioner's  debts  after  it  has  come  into 

617,    620;     Leather    Cloth    Co.    vs.  his   hands.     Pension   that  a   widov? 

American  Co.,  11  H.  L.  523:  Pratt's  receives  on  account  of  her  child,  is 

Appeal,   117   Pa.   St.   401;    Woerner  hers,  and  she  is  not  required,  after 

on  Admin.  634.  such  child  has  attained  its  majority 


§  377  ASSETS   GENERALLY  314 

§  377.     Trust   property. 

If  there  was  any  specific  personal  property  in  the  hands  of 
a  decedent  belonging  to  others,  which  he  held  in  trust  or  other- 
wise, and  it  can  be  clearly  distinguished  from  the  decedent's 
own  property,  it  is  not  assets  in  tlie  hands  of  his  personal  rep- 
resentative; but  if  such  property  has  no  earmarks  and  is  not 
distinguishable  from  the  mass  of  the  decedent's  own  property, 
the  person  owning  it  must  come  in  as  a  general  creditor  of  the 
estate,  and  the  property  itself  is  assets  in  the  hands  of  tbe  ex- 
ecutor or  administrator,^^ 

In  this  category  are  moneys  or  securities  received  by  a  pub- 
lic officer  in  his  official  capacity,  or  by  an  agent  or  attorney,  and 
n'ot  mingled  with  his  individual  funds. *^ 

But  money  held  iu  a  fiduciary  capacity  has  been  decided  not 
to  lose  its  distinctive  character  merely  because  it  is  so  inter- 
mingled with  other  funds  that  the  particular  coins  or  bills 
cannot  be  identified.  It  is  enough  if  the  fund  can  be  substan- 
tially followed,  and  the  recent  tendency  seems  not  to  require 
the  same  strictness  of  proof  as  formerly.^* 

to  pay  over  the  amount  so  received.  to  an   officer   in  his   own  name  for 

It  would  therefore  be  assets  in  the  the  purpose  of  satisfying  an  execu- 

hands  of  her  executor.     See  Creek-  tion  in  the  hands  of  the  officer,  be- 

baum  vs.  Sohner,   1   N.   P.  34.     See  long  to  the  execution  creditor,  and 

article  on  pensions,  18  Am.  &  Eng.  do  not  go  to  the- executor  or  admin- 

Ency.  of  Law,  294.  istrator  of  the  officer  as  assets  of  the 

82  Trecothick  vs.  Austin,  4  Mason  estate.  Child  vs.  Jordan,  106  Mass. 
(U.  S.)   16;  U.  S.  vs.  Cutts,  1  Sumn.  321. 

(U.  S.)    133;   25   Fed.  Cas.  No.   14,  S4  Wocrner  on   Admin.   646. 

912.  Where  a  testator,  at  the  time  of 

83  Moneys  received  by  a  public  of-  his  death,  held  certain  bonds  in  {>er- 
ficer  in  his  official  capacity  are  not  sonal  trust  for  the  sole  benefit  of 
assets  in  the  hands  of  his  adminis-  others  and  was  in  no  default  as  to 
trator,  but  are  trust  funds  for  his  the  duties  of  his  trust;  and  said 
successor  in  office,  if  they  have  been  bo.nds  were  afterward  collected  by 
kept  separate  as  an  official  fund,  or  his  executor,  with  the  knowledge 
can  be  traced  and  identified  as  such.  and  apparent  acquiescence  of  the 
People  vs.  Houghtaling,  7  Cal.  348 ;  beneficiaries,  and  the  proceeds  were 
State  vs.  Corey,  4  West  L.  Month.  not  paid  to  the  parties  entitled 
(0.)  .563;  2  Ohio  Dec.  (Reprint)  thereto  under  the  triist.  TieM.-  That 
669.  the  trust  funds  were  not  assets  of 

And  the  proceeds  of  a  note  given      the  estate  of  the  testator;  and  there- 


315  TRUST    PROPERTY  §  378 

If  notes  be  delivered  to  an  executor  to  ind-emnify  the  estate 
against  a  liability  where  the  testator  was  a  surety,  such  notes 
and  tlie  money  collected  on  them  are  not  the  property  of  the 
estate,  and  the  estate  is  not  liable  for  the  misconduct  of  such 
executor  in  respect  to  such  notes  and  money.  Under  such  cir- 
stances  the  executor  is  a  trustee  for  the  person  delivering  the 
notes,  and  he  alone  is  responsible  for  a  faithful  application  of 
the  money  collected. ^^ 

It  is  no  part  of  the  duty  of  executors,  acting  for  the  benefit 
of  creditors  of  the  estate,  to  account  to  the  Court  for  trust 
funds  tliat,  when  collected,  should  be  distributed  to  heirs  and 
devisees,  and  not  paid  as  assets  of  the  estate  to  creditors  t)re- 
senting  claims, ^*^ 

§  378.     Money  on  deposit. 

Deposits  in  banks  and  in  savings  bauks  pass  to  the  adminis- 
trator, and  he  is  authorized  to  drav/  out  the  same.^^ 

Money  in  hands  of  tlie  decedent  belonging  to  another,  but 
which  has  no  eannarks  and  is  not  distinguishable  from  the 
mass  of  his  own  property,  is  assets  in  tlie  hands  of  the  admin- 
istrator.®^ But  it  is  otherwise  where  such  money  has  been  left 
separate  and  distinct.^'' 

Money  received  from  the  government  by  the  administrator 
constitutes  assets  of  the  estate.""  Post  office  money  orders  un- 
delivered are  assets  in  the  hands  of  the  administrator.'*"^ 

fore,  an  action  could  not  be  main-  90  Grant  vs.  Bodwell,  78  Me.  460; 

tained    by   one    of   tlie   beneficiaries  Rogers   vs.    Hosack,    18   Wend.   319. 

against   tlie    sureties    in    the    execu-  ^oa  JNIcKelvey  vs.  McKelvey,  33  0. 

tor's    bond,   for   a   misappropriation  C.  C.  117. 

of     the     trust     funds     so     collected.  Money   or   property   found   on   de- 

Quinby  vs.  Walker,  14  0.  S.  193.  ceased   persons:      §S'2862   and   2863 

85  Arbuckle  vs.  Tracy,   15  O.  432.  G.  C,  provides  in  substance,  that  if 

86  In  re  Estate  of  Gallagher,  5  N.  any  property  is  found  upon  a  de- 
P.  518.  ceased    person    the    Probate    Court 

87  Schluter  vs.  Bowery,  etc.,  Bank,  .siiall  make  an  order  for  its  preserva- 
1  N.  Y.  Supp.  65.5.  tion  until  further  identification,  and 

88  Trccothick  vs.  Austin,  4  Mason  money  found  shall  be  applied  to 
16;  Matter  of  O'Brien,  45  Hun  284;  the  payment  of  burial  expenses,  etc., 
Attorney-General  vs.  Bigham,  142  and  tlie  remainder  turned  in  the 
Mass.  248.  public   treasury,   but   that  the   pro- 

89  Fowler  vs.  Rice,  31  Ind.  258.  visions  of  this  section  do  not  inter- 


J 


§  379  ASSETS   GENERALLY  316 

§  379.     Fire  insurance  money. 

Fire  insurance  policies  on  which  moneys  had  become  due 
by  the  loss  before  the  decedent's  death,  are  assets.  If  the  loss 
occurs  after  the  death  of  the  insured,  the  insui-ance  money, 
while  perhaps  collectible  by  the  administrator,  is  to  be  distrib- 
uted as  real  estate,  and  the  widow  is  entitled  to  dower  in 
such  money  in  the  same  manner  as  she  would  have  been  in  the 
real  estate."^ 

Whether  or  not  the  administrator  is  entitled  to  collect  such. 
insurance  in  the  absence  of  a  creditor's  or  mortgagee's  interest 
in  the  real  estate,  is  questionable.  As  the  real  estate  descends 
to  the  heir,  whatever  losses  result  to  it  after  the  death  of  the 
ancestor  would  be  collectible  by  the  heir.®" 

If  the  loss  occurs  before  the  death  of  the  assurer,  but  is  not 
paid,  the  better  opinion  seems  to  be  that  it  is  assets  in  the 
hands  of  the  administrator. 

§  380.    Life  insurance  money. 

"Wliere  the  decedent  had  an  insurance  policy  upon  his  life, 
payable  to  his  executor  or  administrator,  the  fund  is  of  course 
assets. ^^  So  is  an  interest  in  a  policy  in  the  life  of  another.^* 
But  if  the  policy  is  made  payable  to  a  third  person,  as  to  a 

fere  with  the  rights  of  an  adminis-  mortgagee:  and  if  paid  to  the  mort- 

trator    or    executor    to    administer  gagor  he  holds  the  same  in  trust  for 

thereon  as  upon  other  property.    See  such    mortgagee,   and    may   be   com- 

§  718.  pelled  to  pay  the  same  over  to  him. 

91  Flemming  vs.  Jordan,  28  Bull.  James  vs.  West.  47  Bull.  750. 

332.  93  Webb   vs.   Roetinger,    12    C.    C. 

See  §  1292,  as  to  trustee's  insur-  730,   10  Dec.   12;   Affirmed  37   Bull, 

ance  and  life  tenure.  56,  4  C.  D.  270. 

92  In  the  case  of  Flemming  vs.  94  .Johnson  vs.  Smith,  25  Hun  171. 
Jordan,  supra,  the  administrator  Policies  of  insurance  which  are 
had  the  property  insured  for  the  the  property  of  the  deceased,  are 
benefit  of  the  estate.  Here  it  was  part  of  her  estate  whether  men- 
verv  properlv  held  that  he  had  a  tioned  in  her  will  or  not.  Plant  vs. 
right  to  collect  the  insurance,  as  Mutual  Life,  4  C.  C.  fN.S.')  94:  16 
the  insurance  was  made  to  protect  Cir.  D.  400:  26  0.  C.  C.  409:  af- 
mortgagee's  interests  in  the  real  es-  firmed,  65  0.  S.  586.  Where  a  life 
tate.  insurance  policy  on  the  life  of  the 

Winman    vs.    Winman,   26   N.   Y.  husband  is  payable  to  the  wife,  her 

253:    Culberson   vs.    Cox,   29   Minn.  executors   or  assisrns,   she  has   such 

300.  interest  therein  as  she  can  pass  bv 

When   insured   property   is   mort-  her  will,  and  a  devise  to  him  will 

gasred.    and    a    loss    bv    fire    occurs,  pass   the   proceeds   to  him.      Teepon 

the  insurance  monev,  beinsT  the  pro-  vs.  Pchlacter.  18  N.  P.  33:  Schlacter 

ceeds  of  the  property,  belongs  to  the  vs.  Teepon,  23  O.  C.  C.    (N.S.)   — . 


317 


LIFE   INSURANCE    MONEY 


§3S0 


widow  or  children,  the  proceeds  belong  to  the  person  or  persons 
so  named,  and  are  not  assets  of  the  estate  of  the  insured.^" 

Where  a  policy  is  made  payable  to  his  widow  or  children,  it 
is  exempted  from  all  claims  of  his  creditors  and  goes  direct  to 
the  widow  or  children.^" 

If  the  assured  takes  out  a  policy  upon  which  the  annual  pre- 
mium is  over  $150,  and  he  dies  insolvent,  the  administrator  is 
entitled  to  all  of  the  insurance  in  excess  of  what  $150  carried." 

If  the  beneficiary  died  before  the  person  whose  life  is  in- 
sured, the  policy  goes  to  the  assured  and  becomes  assets  in  the 
hands  of  the  administrator,^^ 

The  wife  may  insure  the  life  of  the  husband,  and  if  surviv- 
ing, it  shall  be  payable  to  her  free  from  the  claim  of  his  cred- 
itors, etc.^'* 


95  11  Am.  &  Eng.  Ency.  of  Law 
846,  2d  ed. 

96  Who  may  be  beneficiary.  §  9393. 
Any  person  may  affect  an  insurance 
on  his  life,  for  any  definite  period 
of  time,  or  for  the  term  of  his 
natural  life,  to  inure  to  the  sole 
benefit  of  his  wife  and  children,  or 
of  either  or  other  relative  or  rela- 
tives dependent  upon  such  person  or 
any  creditor  or  creditors  as  he  may 
cause  to  be  appointed  and  provided 
in  the  policy. 

Exemption  from  claims  of  credi- 
tors. §  9394.  All  policies  of  life 
insurance  upon  the  life  of  any  per- 
son, which  may  hereafter  mature, 
and  which  have  been  or  shall  be 
taken  out  for  tlie  benefit  of,  or  bona 
fide  assifjned  t-o  the  Avife  or  children, 
or  any  relative  dependent  upon  such 
person,  or  any  creditor,  shall  be  held 
subject  to  a  chanse  of  beneficiary 
if  desired,  for  the  benefit  of  such 
wife  or  children,  or  other  relative 
or  creditor,  free  and  clear  from  all 
claims  of  the  creditors  of  such  in- 
sured person :  and  the  proceeds  or 
avails  of  all  such  life  insurance  shall 
be  exempt  from  all  liabilities  from 
any  debt,  or  debts,  of  such  insured 
person. 

Premiums  paid  in  fraud  of  credi- 
tor. §  939.').  Subject  to  the  stat- 
ute of  limitations,  the  amount  of 
any  premiums  for  insurance  for  the 
benefit  of  wife  and  cliildron,  or  of 
either,  or  other  relatives  dependent 
upon  aiich  person  or  any  creditor, 
paid    in    fraud    of    creditors,    with 


interest  thereon,  shall  inure  to  their 
benefit  from  the  proceeds  of  the 
policy.      [103   v.   558.] 

9^38  Bull.  239;  Trane  vs.  St.  of 
Ohio. 

98  Ryan  vs.  Rothweiler,  50  0.  S. 
595;  Frank  vs.  Bauman,  35  Bull. 
59. 

99  §§9397-8-9  G.  C. 

100  Cross  vs.  Armstrong,  44  0.  S. 
613. 

Insurance  was  procured  by  a  hus- 
band on  his  own  life  for  his  wife's 
benefit,  the  annual  premium  being 
$630,  and  the  statute  in  force  pro- 
vided that  insurance  for  wife  or  chil- 
dren should  be  exempt  from  claims 
of  representatives  or  creditors,  pro- 
vided the  annual  premium  did  not 
exceed  $150,  and  if  in  excess  of  that 
only  such  proportion  as  $150  bears 
to  the  whole  annual  premium.  The 
husband  having  died,  and  it  being 
uncertain  whether  his  estate  is  in- 
solvent or  not:  Held,  that  the  ad- 
ministrator was  entitled,  out  of  the 
proceeds  of  the  insurance,  to  the 
amount  of  the  last  four  years'  pre- 
miums, with  interest — four  years 
beins?  the  period  of  the  statute  of 
limitation  in  cases  of  property  jriven 
in  fraud  of  creditors — and  the  bal- 
ance should  pro  to  the  widow.  U.  S. 
Life  Insurance  Co.  vs.  Eckert.  6  Rec. 
452. 

The  proceeds  of  life  insurance  pol- 
icies, taken  out  by  a  man  on  bis  own 
life,  also  for  the  benefit  of  his  wife 
and  three  children,  in  excess  of  the 
amount  protected  from  creditors  by 


§  381  ASSETS    GENERALLY  318 

If  suit  be  brought  by  any  creditor  in  relation  to  sucli  policy 
in  wliicli  the  administrator  or  executor  is  made  a  party,  it  must 
be  brought  in  the  county  in  which  the  administrator  is  ap- 
pointed/"° 

A  voluntary  transfer  by  an  insolvent  debtor  to  his  wife  and 
daughter  of  an  insurance  policy  on  his  own  life,  taken  out  by 
him  for  the  benefit  of  his  estate  before  incurring  debts,  is  void 
as  to  his  creditors,  and  is  not  protected  by  the  act  which  allows 
one  to  insure  his  life  for  the  benefit  of  his  wife  and  children 
free  from  the  claims  of  creditors.^-^ 

A  divorced  wife  is  entitled  to  proceeds  of  a  policy  of  insur- 
ance, she  having  been  named  as  beneficiary  and  subsequently 
divorced.^-- 

Where  each  of  two  partners  had  his  life  insured  for  the  bene- 
fit of  the  other,  and  assigned  the  policies  to  the  insurance  com- 
pany as  security'  for  a  partnership  loan,  but  not  as  a  condition 
of  such  loan,  and  one  dies,  the  proceeds  of  such  policy  will  go 
to  the  surviving  partner,  and  not  to  the  executrix  of  the 
deceased.^"^ 

§381.    Mutual  benefit  insurance. 
Moneys  received  on  a  certificate  of  membership  in  a  mutual 
benefit  association,  the  constitution  and  by-laws  of  which  pro- 
vide for  insurance  for  the  benefit  of  the  member's  family,  or 

act  of  1847,  §  737,  and  another  for  panics  or  beneficiary  associations  in 
the  benefit  of  liis  wife  and  four  favor  of  his  wife  and  children,  and 
children;  there  having  been  born  a  after  his  decease  an  action  is  brought 
later  born  child,  can  not  be  dis-  by  a  creditor  of  said  person  to  re- 
posed of  by  his  will;  but  the  earlier  cover  from  the  funds  the  amounts 
policy  goes  to  exhaust  the  statutory  allowed  creditors  under  §  9393  G.  C. 
exemption,  and  will,  to  that  extent,  and  §  11722  G.  C,  each  policy  must 
go  to  its  beneficiaries,  and  the  bal-  stand  and  be  considered  alone,  and 
ance  of  such  policy  and  the  proceeds  the  amounts  resulting  on  the  diff'er- 
of  the  latter  policy,  will  go  to  the  ent  policies  can  not  be  added  to- 
administrator  to  pay  debts,  costs  of  gether  in  determining  the  amounts 
administration  and  year's  allowance  that  may  belong  to  creditors  under 
to  widow,  the  balance  after  which  said  section.  1894.  Com.  Hinsch 
will  go  to  the  widow  and  the  four  vs.  d'l^tassy.  1  Dec.  372. 
children,  according  to  the  statute  of  A  life  insurance  policy  on  the  life 
descents.  Wagner  vs.  Karman,  7  of  one  leaving  a  widow  and  one  child 
Rec.  670.  which    was    payable    to    his    heirs, 

101  I.    Co.    Savings    Bank   vs.    Mc-  means  those  who  would  be  his  dis- 
Lean    (Mich.),  25  Bull.  235.  tributees  under  §S  4163.  6194.  R.  S., 

102  Com.  Insurance  Policy,  In  re  5  and  the  widow  and  child  divide  the 
Dec.  561.  fund  in  the  proportion  of  descent  of 

103  Com.  Dvas  vs.  O'Neil,  3  Dec.  the  estate  and  not  equally.     Young 
309:  2  N.  P.  '81.  M.  M.  L.  Assn.  vs.  Pollard,  2  C.  D. 

Where   a   person    procures   insur-       333 ;  3  C.  C.  577. 
ance  on  his  life  in  two  or  more  com- 


319 


MUTUAL    BENEFIT    IISrSURANCE 


§381 


for  such  persons  as  the  member  may  designate,  go  on  the  death 
of  the  member,  to  his  family,  or  the  person  designated  by  him, 
and  are  not  assets  subject  to  the  payment  of  his  debts/"* 

It  is  provided  by  statute  for  the  organization  of  mutual  asso- 
ciations;  ^°^  and  it  is.  held  under  such  statute  that  no  one  can 
be  a  beneficiary  unless  he  is  of  the  family  of  the  assured,  or 
may,  upon  his  death,  become  an  heir/""  Likewise  the  assured 
cannot  transfer  his  policy  to  anyone  but  a  member  of  his 
family/"' 

A  change  of  the  beneficiary  can  only  be  made  in  accordance 
with  the  mode  appointed  by  the  by-laws  of  the  association/"'^ 

'^  Legal  heirs,"  as  beneficiaries  in  a  policy  of  a  national 
accident  insurance  company,  issued  to  one  having  no  wife  and 
children,  means  next  of  kin  as  distributees  under  the  statute  of 
descents,  and  the  insurance  money  is  not  subject  to  the  claims 
of  the  creditors  of  the  assured/"'' 

Money  paid  to  an  employer  by  an  employers'  liability  insur- 


104  Worley  vs.  Northwestern  Ma- 
sonic Aid  Assoc,  10  Fed  Rep.  227 ; 
3  McCrary  (U.  S.)  53;  14  Cent.  L. 
J.  154;  11  Ins.  L.  J.  141;  16  West 
Jur.  85 ;  Kentucky  Masonic  Mut.  L. 
Ins.  Co.  vs.  Miller,  13  Bush  (Ky.) 
489;  Duvall  vs.  Goodson,  79  Ky. 
224;  Maryland  Mut.  Benev.  Soc.  vs. 
Clendenen,  44  Md.  429;  Catholic 
Mut.  Ben.  Assoc,  vs.  Priest,  46 
Mich.  429;  Catholic  Mut.  Ben.  As- 
soc, vs.  Firnane,  50  Mich.  83; 
Brown  vs.  Catholic  Mut.  Ben.  Assoc, 
33  Hun  (N.  Y.)  263;  Hellenberg 
vs.  District  No.  1,  !y4  N.  Y.  580; 
Matter  of  Wendell,  3  How.  Pr.  N.  S, 
(N.  Y.  Surrogate  Ct.)  68;  Brummer 
vs.  Cohn,  86  N.  Y.  11;  Matter  of 
Palmer,  3  Dem.  (N.  Y.)  216;  Mat- 
ter of  Brooks,  5  Dem.  (N.  Y.)  326; 
Greeno  vs.  Greeno,  23  Hun  (N.  Y.) 
478;  Hodge's  Appeal,  8  W.  N.  C. 
(Pa.)   209. 

lo"  §§9393-4-5-0   G.   C. 


106  Mutual  Aid  Association  vs. 
Gonser,   43   0.   S.    1. 

107  Odd  Fellow's  Assoc,  vs.  Die- 
bert,  2  C.  C.  462;  1  C.  D.  589. 

losCharch  vs.  Charch,  57  0.  S. 
561. 

P.  became  a  member  of  a  mu- 
tual life  association  and  received 
a  policy  which  on  his  death  entitled 
his  "  heirs  "  to  receive  a  certain  sum 
from  the  association.  He  died 
leaving  a  widow  and  one  child  sur- 
viving him.  Held:  That  his  wid- 
ow and  child  were  his  heirs  as  to 
said  sum  and  took  it  as  tenants  in 
common  and  in  the  proportions  fixed 
by  the  statute  of  descent  and  dis- 
tribution when  the  intestate  has 
died,  leaving  a  widow  and  a  child  or 
children.  Young  Men's  Mut.  Life 
Ass'n  vs.  Pollard,  3  C.  C.  577;  2  C. 
D.  333. 

■">"  Tn  re  Estate  of  Andress,  5  N. 
P.    253;    6    Dec    174. 


§  382  ASSETS  GENfiEALLY  320 

ance  company  on  a  policy  indemnifying  him  against  loss  by 
reason  of  injuries  to  employees,  is  not  assets  of  the  estate  of 
the  employee  on  account  of  whose  injury  payment  is  made.^^° 

§  382.     Goodwill  of  business. 

The  goodwill  of  a  decedent's  business  passes  as  an  asset  to  his 
representative,  and  on  his  appropriating  the  business  to  his 
own  use  he  will  be  chargeable  upon  his  accounting  with  the 
value  thereof,  but  the  right  to  use  testator's  name  is  not  an  asset 
for  which  a  personal  representative  is  accountable.^^^ 

§  383.     Property  conveyed  by  decedent  to  defraud  creditors. 

The  administrator  or  executor  has  no  authority  over  real  es- 
tate that  has  been  conveyed  with  the  intent  to  defraud  creditors, 
unless  it  is  necessary  to  sell  the  real  estate  of  the  deceased  in 
order  to  pay  debts.  Therefore  it  may  be  said  that  in  Ohio 
such  property  does  not  come  within  the  general  term  of  assets 
going  to  the  administrator.^^^ 

§  384.    Proceeds  of  real  estate. 

When  real  estate  is  sold  either  under  a  provision  of  the  will 
or  by  order  of  Court,  the  proceeds  of  such  sale  are  assets  in  the 

110  Hawkins   vs.   McCalla,  95   Ga.  §  416,   §  425. 

^  r-             ,       ,             ,   .                  ,  Without   attempting  an   accurate 

Where  the  deceased   is  a  member  .         ^.        ,  ^    .^.          .  ^,             j 

of  a  mutual  fire  insurance  company,  °^  exhaustive  definition  of  the  good 

the  administrator  should  collect  all  will   of   a  business   it  may   be  said 

the  assessments  due  at  the  time  of  that  it  practically  consists  of  that 

decedents  death    altliough  the  estate  f^^,^^^^^^    reputation    it    has    estab- 

IS  liable  until  the  policy  is  cancelled.  ,.  ,     ,             .              .... 

111  Matter  of  Randell,  8  N.  Y.  Wished  creating  a  disposition  or  m- 
Supp.  652.  clination  of  persons  to  extend  their 

It    is    very    difficult   to   determine  patronage   to   the   business   on   that 

the  value   of   the  good   will   of   any  ^^                     .      ^j^^     ^^^   ^^..^^   ^^   ^ 

business.     For  it  is  nothing  but  the  *= 

chance    of   being   able    to    keep    the  partnership  is  an  asset, 

business  which  has  been  established:  Snyder    Manf.    Co.,    54    O.    S.    9; 

the    sale    of    a    mere    chance    which  gj.^gg  ^  jj.on  Works  vs.  Pavne,  50 

vests   in  the   purchaser  nothing  but  n    g    n  - 

the    possibility,    but   the    preference  ^-  ^-  l^^- 

which    has    been    usually    extended  112  See   11   Am.   &   Eng.    Ency.   of 

may  continue.  Law    S47    2d    ed. ;     §  10778    G.    C, 

See  Art.  Goodwill,  8  Am.  &  Eng.  ^  §03 
Ency.  of  Law;  Chapter  on  Partner- 
ship. 


321  CHOSES  m  ACTION  §  385 

hajids  of  the  executor  or  administrator,  for  wliicli  his  sureties 
on  his  bond  will  be  held  accountable.^^" 

Likewise  if  real  estate  is  sold  on  partition,  and  part  of  the 
proceeds  comes  into  the  hands  of  the  administrator,  it  will  be 
held  to  be  assets."^*  Such  proceeds  are  to  be  considered  and 
disposed  of  as  real  estate.^^^  And  if  an  executor  fraudulently 
sold  property  for  less  than  its  true  value,  the  difference  be- 
tween its  true  value  and  that  which  he  actually  received  would 
also  be  assets."® 

Of  course  all  notes  held  by  the  decedent,  whether  arising 
from  the  sale  of  real  estate  or  other  property,  are  considered 
assets  in  the  hands  of  the  administrator.^^^ 

§  385.    Choses  in  action,  etc^^^^ 

All  choses  in  action  are  assets  in  the  hands  of  the  adminis- 
trator.^^^     Likewise  are  judgments."® 

Damages  assessed  during  the  lifetime  of  the  deceased,  al- 
though not  payable  until  after  his  death,  for  a  right  of  way 
through  land,  go  to  the  administrator.^^"  Otherwise  if  he  re- 
ceived money  from  a  railroad  for  a  release  of  right  of  way.^^^ 

113  Wade  vs.  Grayham,  4  0.   126.      executor  to  sell,  although   they  are 

,,,,,        ,    ,,  7^     ,.',      „T  .  ,,       not  expressly  named  as  the  donees 

114  Campbell  vs.   English,   Wright      ^^  ^^^^  l^^^^J^    j^  ^^^^.^^  ^^^^^  ^^^^^ 

119;  Stiver  vs.  Stiver,  8  O.  217.  a    power   the   executor    acts    in    his 

115  Grisswold  vs.  Frink,  22  0.  S.  character  as  such,  and  not  as  trus- 
yg  tee,  and  is  accountable  for  the  pro- 

i,^T>j  T.  ir>i~.n^^         ceeds  of  any  sale  made  bv  him,  as 

116  Reed  vs.  Bro^^na,  10  C.  C.  44;      ^^^  -^  ^^^^  ^^^  ^^^  ^^^^^  ^„d  profits. 

6  C.  D.  15;  Affirmed  56  O.  S.  264.  Redf.  Prac.  426. 

A   devise   of   realty   to   an   execu-  H'^  Coldron  vs.  Rhode,  7  Ind.  151. 

tor  in  trust  to  sell  will,  of  course,  . '"f  p,«L^  ^.l^^O;  Gifts  causa  mor- 

,     ,,        ,.,,       .        ,  .           ,     ,  tis;  ^  329,  Gifts  inter  vovis. 

vest    the     title    in    him.     And     as  ii 8  Hayes  vs.  Hayes,  45  N.  J.  Eq. 

equity  Mill  consider  as  actually  done  461. 

that  which  ought  to  be  done,  land  is.  See     Ambler    vs.     Administrator. 

under  some  circumstances,  regarded  ^oone   34  0   C   C   512,  where  a  note 

,     "  was   claimed    to   be   a   gift,   yet   the 

as  money,  and  money  as  land  — as  ^.^^^.^  j^^l^   j^  ^^,g^^  not  and  was  an 

•where  the  will  directs  that  the  land      asset. 

shall  be  sold,   or  that  money   shall  See  §  442,  Dilisence  in  collecting. 

be  laid   out   in  land.     A  devise  di-  "^  Morris  vs.  Buckeye  Engine  Co., 

78  Inn.  86. 
recting  lands  to  be  sold  and  the  pro-  120  Welles  vs.  Cowles,  4  Conn.  182; 

ceeds  to  be  divided,  etc.,  is  therefore  Goodwin  vs.  Milton,  25  N.  H.  458: 
a  disposition  of  money  and  not  of  Neal^vs.  Knox,  etc.,  R.  R.  Co.,  61 
land,  and  is  good,  as  a  power  to  the  tn^JTankins  vs.  Kimball,  57  Ind. 

42. 


§  385  ASSETS  GENERALLY  322 

So  a  salary  voted  deceased,  even  after  his  death/"  So  money 
received  on  an  appeal  bond  given  to  the  administrator/'^  So 
a  surplus  arising  from  a  trustee's  sale  of  real  estate  after  the 
death  of  the  grantor,  after  discharging  the  debts/^*  Shares 
of  stock  of  any  railroad  company  are  assets. 

The  general  rule  is  that  with  respect  to  such  personal  actions 
as  are  founded  upon  any  obligation,  contract,  debt,  covenant 
or  other  duty,  the  right  of  action,  on  which  the  testator  or  in- 
testate might  have  sued  in  his  lifetime,  sundves  his  death,  and 
is  transmitted  to  his  executor  or  administrator,  whether  the 
breach  occurred  in  the  lifetime  or  after  the  death  of  the  de- 
cedent/"^ 

A  right  of  action  founded  on  the  tort  of  a  decedent  does  not 
survive.  Death  from  a  wrongful  act  is  provided  for  by  special 
statute,  and  that  which  is  recovered  goes  to  the  Avidow  and  chil- 
dren, and  is  assets  in  the  hands  of  the  administrator  to  be  ac- 
counted-for,  but  such  is  not  liable  to  the  creditors  of  a  decedent. 
If  a  covenant  is  broken  in  the  lifetime  of  an  ancestor,  it  be- 
comes a  mere  chose  in  action,  and  does  not  descend  to  the  heir, 
but  the  administrator  alone  can  sue  on  it.^"® 

i22Loring     vs.      Cunningham,      9  40   Barb.    425;    Smith   vs.   Gage,   41 

Cush.  87.  Id.  60. 

123  Sasscer  vs.  Walker,  5  G.  &  J  But  the  interest  of  a  purchaser  in 
102.  an  executory  contract  of  sale  of  land 

124  Jones    vs.    Lackland,    2    Gratt.  does  not  pass  to  his  executor.     Grif- 
81.  fith  vs.  Beecher,  10  Barb.  432. 

125  Holbrook  vs.  White,  13  Wend.  The   personal   representative  may 
591.  sue  on  a  demand   against  a  co-tenant 

Thus,  an  administrator  may  have  in  common  of  the  decedent  for  his 

an  action  in  his  own  name  for  an  in-  share  of  rents  and  profits.     Hannan 

jury  to  personal   property   interme-  vs.  Osborn,  4  Paige  336. 
diate  the  granting  of  letters  and  the  i26  Tapscott   vs.    Williams,    10   O. 

death    of    the    mtestate.     His    title  444. 

takes  effect  by  relation.     Valentine  See  §  713,  Accounting,  etc. 

vs.  Jackson,  9  Wend.  302;  Babcock  Where    alimony    is    allowed,    and 

vs.  Booth,  2  Hill  181.  pending  an  appeal  both  parties  died, 

The  administrator  has  a  right  to  the  action  may  be  carried  on  by  the 
recover  the  purchase  money  due  on  a  administrators.  Coffman  vs.  Fin- 
contract  for  the  sale  of  land,  made  ney,  65  0.  S.  61. 
by  the  intestate  in  his  lifetime,  and  An  action  will  not  lie  against  a 
may,  it  seems,  extend  the  time  of  grantee  in  possession  of  real  estate, 
payment.     Schroeppel     vs.     Hopper,  conveyed    with    intent    to    defraud. 


323  MORTGAGED    PREMISES  §  386 

^  386.  Mortgaged  premises  to  be  considered  personal  assets. 
Executor,  etc.,  may  take  possession.  "  Wlien  a  mortgagee  of 
real  estate,  or  an  a.ssignee  of  such  mortgagee,  dies  without  fore- 
closing the  mortgage,  the  mortgaged  premises,  and  the  debts 
secured  thereby,  shall  be  considered  as  personal  assets  in  the 
hands  of  his  executor  or  administrator,  and  be  administered  and 
accounted  for  as  such."      [R.   S.   §6070.]i=^ 

Possession.  "If  the  mortgagee  or  assignee  did  not  obtain 
possession  of  the  mortgaged  premises  in  his  lifetime,  his  executor 
or  administrator  may  take  possession  by  open  and  peaceable 
entry,  or  by  action,  as  the  deceased  might  have  done  if  living.'* 

[R.  "S.  §6070.]!"* 

§  387.  Executor  or  administrator  may  discharge  mortgage. 
Possession  before  redemption.  "In  case  of  the  redemption  of  a 
mortgage,  the  money  paid  thereon  must  be  received  by  the  ex- 
ecutor or  administrator  and  thereupon  he  shall  release  and  dis- 
charge the  mortgage.  Until  such  redemption,  the  executor  or 
administrator,  if  possession  has  been  taken,  either  by  himself  or 
by  the  deceased,  shall  be  seized  of  the  mortgaged  premises,  in 
trust  for  the  same  persons,  whether  creditors,  next  of  kin,  or 
others  who  would  be  entitled  to  the  money,  if  the  premises  had 
been  redeemed."     [R.  S.  §  6071.]^-* 

§  388.    How  executor  or  administrator  to  foreclose  mortgage. 

"A  mortgage  belonging  to  the  estate  may  be  foreclosed  by  the 
executor  or  administrator."     [R.  S.  §  6072.]^-'' 

]\Iortgages,  as  well  as  deeds  of  trust,  always  go  to  the  execu- 
tor or  administrator,^^"  even  though  foreclosure  proceedings  were 
pending   when    the    decedent    died,^^^    and    although    the    heirs 

etc.,  to  recover  the  vahie  of  the  real  isi  Fay  vs.  Cheney,  14  Pick.  399; 

estate.     Doiiey  vs.  Demmick,  8  C.  C.  Stevenson  vs.  Polk,  71   la.  278. 

16.3;  4  C.  D.  380.  A  morto'as;or  dying  in  possession, 

Lnless  the  grantee   has   conveyed  hjg    administrator    has    a    right    to 

them  to  an  innocent  purchaser.     Id.  „„„„„,.v^    +i,„    „          i.       •   i. 

5.5  0    S    294  convert    the    property    into    money 

'  127  §  io692  G    C.  ^^^  P^^  *^®  mortgage  claim  thereon 

The'  Probate  'Coiirt  can  not  com-  °"*  °^  *'^f  proceeds.     The  mortgagee 

pel    an    administrator    to    cancel    an  ^^^  "^  right  to   replevin  the  same. 

uncancelled    mortgage.       -Jones     vs.  Linghler  vs.  Kraft,  3  N.  P.    (N.S.) 

Green,  21  0.  C.  C.  96;   11  C.  D.  548.  653;   16  Dec.  474;  affirmed  79  0.  S. 

127*  §  10693  G.  C.  225. 

See   §521.     Highway   vs.   Pendle-  The   interest  of  the  mortgagee  is 

1-8^8  I?,'rn4  r    r  transferred  to  the  fund.     Id. 

129  I  10605  G    C  ^  chattel  mortgage  unfiled  at  the 

130  Smith  vs.' Dyer,  16  Mass.  18;  J™*'  ^,^  decedent's  death,  is  void  as 
Taft  vs.  Stevens,  3  Gray,  504;  iLong  ^^  creditors,  even  though  it  be  after- 
vs.  O'Fallon,  19  How.  116;  Clark  vs.  wards  placed  on  record.  Kilbourne 
Blackington,    110    Mass.    316;    Wil-  vs.   Fay,   29   0,  S.  264. 

liams  vs.  Ely,  13  Wis.  1. 


§  389  ASSETS  GENERALLY  324 

obtain  possession  before  the  appointment  of  an  administrator/^^ 
So  real  estate  purchased  by  the  administrator  upon  a  sale  on  a 
judgment  of  the  estate  belongs  to  him  until  it  is  determined 
whether  it  will  be  necessary  to  use  it  to  pay  debts.^^^ 

A  vendor's  lien  for  purchase-money  goes  to  the  adminis- 
trator."* 

If  lands  be  devised  to  an  executor  in  trust  for  certain  pur- 
poses, he  is  the  proper  plaintiff  in  a  suit  for  trespass  thereto 
after  the  death  of  the  testator."^  And  if  deceased  held  land 
as  tnastee,  and  some  one  else  has  succeeded  to  the  estate  as  suc- 
ceeding trustee,  that  person  must  bring  the  action."** 

If  land  of  the  decedent  be  sold  on  a  mortgage,  the  surplus 
goes  to  the  heirs,  and  not  to  executor  or  administrator,^^'  unless 
the  administrator  needs  the  same  to  pay  debts. 

If  an  executor  convey  land  and  is  compelled  to  take  it  back 
under  the  mortgage  given  by  the  purchaser,  such  lands  belong 
to  him  as  assets."® 

§  389.     Naming  a  person  executor  not  to  discharge  a  debt. 

It  was  a  rule  of  common  law  that,  if  a  person  was  named 
executor  in  a  will,  that  this  extinguished  any  debt  that  he 
might  have  owed  to  the  decedent.  This  was  on  the  theory  that, 
in  order  to  collect  the  debt,  the  executor  would  be  compelled  to 
bring  action  against  himself,  which  could  not  be  done.  It  is 
very  questionable  whether  such  was  ever  the  rule  in  Ohio.^^" 
But  whatever  may  have  been  the  rule  at  common  law,  the  same 
is  settled  now  to  be  extinguished  by  the  following  statute : 

"The  naming  of  a  person  executor,  in  a  will,  shall  not  operate 
as  a  discharge  or  bequest  of  a  just  claim  which  the  testator  had 
against  such  executor.  It  shall  be  included  among  the  credits 
and  effects  of  the  deceased  in  the  inventory.    The  executor  shall 

i32Haskins  a's.  Hawkes,  108  Mass.  is?  Cox  vs.  Burney,  2  Sandf.  561; 

379;  Demarest  vs.  Wynkoop.  3  Johns  Dunning  vs.  Ocean  Bank,  61   X.  Y. 

Ch.  129.  -497;     Vincent    vs.    Piatt,    5    Harr. 

13?.  Webber  vs.  Webber,  6  Me.  127;  (Del.)    164;   Varnum  vs.  Meservc.  8 

Boylston  vs.   Carver,   4   Mass.   598;  Allen  158. 

Gibson  vs.  Bailey,  9  N.  H.  168.  i^s  Yonkers     Savings     Bank     vs. 

13 1  Evans  vs.  Enloe,  70  Wis.  345.  Kinsley,  78  Hun.   186:   S.  C.  28  N. 

135  Pittsburg,    etc.,    Ry.    Co.    vs.  Y.   Supp.   925. 

Swinney,  97  Ind.  586.  i39  Tracy  vs.  Card.  2  0.  S.  450. 

136  Benoit  vs.   Schneider,  39  Ind. 
591. 


325  DEBT  OP  EX  'T  'r  BECOMES  ASSETS  §  390 

be  liable  for  it  as  for  so  much  money  in  liis  hands  at  the  time 
such  debt  or  demand  becomes  due,  and  must  apply  and  dis- 
tribute it  in  the  payment  of  debts  and  legacies,  and  among  the 
next  or  kin,  a.s  part  of  the  personal  estate  of  the  deceased." 
[R.  S.  §6069.]^^'^ 

§390.    Debt  of  an  executor  or  admimsiraior  becomes  assets. 

The  effect  of  the  above  section  is,  that  if  a  person  owing  a 
debt  to  the  decedent  is  appointed  and  qualified  as  executor  ^*^ 
or  administrator/'*^  such  debt  becomes  assets  at  once  in  the 
hands  of  the  executor  or  administrator,  for  which  he  must  ac- 
count to  the  estate.  Hence  an  administrator  de  bonis  non  can 
sue  a  former  administrator  for  such  a  debt.^'*^ 

But  appointing  a  debtor  administrator  does  not  convert  the 
debts  into  assets  in  his  hands,  where  his  liability  is  only  a  con- 
tingent one,  as  where  a  surety  on  a  defaulting  executor's  bond 
is  made  administrator  de  bonis  non.^** 

Likewise  where  one  of  several  joint  and  several  debtors  is 
made  administrator,  the  debt  is  not  assets.^*^ 

If  a  surviving  partner  becomes  administrator,  the  balance 
that  may  be  found  against  him,  on  settlement  of  the  firm,  be- 
comes assets,  although  the  partners  do  not  owe  each  other;  and 
it  was  unliquidated,  and  not  left  uncollected  by  fault  of  the 
administrator."®  And  this  applies  though  the  debt  was  cre- 
ated after  the  decedent's  death,  as  where  a  person  to  whom  ex- 
ecutors loaned  money  of  the  estate,  taking  his  note,  afterwards 
became  administrator  de  bonis  non.^" 

140  §  10601  G.  C.  paid,  this  should  be  charged  against 
See  §  689,  Legacy  to  debtor.  the  administrator  as  an  asset  of  the 

141  Bigelow  vs.  Bigelow,  4  0.  138;  estate,  and  he  is  liable  on  his  bond. 
Collard  vs.  Donahlson,  17  0.  264;  Yal^ev  vs.  Stninl-:.  18  Dec.  726;  af- 
Tracy  vs.  Card,  2  O.  S.  431;  Mitch-       firmed,  81  0.  S.  568. 

ell    vs.    Towner,    7    W.    L.    J.    .581;  143  Tracy  vs.   Card,  2   O.   S.   431; 

Raab's  Estate,  16  0.  S.  273,  282.  Mitchell  vs.  Towner,  7  W.  L.  J.  481; 

142  Bigelow  vs.  Bigelow,  4  0.  138.  Collard  vs.  Donaldson.  17  O.  264. 
That  where  one  of  two  administra-  144  Shields  vs.  Odell,  27  O.  S.  398. 

tors    is    indebted    to    an    estate    and  Where   the   surety    on    an   unpaid 

gives  a  joint  bond,  such  indebtedness  note  dies   and   the  principal   of  the 

will  be  treated  as  an  asset  for  which  note  is  appointed  administrator,  the 

their   joint  bond   is   liable.      Dormer  debt  represented  by  said  note  is  not 

A^s.  Woodward.  4  C.  C.   (IST.S.)    623;  chargeable  as  an  asset  of  the  estate, 

27  0.  C,  C.  123;   affirmed,  74  0.  S.  esneciallv   before   the   estate    is    re- 

.502.  nnired  to  pav  the  note.    Urpham  vs. 

If  the  executor  does  not  inventory  TTrnham.   1    0.   Anp.   476;    21    C.   C. 

the  debt  and  dies,  vet  his  estate  will  (^s^.S.)    600:   3.5  C.  C.  442. 

he  charcred   with   the  same,  and   the  14^'  T?ossman  vs.  McFarland,  9  O. 

Probate  Court  has  jurisdictinn  over  S.  3f>0. 

such    matter.     Jones   vs.    Willis,   72  14^  Coebel,  233. 

O.  S.  ISO.  147  Martin  vs.  Train,  6  C.  C.  49; 

Where     the     administrator     was  3  C.  D.  344. 

principal,  and  the  deceased  surety  Appointing  a  debtor  as  executor 
on  a  note,  which  the  administrator 


390 


ASSETS  GENERALLY 


326 


There  has  been  a  good  deal  of  controversy,  from  the  seeming 
injustice  of  the  matter,  whether  in  the  absence  of  fraud,  the 
debt  of  an  insolvent  executor  becomes  assets  of  the  estate,  so  as 
to  charge  his  co-executor  or  sureties.  Three  cases  appeared 
in  tlie  ninth  C.  C.  Report.  The  first  case  is  Brown  vs.  Harsh- 
man.^*®  In  this  case  it  was  held  that  the  joint  executor  would 
not  be  liable  for  the  debts  of  his  insolvent  co-executor. 

In  Perkins  vs.  Scott,^*^  it  was  held  that  the  sureties  upon  an 
administrator's  bond  are  liable  for  the  debt  of  the  administra- 
tor, due  the  decedent  regardless  of  the  solvency  or  insolvency  of 
said  administrator. 

And  in  the  case  of  McCoy  vs.  Allen,^^°  it  was  held  that  if  it 
appeared  to  the  Court  that  the  administrator  was  insolvent  at 
the  time  of  his  appointment,  and  continued  so  during  the  whole 
period  of  his  administratorship,  he  should  not  be  held  account-    I 
able  for  the  amount  of  such  debt. 

This  matter  was  set  at  rest,  however,  by  the  Supreme  Court, 
holding  that  the  indebtedness  of  an  executor  to  his  testator  is 
assets  with  which  he  is  chargeable  at  its  maturity,  as  so  much    I 
money  in  his  hands ;  and  the  sureties  on  his  bond  are  liable  for 
his  failure  to  administer  and  distribute  the  same  according  to 


will  not  extinguish  his  liability  and 
it  is  sufficient  consideration  after 
his  resignation  to  support  a  mort- 
gage given  by  him  to  one  entitled  to 
the  debts  under  a  will.  Collins  vs. 
Nugent,  1  Cleve.  190;  3  B.  519. 

But  it  is  said  that  this  doctrine 
cannot  be  resorted  to  to  work  a 
fraud.  Thiis,  where  the  only  per- 
son interested  in  the  estate,  the  sole 
asset  of  which  was  due  by  J.  who 
was  insolvent,  procured  J.  to  be  ad- 
ministrator, and  by  fraud  induced 
the  defendant  to  go  on  his  bond  for 
the  sole  purpose  of  making  him 
liable  for  J.'s  worthless  debt.  It 
was  held  that  the  fraud  was  a  good 
defense.  Campbell  vs.  Johnson,  41 
O.  S.  5S8. 

An  administrator  is  chargeable  in 


his  accounts  as  money  in  his  hands, 
with  all  debts  which  he  owes  in- 
dividually and  unconditionally  to 
the  estate. 

A  debt  which  he  owes  as  principal, 
and  which  is  evidenced  by  his  note, 
signed  also  by  another  person  who 
is  in  fact  only  surety,  is  his  indi- 
vidual and  unconditional  debt,  and 
chargeable  to  him  as  money  in  his 
hands. 

Debts  owing  to  the  estate  by  a 
firm  of  which  he  is  a  member,  are 
not  individual  unconditional  debts, 
and  are  not  chargeable  to  him  as 
money  in  his  hands.  James  vs. 
West,  47  Bull.  Sup.  Ct.  750. 

1*8  9  C.  C.  1 ;  6  C.  P.  10. 

149  9  C.  C.  207;  6  C.  P.  226. 

150  9  C.  C.  607;  6  C.  P.  659. 


327  DEBT    DUE    FKOM    HEIR    ASSETS  §  391 

law  and  the  will,  although  he  was  insolvent  at  the  time  of  his 
appointment  and  continued  to  be  so  until  the  settlement  of  his 
final  account.  And  the  sureties  will  not  be  discharged  from 
such  liability  by  fraud  of  tlie  executor  in  procuring  their  execu- 
tion of  the  bond,  where  the  beneficiaries  of  the  estate,  in  whose 
interest  the  liability  is  sought  to  be  enforced,  are  themselves  in- 
nocent of  the  fraud.^^^ 

A  debt  existing  in  the  lifetime  of  the  testator  against  one 
who  becomes  executor  of  his  last  will,  is  transmuted  into  money 
in  the  hands  of  such  executor  by  the  force  of  sec.  10691,  G.  C, 
§  389 ;  and  no  act  of  the  executor  can  turn  it  again  into  the  char- 
acter of  a  mere  demand  or  obligation.  It  could  not  be  classed 
as  an  uncollectible  or  desperate  claim,  by  reason  of  the  insolvency 
of  the  executor;  and  the  Probate  Court  has  no  jurisdiction  to 
order  the  sale  of  an  asset  of  this  character  as  a  desperate  claim. 
If  a  sale  is  made  under  order  of  the  Court,  it  carries  to  the  pur- 
chaser no  title. ^■^- 

§  391.  Discharge  of  debt  in  a  will  against  an  executor,  etc., 
how  construed.  "The  discharge  or  bequest,  in  a  will,  of  a 
debt  or  demand  of  a  testator,  against  an  executor  named  therein, 
or  against  any  other  person,  shall  not  be  valid  as  against  the 
decedent's  creditors,  but  shall  be  construed  only  as  a  specific 
bequest  of  such  debt  or  demand.  The  amount  thereof  must  be 
included  in  the  inventory  of  the  credits  and  effects  of  the 
deceased,  and,  if  necessary,  be  applied  in  the  payment  of  his 
debts.  If  not  necessary  for  that  purpose,  it  shall  be  paid  in 
the  same  manner  and  proportion  as  other  specific  legacies." 
[R.  S.  §6068.]^^=' 

§  392.    A  debt  due  from  an  heir  or  legatee  is  assets. 

A  debt  due  from  an  heir  or  legatee  to  an  estate  is  an  asset  of 
such  estate,  and  where  the  distributive  portion  of  such  heir  or 
legatee  is  equal  to,  or  greater,  than  such  a  debt,  the  administra- 

iBi  McGaughey  vs.   Jacoby,   54   0.  1^2  Cheney    \s.    Powell,    20    C.    C. 

S.   487;    The   rase  of  Allen   vs.   Me-  398;    11  C.  P.  279. 
Coy,  9  C.  C.  607;  6  C.  P.  6.59.  was  See  §713,  Accounting,  etc. 

reversed    on    the    authority    of    the  iss  §  10690  G.  CL 

above  case.     57  O.  S.  641.  See   §  457. 


§  392  ASSETS  GENERALLY  328 

tor  or  executor  should  charge  himself  with  the  full  amount  of 
the  same.  This  right  exists  whether  the  heir  or  legatee  was 
indebted  to  the  deceased  before  his  death,  or  contracted  a  lia- 
bility to  the  estate  thereafter,  or  became  in  any  way,  indebted 
to  the  estate  at  any  time  before  final  settlements^* 

Substantiating  the  above  are  two  recent  cases  of  the  Supreme 
Court.  In  Martin  vs.  Martin,^^^  it  was  held  that  the  personal 
property  of  an  intestate,  who  leaves  neither  wife  nor  children; 
passes  to  such  of  his  brothers  and  sisters  as  survive  him,  and  to 
the  legal  representatives  of  those  who  died  before  him,  and 
children  of  a  pre-deceased  brother,  take  in  a  representative  char- 
acter and  subject  to  the  indebtedness  of  their  principal  to  the 
intestate. 

In  Keever  vs.  Hunterj^^**  it  was  held  when  lands  of  an  intes- 
tate descend  to  his  children,  there  being  no  personal  estate  for 
distribution,  the  interest  of  each  child  in  the  lands  is  subject 
to  his  indebtedness  to  the  intestate. 

It  has  recently  been  further  held  that  a  debt  due  an  estate  by 
a  son  is  superior  to  a  mortgage  given  by  him,  and  will  be  de- 
ducted from  his  legacy,  unless  his  interest  in  the  lands  comes 
by  way  of  specific  devise.^^^ 

154  /„  re  Ellis,  5  N.  P.  207.  Carpenter,  48  Bull.  907;  69  0.  S.  — . 

155  56  O.  S.  333.  A  note  from  son  to  father,  which 

156  62  O.  S.  616.  the  father  directs  in  his  will  shall 

157  Woodruff  vs.  Woodruff,  23  C.  be  charged  to  the  son.  is  an  asset 
C.  408.  of  the  estate.     In  re  Bullock,  3  N. 

An    heir    indebted    to    an    estate  P.  (N.S.)   190;  15  Dec.  783;  affirmed 

need  not,  when   he   is  also  adminis-  75  O.  S.  — . 

trator,    turn    it   over   to   the   estate.  Generally  before  such  a  debt  can 

The  amount  due  tlie  heir  should  be  be  an   asset   it   must  not   be  barred 

treated  as   a  credit  on  the   amount  by  the  statute  of  limitations.      See 

due   the  administrator.      Dorger   vs.  §  760. 

Woodward,  4  C.  C.  (X.S.)  623;  An  inherited  title  to  a  share  in 
27  0.  C.  C.  123.  Approved  by  Su-  ancestral  real  estate  is  not  divested 
preme  Court  in  Lambright  vs.  Lam-  by  the  fact  that  such  heir  is  in- 
bright,  74  0.  S.  — .  d'ebted     to     the     ancestral     estate. 

In    this    case    the    debt    did    not  There   must  be   some   proceeding   in 

mature  until  after  the  death  of  de-  court  to  have  such  debt  applied  on 

cedent.  the    heir's    interest,    either    on    ad- 

Where   a  devisee   died   before   the  ministration  of  the  estate  or  a  suit 

testator,  it  is   likewise  held  that  a  in   partition.      Lockwood   vs.   W^hit- 

debt   due   from    the   devisee    to   the  lery,  23  Dec.  107. 
estate  must  be  deducted.     Baker  vs. 


{ 


yijy  ASSETS   NOT    TOSSESSEU   BY    DECEASED  §  393 

§  393.     Assets  not  possessed  by  deceased. 

Property  may  be  assets  in  the  hands  of  the  executor  or  ad- 
ministrator, though  never  owned  by  the  decedent.  Within 
this  principle  is  everything  acquired  by  an  executor  or  admin- 
istrator by  his  use  of  or  dealing  with  the  estate.  Everything 
acquired  under  contracts  made  by  the  decedent  in  his  lifetime, 
or  accruing  after  his  death,  by  pre-existing  contingencies  or 
conditions,  all  increases  or  profits  of  the  personal  estate  after 
the  decedent's  death,^^^  such  as  money  received  from  the  United 
States  government  by  an  executor  or  administrator  in  conse- 
quence of  a  treaty  with  a  foreign  nation  as  indemnity  for  loss 
of  property  taken  from  the  deceased,^^**  damages  assessed  dur- 
ing the  lifetime  of  a  decedent  for  laying  out  a  highway  through 
his  land,  but  not  payable  until  one  day  after  his  death,  is 
assets.^*^" 

In  the  same  line  include  all  rents  and  all  profits  derived 
from  any  use  of  the  property  of  the  decedent,  such  as  continu- 
ing the  business  under  a  will ;  ^^^  or  if  money  was  loaned  out, 
or  put  in  bank,  the  interest  therefrom  would  be  assets.^®^ 

The  right  to  a  widow's  allowance  is  an  asset  in  the  hands  of 
her  administrator.^"^  Until  liquidation  the  interest  of  a  de- 
ceased partner  does  not  become  assets  of  his  estate.^** 

15S11  Am.  &  Eng.  Encj^  of  Law  isiGondolfo  vs.  Walker,  15  O.  S. 

836  2  ed.  2.51. 

159  Grant  vs.  Bodwell,  78  Me.  460;  losDiehl  vs.  Diehl,  3  Bull.  298. 
Rogers  vs.  Hossack,  18  Wend.  319.  i63  Bain  vs.  Wick,   14  0.   S.  50.^; 

160  See    11    Am.    &   Eng.   Ency.   of  Dorah  vs.  Dorah,  4  0.  S.  292. 

Law  84.5  2d  ed.;  Woerner  on  Admin.  ig4  n  Am.  &  Eng.  Ency.  of  Law, 

646.  837  2d  ed. 


§394 


ASSETS    CONCEALED    OB    EMBEZZLED 


330 


CHAPTER  XXII. 

ASSETS  CONCEALED  OR  EMBEZZLED. 


!  394  Nature  of  proceedings. 
395  Proceedings  when  property  of 
estate    concealed    or    embez- 
zled. 

i  395a  When  probate  may  reserve 
case    to    common    pleas. 

i  396  Kind  and  scope  of  proceeding. 

i  397  Jurisdiction   of   court,  etc. 

i  398  Complaint,   etc. 

i  399  Parties. 

i  400  Form    of    complaint. 

i  401  Entry    ordering    citation,    etc. 

i  402  Imprisonment  for  disobeying 
citation. 

i  403  Party  failing  to  appear  or  re- 
fusing to  answer. 

i  404  Form    of    commitment    to   jail. 

:  405  Examination  to  be  in  writing. 

1 406  Examination  of  witnesses  to 
be  in  writing,  etc. 


§407 

§408 

§409 
§410 
§411 
§412 
§413 


§414 


§415 


Comments,  Form  of  examina- 
tion. 

Judgment  of  Court  thereon. 
Lien. 

Trial.    Jury. 

Trial  issues. 

Verdict,  etc. 

Judgment. 

Transcript  to  be  filed  in  Com- 
mon Pleas  and  execution  is- 
sued. 

If  judgment  in  favor  of  the 
State,  when  prosecuting  at- 
torney to  attend  to  it. 

Conveyances  to  evade  these 
proceedings  void. 


§  394.    Nature  of  proceedings. 

In  addition  to  the  ordinaiy  remedies  given  to  an  administra- 
tor or  executor  to  recover  assets  belonging  to  the  estate  of  a 
deceased  person,  the  legislatures  of  the  various  States  have 
provided  summaiy  proceedings.  They  do  not  take  away  tlie 
ordinary  remedies,  but  are  intended  to  provide  a  more  speedy 
and  less  expensive  mode  than  by  the  original  remedies,  of  bill 
of  discovery,  replevin,  and  other  actions  at  law. 

The  statutes  of  no  two  States  seem  to  be  exactly  similar,  ex- 
cept that  they  are  made  to  apply  where  the  party  conceals  or 
embezzles,  or  wrongfully  conveys  away,  property  that  belongs 
to  the  estate  of  a  deceased.  The  statutes  of  our  State  have  un- 
dergone a  considerable  change  from  their  original  wording. 


331 


NATURE  OF  PROCEEDINGS 


394 


At  first  ^  it  was  only  contemplated  that  the  party  should  be 
called  before  the  Court  and  his  evidence  reduced  to  writing, 
evidently  preparatory  to  some  other  proceeding.  This  section 
was  extended  by  the  act  of  1853,^  to  provide  for  a  regular 
hearing,  and  if  the  party  was  found  to  have  concealed  or  em- 
bezzled, or  conveyed  away,  assets,  to  render  a  judgment  for  the 
amount  of  the  same,  and  the  Court  afterwards,^  having  found 
that  the  law  was  unconstitutional,  it  providing  for  a  judgment  to 
be  taken  without  a  right  to  trial  by  jury,  the  statute  was  amend- 
ed, permitting  the  question  raised  to  be  tried  by  a  jury.  And 
later,*  the  Court  having  held  that  an  action  could  not  be  brought 
against  an  administrator  or  executor,  the  statute  was  again 
amended  to  include  and  permit  the  action  to  be  brought  against 
an  embezzling  administrator.  The  reported  decisions  upon  this 
kind  of  proceeding  are  very  meager  in  Ohio.^ 


1  See  §  239  of  the  act  of  March 
23,  1840;  Curwen  Statutes  755. 

2  0.  L.  vol.  51,  354. 

3  Howell  vs.  Fry,  19  O.  S.  556. 

*  Meinzer  vs.  Bevington,  42  0.  S. 
325. 

5  The  object  of  the  proceeding  is 
two  fold, —  a  discovery  of  personal 
property  to  the  end  that  the  repre- 
sentative may  obtain  immediate  poa- 
session;  or  to  the  end  that  it  may 
be  included  in  the  inventory,  but 
cannot  be  so  included  because  the 
party  proceeded  against  refuses  to 
impart  knowledge  or  information 
concerning  the  same.  It  is  certain- 
ly not  the  object  of  the  proceeding  to 
enable  the  representative  to  collect 
debts  due  the  decedent,  and  was  not 
intended  as  a  substitute  for  ordi- 
nary civil  remedies  in  cases  where 
the  latter  are  appropriate.  Redf. 
Sur.  Prac.  463. 

In  Illinois  the  statute  was  con- 
strued as  including  property  of  the 
estate  coming  into  the  hands  of  the 
party  charged  since  the  death  of  the 
decedent;    such   as    money   collected 


on  securities  of  the  deceased  when 
the  securities  themselves  were  taken 
during  his  lifetime.  Blair  vs.  Sen- 
nett,  134  111.  78. 

But  in  a  later  case  the  Court  said 
that  the  "  doctrine  of  that  case 
should  be  limited  to  the  facts  there- 
of, and  its  language  should  be  quali- 
fied so  as  to  conform  to  such  facts;  " 
and  it  was  held  that  the  statute 
was  inapplicable  to  compel  the  pro- 
duction of  proceeds  of  collections 
made  by  an  attorney  for  the  admin- 
istrator. Dinsmoor  vs.  Bressler,  104 
111.  211. 

"  The  remedy  was  cumulative  to 
these,  and  the  only  change  it  intend- 
ed to  introduce  from  an  ordinary 
trial  involving  the  ownership  of 
property  was  to  enable  the  Court  to 
compel  the  person  charged  with  hav- 
ing the  property  to  discover  on  oath 
whether  he  had  property  in  posses- 
sion." Per  Walker,  J.,  in  Wade  vs. 
Pritchard,  69  111.  279.  See  also 
Martin  vs.  Martin,  170  111.  18,  27. 

The  object  is  a  discovery  to  the 
end  that  measures  may  be  taken  in 


§  395  ASSETS   CONCEALED   OR   EMBEZZLED  332 

§  395.  Proceeding's  when  property  of  estate  concealed  or  em- 
bezzled. ' '  Upon  complaint  made  to  the  probate  court  or  the 
common  pleas  court  of  any  county,  by  the  executor,  administra- 
tor, creditor,  devisee,  legatee,  heir  or  other  pereon  interested  in 
the  estate  of  a  deceased  person,  or  by  the  creditor  of  any  devisee, 
legatee,  heir  or  other  person  interested  in  such  estate,  against  the 
executor  or  administrator  of  such  deceased  person,  or  against 
any  person  suspected  of  having  concealed,  embezzled  or  con- 
veyed away  moneys,  goods,  chattels,  things  in  action,  or  effects 
of  such  decedent  the  court  shall  cite  such  executor,  administrator, 
or  other  person  suspected,  forthwith  to  appear  before  it  to  be 
examined,  on  oath,  touching  the  matter  of  the  complaint."  [R. 
S.  §6053.]« 

395a.    When  probate  may  reserve  case  to  common  pleas. 

"When  complaint  is  made  to  the  probate  court  and  a  jury  is 
demanded  by  either  party,  the  court  may  forthwith  reserve  the 
case  to  the  court  of  common  pleas  for  hearing  and  determina- 
tion, and  it  thereupon  shall  proceed  in  all  respects  as  though 
the  complaint  had  been  originally  made  therein."  [R,  S. 
6053.J«* 

§  396.     Kind  and  scope  of  proceeding. 

It  is  generally  held  that  it  was  not  the  intention  of  the  legis- 
lature to  confer  upon  the  court  in  the  way  of  a  proceeding 
brought  under  the  above  section,  the  power  to  try  the  right  of 
title  to  property  or  recover  a  money  judgment  therefore,  except 
where  the  party  charged  in  a  complaint  made,  is  guilty  of  hav- 
ing concealed,  embezzled  or  conveyed  away  some  property  be- 
longing to  the  estate  of  the  deceased.  If  it  can  not  be  ascer- 
tained that  the  party  is  guilty  of  one  of  these  three  things,  no 
judgment  can  be  rendered.  Therefore  if  the  party  charged 
with  having  concealed,  embezzled  or  conveyed  away  the  prop- 
erty, produces  such  property  and  claims  an  ownership  therein, 
no  judgment  could  be  rendered  against  him  in  this  kind  of 

the   proper   court   for   its   recovery;  plaintiff.     Leonard  vs.  State,  20  0. 

the    Probate    Court    is    not    such    a  C.  C.  (N.S.)  340;  3  O.  App.  313. 

court.     Dodge  vs.  ^leXeil,  62  N.  H.  It  is  now  held  that  the  statutes 

168.     See  §  1586,  Assignments.  of  Ohio,  as  thev  now  stand,  provide 

6  §  10673  G.  C.  for  the  trial  of 'the  right  of  property 

The  purpose  of  this  section  is  to  in  the  Probate  Court,  and  proceed- 

provide  a  speedy  remed}\     'Leonard  ings     before    that    court    pursuant 

vs.   State,  3  0.  App.   313;    20  C.  C.  thereto  may  be  pleaded  in  bar  to  an 

(N.S.)    340.  action  in  another  court  to  try  title 

6*  §  10674  G.  C.  to  or  riglit  of  possession  of  the  prop- 

This    section    does    not    authorize  erty    involved    in    the    proceedings. 

proceedings   against  an   administra-  Tibbott  vs.  Cadish,  28  0.  C.  A.  48L 

tor    or    executor    by    a    creditor    of  Motion  to  certify  overruled  in  Su- 

heir.     ]\Iemzer  vs.  JBevington,  42  O.  preme    Court    May    18,    1916.      The 

S.  325.  court    bases    its    decision    on    In   re 

The    burden    of    proof    is    on    the  Huffman,  132  Mo.  App.  44. 


333  JUKISDICTION^    ETC.  §  397 

proceedings.  The  administrator  or  executor  would  be  com- 
pelled to  resort  to  other  remedies  provided  by  law.^ 

If,  however,  the  party  charged  is  found  guilty  of  having  con- 
cealed, embezzled  or  carried  away  property  of  the  deceased, 
then  a  judgment  may  be  rendered  for  its  full  value.  The  pro- 
ceedings is  somewhat  similar  to  a  bill  of  discovery,  wherein 
it  provides  tliat  the  party  charged  may  be  brought  before  the 
Court,  both  to  answer  concerning  the  property  which  he  is 
charged  to  have  had,  and  to  siiffer  imprisonment  if  he  refuse 
to  answer.  It  is  much  more  expeditious  than  some  of  the  or- 
dinary and  usual  proceedings,  and  is  int-ended  no  doubt  to  be 
used  where  the  party  charged  is  wrongfully  eluding  the  vigi- 
lance of  an  interested  person  in  ascertaining  the  wherabouts 
and  value  of  the  property  of  the  deceased.  And  so  the  power 
is  given  to  order  the  party  to  appear  and  answer  at  once  with- 
out giving  him  notice,  for  by  having  notice  he  may  further  con- 
ceal or  put  away  property  which  it  is  sought  to  recover  for  the 

benefit  of  the  estate.* 

§  397.     Jurisdiction  of  court,  etc. 

The  action  may  be  brought  in  either  the  Probate  Court  or 
the  Common  Pleas  Court  of  any  county  in  the  State  in  which 
the  defendant  can  be  served  with  process.  There  are  no  lim- 
itations as  to  what  county  in  the  State  action  shall  be  brought. 
There  might  often  exist  good  reasons  for  permitting  the  action 
to  be  brought  wherever  a  person  charged  might  be  found.  The 
nature  of  the  act  is  such  that  it  may  be  presumed  that  the  party 
will  endeavor  to  elude  any  process  which  may  be  brought  to 
compel  him  to  divulge  the  sought  for  information,  and  that  if 
he  is  base  enough  to  embezzle  or  defraud  the  estate,  he  will  also 
endeavor  to  keep  out  of  the  reach  of  the  law.  And  for  that 
reason  the  statute  no  doubt  purposely  has  permitted  the  action 
to  be  brought  in  any  county  of  the  State;  and  there  being  no 
other  limitation,  we  may  presume  that  it  may  be  brought  in  any 
county  where  the  defendant  can  be  served.  If  a  jury  is  demanded 

~  fSee  Woerner  on  Admin.  679.  *  See    Jennie    Tibbott,    Admr.,    vs. 

All  personal  property  vests  in  the  Cadish,    32   O.    C.    A.    161,    where    it 

administrator  from  the  time  of  the  is  held  that  the  court  has  the  right 

death     of     decedent.       Sullivan     vs.  to  try  the  title  to  the  property,  and 

Sullivan,   12   0.   L.   R.   224.  the    judgment    rendered    is    binding 

No    action    will    lie    in    equity    to  upon  any  other  court  on   the  ques- 

recover  heirlooms,  etc.  Ireland  vs.  tion  as  to  title  to  the  property. 
Loomis,  17  C.  C.  37;  9  C.  D.  393. 


§  398  ASSETS    CONCEALED    OR    EMBEZZLED  334 

and  the  action  is  brought  in  Probate  Court,  the  Court  may  re- 
serve it,  to  the  Common  Pleas,  where  the  same  proceeding  shall 
be  had  as  if  it  were  originally  brought  there;  and  it  seems 
that  if  a  judgment  is  rendered  in  the  Probate  Court,  a  tran- 
script shall  be  filed  in  order  to  make  the  finding  effective  in  the 
Court  of  Common  Pleas. 

§  398.     Complaint,  etc. 

The  statute  does  not  prescribe  in  what  manner  the  complaint 
shall  be  made  or  what  it  shall  contain.  But  as  it  is  expected 
that  the  Court  will  act  upon  the  filing  of  this  complaint,  it 
should  set  forth  sufficient  facts  to  make  out  a  prima  facie  case 
of  the  matter  charged.  While  the  proceedings  might  not  be 
fatally  defective  for  want  of  proper  allegations  in  the  com- 
plaint, yet  no  case  is  such  that  the  complaint  really  ought  not 
to  contain  all  the  substantial  allegations  required  to  sustain 
the  action.  It  ought  to  set  out,  in  addition  to  the  names  of  the 
parties,  the  kind,  nature,  character  and  value  of  the  property 
that  the  person  charged  with  having  concealed,  embezzled  or 
conveyed  away,  has  had  in  his  possession.  It  also  ought  to 
state,  if  possible,  whether  he  is  charged  with  having  concealed, 
or  with  having  embezzled,  or  with  having  conveyed  away  such 
property.  In  other  words,  the  defendant  ought  to  be  able  to 
ascertain  from  the  complaint  just  what  he  is  charged  with.  It 
ought  to  be  sworn  to.  Of  course  the  affidavit  need  only  be 
upon  information  and  belief.  It  ought  to  set  out  the  character 
and  the  interest  of  the  person  making  it.* 

In  Harris  vs.  Westervelt,^'^  it  was  held  that  it  was  not  im- 
proper to  join  in  one  proceeding  an  application  for  the  recovery 

8  If  the  affidavit  alleging  conceal-  trial  de  novo,  it  is  too  late  to  file  an 

ment  or  embezzlement  do  not  affir-  amended  affidavit  by  the  administra- 

matively  show  that  the  party  mak-  tor,   who   has   not   before   appealed. 

ir)g  it  has  an  interest  in  the  estate  But  the  affidavit  may  be  amended  in 

it  is  defective  and  gi\^s  the  Court  the  Probate  Court.   Woerner  citing, 

no   jurisdiction   of   the  person   com-  Shaw   vs.   Groomer,   60   Mo.   495 ; 

plained  of;  and  where  the  defendant  Wade    vs.    Pritchard.,    69    111.    279; 

in  such  case  appeals  to  the  Common  Blaid  vs.  Sennett,  134  111.  78. 

Pleas    Court,    in   which    there    is   a  lo  15  c.  C.  534;  8  C.  D.  367. 


335  PARTIES  IN  PROCEEDING  §  399 

of  assets  of  an  estate  and  for  the  removal  of  the  administrator 
of  such  estate.  It  seems  to  me,  from  the  reading  of  that  case, 
that  it  was  not  in  fact  a  joinder  of  two  causes  of  action,  hut 
that  it  might  very  properly  have  been  considered  to  have  been 
an  action  brought  to  recover  concealed  assets.  The  matter  of 
removing  the  administrator,  follows,  by  virtue  of  the  statute, 
which  provides  that  if  he  is  found  guilty  of  such  charge,  he 
must  be  removed  by  the  Probate  Court. 

§  399.     Parties. 

The  statutes  providing  for  these  proceedings  being  penal  as 
well  as  summary,  are  to  be  strictly  construed.  Therefore  no 
one  can  bring  the  proceedings  who  does  not  come  within  its 
terms.  Neither  can  they  be  brought  against  any  one  not  speci- 
fically mentioned  therein.  Therefore,  before  the  section  was 
amended  in  its  present  form,  the  Supreme  Court  held  no  such 
action  could  be  maintained  against  an  executor  or  adminis- 
trator.'' 

And,  in  another  case,  it  was  held  that  a  party  was  not  liable 
who  merely  assisted  another  to  get  possession  of  the  property, 
and  who  did  not  then  have  any  control  over  it.^^ 

It  would  seem  therefore,  before  a  judgment  could  be  ren- 
dered against  anyone,  the  person  must  have  at  some  time  held 
the  property  subject  to  his  own  control.'^ 

It  will  be  observed  that  the  statute  gives  to  the  executor,  ad- 
ministrator, creditor,  devisee,  legatee,  heir  or  other  person  in- 
terested in  the  estate,  the  right  to  maintain  the  action.  That 
it  may  be  brought  against  the  executor  or  administrator,  or 
any  person  or  persons  suspected  of  having  concealed,  embezzled 

11  Meinzer  vs.  Bevington,  42  O.  S.  do.  It  was  held  that  the  mere  fact 
325.  that  the  other  heirs  anticipated  in 

12  Jn  re  Sattler,  Goebel   183.  the  division  of  the  bonds,   did   not 

13  In  the  case  of  In  re  Sattler's  make  them  liable  for  the  amount  of 
supra  the  deceased  divided  certain  the  bonds  they  had  agreed  might  be 
bonds  among  his  children;  they  met  turned  over  to  the  heir  who  refused 
and  divided  them.  Afterwards  a  ci-  to  surrender  them  to  the  adminis- 
tation  was  brought  to  compel  them  trator.  The  Court  rendered  judg- 
to  turn  them  over  to  the  administra-  ment,  however,  against  such  refus- 
tor.     One  of  the  heirs  refused  so  to  ing  heir. 


§  400  ASSETS     CONCEALET)    OR     EMBEZZLED  -  336 

or  conveyed  away  the  property.  The  proceedings  cannot  be 
maintained  by  one  of  two  administrators  against  the  other,  for 
the  reason  that  each  of  them  has  full  control  of  the  assets. 
Where  the  action  is  brought  by  two  or  more  administrators,  all 
of  them  should  be  made  parties. 

§  400.     Form  of  complaint. 

{Title.) 

The  undersigned  A.  B.  (here  state  whether  the  party  making  the  com- 
plaint is  executor,  administrator,  creditor,  devisee,  legatee,  heir  of  the 
deceased,  or  if  he  is  interested  in  any  manner,  he  should  set  out  in  what 
manner  he  is  interested).  And  respectfully  represents  that  he  has  good 
cause  to  suspect  and  does  verily  believe  that  C.  D.  of  said  county  has  (here 
state  whether  he  has  concealed,  embezzled,  or  conveyed  away)  certain 
goods,  chattels,  and  effects  of  said  deceased.  The  same  being  to  the  best  of 
his  knowledge  and  belief  is  as  follows:  (Here  describe  the  article  or 
whatever  it  may  be  that  is  charged  to  have  been  concealed,  embezzled,  or 
carried  away.)  In  fraud  of  the  rights  of  the  undersigned  and  others 
interested  in  said  estate.  Wherefore  he  asks  that  a  writ  of  citation  may 
issue  against  said  C.  D.  that  he  may  be  compelled  to  answer  under  oath, 
touching  the  matters  of  this  complaint,  that  such  other  proceeding  may  be 
had  in  the  premises  as  is  authorized  by  law. 

Sign. 

State  of  Ohio, 
County,  ss. 

A.  B.  being  duly  sworn  says  that  the  allegations  of  the  above  complaint 
are  true,  as  he  verily  believes. 

Sign. 

Sworn  to  and  subscribed  before  me  and  in  my  presence,  this day  of 


§  401.     Entry  ordering  citation,  etc. 

While  the  statute  does  not  contemplate  a  hearing  upon  this 
complaint  before  a  citation  is  issued,  and  while  there  is  nothing 
said  as  to  the  evidence  required  before  the  judge  is  to  act,  yet 
the  statute  being  analogous  to  the  one  in  New  York,  in  which 
it  is  required  that  before  the  judge  issues  a  citation,  he  must 
be  satisfied  of  the  truth  of  the  complaint ;  it  may  be  said  that 
a  safe  rule  to  be  followed  in  our  State  would  be,  that  the  Court 
should  be  satisfied  that  there  is  good  cause  for  issuing  the  cita- 
tion before  it  is  done.  ISTo  one  in  this  summary  manner  should 
be  dragged  into  court  without  at  least  some  evidence  of  a  cause 


337  CITATION,    ETC.  §  402 

against  liira.^*     The  Court  having  determined  to  issue  a  cita- 
tion, the  following  may  be  used  as  an  entry : 

FORM  OF  ENTRY. 

(Title.) 

This  day  came  A.  B.  and  filed  herein  his  complaint,  praying  that  a  cita- 
tion be  ordered  against  C.  D.  to  appear  in  this  court  to  be  examined, 
touching  his  alleged  (here  state  what  the  charge  is)  of  certain  effects  of 
the  estate  described  in  said  complaint;  and  it  appearing  to  the  court  that  a 
citation   should   issue  thereon;   therefore  it   is  ordered  that  a  citation  be 

issued  and   directed   to   the  sheriff   of county,   ordering  the 

said  C.   D.   to  appear  before  this  court   for    (here   mention  a  day)    to  be 
examined,  touching  his  alleged  concealment   (or  other  matters  charged). 

FORM  OF  CITATION. 

(Title.) 

To  the  Sheriff  of  said  County,  greeting: 

Whereas  complaint  has  been  made  to  the  Probate  Court  of  said  county 
against  C.  D.,  charging  him  with  having  concealed  (embezzled  or  conveyed 
away)  the  assets  of  the  estate  of  E.  F.,  deceased.  You  are,  therefore, 
required  to  summon  the  said  C.  D.  to  appear  before  said  court  forthwitb 
(or  if  special  time  fixed  by  the  court,  so  state  )to  be  examined  on  oath, 
touching  the  matter  of  said  complaint.  Hereof  fail  not;  and  of  this  writ 
make  legal  and  due  returns. 

Witness   my   signature   and   seal   of   the  Probate  Court. 


Probate  Judge.is 


§402.  Imprisonment  for  disobeying  citation.  ''If  a  per- 
son so  cited,  refuses  or  neglects  to  appear  and  submit  to  an 
examination,  or  refuses  to  answer  interrogatories  lawfully  pro- 
pounded, the  court  issuing  the  citation  shall  commit  such  person 
to  the  jail  of  the  county,  there  to  remain  in  close  custody  until 
he  submits  to  its  order  and  direction  in  that  behalf."  [R.  S. 
§6054.]" 

1*  It  is  said  that  the  allegations  lief,  without  disclosing  any  fact,  is 

on  the  part  of  the  petitioner  may  be  fatally  defective.     Delay  in  making 

exclusively  on   information  and  be-  the  application,  e.   g.,   eleven  years 

lief,  without  disclosing  the  sources  after   decedent's    death,    will    defeat 

or   grounds   thereof;    the   only   pre-  it;  especially  where  the  application 

requisite   to   the   issuing  of  a  cita-  is  apparently  for  inquisitorial  pur- 

tion   being   the    satisfaction    of   the  poses  only.     Redf.  Sur.  Prac.  465. 
Surrogate  that  there  are  reasonable  is  This    citation    must    be    served 

grounds  for  the  inquiry.     But  a  pe-  and  returned,  the  same  as  summons, 
tition   only   stating   petitioner's   be-  le  §  10675  G,  C. 


§  403  ASSETS    CONCEALED    OR    EMBEZZLED  338 

§  403.     Party  failing  to  appear  or  refusing  to  answer. 

If  a  party  fail  to  appear,  tlie  Court  may,  by  attachment, 
order  him  to  appear,^'  or  it  may  proceed  and  order  his  impris- 
onment. If  he  appears  and  refuses  to  answer,  he  may  be  im- 
prisoned.    The  entry  may  be  as  follows: 

{Title.} 

This  day  came  E.  F.  before  the  court  upon  a  citation  heretofore  issued, 
and  the  following  interrogatories  were  propounded  to  him,  touching  the 
charge  against  him  (here  state  the  interrogatories)  and  the  said  E.  F. 
refuses  to  answer  the  same. 

Therefore  it  is  adjudged  by  the  Court,  that  the  said  E.  F.  be  committed  to 
the  jail,  and  there  to  remain  in  close  custody  until  he  shall  submit  to 
answer  or  otherwise  be  legally  discharged. 

§  404.     Form  of  commitment  to  jail. 

State  of  Ohio. 

County,  ss. 

In  Probate  Court. 
To  the  Keeper  of  the  Jail  of  said  County,  Greeting: 

Whereas   the day   of ,   C.   D.   having  been   legally 

brought  before  said  court  for  examination  touching,  an  alleged  (here  statb 
them )  by  him  of  certain  goods,  moneys  and  things,  in  action  of  the  deceased 
late  of  said  county.  The  following  interrogatories  were  propounded  to  him 
(here  state  which  he  refuses  and  still  refuses  to  answer,  contrary  to  the 
statute  in  such  cases  made  and  provided ) .  Wherefore  he  has  been  ordered 
by  said  court  to  be  committed  to  the  jail  of  said  county,  there  to  remain 
in  close  custody  until  he  shall  submit  to  the  order  and  direction  of  the 
court  in  that  behalf. 

You  are  therefore  commanded  to  receive  the  said  E.  F.  in  your  custody 
in  the  jail  of  the  county  aforesaid,  there  to  remain  until  he  shall  submit 
to  the  order  and  direction  of  the  court  aforesaid,  or  till  he  be  discharged  by 
due  course  of  law. 

Given  under  my  hand  and  seal  of  said  court,  on  this ....  day  of 

Sign.i8 

§  405.  Examinations  to  be  in  writing.  ' '  Such  examinations, 
including  questions  and  answers,  shall  be  reduced  to  writing, 
signed  by  the  party  examined,  and  filed  in  the  court  before 
which  they  were  taken."     [R.  S.  §  6055.] ^^ 

§  406.     Examination  of  witnesses  to  be  in  writing,  etc.    ' '  If 

required  by  either  party,  the  probate  court   shall  swear  such 

17  If  he  fails  to  appear  he  is  guilty  is  See  §  5648  R.  S.,  As  to  release 

of  contempt  and  may  be  proceeded       from   imprisonment, 
against  accordingly.  i9  §  10676   G.   C. 


339  EXAMINATION,    ETC.  §  407 

other  witness  or  witnesses  as  may  be  offered  by  either  party 
touching  the  matter  of  such  complaint,  and  cause  the  examina- 
tion of  every  such  witness,  including  questions  and  answers,  to 
be  reduced  to  writing,  signed  by  the  witness,  and  filed  as  afore- 
said."    [R.  S.  §6056.] 20 

§  407.     Comments.     Form  of  examination. 

Under  the  present  fonn  of  the  statute,  which  provides  that 
the  matter  in  controversy  may  be  tried  by  the  Court,  or  by  the 
jury,  the  utility  of  the  provisions  of  the  above  sections  requir- 
ing examination  to  be  reduced  to  writing,  are  not  very  ap- 
pai'ent,  but  when  we  consider  the  two-fold  character  of  the  pro- 
ceeding, that  is,  one  as  an  action  for  discovery  and  the  other 
as  one  to  recover  a  judgment  for  the  value  of  the  property,  it 
becomes  clearer.  Our  administration  laws  were  taken  from  the 
statutes  of  Massachusetts,  and  in  that  State  the  proceeding  is 
treated  niore  in  the  nature  of  an  auxiliary  one,  and  therefore 
evidence  in  a  case  of  this  character  might  justify  the  adminis- 
trator or  other  party  to  pursue  an  action  at  law  to  recover  the 
articles  or  the  value  of  the  articles  embezzled.  And  so,  when 
testimony  is  reduced  to  writing,  the  administrator  might,  if 
the  discovery  is  sufficient,  find  it  more  to  the  interest  of  the  es- 
tate to  proceed  in  an  action  at  law,  and  recover  the  specific  ar- 
ticles by  an  action  of  replevin,  than  to  proceed  and  get  a  judg- 
ment against  an  offending  party.  It  is  provided  in  some 
States  that  the  Court  may  make  an  order  directing  the  turning 
over  of  the  specific  articles  found  in  the  possession  of  the  of- 
fending party.     But  our  statute  contains  no  such  provision. ^^ 

20  §  10677  G.  C.  to  render  the  judgment.     If  the  ex- 

2t  Welch,  J.     We  think  the  Court  aminations  showed  that  the  defend- 

of  Common  Pleas  erred  in  ordering  ant  assented  to  the  truth  and  jus- 

the  written  examination  to  be  strick-  tice  of  the  charges,  the  court  had  au- 

en  from  the  transcript.     They  are  a  thority     to     render     the     judgment. 

very  important  part  of  the  proceed-  Howell  vs.  Fry,  19  O.  S.  556. 
ing,  and,  indeed,  the  only  part  which  The  following  are  comments  upon 

the   statute  directly  requires   to   be  the   Massachusetts   statute:      "The 

recorded.     Without  them   it  is   im-  authority  given  to  the  Probate  Court 

possible   to    say   whether   the   court  by  the  above  provisions,  extends  only 

had  jurisdiction,  it  is  impossible  to  to   an  examination   for  the  pxirpose 

find  anything  which  gave  it  power  of  discovery.    No  other  power  is  giv- 


§  408  ASSETS    CONCEALED    OK    EMBEZZLED  340 

FORM  OF  EXAMINATION. 
State  of  Ohio, 

County,  ss. 

In  matter  of  the  Estate  of 
E.    F.,    deceased. 
C.  D.,  being  first  duly  sworn  by  me  to  make  true  answer  to  such  questions 
as  may  be  legally  propounded  to  him,  touching  the  matter  of  the  complaint 
in  the  case,  deposes  and  says: 

Question ? 

Answer 

Signed. 

§  408.  Judgment  of  Court  thereon.  Lien.  ' '  By  the  verdict 
of  a  jury,  if  either  party  requires  it,  or  without,  if  not  required, 
the  court  shall  determine  whether  the  person  or  persons  accused 
is  or  are  guilty  of  either  having  concealed,  embezzled  or  con- 
veyed away  moneys,  goods,  chattels,  things  in  action  or  effects 
of  such  deceased  persons,  and  if  found  guilty,  the  amount  of 
damages  to  be  recovered  on  account  thereof.  In  all  cases  except 
when  the  person  so  found  guilty  is  the  executor  or  administrator 
of  such  deceased  person,  the  court  forthwith  shall  render  judg- 
ment in  favor  of  the  executor  or  administrator,  or  if  there  be  no 
executor  or  administrator  in  this  state,  in  favor  of  the  state, 
against  the  person  or  persons  so  found  guilty  for  the  amount 
of  the  moneys  or  the  value  of  the  goods,  chattels,  things  in  action, 
or  effects  so  concealed,  embezzled  or  conveyed  away,  together 
vnih  ten  per  cent,  penalty  and  all  costs  of  such  proceedings  or 
complaint,  which  judgment  shall  be  a  lien  upon  the  real  estate 
of  the  person  or  persons  against  whom  it  is  rendered  within  the 
county  from  the  rendition  thereof.  If  the  person  so  found  guilty 
is  the  executor  or  administrator  of  such  deceased  person,  the 
court  forthwith  shall  render  like  judgment  in  favor  of  the  state 
against  him  for  such  amount  or  value,  together  with  penalty 
and  costs  as  aforesaid."     [R.  S.  §  6057.]-^ 

Judgment  a  lien.  "Such  judgment  shall  be  a  lien  upon 
the  real  estate  of  the  executor  or  administrator,  within  the 
county  from  the  rendition  thereof.  The  probate  court  must 
forthwith  remove  such  executor  or  administrator  and  commit 
the  administration  of  the  estate,  not  already  administered,  to 

en.     The  examination   is   not  to  be  Smith  Probate  law  157. 

controlled  by  other  evidence,  nor  can  Under    our    statute    the    Probate 

relief    be    directly    granted    upon    it  Court     can     render     judgment     and 

by  any  decree  of  the  Probate  Court.  grant      full      relief.        Tibbott      vs. 

The    process    can   only    result    in    a  Cadish,  2S  0.  C.  A.  481. 
disclosure  of   facts   to  serve  as  the 
basis  of  the  proceedings." 


341  TKIAL JUKY,    ETC.  §409 

some  other  person  or  persons.  The  executor  or  administrator 
so  removed,  shall  not  receive  compensation  for  acting  as  such, 
and  must  be  charged  in  his  account  with  the  amount  of  such 
judgment.  His  property  also  shall  be  liable  for  the  satisfaction 
of  the  judgment  on  execution  issued  thereon  by  his  successor, 
who,  when  the  judgment  is  rendered  by  the  probate  court,  must 
file  a  transcript  with  the  clerk  of  the  common  pleas  court  and 
cause  such  proceedings  to  be  had  as  are  contemplated  in  the  next 
following  section."     [R.  S.  §  6057.] -^3* 

§  409.     Trial.     Jury. 

If  the  party  appearing  before  the  Court  desires  the  matter  to 
be  tried  by  a  jury,  then  it  would  b©  the  duty  of  the  Court  to 
order  tiie  empanelling  of  a  jury ;  and  the  trial  would  then  pro- 
ceed as  an  ordinary  jury  trial  or  the  court  may  reserve  the  case 
to  the  Court  of  Common  Pleas.  Section  10174  G.  C.  (§395a). 
If  no  such  jury  is  demanded,  the  court  will  proceed  to  hear  the 
case.  Whether  or  not  where  a  cause  is  being  tried  by  the  court 
or  jury,  on  the  issue  of  guilty  or  not  guilty  of  the  charges  made 
in  the  complaint,  the  testimony  must  be  reduced  to  writing  and 
signed  by  the  party,  is  a  very  serious  question.  But  as  most 
courts  are  now  provided  with  official  stenographers,  or  if  not  so 
provided,  the  testimony  can  easily  be  reduced  to  writing;  it 
would  be  the  safer  course  to  have  it  reduced  to  writing.  The 
entry  ordering  a  trial  by  jury  may  be  as  fellows: 

(Title.) 

This  day  this  cause  came  on  to  be  heard  and  E.  F,    having  demanded  a 
jury  to  try  the  issue  thereon,  it  is  ordered  that  a  notice  issue  to  the  clerk 

of  the  Court  of  Common  Pleas,  and  the  sheriff  of county,  to 

draw  12  names  from  the  jury  box  to  serve  as  a  jury  herein  as  provided  by 
law;  that  said  clerk  certify  the  names  of  the  list  so  drawn  in  the  order  in 
which  they  are  drawn  to  this  court,  and  that  venire  issue  for  said  jurors, 

returnable  as  required  by  law  that  they  appear  in  this  court  on  the 

day  of ,  at o'clock,  for  the  trial  of  said  cause.24 

ORDER  TO  DRAW  JURY. 

Probate  Court County,  Ohio. 

vs 

To  the  Clerk  of  the  Court  of  Common  Pleas  and  the  Sheriff  of County: 

23  §  10678  G.  C.  Tt  Avould  be  unconstitutional  not 
23*  §  10679  G.  C.                                        to  pive  opportunity  to  have  a  jury 

24  As    to    jury    proceedings,    etc.,       trial.     Howell  vs.  Fry,  19  0.  S.  556, 
§§  1702,   1761. 


§  409  ASSETS    CONCEALED    OR    EMBEZZLED  342 

You  are  hereby  notified  and  directed,  forthwith  on  the  receipt  hereof,  to 
draw ....  names  from  the  box  containing  the  names  of  persons  selected  as 

jurors  for  the  county,  to  serve  as  jurors in  the  Probate 

Court  of  said County,   and  the  clerk  aforesaid  will  return 

to  me  this  writ  with  a  list  of  the  names  so  drawn  endorsed  thereon. 

Witness  my  hand  and  the  seal  of  said  Probate  Court,  this day  of 

A.  D.  190... 

Probate   Judge. 

CERTIFICATE  OF  JURORS. 

The  State  of  Ohio, 

County,   ss. 

Court  of  Common  Pleas. 

To  the  Honorable  Probate  Judge  of  said  County,  Greeting: 

Pursuant   to    your    notice    of 190.  .,    I    have   with    the 

sheriff  of   said   county,   on  this day   of 190 . . ,   drawn, 

according  to  law,  the  following  names  from  the  box  containing  the  names 
of  persons  selected  as  jurors  for  the  County,  to-wit:  (Here  insert  names 
and  residences  of  jurors  drawn). 

Witness  my  signature  and  the  seal  of   the  Court  of  Common  Pleas  of 

said   county,   this day   of 190 .. . 

Clerk. 

By Deputy  Clerk.* 

VENIRE  FOR  JURY,  IN  PROBATE  COURT. 

The  State  of  Ohio, 

County,    ss. 

Probate  Court. 

To  the  Sheriff  of  said  County,  Greeting: 

We  command  you  that,  without  delay,  you  summon  (here  insert  names 
and  residences  of  jurors  summoned)   to  be  and  appear  before  the  Probate 

Court  of  said  County  of at  the  court  house  within 

and    for    said    county,    on , the day   of 

A.  D.  190.  .,  at o'clock.  .  .M.,  and  so  from  day  to 

day  until  discharged,  then  and  there  to  serve  as  jurors;    

and  how  you  shall  execute  this  writ  make  appear  to  our  said  court  on  the 
day  above  named,  and  have  you  then  and  there  this  writ. 

*(a)      In     Municipal     Appropria-  (d)      In   Criminal   case,    §§    6466, 
tion    case.    Sec.    2240,    or    Municipal  5167,    twelve   are   to   be   drawn. 
Damages    case,    §    2317,    twelve,    or  Note. —  After   the   clerk   of   Corn- 
such  less  number  as  may  be  agreed  mon    Pleas    Court   has    certified    the 
upon  by  the  parties  are  to  be  drawn.  above  list  to  the  Probate  Judge  the 

(b)  In  Drift  removal  case,  §  venire  for  them  is  to  be  issued  by 
4577,  or  Road  case,  §§  4628  and  the  Probate  Judge.  (§§  4465, 
4700,   twelve  are  to  be   drawn.  6466.) 

(c)  In     County    Ditch     case,     § 
4465,  sixteen  are  to  be  drawn. 


343  TRIAL  ISSUES  §  410 

Witness  my   signature   as  judge   and   ex-offieio   clerk   of   said  court,   at 
this day  of 190 .. . 


Probate  Judge  and  ex-officio  Clerk  of  the  Probate  Court. 
By Deputy   Clerk. 

The   State  of  Ohio, 

County,  ss. 

Sheriff's  Office, 190. , 

On    the day    of 190 . . ,    I    received    this    venire   and 

served  the  same  on  the  several  persons  therein  named,  at  the  times  and  in 
the  manner  placed  opposite  their  names  endorsed  hereon.  (Here  insert 
tames  of  jurors  drawn,  when  served,  how  served,  and  number  of  miles  dis- 
tant from  court  house.) 

,  Sheriff. 

§  410.     Trial  issues. 

The  issue  in  a  trial  of  a  matter  provided  for  under  sections 
of  the  General  Code  commented  on,  in  this  chapter  is,  was 
the  party  who'  has  been  cited  to  appear  before  the  Court  guilty 
of  having  concealed,  embezzled  or  conveyed  away  any  of  the 
money,  goods,  chattels,  things  in  action,  or  effects  of  the  de- 
cedent ?  If  the  party  is  not  guilty  of  having  either  concealed, 
or  embezzled,  or  conveyed  away  any  such  property,  then  no 
judgment  can  be  rendered  against  him,  and  the  proceedings 
should  be  dismissed.  The  statutes  of  IsTew  York  provide  that, 
if  the  party  files  an  answer  duly  verified,  claiming  to  own  the 
property  or  have  a  lien  thereon,  that  it  would  be  a  good  defense 
to  the  action.  Our  statute  does  not  so  provide,  but  if  on  trial 
it  be  shown  that  the  party  offending  holds  the  property  by  vir- 
tue of  a  claim  of  ownership,  or  some  other  legal  cause  for  so 
doing,  he  cannot  be  found  giiilty  of  charges  made,  of  conceal- 
ing, embezzling  or  conveying  away,  etc.  The  exceptions  might 
be  in  the  case  where  the  party  charged  had  conveyed  away  the 
property ;  then  it  would  be  no  defense  to  merely  claim  an  own- 
ership. But  if  he  proved  an  ownership,  he  could  not  be  found 
guilty  of  having  conveyed  away  property  of  the  deceased ;  and 
in  this  way  the  title  of  the  property  might  be  tried  in  these 
proceedings.  But  where  it  is  sliown  that  the  defendant  still 
holds  the  property  unconcealed  and  unappropriated  to  his  own 
use,  the  action  should  be  dismissed  and  the  administrator  pro- 


§  411  ASSETS   CONCEALED  OR  EMBEZZLED  344 

eeed  at  law  to  recover  the  property.  If  the  verdict  of  the  court 
or  jury  be  that  the  offending  partj^  is  guilty,  then  the  court 
should  render  up  judgment  as  provided  in  the  statute.  In 
such  case  they  should  then  also  find  the  value  of  the  property 
concealed,  embezzled  or  conveyed  away.  The  burden  of  proof 
is  on  the  plaintiff.-*^ 

§  411.     Verdict,  etc. 

If  the  case  is  submitted  to  a  jury,  the  usual  proceedings  per- 
taining to  a  jury  trial  can  be  followed;  and  the  general  practice 
applicable  to  such  trials  would  be  applicable  to  a  proceeding 
under  this  chapter.     Form  of  verdict  may  be  as  follows : 

(Title.) 

And  the  said  jury  being  empaneled  in  this  cause,  do  upon  their  oath 
aforesaid,  say  that  said  C.  D.  is  guilty  as  charged  in  the  complaint  filed 
herein;  and  the  said  jury  do  assess  the  value  of  the  property  so  concealed 

(embezzled  or   conveyed  away)    at dollars. 

,   foreman. 

The  entry  upon  the  return  of  such  verdict  may  be  as  follows : 

(Title.) 

Now  comes  the  said  parties  by  their  attorneys,  and  thereupon  came  the 
jury,  to-wit:  (here  insert  names  of  jury)  who  being  empanelled  and  sworn 
the  truth  to  speak,  upon  the  issue  joined  between  the  parties,  having 
heard  the  evidence  and  arguments  of  counsel  upon  their  oath  aforesaid  say 
(here  copy  the  verdict). 

(If  the  motion  for  a  new  trial  is  filed,  nothing  further  should  be  dene 
until  that  is  disposed  of.  If  the  court  is  informed  that  no  motion  for  a 
new  trial  will  be  filed  it  may  proceed  to  render  judgment  as  provided  in 
the  following  section. ) 

§  412.     Judgment. 

If  the  verdict  of  the  Court  or  of  the  jury  be  that  the  offend- 
ing party  is  guilty,  then  the  Court  shall  forthwith  render  judg- 
ment for  the  amount  or  value  of  the  goods  concealed,  embezzled 
or  conveyed  away.  If  the  case  is  tried  by  a  jury,  undoubtedly 
the  jury  should  find  the  value  of  such  property.  The  Court 
will  add  the  penalty.  If  the  application  is  filed  against  an  ex- 
ecutor or  administrator  in  the  same  court  which  made  the  ap- 
pointment, the  judgment  should  also  be  entered  removing  the 
executor  or  administrator ;  for,  if  he  is  found  guilty,  the  statute 

24a  Leonard   vs.    State,  3   0.   App.    31.3;    20   0.   C.    C.    (X.S.)    340. 


345  JUDGMENT,    ETC.  §  412 

seems  to  be  mandatory  in  requiring  his  removal.  The  follow- 
ing may  be  used  as  forms  of  entries: 

FORM  OF  ENTRY  WHEN  SUBMITTED  TO  COURT. 
(Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  complaint  of  A. 
B.,  charging  C.  D.  of  having  concealed  (embezzled  or  conveyed 
away)  the  property,  goods  and  cliattcls  belonging  to  the  estate  of 
E.  F.,  no  jury  having  been  demanded  by  eitlier  party;  and  the 
same  was  submitted  to  the  Court  upon  the  testimony  of  the  said  C.  D.  and 
other  witnesses,  and  the  arguments  of  counsel.  Whereupon  Court  finds 
that  the  said  C.  D.  is  guilty  of  having  concealed  (embezzled  or  conveyed 
away)  the  following  described  goods  and  chattels  belonging  to  the  estate 
of  the  said  E.  F.  (here  describe  the  same).  And  the  Court  further  finds 
the  value  of  said  property  to  be dollars.* 

It  is  therefore  considered  and  adjudged  by  the  Court  that  the  said  G.  H., 
administrator  of  the  estate  of  E.  F.,  deceased,  recover  against  C.  D.  said 

sum  of dollars,  with  10  per  cent,  penalty  thereon,  amounting 

to dollars,   costs  of  this  proceeding  taxed  at 

dollars. 

If  the  judgment  be  against  an  administrator  or  executor,  it 
may  be  in  the  following  form,  commencing  from  the  star  in  the 
above : 

It  is  further  considered  and  adjudged  by  the  Court,  that  the  State  of 
Ohio,  for  the  use  of  the  estate  of  E.  F.,  deceased,  recover  against  the  said 

A.  B.  the  sum  of . . dollars,  and  the  cost  of  this  proceeding 

taxed   at dollars. 

And  it  is  further  ordered  by  the  Court  that  the  said  C.  D.,  administrator, 
be  removed  from  his  said  trust,  and  that  he  be  required  to  file  an  account 
herein  within days. 

If  the  case  was  submitted  to  a  jury  and  the  verdict  rendered 
by  them,  the  following  form  of  entry  may  be  used : 

(Title.) 
This   cause  having  been   submitted   to  a   jury,   the   same   having   been 

demanded   by ,    and   the   jury   having   found   the   defendant 

guilty,  and  assessed  the  value  of  the  property  by  him  concealed  (embezzled 
or  conveyed  away)  at dollars,  and  the  said  defendant  hav- 
ing filed  his  motion  for  a  new  trial,  which  was  submitted  to  the  Court  and 
by  the  Court  overruled,  it  is  now  further  considered  and  adjudged  by  the 
Court  that  the  said  C.  D.,  administrator  of  the  estate  of  G.  II.,  recover 

against  the  said  A.  B.  the  said  sum  of dollars,  witli  10  per 

cent,    penalty   thereon,   amounting   to dollars,    costs   of   this 

proceeding  taxed   at dollars. 


§  413  ASSETS    CONCEALED   OR   EMBEZZLED  346 

If  the  administrator  or  executor  is  an  offending  party,  then 

beginning  from  the  star  down  should  be  changed  in  the  preced- 
ing form. 

§  413.  Transcript  to  be  filed  in  Common  Pleas  and  execution 
issued.  "The  executor  or  administrator  in  whose  favor  such 
a  judgment  has  been  rendered  by  the  probate  court,  may  forth- 
with deliver  to  the  clerk  of  the  common  pleas  court  in  the  county, 
an  authenticated  transcript  which  the  probate  judge  on  demand 
of  such  personal  representative  shall  make  out  and  deliver  to 
him.  On  such  transcript  the  clerk  forthmth  must  issue  an 
execution  of  the  common  pleas  court  for  the  amount  of  the 
judgment  and  costs,  and  the  costs  accrued,  or  that  may  accrue 
thereon.  Thenceforth  proceedings  on  execution  shall  be  the  same 
as  if  the  judgment  had  been  rendered  in  such  court."  [R.  S. 
§6058.]'^ 

^  414.  If  judgment  in  favor  of  the  State,  when  prosecuting 
attorney  attend  to  it.  "If  such  judgment  is  rendered  in  the 
name  of  the  state,  and  there  is  no  executor  or  administrator 
■wdthin  this  state,  the  prosecuting  attorney  of  the  county  must 
cause  the  transcript  to  be  filed  in  the  clerk's  office,  and  proceed 
thereon  to  execution  as  before  provided.  He  shall  pay  the  money 
realized  upon  such  execution  to  the  treasurer  of  the  county,  for 
the  use  of  such  estate,  reserving  such  compensation  only  to  him- 
self as  the  probate  court  allows/'     [R.  S.  §  6059.] -« 

§  415.  Conveyances  to  evade  these  proceedings  void.  "All 
gifts,  grants  or  conveyances  of  land,  tenements,  hereditaments, 
rents,  goods  or  chattels,  and  all  bonds,  judgments  or  executions, 
made  or  obtained  with  intent  to  avoid  the  purposes  of  these  pro- 
ceedings, or  in  contemplation  of  anv  such  examination  or  com- 
plaint, shall  be  void  and  of  no  effect."     [R.  S.  §  6060.]-* 

25  §  10080  G.  C.  27  §  10682  G.  C. 

26  §  10681  G.  C. 


347 


PARTNERSHIP   ASSETS 


.§416 


CHAPTER  XXIII. 
PARTNERSHIP  ASSETS. 


§  416    Hight  at  common  law.  § 

§  417     Duties  of  surviving  partners. 

§  417a  Foreign    executor    or   admin- 
istrator. § 

§  417b  When       surviving       partners 

may  make   application.  § 

§  418     Where     and     by     whom     ap- 
plication to  be  made.  § 

§  419     Application.  § 

§  420     Entry    ordering    notice,    etc.       § 

§  421     Form    of    notice    of    hearing      § 
application  for  appointment 
of   appraisers.  § 

§  422     Form    of   entry    ordering  ap- 
praisement. § 

§  423     Form    of   inventory    and   ap- 
praisement. 

§  424     Entry     confirming     appraise- 
ment, etc. 

§  425     Oath.     Inventory,  how  made, 
etc. 

§  426    When  executor,  etc.,  to  have 
appraisement  made. 

§  427     When  survivor  may  purchase 
partnership  property. 

§  427a  Bond   of    surviving   partner. 

§  427b  When     survivor     refuses     to 
purchase. 

§  427c  Will   may    define    manner   of 
settlement. 


428  Application  of  surviving 
partner  to  take  at  an  ap- 
praisement. 

429  Form  of  bond  of  surviving 
partner. 

430  Entry  of  court  approving 
election,    etc. 

430a  When   bond   to   be   filed. 
430b  Evidence    of    notice. 
430c  Presentment  of  claims. 
§  430d  Account    of    surviving    part- 
ner. 
§  430e  Discharge   of   surviving   part- 
ner  and   sureties. 
§  430f   Where       surviving       partner 
elects    •'•>   take   after  giving 
bond. 
§  431     When   partner  fails  to  take. 
§  432     When    statu^     does   not    ap- 

§  433     Right    of    surviving    partner. 
§  434     Where   executor   is   surviving 

partner. 
§  435     Executor       continuing       the 

business. 
§  436    Administrator     carrying     on 

business. 
§  437     How   partnership  real  estate 

to   be   conveyed. 
§  438     What     is     partnership     real 

estate. 
§  439    Form  of  executor's  deed. 


§416.    Right  at  common  law. 

At  common  law  the  surviving  partner,  in  the  absence  of  a 
contract  to  continue  the  partnership  after  the  death  of  a  de- 
ceased partner,  has  the  sole  right  to  wind  up  the  business  and 
whatever  remains  in  his  hands  after  the  partnership  is  clased 
up,  and  nothing  more,  is  an  asset  which  could  be  collected  by  an 
administrator.  Unless  the  contract  so  provided,  the  admin- 
istrator had  no  authority  whatever  over  partner.ship  assets. 
Neither  has  the  administrator  now  any  right,  even  by  consent 
of  the  surviving  partner,  to  participate  in  the  business  of  the 
partnership,  unless  the  contract  of  partnership  gives  such  a 
right,  or  the  will  of  the  decedent  so  provided.^  The  common 
law  is  still  in  force  in  Ohio  unless  abrogated  by  statute.*'     In 

Applies  to  both  the  professional 
and  commercial  partnership.  Cham- 
pion vs.  Williams,  2  N.  P.  329;  2 
Dec.   388. 

Does  not  abolish  right  of  sur- 
viving partner  when  so  directed  by 
will  to  continue  partnership.  Cov- 
inpton  Bank  vs.  Wight,  4  N.  P. 
173:   6  Dec.  3.52. 


Surviving  partner  does  not  become 
owner  until  statute  is  complied  with. 
Phoenix  Ins.  Co.  vs.  Callahan,  63 
0.  S.  265. 

a  See  §  8092  G.  C:  S  427c. 

b  Insurance  vs.  Callahan,  19  O. 
C.  C.  97;  11  C.  D.  225;  .Tones  vs. 
DeCamp,  2  N.  P.   (N.S.)   169. 


§  417  PAETNERSHIP  ASSETS  348 

order  to  protect  the  estates  of  deceased  persons  and  give  to  its 
legal  representative  the  power  to  speedily  settle  up  the  affairs  of 
the  partnership,  as  well  as  to  protect  the  rights  of  the  surviving 
partner,  the  sections  of  the  General  Code  in  this  chapter  were 
passed  by  our  legislature.  It  was  for  the  benefit  of  the  deceased 
person's  estate,  rather  than  for  the  remaining  partner,  that 
these  laws  were  enacted/ 

These  provisions,  probably,  do  not  oust  the  jurisdiction  of  a 
court  of  equity  to  wind  up  a  partnership  which  has  been  dis- 
solved by  death.  Neither  do  they  deprive  the  surviving  part- 
ner of  his  right  over  the  partnership  property  until  a  receiver 
is  appointed,  or  he  accepts  the  privileges  of  the  statutes  and 
takes  the  property  at  the  appraisement.- 

It  will  not  be  within  the  scope  of  this  work  to  enter  into  an 
extended  discussion  of  the  rights  of  a  surviving  partner  of  a 
deceased.^ 

§417.  Duties  of  surviving  partners.  "When  a  member  of 
any  partnership  in  this  state  dies,  the  surviving  partner  or  part- 
ners, upon  the  appointment  of  an  executor  or  administrator  of 
the  estate  of  such  deceased  partner,  shall,  forthwith,  make  appli- 
cation to  the  probate  court  of  the  county  in  which  the  partner- 
ship existed,  upon  first  giving  notice  of  the  time  of  the  hearing 
of  such  application  to  the  executor  or  administrator,  for  the 
appointment  of  three  judicious  disinterested  appraisers,  who 
shall  make  out,  under  oath,  a  full  and  complete  inventory  and 
appraisement  of  the  entire  assets  of  the  partnership,  including 
any  real  estate,  together  with  a  schedule  of  the  debts  and  lia- 
bilities thereof,  and  deliver  it  to  the  surviving  partner  or  part- 
ners, to  be  by  him  or  them  forthwith  filed  in  the  probate  court 
of  the  county  in  which  such  appraisers  were  appointed. ' '  [R.  S. 
§3167.]* 

1  Remmelsberg  vs.  Mitchell,  29  0.  In  re  Estate  of  Crane,  29  Bull. 
S.  22.  93:   4  Dec.  398. 

2  In  Ohio  the  statute  is  entirely  ^  See  Champion  vs.  William,  2  N. 
silent  as  to  what  shall  be  done  with  P.  329 ;  2  Dec.  388. 

the     firm's     property     between     the  See  §  382,  As  to  what  constitutes 

death    of    the    partner    and    the    ap-  good  will,  etc. 

pointment  of  a  receiver.  At  com-  ^  §  808.5  G.  C.  This  and  the  fol- 
mon  law,  the  right  of  the  surviving  lowing  sections  provide  the  method 
partner  to  administer  upon  the  part-  wherebj^  partnerships  are  to  be 
nership  estate,  is  not  taken  away  wound  up  when  one  partner  dies, 
from  him  except  upon  one  contin-  and  it  is  exclusive  of  any  rights 
gency,  that  is.  when  he  offers  to  buy  which  the  partner  may  have  had  at 
the  interest  of  the  deceased  partner.  common  law.  Insurance  vs.  Carna- 
Until  that  contingency  happens,  the  ban,  19  0.  C.  C.  97:  11  C.  D.  225, 
surviving  partner,  and  no  one  else,  and  the  rights  of  decedent's  estate 
has  the  possession  and  control  of  and  of  surviving  partners  are  de- . 
the  partnership  property,  subiect,  of  fined  in  this  and  the  following 
course,  to  equitable  rights  of  the  rep-  sections.  Jones  vs.  DeCamp.  2  N. 
resentatives  of  the  deceased  partner  P.  (X.S.)  169.  But  just  bow  far 
and  of  the  firm's  creditors  to  see  the  will  of  a  deceased  partner  con- 
that  the  duties  of  the  surviving  part-  trols  has  never  been  judicially  de- 
ner  are  properly  performed.  Pugs-  termined. 
lev.  J. 


349  APPLICATION    FOlt   xVPPR.\ISEMEJSrT  §  417a 

§  417a.  Foreign  executor  or  administrator.  "When  the 
executor  or  administrator  is  ai)pointed  in  a  county  other  than 
that  in  which  the  partnership  existed,  a  certified  copy  of  such 
inventory  and  appraisement  must  be  forthwith  filed  by  such 
surviving  partner  or  partners  in  the  probate  court  of  thac 
county,  and  it  shall  be  docketed  under  the  settlement  of  the 
estate  of  the  deceased  partner.  When  the  whole,  or  a  part  of 
the  assets  of  such  partnership  consists  of  real  estate,  it  shall  be 
inventoried  and  appraised  upon  a  separate  schedule,  which 
schedule  must  be  recorded  in  the  record  of  inventories  in  such 
court."     [R.  S.  §3167.]'* 

§  417b.     When  surviving-  partners  may  make  application. 

If  the  person  or  persons  entitled  to  administer  upon  the  estate  of 
such  deceased  partner,  fails  or  neglects  for  thirty  days  after  his 
death,  to  take  out  letters  testamentary  or  of  administration,  such 
surviving  partner  or  the  partners  may  make  application  to  the 
proper  court  and  cause  the  estate  of  the  deceased  to  be  admin- 
istered upon."     [R.  S.  §  3167.] ^t 

§  418.     Where  and  by  whom  application  to  be  made. 

It  will  be  observed  that  the  preceding  sections  make  it  the 
duty  of  the  surviving  partner  to  at  once,^  upon  the  appoint- 
ment of  an  administrator  of  the  estate  of  the  deceased  partner, 
to  make  application  to  a  Probate  Court  of  the  county  in  which 
the  partnership  is  situated,  to  have  an  appraisement.  This 
power  of  asking  for  an  appraisement  does  not  exist  until  there 
is  an  administrator  or  executor  appointed.  If  no  other  inter- 
ested party  procures  the  appointment  of  an  administrator  or  ex- 
ecutor, the  surviving  partner  may  make  such  application  and 
have  some  one  appointed,  provided  thirty  days  have  elapsed 
since  the  death  of  the  deceased  partner.  'No  such  appraisement 
can  be  had  without  notice  to  the  executor  or  administrator.  While 
the  notice  might  be  given  before  the  application  is  filed,  yet  if 
the  executor  is  unwilling  to  enter  his  appearance,  it  might  be 

4*  §  S08G  G.  C.  It  has  been  held  that  if  no  person 

4t  80S7  G.  C.  entitled     by     law     appears     Avithin 

B  The  former  statute  allowed  thir-  thirty    days,    and    takes   out   letters, 

ty  days.  that  after  that  time,  the  court  may 

Remmelsberg   vs.   Mitchell,    20    0.  make  an  appointment  without  notice 

S.  22.  to   the   next  of   kin.     In   re   Est.   of 

This  section  only  gives  the  surviv-  John  W.   Warnock,    1    N.   P.    (N.S.) 

ing  partner  the  right  to  hasten   tlie  287    (1903)  ;   20  L.  H.  528;    15   Cir. 

administration;    it   does   not   autho-  D.  695. 

rize  the  same  to  make   an   appoint-  It  would  not  give   him   the   richt 

ment  otherwise  than  is  provided  by  to      be      appointed      administrator. 

see   §10617   G.   C.   §114.      Page  vs.  Page  vs.  Warnock,   1  N,  P.    (N.S.) 

Warnock,  25  O.  C.  C.  695.  287;  14  Dec.  278. 


§  419  PAKT2vEES:ilP    ASSETS  350 

better  to  file  the  application,  and  let  the  Court  order  notice  to 
be  given  and  set  a  day  for  hearing.  If  the  administrator  or 
executor  makes  application  for  the  appraisement,  like  notice 
should  be  given  the  surviving  partner.® 

The  title  of  a  surviving  partner,  who  takes  the  assets  of  a 
partnership  in  proceedings  had  in  the  Probate  Court  under  this 
act,  is  not  vitiated  by  the  fact  that  tlie  appraisers  were  ap- 
pointed by  the  Probate  Court  upon  the  recommendation  of  the 
parties,  and  that  the  appraisers  returned  under  oath,  as  their 
report,  an  inventory  and  appraisement  previously  made  by  tJiem 
at  the  request  of  the  surviving  partner,  and  the  personal  repre- 
sentative of  the  deceased  partner.' 

§  419.     Application. 

The  statute  does  not  indicate  what  the  application  should 
contain.  But  it  should  show  the  jurisdictional  facts  upon 
which  the  authority  of  the  Court  rests  to  make  the  order,  which 
would  be,  first,  that  the  party  making  the  application  is  the 
sun'iving  partner  of  the  partnership  existing  at  the  deadi  of  the 
deceased ;  and,  second,  that  there  has  been  an  executor  or  ad- 
ministrator appointed.  The  application  can  be  in  the  follow- 
ing form : 

{Title.) 

The  undersigned,  I.  J.,  respectfully  represents  that  he  is  the  surviving 
partner  of  the  late  firm  of  I.  J.  &  Co.,  composed  of  the  said  I.  J.  and  A.  B., 

8  The  first  question  arisincj  under  and  accomplished  by  its  application, 
this  act  is,  do  its  provisions  apply  if  the  case  be  one  in  \vhich  the  es- 
in  a  case  where  the  surviving  part-  tate  is  represented  by  an  executor 
ner  is  one  of  the  personal  represen-  or  administrator  who  is  not  the  siir- 
tatives  of  the  estate  of  the  deceased  viving  partner,  although  the  sur- 
partner?  \\'hether  they  would  or  vivor  may  also  stand  in  the  relation 
not,  where  the  survivor  is  the  sole  of  personal  representative  to  the  es- 
representativc.  we  need  not  now  in-  tate.  Under  our  system  of  admin- 
quire.  It  would  seem,  however,  istering  estates,  where  the  trust  is 
that  the  statute  only  contemplates  confided  to  two  or  more  persons,  any 
a  case  where  a  person,  other  than  one  of  them  may  bind  the  estate 
the  surviving  partner,  represents  the  without  the  concurrence  of  his  co- 
estate.     But  we  think,  nevertheless,  representatives. 

that  the  terms  as  well  as  the  pur-  '^  Remmelsberg  vs.  ^Mitchell.  29  O 

pose  of  the  act  may  be  fully  satisfied  S.  22;  see  44  O.  S.  69. 


351  NOTICE,  ETC.  §  420 

deceased,  which   firm   were  doing  business  in county,   State 

of  Ohio,  at  the  time  of  the  death  of  the  said  A.  B.;  and  on  the day  of 

,  the  said  A.  B.  died  intestate   (or  testate)   and  the  said  C. 

D.  has  been  duly  appointed  and  qualified  as  administrator  (or  executor) 
of  his  estate  and  is  still  acting  as  such.  Wherefore  the  undersigned  mak^a 
application  for  the  appointment  of  three  judicious  disinterested  persons 
to  act  as  appraisers  to  make  a  full  and  complete  inventory  and  appraise- 
ment of  the  entire  assets  of  the  said  partnership,  including  real  estate, 
if  there  be  any,  together  with  the  schedule  debts  and  liabilities  thereon, 
according  to  the  statute  in  such  cases  made  and  provided;  and  respectfully 
suggest  M.  N.,  0.  P.,  and  Q.  R.  as  suitable  persons  for  such  appraisers. 

Sign. 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day 

f>{ 


ENTRY  OF  APPEARANCE. 

The  undersigned,  administrator  of  the  estate  of  A.  B.,  deceased,  hereby 
enters  his  appearance  and  consents  to  the  appointment  of  the  appraisers,  as 
suggested  in  the  above  application. 

§  420.     Entry  ordering  notice,   etc. 

If  the  administrator  or  executor  refuses  to  endorse  the  peti- 
tion as  suggested  in  the  above  form,  or  the  surviving  partner 
where  the  administrator  makes  the  application,  and  the  appli- 
cation is  filed  in  the  Probate  Court  without  proof  of  notice 
having  beeoi  given,  the  following  would  be  a  suitable  entry: 

{Title.) 

On  this  day  came  I.  J.,  surviving  partner  of  the  firm  of  I.  J.  &  Co.,  of 
which  A.  B.,  deceased,  was  a  member,  and  filed  his  application  in  this 
court  to  have  an  appraisement  of  the  partnership  of  the  property  and 
assets  of  said  firm.     Wherefore  it  is  ordered  that  said  matter  be  set  for 

hearing   on   the day   of ,    and   that   notice   thereof   be 

given  to  C.  D.,  administrator  (or  executor)  of  the  said  A.  B.,  of  the  time 
of  hearing  of  said  application. 

§  421.     Form  of  notice  of  hearing  application  for  appointment  of 
appraisers. 

To 

You  mil  take  Notice,     That  the  application  of  "the  undersigned 

of  the  late  partnership  of ,  do- 
ing business   at in  the  county  of ,   Ohio, 

for  the  appointment  of  three  judicious,  disinterested  appraisers,  to  make 
out  under  oath  a  full  and  complete  inventory  and  appraisement  of  the 
entire  assets  of  such   partnership,   including  real  estate,  together  with  a 


§  422  PARTNERSHIP    ASSETS  352 

schedule  of  the  debts  and  liabilities  thereof;  will  be  for  hearing  before  the 

Probate  Court  of County,  Ohio,  on ,  the 

day  of ,   A.   D.    190.  .  .,  at o'clock.  .  .M. 


The  State  of  Ohio, 

County,  ss. 

,  being  duly  sworn,  says  that  on  the day  of 

A.    D.    190..,    he    delivered    to a    true    copy    of    the 

above  notice. 


Sworn  to  before  me,  and  signed  in  my  presence,  this day  of . 

,  A.   D.    190... 


§  422.     Form  of  entry  ordering  appraisement. 

'  (Title.) 

This  day  this  matter  came  on  to  be  further  heard  upon  the  application 
of  I.  J.,  the  surviving  partner  of  the  firm  of  I.  J.  &  Co.,  and  it  appearing 
to  the  Court  that  C.  D.,  the  duly  appointed  and  qualified  administrator 
(or  executor)  of  t4ie  estate  of  said  A.  B.,  has  been  notified  of  this  proceed- 
ing, and  that  the  said  M.  N.,  O.  P.,  Q.  R..  three  judicious,  disinterested 
persons,  are  suitable  persons,  it  is  ordered  that  they  make,  under  oath,  a 
full  and  complete  inventory  and  appraisement  of  the  entire  assets  of  the 
said  partnership,  to  include  real  estate,  if  there  be  any,  together  vvlth  a 
schedule  of  debts  and  liabilities  thereon,  and  deliver  the  same  to  the 
surviving  partner,  to  be  by  him  forthwith  filed  in  this  court. 

§  423.     Form    of    inventory    and    appraisement. 

PARTNERSHIP   ASSETS,    ETC. 

Probate  Court, County,  Ohio. 

In  the  matter  of  the  Estate  of 

,   deceased. 

No 

Inventory  and  Appraisement. 
Partnership  of 


ORDER  TO  APPRAISERS. 

To..... 

You  have  been,  by  the  Probate  Court  of  said  county,  appointed  appraisers 
to  make  out,  under  oath,  a  full  and  complete  inventory  and  appraisement 
of  the  entire  assets  of  the  partnership  of ,  includ- 
ing real  estate,  if  there  be  any.  together  with  a  schedule  of  the  debts  and 
liabilities  thereof,  and  deliver  the  same  to  the  surviving  partner  or  part- 
ners, to  be  by  him  or  them  forthwith  filed  in  the  Probate  Court  of  this 
county  in  which  you  are  appointed. 


353  INVENTORY,    ETC.  §  423 

Witness  my  hand  and   the  seal   of  the   Probate  Court  of   said   County, 

this day  of ,  A.  D.  190... 

Probate   Judge. 

OATH  OF  APPRAISERS. 

The  State  of  Ohio, 

County,  &s. 

We,  the  undersigned,  do  make  solemn  oath  that  we  will  truly,  honestly 
and  impartially,  make  out  a  fu"  and  complete  inventory  and  appraisement 

of  the  entire  assets  and  liabilities  of  the  partnership  of 

in   obedience   to   the   foregoing ;    and   perform   the  other   duties 

required  by  law  of  us  in  the  premises,  as  such  appraisers,  to  the  best  of  our 
knowledge  and  ability. 


Sworn  to   before   me,   and   subscribed    in  my   presence   this day  of 

190... 


REPORT   OF  APPRAISERS. 

To  the  Probate  Court  of County,  Ohio: 

We,  the  undersigned  appraisers,  appointed  by  order  of  said  court,  have 

made  out   under  oath,   a   full   and   complete   inventory   of  the   assets   and 

liabilities  of  the  partnership  of ,  and  return  the 

same  herewith,  together  with  said  order. 
Dated  this day   of 190... 


Appraisers. 
INVENTORY  AND  APPRAISEMENT. 

Partnership  of 

Schedule  A.     Personal  Goods  and  Chattels. 

SCHEDULE  B. 

Moneys  belonging  to  said  partnership: 

N.  B.     If  there  is  no  money,  state  "  No  Money  of  any  kind." 

SCHEDULE  C. 

The  fo-llowing  is  a  particular  statement  of  all  bonds,  mortgages,  notes 
and  all  other  securities  for  the  paymont  of  money  belonging  to  said  partner- 
ship (which  are  known  to  the  surviving  partner  or  to  the  administrator 
or  executor ) . 

SCHEDULE  D. 

The  following  is  a  statement  of  all  other  debts  and  accounts,  rights  and 
credits  belonging  to  said  partnership  (which  are  known  to  the  surviving 
partner  or  partners,  administrator  or  executor). 


§  423  partnership'  assets  354 

SCHEDULE  E. 

REAL   ESTATE. 

We,  the  undersigned  appraisers,  do  on  our  oaths,  and  upon  actual  view, 
appraise  the  real  estate,  used  in  whole  or  in  part  in  the  transaction  of  the 
business  of  said  partnership,  hereinafter  described,  as  follows,  to-wit: 
Dated 190..  .. 


Appraisers. 
The  following  is  a  statement  of  all  liabilities,  debts  and  accounts,  owing 
by  said  partnership : 

SCHEDULE  F. 

partners'  accounts   with  the  partnership. INDIVIDUAL  BALANCES. 

Due  to $ 

Due  to $ 


Total . 

Due  from 

Due  from 


Total 

STATEMENT. 

Appraised  value  of  assets 

Add    total    charged    partners 


Total 

Appraised  liabilities 

Add   total   credited   partners 

Add  expenses  of  this  appraisement. 


Total 

Net   assets  —  liabilities 

Decedent's  full  share 

Decedent's  individual  balance  added  —  de- 
ducted -^  we  determine  his  net  inter- 
est to  be 

Date 190 


Appraisers. 

ATFIDAVIT. 

The  state  of  Ohio, County,  ss. 

The  undersigned 

of ,    late    of   said    county,    being 

duly  sworn  according  to  law,  deposes  and  says  that  the  foregoing  inven- 
tory is  in  all  respects  just  and  true,  that  it  contains  a  true  statement  of  the 

entire  assets  of  the  late  partnership  of 

including  real  estate,  which  has  come  to 

the  knowledge  of  said  affiant,  and  particularly  of  all  moneys,  bank  bills, 
or  other  circulating  medium  belonging  to  the  said  partnership;  and  of  all 
just  claims  of  the  said  partnership  against  the  said  affiant..,  or  other 
persons,  according  to  the  best  of  affiant's  knowledge;  together  with  a  sched- 
ule of  the  debts  and  liabilities  of  said  partnership. 
A.  D.   190.... 


Sworn  to  before  me  and  signed  in  my  presence,  this day  of 

Probate  Judge. 


355  INVENTORY HOW    MADE  §  424 

CERTIFICATE  TO  COPY  FOR  FOREIGN  COUNTY. 

The  state  of  Ohio, 

County. 

Probate  Court. 
To  the  Probate  Court  of County,  Ohio : 

Whereas,  The  executor  or  administrator  of  the  within  named  decedent 
has  been  appointed  in  your  said  county,  and  whereas,  the  within  described 
partnership  of  which  said  deceased  was  a  member,  existed  in  this  county  of 

,  Ohio,   therefore,   in  accordance  with   tlie   laws   of 

Ohio,  requiring  a  certified  copy  of  the  appraisement  to   be  filed   in   your 

court,  I, ,  sole  judge  and  ex-officio  clerk  of 

the  Probate  Court  within  and  for  said  county  of 

do  hereby  certify  that  the  within  is  a  true  copy  of  the  original  inventory 
and  appraisement  now  on  file  in  this  court. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal  of 
said  Probate  Court  this day  of 190 .... 

Judge  and  ex-officio  clerk. 

§  424.     Entry  confirming  appraisement,  etc. 

{Title.) 

This  day  came  I.  J.  and  filed  herein  an  appraisement  of  the  property 
belonging  to  the  partnership  of  I.  J.  &  Co.,  of  which  A.  B.,  deceased,  was 
a  member,  and  the  same  appearing  regular  and  correct  is  approved  and 
confirmed.  (And  if  the  administrator  or  executor  was  appointed  in  the 
Probate  Court  of  another  county,  add  the  following:)  And  it  appearing 
to  the  Court  that  C.  D.,  executor  (or  administrator)  of  the  estate  of  the 
late   A.   B.,   was   appointed   as   such   executor    (or   administrator)    in   the 

Probate  Court  of county,  and  it  is  ordered 

that  a  certified  copy  of  this  appraisement  be  filed  in  Ihat  court  forthwitti, 
by  said  surviving  partner.^a 

§  425.    Oath.    Inventory,  how  made,  etc. 

It  is  very  questionable  whether  the  administrator  can  admin- 
ister the  oath  to  appraisers  of  a  partnership  as  provided  by  sec. 
10649  G.  C.  (§209).  Such  oath  may  be  administered  by  any 
person  authorized  to  administer  oaths  in  general.  Whatever  was 
said  in  the  chapter  on  inventories  is  generally  applicable  to 
the  manner  in  which  the  appraisement  should  be  made — that 
is,  in  making  out  the  schedule.  The  appraisers  will  often  en- 
counter great  difficulty  in  determining  the  value  of  the  good- 
will of  a  partnership.  The  value  of  the  goodwill  of  a  business 
is  always  difficult  to  determine.  But  when  the  valuation  is  to 
be  made,  taking  into  consideration  the  rights  of  a  surviving 
partner,  it  is  still  more  difficult  to  ascertain.  The  surviving 
partner   is  not   compelled   to   give   up   the   business   and   may 

7a  The  practice  is  not  uniform  as  estate  of  decedent  that  it  is  done; 

to  whom  should  bo  charged  the  ex-  others     that     it     is     a     contingency 

penses  attaching  to  partnership  ap-  known  at  the  time  the  partnership 

praisement,    etc.      Some    courts    tax  is    created,    to    occur    and    it    being 

them  to  the  partnership,  and  others  formed    with    that    knowledge,    the 

tax  them  against  tlie  estate  of  the  costs  should  be  assessed  against  the 

decedent  on  the  theory  that  it  is  to  partnership, 
the  interest  of  the  settlement  of  the 


§  425  PARTNEKSHIP    ASSETS  356 

continue  in  the  same  kind  of  trade,  and  the  value  of  the  in- 
terest of  the  deceased  partner  is  limited  by  this  fact,  and  the 
sale  of  the  business  and  good  will  by  the  Court  are  upon  the 
understanding  that  the  survivor  can  so>  continue,  the  purchaser 
getting  the  right  of  a  chance  of  retaining  the  old  customers.^ 
With  this  right  existing  in  an  active  surviving  partner,  the 
good  will  of  the  deceased  partner  is  of  very  little  value. 

If  the  transfer  of  the  interest  of  a  partner  is  involuntary 
or  Ijis  retirement  enforced,  he  may  solicit  the  old  customers. 
The  reason  is  that  the  duty  not  to  solicit  them  arises  from  his 
implied  contract  not  to  detract  from  what  he  has  sold,  which 
is  a  personal  obligation  and  not  an  incident  to  the  transfer 
of  property ;  and  hence  does  not  apply  to  compulsory  alienation, 
as  by  a  sale  of  his  interest  in  bankruptcy,  or  at  sherifi's  sale,  or 
in  case  of  his  expulsion  from  the  firm  under  a  provision  in  the 
articles  permitting  it  for  misconduct,  and  has  been  repaid  his 
share  of  the  capital.^ 

The  value  of  the  good  will  of  such  copartnership  is  the  esti- 
mate of  advantage  secured  by  succeeding  to  its  business,  with- 
out reference  to  the  exclusion  of  any  person  from  engaging  in 
a  like  business.  There  is  no  implied  agreement  between  part- 
ners, that  upon  the  dissolution  of  the  firm  by  the  death  of  a  mem- 
ber, that  the  survivor  will  not  engage  in  and  carry  on  a  like 
business  on  his  own  account.  The  value  of  such  good  will 
is  based  on  the  mere  probability  that  the  customers  of  the  firm, 
and  others  induced  by  its  reputation,  will  deal  and  trade  with 
its  successor ;  the  advantage  of  succeeding  is  not  an  asset  for  dis- 
tinct and  independent  valuation,  but  it  is  an  element  in  the 
value  of  the  tangible  property  of  the  partnership,  and  should 
be  considered  by  the  appraisers  in  making  the  appraisement  of 
the  partnership  assets.^" 

8  Bates  Partnership,   §  665.  tinuing  business ;   the  estate  of  the 
Ante  §  382,  Goodwill  of  business.       decedent  is  not  hazarded  by  such  use 

9  Bates  Partnership,   §  667.  as  a  holding  out. 

A  surviving  partner  can  use  the  Bates  Partnership,  §  673. 

name  of  the  deceased  partner  in  con-  lo  See  §  382,  As  to  good  will,  etc. 


357  EXECUTOR    HAVE    APPRAISEMENT  §  426 

§  426.  When  executor,  etc.,  to  have  appraisement  made.  "If 
the  surviving  partner  or  partners  neglect  or  refuse  to  have  such 
inventory  and  appraisement  mfide,  the  administrator  or  executor 
of  the  deceased  partner  must  have  it  made,  in  accordance  with 
the  provisions  of  the  next  three  preceding  sections."  [R.  S. 
§3168.]^! 

The  method  of  procedure  by  an  executor  to  make  the  appli- 
cation for  an  appraisement  of  the  personal  assets,  is  similar  to 
that  of  a  surviving  partner,  and  the  fonns  suggested  in  the 
preceding  sections  can  with  little  alteration  be  made  applicable 
if  the  administrator  or  executor  malces  the  application  under 
this  section.  The  executor  or  administrator  it  seems  is  not 
bound  to  wait  any  particular  length  of  time.  Such  matters 
ought  to  be  speedily  adjusted,  and  if  the  surviving  partner 
does  not  make  the  application  in  a  very  short  time,  the  statute 
says  forthivith,  the  executor  or  administrator  should  proceed  to 
make  the  application  quite  soon  after  his  qualification. 

5  427.    When  survivor  may  purchase  partnership  property. 

"With  the  consent  of  the  executor  or  administrator  of  the  de- 
ceased partner,  and  the  approval  of  the  probate  court  by  which 
such  executor  or  administrator  was  appointed,  the  surviving 
partner  or  partners  may  take  the  interest  of  such  deceased  part- 
ner in  the  partnership  assets,  at  the  appraised  value  thereof, 
first  deducting  therefrom  the  debts  and  liabilities  of  the  part- 
nership, upon  giving  to  the  executor  or  administrator  his  or 
their  promissory  note  or  notes,  with  good  and  approved  security, 
for  the  payment  of  the  interest  of  the  deceased  partner  in  the 
partnership  assets.  Such  note  or  notes  shall  be  payable  with 
interest,  in  not  to  exceed  nine  mon+hs  from  the  time  the  sur- 
viving partner  or  partners  elect  to  take  such  as«:ets,  which  elec- 
tion must  ])e  made  within  thirty  days  from  the  date  of  filing  the 
inventory  and  appraisement,  or  a  certified  copy  thereof  in  such 
court."     [R.  S.  §3169.] ^2 

?  427a.  Bond  of  surviving-  partner.  ' '  Such  surviving  part- 
ner or  partners  shall  give  bond  to  the  executor  or  administrator, 
with  surety  or  sureties  to  the  approval  of  the  court  for  the 
payment  of  the  partnership  debts  and  liabilities,   and  for  the 

performance  of  all  contracts  for  which  the  partnership  is  liable." 
[R.  S.  §3169.]"* 

"  §  8088  G.  C.  12*  §  8000  G.  C. 

12  §  8089  G.  C.  See  §  430a. 


§  427b  PARTNERSHIP'  ASSETS  358 

§  427b.  When  survivor  refuses  to  purchase.  ' '  In  the  event 
that  such  surviving  partner  or  partners  refuse  or  neglect  to  take 
the  interest  of  the  deceased  partner  in  the  partnership  assets 
within  the  time,  and  in  the  manner  above  provided,  such  execu- 
tor or  administrator  forthwith  shall  apply  to  a  court  of  com- 
petent jurisdiction  for  the  appointment  of  a  receiver  for  the 
partnership,  who  thereupon  must  proceed  to  wind  it  up  and 
dispose  of  its  assets,  in  accordance  wdth  the  statutes  governing 
receivers.  The  probate  court  shall  be  a  court  of  competent  juris- 
diction in  the  appointment  and  control  of  the  receiver  herein 
provided  for."     [R.  S.  §  3169.] ^^-j- 

?  427c.  Will  may  define  manner  of  settlement.  "When  the 
original  articles  of  a  partnership  in  force  at  the  death  of  a  part- 
ner, or  the  will  of  a  deceased  partner  dispenses  vdth  an  inven- 
tory and  appraisement  of  the  partnership  assets,  and  vath  a 
sale  of  the  deceased  partner's  interest  therein,  and  such  article 
or  will  provides  for  a  different  mode  for  the  settlement  of  such 
interest,  and  for  a  disposition  thereof  different  from  that  pro- 
vided for  herein,  such  interest  shall  be  settled  and  disposed  of 
in  accordance  with  the  provisions  of  such  articles  or  wall." 
[R.  S.  §3169.]  12$ 

§  428.     Application  of  surviving'  partner  to  take  at  an 
appraisement. 

The  surviving  partner  has  thirty  days  from  the  date  of  the 
filing  of  the  inventory,  or  certified  copy  thereof,  within  which 
to  make  his  election  to  take  the  property  at  its  appraised  value. 
This  application  can  only  be  filed  in  the  court  in  which  the 
administrator  or  executor  was  appointed.  It  can  not  be  made 
in  any  other  county,  although  an  appraisement  may  be  had  in 
any  county  in  which  the  partnership  existed.  It  seems  that 
the  surviving  partner  has  not  an  absolute  right  of  election,  but 
that  it  is  dependent  on  the  consent  of  the  administrator  and 
with  the  approval  of  the  Probate  Court.  The  application  should 
set  out  all  these  facts,  and  may  be  in  the  following  form: 
(Title.) 

Xow  comes  said  I.  J.,  surviving  partner  of  the  firm  of  I.  J.  &  Co.,  lately 
composed  of  I.  J.  and  A.  B.,  deceased,  doing  business  (here  state  place), 
under  the  firm  name  of  I.  J.  &.  Co.,  and  hereby  elects  to  take  tlie  assets  of 
said  firm  at   dollars,  the  same  being  the  appraised  value 

I2t  §  8091  G.  C.  doubt  the  partnership  interest  of  the 
I2t  §  8092  G.  C.  Of  course  the  deceased  can  be  disposed  of  as  pro- 
surviving  partner  would  be  bound  vided  in  the  will,  but  if  they  are 
by  the  partnership  agreement,  but  not  and  a  good  reason  can  be  shown, 
how  far  his  rights,  as  provided  in  I  am  inclined  to  believe  the  surviv- 
the  previous  sections,  might  be  con-  ing  partner  could  liave  the  partner- 
trolled  by  the  provisions  of  a  will  ship  assets  disposed  of  as  provided 
of  the  deceased  partner  raises  an  in  the  preceding  sections.  See  also, 
interesting  question.  If  the  pro-  Bank  vs.  Wight,  4  N.  P.  173;  6 
visions  made  in  the  will  are  satis-  Dec.  350. 
factory  to  the  surviving  partner  no 


359  APPLICATION  TO  TAKE  PROPERTY  §  429 

thereof  as  fixed  by  the  appraisers  heretofore  appointed  by  this  court,  after 
deducting  the  amount  of  the  debts  and  liabilities  of  said  firm.  He  further 
represents  that  C.  D.,  executor  (or  administrator)  of  the  said  A.  B.,  con- 
sents to  his  said  election  and  the  said  I.  J.  offers  to  give  said  C.  D.,  ex- 
ecutor  (or  administrator)    his  promissory  note  for 

dollars,  the  balance  due  after  deducting  debts   and  liabilities  of  the  said 

partnership  as  returned  by  said  appraisers.     Said  note  being  dated . 

day  of ,  23ayable  (here  insert  cash  or  any  time 

within  nine  months)  to  the  order  of  said  C.  D.,  administrator  (or  executor) 
with  U.  V.  and  X.  Y.  as  securities  thereon,  and  also  offers  his  bond  in  the 

sum  of dollars  with  U.  V.  and  X.  Y.  as  securities 

for  the  payment  of  said  debts.  Wherefore  said  I.  J.  respectfully  asks 
that  the  Probate  Court  approve  the  said  election  made  by  him  as  above 
herein   stated. 

Sign. 

The  administrator    (or  executor)    should,  in  writing,  enter  his  approval, 
and  it  may  be  as  follows: 

I  hereby  consent  to  the  election  of  I.  J.  to  take  assets  of  the  late  firm 
of  I.  J.  &  Co.,  as  stated  above,  and  ask  the  court  to  approve  the  same. 

Sign. 

§  429.     Form   of   bond   of   surviving   partner. 

Whereas, late   of 

county,  Ohio,  deceased,  was  at  the  time  of  his  death,  a  member  of  a  part- 
nership, existing  in  said county,  under  the  firm 

name  of .  .  .  •. ,  and  composed  of  said  de- 
cedent   and    of 

surviving  partner . .  —  and  whereas,  said 

surviving    partner . . ,    as    aforesaid,    h , 

after  inventory  and  appraisement  of  the  entire  assets  and  liabilities  of 
said  partnership  in  the  Probate  Court  of  said  county,  and  with  the  consent 
of  the  administrator ..  .executor ..  .of  said  decedent,  and  the  approval  of 
said  Probate  Court,  elected  to  take  the  assets  of  said  partnership  at  their 
appraised  value  and  upon  the  terms  prescribed  by  statute,  and  to  give  the 
bond  required  by  law  for  the  payment  of  the  debts  and  liabilities  of  the 

said  partnership. —  Now,  therefore,  we 

,  as  principal,  and 

as    sureties,    bind   ourselves    to 

administrator.  .  .executor.  .  .of  the  said 

deceased,  in  the  sum  of 

dollars,  that  the  said surviving 

partner... as  aforesaid,  will  pay  the  debts  and  liabilities  of  the  said  part- 
nership   of 

and  if  no  default  be  made  therein,  then  this  obligation  to  be  void;  other- 
wise to  be  and  remain  in  full  force  and  virtue  in  law. 

Given  under  our  hands,  this day  of A.  D.  190. . . 


§  430.     Entry  of  Court  approving  election,  etc. 

(Title.) 

This  day  this  matter  came  on  to  be  further  heard  upon  the  election  of  1. 
J.,  surviving  partner  of  the  late  firm  of  I.  J.  &  Co.,  to  take  the  assets  of  said 
firm  as  heretofore  returned  to  this  court  by  appraisers  appointed,  which 
appraisement  and  inventory  was  duly  confirmed  by  this  Court.     It  having 

been  found  by  said  appraisement  that  the  value  of  said  assets  was 

dollars,  after   deducting  the   liabilities;    and  the  said   I.  J. 

having  tendered   his   promissory   note   therefor,   according   to   the   statute, 
with  U.  V.  and  X.  Y.  as  sureties  thereon,  and  also  having  tendered  his 


§  431  PARTNERSHIP   ASSETS  360b 

"Wliether  or  not  the  surviving  partner  would  be  relieved  from 
an  individual  liability  of  the  payment  of  the  claim  that  was  not 
presented  within  one  year,  would  be  questionable,  and  there- 
fore he  may  be  interested  in  his  individual  capacity,  in  knowing 
that  all  the  claims  have  been  paid  or  accounted  for. 

The  Probate  Court  should  examine  the  account  and  vouchers 
the  same  as  an  administrator's  account,  and  he  could  call  the 
surviving  partner  before  him  to  enlighten  him  on  anything  that 
the  account  did  show  clearly.  This  account  should  show 
the  assets  collected  and  disbursements  made  as  well  as  the  list 
of  creditors  who  have  presented  claims. 

§  431.     When  partner  fails  to  take. 

If  an  appraisement  has  been  made  either  upon  application 
of  a  surviving  partner,  or  the  executor,  and  the  surviving 
partner  fails  and  neglects  to  take  the  interest  of  the  deceased 
partner  according  to  the  provisions  of  the  statute,  than  it  is  the 
duty  of  the  executor  or  administrator  to  forthwith  apply  to  a 
court,  of  competent  jurisdiction,  and  the  Probate  Court  is  a 
court  of  competent  jurisdiction,  for  the  appointment  of  a 
receiver  to  wind  up  the  partnership  in  the  maimer  that  part- 
nerships are  usually  settled.^*  While  the  statute  says  that  "  if 
the  surviving  partner  refuses  or  neglects  to  take,"  I  have  no 
doubt  that  a  receiver  might  be  asked  for  by  an  administrator 
when  the  administrator  did  not  give  his  consent,  or  where  the 
Probate  Court  did  not  give  its  approval  to  the  application  of 
the  sundving  partner  to  take  the  assets.  Whether  or  not  the 
Probate  Court  could  compel  an  administrator  to  give  his  con- 
sent, has  never  been  determined,  but  it  would  rather  seem  to  be 
the  purpose  of  the  statutes  that  if  the  appraisement  was  a  fair 
one,  that  the  administrator  or  executor  could  not  captiously 
prevent  the  surviving  partner  from  taking  the  assets ;  and  that 
if  he  refuses  without  good  cause,  the  Court  might  make  an 
order  directing  him  to  consent  to  such  sale. 


*to 


§  432.     When  statute  does  not  apply. 

Statute  itself  makes  some  exceptions  to  its  owm  provisions. 
One  is  where  the  articles  of  copartnership  provide  for  a  mode 

14  Bates  Part,  §  740. 


361  EIGHTS   OF   SURVIVING   PAKTNEB  S  433 

of  settlement,  and  the  other  is  where  the  will  of  a  deceased  part- 
ner provides  for  another  method  of  adjustment.  In  these 
eases  the  interest  of  the  deceased  partner  is  to  be  settled  in 
accordance  with  the  provisions  of  the  articles  of  partnership, 
or  of  the  will  of  the  deceased.  The  statute  does  not  oust  a 
court  of  equity  of  its  jurisdiction  upon  the  application  of 
creditors  to  wind  up  the  partnership  in  such  a  court  and  in 
a  proceeding  for  that  purpose/^ 

§  433.     Rights  of  surviving  partner. 

At  common  law  the  siu'viving  partner  had  the  right  upon 
the  death  of  a  member  of  the  firm,  to  collect  the  assets,  pay 
the  debts  and  account  to  the  representatives  of  the  estate  for  the 
balance.  As  the  common  law  controls  where  not  supplemented 
by  statute,  there  may  be  some  question  as  to  the  extent  of  the 
surviving  partner's  powers  under  our  law.  Unquestionably 
imtil  an  appraisement  is  made,  he  may  exercise  the  common 
law  powers  of  a  surviving  partner ;  he  could  make  any  con- 
tract that  would  come  within  the  proper  scope  of  the  partner- 
ship business.  If  the  firm  was  insolvent  he  could  make  an 
assignment,  or  he  could  throw  the  matter  into  a  court  of  equity 
and  have  the  partnership  affairs  settled  in  that  manner,  he 
might  even  do  tliis  any  time  before  he  accepts  to  take  the 
firm  property  as  provided  by  statute.  If  the  partnership  is 
insolvent,     or    the     deceased     partner    was     indebted     to    the 

15  Horsey    vs.    Heath,    5    O.    353;  The  deceased  member  may  provide 

See  McKee  vs.  Hamilton,  33  0.  S.  7;  by   will   that  the   partnership   shall 

Wise  vs.  Miller,  4.5  0.  S.  388.  continue;   and  if  his  co-partners  as- 

Tho  articles  of  co-partnership  may  sent,  the  partnership  will  continue, 
provide  that  the  partnership  shall  and  he  may  specify  to  what  extent 
be  continued  by  the  administrator  his  estate  shall  be  liable  for  the  post- 
of  the  deceased,  or  by  any  one  in  mortuary  debts.  Rand  vs.  Wright, 
the  interest  of  the  estate;  and  in  (Ind.)  40  X.  E.  Rep.  447;  Burwell 
such  an  event  death  will  not  work  a  vs.  Cawood,  2  How.  560;  Davis  vs. 
dissolution  of  the  co-partnership.  Christian,  15  Graft.  11:  E.xchange 
Rand  vs.  Wright,  (Tnd.)  30  N.  E.  Bank  vs.  Tracy,  77  Mo.  504. 
Rep.  447;  Schmidt  vs.  Archer,  113  I  am  not  sure  that  a  Court  of 
Ind.  295;  Scholefield  vs.  Eichel-  Equity  can  take  away  the  jurisdic- 
berger,  7  Pet.  586;  Laughlin  vs.  tion  of  the  Probate  Court.  See 
Lorenz,  48  Pa.  St.  275:  Cratz  vs.  Insurance  vs.  Carnahan,  19  O.  C.  C. 
Bavard,  11  S.  &  R.  41  :  Edwards  vs.  07;  11  C.  D.  225:  Jones  vs.  De- 
Thomas,  66  Mo.  468;  Espy  vs.  Camp,  2  N.  P.  (N.S.)  133;  15  Dec. 
Comer,  76  Ala.  501;  Leaf's  Appeal,  160. 
105  Pa.  St.  505. 


§  434  PAKTNEKSIIIP    ASSETS  362 

surviving  partner,  the  better  course  to  pursue  would  be  to 
have  a  court  of  equity  wind  up  the  partnership  affairs  and 
find  what  was  due  the  surviving  partner.  For  the  surviving 
partner  could  have  no  right  of  action  against  the  administrator 
or  executor  of  the  deceased  partner  until  the  amount  which  the 
deceased  partner  owed  the  survivor  is  ascertained.^^ 

§  434.     Where  executor  is  surviving  partner. 

Upon  this  matter  Bates  very  justly  says^"*:  "Although  it 
may  be  improper  to  appoint  the  surviving  partner  administra- 
tor of  the  deceased  partner,  by  reason  of  the  conflict  of  incon- 
sistent duties,  yet  his  appointinent  as  executor  by  the  deceased 
often  occurs.  The  advantage  in  this  is,  that  resort  to  a  sudden 
and  forced  winding  up  is  unlikely,  and  its  disadvantage  is 
that  settlement  between  the  estate  and  the  surviving  partners 
in  any  way  other  than  by  an  accounting  and  winding  up  is 
greatly  embarrassed,  as  will  be  seen." 

If  a  surviving  partner  has  been  made  executor  or  adminis- 
trator he  must  necessarily  be  both  buyer  and  seller,  and  it  seems 
in  such  case  to  be  impossible  to  make  any  arrangement  that 
cannot  be  successfully  attacked  by  heirs  or  distributees,  unles? 
they  also  assented  to  it;  and  neither  good  faith,  adequacy  of 
consideration,  or  the  advice  of  counsel,  will  protect  the  title  of  a 
trustee  buying  at  his  own  sale,  the  policy  of  the  law  being  to 
deem  such  transaction  fraudulent  pe?*  se  and  not  sustainable  by 
explanations  when  objected  to  by  a  party  in  interest.  It  is  the 
duty  of  an  executor  or  administrator  of  a  surviving  partner 
who  dies  with  partnership  assets  in  his  possession  while  he  is 
engaged  in  settling  the  partnership  business  to  complete  such 
settlement  unless  relieved  by  a  competent  court.^' 


16  See  Bates  Partnership,   §§   735,  Bank   vs.   Wright,   4   N.    P.    173;    6 

736,  732.  Dec.  350;  In  re  Crane,  29  Bull.  93; 

These  matters  can  only  be  casual-  Leach  vs.  Church,  15  O.  S.  169. 

ly  discussed  here  and  reference  must  See  §  518,  Carrying  on  business  of 

be  had  to  general  works  on  that  spe-  deceased, 

cific  subject.  le*  Partnership,    §§   742,   744. 

See  Lockwood  vs.  Mitchell,  7  O.  S.  "  Dayton    vs.    Bartlet,    38    O.    S. 

387;  Kries  vs.  Gorton,  23  O.  S.  468;  357;  In  re  Crane,  4  N.  P.  173. 


363  EXECUTOK     CONTINUING     BUSINESS  §  435 

The  two  members  of  a  firm  agree  in  their  partnership 
articles  that,  in  case  of  the  death  of  either,  the  business  should 
be  settled  up  as  soon  as  the  survivor  and  the  legal  representa- 
tives of  the  deceased  partner  should  deem  expedient,  and 
that  the  business  should  be  continued  or  sold,  as  might  be 
agreed.  One  of  the  partners  died,  and  the  only  one  of  his 
executors  who  qualified  was  the  surviving  partner.  It  was 
held  that  he  could  not,  as  executor,  agree  with  himself  as  sur- 
viving partner  concerning  the  matters  referred  to  in  the  uart- 
nership  articles.^^ 

§  435.     Executor  continuing  the  business. 

There  is,  possibly,  a  distinction  between  an  executor  contin- 
uing the  partnership  under  the  directions  of  a  will,  and  an 
administrator  permitting  the  partnership  to  continue.  In  ei- 
ther case  it  is  not  a  desirable  position  for  an  executor  or  ad- 
ministrator to  occupy.  For  he  incurs  a  personal  liability  for 
the  obligations,  in  eflect,  of  the  new  firm.  If  the  business  is 
conducted  successfully,  he  must  account  to  the  estate ;  if  unsuc- 
cessful, he  runs  the  danger  of  being  made  personally  to  suffer 
the  loss.^®  Where  good  faith  and  good  judgment  have  been 
exercised,  the  courts  will  always  favor  the  administrator  or 
executor  in  such  matters,  and  allow  him  to  charge  up  against 
the  estate  whatever  debts  may  be  incurred. 

As  a  partner  cannot  possibly  continue  to  be  a  member  of  a 
firm  after  his  death,  any  agreement  with  his  executor  or  other 
person  having  a  beneficial  interest  in  the  share  of  the  assets 
which  belonged  to  him,  for  the  continuation  of  the  business 
thereafter  with  the  surviving  partner,  is,  necessarily,  the  for- 
mation of  another  partnership,  the  terms  of  which  when  not 
otherwise  expressly  agreed  upon,  may  be  implied,  from  tlie 
manner  of  conducting  the  business,  to  be  the  same  as  those  of 

18  In  re  Knubley,  20  N.  Y.  Supp.  is  See  Woerner  on  Admin.  282,  § 

58;  S.  C.  28  Abb.  N.  C.  457.  506  et  seq.j  P.  C.  &  St.  L.  Ry.  Co. 

See  Remmelsberg  vs.  Mitchell,  29  vs.  Schneider,  8  C.  C.  355;  4  C.  D. 

O.  S.  22.  535;  Lucht  vs.  Behrens,  28  O.  S.  231. 

See  §  518. 


§435 


PARTNERSHIP    ASSETS 


364 


the  former  partnership.*"  The  extent  of  the  liability  of  the 
deceased's  estate  for  debts  created  after  his  death,  depends  on 
the  articles  of  agreement  or  tlie  directions  in  the  will.^^  If  the 
provision  in  the  partnership  article  is  that  the  deceased  part- 
ner's capital  shall  remain  in  the  business,  his  personal  repre- 
sentative is  not  entitled  to  be  admitted  into  the  management 
of  such  business."  As  to  past  indebtedness,  created  during  his 
lifetime,  his  whole  estate  is  liable  for  its  payment,  whether  all 
of  it  be  invested  in  the  business  or  not.^^ 

Wliere  the  will  of  the  deceased  partner  provides  that  the 
survivor  shall  continue  the  business  for  joint  benefit,  only  so 
much  of  the  estate  as  is  embarked  in  the  business  is  hazarded.^* 
To  render  the  estate  liable  beyond  the  amount  invested  in  the 
partnership,  the  language  of  the  article  or  will,  continuing  the 
partnership  must  be  unequivocally  to  that  effect,  showing  a 
positive  intention  that  it  should  be  so  liable."® 

zoMcGrath   vs.    Covven,    57    0.    S.  Id.  McGrath  vs.  Cowen,  57  O.  S. 

385.  401. 


"  What  is  inaccurately  called  pro- 
visions against  the  dissolution  of  the 
partnership  is  an  agreement  that,  if 
either  party  dies  his  property  shall 
remain  in  the  firm  and  in  the  busi- 
ness for  the  benefit  of  his  children; 
or  that  his  children,  or  some  of 
them,  or  some  other  person,  shall 
immediately  on  his  death  take  his 
place  in  the  firm  and  become  a  part- 
ner in  his  stead.  All  these  agree- 
ments and  arrangements  and  all 
that  can  be  made  for  a  similar  pur- 
pose, are  in  fact  only  bargains  for 
the  creation  of  a  new  partnership 
when  the  old  one  ceases  to  exist. 
And  so,  too,  all  arrangements  or 
contracts  which  may  be  made  be- 
tween the  surviving  partners  and  the 
representatives  or  appointees  of  the 
deceased  have  for  their  effect  only 
the  formation  of  a  new  partnership, 
which,  upon  same  terms  or  other 
takes  the  stock,  and  carries  on  the 
business  of  the  old  one." 


21  Blodgett  vs.  American  Nat. 
Rink,  49  Conn.  9;  Schofield  vs. 
Eichelberger,  7  Pet.  586;  Davis  vs. 
Christian,  15  Gratt.  11. 

22  Wild  vs.  Davenport,  48  N.  J.  L. 
129. 

23  Tompkins  vs.  Tompkins,  18  S. 
C.  I;  In  re  Clapp,  2  Lowell  168. 

21  Bank  vs.  Wight,  4  N.  P.  173;  6 
Dec.  350;  See  Dair's  Estate,  2  Dec. 
360;  7  N.  P.  309. 

26  Band  vs.  Wright,  (Ind.)  40  N. 
E.  Rep.  447 ;  Burwell  vs.  Cawocd,  2 
How.  560;  Jacquin  vs.  Buisson,  11 
How.  Pr.  385 ;  Brasfield  vs.  French, 
59  Miss.  632;  Smith  vs.  Ayer,  101 
U.  S.  320;  Hart  vs.  Anger,  38  La. 
Ann.  341. 

If  the  partnership  is  continued  ac- 
cording to  the  terms  of  a  will,  the 
effect  is  to  create  a  new  partnership, 
and  the  creditors  of  the  new  firm 
have  no  claim  upon  the  general  es- 
tate of  the  deceased  —  only  on  so 
much  of  it  as  is  invested  in  the 
partnership  business. 


365 


ADMINISTRATOR     CONTINUING    BUSINESS 


§436 


§  436.     Administrator  carrying  on  business. 

The  administrator  has  no  right  whatever  to  continue  the 
partnership  business.  Even  in  a  case  where  a  will  so  directs, 
an  executor  may  exercise  his  judgment  whether  or  not  he  will 
continue  the  business,  but  if  an  administrator  does  continue  the 
business,  he  must  do  so  accepting  the  full  responsibility  and 
assuming  a  personal  liability  for  all  the  debts  of  the  new  firm, 
and  running  the  risk  whether  the  same  will  be  allowed  as  a 
proper  charge  in  his  settlement  of  tlie  estate.  It  ought  as  a 
rule  never  to  be  allowed. 

If  the  administrator  of  the  deceased  partner  consent  that 
the  surviving  partner  shall  carry  on  the  business,  then  the 
latter  will  be  liable  only  for  the  profits  and  not  for  the  losses, 
unless  he  be  negligent  and  thereby  a  loss  is  occasioned.^"  In 
such  an  instance  the  personal  representative  has  no  lien  upon 
the  property  as  against  subsequent  creditors  of  the  concern. ^^ 


Pitkin  vs.  Pitkin,  7  Conn.  307; 
Stanwood  vs.  Owen,  14  Gray  195; 
Vincent  vs.  Martin,  79  Ala.  540. 

It  is  optional  with  eitlier  tiie  ex- 
ecutor or  administrator  to  carry  on 
tlie  business  even  wliere  an  appar- 
ent duty  is  imposed  by  tlie  will. 

Edgar  vs.  Cook,  4  Ala.  588;  Wild 
vs.  Davenport,  48  X.  J.  L.  129; 
Berry  vs.  Folker,  60  Miss.  576; 
Louisiana  Bank  vs.  Kenner,  1  La. 
384;  Jacquin  vs.  Buisson,  11  How. 
Pr.  385. 

For  if  he  does  carry  on  the  busi- 
ness he  will  be  personally  liable  to 
all  transacting  business  with  the 
firm. 

Alsop  vs.  Mather,  8  Conn.  584; 
Citizen's  M.  Ins.  Co.  vs.  Ligon,  59 
Miss.  305;  Wild  vs.  Davenport,  48 
N.  J.  L.  129. 

To  escape  liability  to  the  heirs 
he  must  conduct  the  business  as  the 
will  directs;  or,  if  there  are  no  di- 
rections, as  his  testate  did  and  he  is 
not  bound  to  take  security  for  sales 
on  credit  as  an  administrator  is  usu- 
ally required  to  do.  Cline's  Appeal. 
106  Pa.  St.  617. 

If  a  partner's  will  provided  for  a 
continuation  of  his  interest  in  the 


firm  name,  the  residue  of  his  estate 
is  not  thereby  implicated  in  lia- 
bility for  future  debts,  nor  is  the 
settlement  of  his  estate  suspended. 
Peters  vs.  Campbell,  3  W.  L.  M.  587. 

The  will  of  a  partner,  providing 
for  continuing  his  capital  in  a  firm, 
does  not  autliorize  the  executors  to 
invest  further  funds  therein,  nor 
does  it  implicate  the  rest  of  his  es- 
tate for  subsequent  business  debts. 
And  their  consent  to  a  change  of  the 
articles  by  admitting  new  partners 
and  increasing  the  capital  will  not 
implicate  the  estate  beyond  the 
amount  vested. 

See  §  518;  See  Covington,  etc.,  vs. 
W'ight,  4  N.  P.  173;  6  Dec.  350. 

27  See  §  506  et  seq.j  Millard  vs. 
Ramsdell,  Harr.  (Mich.)  Ch.  373; 
also  previous  section. 

28  Hoyt  vs.  Sprague,  13  Otto.  613. 
Wliere  a  going  concern  passes  into 

the  hands  of  an  administrator  the 
court  will  rely  upon  his  ability  to 
handle  the  business  to  the  advant- 
age of  the  estate  and  will  not  scruti- 
nize acts  of  a  discretionary  character 
in  the  absence  of  any  showing  of 
bad  faith  or  incapacity.  In  re 
Kohangi,  16  N.  P.   (N.S.)   337. 


§  437  PARTNERSHIP    .ASSETS  366 

By  merely  consenting  to  the  continuance  of  the  partnership 
business  the  administrator  does  not  become  personally  liable.^^ 
If  the  deceased  partner  has  withdrawn  as  much  or  more  of  the 
assets  than  his  share,  the  survivor  is  not  liable  to  account  for 
profits.^'^  If  some  of  the  interested  parties  consent,  and  some 
do  not,  to  the  carrying  on  of  the  business  of  the  survivor,  the 
earnings  must  be  divided  according  to  the  capital  to  which  each 
is  entitled,  after  deducting  such  share  of  them  as  is  attributable 
to  the  service  and  skill  of  the  surviving  partner.''^ 

§  437.     How  partnership  real  estate  to  be  conveyed.    ' '  When 

the  real  estate  of  a  partnership  is  appraised  and  elected  to  be 
taken  by  the  surviving  partner  or  partners,  upon  the  execution 
and  delivery  of  the  note,  or  notes,  and  the  bond  hereinbefore 
provided  for,  the  probate  court  shall  order  the  executor  or  ad- 
ministrator to  execute  and  deliver  to  the  purchaser  or  pur- 
chasers, a  deed  for  the  deceased  partner's  interest  in  such  real 
estate,  which  deed  shall  pass  the  title  thereto.  Tlie  real  estate 
of  such  a  partnership  shall  be  held  to  include  only  such  lots, 
tracts,  or  parcels  of  real  estate  as  are  used  in  whole  or  in  part 
in  the  transaction  of  its  business."     [R.  S.  §  3170.]  ^- 

§  438.     What  is  partnership  real  estate. 

At  common  law  a  partnership  was  incapable  of  holding  the 
title  to  real  estate.  This  doctrine,  however,  has  been  very  much 
impaired  if  not  entirely  abrogated  by  the  decisions  of  our 
State.  It  is  now  held  that  real  estate  purchased  for  partner- 
ship purposes,  paid  for  with  partnership  funds  and  actually 
used  in  the  partnership  business,  should  be  regarded  as  part- 
nership assets,  within  the  meaning  and  operation  of  this  stat- 
ute. But  real  estate  not  needed  or  used  for  a  partnership  pur- 
pose, though  paid  for  with  partnership  means,  is  not  assets 
of  the  firm  within  the  meaning  of  this  act.     Notwithstanding 

29  Richter  vs.  Poppenhusen,  39  real  estate,  the  court  would  be  act- 
How.  Pr.  82;  Lauglilin  vs.  Lorenz,  ing  without  jurisdiction,  and  the 
48  Pa.  St.  275;  Avery  vs.  Myers.  acts  could  be  attacked  and  set  aside 
60  Miss.  367.  in  a  collateral  proceeding  brought  in 

30  Hyde  vs.  Easter,  4  Md.  Ch.  80;  the  Court  of  Common  Pleas.     It  is 
Taylor    vs.    Hutchinson,    25    Gratt,  therefore  very  essential  to  first  de- 
536.  termine  that   it   is   in   fact  partner- 
si  Eobinsnn  vs.  Simmons   (Mass.),  ship  real  estate,  and  in  determining 

15  N.  E.  Rep.  558.  this    question    it    would    be    well    to 

See    §518.  examine  Jones  vs.  De  Camp,  2  N.  P. 

32  §  8098  G.  C.  (N.S.)     133:    15    Low.    D.    169;    af- 

If    the    court    should    assume    to  firmed   by    Circuit    Court,    June    26, 

act  under  tliis  section,  and  it  should  1903.      Affirmed   by    Supreme   Court 

turn   out  tliat  tlie   partnership   real  without    report.      Delaplain    et    al. 

estate   was  not   in   fact   partnership  (DeCamp)  v.  Jones,  72  0.  S.  616. 


367 


PARTNERSHIP    REAL    ESTATE 


438 


the  rents  and  profits  thereon  should  be  applied  to  partnership 
use.^^ 

Land  purchased  with  partnership  funds  and  occupied  and 
used  by  the  firm  conducting  its  business,  is  partnership  proper- 
ty, although  conveyance  is  made  to  the  individual  members  of 
the  firm.^*  In  another  case  it  is  intimated  that  a  partnership 
name  is  an  improper  one  for  the  grantee,  but  while  the  title 
ought  to  be  taken  in  the  name  of  the  individual  partners,  yet 
it  would  not  be  invalid  to  take  the  title  of  the  name  of  the 
firm.^^ 

A  partnership  is  capable  of  holding  a  mortgage  to  secure 
a  debt  due  the  firm.^*^  There  seems  to  be  yet  an  element  of 
uncertainty  whether  or  not  partnership  real  estate  is  a  com- 
plete conversion  into  personalty,  snch  as  will  bar  the  widow's 
right  of  dower  in  the  proceeds  remaining  after  the  payment  of 
the  debt ;  and  whether  such  proceeds  are  to  be  regarded  as 
real  estate  or  personal  property  for  all  purposes.     In  several 


33  Remmelsberg  vs.  ^Mitchell,  29 
0.  S.  23. 

It  must  be  conceded  that  a  co- 
partnership is  incapable  of  taking 
or  holding  the  legal  title  to  real  es- 
tate, yet  it  is  equally  certain  that  it 
may  acquire  an  equitable  csbate 
therein.  It  is  well  settled  that 
whenever  real  estate  is  purchased 
with  partnership  funds,  an  equitable 
estate  accrues  to  the  partnership, 
whether  the  legal  title  be  conveyed 
to  the  partners  as  individuals,  or  to 
either  of  them,  or  to  a  stranger; 
and  in  such  case,  upon  the  death  of 
the  person  holding  the  legal  title,  it 
descends  to  his  heirs  at  law  in  trust 
for  the  benefit  of  the  partnership — - 
at  least  to  the  extent  that  it  may 
be  needed  to  satisfy  demands  against 
the  partnership,  whether  such  de- 
mands exist  in  favor  of  a  stranger 
or  a  member  of  the  copartnership. 
This  doctrine  is  quite  familiar,  as  is 
also  the  doctrine  that  in  such  case 
the  realty  is  regarded  and  treated 
as  personal  property  in  tlie  hands  of 
the  partnersliip  to  the  extent  it  may 
be  needed  for  partnersliij)  liabilities. 

And  we  may  go  a  step  further. 
There  is  no  doubt  that  if,  by  the 
terms  of  the  partnei-sliij)  articles, 
real  estate  be  purchased  with  part- 


nership fundSj  or  be  put  otherwise 
into  the  partnership  stock,  to  be 
used  and  held  solely  for  partnei-ship 
purposes,  it  is  to  be  regarded  as  con- 
verted out  and  out  into  personalty, 
so  that  the  heir  at  law  takes  no 
beneficial  interest  tlierein  in  anv 
event,  but  the  proceeds  not  needed 
for  partnership  purposes  passes  to 
the  personal  representatives  of  the 
copartners.  Remmelsberg  vs.  Mitch- 
ell, 29   0.   S.   52. 

In  Jones  vs.  De  Camp,  2  N  P. 
(KS.)  1,33;  15  Dec.  169;  affirmed 
by  Supreme  Court  without  report, 
Delaplain  et  al.  (DeCamp)  v. 
Jones,  72  0.  S.  616,  the  question-  is 
gone  into  fully  as  to  what  consti- 
tutes partnership  real  estate,  and  it 
is  tliere  held  that  one  of  the  essen- 
tials is  that  before  real  estate  can 
bcome  firm  assets  and  be  in  /act 
personal  property,  it  must  be  pur- 
chased with  partnership  funds.  On 
pages  170  and  177  twelve  funda- 
mental principles  are  given  controll- 
ing such  matters. 

3 1  T?ank  vs.  Sawyer.  38  0.  S.  339. 

3r.  Teare  vs.  Cain,  7  C.  C.  375;  4 
C.    P.    643. 

36  Bank  vs.  Johnson,  47  0.  S. 
306. 


438 


PAKT^^^EESIIIP    ASSETS 


368 


cases  ^^  it  is  held  that  the  widow  is  not  entitled  to  dower.  But 
in  these  cases  it  appears  that  the  question  arose  whether  she  was 
entitled  to  dower  in  partnership  property,  when  it  was  neces- 
sary to  use  the  partnership  property  for  partnership  purposes 
and  pay  partnership  debts.  But  there  is  a  tendency  towards 
the  doctrine  that  such  property  is  personal  property  and  the 
widow  is  not  entitled  to  dower  in  any  instance.^*  In  a  more 
recent  case  it  was  held  that  real  estate  property  purchased  \\ath 
partnership  funds  and  used  for  partnership  purposes,  is  there- 
by equitably  converted  into  personalty,  and  continues  to  be 
such  after  the  death  of  one  of  the  partners  and  the  discontinu- 
ance of  the  business,  and  until  there  has  been  a  complete  set- 
tlement of  the  affairs  of  the  firm  and  final  division  of  assets.^* 


37  Green  vs.  Green,  1  0.  535;  Sum- 
ner vs.  Hampson,  8  0.  328 ;  Johns  vs. 
Johns,  1  O.  S.  357. 

38 "  Thus,  the  old  doctrine  seems 
to  have  been  that  there  could  be  no 
partnership,  properly  so  called,  in 
land,  bat  the  contrary  doctrine  is 
now  universally  held ;  and  that  a 
widow  of  a  deceased  partner  is  not 
dowable  in  lands  Avhich  the  firm 
owned  and  regarded  as  partnership 
stock,  is  settled  by  numerous  decis- 
ions, among  which  are  the  cases  in 
the  1  O.  535,  and  8  0.  328. 

39  Fisher  vs.   Lang,    19   Bull.   139. 

This  case  was  one  in  which  an  heir 
brought  suit  in  partition,  and  the 
court  held  such  suit  could  not  be 
brought.  Judge  Peck  in  an  opinion 
says,  "  There  is  a  good  deal  of  con- 
flict in  the  authorities  on  this  sub- 
ject of  conversion.  In  the  majority 
of  States  of  the  Union  the  doctrine 
of  conversion  out  and  out  does  not 
prevail,  but  it  obtains  in  England 
and  in  the  States  of  Virginia  and 
Kentucky,  and  as  we  understand  the 
decisions,  it  is  the  law  of  Ohio.  The 
case  of  Green  vs.  Green,  1  0.  535, 
seems  to  announce  the  doctrine  of 
total  conversion  into  personalty,  and 


though  there  is  a  case  in  the  5  0. 
264.  Green  vs.  Graham,  which  seems 
to  look  the  other  way,  yet  in  that 
case  it  simply  appears  that  the 
property  was  purchased  with  part- 
nership funds ;  it  does  not  appear  to 
have  been  purchased  for  partnership 
purposes;  and  it  was  there  held  that 
the  interest  of  the  deceased  partner 
descended  to  his  heirs.  But  in  a 
case  in  the  8  O.  364^  Sumner  vs. 
Hampson.  there  is  a  very  clear  opin- 
ion by  Judge  Lane,  where  a  widow 
claimed  dower  in  property  which 
had  been  purchased  and  used  for 
partnership  purposes,  and  the  Court 
denied  her  claim,  saying  that  it  con- 
tinved  to  be  personalty  notwith- 
standing the  death  of  the  partner." 
"  Speaking  for  myself. —  1  do  not 
know  that  I  should  speak  for  the 
court  on  this  point  —  but  speaking 
for  myself,  the  reasoning  seems  to 
be  in  favor  of  conversion  out  and 
out,  for  that  doctrine  seems  better 
adapted  to  the  preservation  of  the 
business  and  good  will  of  the  firm, 
whereas  if  the  heirs  may  come  in  the 
moment  one  of  the  partners  dies  and 
apart  the  realty  upon  which  the 
business  is  situated,  the  latter  may 


369  FORM  OF  DEED  §  439 

The  courts  would  probably  now  bold  that  the  proceeds  of 
partnership  real  estate  after  the  payment  of  all  debts  ajid  lia- 
bilities of  the  firm,  are  personalty,  and  as  such  belong  to  the 
administrator.  This  idea  is  strengthened  by  the  provisions  of 
the  sections  of  the  General  Code  treated  of  in  this  chapter, 
giving  to  the  administrator  the  power  to  sell  real  estate  and 
receive  the  proceeds.*" 

§  439.     Form  of  executor's  deed. 

Know  all  Men  by  these  Presents: 

That,   whereas,  on  the day  of 190 .  .  . ,  A.  B. 

was  duly  appointed  and  qualified  as  administrator  (or  executor  )of  the 
estate  of  C.  I).,  deceased,  late  of  said  Clark  County,  by  the  Probate  Court 

of  said  county,  and  afterwards,  to-wit:     On  the day  of 

,   I.   J.   filed  his  application    in   the Court, 

to  have  an  appraisement  of  the  partnership  property  of  the  iate  firm  of 
I.  J.  &  Co. 

And  whereas,  on  the day  of ,  said  court 

ordered  said  property  to  be  appraised,  and  thereafter,  to-wit:      On  the 

day  of ,  said  I.  J.  filed  his  election  in  the  said 

court  to  take  the  interest  of  the  said  A.  B.  in  the  nrm  of  I.  J.  &  Co.,  at 
said  appraisement. 

And   thereafter   on   the day   of    ,    the   court 

gave  its  approval  to  the  election  made  by  said  I.  J.  to  take  the  interest  of 
the  said  C.  D.,  deceased,  in  the  said  partnership  property;  and  ordered  that 
upon  the  payment  of  the  appraised  value  of  said  interest  and  the  liabilities 
of  said  firm,  as  the  statute  provides,  that  said  A.  B.  should  make  and  de- 
liver to  said  1.  J.  a  deed  for  the  interest  which  the  said  A.  B.  owned  in  the 

be    broken    up,    destroyed.     At    any  performed   all   the   functions   to   the 

rate,     whether     the     reasons     upon  partnership,  and  thereby  ceases  to  be 

which    it   rests    are    satisfactory   or  partnership    capital;     that    the    in- 

not,   the   doctrine   is   established   in  choate  right  of  the  wife  of  a  partner 

Ohio,  and  for  that  reason,  as  well  as  in  the   real   estate   of   her   husband 

for  the  reason  that  in  this  case  there  only  attaches  to  such  of  the  real  es- 

is  an  outstanding  unsettled  claim  of  tate  as  remains  in  specie  unconvert- 

large  amount  against  the  firm  which  ed,  after  the  partnership  is  termin- 

is   not   disputed,   that  is,   it  is  not  ated  by  judgment  or  agreement  and 

disputed  that  there  is  such  a  claim,  its  afl'airs  completely  wound  up  and 

for  both  those  reasons  we  all  agree  ended, 

that    the    petition    of    the    plaintiff  See   §  949,  Dower, 

will   have    to   be   dismissed."     Peck,  Holmes  vs.  Mudd,   (Min.  1894)  27 

Judge,  in  Fisher  vs.  Long,   19  Bull.  L.  R.  A.  340. 

139.  When     it     becomes     real     estate. 

40  It  has  been  held  that  partner-  Robinson  vs.  Miller,    (111.   1894)    27 

ship  capital  invested  in  land  for  the  L.  R.  A.  449.     With  extended  note, 

benefit  of  the  company  will  be  treat-  Surviving  partner.     Galbraith  vs. 

ed  as  personalty,  and  not  subject  to  Tracy,  153  111.  54;  28  L.  R.  A.  129, 

dower   or   inheritance   until    it   has  161,  with  extended  note. 


§439 


PAE.TNEK.SIIIP    ASSETS  370 


real  estate  belonging  to  said  firm.  All  of  which  will  more  fully  appear  by 
records  of  said  court,  to  which  reference  is  made. 

l>jow,  therefore,  I,  the  said  A.  B.,  administrator  (or  executor)  of  the 
estate  of  C.  D.,  deceased,  aforesaid,  by  virtue  of  the  said  proceedings  and 
of  the  statute  in  such  cases  made  and  provided,  and  of  the  power  vested 
in  me  and  for  and  in  the  consideration  of  the  premises  in  the  sum  of 
dollars,  paid  by  said  I.  J.,  the  receipt  whereof  is  here- 
by acknowledged,  do  hereby  grant,  bargain,  sell  and  convey  to  said  I.  J.,  his 
heirs  and   assigns   forever,  all   the   right,    title  and   interest  that  the  said 

A.  B.  owned  in  the  following  real  estate,  situate  in  the  county  of 

'•  •  -,  State  of  Ohio  and  in  the  township  of 

find  bounded  and  described  as  follows; 

To  have  and  to  hold  said  premises,  with  all  the  privileges  and  appur- 
tenances thereto  belonging  to  the  said  I.  J.,  his  heirs  and  assigns  forever, 
as  fully  and  completely  as  he,  the  said  A.  B.,  as  such  administrator,  by 
virtue  of  said  order  of  court  and  of  the  statute  made  and  provided  for  such 
cases  might  or  should  sell  and  convey  the  same. 

In  witness  whereof  the  said  A.  B.,  as  such  administrator,  has  hereunto  set 
his  hand,  this day  of A,  D.   190 

Signed  and  acknowledged  in  presence  of 


The  State  of  Ohio, 

County,    ss. 

Be    it   remembered,    that   on    this day    of 190.  . ., 

before  me,  the  subscriber,  a in  and  for  said 

county,  personally  came  the  above  named  C.  D.,  as  administrator  of  A.  B., 
the  grantor  in  the  foregoing  deed,  and  acknowledged  the  signing  of  the 
same  to  be  his  voluntary  act  and  deed  as  such  owner  for  the  uses  and 
purposes  therein   mentioned. 

In  testimony  whereof   I  have  hereunto  subscribed  my  name  and  affixed 
my seal  on  the  day  of  and  year  last  aforesaid. 


Where  the  administrator  or  ex-  there  may  be  some  qiiestion  as  to 
ecutor  is  the  surviving  partner  and  the  propriety  of  his  continuing  as 
desires    to   take    over   the    property,       administrator  or  executor,  etc. 


371  COLLECTION    OF    ASSETS  §  440 


CHAPTER   XXIV. 

COLLECTION  OF  ASSETS. 

I  440  General  duty  of  administrator  5  446  Affidavits  in  such  case. 

or  executor  to  collect.  §  447  When  and  how  application  for 

I  441  Duty  to  bring  suits,  etc.  extension  made,  etc. 

S  442  Diligence  required.  §  448  When  further  time  not  allowed. 

{  443  Negligence  in  collecting.  §  448a  What    further    time    will    be 

i  444  Statute  of  limitations.  allowed. 

§  445  When       more       than       twelve  J  449  Office  of  executor,  etc.,  not  to 

months    allowed    to    collect 

assets. 


cease. 


§  440.     General  duty  of  administrator  or  executor  to  collect. 

One  of  the  most  important  functions  attaching  to  the  office 
of  an  administrator  or  executor,  is  the  collection  of  the  assets 
belonging  to  the  estate  of  the  deceased.  Such  action  precedes 
all  manner  of  distribution,  be  it  the  payment  of  debts,  legacies 
(?r  distribution  among  heirs.  The  policy  of  the  law  invites 
and  expects  a  speedy  settlement  of  every  estate.  It  therefore 
follows  that  it  is  incumbent  upon  the  administrator  or  executor 
to  proceed  with  diligence  to  convert  the  assets  into  money  so 
that  he  can  further  perform  the  duties  of  his  trust  and  speedily 
have  it  properly  executed.  Assets  that  are  of  a  perishable 
character  or  known  value,  he  need  not  wait  for  an  inventory 
until  he  proceeds  to  collect  them.  It  is  not  the  duty  of  the  ad- 
ministrator to  wait  to  ascertain  the  amount  of  the  debts  or  lia- 
bilities of  the  deceased.  For  aught  that  he  may  know  all  may 
be  needed  to  meet  such  obligations,  he  should  therefore  proceed 
with  diligence,  and  the  law  supplies  him  with  the  means  ade- 
quate to  that  end.  He  must  act  at  once  of  his  own  volition, 
and  not  wait  for  any  one  to  request  action  on  his  part.*  That 
our  statute  contemplates  prompt,  active  and  energetic  action  on 
the  part  of  the  administrator  or  executor,  is  evidenced  by  the 
statute  limiting  the  time  for  such  action,  the  first  section  of 
which  is  the  following: 

1  Schu.  on  Exrs.  269. 


§  441  COLLECTION  OF  ASSETS  372 

"So  far  as  he  is  able,  the  executor  or  administrator  shall  col- 
lect the  assets  of  the  estate,  within  one  year  after  the  date  of  the 
administration  bond."      [R.  S.  §6062.]- 

§  441,     Duty  to  bring  suits,  etc. 

The  duty  of  the  executor  or  administrator  to  pursue  and 
recover  assets,  depends  upon  the  means  at  his  command  for  so 
doing,  and  the  same  may  be  said  vnth.  reference  to  collecting 
demands  due  the  estate.  Whether  slender  assets  shall  be  used 
in  litigation  for  procuring  personal  property  adversely  held,  or 
in  realizing  doubtful  claims,  a  rule  of  prudence  must  decide ; 
but  it  is  certain  tJiat  the  representative  of  the  estate  is  not 
bound  to  litigate  or  to  undertake  the  enforcement  of  doubtful 
rights  on  behalf  of  the  estate  out  of  his  own  means.  In  such 
cases  those  entitled  to  tlie  benefit  of  the  estate  should  make  an 
offer  to  indemnify  the  administrator  if  suit  is  brought.  The 
duty  to  act  depends  also  upon  the  character  of  the  claim, 
whether  the  j>erson  against  whom  it  is  keld  is  solvent  or  in- 
solvent. Likewise  it  depends  upon  the  administrator's  or  exec- 
utor's means  of  knowledge.  Thus  an  executor  or  administra- 
tor cannot  be  charged  with  a  right  of  action  of  his  decedent 
when  knowledge  of  the  right  was  never  brought  home  to  him- 
self, nor  does  he  become  chargeable  except  with  reference  to  the 
claim,  and  the  condition  of  the  estate  when  such  knowledge 
reaches  him.^  It  is  for  the  administrator  to  determine  what 
property  belongs  to  the  estate  in  his  charge,  and  bring  the 
necessary  suit  at  law  or  in  equity  to  recover  the  same  without 
waiting  for  an  order  of  the  Probate  Court  to  that  effect.* 

2  §  10684  G.  C.  It  means  all  property  which  can 
See  §  702  et  seq.,  718.  be  made  available  to  pay  debts,  etc. 
§  1381,  Gdn.  collection  of  debts.  Insurance    Co.    vs.    Bank,    173    Fed. 

3  Schu.  on  Exrs.,  §§  273,  274,  275.  398. 

4  Woerner  on  Admin.  672.  An  action  lies  by  an  executrix  in 
An   administrator   or   executor   is  her    representative    capacity    in    an 

not  required  to  give  security  for  indebtedness  due  the  estate  for  de- 
cost  in  any  case  in  a  suit  brought  cedent,  notwithstanding  the  note 
in  the  county  where  he  is  appoint-  which  now  evidences  the  debt,  was 
ed,  etc.  S  11614  G.  C.  given  to  the  executrix  individually, 
Collection  of  assets  means  reduc-  in  exchange  for  the  original  note 
tion  of  personal  property  into  which  was  payable  to  decedent  and 
money.  Young  vs.  Roberts.  7  O.  C.  against  which  the  statute  of  liraita- 
C.  105;  3  C.  D.  685;  affirmed  54  tions  has  run.  Schildmeyer  vs, 
O.   S.  622.  Schildmeyer,  27  Dec.  466. 


373  DILIGENCE    EEQUIKED  §  442 

§  442.     Diligence  required. 

The  care,  prudence  and  judgment  which  a  man  of  fair 
average  capacity  and  ability  exercises  in  the  transaction  of 
his  own  business  furnishes  tlie  standard  to  govern  an  adminis- 
trator in  the  discharge  of  his  trust  duties.^  An  administrator 
must  use  diligence  in  the  prosecution  of  actions  to  collect  the 
assets  of  the  estate,  or  he  will  be  liable  personally  or  upon  his 
bond  for  any  loss  such  estate  may  sustain  by  such  neglect,* 
even  though  the  debtor  live  in  another  State. ^  Thus  a  delay  of 
two  years  has  been  held  culpable  negligence.® 

If  he  takes  a  bond  of  indemnity  from  wrong-doers,  and  neg- 
lect to  seek  redress  against  them,  he  will  be  liable  for  the 
amount  lost  to  the  estate.^  If  the  decedent  has  paid  a  debt  as 
surety  his  administrator  must  use  diligence  in  collecting  the 
amount  paid  from  the  principal.^"  If  an  administrator  permit 
an  attorney  to  retain  money,  collected  for  the  estate,  during  a 
long  period  of  time,  he  will  be  personally  liable  for  the  amount 
retained ;  ^^  and  so  if  he  leaves  the  money  in  the  hands  of  a 
commission  merchant.^^  So  he  is  liable  if  he  employs  an  un- 
suitable person  to  collect  a  debt,  and  a  loss  is  thus  occasioned.^' 
And  the  same  is  true  when  he  employs  such  person  when  there 
is  no  occasion  for  such  employment,  and  a  loss  occurs-.^* 

He  is  not  bound,  however,  to  resort  to  an  extraordinary, 
unusual  or  hazardous  course,^^  nor  to  prosecute .  claims  of  a 

5  Miller  vs.  Proctor,  20  O.  S.  442 ;  9  Holmes  vs.  Bridgman,  37  Vt.  28. 

Dundas  vs.  Chrisman,  25  Neb.  495;  lo  Tuggle  vs.  Gilbert,  1  Duv.  340; 

S.  C.  41  N.  W.  Rep.  449.  Chambers'  Appeal,  11  Pa.  St.  436. 

« Miller    vs.    Steele,    64    Ind.    79;  n  Abercrombie     vs.     Skinner,     42 

Condit  V3.  Winslow,   106   Ind.   142;  Ala.  633. 
State  vs.  Gregory,  88  Ind.  110.  12  Succession  of  Stone,  31  La.  Ann. 

7  Schultz  vs.  Pulver,  3  Paige  182;  311. 

S.  C.  11  Wend.  363;  Helme  vs.  San-  i3  Wakeman  vs.  Hazleton,  3  Barb, 

ders,    3    Hawks    563;    Brandon    vs.  Ch.   148;   Earle  vs.  Earle,  93  N.  Y. 

Judah,  7  Ind.  545;  Brazeale  vs.  Bra-  104. 

zeale,  9  Ala.  491.  iiMcCloskey   vs.   Gleason,   56  Vt. 

8  Scarborough    vs.    Watkins,    9    B.  264. 

Mon.    540;     Charlton's    Appeal,     34  i5  Chamners'    Appeal,    11    Pa.    St, 

Pa.    St.   473;    Perry   vs.   Wooton,   5       436. 
Humph.  524. 


§  442  COLLECTION   OF  ASSETS  374 

doubtful  character,^®  unless  the  person  demanding  their  prose- 
cution tenders  a  bond  to  indemnify  the  estate  against  loss/^  on 
the  request  of  the  administrator.^^  IRor  is  he  liable  if  he  act 
in  good  faith  upon  the  advice  of  counsel,  after  disclosing  to  him 
all  the  facts  he  knows/®  jSTor  is  he  liable  for  a  mistake  of  law, 
whereby  he  delayed  the  collection  until  the  debt  was  barred,  if 
he  act  in  good  faith. "° 

,If  a  creditor  be  indulged  by  the  advice  and  request  of  a 
legatee,  such  legatee  cannot  complain  of  such  indulgence,  if  loss 
be  thereby  occasioned. ^^  ISTor  is  he  bound  to  defend  against  a 
just  claim.'"  But  he  is  bound  to  plead  the  statute  of  limita- 
tions, however  meritorious  the  claim  may  be,  if  he  desire  to 
escape  personal  liability."^  He  must  account  for  all  the  assets 
received  from  a  foreign  State.'* 

It  is  the  duty  of  a  domiciliary  executor  to  collect  foreign 
assets  so  far  as  he  is  able ;  and  he  should  be  charged  in  his 
accounting  with  such  assets  when  they  were  under  his  control, 
and  might  easily  have  been  transferred  to  the  domestic  juris- 
diction before  the  filing  of  the  account,"^ 

18  Torrence  vs.  Davidson,  92  N.  C.  Littlefield   vs.   Eaton,   74   Me.   516; 

437;  Anderson  vs.  Piercy,  20  W.  Va.  Preston  vs.  Cutter,  13  Atl.  Rep.   (N. 

282;    Smith    vs.    Collanier,    2    Dem.  H.)      874;     Brown     vs.     Porter,     7 

147.  Humph.  373;  Langham  vs.  Baker,  5 

"Hepburn  vs.  Hepburn,  2  Bradf.  gaxt.   701;    Emerson  vs.  Thompson, 

74;  Griswold  vs.  Chandler,  5  N.  H.  iq  Mass.  429. 
492.  24McPike  vs.  McPike    (Ala.),  20 

18  Harrington  vs.  Keteltas,  92  N.  g    ^y    j^gp    ^2 

^-  '^^-  25  In    re   Ortiz's    Estate,    86    Cal. 

iflNeff's   Appeal,    57    Pa.    St.    91.       3^^.  g   ^^  24  Pac.  Rep.  1034. 


See   §   385,   Choses  in  action. 
An  executor  who  knows  of  a  con- 
version   of    property    of    the    estate 


Tanner  vs.  Bennett,  33  Gratt.  251. 

20  See  next  section. 
King  vs.  Morrison,  1  Pa.  St.  189; 

Thompson  vs.   Brown,   4  Johns.  Ch. 

619;  Thomas  vs.  White,  3  Litt.  177.  ^^  ^^'  residuary  legatee,   and  of  a 

21  Perry  vs.  Wooton,  5  Humph.  ^^^^  ^S^^"^*  ^^^  ^^*^^^  °°  ^'^'^"^ 
_„.  iudsment  is  afterwards  recovered, 
524.  ••      *= 

"  Sheldon   vs.    Warner,   59   Mich.  ^"t  makes  no  attempt  to  recover  the 
A^^  value  of  the  property  so  converted, 
23  See  next  section.  is  liable  for  the  value  to  the  claim- 
Wiggins  vs.  Lovering,  9  Mo.  262 ;  ant,  though  he  had  the  belief,  based 
Hodgdon  vs.  WTiite,   11  N.  H.  208;  on  advice  of  counsel,  that  no  such 
Woods    vs.    Elliott,    49    Miss.    168;  judgment  would  be  recovered. 


375  NEGLIGENCE    IN  §  443 

An  executor  who  is  liable  to  the  testator  for  rent  at  the 
time  of  the  hitter's  death  cannot  on  a  bill  against  him  for  set- 
tlement of  his  account,  plead  that  his  liability  accrued  six  years 
before  the  filing  of  the  bill,  as  upon  the  acceptance  of  the  execu- 
torship it  was  his  duty  to  collect  all  debts  due  the  estate,  as 
well  from  himself  as  others,  and  his  position  in  relation  thereto 
is  that  of  a  trustee,"'  Where  an  executor  takes  a  judgment 
in  his  o^vTL  name  for  a  debt  due  the  estate,  he  will  not  be  per- 
mitted to  question  the  judgment  for  the  purpose  of  avoiding 
personal  liability  for  the  purchase  price  paid  at  a  void  sale 
under  the  judgment.^^ 

§  443.     Negligence  in  collecting. 

An  administrator  should  not  be  charged  for  uncollected 
notes  where  he  does  not  know  that  such  notes,  although  belong- 
ing to  the  estate,  could,  with  proper  diligence  have  been 
collected,^^  He  is  not  chargeable  with  estimates  made  by  him 
as  to  what  may  be  collected,  but  only  with  the  amounts  he 
collects.^^  iSTor  is  he  chargeable  with  the  amount  of  insurance 
policies  on  the  lives  of  debtors  of  deceased  before  he  has  real- 
ized on  such  policies,^^ 

The  duties  of  an  executor  or  administrator  are  active  and 
'not  passive.     He  cannot  be  permitted  to  neglect  to  do  those 

In   re   McAvoy's   Estate,    6   Dem.  27  jjaines   vs.   Haines   (N.  J.),    15 

Sur.  71;  S.  C,  3  N.  Y.  Supp.  207.  Atl.   Rep.   839. 

He  is  not  liable   for   the   loss   of  In  our  state  such  a  debt  becomes 

property  before  his  qualification,  un-  ^.^^^^s  upon  the  executor's  qualifica- 

less  he  had  such  property  in  his  pos-  '  ^,  ,   .       „„    ^ 

_  ,      ,         v..  ,     ^  -^  Jones    vs.    Blumenstein,    77    la. 

session.    Roberts  vs.  btewart  (Tex.),       ^r\.    s     C     4'>  X    W     R         "^^1 

15  S.  W.  Rep.  1108.  geg    §1603,    Duties    of   assignee: 

It  is  the  duty  of  an  administrator  gee   §  1287,   as   to   Duties  of  trustee 

who  is,  or  by  the  exerc-ise  of  prud-  generally. 

ence   should  be,   aware   of   the   pen-  29  See  §10828  G.  C,  §719. 

dency  of  proceedings  for  the  sale  of  Cunningham  vs.  Cauthen,  37  S.  C. 

lands  in  which  his  intestate  had  an  123;   ^liller  vs.    Steele,    64   Ind.  79; 

.    ,         .    X     •   J               .1        •           ii    i  Condit   vs.    Winslow,    106    Ind.    142. 

interest,  to  intervene  therein,  so  that  „„ ,,      ,                ^     ,         ,^-r    . 

^,                  1        ,         ,     .  -"rawber   vs.    Gentry    (Va.),    15 

the   proceeds   of   such   interest  may  c    -j^    p        ggn 

come  to  his  hands  for  the  payment  31  /,j  re    Richardson's    Estate,    23 

of  the  debts  of  the  estate.     Borders       X.  Y.  Supp.  978;   S.  C.  2  Misc.  Rep. 
vs.   People,  31    111.   App.  483.  288. 


§  443  COLLECTION  OP'  ASSETS  376 

things  which  are  plainly  required  at  his  hands  by  law  or  the 
order  of  the  Court,  and  when  complaint  is  made  of  such 
neglect,  excuse  himself  by  alleging  that  such  delay  or  omission 
was  for  the  benefit  of  the  estate.^" 

An  administrator  who  has  instituted  an  action  to  recover  in- 
surance on  the  life  of  his  intestate  is  not  negligent  in  failing 
to  appear  in  an  action,  where  the  heirs  have  appeared  by  their 
attorneys,  asserting  their  right  to  the  money  as  against  one 
claiming  under  an  assignment  by  the  intestate  in  his  life-time ; 
and  such  administrator  is  not  liable  for  the  loss  of  the  money  to 
the  estate  by  reason  of  the  insolvency  of  the  assignee,  to  whom 
it  was  paid  under  a  judgment  which  was  subsequently  reversed 
on  appeal.^^ 

Where  an  administrator,  though  acting  in  good  faith,  dis- 
poses of  stock  at  an  inconsiderable  amount,  which,  with  due 
diligence  could  have  been  collected  in  full,  he  would  be  liable 
to  the  beneficiary  for  its  value.^*  Wliere  an,  executor  receives 
as  assets  the  note  of  a  person  in  another  State,  owning  a  farm 
worth  $3,000,  mortgaged  for  $1,200  only,  and,  instead  of 
trying  to  collect  it  by  reducing  it  to  judgment  or  otherwise,  he 
waits  until  other  liens  are  acquired  against  the  land,  and  it  is 
sold,  he  should  be  charged  with  the  amount  of  the  note.^"* 

32  In  re  Holladay's  Estate,  22  Pac.  They  were,  in  fact,  hopelessly  in- 
Rep.  750;   S.  C.  18  Oreg.  168.  solvent  when  the  note  matured;  but 

33  Meyer ingh  vs.  Wendt  (Iowa),  if  payment  had  been  insisted  on,  it 
53  N.  W.  Rep.  414.  would  probably  have  been  paid  from 

3*  Tayloe  vs.  Tayloe    (N.   C),   12  the  moneys  of  a  bank  of  which  one 

S.  E.  Rep.  836.  was  president.     It  was  held  that  the 

35  In  re  Milliard's  Estate,  9  N.  Y.  executor    was    liable    for    the    loss. 

Supp.  126;  S.  C.  2  Con.  Sur.  91.  Powell  vs.  Hurt,   31   Mo.  App.   632. 

Executors    were    directed    by    will  Where,  at  the  hearing  of  the  final 

to   collect  the   debts   as   soon   as   it  account  of  the  executors  of  an  es- 

could  be  done.     Among  them  was  a  tate,   one   of   them   testifies,   as   the 

note  due  after  they  qualified.     They  reason  for  not  collecting  a  debt,  that 

spoke  of  it  to  the  makers,  who  asked  the  debtor  "  is  insolvent,"  the  only 

them  to  wait  awhile.     No  attempt  fair  inference  is  that  the  debtor  has 

was    made    to    collect    for    a    year,  been  insolvent  since  the  death  of  the 

when  all  the  makers  failed  and  the  testator.     Stone   vs.   Morgan,   3   So. 

debt    was    lost.     Up    to    that    time  Rep.  580;  S.  C.  65  Miss.  247. 

their  standing  was  of  the  best  and  On    settlement   of   an    account   it 

their    credit    beyond    all    question.  appeared  that  the  executor  sold,  on 


377 


STATUTE    OF    LIMITATIONS 


§444 


§  444.     Statute  of  limitations. 

It  becomes  important  for  an  administrator  if  for  any  reason 
a  delay  is  had,  in  the  collection  of  assets  of  the  estate,  to  ac- 
quaint himself  with  the  statute  of  limitations.  For  if  the 
statute  has  begun  to  run  in  tlie  life-time  of  the  deceased  it 
will  continue  to  run.^*^  If,  however,  the  statute  did  not  begin 
to  run  during  the  life-time  of  the  deceased,  it  would  not  com- 
mence until  an  administrator  or  executor  was  appointed.^^ 
Just  what  the  responsibilities  of  the  administrator  or  executor 
might  be,  where  he  permitted  a  debt  to  become  uncollectible  by 
reason  of  not  bringing  an  action  before  it  had  been  barred  by 
the  statute  of  limitation  may  depend  upon  the  circumstances 
surrounding  the  case.  But  it  is  an  exceedingly  dangerous 
matter  for  the  administrator  or  executor  to  trifle  with.      If  he 


credit  certain  personal  property  of 
the  estate  to  an  irresponsible  party, 
who  was  indebted  to  liim  person- 
ally, and  who  failed  to  furnish  se- 
curity as  required  by  the  terms  of 
sale;  that  the  executor  took  a  mort- 
gage back  on  such  property  to  se- 
cure his  own  debt  and  allowed  the 
purchaser  to  retain  it  for  some 
time,  and  that  his  mortgage  was 
afterwards  released  and  the  prop- 
erty taken  back  and  resold  by  the 
executor  at  a  loss.  It  was  held 
that  the  executor  must  account  for 
the  amount  of  the  first  sale. 
In  re  Beach's  Instate,  22  N.  Y. 
Supp.    1079;    S.  C.   1  Misc.  Rep.  27. 

Where  an  .  administrator  accepts 
from  his  predecessor  (a  former  ad- 
ministrator), a  promissory  note,  ex- 
ecuted by  the  latter,  payable  to 
himself  for  money  due  from  such 
predecessor  to  the  estate  of  the  de- 
cedent, and  obtains  judgment  on 
such  note  in  his  own  right,  he  can- 
not, as  against  a  third  party  who 
purchases  the  real  estate  of  the 
debtor,  acquired  by  him  after  his 
discharge  in  bankruptcy,  success- 
fully assert  that  sucli  cause  of  ac- 
tion was  one  not  barred  by  the 
bankrupt's  discharge.  Donald  vs. 
Kell,   111   Ind.    1. 

Where  mismanagement  of  a  cer- 
tain part  of  the  estate  is  shown,  an 
agreement  between  the  executors 
that  one  should  attend  to  the  busi- 


ness of  that  part  will  not  relieve 
the  other  from  liabilities  thereof. 
Allen  vs.  Shanks,  90  lenn.  359;  S. 
C.  13   S.   W.   Rep.   715. 

Where,  on  the  presentation  of  an 
invalid  claim  against  an  estate,  the 
administrator  rejected  it  but  agreed 
to  refer  it,  and  on  proceedings  be- 
fore the  referee  neglected  to  retain 
counsel  to  protect  the  interests  of 
the  estate,  did  not  oppose  a  confirm- 
ation to  the  report  allowing  it,  and 
took  no  appeal  from  a  judgment 
entered  thereon,  he  was  guilty  of 
such  negligence  as  to  make  him 
personally  liable  to  the  estate  for 
the  amount  of  the  claim.  Iti  re 
Saunders'  Estate,  23  N.  Y.  Supp. 
829 ;   S.  C.  4  IViisc.  Rep.  28. 

See    §  1603,    Assignments. 

36  Granger   vs.   Granger,    6    0.   35. 

37  See  13  Am.  &  Eng.  Ency.  of 
Law   737. 

Where  a  note  becomes  due  after 
the  death  of  the  payee,  the  right 
to  enforce  the  same  is  in  the  admin- 
istrator, and  the  time  begins  to  run 
from  the  date  of  his  appointment. 
But  if  it  falls  due  before  the  payee's 
denth  the  statute  begins  to  run  and 
will  be  barred  in  fifteen  years  from 
that  time,  irrespective  of  the  fact 
when  the  administrator  was  ap- 
pointed. Tobias  vs.  Richardson,  5 
C.  C.  (N.S.)  74;  26  0.  €.  C.  81; 
affirmed  72  O.  S.  626. 


§  445  COLLECTION   OF   ASSETS  378 

has  had  an  opportunity  by  the  use  of  ordinary  care  and  dili- 
gence to  have  prevented  the  debt  from  being  barred  by  the 
statute  of  limitation,  and  did  not  do  so  he  would  be  liable. 
If  a  claim  against  the  estate  has  become  haired  by  the  statute 
of  limitation  the  executor  has  no  power  by  a  new  promise  to 
revive  it  or  pay  such  a  claim.^^ 

^  445.  When  more  than  tv^elve  months  allowed  to  collect 
assets.  "If  from  the  sitiiation  of  the  assets  belonging  to  the 
estate,  more  than  twelve  months  from  the  date  of  the  admin- 
istration bond  is  required  for  their  collection,  upon  motion,  and 
being  satisfied  thereof  by  the  affidavit  of  the  executor  or  admin- 
istrator, tlie  court  may  extend  the  time  for  that  purpose." 
[R.  S.  §  6063;  102  V.  201.]  ■'» 

§446.  Affidavit  in  such  case.  "The  affidavit  required  by 
the  next  preceding  section  shall  set  forth  the  grounds  of  the 
application,  the  amount  of  money  in  the  hands  of  the  executor  or 
administrator  applicable  on  the  debts  of  the  deceased,  and  that 
he  has  used  due  diligence  to  collect  the  assets  and  pay  the  debts." 
[R.  S.  §6064.]" 

§  447.     When  and  how  application  for  extension  made,  etc. 

While  the  statute  does  not  so  say,  yet  no  motion  for  an 
extension  of  time  ought  to  be  considered  unless  the  adminis- 
trator or  executor  has  filed  an  account,  for  it  will  be  chiefly  up- 
on the  information  gathered  from  the  account  that  the  Court 
will  authorize  an  extension.  It  is,  therefore,  a  general  prac- 
tice that  when  an  administrator  or  executor  desires  further 
time  in  which  to  administer  tlie  estate,  no  formal  motion  is 
made  to  that  effect,  but  an  affidavit  containing  the  statutory 
requirements  are  made  following  the  account  and  the  Court  in 
passing  on  the  account  makes  the  order  for  extension  of  time. 
The  subsequent  sections  forbid  an  extension  of  time  where 
there  is  more  than  one  hundred  dollars  in  money  in  the  hands 

38  Drouilliard  vs.   Wilson,   W,   L.  so  §  ioG85    G.    C. 

J.,  vol.  10,  385.  40  §  lOfiSG  G.  C. 

See  §  552,  et  seq.,  on  Presentation 
of  claims. 


379  FURTHER  TIME  ALLOWED  §  448 

of  the  administrator  or  executor,  which  is  subject  to  the  claims 
of  the  creditors.  This  provision  of  the  statute,  practice  has 
demonstrated,  is  exceedingly  difficult  to  follow.  There  may 
be  money  in  the  hands  of  the  administrator  above  one  hundred 
dollars  which  he  is  not  at  liberty  to  apply  on  claims  against 
the  estate.  Probably  the  application  that  should  be  given  to  this 
provision  of  the  statute  is,  that  no  extension  of  time  should 
be  granted  where  claims  of  creditors  remain  unpaid  and  the 
administrator  or  executor  has  money  in  his  hands  which  can 
be  applied  to  this  payment.  The  form  of  an  affidavit  under 
this  section  will  be  found  in  the  form  hereafter  given  for  an 
account.  Administrators  and  executors  should  be  urged  to 
make  a  speedy  settlement  of  every  estate  and  no  application 
for  an  extension  of  time  should  be  granted  for  a  mere  asking.*^ 

^  448.      When    such    further    time    will    not    be    allowed. 

"Further  time  shall  not  be  allowed  to  collect  the  assets  of  an 
estate  that  is  solvent,  if  the  executor  or  administrator  at  the  time 
of  his  application  has  in  his  hands  more  than  one  hundred  dol- 
lars  in   money,   subject   to   the    claims   of   creditors."      [R.    S. 

§6065.]" 

§  448a.  What  further  time  will  be  allowed.  ' '  Not  more 
than  six  months  from  the  date  of  the  application  shall  be  granted 
by  the  court  at  one  time,  for  collecting  assets  of  the  estate;  nor 
the  time  therefor  be  extended  beyond  three  years  from  tlie  date 
of  the  administration  bond."     [R.  S.  §  6066;  102  v.  202.]" 

§  449.  Office  of  executor,  etc.,  not  to  cease.  "The  office  of 
the  executor  or  administrator  shall  not  cease  with  the  time  al- 
lowed by  law,  or  the  court,  for  the  collection  of  the  assets  of  the 
estate."     [R.  S.  §6067.]" 

Notwithstanding  the  provisions  of  sec.  10688,  G.  C,  that  the 
time  should  not  be  extended  beyond  three  years  from  the  date  of 
the  administration  ])ond,  yet  so  long  as  the  administrator  or 

41  See  §  705,  Accounting— time  ex-  ^  §  10688  G.  C. 

tended.  **  §  0067  R.  S.,  10689  G.  C. 

42  §  6005  R.   S.,   §  10087  G.  C. 


§  449  COLLECTION    OF    ASSETS  380 

executor  has  net  resigned,  died,  or  been  removed  and  assets  re- 
main to  be  administered,  he  is  still  authorized  to  collect  them. 
It  is  somewhat  difficult  to  determine  just  exactly  what  is 
meant  by  the  last  clause  of  sec.  10688,  G.  C.  (§  448a).  It  prob- 
ably means  that  no  extension  of  time  shall  be  gi'anted  where  it  is 
within  the  power  of  the  administrator  in  the  proper  administra- 
tion of  the  estate  to  complete  his  trust  within  three  years.  No 
doubt  the  legislature  intended  that  here  should  be  an  end  to  the 
trust  and  that  three  years  was  a  reasonable  time  within  which  to 
complete  it.  But  what  the  effect  would  be  if  the  Probate  Court 
granted  an  extension  or  permitted  a  continuation  of  the  ad- 
ministration, adjudication  gives  no  information.  Why  the 
statute  should  limit  the  time  from  the  date  of  the  bond  is  not 
easily  perceived.  In  one  ease  it  was  held  that  where  an  admin- 
istrator collected  all  the  assets  that  were  then  collectible  and 
more  than  twenty  years  thereafter  assets  became  collectible,  he 
was  still  administrator  of  the  estate  and  could  collect  the  as- 
sets.*' 

In  another  case  it  was  held  that  even  where  an  administrator 
had  filed  what  purported  to  be  a  final  account,  yet  this  fact 
did  not  prevent  him  from  suing  and  collecting  an  uncollected 
note  belonging  to  tlie  estate.^^ 

■*5  Taylor  vs.  Thorn,  29  0.  S.  569.  end  at  the  becoming  of  age  of  all  the 

The  settlement  in   1854,  with  the  minor   children,   it  might  terminate 

Probate   Court,    by    the   administra-  before  by  their  death ;  and  upon  its 

tor,  of  his  account  with  the  estate,  termination  the   creditors  would  be 

and  the  distribution  at  that  time  of  entitled  to  the  further  assets  to  be 

the  assets  in  his  liands.  did  not  end  derived  from  the  sale  of  the  prem- 

his  powers,  nor  terminate  his  duties.  ises    which    had    been    so    occupied. 

The    estate   was    not    fully    settled.  The  administrator  had  not  resigned, 

As  soon  as  the  right  to  occupy  the  nor  had  he  been  removed.     Neither 

premises  set  apart  for  a  homestead  his  functions  nor  duties  would  cease 

ceased  to  exist,  there  would  be  other  until    the   estate   was   fully    settled. 

assets    to    be    administered.      When  McAffee  vs.  Phillips,  25  O.  S.  374. 

such  would   become  available  is,   to  ^s  Weyer  vs.  Watt,  48  0.   S.  545. 

some  extent,   uncertain;    for,   while  See   §   231,  Termination  of  trust, 
the  homestead  right  would  certainly 


381  AUTHOKITY  TO  COMPOUND  §  450 


CHAPTER  XXV. 

ASSETS  —  COMPOUNDING  CLAIMS. 

S  450  How  executor,  etc.,  may  com-        §  453  Hearing,  etc. 

pound  with  debtor.  §  454  Order  of  compromise. 

§451  Authority  to  compound.  §455  Arbitration. 

§  452  Application  for. 

§  450,     How   executor,    etc.,    may   compound   with   debtor. 

"When  a  debtor  of  a  deceased  person  is  unable  to  pay  all  his 
debts,  with  the  approval  of  the  probate  court,  the  personal  rep- 
resentative may  compound  with  such  debtor,  and  give  him  a 
discharge,  upon  receiving  a  fair  and  just  dividend  of  his  estate 
and  effects,  or  such  part  of  the  debts,  as  the  court  deems  bene- 
ficial to  those  interested  in  the  estate  of  the  decedent."  [R.  S. 
§6073.]*^ 

§  451.     Authority  to  compound. 

Executors  and  administrators  had  not  at  common  law  the 
rijL^ht  to  compound  and  compromise  with  debtors  of  the  estate; 
and  if  they  released  a  debt  due  the  testator,  or  cancelled  or 
delivered  to  tJie  obligor  a  bond,  or  released  a  cause  of  action 

47  §  10696  G.  C.  treatment  of  the  matter  in  this 
It  will  be  observed  that  the  pro-  chapter  Avill  be  intended  to  apply  to 
visions  of  the  above  section  are  lira-  any  case  where  the  administrator 
ited  to  a  case  where  the  debtor  is  wishes  to  compromise  any  claim 
unable  to  pay  all  of  his  debts.  If  that  he  holds  as  administrator 
it  is  sought  for  any  other  reason  to  against  any  debtor,  be  it  for  a  rea- 
obtain  the  order  of  the  Coui't  to  son  mentioned  in  the  preceding  sec- 
compromise  a  claim,  it  must  be  by  tion.  or  the  provision  of  §§  10689, 
virtue  of   the   provisions  of   §  106S9  10702,  10703  G.  C.,  made  a  part  of 

p  n  A  Ann  ;„„„^+^i  :«  +i  „  4-  the  next  chapter.  Generally  when 
Lr.   C,    s  451),    inserted    in   the    next  i     •    •  i.     j.  i  - 1  ■    -i.     . 

an  administrator  seeks  authority  to 
chapter.  §  10689  G.  C.  in  addition  compound  a  claim,  he  does  so  with 
to  the  insolvency  of  the  debtor  ap-  the  understanding  that  tlie  debtor 
plies  to  where  the  debtor  is  a  bank-  ^''^^^  accept  tlie  terms  for  wliich  he 
„     ,  ,  ,       ,  ■,    ,  ,         asks   authority   to   make  the  settle- 

rupt,  or  has  some  legal  or  equitable  ^.^^  y^^  g  {^^.y.  Gdns.  If  claims 
defense,  or  whore  the  claim  is  small  can  not  be  collected  they  may  be 
and  difficult  of  collection,  etc.     The      compounded     or    sold.       Weyer    vs. 

Watt,  48  O.  S.  545. 


§451 


ASSETS 


COMPOUNDING    CLAIMS 


382 


founded  on  a  tort  accniing  to  the  testator  or  executor,  or  in 
an  J  manner  forgave  or  indulged  any  part  of  the  testator's 
or  intestate's  demand,  or  the  demand  of  the  executor  or  ad- 
ministrator, they  were  chargeable  with  the  whole  of  such  debt 
or  demand,  with  interest.*^ 

A  compromise  with  a  man  who  has  assets  of  the  estate,  so 
as  to  get  possession  of  them,  will  be  justified  if  a  judicious 
mail  looking  alone  to  his  worldly  interest  would  so  act.*^  An 
executrix  who  lias  accounted  for  the  full  amount  received  by 
tlie  compromise  of  a  note  belonging  to  the  estate  for  less 
than  its  inventoried  value,  is  not  liable  for  more  than  is  thus 


48Woerner   on   Admin.   683.      Cit- 
ing Wms.  Ex.  1799. 

Another  distinguished  author  in- 
clines to  the  opinion  that  executors 
and  administrators  had  the  power  to 
compound  with  the  debtors  of  their 
decedent.  At  common  law  Redfield 
in  his  surrogate  practice,  says,  p. 
511:  "The  common  law  power  of 
executors  and  administrator  to  com- 
pound with  debtors  of  their  decedent 
has  been  coniirmed  by  statute  which 
impowers  the  surrogate  to  authorize 
the  executor  or  administrator  to 
compromise  or  compound  a  debt  or 
-claim  on  application  and  for  good 
cause  shown."  Another  says:  "The 
executor  or  administrator  who  com- 
promises a  debt  so  as  to  receive  less 
than  its  full  amount  was  stiil  held 
answerable  for  the  whole ;  yet,  if  he 
could  show,  in  exculpation  that  he 
accounted  therein  for  the  benefit  of 
the  estate,  he  stood  excused.  The 
universal  test  for  modern  times 
should  he,  whether,  in  compromising 
or  submitting  to  arbitration,  the 
representative  acted  with  fidelity 
and  due  prudence.  Schy.  Ex.  386. 
In  JeflYies  vs.  Mut.  Ins.  Co.,  110 
U.  S.  305,  the  Court  says,  even 
where  statutes  exist  providing  for 
compromise   with    debtors    with   the 


approval  of  a  Probate  Court,  it  is 
held  that  the  right  to  compromise 
which  before  existed  is  not  taken 
away,  but  may  be  exercised  subject 
to  the  burden  of  showing  that  the 
compromise  was  beneficial  to  the  es- 
tate. 

In  some  states  it  is  held  that  the 
administrator  cannot  bind  the  estate 
by  compromise  without  the  consent 
and  approval  of  the  Probate  Court. 
.Etna  Ins.  Co.  vs.  Swayze,  30  Kans. 
118;  Yelton  vs.  R.  R.,  134  Ind.  414. 
In  another  State  it  was  left  unde- 
cided. Mulville  vs.  Ins.  Co.,  19 
Mont.  95. 

Generally  it  may  be  said  that  if 
an  administrator  compounds  or  com- 
promises a  claim  without  the  sanc- 
tion of  the  Probate  Court,  he  will  be 
liable  to  the  estate  for  the  full 
amount  of  the  claim,  unless  he  can 
shoAV  that  the  compromise  \.'as  for 
the  best  interest  of  the  estate.  I-Ioul- 
ton  vs.  Holmes,  57  Cal.  337. 

Wyman's  Appeal,  13  N.  H.  18 
Alexander  vs.  Kelso,  3  Paxt.  311 
Caldwell  vs.  MeVicar,  12  Ark.  746 
Potter  vs.  Cummings,  18  Me.  55 
Fridg  vs.  Buhler.  6  La.  Ann.  272. 

49Kee  vs.  Kee,  2  Graft.  116; 
Wilks  vs.  Slaughter,  49  Ark.  235. 


383  APPLICATION   FOE  §  452 

accounted  for  where  it  is  shown  that  the  compromise  was  made 
in  good  faith,  and  that  more  money  was  realized  thereby  than 
would  have  been  by  an  attempt  to  enforce  the  payment  of  the 
note,^" 

The  heirs  or  distributees,  if  all  the  debts  and  costs  of  ad- 
ministration are  paid,  can  alone  take  advantage  of  his  failure  to 
procure  an  order  to  compromise,^^  To  compromise  or  com- 
pound a  debt  means  to  accept  a  part  in  satisfaction  of  tlie 
whole.^"  If  he  saves  anything  by  reason  of  the  compromise 
it  is  for  the  benefit  of  the  estate  and  not  for  himself.^^  Exec- 
utors or  administrators  may  not  create  a  new  cause  of  action 
against  the  estate  whose  interests  they  are  charged  with,  nor 
revive  an  old  one  barred  by  the  statute  of  limitation;  but  they 
may  adjust  any  existing  claim  by  a  fair  compromise,  or  ar- 
range the  business  in  their  hands  so  as  to  make  the  most  of  the 
assets.^*  Whatever  the  law  may  be  elsewhere,  the  above  statute 
makes  it  mandatory  upon  an  administrator  or  executor  to  get 
the  approbation  of  the  Probate  Court  before  he  could  safely  act 
in  compounding  a  claim. 

§  452.     Application  for. 

The  application  should  set  out  the  nature  and  amount  of  the 
debt,  the  name  of  the  debtor,  and  a  fair  statement  as  to  his 
financial  condition  as  well  as  other  facts  that  may  constitute  a 
defense  to  the  claim.  If  the  authority  for  the  compromise  is 
sought  under  the  provisions  of  sec.  10696,  G.  C.  (§  450),  it  will 
be  sufficient  to  state  the  debtor's  financial  condition,  but  if  the 
compromise  is  sought  under  sec.  10701,  G.  C.  (§  456),  the  appli- 
cation should  set  forth  any  of  the  statutory  provisions  of  that 
section.     The  following  may  be  used  as  a  form : 

{Titlk.) 

Now  comes  A.  B.  as  administrator  (or  executor)  of  the  estate  of  C.  D., 
and  respectfully  represents  to  the  Court  that  among  the  assets  in  his 
hands  belonging  to  the  deceased  estate,  there  is  a  claim  against  E.  F.  for 

the  sum  of dollars.     That  said  claim  is 

founded  on  a  promissory  note  (or  book  account,  or  contract,  etc.)  that 
said  E.  F.  is  of  doubtful  solvency,  or  said  E.  F.  claims  to  have  a  defense 
to  the  collection         said  claim,   said  defense  being  the  following:      (Here 

50  Jacobs  vs.  Jacobs,  90  Mo.  427 ;  52  Matter  of  Loper,  2  Redf.  545. 
S.  C.  12  S.  W.  Rep.  457.  ^^  Woerner  on  Admin.  685. 

51  Delabigarre  vs.  Second  Munici-  54  Moore  vs.  O'Brannin,  14  0.  S. 
pality,  3  La.  Ann.  230.  177. 


§  453  ASSETS COMPOUNDING    CLAIMS  384 

state  in  substance  whatever  may  be  the  reason  for  asking  the  Court  for 
perinission  to  compound  the  claim),  that  the  said  E.  F.  has  offered  and 

agreed  to  pay  in  full  thereof  the  sum  of dollars. 

Wherefore  the  said  A.  B.,  as  administrator,  believing  it  is  for  the  benefit 
of  the  estate  and  asks  for  authority  to  accept  the  same. 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day  of 

190 55 


§  453.     Hearing,  etc. 

The  statute  does  not  indicate  tlie  course  the  Court  ought 
to  pursue  in  arriving  at  its  conclusion,  whether  or  not  to  grant 
thti  application.  If  the  claim  is  large  and  the  Court  has 
some  question  about  granting  the  application,  notice  ought  to 
be  given  to  some  one  interested  beneficially  in  the  estate,  so 
that  he  can  be  present  at  the  hearing.  One  author  says  that  if 
the  executor  asljs  leave  of  the  surrogate,  he  must  upon  the 
application  give  the  surrogate  the  same  evidnce  to  inform  his 
mind  as  if  tlie  compromise  had  been  made  and  were  being 
attacked  upon  the  accounting.*"* 

In  the  exercise  of  its  discretion  the  Probate  Court  shall  act 
exclusively  for  the  interest  of  tlie  estate.  Neither  the  executor 
nor  the  Court  can  modify  an  existing  obligation,  and  the  Court 
will  never  interfere  except  where  the  debtor  is  insolvent  or 
some  doubt  exists  as  to  the  validity  of  tha  claim,  or  there  is 
reason  to  apprehend  that  the  pa^^nent  can  not  be  enforced. 
Even  where  the  will  authorizes  the  settlement  of  a  claim  by  com- 
promise or  otherwise,  the  executor  will  be^  responsible  for  the 
compromise  of  a  claim  tliat  is  not  doubtful.®^ 

If  the  ground  of  authority  for  granting  the  compromise  comes 
under  the  provisions  of  sec.  10701,  G.  C.  (§  456),  notice  must  be 
given  as  provided  in  sec.  10702,  G.  C.  (§  459).  Sometimes  it  is 
desired  to  get  the  Court 's  sanction  to  compounding  a  claim  when 
it  is  not  desired  to  go  to  the  expense  of  the  notice  required  by 
sec.  10702,  G.  C.  In  such  case  the  executor  is  not  relieved  by  the 
order  cf  the  Court,  further  than  to  throw  the  burden  of  proof 

55  See    §  1615,    Assignments.  ^i  Buerhaus    vs.    De    Saussure,    41- 

60  Jessups    Surr.    Pract.    902,    cit-       S.  C.  494;   Woerner  on  Admin.  684. 

ing  in  re  Richardson's  Estate,  9  jS'. 

Y.  Supp.  638. 


385  ORDER   OP    COMPROMISE  §  454 

on  the  person  taking  exception  to  the  compromise,  if  the  same  is 
attacked  in  his  account. 

§  454.     Order  of  compromise. 

The  Court  being  satisfied  that  the  interest  of  the  estate  will 
be  best  subserved  by  compounding  the  claim,  an  entry  should  be 
made  to  that  effect.  But  whether  or  not  such  order  of  the  Court 
can  be  attacked  in  filing  exceptions  to  tlie  administrator's  ac- 
count is  not  clear.  In  some  States  ®*  it  is  provided  by  statute 
that  such  order  of  the  Surrogate  Court  does  not  prevent  at- 
tacking the  administratoi^'s  actions  in  his  account.  If,  however, 
the  application  had  been  made  and  notice  given  to  the  parties 
in  interest  and  a-  regular  hearing  had  thereon,  the  question 
ought  to  be  final,  provided  the  administrator  has  acted  fairly 
and  in  good  faith.  I  rather  think,  however,  that  such  action  of 
the  Probate  Court  will  not  prevent  attacking  the  settlement  in 
the  administrator's  account,  but  it  will  throw  the  burden  of 
proving  that  the  settlemenii  was  wrong  and  against  the  interest 
of  the  estate,  on  the  person  seeking  to  attack  the  account,  and 
if  it  is  shown  that  the  administrator  acted  as  a  discreet  and 
prudent  man  would  act  if  the  debt  were  his  own,  he  should  not 
be  held  further  responsible.®^ 

The  entry  may  be  in  the  following  form : 

(Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B., 
administrator   (or  executor)   of  the  estate  of  C.  D.,  deceased,  for  authority 

to  compound  a  claim  of dollars  against  E.   F. ;   and 

it  appearing  to  the  Court  that  the  said  E.  F.  is  unable  to  pay  his  debts  in 
full  (or  that  said  claim  is  doubtful  and  cannot  be  collected,  etc.)  said  ad- 
ministrator (or  executor  is  authorized  to  give  a  discharge  of  the  debt  afore- 
said upon  receiving  thereof dollars.ee 

§  455.     Arbitration. 

There  is  no  statutory  provision  authorizing  an  administra- 
tor or  executor  tx>  submit  to  arbitration,   a  claim  existing  in 

6*  New  York.  •  vs.  Manning,  4  Hun  7;  Murray  va. 

«6Redf.   Surr.   51],   citing  Leland        Blatchford,    1   Wend.   585. 

66  See  §    1615,  Assignments- 


§  455  ASSETS COMPOUNDING  CLAIMS  386 

favor  of  the  estate,  as  there  is  in  reference  to  a  claim  against  the 
estate.*^"  But  I  have  no  doubt  that  the  rights  existing  at  com- 
mon law  in  reference  to  the  submission  of  such  matters  to  arbi- 
tration still  exist  in  Ohio.®* 

Our  general  statute  provides  that  all  persons  who  have  any 
controversy  except  when  the  possession  or  title  of  real  estate 
may  come  in  question,  may  submit  such  controversy  to  the  ar- 
bitrament or  umpirage  of  any  person  or  persons  to  be  mutually 
agreed  upon  by  the  parties,  and  they  may  make  such  submis- 
sion a  rule  of  record  of  this  State.®®  This  would  seem  to  be 
broad  enough  to  include  an  administrator  or  executor.^" 

As  incidental  to  the  power  to  sue  and  collect,  the  executor  or 
administrator  ought  to  have  a  right  to  arbitrate  or  compromise 
any  demand  of  the  decedent  whidi  he  represents,  provided  he 
act  within  the  range  of  a  reasonable  discretion  as  to  the  true 
interests  of  the  estate.  Nevertheless,  the  responsibility  is  a 
perilous  one,  according  to  some  authorities,  unless  sanctioned  by 
express  statute. ^^ 

Upon  this  matter  a  distinguished  author  says:  "  It  seems 
never  to  have  been  doubted  that  executors  and  administrators 
have  full  authority  at  common  law  to  submit  any  matter  iu 
dispute,  relating  to  the  estate  of  a  deceased  person  in  their 
hands,  to  arbitration,  and  thereby  bind  himself  to  the  extent  of 
assets.  But  while  the  award  is  undoubtedly  binding  upon  the 
parties,  as  well  as  upon  those  having  any  interest  in  the  estate, 
it  affords  no  protection  to  the  executor  or  administrator,  al- 
though  acting  in   perfect  good  faith,   against  liability   as   for 

C7  §  6093  R.  S.     See  §  594,  et  seq.,  the  parties  on  .the  same  subject  mat- 
on  Arbitration  of  claims.  ter.       But    no    judicial    action    can 

68  Child  vs.  Updyke,  9  0.  S.  333.  be  had  upon  it  without  pleadings  as 

The  award  rendered  in  such  com-  in  other  cases. 

mon-law  arbitration,  has  no  judicial  69  §  12148  G.  C. 

force.     It  operates  neither  as  a  judg-  to  The  estate  of  a  decedent  is   a 

ment  nor  as  the  verdict  of  a  jury.  person  in  legal  contemplation.     Bil- 

The  failure  to  pfrform  it  may  con-  ling  vs.  State,  107  Ind.  54;  Taggart 

stitute  a  cause  of  action,  or  its  per-  vs.  Teianney,   1   Ind.  App.  339. 

formance    may   furnish    a   good   de-  ti  gch.  Ex.  299 ;  1  Am.  &  Ency.  of 

fense  in  a  subsequent  suit  between  Law  653. 


387 


ARBITRATION 


455 


devastavit."  ^^  It  is  questionable,  therefore,  whether  executors 
or  administrators  should  submit  such  claims  to  arbitration. 
But  if  they  proceed  as  is  provided  by  the  general  statutes,  they 
certainly  ought  not  to  be  held  for  any  wrong  doing. '^^ 


72  Woerner  on  Admin.  685,  citing 
Coffin  vs.  Cottle,  4  Pick.  454 ;  Chad- 
bourn  vs.  Chadbourn,  9  Allen  173; 
Lyle  vs.  Rodgers,  5  Wheat.  394,  406, 
et  seq.;  Wood  vs.  TunnicliflF,  74  N. 
Y.  38;  Strodes  vs.  Patton,  1  Brock. 
228,  231;  Eaton  vs.  Cole,  10  Me. 
137;  Kendal  vs.  Bates,  35  Me.  357; 
Ailing  vs.  Munson,  2  Conn.  691; 
Merchants'  Bank  of  Macon  vs.  Tay- 
lor, 21  Ga.  334;  Wamsley  vs.  Wams- 
ley,  26  W.  Va.  45 ;  Powers  vs.  Doug- 
lass, 53  Vt.  471,  474. 

73  See  Woerner  685. 


By  conferring  on  courts  of  Pro- 
bate jurisdiction  to  authorize  exec- 
utors or  administrators  to  submit 
demands  in  favor  of  or  against  es- 
tates in  their  hands  to  arbitration,, 
or  to  compromise  them,  the  Legisla- 
ture intended  only  to  give  security 
and  protection  to  these  officers  in  the 
exercise  of  that  authority  with 
which  they  were  clothed  by  com- 
mon law.  Chadburn  vs.  Chadburn, 
9  Allen  173;  Chouteau  vs.  Snydam, 
21  N.  Y.  179;  Chase  vs.  Bradley,  26 
Me.  631. 


456  SALE  DESPERATE  CLAIMS  388 


CHAPTER  XXVI. 

ASSETS.  SALE  OF  DESPEEATE  CLAIMS. 

§  456  Disposition        of        desperate  §  463  Public  or  private  sales,  terma 
claims.  of  compounding  to  be  fixed  in 

§  457  Jurisdiction.  order. 

§  458  Application.  §  464  Entry  of  public  sale. 

§  459  When  notice  of  application  to  §  465  Form  of  notice  and  return  of 
court  for  their  sale  necessary,  sale, 

publication  of  notice.  §  466  Form  of  private  sale,  etc 

§  460  Entry  ordering  notice.  §  46V  Keturn  of  private  sale. 

§  461  Form  of  notice,  etc.  §  468  Effect  of  order. 

f  462  Required  proof. 

§  456.  Disposition  of  desperate  claims.  "Upon  proper  proof 
by  an  executor  or  administrator  to  the  probate  court  that  any 
claim,  debt,  or  demand  belonging  to  the  estate  in  his  hands  to 
be  administered  and  accruing  in  the  lifetime  of  the  deceased, 
represented  by  such  executor  or  administrator,  is  desperate : 

1.  On  account  of  the  doubtful  solvency  or  actual  insolvency 
of  the  debtor ; 

2.  On  account  of  such  debtor  having  availed  him  or  herself 
of  the  bankrupt  law  of  the  United  States ; 

3.  By  reason  of  some  legal  or  equitable  defense  which  such 
debtor  or  debtors  allege  and  make  appear  against  it ; 

4.  On  account  of  the  smallness  of  such  claim  and  difficulty 
in  its  collection,  either  from  the  remoteness  of  the  debtor's  resi- 
dence, or  the  ignorance  of  the  executor  or  administrator,  of  such 
residence ;  the  court  may  order  such  claim,  debt,  or  demand  to 
be  compounded  or  sold,  or  to  be  filed  in  court  for  the  ])enefit 
of  such  heirs,  devisees,  or  creditors  of  the  decedent  as  will  sue 
for  or  recover  it,  giving  the  creditors  the  preference,  if  they  or 
any  of  them  apply  for  it  before  the  final  settlement  of  the  estate. 
Such  order  of  the  court  shall  be  a  sufficient  voucher  to  the  ex- 
ecutor or  administrator."     [R.  S.  §  6077.]^ 

1  §  10701  G.  C.  notwithstanding  the  fact  that  the 
The  mere  fact  that  an  administra-  administrator  has  tiled,  his  final  ac- 
tor files  certain  claims  with  his  count.  Pudcr  vs.  Agler,  242  Fed. 
account  as  being  uneolieetible  will  95;  62  Bull.  410. 
not  confer  a  rignt  upon  the  heirs  to  A  claim  owed  by  the  executor, 
enforce  collection  tnereon.  even  though  the  executor  is  in- 
No  heir  can  sue  to  recover  on  solvent,  is  not  a  desperate  claim, 
bonds  of  the  intestate  unless  they  Sheney  _vs.  Powell,  20  C.  C.  398;  11 
have  been  legally  distributed  to  him,  C.  D.  279. 


389  JURISDICTION  §  457 

§  457.     Jurisdiction. 

As  a  matter  of  course  the  application  to  be  made  for  the  sale 
of  desperate  claims  must  be  made  in  the  court  making  the 
appointment.  But  such  court  has  no  authority  to  authorize 
a  sal©  which  is  not  permitted  by  law.  Thus  where  an  insolvent 
person  who  was  indebted  to  the  estate,  was  appointed  adminis- 
trator of  the  estate,  it  was  held  that  the  court  had  no  power 
to  permit  such  administrator  to  sell  the  claim  against  himself 
as  a  desperate  claim.  The  statute  upon  his  qualification  trans^ 
muted  the  claim  into  money,  and  if  a  sale  was  made,  the  pur- 
chaser received  no  title. ^ 

No  administrator  has  a  right  to  sell  either  at  public  or 
private  sale  any  promissory  note  or  claim,  or  demand,  or  right 
of  action  which  he  can  collect,  unless  the  Court  finds  as  pro- 
vided in  the  above  section,  that  it  is  what  might  be  termed  a 
desperate  claim. ^  The  claim  or  demand  being  one  which  ac- 
crued or  was  acciniing  during  the  lifetime  of  th©  deceased.^"* 
An  administrator  or  executor  can,  however,  sell  a  note  and  trans- 
mit a  good  title  to  the  purchaser,  if  the  note  Avas  taken  by  him 
in  the  usual  course  of  administering  the  estate.* 

The  validity  of  the  sale  as  well  as  the  protection  afforded 
the  administrator  or  executor,  will  depend  upon  a  proper 
compliance  with  the  provisions  of  the  above  and  subsequent 
sections  of  the  General  Code.  A  claim  is  not  presumed  to  be 
desperate  until  a  finding  of  the  Court  is  made  to  that  effect, 
and  the  administrator  has  no  authority  to  sell  it,  either  at  public 
or  private  sale. 

§  458.     Application. 

The  above  section  provides  four  sufficient  reasons,  the  exist- 
ence of  any  one  of  which  will  be  sufficient  to  authorize  the 
Court  to  permit  a  sale.  The  application,  therefore,  must  con- 
tain some  one  of  such  statutory  causes,  and  it  may  be  in  the 
following  form: 

2  Chaney  vs.  Powell,  20  C.  C.  399;  3*  See  §   1396  R.  S. 

11  C.  D.  279.  ■*  Jelke    vs.    Goldsmith,    52    0.    S. 

s  See  §  6074  R.  S.  §  470.  499. 


§459  SALE  DESPERATE  CLAIMS  390 

{Title.) 

Now  comes  A.  B.,  administrator  (or  executor)  of  the  estate  of  C.  D., 
and  respectfuly  represents  to  the  Court  that  among  the  assets  in  his  hands 
belonging  to  the  deceased's  estate  and  accruing  during  the  lifetime  of 
deceased,  there  are  tlie  following  claims.  (Here  set  out  in  detail  each 
claim,  describing  it  as  given  in  the  inventory,  and  also  set  out  the  reason 
why  each  claim  cannot  be  collected,  being  careful  to  give  as  a  reason  for  not 
being  able   to   collect,   one  of  the  following: 

First,     Doubtful  or  actual  insolvency  of  the  person  owing  the  same. 

Second,     That  the  debtor  is  a  bankrupt. 

Third,     That  the  debtor  has  some  good  legal  or  equitable  defense. 

Fourth,  That  the  claim  is  difficult  to  collect,  either  from  the  remoteness 
of  the  residence  of  the  debtor  or  the  ignorance  of  the  executor  or  admin- 
istrator of  such  residence.) 

Wherefore  the  said  A.  B.,  as  administrator,  asks  that  said  claim  (or 
claims)  may  be  compounded  (or  sold  or  be  filed  in  the  Probate  Court)  as 
provided  by  law. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this day 

of 190.... 

§  459.  When  notice  of  application  to  court  for  their  sale 
necessary.  Publication  of  notice.  "^Yhen  a  claim  or  demand 
exceeds  ten  dollars,  or  in  the  aggregate  exceed  five  hundred 
dollars,  the  executor  or  administrator  must  give  notice  of  his 
intended  application  for  such  order,  at  least  three  consecutive 
weeks  prerious  to  the  day  on  which  it  is  to  be  made.  The  notice 
shall  be  published  in  some  newspaper  having  general  circulation 
in  such  county.  When  the  claims  are  numerous  they  need  not 
be  described  in  the  notice."     [R.  S.  §  6078.]** 


§  460.     Entry  ordering  notice. 

If  any  one  of  the  claims  or  demands  exceed  the  simi  of  ten 
dollars,  or  if  they  all  in  the  aggregate  exceed  five  hundred 
dollars,  there  must  be  a  notice  given  as  provided  in  the  pre- 
vious section.  Where  no  notice  is  required,  the  Court  may 
at  once  allow  the  application  upon  satisfactory  evidence  and 
may  order  the  claims  compoimded  and  sold  at  either  public  or 
private  sale. 

(Title.) 

On  this  day  came  A.  B.,  as  administrator  (or  executor)  of  the  estate  of 
C.  D.,  and  filed  herein  his  application,  praying  for  an  order  of  this  court 
authorizing  him   to  sell    (compound  or  file)    the  claims  therein  described 

**  §  10702  G.  C. 


391  NOTICE  PROOF,   ETC.  §  461 

which  he  holds  among  the  assets  of  the  estate.  And  it  appearing  to  the 
Court  that  the  sum  of  said  claims  exceed  ten  dollars  in  value,  it  is  ordered 

that  said  cause  be  set  for  hearing  on  the day  of , 

at o'clock .  .  .  M.,    190 ... .     And   that  notice   thereof   be 

given  at  least  three  consecutive  weeks  previous  to  said  day  for  hearing, 
which  notice  shall  be  published  in  some  newspaper  of  general  circulation 
in  this   county. 


§  461.     Form  of  notice,  etc. 

If  such  claims  are  numerous  they  need  not  be  described  in 
the  notice,  otherwise  they  should  be  described.  The  following 
may  be  used  as  a  form: 

{Title.) 

To  whom  it  may  concern: 

The  undersigned,  as  administrator   (or  executor)   of  the  estate  of  C.  D., 

deceased,  has  this  day  filed  in  Probate  Court  of 

county,  Ohio,  his  application  praying  for  an  order  authorizing  him  to  sell 
(or  compound  or  file)  the  following  claims  belonging  to  the  estate  of  C.  D., 
and  which  have  become  desperate.  (Here  insert  the  name  of  each  debtor, 
nature  of  the  claim  and  amount  due,  if  not  too  numerous,  if  numerous 
the  principal  ones,  the  others  briefly.)      Said  application  will  be  for  hearing 

on  the day  of ,   at    

o'clock...  M.,  190 

Administrator,  etc.,  of  C.  D. 

§  462.     Required   proof. 

On  the  day  set  for  hearing  the  Court  should  require  a  filing 
of  the  notice  and  an  affidavit  by  the  publisher,  that  it  has  been 
given  as  required  by  law.  The  statute  does  not  indicate  what 
proof  is  required,  but  simply  says  upon  proper  proof.  By  this 
we  are  led  to  believe  that  some  evidence  should  be  adduced  and 
the  Court  should  have  a  hearing  and  should  find  from  the  evi- 
dence that  the  claims  set  up  in  the  application  are  of  such  a 
character  as  to  bring  them  within  the  purview  of  the  statute, 
and  that  some  one  of  the  statutory  reasons  exist  for  declaring 
the  claims  desperate.  The  Court  may  order  that  the  claim  or 
claims  be  sold  either  at  public  or  private  sale  or  that  they 
be  filed  in  court. 

§  463.  Public  or  private  sales.  Terms  of  compounding  to  be 
fixed  in  order.  "If  the  court  orders  a  sale  of  such  debts  or 
demands,  the  executor  or  administrator  must  give  public  no- 
tice, as  above  provided,  of  the  time  and  place  of  sale,  three 


§  464  SALE  DESPERATE  CLAIMS  392 

consecutive  weeks  previous  to  the  day  of  sale,  at  which  they 
shall  be  sold  to  the  highest  bidder.  The  court  may  order  a  pri- 
vate sale  of  such  debts  and  demands,  in  like  manner  and  for  like 
reasons  as  provided  for  the  private  sale  of  goods  and  chattels. 
If  the  court  authorized  the  compounding  of  such  claims  or  any 
of  them,  in  its  order  it  shall  fix  the  sum  for  which  they  may  be 
compounded. "     [  R.  S.  §  6079.  ] ' 

§  464.     Entry  of  public  sale. 

(Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  application  of  A.  B., 
administrator  (or  executor)  of  the  estate  of  C.  D.,  deceased,  for  an  oraer 
authorizing  him  to  sell  at  public  sale  certain  claims  therein  described 
belonging  to  the  estate  of  said  decedent.  Which  said  claims  were  accruing 
(or  had  accrued)  in  the  lifetime  of  the  said  decedent,  and  the  same  was 
submitted  to  the  Court.  Whereupon  the  Court  finds  that  due  and  proper 
notice  of  said  application  and  the  time  of  hearing  the  same  has  been  given 
as  provided  by  law  and  that  the  allegations  of  said  application  are  true  and 
that  said  claims  are  desperate.  Wherefore  it  is  ordered  that  said  admin- 
i.<?trator  (or  executor)  proceed  to  advertise  and  sell  the  claims  specified 
in  said  application  at  public  auction,  at  (here  insert  place  where  sale  is  to 
be  held)  to  the  highest  cash  bidder  for  all  of  said  claims.  Notice  of  such 
sale  shall  be  given  by  publication  for  three  consecutive  weeks  in  a  news- 
paper of  general  circulation  in  said  county.s 

§  465.    Form  of  notice  and  return  of  sale. 

The  following  may  be  used  as  a  general  form  of  notice: 

The  undersigned  will  sell  at  public  auction  at on 

the day  of ,  at o'clock 

. .  .M.,  190.  .  .,  the  following  claims  belonging  to  the  estate  of  C.  D.   (here 

insert  said  claims) .     Said  sale  to  commence  at o'clock 

...M.,  sharp,  terms  cash. 


Administrator,  etc. 

After  the  sale  is  had,  a  return  should  be  made  to  the  Probate 
Court,  Avhich  may  be  in  the  following  form : 

{Title.) 
In  compliance  with  the  former  orders  of  this  court  I  gave  notice  of  sale 

by  advertisement  in ,   a   weekly   newspaper   of 

general  circulation  of  said  county,  for  at  least  three  weeks  previous  to  the 

day   of   sale,  which  was  on  the day   of at 

o'clock . . .  M.,    at    ( here    insert    the    place ) .      1    then 

and  there  offered  the  desperate  claims  heretofore  ordered  by  the  court  to  be 
sold  and  belonging  to  the  estate  of  A.  B.,  with  the  following  result:  (Here 
designate  in  an  itemized  manner  the  claims,  with  the  name  of  the  purchaser 
and  amount  paid  for  each. 

With  this  return  of  sale,  there  should  also  be  returned  a  copy 
of  the  notice  with  an  affidavit  of  its  publication. 

5  §  10703  G.  C.  «  See   §  1615. 


^93  PRIVATE    SALE  §  466 

§  466.    Form  of  private  sale,  etc. 

The  statute  authorizes  a  private  sale  in  like  manner  and  for 
like  reasons  as  provided  for  the  private  sale  of  goods  and  chat- 
tels. The  statute,  however,  in  the  case  of  a  private  sale  of 
other  goods  and  chattels  stipulates  that  the  sale  cannot  be  made 
for  less  than  the  appraisement,^  The  reason  for  the  sale  of  the 
claims  in  this  instance  would  forbid  a  sale  at  their  appraise- 
ment. Therefore  the  Court  must  fix  a  value  at  which  tliey  can 
be  sold,  if  they  are  to  be  disposed  of  at  private  sale.  The  entry 
may  be  in  the  following  form : 

This  day  this  cause  came  on  to  be  heard  upon  the  application  of  A.  B., 
administrator  (or  executor)  of  the  estate  of  C.  D.,  deceased,  for  an  order 
authorizing  him  to  sell  at  private  sale  certain  claims  therein  described 
belonging  to  the  estate  of  said  decedent.  Which  said  claims  are  accruing 
(or  had  accrued)  in  the  lifetime  of  the  said  decedent  and  the  same  was  sub- 
mitted to  the  Court.  Whereupon  the  Court  finds  that  due  and  proper 
notice  of  said  application  and  the  time  for  hearing  the  same  has  been 
given  as  provided  by  law;    and  the   court    further   finds   that   a  just  and 

fair   value   of    said    claims    are dollars,    and 

fixes  that  sum  as  a  minimum  price  for  which  they  may  be  sold  at  prirate 
Bale. 

§  467.    Return  of  private  sale. 

(Title.) 
In  compliance  with  the  former  order  of  the  court  I  have  sold  the  claims 

heretofore  adjudged  by  this  court  to  be  desperate,  for  the  sum  of 

dollars,  the  same  being  not  less  than  the  price  fixed  by  the 

Court,  to  the  following  persons.     (Here  set  out  in  an  itemized  statement,  if 
sold  to  several  persons;  if  sold  as  entirety  so  state.) 


Administrator,  etc. 

This  sale  is  made  according  to  the  statute  as  a  private  sale 
of  other  goods  and  chattels,  therefore  it  must  have  an  affidavit 
as  provided  in  sec.  11213,  G.  C,  which  affidavit  may  be  in  the 
following  form: 

( Title.) 

A.  B.,  administrator  (or  executor)  of  the  estate  of  C.  D.,  being  duly 
sworn,  says  that  in  obedience  to  an  order  issued  from  the  Probate  Court 
of * county,  he  sold  the  goods  and  chattels  men- 
tioned in  the  above  report  of  sale,  to  the  persons  therein  indicated  and 
at  the  price  therein  mentioned.  Said  sums  being  not  less  than  the  price 
fixed  by  the  court  and  being  the  highest  he  could  get,  after  having  made 
diligent  endeavor  to  obtain  the  best  prices  for  said  property. 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day 

of 190.... 

7  §  10700  G.  C,  §§479,  495. 


§  468  SALE  DESPER^VTE  CLAIMS  394: 

§  468.     Effect  of  order. 

Under  the  previous  chapter  it  was  said  that  the  consent  of 
the  Court  to  the  compounding  of  a  claim  would  not  prevent  the 
administrator  from  having  his  conduct  thereto  questioned,  by 
exceptions  to  his  account.  The  order  authorized  in  this  chap- 
ter having  been  made  upon  a  hearing  after  a  notice  made  in  the 
way  provided  by  statute.  Such  an  order  of  the  Probate  Court 
would  be  an  adjudication  of  the  question  and  could  not  be 
attacked  in  any  other  proceeding,  and  the  administrator  could 
not  be  questioned,  or  held  responsible  in  any  manner  for  his 
conduct  in  making  a  sale  under  the  provisions  of  this  chapter. 
If  exceptions  are  to  be  taken,  they  must  be  made  in  a  direct 
way,  and  if  any  one  is  aggrieved  by  the  decision  of  the  Court, 
he  may  prosecute  error.  Upon  the  return  of  an  administrator 
(or  executor)  of  a  sale,  either  public  or  private,  the  Court 
should  put  au  entry  on  the  journal  confirming  the  action  of  the 
administrator.     It  may  be  in  the  following  form: 

{Title.) 

This  day  came  A.  B.  and  filed  herein  his  report  of  a  public  (or  private) 
sale  of  the  desperate  claims  of  the  estate  of  C.  D.  Upon  examination  by  the 
court,  the  same  appearing  regular  and  in  conformity  to  law,  and  the  former 
order  of  the  court  is  confirmed,  and  the  same  with  the  proceedings  herein, 
is  ordered  recorded. 

It  is  common  practice,  where  the  ministrator  would  have  to  bring  the 

claims  are  desperate,  and  will  prac-  action.      It   might    be   well    in   such 

tically    bring    nothing,    for    tlie    ad-  cases   for  the  administrator  to  dis- 

ministrator    to    file   them    as    uncol-  tribute    them    in    kind    under    order 

lected  assets  with  his  final  account.  of    the    court    to    the    persons    who 

Of    course    no   heir    could    bring    an  would  be  entitled  to  whatever  might 

action  on  them,  and  if  at  any  time  at  any  time  be  collectible  thereon, 
they  were  worth  collection,  an  ad- 


395 


SALE  OF  PERSONAL  PKOPEETY 


§469 


CHAPTER  XXVII. 

ASSETS.     SALE  OF  PERSONAL  PROPERTY. 


§  469  Regulated  by  statute. 

§  470  What  personal  property  the 
executor  or  administrator 
may  sell,  and  when  appraise- 
ment, etc.,  not  required. 

§  470a  Household  goods. 

§  471  Promissory   notes,    etc. 

§  472  Property  taken  by  the  widow, 
etc. 

§  473  Property  specifically  be- 
queathed. 

§  474  How  property  may  be  deliv- 
ered to  legatee. 

§  475  Form  of  redelivery  bond. 

§  476  Emblements. 

§  477  Retjuest  not  to  be  sold  in  will. 

§  478  When  sale  to  be  made. 

§  479  How  to  be  sold. 

§  480  Notice,  etc. 

§481  Conduct  of  sale. 

§  482  What  credit  to  be  given. 


§  484  Sufficient  surety,  etc. 

§  485  When  executor  or  administra- 
tor not  liable  for  loss. 

§  486  Payment,  etc. 

§  487  Executor  or  administrator  to 
make  out  list  of  articles  lia- 
ble to  sale.  Duty  of  clerk  of 
such  sale. 

§  488  Construction  of  preceding  sec- 
tion. 

§  489  Sale  bill  to  be  signed  by  clerk, 
sworn  to  by  the  executor  or 
administrator  and  filed.  Re- 
turns of  private  sale. 

§  490  Form  of  sale  bill,  etc. 

§491  How  return  of  sale  bill  en- 
forced. 

§  492  Purchase  by  administrator  or 
executor. 

§  493  Warranty  of  title. 

§  494  Property  unsold. 


§  483  Security  to  be  taken. 

§  469.     Regulated  by  statute. 

Some  States  have  statutory  provisions  applying  the  same 
rnle  to  the  personal  property  as  we  in  this  State  do  to  real  es- 
tate ;  that  is,  personalty  can  only  be  sold  upon  a  showing  made 
by  the  administrator  or  executor  that  it  is  necessary  to  have 
such  sale  to  pay  debts.  But  in  this  State  the  theory  of  the 
law  is,  tliat  all  personal  property  except  bonds  and  stocks  and 
other  articles  mentioned  in  sec.  10697-8,  G.  C.  (§  470),''  shall  be 
sold  and  converted  into  money,  and  distribution  made  in  that 
manner  among  those  entitled.  If  there  is  any  class  of  property 
for  which  the  statute  does  not  make  provision  as  to  the  manner 

"  The   statute   now   seems   to   con-       of    bonds,    etc.      See    §  10697    G.    C, 
template   lliat  there  may  be  a  sale       §  470. 


§  470  SALE  OF  PERSONAL  PROPERTY  396 

of  its  sale,  as  to  such  property,  the  common  law  right  of  the 
administrator  or  executor  would  attach.* 

As  a  general  rule,  however,  it  may  be  said  that  the  common 
law  right  of  a  sale  does  not  exist  in  Ohio.®  In  order  to  make 
a  valid  sale  the  administrator  must  pursue  the  line  marked  out 
by  the  .statute.  A  sale  made  in  any  other  manner  is  invalid.^** 
The  purchaser  may,  however,  receive  a  good  title. ^^  The  ad- 
ministrator would  not  only  be  liable  for  a  devastavit,  but  the 
purchaser  would  receive  at  best  only  a  voidable  title.  The  admin- 
istrator has  no  right  to  give  away  the  assets,  though  he  con- 
siders them  worthless.^- 

The  statute  marks  distinctly  the  course  that  the  adminis- 
trator should  pursue,  and  any  other  will  make  him  liable  to 
persons  injuriously  affected.  A  number  of  different  methods 
are  provided  by  statute  for  a  disi)osal  of  the  personal  property. 
In  the  two  preceding  chapters  we  have  considered  the  question 
of  the  disposal  of  as.sets  of  doubtful  value  by  compromise  or 
sale.  In  this  and  the  subsequent  chapters,  will  be  considered 
the  sale  of  other  personal  property.  In  the  legislation  of  the 
following  sections  of  the  General  Code  it  will  be  seen  that  the 
Legislature  intended  to  have  a  speedy  settlement  of  the  estate, 
where  possible.  Of  course  where  the  will  of  a  decedent  makes 
provision  for  the  manner  in  which  his  property  shall  be  dis- 
posed of,  such  testamentary  provision  takes  precedence  over  the 
statute. ^-^  But  where  a  will  makes  no  provision,  the  statutes 
apply  to  the  executor,  the  same  as  an  administrator.^^ 

§  470.  What  personal  property  the  executor  or  administra,- 
tor   may    sell    and    when    appraisement,    etc.,    not    required. 

"Within  three  months  after  the  date  of  his  bond,  the  executor 
or  administrator  shall  sell  the  whole  of  the  personal  property 
belonging  to  the  estate,  which  is  liable  for  payment  of  debts  and 
is  assets  in  his  hands  to  be  administered,  except  promissory 
notes,  unless  as  otherwise  provided  herein,  and  claims,  demands, 
and  rights  in  action  which  can  be  collected  by  him,  and  bonds 

s  Jelke  vs.  Goldsmith,  58  O.  S.  517.  Citizens,   etc.,   Co.  vs.   Robbins,   128 

9  Tlie  Indiana  statute  is  somewhat  Ind.  449. 

similar    to    our    own.      In    passing  lo  Miller  vs.  Stark,  61  O.  S.  413. 

upon   that   statute,   the   court   said,  n  Hicks  vs.  Stone,  11  Bull.  72. 

"the   common-law   right   of   the   ad-  12  Jn    re    Radoviche's    Estate,    74 

ministrator   to   sell   and    dispose   of  Cal.  536;  S.  C,  16  Pac.  Rep.  321. 

personal  property  does  not  exist  in  12a  A      provision      in      the      will 

this  State.     Sales  of  such  property  whereby  testator  gives  all  his  per- 

must  be  made   in   the   manner   pre-  sonal    property    together    with    cer- 

scribed  by  our  statute  upon  the  sub-  tain    real     property     to     his     wife, 

ject.      In    the    absence    of    an    order  shows   he   does  not   intend   that  his 

from  the  proper  court  the  sale  must  debts   be   paid   out   of  the   personal 

be  public,  and  where  a  sale  is  made  property.     Harbeson  vs.  Millinger,  2 

at   private   sale  under  the   order  of  O.  App.' 75 ;    18  0.  C.  C.    (N.S.)   504. 

the  court,  it  must  be  made  in  sub-  13  See    §  470,    WTiat   need    not   be 

stantial  compliance  with  the  order."  sold;    §718,     Increase     of     estates; 

Henry,  Probate  law  and  Pract.  165;  §889,   Who  may  become  purchaser. 


397  WHAT    TO   BE   SOLD  §  470a 

and  stocks  when  the  sale  thereof  is  not  necessary  to  pay  debts; 
and  also  except  the  following : 

1.  Such  as  the  widow  desires  to  take  at  the  valuation  by 
the  appraisers,  she  securing  payment  therefor  to  the  executor 
or  administrator  as  other  purchasers; 

2.  Property  specifically  bequeathed,  until  the  residue  of  the 
personal  estate  is  sold,  and  found  to  be  insufficient  to  pay  the 
debts  of  the  estate; 

3.  The  executor  or  administrator  may  defer  the  sale  of  the 
emblements  or  annual  crops  raised  by  labor,  not  severed  from 
the  land  of  deceased  at  the  time  of  his  death,  beyond  the  three 
months  herein  prescribed  for  the  sale  of  the  assets.  These  may 
be  sold  before  or  after  they  are  severed  from  the  land  at  his 
discretion,  in  the  mode  prescribed  for  the  sale  of  other  goods 
and  chattels.  If  by  the  terms  of  a  last  will  the  testator  ex- 
presses a  wish  that  no  sale  of  his  personal  property  be  made,  the 
court  admitting  it  to  probate  at  its  discretion,  may  direct  its 
omission.  At  a  later  period,  on  application  of  a  party  inter- 
ested, the  court  may,  and  for  good  cause  shall  require,  such 
sale  to  be  made. 

4.  The  executor  or  administrator  may  sell  and  transfer,  with- 
out recourse,  any  promissory  notes  secured  by  mortgage  and  the 
mortgage  securing  the  same  at  not  less  than  the  face  value  thereof 
with  accrued  interest. 

5.  The  executor  or  administrator  within  one  year  after  hisi 
appointment,  unless  for  good  cause  shown  further  time  is  granted 
by  the  probate  court,  and  unless  he  has  made  or  is  able  to  make 
distribution  in  kind  to  the  parties  who  are  entitled  to  their 
respective  portions  of  the  estate  in  his  hands,  may  sell  either  at 
public  or  private  sale,  any  promissory  notes,  claims,  demands, 
rights  in  action,  bonds  and  stocks  by  first  obtaining  an  order  of 
the  probate  court  therefor.  The  probate  court  may  order  said 
executor  or  administrator  to  sell  at  public  or  private  sale  and 
shall  fix  the  price  for  which  any  of  said  property  may  be  sold, 
and  the  same  shall  not  be  sold  for  less  than  the  price  so  fixed. 
Provided,  further,  that  if  said  property  shall  not  be  sold  on  the 
first  application,  the  executor  or  administrator  shall  report  his 
proceedings  to  the  probate  court,  and  the  court  may  make  such 
further  orders  as  he  in  his  judgment  may  deem  best."  [108 
v.  70.3.]  1* 

§  470a.  Household  goods.  "When  by  the  terms  of  a  last 
will  the  testator  expresses  a  wish  that  no  appraisement  of  his 
household  goods  and  furniture  be  made,  the  court  admitting  it 
to  probate  may  direct  the  omission  of  such  appraisement,  but 
thereafter  mav  require  it  on  the  application  of  any  party  inter- 
ested therein.''     [R.  S.  §6074.]"* 

14  §  10697  G.  C.  15  See  §  363,  et  seq.,  as  to  Assets 

1**  §  10698  G.  C.  generally.     §  469  as  to  Sale  of  per- 

sonal property. 


§  471  SALE  OF  PERSONAL  PROPERTY  398 

Property  set  off  to  widow  and  children  can  not  be  sold.  Only 
ench  property  as  constitutes  assets  of  the  estate  can  be  sold.^^ 

§471.    Promissory  notes,  etc.^^* 

It  will  be  observed  that  in  the  general  provisions  as  to  the 
sale  of  personal  property  in  the  above  sections,  that  some  kinds 
of  personal  property  are  excepted ;  the  first  of  which  is  prom- 
issory notes  and  all  claims,  demands,  and  rights  in  action  which 
can  be  collected  by  the  administrator,  and  bonds  and  stocks 
when  it  is  not  necessary  that  they  be  sold  to  pay  debts.  It  is  the 
expectation  of  the  law,  that  as  to  promissory  notes  and  other 
demands  and  claims,  that, the  administrator  will  collect  them. 
If  they  are  not  collectible,  then  he  may  sell  them  as  desperate 
claims,  or  compound  them  as  provided  in  the  two  preceding 
chapters.  Bonds  and  stocks  are  not  to  be  sold  unless  it  is  found 
necessary  for  the  purpose  of  paying  debts  or  distribution.  Ad- 
ministrators and  executors  sometimes  in  order  to  have  a  speedy 
settlement  of  the  estate,  assign  notes  held  by  them,  but  it  seems 
they  have  no  power  so  to  do.^'^  The  statute  now  authorizes  their 
sale  without  recourse  at  face  value  and  accrued  interest. 

If  the  note  be  given  to  the  administrator  in  the  manage- 
ment of  the  estate,  he  might  transfer  it.^^  The  practice  of 
some  Probate  Courts  is,  that  where  a  note  or  demand  is  not  yet 
due,  upon  the  application  of  the  administrator  or  executor,  an 
order  is  made  for  him  to  assign  or  sell  it  at  its  full  value. 
It  often  becomes  very  necessary  and  proper  to  make  such  a 
sale.  Especially  is  this  true  where  the  demand  bears  a  low 
rate  of  interest,  and  other  outstanding  debts  carry  a  high  rate 
of  interest.  It  is  palpable  that  the  interest  of  the  estate  will 
be  highly  subserved  by  such  a  course,  and  such  a  proceeding 
ought  to  be  sustained  by  the  courts.^^     There  is  a  provision  ^^* 

15*  Cited     National     Surety     Co.  ting  an  order  of  the  Probate  Court 

vs.  Haughton,  32  0.  C.  C.  138.  authorizing    the     same — see     §  502. 

See  §  10704  G.  C.   (§  502).  This  order  of  court,  I  should  think, 

16  Miller  vs.  Stark,  Gl  0.  S.  413.  is     proper     under     §  470     as     now 

17  Jelke   vs.   Goldsmith,   52   O.    S.  amended. 

517.  18'  §§  10804-5-6   G.   C,   §  890. 

IS  When  the  author  occupied  the  An  executor  has  no  power  as  such 

position    of    Probate    Judge,    he    as-  before  final  settlement  to  turn  over 

sumed  jurisdiction  in  such  cases  on  to  a  creditor  of  the  estate  notes  held 

the    theory    tliat    the    Court    had    a  by   the   estate  without   an   order   of 

right  to  make  an  order  which  was  the    Probate    Court,    and    a    person 

evidently    beneficial    to    the    estate,  holding   notes   so   turned   over    does 

and  there  being  no  specific  statutory  not  have  a  valid  title  to  them  upon 

provision  on  the  subject,  it  followed  which  to  sue  the  maker.    Surety  Co. 

as  one  of  the  incidental  powers  at-  vs.  Haughton,  32  O.  C.  C.  138. 

taching  to  the  Court  in  its  general  There    is    some    doubt,    from    the 

jurisdiction   over   the   settlement  of  language  of  §  10704  G.  C,  whether 

estates.  it    is    meant    to    absolutely    forbid 

Statute    has    been    amended    and  the  sale  of  stocks  and  bonds  where 

now  authorizes  the  administrator  to  not     necessary     to     pay     debts,     or 

sell    promissory   notes   by    first  get-  whether  it  means  merely  that  they 


399  TAKEN   BY    WIDOW  §  472 

that  where  in  the  sale  of  real  estate  notes  are  taken  for  deferred 
payments,  they  may  be  sold  by  order  of  the  court  for  not  less 
than  their  face  value. 

§  472.    Property  taken  by  the  widow,  etc. 

The  statute  gives  to  the  widow  the  privilege  of  taking  any 
of  the  property  at  its  appraised  value,  she  to  secure  the  payment 
therefore  as  other  purchasers.  Where  the  widow  has  had  set 
apart  to  her  the  statutory  allowance  for  her  year's  mainte- 
nance, the  executor  or  administrator  is  generally  safe  in  allow- 
ing her  to  take  property  equal  to  such  allowance  and  taking 
an  assignment  of  her  right  to  the  allowance  as  a  security  for  the 
property.^^  For  such  statutory  allowance  is  entitled  to  priority 
of  payment  over  every  other  claim  against  the  estate,  except 
funeral  expenses,  those  of  last  sickness  and  expenses  of  admin- 
istration.-" 

The  right  of  the  widow  to  take  personal  property  at  the  ap- 
praisement is  not  limited  to  the  time  of  making  the  appraise- 
ment, but  may  be  exercised  at  any  time  before  the  property  is 
put  up  for  sale,  within  the  three  months  allowed  to  the  adminis- 
trator for  selling  the  property ;  and  her  right  is  not  affected  by 
the  changes  that  may,  in  the  meantime,  have  taken  place  in  the 
market  value  of  the  property.^^ 

§  473.    Property  specifically  bequeathed. 

The  third  exception  is,  that  such  property  as  is  specifically 
bequeathed,  shall  not  be  sold  until  it  is  found  by  the  adminis- 
trator or  executor  that  the  residue  of  the  personal  property  will 
not  be  sufficient  to  pay  the  debts  of  the  deceased.  The  infer- 
ence from  the  reading  of  this  exception  is,  that  in  all  cases 
where  the  remainder  of  the  personal  property  is  not  suiScient 
to  pay  debts,  the  property  specifically  devised  might  be  sold. 
If  the  deceased  owned  nothing  but  personal  property  this  state- 
ment would  be  true,  but  if  he  owned  real  estate  it  would  not 
always  be  true.     As  a  general  rule  personal  property  must  al- 

are  not  required  to  be  sold  in  three  19  See  White  vs.  Moe,  19  0.  S.  37. 

months.     I    was   formerly   ratlier  of  20  See   §10714-5  G.  C,  §647.' 

the  opinion  that  it  meaiit  that  they  21  Overturf    vs.    Wear,    26    6.    S 

were  not  to  he  sold  but  distributed  538. 

in  kind,  but  upon  further  considera-  In  the  opinion  of  the  author  the 

tion  of  tlie  question  I  have  come  to  widow  has  no   right  against  objec- 

the    conclusion    that    they    are    not  tions    to   take    the    property    at   the 

required    to    be    sold    within    three  appraisement    after    the    expiration 

months,   but  that  at   any   time  the  of  three  months,  even  if  the  prop- 

administrator  may  sell  them.  erty  remains  unsold. 


§  4 74  SALE  OF  PEKSONAL  PROPERTY  400 

ways  be  first  exhausted  in  the  paymen-t  of  debts  before  real 
estate  can  be  used  for  that  purpose.  But  tlie  testator  can 
change  this  rule,  and  it  may  now  be  taken  as  the  established 
law,  that  the  personal  fund  will  be  exempted  if  the  intention  of 
the  testator  in  its  favor  can  be  collected  from  a  sound  inter- 
pretation put  upon  the  whole  will.^^*  It  is  only  necessary, 
that  from  the  whole  testamentary  disposition  taken  together, 
there  should  appear  on  the  part  of  the  testator  an  intention  so 
expressed  as  to  convince  a  judicial  mind  that  it  was  meant  to 
charge  the  real  estate  so  as  to  exempt  the  personal,  or  to  make 
them  both  abate  and  contribute  ratably.^^  Thus,  if  a  person 
give  away  all  his  personal  property  and  leave  sufficient  real 
estate  undisposed  of,  this  would  exonerate  the  personal  prop- 
erty until  after  the  real  estate  was  exhausted. ^^ 

Likewise  it  has  been  held,  that  if  all  the  personal  property  be 
specifically  bequeathed  and  the  remainder  left  be  real  estate 
devised  to  a  residuary  legatee,  such  real  estate  would  have  to  be 
consumed  for  the  payment  of  the  debts  before  the  personal 
property  specifically  devised.^*  So  where  the  payment  of  debts 
is  made  a  general  charge  on  the  real  estate,  personal  property 
cannot  be  used  until  the  real  estate  is  applied  to  that  purpose."'* 

§  474.     How  property  may  be  delivered  to  legatee.     ' '  The 

property  specifically  bequeathed  may  be  delivered  over  to  the 
legatee  entitled  thereto,  he  securing  its  redelivery  on  demand, 
to  the  executor  or  administrator.  Otherwise,  it  must  remain 
in  the  hands  of  the  executor  or  administrator,  to  be  distributed 
or  sold,  as  required  by  law,  and  the  condition  of  the  estate." 
[R.  S.  §6075.]-« 

21*  Skinner  vs.  Blackburn,  4  C.  C,  23  McCullon  vs.  Chidester,  63  111. 

325;   2  C.  D.  574.  477. 

22Woerner  on   Admin.,    1104,   per  2*  Rgid  vs.  Corrigan,  143  111.  402. 

Wagner,  J.,  in  Brant's  Will,  40  Mo.  25  Alexander   vs.   Miller,   7    Heisk. 

266,   279;    Marsh   vs.   Marsh,    10   B.  65,  77,  et  seq.;  Lightfoot  vs.  Light- 

Mon.    360;    Hancock    vs.    Minot,    8  foot,  27   Ala.  351,   358;   Lee,  Appel- 

Pick.  29,  37 ;   Bane  vs.  Wick,   14  O.  lant,  18  Pick.  285,  288 :  Spraker  vs. 

S.  505,  515;  Whitehead  vs.  Gibbons,  Van   Alstyne,    18    Wend.    200,    204, 

10  N.  J.  Eq.  230;  Reid  vs.  Corrigan,  et  seq.;  Wallace  vs  Wallace,  23  N. 

143   111.  402.  H.   149,   155. 

26  §  10699  G.  C. 


401  EMBLEMENTS  §  475 

§  475.     Form  of  redelivery  bond. 

Know  all  men  by  these  presents,  that  we,  A.  B.,  C.  D.  and  E.  F.,  are 
held  and  firmly  bound  to  G.  H.,  executor  of  the  last  will  and  testament 
(or  administrator  with  the  will  annexed)  of  the  estate  of  I.  J.,  deceased, 
in  the  sum  of  (double  the  value  of  the  property)  for  the  payment  of  which 
we  do  jointly  and  severally  bind  ourselves. 

The  condition  of  the  above  obligation  is  such  that,  whereas,  A.  B.  has 
received  from  the  said  G.  H.  the  following  property  specifically  bequeathed 
to  him  by  the  last  will  of  said  I.  J.  (Here  describe  the  property.)  Now, 
therefore,  if  the  said  A.  B.  shall  redeliver  said  property  in  as  good  order  and 
condition  as  the  same  was  in  when  received,  in  case  such  property  shall  be 
required  for  the  payment  of  the  debts  of  said  decedent,  then  this  obligation 
to  be  void,  otherwise  to  remain  in  full  force. 

Sign. 

Executed  in  presence  of 

If  the  executor  is  also  residuary  legatee,  lie  could  dispense 
with  a  sale  of  not  only  the  property  specifically  devised,  but 
that  which  is  generally  devised,  by  giving  a  bond,  as  provided 
in  §  53." 

§  476.    Emblements. 

The  next  exception  to  the  property  which  the  executor  or  ad- 
ministrator is  required  to  sell  within  three  months  from  the 
date  of  his  bond  are  emblements  or  annual  crops  which  were 
not  severed  at  the  death  of  the  decedent  Whether  or  not  the 
same  shall  be  sold  before  they  are  severed  rests  in  the  discretion 
of  the  administrator  or  executor.  Ko  rule  can  be  laid  down  to 
guide  the  administrator  or  executor  in  the  exercise  of  this  dis- 
cretion. It  seems,  however,  unless  it  appears  clearly  to  him 
that  it  would  not  be  for  the  benefit  of  the  estate  to  sell  them 
before  they  are  severed,  he  ought  to  sell  them  with  the  remain- 
der of  the  property.  To  keep  them  means,  in  a  great  many 
instances,  that  he  must  sever  them  and  get  them  to  the  market, 
all  of  which  involves  an  expense.  Usually  at  public  sale,  prop- 
erty brings  its  fair  value,  especially  of  that  character.  But  it 
sometimes  appears  that  it  will  be  to  the  advantage  of  the  estate 
to  first  sever  the  crops.  A  very  common  practice  in  such  cases 
is  for  the  administrator  to  make  a  memorandum  on  his  sale  bill 
of  such  emblements  and  annual  crops  as  remain,  unsold,  and 
as  the  articles  are  of  such  a  kind  that  the  market  price  can  al- 
ways be  easily  ascertained,  the  administrator  or  executor,  with- 

27  §§  10608-9  G.  C. 


§  477  SALE  OF  PERSONAL  PROPERTY.  402 

out  any  order  of  Court,  sells  the  same  at  the  market  price  and 
returns  the  same  in  his  account.  The  statute,  however,  contem- 
plates that  after  the  emblements  or  annual  crops  have  been 
severed,  that  the  administrator  sell  them  at  public  sale,  or 
make  an  application  to  the  Probate  Court  to  sell  them  at  pri- 
vate sale.     As  to  what  are  emblements,  see  sec  369. 

§  477.    Request  not  to  be  sold,  in  will. 

The  remaining  exception  to  the  general  rule,  that  all  personal 
property  be  sold,  is  that,  if  the  testator  expresses  a  wish  that 
there  be  no  sale  of  his  personal  property,  the  court  admitting 
the  will  to  probate  may  direct  omission  thereof ;  and  the  Court 
may  also  at  any  subsequent  time,  upon  the  application  of  any 
party  interested,  require  the  property  to  be  sold.  The  general 
practice  in  such  cases  is  for  the  executor  to  simply  follow  the 
requests  of  the  will  and  make  no  sale  of  the  personal  prop- 
erty unless  directed  by  the  Court  to  do  so.  Other  personal 
property  which  is  generally  not  sold  by  the  administrator  is  the 
clothing  of  the  deceased.  These  are  generally  of  very  little 
value.  A  family  feeling  justifies  the  administrator  in  turning 
them  over  to  relatives  for  mutual  distribution.  The  application 
for  an  order  of  the  Court  directing  the  executor  to  sell  in  such 
cases  may  be  in  the  following  form: 

(Title.) 

A.  B.  respectfully  represents  that  C.  D.  is  the  duly  qualified  executor 
of  the  estate  of  E.  F.  That  the  said  E.  F.  in  his  will  expressed  the  wish 
that  there  be  no  sale  of  his  personal  property.  That  A.  B.  is  interested 
in  said  estate  in  the  following  manner:  (Here  describe  how  interested.) 
And  states  that  unless  said  personal  property  be  sold  his  rights  thereto 
will  be  effected  as  follows:  (Here  state  how  affected.)  Wherefore  he 
asks  that  the  court  may  make  an  order  requiring  the  said  executor  to 
proceed  to  sell  said  property  as  the  law  requires. 


The  granting  of  such  an  order  rests  in  the  discretion  of  the 
Court,  and  should  not   be   allowed   unless  there   is  good  cause 
shown,  and  the  wish  of  the  testator  should  be  followed.     The 
entry  may  be  in  the  following  form : 
{Title.)  * 

This  (lay  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B. 
to  require  C.  D.  to  proceed  and  sell  the  personal  property  belonging  to 
tlie  estate  of  E.  F. ;  and  the  same  was  submitted  to  the  court.  Whereupon 
tlie  court  finds  tliat  the  interest  of  the  estate  of  said  E.  F.  requires  sa'd 
personal  jiroperty  to  be  sold  and  1ierel)v  or(b'rs  C.  D.,  executor  tliereof.  to 
i)roceed  and  sell  the  same  as  required  by  law.27a 


403  WHEN    SALE   TO   BE    MADE  §  478 

§  478.     When  sale  to  be  made. 

The  sale  is  to  be  made  within  three  months  after  the  date  of 
the  administrator's  or  executor's  bond/^  unless  the  Court  may 
for  good  cause  extend  the  time  for  sale."" 

If  a  sale  is  made  after  three  montlis  and  without  an  exten- 
sion of  time,  I  apprehend  it  will  not  l>e  void,  but  if  the  estate 
suffered  any  loss  the  administrator  or  executor  would  be  lia- 
ble.'" 

As  a  general  rule,  the  time  ought  not  to  be  extended,  and  the 
statute  means  that  it  shall  not  be  extended  unless  there  is  a 
good  cause  for  it  —  that  is,  such  a  cause  as  will  result  bene- 
ficially to  the  welfare  of  the  estate.  For,  generally,  an  ex- 
peditious settlement  of  an  estate  is  more  beneficial  to  those  in- 
terested than  one  delayed.  It  should  not  be  granted  for  the 
mere  asking.      The  application  may  be  in  the  following  form : 

{Title.) 

A.  B.,  executor  (or  administrator)  of  the  estate  of  C.  D.,  deceased,  respect- 
fully represents  to  the  court  that  three  months'  time  has  about  elapsed  from 
the  date  of  his  giving  bond,  and  that  he  has  not  sold  the  perconal  property 
belonging  to  the  estate  of  said  C.  D.,  for  the  following  reasons:  (Here 
state   reasons.)      And   that   he   believes,    for    the   following   reasons    (here 

state  reasons)    that  he  should  have  an  additional  time  of 

months  in  which  to  make  such  sale.     Wherefore  he  prays  the  court  that 
such  extentsion  may  be  granted  to  him. 


FORM  OF  ENTRY. 

(Title.) 

This  day  this  matter  come  on  to  be  heard  upon  the  application  of  A.  B., 
executor  of  C.  D.,  for  an  order  of  the  court  extending  the  time  for  making 
the  sale  of  the  pei-sonal  property  belonging  to  said  estate ;  and  the  same 
was  submitted  to  the  court.  Whereupon  the  court  finds  that  there  is  good 
cause  for  granting  such  extension  and  it  is  hereby  ordered  that  this  time 
be  extended days  or  months  from  this  date. 


§479.  How  to  be  sold.  "The  sale  of  personal  property- 
shall  be  made  at  public  auction  after  at  least  fifteen  days '  notice 
has  been  given  in  some  newspaper  in  general  circulation 
throughout  the  county,  or  by  advertisement  set  up  in  at  least 
five  public  places  in  the  county  where  such  sale  is  to  take  place, 
though  for  good  cause  the  court  may  extend  the  time  for  sale. 
When,  on  sufficient  proof,  it  is  satisfied  that  it  would  be  for 
the  advantage  of  the  estate  to  sell  any  part  of  the  personalty 

27a  If   this    be    an    order    to    sell  less  price,  and  this  should  be  in  the 

notes,  bonds,  stocks,  etc.,  that  have  entry.     See  §  10697  G.  C,  §  470. 

neither  been  collected  or  distributed  28  §§  10697-8   G.   C,   §470, 

in  kind,  the  Court  must  fix  the  price,  29  §  10700  G.  C,  §  475. 

and  the  same  can  not  be  sold  for  a  30  Hicks  vs.  Stone,  11  Bull.  67. 


§  480  PUBLIC    SALE   OF   PERSONALTY  404 

not  taken  by  the  widow  at  the  appraisers'  valuation  at  private 
sale,  the  court  may  authorize  the  executor  or  administrator  so 
to  sell  any  part  thereof,  either  for  cash  or  on  such  other  terms 
as  in  its  discretion,  it  directs,  but  not  at  less  than  its  appraised 
value,  unless  by  the  affidavit  of  at  least  three  disinterested 
persons  the  court  is  satisfied  that  such  propertj^  can  not  be 
sold  at  its  appraised  value,  and  that  it  will  be  for  the  best 
interest  of  the  estate  to  sell  it  at  a  less  price,  in  which  case  it 
may  authorize  its  sale  for  a  less  amount.  Should  any  prop- 
erty thus  ordered  to  be  sold  at  private  sale  not  be  sold  within 
six  months  from  the  time  of  such  order,  or  within  such  other 
time  as  is  fixed  therefor,  the  court  may  order  it  to  be  sold  at 
public  auction  in  the  same  manner  as  though  a  private  sale 
had  not  been  ordered.     [R.  S.  §  6076.]  " 

§  480.    Notice,  etc. 

No  order  of  court  is  necessary  for  an  administrator  or  execu- 
tor to  sell  at  public  sale.  The  statute  gives  him  all  the  order  he 
needs.  As  to  the  exact  time,  manner,  and  place  of  the  sale  the 
administrator  will  often  find  it  very  much  to  his  advantage  if 
he  consults  those  who  are  beneficially  interested.  "A  little  oil 
upon  troubled  waters  often  prevents  a  storm.  "^- 

The  first  essential  matter  in  proceeding  to  have  a  public  sale 
is  giving  public  notice.  There  is  no  statutory  requirement  of 
what  the  notice  shall  contain,  but  it  must  be  given  for  at  least 
fifteen  days  in  a  newspaper  of  general  circulation  throughout 
the  county,  or  set  up  in  at  least  five  public  places.^* 

The  substantial  compliance  with  this  is  all  that  is  required. 
The  administrator,  however,  should  use  his  best  endeavor  to 
give  the  sale  a  wide  degree  of  publicity,  and  should  exercise 
the  same  judgment  that  a  careful  and  prudent  man  would  if 
he  were  offering  his  own  property  for  public  sale.  The  notice 
or  sale  hill  may  be  in  the  following  form : 

31  §  10700   G.   C.     See   §  1609,   in       ation  of  property  were  observed." 
part,  §  495  for  remainder  of  section.  Per  Davis,  J.,  in  Gaines  vs.  De  La 

32  The  judgment  of   residuary  le-       Croix,  6  Wall.  719. 

gatees  or  distributees  may  be  of  im-  See    Kaiser's    Succession,    48    La. 

portance    in   aiding   the    representa-  Ann.  973,  where  the  executors  were 

tive's    discretion    as    to    the    time,  held   justified   in  sel'in?"   at  private 

place,   and   manner   of   sale.      He   is  sale    in    the    interest    of   the   estate, 

not  bound  to  act  upon  the  judgment  apparently     Avithout     an     order     of 

of  one  or  all  of  such  parties;  but  to  court.     Wynns  vs.  Alexander.  2  Dev. 

ascertain  and  act  upon  the  wishes  of  &  B.  Eq.  .58:  McDaniel  vs.  Johns,  8 

the  majority  of  beneficiaries  in  in-  Jones  L.   414;    Hicks  vs.   Stone,   11 

terest  may  often  be  convenient  where  Bull.   72. 

the  fiduciary's  own  responsibility  is  An  executor,  acting  in  good  faith 

a    delicate    one.      See    Marsden    vs.  and,    as    he    believes,    for    the    best 

Kent,  25  W.  R.  522;  Sch.  Extr.  348.  interests  of  the  estate,  and  applies 

34  "Executors    could    only    sell    at  the  proceeds  to  paying  the  debts  of 

public   auction   after   due   advertise-  the   estate,   unless    it   is    shown   the 

ment  of  the  property,  and  the  pur-  estate   suflPered,    is    entitled    to    full 

chaser  at  a  forced  sale  did  not  ac-  credit   in    his   account.      Hunter   vs. 

quire  a  good  title  unl'^ss  the  formal-  Yocuni,  IS  N.  P.   (N.S.)    14. 
ities  prescribed  by  law  for  the  alien- 


405  CONDUCT  OF  SALE  §  481 

ADMINISTRATOR'S  OR  EXECUTOR'S  SALE. 

The  undersigned  will  offer  for  sale  at  public  auction,  at    he  late  residence 

of ,  deceased,  in 

county,    Ohio,    on   the day    of A.    D.    190 . .  . , 

the  personal  property  of  the  said ,  deceased, 

consisting   in    part   of 

Sale  to  commence 

at o'clock,    . .  .  M. 

TERMS. — Purchases  amounting   to   three  dollars   or   less   to  be  paid  in 

cash,  above  that  sum,  notes  on months  time,  with 

two  or  more  approved  sureties,  will  be  taken. 


,190.. .34a 


§  481.     Conduct  of  sale. 

In  the  conduct  of  the  sale,  the  administrator  is  authorized 
to  secure  such  services  and  incur  such  obligations  as  is  proper  to 
make  an  effective  sale. 

The  sale  must  be  made  pursuant  to  the  terms  of  the  statute ; 
and  in  the  absence  of  an  order  of  the  Court,  the  sale  must  be 
public.^*' 

Before  selling  the  property  must  be  appraised. ^^ 

The  purchaser  acquires  the  same  title  as  the  decedent  held 
in  his  lifetime,  although  the  sale  may  be  v^^holly  unnecessary; 
and  such  sale  can  only  be  avoided  for  fraud  or  collusion  prac- 
ticed by  the  executor  or  administrator  and  the  purchaser.^^ 

Mortgaged  property  is  sold  subject  to  the  mortgage.^" 

Any  one  bidding  off  property  must  pay  ifor  it;  and  if  he  do 
not,  and  it  is  resold  for  less  than  his  bid,  he  will  be  liable  for 
the  difference  between  his  bid  and  the  amount  of  the  sale.*° 

The  administrator  cannot  purchase  at  the  sale.**'*  He  may 
employ  an  auctioneer.*^ 

The  estate  is  not  liable  for  the  fraudulent  representations  of 

34a  One  insertion   if  made   fifteen  39 /^    re    Haig's    Estate,    6    Dem. 

days  before  the  time  of  sale,  would  4.54;    S.   C.  3   N.  Y.   Supp.   285;    14 

be  a  sufficient  compliance  with  the  Civil  Proc.  Rep.  357. 

statute.  Not    in    this    State,    as    here   the 

35  Ppe  §  IfiOO,  Assignments.  mortgaaror's     rip-hts    merely    follow 

36  Citizens'    St.    Rv.    Co.   vs.    Rob-  the  fund,  see   §  364. 

bins,  128  Tnd.  440;"Wever  vs.  Pec-  40  Meek  vs.  Spencer,  8  Ind.  118. 

end  Nat.  Rank,  .^7  Tnd. 'lOS.  40*  See  subsequent  §402.     Martin 

37Ramey  vs.  McCain,  ?,\  Tnd.  406.  vs.  Wvncoop,  12  Tnd.  266. 

S^Wever   vs.   Second  Nat.  Bank,  41  Lewis   vs.   Reed,   11    Ind.   230; 

57  -nd.  108.  Sch.  Ex.  §341. 


§  482  PUBUC  SALE  OP  PERSONALTY  406 

the  administrator  wherel)y  the  sale  was  induced;  nor  for  hig 
■warranty.*-  Bnt  the  administrator  may  by  certain  acts  of  his 
make  himself  liable.*-* 

To  show  good  title  in  the  purchaser,  there  being  no  question 
of  fraud,  it  need  not  be  shown  positively  that  the  executor  as- 
sumed to  sell  the  property  as  executor.*^ 

§  482.  What  credit  to  be  given.  ' '  In  all  sales  of  personal 
property  when  the  amount  bought  exceeds  three  dollars,  a 
credit  shall  be  given  by  the  executor  or  administrator,  of  not 
less  than  three  and  not  more  than  six  months,  unless  otherwise 
ordered  by  the  court."     [R.  S.  §  6081 ;  102  v.  202.]  ** 

§  483.  Security  to  be  taken.  "Notes  or  bonds,  with  two  or 
more  approved  sureties,  in  all  cases  of  sale  on  credit,  must  be 
taken  by  the  executor  or  administrator."     [R.  S.  §  6082.]  " 

§  484.     Sufficient  surety,  etc. 

Sec.  10219,  G.  C,  provides  for  the  qualifications  of  sureties, 
which  is  as  follows:  "Sureties  must  be  residents  of  this  State, 
and  worth,  in  the  aggregate,  double  the  sum  to  be  secured,  be- 
yond the  amount  of  their  debts,  and  have  property  liable  to 
execution  in  this  State  equal  to  the  sum  to  be  secured. ' '  *  This 
applies  to  sureties  given  on  a  note  at  an  administrator's  sale.*® 

An  administrator  or  executor  has  not  an  absolute  right  to  de- 
cline a  note  if  the  surety  thereon  is  sufficient  under  the  statute; 
and  at  his  pleasure  reject  the  notes  tendered  him.  But  if  his 
decision  as  to  the  qualification  of  the  sureties  is  made  in  good 
faith,  and  with  due  •  caution,  it  should  stand.*' 

42  Huffman    vs.    Hendry,    9    Ind.  *  ?  ^40. 

App.  324;   S.  C.  36  X.  E.  Rep.  727.  •»- The  vital   question  then  in  the 

See  Lockwood  vs  Gilson,  12  0  S.  ^ase  is,  whether  the  administrator 
o26;   Uunlap  vs.  Kobinson,   12  O.  S. 

53j_  can    arbitrarily,    and    not    in    good 

He    might    be    personally    liable,       faith,  reject  notes  tendered  to  him, 

^^^■>!  r■^  T--  1         oo  /-k    /-I    /"«        when   the    sureties   in  fact   have  all 

42a  Fisher  vs.  Fisher,  33  0.  C.  C. 
325.  of  the  qualifications  required  by  the 

43  Harvey  vs.  Van   Cott,  71   Hun      statute.     We  think  that  such  ought 

394;  S.  C.  25  X.  Y.  Supp.  25.  x  i.     u  ^  •         ^  ^i      i  jt-  i. 

d„  «  i^nn     \     •      ™     i  not  to  be,  and  is  not  the  law.     it  is 

.    bee  s  1609,  Assignments.  ' 

44  §  10705  G.   C.  true  that  the  use  of  the  words  "ap- 

45  §  10706  G.  C.     See  §  1606.  proved    sureties"    in    §  6082    R.    S., 

46  Hamilton  vs.  Bonham,  20  C.  C.         .  ,      x    .,  •    -j       i    i. 
252-   10  C.  D   834                                          gives  some  color  to  this  idea,  but  we 

are  of  the  opinion  that  the  meaning 


407  SUFFICIENT  SURETY  §  485 

When  surety  is  to  be  given,  if  the  administrator  accept  only 
the  personal  obligation  of  the  purchaser,  such  administrator 
will  be  liable  personally  for  the  amount  of  the  sale.*® 

If  he  accepts  insufficient  surety,  he  will  be  liable  on  his  bond 
for  both  principal  and  interest,  but  he  is  entitled  to  have  the 
notes  turned  over  to  him.*^ 

The  omission  to  take  surety  does  not  vitiate  the  sale/" 

If  the  surety  is  good  when  taken,  a  subsequent  failure  or  in- 
solvency of  the  surety  will  not  render  the  administrator  liable, 
but  the  loss  will  fall  on  the  estate.^^ 

Where  an  administrator  sold  upon  a  few  days'  time,  consid- 
ered in  the  vicinity  as  a  cash  sale,  and  the  purchaser  failed  be- 
fore the  time  fixed  for  payment,  it  was  held  that  this  waa 
equivalent  to  a  cash  sale  and  that  he  was  not  liable/^ 


§  485.     When  executor  or  administrator  not  liable  for  loss. 

"An  executor  or  administrator  shall  not  be  responsible  for  loss 
happening  by  the  insolvency  of  the  purchaser  at  such  sale,  or 
his  sureties,  if  satisfactory  evidence  is  adduced,  that  the  execu- 
tor  or    administrator    proceeded    with    due    caution    in    taking 

of  these  words  is  to  be  ascertained  brouck  vs.  Hasbrouck,  27  N.  Y.  182; 

by  reference  to  the  language  used  in  ^^%/^-    ^^^^'^S'   2   Hill    (S.   C.) 

the  other  section  of  the  statute  to  fhe  administrator  is  liable  if  he 

which  we  have  referred — that  it  was  does     not     take     proper     security, 

not  intended  to  confer  upon  the  ad-  White  vs.  Moe,  19  0.  S.  37. 

ministrator  the  power,  at  his  pleas-  '"  W  vs.  Lawson   23  Ala.  377. 

J       .         ,                             ,  But  in  Indiana,  where  an  order  to 

ure,  to  deprive  the  person  to  whom  ^^^   gt^pj,   ^t   private   sale   required 

the   goods    were   struck   oflf,    of   his  good  security,  and  the  sale  was  made 

right  to  the  property,  if  he  fully  and  on  the  purchaser's   individual  note, 

clearly  complied  with  the  other  pro-  on  ten  years'  credit,  the  statute  per- 

.  .            .    .                      ,        ,        ,  mitting  but  twelve  months,  the  sale 

visions  of  the  statute,   for  then  he  ^^s  held  void  and  to  pass  no  title, 

furnishes  sureties  approved  by   the  Citizens  R.  Co.  vs.  Robbins,  128  Ind. 

law,  and  which  should  be  approved  449. 

by  the  administrator.    Hamilton  vs.  ^  "  ,        '        /lu .        o    c™     s    tit 

•^  Gordon   vs.    Gibbs,    3    Sm.    &    M, 

Bonham,  20  C.  C.  254;  10  C.  D.  834.  473.    Davis    vs.    Marcum,    4   Jones' 

But  the  purchaser  could  not  main-  Eq.  189. 

tain  an  action  of  replevin.    Bonham  ^^  Taveau  vs.  Ball,  1  McCord  Ch. 

456 

vs.  Hamilton,  66  O.  S.  82.  The      administrator      ought      not 

*8  Parkham  vs.  Stith,  56  Miss.  465.  permit  the  property  to  pass  out  of 

« White   vs.    Moe^    19    0.    S.    37;  his   possession   until  the  terms  pre- 

Lindky    vs.    State,    116    Ind.    235;  scribed   by   statute   have   been   com- 

Sherrell  vs.   Shepard,   19   Fla.  300;  P^ 

Bowen  vs.  Shay,  105  111.  132;   Has- 


§  486  PUBLIC    SALE    OF    PERSONALTY  408 

security,  and  has  used  due  diligence  to  collect  such  notes  and 
bonds."     [R.  S.  §6083.]S3 

§  486.     Payment,  etc. 

The  administrator  can,  as  a  general  rule,  receive  nothing  in 
payment  except  money.^* 

The  administrator  cannot  accept  his  own  debt  in  payment 
and  if  he  do,  he  will  be  liable  on  his  bond,  or  the  sale  may  be 
set  aside;  or,  if  the  purchaser  have  knowledge  of  the  misap- 
plication of  the  proceeds  of  his  purchase  by  the  administrator 
at  the  time,  the  purchase  money  may  be  recovered  from  him/* 

An  administrator,  if  every  element  of  fraud  be  absent  and 
it  be  assigned  to  the  administrator  with  the  consent  of  all  the 
parties  to  the  transaction,  may  receive  in  satisfaction  of  a  note 
payable  to  him  as  such  administrator  an  account  due  the  maker 
of  the  note  from  a  third  party.^® 

If  he  accepts  payment  in  depreciated  currency,  he  will  be 
liable  for  the  difference  between  its  actual  value  at  the  time 
of  acceptance  and  the  amount  for  which  he  accepted  it.^^ 

If  sold  on  credit,  he  is  liable  for  the  scaled  value  of  the 
money  for  which  it  was  sold  at  the  time  of  the  sale,  and  not  at 
the  expiration  of  the  credit.^^ 

The  value  of  a  decedent's  personalty  at  the  time  of  granting 


53  §  10707  G.C.  Jones    vs.    Graham,    36    Ark.    383; 
See  §   711,  Sale  bill;   §  719,  Bad  Campbell   vs.    Miller,    38    Ga.    304; 

debts;   §  1616,  Assignments.  Succession  of  Herron,   32  La.  Ann. 

54  Chandler  vs.  Schoonover,  14  835;  Williams  vs.  Campbell,  46 
Ind.  324 ;  Bevis  vs.  Heflin,  63  Ind.  Miss.  57 ;  Currie  vs.  McNeill,  83  N. 
129;  Alvord  vs.  Marsh,  12  Allen  C  176;  Koon  vs.  Munro,  11  S.  C. 
603;  Woerner,  admin.  698.  139;   Rockhold  vs.  Blevins,  6  Baxt. 

55ld. ;  Austin  vs.  Willson,  21  Ind.  115;   Staples  vs.  Staples,  24  Gratt. 

252 ;  Weir  vs.  Tate,  4  Ired.  Eq.  264 ;  225 ;    Jackson   vs.   Chase,    98   Mass. 

Wallace   vs.    Brown,    41    Ind.    436;  28C. 

Bass  vs.  Chambliss,  9  La.  Ann.  376.  58  Depriest  vs.  Patterson,  92  N.  0. 

66  Hancock'  vs.    Morgan,    34    Ind.  399 ;       Granberry      vs.      Granberry 

524;   Morris  vs.  Whitmore,  27  Ind.  (Va.),  1  W^ash.  246. 

418.  Our    statute    allows    a    credit    of 

57  Glenn  vs.  Glenn,  41  Ala.  571;  nine  months;   he  would  only  be  U* 

Anderson  vs.  Wynne,  62  Ala.  329;  able  for  a  longer  time. 


409  PAYMENT RETURN,  ETC.  §  487 

the  letters  of  administration  cannot  be  shown  by  the  price  it 
was  sold  for  years  afterwards  by  the  administrator.^^ 

If  the  sale  is  on  time,  yet  the  administrator  may  accept  cash 
down.'" 

A  creditor  of  the  estate  cannot  deduct  from  the  price  of  the 
property  sold  to  him  by  the  administrator  the  amount  of  his 
demand  against  the  estate,  unless  his  claim  has  been  adjudi- 
cated, and  the  amount  to  which  he  is  entitled  from  tlie  estate 
ascertained,  in  which  case  the  smaller  sum  may  be  deducted 
from  the  larger.®^ 

§  487.  Executor  or  administrator  to  make  out  list  of  articles 
liable  to  sale.  Duty  of  clerk  of  such  sale.  "Before  a  public 
sale,  the  executor  or  administrator  shall  make  out  a  list  of  all  the 
articles  mentioned  in  the  inventory,  which  are  liable  to  sale,'  in 
the  order  they  are  set  down  in  the  inventory,  whetlier  they  are 
destroyed,  taken  by  the  widow  at  the  appraisement,  or  other- 
M'ise  forthcoming  or  not.  A  suitable  clerk,  who  is  not  interested 
in  the  estate,  at  the  time  of  sale  shall  place  opposite  to  each  item 
upon  the  list  the  names  of  the  purchaser  or  purchasers,  and  the 
amount  for  which  the  item  mentioned,  or  any  part  of  it  was 
sold.  If  there  be  any  article  on  the  list  not  sold,  the  clerk  must 
enter  opposite  to  it  the  words  'not  sold'  or  the  words  'taken  by 
the  widow  at  the  appraisement',  or  other  statement,  according 
to  the  fact.  If  articles  are  sold,  which  are  not  mentioned  in 
the  inventory,  they  shall  be  so  designated  on  the  sale  bill  by  the 
clerk."     [R."  S.  §  6084.] «- 

§488.  Construction  of  preceding  section.  "Nothing  con- 
tained in  the  next  preceding  section  shall  require  the  executor  or 
administrator  to  sell  each  article  in  the  order  in  which  it  is  stated 
in  the  list  taken  from  the  inventory,  nor  require  articles,  which 
are  mentioned  in  the  list,  under  a  single  item,  to  be  put  up  and 
sold  together.     The  articles  mentioned  in  the  sale  bill  must  be 

59  Read    vs.    Patterson,    55    Hun  munity  sanctions  a  discount  on  caslx 

60S;  S.  C.  8  N.  Y.  Supp.  826.  payments,  the  administrator  should 

tiO  Gwynn  vs.  Dorsey,  4  Gill  &  J.  not    be    made    liable    for    such    dis- 

453.  count,    etc.      A    better    way    is    to 

As   our   statute   allows   a  sale  to  make    all    the   notes    draw    interest 

be    made    on    nine    months'    credit,  from   day  of   sale.      Experience   has 

where  the  payment  is  made  in  cash  demonstrated  that  the  articles  bring 

a  proper  discount  is  allowed.  just  as  good  a  price  as  where  time 

This  can  not  be  done  where  there  without  interest  is  allowed, 
is  no  need  for  tlie  money,  and  as  a  *'l  Wocrner  on  Admin.  608. 
rule  should  not  be  done  without  the  If  the  estate  is  known  to  be  sol- 
sanction  of  the  court,  as  the  statute  vent  and  tlie  claim  is  known  to  be 
makes  no  provision  for  it.    It  sooms,  correct,  suah  might  with  safety  be 
however,    if    the    same    is    a    public  done, 
sale    and    the   custom   of   the    com-  62  §  10708   G.   C. 


§489 


PUBLIC    SALE    OF    PERSONALTY 


410 


stated  in  the  same  order  in  which  they  are  entered  upon  the 
inventory."      [R.   S.   §6085.]«=* 

§  489.  Sale  bill  to  be  signed  by  clerk,  sworn  to  by  the  execu- 
tor or  administrator  and  filed.    Returns  of  private  sale.    ' '  The 

sale-bill  sliall  be  signed  by  the  clerk,  and  the  executor  or  ad- 
ministrator must  make  oath  before  an  officer,  authorized  to 
administer  oaths,  that  it  is,  in  all  respects,  correct,  to  the  best 
of  his  knowledge  and  belief.  With  a  certificate  of  such  oath 
annexed  thereto,  the  sale-bill  must  be  filed  by  the  executor  or 
administrator,  in  the  probate  court,  within  six  weeks  from  the 
time  of  sale.  All  returns  of  private  sales  shall  be  sworn  to  by 
the  executor  or  administrator."     [R.  S.  §  6086.]^* 

§490.    Form  of  sale  bill,  etc. 

The  clerk  of  the  sale  should,  in  making  out  his  sale  bill, 
comply  with  the  provisions  of  sec.  10710,  G.  C,  and  it  should  be 
returned  at  as  early  a  time  as  convenient,  and  must  be  within 
six  weeks  from  the  time  of  sale.  Practice  has  demonstrated 
that  it  is  almost  impossible  to  return  the  articles  sold  in  the 
same  order  in  which  they  were  inventoried;  and  it  is  usual, 
while  not  complying  with  the  statute,  to  make  an  ordinary  re- 
port of  each  article  sold,  the  name  of  the  purchaser,  and  the 
price.  It  would  also  be  advisable  for  the  administrator  to  file, 
merely  as  an  exhibit,  a  copy  of  the  notice  put  up  advertising  the 
sale.  To  comply  with  the  statute,  the  form  should  be  somewhat 
in  the  following : 

,  A.  D.   190.... 

Sale  bill  of  the  personal  property  belonging  to  the  estate  of  A.  B.,  de- 
ceased,  sold  at  public  auction   by  C.  D.,  administrator  of  the  estate    (or 
executor  of  the  last  will  and  testament)   of  said  decedent,  on  the. ....  .day 

of ,  A.   D.    190..  .. 


NO.   OF 
ITEM. 


PROPERTY    AS    IN- 
VENTORIED. 


VALfE   AS 
INVENTORIED. 


Cts 


PURCHASER. 


Cts 


I  hereby  certify  the  foregoing  sale  bill  to  be  correct. 


.,  Clerk  of  sole. 


63  §  10709  G.  C. 

64  §  10710  G.  C. 

There  is  great  difficulty  experi- 
enced in  getting  all  the  articles  in 
the  sale  bill  in  the  order  in  which 
they   are   sold,    and   stating   therein 


the  inventory  value,  and  it  is  per- 
haps oftener  observed  in  its  breach 
than  observance  and  the  court 
generally  accepts  the  sale  bill  if  it 
states  the  name  of  the  purchaser 
and  the  price  paid. 


4:11  PUECHASE    BY   ADMINISTKATOK,    ETC.  §  491 

State  of  Ohio, County,  ss. 

Personally  appeared  before  me,  the  undersigned,  judge  of  the  Probate 
Court  of  said  county,  C.  D.,  administrator  of  the  estate  (or  executor  of  the 
last  will  and  testament)  of  A.  B.,  deceased,  who  being  sworn  says  that  the 
foregoing  sale  bill  of  the  personal  property  of  the  said  deceased  is  in  all 
respects  correct  according  to  the  best  of  his  knowledge  and  belief. 


Sworn  to  and  subscribed  before  me  this day  of , 

190.... 

Probate   Judge.«o 

§  491.  How  return  of  sale  bill  enforced.  ' '  If  an  executor 
or  administrator  refuses  or  neglects  to  return  the  sale-bill,  or 
fails  to  make  return  of  a  private  sale,  within  six  weeks  after  the 
sale,  the  same  proceedings  may  be  had  against  him  and  his 
sureties,  as  are  provided  in  cases  of  neglect  or  refusal  to  return 
an  inventory. "     [R.  S.  §  6087.]  ^'^ 

§  492.     Purchase  by  administrator  or  executor. 

"  It  is  an  ancient  and  very  familiar  doctrine,"  says  Woer- 
ner,®^  "  that  the  sale  by  an  executor  or  administrator  of  prop- 
erty of  the  estate  to  himself,  either  directly  or  indirectly, 
whether  at  private  or  public  auction,  no  matter  how  honest  and 
fair,  may  be  avoided  at  the  option  of  the  beneficial  owner,  or 
cestui  que  trust." 

While  there  does  not  appear  to  be  any  reported  case  upon  the 
question  in  Ohio,  as  to  personalty,  the  above  rule  has  been  un- 
qualifiedly followed  as  to  real  estate,®^  and  the  reasoning  used 
in  these  cases  makes  the  doctrine  applicable  to  personal  prop- 
erty as  well  as  real  estate.^® 

«5  See   §  1614,  Assignments.  sonous    in    its    consequences.      The 

68  §  10711  G.  C.  cestui    que    trust   is    not   bound    to 

See  §  303,  Compulsory  return  of  prove,   nor   is   the   Court   bound   to 

Inventory.  judge,  that  the  trustee  has  made  a 

67  Woerner  on  Admin.  700.  bargain    advantageous    to    himself. 

68  Barrington  vs.  Alexander,  6  0.  The  fact  may  be  so,  and  yet  the 
S.  198;  Sheldon  vs.  Newton,  3  0.  S.  party  not  have  it  in  his  power,  dis- 
494;  Piatt  vs.  Longworth,  27  O.  S.  tinctly  and  clearly  to  show  it. 
196;  Caldwell  vs.  Caldwell,  45  0.  S.  There  may  be  fraud,  and  the  party 
512.  not  able  to  prove  it.     It  is  to  guard 

69  Chancellor  Kent  arrives  at  this  against  this  uncertainty  and  hazard 
conclusion,  which  he  lays  down  as  of  abuse,  and  to  remove  the  trustee 
<Jie  true  rule  to  be  observed,  that,  from  temptation,  that  the  rule  does 
"  However  innocent  the  purchase  and  will  permit  the  cestiii  que 
may  be  in  the  given  case,  it  is  poi-  trust  to  come,  at  his  own  option,  and 


§  493  PUBLIC    SALE    OF   PERSONALTY  412 

Woerner  seems  to  criticise  the  doctrine,  but  admits  tjiat  the 
rule  is  too  well  settled  to  be  cast  aside.'" 

The  title  acquired  by  the  administrator  is  not  absolutely  void, 
but  voidable/^  If  all  persons  beneficially  interested  in  the 
estate  consent  to  such  a  sale  it  would  be  valid/^  But  such 
persons,  in  order  to  make  their  consent  valid,  must  not  be  un- 
der a  disability.  Whether  the  mere  acquiescence  of  the  parties 
in  interest  would  give  a  good  title  is  a  matter  upon  which  the 
authorities  do  not  agree.  The  majority  of  courts,  however, 
hold  that  if  all  parties  beneficially  interested  acquiesce,  and 
are  not  under  a  disability,  for  a  reasonable  length  of  time,  they 
would  be  estopped  thereafter  from  attacking  the  sale.'^ 

Schouler  concludes  his  investigation  on  this  subject  with  the 
following:  "  In  fine,  according  to  the  better  authorities,  a  pur- 
chase by  the  executor  or  administrator  at  his  own  sale,  either 
directly  or  indirectly,  will,  though  not  absolutely  void,  be  set 
aside,  upon  the  timely  application  of  any  party  interested  in 
the  estate ;  and  this  rule  is  of  general  application  to  sales  of 
trust  property."  '* 

It  is  provided  by  statute  that  a  purchase  made  by  an  officer 
making  a  sale  of  land  under  execution,  shall  be  considered 
fraudulent  and  void.'^ 

§  493.     Warranty  of  title. 

In  the  sale  of  personal  property  there  is  no  implied  war- 
ranty of  title.'® 

without  showing  actual  injury,  and  ran,  12  Ga.  594;  Mercer  vs.  Newsom, 

insist   upon   having   the   experiment  23  Ga.   151;   Flanders  vs.  Flanders, 

of  another  sale.     This  is  a  remedy  23  Ga.  249)  ;    Boerum  vs.   Schenck, 

which   goes    deep,    and    touches    the  41  N.  Y.  182;  Williams  vs.  Marshall, 

very  root  of  the  evil."  4  Gill  &  J.  376 ;  Todd  vs.  Moore,  1 

Cited  in  Barrington  vs.  Alexander,  Leigh   457 ;    Lyon  vs.   Lyon,   8   Ired 

6  O.  S.  198.  Eq.   201. 

70  Woerner  on  Admin.,  note  700.  ''*  Schu.  Exrs.  §  359.     §  1616.  As- 

71  Dunlap  vs.  Mitchell,  10  O.  117.  signments.     See  §  810,  Sale  and  Dis- 
■72Dunlap  vs.  Mitchell,  10  0.  117.  tribution. 

-3  Woerner  703,   citing  Fuller  vs.  vs  §  11G96  G.  C. 

Little,  59  Ga.  338  (citing  as  holding  to  §  902,  Real  Estate, 

the  same  doctrine,  Fleming  vs.  Fo-  Chapman    vs.    Speller,    14    Q.    B. 


413  WAKKANTY  OF  TITLE  §  494 

The  administrator  sells  only  such  title  as  his  decedent  had  in 
the  property  sold ;  and  the  purcliaser  takes  the  title  at  his  own 
risk,  not  being  released  from  payment  of  the  purchase  price  if 
the  title  proves  defective.^^  If,  however,  the  title  wholly  fails, 
the  purchaser  may  compel  the  administrator  to  refund  so  much 
of  the  purchase  price  as  he  has  in  his  hands  when  demand  for 
its  return  is  made.^® 

But  the  administrator  may  render  himself  personally  liable 
by  an  express  warranty  of  the  title/^  although  he  cannot  thus 
bind  the  estate.*" 

If  a  fraud  has  been  practiced  upon  the  purchaser,  he  may 
be  relieved  from  payment  of  the  purchase  price,  on  the  prin- 
ciple that  the  estate  cannot  be  allowed  to  profit  by  an  imcon- 
scientious  advantage.®^  He  may  have  the  contract  rescinded 
or  the  price  abated.*^ 

In  such  an  instance  the  administrator  practicing  the  fraud 
is  personally  liable,*^ 

By  making  the  sale  the  person  selling  represents  that  he  has 
authority  to  sell ;  and  if  it  prove  otherwise,  the  purchaser  will 
be  relieved  of  his  liability  as  purchaser.** 

§  494.     Property  unsold. 

The  question  often  arises.  What  shall  be  done  with  the  prop- 
erty that  is  returned  unsold  ?  As  a  usual  thing,  it  is  not  of 
sufficient  value  to  justify  another  public  sale;  very  often  it 

621;  Blood  vs.  French,  9  Gray  197;  s^  H. ;  Mockbee  vs.  Gordon,  2  Har. 

Bingham  vs.  Maxcy,   15  111.  295.  &  G.  176;   Buckels  vs.  Cunningham, 

77  Cogan  vs.  Frisby,  36  Miss.  178.  14  Miss.  358.     See  West  vs.  Wright, 

78  Mockbee  vs.  Gordon,   2   Har.  &  98  Ind.  335. 

G.   176.  See  Fisher  vs.  Fisher,  33  O.  C.  C. 

79  Id. ;    Summer   vs.    Williams,    8      ^^5. 

,,         i^n    T,     1    1  r^        •     V,  84  Wood  VS.  North,  6  Humph.  309; 

Mass.  162;  Buckels  vs.  Cunningham,      /~i  •  _  t>       i        c        p    tvt    m, 

'  ^  o         J       Crisman  vs.  Beasley,   bm.  &  M.  Ch. 

14  Miss.  358.  561 ;    Succession   of   Michel,   20  I^a. 

80  Dunlap  vs.   Robinson,   12  O.   S.       Ann.  233;  Becne  vs.  Collenberger,  33 
530;    Ramsey    vs.    Blalock,    32    Ga.      ^^§.  647 

„.,«        -r  ■,  -r^  i  rr,  .  „  1  I^^G      S    810,      S    1616. 

376;  Lynch  vs.  Baxter,  4  Tex.  431.  where  in  the  sale  of  land  it  was 

81  Williamson  vs.  Walker,  24  Ga.       advertised   as   dry   land   when   it  in 

fact  was  wet,  the  pui 
held.  Mechancs'  S.  &  : 
O'Connor,  29  O.  S.  652. 


257;    Crayton   vs.    Munger,    9   Tex.       fact    was    wet,    the    purchaser    was 

held.     Mechancs'   S.  &  B.  Assn.  vs 


285. 

82  Able  vs.  Chandler,  12  Tex.  88. 


§   i94  PEOPEIITY   UNSOLD  414 

aoes  not  justify  expenses  attaching  to  an  order  of  private  sale. 
If  tlie  property  is  of  very  much  value,  the  administrator 
ought  to  get  an  order  to  sell  it  at  private  sale.  If  of  little 
value,  he  might  sell  it  for  the  best  price  attainable  and  return 
it  in  his  account.  There  are  always  a  great  many  details  sur- 
rounding the  administration  of  the  estate  that  a  literal  compli- 
ance with  the  statute  will  not  beneficially  affect  the  estate.  In 
such  cases  the  administrator  should  use  his  discretion,  which, 
if  fairly  exercised,  the  Court  vnW  uphold. 


415  PRIVATE    SALE    OF    PEKSONALTY  §495 


CHAPTER  XXVIII. 

PBIVATE  SALE  OF  PERSONAL  PROPERTY. 

§  495  Statutory  provision.  §  500  Return  of  private  sale, 

§  496  Application.     Essentials.  §  501  Confirmation  of  sale 

§  497  Form   of   application   for  less       §  502  How     notes,     claims,     stocks, 

than  appraised  value.  etc.,  sold.       ,.       . 

e    no  -c^   4.  •         4^  S  503  Forms   of   application,   etc. 

§  498  F^ntries,  etc.  g  5Q4  ^^^^^   without   order,   etc. 

§499  When    property    is    not  sold       §  505  Sale    of    perishable    property, 

within  six  months. 

§  495.  Statutory  provision.  ' '  When  on  sufficient  proof,  it 
is  satisfied  that  it  would  be  for  the  advantage  of  the  estate  to 
sell  any  part  of  the  personalty  not  taken  by  the  widow  at  the 
appraisers'  valuation  at  private  sale,  the  court  may  authorize 
the  executor  or  administrator  so  to  sell  any  part  thereof,  either 
for  cash  or  on  such  other  terms  as  in  its  discretion,  it  directs, 
but  not  at  less  than  its  appraised  value,  unless  by  the  affidavit 
of  at  least  three  disinterested  persons  the  court  is  satisfied  that 
such  property  can  not  be  sold  at  its  appraised  value,  and  that 
it  will  be  for  the  best  interest  of  the  estate  to  sell  it  at  a  less 
price,  in  which  case  it  may  authorize  its  sale  for  a  less  amount. 
Should  any  property  thus  ordered  to  be  sold  at  private  sale  not 
be  sold  within  six  months  from  the  time  of  such  order,  or  within 
such  other  time  as  is  fixed  therefor,  the  court  may  order  it  to 
be  sold  at  public  auction  in  the  same  manner  as  though  a  private 
sale  had  not  been  ordered."     [R.  S.  §  6076.] ^ 

§  496.     Application.     Essentials. 

It  will  be  observed  in  the  above  section  (§  10700),  that  there 
arc  several  essentials  existing  to  authorize  a  private  sale.    First, 

1  §  10700  G.  C.  in  part.     See  §  479  See    §  450,    Compounding    claims; 

for  other  part  of  section.  §  456,   Sale — desperate   claims. 


§  497  PRIVATE    SALE    OF    PERSONALTY 


416 


tlie  Court  must  be  satisfied,  upon  good  and  sufficient  proof,  that 
it  will  be  for  the  advantage  of  tlie  estate ;  second,  the  property 
cannot  be  sold  for  less  than  its  appraisal,  unless  the  Court  is 
satisfied  by  affidavits  of  at  least  three  disinterested  persons, 
that  such  property  cannot  be  sold  at  its  appraised  value ;  and  a 
further  provision  is  made  that  an  order  for  private  sale  lasts 
six  months,  and  then  the  property  can  be  sold  at  public  auction. 
The  ordinary  application  may  be  in  the  following  form: 

(Title.) 

The  undersigned  A.  B.  administrator  (or  executor  )of  the  estate  of  C.  D., 
deceased,  respectfully  represents  to  the  court  that  it  would  be  for  the  best 
interest  of  said  estate  to  sell  at  private  sale  as  provided  by  law,  the  fol- 
lowing described  property  belonging  to  the  estate  of  said  deceased:  (Here 
describe  as  mentioned  in  the  inventory.)  He  further  asks  the  court  for  an 
order  authorizing  him  to  sell  at  private  sale  for  cash  (deferred  payments) 
at  the  appraised  value,  the  property  above  described. 

Sworn  to  before  me  and  in  my  presence  this day  of 

190.... 


§  497.     Form  of  application  for  less  than  appraised  value. 

(Title.) 

The  undersigned,  A.  B.,  administrator  (or  executor)  ot  the  estate  of  C.  D., 
deceased,  respectfully  represents  to  the  court,  that  it  would  be  for  the  best 
advantage  of  said  estate  to  sell  at  private  sale  at  a  price  fixed  by  the  Court, 
the  following  described  articles  belonging  to  the  estate  of  the  deceased: 
(Here  describe.)      He  further  represents  to  the  court  that  in  his  judgment 

the  sum  of .  .  . dollars  would  be  a  fair  price,  and  that 

he  has  filed  herewith  the  affidavits  of  three  disinterested  persons,  who  say 
that  such  property  cannot  be  sold  at  its  appraised  value,  and  that  it  would 
be  for  the  best  interest  to  sell  the  same  at  a  less  price.  Wherefore  he 
asks  the  Court  for  an  order  authorizing  him  to  sell  said  property  for  a 
price  to  be  fixed  by  the  Court. 


Sworn  to  and  subscribed  before  me  and  in  mv  presence  thiS .day  of 

190..., 


The  affidavits  required  to  be  filed  with  the  foregoing  petition 
may  be  in  the  following  form : 

G.  H.,  being  duly  sworn,  says  that  he  is  familiar  with  the  property 
described  in  the  application  filed  by  A.  B.,  administrator  of  C.  D..  for  a 
gale  ot  personal  property  at  less  than  its  appraised  value,  and  that  in  his 
opinion,  said  property  cannot  be  sold  for  its  appraised  value,  and  that  he 
has   no   interest   whatever   in   the   matters   thereto   referred,   and   that   he 


417  WHEN   NOT   SOLD,    ETC.  §  498 

believes  it  will  be  for  the  interest  of  the  estate  to  sell  the  same  at  a  leas 
price  than  their  appraisement. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this day  of 

190..  ..2 


§  498.     Entries,  etc. 

The  statute  does  not  direct  what  the  nature  of  proof  shall  be, 
but  it  must  be  sufficient  to  satisfy  the  Court.  Neither  does 
it  say  that  notice  should  be  given  to  any  interested  party. 
There  may  be  cases  when  those  beneficially  interested  should  be 
notified.  The  form  of  entry  for  a  private  sale  at  its  appraised 
value  may  be  as  follows: 

{Title.) 

This  day  this  matter  came  on  to  be  heard,  upon  the  application  of  A.  B., 
administrator  (or  executor)  of  C.  D.,  deceased,  for  an  order  authorizing 
said  administrator  (or  executor)  to  sell  at  private  sale  the  property  therein 
described,  for  not  less  than  its  appraised  value,  and  the  same  was  submitted 
to  the  Court.  Whereupon  the  Court  finds  and  is  satisfied,  upon  good  and 
sufficient  proof,  that  it  would  be  for  the  advantage  of  the  estate  of  the 
decedent  to  sell  the  property  in  said  application  described  at  private  sale 
at  not  less  than  its  appraised  value.  Wherefore  it  is  ordered  that  said  A. 
B.,  administrator  (or  executor),  be  ordered  to  sell  the  property  therein 
described  at  not  less  than  its  appraised  value  for  cash  (or  other  ^erms  as 
the  Court  may  fix)  and  the  said  administrator  make  return  of  his  proceed- 
ings hereunder  within months  from  this  date. 


ENTRY  FOR  LESS  THAN  APPRAISED  VALUE. 

(Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B., 
administrator  (or  executor)  of  C.  D.,  deceased,  for  an  order  authorizing  said 
administrator  (or  executor)  to  sell  at  private  sale  property  therein  de- 
scribed, for  less  than  its  appraised  value,  who  at  the  same  time  filed  in  this 
court  the  affidavits  of  G.  H.,  I.  J.  and  K.  L.,  three  disinterested  persons, 
that  said  property  could  not  be  sold  at  its  appraised  value,  and  the  same 
was  submitted  to  the  Court  upon  said  affidavits  and  the  application. 
Whereupon  the  Court  finds  and  is  satisfied,  upon  good  and  sufficient  proof, 
that  it  will  be  for  the  advantage  of  the  estate  of  said  decedent  to  sell  the 
said  property  at  less  than  its  appraised  value,  and  the  Court  further  finds 
that  a  reasonable  value  for  said  property  is  as  follows:  (Here  insert 
price  fixed  by  the  court  upon  each  article.)  And  orders  the  same  to  be  sold 
for  not  less  than  the  price  so  fixed  by  the  court;  and  that  ~aid  administrator 

be  ordered  to  return  within months  from  this  date 

his  proceedings  herein. 


§  499.     When  property  is  not  sold  within  six  months. 

This  matter  may  be  brought  to  the  attention  of  the  Court  by 
a  report  or  motion. 

2  See  §  1614, 


§  500  PRIVATE    SALE    OF    PERSONALTY  418 

{Title.) 

Now  comes  A.  B.,  administrator  (or  executor)  of  C.  D.,  deceased,  and 
represents  to  the  Court  that  the  following  property  (here  describe)  of  the 
deceased  has  not  been  sold  as  heretofore  ordered  by  the  Court  and  more 
than  six  months  has  elapsed  since  said  order  was  made.  Wherefore  he 
asks  that  said  property  may  be  sold  at  public  auction  (or  if  the  administrat- 
or wants  to  continue  the  order  for  a  certain  length  of  time  let  the  applica- 
tion so  state) . 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this day  of 

190.... 


The  entry  aiitliorizing  sale  of  such  property  may  be  in  the 
following  form : 

{Title.) 

It  appearing  from  the  application  filed  herein  by  the  administrator  (or 
executor)  of  the  estate  of  C.  D.,  deceased,  that  certain  personal  property 
of  said  decedent  designated  in  said  motion  and  ordered  sold  at  private  sale 
more  than  six  months  ago  has  not  been  sold;  and  it  is  now  ordered  that 
the  same  may  be  sold  at  public  auction  as  though  no  private  sale  had 
been  ordered  (here  state,  if  such  was  the  application,  "that  said  order 
of  private  sale  be  extended months." ) 


§  500.     Return  of  private  sale. 

As  soon  as  a  sale  is  made,  a  return  thereof  should  be  filed  in   i 
Probate  Court,  and  might  be  in  the  following  form :  ) 

(Title.)  '[ 

Now  comes  A.   B.,  administrator    (or  executor)    of  the  estate  of  C.  D.,    jj 

and  respectfully  represents  to  the  Court  that  in  pursuance  of  the  order    i 

of  said  court  made  on  the day  of   ,  he  has    j 

sold  at  private  sale  at  not  less  than  its  appraised  value    (here  insert  if    \ 
the  order  be  to  sell  at  a  price  fixed  by  the  court  at  "  not  less  than  the 
price   fixed  by  the  Court,")    the  following  property:      (Here  insert   prop- 
erty sold  and  the  price  of  each.)      Wherefore  he  asks  the  Court  to  confirm 
said  sale. 


All  private  sales  of  property  must  have  an  affidavit  attached 
to  them. 

State  of  Ohio, County,   ss. 

In  Probate  Court,  A.  B.,  administrator  of  the  estate  (or  executor  of  the 
last  will  and  testament)  of  C.  D.,  deceased,  being  duly  sworn,  says  that  in 
obedience  to  the  foregoing  order,  he  sold  said  goods  and  chattels,  com- 
mencing on  the day  of ,  A.  D.  190 ... ,  and 

closing  on  the day  of A.  D.  190.  .  .,  for  the 

sum   of dollars,   said    sum   being  the   appraised 

value  of  the  same,  and  the  highest  price  he  could  get  after  having  made 
diligent  endeavor  to  obtain  the  best  price  for  said  property. 

A  detailed  schedule  and  list  of  said  sale  is  herewith  returned  and  filed. 


419  CONFIRMATION    OF    SALE  §  501 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day  of 

190 


Probate  Judge.s 

§  501.    Confirmation  of  sale. 

Wlien  a  report  of  a  private  sale  has  been  filed,  as  well  as  a 
report  of  a  public  sale,  it  should  be  examined  by  the  Court, 
and  if  found  to  be  irregular,  the  administrator's  or  executor's 
attention  ought  to  be  called  to  such  irregular  matter  and  cor- 
rected, if  possible.  The  Court  should  then  confirm  the  sale. 
A  confirmation  of  an  irregular  sale  might  act  retroactively  and 
make  good  that  which  was  before  deficient.* 

§  502.  How  notes,  claims,  stocks,  etc.,  may  be  sold.  ' '  The 
executor  or  administrator  of  an  estate  may  sell  either  at  public 
or  private  sale  promissory  notes,  claims,  demands,  rights  in 
action,  bonds  and  stocks  by  first  obtaining  an  order  of  the  probate 
court  therefor,  but  if  he  sells  at  private  sale,  it  must  be  for  not 
less  than  an  amount  previously  fixed  by  the  probate  court." 
[R.  S.  §6080;  103  V.  265.]  = 

§  503.    Form  of  application,  etc. 

(Title.)  ")  i'robate  Court,   Clark  county,  Ohio. 

In  the  Matter  of  the  Estate  of       ^  Apjjlication    for    an    order    to    sell 
J.  W.  P.,  deceased.  }  Bank  Stock  at  Private  Sale. 

The  undersigned,  L.  A.  and  W.  II.  P.,  executors  of  the  estate  of  J.  W.  P., 
deceased,  respectfully  represent  that  it  will  be  necessary  to  sell  the  bank 

5  See  §  1614.  Campbell,    supra,    citing    numerous 

4  Hicks  vs.  Stone,  11  Bull.  67,  eit-  Mississippi  cases  to  the  same  effect, 

ing  Schu.  Ex.  316;    10  Vt.   120;   42  In  Indiana,  and  other  States  where 

N.  Y.   146.  the  order  of  court  to  sell  at  private 

Williams   vs.    Campbell,   46   Miss.  sale  does  not  require  a  confirmation 

57,  62.    A  decree  confirming  the  sale  of  the  same,  the  title  passes  to  the 

of  personalty  by  the  Probate  Court  purchaser  at  once  upon  his  compli- 

is   final.      Bland   vs.   Muncaster,   24  ance  with  the  terms  of  sale.     Citi- 

Miss.  62;   and  can  be  set  aside  for  ens    R.    Co.    vs.    Bobbins,    128    Ind. 

fraud   in  tlie  Chancery  Court  only.  449,  457.     See  confirmation  of  sale 

Smith  vs.  Chew,  35  Miss.  153.     The  of  real  estate  §  892. 
Probate  Court  may  sot  aside  a  sale  5  §  10704  G.  C. 

which  has  never  been  confirmed,  at  Court  may  order  stocks  sold  and 

any    time    before    final    settlement,  proceeds    reinvested.       Guthrie    vs. 

even  after  the  lapse  of  twenty-one  Electric  Co.,  2  N.  P.    (N.S.)    117; 

years;  and  until  the  Probate  Court  15   Dec.   23.      An  order  to   sell   for 

has  acted  upon  such  sale  a  chancery  not  less  than  the  market  price  means 

court  has  no  jurisdiction  to  set  it  the  market  price  on  the  day  the  sale 

aside.     Hart  vs.  Hart,  39  Miss.  221,  is  made.     Bnsch  vs.  Buscli.  22  Dec. 

224.      But   the   Probate    Court   can  1;    12  N.  P.    (N.S.)    186:    33   0.  C. 

not  set  aside  its  decree  upon  a  re-  C  358;    14  C.  C.    (N.S.)    346.     See 

port  of  sale  after  the  term  at  which  also,  §  10697  G.  C,  §  470. 
it     was     rendered.       Williams     vs. 


§  504  PRIVATE   SALE    OF    PERSONALTY.  420 

stock  of  the  said  deceased,  for  tlie  purpose  of  paying  debts  of  said  deceased 
and  making  distribution  of  the  assets  thereof  as  provided  in  the  will  of 
said  deceased. 

They,  further  represent  to  the  Court  that  the  said  deceased  was  the  owner 
of  six  (6)  shares  of  stock  in  tlie  First  National  Bank  of  Springfield,  Ohio, 
of  the  face  value  of  six  hundred  dollars  ($600),  and  that  the  market  value 
thereof  is  nine  hundred  dollars    ($000). 

\Mierefore  they  ask  that  the  Court  may  fix  the  price  at  which  they  may 
be  sold  and  authorize  them  to  sell  them  at  not  less  than  the  price  so  fixed 
by  the  Court. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this  6th  day  of 
September,    19 — . 


I]NTRY  AUTHORIZING  SALE  OF  BANK  STOCK  AND  FIXING  VALUE. 

{Title.) 

Tliis  day  come  I.  A.  and  W.  H.  P.,  executors  of  the  estate  of  J.  W.  P., 
deceased,  and  filed  herein  their  application  to  sell  certain  bank  stock 
belonging  to  the  deceased ;    and  the  same  was  submitted  to  the  Court. 

Whereupon  the  Covirt  finds  th-^t  it  is  nccess-M-y  to  sell  said  bank  stock 
and  fixes  the  value  thereof  to  be  nine  hundred  dollars  ($900)  and  authorizes 
and  directs  said  executors  to  sell  and  transfer  to  the  purcliaser  said  stock 
at  not  less  than  the  sum  fixed  by  the  Court,  at  private  sale.s 

§  504.    Sale  without  order,  etc.*'* 

Whether  or  not  a  sale  of  stocks  and  bonds  can  be  made  by  an 
executor  or  administrator  in  the  absence  of  authority  directing 
so  to  do  in  a  will,  when  it  is  not  necessary  to  sell  such  stocks  and 
bonds  to  pay  debts  of  the  decedent,  may  be  questionable.  When 
sec.  10704,  G.  C,  was  first  passed,  the  exceptions  provided  by  sec. 
10697-8,  G.  C,  were  not  in  that  section,  but  after  the  passage  of 
sec.  10704,  G.  C,  sec.  10697,  G.  C.  (§  470),  was  changed,  and  now 
has  an  exception  that  bonds  and  stocks  are  not  to  be  sold  unless 
it  is  necessary  for  the  payment  of  debts.  This  provision  of  sec. 
10697,  G.  C.,  being  passed  subsequently  to  sec.  10704,  G.  C.,  and 
not  being  inconsistent  therewith,  it  may  now  be  said  that  bonds 
and  stocks  may  be  sold  only  when  necessary  to  pay  debts,  except 
as  now  provided  by  sec.  10697,  G.  C.  (§470),  he  may,  when 
the  same  has  not  been  disposed  of  within  one  year  by  distribu- 
tion in  land  sell  them  under  order  of  court.  It  has,  however, 
been  held  that  an  administrator  or  executor  may  sell  such  bonds 
or  stocks  and  give  a  legal  title  without  an  order  of  court. '^  If 
there  w^as  a  loss,  however,  he  might  be  liable  to  the  estate. 

6  A  regular  way  would  be  for  the  ^*  Statute  now  provides  notes 
administrator  to  file  a  report  of  sale  may  be  sold  by  first  getting  order 
and  ask  its  confirmation.  Frequent-  of  court.  See  note  IS,  §  471. 
ly,  however,  no  further  report  is  ■?  The  title  of  personal  property  of 
made  except  in  tlie  accounts.  See  a  deceased  person,  when  not  other- 
Distribution  in  kind,  §  750,  et  seq.  wise  specifically  bequeathed  by  will. 


421 


SALE   WITHOUT    ORDER    OF    COURT 


§504 


Evidently  the  intention  of  the  legislature  was  that,  if  it  was 
not  necessary  to  have  a  sale  of  bonds  and  stocks  for  the  payment 
of  debts  of  the  deceased,  that  such  bonds  and  stocks  should  be 
distributed  in  kind  to  those  entitled  to  the  estate.  Where  it  is 
found  proper  that  a  sale  should  be  made  of  stocks,  those  bene- 
ficially interested  should  consent  to  such  sale.  If,  however,  it 
is  impossible  to  procure  the  consent  of  all  beneficially  inter- 
ested, and  the  nature  of  the  distribution  required  is  such  that 
they  can  not  be  distributed  in  kind,  an  application  should  be 
made  to  the  Probate  Court  setting  forth  such  fact  and  other 
reasons,  that  a  distribution  can  not  be  made  in  kind.  The  ap- 
plication should  also  state  that  it  is  necessary  to  sell  such  stocks 
or  bonds  to  pay  debt's,  if  the  order  is  asked  for  that  reason. 
The  application  and  entries  heretofore  given  may  be  made  ap- 
plicable to  the  sale  of  stocks  and  bonds.  It  might  be  advisable 
to  notify  those  beneficially  interested  before  an  application  is 
granted.  Especially  is  this  true  where  it  is  not  necessary  to 
sell  such  stocks  and  bonds  to  pay  debts  of  the  deceased. 

vests  in  the  personal  representative. 
The  statute  directing  that  it  may  be 
sold  under  direction  and  order  of 
the  Probate  Court,  does  not  divest 
this  title  of  the  representative. 
What  liability  may  attacli  to  him 
personally  or  arise  upon  his  bond  if 
he  sells  without  the  direction  and 
order  of  the  court,  behind  which  tlie 
statute  is  designed  to  furnish  him 
protection  if  he  will  avail  himself 
thereof,  we  need  not  now  inquire. 
It  can  not  be  tlie  failing  of  the  law 
to  embarrass  executors  and  admin- 
istrators in  malving  sales  of  personal 
property  of  their  decedents,  by  ex- 
posing purchasers  from  them  to  lia- 
bility thereafter  of  being  called  so 
to  account  for  the  property  pur- 
chased and  paid  for,  because  of  some 
failure  of  the  executor  to  follow  the 
prescribed  statutory  steps  in  the 
sale.  If  this  were  so,  no  one  could 
safely  deal  with  an  administrator  or 
executor  in  the  purchase  of  any  of 
the  personal  estate,  without  first  as- 
suring himself  tliat  all  tliese  prelim- 
inary steps  had  been  carefully  fol- 
lowed, as  prescribed.  Such  a  rule  of 
law,  rendering  such  sales  wholly 
void  for  failure  to  follow  the  stat- 
utory forms  by  the  executor,  would 
render  either  j)ul)lic  or  private  sales 
if  not  practically  impossible,  at  least 
extremely     diflicult    and    disadvan- 


tageous to  the  estate.  Hicks  vs. 
Stone,  11  Bull.  72. 

The  decisions  of  the  courts  are 
not  in  accord  as  to  the  effect  of  a 
sale  made  by  an  administrator  or 
executor  without  an  order  of  the 
Probate  Court.  Some  of  them  hold 
that  the  sale  is  void  and  no  title 
passes.  But  generally  it  is  held 
that  where  the  purchaser  is  inno- 
cent he  gets  a  good  title,  if  the 
estate  suil'ers  any  loss  by  reason  of 
a  wrong  sale,  the  administrator  or 
executor  is  held  responsible. 

See  Discussion  of  cases  in  Woer- 
ner  692,  697,  and  see  Discussion  in 
previous  chapter;  Sch.,  Ex.  §362. 
Also  Distribution  in  kind  750  et 
seq. 

An  order  of  the  Probate  Court 
authorizing  an  executor  to  dis- 
pose of  certain  shares  of  the 
corporate  stock  at  its  market 
value  for  cash,  complies  with 
§  10704  G.  C,  and  it  is  not  essential 
that  the  stock  should  not  be  sold 
for  less  than  the  specified  price. 
Busch  vs.  Busch,  22  Dec.  6;  12  N. 
P.  (N.S.)  86.  This  case  further 
holds  a  copy  of  the  order  of  the 
court  is  sufficient  protection  for  the 
corporation  to  transfer  the  stock. 
Affirmed,  33  O.  C.  C.  358;  14  O.  C. 
C.  (N.S.)  358.  Such  proceedings 
are  defective  but  do  not  impair  the 
title  to  the  stock. 


§  505  PRIVATE    SALE    OF    PERSONALTY  422 

§  505.     Sale  of  perishable  property. 

Our  statute  makes  no  provision  as  to  the  sale  of  perishable 
property.*  This  is  a  kind  of  property  that  very  often  cannot 
be  held  until  a  sale  can  be  had  as  provided  by  statute).  Usu- 
ally it  is  not  safe  to  keep  it  until  an  appraisement  of  the  estate 
is  had.  The  administrator  or  executor  must  make  some  kind 
of  a  disposition  of  it;  if  he  did  not,  he  might  be  liable.  In 
the  absence  of  any  particular  statute,  the  provisions  of  this 
chapter  in  reference  to  private  sales  should  be  used  as  far  as 
applicable.® 

If  the  property  which  is  of  a  perishable  nat^ire  is  of  small 
value  —  that  is,  twenty-five  or  fifty  dollars  —  the  administra- 
tor or  executor  might  proceed  to  sell  it  without  any  formal 
order.  But  if  it  is  of  considerable  value,  he  should  file  his 
petition  in  the  Probate  Court,  setting  forth  the  facts  of  the 
existence  of  such  property,  its  perishable  nature  and  its  proba- 
ble value.  If  an  administrator  acts  in  good  faith  for  the  best 
interest  of  the  estate  in  his  opinion,  without  violating  the  law 
or  order  of  the  court  having  jurisdiction,  and  even  permits 
property  to  remain  unsold  which  is  not  likely  to  depreciate  in 
value,  he  will  not  be  held  responsible  for  an  unforseen  loss 
arising.  But  he  must  act  with  diligence,  and  if  he  neglect  to 
act  within  due  time  and  tliere  is  a  loss,  he  will  be  held  re- 
sponsible." 

The  forms  and  entries  heretofore  given  in  this  chapter  can 
easily  be  adopted  to  suit  the  application  for  a  sale  of  perishable 
property. 

While  in  an  unreported  case  Judgo  ^  "  The     statute    authorizing    the 

Dempsey  of  the  Cincinnati  Superior  private  sale  of  personal  property  of 

Court    held    that    bonds    and    stocks  the  decedent  by  an  administrator  is 

were  not  to  be  sold  unless  necessary  most  useful  where  the  property  is  of 

to  pay   debts,   the   matter   has   been  a  nerishible  nature,  such  as  can  best 

in  considerable  doubt  in  the  mind  of  be  disposed  of  in  the  public  market, 

the    author,    see    note    to    §  471    for  or  such  as  would  probably  be  sacri- 

later  opinion,  etc.  ficed  at  a  public  sale." 

8  Perishable  goods  are  those  which  Citizens,  etc.,  Co.  vs.  Robbins,  128 

are    lessened    in   value    and    become  Ind.  449. 

ft^orse  by  being  kept.     Bouvierg  Diet.  lo  See    Woerner    on    Admin.    330. 

See   Sch.   Extrs.    327,   349. 


423 


PKESEKVATION   OF  PROPERTY 


§506 


CHAPTER   XXIX. 

ASSETS.    CARE  AND   MANAGEMENT. 


S  606  Preservation  of  property. 

§  519  Carrying  out  contract  of  de- 

1 507  Notes,  etc.,  given  by  adminis- 

ceased. 

trator. 

§  520  Contracts  not  binding,  etc. 

§  608  Employment  of  attorney. 

§  521  Duty  as  to  mortgages,  etc. 

§  509  What   counsel  allowed. 

§  522  Stocks. 

§610  Amount    of    counsel    fees    al- 

§ 523  Action    by    executor,    etc.,    to 

lowed. 

complete  contract  for  sale  of 

8  511  Taxation. 

land. 

§512  Custody  of  funds. 

§  524  Nature  of  proceedings. 

§513  Failure  of  bank  where  depos- 

§ 525  Parties. 

ited. 

§  526  Petition. 

§  514  How   executor,   etc.,   guardian 

§  527  Notice,  etc. 

and     trustees     may      invest 

§  528  When    court   may    order    con- 

funds. 

veyance.     Deed. 

§515  When  investment  to  be  made. 

§  529  Hearing,  etc. 

§516  Application  to  invest,  etc. 

§  530  Entry. 

§  517  Insurance. 

§  531  Form  of  deed. 

§518  Carrying   on   business   of   the 

§  532  Heirs    of    deceased    purchaser 

deceased. 

may  enforce  specific  perform- 

ance.! 

§  506.     Preservation  of  property. 

The  title  of  personal  property,  and  sometimes  real  estate, 
devolves  upon  the  administrator  or  executor.  From  the  time 
that  it  goes  into  his  hands  he  will  be  held  to  a  reasonable  degree 
of  care  with  respect  to  such  property,  and  he  should  adopt  such 
precautions  against  loss  by  fire,  flood,  or  waste  of  any  kind,  and 
exercise  such  forethought  for  the  security  of  such  property  as 
prudent  men  are  acciistomed  to  employ  in  reference  to  their 
own  property.^ 


1  See  §  303,  ct  sec/.,  Assets  gener- 
ally. §  02,  for  acts  done  before 
qualifying. 

2  IMiller  vs.  Proctor,  22  0.  S.  442; 
Rubottom  vs.  IVlorrow,  24  Ind.  202. 

Where  executors  held  an  estate 
under  a  will  for  a  term  of  years  to 
pay  taxes,  etc.  They  are  owners, 
and  a  notice  of  an  assessment  should 
be  sorvfd  on  them.  Roberts  vs. 
St.  Bernard,  8  C.  C.  (N.S.)  422;  29 
0.  C.  C.  725. 

Afrquicsconce  on  the  part  of  a 
cestui  que  trust,  in  a  wrongful  con- 
version of  trust  funds,  will  operate 


as  a  release  of  the  trustee  as  such, 
and  his  bondsmen  from  liability.  In 
re  Koehnken,  6  C.  C.  (in.S.)  359;  27 
0.    C.    C.    840. 

An  executor  having  the  control 
and  management  of  real  estate  has 
no  right  to  make  expensive  perma- 
nent improvements.  In  re  Uhlman, 
19   Dec.   803. 

As  for  the  simple  care  and  cus- 
tody of  the  personal  property  re- 
duced to  hiai  corporeal  possession  and 
control,  whether  it  be  of  things 
literally  corporeal  or  of  securities 
which    represent   incorporeal   money 


§  506  ASSETS  CARE  AND  MANAGEMENT  424 

It  becomes  necessary  in  many  cases,  in  order  to  avoid  ma- 
terial loss  and  injury  to  the  estate,  to  employ  additional  labor 
to  take  care  of  horses  or  other  stock  requiring  attention,  to 
tend  and  gather  crops  to  protect  property  in  danger  of  being 
lost,  and  to  complete  work  in  an  unfinished  state,  or  contracts 
binding  upon  the  personal  representative.^ 

As  to  some  of  these  matters  the  administrator  or  executor 
should  get  the  authority  of  the  Probate  Court,  but  there  are 
other  duties  that  are  so  incidental  to  the  proper  management 
of  the  estate  that  they  necessarily  follow  with  the  proper  ad- 
ministration of  the  estate,  and  no  particular  order  of  the  Court 
is  neceseary.* 

The  care  of  real  estate  does  not  usually  devolve  upon  an 
administrator,  but  when  it  is  tlirown  into  his  cutody  it  is  his 
duty  to  take  proper  care  of  it.  However,  it  must  be  under- 
stood that  while  the  administrator,  or  executor  is  under  obliga- 
tion to  take  care  of  tlie  property,  yet  any  contract  that  he  may 
make  with  any  person  in  reference  to  furnishing  such  care,  is 
but  the  personal  contract  of  the  administrator  or  executor. 
And  such  person  has  no  right  of  action  against  the  estate,  al- 
though the  administrator  or  executor  would  be  allowed  for  the 

rights,  the  executor  or  administra-  3  Woemer  on  Admin.  690. 
tor  is  certainly  bound  like  a  bailee  *  So  it  was  held  that  it  is  the  ad- 
in  point  of  responsibility,  according  ministrator's  duty  to  employ  a  phy- 
to  the  current  of  modern  opinion.  sician  to  attend  upon  a  slave  belong- 
Thus,  if  personal  property  belong-  ing  to  the  estate  during  his  illness, 
ing  to  the  estate  be  destroyed  or  cap-  Bomford  vs.  Grimes,  17  Ark.  567; 
tured  by  a  public  enemy,  or  perish,  Belfour  vs.  Raney,  8  Ark.  479,  482; 
or  deteriorate  from  some  internal  and  to  retain  hands  employed  in 
defect,  or  through  the  operation  of  agricultural  pursuits  until  the  crop 
natural  causes,  or  in  general  because  is  gathered.,  Percival  vs.  Herbemont 
of  inevitable  accident,  the  executor  1  McMull.  59.  Where  an  executrix 
or  ad—.inistrator  who  has  honestly  carried  on  a  brickyard  after  her 
exercised  ordinary  care  and  diligence  intestate's  death,  and  sold  all  the 
in  averting  or  lessening  the  mischief  bricks  made  before  and  after  his 
escapes  personal  liability  for  the  death  indiscriminately,  she  was  held 
loss.  He  is  himself  no  insurer  liable  for  the  proceeds  and  entitled 
against  accidents,  though  average  to  credit  for  the  expenses.  Ne-n'ton 
prudence  as  to  certain  kinds  of  prop-  vs.  Poole,  12  T^igh  112,  144. 
erty  might  perhaps  have  required  See  §  801,  as  to  administrator's 
him  to  keep  the  property  insured  right  to  mortgage,  §  645,  debts  due 
against  loss  by  fire.  Schu.  Exrs.  estate.  §471,  notes  502,  Stocks. 
314. 


425  PRESERVATION  OF  PROPERTY  §  506 

same  in  his  settlement  of  tlie  estate.  It  has  therefore  been  held 
that  if  an  administrator  buy  in  property  mortgaged  for  the 
benefit  of  the  estate,  and  make  a  promise  in  his  capacity  as  ad- 
ministrator to  pay  the  purchase  money,  no  action,  could  he 
maintained  thereon  against  the  estate.^ 

If  an  executor  or  administrator  permit  a  third  person  to  man- 
age and  control  the  estate,  he  adopts  him  as  agent,  and  he  is  re- 
sponsible for  the  agent's  conduct,  and  is  liable  for  losses  occa- 
sioned by  his  improper  or  negligent  management  of  the  affairs 
of  the  estate/ 

He  cannot  avoid  liability  for  a  loss  of  the  fund,  through  the 
misconduct  of  the  agent,  on  the  ground  that  his  co-executors 
were  mainly  active  in  the  administration  of  the  estate,  and 
mainly  instrumental  in  passing  the  fund  into  the  hands  of  such 
agent,  if  he  tacitly  assented  thereto  when  he  had  opportunity 
and  reasonable  cause  to  reject. 

It  willbe  the  object  and  purpose  of  this  chapter  to  treat  of 
several  specific  instances  of  an  administrator's  care  and  responsi- 
bility in  reference  to  the  property  placed  in  his  charge.^ 

5  Smith  vs.  Hayward,  5  N.  P.  501,  estate  for  purposes  authorized  by 
affirmed  by  Sup.  Ct. ;  West  vs.  Dean,  law,  but  may  not  bind  the  estate  by 
15  C.  C.  261;  8  C.  D.  797.  an  executory  contract,  and  thus  cre- 

"  Contracts  of  executors,  although  ate  a  liability  not  founded  upon  a 
made  in  the  interest  and  for  the  contract  or  obligation  of  the  testa- 
benefit  of  the  estate  they  represent.  tor."  Austin  vs.  Monroe,  47  N.  Y. 
if  made  upon  a  new  and  independent  360;  Lucht  vs.  Behrens,  28  O.  S.  237. 
consideration,    as    for    services    ren-  e  Earle  vs.  Earle,  93  N.  Y.   104 ; 

dered,  goods  or  property  sold  and  affi'g  in  part  16  J.  &  S.  18.  See 
delivered,  or  other  consideration  Clark  vs.  Clark,  8  Paige  152;  Mesick 
moving  between  the  promisee  and  vs.  Mesick,  7  Barb.  120;  Douglass 
the  executors  as  promisors,  are  the  vs.  Satterlee,  11  Johns.  16;  Whitney 
personal  contracts  of  the  executors,  vs.  Phoenix,  4  Redf.  180;  Johnson 
and  do  not  bind  the  estate,  not-  vs.  Corbett,  11  Paige  265. 
withstanding   the    services    rendered  7  He    is    bound    to    exercise    that 

or  goods  or  property  furnished,  or  degree  of  diligence  and  prudence  in 
other  consideration  moving  from  the  care  and  management  of  the  es- 
the  promisee,  are  such  that  the  ex-  tate  which  men  of  discretion  and  in- 
ecutors  could  properly  have  paid  for  telligence  in  such  matters  ordina- 
the  same  from  the  assets  and  been  rily  employ  in  their  own  like  af- 
allowed  for  the  expenditure  in  the  fairs.  Matter  of  Butler,  1  Connoly 
settlement  of  their  accounts.  The  58.  See  §§  435,  436,  653,  718,  1361. 
principle  is,  that  an  executor  may  1378,  889,  1640,  1578. 
disburse  and  use  the   funds   of   the 


§  507  ASSETS CAKE  AND   MANAGEMENT  426 

§  507.    Notes,  etc.,  given  by  administrator^* 

In  consonance  with  what  has  been  said  in  the  previous  seo- 
tion,  Courts  have  held  that  promissory  notes  given  by  an  admin- 
istrator for  services  rendered  to  the  estate,  or  for  property  pur- 
chased for  the  benefit  of  the  estate,  are  personal  obligations  of 
the  administrator  or  executor,  and  cannot  be  collected  against 
the  estate.^*  Thus,  in  Curtis  vs.  Bank,®  an  administrator 
bought  a  monument  for  the  grave  of  his  intestate  and  gave  his 
negotiable  note  as  administrator.  This  note  was  sold  before 
due  to  an  innocent  purchaser.  In  the  meantime,  the  adminis- 
trator had  filed  his  account  and  filed  a  receipt  showing  pay- 
ment for  the  monument.  It  was  said  in  this  case  "  that  the  giv- 
ing of  a  negotiable  note  as  administrator  is  such  a  departure 
from  his  authority,  as  to  relieve  the  estate,  and  hence  his  sure- 
ties from  liability,  is  a  proposition  so  firmly  established  both 
upon  principle  and  authority  as  to  leave  no  excuse  for  contro- 
versy," ® 

In  a  more  recent  case  it  was  held  that  an  action  at  law  cannot 
be  maintained  against  an  administrator  as  such  by  an  attorney 
upon  an  account  for  services  rendered  such  administrator  at  his 
request  in  and  about  the  settlement  of  the  estate  so  as  to  bind 
the  estate  for  the  payment  thereof.^"  And  in  another  case  it 
was  held  that  executors  and  administrators  are  personally  liable 
for  the  services  of  attorneys  employed  by  them,  but  their  con- 
tracts therefore  do  not  bind  the  estate,  although  the  services  are 
rendered  for  the  benefit  of  the  estate,  and  are  such  as  the  execu- 
tor or  administrator  may  properly  pay  for,  and  receive  credit 
for  the  expenditure  in  the  settlement  of  his  account.^^ 

In  such  cases  the  law  contemplates  that  the  administrator  or 
executor  will  himself  pay  the  value  of  such  services  and  be  re- 

7a  Cited   Pajme   vs.   Recht,   38   O.  ler  vs.  Hall,  64  X.  C.  60 ;  1  Edwards 

C.  C.  260.  on  Bills   and   Xotes,   §  75 ;    Gregory 

7*Mellen   vs.   West,   C.   C.   89;    3  vs.  Leigh,   33  Texas   813.     See  also 

C.  D.  46.  Ferrin   vs.    Myrick,   41    N.    Y.   315; 

But  the  Probate  Court  may  make  Austin  vs.  Munro,  47  N.  Y.  360. 

an  order  to  pav  a  claim  for  services,  10  McBride   vs.    Brucker,   5    C.   C. 

see  §  64o.          '  12:   3  C.  D.  7. 

See  §  471 :  notes  due  estate,  §  502,  n  Thomas  vs.  Moore.  52  0.  S.  201. 

Stocks  and  Bonds.  If    the    administrator    refuses    to 

8  39  0.  S.  .579.  pay    and    the    estate    received    the 

9  Citing  King  vs.   Thom,   1   Term  benefit  of  his   services,   an   applica- 
Rep.     487;     Cornthwaite    vs.    First  tion  before  the  estate  is  settled,  the 
Xat.  Bank,  57  Ind.  268;  Rittenhouse  court  might  direct  its  payment  out 
vs.  Ammerman,  64  Mo.  197:   Chris-  of  funds  belonging  to  the"  estate, 
tian  vs.  Morris,  50  Ala.  585 ;   Kess- 


427  EMPLOYMENT   OF  ATTORNEY  §  508 

imbursed  by  receiving  credit  for  the  amount  paid  in  the  settle- 
ment of  his  account. 

In  a  case  cited  in  15  C.  C.  265,  a  suit  was  brought  against 
the  administrator  for  twenty-five  barrels  of  corn  which  she  had 
furnished  at  the  request  of  the  administrator  after  his  appoint- 
ment, to  feed  the  swine  belonging  to  the  deceased  at  the  time  of 
his  death.  In  such  case  it  waa  held  that  the  agreement  is  but 
a  personal  contract  of  the  administrator  and  is  no  charge  on  the 
estate  when  demanded  by  the  creditor.^^ 

§  508.    Employment  of  attorney.^-* 

It  is  undoubtedly  the  right  and  in  most  cases  the  duty  of  the 
administrator  or  executor  to  employ  counsel  to  advise  and  assist 
him  in  the  performance  of  his  official  duty.^^  But,  as  stated  in 
the  previous  section,  no  matter  how  necessary  such  services  may 
have  been,  tlie  attorney  cannot  sue  the  estate  to  recover  for  them, 
but  must  enforce  his  demand  through  the  administrator  or  ex- 
ecutor. But  a  claim  for  attorney  fees  cannot  be  allowed  for  set- 
tling matters  which  involve  no  liability.^* 

Likewise  it  is.  not  proper  to  allow  an  attorney  fees  for  draw- 
ing and  insertion  of  a  notice  of  the  appointment  of  an  adminis- 
trator, nor  the  listing  of  property.  But  the  advice  in  the  mak- 
ing of  a  proper  inventory  or  settlement  of  partnership  interest, 
or  adjusting  of  a  claim  against  the  estate,  or  in  settling  a  claim 
against  the  estate  on  which  the  deceased  was  surety,  or  giving 
advice  about  a  question  of  descent,  or  investigating  settlement 
and  disposition  of  a  large  number  of  bills,  or  by  arranging  to 
continue  a  loan,  or  making  a  partial  distribution  of  an  estate,  or 
preparing  an  account,  are  all  proper  cases  for  the  employment 
of  an  attorney.  ^^ 

But  an  executor  has  no  power  to  employ  an  attorney  to  defend 
a  will  where  a  suit  is  brought  to  set  the  same  aside,"  for  litiga- 

12  Dailey  vs.  Dailey,  66  Ala.  266;  Where  beneficiaries  employed  coun- 
Burglier  vs.  Wright,  22  Bull.  381.            sel    whose    services    were    very    val- 

1-*  Cited,  79  0.  S.  110.  liable  to  the  estate,   such   fees  were 

13  Thomas  vs.  Moore,  52  0.  S.  205 ;  allowed  by  the  court  on  equitable 
Miller  vs.   Proctor,  22  0.   S.  442.  principle.     In   re   Oskamp.    1  -N.   P. 

11 /n  re  Estate  of  McAlpin,  8  Dec.  (N.S.)    1!)7;  49  Bull.  568;  Cin.  Sup. 

655;  38  Bull.  231.  Ct.    (1904). 

In  sale   of  real   estate,   attorneys'  is /jj  re  McAlpin,  8  Doc.  655;    38 

fees     are     not     prior     to     mortgage  Bull    231. 

claim.     Sherman  vs.  Millard,  6  C.  0.  is/n  re  Johnson,  4  N.  P.  156;   7 

(N.S.)    338;   27   C.   C.    177.  Dec.   1. 

See    §§  645,   660    (1905). 


§  508  ASSETS  CARE  AND   MANAGEMENT  428 

tion  of  that  kind  is  not  necessarily  in  the  interest  of  the  estate. 
It  was  even  held  that  attorney's  fees  would  not  be  allowed 
where  such  a  case  was  amicably  settled  without  trial,  especially 
when  the  settlement  did  not  govern  the  distribution  of  the  de^ 
cedent's  property  in  accordance  with  the  provisions  of  the  will/' 

The  same  doctrine  was  announced  by  the  Supreme  Court, 
where  it  was  held  that  the  executor  is  not  bound  to  assume  the 
burden  of  a  defense  of  the  contest  of  a  will  by  the  heirs  at  law, 
that  he  is  not  entitled  when  the  will  is  adjudged  invalid  to 
charge  the  estate,  in  his  settlement  of  accounts,  with  the  ex- 
pense of  maintaining  such  defense/^*  However,  if  the  execu- 
tor is  successful  in  having  the  will  sustained,  counsel  fees  may 
be  allowed/®  If  a  suit  was  brought  to  construe  a  will,  this 
would  be  a  necessarv  matter  for  the  employment  of  an  attor- 
ney."* 

The  services  of  an  attorney  at  law  are  extraordinary  services, 
and  where  the  proper  administration  of  the  estate  require  such 
services,  the  executor  or  administrator  may  themselves  perform 
such  necessary  services  as  attorneys  and  be  entitled  to  a  reason- 
able compensation  therefor.^® 

17  In  re  Seegar,  1  Dec.  113.  But  such  fees  only  become  a  claim 
17*  Andrews  vs.  Andrews,  7  O.  S.  against  the  estate  on  settlement  of 
See   Estate   of   Currey,   20   N.    P.     ^he  account.     McMahon  vs.  Ambach, 

(N.S.)   219;  27  Dec.  485,  wliere  the  79  0.  S.  103. 

court  refused  to   make  payment  of  See  §  659,   Extra  compensation. 

attorney  fees  for   defending  a  will,  ^he  following  is  a  syllabus  of  the 

even  when   successful,   a   charge   on  ,   ,          ,  r   . ,   .  * 

the  estate  *^^^®  °    ^^  '"  -^-fcAIpm,  as  found  in 

18  In  re  Estate  of  Daniel  Laws,  17  8  Dec.  655.     See  38  Bull.  231 : 
Bull.  80;   IS  Bull.  198.  Whenever    the   services   of   an   at- 

18* /»  re  Wolfe,  7  Dec.  220;  4  N.  tornev  are  required  in  the  settlement 

P    336  ' 

'iQ  rn'    AC  ij           o    •  T     \         T  of  an  estate,  in  order  to  give  the  ad- 

19  Chatfield  vs.   Swing,  7  Am.   L.  .   .  ^           '     ,   .               " 

Rec    326  ministrator    advice    upon    questions 

In  this  case  it  was  held  that  the  of  law,  or  to  perform  legal  services, 

preparation    of    the    necessary    pa-  which   the   administrator   could   not 

pers  for  the  application  to  the  court  perform   himself,    it   is  the   duty  of 

in  a  proper  case  to  sell  specific  chat-  ^he    Court    to    allow    him    for    such 

tels  at  private  sale,  and  the  procur-  .  -t-i       i      j        „*        t    ;„ 

^  ,  t  '  1  ,  ^ .  services.  The  burden  of  proof  is 
mg  an  order  for  such  sale  is  an  ,  ,  .  ■  ^  ^  ,  i,  . 
extra  service  so  far  as  this  dutv  re-  "PO^  ^^'^  administrator  to  show  that 
quires  the  aid  of  an  attorney;"  and  the  services  rendered  him  by  the  at- 
also  that  it  would  be  proper  to  make  torney  were  such  services  as  the  law 
an  allowance  for  an  attorney  to  as-  makes  an  extra  allowance  for.  The 
sist  an  administrator  of  a  large  drawing  and  insertion  of  the  notice 
estate  m  taking  out  letters  and  giv-  ^  ,,  .  ,  .  t  t-u  j™;„;= 
.  ,  i-  *•  1  X  1  ■  1  i  of  the  appointment  of  the  adminis- 
ing  instruction  m  regard  to  his  dutv  .  ^  .  . 
at  the  appraisement,  and  also  mak-  t^'^tor  ^^  ^  newspajier  is  not  a  mat- 
ing out  accounts  of  administration,  ter  which,   inasmuch  as  blanks  are 


439 


EMPLOYMENT  OF  ATTORNEY 


§508 


As  to  the  matter  of  the  employment  of  coimsel,  experience 
has  demonstrated  the  wisdom  of  employing  counsel  to  assist  an 
administrator  in  almost  every  instance.     Usually  administra- 


furnished  and  directions  given  by 
the  Probate  Court,  requires  the  as- 
sistance of  an  attorney.  The  ser- 
vice of  the  notice  of  the  making  of 
the  inventory  upon  the  proper  par- 
ties does  not  alone  require  the  as- 
sistance of  an  attorney,  but  the 
making  of  the  inventory  and  taking 
account  of  the  different  assets,  in 
the  manner  in  which  they  are  to  be 
inventoried,  and  the  proper  prepara- 
tion of  the  inventory,  is  a  matter  in 
which  the  administrator  is  entitled 
to  the  services  of  an  attorney.  The 
amount  which  should  be  allowed  for 
such  services  must  be  determined  by 
the  character  of  the  estate  and  the 
assets.  In  case  at  bar,  an  estate 
valued  at  about  $500,000.00,  not 
complicated  and  in  excellent  condi- 
tion, the  Court  allowed  $100.00.  The 
settlement  of  partnership  interests, 
three  in  number,  held  by  deceased, 
was  a  service  requiring  an  attorney. 
And  where  there  appeared  to  have 
been  little  difficulty  and  very  little 
litigation  involved  in  settling  such 
interests,  that  it  was  largely  a  mat- 
ter of  detail,  and  that  the  amount  of 
money  involved  in  such  interests  was 
small,  a  fee  of  $250  was  allowed. 
The  settlement  of  a  claim  of  $1,350, 
without  suit,  by  payment  of  money 
and  offsetting  indebtedness  due  from 
deceased,  was  a  matter  in  which  the 
administrator  was  entitled  to  an  at- 
torney. A  fee  of  $135.00  allowed. 
Concerning  matters  relative  to 
which  there  could  be  no  legal  ques- 
tions or  liability,  such  as  subscrip- 
tions made  by  deceased  to  a  church 
or  to  the  Y.  M.  C.  A.,  not  questioned 
or  disputed  by  the  heirs,  the  admin- 
istrator was  not  entitled  to  the  ser- 


vices of  an  attorney.  The  transfer  of 
securities  held  by  deceased  as  trus- 
tee, and  to  which  no  claim  was  made 
by  the  heirs  and  all  that  the  ad- 
ministrator was  required  to  do  was 
to  require  identification  of  the  suc- 
cessor in  trust,  was  not  a  matter 
requiring  the  services  of  an  attor- 
ney. The  listing  of  the  property, 
consisting  of  shares  of  stock  in  a 
corporation,  bills  and  notes  and  real 
estate,  for  taxation,  was  not  a  mat- 
ter about  which  the  administrator 
required  any  attorney.  Services  of 
the  attorney  in  advising  the  admin-- 
istrator  as  to  the  latter's  charges 
for  administering,  were  for  his  own 
benefit  and  are  not  a  proper  charge 
upon  the  estate  administered.  In 
the  settlement  of  a  claim  against 
deceased,  as  a  surety  upon  a  note, 
the  administrator  was  entitled  to  an 
attorney.  The  sum  of  $100  allowed. 
Concerning  a  question  of  descent, 
occasioned  by  the  death  of  one  of  the 
heirs,  though  not  complicated,  was 
a  matter  entitling  administrator  to 
an  attorney.  The  sum  of  $100  al- 
lowed. In  the  matter  of  the  settle- 
ment or  disposition  of  bills  receiv- 
able, aggregating  $12,712,  which 
were  investigated  and,  as  nothing 
could  be  made  on  them,  distributed 
to  heirs  of  the  estates,  there  was  rea- 
son why  the  administrator  might 
have  employed  an  attorney  and  a  fee 
of  $100  is  allowed.  In  the  arranging 
for  the  continuance  of  a  deposit  of 
money  with  the  company  in  which 
deceased  was  principally  interested, 
for  a  longer  time  than  the  strict 
rules  of  law  might  have  permitted, 
and  for  the  reason  that  to  have  re- 
quired payment  would  have  embar- 


§  509  ASSETS CABE  AND   MANAGEMENT  430 

tors  or  executors  are  not  persons  skilled  in  legal  matters,  and 
a  very  small  mistake  very  often  causes  complication  in  the  end, 
costing  the  ©state  far  more  than  the  employment  of  a  competent 
counsel  would  have  from  tJie  very  beginning.  If  the  adminis- 
trator or  executor  is  not  a  lawyer,  except  in  the  simplest  cases 
of  administration,  he  should  in  the  very  beginning  of  the  ad- 
ministration of  his  trust  seek  the  employment  of  competent 
counsel.  ^^ 

§  509.    What  counsel  allowed. 

If  the  services  were  rendered  in  part  to  the  executor  and  in 
part  to  the  widow,  he  can  be  allowed  only  to  the  extent  of  the 
services  to  the  estate,^^ 

A  charge  for  sel'^aces  in  the  settlement  between  some  of  the 
heirs  and  the  administrator,  which  seiwices  were  for  the  benefit 
of  the  heirs,  will  be  allowed  the  administrator.^^ 

Where  an  attorney  has,  under  the  employment  of  an  executor, 
rendered  professional  service  for  the  estate  represented  by  such 
executor,  and  afterwards  the  will  has  been  set  aside  and  another 
person  has  been  appointed  to  represent  tJie  estate  as  administra- 
tor, he  will  be  entitled  to  pay  for  such  sennces  out  of  the 
estate."^ 

rassed  the  company,  the  administra-  f™ds     coming     into     the     counsel's 

tor   was   entitled   in  order   to   have  hands    were    to    be    held    until    fees 

matters   arranged   so   as   to   protect  "^^'^re    paid,    etc..    it    was    held    that 

his  bondsmen,  to  the  services  of  an  while   the    administrator    could   not 

attorney,   and  a  fee   of  $250   is  al-  pledge   funds   of  the   estate   for  his 

lowed  therefor.    In  making  a  partial  individual  debts,  yet  where  no  cred- 

distribution   of   the   estate  prior   to  i^or    appeared    to    be    injured    such 

the   statutory  time,   at   the   request  agreement      would      be      sustained, 

of  some  of  the  heirs,  the  adminis-  Burgher  vs.  Wright,  22  Bull.  381. 

trator  was  entitled  to  the  services  of  ''-'  ^«  re  Smith's  Estate,  22  X.  Y. 

an  attorney.     The  sum  of  $500  al-  Supp.  1067;  S.  C,  1  Misc.  Rep.  269. 

lowed.     In'filing  a  final  account  the  "  ^"  re  Baker,  47  Bull.  559;  Ap- 

administrator    was    entitled    to   the  peal  of  Barton,  131  Pa.  St.  359;   S. 

services  of  an  attorney,  and  $100  is  C.,   18  Atl.  Eep.   902. 

allowed.    For  general  counsel  in  set-  23  Nave  vs.   Salmon,  51   Ind.    159. 

tling  an  estate  amounting  to  about  Where  one  litigant  bears  the  bur- 

$500,000,    which    was    in    excellent  ^^^   ^^^   expenses   of   litigation   for 

shape,  and  was  settled  without  liti-  the  benefit  of  others  as  well  as  him- 

gation  except  in  relation  to  partner-  ^elf,  and  they  share  in  the  benefits, 

ship  interests,  the  administrator  was  they    should    bear    a    fair    share    of 

allowed  the  sum  of  $305.  the    expenses,    and    attorney's    fees 

20  See  §§653,  659,  660,  1644.  will  be  alloweS  out  of  their  share. 

Where  the  agreement  between  the  Harris   vs.   Harris,   5   N.  P.    (N.S.) 

administrator  and  counsel  was  that  239;    17  Dec.  599. 


431  WHEN    ATTORNEY    ALLOWED  §  509 

Fees  are  allowed  for  counsel  to  defend  an  administrator'a 
final  report,"*  even  though  a  part  of  the  items  are  disallowed.^'' 

So  an  executrix  is  entitled  to  counsel  fees  for  services  ren- 
dered upon  a  final  accounting  by  the  other  executors.^" 

Fees  for  watching  over  the  interests  of  heirs  or  legatees  can- 
not be  allowed,^^  nor  for  resisting  an  application  to  compel  him 
to  give  additional  security  if  he  is  not  successful,^®  nor  for  pro- 
curing an  action  to  secure  the  widow's  rights/®  nor  for  repre- 
senting a  minor  distributee  as  guardian  ad  litem.^^ 

If  an  heir  employ  an  attorney  to  contest  the  settlement,  or 
hasten  a  settlement,  he  is  not  entitled  to  pay  for  his  attorney 
out  of  the  estate,  even  though  successful.^^ 

He  is  not  entitled  to  an  allowance  for  fees  and  costs  incurred 
in  prosecuting  his  own  personal  interests  as  heir.^" 

But  a  fee  for  securing  the  appointment  of  the  administrator 
is  a  proper  charge. ^^ 

The  administrator  will  not  be  allowed  a  fee  for  his  attorney 
if  the  employment  was  occasioned  by  his  own  fault,  neglect  or 
gross  ignorance.^*  Such  an  instance  is  where  he  does  not  follow 
the  advice  of  his  counsel,  and  fails  to  show  a  satisfactory  reason 
for  not  doing  so.^^ 

So  if  he  brings  an  action  where  a  prudent  man  would  not  do 

The  fees  of  counsel  are  a  part  of  *' ^^^  ^«  O'Brien's  Estate,  25  N.  Y. 

the  expenses  of   administration  and  ^upp.  704;   S.  C,  5  Misc.  Rep.  136. 
are  a  preferred  claim.     In  re  Mai-  '^  Pinckard  vs.  Pinokard.  24  Ala. 

colm,  51   Bull.  209.  250;  Sill  vs.  Sill,  39  Kan.  189. 

But    they    cannot    be    finally    al-  ^^  Pinckard  vs.  Pinckard,  24  Ala. 

lowed  in  advance  of  the  adjudication  250. 

on  the  administrator's  account.    Mc-  ^^  ^n  re  Stuttmeister's  Estate,  75 

Mahon  vs.  Ambach,  79  0.  S.  103.  Cal.  346;  S.  C,  17  Pac.  Rep.  223. 

24  Jacobs  vs.  Jacobs,  99  Mo.  427;  See   In   re   Baker,   47    Bull.,   559; 

S.  C.    12  S.  W.  Rep.  457.  where   fee   allowed  out  of  estate. 

25 /n   re  Meeker's   Estate,    45   Mo.  32  Wakefield  vs.   Gilleland    (Ky.), 

App.   186.  18  S.  W.  Rep.  768. 

26  In  re  Kenworthy's  Estate,  63  ^3  in  re  Van  Nostrand's  Estate,  24 
Hun  165;  S.  C,  17  N.  Y.  Supp.  655.  N.  Y.  Supp.  850;  S.  C,  3  Misc.  Rep. 

27  Kingsland  vs.  Scudder,  36  N.  J.  396. 

Eq.   284;    Succession  of  Hughes,   14"  34  O'Reilly  vs.  Meyer,  4  Dem.  161; 

La.  Ann.  863;  Estate  of  Marrey,  65  Fagan  vs.  Fagan,  15  Ala.  335;   Al- 

Cal.  287;  Miller  vs.  Simpson    (Ky.)  dridge  vs.  McClelland,  36  N.  J.  Eq. 

2  S.  W.  Rep.  171;  Brandon  vs   Hog-  288;   Bobbins  vs.  Wolcott,  27  Conn, 

gatt,    32   Miss.    335;    In  re  Jessup's  234;    Estate   of    Bradley,    11    Phila. 

Estate,  80  Cal.  (J25;   S.  C,  22  Pac.  87;  Morrow  vs.  Allison,  39  Ala.  70, 

Rep.  260.  30  Munden  vs.  Bailey,  70  Ala.  63. 


§  509  ASSETS  CAEE   AISTD    MANAGEMENT  432 

SO,  he  may  not  recover  for  his  attorney's  fees  paid  in  such  an  in- 
stance.^" 

He  will  not  be  allowed  for  counsel  fees  in  resisting  a  proper 
charge  brought  against  himself,^^  nor  will  he  be  allowed  for  at- 
orney's  fees  paid  for  services  he  ought  to  have  rendered  in 
person,^*  such  as  searching  for  a  will.^° 

He  will  not  be  allowed  for  attorney's  fees  in  a  suit  brought 
against  himself  for  a  settlement  of  his  accounts,*"  nor  in  trying 
to  uphold  an  improper  settlement,*^ 

Where  the  contestants,  by  w^riting,  authorized  an  exeoutor  to 
pay  their  attorney  a  certain  fee,  the  executor  is  not  entitled  to 
credit  for  a  further  sum  paid  the  attorney  more  than  five  years 
thereafter,  for  the  payment  of  which  no  other  authority  is 
shown.  ^^ 

The  administrator  has  no  right  to  use  the  funds  of  the  estate 
to  prosecute  his  intestate's  murderer,*^  nor  for  vindicating  his 
intestate's  good  name  on  the  trial  of  a  person  who  had  killed  him 
for  alleged  dishonorable  conduct,**  nor  to  maintain  ejectment 
for  the  benefit  of  the  heirs. *^ 

Where  an  executor,  in  good  faith,  his  employed  counsel  in 


36  Anderson  vs.  Piercy,  20  W.  Va.  ^i  Taylor  vs.  Minor    (Ky.),   14   S. 

282.  W.  Rep.  544. 

37^  Anderson  vs.  Anderson,  37  Ala.  *2  in   re   Butler's    Estate,    1    Con. 

683;    Moses    vs.    Moses,    50    Ga.    9;  Sur.  58;  S.  C,  9  N.  Y.  Supp.  641. 

Beatty   vs.   Trustees,   39   N.   J.   Eq.  43  Lush    vs.    Anderson,     1     Mete. 

452;   Lilly  vs.  Griffin,   71   Ga.  535;  (Ky.)    4L6. 

Ex  parte  Allen,  89  111.  474 ;   Estate  •**  Woodward    vs.    Woodward     ( S. 

of  Stott,  Myr.  168;  Heister's  Appeal,  C),  15  S.  E.  Rep.  355. 

7   Pa.   St.   455;    May  vs.   Green,    75  45  Reynolds  vs.  Canal  Co.,  30  Ark. 

Ala.    162.  520. 

38  Edmonds  vs.  Crenshaw,  Harp.  Attorneys  of  creditors  of  an  estate 
Eq.  224 ;  Estate  of  Ballentine,  Myr.  appearing  and  assisting  the  admin- 
86;  Pullman  vs.  Willets,  4  Dem.  istrator  in  defending  actions  against 
536 ;  Hurlburt  vs.  Hutton,  44  N.  J.  the  estate,  are  not  entitled  to  re- 
Eq.  302;  S.  C,  15  Atl.  Rep.  417.  ceive  compensation  out  of  the  estate, 

39  In  re  Van  Nostrand's  Estate,  24  unless  the  administrator  recognized 
N.  Y.  Supp.  850;  S.  C,  3  Misc.  Rep.  .their  services  and  right  to  compen- 
396.  .«ation  by  employing  them  or  agree- 

40  Robbins  vs.  Robbins  (Ky. ),  1  S.  ing  to  pay  them  for  such  services. 
W.    Rep.    152.  Moor's   Estate,   8   Pa.   Co.   Ct.   Rep. 

447. 


433 


WHEN  ATTORNEY  ALLOWED 


§509 


litigation  concerning  the  probate  of  the  will,  and  it  appears  that 
such  employment  was  necessary  for  the  protection  of  the  estate, 
the  executor  will  be  allowed  his  counsel's  fees.'*® 

Where  an  administrator  acts  in  good  faith,  and  with  the  exer- 
cise of  a  sound  judgment,  in  bringing  suit  for  the  purpose  of 
collecting  supposed  assets  of  the  estate,  the  estate,  and  not  him- 
self, is  liable  for  the  necessary  counsel  fees,  although  the  suit  is 
unsuccessful.*^ 

An  administrator  should  be  allowed  counsel  fees  and  expenses 
incurred  in  good  faith  and  under  the  advice  of  counsel  in  resist^ 
ing  appeals  by  distributees  from  orders  auditing  his  accounts.** 

Co-executors  and  co-trustees  will  not  be  allowed  fees  for  sepa- 
rate counsel,  when  it  does  not  appear  that  the  employment  of 
additional  counsel  was  beneficial  to  the  estate.*^ 


*8  Douglas  vs.  Yost,  18  N.  Y. 
Supp  830;  S.  C,  28  Abb.  N.  C.  370. 

*7  7n  re  Smith's  Estate,  11  Pa. 
Co.  Ct.  Rep.  448. 

*sln  re  Rose's  Estate,  80  Cal. 
156;   S.  C,  22  Pae.  Rep.  86. 

Charges  for  legal  services  contain- 
ed in  a  bill  filed  by  counsel  on  ap- 
plication for  a  rehearing  in  regard 
to  fixing  his  fees  in  a  partition  pro- 
ceeding, and  which  was  considered 
by  the  Court  as  being  included  in 
the  fee  allowed  him,  will  not  be 
again  allowed  the  executors  in  their 
account.  Appeal  of  Barton,  131  Pa. 
St.  359;  S.  C,  18  Atl.  Rep.  902. 

Where,  in  a  contest  over  a  claim 
against  the  estate,  the  administra- 
tor has  employed  an  able  attorney, 
who  has  not  asked  assistance,  the 
administrator  will  not  be  allowed 
payments  made  to  an  assistant  at- 
torney of  but  few  years  practice, 
who  has  become  indirectly  employed 
in  the  case,  except  for  services  that 
would  otherwise  have  been  neces- 
sarily performed  and  charged  for 
by  the  attorney.  In  re  Collyer's  Es- 
tate. 1  Con.  Sur.  546.  Where,  in  a 
legal  proceeding,  executors  are  ful- 


ly represented  by  counsel,  who  are 
paid  by  the  estate  for  their  services, 
and  the  executors  seek  to  charge  the 
estate  for  fees  paid  other  counsel  in 
such  proceeding,  the  burden  of  proof 
is  on  the  executors  to  show  what 
services  were  rendered  by  such  other 
counsel,  and  also  that  such  services 
were  necessary  for  the  proper  protec- 
tion of  the  estate.  In  re  Archer's 
Estate,  23  N.  Y.  Supp.   1041. 

*9  McDaniel's  Estate,  9  Pa.  Co.  Ct. 
R.  232. 

Where  two  executors  honestly  dif- 
fer as  to  the  manner  of  executing 
the  will,  and  each  employs  a  careful 
and  able  attorney  to  assist  him,  each 
is  entitled  to  be  reimbursed  for  the 
amount  paid  his  attorney,  which  ap- 
pears to  have  been  fully  earned, 
whether  tne  services  of  either  or 
both  the  attorneys  were  beneficial 
to  the  estate,  and  it  is  immaterial 
that  one  executor  qualified  and  en- 
gaged his  counsel  before  the  other. 
In  re  Dellaplain's  Estate,  1  Con. 
Sur.  1;  S.  C,  3  N.  Y.  Supp.  202. 
See  §§  6.53,  1402,  1644. 

But  where  the  services  are  val- 
uable they  may  be  allowed,  although 


§510  ASSETS  —  CAKE    AND    MANAGEMENT  434 

§  510.       Amount  of  counsel  fees  allowed. 

The  determination  of  the  amount  of  counsel  fees  that  should 
be  allowed  is  alwayS'  a  question  of  more  or  less  difficulty  to  the 
Court.  It  is  so  for  several  reasons.  In  the  first  place,  it  is  one 
of  great  delicacy  for  one  member  of  the  bar  to  sit  in  judgment 
as  to  what  his  brother  member  of  the  profession  should  charge 
for  his  work.  Secondly,  no  one  is  so  able  and  competent  to  de- 
termine what  should  be  charged  as  the  man  who  makes  the 
charges.  In  the  settlement  of  an  estate  there  are  innumerable 
questions  of  various  kinds  upon,  which  the  advice  of  an  attorney 
is  sought,  and  which  may  afterwards  appear  to  have  been  of  lit- 
tle importance,  but  which  in  fact  were  of  much  importance  to 
a  proper  administration  of  the  estate.  Wliere  the  attorney  is 
one  whose  standing  and  ability  is  unquestioned,  the  Court  will 
hesitate  to  reduce  or  disallow  the  bill  as  paid  or  presented  by  the 
administrator. 

In  one  case  it  was  said  the  amount  of  compensation  for  legal 
services  rendered  by  the  executor  or  administrator  is  to  be  deter- 
mined by  ascertaining  what  a  prudent  administrator  would  feel 
authorized  to  pay  an  attorney  under  all  the  circumstances  of  the 
case.'" 

In  another  case  it  was  said  "  in  determining  the  amount  to 
be  allowed  I  consider  as  the  first  and  most  important  element, 
the  work  actually  performed ;  second,  the  amount  involved ; 
third,  the  standing  and  reputation  and  learning  of  the  lawyer; 
fourth,  the  result  of  tlie  ser\'ices."°^ 

not  employed  by  the  administrator.  ing  of  the  value  of  legal  services  it 
In  re  Baker,  47  Bull.  559.  is  proj^er  to  consider  the  time  occu- 
The  court  does  not  determine  the  pied  by  them,  the  difficulty  of  the 
fees  which  an  executor  may  pay,  questions  involved;  the  nature  of 
but  will  allow  him  to  charge  the  the  services  rendered;  the  amount 
estate  with  attorney's  fees  for  such  involved  in  the  litigation;  the  pro- 
services  as  were  necessary  and  fessional  standing  of  the  counsel 
proper  m  the  settlement  of  the  es-  ...j^q  ^laim  pay  for  services,  and  to 
tate.     7n  re  Ullman,  19  Dec.  803.  ^^^^   ^^^^^^    ^j^^    ^.^^^j^   ^,,,i^j^    j^^^ 

50  Harris  vs.  Martin,  ,9  Ala.   895,  ,  i     i       ta   •  ^   ii    * 

onn        n-    •      rp  r^     -i-.i-     -4  be^n   reached.      It   is   apparent   that 

899;    aff.   m  Teague  vs.    Corbitt,   o7  .i      i     a  -j       +•  i  i-* 

A 1       ^cn     r ,  A      ^1     ^  T-  wr.  the  last  consideration  can  bear  lit- 

Ala    529,    544;    Clark  vs.   Knox,   70  ,,        .^  ^,  ,       , 

Al   '   607    617  '    •*      *"■'*''    ^P^'^    '-'^^    amount    or 

5^1  In   the   matter   of   Arkenburgh,  ^^'ork  which  has  been  done,  but  yet 

13   Misc.   Rep.    (N,   Y.)    744.  it   is   always   accepted   as   a    proper 

In  Cross  vs.  Moore,  14  N.  Y.  App.  element  to  be  considered  in  reaching 

Div.  353,  the  Court  said:     "In  judg-  the  value  of  the  services  which  have 


435         AMOUNT  OF  ATTORNEY  FEES  ALLOWED       §  510 

However  delicate  a  matter  it  may  be  for  the  Court  to  pass 
upon  suck  fees,  nevertheless  it  should  be  fearlessly  done;  for 
sometimes  counsel,  as  well  as  administrators  and  executors, 
seem  to  forget  tlieir  proper  duty  in  the  just  administration  of 
the  estate,  and  proceed  upon  the  theory  that  it  is  to  be  adminis- 
tered for  thei?-  benefit  instead  of  those  entitled  thereto  by  law. 

If  the  administrator  pay  the  attorney  more  than  his  services 
are  worth,  he  will  be  chargeable  with  the  excess.^^  But  it  is 
evident  that,  where  the  matter  is  not  regulated,  by  statute,  justice 
requires  that  counsel  fees  actually  paid  in  good  faith  should  be 
allowed,  although  in  excess  of  amounts  allowed  by  law,  if  the 
excess  be  not  of  such  magnitude  as  tO'  show  negligence  in  the  ad- 
ministrator.^^ 

A  charge  of  $15  for  preparing  and  having  the  administra- 
tor's bond  approved  is  excessive.®* 

An  allowance  of  $300  for  settling  an  estate  of  $8,000,  where 
there  is  little  or  no  litigation,  is  sufficient.®^ 

So  is  an  allowance  of  $1,150  where  the  estate  is  of  the  value 
of  $95,000,  and  consists  largely  of  judgments  and  mortgages.®" 

A  fee  of  $5,000  in  an  estate  where  the  effects  amount  to 
$62,000,  is  not  excessive  when  important  and  valuable  services 
have  been  rendered  by  the  attorney  in  litigation  and  in  the  gen- 
eral management  of  the  estate,  which  devolve  exclusively  upon 
him  in  consequence  of  the  continued  illness  of  the  executor.^^ 

A  charge  of  $110  as  counsel  fee,  in  preparing  two  returns  of 
sale  by  the  executors,  and  obtaining  the  necessary  orders  there- 
in, is  excessive.®^ 

been  rendered;  and  for  that  reason,  b 4  Appeal  of  Barton,   131   Pa.  St. 

while    it    is    entitled    to    but    little  359 ;  S.  C,  18  Atl.  Rep.  902. 

weight,   yet  it  must  not  be  forgot-  55  Succession    of    Osborn^    40    La. 

ten."  Ann.  615;  S.  C,  4  So.  Rep.  580. 

02  In  re  Bradley's  Estate,   1   Con.  se  Appeal    of    St.    Clair,    15    Atl. 

Sur.  106;  S.  C,  2  N.  Y.  Supp.  751;  Rep.  914. 

Hurlbut  vs.   Hulton,   44   N.   J.   Eq.  57  Succession    of    Henry,     12    So. 

302;  S.  C,  15  Atl.  Rep.  417.  Rep.  365;  S.  C,  45  La.  Ann.  156. 

53  Lindsay  vs.   Howerton,   2   Hen.  os  Appeal  of  Barton,   131   Pa.  St. 

&  M.  9;  Noel  vs.  Harvey,  29  Miss.  359;   S.  C,   18  Atl.  Rep.  902. 
72,    78;    Wilson   vs.    Bates,    28    Vt. 
765,  769. 


§510  ASSETS CARE    AND    MANAGEMENT  436 

A  charge  of  $45  as  counsel  fees  for  drawing  a  petition  to 
change  the  terms  of  a  sale  by  the  executors,  will  be  disallowed, 
on  motion.^® 

No  necessity  being  shown  for  the  attendance  of  counsel  at 
sales  of  land  by  the  executors,  a  charge  of  $100  therefor  will  be 
disallowed  ;  as  also  a  charge  of  $10  in  procuring  purchasers ;  but 
$50  will  be  allowed  for  instructions  and  general  advice  in  regard 
to  the  sales.*"" 

Where  the  settlement  of  an  estate,  amounting  to  over  $23,000, 
extends  over  four  years,  during  which  time  counsel  gives  ad- 
vice, brings  suit  to  sell  real  estate  in  Probate  Court,  also  suit  in 
Commion  Pleas  to  construe  will,  makes  abstract  of  title,  files  ac- 
counts, a  fee  of  $550  is  not  excessive.^^ 

Where  the  services  rendered  were  on  the  contest  of  a  will 
which  involved  the  testamentary  capacity  of  the  testatrix,  whose 
estate  amounted  to  $100,000,  and  the  proceedings  occupied 
twenty-two  days  in  taking  testimony  and  two  or  three  in  oral  ar- 
giunents,  a  fee  of  $5,000  was  allowed.®^ 

A  fee  of  twenty-five  per  cent,  for  the  collection  of  an  estate 
consisting  only  of  the  savings  bank  deposit  of  $1,600,  with  no 
debts,  was  unreasonably  large.^^ 

Where  an  attorney  was  employed  to  collect  a  doubtful  claim 
of  $30,000,  enter  a  contract  that,  if  successful,  he  should  be  paid 
a  liberal  fee,  but  if  unsuccessful  only  his  actual  expenses,  should 
be  paid,  and  the  amount  collected  was  $10,000,  a  fee  of  $2,000 
was  held  to  be  reasonable.^* 

The  following  items  have  been  held  excessive:  Fifteen  dol- 
lars for  preparing  tlie  official  bond  and  having  it  approved ;  $60 
in  preparing  a  return  of  sale  and  obtaining  two  orders  of  sale 
therein  ;  and  $25  for  preparing  a  petition  and  obtaining  an  order 
amending  a  return.*^® 

B9  Appeal  of  Barton,   131   Pa.  St.           63  j„  re  Barber,   12   N.   Y.   Supp. 

859;  S.  C.  18,  Atl.  Rep.  902.  538. 

60  Appeal  of  Barton,   131   Pa.  St.           6*  McCullcugh's    Estate,    31    Ore- 

359;   S.  C,  18  Atl.  Rep.  902.  gon  86. 

61 /n  re  Wolfe,  4  N.  P.  336.  es  McGregor's  Estate,  131  Pa.  St 

62  Gross  vs.  Moore,  14  N.  Y.  App.       359. 
Div.   353. 


437  TAXATION  §  511 

A  charge  of  $20  a  day  for  attending  sessions  of  a  reference  at 
which  nothing  was  done  but  to  adjourn  was  held  excessive,  and 
the  charge  was  reduced  to  $10  per  day  for  such  days.***^ 

The  payment  of  a  salary  of  $5,000  a  year  was,  considered  rea- 
sonable and  proper  where  the  estate,  amounting  to  $500,000, 
was  largely  in  debt,  and  its  affairs  were  so  complicated  as  to 
occupy  nearly  the  entire  time  of  the  attorney.^^ 

§  511.     Taxation. 

All  taxes  that  were  due  at  the  time  of  the  death  of  the  deceased 
are  ta  be  paid  by  the  administrator  or  executor.  It  is  therefore 
his  duty  to  attend  to  that  matter,  and  this  applies  to  real  and 
personal  property.  It  is  the  duty  of  each  administrator  or 
executor  having  control  of  personal  property  to  list  it  for  taxa- 
tion ;  and  his  title  to  such  property  by  relation  dates  back  to  the 
time  of  the  decedent's  death, "^^  and  this  property  must  be  listed 
for  taxation  at  the  residence  of  the  administrator.^^ 

Unless  the  administrator  or  executor  has  control  over  the  real 
estate,  taxes  that  accrue  after  the  death  of  the  decedent  must  be 
paid  by  the  heirs. '^° 

If  an  executor  or  administrator  refuses  to  either  list  or  pay 
the  taxes,  he  would  be  lial)le  for  any  damage  which  might  be 
occasioned  from  such  neglect.'^ ^ 

Taxes  must  be  paid  on  the  funds  of  an  insolvent  estate  in  the 
hands  of  an  administrator  unlike  an  assignee. ''- 

The  assessment  of  taxes  is  so  far  complete  by  the  second  jNIon- 
day  of  July  that  the  name  of  the  person  assessed  for  the  year 
cannot  be  changed;  hence,  having  died  testate  on  July  12,  the 
taxes  are  properly  chargeable  against  his  estate."^ 

06 /n  re   Colyer,    1    Con.    (N.   Y.)  This    applies    to    bonds.      Tafel    vs. 

546.  Lewis.  75  0.  S.   182. 

67  Steel  vs.  HoUaday,  20   Or.  462.  Even   though   all   the  beneficiaries 

See  §§'653,  1402,  1644.    See  previous  are   nonresidents,   personal    property 

section,   the  case  of  In  re  McAlpin,  of   the   decedent   who   died   in    1900, 

syllabus    of    which    is    given    as    a  which    was    omitted    from    taxation 

note.  from  1804  to  1890,  is  properly  listed 

C8  Sommers    vs.    Boyd,    48    0.    S.  in  the  name  of  the  decedent      State 

648.     See  §663.  vs.    Gilfillan,    3    N.    P.     (NS)     153; 

See    §  1202    as    to    taxes    between  15  Dec.  756. 
executor  and  trustee.  Taxes  become  a  lien  on  real  estate 

ea  Brown  vs.  Noble,  42  0.  S.  405.  on    the    day    preceding    the    second 

70  For  listing  of  property  where  IMonday  in  April,  and  all  taxes  due 
there  are  several  administrators.  and  xmpaid  at  the  time  of  the  death 
See  §  205.  of  the  testator  must  be  paid  by  the 

71  §  5685   G.   C  executor.     Loomis  vs.  Phul,  2  JST.  P. 
72Robb's  Estate,  5  Dec.  227,  381;        (X.S.)    423;    15   Dec.  37. 

5  N.  P.  52.  A  testamentary  trustee  is  not  li- 

73  INIorrison  vs.  Bruce,  1  Dec.  190.  able    onlv    wlien    he    has    charge    of 

See   §§  663,    1292,   1392.  the  property  at  the  time  the  taxes 

The  fact  that  the  decedent  at  the  become   a    Hon.      Id. 

time  of  his  death  was  a  resident  of  AH    funds    in    the    hands    of    the 

another    State    will    not    relieve    the  administrator    are    liable    to     taxes 

administrator    from     returning    the  and    must    be   listed.      This    is    true 

same  for  taxation  where  he  resides.  even    though    there    is    an    order   of 


§  512  ASSETS  CARE   AND'  MANAGEMENT  438 

§  512.     Custody  of  funds. 

Necessarily,  the  administrator  or  executor  has  control  of  the 
funds  belonging  to  the  estate,  and  the  Probate  Court  has  no  au- 
thority directing  him  where  and  how  he  shall  keep  them.''* 

In  the  proper  control  and  safety  of  funds  held  in  a  trust 
capacity,  the  Courts  require  from  the  trustee  absolute  honesty 
and  good  faith.  But  if  the  trustee  acts  in  good  faith  within  the 
requirements  of  the  law,  he  will  be  treated  by  the  Court  with 
liberality  and  tenderness.  He  will  not  be  held  responsible  for 
losses  in  the  absence  of  wilful  misconduct  or  fraud,  especially 
when  acting  under  advice  of  counsel, '^^  and  the  executor  or  ad- 
ministrator will  not  in  such  cases  be  held  responsible  for  losses 
occasioned  by  mere  error  of  judgment.  And  where  he  has  acted 
with  what  men  of  sense  and  experience  would  deem  reasonable 
discretion  in  their  own  affairs,  his  acts  or  omissions  in  good 
faith  will  not  render  him  liable  for  losses  arising  in  conse- 
quence, especially  during  a  period  of  doubts  and  difficulties.^" 

An  administrator  cannot  make  a  profit  out  of  the  estate ;  and 
if  he  invest  the  assets,  it  is  at  his  own  risk.  In  such  an  instance 
he  will  be  liable  for  all  the  profits  derived  from  the  investment; 
and  if  he  lose  the  assets  he  will  be  liable  for  their  value.''' 

He  should  keep  the  assets  and  their  proceeds  separate  and 
apart  from  his  own,  so  that  they  can.be  readily  traced.''* 

If  he  loses  money  of  the  estate,  together  with  his  own,  and 
only  a  portion  be  recovered,  he  must  first  return  out  of  the  part 

the  court  that  it  should  be  paid  on  HI-    114;    Merritt   vs.    Merritt,    62 

a  certain  claim.     The  same  rule  does  Mo.  150.  157;  Perrine  vs.  Vreeland, 

not  apply  as  in  assignments.     Gregg  33  N.  J.  Eq.  102;  affirmed,  lb.  596. 

vs.   Hammon,   4  N.   P.    (N.S.)    214;  ^e  Woerner  on  Admin.  708,  citing 

16    Dec.    549.      Affirmed,    etc.  LeGrand  vs.  Fitch,  79  Va.  635,  638; 

There   may   be   several   tenements  Torrence  vs.  Davidson,  92  N.  C.  437  j 

in  the  same  building.    Gin.  vs.  Yeat-  Perry    vs.    Smoot,    23    Gratt.    241; 

man,  30  O.  S.  276.  Pope   vs.   Mathews,    18    S.    C.    444; 

If  an  executor,  agent,  or  guardian  Loomis  vs.  Armstrong,  63  Mich.  355; 

is  put  to  any  trouble  in  listing  the  Dundas  vs.  Chrisman,  25  Neb.  495. 

property,  he  has  a  lien  on  the  land  See  Willis  vs.  Brancher,  79  0.  S. 

for  his  services.     §  5687  G.  C.  290. 

74  7n  re  Welch,  110  Cal.  605;  De-  77  Gilbert  vs.  Welsch,  75  Ind.  557; 
Greayer  vs.  Super  Ct.,  117  Cal.  640.  Jn  re  Essex's  Estate,  20  N.  Y.  Supp. 

75  Woerner  on  Admin.  707,  citing  62. 

Thompson   vs.   Brown,   4   John.   Ch.  78  Hagthorp  vs.  Hooks,  1  G.  &  J. 

619,  629;  Calhoun's  Estate,  6  Watts.      270;   Marvel  vs.  Babbitt,  143  Mass. 
185;    Watkins   vs.    Stewart,   78   Va.      226. 


439  CUSTODY    OF    FUNDS  §  513 

recovered  the  estate's  portion,  although  by  so  doing  he  lose  his 
own.^* 

If  he  deposit  the  money  in  a  bank,  crediting  it  to  his  own  ac- 
count, this  will  be  a  conversion,^"  and  if  the  bank  fails,  he  loses 
it,  even  though  the  officers  knew  part  were  trust  funds.^^ 

If  he  convert  assets  of  the  estate  to  his  own  use,  by  investing 
them  in  his  business,  he  will  be  liable  either  for  the  highest 
rate  of  interest  or  for  the  profits,  at  the  option  of  the  beneficia- 
ries or  creditors  entitled  to  call  for  an  accounting.®^ 

If  he  knows  he  cannot  close  the  estate  for  a  considerable  pe- 
riod, it  is  his  duty  to  place  the  money  at  interest,  although  no 
statute  requires  him  to  do  so.*^ 

But  our  statute  provides  that  if  money  remains  in  the  hands 
of  an  executor  or  administrator  for  probably  a  greater  length  of 
time  than  six  months  it  should  be  invested,®* 

§  513.     Failure  of  bank  where  deposited. 

It  is  negligence  in  an  administrator  to  keep  money  of  the  es- 
tate in  his  house,®^  unless  the  circumstances  make  it  as  safe  there 
as  anywhere  else.®°  Consequently  the  funds  of  the  estate  ought 
to  be  kept  in  a  safe  place  of  deposit.  He  may  therefore  deposit 
them  in  a  bank  having  at  the  time  of  deposit  a  good  reputation 
for  solvency;  and  if  loss  subsequently  occurs,  without  his 
neglect,  he  will  not  be  liable,®^  even  though  it  be  a  bankf  of  which 
he  is  a  director.®® 

T9Kirkman  vs.   Benham,   28   Ala.  s*  §  10746  G.  C,  §514.    See  §389. 

501.  See  subsequent  sections. 

80  Shaw  vs.  Baerman,  24  0.  S.  25;  85  Cornell  vs.  Deck,  8  Hun  122. 
Union  Bank  vs.   Smith,  4  Cr.  C.  C.           so  Fudge  vs.  Durn,  51  Mo.  264. 
509 ;  Ivey  vs.  Coleman,  42  Ala.  409.  87  Odd  Fellows  Ben.  Asso.  vs.  Fer- 

81  Harward  vs.  Robinson,  14  111.  son,  ,3  C.  C.  84;  Ramsey  vs.  Mc- 
App.  500;  Summers  vs.  Reynolds,  Gregor,  1  C.  S.  C.  327;  Norwood  vs. 
95  N.  C.  404;  Williams  vs.  Williams,  Harness,  98  Ind.  134;  Jacobus  vs. 
55  Wis.  300;  Ditmar  vs.  Bogle,  53  Jacobus,  37  N.  J.  Eq.  17;  Cox  vs. 
Ala.    169.  Roome,  38  N.  J.  Eq.  259;  Twitty  vs. 

82Norris'  Appeal,  71  Pa.  St.  106;  Houser,  7  S.  C.  153. 

Estate  of  Br^^wn  8  Phila.  197;  Dow-  ss /^  re  Maxwell's  Estate,  23  Abb. 

ling  vs.  Feely,  72  Ga.  557 ;   Cannon  N.  C.  23 ;  S.  C.  .3  N.  Y.  Supp.  42L  ; 

vs.  Apperson,   14  Lea   553.  1  Con.  Sur.  230. 

83  Perkins    vs.    HoUister,    59    Vt. 
348. 


§  514  ASSETS,  CARE  AJSTD   MANAGEMENT  440 

But  if  he  deposit  the  money  m  his  own  name,  or  with  his  own 
accoimt,  he  will  be  liable  for  the  full  amount  should  the  bank 
fail ;  for  by  such  deposit  he  is  guilty  of  a  conversion.*^ 

And  so  he  will  be  liable  if  he  deposit  the  money  and  take  out 
a  certificate  of  deposit  payable  with  interest ;  for  the  transaction 
is  a  loan  without  security.^" 

If  the  deposit  be  made  under  an  agreement  that  it  shall  re- 
main for  a  time,  thus  rendering  the  transaction  a  loan  and  not 
a  deposit,  or  if  a  deposit  originally  made  with  prudence^  is  con- 
tinued for  such  an  unreasonable  length  of  time  as  to  involve  a 
breach  of  duty,  the  representative  is  responsible  for  loss  arising 
from  the  insolvency  of  the  bank.^^ 

§  514.  How  executors,  etc.,  guardians  and  trustees  may  in- 
vest funds.  "When  they  have  funds  belonging  to  the  trust 
which  are  to  be  invested,  executors,  administrators,  guardians, 
and  trustees,  may  invest  them  in  certificates  of  the  indebtedness 
of  this  state,  of  thei  United  States,  or  in  such"  other  securities  as 
the  court  having  control  of  the  administration  of  the  trust  ap- 
proves. When  money  coming  into  the  hands  of  an  executor, 
administrator,  trustee,  agent,  assignee,  attorney,  or  officer  is 
stopped  therein  by  reason  of  litigation  or  other  lawful  cause, 
and  if  it  will  probably  be  so  detained  for  more  than  six  months, 
he  may  invest  it  during  such  detention  in  the  manner  that  trust 
funds  are  now  authorized  by  law  to  be  invested,  or  as  the  pro- 
bate or  other  court  having  jurisdiction  of  the  pending  litigation, 
or  person  aforesaid,  directs."     [R.  S.  §  6413.]^- 

89  Shaw  vs.  Baerman,  34  O.  S.  25;       (K.S.)  307;  29  O.  C.  C.  25;  affirmed 
Corya  vs.  Corya.  118  Ind    593;  Nalt-      "S   O.   S.  424. 

ner  vs.  Dolan,  108  Ind.  500;  Fletch-  ^^''^"^   ^'^^^^^  °^  corporate   stock 

are  in  danger  of  loss  or  depreciation 
er  vs.  Sharpe,  108  Tnd.  2^Q;  Har-  the  Probate  Court,  under  §§524, 
ward  vs.  Robinson,  14  111.  App.  560;  6080  and  6413  has  power  to  order 
SummerP  fs.  Reynolds,  95  N.  C.  t^i«^™  sold  and  reinvested.  Ordinary 
.„.  ^.,  ^  ,  ^„  .,  ,„«  prudence  is  as  to  investment.  The 
404;  Ditmar  vs.  Bogle,  53  Ala.  169.  ^.^^ate  Court  has  full  and  corn- 
so  Appeal  of  Baer.,  127  Pa.  St.  plete  jurisdiction  over  investments 
360;  S.  C.  24  W.  N.  C.  299-  18  Atl  and  reinvestments.  Guthrie  vs.  Gas 
R„„  1  '  &  Elec.  Co.,  2  K  P.  (X.S.)  117: 
^'     ■    .  15  Dec.  23. 

91  Kedf.  Sur.  Prac.  499.  'when  the  will  authorizes  the  ex- 
See   §§   718.   1389.  ecutor  to  make  investments  he  will 

not  be  liable  in  the  absence  of  neg- 

92  R  J 1014   Q    n  ligence.       Willis    vs.    Brancher.    79 

If    a    trustee    invests    funds    and  'see  Bonding  Co.  vs.  Bank.  22  C. 

does    not    designate    that    the    fund  C.    (N.S.)    177,   where    it   was   held 

is   in   trust,    leaving   it   open   so    he  t^^^t  the  approval  of  an  account,  in 

TTiJrriif  ^loiv,.   u  oo  1  •               1,        Ml  whicli    the    investment   was    stated, 

might  claim  it  as  his  own,   he  will  „^^_+    ,  +^  „^^.„,,.  fv..  ;„,.«..f™or.f 


be  charged  witn  it  as  if  it  was  his 
own.     Brown  vs.  Williams,   9   C.  C. 


operated  to  approve  the  investment. 


441  INVESTMENTS  §  515 

§  515.     When  investment  to  be  made. 

The  above  section  of  the  General  Code  is  a  combination 
of  two  distinct  acts  of  the  legislature,  placed  together  by  the 
Codifying  Commission.  The  first  part  of  the  section  applies 
generally,  that  investments  may  be  made  in  United  States  bonds, 
and  the  second  is  intended  to  apply  when  an  executor  or  admin- 
istrator or  trustee  ought  to  invest  the  funds  in  his  hands,  when 
for  some  reason  the  same  could  not  be  distributed  or  otherwise 
disposed  of,  as  a  proper  administration  of  the  trust  might  re- 
quire. Sec.  10843-4-5,  G.  C,  (§  786)  makes  provision  for  money 
that  may  remain  in  the  hands  of  the  administrator  or  executor 
after  he  has  been  directed  by  order  of  court  to  distribute.  Under 
that  section  it  is  held  to  be  compulsory  to  make  an  investment.'** 

And  sec.  10933  G.  C.  (§  1367)  provides  how  permanent  invest- 
ments should  be  made  by  guardians.  Generally,  it  is  not  ex- 
pected that  an  administrator  or  executor  will  have  any  funds 
to  invest,  for  it  is  his  duty  to  collect  the  assets  and  distribute 
them  as  rapidly  as  possible.  But  if  for  any  reason,  such  as  liti- 
gation, etc.,  he  should  be  prevented  from  making  a  distribution, 
then  it  is  the  purpose  of  the  section  above  that  some  investment 
may  be  made.  Generally,  an  administrator  is  not  chargeable 
with  interest  on  money  belonging  to  the  estate  unless  it  was 
shown  that  the  money  was  used  by  him,  or  that  he  has  held  it 
such  a  length  of  time  as  would  make  it  inequitable  not  to  allow 
interest  on  it.^* 

The  rule  is  very  well  stated  by  a  distinguished  author  as  fol- 
lows :  "  The  rule  is,  that  during  the  period  of  getting  in  the 
estate,  paying  the  debts,  etc.,  preliminary  to  final  distribution 
or  a  permanent  investment,  under  the  will,  whether  the  period 
be  long  or  short,  the  representative  is  held  to  tlie  same  degree  of 
care  which  a  man  of  ordinary  prudence  would  exercise,  under 
the  same  circumstances,  with  respect  to  placing  his  o\vti  money 
80  that  it  might  earn  interest.    If  the  Court  can  determine  that, 

83  7n  re  Thornton,  5  Dec.   151;    7  up  by  litigation  in  good  faith,  does 

N.  P.  335.  not  bear  interest ;   and  this  rule  is 

»*  In  re  Thornton's  Estate,  7  N.  P.  applicable  to  debts  which  the  admin- 

335;  5  Dec.  151.  iatrator    owes    to    the    estate^    and 

Money  in  the  hands  of  an  admin-  which  is  chargeable  against  him  as 

istrator  which   has   yielded   him   no  money    in    his    hands.      James    vs. 

profit,   and   which   he  has   not  been  West,  47  Bull.  750;  Sup.  Ct. 
ordered  to  pay  out,  or  which  is  tied 


§  515  ASSETS CARE  AND   MANAGEMENT  442 

under  the  circumstances  of  the  particular  case,  it  was  a  breach 
of  duty  for  the  representative  to  let  the  money  lie  idle,  he  may 
be  charged,  on  his  accounting,  for  the  amount  of  interest  which, 
with  reasonable  diligence,  he  might  have  received.  If  distribu- 
tion is  unreasonably  delayed,  he  is  chargeable  "vvith  interest  on 
the  funds,  the  same  as  an  executor  or  trustee  would  be  for  an 
unreasonable  delay  in  making  a  permanent  investment  under  the 
will.  The  reasonableness  of  the  delay  depends,  of  course,  upon 
the  circumstances  of  the  particular  case.  He  may  keep  in  hand 
such  sums  as'  the  distributees  may  call  for  at  any  time ;  if  kept 
ready  to  be  paid  over,  on  demand,  a  delay  of  demand  is  no 
ground  for  charging  interest."  ^^ 

In  making  investments,  if  the  administrator  or  executor 
wishes  to  escape  responsibility,  he  should  keep  himself  strictly 
within  the  limits  of  the  law.  If,  by  the  exercise  of  reasonable 
diligence  no  investments  can  be  made,  such  as  the  law  contem- 
plates, he  would  not  be  chargeable  with  interest  for  allowing  it 
to  remain  idle.  In  making  investments,  the  administrator  or 
executor  is  only  required  to  use  common  prudence  and  skill  of 
competent  men,  and  not  that  of  the  most  cautious  and  money- 
making  men.'"' 

It  is  negligence  to  loan  the  funds  of  the  estate  without  secur- 
ity, though  the  borrower  is  amply  solvent  at  the  time.^^  Per- 
sonal security  is  not  sufficient.''®  l^or  is  a  second  mortgage,  as 
a  rule.''^ 

An  investment,  without  an  order  of  Court,  in  stocks  or  bonds 
of  a  corporation  has  been  held  not  to  protect  the  administrator/"" 
Government  bonds,  however,  are  good  investments.^"^ 

93  Redf .  Sur.  Law  and  Prac.  500.  567 ;  Bogart  vs.  Van  Velsor,  4  Edw. 

90  Miller    vs.    Proctor,    22    O.    S.  Ch.   718. 

442;   Spencer's  Appeal.   ".  W.  L.  M.  99  Wilson  vs.  Staats,  33  N.  J.  Eq. 

408.  524 ;  Perrine  vs.  Petty,  34  N.  J.  Eq. 

See  also  Armstrong  vs.  Miller,  W.  193. 

562;   6  O.   118.  100  Tucker    vs.    Tucker     33   N.   J. 

97  Probate    Judge   vs.    Mathes,    60  Eq.  235;  Garesche  vs.  Priest,  78  Mc. 

N.  H.  433:    Sherman  vs.  Lanier,  39  126. 

N.  J.  Eq.  249.  ^°^  Ormiston  vs.   Olcott.   84  N.  Y, 

»8  Lef ever  vs.  Hasbrouck,  2  Dem.  339 ;  Tucker  vs.  Tucker,  supra. 


443  APPLICATION    TO   INVEST  §  516 

He  may  not  invest  in  mortgages  in  another  State/"^  although 
a  mortgage  taken  to  secure  the  purchase  money  of  land  sold  there 
will  protect  him,^°^ 

As  a  rule,  investments  made  by  the  decedent  may  be  contin- 
ued without  liability  for  loss;  but  even  here  the  administrator 
must  exercise  care  and  convert  them  into  money  if  he  has  in- 
formation, or  could  have  obtained  it  with  reasonable  diligence, 
that  the  investment  was  likely  to  prove  unsafe  and  loss  occur  to 
the  estate.^"* 

This  subject  will  be  again  treated  of  in  subsequent  chapters, 
on  guardians  and  testamentary  trustee.^°° 

§  516.     Application  to  invest,  etc. 

It  might  be  well  for  an  administrator  or  executor,  if  he  has 
any  reason  to  believe  that  the  funds  in  his  hands  cannot  be  dis- 
tributed for  more  than  six  months,  to  make  application  to  the 
Probate  Court  setting  out  such  fact  and  asking  the  Court  for  au- 
thority to  invest  the  money  in  some  proper  manner.  The  order 
might  be  made  by  some  other  Court  than  the  Probate,  if  there 
was  a  pending  litigation  in  the  other  Court,  and  such  other 
Court  had  jurisdiction  of  the  fund.  The  Court  might  author- 
ize the  money  to  be  invested  in  security  other  than  that  pre- 
scribed by  the  statute,  and  if  the  funds  were  invested  as  directed 
by  the  Court,  the  administrator  or  executor  would  not  be  re- 
sponsible.    The  application  might  be  in  the  following  form : 

{Title.) 

Now  comes  A.  B.,  administrator  (or  executor)  of  the  estate  of  C.  D., 
and  represents  to  the  Court  that  he  has  in  his  hands,   belonging  to  the 

said  estate,   the   sum   of dollars,    and   that  by 

reason  ot  pending  litigation  (here  describe  or  give  other  reasons),  he  will 
be  unable  to  distribute  said  money  for  more  than  six  months  from  this 
date.  That  he  can  invest  said  money  (here  describe  and  state  security  in 
full).  Wherefore  he  asks  that  the  Court  may  make  an  order  authorizing 
him  to  invest  said  money  in  his  hands  in  the  said  security. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this day  of 

190.... 


lo^Ormiston  vs.  Olcott,  supra.  Div.    596;    Appeal   of   Stewart,    110 

103  Denton  vs.  Sanford,  103  N.  Y.  Pa.  St.  410;  In  re  Weston,  91  N.  Y. 

607.  502;   Harvard  College  vs.  Amory,  9 

10*  Bowker  vs.   Pierce,    130   Mass.  Pick.  446. 

262;  Marsden  vs.  Kent,  L.  R.  5  Ch.  los  See   §    1369,   §    1287. 


§  517  ASSETS  CARE    AXD   MANAGEMENT  444 

ENTRY. 
(Title.) 

This  day  this  matter  came  on  to  be  heard,  upon  the  application  of  A.  B., 
administrator  (or  executor)  of  C.  D.,  for  an  order  of  the  Court  authorizing 
him  to  invest  certain  moneys  in  his  hands  belonging  to  said  estate,  in  the 
following  security  (here  describe).  And  it  appearing  to  the  Court  that  it 
would  be  more  than  six  months  before  such  administrator  (or  executor) 
can  distribute  said  money  that  the  security  purposed  for  said  investment 
is  sufficient.  It  is  therefore  ordered  that  said  A.  B.  proceed  to  invest  said 
funds  as  in  application  prayed  for.ioe 

§  517.     Insurance. 

An  executor  or  administrator  has  an  insurable  interest  in  the 
property  of  the  estate,  and  he  mnst  exercise  the  same  precautions 
against  loss  by  fire  as  prudent  men  adopt  to  protect  them- 
selves."'' 

And  he  may  also,  where  he  has  authority  over  real  estate  or 
has  the  reason  to  believe  that  the  estate  is  insolvent,  insure  it."^ 

And  he  may  become  chargeable  for  neglect  to  insure  where  the 
house  is  destroyed  by  fire.  The  statute  specifically  provides 
that  when  a  will  is  contested,  the  executor  or  administrator  shall 
insure  the  property.^"^ 

§  518.     Carrying  on  business  of  the  deceased.^"^^ 

To  carry  on  the  business  of  a  deceased  person  is  not  within  the 
scope  of  the  powers  of  an  ordinary  administrator.  Neither  can 
an  executor  conduct  such  a  business  unless  expressly  authorized 
by  the  will.^^°     He  might,  however,  continue   the  business  so 

106  See  §  1287.  trix,  was  transmitting  to  aer  place 

107  Tuttle  vs.  Robinson,  33  N.  H.  of  business.  Levitt  vs.  Scholes 
104;   Rubottom  vs.  Morrow,  24  Ind.        (N.    Y.),   59    Bull.   — . 

202.  110  It  is  equally  well  settled  that 

But  if  he  has  a  mere  naked  power  executors,   in   the   absence   of   power 

of  sale  he  is  not  bound  to  insure,  for  conferred  by  the   will,   have  no  au- 

in  such  cases  the  fee  is  in  the  heir  thority    to    carry    on    the    trade    or 

until  sale  is  made.     Reed  vs.  Brown,  business  of  their  testator,  and  that : 

10  C.  C.  57;   6  C.  D.  15.  "The  emploj-ment  of  the  trust  funds 

See   §  1202.  in  trade,  or  any  speculative  under- 

See  §  379,  Fire  insurance.  taking,  without  an  express   author- 

108  Redf.  Law  and  Prac.  497.  itv,  will,  a  fortiori  be  treated  as  a 

109  §  10633  G.  C,  §95.  breach  of  trust:   and  whatever  may 
109a  See    §  435,   Executor   continu-       be  the  apparent  advantages  of  such 

ing  business;  see  §436,  Administra-  a    course,    and    however    well-inten- 

tor  continuing  business.     An  execu-  tioned    the   conduct   of   the    trustee, 

trix,  who  is  carrying  on  the  business  there    is    no   question    but   that    the 

of    lier    testator    may    maintain    an  court  will  visit  upon  him  any  loss 

action  in  her  representative  capacity,  resulting  from  such  a  step,  while  he 

for  injuries  caused  to  personal  prop-  will  have  to  account  for  any  profit 

erty    which    the    defendant,    under  thus    made."      Williams    on    Ex'rs, 

agreement  with  her  as  such  execu-  1274;   Hill  on  Trustees,  379;   Perry 


445  CARRYING   ON   BUSINESS  §  518 

far  as  is  reasonably  necessary  for  its  pro|>er  preservation  and 
profitable  disposition  of  the  money  and  property  invested 
therein.'" 

It  is  not  meant,  generally  speaking,  that  the  administrator  or 
executor  is  bound,  immediately  upon  the  decedent's  death,  to 
convert  into  cash  the  assets  employed  in  his  trade;  on  the  con- 
trary, where  the  best  interests  of  the  estate  require  it,  he  may, 
within  reasonable  limits,  make  purchases  which  will  bind  the 
estate/'^  However,  an  administrator  or  executor,  conducting 
the  business  of  a  deceased  person,  always  does  so  with  great  risk 
to  himself.  If  there  is  no  authority  in  the  will,  and  he  con- 
ducts the  business  for  such  a  length  of  time  that  it  may  be  con- 
sidered that  he  continues  the  business,  instead  of  merely  pre- 
serving it  until  a  purchaser  can  be  found,  if  successful,  he  must 
account  for  the  profits ;  if  unsuccessful,  he  must  bear  the  losses. 
Even  where  the  will  authorizes  the  executor  to  conduct  the 
business,  the  executor  will  be  personally  liable  for  all  debts  in- 
curred. To  this  rule  there  is  said  to  be  two  exceptions;  first, 
that  when  the  will  authorizes  the  expenditure  of  assets  for  a  par- 
ticular purpose,  which  expenditure  is  necessary  for  the  protec- 
tion, reparation  and  safety  of  the  estate,  and  the  executor  has  no 
funds  and  is  not  willing  to  make  himself  personally  liable,  he 
may,  by  express  agreement,  make  the  expenditure  a  charge  upon 
the  estate.  The  other  exception  is  the  insolvency  of  the  execu- 
tor who  continued  the  business  and  contracted  the  debt.     In 


on  Trusts,   §  429.     So  rigid  is  this  Lucht  vs.  Behrens,  28  0.   S.  238. 

rule,  and  so  careful  have  the  Courts  m  Redf.    Sur.    Prac.    491,    citing 

always   been   to   guard   against  the  Hannahs  vs.  Hannahs,  68  N.  Y.  610; 

perilous       consequences       resulting  Thompson  vs.  Brown,  4  Johns.  Ch. 

from  embarking  the  assets  in  trade,  619;   Johnson  vs.  Kellogg,  8  N.  Y. 

that,  even  when  the  will  authorizes  St.  Rep.  413;  Ames  vs.  Downing,  1 

the  executor  to   carry  on  the  busi-  Bradf.    321;    Hooley    vs.    Gieve,    9 

nes3,  he  can  not  in  so  doing  create  Daly,   104;    9   Abb.  N.   Cas.   8,   and 

liabilities    against    the    general    es-  note. 

tate,   but   the  creditor  of   such   new  Compare    Luers    vs.    Brunjes,     5 

business    must    look    either    to    the  Redf.  32;   Boulle  vs.  Tompkins,  Id. 

business  itself  or  to  the  executor  in-  472;  Gilman  vs.  Wilber,  1  Dem.  547. 

dividually  for  his  pay.  112  Redf.    Sur.    Prac.    491,    citing 

Matter  of  Sharp,  5  Dem.  516. 


§518  ASSETS CARE  AND  MANAGEMENT  446 

such  case,  the  general  assets  may  be  made  liable,  in  equity,  for 
the  debts  incurred  in  such  continued  business.^^^ 

In  Lucht  vs.  Behrens,^^*  where  the  executor  of  an  estate,  who 
is  not  authorized  to  do  so,  takes  the  personal  assets  of  his  testa- 
tor and  uses  them  in  carrs'ing  on  the  former  trade  and  business 
of  the  testator  for  a  series  of  years,  for  the  purpose  of  making 
money  to  be  used  in  paying  the  debts  and  supporting  the  family 
of  the  testator,  consisting  of  a  widow  and  minor  children,  and 
also  for  the  purpose  of  keeping  up  the  business  for  the  minor 
sons  when  they  should  be  old  enough  to  take  charge  of  it,  and 
in  so  doing  pays  off  all  the  debts  of  the  testator,  it  was  held  that 
the  general  assets  of  the  testator  in  the  hands  of  an  adminis- 
trator de  bonis  non,  is  not  liable  for  money  borrowed  by  the  ex- 
ecutor for  and  used  in  carrying  on  such  trade  and  business, 
though  the  executor  acted  in  good  faith/^^ 

Where  the  vriW  directs  that  the  whole  personal  estate  should 
be  used  in  carrying  on  a  business,  such  direction  is  subject  to  the 
law  that  the  personal  estate  must  first  pay  the  personal  debts  of 
the  testator,  and  only  the  personal  estate  remaining  after  pay- 
ment of  such  personal  debts  can  be  used  by  the  trustee  to  carry 
on  the  business/^® 

Where  the  executor  or  administrator  carries  on  business  of  the 
deceased  in  good  faith  at  the  request  of  heirs,  distributees  or 
legatees  they  will  not  be  heard  to  object  to  credits  in  his  account, 
or  loss  incurred  in  consequence  thereof.  But  the  burden  lies  on 
him  to  show  that  the  losses  were  incurred  with  the  full  under- 
standing of  all  tlie  parties. ^^^ 

Only  by  the  clear  and  unmistakable  intention  of  the  testator 
can  assets  other  than  those  employed  in  the  business  be  held 
liable  for  the  debts  of  a  going  concern. ^^^ 

113  Redf.  Siir.  Prac.  492.  made  by   him   to   the  employees   in 

114  28  0.  S.  231.  such    business,    in    accordance    with 

115  Lucht  vs.  Behrens,  28  0.  S.  the  general  policy  of  the  deceased 
231.  during  his  lifetime,  these  are  prima 

116  P.  C.  &  St.  L.  Rv.  Co.  vs.  facie  reasonable  and  proper.  In  re 
Schmidt,  8C.  C.  355.        '  Kohanzi,  16  X.  P.    (X.S.)   337. 

117  Poole  vs.  Munday,  103  Mass.  In  this  case  Judge  Haddin  dis- 
174;  Ward  vs.  Tinkham,  65  Mich.  cusses  a  number  of  interesting  ques- 
695.  tions. 

118  See      Discussion      of      subject,  Schouler     says      (Sch.     on     Exrs. 
Woerner  on  Admin.  688,  689.  325):      "Chancery   protects   the  ex- 
See  also  article  in  13  Bull.  31.  ecutor  who  can  show  his  testator's 
If  an  administrator  conducts  the  express    sanction,    but    scarcely    be- 

business  of  the  deceased,  such  as  yond  this,  and  chiefly  so  as  to  keep 
operating    a    newspaper,    payments       the  hazardous  investment  under  its 


447  CARRYING    ON    BUSINESS  §  518 

As  before  observed,  a  wider  latitude  is  allowed  an  administra- 
tor or  executor  in  closing  out  the  business  than  in  continuing 
one.  In  order  to  presence  a  business  until  it  could  be  disposed 
of,  would  not  be  a  continuation  of  the  business.  In  such  a 
matter  the  executor  or  administrator  must  exercise  the  judg- 
ment of  an  ordinary  prudent  and  careful  man,  and  endeavor  to 
dispose  of  the  business  at  the  very  earliest  possible  time.  Some- 
times it  would  be  very  detrimental  to  close  up  a  business  at  once, 
but  as  a  general  rule,  it  will  be  more  profitable  to  the  estate  than 
to  continue  it,  even  for  a  short  time.  If  it  can  be  disposed  of 
for  a  slight  loss,  it  will  generally  be  more  profitable  to  the  es- 
tate than  to  hold  it."** 

That  part  of  the  estate  not  invested  in  such  business  is  not 
liable  to  subsequent  creditors.^^"  But  where  a  testatrix  directed 
her  executor  to  carry  on  a  mercantile  business  for  the  benefit  of 
her  son,  and  empowered  the  executor  "  to^  sell  or  make  such  otlier 
disposition  of  my  real  and  personal  estate  as  the  safe  conduct 
of  such  business  shall  seem  to  require,"  it  was  held  that  a  pur- 
chase of  goods  by  the  executor  on  credit,  in  the  course  of  carry- 
ing on  such  business,  subjected  the  general  assets  of  the  estate 
to  the  payment  of  the  price. ^"^ 

prudent  direction.  To  employ  trust  In  re  Rose's  Estate,  80  Cal.  166; 
funds  in  trade  on  the  representa-  S.  C.  22  Pac.  Rep.  86;  Poole  vs. 
tive's  own  responsibility  has  always  Munday,  103  Mass.  174;  Ward  vs. 
been  treated  as  essentially  a  breach  Tinkham,  32  N.  W.  Rep.  901. 
of  trust;  and  the  Courts  have  resist-  If  an  administrator  continue  the 
ed  much  pressure  to  relax  the  rule,  business  under  the  will,  all  losses  by 
And  the  executor  or  administrator  said  debts,  costs  of  personal  prop- 
so  employing  funds  of  the  estate  has  erty  purchased  to  replace  similar 
the  disadvantage  of  incurring  all  the  articles  worn  out  or  consumed  in 
risks  while  he  must  account  for  all  conducting  the  business,  expenses  of 
the  profits."  repairs  on  the  real  estate  used,  are 
ii»  But  it  has  been  held  that,  properly  chargeable  against  the  es- 
though  an  administrator  is  not  au-  tate. 

thorized  to  carry  on  his  intestate's  Accounting   of   Jones,    103   N.   Y. 

business,  and  should  not  blend  the  621;  Cline's  Appeal,  106  Pa.  St.  617. 

expenses  and  disbursements  connect-  ^^o  Brasfield  vs.   French,  59  Miss, 

ed    therewith    with    the    legitimate  632;    Jones  vs.   Walker,    103   U.    S. 

item    of    his    accounts,     where    he  444;    Morrow  vs.   Morrow,   2   Tenn. 

charges     himself     with     the     gross  Ch.   549;   Delaware,  etc.,  R.  R.   Co. 

proiits    of    the    business,    and    the  vs.  Gilbert,  44  Hun  201. 

Court  debits  him   with   the  amount  121  Willis    vs.    Sharp,    113    N.    Y. 

thereof,  he  should  be  allowed  money  586;    S.  C.  21  N.  E.  Rep.  705. 
paid  out  in  the  course  of  the  busi- 
"♦•ss. 


§  519  ASSETS  CARE    AND    MANAGEMENT  448 

Special  legatees  or  creditors  can  compel  the  closing  up  of  the 
business  after  the  time  fixed  in  the  will;  but  if  the  residuary 
legatee  continued  the  business  as  executor  after  the  time  so  fixed 
in  the  will,  he  cannot  defeat  subsequent  creditors/"^ 

It  would  seem  that  an  executor  carrying  on  business  under  the 
will  is  personally  liable  to  all  persons  with  whom  he  deals  as 
such,  though  they  have  a  right  to  resort  for  the  payment  of  their 
debts  to  the  assets  of  the  estate/"^ 

In  seeking  to  charge  an  administrator  for  profits  made  by  the 
use  of  the  assets  of  the  estate  in  his  business,  the  burden  of 
proving  such  profits  lies  upon  him  asserting  that  such  were 
made/"* 

§  519.     Carrying  out  contracts  of  deceased. 

Except  contracts  of  a  personal  nature,  executors  or  adminis' 
trators  are  bound  to  the  extent  of  the  assets  coming  into  their 
hands  by  the  contracts  of  their  decedents,  and  they  must  answer 
any  damages  for  breach,  whether  it  occurred  before  or  after  the 
decedent's  death.  The  statute  specifically  confers  upon  admin- 
istrators or  executors  of  decedent  owners,  under  the  Mechanics' 
Lien  act,  the  saiiie  rights  and  the  same  liabilities  as  the  owners 
would  have  had  if  they  were  alive.^"^ 

As  between  the  administrator  or  executor  and  the  heir,  the 
former  may,  as  a  general  rule,  exercise  his  discretion  whether 
to  perform  or  rescind  any  contract  of  the  decedent  imposing  any 
liability  or  duty  upon  himself  for  the  best  interest  of  the  estate, 
subject,  however,  to  the  approval  of  the  Court.^'® 

i!2Brasfield  vs.   French,   50   Miss.  ise  Ony  vs.  Hawkins,  8  0.  R.  455. 

632.  See  §  523,  as  to  carrying  out  .con- 

123  Liable  vs.  Ferry,  32  N.  J.  Eq.  tracts   relating  to  real   estate. 
791;   Willis  vs.  Sharp,  43  Hun  434.  Upon   a   contract   for    the    sale  of 

Where  an  executor  is  managing  growing  timber,  a  right  of  action 
an  estate  and  a  person  is  injured  on  for  damages  or  rescission  being  a 
an  elevator,  the  estate  cannot  be  personal  right,  belongs  to  the  ad- 
sued;  the  estate  of  a  deceased  is  ministrator.  Isham  vs.  BrucKer 
not  liable  for  the  torts  of  the  ex-  Stave  Co.,  2  C.  C.  (N.S.)  1;  25 
ecutor.  Deschler  vs.  Franklin,  20  O.  C,  C.  167;  affirmed  72  0.  S. 
C.  C.  56.  167. 

124  Jn  re  Munzor'  Estate,  25  N.  Where  in  direct  proceedings  the 
Y.  Supp.  818;  S.  C.  4  Misc.  Rep.  parties  agree  that  a  certain  amount 
374.  shall  be  paid  by  the  husband  to  the 

For  discussion  of  executor  or  ad-  wife    during    her    natural    lifetime, 

m.inistrator  carrying  on  business  in  this    contract    must    be    carried    out 

a  partnership.     See  §§  433,  434,  435,  by  the  administrator  of  the  husband. 

436.  Hassenek    vs.    Markbreit,    68    0.    S. 

See  §§  1379,    1588.  554. 

125  See   §8322   G.   C. 


449  CAEKYING  OUT  CONTKACTS  §  519 

Our  statute  provides,  ^"^  that  by  permission  of  Court,  an  exec- 
utor may  complete  a  sale  of  lands,  and  where  the  decedent  has 
entered  into  a  contract  to  purchase  real  estate,  and  dies  before 
it  is  conveyed  to  him  and  before  he  has  paid  for  it,  his  heir  or 
legatee  is  entitled  to  have  his  executor  or  administrator  pay  for 
the  realty  out  of  the  personal  estate.^^^ 

Where  it  is  within  the  power  of  an  administrator  or  executor 
to  rescind  a  contract,  he  cannot,  after  ratifying  it,  disavow  his 
act;  having  made  his  election,  he  is  bound  by  it;  and  likewise 
those  beneficially  interested  in  the  estate  are  bound  by  the  ad- 
ministrator's or  executor's  acts. 

Woerner  says:  ^^®  "  That  if  the  executor  or  administrator  de- 
cides to  enforce  or  carry  out  the  contract,  he  is  liable  at  common 
law  for  the  loss  that  may  occur  to  the  estate  and  consequences 
thereof,  while  any  profits  arising  become  assets  of  the  estate. 
In  equity,  however,  and  under  the  statutes  of  most  American 
States,  the  administrator,  acting  in  good  faith,  Vyill  be  protected 
for  the  execution  of  the  contract,  the  breach  of  which  would  re- 
nult  in  damages,  although  the  estate  is  insolvent.  The  loss  for 
carrying  out  the  contract  would  be  greater  than  the  damages  or 
breach  would  have  been."  ^^° 

Where  the  deceased  agreed  to  convey  to  the  plaintiff  a  certain 
tract  of  land  and  did  not  do  so,  whether  the  payment  was  to  be 
made  in  money  or  services,  the  executors  were  compelled  to 
carry  out  the  agi'eement.^^^ 

The  plea  of  usury  may  be  made  against  an  administrator  as 
well  as  it  could  have  been  made  against  his  testator.^^^ 

But  an  executor  or  administrator  cannot  set  aside  a  convey- 
ance made  by  a  debtor  with  the  intent  to  hinder  and  delay  his 
creditors,  unless  the  property  so  conveyed  is  actually  required 
for  payment  of  debts.^^^ 

A  contract  that  is   indefinite  and  129  Woerner  on  Admin.  686. 

uncertain   need   not   be   carried   out.  130  f^gg  Schu.  on  Exr.s.  §  254. 

In  re  Stewart,  1  N.  P.    (N.S.)    413;  .31  Crabill    vs.    Marsh,  ^38    O.    S. 

49  Bull.   103.  33J      g^g  Howard  vs.  Brower,  37  O. 

In    this    case    the    Probate    Court  „         „ 

assumed     jurisdiction  to    try    that         ",,,..'      ,   ,  -^   ,,     ,      .,    ^-v     ^ 

•'        .     ,       ,  ,,         ,    •   •  i32Ausdal   vs.    Potterf,    41    O.    S. 

question   and    instruct  the  adminis- 
trator. 6^7- 

127  §  i]()28  G.  C.  i33McCall    vs.    Pixley,    48    O.    S. 

129  Chamberlain  vs.  Dunlap,  126  379;  Doney  vs.  Clark,  55  O.  S.  294. 
vr.  Y.  45. 


§  520  ASSETS CARE  AND  MANAGEMENT  450 

§  520.     Contracts  not  binding,  etc/^^* 

There  are  certain  contracts  which,  although  binding  upon  the 
deceased  during  his  lifetime,  are  not  binding  upon  his  legal 
representatives.  These  are  contracts  of  a  personal  nature  de- 
pending upon  personal  skill,  or  taste  of  the  obligee,  such,  for 
instance,  as  the  obligation  of  an  author  to  prepare  a  book  for 
publication,  or  a  master  to  instruct  an  apprentice,^^*  The 
contract  to  marry  or  an  obligation  to  be  perfonned  by  the 
contracting  party  in  person. ^^^  Thus  a  contract  for  combina- 
tion for  mutual  profit  of  the  business  ability  of  B.  as  manager, 
and  the  musical  talent  of  S.  as  director,  in  the  organization  and 
touring  of  a  band,  the  compensation  to  be  paid  S.  to  be  a  propor- 
tion of  the  profits,  is  dissolved  by  the  death  of  B.^^® 

If  the  contract  of  a  deceased  be  personal,  and  the  performance 
of  the  deceased  himself  be  the  essence  thereof,  his  executor  Avill 
not  be  liable,  except  only  so  far  as  the  contract  was  broken  dur- 
ing his  lifetime.^^^ 

So  a  contract  to  sell  all  the  lumber  manufactured  by  one  party 
during  five  yeare,  to  average  a  certain  number  of  feet  per  year, 
but  stipulating  no  fixed  quantity  for  any  year,  was  declared  a 
personal  contract,  dissolved  by  death  of  either  party.^^*  And 
was  also  held  in  the  case  of  a  contract  to  manufacture  a  certain 
patented  article  and  push  the  sale  in  a  certain  manner  requiring 
personal  skill.^^^ 

13-t  Baxter  vs.  Burfield,  2  Strange,  of  the  contracting  parties  as  induce- 

126'6.  iiients  to  the  contract,  there  is  mu- 

134*  Cited  Stewart  vs.  Herron,  77  tuality,   and   the  death   of  either  of 

0.  S.   142.  the  parties  is  the  death  of  the  con- 

135  Siler  vs.  Gray,  86  N.  Car.  566.  tract.     In  such  a  case  the  personal 

130  Blakely  vs.  Sousa,  197  Pa.  St.  representative    of   the   deceased   can- 

305,   335.  not   call    upon   tlie   survivor   to   per- 

137  Dickinson  vs.  Callahan,  19  Pa.  form,  and  the  latter  cannot  require 

St.   227.  tlie    ohligations    to    him    to    be    as- 

Tlie    duty    of    the    survivor    to    a  sumed,    and   discharged   by   another, 

contract   of   a    strictly    personal   na-  Blakely  vs.  Sousa,   197  Pa.  St.  305- 

ture   to   perform    his    covenants   ter-  335. 

minates  with  the  death  of  the  other  iss  Dickinson  vs.   Calahan,   19   Pa. 

party    to    it,    for    the    reason    that  St.  231. 

neither    of    the    contracting    parties  is^  Smith  vs.  Preston,  170  111.  179. 

contemplated  attempted  performance  Contract     for     personal     services 

by   a    substitute.      Where    distinctly  cannot      be      specifically      enforced, 

personal  services,  requiring  peculiar  Hagmen  vs.   Campbell,    15  Dec.  221. 
skill,    are    to    be    rendered    by    each 


451 


CONTKACTS  NOT  BINDING 


520 


And  the  contract  between  a  firm  and  agent  to  employ  him  in 
their  business  for  a  term  of  years  was  held  discharged  by  death 
of  a  member  of  the  firm/**' 

The  death  of  one  party  to  a  contract  does  not  operate  as  a 
revocation  or  discharge  of  his  part  of  the  agreement,  where  his 
obligation  is  such  that  it  can  be  performed  by  his  personal  rep- 
resentative/^^ 

If  the  contract  is  for  the  performance  of  personal  services, 
requiring  particular  ability  and  skill,  there  is  the  implied  con- 
dition that  the  contractor  shall  be  alive  and  physically  able  to 
perform  them/*^ 


i-so  Tasker  vs.  Shepard,  6  H.  &  N. 
675. 

1*1  Hawkins  vs.  Bael,  18  B.  Mon. 
(Ky.)    816;  68  Am.  Dec.  755. 

142  Marvel  vs.  Phillips,  162  Mass. 
399;  44  Am/ St.  Rep.  370. 

A  written  contract  between  a  sew- 
ing machine  company  and  W.  re- 
cited the  fact  of  a  sale  by  the  for- 
mer to  the  latter  of  one  hundred 
Howe  machines  for  the  price  of 
which  W.  had  given  a  series  of 
notes,  the  company  stipulating  to 
accept  on  or  before  maturity  of  the 
amount  due  thereon,  notes  of  sub- 
purchasers, drawn  to  the  order  of 
W.  and  guaranteed  by  him.  The 
company  was  to  ship  to  W.  a  speci- 
fied number  of  machines  monthly, 
and  W.  agreed  to  sell  them  within  a 
specified  territory,  at  the  regular  re- 
tail prices  established  by  the  com- 
pany, and  deal  only  in  its  machines. 
After  machines  were  delivered,  W. 
died.  It  was  held  that  the  contract 
was  personal  to  W.,  and  the  further 
performance  did  not  devolve  on  the 
administratrix  of  his  estate.  Howe 
Sewing  Co.  vs.  Rosensteel,  24  Fed. 
Rep.  583,  citing  Robson  vs.  Drum- 
mond,  2  Barn.  &  Adol.  303;  Dickin- 
son vs.  Calahan,  19  Pa.  St.  227. 

In  compromise  and  settlement  of 
criminal   and    civil    proceedings    for 


fornication  and  bastardy,  and 
breach  of  promise  of  marriage,  A 
agreed  to  deliver  her  child  to  C.  to 
discontinue  both  actions  and  release 
B  from  all  claims  and  demands,  in 
consideration  of  which  B  agreed  to 
pay  all  costs  in  said  cases,  "  to  re- 
lieve A  from  any  cost  or  expenses  in 
the  support  and  maintenance  of  said 
child,  and  see  that  it  was  well  taken 
care  of."  Held,  the  contract  was 
not  personal  to  B,  but  could  be 
enforced  against  his  executors. 
Stumpt's  Appeal,  116  Pa.  St.  33;  8 
Atl.  Rep.  866. 

Contracts  for  personal  services  are 
subject  to  the  implied  condition  that 
the  party  contracting  to  perform 
shall  continue  in  health,  and  such 
contracts  are  revocable  by  his  inca- 
pacity to  perform.  Powell  vs.  New- 
ell, 59  Minn.  406;  61  N.  W.  Rep. 
335. 

The  above  was  where  a  note  was 
given  to  a  physician  for  future 
services  and  the  physician  became 
ill,  held  the  giver  of  the  note  was 
released  from  payment.  When  J 
agreed  to  furnish  S  with  "  six  suc- 
cessive crops  of  hemp  of  his  own 
raising,  embracing  each  year  all  the 
hemp  he  can  raise  upon  not  less 
than  one  hundred,  nor  more  than 
one  hundred  and  sixtj-  acres  of  land 


§  521  ASSETS CAKE   AND   MANAGEMENT  452 

§  521.     Duty  as  to  mortgages,  etc. 

It  will  be  the  duty  of  the  administrator  or  executor  to  keep 
alive  chattel  mortgages  by  refiling  them,  as  required  by  law; 
and  if  the  security  should  be  lost  by  failure  to  refile  such  a 
mortgage,  the  administrator  or  executor  would  be  liable.  It 
raust  be  refiled  within  thirty  days  from  the  expiration  of  three 
years  from  its  date.  Likewise  it  would  be  the  duty  of  an  admin- 
istrator to  keep  alive  judgments,  and  exercise  proper  care  to  pre- 
vent any  claim  from  being  barred  by  the  statute  of  limitations. 
As  to  keeping  down  interests  on  mortgages  or  other  incum- 
brances upon  the  property,  it  is  culpable  negligence  for  the  ex- 
ecutor or  trustee  to  fail  to  do  so,"^  when  he  has  funds  on  hand 
sufficient  for  that  purpose. 

In  West  vs.  Dean,"*  it  was  held  that  an  administrator  had  no 
right  to  bid  in  property  which  was  sold  at  foreclosure,  even 
though  he  may  think  it  ^Hll  turn  out  to  the  advantage  of  the  es- 
tate. While  this  may  have  been  the  law  applicable  to  that 
case,  in  which  it  was  sought  to  hold  the  estate  responsible  on 
the  contracts  of  the  administrator,  yet  it  occurs  to  me  that  it  is 
not  good  law.  It  rather  seems  to  me  that  the  law  is,  as  Redfield 
expresses  it:  ^*^ 

"  The  representative  has  a  right,  and  it  may  be  his  duty,  in 
the  foreclosure  of  a  mortgage  belonging  to  the  estate,  to  bid  in 
the  premises,  on  the  sale  thereof,  and  he  may  take  a  deed  there- 
for in  his  own  name,  individually.  The  premises  thus  pur- 
chased are  to  be  regarded  as  personal  property  of  the  estate,  and 
it  is  the  duty  of  the  representative  to  convert  them  into  money, 
to  be  accounted  for  by  him  as  part  of  such  estate."  *® 

He  is,  therefore,  authorized  to  enter  into  a  contract  for  tlie 
recovery  of  such  as  is  to  be  accounted  for  by  him  as  part  of  such 
estate.""" 

each  year,"   it  was  held   a  personal  i47  Valentine   vs.   Belden,    20   Him 

contract   and   could  not  be  enforced  537. 

against    J's    executor.      Schultz    vs.  See    Cook   vs.    Ryan,   29    Id.    249; 

Johnson's  Ex.,  5  B.  Mon.  497,  citing  Clark    vs.    Clark,    8    Paige,    152.  _ 

Chittv  Pldgs.,  vol,   1,  58;   Chitty  on  If  a  mortgagor  dies  in  possession 

Contr.  98.                                           "  of  mortgaged  property,  it  cannot  be 

A  suit  for  slander  does  not  abate  replevined    from    the    administrator. 

by  the  death  of  the  plaintiff.     Alpin  It  is  the  duty  of  the  administrator 

vs.  Morton,  21    0.  S.   536.  to  sell  the  property  in  due  adminis- 

i43Redf.    Sur.    Prac.    497.  tration   of   the  estate,   the   claim   <if 

1**15   C    C.   261;    8   C.   D.  797.  the   mortgagee   being   transferred   to 

145  Hedf.   Sur.  Prac.   497.  the  fund.     It  would  make  no  differ- 

146  Matter  of  Butler,  1  Connoly,  cnce  if  the  condition  was  broken  or 
58                                                            ■  not  at  the  time  of  the  mortgagor's 


453  STOCKS  §  522 

There  ia,  however,  no  absolute  obligation  resting  on  an  execu- 
tor to  buy  in  the  equity  of  redemption  at  such  a  foreclosure  sale. 
It  rests  with,  him  to  exercise  a  sound  judgment  whether  or  not 
that  course  is  necessary  to  prevent  loss  to  the  estate/*^ 

In  such  cases  it  would  be  proper  for  the  administrator  or  ex- 
ecutor to  file  an .  application  in  the  Probate  Court  for  au- 
thority to  buy  in  the  property.  There  is  no  statute  directing 
such  a  course,  but  Courts  of  Probate  have  entertained  jurisdic- 
tion on  such  application.  The  petition  should  set  out  all  the 
facts,  and  pray  for  authority  to  purchase  the  property  at  not  to 
exceed  a  certain  price.^*^ 

§  522.     Stocks. 

Executors  and  administrators  are  to  vote  the  stock  held  by 
their  testators.  It  matters  not  in  this  respect  whether  the  stock 
was  held  in  their  own  right  or  in  trust,  nor  whether  transfer 
thereof  had  been  made  on  the  company's  books.  If  there  are 
several  executors  and  they  cannot  agree,  the  stocks  cannot  be 
voted.^^° 

Administrators  should  not  contribute  voluntarily  to  make  up 
losses  of  incorporated  companies  in  which  the  estate  owns  stock, 
if  they  are  of  little  or  no  value ;  but  if  they  are  valuable,  they 
should  pay  assessments  to  which  they  are  liable,  and  which  con- 
stitute a  lien  on  the  share  held  by  them,  in  order  to  prevent 
their  forfeiture.*"'"* 

§  523.  Action  by  executor,  etc.,  to  complete  contract  for  sale 
of  land.  "When  a  person  who  has  entered  into  a  written  con- 
tract for  the  sale  and  conveyance  of  an  interest  in  land  dies 

death.     [Linghler  vs.  Kraft,  3  N.  P.  Market  St.  Co.  vs.  Hellman,  109  Cal. 

(N.S.)    653;    16   Dec.   474;    affirmed  571;  Matter  of  North  Shore  Co.,  63 

79  0.  S.  225.  Barb.  556;    Matter  of  Cape  May  & 

148  Matter   of   Quinn,    1    Connoly,  U.  .B  M.  Co.,  16  Atl.  R.  191. 

381,  see  note   on   executors,   guard-  i^o*  VVoerner  on  Admin.  691.     See 

ians,     etc.,     buying     in,     17     Abb.  §  1289  as  to  Dividends. 

N.  Cas.  429.  A  proxy  given  by  an  administra- 

149  See  Woerner  on  Admin.  1065.  tor  or  executor,  in  order  to  be  valid 
See  §  386.  in  the  casting  of  votes,  must  specify 
A    mortgage    not    recorded    until  for   wliom   tlie   votes   shall   be   cast. 

after  the  death  of  the  mortgagor  is  This   is   a   discretion   lodged   in   the 

not  for  that  reason  void  as  to  gen-  administrator  or  executor   and   can 

eral   creditors.     Gill   vs.  Pumey,   12  be   exercised   by   him   alone.      State 

O.  S.  38.  ex  rel.  Voight,"  2   0.   App.   147;    35 

150  Woerner  on  Admin.  690,  citing  0.  C.  C.  255, 


§  524  ASSETS CARE   AND   MANAGEMENT  454 

before  its  completion,  and  his  executor,  administrator,  or  other 
legal  representative,  desires  to  complete  it,  he  may  file  a  peti- 
tion therefor  in  the  common  pleas  or  probate  court  of  the  county 
in  ^v]neh  the  land,  or  any  part  thereof,  is  situated.  If  the  peti- 
tion be  filed  in  the  probate  court,  service  may  be  made  therein 
as  in  civil  actions.  The  heirs  at  law,  devisees,  or  other  legal 
representatives  of  the  deceased  A^endor,  when  not  plaintiffs,  must 
be  made  defendants. ' '     [R.  S.  §  5800.]  i"" 

§  524.     Nature  of  proceedings. 

The  above  section  is  a  part  of  an  act  that  was  originally 
I  assed  permitting  co-partners,  joint  tenants,  or  tenants  in  com- 
mon, to  enforce  a  contract  for  the  sale  of  lands  that  had  been 
agreed  to  be  sold  before  one  of  the  joint  tenants  died,  as  well  as 
a  provision  that  executors  might  complete  such  a  contract.  It 
seems  that  the  prime  object  of  the  above  section  is  to  grant  to 
the  executor  or  administrator  the  power  to  make  the  conveyance 
and  not  to  provide  for  a  method  in  Avhich  the  administrator  or 
executor  could  compel  an  unwilling  purchaser  to  comply  with 
his  contract.  It  rather  goes  on  the  assumption  that  the  pur- 
chaser is  willing  to  complete  his  contract ;  and  if  the  administra- 
tor or  executor  is  of  the  opinion  that  the  interest  of  the  estate 
required  its  completion,  and  the  purchaser  is  unwilling,  I  have 
no  doubt  that  he  could  file  a  suit  for  that  purpose.  But  whether 
or  not  he  could  ask  that  kind  of  a  remedy  in  the  Probate  Court 
is  certainly  a  serious  question,  and  it  would  be  advisable  in  such 
cases  to  file  a  petition  in  the  Court  of  Common  Pleas.  While 
the  statute  does  not  in  so  many  words  say  that  the  action  is  a 
civil  action,  and  one  which  Avould  be  so  held  under  the  Code, 
yet  for  all  practical  purposes  it  would  be  advisable  to  consider 
the  action  as  a  civil  action.^*'^ 

§  525.     Parties. 

Following  the  idea  that  the  object  of  sec.  11922,  G.  C,  was  only 
to  autliorize  the  executor  or  administrator  to  complete  the  con- 

160  §  11922   G.   C,      See   §  139S.  It  seems  that  action  depends  on  the 

161  If  the  contract  is  void  the  or-  administrator's  desires,  and  that  the 
der  of  the  Court  would  be  of  no  Probate  Court  cannot  compel  him  to 
effect.  Murdock  vs.  Lantz,  34  0;  S.  act.  Jones  vs.  Green,  11  C.  D.  548; 
599.  21   0.  C.  C.  96. 

See    §519,     Contract  of  deceased. 


455  ACTION   TO   COMPLETE   CONTRACT  §  526 

tract  where  the  purchaser  was  willing  to  accept  the  same,  the 
statute  provides  that  the  heirs  at  law,  devisee,  or  other  legal  rep- 
resentative of  the  decedent,  must  be  made  parties.  In  sec.  11920, 
G.  C,  it  is  provided  that  all  the  contracting  parties  must  be  set 
forth  in  the  petition.  So  it  would  eb  well,  in  a  case  of  this  kind, 
to  make  not  only  the  devisee  and  heir  at  law  parties,  but  also  all 
the  contracting  parties,  as  well  as  the  widow  of  the  deceased. 
The  action  must  be  brought  in  the  Court  of  Common  Pleas  or 
the  Probate  Court  of  the  county  in  which  the  land,  or  any  part 
thereof,  is  situated.  If  the  widow  was  unwilling  to  release  her 
dower  in  the  premises,  it  would  be  of  no  use  for  the  executor  to 
file  his  petition  under  sec.  11922,  unless  the  purchaser  was  will- 
ing to  take  the  property  with  the  incumbrance  of  a  widow's 
dower,  for  the  court  would  not  compel  a  purchaser  to  take  a 
title  of  that  kind.^^^ 

§  526.     Petition. 

Under  the  provisions  of  sec.  11920  G.  C.  it  is  said  ''that  the 
petition  must  set  forth  the  names  of  all  contracting  parties,  de- 
scribe the  lands  contracted  for,  state  the  time  the  contract  was 
made,  that  the  contract  has  been  fully  performed  by  the  pur- 
chaser, and  have  annexed  a  copy  of  the  contract."  This  may 
not  be  entirely  applicable  to  the  petition  in  this  case,  for  if  only 
the  power  to  make  the  conveyance  is  considered,  it  should  state 
the  purchaser  is  willing  to  comply  with  the  contract.  The  peti- 
tion m&y  be  in  the  following  form: 

Probate  Court, County,  Ohio. 

,  as  executor  of  the  last  will 

of   (or  administrator  of  the  estate  of) ,  deceased,  and 

and ,  heirs-at-law  of 

,  deceased,  plaintiffs,  vs and 

,  as  the  legal  guardians  of 

,  an  infant  and  heir-at-law  of  said ,  deceased. 

Plaintiffs  say  that  on  or  about  the day  of , 

190 .  .  . ,  the  said ,  late  of  the  county  of 

,  died  testate  (or  if  he  left  no  will,  intestate),  leaving  the 

plaintiffs, and ,  and  de- 
fendant   ,   who   is   an   infant   aged   about 

years,  and  whose  legal  guardian  is  the  defendant , 

162  In  a  suit  to  compel  the  execu-       a  party.     Massie's  heirs  vs.  Donald- 
tion  of  a  contract  to   convey,   it  is       son,   8  0.   377. 
necessary  to  make  the  administrator 


§527  ASSETS  —  CAKE  AND •  MANAGEMENT  456 

his  sole  heirs-at-law ;  that  plaintiff ,  is  the  duly  quali- 
fied and  acting  executor    (or  administrator)    of , 

deceased,  a  duly  certified  copy  of  his  letters  of  executorship   (or  adminis- 
tration)  as  hereto  attached,  marked  exhibit Plaintiffs  say  that 

died  possessed  of  the  legal  title  in  fee  simple 

to   the   following   described    lands,    to-wit:       (Describe    them.)      Plaintiffs 

further   say  that,   the  said in  his   lifetime,   on  the 

day   of ,   190. .  .,   contracted   in  writing  with 

said ,  to  sell  and  convey  to  said 

in    fee    simple,    by    deed    of 

general  warranty,  the  said  premises,  with  the  appurtenances 

,  which  contract  was  in  substance  as  follows:      (State 

substance  of  contract),  a  copy  of  which  contract  is  hereto  attached,  marked 

exhibit ;    and   that   said    contract   was    not   completed    by    said 

in  his   lifetime,   and  the  plaintiffs   are   desirous 

of  completing  the  same  according  to  its  terms.     Wherefore  plaintiffs  pray 

that  said ,  as  executor  of  the  last  will  and  testament 

of ,    deceased,    may   be   authorized    to   complete    said 

contract,  and  to  execute  deeds  of  general  warranty  for  and  on  behalf  of  the 

heirs-at-law  to  the  said ,  which  shall  be  as  binding  on 

said  heirs-at-law  as  if  the  same  had  been  made  by  said , 

deceased,  in  his  lifetime,  and  for  all  other  proper  relief. 


(Verification.)  Attorney  for  plaintiff.i«» 

§  527.     Notice,   etc. 

The  original  statute  provided  that  the  notice  should  be  per- 
sonally made  on  the  parties  interested,  or  published  three  con- 
secutive weeks  in  some  newspaper  of  circulation  in  the  county 
in  which  the  action  was  pending.  The  law  now  provides  that 
service  may  be  had  as  in  civil  actions  —  that  is,  service  should 
be  had  by  summons  or  by  publication,  and  the  rule  applying  to 
civil  actions  would  generally  apply.^®* 

§  528.  When  Court  may  order  conveyance.  Deed.  "After 
causing  to  be  secured  to  and  for  the  benefit  of  the  estate  of  the 
deceased  its  just  part  of  the  consideration  of  the  contract,  the 
court  may  authorize  the  executor,  administrator,  or  other  legal 
representative  to  complete  it  and  to  execute  a  deed  for  and  on 
behalf  of  the  lieirs  at  law  to  the  purchaser;  which  shall  recite 
the  order  and  be  as  binding  on  the  heirs  at  law,  and  other  persons 
interested,  as  if  mads  by  ^he  deceased  in  his  lifetime."     [R.  S. 

163  Ohio  Probate  Code.  164  See    Kinkead's    Pract.    109    et 

The  heirs  at  law,  devisees  or  other  seq.     See  §§  837  to  845,  as  to  serv- 

legal     representatives     of     deceased  ice,  etc. 

must   he   either   partv   defendant  or  1^5  §  11923  G.  C- 

plaintiff,  §11922  G.  *C.,  §523. 


457  HEARING,    DEED,    ETC.  §  529 

§  529.     Hearing,  etc. 

After  the  time  has  expired  which  is  necessary  to  bring  the 
matter  to  an  issue,  the  cause  may  be  heard  as  any  other  cause 
is  tried  by  the  Court ;  and,  in  addition  to  ascertaining  whether 
or  not  the  contract  was  a  valid  one,  and  whether  all  persons  have 
been  legally  served  with  summons,  the  Court  must  ascertain  that 
the  portion  of  the  consideration  of  the  contract  remaining  im- 
paid  must  be  paid  or  secured.  After  finding  of  these  facts, 
together  with  those  of  a  formal  nature,  the  Court  mav  make  the 
entry  authorizing  the  sale. 

§  530.     Entry. 

(Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  of  A.  B., 
administrator  (or  executor)  of  C.  D.,  for  authority  to  complete  a  con- 
tract made  by  C.  D.  during  his  lifetime,  to  convey  certain  real  estate; 
and  the  same  was  submitted  to  the  Court,  upon  the  petition  and  evidence. 
Whereupon  Court  finds,  after  due  consideration,  that  ail  the  parties  in 
interest  have  been  seri^ed  with  process  as  required  by  law,  and  that  the 
allegations  and  statements  contained  in  said  petition  are  true.  Wherefore 
it  is  ordered  by  the  Court  that  said  A.  B.,  as  administrator  (or  executor) 
of  the  estate  of  C.  D.,  be,  and  is  hereby  authorized  to  complete  said  con- 
tract, and  execute  and  deliver  a  proper  deed  of  general  warranty  for  and 
in  behalf  of  the  heirs  at  law  of  said  C.  D.,  deceased,  to  the  purchaser  E. 
F.,  for  the  real  estate  in  the  petition  described. 

§  531.     Form  of  deed. 

Know  all  Men  by  these  Presents: 

That,   whereas,   on   the day   of ,    190.  .  . ,   A.   B. 

was  duly  appointed  and  qualified  as  administrator    (or  executor)    of  the 

estate  of  C.  D.,  deceased,  late  of  said County,  by  the  Probt-.te  Court 

of  said  county,  and  afterwards,  to-wit:      On  the day  of 

,  A.  B.  filed  his  petition  in  the  Court  of 

County  for  an  order  of  said  Court,  authorizing  him  to  complete  a  contract 
made  by  the  said  C.  D.  to  convey  certain  real  estate  hereinafter  described. 

And  whereas  afterwards,  on  the day  of ,  said 

petition  came  on  to  be  heard,  and  the  Court  ordered  that  said  A.  B.  com- 
plete said  contract  and  make,  execute  and  deliver  to  the  said  E.  F.  a  war- 
ranty deed  in  fee  simple,  for  said  premises,  upon  payment  of  the  purchase 
money  remaining  unpaid.  Which  order  is  in  the  words  as  follows,  to-wit: 
(Here  copy  order  in  full,  designating  it  by  quotation  marks.)  All  of  which 
will  more  fully  appear  by  the  records  of  said  Court,  to  which  reference  is 
hereby  made. 

Now,  therefore,  I,  A.  B.,  administrator  (or  executor)  of  the  estate  of 
C.  D.,  deceased,  aforesaid,  by  virtue  of  said  proceedings  and  of  the  statute 
in  such  ca.ses  made  and  provided,  and  of  the  power  vested  in  me  and  for 

and  in  the  consideration  of dollars,  paid  by  said  E.  F.. 

the  receipt  whereof  is  hereby  acknowledged,  do  hereby  grant,  bargain,  sell 
and  convey  to  said  E.  F.,  his  heirs  and  assigns,  forever,  all  the  right,  title 
and  interest  that  the  said  A.  B.  owned  in  the  following  real  estate,  situate 

in  the  county  of State  of  Ohio,  and  in  the  township 

of ,   bounded   and   described   as   follows: 


§532  ASSETS CAKE   AND  MANAGEMENT  458 

To  have  and  to  hold  said  premises,  with  all  the  privileges  and  appurt- 
enances thereto  belonging  to  the  said  E.  F.,  his  heirs  and  assigns  forever, 
as  fully  and  completely  that  the  said  A.  B.,  as  such  administrator,  by  vir- 
tue of  said  order  of  Court  and  of  the  statute  made  and  provided  for  such 
cases,  might  or  should  sell  and  convey  the  same. 

In  witness  whereof  the  said  A.  B.,  as  such  administrator,  has  hereunto 
Bet  his  hand,  this day  of ,  A.  D.  190 .... 

Signed   and  acknowledged  iu  the  presence  of 


State  of  Ohio, County,   ss. 

Be  it  remembered,  that  on  this day  of 

190 . .  . ,  before  me,  the  subscriber,  a in  and 

for  said  county,  personally  came  the  above  named  A.  B.,  as  administrator 
of  C.  D..  the  grantor  in  the  foregoing  deed,  and  acknowledged  the  signing 
of  the  same  to  be  his  voluntary  act  and  deed  as  such  owner,  for  the  uses 
and  purposes  therein  mentioned. 

In  testimony  whereof  I  have  hereunto  subscribed  my  name  and  affixed 
my  official  seal  on  the  day  of  and  year  last  aforesaid. 

i«« 

§  532.  Heirs  of  deceased  purchaser,  may  enforce  specifib 
performance.  "The  heirs  at  law.  or  devisees,  of  a  person  who 
purchased  an  interest  in  land  by  written  contract  and  died  be- 
fore conveyance  thereof  to  him,  may  compel  such  conveyance  as 
the  deceased  might  have  done."     [R.  S.  §  5802.] ^^^ 

166  §  1 1924  G.  C.  unexecuted  contract  of  the  intestate, 

167  §  11924  G.   C.     See   §  1591.  chancery  will  not  aid  the  heir  to  set 
Where  administrators  make  a  ben-       it   up.      Howard   vs.    Babcock,    7    ( ). 

eficial    arrangement    to    rescind    an       ( 2p. )    74. 


459  ACTION   FOR   WRONGFUL  DEATH  §  533 

CHAPTER    XXX. 
ACTION  FOR  INJURY  BY  WRONGFUL  DEATH. 

§  533  Did  not  exist  at  common  law,       §  536  By  whom  and  for  whose  bene- 
etc.  fit     the      action     may     be 

§  534  Right    of    action    for    causing  brought. 

death.  §  537  Settlement,    etc. 

§  535  Right    by     statute     of     other      §  538  Application. 

state,  territory  or  country,      §  539  Entry   allowing, 
enforced.  §  540  Report   of   settlement. 

§  541  Apportionment. 
§  542  Entry  of  apportionment. 

§  533.    Did  not  exist  at  common  law,  etc. 

Actions  for  injuries  resulting  in  death  did  not  exist  at 
common  law.^  Statutes  giving  such  right  have  been  passed  by 
almost  all  of  the  States  of  our  Union.  In  some  States,  action 
may  be  brought  by  the  widow,  husband,  parent  or  other  per- 
son entitled  to  proceeds,  but  in  our  State  it  must  be  brought  by 
the  administrator  or  executor.^* 

As  an  action  of  this  kind  cannot  be  brought  in  the  Probate, 
Court,  but  must  be  brought  in  a  Court  of  general  jurisdiction, 
it  will  not  be  within  the  scope  of  this  work  to  discuss  the 
matter  except  so  far  as  it  comes  within  the  practice  of  the  Pro- 
bate Court.  The  administrator  bringing  the  suit  must  be  regu- 
larly appointed,  and  he  is  accountable  for  the  proper  distribu- 
tion of  the  proceeds.  He  is  only  a  trustee  for  the  beneficiaries 
and  has  no  interest  in  the  case  for  himself,  or  the  estate  he  rep- 
resents. The  statute  does  not  even  say  that  he  shall  bring  the 
action,  but  says  that  it  shall  be  brought  in  his  name  for  the  ex- 
clusive benefit  of  the  beneficiaries.^ 

For  law  and  forms  relating  to  the  l)ringing  of  an  action  of 
this  character,  the  reader  is  referred  to  Kinkead's  Pleadings, 
833,  Whittaker's  Code  Forms,  491  and  Bates,  1433-1449.^ 

IWoerner  on  Admin.  615,  626.  Co.,  81  0.  S.  184;  Davis  vs.  Justice, 

However,  if  the  deceased  had  other       31  0.  S.  36S. 
relatives    within    the    statute,    the  A    guardian    can    now    make     a 

decision  would  have  been  otherwise.  settlement  of  a  claim  for  wrong- 
Garrard  vs.  Mahoning  Val.  Ry.,  100  ful  death  of  his  ward,  §  10933  G.  C, 
0.  S.  212.  §  1367,  §  1381. 

l*§  10772  G.  C,   §536;   Woerner  2  Wolf  vs.  Ry.  Co.,  55  0.  S.  517. 

on  Admin.  627.  While  the  proceeds  of  a  judgment 

Where  the  widow,  there  being  no  recovered  in  an  action  under  this 
children,  dies  during  the  pendency  statute  are  directed  to  be  distrib- 
of  the  suit,  the  action  abates,  and  uted  to  the  beneficiaries  of  the  judg- 
should  be  dismissed.     Doyle  vs.  Ry.       ment  in  the  proportion  provided  by 


§  534  ACTIONS   FOR   WRONGFUL   DEATH  460 

§  534.  Right  of  action  for  causing-  death.  "When  the 
death  of  a  person  is  caused  by  wrongful  act,  neglect  or  default 
such  as  would  have  entitled  the  party  injured  to  maintain  an 
action  and  recover  damages  in  respect  thereof,  if  death  had  not 
ensued,  the  corporation  which,  or  the  person  who  would  have 
been  liable  if  death  had  not  ensued,  or  the  administrator  or 
executor  of  the  estate  of  such  person,  as  such  administrator  or 
executor,  shall  be  liable  to  an  action  for  damages,  notwithstand- 
ing the  death  of  the  person  injured,  and  although  the  death 
was  caused  under  circumstances  which  make  it  in  law  murder 
in  the  first  or  second  degree,  or  manslaughter.  "When  the  action 
is  against  such  administrator  or  executor  the  damages  recovered 
shall  be  a  valid  claim  against  the  estate  of  such  deceased  person, 
*     «     * 

"The  same  remedy  shall  apply  to  any  such  cause  of  action 
now  existing  and  to  any  such  action  heretofore  commenced  or 
attempted  to  be  commenced  in  proper  time  and  now  appear- 
ing on  the  files  of  any  court  within  this  state,  and  no  prior  law 
of  this  state  shall  be  construed  to  prevent  the  maintenance 
thereof."     [R.  S.  §  6134;  103  v.  116.1* 

§535.  Right  by  statute  of  other  State,  territory  or  coun- 
try, enforced.     "When  death  is  caused  hy  a  wrongful  act, 

law  in  relation  to  the  distribution  whose  benefit  the  action  is  prose- 
of  personal  estates  left  by  persons  cuted,  were  guilty  of  contributory 
dying  intestate,  the  money  realized  negligence.  C.  C.  &  C.  Ry.  vs.  Craw- 
is  not  to  be  treated  as  part  of  the  ford,  24  0.  S.  632. 
general  estate  of  the  intestate.  The  As  to  when  declarations  of  de- 
personal  representative  in  whose  ceased  may  be  admitted.  C.  C.  &  C. 
name  the  action  is  brought  is  a  Ey.  vs.  Mara,  26  0,  S.  185.  See 
trustee  of  the  funds  and  must  dis-  annuity  tables,  etc. 
tribute  the  proceeds  of  the  judgment  ^  §  10770  G.  C.  See  §  1557. 
to  those  to  whom  the  general  per-  An  action  for  damages  for  wrong- 
sonal  estate  would  descend  accord-  ful  death  of  a  person  employed  in  a 
ing  to  the  course  of  the  statute  of  mine  by  negligent  though  not  wilful 
descents  and  distribution.  Steel  vs.  acts  on  the  part  of  his  employer, 
Kurtz,  28  0.  S.  191;  Weidner  vs.  such  as  would  have  entitled  him  to 
Rankin,  26  O.  S.  524.  recover  if  living,  may  be  maintained 
3  It  is  not  competent  to  prove  by  his  administrator.  Rankine  vs. 
that   some  of   the  next   of   kin   for  Coal  Co.,  33  0.  C.  C.  349. 


461  SETTLEMENT  §  536 

neglect  or  default  in  another  state,  territory  or  foreign  country, 
for  which  a  right  to  maintain  an  action  and  recover  damages  in 
respect  thereof  is  given  by  a  statute  of  such  other  state,  terri- 
tory or  foreign  country,  such  right  of  action  may  be  enforced 
in  this  state.  Every  such  action  brought  under  this  act  shall 
be  commenced  within  the  time  prescribed  for  the  commence- 
ment of  such  actions  by  the  statute  of  such  other  state,  terri- 
tory or  foreign  country."     [R.  S.  §  6134;  103  v.  116.] ■■ 

§536.  Such  actions  shall  benefit  whom.  "Such  actions 
shall  be  for  the  exclusive  benefit  of  the  wife,  or  husband,  and 
children,  or  if  there  be  neither  of  them,  then  of  the  parents 
and  next  of  kin  of  the  person  whose  death  was  so  caused. 

In  whose  name  action  shall  be  brought  and  when  com- 
menced. "It  must  be  brought  in  the  name  of  the  personal 
representative  of  the  deceased  person  and  the  jury  may  give 
such  damages  as  it  may  think  proportioned  to  the  pecuniary 
injury  resulting  from  such  death,  to  the  persons,  respectively, 
for  whose  benefit  the  action  was  brought.  Every  such  action 
must  be  commenced  within  two  years  after  the  death  of  such 
deceased  person,  except  as  provided  in  section  10773-1  of  the 
General  Code. 

Representative  may  settle  with  defendant.  "Such  personal 
representative,  if  he  was  appointed  in  this  state,  with  the  con- 
sent of  the  court  making  such  appointment,  may,  at  any  time, 

5  §  10770  G.  C.  tim  in  the  interim,  which  are  for 

The  action  must  be  brought  with-  the  benefit   of  the   estate,    applies, 

in  two  years,  and  if  no  administra-  See  80  0.  S.  27,  for  further  matter 

tor   is   appointed  within  that  time  aflfecting  this  case, 

the   action   is  barred.     The  benefi-  The  mere  fact  that  the  beneficiary 

claries  have  the  appointment  or  non-  is  a  nonresident  does  not  affect  the 

appointment    within    their    control.  right  of  tlie  administrator  to  bring 

Archdeacon    vs.    Gas    Co.,    15    Dec.  action.     Eailroad  vs.  Taylor,  73  0. 

585;  16  Dec.  775;  reversed,  76  0.  S.  S.  115. 

97.  The  limitation  providing  that  the 

Query:    Suppose  the  beneficiaries  action  must  be  brought  within  two 

are  all  minors,  then  what?    3  N.  P.  years  is  a  part  of  the  right  of  action 

(N.S.)  606.  itself  and  not  part  of  the  remedy 

The    general    rule   that   the    due  and  is  not  within  the  saving  clause 

qualification  of  an  administrator  re-  of   §  11233   G.  C.     Collins  vs.  Ry., 

lates  back  to  the  time  of  his  ap-  22  Dec.  245. 
pointment  as  regards  acts  done  by 


§  537  ACTION  FOR  WRONGFUL  DEATH  462 

before  or  after  the  commencement  of  the  suit,  settle  with  the 
defendant  the  amount  to  be  paid. 

Apportiomnent  among  beneficiaries.    "The  amount  received 

by  such  personal  representative,  whether  by  settlement,  or  other- 
wise, shall  be  apportioned  among  the  beneficiaries,  unless  ad- 
justed between  themselves,  by  the  court  making  the  appointment, 
in  such  manner  as  shall  be  fair  and  equitable,  having  reference 
to  the  age  and  condition  of  such  beneficiaries  and  the  laws  of 
descent  and  distribution  of  personal  estates  left  by  persons  dying 
in  this  state."     [R.  S.  §  6135;  103  v.  116.] « 


§537.    Settlement,  etc. 

It  will  be  observed  from  the  preceding  section,  that  the  ad- 
ministrator must  bring  the  action,  and  that  he  must  bring  it 
for  the  exclusive  benefit  of  the  wife,  husband  and  children,  etc., 
and,  therefore,  generally  speaking,  whatever  he  may  recover,  is 
not  assets  of  the  estate.'' 

But  the  administrator  is  liable  for  the  misapplication  of  such 
funds  to  the  person  for  whose  benefit  the  suit  was  brought.^ 

It  is  further  to  be  observed  that  the  jury  can  not  give  damages 
to  exceed  $10,000.  Some  have  thought,  and  the  wording  of  the 
statute  gives  support  to  such  idea,  that  the  jury  should  appor- 
tion the  damages  among  those  entitled  to  the  same.     But  the 

6  §  10772  G.  C.  At  arriving  at  the  total,  the  jury 

The  action  can  not  be  maintained  should   consider   the   pecuniary    in- 

by  any   one  but   an  administrator.  jury    to    each    separate    beneficiary. 

Weidner  vs.  Rankin,  26  0.  S.  522.  B.  &  0.  Ry.  vs.  Hottman,  1   C.  C. 

May  include  parent.     Burnett  vs.  (N.S.)    17;    15   Cir.  D.   140;    25  0. 

Coal  Mine,  21  0.  C.  C.   (N.S.)  492;  C.  C.   140;    affirmed,  70  0.   S.  475. 

3  App.  469.  The    Probate    Court   has    plenary 

Does    not    include    adopting    par- '  powers  to  determine  all  matters  re- 

ents,  if  they  are  neither  heirs  nor  lating  to  distribution.     Cin.  Tract. 

distributees.    Boswell  vs.  L.  S.  Elec,  Co.  vs.  Roam,  16  Dec.  101;  3  0.  L. 

R.  R.,  22  0.  C.  C.  (N.S.)  251;  35  0.  R.  36. 

C  C.  522.  Where  an  action  is  commenced  in 

Held   to   mean   adopting   parents  time,  the  mere  fact  that  by  amend- 

and  adopted  children.     Ransom  vs.  ment    of   pleadings,   etc.,   it   is    not 

N.  Y.  C.  &  St.  L.  R.  R.,  99  0.  S.  tried    until    after,    is    no    defense. 

223.  Archdeacon   vs.   Gas    Co.,   3   N.    P. 

'Steel  vs.  Kurtz,  28  0.  S.  191.  (N.S.)    45;    15  Low.  D.  585;   1  Ho- 

8  Perry  vs.  Carmichael,  95  111.  519.  sea,  262;   affirmed,  3  X.  P.    (X.S.) 

sWhittaker's    Code    Forms,    493;  606;    16  Low.  D.  775;   reversed,  76 

Wolf  vs.  Ry.  Co.,  55  0.  S.  517.  0.  S.  97. 


462a  SETTLEMENT  §  537 

better  opinion  seems  to  be  that  tlie  verdict  should  be  in  gross.® 
The  action  must  also  be  brought  within  two  years  from  the 
death  of  the  party,  and  it  further  provides  that  if  the  appoint- 
ment was  made  in  this  State,  the  court  making  the  appointment 
may  authorize  a  settlement  of  the  claim,  either  before  or  after 
the  suit.  The  object  and  purpose  of  having  the  court  to  authorize 
a  settlement  may  be  two-fold.  First,  it  is  to  protect  the  repre- 
sentatives from  what  might  be  considered  an  injudicious  settle- 
ment. The  second,  and  the  one  which  seems  ought  to  be  the 
most  important,  but  I  fear  is  least  followed,  is  that  the  court 
should  not  permit  a  settlement  to  be  made  unless,  under  all  the 
circumstances,  it  is  one  which  will  result  to  the  best  interest  of 
those  beneficially  interested.  I  fear  the  practice  is  too  common 
among  Probate  Judges  to  grant  an  application  for  settlement  in 
a  pro  forma,  manner.  "Where  the  parties  beneficially  interested 
are  all  adults  and  able  and  competent  to  judge  for  themselves, 
the  court  would  be  justified  in  following  their  desire.  But  too 
often  weak  widows,  minors,  and  persons  in  distress,  may  be 
influenced  by  powerful  corporations  to  accept  compromises 
which  the  court  ought  not  to  allow.^° 

Shortly  after  the  issue  of  the  first  edition  the  author  received 
a  letter  complaining  that  this  might  be  construed  as  an  unjust 
reflection  upon  corporations,  etc.  It  was  not  particularly  so 
intended,  but  sometimes  it  has  been  a  race  between  the  ambu- 
lance chaser  and  the  corporation  as  to  which  could  get  the  ear 
of  the  parties  in  interest,  and  make  the  best  settlement  possible 
for  themselves.  In  justice  to  many  corporations  it  is  but  proper 
to  say  they  are  always  ready  to  make  fair  and  just  settlements. 
Yet  if  the  rule  is  to  hold,  that  the  judge  can  not  vacate  an  order 

10  Where  suit  is  brought,  and  set-  administrator  or  beneficiary  will  not 

tlement  made  without  the   consent  be  binding  upon  other  beneficiaries, 

of   the   attorney  bringing   the  suit,  unless     approved    by    the    Probate 

where  the  R.  E.  is  notified  tliat  the  Court.      Where    the    deceased    was 

attorney  has  a  lien  on  the  amount  thirty-three  years  old,  in  full  vigor 

recovered,  suit  might  be  maintained  of  manhood,  and  able  to  earn  from 

by  the  attorney  against  the  adminis-  $75  to  $100  per  month  as  a  loco- 

trator    in   her    individual    capacity,  motive  fireman,  a  verdict  of  $5,500 

but  not   in   her   representative   ca-  is  not  an  excessive  verdict.     B.  & 

pacity,  and  the  R.  R.     Hurd  vs.  P.  0.  R.  R.  vs.  Hottman,  1  C.  C.  (X.S.) 

Ry.,  4  N.  P.  404;  6  Dec.  545.  17;  15  Cir.  D.  140;  25  0.  C.  C.  140; 

A  settlement  made  by  either  an  affirmed,  70  0.  S.  475. 


§537 


ACTIONS    FOR   WRONGFUL   DEATH 


462b 


after  it  is  made,  it  will  be  seen  how  important  it  is  that  the  judge 
fully  investigates  the  matter  before  the   order  is  approved.^"* 


lOsL.  Example  of  damages  alloiced. 
$9,000  is  not  excessive  for  a  student 
of  mining  engineering,  twenty-two 
years  old,  permanently  injured  in 
the  spine,  leg  and  ankle  crushed, 
knee  injured,  nervous  system  shat- 
tered, and  he  will  be  prevented  from 
following  his  chosen  vocation  (af- 
firmed, no  report,  84  0.  S.  443,  the 
errors  alleged  not  being  prejudicial ) . 
Lake  Shore  Elec.  Ry.  vs.  Mills,  16 
C.  C.   (KS.)   62. 

$3,500  is  excessive  where  there  is 
no  proof  of  being  permanently  crip- 
pled in  any  manifest  way  or  im- 
pairment of  general  health  or  in- 
capacity to  perform  duties,  iLake 
Shore  Elec.  Ry.  vs.  Gatens,  18  C. 
C.   (X.S.)    173. 

$7,000  is  an  excessive  verdict  for 
permanent  injuries  to  a  driver  but 
which  do  not  unfit  him  for  his  ac- 
customed work,  and  it  is  doubtful 
whether  defendant  is  liable  at  all. 
Greve  vs.  Cinti.  Traction  Co.,  15 
N.  P.   (N.S.)  289. 

$10,000  for  the  loss  of  a  leg  of 
a  fourteen-year-old  boy  is  excessive 
and  either  a  remittitur  to  $7,500 
or  a  reversal  must  be  accepted 
(below,  18  N.  P.  (X.S.)  409). 
Cinti.  Trac.  Co.  vs.  Wynne,  25  C. 
C.   (N.S.)  49. 

$500  for  forcible  ejection  from  a 
street  car  is  excessive  where  there 
was  no  bodily  injury  or  malice  or 
ill-will  or  a  studied  evasion  of  fran- 
chise obligations.  Northern  Ohio 
Trac.  &  Lt.  Co.  vs.  Peterson,  18  C. 
C.  (N.S.)   242. 

$1,800  (reduced  from  $2,500  by 
the  trial  court)  is  not  excessive  for 
the  death  of  a  child  five  years  old. 
The  jury  not  having  found  the 
mother,  a  beneficiary,  negligent,  and 
the    father,    the    other    beneficiary, 


having  deserted  the  mother  and 
child.  Campbell  vs.  Tarr,  18  C.  C. 
(N.S.)  323. 

$1,400  is  not  excessive  for  an 
employe  crippled  for  life  with  the 
certainty  that  he  will  always  sufifer 
pain  and  can  not  do  any  manual 
work  without  a  steel  brace  on  his 
leg.  McWeeny  vs.  Standard  Boiler 
&  Plate  Co.,  11  O.  L.  R.  418. 

$5,000  held  not  excessive  where 
part  of  a  girl's  scalp  was  torn  off 
by  an  unprotected  shaft.  Holland 
Gold  Pen  Co.  vs.  Juengling,  21  C.  C. 
(N.S.)    593;   2  App.  20. 

$8,500  to  an  employee,  a  trolley 
repairer,  thirty-seven  years  old,  in 
good  health  and  receiving  fair 
wages,  who,  by  collision,  was  perma- 
nently disabled  from  doing  manual 
labor,  and  both  ankles  were  fractured 
and  the  bones  grown  together  so 
that  he  can  not  walk  without  great 
pain,  can  not  be  held  so  excessive 
as  to  show  passion  or  prejudice  in 
the  jury.  Mansfield  Ry.,  Lt.  & 
Power  Co.  vs.  Barr,  19  C.  C.  (N.S.) 
466;   2  App.  367. 

$5,400  for  the  death  of  a  driver 
of  a  milk  wagon  thirty-eight  years 
old,  in  perfect  health  and  earning 
$20  a  month  and  board,  and  leaving 
a  wife  and  two  small  children,  is 
not  excessive.  C,  H.  &  D.  Ry.  vs. 
Buxton,  20  C.  C.  (N.S.)  22;  3  App. 
298  (affirmed,  no  report,  91  0.  S. 
423). 

$7,000  is  not  excessive  foy  caus- 
ing the  death  of  a  vigorous,  in- 
dustrious, temperate  and  thrifty 
man  of  twenty-six  years,  whose 
survivors  were  his  parents  and  ten 
brothers  and  sisters,  to  whose  sup- 
port he  contributed.  Ohio  Traction 
Co.  vs.  Flynn,  26  C.  C.  (N.S.)   250. 


463  APPLICATION  §  538 

§  538.     Application. 

The  executor  or  administrator,  liaving  thoroughly  investi- 
gated the  matter  and  having  arrived  at  a  basis  of  settlement 
with  the  opposition,  should  then  make  his  application,  which 
may  be  in  the  following  form : 

{Title.) 

Now  comes  A.  B.,  administrator  of  C.  D.,  and  represents  to  the  Court 
that  he  has  made  a  claim  for  damages  against  (here  mention  the  name 
of  the  person  or  corporation  causing  death),  for  causing  the  death  of  the 
said  C.  D.     That   the  said    (here   mention   party)    proposes   to    settle   said 

claim  for  the  sum  of dollars,  and  that  suit  has  been 

brought  thereon,   in  the  Court  of  Common   Pleas,  of 

county.  (Here,  if  no  suit  has  been  biought,  so  state.)  And  said  defendant 
agrees,  in  addition  to  the  above  sum,  to  pay  the  costs  of  said  action. 

Said  A.  B.  further  says  that  he  believes  that  it  would  be  for  the  best 
Intel  est  of  those  beneficially  interested  to  accept  said  proposition  for  settle- 
ment.    Wherefore  he  a^ks  authority  of  this  Court  to  make  such  settlement. 


Sworn  to  and  subscribed  before  me  and  in  mv  presence  this day  of 

191 


§  539.     Entry  allowing. 

{Title.) 

This  day  this  cause  came  on  to  be  heard,  upon  the  application  of  A.  B., 
administrator  of  C.  D.,  for  authority  to  settle  a  claim  for  damages  against 
(here  state  name  of  party  against).  And  it  appearing  to  the  Court  that 
it  would  be  to  the  best  interest  of  the  parties  beneficially  entitled  to  said 
claim,  it  is  hereby  ordered  that  the  said  A.  B.  be  authorized  to  make  said 
settlement,  and  the  Court  hereby  consents  to  the  same  in  full  satisfaction 
of  al'  claims  and  demands  against  the  said  party  defendant,  by  reason  of 
the  death  of  the  said  decedent.iob 

§  540.     Report  of  settlement. 

The  administrator,  having  made  a  settlement  with  the  party, 
should  tile  a  report  of  his  doings  in  the  Court,  which  report  may 
be  as  follows : 


(Title.) 

Now  comes  A.  B.,  administrator  of  'C.  D.,  and  respectfully  represents  to 
the  Courtj  that  in  accordance  with  tlie  former  order  of  the  Court,   he  has 

settled  the  claim   against    ,  and   received  therefor   the 

sum   of dollars. 

Ill  further  represents  to  the  Court  that  said  C.  D.  died  leaving  E.  F.,  a 

widow,  and  G.  H.,  I.  J.,  minor  children,  aged  respectively and 

year.-  (Here  set  out  the  persons  that  are  entitled  to  have  the  funds 
distributed  to  them.) 

Wl;erefore  he  asks  that  the  Court  will  confirm  said  settlement  and  make 
the  iipportionment  of  the  funds  received  among  the  persons  beneficially 
-.ntitied  theretf). 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this   ....   day  of 
191.... 


lOb  Where     the     application     was  its  power  and  can  not  in  the  future 

made  for  authority  to  .settle  a  claim  vacate  such  order.     Bragg  vs.  Ohio 

and  the  same  was  granted,  it  is  held  Electric  Co.,  31  Dec.  125. 
the    Probate    Court    has    exhausted 


§  54:1  ACTION    FOR    WRONGFUL    DEATH  464 

If  there  lias  been  a  suit  in  the  Court  of  Common  Pleas,  and 
damages  recovered,  the  sum  ought  to  be  reported  to  the  Probate 
Court,  and  an  apportionment  asked,  which  might  be  in  the  loi- 
lowing  forai: 

{Title.) 

Now  comes  A.  B.,  administrator  of  the  estate  of  C.  D.,  and  respectfully 
represents  that  he  brought  an  action  in  the  Court  of  Common  Pleas  of 

county,  against ,  to  recover 

damages  for  the  death  of  said  C.  D. ;   and  that  he 

has  received  in  said  action,  by  virtue  of  the  judgment  of  said  Court,  the 
sum  of dollars. 

And  further  represents  to  the  Covirt  that  (here  state  the  names  of  the 
persons  that  are  entitled  to  the  funds,  their  relation  to  the  deceased,  and,  if 
children,  give  their  ages). 

Wherefore  he  asks  that  said  Court  may  apportion  said  funds  among  the 
said  persons  entitled  thereto,  as  provided  by  law. 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day  of 

190.... 


§  541.     Apportionment. 

The  section  of  the  General  Code  provides^^  that  imless  the 
funds  be  apportioned  among  the  beneficiaries  themselves,  the 
Court  making  the  appointment  shall  apportion  the  same  among 
such  parties  in  such  a  manner  as  shall  be  fair  and  equitable,  hav- 
ing reference  to  the  age  and  condition  of  such  beneficiaries  and 
the  laws  of  descent  and  distribution  of  personal  estates  left  by 
persons  dying  intestate.      To  comply  with  this  law  understand- 

11  The  damages  are  to  be  distrib-  as  to  such  child  than  to  its  matured 

uted  "  by  the  Court  making  the  ap-  brother    or    sister.     The    Court   aiso 

pointment  in  such  manner  as  shall  would    regard    it   as    fair   and   equi- 

be  fair  and  equitable,  having  refer-  table  to  distribute  to   such   child   a 

ence    to    the    age    and    condition    of  sum  proportioned  to  the  loss  by  it 

such   beneficiaries,   and  the   laws   of  sustained,    having    reference    to    its 

descent  and  distribution  of  personal  age  and  condition  as  compared  with 

estate."     It  can  easily  be  seen  that  the  age  and  condition  of  the  other 

a  young  child   in   a  helpless   condi-  beneficiaries. 
tion  would  sustain  a  much  greater  §§  10772-3  G.  C,  §536. 

pecuniary  loss  from  the  death  of  a  Wolf   vs.   Ey.    Co.,   55   0.    S.   537; 

parent  than  its  brother  or  sister  of  Weichin  vs.    Rankin,   26   0.    S.   522. 

mature  years,  and  settled  in  an  am-  The    administrator    must    find    out 

pie    and    comfortable    condition     in  and  is  responsible  for  a  distribution 

life;  and  the  jury  in  making  up  its  to  the  persons  entitled.      See   §330, 

verdict  should  assess  more  damages  Widow's  allowance. 


465  APPOKTIONMENT  §  542 

ingly  may  give  the  Court  some  difficulty,  and  it  may  depend 
upon  the  condition  of  the  other  estate  left  by  the  deceased  how 
this  should  be  apportioned.  If  the  deceased  left  sufficient  other 
personal  property  to  set  off  to  the  widow  her  year's  allowance, 
then,  I  think,  it  would  be  fair  to  distribute  the  money  as  the 
statute  provides  that  personal  property  should  be  distributed. 
That  is,  the  widow  to  receive  one-half  of  the  first  $400  and 
one-third  of  the  remainder;  and  the  balance  to  be  equally  di- 
vided among  the  children.  If,  however,  the  deceased  did  not 
leave  personal  property  or  real  estate  sufficient  to  give  the  widow 
her  year's  allowance,  it  would  be  proper  for  the  Court  to  first 
make  such  an  allowance  to  the  widow,  and  then  to  divide  the  re- 
mainder as  previously  stated.  If  tli©  net  amomit  received  does 
not  exceed  tliat  which  would  ordinarily  be  allowed  to  tlie  widow 
as  her  year's  allowance,  the  entire  amount  might  very  properly 
be  apportioned  to  her.  If  the  deceased  left  minor  children  and 
adult  children,  where  there  is  no  other  property  to  be  distrib- 
uted, the  Court  might  be  justified  in  giving  a  very  large  portion, 
and  in  some  instances  all  of  the  amount  to  the  minors.  At  least 
such  a  smn  might  be  given  to  thein  as  would  maintain  them  in 
the  same  condition  as  the  adult  children  were  maintained  by  the 
deceased  parent  until  they  became  of  age. 

§  542.     Entry  of  apportionment. 

{Title.) 

This  day  this  matter  came  on  to  be  hoard  upon  the  report  heretofore 
filed  in  this  Court,  showing  amount  received  by  said  A.  B.,  as  administrator 

of  C.  D.,  on  his  claim  against for  the  wrongful  death  of 

said  C.  D.  Also  upon  the  application  of  said  administrator  to  apportion 
said  fund  among  the  beneficiaries  entitled  thereto. 

Whereupon  Court  approves  said  report  and  the  action  of  the  adminis- 
trator herein,  and  coming  on  to  apportion  suid  sum  of 

dollars,  among  the  beneficiaries,  finds  that  it  is  fair  and  equitable,  having 
reference  to  the  age  and  condition  of  such  beneficiaries  and  the  laws  of  de- 
scent and  distribution  of  personal  property  left  by  persons  dying  intestate, 
that  said  amount  should  be  apportioned  as  follows: 

First,     The  costs  and  exjienses  should  be  taken  therefrom,  including  the 

commission    of    the    administrator,    amounting    to 

dollars. 

Hecond,     To  the  said   widow  the  sum  of ,  and 

Third,     To (and  here  continue  until  distribution 

is  fully  made)  and  it  is  ordered  that  said  administrator  distribute  said 
fund  in  accordance  herewith. 

The    Probate    Court    lias    plenary  the  amount  in  the  Court  of  Common 

jmwer  to   determine   all   matters    re-  Pleas.      Cin.    Tract.    Co.    vs.    Roam, 

lating  to  distribution.     Tlie  jury  in  3  0.  L.  R.  30;    16  Dec.  101. 
the    action    is    merely    to    determine 


§  643  NOTICE  OF  APPOINTMENT  466 


CHAPTER  XXXI. 

NOTICE  OF  APPOINTMENT. 

§  543  Object  and  purpose  of  notice.        §  548  Cases  where  notice  of  appoint- 
§  544  When  and  how  given.  ment    is    not    given    within 

§  545  Notice  *^^  proper  time,  or  evidence 

".  .  not   perpetuated. 

§  546  Afhdavit  as  evidence  of  notice.       §  549  porm   of   petition,   etc. 
§  647  Proof  of  publication.  §  550  Entry. 

§  551  Liability  for  omission  to  give 
notice. 

§  543.    Object  and  purpose  of  notice  of  appointments* 


It  is  very  often  considered  that  the  provisions  of  our  statute 
requiring  notice  to  be  given  is  merely  for  the  purpose  of  notify- 
ing creditors  to  present  their  claims.  Some  of  the  subsequent 
sections  ^  give  color  to  this  idea  from  the  fact  that  an  administra- 
tor will  not  be  protected  in  making  payment  either  of  claims 
against  the  estate  or  distribution  unless  notice  be  given;  and 
that  the  right  to  present  a  claim  against  the  estate  would  not  be 
barred  at  any  time,  unless  barred  by  the  statute  of  limitations, 
unless  the  executor  or  administrator  complies  with  the  law  in 
giving  notice.  No  doubt  it  is  the  object  and  purpose  of  the 
statute,  in  requiring  notice  to  be  given,  to  notify  the  creditors; 
and  that  the  administrator  or  executor  may  within  a  certain 
length  of  time  thereafter,  distribute  the  proceeds  if  their  claims 
are  not  filed.  But  it  seems  to  the  author,  that  another  wider, 
and  more  significant  purpose,  is,  to  confer  or  rather  to  complete 
the  jurisdiction,  the  court  holds  over  the  administration  of  the 
estate.  It  is  said  and  no  doubt  truthfully,  that  the  proceedings 
in  a  Probate  Court  in  the  administration  of  an  estate  are  pro- 

1  §  10741  G.  C,  §667;    §10746  G.  Formerly    the    notice    was    to    be 

C,  §  613.  given  bj-  the  administrator  or  execu- 

•  Cited,  79  0.  S.  104;  82  0.  S.  51.       tor,  now  it  is  given  by  the  Probate 

Judge. 


467  OBJECT   AND   PURPOSE  §  543 

ceedings  in  rem  and  not  in  personam.  But  granting  that  the 
proceeding  is  in  rem,  still,  there  are  certain  things  necessary  to 
give  the  court  full  and  complete  jurisdiction ;  such  jurisdiction, 
that  thereafter  it  can  make  such  orders  as  it  deems  just  and 
proper  in  the  administration  of  the  estate,  without  giving  special 
notice  to  anyone.  Generally,  when  speaking  about  jurisdiction 
acquired  in  proceedings  in  rem,,  the  fact  that  some  kind  of  notice 
is  given,  is  always  included.  Thus  our  Supreme  Court  in  speak- 
ing of  the  distinction  between  action  in  rem  and  in  personam, 
say:  "A  proceeding  brought  to  determine  the  status  of  the 
thing  itself,  the  particular  thing,  and  which  is  confined  to  the 
subject-matter  in  specie,  is  in  rem,  the  judgment  being  intended 
to  determine  the  state  or  condition,  and  ipso  facto,  to  render  the 
thing  what  the  judgment  declares  it  to  be,  while  a  proceeding 
which  seeks  the  recovery  of  a  personal  judgment  is  in  personam. 
In  the  former,  process  may  be  served  on  the  thing  itself,  and  by 
such  service  and  making  proclamation,  the  court  is  authorized 
to  decide  upon  it  without  other  notice  to  persons,  all  the  world 
being  parties ;  while  in  the  latter,  in  order  to  give  the  Court 
power  to  adjudge,  there  must  be  service  upon  those  whose 
rights  are  sought  to  be  affected."  ^ 

Woerner  also  says  ^  "  That  only  is  a  proceeding  in  rem  in 
which  the  process  is  to  be  served  on  the  thing  itself,  and  the 
mere  possession  of  the  thing  itself,  by  the  service  of  the 
process  and  making  proclamation,  authorizes  the  Court  to  de- 
cide upon  it  -without  notice  to  any  individual  whatever.  To 
constitute  a  probate  proceeding  a  proceeding  in  rem,  says  Mr. 
Waples  in  his  recent  work  on  proceedings  in  rem,  it  ^  must 
possess  all  the  characteristics  and  embrace  all  the  requisites  of 
that  form  of  action.'  "  * 

It  follows,  that  possession  of  the  thing  (custody  of  the  res) 
is  one  of  the  essential  conditions  of  jurisdiction  over  the  thing. 

2  Cross  vs.  Armstrong,  44  O.  S.  paramount'  can  be  evolved  from  pro 
024.  hate    proceedings."       Waples,    Proc. 

3  Woerner  on  Admin.  337.  In  r'^ni,  §  563. 

■*  "There    must    be    a   res,    custody  But  the  fact  that  the  proceedings 

of  the  res,  right  to  proceed  against  are   in   revi   will    not   dispense   with 

it,    a    competent    forum,    allegations  notice    where    the    act    done    is    one 

equivalent  to  an  information,  notice  that,    as   reasonable   construction    of 

to  all  interested,  a  lie'aring,  a  finding  the  statute,  will  require  that  notice 

of  facts,  an  order,  judgment  or  de-  be    given.      Thus    the    court    cannot 

cree,  a   sale,  and   a   confirmation   or  pass  upon  a  claim  for  extra  services 

liomologation,   before   the   'new    title  of  an  administrator  without  notice. 


§  544  NOTICE   OP   APPOINTMENT  468 

Every  other  requisite  may  be  conceded;  and  if  executors  and 
administrators  be  looked  upon  as  officers  of  the  court,  so  that 
possession  by  them  may  be  considered  possession  by  the  court, 
the  disposition  of  personal  property  by  order  or  judgment  of 
the  Probate  Court  is  clearly  a  proceeding  in  rem.  The  law 
vests  title  to  all  personal  property  of  a  decedent  in  his  executor 
or  administrator  and  requires  the  latter  to  notify  "all  the 
world,"  by  publication,  of  his  assumption  of  the  office — a  pro- 
ceeding constituting  the  notice,  monition,  or  proclamation  re- 
quired to  obtain  jurisdictoin  in  remJ' 

If  this  view  is  the  true  object  and  purpose  of  the  notice  to 
be  given  by  the  administrator  or  executor,  it  will  be  seen  that 
no  esiate  can  safely  be  administered  without  such  notice  being 
given.  For  no  one  interested  in  the  estate  would  be  bound  by 
any  action  taken  by  the  Probate  Court,  unless  it  would  be  in 
some  instances  in  which  his  own  conduct  might  estop  him.  It, 
therefore,  becomes  the  first  duty  an  executor  or  administrater 
ought  to  perform  after  he  has  received  his  letters.® 

§544.  When  and  how  given.  "Within  one  month  after 
bond  has  'been  given  by  the  executor,  or  administrator,  for  the 
discharge  of  his  trust,  the  probate  judge  shall  cause  notice  of 
the  appointment  to  be  published  in  some  newspaper  of  general 
circulation  in  the  county,  in  which  the  letters  were  issued,  for 
three  consecutive  weeks."     [H.  S.  §  6088;  102  v.  202.]^ 

This  notice  is  generally  given  when  that    administrators    and    executors 

the  application   is   filed.     McMahon  are  somewhat  careless  in  attending 

vs.  Ambach,  79  O.  S.  103.  to  this  important  duty.     A  practice 

See  In  re  Ferguson,  6  N.  P.  (N.S.)  has  been  adopted  by  some  of  the  Pro- 

417-18;   81  0.  S.  58;   Low.  D.  374;  bate   Courts,    and    which    acts    very 

affirmed,  no  report.  efficiently.     Under  that  practice  the 

5  On  the  contrary,  the  legislature  court  attends  .  to  this  duty  and 
have  a  right  to  say  that  when  the  charges  it  up  with  the  costs  of  the 
owner  dies  the  court  shall  seize  his  case.  This  view  now  embodied  in 
property,  and  by  constructive  notice  statute. 

compel  all  claimants  to  appear  or  be  See  §  668    Notice  of  demands. 

barred.      It    is   a   case   where   it    is  ">  ^  10712  G.   C. 

proper   for   the   court   to    seize   the  Where    no    bond    is    required    the 

rem,    and    by    constructive    notice,  statute  of  limitations  begins  to  run 

make     the     whole     world     parties.  from  the  time  notice  of  appointment 

Where    all    the    world    are    in    fact  is  made.     Grant  vs.  Baldwin,  89  0. 

proper  or  necessary  parties,  the  doc-  S.    413. 

trine  of  due  process  of  law  does  not  If    this    notice    is   not   given    the 

prevent  the  legislature  from  adopt-  limitations   provided  by    §  10722   G. 

Ing    a    more    appropriate,    adequate  C,    §  609,    will    not   avail    as    a   de- 

and     complete     remedy     than     that  fense     against     an     action     brought 

known  to  the  common  law.    McNa-  more  than  six  months  after  rejection 

mara  vs.  Casserly,  61  Minn.  335-343.  of  the  claim.     Croxton   ^Mining   Co. 

6  Experience      has      demonstrated  vs.  Hubbard,  28  0.  C.  C,  249. 


469  AFFIDAVIT,   ETC.  §  545 

An  administrator  de  honis  non  must  give  notice  of  his  ap- 
pointment in  the  same  manner  as  an  original  administrator  or 
executor.^ 

§  545.     Notice. 

The  statute  does  not  indicate  what  the  notice  should  contain. 
So  far  as  giving  notice  to  creditors  is  concerned,  it  was  held 
that  the  following  was  a  sufficient  notice : 

All  persons  indebted  to  the  estate  of late  of 

township,    county,   deceased,   are 

hereby  notified  to  come  forward  and  make  payment  immediately ;   and  all 
persons   having   claims   against    said    estate    are   notified   to    present    them, 
properly  authenticated,  for  settlement  within  six  months  from  this  date.9 
(date) 


It  has  been  held  that  notice  of  such  appointment  could  not 
be  legally  advertised  in  a  paper  other  than  one  printed  in  the 
English  language.^" 

The  following  is  a  usual  form : 

LEGAL  NOTICE. 

has   been    duly   appointed   executor     (or    administrator) 

of  the  last  will  and  testament  of  the  estate  of  C.  D.,  late  of 

,    deceased.** 


It  might  be  well  in  giving  this  notice  to  call  creditors'  atten- 
tion particularly  to  the  fact.  Something  of  this  nature  might 
be  added:  "All  persons  indebted  to  the  estate  are  requested 
to  make  immediate  payment,  and  those  having  claims  against 
the  estate  will  present  their  claims,  duly  authenticated  for  set- 
tlement, within,"  etc. 

§546.  Affidavit  as  evidence  of  notice.  "An  affidavit  of  the 
publisher  or  agent  of  the  newspaper  making  such  publication 
made,  filed  and  recorded,  together  with  a  copy  of  the  notice, 
in  the  probate  court,  within  six  months  after  bond  has  been 
given,  shall  be  admitted  as  evidence  of  the  time,  place  and 
manner  in  which  notice  was  given. ' '     [E.  S.  §  6089  ;  102  v  202.  ]  ^^ 

8  §  107.57  G.  C,  §  621.  uating  the  evidence  that  such  notice 
8*  Under      present      statute      this       was  given,   and   for  the  convenience 

should    be    signed    by    the    probate  and  protection  of  the  administrator, 

judge.  The  filing  forms  no  part  of  the  notice 

9  Gilbert  vs.  Little,  2  O.  S.  loC).  and   is   not   for   the   benefit  of  cred- 
it Kingwald's  Estate,  5  N.  P.  4!)6 ;  itors,  the  mere  fact  that  the  notice 

')  Dec.  4.52.  was  not  filed,  if  actually  given,  will 

11  §  10713  G.  C.  not  change  a  creditor's  rights.     Au- 

The    filing    of    the    notice  in    the       drey  vs.  Shell,  77   0.  S.  218. 

Probate  Court  is  a  mode  of  perpet- 


§  547  NOTICE    OF    APPOINTMENT  470 

§  547.     Proof  of  publication. 

It  is  not  only  important  to  the  administrator  or  executor  that 
notice  be  given,  but  equally  important  that  the  evidence  of  such 
notice  be  perpetuated  in  the  Probate  Court;  and  it  is  for  that 
purpose  that  the  provisions  of  the  above  section  was  enacted  into 
law.     The  affidavit  may  be  in  the  following  form: 

State  of   Ohio, county,   ss. 

Personally  appeared  before  me,  a  notary  public  in  and  for 

county,    for   the  publishers   of    ( naming 

newspaper)    who,  being  duly   sworn  says  that  the  annexed   advertisement 

was    published    in    the ,    a    newspaper    printed    and    of 

general  circulation  in  said  county  for  three  consecutive  weeks,  commenc- 
ing upon  the day  of 190 .  .  . ,  and  that  each  in- 
sertion  was   upon day.      (If   the   newspaper   has   also   a   daily 

edition,  add.)  Affiant  further  says  that  a  daily  and  weekly  edition  of 
said  newspaper  is  published,  and  that  the  circulation  of  the  daily  in  this 
county  exceeds  that  of  the  weekly,  and  that  the  cost  of  publication  in  the 
daily  does  not  exceed  that  of  the  weekly. 

Sworn  to  and  subscribed   before  me  this day  of 

A.  D.  190.... 


Notary   Public   in   and   for county,   Ohio. 

§  548.  Cases  where  notice  of  appointment  is  not  given  within 
the  proper  time  or  evidence  not  perpetuated.  "If  notice  be 
not  given  of  the  appointment  of  an  executor  or  of  an  original 
administrator  or  administrator  de  bonis  non,  within  the  one 
month  prescribed  for  that  purpose,  or  the  evidence  thereof  be 
not  perpetuated  as  hereinbefore  provided,  and  cannot  be  made, 
on  the  petition  of  the  executor  or  administrator  the  court  may 
order  such  notice  to  be  given  at  any  time  afterward,  in  which 
case  such  eighteen  months  ana  other  periods  of  time,  limited 
for  the  commencement  of  actions  against  executors  and  admin- 
istrators, and  for  other  purposes,  and  which  begin  to  run  from 
the  date  of  the  administration  bond,  shall  begin  to  run  respec- 
tively from  the  time  such  order  of  court  is  made,  if  notice  be 
published  in  accordance  therewith."  [R.  S.  §  6126;  vol.  102 
V.  203.]  12 

§  549.     Form  of  petition,  etc. 

It  is  the  object  and  purpose  of  the  above  section  that  if  for 
any  cause  an  administrator  or  executor  or  other  person  required 
to  give  notice,  fails  to  do  so,  or  having  given  notice  fails  to  file 

12  §  107G0  G.  C. 


471  FAILURE    TO    GIVE  §  550 

the  proper  evidence,  showing  that  such  notice  was  given,  he  may 
by  permission  of  Court  at  any  time  when  it  is  discovered  that 
the  statute  has  not  been  complied  with,  give  proper  notice. 
The  petition  may  be  in  the  following  form: 

{Title.) 

A.  B.,  administrator  (or  executor)  of  the  estate  of  C.  D.,  deceased,  re- 
spectfully represents  to  the  Court,  that  (here  state  for  what  reason  proper 
was  not  given)  he  failed  to  give  the  notice  of  his  appointment  within  the 
time  limited  by  law  for  that  purpose.  Wherefore  he  asks  that  he  may 
oe  authorized  to  give  said  notice  and  file  the  same  and  the  affidavit  to  its 
publication  in  this  Court  as  he  could  have  done  in  the  first  instance. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this day 

jf ,   190..  .. 

§  550.     Entry. 
(Title.) 

This  day  this  matter  came  on  to  be  heard,  upon  the  application  of  A.  B., 
for  authority  of  this  Court  to  give  notice  of  his  appointment  as  such  ad- 
ministrator (or  executor).  And  it  appearing  to  the  Court  that  the  alle- 
gations of  said  petition  are  true,  leave  is  hereby  granted  to  said  A.  B. 
to  give  notice  of  his  appointment  as  required  by  law.i3 

g  551.  Liability  for  omission  to  give  notice.  ' '  No  order  of 
court,  made  by  virtue  of  the  next  preceding  section,  shall  exempt 
the  executor  or  administrator,  or  their  respective  sureties,  from 
liability  for  damages  for  which  they  would  otherwise  be  liable, 
by  reason  of  the  omission  to  give  notice  within  such  three 
months."     [R.  S.  §  6127.]  ^* 

It  will  be  observed  that  under  the  provisions  of  sec.  10642  G.  C. 
(§  369)  that  the  time  limited  for  the  commencement  of  actions, 
presentment  of  claims,  etc,  shall  commence  to  run  not  from 
the  date  that  the  administrator  has  given  his  bond,  but  shall 
begin  to  run  from  the  time  that  the  order  of  the  Court  is  made, 
and  if  in  such  instances  the  extension  of  time  would  work  in- 
juriously to  the  estate,  the  administrator  would  be  responsible. 

13  Such  an  order  would  act  retro-  n  §  10761  G.  G. 

actively,    and   validate   all    previous 
acts. 


§  552  PKESENTATION  OF  CLAIMS  472 

CHAPTER  XXXII. 

PRESENTATION  AND  REJECTION  OF  CLAIMS. 

§  552    Object  and   purpose.  §  561a  Action  against  administrator 

§  553     What  must   be   presented.  or   executor. 

§  554     What  need  not  be  presented.  §  561b  Notice. 

§  555     Sufficient    presentation.  §  562  Comments. 

§  556     When    waived.  §  563  Requisition  to  reject  a  claim. 

§  557     Authentication   of   proof.  §  564  Bond,   etc. 

§  557a  Satisfactory    voucher,    etc.  §  565  Entry    ordering    notice. 

§  558     When  not  required.  §  566  Form   of    notice,   etc. 

§  559     Allowance  of  a  claim.  §  567  Action  on  real  estate  stayed. 

§  560     Rejection   of   a   claim.  §  568  How  action  brought. 

§  561  When  claim  shall  be  rejected 
at  instance  of  heir  or  cred- 
itor. 

§  552.     Object  and  purpose.* 

A  person  appointed  administrator  or  executor  of  a  deceased 
person's  estate  is  not  presumed  to  know  of  tlie  existence  of 
claims  against  the  estate-,  or  if  he  does  know  of  their  existence, 
he  is  not  presumed  to  know  their  amount  or  their  justness. 
For  this  reason  the  law  requires  that  creditors  shall  pr^ent 
their  claims  to  the  administrator  or  executor  for  allowance; 
but  before  the  executor  or  administrator  can  insist  on  the  cred- 
itor's complying  with  this  provision,  he  must  first  have  com- 
plied with  the  law  himself  in  having  given  the  notice  required 
in  the  previous  chapter.  The  claims  should  be  presented  so 
that  the  administrator  or  executor  can  examine  their  validity, 
and  if  he  finds  thein  just,  to  save  the  expense,  costs,  and 
trouble  of  litigation.  The  law  expects  the  creditor  to  be 
diligent  about  this  matter,  and  Avhile  the  statute  nowhere  ex- 
pressly commands  him  to  present  his  claim,  yet  it  places  him  in 
danger  of  losing  the  same  if  he  does  not  present  it.  If  he  fails 
to  present  it  for  six  months  after  the  executor  or  administrator 
has  given  notice  of  his  appointment,  the  administrator  or  exec- 
utor may  proceed  to  pay  the  debts  due  from  the  estate,  and  in 
eighteen  months  he  may  distribute  to  the  heirs,  and  he  would 
not  be  liable  to  any  creditor  who  has  failed  to  present  his  claim, 
although  the  remaining  estate  should  not  be  sufficient  to  pay 
such  neglectful  creditor.^ 

♦  Cited  Bray  vs.  Darby,  82  0.  S.  November  21,  1011.  85  0.  S.,  as  to 
51.  eighteen  months  limitation. 

See  Harris  vs.  O'Connell,  decided  See  S  608,  note. 

1  §  10741  G.  C,  §  667. 


473  OBJECT  AND  PURPOSE  §  552 

Where  the  claim  of  the  creditor  is  due,  he  must  present  it 
within  eighteen  months  trom  the  date  of  the  administration 
bond  where  the  administrator  or  executor  has  given  notice  of 
his  appointment.-  Whether  or  not  in  such  a  case,  if  a  creditor 
fail  to  present  his  claim,  he  might  proceed  against  the  heirs,  is 
undecided,  but  if  a  good  excuse  could  be  shown,  his  claim  could 
be  enforced  in  equity  against  heirs  receiving  assets  from  the 
estate,-^  If  his  claim  was  not  presented  within  six  months  and 
assets  of  the  estate  had  been  distributed,  in  payment  of  debts, 
etc.,  he  would  be  limited  in  any  action  he  might  bring  against 
the  administrator  on  his  claim,  to  the  amount  of  the  assets  re- 
maining in  the  administrator's  or  executor's  hands  unadminis- 
tered  at  the  commencement  of  the  action  and  he  might  be 
deprived  of  his  costs.^ 

The  creditor  is  absolutely  barred  of  his  right  of  action  against 
the  estate  when  he  presents  his  claim  and  the  same  is  disputed 
or  rejected  and  he  neglects  to  bring  a  suit  on  such  a  claim  within 
six  months  from  the  time  of  its  rejection  or  dispute.* 

While  the  creditor  should  be  diligent  in  presenting  his  claim 
the  executor  or  administrator  should  likewise  be  diligent  in 
either  allowing  or  rejecting  the  claim.  By  neglect,  the  cred- 
itor may  lose  a  part  or  the  entirety  of  his  claim.  By  inaction 
the  administrator  or  executor  will  prolong  the  administra- 
tion of  the  estate,  and  may  in  that  manner  not  only  injure 
the  rights  of  the  claimant,  but  also  those  beneficially  inter- 
ested in  the  estate.  In  this  chapter  and  the  subsequent  three 
chapters  these  rights'  and  liabilities  will  be  considered,  in  some 

2  §  10746  G.  C,  §  613;   §  10760  G.  eovery  on  his  bond.     The  author  is 

C,   §  548.  inclined  to  doubt  this  in  lieu  of  the 

A  creditor  may  lose  his  claim  by  language  in  Harris  vs.  O'Connell,  85 

laches,  which  is' defined  to  be  such  0.  S.   145. 

neglect  or  omission  to  assert  a  right  If   notice   of   the   appointment   of 

as    taken    in    conjunction    with    the  the  administrator  is  not  given,  the 

lapse    of    time    and    other    circum-  statute  of  limitations  does  not  apply, 

stances,  causes  prejudice  to  the  ad-  Croxton    ]\Iining    Co.    vs.    Hubbard, 

verse  partv.  and  operates  as  a  bar  in  28  0.  C.  C.  249. 

equity.     Kemper       .  B.  &  L.  Assn.,  2a  §  io741  G.  C.,  §  667. 

5   N.   P.    (N.R.)    40.3;    30   O.   C.    C.  3  §  10737  G.  C. 

70;   18  Dee.  484.  If    an    administrator    has    notice 

See  §  584.  where  it  is  said  equity  of  a  claim,   and   exhaust  the   funds 

will  aid  a  creditor.  in  paying  other  claims,  he  will  be 

Cited  Harris  vs.  O'Connell,  85  O.  liable.     In   re  Wakefield,  Goebel,  5. 
S.  145.    See  State  vs.  Schott.  22  Dec.  *  §§  10722-3  G.  C. 
320,  where  it  was  held  that  failure  5  The      statute       of      limitations 
to  present  to  the  administrator  of  a  against  a  claim  for  funeral  expenses 
deceased    county   treasurer    and    de-  does  not  begin  to  run  until  an  ad- 
ceased     bondsmen    within     eighteen  ministrator  is  appointed.    In  re  Geo. 
months   of   the   qualification   of  the  H.  Miller  Estate,  12  Dec.  562. 
administrator,    claims    for    interest  See   §  608,  note, 
illegally     paid     such     treasurer    on  See  8    444,  Statute  of  limitations; 
public  deposit,   does   not  bar   a  re-  §607,  Limitation  of  actions;   §610, 


§  553  PRESENTATION    OF    CLAIMS  474 

instances   the   discussion   of  the   various   sections,   perhaps,    en- 
trenching on  each  other.^ 

§  553.    What  must  be  presented. 

As  a  general  rule  it  may  be  .said  that  any  claim  of  what- 
ever character  may  be  presented  provided  it  existed  against 
the  deceased  in  his  life  time,  and  provided  further  that  it  is 
one  which  survives  him.*'  The  claim  for  services  rendered  after 
the  decedent's  death,  is  against  the  executor  personally  and  not 
against  the  estate.'^ 

Our  statute,  however,  makes  funeral  expenses,  etc.,  debts  of 
the  estate,  and  it  would  seem  that  all  claims,  for  which  the 
executor  is  not  personally  responsible,  must  be  presented,  etc., 
as  required  by  statute.® 

Claims  which  the  executor  or  administrator  is  competent  to 
adjust  and  settle  are  not  confined  to  claims  arising  on  con- 
tract, nor  to  those  cognizable  in  the  Common  Law  Courts.  The 
object  is  to  allow  a  presentation  of  all  claims  against  the  estate 
whether  of  a  legal  or  equitable  nature."  Contingent  liabilities 
for  which  the  estate  is  not  primarily  liable,  upon  which  its 
liability  has  not  been  fixed,  may  be  properly  presented.^" 

A  claim  for  a  deficiency  on  a  mortgage,  foreclosure  or  claim, 
for  which  the  decedent  would  have  been  liable  if  living,  should 
be  provided  for  by  the  executor  or  administrator,  and  hence 
ought  to  be  presented.  All  claims  to  recover  damages  or  negli- 
gence of  an  inn-keeper,  mail-carrier,  surgeon,  attorney,  etc., 
are  in  reality  founded  upon  a  contract,  express  or  implied, 
and  should  be  presented.  This  question  will  be  further  con- 
sidered in  the  next  section,  by  considering  what  kind  of  claima 
need  not  be  presented. 

§  554.    What  need  not  be  presented. 

As  the  law  does  not  require  the  doing  of  an  idle  thing  it 
may  he  said  as  a  general  rule,  that  no  claim  is  required  to  be 

Suit  on  rejected  claims;    §976,  In-  780;    5   0.   L.   R.    102;    affirmed   11 

solvent   estate;    §999,   Presentation  C.  C.   (N.S.)   95. 

of   claims;    §  1628,    Presentation   in  Where    once    allowed    and    after- 
assignments,  wards  disallowed,  the  time  limit  for 
6  Redf.  Sur.  Prac.  521.  bringing  action  dates  from  the  last 
■7  Clark  vs.  Todd.  16  N.  Y.  Supp.  disallowance.     See  Speidel  vs.  Phil- 
491;   Woerner  Admin.   §§759-760.  lips,  78  0.  S.  196.    This  case  distin- 

8  See  §16.30.  See  McClellan  vs.  guished  Harris  vs.  O'Connell.  85  0. 
Filson.  44  0.  S.  184.  In  re  Geo.  H.  S.  — ;  Bray  vs.  Darby.  82  0.  S. 
Miller  Estate.  12  Dec.  562.  47;    Stewart  vs.  MdLaughlin.  47  0. 

9  Hovt  vs.  Bonnett.  50  N.  Y.  538.  S.  555. 

10  Cornes  vs.  Wilkin,  79  N.  Y.  129.  However  the  suit  must  be  brousrht 
See  §  569.  within  the  limited  period  for  brinsing 
Where  a  claim  is  once  presented       actions.     Harris  vs.  O'Connell,  85  O. 

and  allowed,  no  suit  thereon  is  nee-       S.  145. 

essary.     Eicher  vs.   Darby,    17   Dec.  Where  a  person  is  found  guilty  of 


475  WHAT   NOT   BE   PRESENTED  §  554 

presented,  unless  it  is  such  a  claim  that  the  administrator  or 
executor  can  legally  refuse  to  pay.  If  the  character  of  a  claim 
is  such  that  no  action  of  the  administrator  or  executor  can  defeat 
the  validity  of  the  claim,  then  it  would  be  useless  to  present  it, 
so  far  as  affecting  the  legality  of  the  claim  itself  is  concerned. 
But  if  the  claimant  neglect  to  present  his  claim  and  the  admin- 
istrator or  executor  in  ignorance  distribute  all  of  the  assets 
of  the  estate,  at  the  time  provided  by  law,  unquestionably  the 
claimant  would  lose  his  demand.  Thus  a  claim  against  a 
deceased  stockholder  of  an  insolvent  corporation  on  his  statu- 
tory liability,  need  not  be  first  exhibited  to  his  personal  repre- 
sentative for  allowance  or  rejection,  before  suit  is  brought." 

Where  a  judgment  is  a  subsisting  lien  on  the  lands  of  the 
debtor  at  the  time  of  his  death,  it  is  not  necessary  to-  present 
such  a  claim  for  allowance  to  the  personal  representative. ^- 
Neither  is  it  necessary  to  present  a  claim  in  proceedings  to 
revive  an  action.^^  A  claim  for  taxes  need  not  be  presented 
as  it  is  the  duty  of  the  representative  to  pay  the  taxes  and  debts 
chargeable,  with  the  action  of  the  officials  in  reference  thereto.^* 

"Where  a  claim  against  an  estate  has  been  duly  presented  and 

allowed  by  one  administrator,  no  further  allowance  is  required 

by  a  succeeding  administrator.^^    The  claim  of  a  legacy  need  not 

be  presented.^*'     Nor  is  a  claim  of  an  annuity  under  a  will 

one  that  must  be  presented.^^     Whether  a  contingent  claim  on 

a  replevin  bond  need  be  presented  or  not  was  questioned  in 

Daykin  vs.   Emery,^^   and   the   court  rather  placed  it   in  the 

same  category  with  a  stockholder's  liability  of  the   decedent. 

A  claim  by  a  personal  representative  of  a  deceased  executor 

for  debts  paid  by  such  executor  in  administering  the  estate  of 

a  crime  and  sentenced  to  pay  a  fine  i^  Webster  vs.  Bible  Society,  50  O. 

and  dies  before  the  fine  is  paid,  the  S.  12. 

same  is  not  a  debt  or  demand  that  17  Hunt  vs.  Hayes,  19  C.  C.  151; 
can  be  collected  from  decedent's  10  C.  D.  388. 
estate,  Hagan,  J.,  in  Clark  common  18  10  C.  C.  653;  5  C.  D.  121. 
Pleas.  However  in  the  same  case  it  When  a  claim  is  in  suit  and  re- 
was  held  that  the  costs  of  such  ac-  vived  in  the  name  of  the  adminis- 
tion,  was  a  debt  for  which  the  estate  trator  no  presentation  is  necessary, 
was  liable.  Glass  vs.  Buzzard,  33  O.  C.  C.  145, 
Affirmed  by  court  of  Appeals.  14   0.    C.    C.    (N.S.)    427;    affirmed 

11  Hull  vs.  Standard  Coal  &  Iron  85  0.  S.  461. 

Co.,  7  N.  P.  157 ;  7  Dec.  527 ;  Wanz  If   a   guardian  has   rendered   ser- 

V8.  Park  Hotel,  1  C.  C.  Rep.  105;  1  vices  to  an  imbecile  ward,  allowance 

C.  D.  63.  for  services  is  first  to  be  determined 

12  Ambrose  vs.  Byrne,  61  0.  S.  by  the  Probate  Court  settling  the 
146;  William  vs.  Bradley,  5  C.  C.  account,  in  case  of  the  decease  of 
114;  3  C.  P.  61;  7  C.  C.  227;  In  re  the  ward,  and  it  need  not  be  pre- 
Wakefield,  Goebel,  5.  sented   to   his   administrator   to   se- 

13  Musser  vs.  Chase,  20  O.  S.  577.       cure  its  allowance. 

14  Gager  vs.   Prout,  48   0.   S.   80.  Seasongood  vs.  Ingram,  86   0.   S. 

15  Thomas  vs.  Chamberlain,  39  O.       76;  89  0.  S.  460. 
S,  112. 


§  555  PRESENTATION  OF  CLAIMS  476 

his  testator  is  not  a  claim  against  the  deceased/^  but  if  it  is 
sought  to  make  the  estate  liable  it  must  be  presented. 

If  the  executor  is  residuary  legatee  and  gives  bond  under  the 
provisions  of  sees.  10608-9,  G.  C.  (§57),  a  presentation  of  a 
claim  against  the  estate  is  not  necessary  before  suing  on  the 
bond,-"  Setting  aside  a  will  on  contest  five  years  after  its  pro- 
bate, and  thus  annuling  the  letters  to  the  executor  is  no  excuse 
for  not  presenting  a  claim  while  he  was  acting,  and  an  ad- 
ministrator being  appointed,  to  whom  plaintiff  presented  his 
claim  for  the  first  time,  such  claim  is  barred.-^ 

§  555.  Sufficient  presentation. 
"A  literal  compliance  with  the  terms  of  the  statute,"  says  a 
distinguished  author,--  "is  the  only  course  to  secure  absolute 
safety  to  the  creditor,  and  to  relieve  the  administrator  from  the 
perplexing  doubt,  and  even  personal  hazard,  which  may  arise  if 
the  sufficiency  of  the  exhibition  is  not  clearly  apparent.  For, 
however  liberally  disposed  he  may  be  to  waive  technical  de- 
fenses and  to  deal  with  creditors  on  the  basis  of  substantial  jus- 
tice, he  stands  as  the  representative  of  all  creditors  as  well  as 
of  heirs,  legatees,  and  distributees,  whose  technical  rights  he 
is  not  at  liberty  to  disregard.  It  is  by  no  means  easy  to  de- 
termine how  far  literal  compliance  can  be  insisted  on,  to  what 
extent  the  administrator  may  waive  it,  and  from  what  circum- 
stances a  waiver  may  be  presumed.  The  utmost  strictness  is 
essential  where  the  time  of  the  exhibition  of  the  creditor's 
claim  affects  its  priority  over  others.  It  is  obvious  that  the 
administrator  can  exercise  no  discretion  in  such  case,  and 
that  the  sufficiency  of  the  exhibition  can  be  tested  by  the 
statute  alone,  because  whatever  indulgence  is  extended  to  a 
creditor  who  has  not  strictly  complied  with  the  statutory  re- 
quirements in  insolvent  estates  must  result  to  the  injury  of 
others,  who  have  conformed  to  the  law," 

19  Stewart   vs.   O'Donnel,   2   Dem.  --  Woerner  on  Admin.  804. 
17.     See   §  645.  It    is    not   necessary   to   formally 

20  Stevens  vs.  Hartley,  13  0.  S.  present  the  claim,  if  the  holder  of 
525.  However,  it  would  seem  that  the  claim  notifies  the  administrator 
he  should  make  a  demand  on  the  that  he  has  the  claim,  and  is  in- 
legatee,  before  he  is  allowed  to  formed  by  the  administrator  that  he 
maintain    his    action.  need  not  be  in  a  hurry.     If  within  a 

21  Delaplane  vs.  Smith,  38  0.  .S.  reasonable  time  thereafter  the  i 
413.  See  §  1630.  This  is  on  the  ministrator  informs  the  claimant 
ground  that  no  administrator  is  that  the  claim  is  rejected,  unequiv- 
liable  for  any  action  after  eighteen  ocally,  a  suit  must  be  brought  with- 
months  from'  the  time  he  has  given  in  six  months  or  the  claim  will  be 
bond. 


477  SUFFICIENT  PRESENTATION  §  555 

The  presentation  of  a  claim  may  be  considered  in  a  two- 
fold view.  First,  as  to  what  would  be  sufficient  to  place  a 
liability  on  the  executor,  if  he  does  not  consider  it  in  his  pay- 
ments of  the  debts  of  the  estate.  And  second,  as  to  the  re- 
sponsibility thrown  on  tlie  creditor  to  bring  suit  on  his  claim 
within  the  required  time.  As  to  the  first  of  these  I  apprehend 
that  an  executor  or  administrator  might  be  under  some  danger 
in  making  a  distribution,  if  he  has  such  knowledge  of  the  exist- 
ence of  a  claim,  although  it  was  not  formally  presented, 
tliat  his  payment  of  the  debts  of  the  deceased  without  consid- 
ering it  would  be  a  fraud  upon  the  holder."^  Where  the  exec- 
utor or  administrator  knows  of  the  existence  of  a  claim  that 
ought  to  be  presented,  the  better  practice  would  be  to  indi- 
cate to  the  holder  of  the  claim  that  he  ought  to  present  it. 
B[owever,in  the  absence  of  fraud,  it  is  the  duty  of  the  owner 
to  present  thle  claim  without  special  notification  from  the 
executor  or  administrator.^* 

As  to. what  will  be  a  sufficient  presentation  of  a  claim  to 
authorize  or  require  a  creditor  to  sue  thereon  witliin  six  months 
is  a  somewhat  different  matter  and  will  be  again  refen-ed  to, 
sec.  607  et  seq.  Before  suit  can  be  brought  upon  a  claim  it 
must  be  formally  presented,  unless  the  executor  or  adminis- 
trator by  his  acts  shows  that  a  presentation  is  not  necessaiy. 

barred.     An  attorney   may   reject  a  that     all      persons     having     claims 

claim  for  his  client.     Miller  vs.  'Ew-  against  the  decedent  which  they  in- 

ing,  68  O.  S.  17G.  tend  to  enforce  have   presented  the 

23  Bank  vs.  Carpenter,  7  O.  pt.  1,  same  and  demanded  payment  there- 

21-70.  of;    and    if   he   thereafter   distribute 

2'4  "  Therefore    a    creditor    should  the  assets  to  those  entitled  to  them, 

not  rely  upon  the  fact  or  supposed  or  distribute  them  in  a  manner  to 

fact  that  the  executor  or  adminis-  which  they  give  approval   and  con- 

trator   has   knowledge   of   the  exist-  sent,  he  will  not  be  held  accountable 

ence  of  his  claim.     Such  knowledge  for  such  distributed  estate  to  a  cred- 

on  the  part  of  the  executor  or  admin-  itor  who  neither  presented  his  claim 

istrator  of  the  existence  of  a  claim  nor    took   anj'    legal    proceedings    to 

against  the  estate  does  not  avoid  the  collect  it  while  the  funds  were  in  the 

necessity    of    its   due   presentation."  administrator's   hands.      See    O'Cou- 

See  Matter  of  Morton,  7  Misc.  343,  ner  vs.  Gifford,  117  N.  Y.  275,  283; 

citing    Livingston    vs.    Gardner,    4  Erwin  vs.  Loper,  43  N.  Y.  521 ;  Field 

Redf.  516,  and  note.  vs.    Field,    77    N.    Y.    294;    Jessup's 

An    administrator    who    has    con-  Sur.   Pi'ac.   913. 

formed   to   the   requirements   of   the  See  note,   §§552,   668,   557. 

statute  and  has  published  the   pre-  In  re  Wakefield's  Est.,  Goebel  5. 
scribed  notice,  has  a  right  to  assume 


§  556  PKESENTATION  OF  CLAIMS  47S 

Generally  it  may  be  said  that  a  claim  need  not  to  be  presented  in 
any  particular  form  j^rovided  it  be  sufficiently  definite  to  notify 
the  administrator  of  its  character,  and  amount,  and  enable  him 
to  make  provision  for  its  payment.^^ 

The  notice  must  be  actual  and  unmistakable  and  the  claim 
should  be  described  with  such  accuracy  as  to  distinguish  it  from 
all  similar  claims.  Our  statute  contemplates  that  the  claim  be 
made  in  writing*  and  if  it  is  in  the  form  of  an  account,  it 
should  set  forth  each  item  distinctly.  The  creditor  having  a 
claim  against  the  estate  should  be  careful  in  presenting  it 
in  the  proper  time  and  ascertaining  the  disposition  that  the 
executoa"  or  administrator  intends  to  make  of  it.  If  not  pre- 
sented within  eighteen  months  from  date  of  giving  bond  by 
the  executor  or  administrator,  no  action  could  be  maintained 
thereon.-'^ 

§  556.     When  waived. 

While  the  statute  throws  around  the  presentation  of  a  claim, 
proper  formalities,  yet  they  are  not  such  but  what  may  under 
certain  conditions  be  waived.  Thus  wh^ere  an  administrator  has 
not  seen  and  examined  a  claim  against  the  estate  he  represents, 
and  is  subsequently  requested  to  allow"  it,  which  he  refuses  to 
do,  such  claim  being  present  in  the  pocket  of  its  o^vIler,  and 
the  administrator  so  told,  a  fonnal  presentation  of  the  claim 
is  not  neoessaiy,  but  may  be  presumed  to  be-  waived,^^  and  the 
claim  considered  as  presented  and  rejected, 

25  Henderson    vs.    Ilsley,    49    Am,  plaintiff  had   it  in  his  pocket,  and 

Dec.  41;  S.  C.  11  S.  &  M.  (Miss.)   9.  told    the    administrator    he    had    it 

28  §  10746  G.  C,  §  613.  with   him.     If  such  were  the  facts, 

See  §  668,  Notice  of  demands.  of  what  importance  could  it  be,  that 

27  It  is  shown  in  the  bill  of  excep-  the   account    should    be    taken    from 

tions    that    the    administrator    had  the  pocket  and  formally  presented? 

seen   and   examined    the    account   in  The  object  of  the  law  in  requiring 

Marcli,    1858.     The   evidence   tended  the   presentation   of   claims    against 

to   show   that   in   September   follow-  an  estate  to  the  administrator,  is  to 

ing  the  plaintiff  asked  the  adminis-  apprise     him     of     their     existence, 

trator   to  allow  the  account,   which  amount  and  character.      Such  knowl- 

was  refused ;   that  the  account  was  edge  of  this  claim  the  administrator 

not    in    fact    presented,    though    the  had  already  acquired  in  March ;  and 


479  WHEN    WAIVED AUTHENTICATION  §  557 

Where  the  same  person  is  administrator  of  the  creditor 
estate  as  well  as  of  the  debtor  estate,  no  formai  presentativ^n  or 
allowance  of  the  claim  need  be  made."'  However,  if  the  execu- 
tor is  appointed  without  giving  bond,  the  claim  must  be  pre- 
sented within  the  time  limited  by  law  from  the  date  of  his 
giving  notice  of  his  appointment.^"  And  where  a  claim  against 
an  estate  is  of  such  a  character  that  it  could  be  presented  to 
the  administrator  for  allowance  before  suit  can  be  brought 
thereon,  where  the  executor  enters  appearance  in  the  suit  so 
brought  and  proceeds  to  trial  without  objection,  this  amounts 
to  a  waiver,  and  such  waiver  cannot  be  taken  back  by  the 
administrator  when  the  case  comes  on  for  trial.^*^  Where  a 
claim  is  once  allowed  and  the  estate  is  aftei-wards  declared  in- 
solvent, it  need  not  be  again  presented  unless  a  commissioner  of 
insolvency  be  appointed.^^  In  all  actions  brought  against  an 
administrator  or  executor,  it  must  be  proven  that  such  a  claim 
was  presented  and  rejected.^"  A  presentation  to  one  of  several 
executors  or  administrators  is  suflicient.^^ 


§557.  Authentication  of  proof.  "When  a  claim  is  pre- 
sented against  the  estate  of  a  deceased  person,  the  executor  or 
administrator  may  require  satisfactory  vouchers  in  support  of 
it  and  also  the  affidavit  of  the  claimant  that  such  claim  is  justly 
due,  that  no  payments  have  been  made  thereon,  and  that  there 
are  no  set-offs  against  it  to  his  knowledge.  Such  oath  may  be 
taken  before  any  officer  authorized  to  administer  oaths.  The 
expense  of  it  shall  be  allowed  by  the  executor  or  administrator, 
if  the  claim  itself  is  allowed."  '  [R.  S.  §  6092.] ^^ 

assuming  that  the  other  facts  were  Where  a  petition  against  an  ad- 
proved  wliich  the  evidence  tended  to  ministrator  does  not  show  that  the 
prove,  we  thinlc  that  a  refusal  to  claim  was  presented  and  disallowed 
allow  tlio  account  under  such  cir-  and  the  administrator  goes  to  trial 
cumstanccs,  would  be  a  waiver  of  its  and  makes  no  objection,  it  is  too 
formal  presentation,  and  that  the  late  after  several  trials  and  costs 
jury  would  be  warranted  in  so  find-  have  been  incurred,  to  raise  the 
ing.  .  Clieesman  vs.  Kyle,  15  O.  S.  question.  Devereaux  vs.  Hutchin- 
15.  son,     16     0.     C.     C.      (N.S.)      447; 

28  Thomas  vs.  Chamberlain,  39  O.  affirmed,  78  O.  S.  415,  no  op. 

S.  112.  If   a  creditor  neglects   to   present 

29  Delaplane  vs.  Smith,  38  O.  S.  his  claim  and  takes  security  to  in- 
413.  sure  its  payment  he  will  be  held  to 

30  Davkin  vs.  Emery,  10  C.  C.  have  waived  his  claim.  Shell  vs. 
652;  5  C.  D.  121.  Bernhardt,  24  Dec.   182.     So  also  if 

31  Haley  vs.  Krug,  1  C.  C.  44;  1  he  conceals  his  claim  and  if  as  heir 
C.  D.  27.  he  participates   in  a  partition  pro- 

32  Yager  vs.  Griess,  1  C.  C.  531;  1  ceedings. 

C.  D.  206.  34  §10717  G.  C. 

33  Woerner  on  Admin.  806. 


§  557a  PRESENTATION  OF  CLAIMS  479a 

^  557a.    Satisfactory  voucher,  etc. 

"While  the  claimant  may  not  be  required  to  place  all  his  evi- 
dence before  the  executor  or  administrator  which  he  may  have 
to  support  his  claim,  yet  the  statute  would  deem  to  indicate  that 
more  than  the  affidavit  may  be  required. 

"The  executor  or  administrator  may  require  satisfactory 
vouchers  in  support  of  the  claim  and  also  the  affidavit  of  the 
claimant  that  such  claim  is  justly  due,  that  no  payments  have 
been  made  thereon,  and  that  there  are  no  set-offs  against  same, ' ' 
etc., 

is  the  language  of  the  statute. 

It  will  be  observed  that  the  matter  of  "satisfactory  vouchers 
in  support  of  the  claim"  is  in  addition  to  the  requirement  of 
the  affidavit.  So  far  as  the  author  knows  this  has  received  no 
judicial  construction  in  Ohio,  and  not  very  much  elsewhere. 
The  statute  of  New  York  is  very  much  similar  to  our  own,  but 
not  much  light  is  thrown  on  the  matter  by  text  writers  from 
that  state. 

' '  The  statute  plainly  intends ' '  says  one,  ' '  that  the  claim  shall 
be  presented  or  exhibited  in  some  writing,  stating  its  nature  and 
the  amount,  the  name  of  the  creditor  and  a  demand  for  its  pay- 
ment. The  personal  representative  of  the  estate  is  put  by  such 
paper  in  possession  of  information  which  enabl&s  him  to  act 
intelligently  either  in  admitting  the  claim  or  taking  such  steps 
as  are  necessary  to  protect  the  estate  against  it."^** 

Another  says: 

"The  verification  of  a  claim  gives  it  the  character  of  an  un- 
disputed debt;  the  claimant  is  not  required  to  furnish  other 
evidence  unless  required  to  do  so  by  the  representative.  He 
may  be  required  to  furnish  a  bill  of  particulars  or  make  his 
claim  more  definite  and  certain. ' '  ^*^ 

The  claim  as  presented 

"shall  give  to  the  personal  representative  such  information  con- 
cerning the  nature  and  amount  of  the  demand  as  to  enable  him 
to  act  intelligently  in  providing  for  its  payment,  or  in  rejecting 
it."'*<^ 

The  general  rule  of  law  is  that  if  suit  be  brought  on  a  demand 
that  has  not  been  rejected,  that  the  party  is  non-suited.^*'' 
Before  the  claim  can  be  rejected  it  must  be  presented  as  the 
statute  requires.     It  follows  therefore   that   a   claim  might  be 

34a,Jessupp,  Surrogate  Prac,  p.  Surrogate  courts,  5th  ed.  525 
913    (N.  Y.).  (N.  Y.). 

34b  Redfield,    Law    and    Practice,  34c  18  Cyc.  480. 


^79b  SATISFACTORY   VOUCHER,  ETC.  §  557a 

rejected  for  either  of  one  of  two  reasons.  First,  that  it  was  not 
presented,  when  so  required,  with  satisfactory  vouchers,  or 
proper  affidavit,  or,  Second,  because  of  the  denial  of  the  justice 
of  the  demand. 

It  is  the  object  and  purpose  of  the  law  that  estates  be  settled 
as  economically  and  speedily  as  possible.  All  demands  against 
the  estate  are  to  be  settled  without  litigation  when  the  same 
can  be  done  without  detriment  to  the  interests  of  the  estate. 

But  claims  will  arise  concerning  the  merits  of  which  the  exec- 
utor or  administrator  has  little  or  no  knowledge.  This  knowl- 
edge may  be  peculiarly  within  the  possession  of  the  claimant. 
Without  such  knowledge,  the  administrator  or  executor  is  unable 
to  determine  whether  the  claim  is  just  or  not.  "Voucher"  it  is 
said 

"is  a  word  that  has  several  meanings;  but  in  its  ordinary 
signification  it  means  a  document  which  serves  to  vouch  the 
truth  of  accounts,  or  to  confirm  or  establish  facts  of  any 
kind."^*« 

And  "satisfactory"  is  defined  as 

"giving  or  producing  satisfaction;  yielding  content;  especially 
relieving  the  mind  from  doubt  or  uncertainty  and  enabling  it 
to  rest  with  confidence. ' '  ^"^^ 

It  would  therefore  seem  to  follow  that  under  this  statute  the 
executor  or  administrator  has  a  right  to  demand  when  a  claim 
is  presented,  not  only  an  affidavit  embodying  the  facts  required 
by  the  statute,  but  such  additional  matters  as  will  enable  him  to 
satisfactorily  determine  whether  the  interests  of  the  estate  re- 
quire the  acceptance  or  rejection  of  the  claim. 

If  the  claimant  can,  and  will  not  give  this  required  evidence, 
and  the  claim  is  rejected  for  that  reason,  we  believe  this  becomes 
jurisdictional,  and  no  right  of  action  would  lie  to  enforce  col- 
lection of  the  same  by  suit. 

When  therefore  a  claim  is  presented  about  which  the  admin- 
istrator or  executor  is  ignorant  he  should  inform  claimant  of 
the  facts  which  he  desires  to  know,  and  which  he  deems  necessary 
for  him  to  know  to  enable  him  to  intelligently  and  properly 
determine  whether  the  claim  should  be  allowed  or  rejected,  and 
if  claimant  captiously  or  negligently  refuses  to  give  the  same, 
then  reject  the  claim  for  that  reason  and  that  there  may  be  no 
question  as  to  the  reason  for  his  conduct,  indorse  on  the  claim 
the  reasons  for  his  action. 

34<JRice  Probate  Law  352.  34f  35  CyC.  794. 

!'4e40  Cvc.  228. 


§  558  PEESENTATION  OF  CLAIMS  480 

§  558.     When  not  required. 

Whether  an  administrator  or  executor  will  allow  a  claim 
against  the  estate  without  compliance  with  the  above  section 
rests  in  his  discretion. ^°  He  may  pay  any  debt  which  he  knows 
the  estate  is  owing,  indeed  it  is  his  duty  to  do  so  without  re- 
quiring the  above  formalities.  But  if,  however,  he  has  not 
sufficient  knowledge  to  lead  him  to  a  conviction  that  the  debt 
exists,  he  should  require  a  verification.  Of  course  in  no  in- 
stance should  an  executor  or  administrator  pay  a  claim  without 
taking  a  receipt.  IsTeither  will  an  administrator  or  executor 
be  justified  in  accepting  a  claim  which  he  knows  or  has  reason 
to  believe  is  not  just,  even  though  it  be  sworn  to.  If  a  claim  be 
presented  to  an  administrator  which  i&  not  sworn  to,  and  the 
administrator  rejects  the  claim,  unless  he  rejects  it  for  that 
reason,  it  will  be  presumed  that  he  rejects  the  claim  for  the 
reason  that  it  is  not  a  valid  debt,  and  not  because  it  is  not 
verified.^® 

Form  of  affidavit  may  be  as  folloves: 


State  of  Ohio,   County,  ss. 

A.  B.,  being  duly  sworn,  says  he  is  the  owner  of  the  annexed  claim 
against  the  estate  of  C.  D.,  deceased,  that  the  same  is  justly  due;  that 
no  payments  have  been  made  thereon  (except  such  as  appear  thereon  cred- 
ited), and  that  there  are  no  set-offs  against  the  same  to  the  knowledge 
and  belief  of  affiant. 

A.   B 

Sworn  to  and  subscribed  by  A.  B.  before  me  this day  of 

A.  D.   188. .  . 

Indorsement  on  claim. —  Allowed  as  a  valid  claim  against  the  estate  of 
C.  D.,   deceased.  E.  F.,  Administrator.sT 

35  Morgan  vs.  Bartlette,  3  C.  C.  which  he  may  take  advantage  of  or 
431;   2  C.  D.  244.  not.     There  is  nothing  in   the  stat- 

36  Kyle  vs.  Kyle,  15  O.  S.  15;  Har-  ute  which  necessarily  requires  that 
ter  vs.  Taggart,  14  0.  S.   126.  the  evidences  of  the  debt  should  be 

The  New  York  statute  is  very  laid  before  the  executor  or  adminis- 
much  similar  to  our  own.  Under  trator,  or  that  claimant  should  make 
that  statute  it  was  held:  "The  oath  of  the  justice  of  the  claim,  un- 
statute  authorizing  an  administra-  less  required  to  do  so  by  the  exec- 
tor  or  executor  to  exact  proof  of  a  utor  or  administrator." 
specified  character  is  not  compulsory  Ransom,  S.,  in  Matter  of  Sears, 
upon  the  personal  representative,  N.  Y.,  Law.  J.,  June  6,  1890. 
but  is  a  privilege  accorded  to  him  37  gee  §  1615. 


481  ALI.OWANCE   OF    CLAIM  §  559 

§  559.     Allowance  of  a  claim. 

The  allowance  or  rejection  of  a  claim  wnen  presented  to  the 
executor  or  administrator  will  depend  upon  the  circumstances 
surrounding  each  individual  case.  The  difficulty  in  deter- 
mining whether  or  not  a  claim  has  been  allowed  or  rejected, 
oftener  depends  upon  the  actions  of  a  claimant  and  an  ad- 
ministrator or  executor,  than  upon  the  law  applicable.  If 
the  actions  of  both  the  administrator  or  executor  and  the  credi- 
tor have  been  positive,  no  difficulty  will  be  experienced,  but  as  it 
often  happens  in  such  cases,  one  or  the  other,  or  both  have 
not  been  positive  and  exact  in  their  dealings  with  each  other, 
and  many  perplexing  questions  arise.  If  a  claim  be  presented 
to  an  administrator  and  the  administrator  takes  no  action  upon 
it,  and  the  creditor  makes  no  more  inquiries  about  it^  what  are 
the  rights  and  liabilities  of  the  respective  parties?  It  was  at 
first  held  by  the  New  York  Courts,^^  that  if  the  executor  or 
administrator  failed  to  notify  the  creditor  that  the  claim  was 
rejected,  that  it  was  allowed  and  in  such  cases  became  a  liqui- 
dated demand  against  the  estate  and  could  not  thereafter  be  dis- 
puted. This  matter  was  reviewed  and  the  doctrine  substan- 
tially renunciated,  in  a  later  case,  in  which  it  was  held  that 
the  failure  to  act,  upon  the  part  of  the  executor  or  administrator 
would  not  bind  the  estate,  and  that  any  time  thereafter  such  a 
claim  could  be  disputed  and  rejected.^^ 

38  Lambert    vs.    Craft,  98    N.    Y.       by  reference.     The  executor  or  ad- 
342.     See   §  660.  mini.strator  may,  on  being  satisfied 

39  Schutz  vs.  Morette,  146  N.  Y.  of  the  justice  of  a  claim  presented, 
137.  admit  it,  or  if  he  doubts   its  just- 

"  In  view  of  the  power  and  duty  ness,    may   reject    it   and   leave   the 

of  an  executor  or  administrator,  the  creditor  to  his  remedy  by  action,  if 

inference   from   his   silence,   merely,  a  reference  is  not  agreed  upon.    But 

of  an  agreement  on  his  part  to  pay  the  presentation  of  a  claim,  followed 

a  debt  so  situated,  would  be  unrea-  by  inaction,  the  executor  or  admin- 

sonable.     The  statutory   system  for  istrator  neither  rejecting  nor  admit- 

the  presentation  and  adjustment  of  ting  it,  does  not,  we  think,  bind  the 

claims   against  the   estate  of   a  de-  estate   as   upon   an   account   stated, 

cedent  furnishes  a  summary  and  in-  It  may  be  justly  claimed  that  the 

expensive   method   by   which   claims  executor  or  administrator  ought,  in 

can  be  adjusted  without  action,  or  the  fair  discharge  of  his  duty  both 


§  559 


PRESENTATION    OF    CLAIMS 


482 


This  no  doubt  is  tlie  doctrine  of  our  State,  for  in  Thomas 
vs.  Chamberlain,*"  it  was  said  "  the  allowance  of  a  claim  when 
exhibited  or  presented  to  the  administrator  for  allowance  is 
not  conclusive  against  the  estate,  as  to  its  validity.  It  may  aft- 
erwards be  disjDuted  and  contested  by  the  administrator.  The 
administrator  or  executor'  may  at  any  time  thereafter  dispute 
the  bill  even  where  it  is  allowed.  May  he,  where  there  is  no 
expressed  allowance  of  the  claim,  proceed  without  notifying 
the  creditor  to  pay  out  the  funds  of  the  estate?  While  the 
.mere  holding  of  a  claim  will  not  malce  it  incontestible,  yet  it 
is  such  notice  to  the  executor  or  administrator  of  the  claim,  that 
it  would  be  a  fraud  on  his  part,  to  pay  out  the  funds  of  the 
estate  without  notifying  the  creditor  of  its  rejection,  if  the  ad- 
ministrator or  executor  intended  to  reject  it.  However,  if  a 
claim  were  presented  to  an  administrator  and  no  further  action 
was  taken  by  either  party  and  the  statute  of  limitation  would  bar 
the  claim  before  the  administrator  or  executor  was  required 


to  the  creditor  and  to  the  estate,  to 
examine  the  claim  within  a  reason- 
able time  and  make  known  his  posi- 
tion in  respect  to  it.  But  it  would 
be  hazardous,  in  view  of  the  igno- 
rance or  inexperience  of  the  persons 
called  upon  to  act  as  executor  or 
administrator  to  construe  mere  si- 
lence on  his  part  as  an  admission 
that  the  claim  was  a  valid  one.  The 
creditor  must  see  to  it  that  the 
claim  is  admitted  and  allowed  by 
the  executor  or  administrator  and 
an  implied  admission  from  silence 
is    not    sufficient.      Id. 

In  Reynolds,  Admr.,  vs.  Collins,  3 
Hill  36,'  it  was  held  that  the  pre- 
sentation of  a  claim  under  the  stat- 
ute does  not  bar  the  Statute  of  Lim- 
itation, and  if  the  executor  neither 
allows  nor  rejects  it,  the  creditor 
must  take  care  to  have  the  matter 
adjusted  or  commence  his  action 
within  the  period  of  the  statute  or 
he  will  be  too  late." 

And  in  a  still  later  ose,  ^Matter 
of  Callahan.  152  N.  Y.  320.  352,  the 
same  judge,  referring  to  the  case  of 


Schutx  vs.  Morette.  remarked,  "we 
are  of  the  opinion  that  mere  silence 
on  the  part  of  an  executor  or  ad- 
ministrator after  the  presentation  of 
a  claim  under  the  statute,  accom- 
panied by  lapse  of  time,  will  not  in 
any  case  preclude  the  representa- 
tive from  therealter  contesting  its 
validity." 

See  Matter  of  Pierson,  19  App. 
Div.  478.  If  the  claim  is  not  re- 
jected, and  on  an  accounting  no  ob- 
jection is  taken  to  its  allowance, 
then  the  Surrogate  will  be  author- 
ized to  treat  it  as  an  admitted  claim 
and  direct  its  payment.  But  the 
claim  does  not  become  established 
from  mere  silence  of  the  executor  or 
administrator.  See  also  Matter  of 
Doran,  38  N.  Y.  Supp.  544. 

40  39  0.  S.  121. 

The  payment  of  interest  on  a 
promissory  note  will  be  considered 
as  the  allowance  of  the  note  as  a 
claim  acainst  the  estate.  Kemper 
vs.  Building  &  L.  Assn.,  5  X.  P. 
(N.S.)    403;    18  Dec.  484. 

Part  pavment  is  an  allowance. 
In  re  Patterson,  58  Bull.  305. 


483  REJECTION  OF  CLAIMS  §  560 

to  reject  it,  the  creditor  would  then  be  in  very  great  danger  of 
losing  his  claim.*^  The  mere  inaction  of  the  administrator 
or  executor  not  being  sufficient  to  make  a  claim  incontestible, 
neither  will  it  be  sufficient  to  cause  a  rejection.  The  creditor 
presenting  a  claim  in  such  a  case  would  not  be  barred  of  his 
right  to  sue  as  provided  under  the  provisions  of  sec.  10722-3, 
G.  C,  until  the  period  of  six  months  had  elapsed  from  the  time 
that  he  had  information  that  the  claim  was  disputed  or  rejected, 
provided  he  brings  his  action  within  eighteen  months  from  the 
date  of  the  administrator's  bond.*^*  Part  payment  of  a  claim 
without  disputing  the  balance  has  been  held  a  sufficient  allow- 
ance of  the  whole.'*^ 

Likewise  a  promise  to  pay  a  foreclosure  decree  by  the  execu- 
tors out  of  the  proceeds  of  sale,  is  an  allowance  of  a  claim.** 
But  merely  receiving  a  claim,  examining  it  and  comparing  it 
with  the  decedent's  books  is  neither  an  allowance  nor  rejec- 
tion.** Likewise  acknowledging  notice  of  the  existence  of 
"  notes. "  is  not  allowing  or  rejecting  them.*^  Where  an  admin- 
istrator filed  a  petition  to  sell  real  estate  of  the  deceased  in  which 
he  set  up  a  certain  claim  as  one  of  the  debts  of  the  decedent, 
it  was  held  that  this  was  an  allowance  of  the  claim. *^ 

§  560.     Rejection  of  a  claim. 

An  idea  prevails  to  a  certain  extent  that  the  claim  can  only 
be  rejected  as  provided  in  sec.  10722-3,  G.  C.  (§  609),  and  that 
unless  an  administrator  or  executor  has  written  on  a  claim,  the 
word  rejected,  or  something  to  that  effect,  that  the  claim  is  not 
rejected  until  that  is  done.  The  Supreme  Court  has  on  several 
occasions  controverted  this  idea,  although  in  one  instance  they 
used  words  which  indicated  that  a  demand  must  be  made  for 
such    an   endorsement*^     In   giving   construction   to    this    last 

41  See  previous  note.  Bouse,  12  C.  C.  46;  5  C.  D.  293. 

41*  §  1U746  G.  C,  §  613;  See  Mat-  42  Thomas  vs.  Chamberlain,  39  O. 

toon  vs.  Clapp,  8  U.  248.     The  text  S.  112. 

is  supported   by  tlie   recent  case  of  43  Bank    vs.    Mclntire,    40    0.    S. 

Harris   vs.  O'Connell,   85  O.  S.   145,  528. 

where  it  is  held  that  if  the  claim  is  44  Keenan  vs.  Saxton,  13  0.  41. 

rejected   suit   must   be   brought   not  45  JTisher  vs.  Mossman,  11  O.  S.  42. 

more  than  six  months  from  tlie  time  4C  Smosk  vs.  Bouse,  12  C.  C.  46; 

of  its  rejection  and  within  eighteen  5  C.  P.  293. 

montlis    from    tlie    date    of    the    ad-  See  §  1634,  Assignments, 

ministration  bond.    J'ormal  indorse-  4  7  Keenan  vs.  Saxton,  13  0.  42. 
ment   is   not   necessary.      Smosk   vs. 


§  560  PRESENTATION    OF    CLAIMS  484 

clause  of  sec.  10722-3,  G.  C,  the  Court  in  Harter  vs.  Taggart,"^' 
says :  "  The  phraseology  of  the  last  clause,  when  contrasted  with 
the  other  sections,  seems  to  indicate  that  its  principal  object 
is  to  compel  a  doubting  or  distrustful  executor  or  administra- 
tor to  allo"w  the  claim  or  to  submit  to  an  action  for  its  enforce- 
ment. The  provision  is  a  beneficial  one,  and  should  be  fairly 
construed.  Its  object  is  attained  when  the  creditor  is  advised 
by  the  executor  that  his  claim  is  rejected,  and  the  policy  of  tlie 
statute  then  requires  him  to  institute  proceedings  without  delay. 
If  such  rejection  is  distinctly  declared,  and  the  creditor  told  so 
to  regaled  it,  no  beneficial  purpose  can  be  attained  by  requiring 
a  written  indorsement  of  an  allowance  which  he  is  already 
advised  the  executor  will  not  make.  The  proof  of  rejection 
must,  necessarily,  still  rest  in  parol,  unless  the  executor  should 
perform  an  act  which  tlie  statute  nowhere  enjoins,  by  indors- 
ing his  rejection  upon  the  claim." 

Again  the  Court  says,*^  "  We  do  not  conceive  that  by  the 
statute  or  under  the  authority  of  the  case  referred  to,  the  right 
to  sue  depends  upon  an  indorsement  on  the  claim  of  its  dis- 
allowance, or  upon  the  fact  that  the  creditor  has  made  a 
specific  demand  that  the  allowance  of  the  claim  be  indorsed 
thereon.  That  an  unequivocal  rejection  of  the  claim  should 
be  obtained  before  suit  is  brought  is  undoubtedly  true ;  but . 
the  only  purpose  of  the  last  clause  in  the  section  of  the  statute 
referred  to,  is  to  make  a  refusal  on  the  part  of  the  executor 
or  administrator  to  indorse  his  allowance,  when  demand  is 
made  for  that  purpose,  conclusive  proof  of  its  rejection." 

These  decisions  of  our  Supreme  Court,  establish  the  rule  to 
be  that  there  is  no  formal  way  required  to  constitute  a  rejec- 
tion of  a  claim,  and  places  the  power  within  the  hands  of  the 
creditor  by  asking  or  demanding  a  written  indorsement  to 
compel  the  executor  to  either  reject  or  accept  the  claim ;  and 
if  the  executor  or  administrator  refuses  to  act  in  such  manner 
that  it  shall  be  held  to  be  a  rejection.  If  the  administrator  or 
executor  in  any  manner  inform  the  creditor  that  the  claim  will 

■*8  14  0.  S.  122-126.  Part  payment  may  constitute  an 

^9  Stambaugh  vs.  Smith,  23  O.  S.       acceptance.     Kemper  vs.   Loan   Co., 

584.  5  N.  P.   (N.S.)   403;   1  Dec.  489;   11 

C.  C.  (N.S.)  372;  30  C.  C.  700. 


485  REJECTION  OP  CLAIMS  §  560 

not  be  paid,  it  is  a  rejection  and  the  creditor  thereafter  must 
act  or  suffer  the  consequences.  The  statute  is  somewhat  pe- 
culiar when  it  says  that  if  the  claim  be  disputed  or  rejected^. 
the  creditor  must  bring  his  action  or  be  barred.  These  words 
disputed  or  rejected  are  not  synonymous.  And  as  every  word 
in  the  statute  should  be  given  a  meaning  where  the  same  can 
consistently  be  done,  each  one  of  these  words  is  entitled  to 
some  consideration.  To  reject  is  to  refuse  to  receive.  To 
dispute  is  to  controvert,  to  deny,  to  contend  in  argument,  to 
reason  or  argue  in  oppposition,  to  debate,  etc.  Giving  to  this 
word  dispute,  its  proper  and  ordinary  meaning,  a  creditor 
might  be  compelled  to  bring  his  action  before  a  claim  was  ac- 
tually rejected  within  the  ordinary  meaning  of  the  word  "  re- 
jected." It  seems,  therefore,  that  about  the  only  consistent 
construction  that  can  be  arrived  at,  is,  that  if  a  creditor  pre- 
sents a  claim  and  the  executor  or  administrator  questions  its 
justness,  or  in  any  way  disputes  about  its  validity,  or  the  estate's 
liability,  and  does  not  ask  for  time  to  investigate  the  merits  of 
the  claim,  that  within  the  meaning  of  the  statute  the  claim 
must  be  considered  rejected  from  that  time.  In  the  case  of 
Keenan  vs.  Saxton,^"  in  which  the  Court  held  there  was  neither 
an  acceptance  nor  rejection  of  a  claim,  the  executor  upon  its 
presentation  did  not  deny  the  validity  of  the  claim,  but  merely 
claimed  the  right  of  paying  it  in  wheat.^^ 


50  13  0.  41.  Provit  then  requested  him  to  defer 

51  The  case  of  Treasurer  vs.  Walk-  payment  for  a  short  time  for  the 
er,  22  Bull.  106,  although  the  decis-  purpose  of  determining  whether  an 
ion  of  an  inferior  Court,  presents  adjustment  of  the  matter  might  not 
the  question  very  well.  In  this  the  be  reached.  A  short  time  after  the 
evidence  showed  that,  "  On  the  11th  above  conversation  he  again  met  Mr. 
day  of  April  last  the  plaintiff  hand-  Prout,  when  he  (Prout)  said,  'all  I 
ed  to  Perry  G.  Walker,  Esq.,  one  of  can  say  in  reference  to  the  tax  mat- 
the  defendants,  a  written  statement  ter  is,  No !  '  "  After  considering  the 
of  the  taxes  standing  charged  upon  decisions  of  the  Supreme  Court,  the 
the  tax  duplicate  of  this  county  Judge  concludes:  "The  object  of 
against  the  estate  of  Mary  Barney,  the  statute  referred  to  is  to  give  tbe 
deceased.  About  ten  days  or  two  executor  or  administrator  time  and 
weeks  thereafter  plaintiff  spoke  to  opportunity  to  investigate,  and  in- 
Mr.  Prout,  Walker's  co-executor,  quire  into  the  merits  of  the  claim 
about    the    payment    of    the    taxes.  and  prevent  needless  and  vexatious 


§  560  PEESENTATIOIS'    OF    CLAIMS  486 

In  a  case  reported  in  one  of  the  ISTew  York  reports,  when 
the  claim  was  presented,  it  was  not  admitted.  In  a  few  days 
afterwards  the  administratrix  declared  to  the  creditor  "  that 
they  did  not  consider  it  a  legal  claim,  and  had  no  right  to 
pay  it."     This  was  held  to  be  a  disputed  claim.^^ 

In  another  case  where  the  executor  claimed  that  he  told  the 
creditor  when  the  bill  was  presented  that  the  estate  was  not 
liable,  and  this  was  denied ;  about  twenty  months  afterwards, 
however,  the  executor  gave  the  claimant  a  written  notice  that 
the  claim  was  rejected.  It  was  held  that  the  rejection  only  oc- 
curred when  the  written  notice  was  received.^^  Again  where 
the  executor  claimed  that  he  had  mailed  a  notice  to  the  claimant 
informing  him  of  the  rejection  of  the  claim  and  the  creditor 
denied  having  received  such  notice,  it  was  held  that  the  claim  I 
was  not  rejected.^*  It  has  been  held  that  the  Probate  Court 
has  no  jurisdiction  to  instruct  the  administrator  whether  he 
should  allow  or  reject  the  claim. ^^ 

I  might  in  conclusion  say,  that  unless  an  executor  or  admin- 
istrator requests  delay  for  the  pui*pose  of  making  investigation 
as  to  the  merits  of  a  claim,  or  so  acts  as  to  mislead  a  person 
of  ordinary  care  and  prudence  that  such  was  his  intention, 
the  creditor  is  in  very  great  danger  of  losing  his  claim,  unless 
he  sue  on  it  within  six  months  from  the  date  of  presentation. 
The  policy  of  our  administration  laws,  is  to  have  a  speedy  set- 
tlement of  the  estate,  and  the  statute  expressly  gives  the  power 
to  the  creditor  to  enforce  an  acceptance  or  rejection  of  his 
claim  in  a  manner  about  which  there  can  be  no  dispute.  If 
the  administrator  neither  allow  nor  reject  the  claim  exhibited 
to  him,  says  Woerner,  it  is  deemed  rejected,  and  the  creditor 
may  bring  his  action.^^ 

litigation  and  wasting  the  estate  in  the  time  such  decision  was  reached 
useless  costs  and  expenses.    It  is  the  by  the  executor,  wliether  he  was  cog- 
opinion   of   tlie   court   that   the   evi-  nizant  of  such  decision  or  not." 
dence  shows  that  the  executors  had  52  Tuclcer  vs.  Tucker,  4  Keys  136; 
ample  time   and  opportunitj'  to  in-  4  Abb.  Ct.  428. 

quire  into  the  merits  of  the  claim,  53  j„  j-g  JMjller,  9  N.  Y.  Supp.  60. 

and   that   upon  mature  deliberation  54  Edmonds    a's.    Edmonds,    62   N. 

they  decided  to   reject  it.     And  we  Y.  Supp.  653. 

are  also  of  the  opinion,  as  a  conclu-  55  Jackson    vs.    Jackson,    5    BulU 

sion  of  law,  that  a  right  of  action  on  647. 
said  claim  accrued  to  plaintiff  from 


487  REJECTED  AT  INSTANCE  OF  HEIR  §  561 

§  561.  When  claim  shall  be  rejected  at  instance  of  heir  or 
creditor.  ''If  an  heir  or  creditor  of  a  deceased  person,  or  a 
person  who  has  purchased,  or  claims  to  hold  by  purchase  or 
otherwise  from  such  heir,  any  lands  or  other  property  inherited 
by  such  heir  from  the  decedent,  files  in  the  probate  court  of  the 
county  in  which  administration  is  taken  out  on  an  estate,  a 
written  requisition  on  the  administrator  or  executor,  to  disallow 
and  reject  a  claim  presented  for  allowance,  whether  the  claim 
has  been  allowed  or  not,  but  which  has  not  been  paid  in  full, 
and  enters  into  a  bond,  with  sufficient  surety,  to  be  approved 
by  the  probate  judge,  conditioned  to  pay  all  costs  and  expenses 
of  contesting  such  claim,  in  case  it  finally  is  allowed,  the  claim 
shall  be  rejected  by  such  administrator  or  executor."  [R.  S. 
§6098.]" 

§  561a.     Action  against  administrator  or  executor.     ' '  The 

holder  of  such  claim,  within  six  months  after  its  rejection,  is 
required  to  bring  his  action  against  such  administrator  or  ex- 
ecutor, to  enforce  it,  and  if  he  recovers  the  judgment  shall  be 
against  the  administrator  or  executor.  In  such  action,  such 
heir,  creditor,  or  other  person  claiming  to  hold  such  property, 
shall  be  made  a  party  defendant  M'ith  the  administrator  or 
executor,  and  have  the  right  to  plead  and  make  any  defense  to 
it  which  he  could  make."     [R.  S.  §  6098.]"* 

§  561b.  Notice.  "When  such  written  requisition  and  bond 
are  filed  in  the  probate  court,  the  probate  judge  at  once  shall 
notify  such  administrator  or  executor  thereof,  who  thereupon 
must  notify  the  holder  of  such  claim  that  it  is  rejected.  If 
proceedings  to  sell  lands  of  the  decedent  to  pay  such  claim,  have 
been  begun,  they  shall  be  stayed,  and  no  further  order  or  decree 
taken  therein,  until  the  validity  of  the  claim  is  determined.  If 
the  plaintiff  recovers,  the  judgment  must  be  against  the  admin- 
istrator or  executor,  but  the  costs  shall  be  awarded  against  the 

56  Upon  this  subject  Woerner  says  of  several  administrators  is  sufficient 

(Woerner  on  Admin.  812)  :     "In  re-  to  authorize  a  suit  upon  the  claim." 

'  jectinw  the  claim,  he  should  indorse  See  §  1634. 

'the  reason  of  his  rejection  upon  it,  ^7  §  10724  G.  C.     See  §  1636. 
and   notify  the  claimant  in   person,  The    word    heir    includes    devisees 
and    in    terms    so    unequivocal    that  and  legatees.     Todd  vs.  Todd,  6  C. 
the    creditor    may    know    with    cer-  C.   (N.S.)   105;  27  C.  C.  224. 
tainty  when  his  claim,   if  not  sued  ^7*  §  10725  G.  C. 
on,  would  bft  barred.    A  secret  rejec-  If    the    purchaser    under    a    land 
tion  and  refusal  to  inform  claimant,  contract    presents    a    claim    against 
may  operate  as  a  fraud,  and   is  in-  the  estate  of  a  vendor  for  damages 
valid  as  a  rejection.     He  will  not  be  for  breach  thereof  he  can  not  main- 
heard    to    oliject   for    tlie    first    time  tain   an   action   to   compel    perform- 
when  sued  upon   the  claim,  that  it  ance  of  sucli  contract.     Mignery  vs. 
was  not  properly  autlienticated,  or  in  Olmstead,  91  O.  S.  416. 
nroper  form.     The  rejection  by  one 


§  562  PRESENTATION    OF    CLAIMS  488 

party   filing   the   requisition   to    disallow   the    claim."      [R.    S. 

§6098.]s^t 

§  562.     Comments. 

In  a  great  many  States  the  Probate  Court  passes  upon  claims 
before  they  are  paid,  and  in  that  manner  heirs  and  others  inter- 
ested, have  a  right  to  be  heard  and  question  the  payment  of  a 
claim.  In  our  State,  however,  an  administrator  or  executor 
may  pay  a  claim  where  he  is  satisfied  it  is  honest  and  just, 
without  any  notification  to  those  beneficially  interested  in  the 
estate.  If  he  paid  a  claim  which  was  manifestly  unjust,  and 
under  such  conditions  that  would  indicate  the  want  of  ordinary 
care,  exceptions  might  be  filed  to  his  account  and  his  authority 
in  that  manner  questioned.  The  object  of  the  above  section  may 
be  said  to  be  two-fold.  In  the  first  place  if  the  administrator 
or  executor  has  doubt  about  the  justness  of  a  claim,  but  does 
not  wish  to  act  thereon,  on  his  own  responsibility,  he  may 
notify  the  heirs  that  unless  they  object  as  provided  by  law, 
he  will  pay  the  claim ;  and  if  they  do  not  wish  it  paid  they 
must  assume  the  task  of  resisting  such  payment;  and  in  the 
second  place  it  gives  to  the  heir  or  creditor  power  to  compel 
an  administrator  or  executor  to  reject  a  claim.  If  an  executor 
or  administrator  notifies  the  heirs  and  creditors  that  he  intends 
to  pay  a  claim,  and  they  take  no  action,  and  there  exists  reason- 
able grounds  for  the  payment  of  the  claim,  the  administrator 
or  executor  should  proceed  to  make  payment.  It  might,  how- 
ever, be  said  to  be  a  good  rule  where  the  claim  is  questioned  by 
any  of  the  heirs,  for  the  executor  or  administrator  to  notify 
them  before  he  makes  payment,  and  give  them  an  opportunity 
to  assume  the  costs  and  expenses  of  resisting  such  claim  if  they 
so  desire.^^ 

57f  §  10726  G.  C.  lowed    and    afterward    rejected,    the 

The  word  heir,  includes  a  devisee  action  is  in  time  if  brought  within 

or  legatee,   and  they   may  file  such  six  months  from  sucli  rejection,  al- 

request.      Todd    vs.    Todd,    6    C.    C.  though   more   than   six   months    has 

(N.S.)    105;  27  C.  C.  224   (1905).  expired  since  the  claim  became  due. 

If  an  administrator  pays  a  claim  Speidel   vs.   Phillips,    78    O.    S.    197. 

from  his  own  funds  he  is  subrogated  See  Harris  vs.  O'Connell,  85  0.  S.  — . 

to  the  rights  of  a  creditor.     Eicher  58  Verbal  notice  to  the  administra- 

vs.  Darby,   17   Dec.  781.  tor   of   an  estate,   by  the   widow   of 

The  heir  has  no  right  to  prosecnte  the   deceased,   not  to   allow  a  speci- 

error    from    the    administrator's    al-  fied  claim  against  the  estate,  is  not 

lowance  of  a  claim,  unless  he  makes  sufficient  proof  of  fraud  on  the  part 

the  requisition  not  to  so  allow  the  of   the  administrator   for   afterward 

claim  as  provided  by  statute.     Kem-  making  sucli  allowance.     Thomas  vs. 

per  vs.  Bldg.  &  Loan  Assn.,  5  N.  P.  Chamberlain.  39  O.  S.   112. 

(N.S.)  403;   18  Dec.  484.  See   §  1(336. 

When  a  claim   has  been  once  al-  See    §  610. 


489  EEQUISITION    TO    EEJECT  §  563 

§  563.    Requisition  to  reject  a  claim. 

An  heir  or  creditor,  or  any  one  who  has  purchased  lands 
from  an  heir,  may  file  the  requisition.  It  must  be  in  writing 
and  it  must  be  filed  in  the  Probate  Court  which  granted 
the  letters  of  administration.  It  does  not  make  any  difference 
whether  the  claim  has  been  presented  or  allowed  or  not,  but  it 
will  not  be  effective  if  the  claim  has  been  paid.  Neither  would 
it  be  effective  unless  an  undertaking  was  filed  and  approved 
by  the  Probate  Judge.  The  form  of  requisition  may  be  as 
follows : 

To  G.  H.,  executor  of  the  last  will  and  testament   (or  administrator  of  the 
estate)    of  I.  J.,  deceased. 
You  will  take  notice  that  the  undersigned,  a  creditor  of  the  estate  of  I.  J., 
deceased,  does  hereby  require  you  to  reject  and  disallow  the  claim  of  X.  Y. 

against   said    estate   for    the    sum    of dollars    ( describe 

claim).  Said  claim  having  been,  as  I  am  informed,  presented  to  you  for 
allowance.  A.  B.59 

§  564.     Bond,  etc. 

The  statute  seems  to  contemplate  that  at  the  sanie  time  that 
the  heir  or  other  person  entitled  thereto  files  the  requisition, 
that  there  should  be  filed  in  the  Court  a  bond  or  undertaking 
with  sufficient  surety,  conditioned  to  pay  all  costs  and  expenses 
of  contesting  such  claim  in  case  it  shall  be  finally  allowed. 
The  statute  does  not  indicate  to  whom  the  bond  should  be  pay- 
able and  perhaps  this  would  not  be  a  material  matter,  but  as  a 
general  rule  it  is  made  payable  to  the  executor  or  adminis- 
trator and  may  be  in  the  following  form: 

Know  all  Men  by  these  Presents: 

That  we,  A.  B.,  C.  D.  and  E.  F.,  are  held  and  firmly  bound  unto  G.  H., 
executor  of  the  last  will  and  testament    (or  administrator  of  the  estate) 

of  1.  J.,  deceased,  in  the  sum  of dollars  to  be  paid  to  the 

said  G.  H.,  as  aforesaid  and  his  successors,  for  which  payment  well  and 
truly  to  be  made  we  bind  ourselves,  our  heirs,  executors  and  administrators 
severally  and  firmly  by  these  presents.  The  condition  of  the  above  obliga- 
tion is  such  that  whereas  A.  B.  has  this  day  filed  in  the  Probate  Court  of 

county,    Ohio,    his    wTitten    requisition    on    the    said 

G.  H.,  executor  of  the  last  will  and  testament  (or  administrator  of  the 
estate)  of  I.  J.,  deceased,  as  aforesaid,  to  disallow  and  reject  the  claim 
of  X.  Y.  against  the  estate  of  said  I.  J.,  amounting  to  the  sum  of 

59  Sec  §  1636. 


§  565  REJECTION  OF  CLAIMS  490 

dollars.     Xow    therefore,    if    the    said    A.    B.    shall    well    and 

truly  pay  all  costs  and  expenses  of  contesting  said  claim,  in  case  it  shall 
be  linally  allovsed  as  (decided  by  a  court  of  competent  jurisdiction  to  be) 
a  valid  and  proper  claim  against  said  estate,  then  the  above  obligation  to 
be  void,  otherwise  to  remain  in  full  force  and  virtue. 

Signed  at by  us  this day  of 

190.... 

Executed  in  presence  of,  etc. so 

§  565.     Entry  ordering  notice. 

The  bond  and  the  requisition  having  been  filed  in  the  Probate 
Court,  the  following  entry  should  be  made  thereon : 

(Title.) 

This  day  came  A.  B.,  a  creditor  of  the  estate  of  C.  D.,  deceased,  and 
filed  in  this  Court  a  written  requisition  on  G.  H.,  executor  (or  admini- 
trator)  of  the  estate  of  C.  D.,  to  disallow  the  claim  of  X.  Y.  against  said 
estate  as  described  in  said  requisiticn,  also  having  executed  a  bond  to  said 
G.  H.  as  required  by  law  in  such  cases.  Which  bond  has  been  filed  in  this 
Court.  Wherefore  it  is  ordered  -that  said  bond  be  approved,  and  that  the 
said  executor  is  ordered  and  directed  to  disallow  said  claim.  And  it  is 
further  ordered  notice  be  given  to  said  executor  that  he  is  required  to 
reject  said  claim,  and  that  notice  also  be  given  to  said  X.  Y.  that  by  order 
of  Court  such  executor  has  been  directed  to  reject  his  said  claim. ei 

§  566.     Form  of  notice,  etc. 


Whenever  a  requisition  and  undertaking  shall  be  filed  in  the 
Probate  Court,  the  Probate  Court  shall  at  once  notify  such 
administrator  or  executor  thereof;  and  thereupon  the  ad- 
ministrator (or  executor)  shall  at  once  notify  the  holder  of 
such  claim  that  his  claim  is  rejected  and  disallowed.  The  form 
of  notice  to  an  executor  may  be  as  follows : 

To  G.  H.,  executor    (or  administrator  of  the  estate  of  I.  J.,  deceased: 

You  are  hereby  notified  that  A.  B.  on  the day  of ' , 

filed  in  this  Court  a  written  requisition  on  you  as  such  executor,  to  disal- 
low and  reject  a  certain  claim,  it  being  represented  in  said  request  that  said 

claim  is dollars,   for    (here   state  what   said  claim  is 

supposed  to  be  for)  that  said  claim  has  been  or  will  be  presented  to  you 
for  allowance  against  the  estate  of  said  I.  J.  That  the  said  A.  B.  also  on 
the  same  day  filed  in  this  Court  a  bond  conditioned  to  pay  all  costs  and 
expenses  of  contesting  said  claim,  as  required  by  law,  and  that  on  the 
same  day,  an  order  was  made  in  this  Court,  that  you  disallow  said  claim, 
thpt  notice  thereof  be  given  to  you  and  to  the  holder  of  such  claim.  You 
will,  therefore,  proceed  to  at  once  notify  X.  Y.  that  his  claim  has  been 
reiected. 


Probate  Judge. 
«f>  Whit.   Probate   Code,  «i  See  §  1636. 


491  ACTION  ON  REAL  ESTATE  STAYED  §  5G7 

Form  of  notice  to  the  holder  of  the  claim  may  be  as  follows : 

To  N.  Y. 

You  are  hereby   notified   that  your  claim   of dollars, 

for which    has    been    presented    to    me     (or 

which   I    understand    will   be   presented   to   me)    as    executor    (or   admin- 
istrator)   of   the   estate   of   I.   J.,    deceased,   for   allowance,    in   accordance 

with  an  order  made  by  the  Probate  Court  of county, 

is  disallowed   and  rejected  by   me,  and  that  you  are   required  to   sue  on 
said  claim  within  six  months  from  this  date,  or  be  forever  barred. 

Administrator. 

§  567.    Action  on  real  estate  stayed. 

If  at  the  time  a  requisition  has  been  filed  in  the  Probate 
Court,  proceedings  to  sell  lands  of  decedent  to  pay  such  claim 
have  been  commenced,  they  shall  be  stopped  and  no  further 
proceedings  shall  be  had,  until  such  claim  shall  have  been  deter- 
mined. The  matter  may  be  determined  either  by  a  suit  at  law, 
or  compromise,  or  if  the  creditor  fails  to  sue  on  the  claim 
vtdthin  six  months  from  tlie  time  of  notice  of  its  rejection 
has  been  served  on  him.  Thereafter  proeeedings  shall  be  taken 
up,  if  the  claim  has  been  found  to  be  a  valid  one,  and  proceed 
as  if  no  such  requisition  had  been  filed. 

§  568.     How  action  brought. 

The  action  shall  be  brought  against  the  administrator  or  exec- 
utor and  the  judgment  shall  be  against  the  administrator  or 
executor;  and  the  heir  or  person  making  the  requisition  shall 
be.  made  a  party  defendant  and  shall  have  a  right  to  plead  and 
make  any  defense  which  the  administrator  or  executor  could 
make.  If  the  plaintiff  shall  recover  judgment,  it  shall  be 
against  the  executor  or  administrator,  but  the  costs  shall  be 
against  the  party  filing  the  requisition.  In  a  suit  by  an  admin- 
istrator to  recover  upon  a  bond  given  in  the  pursuance  of  the 
provisions  of  sec.  10734  (§  561),  it  is  necessary  to  enable  him  to 
recover,  for  him  to  show  that  the  requirements  of  said  section 
have  been  strictly  complied  with.*'^ 

62  Fullerton  vs.  Davis,  1  C.  C.  572 ;   1  C.  D.  320. 


§568 


PRESENTATION    OF    CLAIMS 


492 


If  the  heir  or  otlier  party  filing  the  requisition  so  desires,  he 
may  prosecute  error.®^ 


We  therefore  hold  that  if  the  ad- 
ministrator desires  to  recover  these 
costs,  it  is  his  duty  to  see  to  it  that 
the  costs  are  awarded  against  the 
party  giving  the  bond.  There  having 
been  no  "  costs  awarded  against " 
the  plaintiff  in  error  in  the  original 
suit,  he  would  not  be  liable  there- 
fore upon  his  bond,  and  for  reasons 
above  stated  he  would  not  be  liable 
for  the  attorney's  fees  or  other  ex- 
penses. 

63  Spaulding  vs.  Allen,  19  C.  C. 
608;   10  C.  D.  259. 

We  hold  that  the  provisions  of 
the  statute  which  authorize  the 
heir  in  such  action  "  to  make  any 
defense  to  such  action  which  such 
administrator  or  executor  should 
make "    necessarily   carries    with    it 


the  right  to  test  the  regularity  of 
the  proceedings  in  the  trial  Court, 
in  the  same  manner  as  the  adminis- 
trator or  executor  could  do,  and 
this  includes  the  right  to  institute 
and  carry  on  proceedings  in  error. 
Suppose  the  Court  had  overruled  a 
demiirrer  filed  by  these  heirs  to  the 
petition,  and  had  been  clearly 
wrong;  or  had  sustained  a  demurrer 
to  their  answer  and  had  been  clearly 
wrong;  to  hold  that  the  heirs  might 
not  proceed  in  error  to  have  such 
wrong  righted,  would  cut  them  off 
from  what  the  statute  clearly  gives 
them,  viz. :  "  To  make  any "  — 
every  — "  defense  to  such  action 
which  such  administrator  or  execu- 
tor could  make," 

For  recovery  on  bond.  See  Fuller- 
ton  vs.  Davis,  1  C.  C,  572;  1  C.  D. 
320. 


i93 


CONTINGENT    CLAIMS 


§569 


CHAPTER  XXXIIl. 

PRESENTATION   OF   CLAIMS   NOT  DUE. 


§  5f59  Contingent  claims. 
§  570  Debts  not  due  paid  by  admin- 
istrator, etc. 
§  571  When  claim  allowed  by  Court. 
§  572  What  claims  included. 
§  573  Presentation  of  claim,  etc. 
§  574  Notice,  etc. 
§  575  Order  of  the  Court. 
§  576  Ordering  claim  paid. 
S  577  Ordering  assets  to  be  retained. 


§  578  Ordering  the  giving  of  bond. 
§  579  Form  of  bond. 
§  580  Allowance  of   Court  not  con- 
clusive. 
§  581  Action  to  be  brought  against 

executor    or    administrator; 

against  heir  if  he  has  given 

bond. 
§  582  Pleading  when  action  brought 

on  bond. 
§  583  Appeal  and  error. 


§  569.     Contingent  claims. 

The  administration  laws  of  our  State  contain  no  provision  es- 
pecially applicable  to  contingent  claims,  where  the  estate  is 
solvent.  If  the  estate  is  insolvent,  it  makes  provision  for  their 
payment  or  presentation.^  The  reason  for  this  may  be,  that 
by  the  provision  of  other  sections  ^  the  distributees  and  legatees 
are  liable  for  any  claim  that  may  become  due  after  the  settle- 
ment of  the  estate'.  If  the  estate  be  insolvent,  of  course  there 
are  no  funds  to  be  distributed  to  heirs,  and  therefore  unless 
the  creditor  could  present  a  contingent  claim,  he  would  be  abso- 
lutely without  remedy.  There  may  be  instances  which  under 
our  present  law  an  owner  of  a  contingent  claim  may  be  left 
without  a  remedy.  For  instance  suppose  that  a  contingent 
claim  does  not  become  a  fixed  one,  for  several  years  after  the 
estate  has  been  distributed,  in  which  time  the  distributees  have 
squandered  the  estate,  in  such  cases  the  owner  of  a  contingent 
claim,  it  seems,  would  be  without  a  remedy.  It  would  be  ad- 
visable, however,  for  the  owner  of  a  contingent  claim  to  present 
the  same,  either  to  the  Court  or  to  the  legal  representative. 


1  §  10888  G.  C,  §  983. 

2  §§10870,    10877-8   G.   C,   §§585, 
687. 


The  distribution  of  an  estate  will 
not  be  delayed  by  a  contingent  claim. 
See    §775. 


§    570  CLAIMS  NOT   DUE  494 

Of  course  the  administrator  or  executor  would  not  be  liable 
to  make  a  payment  thereon  until  the  contingent  claim  had 
become  a  fixed  one  and  he  was  notified  of  that  fact.  An  ad- 
ministrator might  pay  debts  within  six  months  after  his  appoint- 
ment, but  he  could  not  safely  make  a  distribution  with  notice 
of  a  contingent  claim,  unless  more  than  eighteen  months  had 
elapsed  from  the  date  of  his  giving  bond,  if  he  has  given  his 
notice  of  appointment  as  provided  by  law. 

"Claims  not  absolute  or  certain,"  says  Woerner,^  "but  de- 
pending upon  some  event  after  the  debtor's  death,  which  may  or 
may  not  happen,  are  not  enforceable  against  executors  or  admin- 
istrators after  they  have  fully  administered,  without  notice  that 
such  claim  has  become  absolute."* 

§570.     Debts  not  due  paid  by  administrator,  etc. 

There  are  two  sections,  to-wit,  sees.  10735,  10748,  G.  C.  (§571), 
which  seeiu  to  be  applicable  to  debts  of  a  fixed  character  that  do 
not  mature  within  the  eighteen  mouths  limit  of  administration. 
The  provisions  of  sec.  10735  give  ample  powder  to  an  administra- 
tor or  executor  for  paying  a  debt  that  is  not  yet  due,  where  he 
is  satisfied  that  the  debt  is  an  honest  one  and  allows  it.  Section 
10748,  G.  C,  seems  to  make  provision  for  the  allowance  of  a 
claim  which  by  reason  of  its  not  being  due  cannot  be  presented 
as  a  legal  claim  to  the  administrator.  Section  10735  is  as  follows : 

' '  Debts  not  due  may  be  paid  by  an  executor  or  administrator, 
according  to  the  class  to  which  they  belong,  after  discounting 
the  legal  interest  upon  the  sum  paid  for  the  time  unexpired,  if 
the  claim  does  not  bear  interest  before  maturity."  [R.  S. 
§6104.]^ 

§  571.  When  claim  allowed  by  Court.  "A  creditor  whose 
right  of  action  does  not  accrue  within  eighteen  months  after  the 

3  Woerner  on  Admin.  818.  Hantzch  vs.  ]\rassolt.   01   Minn.  361. 

4  "A  contingent  claim  is  where  See  §607,  Limitation  of  action; 
the  liability  depends  upon  some  fu-       §  982,  Order  of  distribution. 

ture   event,  which  may   or  may  not  5  §  10735  G.  C. 

happen,  and  therefore  niakes  it  now  And  the  court  may  order  him  to 

wholly  uncertain  whetlier  there  ever  make  such  payment,  or  receive  a  debt 

will  be  a  liabilit.y.     Poland,  C.  J,,  in  not    vet    due.      Denmead   vs.    Sharp, 

Sargent    vs.    Kimball,    37    Vt.    320.  14  Dec.  301.     It  is  probably  a   dis- 

Cassaday,  J.,  in  Austin  vs.  Saveland,  cretionary     power     in    the     Probate 

77     Wis.     108.      Starr,     C.     J.,     in  Court. 


495  CLAIMS   INCLUDED  §  572 

date  of  the  administration  bond  may  present  his  claim  to  the 
court  from  whicli  the  letters  issued,  at  any  time  before  the  estate 
is  fully  administered.  If,  on  examination  thereof,  it  appears  to 
the  court  that  the  claim  is  justly  due  from  the  estate,  by  eon- 
sent  of  the  creditor  and  executor  or  administrator,  it  may  order 
the  claim  to  be  dischargred,  as  if  due  after  discounting  interest, 
or  that  the  executor  or  administrator  retain  in  his  hands  suffi- 
cient to  satisfy  it.  If  an  heir  of  the  deceased,  or  devisee,  or 
others  interested  in  the  estate,  offers  to  give  bond  to  the  alleged 
creditor,  Avith  sufficient  surety  or  sureties  for  the  payment  of 
the  demand,  in  case  it  be  proved  to  be  due  from  the  estate,  the 
court  may  order  such  bond  to  be  taken,  instead  of  orderiner  the 
claim  to  be  discharged,  or  requiring  the  executor  or  admin- 
istrator to  retain  assets  as  aforesaid."  [R.  S.  ^6115;  102 
V.  204.]« 


§  572.     What  claims  included. 

The  above  section  is  the  only  provision  of  our  laws  that  per- 
mit a  claim  to  be  presented  to  the  Probate  Court  for  its  allow- 
ance. The  holder  of  the  claim  may  present  it,  even  if  the  same 
be  not  due,  to  the  administrator,  and  if  the  administrator  allows 
the  claim  as  provided  in  sec.  10735,  G.  C,  the  same  need  not  be 
presented  to  the  Probate  Court.    But  if  it  is  such  a  claim  that  the 

executor  or  administrator  does  not  wish,  to  allow,  and  the  cred- 
itor wishes  to  hold  the  assets  in  the  hands  of  the  administrator 
or  executor  to  apply  on  his  claim,  then  he  must  make  application 
as  provided  in  the  above  section.  If  the  creditor  so  chooses,  he 
need  not  present  his  claim,  and  when  it  is  due,  he  can  sue  on  the 
same  and  recover  from  the  distributees  of  the  estate.  Even  if 
the  claim  be  presented  to  the  Probate  Court  and  for  some  reason 
be  not  allowed,  the  creditor  has  a  right  to  sue  the  distributees/ 

Whether  or  not  a  contingent  claim  could  be  presented  under 
the  above  section  is  certainly  questionable.  If  it  w^ere  highly 
probable  that  the  contingency  upon  which  the  claim  depends, 
would  arise  at  an  early  date,  the  Court  might  make  an  order  pro- 
tecting its  payment  for  a  skort  time.     But  it  seems  from  the 

fl  §  10748   G.   C.  be  paid,   although  no   execution  has 

T  §§  10877-8  G.  C,   §587.  been  issued  within  five  years.     Am- 

Judgment  on  lands  Is  entitled  to       brose  vs.  Byrne,  61  0.  S    146. 


§  573  CLAIMS  NOT   DUE  496 

words  of  tlie  statute  that  it  is  only  when  the  claim  is  justly  due 
that  the  Court  may  make  the  order.  The  Massachusetts  statute 
is  very  much  similar  to  our  own.  There  it  was  held  that  the  pro- 
ceedings apply  to  any  claim  arising  out  of  the  contract  of  the  de- 
ceased, the  right  of  action  on  which  does  not  accrue  within  two 
years.® 

The  statute  does  not  compel  the  administrator  to  sell  real  es- 
tate to  meet  the  liability  when  it  shall  accrue.* 

A  creditor  of  an  estate  upon  which  ancillary  administration 
has  been  taken  out  here  is  entitled  to  have  assets  retained  to  sat- 
isfy his  claim  when  it  shall  acciaie.^" 

A  claim  of  a  balance  due  a  ward  from  a  guardian  of  a  de- 
ceased intestate,  upon  an  account  filed  by  him  in  his  lifetime, 
which  was  not  allowed  by  the  Probate  Court  until  more  than 
six  year  after  the  taking  out  of  administration  on  his  estate,  is 
within  the  statute.^^ 

Pleading  the  lien  by  the  judgment  creditor,  in  an  action 
brought  by  the  personal  representative  to  sell  the  land  for  the 
payment  of  debts,  is  not  the  commencement  of  an  action  within 
the  purview  of  the  statute  limiting  the  time  within  which  action 
may  be  commenced  against  executors  and  administrators/^ 

§  573.     Presentation  of  claim,  etc. 

A  creditor  holding  such  a  claim  should  present  a  full  state- 
ment of  it  in  writing  to  the  Probate  Court  with  a  petition  for  an 
order  requiring  the  executor  or  administrator  to  retain  in  his 
hands  assets  sufficient  to  satisfy  it  when  it  becomes  due  and  pay- 
able. The  claim  may  be  presented  at  any  time  before  the  estate 
is  fully  administered.  The  following  may  be  used  as  a  form  for 
the  petition : 

'Hammond      vs.      Granger,      128  n  Cobb    vs.    Kempton,    154   Mass. 

Mass.  272.  266. 

» Ciark    vs.    Holbrook.    146    Mass.  12  Ambrose   vs.    Byrne,    61    0.    S. 

366.  146. 

10  Newell   vs.    Peaslee,    151    Mass. 
601. 


497  NOTICE,  ETC.  §  574 

(Title.) 

Now  comes  E.  F.  and  represents  that  he  holds  a  note  (or  other  claim) 
against  the  estate  of  A.  B.,  deceased,  of  which  C.  D.  is  administrator,  etc. 

dated day    of ,    for 

dollars,  which  said  note  will  not  become  due  until  (here  state  date).  (If 
the  claim  is  of  any  other  nature  or  character  other  than  that  of  a  promis- 
sory note,  so  state,  giving  a  full  and  complete  description  of  the  claim.) 

Wherefore  he  asks  that  said  administrator  (or  executor)  may  be 
ordered  to  retain  in  his  hands  a  sufficient  amount  of  the  assets  of  said 
estate  to  pay  said  note  when  the  same  becomes  due.  Or  said  administrator 
(or  executor)  may  be  directed,  if  he  agrees  thereto,  to  pay  said  note  out 
of  the  funds  of  the  estate  now  in  his  hands. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this day 

of ,   190.... 

§  574.     Notice,  etc. 

There  seems  to  be  no  provision  in  the  statute  requiring  a 
notice  to  the  executor  or  administrator,  or  to  any  one  beneficially 
interested.  Possibly  from  the  subsequent  provisions  of  the 
General  Code^^  it  is  not  intended  that  any  such  notice  shouli 
be  given.  The  one  ^*  provides  that  the  decision  of  the  Court 
shall  not  be  conclusive  against  any  person  interested  to  oppose 
the  allowance,  and  the  other  provides  tliat  if  it  is-  not  allowed, 
8uit  may  be  brought  against  the  distributees.  If  it  is  sought, 
however,  to  have  the  claim  discounted  and  paid  by  the  adminis- 
trator, he  should  in  some  manner  be  brought  into  Court.  Per- 
haps the  best  way  would  be,  if  the  administrator  or  executor  is 
willing,  for  him  to  file  an  answer,  which  might  be  in  the  follow- 
ing form: 

(Title.) 

Now  conies  C.  D.,  administrator  (or  executor)  of  the  deceased  A.  B., 
and  represents  to  the  Court  that  he  has  examined  the  application  of  E.  F. 
for  the  Court  to  make  an  order  allowing  his  claim  which  is  not  yet  due; 
and  the  said  administrator  (or  executor)  consents  to  the  prayer  of  said 
application  and  joins  therein  asking  the  Court  to  make  an  order  that 
the  same  be  discharged  in  like  manner  as  if  due,  after  discounting  the 
interest. 


§  575.     Order  of  the  Court. 

The  statute  seems  to  contemplate  that  the  Court  may  make 
either  one  of  three  orders.  First,  it  may  order  the  claim  to  be 
paid  by  the  executor  after  discounting  the  interest,  or  second, 
it  may  order  the  executor  or  administrator  to  retain  in  his  hands 

13  s§  10749,  10877-8  G.  C,  §§  580,  i4  §  10749  G.  C. 

587. 


§  576  CLAIMS  NOT  DUE  498 

sufficient  assets  to  satisfy  the  same,  or  third,  if  any  of  the  heirs 
or  devisees  or  others  interested  in  the  estate  shall  offer  to  give  a 
bond  to  the  alleged  creditor,  the  same  may  be  taken  instead  of 
ordering  either  the  claim  paid  or  the  retaining  of  assets.  ISTeither 
one  of  these  orders  can  be  made  by  the  Court,  unless  it  shall  ap- 
pear to  the  Court  that  the  claim  is  justly  due  from  the  estate^ 
These  are  the  words  that  seem  to  make  it  very  doubtful  whether 
the  Court  could  make  an  order  on  a  contingent  claim,  for  no 
claim  can  be  said  to  be  justly  due  which  may  never  become  due 
at  all.  Several  entries  providing  for  the  various  orders  which 
the  Court  may  give  will  be  given  in  the  following  sections. 

The  application  to  the  Court  does  not  involve  an  inquiry  into 
the  amount  of  assets  in  the  executor's  hands,  but  is  limited  to  the 
question  whether  the  claim  is,  or  may  become,  justly  due  from 
the  estate.^^ 

§  576.     Ordering  claim  paid. 

If,  upon  hearing,  which  should  be  one  that  fully  satisfies  the 
Court  that  the  claim  is  justly  due,  and  it  further  appear  that 
both  the  creditor  and  the  executor  are  willing  to  have  the  claim 
allowed  and  paid  out  of  the  assets,  and  the  heirs  do  not  offer  to 
give  bond,  the  following  may  be  a  proper  entry : 
(Title.) 

This  day  came  E.  F.  and  presented  to  the  Court  his  claim  in  the  sum 

of dollars,  against  the  above  estate.     Which  claim  is 

not  due  until  after  the day  of ,  which  is  more 

than  two  years  from  the  date  of  the  bond  of  the  said  administrator  (or 
executor)  of  said  estate.  And  the  said  C.  D.,  administrator  (or  executor), 
having  filed  his  answer  in  this  Court  consenting  that  said  claim  may  be 
ordered  paid,  and  on  examination  it  appearing  to  the  Court  that  said 
claim  is  justly  due  from  the  said  estate,  it  is  now  ordered  that  said  admin- 
istrator   (or  executor)   of  said  estate  pay  the  present  value  of  said  claim, 

to-wit:     The  sum  of dollars,  to  the  said  E.  F.  in  full 

satisfaction   and   discharge  of   his   claim. 

§  577.     Ordering  assets  to  be  retained. 

If  it  appear  to  the  Court,  on  examination  of  the  claim,  that 
the  estate  is  justly  indebted  thereon,  that  neither  or  either  of  the 

15  Hammond  vs.  Granger,  131  due  and  payable,  but  that  it  con- 
Mass.  351.  stitutes   a   just   debt   of   the   estate 

The  words  "justly  due"  on  draft  and  should  in  equity  be  payable  out 

mean,   not   that  the   claim   is   then  of  the  funds  of  the  estate. 


'499  OKDEE,   FOE  BOND  §  578 

creditor  or  administrator  or  executor  desires  or  consents  to  the 
present  payment  of  said  claim,  and  the  heirs  do  not  offer  tO'  give 
bond,  the  following  may  be  used  as  proper  entjy : 

{Title.) 
This  day  this  matter  came  on  to  be  heard,  upon  the  application  of  E.  F., 

for  an  order  of  this  Court  on  his  claim,  amounting  to 

dollars,  which  is  not  yet  due.     And  it  appearing  to  the  Court  that  there 

i8  justly  due  on  said  claim,  from  the  estate  of  A.  B.,  the  sum  of 

dollars.  Neither  the  said  E.  F.  nor  the  said  C.  D.,  admin- 
istrator (or  executor)  of  the  estate  of  A.  B.  consenting  to  the  payment  of 
Baid  claim,  and  none  of  the  heirs  or  others  interested  in  said  estate  offering 
to  give  bond,  as  provided  by  law,  it  is  ordered  that  said  C.  D.,  as  admin- 
istrator (or  executor)  of  the  estate  of  A.  B.,  retain  in  his  hands  suflBcient 
money  to  satisfy  the  said  claim  when  it  shall  become  due  and  payable. 

§  578.    Ordering  the  giving  of  bond. 

If  any  of  the  heirs  of  the  deceased  or  devisee,  or  others  inter- 
ested in  the  estate,  shall  offer  to  give  bond  to  the  alleged  creditor 
with  sufficient  surety  or  sureties  for  the  payment  of  the  demand, 
the  Court  may,  if  it  thinks  fit,  order  such  bond  to  be  taken,  in- 
stead of  ordering  either  the  claim  to  be  paid  or  assets  to  be  re- 
tained. In  such  cases  the  entry  may  be  in  the  following  form : 
{Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  E.  F., 

for  an  order  of  this  Court  on  his  claim,  amounting  to 

dollars,  which  is  not  yet  due.     And  it  appearing  to  the  Court  that  there 

is  justly  due  on  said  claim,  from  the  estate  of  A.  B.,  the  sum  of 

dollars.     And   I.   J.,   one  of   the   heirs   of  the  dec3ased,   having 

oflFered  to  give  bond  with  sufficient  surety  to  the  said  E.  F.  for  the  payment 
of  said  claim  when  it  shall  become  due  and  payable,  in  case  it  shall  prove  to 
be  valid.  It  is  now  ordered  that  if  the  said  bond,  with  M.  N.  and  O.  P. 
as  sureties,  be  executed  and  given  to  said  E.  F.,  that  the  said  administrator 
(or  executor)  be  released  from  tlie  payment  of  said  claim,  and  that  the 
said  E.  F.  shall  thereafter  proceed  to  collect  his  claim  from  the  said  I.  J., 
a-s  provided  by  law. 

§  579.     Form  of  bond. 

The  bond  shall  be  given  to  the  alleged  creditor  with  sufficient 
surety  or  sureties  for  the  payment  of  the  demands  in  case  the 
same  shall  be  proved  to  be  due  from  the  estate.  It  seems  that 
the  creditor  having  applied  to  the  Court,  is  bound  to  accept  the 
bond  ordered  by  the  Court.  The  bond  may  be  in  the  following 
form : 

Knotc  all  Men  by  these  Presents: 

That  we,  I.  J.,  M.  N.  and  O.  P.,  are  held  and  firmly  bound  unto  E.  F.  in 
the   sum    of dollars,    to    the    payment    of    which    we 


§  580  CLAIMS  NOT  DUE  500 

jointly  and  severally  bind  ourselves,  our  heirs,  executors  and  administrator, 
if  default  be  made  in  the  condition  following. 

Whereas,  E.  F.  has  filed  his  petition  in  the  Probate  Court  within  and 

for  the  county  of ,  and   State  of   Ohio,   alleging 

that  he  holds  a  claim  against  the  estate  of  A.  B.,  deceased,  consisting  of  a 

note,  dated ,   190 ... ,  and  calling  for 

dollars  in years  from  date    (or  otherwise  briefly 

describe  the  claim,  according  to  the  facts)  ;  and  praying  that  inasmuch 
as  said  note  will  not  become  due  until  after  the  expiration  of  two  years 
from  the  date  of  the  bond  of  C.  D.,  the  administrator  of  the  estate  (or 
executor  of  the  last  will  and  testament)  of  said  A.  B.,  deceased,  said  C.  D. 
may  be  ordered  to  pay  said  claim  forthwith,  upon  rebate  of  interest,  or 
that  he  may  be  ordered  to  retain  in  his  hands  sufficient  assets  of  said 
estate  to  pay  said  claim  when  the  same  becomes  due;  and,  whereas,  the 
said  I.  J.,  one  of  the  heirs-at-law  of  said  A.  B.,  deceased,  has  off'ered  to 
said  Probate  Court  to  give  bond  for  the  payment  of  said  claim,  in  case  the 
prayer  of  said  E.  F.  should  not  be  granted,  which  offer  has  been  accepted 
by  the  Court.  Now,  therefore,  if  the  said  I.  J.  shall  pay  the  claim  of 
said  E.  F.  when  the  same  becomes  due,  in  case  it  shall  be  proved  to  be  a 
valid  debt  of  said  estate,  then  this  obligation  shall  be  void;  otherwise  it 
shall  be  and  remain  in  full  force  and  effect. 

Signed  by  us,  this day  of ,  A.  D.  190 ... . 

( Signatures.  ^ 

§  580.  Allowance  of  Court  not  conclusive,  and  executor  or 
administrator  not  compelled  to  pay  if  disputed,  unless,  etc. 
"The  decision  of  the  court  thereon  shall  not  be  conclusive 
against  the  executor  or  administrator,  or*  other  person  interesteJi 
to  oppose  the  allowance  of  the  claim.  They  shall  not  be  com- 
pelled to  pay  it  if  disputed  by  them,  unless  it  be  proved  to  be 
due,  in  an  action  to  be  commenced  by  the  claimant,  within  six 
months  after  it  becomes  payable."     [R.  S.  §  6116.]^^ 

It  will  be  observed  from  the  provisions  of  the  above  section 
that  the  orders  made  under  sec.  10748,  G.  C,  do  not  prevent  the 
executor  or  administrator,  or  any  other  person,  from  opposing 
the  allowance  of  the  claim,  any  time  thereafter  when  it  shall  be 
presented  as  a  claim  against  the  estate.  It  would  therefore  seem 
that  any  action  that  might  be  taken  under  sec.  10748,  G.  C, 
would  have  no  other  bearing  on  the  claim  when  it  became  due 
except  to  retain  assets  to  meet  the  same,  or  to  have  a  sufficient 
bond  to  provide  for  its  payment.  It  is  no  adjudication  of  the 
claim  in  any  respect  whatever. 

§  581.  Action  to  be  brought  against  executor  or  administra- 
tor; against  heir  if  he  has  given  bond.  "The  action  for  this 
purpose  must  be  brought  against  the  executor  or  administrator, 

16  §  10749  G.  C. 


501  PLEADING,   ETC.  §  582 

in  case  he  has  been  required  to  retain  assets  therefor,  or  ordered 
to  pay  it.  But  if  the  heirs  or  others  interested  in  the  estate  gave 
bond,  as  before  provided,  the  action  shall  be  brought  on  the 
bond."     [R.  S.  §6117.]!^ 

§  582.  Pleading-  when  action  brought  on  bond.  "If  action 
be  so  brought,  the  plaintiff  must  set  out  his  demand  as  in  an 
action  against  the  executor  or  administrator,  alleging  the  lia- 
bility of  the  defendants  by  reason  of  the  bond.  The  defendants 
may  plead  any  defense  that  would  be  available  to  the  executor 
or  administrator."     [R.  S.  §  6118.]i8 

§  583.     Appeal  and  error. 

There  seems  to  be  no  statute  making  provision  for  an  appeal 
from  the  decision  of  the  Probate  Court  made  upon  any  question 
presented  under  the  provisions  of  sec.  10748,  G.  C.  (§  571),  and 
it  is  therefore  thought  there  is  no  right  of  appeal.  It  is  likewise 
very  questionable  whether  error  could  be  prosecuted  en  any 
order  that  the  Court  might  make,  for  sec.  10877,  G.  C.  (§  587) 
contemplates  that  a  claim  presented  may  not  be  allowed  by  the 
Court.  If  it  is  not  allowed  by  virtue  of  that  section,  the  right 
of  the  creditor  to  prosecute  his  claim  against  the  distributees 
is  fully  protected.  Likewise  in  sec.  10877,  G.  C.  (§587)  it  is 
provided  that  the  decision  of  the  Court  shall  not  be  conclusive 
against  the  executor  or  administrator,  or  other  person  interested, 
to  oppose  the  allowance  thereof.  So  it  may  be  very  much  doubted 
whether  the  action  of  the  Court  on  a  claim  presented  under  sec. 
10748,  G.  C.  (§  571)  would  be  such  a  final  order  as  would  give 
ground  to  prosecute  a  suit  in  error. 

17  §  10750  G.  C.  not    prevent    action    against    heirs, 

18  §  10751   G.  C.  etc.,  as  elsewhere  provided.     §  10752 
Action   under  these   sections   will       G.  C,  §  585. 


584  CLAIMS  UNPAID  AT  SETTLEMEJSTT  502 


CHAPTER  XXXIY. 

CLAIMS  UNPAID  AT   SETTLEMENT. 

§  584     Claim     due     must     be     pre-  §  589     Estate     of     any     heir,     etc., 
sented,    etc.  liable  after  his  death. 

§  585     Estate    of    deceased    in    the  §  590     Where    two    or    more    liable, 
hands     of     the     heir,     etc.;  creditor      may      proceed 

liable   for   certain   debts.  against  all  in  one  action. 

§  586     Jurisdiction,    etc.  §  591     Insolvency,    etc.,    of    heir    or 

§  587     Heirs,   etc.,   to   contribute   to  devisee  not  to  affect  liabil- 

pay  claims  after  settlement  ity   of   others, 

of   estate,  and  how.  §  592    Amendments  allowed  to  bring 

§  587a  Limitation,  etc.  in  other  parties. 

§  588     Comments.  §  593     Heirs,   etc.,   liable   to   contri- 
bution.     How    recoverable. 

§  584.     Claim  due  must  be  presented,  etc. 

In  the  previous  chapter  we  have  treated  of  the  manner  in  which 
claims  that  are  not  due  before  settlement,  or  eighteen  months 
from  the  time  the  administrator  or  executor  gives  bond,  may  be 
presented  and  the  creditor's  rights  protected.  It  was  there  said 
that  it  was  not  mandatory  on  the  creditor  to  present  his  claim  if 
it  was  not  due  before  final  settlement  was  made.  It  will  be  the 
purpose  of  this  chapter  to  give  the  provisions  of  the  General 
Code  giving  to  creditors  a  right  to  proceed  against  heirs  and 
legatees.  As  the  Probate  Court  has  no  jurisdiction  over  the  set- 
tlement of  estates  after  a  final  settlement  is  made,  it  might  not 
properly  come  within  the  province  of  this  work  to  treat  of 
actions  brought  after  a  final  settlement,  but  as  it  is  very  closely 
allied  to  a  proper  settlement  of  an  estate,  the  sections  of  the 
General  Code  will  be  given  with  some  brief  comments.  It  has 
always  been  deemed  equitable  and  just  that  the  assets  of  a 
deceased  person  should,  wherever  they  may  be  found,  be  made 
applicable  to  the  payment  of  his  just  debts  and  liabilities.  Cred- 
itors, however,  can  not  sit  idly  by  during  the  administration  of 

Beneficiaries    under    a    trust    can  there     being      no      claim      asserted 

not  maintain  an  action  against  the  against   his   estate   within  the  time 

heirs    and    legatees    of    a    deceased  fixed  by  the  laws  of  administration, 

trustee   or   enforce  a  claim   against  Robson  vs.  Evans,  35  O.  C.  C.  510. 
their     interest    in    trust    property, 


503  ESTATE   IN    HANDS   OF   HEIRS,    ETC.  §  585 

an  estate  and  not  present  their  claims  without  dangler  of  losing 
the  same.  If  they  do  not  present  them  within  six  months,  the 
executor  or  administrator  may  proceed  to  pay  debts.  If  they 
do  not  present  their  claims  in  case  they  are  due  before  he  makes 
a  final  settlement,  provided  such  settlement  is  made  more  than 
eighteen  months  after  the  date  of  his  bond,  or  when  settlement 
has  been  made  before  eighteen  months  from  date  of  bond,  and 
claim  has  not  been  presented  before  the  expiration  of  the  said 
eighteen  months,  they  can  not  proceed  to  collect  the  same  from 
the  heirs  or  devisees.  Such  neglect  or  failure  to  act  upon  the 
part  of  the  creditor  will  have  lost  him  his  claim  entirely.  Under 
the  provisions  of  the  subsequent  sections  of  the  General  Code 
referred  to  in  this  chapter,  the  creditor  would  also  be  barred  of 
his  claim  if  he  did  not  commence  action  within  one  year  after 
the  same  was  due.  Another  matter  that  should  be  observed  is 
that  no  creditor  can  bring  a  suit  against  an  heir  or  devisee  until 
after  a  final  settlement.^ 

If  no  action  can  be  brought  by  a  creditor  against  an  heir  until 
after  a  final  settlement,  it  would  likewise  follow  that  no  creditor 
could  bring  suit  against  an  heir  until  there  had  been  an  admin- 
istration of  the  estate.  The  method  of  procedure  for  a  cred- 
itor who  has  a  claim,  in  which  there  had  never  been  an  admin- 
istration of  the  estate,  is  to  have  an  administrator  appointed, 
and  then  present  his  claim  to  the  administrator. 

Courts  of  equity  refuse  to  aid  creditors  who  fail  to  collect 
their  claims,  in  the  mode  thus  pointed  out  by  law,  before  final 
settlement  and  discharge  of  the  administrator,  without  satis- 
factory excuse.^* 

§  585.  Estate  of  deceased  in  the  hands  of  heirs,  etc. ;  liable 
for  certain  debts.  "After  the  settlement  of  an  estate  by  an 
executor  or  administrator,  and  the  expiration  of  the  time  limited 
for  the  commencement  of  actions  against  him  by  the  creditors 
of  the  deceased,  his  heirs,  next  of  kin,  widow  as  next  of  kin, 
devisees,  and  legatees  shall  be  liable  by  action  in  the  common 
pleas  or  superior  court  as  provided  in  the  following  sections, 
for  all  debts,  which  could  not  have  been  sued  for,  against  the 
executor  or  administrator,  and  for  which  provision  was  not 
made,  as  hereinbefore  provided."     [R.  S.  §6217.]- 

lArbaugh    vs.    Millett,    5    C.    C.  College,     17    Wall,    521,    530.       See 

295;   3  C.  D.   146.  §014,   Limitation  of   action;    §617, 

1*  Collamore  vs.  Wilder,   19  Kan.  When  not  barred. 

67,  80;  Public  Works  vs.  Columbia  2  §  10876  G.  C. 


§586 


CLAIMS  NOT  DUE  AT  SETTLEMENT 


504 


§  586.     Jurisdiction,  etc. 

The  action  by  the  creditor  must  he  bro\ight  in  the  Common 
Pleas  or  Superior  Court  of  the  county  in  which  service  of  sum- 
mons on  the  heir  can  be  obtained,  and  only  exists  for  debts  on 
which  an  action  could  not  have  been  maintained  against  the  ex- 
ecutor or  administrator,  or  w^here  no  provision  has  been  made, 
such  as  the  retaining  of  assets,  or  the  giving  of  bond  provided 
for  in  the  previous  chapter.  As  before  stated,  the  action  can- 
not be  brought  until  the  estate  has  been  administered  upon,  and 
a  final  settlement  made.-^  A^  a  general  rule,  it  may  be  said  that  | 
the  sale  of  real  estate  by  an  heir  conveys  a  title  which  is  subject 
to  a  creditor's  lien,^  unless  the  estate  has  been  fully  adminis- 
tered, as  provided  by  law,  and  the  sale  be  made  to  an  innocent 
purchaser. 

It  sliould  be  furtlier  observed  that  the  action  provided  for  is  a  I 
personal  action  against  the  heir  or  distributee,  etc.,  and  that  it 
is  not  one  that  follows  the  property  itself,  which  may  have  been 
received  in  distribution;  and  therefore  if  the  heirs  and  distrib- 
utees become  bankrupt  before  the  creditor  gets  judgment,  he 
would  be  without  a  remedy. 

?  587,  Reirs,  etc.,  to  contribute  to  pay  claims  after  settle- 
ment of  estate,  and  how.  ' '  Such  creditor,  whose  right  of  action 
first  accrues  after  the  expiration  of  the  time  of  such  limitation, 
and  whose  claim  had  not  been  presented  to  the  court,  or  if  pre- 
sented, not  allowed,  as  hereinbefore  provided,  may  recover  itj 
against  the  heirs,  widow,  as  next  of  kin,  and  next  of  kin  of  the 
deceased,  and  the  devisees  and  legatees  under  his  "will,  each  onej 
of  whom  shall  be  liable  to  the  creditor  to  an  amount  not  exceed- 
ing the  value  of  real  or  personal  estate  that  he  or  she  received 
under  the  will,  or  by  the  distribution  of  his  estate.     If,  by  the 


2aArbaugh  vs.  Millett,  5  C.  C. 
295;   3  C.  D.  147. 

3  Farren  vs.  Robinson,  17  0.  S. 
243;  Stiver  vs.  Stiver,  8  0.  221; 
Piatt  vs.  St.  Clair,  6  0.  227. 


In  an  action  by  a  creditor  I 
against  tbe  lieirs,  after  tlie  estate  is] 
settled,  tlie  same  defense  may  be] 
made  as  could  have  been  made  by] 
the  administrator.  Camp  vs.  Bost-] 
wick,  20  0.  S.  337. 


505  CONTRIBUTION    AMONG    HEIRS  §  587a 

will  of  the  deceased,  any  part  of  his  estate,  or  one  or  more  of  the 
devisees  or  legatees,  be  made  exclusively  liable  for  the  debt,  in 
exoneration  of  the  residue  of  the  estate,  or  of  the  other  devisees 
or  legatees,  it  must  be  complied  with  in  that  respect,  and  the 
persons  and  estate  so  exempt  by  the  will,  be  liable  for  only  so 
much  of  the  debt  as  can  not  be  recovered  from  those  first  charge- 
able therewith."     [R.  S.  §6218.]* 

§  587a.  Limitation.  "No  such  suit  shall  be  maintained  un- 
less commenced  within  one  year  next  after  the  time  when  the 
right  of  action  first  accrues,  except  the  person  entitled  to  bring 
it  be,  at  the  time  it  accrued,  within  the  age  of  twenty-one  years 
if  a  male,  eighteen  years  if  a  female,  insane,  or  imprisoned,  in 
which  case,  every  such  person  may  bring  such  action  within 
one  year  after  the  disability  is  removed."      [R.   S.   §6218.]** 


§  588.     Comments. 

Several  things  may  be  observed  about  the  above  section.  First, 
the  creditor  can  only  bring  the  action  if  it  accrued  after  the 
time  of  the  limitation  of  a  settlement,  or  when  a  settlement  has 
been  made  that  the  claim  shall  not  have  been  presented  to  the 
Court-,  or  if  it  has  been  presented,  that  it  was  not  allowed.  Sec- 
ond, that  the  creditor  may  recover  the  same  against  the  persons 
that  have  received  the  estate  on  distribution,  each  one  of  whom 
shall  be  liable  not  exceeding  the  value  of  what  he  shall  have  re- 
ceived. Third,  if  there  was  a  will,  and  any  part  of  the  funds 
or  property  distributed  was  made  liable  primarily  for  the  debts, 
the  legatee  receiving  the  same  first  would  be  liable,  and  the  will 
in  that  respect  should  be  complied  with.  Fourth,  that  no  suit 
shall  be  maintained  unless  it  be  commenced  within  one  year  after 
the  time  when  the  right  of  action  accrued,  except  for  a  disability 
therein  mentioned.      » 


4  §  10877  G.  C.  under    the    provisions    of    §§  10876, 

4*  §  10878  G.  C.  10877  and  10878  G.  C.     Robson  vs. 

This   limitation   is   not   merely   a  Evans,  35  0.  C.  C.  513.    See  Thomas 

statute    of    limitations    relating    to  vs.  Kalbfus,  97  0.  S.  232. 

the    remedy,    but     is     a     necessary  When    a   cause   of   action   accrues 

qualification   of   the   right  to  main-  before  the  expiration  of  the  time  in 

tain  the  action.     Roth  vs.  Hummel,  which  an  executor  may  be  sued,  suit 

1  0.  App.  361;  35  0.  C.  C.  355.  can  not  be  maintained  against  tlie 

The  only  cases  in  wliicli  heirs  and  lieirs.      Bevitt    vs.    Diehl,    12    Dec. 

devisees    miglit    be    held    liable    are  383-315.     See  §  G13. 


§  589  CLAIMS    UNPAID    AT    SETTLEMENT  506 

§  589.     Estate  of  any  heir,  etc.,  liable  after  his  death.     "If 

any  of  such  heirs,  next  of  kin,  widow,  devisees,  or  legatees,  dies 
without  having  paid  his  or  her  just  proportion  of  such  debt,  his 
or  her  executors  or  administrators  shall  be  liable  therefor  to 
the  extent  he  or  she  would  have  been  if  living."     [R.  S.  §  6219.]' 

§  590.  Where  two  or  more  liable,  creditor  may  proceed 
against  all  in  one  action.  "If,  in  the  cases  specified  in  the 
next  three  preceding  sections,  more  than  one  person  is  liable  for 
the  debt,  the  creditor  by  one  action  shall  proceed  to  recover  it 
against  all  so  liable,  or  as  many  of  them  as  are  within  the  reach 
of  process.  Thereupon,  by  the  verdict  of  a  jury  if  either  party 
requires  it,  the  court  must  determine  what  sum,  if  any,  is  due 
to  the  plaintiff.  They  also  according  to  the  equities  of  the  case, 
shall  decide  how  much  each  of  the  defendants  is  liable  to  pay 
toward  the  satisfaction  of  the  debt,  and  the  court  shall  render 
judgment  accordingly."     [R.  S.  §  6220.]" 

§  591.  Insolvency,  etc.,  of  heir  or  devisee  not  to  effect  lia- 
bility of  others.  "If  any  of  the  heirs,  devisees,  or  others  who 
were  originally  liable  for  the  debt,  be  insolvent  or  unable  to 
pay  his  proportion,  or  is  beyond  the  reach  of  process,  the  others 
nevertheless  shall  be  liable  to  the  creditor  for  the  whole  amount 
of  his  debt ;  except  that  no  one  shall  be  compelled  to  pay  more 
than  the  amount  received  by  him  from  the  decedent's  estate." 
[R.  S.  §6221.]^ 

§  592.  Amendments  allowed  to  bring  in  other  parties.  ' '  No 
suit  shall  be  dismissed  or  debarred  for  not  making  all  the  persons 
defendants  who  might  have  been  included  as  such.  In  any  stage 
of  the  cause  the  court  may  award  process  to  bring  in  other  par- 
ties, and  allow  amendments  necessary  to  charge  them,  as  de- 
fendants, upon  such  terms  as  it  deems  reasonable."  [R.  S. 
§6222.]« 

§  593.    Heirs,  etc.,  liable  to  contribution.    How  recoverable. 

"If,  in  consecpience  of  insolvency,  absence  or  other  cause,  any 
of  the  persons  liable  for  such  debt,  fails  to  pay  his  just  pro- 
portion to  the  creditor,  he  shall  be  liable  to  indemnify  all  who, 
by  reason  of  such  failure  on  his  part,  have  paid  more  than  their 

5  §  10879  G.  C.  Each  heir  is  liable  separately  for 

G  §  10880  G.  C.  the  amount  received  by  him   from 

7  §  10881  G.  C.  the  estate.     Spicer  vs.  Giselman,  15 

8  §  10882  G.  C.  0.  338. 


507  RECOVERY  FROM  HEIRS  §  593 

just  proportion  of  the  debt — such  indemnity  to  be  recovered  by 
all  of  them  jointly,  or  in  separate  actions  by  anj'"  one  or  more, 
for  his  or  their  parts  respectively,  at  their  election."      [R.  S. 

§  6223.]'' 

9  §  10883   G.   C.     See  general   dis-       Admin.,     pp.     1261     to     1272.      See 
cussion     of     subject,     Woerner     on       Schouler,   Extrs.   §  445. 


§  594  AUBITRATION  OF  CLAIMS  508 


CHAPTER  XXXV. 

AEBITEATION  OF  CLAIMS. 

§  594  Doubtful  claims  against  an  es-        §  599  if  it  exceed  one  hundred  dol- 
tate  to  De  referred  to  arbitra-  lars. 

tion.  §  600  Duties  of  Probate  Judge,  etc. 

§  595  Construction  of  statute.  f  ^Ji  5°*'''^    """/^    °^*^  .*°    referees. 

„  -„^    .  .  ^        r  8  602  Referees    to   report    to    Court. 

§  o96  Agreement  to  refer.  Proceedings,       powers,      and 

§  597  How  proceeded  on  if  claim  is  compensation      of      referees* 

less    than    one    hundred    dol-  costs. 

Ij^j.g  §  60,3  Hearing,    etc. 

R  nna  T^  4^-         (   ^-i       r     ^-         r  ..u         ^  ^^^  Witnesses,  how  procured,  etc. 
§  598  Duties   of   the   Justice  of   the       §  605  Filing  of  an  award. 

Peace.  §  60G  Form      of      confirmation      of 

award. 

§  594  Doubtful  claims  against  an  estate  to  be  referred  to 
arbitration.  "If  the  executor  or  administrator  doubts  the 
justice  of  any  claim  presented,  and  so  verified,  he  may 
enter  into  an  agreement  in  writing,  witli  the  claimant, 
to  refer  the  matter  in  controversy  to  three  disinterested 
persons,  who,  if  the  claim  does  not  exceed  one  hundred 
dollars,  shall  be  approved  of  by  a  justice  of  the  peace  of  the 
county  in  which  the  letters  were  issued.  If  the  claim  exceeds 
one  hundred  dollars,  the  referees  must  be  approved  of  by  the 
probate  judge."     [R.  S.  §  6093.] ^ 

§  595.     Construction  of  statute. 

In  construing  the  sections  of  the  General  Code  referred  to 
in  this  chapter,  our  Supreme  Court  says:-  "That  an  executor 
or  administrator  has  the  power,  at  common  law,  to  submit  to 
arbitration  a  disputed  claim  against  the  estate  which  he  repre- 
sents is,  we  think,  unquestionable.  An  important  part  of  the 
duties  which  he  is  appointed  to  perform  is  the  payment  of  the 
debts  due  from  the  estate.     In  the  discharge  of  this  duty  he 

1  §  10718  G.  C.  The  rejection  of  a  claim  does  not 
For  authority  of  administrator  or  prevent  the  administrator  from  sub- 
executor    to    submit    to    arbitration  mitting    it    to    arbitration.       Brad- 
of  claims  in  favor  of  the  estate,  see  street  vs.  Pross,  9  Dec.  Rep.  154;  11 
§455.     See  §969,  Insolvent  estates.  Bull.  117. 

2  Childs  vs.  Updyke,  9  0.  S.  336. 


509  CONSTKUCTION  OF  STATUTE,  §  595 

must  first  ascertain  the  extent  to  which  the  claims  presented  for 
payment  are  just  and  valid.  This  he  may  do,  if  he  and  the 
creditors  can  so  agree,  either  by  means  of  arbitration  or  without 
it.  And  by  such  acts,  done  in  good  faith,  the  estate  must  be 
bound.  These  sections  provide,  substantially,  that  when  the 
amount  of  the-  claim  so  referred  does  not  exceed  one  hundred  dol- 
lars, the  agreement  or  reference  and  the  approval  of  the  referees 
may  be  filed  with  such  Justice  of  the  Peace  as  the  parties  may 
agree  upon,  who  shall  thereupon  docket  the  cause,  appoint  a  day 
of  trial,  cite  the  referees,  subpoena  witnesses,  and  proceed  to  the 
trial  of  the  cause,  and  render  judgment  upon  the  finding  of  the 
referees.  But,  if  the  claim  so  referred  exceed  one  hundrd  dol- 
lars, the  agreement  of  reference  and  approval  of  the  Probate 
Judge  may  be  filed  with  the  clerk  of  the  Court  of  Common 
Pleas  of  the  county  in  which  the  parties,  or  either  of  them,  re- 
side (now  Probate  Judge),  and  said  clerk  shall  thereupon  docket 
the  cause,  and  enter  a  rule  referring  the  matter  in  controversy 
to  the  persons  so  selected.  The  referees  shall  thereupon  hear 
and  determine  the  matter,  and  make  their  report  thereon  to  said 
Court.  This  report  the  Court  may  set  aside  or  confirm,  and 
render  judgment  thereon,  which  shall  be  valid  and  effectual,  and 
in  all  respects,  as  in  other  cases  (Swan's  Stat.  377,  original  sees. 
87,  88,  89).  The  manifest  object  of  these  provisions  was  to 
furnish  a  mode  of  trial,  a  cumulative  remedy,  which,  by  consent 
of  parties,  the  administrator  might  adopt,  instead  of  an  ordinary 
civil  action.  In  this  mode  of  trial,  the  award  or  report  of  the 
referees  stands  as  the  verdict  of  a  jury,  on  which  judgment  may 
be  summarily  entered.  To  give  it  this  effect  the  requirements 
of  the  statute  must  be  substantially  pursued,  and  therefore  the 
referees  must  be  approved  by  the  proper  officer.  But  this  cumu- 
lative remedy  does  not,  as  we  think,  take  away  or  affect  the  com- 
mon law  right  of  the  parties  to  submit  the  matter  in  dispute 
between  them  to  arbitration.  The  award  rendered  in  such  com- 
mon law  arbitration  has  no  judicial  force.  It  operates  neither 
as  a  judgment  nor  as  the  verdict  of  a  jury.  The  failure  to  per- 
form it  may  constitute  a  cause  of  action,  or  its  performance  may 
furnish  a  good  defense  in  a  subsequent  suit  between  the  parties 


§  596  ARBITBATION  OF  CLAIMS  510 

on  the  same  subject  matter.  But  no  judicial  action  can  be  had 
upon  it  without  pleadiugs  as  in  other  cases." 

A  claim  may  be  submitted  to  arbitration  even  after  it  has  been 
rejected  by  the  administrator  and  suit  brought. 

In  Bradstreet  vs.  Pross,^  it  was  held  that  "  notwithstanding 
the  parties  to  a  statutory  arbitration  may  have  agreed  that  the 
award  of  the  arbitration  upon  questions  of  fact  should  be  final 
and  conclusive  upon  both  parties,  such  an  agreement  cannot  de- 
prive the  Court  of  jurisdiction  to  order  a  remittitur,  where,  in 
the  opinion  of  the  Court,  the  sum  awarded  by  the  arbitrators  was 
excessive.  The  parties  cannot  by  their  agreement  either  give 
jurisdiction  to  the  Court  or  take  it  away  from  the  Court." 

§  596.     Agreement  to  refer. 

Several  matters  are  jurisdictional  in  order  to  constitute  a  valid 
award  within  the  provisions  of  the  sections  of  the  General 
Code  given  in  this  chapter.  The  first  is  that  a  claim  must  have 
been  presented,  verified  according  to  law,  to  the  administrator 
or  executor.  Then  there  must  be  an  agreement  entered  into  in 
writing  to  refer  the  matter  in  controversy.  The  statute  does 
not  contemplate  that  there  should  be  any  other  pleadings  in  the 
case  than  what  may  be  sho^^m  upon  this  agreement  in  writing. 
It  is  said  therefore  that  this  agreement  in  writing  should  state 
the  names  of  the  parties  and  such  allegations  showing  the  nature 
and  kind  of  the  claim,  as  would  support  a  petition  if  the  claim 
were  sued  on  in  a  court  of  justice.  It  is  further  a  jurisdictional 
matter  to  have  the  reference  approved  as  provided  by  statute. 
The  form  of  agreement  may  be  as  follows : 

Whereas,  the  undersigned  A.  B.,  holds  a  claim  against  the  estate  of  C. 

D.,  deceased,  in  the  sum  of dollars    (state  the  nature 

of  the  claim)  which  he  has  presented  for  allowance  to  E.  F.,  the  executor 
of  the  last  will  and  testament  of  (or  administrator  of  the  estate  of)  said 
decedent:  Whereas  said  defendant  E.  F..  disputes  the  validity  of  said 
claim  (or  denies  that  the  claim  is  a  just  debt  against  said  estate).  It  is 
therefore  agreed  between  the  said  A.  B.  and  E.  F.,  to  refer  the  matter  in 
dispute  to  the  arbitration  of  G.  H.,  I.  J.  and  K.  L.,  "vho  shall  be  subject 

to  the  approval  of  M.  N.,  of county   (in  which  letters 

were  issued).      (But  if  the  claim  does  not  exceed  one  hundred  dollars,  say) 

3  11  Bull.  117;  9  Bull.  244. 


511  LESS    THAN    $100  §  597 

who  shall  be  subject  to  the  approval  of  O.  P.,  a  justice  of  the  peace,  of 
county  ( where  letters  were  issued ) ,  that  this  agree- 
ment with  the  approval  of  said  referees  shall  be  filed  with  said  O.  P.  (or 
any  other  justice  of  the  county  the  parties  may  agree  upon)  and  such 
further  proceedings  shall  be  had  before  said  justice  as  the  statute  provides. 

Dated day    of ,    190 (Signed.) 

Indorsement. —  I  approve  the  referees  within  named. 
day    of ,    190.... 

Probate  Judge. 
Or  Justice  of  the  Peace  of County.* 

§  597.    How  proceeded  on  if  claim  is  less  than  one  hundred 

dollsiX3>  "If  the  amount  of  the  claim  so  referred  does  not 
exceed  one  hundred  dollars,  upon  filing  the  agreement  of  ref- 
erence and  the  approval  of  the  referees,  with  such  justice  of 
the  peace  as  the  parties  agree  upon,  he  shall  docket  the  cause, 
appoint  a  day  of  trial,  issue  a  citation  for  the  referees,  and 
subpoenas  for  witnesses.  The  cause  shall  be  regulated,  and  in 
all  things,  proceed  as  is  provided  for  arbitration  before  justices 
of  the  peace,  except,  that  if  judgment  is  rendered  against  the 
executor  or  administrator  for  the  debt,  damages,  or  costs,  it 
shall  be  rendered,  and  execution  issue  thereon,  as  in  actions 
against  executors  and  administrators."       [R.  S.  §6094.]^ 


§  598.     Duties  of  the  justice  of  the  peace. 

The  statute  is  specific  in  pointing  out  what  the  duties  of  a 
justice  shall  be  when  a  reference  is  had  for  a  claim  not  exceeding 
one  hundred  dollars.  It  is  the  object  and  purpose  that  when  a 
reference  is  filed  with  the  justice  it  shall  be  treated  as  if  a  suit 
had  been  commenced  in  such  justice's  Court,  and  therein  the  par- 
ties had  agreed  to  submit  the  matter  to  arbitration.  As  such  a 
matter  is  to  be  tried  before  the  arbitrators,  subject  to  the  ap- 
proval of  the  justice  of  the  peace  in  whose  Court  the  agreement 
in  writing  has  been  filed,  the  law  applicable  to  such  trials  gener- 
ally, is  applicable  here,  and  will  l>e  found  discussed  fully  with 
the  necessary  fonns  in  that  invaluable  aid  to  practitioners  before 
the  Justices  of  the  Peace  Court,  Swan's  Treatise.  No  further 
discussion  will  be  made  here,  but  the  reader  is  referred  to  that 
work.* 

*Whit.    Prob.    Code.  8  Swan's  Treatise  198;   sections  of 

5  §  10719   G.   C.  the  G.  C.  from  10364  to  10370. 


§599 


ARBITRATION    OF    CLAIMS 


512 


§  599.  Id.  If  it  exceeds  one  hundred  dollars.  "If  the  claim 
so  referred  to  arbitration  exceeds  one  hundred  dollars,  upon 
filing  the  agreement  of  reference  in  the  probate  court  of  the 
county  in  which  the  letters  were  issued,  the  probate  judge  shall 
docket  the  cause,  and  make  an  order  referring  the  matter  in 
controversy  to  the  referees  so  selected."     [R.  S.  §  6095.]'' 

§  600.     Duties  of  Probate  Judge,  etc. 

If  the  amount  referred  to  in  arbitration  exceed  one  hundred 
dollars,  then  it  must  be  filed  in  the  Probate  Court  which  granted 
the  letters  of  administration.  The  judge  must  docket  the  case, 
and  make  an  order  referring  the  matter  to  the  referees.  The 
statute  makes  no  provision  for  service  of  notice  upon  the  ref- 
erees, and  an  order  for  them  to  appear  at  a  certain  place  and 
proceed  to  hear  the  matter  in  controversy^,  like  it  does  in  the  prev- 
ious section,  where  the  matter  is  less  than  one  hundred  dollars. 
It  seems  that  it  would  be  good  practice  for  the  Court,  when  mak- 
ing an  order  of  reference,  to  also  include  in  the  order,  that 
notice  should  be  given  to  the  referees,  and  that  a  time  should  be 
fixed  for  their  meeting  to  consider  the  matter.  The  order  of 
reference  may  be  in  the  follo^ving  form : 

ORDER  OF  REFERENCE. 

(Title.) 

This  day  came  A.  B.,  administrator  of  C.  D.,  deceased,  and  E.  F.,  a 
creditor  of  said  estate,  and  filed  in  this  Court  their  agreement  in  writing 
to  submit  the  matter  in  controversy  between  them,  as  to  the  validity  of  the 
claim  of  E.  F.  against  said  estate,  and  the  amount  thereof  to  arbitration, 
naming  G.  H.,  I.  J.  and  K.  L.  as  arbitrators,  and  the  said  agreement 
having  been  approved  by  the  Court.  It  is  this  day  order^ni  that  the 
matters  in  controversy  between  the  parties  be  referred  to  the  arbitrators 

or  referees  aforesaid;   and  that  they  meet  on  the day  of 

,  at o'clock. .  .M.     At   (here  mention  place  where 

the  referees  are  to  meet),  after  having  been  sworn,  proceed  to  the  discharge 
of  their  duties  under  the  law  providing  for  such  cases.     And  it  is  further 

ordered  that  notice  be  given  by (here  insert  the  name  of 

the  party  that  is  to  give  notice  to  the  referees)  to  the  said  G.  H.,  I.  J.  and 
K.  L.  of  their  appointment  as  referees  in  this  case,  and  the  time  when 
they  shall  first  meet  to  consider  the  same.s 


7  §  10720  G.  C. 

8  The  terms  arbitrators  and  ref- 
erees are  used  synonymously.  The 
statute    referring    such    matter    to 


the  Probate  Court  calls  them  ref- 
erees instead  of  arbitrators.  As  the 
law  previously  stood,  the  Probate 
Court  had   no   other   duty   and   au- 


513  NOTICE    TO    REFEKEE  §  601 

§  601,     Notice  and  oath  to  referees. 

The  following  may  be  used  as  a  form  of  notice  to  the  referees : 

To ( here  insert  name  of  person  to  make 

services)  : 

You  are  hereby  commanded  to  notify  G.  H..  I.  J.  and  K.  L.  that  they 
have  been  selected  as  referees  in  a  matter  between  A.  B.,  administrator  of 
the  estate  of  C.  D.,  and  E.  F.,  a  creditor  of  said  estate;  and  that  they  are 

ordered  to  appear  at  (here  mention  place) ,  on  the day  of 

,  at o'clock. .  .M.,  to  proceed  to  hear  and  determine 

the  said  matter  in  controversy. 

Given  under  my  hand  this day  of ,  190 ... . 


Probate  Judge. 

The  statute  requires  the  referees  tO'  take  an  oath  to  be  admin- 
istered to  them  by  a  judge  or  justice  of  the  peace.^ 

A  notary  public  cannot  administer  the  oath,^°  But  if  the 
parties  proceed  to  a  hearing  before  an  unsworn  arbitrator  they 
will  be  held  to  have  waived  such  irregularity/^ 

The  following  may  be  used  as  a  form  of  oath : 

In  the  matter  of  arbitration  between  A.  B.,  administrator  of  0.  D.,  and 
E-  F.,  a  creditor,  we,  the  undersigned  referees,  swear  that  we  will  faithfully 
hear  and  examine  the  matter  in  controversy  between  them,  and  will  make 
a  just  award  according  to  the  best  of  our  understanding. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this day 

of ,. ,   190.... 


thority  in  the  matter  than  to  ap-  The  parties  may  w^aive  an  objec- 
prove  the  referees,  and  reference  was  tion  to  the  manner  of  swearing  the 
required  to  be  perfected  in,  and  the  arbitrators.  Where  the  statute  pro- 
report  made  to  the  Common  Pleas  vided  that  the  oath  to  the  arbitra- 
Court.  Anderson  vs.  Backer,  15  O.  tors  and  witnesses  must  be  adminis- 
S.   173.  tered  by  a  judge  or  justice  of  the 

The  present  statute,  however,  has  peace  of  the  county,  and  such  oath 
been  changed  and  the  Probate  Court  was  administered  by  a  notary  pub- 
is now  the  Court  to  which  the  report  lie,  but  the  defendant,  an  attorney- 
must  be  made  and  all  further  orders  at-law,  was  present  when  the  oath 
had  in  such  Court,  the  same  as  the  was  administered,  and  made  no  ob- 
Common  Pleas  Court  formerly  could  jection  to  the  proceeding  —  held  that 
have  made  or  entertained.  defendant  had  waived  the  objection 

!'  §  12153  G.  C.  to  the  manner  of  swearing  the  ar- 

10  State  vs.  Jackson,  36  O.  S.  281.  bitrators.     Bradstreet  vs.  Pross,  11 

11  Rice  vs.   Hassenpflug,   45   0.   S.  Bull.   117. 
377. 


§  602  ARBITRATION  OF  CLAIMS  514 

§  602.  Referees  to  report  to  court.  Proceedings,  powers, 
and  compensation  of  referees.  Costs.  "The  referees  there- 
upon musti  proceed  to  hear  and  determine  the  matter,  and  make 
their  report  thereon  to  the  probate  court.  The  same  proceed- 
ings may  be  had  before  the  referees,  and  they  shall  have  the 
same  powers,  and  be  entitled  to  the  same  compensation  as  if 
the  reference  were  made  under  the  provisions  for  arbitrations 
under  a  rule  of  the  common  pleas  court.  The  court  may  set 
aside  the  report  of  the  referees  or  appoint  others  in  their  places, 
or  confirm  such  report  and  adjudgre  costs,  as  in  actions  against 
executors    and    administrators.      The    judgment    of    the    court 

thereon  shall  be  valid  and  effectual  as  in  other  cases."     [R.  S. 
§6096.]  12 

§  603.     Hearing,  etc. 

The  referees  having  met,  thei  statute  confers  upon  them  the 
same  powers  and  duties  as  if  the  reference  was  had  in  the 
Court  of  Common  Pleas  under  the  general  statute  referring  to 
matters  of  arbitration.^^ 

The  statute  provides  that  persons  submitting  matters  to  an 
arbitration  may  enter  into  a  bond.^*  But  whether  or  not  such 
may  be  done  in  cases  in  the  Probate  Court  may  be  questionable. 
If  such  bonds  were  entered  into,  I  presume  they  could  be  en- 
forced." 

Witnesses  may  be  subpcenaed  and  such  other  process  may  be 
had  as  would  be  necessary  to  secure  all  the  facts  required  for  a 
decision  of  the  matter  in  controversy.  The  New  York  statute 
is  very  much  similar  to  our  own,  and  decisions  from  their  Court 
will  be  of  value  to  us." 

12  §  10721    G.    C.  such  agreement  and  approval  in  the 

13  See    §§11475,    11486    G.   C.  °^^^  of   the  clerk   of   the   Supreme 
1*  §  12149  G.  C.  Court   in   the   county  in  which   the 

15  For  form  of  such  bond  see  Kin-  parties  or  either  of  them  reside,  an 
kead's  Pleading,   187.  order  shall  be  entered  by  the  clerk 

16  If  the  executor  or  administrator  referring  the  matter  in  controversj' 
doubts  the  justice  of  any  such  claim,  to  the  person  or  persons  so  selected, 
he  may  enter  an  agreement  in  writ-  On  the  entry  of  such  an  order  the 
ing  with  the  claimant  to  refer  the  proceeding  shall  become  an  action  in 
matter  in  controversy  to  one  or  the  Supreme  Court.  §  2718  Code 
more  disinterested  persons,  to  be  ap-  Civil  Proc.     N.  Y. 

proved  by  the  Surrogate.     On  filing 


515  HEARING,  ETC.  §  604 

In  Tracy  vs.  Suydam/'  it  was  held  that  where  parties  agree 
to  refer  under  the  statute  "  the  agreement  to  refer  need  not 
notice  matters  of  defense  to  the  claim.  The  account  presented 
is,  in  effect,  the  plaintiff's  complaint,  and  there  being  no  plead- 
ings, and  no  provision  in  the  statute  for  pleadings,  the  defendant 
is  limited  to  nO'  particular  defense;  and  consequently,  any  and 
every  legal  defense  against  the  claim  must  necessarily  be  avail- 
able." And  it  was  also  said  in  that  case :  "  And  every  species 
of  legal  proof  adapted  to  show  the  injustice  of  the  claim,  or  its 
invalidity  as  a  whole,  or  in  degree  or  amount,  is  admissible." 
And  the  executors  are  "  at  liberty  to  make  any  defense  that  their 
testator  or  intestate  could  himself  make,  if  alive,  and  the  same 
were  properly  pleaded,  in  an  action  upon  such  claim."  ^^ 

Under  the  New  York  statute  it  was  held  that  a  reference  un- 
der the  statute  stands  in  the  place  of  an  action,  and  the  entry  of 
an  order  to  refer  must  be  deemed  its  commencement.^* 


§  604.     Witnesses,  how  procured,  etc. 

All  parties  to  such  reference  shall  have  the  benefit  of  legal 
process  to  compel  the  attendance  of  witnesses,  which  shall  be  is- 
sued by  tlie  Probate  Judge,  or  possibly  by  the  justice  of  the 
peace,  and  shall  be  returnable  before  the  referees  on  the  day  and 
place  inserted  therein  named.  ^^ 

17  30  Barb.  110.  against  the  claim  any  defense  which 

18  Jessup's  Sur.  Prac,  920.  they    have   without   pleading    it   in 
In  Roe  vs.  Boyle,  81  N.  Y.  305,  a       any  form." 

similar  reference  had  been  ordered.  In  Mowry  vs.  Peet,  88  N.  Y.  453, 

and  the  Court  said :     "  This  is  not  it  was  said  that  "  In  trying  and  ad- 

an  ordinary  proceeding.     It  is  spe-  judicating  upon  these  matters  which 

cially  regulated  by  statute,  2  R.  S.  are  within  the  scope  of  the  reference, 

89,  90.     It  cannot  be  commenced  by  the  statute   (2  R.  S.  88,  §  36)   con- 

Bummons.      It    can    only    be    com-  fers  upon  the  referee  and  the  Court 

menced  by  the  consent  of  the  parties  the  same  powers  as  if  the  reference 

and  the  approval  of  the  Surrogate.  had  been  made  in  an  action.     But 

It  can  be  tried  in  no  other  way  than  the  proceeding  is  not  an  action." 

before  a  referee.    There  are  no  plead-  i9  Bucklin  vs.  Chapin,  1  Lans.  443. 

ings,  and  the  representatives  of  the  20  §  12151  G.  C. 
estate  proceeded  against  can  prove 


§  604  AEBITRATION  OF  CLAIMS  516 

Disobedience  to  such  a  subpoena  is  a  contempt  of  Court  and 
shall  be  punishable  as  in  other  cases.  "^ 

Such  mtnesses  shall  be  duly  sworn  by  a  judge  or  justice  of 
the  peace.      The  form  for  a  subpoena  may  be  as  follows: 

State  of   Ohio, county,   ss. 

The  State  of  Ohio  to ,  Sheriff  of 

county,   Greeting : 

You  are  hereby  commanded  to  summon  X.  L.  and  Z.  T.  to  appear  before 
E.  F.,  G.  H.  and  I.  J.,  or  any  two  of  them,  arbitrators  chosen  to  determine 
a  controversy  between  A.  B.,  administrator  of  C.  D.,  and  E.  F.,  a  creditor, 

at ,    in . ; ,    said    county    and 

State,  on  the day  of ,   190 ... ,  at 

o'clock .  .  .  M.,  then  and  there  to  testify  and  give  evidence  in  relation  to 
said  controversy  before  said  arbitrators  on  the  part  of  said  A.  B.  (or  C. 
D. )    and  of  this  writ  make  due  return  to  me. 

Given  imder  my  hand  this day  of ,  190. . . . 


The  referees  having  concluded  the  hearing  of  the  case,  must 
mai;e  an  award  or  finding.  The  statute  requires  that  the  award 
must  be  in  writing  and  signed  by  the  referees,  or  a  majority  of 
them,^^  and  the  same  must  be  filed  with  the  Probate  Court.  "^ 

The  award  must  be  confined  to  the  terms  of  the  agreement, 
which  cannot  be  changed  in  any  respect  or  a  different  one  sub- 
stituted.^*    It  may  be  made  in  the  following  form: 

(Title.) 

To  the  Honorable   the  Probate   Judge County. 

The  undersigned,  to  whom  were  referred  certain  matters  in  controversy 
between  A.  B.,  administrator  of  the  estate  of  C.  D.,  and  E.  F.,  which 
matters   are  more  particularly   mentioned  in  the  agreement  to  arbitrate, 

signed   by   said   parties   on    the day   of ,   having 

each  of  them  been  first  duly  sworn  and  having  heard  the  testimony  ot 
witnesses  and  the  evidence  adduced,  do  determine  and  award  that  the 
claim  of  said  E.  F.  against  said  estate  is  a  valid  one,  and  that  the  said 
A.  B.,  as  administrator  of  C.  D.,  out  of  the  assets  of  the  estate  of  said 

C.  D.,  should  pay  said  E.  F.  the  sum  of dollars  in  full 

of  his  said  claim  against  the  estate  of  C.  D.  (here  if  the  finding  should  be 
that  the  claim  is  not  a  valid  one,  say  that  we  find  that  the  claim  of  E.  F. 
against  the  estate  of  C.  D.  is  not  a  valid  one  and  that  there  is  nothing 
indebted    thereof   to    the    said    E.    F.),    that   the    costs    of    this    reference 

amounts    to dollars,    and   that   we   find   that   the   rame 

should  be  paid  by 

Given  under  our  hands  this day  of ,   190.  .  . . 


The  following  is  an  itemized  statement  of  the  costs  incurred: 


21  §  10217  G.  C.  23  §  10721  G.  C. 

22  §  12154  G.  €.  24  See  Kinkead's  Pleading,  191. 


517  FILING    AWARD,    ETC.  §  605 

Sec.  12160,  G.  C,  provides  that  each  arbitrator  shall  be  en- 
titled to  receive  one  dollar  a  day  for  his  services,  and  each 
witness  for  his  attendance;  and  the  justice  or  judge  shall  be 
entitled  to  like  fees  as  in  other  cases,  which  fees  shall  b©  taxed 
by  the  arbitrators  and  included  in  the  award. 

§  605.     Filing  of  an  award. 

The  referees,  after  they  have  heard  the  matter,  shall  make 
their  report  thereon  to  the  Probate  Court.,  and  the  Court  may  set 
the  same  aside,  or  appoint  others  in  their  places,  or  confirm  such 
report  and  adjudge  costs  as  in  an  action  against  executors  or  ad- 
ministrators; and  the  judgment  of  the  Court,  shall  be  valid  and 
effectual.  If  objection  is  sought  to  be  made  against  the  award, 
such  objection  should  be  filed  with  the  Probate  Judge.  The 
law  and  practice  in  reference  thereto  is  the  same  as  that  of  the 
Common  Pleas. ^° 

§  606.     Form  of  confirmation  of  award. 

(Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B., 
administrator  of  C.  D.,  for  this  Court  to  approve  and  confirm  the  award 
heretofore  made  and  filed  in  this  Court  by  G.  H.,  I.  J.  and  K.  L.,  referees 
appointed  to  determine  a  matter  of  controversy  between  the  said  A.  B., 
admini.?trator,  and  E.  F.,  and  it  appearing  upon  examination  that  the 
proceedings  of  said  referees  have  in  all  respects  been  in  conformity  to 
law,  and  no  exceptions  to  their  award  having  been  filed  by  either  of  the 
parties,  said  award  is  approved  and  confirmed,  and  it  is  considered  by  the 
Court  that  said  claim,  so  arbitrated  and  allowed,  is  a  valid  claim  against 
the  estate  of  C.  D.,  deceased.  And  it  is  further  ordered  that  the  same 
be  paid  out  of  the  assets  of  said  estate,  the  same  as  other  claims  of 
its  class;  and  that  the  costs  of  said  reference  and  the  costs  that  have 
accrued  thereon  in  this  Court  be  paid  out  of  said  assets  as  a  part 
of  the  costs  of  administering  said  estate. 

If  the  finding  of  the  referees  be  against  the  creditor  after  the 
formal  passing  of  the  above  entry,  it  should  conclude  as  follows : 

And  it  is  further  ordered  and  found  by  the  Court  that  said  claim  is  not 
a  valid  one  against  the  estate  of  C.  D.,  and  the  said  E.  F.  is  ordered  to  pay 
the  costs  of  this  reference,  together  with  the  costs  which  have  accrued  or 
may  accrue  in  this  Court,  and  that  execution  issue  against  him  for  the 
same  according  to  law. 

25  See    Kinkead's    Pleading,     194,  l95. 


607  LIMITATION     OF    ACTIONS,    ETC.  518 


CHAPTER  XXXYI. 

LIMITATION  OF  ACTIONS  BY  CREDITORS  AGAINST 
ADMINISTRATORS. 

§  607     Generally.  §  617     Action     of    creditor    against 
§  608     Claim  barred  by  general  stat-  heirs,    etc.,    not    barred. 

ute.  §  618     Limitation  of  action  against 
§609    When    claim    barred    if    not  administrator  de  bonis  non. 

sued     within     six     months  §  618a  Not    required    to    answer    to 

after       rejection.  What  suit      brought      after      two 

deemed   rejection.  years. 

§  609a  Rejection   of   a   claim.  §  619     Administrator    de    bonis    non 
§  610     Suit    on    rejected    claim.  liable   for   two   years   after 

§  611     Time     within     which     action  giving   bond. 

can  not   be   brought.  §  620    When   liable   for   actions   for 
§  612     Construction     of     the     above  two  years. 

section.  §  621     An    administrator    de    bonis 
§  613     Limitation  of  action  by  cred-  non    to   give   notice    of    his 

itors.  appointment. 

§  614     Construction   of   statute.  §  622    Barred  claims  not  revived. 

§  615     Assets    received    after    eigh-  §  623     To   be   further   liable   if  new 

teen    months.  assets    received.  j 

§  616     What  constitutes  new  assets. 

§  607.     Generally. 

!For  various  reasons  statutory  limitations  have  been  placed 
upon  the  right  to  prosecute  actions  upon  claims  against  an  ad- 
ministrator or  executor  of  an  estate.  We  have  heretofore  dis- 
cussed in  various  chapters  how  claims  must  be  presented/  and 
how  suit  may  be  brought  on  tlie  bond  of  an  administrator  or 
executor,-  or  against  distributees.** 

It  will  remain  for  a  future  chapter  to  discuss  how  a  suit  must 
be  brought  by  distributees.^ 

In  the  present  chapter  we  will  treat  generally  of  the  effect  of 
the  general  statute  of  limitations  and  of  special  provisions  relat- 
ing to  when  and  how  claims  against  an  estate  may  be  enforced 

i§§552,   569   et  seq.  '       2*  §  587. 

2  §  260  et  seq.  3  §  761  et  seq. 


519  LIMITATIONS,    ETC.  §    607 

by  an  action.  In  order  that  the  proper  administration  of  an 
estate  may  not  be  interfered  with,  the  law  provides  that  within 
a  certain  length  of  time,  and  under  certain  conditions,  although 
the  creditor's  claim  may  be  allowed,  it  cannot  be  sued  on.*  And 
then  other  provisions  protect  an  administrator  against  a  suit  on 
a  claim  which  is  not  brought  within  eighteen  months  from  the 
time  he  gives  bond,  provided  he  has  given  notice  of  his  appoint- 
ment, or  before  the  estate  is  finally  settled.^  And  another  section 
limits  the  creditor's  right  of  action  to  assets  received  after  the 
expiration  of  eighteen  months  from  his  giving  bond.*^  And  still 
another  provision''  provides  that  if  action  is  not  brought  on  a  re- 
jected claim  within  six  months  it  is  forever  barred.  The  general 
statute  of  limitation  provides  substantially  that  an  action  for  the 
recovery  of  title  to  real  property  must  be  brought  within  twenty- 
one  years ;  ®  upon  specialty  or  an  agreement,  contract  or 
promise  in  writing,  within  fifteen  years,''  and  a  contract  not  in 
writing  within  six  years,^*'  and  trespass  on  real  estate  and  an  ac- 
tion for  relief  on  the  ground  of  fraud  within  four  years,^^  and 
an  action  of  libel,  slander,  etc.,  within  one  year,^^  and  on  an  offi- 
cial bond  of  an  administrator,  executor  or  guardian  within  ten 
years  from  the  time  the  right  of  action  accrues.  ^^ 

In  a  previous  chapter  the  law  providing  when  a  creditor  may 
bring  suit  against  an  heir,  is  discussed/* 


■*§  10740   G.   C,   §611.  '            fendant,  an  executor  or  adminlstra- 

5  §  10746    G.   C.,    §  613.  tor    upon    any    special    promise    to 

6  §  10747  G.  C,  §  615.  answer  for  damages  out  of  his  own 
T  §§  10722-3  G.  C,  §609.  estate  unless  the  agreement  upon 
8  §§11219-20  G.  C.  which  such  action  is  brought,  or 
8  §  11221  G.  C.  some  memorandum  or  note  thereof, 

10  §  11222  G.  C.  is  in  writing  and  signed  by  tlie  party 

11  §11224  G.  C.  to    be    charged    therewith    or    some 

12  §11225  G.  C.  other  person  thereunto  by  him  or 
13§11226G.  C.  her  lawfully  authorized.  §8621 
1*  §  585  et  seq.  G.  C. 

§  10876  G.  C.  et  seq.  An  action  may  be  brought  against 

See  §§555,  987.  an  administrator,  guardian  or  trus- 
There  is  a  general  statutory  pro-       tee  either   in   the   county   in   which 

vision     that     no     action     shall  be       he  was  appointed  or  resides.    §11278 

brought  whereby  to   charge  the  de-       G.  C. 


§  608  LIMITATION  OF  ACTIONS  520 

§  608.     Claim  barred  by  general  statute. 

Whether  or  not  an  administrator  has  power  to  revive  a  daim 
barred  by  the  statutes  of  limitation  is  a  question  upon  which  our 
Courts  are  not  in  harmony/**  The  question  has  never  been  di- 
rectly passed  upon  by  our  Supreme  Court.  It  has,  however, 
been  passed  upon  directly  by  our  old  District  Court^^ 

In  this  District  Court  case  it  was  held  directly  and  upon  the 
strongest  kind  of  logical  reasoning  that  an  administrator  or  ex- 
ecutor has  no  power  by  a  new  promise  to  revive  a  claim  or  debt 
already  barred  by  the  statute  of  limitations.  And  it  is  further 
held  in  this  case,  that  the  administrator  or  executor  can  only 
allow  claims  which  can  be  legally  enforced  against  the  estate, 
and  so  claims  not  barred  at  the  time  of  their  beilig  presented  to 
him  may  be  allowed. 

In  this  case  it  is  said :  "  On  principle,  speaking  for  myself, 
I  should  have  no  hesitation  in  holding,  independent  of  the  deci- 
sion of  the  Supreme  Court  in  the  17  Ohio  9,  that  an  administra- 
tor has  no  power  to  revive  a  claim  once  barred  by  the  statute  of 
limitation.  The  duties  of  the  administrator  are  limited  to  col- 
lecting the  debts  due  to,  and  to  the  payment  of  those  owing  by, 
the  intestate.  What  right  he  has  to  be  generousi  with  the  prop- 
erty of  others,  to  pay  debts  for  which  there  exists  no  legal  lia- 
bility against  the  estate,  I  could  never  comprehend.  But  what- 
ever may  be  the  law  elsewhere,  we  have  to  expound  it  as  we  find 


14*  It  is  held  in  England  and   in  States  it  is  held  that  it  is  the  duty 

some  of  the  United  States  that  an  of    the    personal    representative    to 

executor    or    administrator    is    not  interpose  the  bar  of  the  statue  on 

obliged  to  plead  the  general  statute  every    claim   not   properly    asserted 

of   limitation  in   actions   on   claims  \\nthin  the  statutory  period,  and  in 

against  the  estate,  if  they  are  other-  some  jurisdictions  an  administrator 

wise  justly  due,  but  that  it  is  dis-  may  waive  the  bar  of  the  statute  of 

cretionary  with  him  to  interpose  the  limitations  where  it  attached  after 

bar  of  the  statute.    But  according  to  the  debtor's  death,  though  he  may 

some  authorities  any  person  who  has  not  do  so  if  it  attached  before.     1 1 

an  interest  in  the  estate  as  creditor,  Am.  &  Eng.  Ency.   of  Law,   2d  ed., 

legatee,  etc.,  may  plead  the  statute  919. 

without  the  concurrence  of  the  ex-  is  See  Drouilliard  vs.  Wilson,  10 

cutor    or    administrator.      In    other  W.  L.  J.  385. 


521 


STATUTE  OF  LIMITATIONS 


§608 


it  settled  in  Ohio.  In  Hill  vs.  Henry/^  tlie  Supreme  Court  held 
that  the  effect  of  our  statute,  when  it  had  once  run  out,  was  to 
extinguish  the  debt  or  claim,  so  that  no  recovery  could  be  had 
on  the  original  promise  or  obligation,  but  that  the  recovery  could 
only  be  had  on  the  new  promise,  supported  and  upheld  by  the 
moral  obligation  resting  upon  the  debtor  to  pay  the  original  debt. 
Such,  then,  is  the  law  in  Ohio.  Now,  can  an  administrator 
make  a  new  contract  to  bind  the  estate,  predicated  upon  a  mere 
moral  obligation,  resting  upon  the  intestate?  We  think  not. 
The  administrator  has  to  execute  legal  liabilities  existing  against 
the  estate ;  he  has  nothing  to  do'  with  the  moral  obligations  rest- 
ing upon  others.  His  duty  is  to  audit,  allow  and  pay  the  legal 
liabilities  of  the  estate;  and  hence  he  can  allow  all  claims  not 
barred ;  but  when  once  barred  by  the  statute,  he  has  no  authority 
to  create  a  new  liability,  predicated  upon  a  mere  moral  obliga- 
tion, resting  upon  others.  Whatever,  therefore',  may  be  the  de- 
cisions elsewhere,  we  have  no  hesitation  in  holding  that,  under 
the  provisions  of  our  statute,  as  expounded  by  tlie  Supreme 
Court,  an  administrator  cannot,  by  a  new  promise,  revive  a 
claim  once  barred."^^ 


16  17  Ohio  9. 

1' Whitman,  J.:  I  am  compelled, 
very  reluctantly,  however,  to  acqui- 
esce in  this  decision.  There  seems  to 
be  no  means  of  escaping  the  effect 
of  the  decision  in  the  17  O.  9.  By 
that  decision  this  claim  became  ex- 
tinguished in  1847,  and  no  recovery 
could  ever  have  been  had  upon  it; 
there  can  then  exist  in  Ohio,  no  doc- 
trine of  the  waiver  of  the  statute; 
there  must  be  a  new  contract  based 
on  a  mere  moral  obligation;  and  no 
one  ever  supposed  that  a  personal 
representative  had  power  to  create 
new  contracts.  Independent  of  this 
decision  I  should  have  held  the  new 
promise  effective  to  authorize  a  re- 
covery. 

Nash,  J.:  In  the  Court  below,  I 
ruled  this  case  in  favor  of  the  plain- 


tiff, in  obedience  to  what  I  supposed 
to  be  the  weight  of  authority,  though 
my  own  mind  has  never  been  brought 
to  acquiesce  in  its  correctness.  I 
never  could  understand  what  right 
an  administrator  had  to  pay  debts 
which  has  ceased  to  be  enforcible  in 
a  Court  of  justice.  The  case  in  17 
0.  9,  was  not  at  the  time  brought  to 
my  mind,  or  I  might  then  have  felt 
at  liberty  to  have  decided  otherwise. 
But  that  case  necessarily  settled  this, 
unless  we  are  prepared  to  hold  that 
an  administrator  can  create  con- 
tracts based  upon  a  mere  moral  ob- 
ligation to  the  same  extent  as  the 
intestate  himself.  Hence  he  might, 
by  a  new  promise,  revive  a  claim 
barred  by  a  certificate  of  bankrupt- 
cy, or  released  on  a  composition 
among  creditors  with  the  intestate 


§  608  LIMITATION   OF  ACTIONS  522 

The  Court  places  its  decision  not  only  on  principle,  but  on 
the  17  Ohio,  which  has  never  been  reversed;  therefore,  it  seems 
notwithstanding  what  may  have  been  said  by  the  Court  in  the 
case  of  Fisher  vs.  Mossman,^*  "  that  the  statute  of  limitations 
does  not  cancel  the  debt^  but  merely  destroys  the  remedy ;"  that 
the  law  in  Ohio  may  be  considered  to  be  that  an  administrator 
has  no  right  to  pay  or  allow  a  claim  that  is  barred  by  the  statute 
of  limitations.  The  only  case  that  throws  some  doubt  upon  tliis, 
other  than  that  found  in  the  11  O.  S.  42,  is  the  case  of  Joyce 
vs.  Hart.'' 

This  was  an  action  brought  to  restrain  an  administrator  from 
selling  real  estate  to  pay  a  claim  which  had  been  barred  by  the 
general  statute  of  limitations,  and  also  was  not  brought  within 
the  pro\'ision  of  sec.  10746,  G.  C.  The  Court,  while  not  necessary 
to  the  decision  of  this  case,  plainly  found  that  the  administrator 
could  waive  the  statute.  The  real  reason  why  the  action  was 
dismissed  was  that  if  the  administrator  wrongfully  paid  a  claim 
he  was  guilty  of  a  devastavit,  and  the  parties  therefore  had  their 
action  at  law  for  damages,  and  a  case  for  the  action  of  a  Court 
of  equity  was  not  presented.  In  the  decision  in  this  case  neither 
the  17  Ohio,  nor  the  one  in  the  10  W.  L,  J.  is  referred  to. 

The  Court  was  no  doubt  right  in  dismissing  the  proceed- 
ings for  injunction,  but  not  on  the  ground  that  the  administrator 
had  a  right  to  waive  the  statute  of  limitations. 

The  case  of  Fisher  vs.  Mossman,*"  in  which  the  language  is 
found  "  that  statutes  of  limitation  being  statutes  of  repose,  sus- 
pend the  remedy,  but  do  not  cancel  the  debt,"  decides  that  where 
a  claim  was  secured  by  mortgage  and  no  action  could  be  main- 

in  his  lifetime.     This  would  hardly  is  11  O.  S.  42. 

be  claimed  by  any  one.     I,  therefore,  is  27    Bull.    144.      Since   this   text 

cheerfully  concur  in  the  opinion  first  was    written    the    Circuit   Court   in 

pronounced,  because,  independent  of  Grouse  vs.  Fryburger,  22  C.  C.  325, 

our  own  statute  and   decision,   and  criticise  this  case  and  decline  to  fol- 

on   principle,   I   never   could   under-  low    its    conclusion.     See    Baen    vs. 

stand  how  a  mere  trustee  could  be  Weller,  12  Dec.  128. 

allowed    to    pay    debts    which    had  -o  11  0.  S.  42. 

ceased    to    exist   as    a    legal    charge 

upon  the  estate.     10  W.  L.  J.  391. 


523  '    GENERAL   STATUTE  OF,   ETC.  §  608 

tained  on  the  claim  by  reason  of  the  statute  of  limitations,  yet 
the  mortgage  could  be  enforced. 

In  the  case  of  Keer  vs.  Lydecker,'^  the  Court  says  the  case  of 
Fisher  vs.  Mossman  correctly  holds  that  the  bar  of  the  note  or 
other  instrument  secured  by  mortgage,  does  not  necessarily  bar 
an  action  on  the  mortgage.  Thus  it  will  be  seen  that  the  only 
cases  '*  which  seem  to  contain  language  throwing  doubt  upon 
the  decision  of  Drouilliard  vs.  Wilson,^^  the  question  was  not 
dire<rtly  involved  and  a  decision  was  not  necessary  to  decide  the 
case.^* 

It  has,  however,  been  held  that  part  payment^  or  acknowledg- 
ment, by  the  administrator,  of  a  valid  existing  claim  against  his 
intestate  will  take  the  case  out  of  the  statute  of  limitations,  so 
that  time  will  begin  to  run  only  from  the  time  of  such  payment, 
and  the  claim  will  not  be  barred  until  the  expiration  of  the  lim- 
ited period  thereafter. ^^ 

As  a  general  principle,  it  would  seem  that  during  the  inter- 
val between  the  debtor's  death  and  the  appointment  of  an  ad- 

21 51  0.  S.  240.  revive    an    old    one    barred    by    the 

22  Joyce  vs.   Hart,   27   Bull.   142;       statute  of  limitation." 

Fisher  vs.  Mossman,  11  0.  S.  42.  25  Niemcewicz  vs.  Bartlett,    13  0. 

See  Grouse  vs.  Frybarger,  22  C.  C.  271. 

315.  In  Marienthal   vs.   Mosler,    16   0. 

23  10  W.  L.  J.   385.  S.  566,   it  was  held  that  there  was 
2*  In  Moore  vs.  O'Brannin,   14  O.  a   distinction   between   a   part   pay- 

S.  179,  J.  Ranney,  says:     "  But  it  is  ment  made  by  an  administrator,  and 

said  that  no  right  of  action  existed  one  made  by  an  assignee.     And  that 

against  the  estate  of  Hugh  Moore,  the  payment  of  the  dividend  by  the 

and  that  the  allowance  of  these  sums  assignee   of   an   insolvent   debtor   is 

as  claims  of  the  estate  was  a  simple  not  such  a  part  payment  as  will  take 

attempt  of  the  executrix  to  create  a  the  residue  out  of  the  statute  of  lim- 

liability   which   she   had   personally  itation  as  against  such  debtor, 

incurred,  and  throw  the  burden  upon  See  title,  limitation  of  actions,  13 

the  estate.     That  she  could  not  do  Am.    &    Eng.    Ency.    of    Law,    707. 

that  or   even   revive   a   debt  of  the  Where  it  is  said  the  law  does  not 

estate  once  barred,   is   too  clear   to  require    an    executor    to    make    his 

need  an  argument  or  illustration."  testate  sin  in  his  grave  by  setting 

And  again  in  quoting  from  Doher-  up     an     unconscious     defense.       See 

ty  vs.   Stephenson,   20   Pa.   St.   210,  Woerner   on   Admin.   843,   in   which 

he   says :      "  Executors   or    adminis-  the  view  is  taken  that  no  executor 

trators  may  not  create  a  new  cause  is  compelled  either  at  law  or  equity 

of  action  against  the  estate  whose  to  take  advantage  against  a  demand 

interest  they  are  charged  with,  nor  otherwise  well  found. 


§  609  LIMITATION    OF    ACTIONS  524 

ministrator  of  liis  estate  the  general  statute  ought  not  to  run.-*^ 
But  it  has  been  held  to  the  contrary  on  the  ground  that  the  cred- 
itor may  compel  an  administration  at  any  time.-'^ 

If  a  creditor  has  a  claim  which  is  in  danger  of  being  barred 
by  the  general  statute  of  limitations,  he  ought  to  present  it  at 
once  to  the  administrator ;  and  if  there  be  no  administrator,  pro- 
ceed  to  have  one  appointed.* 

Where  a  claim  has  once  been  allowed  by  an  administrator  or 
executor,  the  statute  of  limitations  does  not  run  thereafter 
against  such  claim.  Thus  where  a  party  died  insolvent  in  1853, 
and  part  of  the  real  estate  was  sold  and  part  was  set  aside  as  a 
homestead,  and  the  right  to  the  homestead  having  expired  in 
1876,  twenty-three  years  after  the  claim  was  allowed,  it  was  held 
to  be  a  valid  claim  against  the  estate,  and  that  the  administrator 
might  proceed  to  sell  the  homestead  to  satisfy  such  claim.^^ 

If  a  testator  in  his  will  direct  his  executor  to  allow  a  claim 
barred  by  the  statute  of  limitations,  this  would  be  sufficient 
acknowledgment  of  the  debt  to  take  it  out  of  the  estate,  and  it 
would  be  the  executor's  duty  to  allow  such  a  claim.^^ 

§  609.  When  claim  barred  if  not  sued  within  six  months 
after  rejection.  What  deemed  a  rejection.  "If  a  claim 
against  the  estate  of  a  deceased  person  be  exhibited  to  the  exec- 
tor  or  administrator,  before  the  estate  is  represented  insolvent, 
and  be  disputed  or  rejected  by  him,  and  has  not  been  referred 
within  six  months  after  such  dispute  or  rejection,  if  the  debt, 
or  any  part  of  it  be  then  due,  or  within  six  months  after  some 
part  becomes  due,  the  claimant  must  commence  a  suit  for  the 
recoverey  thereof,  or  be  forever  barred  from  maintaining  an 
action  thereon.  No  action  shall  be  maintained  thereon  after  such 
period,  by  a  person  deriving  title  thereto  from  such  claimant." 
[E.  S.  §6097.]^° 

26  Woerner,  Admin.  844;  In  re  made,  he  would  not  lose  his  claim 
Geo.  H.  Miller,  12  Dec.  562.  by  reason  of  the  statute  of  limita- 

27  Baker  vs.  Brown,  18  111.  91;  tions  if  he  did  not  do  so.  If  the 
Byrd  vs.  Byrd,  28  Miss.  144;  Nelson  debt  was  due  at  the  time  of  the 
vs.  Herkel,  30  Kans.  456.  death  of  decedent,  then  it  would  be 

28  Taylor  vs.  Thorn,  29  O.  S.  570;  barred  in  the  statutory  time.  In  the 
39  0.  S.  112.  court  below  it  was  held,  that  if  due 

29  It  was  held  under  a  former  or  not,  that  the  statute  would  begin 
statute  that  no  claim  is  barred  until  to  run  from  the  time  letters  ought 
one  year  from  the  time  the  action  to  have  been  issued,  depending  upon 
has  accrued.  McKent  vs.  Kent,  2  the  circumstances  of  each  case. 
W.  L.  M.  541;  2  Dec.  375.  Holies  vs.  Riddle,  74  0.  S.  175;  re- 

If  the  debt  does  not  become  due  versing  4  C.  C.    (N.S.)   449:   16  Cir. 

until  after  the  death  of  the  decedent,  D.  365;  reversing  26  0.  C.  C.  305. 

then  the  statute  does  not  begin  to  30  §  10722  G.  C.     See  §  1637. 

run  until  there  is  an  administrator  Action    may    be    brought    in    the 

appointed.   Under  the  holding  of  the  municipal      court      at      Cincinnati, 

court,  while  it  would  be  proper  for  Keck  vs.  Bakkle,  6  0.  App.  246;  26 

the  creditor  to  have  an  appointment  C.  C.   (N.S.)   398;  37  C.  C.  390. 


I 


525  REJECTION   OF   CLAIM  §  609a 

§  609a.  Rejection  of  a  claim.  ''A  claim  shall  be  deemed  dis- 
puted or  rejected,  if  the  executor  or  administrator,  on  presenta- 
tion of  the  vouchers  thereof,  refuses,  on  demand  made  to  indorse 
thereon  his  allowance  of  it  as  a  valid  claim  against  the  estate." 
[R.  S.  §6097.]'°* 

§  610.     Suit  on  rejected  claim. 

In  a  previous  chapter  the  question  as  to  what  constitutes  the 
rejection  of  a  claim  has  been  considered. ^^ 

Statutes  of  this  character  are  generally  called  statutes  of 
non-claim,  and  are  highly  penal  and  must  be  strictly  construed.^* 
But  notwithstanding  such  construction,  it  has  been  held  that  the 
failure  of  the  creditor  to  sue  within  the  time  limited  after  his 
claim  has  been  rejected,  not  only  bars  his  action  against  the  ex- 
ecutor or  administrator,  but  also  his  action  against  the  heirs  and 
next  of  kin.^^ 

Of  course  this  only  applies  to  such  claims  as  must  be  prer 
sented.  If  the  estate  is  liable  without  presentation  it  would 
follow  that  the  claim  would  not  be  barred  by  non-action.  The 
time  begins  to  run  from  the  date  of  the  dispute  or  rejection  of  the 
claim.^* 


30*  §  10723  G.  C.  demand  is  made  is  good  when  given 

31  §8  5.52,  558a.  to  the  agent  and  in  law  is  considered 

32  Elliott  vs.  Cronks,  13  Wendel.  as  if  given  to  the  principal  person- 
35.  ally.     Qui  facit  per  alium  facit  per 

33  Selover  vs.  Coe,  63  N,  Y.  438.  so  is  one  of  the  oldest  and  best  es- 

34  There  is  no  statute  or  rule  of  tablished  maxims  of  the  law.  Hence 
law  which  requires  the  notice  of  re-  we  think  the  statute  commenced  to 
jection  to  be  in  writing  or  in  any  run  at  the  time  of  the  verbal  notice 
particular  form.  Peters  vs.  Stew-  that  the  claim  was  disputed  and  re- 
art,  2  Misc.  357,  reversing  1  Misc.  8.  jected."  Where  the  notice  of  re- 
The  claim  had  been  presented  orally  jection  is  actuallv  received,  on  the 
and  the  rojection  was  oral.  other  hand,  it  is  immaterial  whether 

Judge  Bookstaver  added:   "If  the  it  be  directly  from  the  executor,  or 

agent  presenting  the  claim  had  au-  from  the  executor  through  his  attor- 

thority  to  present  it  to  the  admin-  nev.     Wintermever  vs.  Rherwood.  77 

istratnr.  it  necessarily  follows  that  TTun.  103;  Relover  vs.  Toe.  63  "N".  Y. 

he  had  authoritv  to  receive  on  plain-  438;    .Tessup's    Sur.    Pract.    930. 
tiff's  behalf  notice  that  he  accepted.  Tt  is  error  to  render  a  iuderment 

or  disnuted  and  rejected  it.     Where  upon    a    claim    due    and    disallowed 

a  creditor  sends  a  person  to  collect  a  more    than     six    months    previous, 

claim  of  a  debtor,  the  latter  certain-  Pollock  vs.  Pollock,  2  C.  C.  140;   1 

Iv  is  authorized  to  receive  and  re-  C  T).  408. 

ceint   for   any  ■money  that   may  be  The  action  ig  a  CivH   aetioTi  and 

paid    to   him    on    account    of    that  not  n  snecial  proceeding.     Kennedy 

claim:  and  where  one  sends  an  anient  vs.  Thompson,  3  C.  C.  448;  2  C  T). 

to  make  a  demand  of  any  kind,  the  2.54. 
answer  of  the  person  on  whom  the 


§  610  LIMITATION    OF    ACTIONS  526 

Such  statutes  are  more  rigorously  applied  tlian  the  general 
statute  of  limitations,  and  the  administrator  cannot  waive  it.^° 
And  even  where  the  suit  was  brought  on  a  claim  that  had  been 
disallowed  more  than  six  months  prior  to  the  commencement, 
and  the  executor  failed  to  plead  such  a  bar,  it  was  error  in  the 
Court  to  give  a  judg-ment.^^ 

An  action  is  deemed  commenced  from  the  date  of  issue  of  the 
summons.^^  But  if  an  action  is  commenced  in  due  time  and  the 
plaintiff  fails  otherwise  than  upon  the  merits,  and  the  time  lim- 
ited for  the  commencement  of  such  action  has  at  the  date  of  such 
failure  expired,  plaintiff  may  commence  a  new  action  within  one 
year  after  such  date.^*  And  hence  if  a  suit  on  a  rejected  claim 
was  commenced  in  the  United  States  Court  within  six  months 
after  its  rejection,  and  was  dismissed  by  that  Court  otherwise 
than  on  its  merits,  it  is  such  a  suit  as  will  permit  the  plaintiff 
to  commence  another  suit  in  the  State  Court  within  one  year 
after  the  dismissal  of  the  action.^^ 

The  fact  that  the  non-suit  was  occasioned  by  the  failure  of  the 
plaintiff  to  give  security  for  costs  does  not  withdraw  the  case 
from  the  operation  of  the  statute  so  construed.*** 

The  suit  brought  on  a  rejected  claim  is  a  civil  action,  and  not 
a  special  proceeding.*^ 

It  seems  that  some  Courts  have  misconceived  the  kind  of  an 
action  that  should  be  brought  on  a  rejected  claim  against  the  ad- 
ministrator of  an  estate,  and  have  proceeded  in  the  same  way 
that  action  is  brought  against  an  assignee  by  a  creditor  of  the 
estate  on  a  rejected  claim.*"  This  is  certainly  an  erroneous  idea. 
The  action  against  an  assignee  is  one  specifically  provided 
for  by  statute,*^  and  cannot  be  made  to  apply  to  executors 
and     administrators.       The    Probate    Court,    cannot    order    a 

35  Woerner,  845 ;  McKent  vs.  ^o  Haymaker  vs.  Haymaker,  4  0. 
Kent,  2  W.  L.  M.  541 ;  2  Dec.  375.  S.  272. 

36  Pollock  vs.  Pollock,  2  C.  C.  140:  ■*!  Kennedy  vs.  Thompson,  3  C.  C. 
1   C.  D.  418.                      '  446;    2    C.    D.    254. 

37  §11230  G.  C.  *2See  Smock  vs.  Bouse,   12  C.  C. 

38  §  11233  G.  C.  46;   5  C.  D.  522. 
39Burgoyne   vs.   Moore,   12   C.   C.  «  §§  11134,  11135  G.  C,  §  1628. 

31;   5  C.  D.  522. 


527  TIME   WITHIN   WHICH,   liTC.  §  61i 

claim  paid.**  If  a  claim  is  rejected  by  an  executor  or  ad- 
ministrator, the  creditor  must  commence  a  civil  action  and  pur- 
sue whatever  remedy  the  nature  of  his  action  will  entitle  him  to, 
in  a  Court  of  general  jurisdiction.  The  Common  Pleas  Court 
has  no  authority  whatever  to  direct  an  administrator  or  executor 
to  allow  a  claim ;  and  the  Probate  Court  has  no  authority  so  to 
do,  except  by  the  provisions  of  sec.  10748,  G.  C,  on  a  claim  not 
yet  due. 

The  statute  runs  alike  against  all  persons,  under  or  over  age, 
or  whether  insane-  non-resident,  or  under  other  disability  of 
whatever  kind.*^ 

§  611.     Time  within  which  action  can  not  be  brought.    "No 

executor  or  administrator  shall  be  liable  to  the  suit  of  a  creditor 
of  the  deceased  until  after  the  expiration  of  twelve  months 
from  the  date  of  his  administration  bond,  or  the  further  time 
allowed  by  the  court  for  the  collection  of  the  assets  of  the  estate, 
unless  it  be  for  the  recovery  of  a  demand  that  would  not  be 
affected  by  the  insolvency  of  the  estate ;  or  be  brought  after 
the  estate  has  been  represented  insolvent,  for  the  purpose  of 
ascertaining  a  claim  that  is  contested ;  or  the  claim  that  has 
been  exhibited  to  the  executor  or  administrator  and  disputed 
or  rejected  by  him."     [R.  S.  §  6108;  102  v.  203.1  *' 

§  612.    Construction  of  the  above  section. 

The  above  section  of  the  General  Code  does  not  apply  to  a 
suit  brought  on  an  administration  bond,*^  nor  where  a  claim  has 
been  presented  and  rejected. 

The  object  and  purpose  of  the  above  section  may  be  stated  to 
be  two-fold  ;  first,  upon  the  death  of  a  debtor,  his  estate  of  what- 
ever description,  stands  for  the  payment  of  all  his  debts,  and  all 
of  the  creditors  share  alike.  One  creditor  cannot  by  superior 
diligence  acquire  a  superior  right  to  any  part  of  the  estate,*^  and 

«/n   re  Geo.   V.   Miller,    12  Dec.  Williams  vs.  Longley,  3  C.  C.  508; 

562;  Jones  vs.  Green,  21  C.  C.  101.  2  C.  D.  292. 

«Woerner,     846;      Favorite     vs.  46  §  10740  G.  C. 

Booker,  17  0.  S.  555.  47  G«er  vs.  State,  2  0.  S.  574. 

The  widow  and  heirs  are  not  ne-  For     action     on     administration 

cessary  or  proper  parties  to  a  suit  bond,  see  §  260,  et  seq. 

brought  against   the  administrator.  ■*«  McDonald  vs.  Aten,  1  0.  S.  293„ 


§    612  LIMITATION  OF   ACTIONS  528 

thus  it  would  be  useless  for  him  to  get  a  judgment  against  it. 
The  second  object  that  the  above  limitation  has  in  view  is  that 
the  administrator  or  executor  in  his  conduct  of  the  administra- 
tion of  the  estate  shall  not  be  embarrassed  by  litigation,  and  that 
he  shall  have  time  and  opportunity  to  collect  the  assets  of  the 
estate.  The  statute  permits  an  administrator  to  pay  claims 
after  six  months  from  the  date  of  his  bond,  but  does  not  compel 
him  to  do  so  until  one  year  have  expired.  In  computing  this 
time  the  date  on  which  the  bond  is  given  is  excluded.*^ 

Likewise  it  has  been  held  that  a  bond  without  surety  approved 
by  the  Probate  Court  is  not  such  a  bond  as  statutes  require,  and 
the  statute  of  limitations  will  not  apply.^° 

An  action  can  not  be  brought,  not  only  during  the  one  year, 
but  also  during  any  future  time  that  may  be  allowed  by  the 
court  for  the  settlement  of  the  estate.  The  statute  protects  the 
creditor  as  to  such  future  time  when  it  provides  that  if  there 
is  more  than  one  hundred  dollars  in  the  hands  of  the  administra- 
tor or  executor  the  court  shall  not  grant  a  longer  period.  A 
petition  against  an  administrator  must  show  the  lapse  of  one 
year,  or  that  the  case  is  within  one  of  the  exceptions.^^ 

It  will  be  further  observed  from  the  reading  of  sec.  10740, 
G.  C.  (§  611),  that  there  are  three  instances  in  which  a  creditor 
may  bring  an  action  against  the  administrator  or  executor  withi« 
the  time  limited.  The  first  is,  if  it  be  for  the  recover^''  of  a  dfr 
mand  tJiat  would  not  be  affected  by  the  insolvency  of  the  estate. 
Thus  the  foreclosure  of  a  mortgage  would  be  an  exception.^^ 

This  would  include  the  enforcement  of  any  lien  on  the  prop- 
erty of  the  deceased,  or  any  demand  which  was  fixed  and  of  such 
a  character  that  its  pa^mient  would  not  depend  upon  the  solvency 
or  insolvency  of  the  estate,  such  as  is  preferred  by  the  statute.^^ 

*9Paul  vs.  stone,  112  Mass.  27.  L.  M.  44;  Pepper  vs.  Sidwell,  36  0. 

60  Abercrombie  vs.  Sheldon,  8  Al-       S.  454,  456. 

len,  532.  b2  Green  vs.  Ulyatt,  3  W.  L.  M.  44. 

61  Hammerle  vs.  Kramer,  12  O.  S.  53  Bank  vs.  Staunton,  116  Mass. 
252;  Levi  vs.  Buchanan,  2  C.  S.  C.  435;  Studley  vs.  Williss,  134  Mass. 
K.    144;    Rhodes  vs.  Doggett,   3  W.  155. 

L.  M.  134;   Green  vs,  Ulyatt,  3  W. 


529  LIMITATION  OF  CREDITOR.  §  613 

The  second  exception  is,  unless  it  be  broiight  after  the  estate 
has  been  represented  insolvent,  for  the  purpose  of  ascertaining  a 
claim  that  is  contested.  This  is  referred  to  in  the  provisions  of 
sec.  10890  Gr.  C.  (§  1004),  and  will  be  referred  to  under  an  appro- 
priate chapter.  The  third  exception  is,  that  unless  the  claim  has 
been  exhibited  to  the  executor  or  administrator  and  by  him  been 
disputed  or  rejected.  As  to  what  constitutes  a  disputed  or  re- 
jected claim,  has  been  previously  discussed.^* 

The  mere  allowance  of  a  claim  will  not  prevent  action  after 
twelve  months,  or  after  such  future  time,  as  may  be  granted, 
to  collect  assets,  has  expired.^^ 

If  an  executor  qualifies  without  giving  bond,  the  statute  be- 
gins to  run  from  the  time  of  his  appointment  and  qualification. 
This  being  held  to  be  synonymous  to  the  words  ''  from  the  time 
of  his  giving  bond."  ^^ 

§  613.  Limitations  of  actions  by  creditors.  ' '  No  executor 
or  administrator,  shall  be  held  to  answer  to  the  suit  of  any  cred- 
itor of  the  deceased  unless  it  be  commenced  within  eighteen 
months  from  the  time  of  his  giving  bond  except  as  hereinafter 
provided.  A  creditor  whose  cause  of  action  accrues  after  the 
expiration  of  eighteen  months  from  the  time  the  executor  or 
administrator  gave  bond  according  to  law,  and  before  such  estate 
is  fully  administered,  may  begin  and  prosecute  such  action 
within  six  months  after  the  accruing  of  such  cause  and  before 
the  estate  is  fully  administered.  No  cause  of  action  against  an 
executor  or  administrator  shall  be  barred,  by  lapse  of  time, 
until  the  expiration  of  six  months  from  the  time  it  accrues." 
[R.  S.  §6113;  102  V.  203.]" 

54  See  §610;   §§  552,  e*  seg.  Time    runs    from    date    of    bond. 

55  Thomas  vs.  Chamberlain,  39  0.  Ardrey  vs.  Shell,  77  0.  S.  218.  See 
S.  112.  Grant  vs.  Baldwin,  89  0.  S.  156. 

5s  Jones  vs.  Jones,  41  0.  S.  417.  When  cause  of  action  accrues. 

57  §  10746  G.  C.  If  there  is  no  bond  required  the 

The   rendition   of   a  judgment,   is  statute  begins  to  run  from  the  time 

the   accruing   of   a   cause   of   action  of  giving  notice  of  appointment, 

under  the  section.    The  law  in  force  "Action"   and  "suit"  are  synony- 

at  the  time  the  action,  accrues  con-  mous.      Kennedy    vs.    Thompson,    3 

trols.    Bevitt  vs.  Delhi,  12  Dec.  315,  C.  C.  446;  2  C.  D.  254. 

383.  The  declarations  of   the   adminis- 

AUowing  further  time  for  settle-  trator  when  not  made  in  accepting 
ment  of  estate  does  not  talce  claim  or  rejecting  the  claim,  are  not  bind- 
out  of  this  statute.  Gilbert  vs.  Lit-  ing  upon  the  estate.  Hueston  vs. 
lie,  21  O.  S.  156.  Hueston,  2   O.   S.   489. 


§614 


LIMITATION   OF  ACTIONS 


530 


§  614.     Construction  of  statute. ^^^ 

The  above  section  is  a  transcript  of  the  Massachusetts  stat- 
ute; and  the  term  creditor  is  used  in  a  generic  sense,  and  in- 
cludes all  persons  having  rights  in  action  against  the  decedent. 
It  is  founded  on  reasons  of  public  policy,  and  its  object  is  to  pro- 
mote the  early  and  final  settlement  of  the  estate  to  enable  dis- 
tribution to  be  made  of  the  residuum  among  those  entitled,  and 
free  from  charges  and  incumbrances.^^  It  does  not  include  a 
legatee.^^ 

This  statute  was  formerly  four  years.  The  legislature  has 
very  wisely  reduced  it  to  eighteen  months.  Experience  has  dem- 
onstrated that  it  was  very  often  either  a  matter  of  inconvenience 
to  the  administrator  or  executor,  or  hardship  on  the  heir,  for  the 
administrator  or  executor  to  hold  moneys  in  his  hands  to  meet 
the  possible  demands  that  might  be  presented  within  four  years. 
If  the  administrator  or  executor  was  obstinate,  it  was  a  very 


A  claim  for  a  widow's  allowance 
comes  within  the  statute.  In  re 
Glenn,  23  C.  C.  397. 

57a  Cited  Harris  vs.  O'Connel,  85 
O.  S.  145. 

If  the  claim  has  been  presented, 
brought  within  the  eighteen-months 
period,  even  though  six  months  has 
not  expired  from  the  time  it  was 
presented. 

Cited  In  re  Estate  Patterson,  58 
Bull.  310. 

Where  the  appointment  is 
revoked  by  the  Probate  Court,  but 
on  appeal  the  administrator  is 
restored,  the  period  during  which  he 
was  suspended  is  to  be  deducted 
from  the  time  allowed  to  bring  suit. 
Badger  vs.  Orr,  1  0.  App.  293:  19 
0.  C.  C.  (X.S.)  312;  34  O.  C.  C.  328. 

58  Favorite  vs.  Booher,  17  0.  S. 
554. 

White,  J.:  "iS^or  will  the  fact 
that  the  creditor  is  imder  the  dis- 
ability of  infancy  save  him  from  the 
operation  of  the  bar  wiiich  the  stat- 
ute interposes.  The  general  rule  in 
regard  to  the  application  of  statutes 
of  limitation  is,  that  all  persons, 
whether  under  disability  or  not,  are 
barred  by  them,  unless  excepted 
from  their  operation  by  a  saving 
clause.  General  words  of  a  statute 
are  to  receive  a  general  construc- 
tion, and  unless  there  is  found  in 


the  statute  itself  some  ground  for 
restraining  it,  it  can  not  be  re- 
strained. Angell  on  Lim..  §  194. 
The  same  principle  of  public  policy 
that  requires  the  statute  to  embrace 
all  subjects  of  demand,  also  requires 
that  it  should  be  held  to  embrace  all 
classes  of  creditors.  Accordingly  it 
was  held  in  Massachusetts,  before 
the  adoption  of  the  statute  in  this 
state,  that  for  th»  purpose  of  en- 
forcing the  policy  of  the  statute,  it 
Avas  an  absolute  bar;  and  that  the 
fact  the  plaintiff  had  been  under  the 
disability  of  infancy  during  the  time 
the  estate  of  the  deceased  was  under 
administration,  did  not  prevent  his 
claim  from  being  barred  by  the  lapse 
of  time  prescribed  by  the  statute. 
Angell  on  Lim.,  §  194;  Hall  vs. 
Bumstead,  20  Pick.  2. 

And,  in  the  case  last  cited.  Shaw, 
C.  J.:  "That  no  such  disability  had 
ever  been  allowed,  as  an  avoidance 
of  this  statute." 

59  Fuller  vs.  McEwen,  17  0.  S. 
288. 

It  has  been  held  that  this  section 
does  not  bar  the  administrator  from 
recovering  on  claims  against  the 
estate  for  money  advanced,  and 
where  he  is  subrogated  to  the  rights 
of  the  parties.  Glenn  vs.  Eicher,  30 
O.  C.  C.  821. 


531  CONSTRUCTION  OP  STATUTE  §  614 

doubtful  question  whether  the  heir  could  have  compelled  him  to 
distribute  even  by  offering  to  indemnify  him  with  a  bond  as 
provided  by  law.^° 

Generally,  administrators  and  executors  are  desirous  of  mak- 
ing a  speedy  settlement.  Under  the  former"  law  they  often  took 
the  chance  and  made  distribution  before  the  expiration  of  the 
eighteen-month  limit.  The  time  begins  to  run  not  from  the 
time  that  the  notice  of  the  executor 's  or  administrator's  appoint- 
ment has  been  made,  but  from  the  time  of  his  qualification.®^ 
A  later  decision  makes  the  time  begin,  where  no  bond  is  required, 
from  the  giving  of  the  notice  of  appointment.®^^ 

Wbere  a  claim  is  presented  by  a  creditor  to  the  administrator 
of  an  estate,  and  is  allowed,  which  is  afterwards  disallowed  and 
rejected  by  a  successor  of  the  one  that  allowed  it,  the  eighteen- 
months  statute  or  limitations  provided  by  sec.  10746,  G.  C, 
begins  to  run  in  such  cases  only  from  the  time  of  the  rejection 
of  the  claim.®- 

While  there  is  dicta  in  a  Supreme  Court  decision,^^  and  a  Com- 
mon Pleas  Court  ®*  supporting  the  theory  that  an  administrator 
or  executor  can  waive  the  statutory  limitation  provided  by  sec. 
10746,  G.  C,  yet  it  seems  to  the  author  that  it  is  somewhat  ques- 
tionable. We  have  heretofore  in  this  chapter  discussed  the  sub- 
ject whether  or  not  an  administrator  or  executor  could  waive  the 
general  statute  of  limitations,  and  there  come  to  the  conclusion 
that  he  could  not.  If  he  could  not  waive  the  general  statute  of 
limitations,  it  would  seem  that  he  could  not  waive  it  in  this 
instance.®^ 

As  a  general  rule,  those  courts  which  hold  that  an  administra- 
tor can  waive  the  general  statute  of  limitations  hold  that  he  has 
no  power  to  waive  these  special  statutory  limitations.®^ 

60  §  10762  G.  C,  §  696.  their  practical  wisdom  is  admitted; 

61  Jones  vs.  Jones,  41  0.   S.  420.       and  their  true  intent  and  meaning, 
fila-  Grant   vs.    Baldwin,    89    O.    S.       when    ascertained    according    to    es-  ' 

156.  tablished     rules     of     interpretation, 

62  Stewart  vs.  McLaughlin,  47  0.  must  be  enforced  whenever  a  pleader 
S.  555.  invokes  their  aid  in  sufficient  form. 

63  Fisher  vs.  Mossman,  11  0.  S.  46.  The  section  before  us  is  a  part  of 

64  Joyce  vs.  Hart,  27  Bull.  144.  what    is    popularly    known    as    "the 

65  Fisher  vs.  Mossman,  110.  S.  45.       Administration    Act."      Considering 
Recent   case    of    Grouse    vs.    Fry-       the     controlling     importance     of     a 

])f.r;rer,   22   C.   C.   361,   supports   the  prompt  settlement  of  the  estate  of  a 

aiitlior's  view.  decedent,  so  that  his  creditors  may 

'■'6  Woerner  on  Admin.  845.  he  paid  and  the  shares  of  his  heirs 

While,  as  a  general  rule,  statutes  or  legatees  ascertained  and  distrib- 

of  limitation  are  strictly  construed,  uted,  the  provisions  that  claimants 


§615 


LIMITATION   OF   ACTIONS 


532 


Sec.  10746,  G.  C,  after  the  general  provisions,  provides  "ex- 
cepting in  the  case  hereinafter  mentioned."  The  excepted  cases 
decribed  are  those  provided  for  by  sees.  10747,  10748,  10749  and 
10750,  G.  C.«^ 

The  other  matter  excepted  from  the  general  provisions  is 
where  a  creditor  shall  have  a  claim  which  does  not  accrue  until 
after  the  period  of  eighteen  months  from  the  qualification  of  the 
executor  or  administrator,  and  while  the  estate  is  still  being 
administered  he  may  commence  an  action  on  his  claim  six  months 
after  the  same  becomes  due,  and  before  such  estate  shall  be 
fully  administered.  Unless  the  action  would  be  commenced 
before  the  estate  was  administered,  no  action  could  be  main- 
tained against  the  executor  or  administrator,  although  the  six 
months  had  not  expired  from  the  time  that  it  was  due.*^® 

§  615.  Assets  received  after  eighteen  months.  "Wlien  as- 
sets come  to  the  hands  of  an  executor  or  administrator,  after  the 
expiration  of  such  eighteen  months  he  must  account  for,  and 
apply  them  in  like  manner  as  if  they  had  been  received  within 
eighteen  months.  He  shall  be  liable  to  an  action,  and  to  be  pro- 
ceeded against  on  account  of  such  assets,  by  or  for  the  benefit  of 
any  creditor  in  like  manner  as  if  they  had  been  received  within 
the  eighteen  months ;  but  such  action  or  proceeding  must  be  com- 
menced within  six  months  after  the  creditor  has  notice  of  the 
receipt  of  such  new  assets,  and  not  more  than  eighteen  months 
after  they  actually  are  received."     [R.  S.  §  6114;  102  v.  203.]' 


against  the  estate  shall  prosecute 
their  claims  within  so  many  months, 
or  years,  stand  upon  a  footing  some- 
what different  from  the  ordinary 
statute  of  limitations,  behind  whose 
bar  the  debtor  himself  may  take 
refuge.  Such  provisions  should  be 
construed  in  furtherance  of  the  main 
purpose  and  intent  of  the  entire 
statute.  It  is  plain  that  the  Gen- 
eral Assembly  considered  that  four 
years  ( 1  ^/^ ) ,  computed  from  the  mo- 
ment when  the  law  created  a  respon- 
sible representative  of  the  decedent,, 
competent  to  allow  or  reject  claims, 
and  liable  to  suit  upon  rejected 
claims,  was  as  much  time  as  ousrht 
to  be  allowed  for  any  ordinary  cred- 
itor to  delav  the  distribution  of 
an  estate.     This  time  is  clearly  de- 


fined  as  four  years    (1%).     Jones 
vs.  Jones,  41  0.  S.  420. 

67  Jones  vs.  Jones,  41  O.  S.  420, 
See  §  584,  et  seq. 

68  See  §  732. 

Action  for  agreement  to  make 
testamentary  provision  must  be 
brought  within  the  statutory  period. 
Sayler  vs.  Sellers,  2  0.  App.  439; 
19  0.  C.  C.   (X.S.)   206;  36  0.  C.  C. 

The  widow's  year's  allowance 
comes  within  the  statute.  In  re 
Txlenn.  3  C.  C.  (N.S.)  608;  23  C.  C. 
398. 

59  s  10747  a.  C. 

"NTot  applicable  when  evidence  of 
debts  is  unsatisfactory.  Smith  vs. 
McTntire,  13  O.  F.  T)'.  15;  95  Fed. 
Eep.  585. 


533  NEW   ASSETS  §  616 

§  616.     What  constitutes  new  assets. 

The  above  section  simply  extends  the  right  of  a  creditor  to 
new  assets  which  might  be  received  by  the  administrator  or  ex- 
ecutor after  the  expiration  of  the  eighteen  months  limit.  In 
such  a  case  if  the  creditor  expected  to  retain  a  claim  on  the 
assets,  he  should  in  some  way  notify  the  executor  or  adminis- 
trator; for,  if  he  does  not  notify  him  and  the  assets  are  all 
paid  out  before  action  is  brought,  even  though  the  action  be 
brought  within  six  months  from  the  time  the  creditor  has  notice 
of  the  receipt  of  such  new  assets,  still  the  administrator  or 
executor  would  not  be  responsible.  INIoney  arising  from  the  sale 
of  land  possessed  by  the  decedent  at  the  time  of  his  death,  and 
sold  for  the  payment  of  debts,  and  money  received  by  the  admin- 
istrator, from  the  guardian  of  the  heirs  of  the  deceased  under 
an  arrangement  made  to  save  their  lands  from  sale,  are  not  new 
assets  within  the  meaning  of  this  section,  and  will  not  extend 
the  limitation  within  which  creditors  are  required  to  sue.'° 

As  a  general  rule,  no  property  can  be  considered  new  assets, 
so  as  to  revive  unsatisfied  claims  that  have  been  barred,  which 
has  been  in  the  hands  and  under  the  control  of  the  executor  or 
administrator,  or  has  been  inventoried,  or  which  is  the  product 
of  such  property,  although  it  may  have  assumed,  or  been  con- 
verted into  a  new  form.'^^ 

§  617.     Action  of  creditors  against  heirs,  etc.,  not  barred. 

"Nothing  herein  contained  shall  prevent  or  bar  the  action  or 
suit  of  a  creditor,  against  the  heirs,  next  of  kin,  devisees,  or 
legatees  of  the  deceased,  as  hereinafter  provided."  [R.  S. 
§6119.]  ^2 

The  matters  included  in  the  above  section  in  reference  to  the 
rights  of  heirs  are  those  mentioned  in  sees.  10876  G.  C.  (§  585), 
10877  G.  C.  (§  587),  10878  G.  C.  (§  587),  10879  G.  C.  (§  589), 
10880  G.  C.  (§  590),  10881  G.  C.  (§  591),  10882  G.  C.  (§  592), 
10888  G.  C.  (§593)." 

70  Favorite  vs.  Booker,  IT  O.  S.  V2  R  107.^2  G.  C. 

5f>S.  73  "Rpfprred  to  in  a  previous  chap- 

71  RpTimilpr  Exrs.    S  446T>.  ter. 

See  Smith  vs.  MoTntirp.  n.«i  "Fed.  §  .'584,  et  seq. 

SR.*},  wliPTi  a  sale  to  rtav  dehta  will 
be  presumed  to  he  valid. 


§  618  LIMITATION    OF    ACTIONS  534 

§  618.     Limitation  of  actions  against  administrators  de  bonis 

non.      "When   an    executor   or   administrator   dies,    resigns,    is 
removed    or  his  letters  are  revoked,  or  his  powers  have  ceased, 
without  having  fully  administered  the  goods  and  estate  of  the 
deceased,  and  a  new  administrator  of  the  same  estate  is  ap- 
pointed, the  time  allowed  to  creditors  for  bringing  their  actions 
shall  be  enlarged  as  follows :  to  so  much  of  the  eighteen  months 
provided  for  the  limitation  of  the  action  as  expired  while  the 
former  executor  or  administrator  continued  in  office,  must  be 
added  so  much  time  after  the  appointment  of  the  new  admin- 
istrator, as  will  make  two  years  in  all."     [R.  S.  §  6120;  102 
V.  203.]  ^* 

§  618a.  Not  required  to  answer  to  suit  brought  after  two 
years.  ''The  new  administrator  shall  not  be  held  to  answer  to 
the  suit  of  a  creditor,  commenced  after  the  expiration  of  such 
two  years,  except  as  provided  in  the  following  sections."  [R.  S. 
§6120;  102  V.  203.]"** 

§  619.  Administrator  de  bonis  non  liable  for  two  years  after 
giving  bond.  "In  all  cases  such  new  administrator  shall  be 
liable  to  the  actions  of  the  cr&ditors  for  the  space  of  one  year 
after  he  gives  bond  for  the  discharge  of  his  trust,  although  the 
whole  time  allowed  to  the  creditors  be  thereby  extended  beyond 
such  two  years."     [R.  S.  §  6121;  102  v.  203.]^^ 

§  620.  When  liable  for  actions  for  two  years.  "If  the  for- 
mer executor  or  administrator  did  not  give  notice  of  his  ap- 
pointment as  prescribed  in  this  chapter,  the  new  administrator 
shall  be  liable  to  actions  of  the  creditors  for  two  years  from  the 
date  of  the  bond  given  by  him."     [R.  S.  §  6122. ]^« 

§  621.  An  administrator  de  bonis  non  to  give  notice  of  his 
appointment.  "The  new  administrator  shall  give  notice  of 
his  appointment  in  the  manner  prescribed  with  respect  to  an 
original  administrator.  If  he  fails  so  to  do,  he  shall  have  no 
benefit  of  the  limitations  herein  provided."      [R.  S.   §6123.]'^ 

§  622.  Barred  claims  not  revived.  ' '  Nothing  in  the  next 
four  preceding  sections  shall  revive  a  claim  barred  under  this 

74  §  10753  G.  C.  '«  §  10753  G.  C. 

74*  §  10754  G.  C.  '7  s  10757  G.  C.     See  §§  160,  544. 

See  Badger  vs.  Orr,  34  0.   C.  C.  If  lie  docs  not  give  notice  limita- 

32S,  as  to  application  of  section  to  tlon  does  not  apply.    Mining  Co.  vs. 

limitation  of  time.  Kubbard,  8  0.  App.  105. 

75  §  10755  G.  C. 


535  LIABILITY    OF    HEIR,    ETC.  §  623 

or  any  other  act,  during  the  continuance  in  office  of  the  orig- 
inal executor  or  administrator,  or  of  a  former  administrator 
de  bonis  non."     [R.  S.  §  6124.]^« 

§  623.     To  be  further  liable  if  new  assets  received.    ' '  When 

assets  come  to  the  hands  of  such  new  administrator,  after  any 
of  the  periods  above  limited  for  the  commencement  of  suits 
against  him,  he  shall  account  for  them,  and  be  liable  to  suits  and 
proceedings  on  account  thereof,  as  is  provided  in  this  chapter 
with  respect  to  an  original  administrator."      [R.  S.   §6125.]''' 

78  §  10758  G.  C.  See   note   under   previous   section. 

79  §  10759  G.  C.  §  G16. 


§  624  EXECUTION,   COSTS,  ETC.  536 


CHAPTER  XXXYIL 

EXECUTION.     COSTS.     JOINT  DEBTOR. 

§624  How  estate   of  deceased  joint      §  ggS  Executions  against  executor  or 

debtor  liable.  administrator. 

1 625  Preceding   section    not    to   af-       §  628a  Action    upon    suggestion    of 

feet  rights  of  surety,  etc.  „  „„„  ^^^  ^^  ■^"       .  •  •     a 

*=  •'  %  629  Costs  m  actions  against  an  es- 

§  626  How  and  when  execution  may  ^j^^e,    when   not    recoverable. 

issue  against  an  executor.  §  630  WTien    costs    allowed    and    by 
§  627  Revivor   of  actions  and  judg-  whom. 

ments. 

§  624.     How  estate  of  deceased  joint  debtor  liable. 

Bj  a  settled  rule  of  the  common  law,  the  death  of  one  of  the 
joint  makers  of  an  obligation  extinguished  all  remedy  at  law 
against  his  estate.  If  the  contract  was  joint,  the  action  must 
be  joint,  and  a  joint  judgment  must  follow.  But  as  the  same 
judgment  could  not  be  rendered  against  the  survivor,  and  the 
personal  representative  of  the  deceased  part.y  the  consequence 
was,  that  no  action  at  law  could  be  maintained  against  the 
personal  representative,  either  jointly  with  the  survivor  or 
by  a  separate  suit.  In  such  cases  relief  was  afforded  in 
chancery,  but  only  when  a  necessity  for  such  interposition  was 
shown  to  exist^  and,  therefore,  only  upon  the  condition  that 
the  remedy  at  law  against  the  survivor  had  proved  fruitless. 
And  inasmuch  as  no  equities  arise  against  a  surety,  and  he  is 
only  legally  bound  upon  the  strict  terms  of  the  obligation  into 
which  he  has  entered,  there  is  no  small  show  of  authority  in 
the  early  cases  for  affirming  that  no  such  interference  can  be 
invoked  against  the  estate  of  a  party  thus  situated.^ 

To  meet  the  difficulties  presented  by  the  common  law,  the 
following  statute  was  passed : 

iBurgoyne   vs.    0.  tLife    &   Trust  Co.,  5  0.  S.,  §   586. 


537 


AGAINST   EXECUTOR 


§625 


"When  two  or  more  persons  are  indebted  in  a  joint  contract, 
or  upon  a  judgment  founded  on  it,  and  either  of  them  dies,  his 
estate  shall  be  liable  therefor  as  if  the  contract  has  been  joint 
and  several,  or  as  if  the  judgment  had  been  against  himself 
alone."     [R.  S.  §6102.]- 

§  625.     Preceding  section  not  to  affect  rights  of  surety,  etc. 

"The  next  preceding  section  shall  not  affect  the  rights  of  a 
surety,  when  certified  as  such,  in  a  judgment  rendered  jointly 
against  him  and  his  principal."      [R.  S.  §6103.]'' 

This  section  evidently  refers  to  the  provisions  of  sec.  11713, 
G.  C,  which  provides,  how  judgment  against  principal  and 
surety  is  to  be  entered,  and  how  execution  is  to  be  enforced  in 
such  cases. 

§  626.  How  and  when  execution  may  issue  against  an  ex- 
ecutor. "No  execution  shall  issue  upon  a  judgment  against 
an  executor  or  administrator,  unless  upon  the  order  of  the  court 
which  appointed  him,  or  unless  the  twelve  months  allowed  by 
law,  or  the  further  time  allowed  by  the  court  for  the  collection 


« §  10733  G.  C. 

"  The  surviving  obligor  or  obligors 
in  a  joint  contract  may  be  joined 
with  tlie  personal  representatives  of 
a  deceased  obligor,  in  an  action  upon 
such  contract,  and  a  several  judg- 
ment can  be  rendered  against  each, 
Id.  Where  partners  are  indebted 
for  services  rendered  to  them  the 
indebtedness  is  joint,  and  under  the 
former  practice,  on  the  death  of  one 
the  only  remedy  of  the  creditor  at 
law  was  a  suit  against  the  surviving 
partner ;  but  by  the  statute  the  debt 
becomes  a  joint  .and  several  obliga- 
tion, and  the  creditor  has  his  elec- 
tion to  sue  the  surviving  partner  or 
the  administrator  of  the  deceased 
partner  or  both  the  surviving  part- 
ner and  the  administrator.  Weil  vs. 
Guerin,  42  O.  S.  209.  Where  two 
administrators  give  a  joint  bond 
with  surety  for  the  faithful  admin- 
istration   of    the    estate    that    may 


come  into  their  possession,  and 
thereafter  all  the  property  of  the 
deceased  comes  into  their  joint  pos- 
session, if  waste  is  committed  by  one 
of  the  administrators  after  the  death 
of  the  other,  the  surety  can  require 
that  the  estates  of  both  be  ex- 
hausted before  he  shall  be  liable  for 
the  surviving  administrator's  de- 
fault. Eckert  vs.  Myers,  45  0.  S. 
525.  The  surviving  administrator 
and  the  representatives  of  the  de- 
ceased administrator  will  be  jointly 
liable  to  indemnify  the  surety.  Id. 
By  the  provisions  of  this  section  a 
judgment  rendered  against  one  of 
two  joint  debtors  and  the  adminis- 
trator of  the  estate  of  another  is  a 
several  and  not  a  joint  judgment." 
Williams  vs.  Bradley,  5  C.  C.  114, 
117;  7  Id.  227;  3  C.  D.  58. 

See  §  225. 

The  estate  of  a  deceased  partner 
and  the  surviving  partner  are 
severally  liable  for  joint  obliga- 
tions. Lackner  vs.  McKeeney,  252 
Fed.   403. 

3  §  10734  G.  C. 


§  627  EXECUTION,    COSTS,    ETC.  538 

of  the  assets  of  the  estate,  have  expired.  If  an  account  has 
been  rendered,  and  settled  by  the  court,  execution  shall  issue 
only  for  the  sum  that  appeared,  on  the  settlement  of  such  ac- 
count, to  have  been  a  just  proportion  of  the  assets  applicable 
to  the  judgment."     [R.  S.  §  6105;  102  v.  202.]* 


It  will  be  observed  from  the  v^ording  of  the  above  section 
that  it  is  the  intention  that  no  administrator  or  executor  shall 
be  embarrassed  with  an  execution  so  long  as  the  estate  is  un- 
settled and  he  is  within  the  jurisdiction  of  the  Probate  Court. 
Unless  the  Probate  Court  authorizes  the  issuing  of  such  an 
execution.  If  the  administrator  has  made  his  final  settle- 
ment, then  execution  may  issue  without  permit  of  the  Probate 
Court;  and  if  there  are  assets  in  the  hands  of  the  adminis- 
trator or  executor,  the  execution  shall  issue  only  for  the  sum 
that  shall  have  appeared  on  the  settlement  of  such  account  to 
have  been  a  just  proportion  of  the  assets  applicable  to  the 
judgment.^ 

§  627.     Revivor  of  actions  and  judgments. 

An  action  for  libel,  slander,  malicious  prosecution,  nuisance 
cr  against  a  justice  for  official  misconduct,  abates  by  the  death 
of  either  party.  All  other  actions  or  proceedings,  such  as  sur- 
vived at  common  law  and  by  statute,  may  be  revived  and  pro- 
ceed in  the  name  of  the  personal  representative.®  If  the  plain- 
tiff in  an  action  dies,  the  action  may  be  revived  in  the  name 
of  the  personal  representative  or  heirs  and  devisees,  to  whom- 
soever his  rights  in  the  action  passed.'^ 

A  proceeding  for  the  condemnation  of  lands  must  be  revived 
in  the  names  of  the  heirs  or  devisees.^  If  the  defendant  to 
an  action  in  which  the  right  sur\'ives  to  his  personal  repre- 
sentative dies,  it  shall  be  revived  against  him ;  and  if  to  his 

4  §  10736  G.  C.  S.  563  below;  Lauer  vs.  Smith,  1  C. 

5  See   Sur.   Prac.   55S   for   discus-       C.   (N.S.)    121;  24  C.  C.  47. 

sion  of  N.  Y.  (Law.  6  §§  11235,      11407      G.      C.     and 

See  Woerner  on  Admin.  864.  §  11407    G.    C.    Kinkead's    Pleading, 

See  Kemper   vs.   B.  &   L.   Co.,    11       §  1054. 

C.  C.   (N.S.)    372;   30  C.  C.  700;   80  7§  11407   G.   C.  Kinkead's   Plead- 

O,   S.   732;    Smith  vs.  Lauer.  65   0.       ing,  §10.55. 

8  Ky.  Co.  vs.  Bohm,  29  0.  S.  633. 


539  REVIVOR  OF  JUDGMENTS  §  627 

heirs  and  devisees,  then  it  shall  be  revived  against  them.®  An 
action  for  the  recovery  of  real  property  is  revived  against  the 
heirs  or  devisees  of  the  defendant/"  A  revivor  against  a  repre- 
sentative or  successor  of  a  defendant  must  he  made  within  a 
year  from  the  time  it  could  have  been  first  made/^  But  it  can- 
not be  revived  in  the  name  of  the  personal  representative  or 
successor  of  the  plaintiff  as  a  matter  of  right,  if  the  expiration 
of  the  year  from  the  time  that  the  order  might  have  first  been 
made/^  If  a  party  dies  after  a  levy  has  been  made,  it  is  not 
necessary  that  the  action  be  revived  before  proceeding  to  sell.^^ 
A  claim  upon  which  suit  has  been  commenced  against  a  per- 
son who  dies  before  its  termination,  need  not  to  be  presented  to 
his  personal  representatives  before  the  revivor  of  the  action  may 
be  had.^*  A  revivor  may  in  the  Court's  discretion  be  allowed 
if  more  than  a  year  has  elapsed  since  the  death  of  some  of  the 
plaintiffs,  and  will  be  allowed  if  there  has  been  no  laches/'' 
Where  the  summons  is  returned  "  not  found  —  dead  "  there 
is  no  suit  pending  which  can  be  revived  against  the  administra- 
tor/*' If  after  attempted  revivor,  an  administrator  comes  in 
and  files  a  general  denial  to  the  action,  he  becomes  a  party, 
and  the  action  may  proceed/^  If  a  firm  sues  in  the  firm  name, 
and  one  partner  dies,  action  may  be  continued  in  the  same 
name/^  If  either  or  both  parties  die  after  judgment  ren- 
dered before  satisfaction,  their  representatives  may  be  made 
parties  and  the  same  revived  by  an  action  brought  for  that  pur- 
pose; or  they  may  be  made  parties  in  the  same  manner  as  in 
the  revival  of  an  action  before  judgment,  and  judgment  may 
be  rendered  against  them  accordingly.  If  either  party  die  af- 
ter verdict  rendered  on  error,  and  before  the  judgment  is  car- 

0  S  11408  G.C.  11   C.   C.   196;    Eagle  Paper  Co.  vs. 

10  §  11409  G.  C.  Bragg,  4  Dec.  194;  7  N.  P.  1G5, 

11  §  11410  G.  C.  16  Daykin  vs.  Denner,  5  C.  D.  121; 

12  For  further  discussion,  see  Kin-  10  C.  C.  652. 
kead's  Pleading,  §  1055.  i^  Id.     Supra. 

13  Cist  vs.  Beresford,  13  Bull.  303.  is  Pa.  Ins.  Co.  vs.  Carnahan,  10  C. 
i*Musser  vs.  Chase,  29  0.  S.  577.       D.  225;  19  C.  C.  97. 

I'Barr  vs.  Chapman,  5  C.  D.  46; 


628 


EXECUTION,  COSTS,  :::tc. 


540 


ried  into  execution  by  the  lower  Court^  the  same  may  be  re^ 
vived  in  the  lower  Court/® 

If  the  plaintiff  dies  after  personal  judgment  has  been  ren- 
dered, or  a  decree  for  the  specific  sale  of  real  estate  is  made, 
the  action  must  be  revived  before  a  levy  or  sale  can  be  made 
thereunder. ^°  But  unless  such  a  judgment  becomes  a  lien 
during  the  lifetime  of  the  debtor,  it  cannot  be  enforced  against 
the  heirs.^^  But  if  a  debtor  dies  after  a  levy  has  been  made,  the 
sale  may  proceed  without  making  the  personal  representative  a  j 
party.'"  If  a  defendant  die  after  execution  is  levied,  the  exe-  \ 
cution  proceeds  as  if  the  death  had  not  taken  place.  But  where 
execution  is  issued  after  the  death  of  the  defendant,  upon  a 
judgment  rendered  in  his  lifetime,  and  levied  upon  lands  of 
which  he  died  seized,  the  sale,  if  made,  is  void.^^ 

§  628.     Executions  agfainst  executor  or  administrator.    "All 

executions  against  executors  and  administrators,  for  debts  due 
from  the  deceased,  except  in  the  cases  otherwise  provided  for 
herein,  shall  run  against  the  goods  and  estate  of  the  deceased  in 
their  hands."     [R.  S.  §6107.]^* 

§  628a.  Action  upon  suggestion  of  waste.  ' '  Wlien  an  execu- 
tion against  an  executor  or  administrator,  for  a  debt  due  from 
the  estate  of  the  deceased,  is  returned  unsatisfied,  the  creditors 
may  bring  an  action,  upon  a  suggestion  of  waste,  against  the 
executor  or  administrator.  If  the  defendant  does  not  show  to 
the  contrary,  he  shall  be  deemed  guilty  of  waste,  and  be  per- 
sonally liable  for  the  amount  thereof  when  it  can  be  ascertained. 
If  the  amount  of  such  waste  can  not  be  ascertained,  the  executor  j 
or  administrator  shall  be  liable  for  the  amount  due  on  the  orig- 
inal judgment,  with  interest  thereon,  from  the  time  it  was! 
rendered,  and  judsrment  and  execution  must  be  awarded  ac-j 
cordingly  as  for  his  own  debt."     [R.  S.  §6107.]-** 

According  to  the  above  section  no  execution  can  issue  except 
by  permission  of  the  Probate  Court,  unless  the  estate  has  been 


19  §  11649  G.  C. 

20  Cist  vs.  Beresford,  1  C.  C.  32; 
1  C.  D.  19;  Moore  vs.  Ogden,  35  0 
S.  430;  Beaumont  vs.  Herrick,  24 
0.   S.   445. 

21  Miller  vs.  Tavlor.  29  0.  S.  257. 


22  Bigelow    vs.    Renker,    25    0.    S.  | 
542;    Kinkead's   Pleadinor,    §1057. 

23  Lessee    of    Massie's    Heirs    V3.J 
Long,  2  0.  287. 

21  §  10738    G.    C. 
24*  §  10739   G.   C. 


541  COSTS  WHEN  NOT   ALLOWED  §  629 

fully  settled.  Then  if  it  is  issued  and  no  goods  are  found  upon 
which  a  levy  can  be  made,  a  suit  may  be  brought  against  the 
administrator;  and  if  the  value  of  the  property  which  the 
administrator  or  executor  should  have  in  his  hands  applicable  to 
the  execution  cannot  be  ascertained,  then  tlie  entire  amount 
of  the  execution  claim  shall  be  recovered.  A  suit  might  also 
be  brought  on  the  bond.^^ 

Where  a  judgment  is  a  subsisting  lien  on  the  lands  of  the 
debtor  at  the  time  of  his  death,  it  is  not  necessary  thereafter  to 
issue  execution  upon  it  in  order  to  preserve  the  lien.  It  is 
entitled  to  share  in  the  proceeds  of  the  land,  when  sold  by  the 
personal  representative,  according  to  its  priority  at  the  time 
of  the  debtor's  death,  although  execution  be  not  issued  thereon 
within  five  years  from  its  rendition  or  the  date  of  the  last  execu- 
tion.'« 

§  629.  Costs  in  actions  against  an  estate,  when  not  recover- 
able. "In  suits  against  the  estate  for  the  recovery  of  money 
only,  or  of  specific  personal  property,  in  which  no  provision  is 
made  herein  in  relation  to  costs,  no  costs  shall  be  recovered 
against  the  executor  or  administrator,  to  be  levied  of  his  prop- 
erty or  of  the  property  of  the  deceased,  unless  it  appears  that 
the  demand  on  which  the  action  is  founded,  was  presented  within 
six  months  after  his  giving  bond  for  the  discharge  of  his  trust, 
that  its  payment  was  unreasonably  resisted  or  neglected,  or  that 
the  defendant  refused  to  refer  it  pursuant  to  the  preceding 
provisions.  In  such  cases  the  court  may  direct  such  costs  to 
be  levied  of  the  property  of  the  defendant,  or  of  the  deceased, 
as  are  just,  having  reference  to  the  facts  appearing  on  the 
trial."     [R.  S.  §  6106;  102  v.  202.]'' 

§  630.     When  costs  allowed  and  by  whom. 

"Where  a  judgment  for  a  sum  of  money,  or  for  specific  per- 
sonal property  is  awarded  against  the  administrator  or  executor 
in  an  action  against  him,  it  will  be  observed  that  the  statute 
prescribes  certain  conditions  precedent  to  the  rights  of  the  plain- 
tiff to  recover  costs,  to-wit :  It  nmst  appear  (1)  that  the  plain- 
ts See  §  262,  §  10869  G.  C.  -'7  §  io737  G.  C. 
=«  Ambrose  vs.  Byrne,  61  0.  S. 
146. 


8  630 


EXECUTION,   COSTS,  ETC. 


542 


tiff's  demand  was  presented  within  one  year  after  his  giving 
bond  for  the  discharge  of  his  trust,  and  (2)  that  its  payment 
was  unreasonably  resisted  or  neglected,  or  third  that  the  defend- 
ant refused  to  refer  the  claim.  On  such  conditions  the  Court 
having  reference  to  the  facts  appearing  on  the  trial,  may  award 
costs  against  the  executor  or  administrator  to  be  collected  out 
of  his  individual  property  or  out  of  the  property  of  the  dcr 
ceased;  and  such  costs  are  a  matter  of  right. '^  These  condi- 
tions apply  to  actions  against  executors,  etc.,  and  not  for  action 
by  executors.  And  they  do  not  apply  to  actions  commenced 
against  the  decedent  in  his  lifetime,  and  continued,  after  his 
death,  against  the  executor,  etc. ;  ''*  nor  to  actions  upon  claims 
created  since  his  decease,  by  or  under  the  direction  of  the  execu- 
tor."" Nor  does  the  statute  apply  to  costs  on  appeal,  or  inter- 
locutory costs.  ^^ 


28  Snyder  vs.  Snyder,  26  Hun  324. 
,  There  seems  to  be  no  reported  de- 
cision of  our  Courts  on  the  above 
section,  and  as  it  is  very  similar  to 
tlie  provision  of  the  New  York  Code, 
citations  will  be  made  from  that 
State,  from  the  valuable  works  of 
Redf.  Sur.  Prac.  542.  And  Jessup's 
Sur.   Prac.   926. 

29  Benedict  vs.  Caffe,  3  Duer,  669 ; 
Lemen  vs.  Wood,  16  How.  Pr.  285; 
Tindall  vs.  Jones,  19  Id.  469;  11 
Abb.  Pr.  258 ;  Merritt  vs.  Thompson, 
27  N.  Y.  225;  Mitchell  vs.  Mount, 
17  Abb.  Pa.  213;  Yorks  vs.  Peck,  9 
How.  Pr.  201. 

Merritt  vs.  Thompson,  supra,  ex- 
pressly overrules  McCann  vs.  Brad- 
ley, 15  How.  Pr.  79,  which  had 
given  a  contrary  construction  of  the 
statute,  but  in  which  another  ground 
for  denying  plaintiff's  motion  to  be 
allowed  costs  existed,  and  was  no- 
ticed by  the  Court. 

Mitchell  vs.  Mount,  supra,  decided 
at  about  the  same  time  as  Merritt 
vs.  Thompson,  was  followed  by  Le- 
men vs.   Wood,   supra,  and  view   in 


harmony  therewith  was  adhered  to 
in  Tindall  vs.  Jones,  19  How.  Pr. 
469. 

The  same  conclusion  as  that  in 
Merritt  vs.  Thompson  is  said  to  have 
been  reached,  in  the  general  term, 
in  Haight  vs.  Hayt,  which,  however, 
is  not  reported  upon  this  point,  but 
was  affirmed  on  the  merits  by  the 
Court  of  Appeals  (19  N.  Y.  464), 
and  the  costs  of  the  several  appeals 
allowed,  on  the  ground  that  an  ap- 
peal is  in  the  nature  of  a  new  action, 
and  that  as  to  the  appeal,  the  exec- 
utors ceased  to  be  defendants. 

30  Smith  vs.  Patten,  9  Abb.  Pr.  N. 
S.  205. 

31  Hunt  vs.  Connor,  17  Abb.  Pr. 
466;  Judah  vs.  Stag,  22  Wend.  641. 
The  statute  does  not  apply  to  a  suit 
to  foreclose  a  mechanic's  lien  (Mar- 
ryatt  vs.  Riley,  2  Abb.  N.  Cas.  119). 
To  warrant  the  charging  of  the 
costs  on  the  representative  personal- 
ly, he  must  be  found  to  be  guilty  of 
mismanagement  or  bad  faith  in  the 
defense  (Co.  Civ.  Proc,  §  3246  R. 
S.). 


543  WHEN    ALLOWED  §  630 

In  order  to  avail  himself  of  the  statutory  exemption  from 
costs,  the  executor  or  administrator  must  bring  himself  clearly 
within  the  conditions  contemplated  by  the  statute.  The  rule 
prevails,  that  the  representative  must  have  been  guilty  of  some 
violation  of  duty,  such  as  an  unreasonable  neglect  or  refusal 
to  pay  the  claim  when  presented,  before  he  can  be  properly 
charged  with  costs,  in  addition  to  referee's  fees  and  disburse- 
ments ;  and  no  such  violation  of  duty  being  shown,  it  is  error  to 
allow  costs. 

First  condition.  As  to  the  first  condition,  it  is  fatal  to  a 
claim  for  costs  that  the  creditor  had  not  presented  his  claim 
within  six  months  after  the  administrator  or  executor  had  given 
his  bond.  In  New  York  it  is  held  that  it  is  wholly  immaterial 
whether  the  executor  or  administrator  ever  gave  notice  of  his 
appointment.^"  And  that  it  does  not  matter  that  the  executor 
or  administrator  unreasonably  resisted  and  neglected  to  pay 
or  refer  the  claim ;  that  the  plaintiff  is  not  entitled  to  costs,  if 
his  claim  was  not  presented  within  the  statutory  limitation.^* 

(2)  As  to  the  second  condition — that,  to  charge  defendant 
with  the  costs,  he  must  be  shown  to  have  "  unreasonably  resisted 
or  neglected  "  to  pay  the  claim, —  in  deciding  whether  such  re- 
sistance or  neglect  was  reasonable  or  not,  the  Court  must  have 
"  reference  to  the  fact  which  appeared  on  the  trial."  If  the 
Court  finds  that  the  defense  was  reasonable  and  proper,  it  is 
sufficient  to  exempt  the  defendant  from  costs,  although  in  the 
end  he  was  unsuccessful.  Where  there  is  reason,  in  the  compli- 
cated nature  of  the  accounts  involved,  in  the  great  amount  of 
business  transacted  and  in  the  supposed  and  actual  existence  of 
grave  counterclaims,  to  justify  the  defense  actually  made,  espe- 
cially if  it  appears  that  the  judgment  was  rendered  for  a  much 

32  Roe  vs.  Hunter,  8  N.  P.  21;  son  vs.  Root,  18  Abb.  N.  Cas.  462). 
Brinker  vs.  Loomis,  43  Hun  247.  Horton  vs.  Brown  (29  Hun  654),  so 

33  Supple  vs.  Sayre,  51  Ilun  30;  far  as  it  holds  that  the  first  condi- 
King  vs.  Todd,  27  Abb.  N.  Cas.  149.  tion  must  have  been  complied  with 
The  rule  is  not  altered  by  the  fact  and  one  of  the  subsequent  conditions 
that  the  creditor  was  unaware  of  must  have  also  happened,  in  order 
the  publication  of  notice  to  present  to  entitle  plaintiff  to  costs,  has  been 
claims,    until    the    statutory    period  overruled. 

allowed  therefor  had  expired  (Clark- 


§630 


CLAIMS   OF  ADMINISTRATOR 


544 


smaller  sum  than  the  original  claim,  costs  should  not  be  award- 
ed to  plaintiff.^*  It  must  appear,  however,  that  the  defendant 
had  good  reason  to  believe  that  there  was  a  valid  defense  to  the 
claim,  in  whole  or  a  material  part  of  it,  or  that  the  defense 
would  probably  have  been  successful,  if,  for  example,  he  could 
have  procured  the  attendance  at  the  trial  of  a  certain  witness.^^ 
Where  the  claim  is  materially  reduced  on  the  trial,  it  cannot 
be  said  to  have  been  unreasonably  resisted.^®  The  claim  on 
which  the  recovery  is  had  must  be  substantially  the  same  as  the 
one  which  was  presented  to,  and  rejected  by,  the  executor.^^ 
But  the  fact  that  tlie  plaintiff  was  allowed  to  amend  his  com- 
plaint so  as  to  claim  a  larger  recovery,  and  to  prove  and  to 
recover  a  larger  compensation  for  services,  than  that  stated  in 
the  claim  presented  to  the  executors,  does  not  change  the  claim 
from  that  originally  presented.^*  jSTor  does  the  fact  that  the 
action  was  for  a  smaller  sum  than  the  amount  claimed  in  tlie 
account  as  presented  and  rejected,  deprive  plaintiff  of  his 
costs.^^ 


34  John?on  vs.  Myers,  103  N.  Y. 
666. 

35  Stephenson  vs.  Clark,  12  How. 
Pr.  282.  He  will  not  be  charged  with 
costs  for  resisting  a  claim  referred 
under  the  statute,  where  he  has 
acted  with  reason  and  good  faith, 
although  the  claim  be  finally  allowed 

(Vaughn  vs.  Strong,  66  Hun  278; 
s.  c.  21  N,  Y.  Supp.  154).  In  that 
case,  which  was  a  reference  in  a 
special  proceeding,  it  appeared  that 
defendant  found  among  papers  of 
deceased,  documents  in  his  hand- 
writing from  which  she  had  a  right 
to  assume  that  the  claims  were  un- 
just; and  that,  on  two  successive 
trials  referees  had  found  in  defend- 
ant's favor.  Held,  erroneous,  on 
judgment  being  rendered  against 
her,  on  the  third  trial,  to  grant  a 
motion  for  costs  on  the  ground  that 
payment  had  been  unreasonably  re- 
sisted. 


36  Cruiskshank  vs.  Cruikshank,  9 
How.  Pr.  350;  Comstock  vs.  01m- 
stead,  6  Id.  77;  Buckhout  vs.  Hunt, 
16  Id.  407;  Harrison  vs.  Ayers,  18 
Hun  336;  Pursell  vs.  Fry,  19  Hun 
595;  58  How.  Pr.  317;  Pinkernelli, 
vs.  BischofF,  2  Abb.  N.  Cas.  107; 
Daggett  vs.  Mead,  11  Id.  116;  Web 
ster  vs.  Nichols,  21  Week  Dig.  566; 
where  the  claim  was  reduced  one- 
third.  But  a  reduction  of  one-fifth, 
in  a  claim  for  services,  in  conse- 
quence of  a  difference  of  opinion  as 
to  value,  where  there  had  not  been 
a  denial  of  the  whole  claim,  does 
not  relieve  from  costs  (Fort  vs. 
Gooding,  9  Barb.  388).  For  other 
illustrations,  ^ee  Darling  vs.  Halsey, 
2  Abb.  N.  Cas.  105. 

37  Genet  vs.  Binsse,  3  Daly  239. 

38  Field  vs.  Field,  77  N.  Y.  294. 

39  Carter  vs.  Beckwith,  104  N.  Y. 
236. 


545  SERVICES  OF  OTHERS  §   680 

(3)  As  to  the  third  condition  —  that  to  charge  the  defendant 
with  costs,  he  must  have  ''  refused  to  refer  the  claim,  as  pre^ 
scribed  bj  law,"  — ■  the  foregoing  considerations  are  entirely 
applicable.  A  refusal  to  refer  is  a  fact,  and  not  a  conclusion  of 
law,  and  before  costs  can  be  included  in  the  judgment,  the  fact 
of  a  refusal  must  be  found  or  certified  to  by  the  referee,  or  if 
the  certificate  does  not  state  all  the  facts,  fully  and  fairly,  they 
may  be  shown  by  affidavits  on  a  motion  for  costs.*"  The  reply 
of  the  representative  (defendant),  on  rejecting  the  claim,  to 
the  claimant's  (plaintiff's)  suggestion  of  a  compromise  and 
reference,  that  the  claim  had  better  take  its  course  at  law,  is  a 
refusal  to  refer,  entitling  the  latter  to  costs,  on  a  recovery.*^ 

It  is  not  necessary  for  plaintiff  to  The  certificate  of  the  referee,  based 

*how  that,  after  the  rejection  of  the  upon  a  concession  of  the  defendant 

claim,  he  offered  to  refer  the  matter  on  the  trial  that  he  had  refused  to 

before  the  commencement  of  the  ac-  refer  the  claim,  should  be  conclusive 

tion   (Id.).     But  in  Nellis  vs.  Dues-  upon  the  Court   in   awarding   costs 

ler   (44  N.  Y.  State  Rep.  229;  s.  c.  (Id.).      See    Russell     vs.     Lane,     1 

18  N.   Y.   Supp.   315),   it  was   held  Barb.    519;     Wilkinson    vs.    Little- 

that  where  an   executor   rejected   a  wood,  67  How.  Pr,  474;  Meltzer  vs. 

claim   and   refused   to   refer  it,   the  Doll,  91  N.  Y.  365. 

claimant,  though  recovering  only  a  *^  Clark    vs.    Corwin,    39    N.    Y. 

small  part  of  the  amount  demanded,  State  Rep.   784;   s.  c.  21   Civ.  Pro. 

was  entitled  to  costs.  Rep.  108;  15  N.  Y.  Supp.  618. 

40  Ely   vs.    Taylor,    42    Hun    205. 


631 


CLAIMS  OF  ADMINISTKATOB,  ETC. 


546 


CHAPTER   XXXYIII. 

CLAIMS  OF  EXECUTOR  OR  ADMINISTRATOR. 


631  Debts  due  to  executor,  etc. 

632  General  Law  Applicable. 

633  Proceedure  on  presentation  of 

executor's  or  administrator's 
claim  to  Probate  Court. 

634  Claims  under  fifty  dollars. 

635  Where  the  claim  exceeds  fifty 

dollars. 

636  Presentation  of  claims. 
I  637  Entry  and  notice. 

i  638  Entry    and    notice    for    non- 
residents. 


§  639  Character    of    proof    required. 

§  640  Allowance  or  disallowance  of 
claim. 

§  641  Hearing.    Exceptions.    Appeal. 

§  641a  Appeal  on  claims  by  executor 
or  administrator  for  debt. 

§  641b  On  appeals  from  probate  to 
common    pleas    court. 

§  641c  Bond. 

§642  Error,  etc. 

§  643  Appeal. 

§  644  Form    of    appeal   bond. 

§  645  Debts  due  for  services  ren- 
dered to  the  estate  by  others. 


§  631.     Debts  due  to  executor,  etc. 

We  have  heretofore  seen  ^  that  at  common  law  the  naming 
of  a  person  as  executor  cancels  the  executor's  debt.  Tkis  was 
on  the  theory  that,  the  testator  knowing  that  the  executor  could 
not  sue  himself,  meant  by  naming  him  to  serve  in  that  capacity, 
that  the  debt  should  be  canceled.  This  rule  was  changed  by 
the  statute.  It  was  likewise  a  rule  of  the  common  law  that 
where  a  person  was  appointed  administrator  or  executor  of 
an  estate  which.  wa&  indebted  tO'  him,  such  administrator  or 
executor  had  a  right  to  retain  his  own  debt  out  of  whatever 
assets  might  come  into  his  possession.  He  could  do  this  even 
if  it  gave  to  his  claim  a  superior  right  over  others.  He  could 
also  retain  sufficient  assets  to  pay  his  own  claim  without  the 
Court  passing  upon  the  justice  of  the  same.  This  idea  waa 
not  in  accordance  witli  justice,  and  Courts  of  Equity  were  fre- 
quently called  upon  to  correct  inequalities.^ 

This  matter  is  settled  in  our  State  by  the  following  statute: 


1  §  10691  G.  C,  §  389. 


2  Schouler   on   Extra.   439 ;    Woer- 
ner,  Admin.  842. 


547  DEBTS   DUE   ADMINISTRATOR  §  632 

"No  part  of  the  assets  of  the  deceased  shall  be  retained  by  an 
executor  or  administrator,  in  satisfaction  of  his  own  debt  or 
claim,  until  it  has  been  proved  to  and  allowed  by  the  probate 
court.  Such  debt  is  not  entitled  to  preference  over  others  of 
the  same  class."     [R.  S.  §  6099.] ^ 

§  632.    General  law  applicable. 

There  are  two  particular  classes  of  debts  that  may  be  due 
an  executor  or  administrator.  The  first  class  might  be  said 
to  include  claims  for  moneys  advanced  by  liim  to  pay  legacies 
or  debts  before  he  has  realized  on  the  assets  of  the  estate;  and 
the  second,  debts  owing  to  him  as  an  individual  by  the  decedent 
at  the  time  of  his  death.  In  respect  to  the  first  class  of  debts 
it  may  be  stated,  that  -the  payment  of  legacies  or  debts  by  an 
executor,  before  ascertaining  what  is  due  to  the  creditors,  and 
thus  before  being  in  a  position  to  know  whether  the  balance  of 
the  estate  will  be  sufficient  to  pay  debts  and  legacies,  is  at  his 
peril.* 

Where  an  executor  personally  makes  advances  to  legatees,  so 
far  as  the  estate  is  concerned  he  is  entitled  merely  to  be  sub- 
rogated to  the  rights  of  the  legatees  and  to  a  repayment  from 
the  shares  of  such  legatees  only,  and  if  after  the  payment  of 
debts  it  becomes  necessary  to  scale  down  the  legatees  pro  rata, 

3  §  10727  G.  C.  ceived.  The  advertisement  for  claims 
Where    an    executor    is    removed,      under  the  statute,  aiTords  suilieient 

etc.,  and  tiles  his  account,  if  his  own  protection  to  the  executor  or  admin- 
claim  has  not  been  adjudicated  as  istrator,  if  he  pays  or  distributes 
provided,  he  may  sue  his  successor.  after  the  period  for  the  advertise- 
Sharp  vs.  Pontius,  2  C.  C.  7 ;  1  C,  D.  ment  to  run  has  expired.  If  he  pays 
331.  before,  it  is  at  his  own  risk,  and  he 

4  Abbott  vs.  Abbott,  5  0.  86,  536 ;  should  suffer,  in  preference  to  an  in- 
Glacius  vs.  Fogel,  88  N.  Y.  434.  nocent  creditor." 

The  debts  of  an  estate  must  be  When  a  widow  wlio  is  adminis- 
paid  before  distribution  to  heirs;  tratrix  of  her  husband's  estate  pays 
and  distribution  made  to  heirs  upon  a  debt  of  the  estate  out  of  her  in- 
the  advice  of  counsel  and  the  pro-  dividual  funds,  she  is  subrogated  to 
bate  judge,  is  made  at  the  peril  of  all  the  rights  of  the  creditors.  In 
the  administrator.  If  the  estate  re  Patterson,  11  0.  L.  R.  373;  58 
proves  solvent,  he  should  be  credited  Bull.  305.  Judgment  on  exceptions 
with  such  distribution,  but  if  in-  to  an  executor's  account  disallow- 
solvent,  he  should  not  receive  such  ing  a  claim  made  by  him  to  the  pro- 
credit.  James  vs.  West,  47  Bull.  ceeds  of  a  certain  farm  by  virtue 
750.  of   an   agreement  with   the   testator 

Surrogate    Bradford,    in    Clavton  does  not  bar  a  proceeding  under  Sec. 

vs.    Wardell,    2    Bradf.    1,    7.    held,  10728  for  compensation  for  working 

"that  the  losses  suffered  by  the  ex-  the  farm  under  a  claim  of  an  agree- 

ecutors  by  these  overpavments.  could  ment  therefor.     The  two  claims  are 

easilv  have  been  avoided  by  reserv-  different    and    inconsistent.      Estate 

ing  the  funds  necessary  to  meet  all  of  Ward,  21   O.  0.  C.    (N.S.)    753; 

claims  of  which  notice  had  been  re-  22  0.  C.  C.  44. 


§  632  •  CLAIMS  DUE  ADMINISTRATOR  548 

the  right  of  the  executor,  independently  of  his  ultimate  remedy 
against  the  legatee,  is  merely  to  that  pro  rata  share  of  the  assets 
available  for  distribution  among  the  legatees  to  whom  he  has 
made  advances.^ 

But  for  advances  made  by  an  executor  to  pay  debts  of 
a  solvent  estate,  he  is  entitled  to  reimbursement.®  It  is  the 
second  class  of  claims  that  is  referred  to  in  the  above  section  of 
the  General  Code  that  will  be  considered  in  this  chapter; 
and  it  is  intended  to  place  an  administrator  or  executor  upon 
the  same  plane  as  any  other  creditor  of  the  estate.'^  Where  a 
creditor  is  appointed  administrator  to  his  debtor  and  dies  with- 
out receiving  assets,  it  is  not  to  be  assumed  that  the  debt  was 
paid  or  extinguished.  In  such  a  case  tlie  administrator  of  the 
deceased  administrator  may  sue  the  administrator  de  bonis  nan 
and  recover.^  It  is  perfectly  competent  for  an  executor  or 
administrator  to  assign  his  claim  against  the  estate  and  the 
assignee  may  maintain  action  thereon  as  any  other  creditor 
could.®  The  question  might  some  times  arise  as  to  the  effect 
of  the  statute  of  limitations  either  general  or  special  in  relation 
to  the  executor's  claim.  In  view  of  such  a  question  arising, 
the  Code  of  New  York  provides  that  from  the  death  of  the 
decedent  until  the  first  judicial  settlement  of  the  account  of  his 
executor  or  administrator,  the  running  of  the  statute  of  limita- 
tions against  a  debt  due  from  the  decedent  is  suspended.^" 

There  is  no  statutory  provision  in  Ohio  on  that  subject,  and 
it  may,  therefore,  be  said  tliat  if  an  administrator's  or  execu- 
tor's claim  is  barred  by  the  statute  of  limitation  before  the 
deatli  of  the  deceased,  it  could  not  be  revived  by  action  of  the 
administrator  or  executor.  The  object  of  the  suspension  of 
the  running  of  the  statute  in  New  York  is  for  the  reason  that 
the  executor's  claim  could  not  be  passed  on  until  the  first 
judicial  settlement  of  his  account.     Such  not  being  the  ease 

5  Rogers  vs.  Weaver,  5  O.  536;  water  vs.  Gintner,  18  N.  P.  (N.S.) 
Tickel  vs.   Quinn,   1   Dem.  425,  432.       209. 

See  also  Estate  of  Randell,  8  X.  7  Williams    vs.    Purdy,    6    Paige, 

Y.  Supp.  652.  166:   Clark  vs.  Clark,  8  Paige,  152. 

6  Livingston  vs.  Newkirk,  3  Johns.  «  Hall  vs.  Pratt,  5  0.  72. 

Ch.    312;     Yeddo    vs.    Whitnev,    17  9  Snyder  vs.  Snyder,  96  N.  Y.  88. 

Weekly  Dig.    120.      Even   if   he  bor-  lo  New    York    Civ.    Code,    §2731; 

rows  money  for  that  purpose.    West-       Jessup's   Sur.   Pract.   1311. 


549  DEBTS   DUE   ADMINISTRATOR  §  633 

in  Ohio,  our  statute  permitting  the  executor  or  administrator 
to  file  his  claim  for  allowance  any  time  after  his  appointment. 
It  would  seem  that  the  general  rule  to  he  applied  to  an  ordi- 
nary creditor  would  he  applied  on  the  claim  of  an  executor  or 
administrator.  And  if  the  administrator  or  executor  fail  to 
present  his  claim  to  the  Prohate  Court  until  the  right  of  action 
is  harred  thereon,  he  would  lose  his  claim."  Of  course,  after 
the  claim  was  once  presented  the  statute  would  cease  running. 
Under  the  New  York  statute,  after  the  first  judicial  settlement, 
the  statute  begins  to  run,"* 

§  633.  Procedure  on  presentation  of  executor's  or  adminis- 
trator's claim  to  Probate  Court.  "When  an  executor  or  ad- 
ministrator presents  a  debt  or  claim  to  the  probate  court  for  its 
allowance,  which  he  owns,  against  the  estate  he  represents, 
amounting  to  fifty  dollars  or  more,  the  court  must  fix  a  day,  not 
less  than  four  weeks  nor  more  than  six  weeks  from  its  presenta- 
tion, when  the  testimony  touching  it  shall  be  heard.  The  court 
forthwith  shall  issue  an  order,  directed  to  the  executor  or  ad- 
ministrator, requiring  him  to  give  notice  in  writing  to  all  the 
heirs,  legatees,  or  devisees  of  the  decedent  interested  in  the 
estate,  and  such  creditors  as  are  therein  named.  Such  notice 
must  contain  a  statement  of  the  amount  claimed,  designate  the 
time  fixed  for  hearing  the  testimony,  and  be  served  upon  the 
persons  named  in  the  order  at  least  twenty  days  before  tlie 
time  for  hearing.  If  any  persons  mentioned  in  the  order  are 
not  residents  of  the  county,  service  of  notice  may  be  made  upon 
them  by  publication  for  three  consecutive  weeks  in  a  newspaper, 
published  or  circulating  in  the  county.  All  the  persons  named 
in  the  order  shall  be  parties  to  the  proceeding,  and  any  other 
person  having  an  interest  in  the  estate,  may  come  in  and  be 
made  a  party  thereto."      [R.  S.  §6100.]i2 

nin  re  Ward,  21  C.  C.  753.  Spink,  7  C.  C.   (N.S.)    89;  28  O.  C. 

li*Redf.  8ur.  Pract.  528.  C.  94;  affirmed  78  0.  S.  390. 

12  §  1U728  G.  C.  The    original    jurisdiction    of    the 

A    proceeding    commenced    by    an  Probate   Court   in  the  allowance  of 

executor     or     administrator     under  the  administrator's  claim.    Field  vs. 

§  10728  G.  C,  for  the  allowance  of  a  Block,  4  C.  C.   (is.S.)   216;  26  0.  C. 

claim  wliich  lie  owns  nimseit,  is  an  C.  113.     See  Liggett  vs.  Liggett,  51 

action  or  suit  in  his  beiiaif.     In  re  Bull.    59,   following   the   same   rule. 

Ward,  21  C.  C.  754.  A  jjayment  made  by  the  administra- 

The  Probate  Court  has  jurisdic-  tor  on  his  own  claim  would  not 
tion  under  §  10728  G.  L-.,  §  i>'66,  to  take  it  out  of  the  statute  because 
reject  or  allow  claims  of  an  execu-  he  had  no  right  to  make  such  pay- 
tor,  etc.,  and  all  equitable  power  ment.  In  procedure  for  allowance 
necessary  to  a  full  and  complete  of  a  claim  of  the  executor  against 
justice,  and  allowance  may  be  made  an  estate  a  co-executor  is  not  a 
to  a  mother  out  ot  a  cliild's  estate  necessary  party.  Downing  vs. 
for  past  support  under  extraordi-  Downing,  3  0.  C.  C.  (N.S.)  623;  23 
nary     circumstances.        Spmk     vs.  O.  C.  C.  389. 


§  634  CLAIMS  DUE  ADMINISTRATOR  550 

§  634.     Claims  under  fifty  dollars. 

The  above  section  makes  no  provision  as  to  how  a  claim  of 
an  administrator  or  executor  under  fifty  dollars  may  be  al- 
lowed. It  is  evidently  the  intention  of  the  law  that  where  a 
claim  is  less  than  fifty  dollars  that  the  executor  or  adminis- 
trator shall  verify  and  file  his  claim  with  a  receipt  for  its 
payment  with  his  account,  and  pennit  it  to  be  attacked  in  ex- 
ceptions to  the  account.  Of  course  the  administrator  or  execu- 
tor would  have  no  right  to  pay  his  own  debt  in  any  other  order 
of  priority  than  that  allowed  to  other  claims  of  a  like  character. 
It  sometimes  happens  that  even  where  claims  above  the  sum  of 
fifty  dollars  exist  in  favor  of  the  executor,  that  it  is  the  desire 
of  all  parties  to  save  the  annoyance  and  trouble  of  the  Courts 
passing  on  such  a  claim.  If  the  estate  is  solvent,  and  the  ad- 
ministrator procure  a  written  approval  of  all  the  heirs,  I  see 
no  reason  why  he  could  not  retain  sufficient  assets  to  pay  the 
claim.  The  better  way,  however,  is  always  to  follow  the  provi- 
sions of  the  statute. 

§  635.     Where  the  claim  exceeds  fifty  dollars. 

Where  the  claim  exceeds  fifty  dollars  the  statute  is  specific 
in  providing  the  mode  of  procedure.  In  the  first  place  it  must 
be  presented  to  the  Probate  Court  that  made  the  administra- 
tor's or  executor's  appointment.  In  the  second  place  the  Court 
shall  fix  a  day  for  hearing  not  less  than  four  weeks,  nor 
more  than  six  weeks  from  the  time  of  its  presentatioru  In  the 
third  place  an  order  shall  be  issued  to  the  executor  or  adminis- 
trator requiring  him  to  give  notice  to  all  the  heirs,  legatees,  or 
devisees,  and  such  creditors  as  the  Court  may  tliink  proper. 
Which  notice  shall  contain  a  statement  of  the  amount  of  the 
claim,  and  designate  the  time  fixed  for  hearing.  Fourth,  that 
said  notice  must  be  served  at  least  twenty  days  before  the  time 
fixed  for  hearing.  And  fifth,  if  any  of  the  persons  requiring 
notice  be  non-residents  they  shall  be  served  by  publication  for 
three  consecutive  weeks  in  a  weekly  newspaper  published  or 
circulating  in  the  county.      Sixth  that  all  of  the  persons  named 


551  PRESENTATION    OB    CLAIM  §  636 

in  the  order  requiring  notice  are  parties  to  the  proceeding 
and  ary  other  person  interested  in  the  estate  may  be  made  a 
party. 

§  636.     Presentation  of  claim. 

The  statute  does  not  so  say,  but  I  have  no  doubt  that  the 
claim  must  be  presented  to  the  Probate  Court  that  makes  the 
appointment.  Neither  does  the  statute  contemplate  that  there 
shall  be  any  other  pleadings  in  the  case,  than  the  statement 
or  account  that  is  filed  by  the  executor  or  administrator.  It 
would,  therefore,  be  proper  that  the  statements  contained  in 
the  account  be  of  such  a  character  that  if  they  were  put  in 
the  form  of  a  petition,  a  demurrer  would  not  lie.  The  claim 
ought  to  be  itemized  and  sworn  to.  Recognizing  the  fact  that 
administrators  or  executors  are  not  educated  lawyers,  and  some- 
times do  not  employ  legal  counsel,  a  liberal  rule  would  no  doubt 
be  applied  in  such  cases,  similar,  perhaps,  to  that  in  a  Justice's 
of  the  Peace  Court.  The  claim  ought  to  be  presented  in  a  rea- 
sonably short  time  after  the  administrator's  or  executor's  qual- 
ification. This  is  so  for  several  reasons.  It  might  prevent  a 
troublesome  question  of  the  statute  of  limitation,^^  and  it  would 
also  assist  a  speedy  settlement  of  the  estate  by  having  such 
matter  settled  at  as  early  a  date  as  possible.  The  following 
may  be  used  as  a  form: 

APPLICATION. 

{Title.) 

To Probate    Judge    of County,    Ohio. 

C.  D.,  executor  (or  administrator)  of  the  estate  of  A.  B.,  deceased, 
respectively  represents  to  the  Court  that  the  estate  of  A.  B.   is  indebtec^ 

to  him  in  the  sum   of Dollars,   which   debt  was   incurred 

during  the  lifetime  of  said  A.  B.  And  that  an  itemized  account  attached 
«.nd  marked  exhibit  A.,  is  a  correct  statement  of  said  account.  (Here  if 
the  same  be  founded  upon  a  promissory  note,  a  copy  of  the  promissory 
note  might  be  given  instead  of  an  exhibit.) 

Wherefore  said  C.  D.  prays  the  Court  that  an  order  may  be  made  ^xing 
a  day  for  the  hearing  of  said  claim,  and  the  giving  of  notice  thereof  as 
required  by  law,  and  that  upon  a  hearing  thereof  that  said  claim  may  be 
allowed  as  a  valid  claim  against  the  estate  of  A.  B.,  and  that  he  may  have 
such  other  relief  as  is  just  and  proper. 


13  In  re  Ward,  21  C.  C.  753,  §  632. 


§  637  CLAIMS  DUE  ADMINISTRATOE  552 

State  of  Ohio,    County,  ss. 

C.  D.  being  first  duly  sworn  says  that  he  is  the  owner  of  the  claim  set 
forth  in  the  above  application  and  that  the  same  is  just,  due  and  unpaid, 
that  there  are  no  offsets  against  the  same,  and  that  the  estate  of  A.  B. 
is  justly  indebted  thereon  in  the  sum  of Dollars. 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day  of 

§  637.     Entry   and  notice. 

Upon  liie  presentation  of  this  claim  the  Court  must  make  an 
order  fixing  the  time  of  hearing,  and  make  an  order  requiring 
the  administrator  to  give  notice  to  the  heirs  and  other  interested 
persons.     The  entry  may  be  in  the  following  form : 

(Title.) 

This  day  came  C.  D.,  administrator  (or  executor)  of  the  estate  of  A. 
B.,  and  presented  to  this  court  his  claim  against  the  estate  of  said  A.  B. 

for  allowance ;   and  thereupon  the  Court  fixed  the day  of 

at    o'clock.  ..  .M..    190..,    as   the    time    for   hearing   the   same; 

and  orders  that  said  administrator  (or  executor)  give  notice  thereof  iif 
writing  to  the  following  parties:  (here  insert  the  names  of  all  the  heirs, 
devisees  and  legatees  and  such  creditors  as  the  Court  may  think  should 
be  notified ) ,  at  least  twenty  days  before  said  time  set  for  hearing. 

The  following  may  be  used  a,s  a  form  of  notice: 

To  C.  D.,  administrator    (or  executor). 

You  are  hereby  commanded  to  notifj'  the  following  persons   (here  insert 

names  of  persons  to  be  notified) ,  that  on  the day  of 

you    presented    to   the    Probate    Court   of County   your    claim 

against  said  estate,  amounting  to dollars,  and  that  this  court 

has  set  the  time  for  hearing,  the  same  to  be  on  the day  of 

at o'clock,   at  the   office   of   the   Probate   Judge   of   this   county. 

You  are  further  ordered  to  serve  the  said  notice  at  least  twenty  days  before 

the  said  time  of  hearing.  , 

Probate  Judge. 

§  638.     Entry  and  notice  for  non-residents. 

If  the  heirs,  legatees  or  devisees,  or  a  creditor  that  the  Court 
require  to  be  notified  are  non-residents  of  the  county,  then 
service  must  be  made  by  publication,  and  the  entry  may  be  in 
the  following  form: 

(Title.) 

This  day  came  C.  D.,  administrator  (or  executor)  of  the  estate  of  A. 
B.,  and  presented  to  this  court  his  claim  against  the  estate  of  A.  B.,  de- 
ceased, thereupon  the  Court  fixes  the day  of at 

o'clock.  .  .M..  190....  as  the  time  for  hearing  the  same,  and  it  appearing 
to  the  Court  that  (here  mention  names  of  the  parties  that  are  non-resi- 
dents), are  non-residents  of  this  county.     It  is  ordered  that  notice  be  given 


553  PROOF    REQUIRED  §  639 

by  publication  for  three  consecutive  weeks  in  a  weekly  newspaper  published 
(or  circulating)   in  this  county. 

The  following  may  be  used  as  a  form,  of  notice,  when  re- 
quired by  publication : 

To  E.  F.,  G.  H.,  and  I.  J.,  residents  of County,  Ohio,  and 

L.  M.,  a  resident  of County,  Iowa. 

Persons  interested  in  the  estate  of  A.  B.,  deceased,  late  of 

County,    Ohio,    as     (here    state    how    interested,    whether    heirs,    devisees, 

legatees  or  creditors),  will  take  notice  that  on  the day  of 

,   C.  D.,   the  administrator    (or  executor)    of  the  estate  of  A.  B., 

presented  to  the  Probate  Court  of County,  a  claim  for  allow- 
ance against   the   said   estate,   for  the   sum   of Dollars. 

That  said  cause  will  be  for  hearing  on  the day  of ,  at 

o'clock. .  .M.,  190. . .,  at  the  office  of  the  Probate  Judge  of  said 

county.  C.  D.,  Administrator. 

The  notice  whether  served  or  given  by  publication  should 
have  a  proof  of  service  made  thereon  and  filed  with  the  Pro- 
bate Court,  with  the  papers  of  the  case,  and  made  a  part  of  the 
proceedings. 

§  639.     Character  of  proof  required. 

It  has  been  said  that  the  claim  of  an  executor  or  administra- 
tor, particularly  if  a  relative  of  the  deceased,  is  viewed  with 
suspicion.^*  And  when  the  claim  is  based  on  a  not©  overdue  at 
the  time  of  the  testator's  death,  the  executor  must  show  clearly 
that  he  held  the  note  by  a  title  hostile  to  that  of  the  deceased, 
unexplained  possession  being  insufficient.^^  In  other  cases  it 
has  been  held  that  where  the  debt  is  based  on  a  written  obli- 
gation, the  executor  is  entitled  to  the  benefit  of  the  usual  pre- 
sumption. He  is  not  bound,  therefore,  to  prove  affirmatively 
that  the  note  has  not  been  paid.^'' 

The  rule  is  general  that  the  claimant's  oavu  affidavit,  verify- 
ing his  claim,  is  not,  of  itself,  the  proof  required.  The  exist- 
ence of  the  debt  must  be  established  by  legal  evidence,  in  ad- 
dition to  the  verification  which  he  may  require  of  another 
creditor.     Thus  where  the  administrator  sworn,   on  his  own 

"Kydd    vs.    Dalrymple,    2    Dem.       43;  Hoffer's  Estate,  156  Pa.  St.  473, 
630.  isMacombers    Estate,     11    N.    Y. 

16  Kuhlman's.  Estate,  178  Pa.  St.       Supp.  198. 


§  640  CLAIMS  DUE  ADMINISTRATOR  554 

behalf  without  objection,  failed  to  testify  that  no  payments 
had  been  made  on  account  of  his  claim,  or  there  were  no  off- 
sets against  it,  the  claim  was  rejected,  as  these  were  held  to  be 
affirmative  facts,  to  be  established  by  the  claimant.^^  In  this  kind 
of  a  proceeding  the  application  takes  the  place  of  a  petition  and 
the  proceedings  assume  the  character  of  a  case  at  law  and 
hence  the  rules  of  evidence  applicable  to  any  other  proceeding 
at  law,  should  be  applied  here.  If  the  parties  resisting  the 
application  plead  payment,  the  burden  of  proof  is  upon  them/' 

§  640.     Allowance   or  disallowance   of   claim. 

If  upon  the  hearing  the  Court  is  satisfied  that  the  claim  is  a 
just  one,  it  should  be  allowed  to  the  administrator  or  execu- 
tor.    Interest  may  also  be  allowed,  the  same  as  to  any  other 

creditor.     The  following  may  be  used  as  a  journal  entry : 
( Title. ) 

This  day  this  matter  came  on  to  be  heard  upon  the  claim  presented  to 
this   court   for   allowance   by   C.   D.,   administrator    (or   executor)    of  the 

estate  of  A.  B.  against  the  estate  of  A.  B.,  for  the  sum  of 

Dollars,  and  it  appearing  to  the  Court  that  notice  thereof  has  been  given 
as  required  by  the  former  orders  herein  made,  this  cause  came  on  further 
to  be  heard  upon  the  testimony  of  witnesses  and  was  submitted  to  the 
Court.  Whereupon  the  Court  finds  that  such  claim  is  a  valid  and  legal 
one,  and  that  there  is  due  from  the  estate  of  A.   B,  to  said  C.  D.,   the 

sum  of Dollars,   with  interest  from  the day   of . . . . 

,  and  it  is  therefore  ordered  that  the  said  claim  be  allowed  as  a 

valid  one  against  the  estate  of  said  A.  B.,  and  that  the  said  C.  D.  may 
retain  out  of  the  assets,  a  sum  sufficient  to  pay  the  same,  provided  assets 
are  in  his  hands  applicable  to  claims  of  the  same  character  sufficient  to 
pay  all  in  full.     If  not  then  said  claim  to  be  paid  pro  rata  with  those  of 

the  same  class;  and  that  the  costs  of  this  proceeding  is  taxed  at 

Dollars,  be  paid  out  of  the  funds  of  said  estate  in  the  hands  ol 

said   administrator. 

If  the  claim  is  disallowed,  an  entry  should  be  made  contain- 
ing the  findings  of  the  Court,  and  might  in  addition  contain  a 
provision  that  the  administrator  should  pay  the  costs  of  the  pro- 
ceedings.^® 

17  Wood  vs.  Rusco,  4  Redf.  Transactions  with  an  agent  is  aa 
380;  Redf.  Sur.  Prac.  527;  Woerner  inadmissible  as  if  made  by  declarant 
on  Admin.  822;  Jes.  Sur.  Prac.  918.  himself.       Wehrman    vs.     Beech,    7 

18  See  Estate  of  Gerke.  Goebel,  C.  C.  (X.S.)  216;  28  0.  C.  C.  128. 
289;  In  re  Ward,  21   C.  C.  758,  as  i°See    §  1640,    Assignments— pre- 

to  evidence  incompetent.  ferred  claims. 

See  In  re  Runyans  Est.,  4  N.  P, 
335;    7  Dec.  236. 


555  EXCEPTIONS,   ERROR,   ETC.  §  641 

§  641.  Hearing.  Exceptions.  Appeal.  ' '  Upon  the  hearing 
as  to  the  allowance  of  such  debt  or  claim,  exceptions  may  be 
taken  to  a  decision  of  the  court  upon  a  matter  of  law,  by  any 
person  affected  thereby.  Bills  of  exception  may  be  taken  and 
allowed,  and  proceedings  in  error  had  after  a  final  order  or 
judgment  as  is  provided  in  other  cases."     [R.  S.  §  6101.]-° 

§  641a.    Appeal  on  claims  by  executor  or  administrator  for 

debt.  "When  an  executor  or  administrator  asks  the  allowance 
of  a  debt  or  claim  for  more  than  one  hundred  dollars  against 
the  estate  of  the  decedent,  an  appeal  may  be  taken  by  any 
person  affected  thereby  to  the  common  pleas  court  from  an 
order  or  judgment  of  the  probate  court,  allowing  or  disallowing 
it,  or  any  part  thereof."     [R.  S.  §  6101.]-°* 

§  641b.     On  appeals  from  probate  to  common  pleas  court. 

"In  appeals  from  the  probate  to  the  common  pleas  court,  the 
matter  so  appealed  must  be  tried  and  decided  in  like  manner, 
and  so  near  as  practicable  the  proceedings  be  the  same  as  if  the 
common  pleas  had  original  jurisdiction  thereof;  except  that, 
unless  the  court  orders  them,  pleadings  are  not  to  be  filed." 
[R.  S.  §6101.] 20** 

§  641c.  Bond.  "Within  twelve  days  after  the  making  of 
such  order  or  judgment,  the  person  so  appealing  shall  give  a 
bond  to  the  state,  in  such  amount  as  the  probate  judge  pre- 
scribes, with  one  or  more  sureties  to  be  approved  by  him,  for 
the  use  of  the  person  interested  therein,  conditioned  that  the 
appellant  will  pay  all  costs  awarded  against  him  in  the  appellate 
court."     [R.  S.  §6101.] -Of 

§  642.     Error,  etc. 


It  will  be  observed  that  the  object  and  purpose  of  the  pre- 
vious section  is  to  preserve  to  the  parties  every  right  that  they 
would  have  had  if  the  action  had  been  brought  on  the  claim  in 
a  Court  of  general  jurisdiction ;  and  it  is,  therefore,  specifically 
provided  that  exceptions  may  be  taken  to  any  decision  of  the 
Court  upon  any  matter  of  law,  by  any  pei-son  who  may  be  af- 
fected thereby ;  and  that  bills  of  exceptions  may  be  taken  and 
proceedings  had  as  in  ordinary  cases  in  error.  It,  therefore, 
makes  the  Probate  Court  a  Court  of  original  jurisdiction  in  the 
matter  of  a  claim  of  an  administrator  or  executor  against  the 
estate.  Providing  both  appeal  and  error,  and  every  objection  to 
the  right  of  trial  by  jury,  etc.,  upon  such  a  claim  is  removed, 

20  §  10720  G.  C.  2o»*  §  107.31  G.  C. 

20*  §  10730  G.  C.  2ot  10732  G.  C. 


§  643  CLAIMS  DUE   ADMINISTRATOR  556 

practice  has  demonstrated  the  fact  to  us  that  generally  the  de- 
cision of  the  Probate  Court  is  final  in  such  matters. 

§  643.     Appeal. 

The  second  previous  section  provides  as  ample  a  power  for 
appeal  from  the  decision  of  the  Probate  Court,  as  it  does  for 
proceedings  in  error,  except  that  where  the  amount  does  not 
exceed  one  hundred  dollars  there  can  be  no  appeal.  If  the 
cause  is  appealed  it  should  be  tried  in  the  Court  of  Common 
Pleas,  in  the  same  manner  as  if  the  action  had  been  originally 
brought  in  that  Court.  There  need  not  be  any  additional 
pleadings  unless  the  Court,  sees  fit  to  order  them.  In  such  a 
case  tlie  executor  or  administrator  would  be  in  the  position  of 
plaintiff  and  those  resisting  in  the  position  of  defendants.  If 
it  is  desired  to  take  an  appeal,  the  statute  must  be  strictly  com' 
plied  with,  and  the  person  desiring  to  appeal,  which  may  be 
either  the  executor  or  other  interested  party,  must  within  twelve 
days  after  the  judgment  has  been  rendered,  give  a  written  under- 
taking to  the  State  of  Ohio  with  one  or  more  sureties  to  be  ap- 
proved by  the  Probate  Judge,  with  the  condition  that  the  person 
appealing  shall  pay  all  the  costs  awarded  against  him,  and  which 
bond  must  be  in  the  amount  that  the  Probate  Judge  prescribes. 
If  any  person  desires  to  appeal,  it  would  be  well  to  fix  the 
amount  of  the  appeal  bond  in  the  entiy  giving  judgment."^ 

§  644.     Form  of  appeal  bond. 

Be  it  known,  that  we,  G.  H.,  I.  J.,  and  K.  L.,  are  held  and  firmly  bound 
unto  the  State  of  Ohio,  for  the  use  of  (here  name  the  persons  interested 
in  the  judgment  appealed  from),  in  the  sum  of  (here  insert  the  amount 
fixed  by  the  Court),  to  the  payment  of  which  we  do  hereby  jointly  and 
severally  bind  ourselves,  if  default  be  made  in  the  condition  following: 

Whereas,  C.  D.,  executor  of  the  last  will   (or  administrator  of  the  estate) 

of  A.  B.,  late  of County,  deceased,  did,  on  or  about  the 

day  of ,  A.  D.   190.  .  .,  present  to  the  Probate  Court  of  said 

county,  for  allowance  in  favor  of  said  C.  D.,  against  the  estate  of  A.  B., 
a  certain  claim  of Dollars,  for ,  and, 

Whereas,   said   court  heard  the  testimony   touching   said   claim   on   the 

day    of ,    A.    D.    190...;    and,    thereupon,    did,    on   the 

same  day   (or  on  the day  of ,  A.  D.  190. . .,  as  may  be), 

21  See   Downing   vs.   Downing,   23  C.  C.  389;   3  C.  C.    (N.S.)   623. 


557  DEBTS   DUE   FOR   SERVICE  OF   OTHERS  §  645 

allow  said  ctalm  ugainst  said  estate,  from  which  decision  the  said  G.  H. 
has  appealed  to  the  Court  of  Common  Pleas  of  said  county  of 

Now,  ir  vhe  said  G.  H.  shall  pay  all  costs  that  may  be  awarded  against 
him  in  said  Court  of  Common  Pleas,  in  the  proceedings  therein  to  be  had 
concerning  said  claim,  then  this  obligation  shall  be  void;  otherwise  it 
shall  be  and  remain  in  full  force  and  effect. 

Signed  by  us,  this day  of A.  D.   190.  . . 

(Signature  of  G.  H.,  I.  J.  and  K.  L.) 

When  said  bond  is  filed  in  the  Probate  Court,  the  judge 
should  make  an  entry  of  the  fact  which  may  be  in  the  following 
form: 

(Title.) 
This  day  came  G.  H.  and  filed  his  bond  to  appeal  this  cause  to  the  Court 

of  Common  Pleas,  which  bond  is  in  the  sum  of dollars,  with 

I.  J.  and  K.  L,  as  sureties  thereon.  On  examination  whereof  the  Court 
finds  that  said  bond  is  according  to  law,  and  with  sufficient  sureties  and 
in  the  amount  heretofore  ordered  by  the  Court.  It  is  therefore  ordered 
that  said  bond  with  the  sureties  thereon  be  approved  by  this  Court.2ia 

§  645.     Debts  due  for  services  rendered  to  the  estate  by  others. 

In  addition  to  the  kind  of  debts  mentioned  in  the  first  sec- 
tions of  this  chapter,  which  may  be  due  to  an  administrator  or 
executor,  are  those  made  by  the  executor  or  administrator  in 
the  management  of  his  trust.'^  It  is  well  settled  in  Ohio,  that 
this  kind  of  a  debt  is  not  one  for  which  the  estate  can  be  made 
liable  by  suit.  The  executor  or  administrator  assumes  a  per- 
sonal liability  and  then  depends  upon  the  Court  to  allow  him 
for  the  disbursement.  If  the  administrator  wishes  to  avoid  a 
responsibility,  he  must  expressly  stipulate  that  the  creditor 
shall  be  paid  out  of  the  estate  only."^ 

As  to  what  right  the  creditor  may  have  against  the  estate 
for  services  rendered,  there  may  be  some  question.  Woerner 
says :  "  In  view  of  the  ultimate  liability  of  the  estate  for 
the  disbursements  made  in  its  behalf  by  the  executor  or  admin- 
istrator, and  of  the  duty  incumbent  upon  the  Probate  Court  to 
pass  upon  the  question  of  the  reasonableness  of  the  charges,  as 
well  as  of  the  liability  of  the  estate,  it  would  seem  that  original 
jurisdiction  to  adjudicate  between  executors  or  administrators 

21a  This  entry  might  continue  and  22  See    §506,    et    seq..    Care    and 

order  tliat  a  transcript  of  the   pro-  management,  etc. 

ceedings    be    made    which,    together  23  Woerner,    Admin.    758;    Mellen 

with  the  papers,  be  filed  in  the  Court  vs.  West,  5  C.  C.  93;  3  C.  D.  46, 
of  Common  Pleas. 


§  645  CLAIMS  DUE  ADMINISTKATOE  558 

and  their  creditors  for  services  in  respect  of  the  estate  should, 
on  principle,  be  vested  in  the  Probate  Court,  to  avoid  cir- 
cuity of  action  and  unnecessary  costs  and  delay."  It  is  also 
said  "  That  the  person  rendering  services  might,  whatever  his 
claim,  against  the  administrator  may  be,  present  it  directly  to 
the  Court.  ^* 

Whether  such  could  be  done  under  the  Ohio  law,  is  an  open 
question.  There  seems  to  be  no  good  reason  why  a  creditor 
should  not  have  this  privilege.  As  the  Probate  Court  must 
ultimately  pass  upon  the  question  whether  his  claim  is  such 
an  one  as  could  be  allowed  against  the  estate,  there  seems  to  be 
no  good  reason  why  the  Probate  Court  should  not  pass  upon 
this,  in  the  first  instance,  should  the  creditor  so  desire.  The 
administrator  or  executor  certainly  could  not  be  affected  in- 
juriously thereby  and  it  might  be  to  his  benefit,  for  if  such  ad- 
ministrator or  executor  should  be  compelled  in  a  suit  against 
him  by  the  creditor  to  pay  more  than  the  Probate  Court,  should 
deem  to  be  a  just  and  reasonable  value  of  such,  services,  he 
would  be  the  loser.  There  may  be  instances  when  such  a  course 
would  permit  the  creditor  to  protect  himself  where  otherwise 
he  might  be  in  danger  of  losing  his  claim.  Especially  is  this 
true  if  the  administrator  or  executor  be  insolvent.  In  such  a 
case  it  being  a  personal  obligation  of  the  administrator  or 
executor,  a  judgment  against  him  would  be  of  no  value.  It 
has  been  held  that  a  Court  of  Equity  might,  where  the  executor 
or  administrator  is  insolvent,  order  that  such  services  be  paid 
out  of  the  assets  of  the  estate.  But  why  require  that  kind  of 
a  proceeding,  instead  of  permitting  the  creditor  to  apply  di- 
rectly to  the  Probate  Court  for  an  order  directing  the  adminis- 
trator or  executor  to  pay  the  claim  out  of  the  assets  of  the 
estate?  In  fact  if  the  administrator  or  executor  be  insolvent, 
the  creditor  rendering  such  service  would  be  without  a  remedy. 
For  if  the  assets  are  once  distributed,  he  could  not  recover  from 
the  persons  receiving  the  same;   and  if  exceptions  were  filed 

24  Woerner  on  Admin.  758.  See  §  646.  et  seq..  Time  and  order 

of  payment  of  debts,  etc. 


559 


DEBTS    DUE    OTIIEKS,    ETC. 


§  645 


to  the  account,  and  sustained,  it  could  hardly  be  said  to  be  such 
a  devastavit  that  a  recovery  might  be  had  against  the  bondsmen. 
In  the  case  of  Mellen  vs.  West,^^  where  an  administrator 
employed  an  attorney  and  then  died,  it  was  held  that  "  if  the 
succeeding  representative  of  the  estate  is  satisfied  of  the  cor- 
rectness of  the  charge,  and  that  the  Probate  Court  would  sanc- 
tion it,  the  amount  should  be  paid  by  him.  But  if  there  is 
doubt  on  this  point,  or  the  administrator,  for  any  cause  refuses 
to  do  this,  we  have  no  question  but  that  it  should  be  worked 
out  by  the  decision  of  the  Probate  Court,  which,  if  the  validity 
and  justice  of  the  claim  are  shown,  might  direct  its  payment  by 
the  administrator  as  part  of  the  costs  and  expenses  of  settling 
the  estate." 


25  5  C.  C.  93;  3  C.  D.  46. 

The  question  whether  or  not  the 
Probate  Court  would  have  jurisdic- 
tion to  make  such  an  order  is  not 
free  from  difficulty.  Woerner  else- 
where states  the  law  to  be,  that  the 
Probate  Court  has  no  rij^ht  to  de- 
termine such  a  question,  and  that 
the  remedy  of  the  creditor  must  be 
sought  out  in  another  court.  Woer- 
ner, Admin.,  §  162.  The  question 
in  our  State  is,  whether  or  not  the 
statute  which  gives  to  Probate 
Courts  exclusive  jurisdiction  to  di- 
rect and  control  the  conduct  of  ad- 
ministrators or  executors,  is  broad 
enough  to  direct  an  executor  to  pay 
a  claim  out  of  the  estate  for  services 
rendered  in  behalf  of  the  estate, 
§  10492  G.   C,   §  27. 

In  a  recent  case  (Jones  vs.  Green, 
21  C.  C.  97;  11  C.  D.  548),  it  was 
held  that  the  Probate  Court  had  no 
authority  to  order  an  administrator 
to  specifically  perform  an  agreement 
alleged  to  have  been  made  by  his 
intestate.  This  case  is  somewhat 
different  from  that  which  would  be 
made  to  a  court  asking  that  the 
Court  direct  the  administrator  or 
executor  to  pay  a  claim,  not  that  the 
intestate  had  incurred,  but  that  the 


administrator  or  executor  has  in- 
curred. As  stated  in  the  text,  such 
a  claim  is  a  part  of  the  settlement 
of  the  estate  incurred  in  its  manage- 
ment, care  and  control.  There 
seems  to  be  good  reason  why  the 
Probate  Court  might  not  rightfully 
exercise  jurisdiction  in  such  a  case. 

The  recent  case  of  Smith  vs. 
Rhodes,  08  0.  S.  500,  sustains  the 
power  of  the  Probate  Court  to  order 
a  debt  paid,  where  the  debt  was  in- 
curred in  the  administration  of  the 
estate.  In  this  case  the  court  re- 
quired the  administrator  to  file  an 
account  of  his  expenses.  This  was 
done.  It  included  an  attorney's 
fee — and  the  court  approved  this 
expense  account.  The  administrator 
did  not  pay  the  attorney,  and  suit 
was  brought  against  his  bondsmen 
and  sustained. 

In  the  case  of  Denmead  vs.  Sharp, 
14  Dec.  301,  it  was  held  that  the 
Common  Pleas  Court  had  no  power 
to  compel  an  administrator  to  re- 
ceive payment  of  an  unmatured 
note,  and  the  Probate  Court  did 
have  such  power.  This  case  is  a 
little  different  from  the  case  of 
Jones  vs.  Green,  21  C.  C.  96;  11 
Cir.  D.  548. 


§646 


PAYMENT    OF    DEBTS 


560 


CHAPTER  XXXIX. 

ORDER  AND  TIME  OF  PAYMENT  OF  DEBTS  AND 
ADMINISTRATOR'S  COMPENSATION. 


§646 
§647 

§648 

§649 
§64ga 

§650 

§651 
§652 
§653 
§654 


§  654a 

§655 

§656 

§657 

§658 

§659 
§660 

§661 


C4ene  rally. 

In  what  order  debts  to  be 
paid. 

Can  not  be  paid  in  other 
order. 

Funeral   expenses. 

Funeral  expenses,  etc.  Hus- 
band  and   wife. 

Amount  to  be  allowed  as 
funeral    expenses. 

Tombstone. 

Last  sickness. 

Expenses    of    administration. 

Compensation  allowed  execu- 
tors or  administrators.  Fur- 
ther allowance.  Effect  of 
compensation  provided  by 
will. 

Furtlier   allowance. 

When    entitled    to. 

How  calculated. 

Compensation    fixed   by    will. 

Compensation  of  joint  admin- 
istrators. 

Extra  compensation. 

Employment  of  agent,  office 
rent,  etc. 

Allowance  made  to  the  widow 
and   children. 


§662 
§663 
§664 
§  665 
§666 

§667 


668 
669 


§670 


670a 
671 


§672 
§673 


Debts  due  the  United  States. 

Taxes,   etc. 

Wages. 

Debts    due   general   creditors. 

Previous  section  (10715)  not 
to  affect  lien. 

When  executor  or  adminis- 
trator may  proceed  to  pay 
debts  without  being  liable 
for  deficiency  of  assets. 

Notice  of  demands,  etc. 

And  if  whole  estate  be  paid 
and  afterwards  other  claims 
presented,  he  shall  not  be 
liable   therefor. 

If  so  paid  away  as  to  leave 
insufficient  assets  to  satisfy 
subsequent  claims.  How 
far  liable. 

May    prove    estate    insolvent. 

If  assets  are  exhausted  in 
paying  preferred  claims. 
Executor  or  administrator 
not  liable  for  payment  of 
subsequent   claim. 

Interest   on  claims. 

Payment  to  heirs,  etc.,  be- 
fore  final   settlement. 


§  646.     Generally. 

In  the  treatment  of  the  administration  of  estates,  we  have 
now  reached  a  period,  which  one  distingnished  author  declares 
to  be  the  principal  function  of  executors  and  administrators, 
that  is  to  pay  the  debts,  and  discharge  the  liabilities  of  their 
testators  and  intestates.^  Having  treated  of  the  appointment 
of  administrators  and  executors  and  filing  of  inventories,  the 

1  Woerner    on    Admin.    755.      An  months  after  he  has  given  notice  of 

administrator  may  pay  debts  with-  his    appointment.      §  10741    G.    C, 

out  liability  to  those  who  have  not  §  667. 
presented    their    claims    within    six 


561  ORDER   IN   WHICH   MADE  §  647 

disposition  of  personal  property  and  presentation  of  claims, 
some  authors  have  considered  the  subject  of  the  disposition 
of  real  estate  as  a  proper  one  to  follow,  and  such  seems  to 
be  the  order  of  arrangement  of  the  sections  of  the  General 
Code.  "We  have  deemed  it  better,  whether  wisely  or  not,  to 
consider  the  subject  in  logical  order,  as  if  the  personal  estate 
was  all  that  was  to  be  administered  upon ;  and  will  consider  the 
sale  of  real  estate  in  subsequent  chapters,  after  the  subject 
of  accounting  and  distribution  has  been  discussed.  It  is  a  well- 
settled  principle  of  law  that  personal  property  is  the  primary- 
fund  for  the  settling  of  all  the  personal  obligations  of  the  testa- 
tor.2  This  order  may,  however,  be  changed  if  a  testator  clearly 
designates  some  other  fund  to  be  primarily  liable.^ 

In  order  that  equality  may  exist,  the  law  does  not  permit 
a  creditor  by  superior  diligence  to  acquire  a  superior  right, 
but  the  estate  stands  for  the  payment  of  all  general  creditors 
alike.*  He  may  lose  his  claim  by  negligence  however,  A  con- 
tract to  pay  a  certain  debt  out  of  the  promisor's  personal  estate 
after  death,  does  not  confine  it  to  that  fund.''  In  the  payment 
of  the  debts  of  the  testator  the  law  expects  that  the  administra- 
tor or  executor  will  always  act  in  the  interest  of  the  estate.  If 
he  could  settle  a  debt  for  less  than  its  face  value,  he  must  account 
to  the  estate  for  the  profit,  he  can  not  pay  a  debt  for  less  than 
its  face  value  and  charge  the  estate  with  more  than  he  pays  for 
it.®  And  this  rule  will  extend  to  an  agent  acting  for  the  admin- 
istrator or  executor.  The  payment  of  debts  of  the  intestate  and 
the  order  of  their  payment  will  be  the  subject  of  discussion  in 
the  remaining  sections  of  this  chapter.' 

§647.  In  what  order  debts  to  be  paid.  **  Every  executor 
or  administrator  shall  proceed  with  diligence  to  pay  the  debts  of 
the  deceased,  applying  the  assets  in  the  following  order : 

"1.  The  funeral  expenses,  those  of  the  last  sickness,  and  the 
expenses  of  administration; 

2  Case  vs.  Hall,  52  0.  S.  24;  Jes.  Cox  vs.  John,  32  O.  S.  532. 
Sur.  Prac.  955.  7  See  §  705,  Filing  account;  §  732, 

3  Bano  vs.  Wick,  14  0.  S.  505.  See  Notice;  §  895,  Sale  of  real  estate; 
§  1208.  §  904,  Proceeds  of  real  estate;  §  959, 

4  McDonald  vs.  Alten,  1  O.  S.  293,  Insolvent    estate;     §§694-695,    Pay- 

5  Judy  vs.  (Louderman,  48  O.  9.  ment  of  legacies;  §755,  Distribu- 
562.  tion. 


§  648  PAYMENT    OF   DEBTS  562 

"2.  The  allowance  made  to  the  widow  and  children  for  their 
support  for  twelve  months; 

"3.  Debts  entitled  to  a  preference  under  the  laws  of  the 
United  States ; 

"4.  Public  rates  and  taxes,  and  sums  due  the  state  for  duties 
on  sales  at  auction ; 

"5.  To  every  person  who  performed  manual  labor  in  the 
service  of  the  deceased,  before  payment  of  the  general  creditors, 
the  full  amount  of  wages  due  to  such  person  for  such  labor 
performed  within  twelve  months  preceding  the  decedent's 
death,  not  exceeding  one  hundred  and  fifty  dollars ; 

"6.  Debts  due  to  all  other  persons."     [R.  S.  §  6090.]  « 

"If  there  be  not  enough,  after  paying  any  one  of  such  classes, 
to  pay  all  the  debts  of  the  next  class,  the  creditors  of  the  latter 
class  shall  be  paid  ratably  in  proportion  to  their  respective 
debts.  No  payment  shall  be  made  to  creditors  of  one  class, 
until  all  those  of  a  preceding  class  or  classes,  of  whose  claims 
the  executor  or  administrator  has  notice,  are  fully  paid."  [R.  S. 
§  6090.]  *** 

§  648.    Can  not  be  paid  in  other  order. 

This  statute,  as  to  the  priority  of  debts,  is  mandatory.  It  is 
intended  to  be  a  direction  to  the  administrator  or  executor  as  to 
the  manner  of  performance  of  his  duty,  and  it  prescribes  the 
order  of  preference  to  be  observed  by  him  in  the  payment  of 

8  §  10714  G.  C.  injuries  to  real  or  personal  property 
8*  §  10715  G.  C.  of  another."  Woerner  on  Admin. 
The  order  in  which  debts  are  pay-  769. 
able  out  of  a  decedent's  estate  is,  at  If  an  administrator  having  knowl- 
common  law,  as  follows:  "First,  edge  of  a  valid  claim  against  an 
debts  due  the  crown  by  record  of  estate,  pays  all  other  claims,  there- 
specialty;  second,  certain  debts,  pe-  by  exhausting  the  fund,  he  is  liable, 
culiar  to  the  English  laws  and  cus-  In  re  Wakefield  Est.,  Goebel  5. 
toms,  such  as  debts  to  tlie  postoffice  A  claim  for  alimony  under  the 
for  letters,  money  due  the  parish  decree  of  a  court  of  another  state 
from  deceased  overseers  of  the  poor,  does  not  bind  property  in  this  state 
funds  in  the  hands  of  officers  of  as  a  preferred  claim,  unless  asserted 
friendly  societies,  regimental  debts.  in  this  jurisdiction  in  the  lifetime 
etc.;  third,  judgments  of  courts  of  of  the  decedent.  Murray  vs.  Murray, 
record  (except  those  in  foreign  coun-  21  Dec.  807. 

tries),    and    decrees    in    equity    ren-  A   provision    in   a  will   that   "out 

dered    asrainst    the    deceased    in    his  of  mv  estate  mv  children  shall  pay 

lifetime;     fourth,    recognizances    b^^-  mv    funeral    expenses    and    all    my 

fore  courts  of  record  or  maTistrates,  d<^hts,"     not     onlv     includes     debts 

and  securities  bv  statute,  such  as  the  which  the  testator  owed  at  the  time 

statute  merchant,  statute  stanle,  and  of   his    decease,   but   all    debts,   such 

the  like:  fifth,  debts  bv  special  con-  as    costs    of    administration^  of    the 

tract   under    s^al.    and    rent:    sivth,  estate.      TTarbosou    vs.    "Mellinser.    2 

simple  contract  debts,  those  due  the  O.  App.  75:  18  O.  C.  C.   (N.S.)  504; 

crown    takinq-    precedence    of    those  35  O.  C.  C.  196. 
due  any  subject,   and   damages   for 


563  PAID    IN    OKDEB    PKOVIDED    BY    STATUTE  §  648 

debts.  This  is  its  express  object,  and  the  administrator  or  exec- 
utor, when  he  proceeds  to  discharge  his  duty,  is  bound  to  obey 
its  directions.''  Even  if  the  Court  direct  otherwise  the  admin- 
istrator may  disregard  it."  If  the  administrator  disregard  the 
order  prescribed,  and  the  estate  prove  insolvent,  he  will  be 
liable  to  any  class  of  creditors,  to  the  extent  of  their  loss,  who 
thereby  do  not  receive  what  they  would  have  received  if  the 
proper  order  had  been  observ^ed.^^ 

Such  is  the  law  in  every  State  of  the  union  as  well  as  in 
England,'^^  and  an  administrator  or  executor  would  not  only 
be  personally  liable,  but  would  be  liable  to  suit  on  his  bond.  A 
failure  to  obsei-ve  the  proper  order,  results  usually  from  a  want 
of  proper  realization  of  the  exact,  condition  of  the  estate'.  If 
an  administrator  or  executor  proceeds  in  any  other  manner  than 
authorized  by  law,  he  always  assumes  a  risk.  A  distinguished 
author  well  says  how  this  rule,  of  the  order  of  payment,  is  very 
often  violated.^* 

The  above  section  of  the  General  Code  requires  that  every 
executor  or  administrator  shall  proceed  with  diligence  to  pay 
the  debts  of  the  decedent.    But  such  diligence  is  to  be  made  in 

9  Matter   of   St.   John,    1    Tucker,  other;    it   arises    sometimes    out   of 

126;  Jessup's  Sur.  Prac.  948.  sheer  ignorance  of  the  law,  and  at 

^0  Jenkins  vs.  Jenkins.  63  Ind.  120.  other      times      in      consequence      of 

11  Cunningham  vs.  Cunningham,  thoughtlessness  and  lack  of  caution 
94  Tnd.  557.  and  foresight.      It  happens  hut   too 

12  Woerner  on  Admin.  783.  often   tliat  tlie   assets   of   an   estate 
An    executor    has    no    power,    as       fall    far   short    of    the    expectations 

such,  before  final  settlement,  to  turn  of    heirs    and    personal    representa- 

over   to   one   creditor   of   the   estate  tives,  even  after  the  inventory  and 

notes   held   hv   the   estate;    without  appraisement    have    been    filed    and 

an  order  of  the  court,  and  a  person  more  often  still,  that  the  liabilities 

holding  them  has  no  title.      Surety  turn    out  to  be   much   greater   than 

Co.  vs.  Houshton,  22  O.  C.  C.  138.  "  they  supposed.     Many  estates  prove 

Where    property   of   decedent   has  insolvent,  which  are  at  first  looked 

come  into  ones  possession  after  the  upon  as  ample  to  pav  all  debts  and 

death  of  decedent,  no  ricrht  of  setoff  leave     handsome     portions     to     the 

exists     in     favor     of     that     person  heirs:  yet  executors  and  administra- 

atrainst    the    executor    or    adminis-  tors   often    close   their    eyes    to   the 

trator.     Downer  vs.  Saving's  &  Loan  possible,    in    manv   cases    imminent, 

Co.,  16  0.  C.  C.   (N.S.)   378.  consequences  of  paving  debts  indis- 

13  Tt  may  not  be  out  of  place,  criminately.  Widows,  in  particular, 
however,  to  remark,  that  the  vio-  zealous  to  vindicate  the  good  name 
lation  of  this  rule  of  law  is  rarely  of  departed  husbands,  eagerly  pay 
attributable  to  bad  faith,  or  a  con-  all  debts  as  fast  as  presented,  and  as 
Bcious  disposition  to  unduly  favor  loner  as  thev  have  anvthing  to  pay 
one  creditor  to  the  prejudice  of  an-  with,    frequently    involving   loss   to 


§  649  PAYMENT    OF    DEBTS  564 

payment  in  the  order  provided  by  statute.  It  also  means  that 
he  is  not  required  to  proceed  to  the  payment  of  all  the  debts 
until  the  full  extent  of  the  indebtedness  of  the  deceased  has 
been  ascertained. 

By  sections  of  the  General  Code  ^*  it  is  provided  when  an 
administrator  or  executor  may  pay  claims  without  responsi- 
bility, for  any  demands  that  may  be  afterwards  presented. 
Other  sections  allow  an  administrator  or  executor  to  make  dis- 
tribution if  claims  are  not  presented  after  eighteen  months  have 
elapsed  from  the  date  of  his  bond.^^ 

§  649.    Funeral  expenses.* 

The  first  in  order  of  payment  are  funeral  expenses,  those 
of  last  sickness,  and  expenses  of  administration.  These  are 
each  entitled  in  a  like  degree  to  be  first  paid,  although  in  some 
States  they  come  in  a  different  order.  In  this  section  the  first 
of  these  three  will  be  discussed.  The  administrator  is  entitled 
to  credit  for  all  moneys  properly  expended  for  the  funeral  ex- 
penses of  the  deceased,^"  but  not  if  they  were  reimbursed  from 
another  source.^*'*     He  may  pay  proper  and  reasonable  funeral 


other  bona  fide  creditors,  themselves  While  funeral  expenses  are  men- 
or  their  bondsmen.  Simple  obe-  tioned  tirst  in  the  first  class,  it  may 
dience  to  the  law  is  sufficient  lo  Le  questionable  whether  they  have 
avoid  such  danger.  Provisions  exist  any  priority  over  the  other  two — 
in  most  American  States  whereby  last  sickness  and  costs  of  adminis- 
the  amount  payable  to  each  creditor  tration.  If  there  is  not  enough  to 
is  adjudged  by  the  Probate  Court  pay  all  in  the  first  class  in  full, 
having  jurisdiction  of  the  estate.  then  it  is  probable  they  should  pro- 
Payment  under  such  order  is  a  pro-  rate.  It  is  a  general  practice  that, 
tection  to  the  administrator  and  first  of  all,  costs  of  administration 
simple  prudence  requires  that  no  must  be  paid,  and  on  the  theory 
debts  be  paid  until  such  order  is  that  they  are  necessarily  incurred  to 
obtained.     Woerner  on  Admin.  783.  enable  a  fund  to  be  preserved  out  of 

1*  §§  10741,    10742.    10743,    10744,  which  funeral  and  expenses  of  la&t 

10745  G.  C,  §S()67,  609,  670,  671.  sickness  can  be  paid.     See  §645. 

13  §  10746  G.  C,  §  013.     See  §  705,  i«*  Estate  vs.  Hyneman,  11  Phila. 

Accoimting.  135. 

16  The  Probate  Court  has  no  power  The    immediate    duty    of    burying 

to   direct  the  administrator   to   pay  the  body  rests  upon  the  husband  or 

a  claim.     In  re  Geo.  H.  Miller  Est.,  the    wife,    or    other    relative    of   the 

12  Dec.  562;    Crapo  vs.  Armstrong,  decedent,  or  may  rest  ujwn  a  stran- 

61    la.    097;    In   re   Miller,    4    Redf.  ger  under  whose  roof  the  death  oc- 

302;    Allen   vs.  Allen,   3   Dem.   524;  curred.      He   cannot  keep   the   body 

Spire  vs.  Lovell,  17  111.  App.  559.  unburicd,  or  by  exixising  it  to  viola- 

*  Cited,   In   re  Kirchner,   0   N.  P.  tion,  offend  the  feelings  or  endanger 

(N.S.)   459;  52  Bull.  107;  KroU  V3.  the  health  of  the  living.     By  whom- 

Close,  82  0.  S.   193.  soever    the    duty    is    performed,   the 


565 


FUNEEAL     EXPENSES 


§649 


expenses  without  the  claim  being  first  allowed  by  the  Court 
against  the  estate ;  because  it  is  of  necessity  to  secure  an  early 
burial  of  the  deceased.^^  The  widow  is  entitled  to  be  reim- 
bursed for  money  advanced  to  pay  such  expenses,  even  though 
she  at  the  time  declare  that  she  will  make  no  claim  on  the 
estate.^*  A  friend,  however,  voluntarily  rendering  aid,  is  not 
entitled  to  pay;  such  as  searching  for  the  remains  of  the  de- 
ceased, ^vriting  and  sending  advertisements  to  the  newspapers 
for  the  funeral,  requesting  the  clergyman  to  perform  the  burial 
services,  placing  the  corpse  in  his  own  house  and  permitting 
the  funeral  services  to  be  held  there. ^'^ 


estate  of  the  deceased  is  ultimate!}' 
liable  to  defray  tlie  necessarj'  rea- 
sonable expenses  of  tbe  burial.  It 
is  analogous  to  the  duty  and  obliga- 
tion of  a  father,  to  furnish  neces- 
saries to  a  child  and  of  a  husband  to 
a  wife,  from  which  the  law  implies 
a  promise  to  pay  him  who  does 
what  the  father  or  the  husband,  in 
that  respect,  omits  to  do.  It  is  not 
usual,  and  in  most  cases,  it  is  not 
possible,  for  letters  either  testamen- 
tary or  of  administration  upon  the 
estate  to  be  applied  for  and  granted 
before  the  funeral  of  the  decedent, 
80  that  the  executor  or  administra- 
tor as  such  is  very  rarely  called 
upon  to  superintend  the  funeral 
ceremony  or  direct  the  necessary  ex- 
penditure of  money.  It  seems  to  be 
settled  that  the  reasonable  and  nec- 
essary expenses  of  interring  the  dead 
body  of  a  decedent  are  a  charge 
against  his  estate,  though  not  strict- 
ly a  debt  due  from  him;  so  that  his 
personal  representative  may  be  sued. 
as  such,  for  their  recover,y.  Redf. 
Surr.  Prac.  437. 

17  But  such  claims  should  be  pre- 
sented for  allowance  and  rejection 
the  same  as  anv  other  claim.  In  re 
Geo.  H.  Miller,' 12  Dec.  5fi2;  Samuel 
vs.  Thomas,  51  \Ms.  549;  Greg- 
ory vs.  Hooker,  1  Hawks  394;  Pat- 
terson vs.  Patterson,  59  N.  Y.  547; 
Wilson  vs.  Shearer,  9  Met.  504; 
Palmes   vs.  Stephens,   2   M.   Charlt. 


oH;  Pvapp?lyea  vs.  Russel.  1  Da]/ 
214;  Ktgina  vs.  Stewart,  12  Ad.  & 
E.  773;  McClellen  vs.  Eilson,  44 
Ohio  St.  184;  Dampier  vs.  St.  Paul, 
etc.,  Co.  (Minn.),  49  X.  W.  Rep. 
286. 

3  8  Frances'  Estate,  75  Pa.  St.  220; 
Sullivan  vs.  Horner  41  N  J.  Eq. 
299. 

19  Hewitt  vs.  Bronson,  5  Daly  1 ; 
/)*  re  McHugh's  Estate,  152  Pa.  St. 
442;  S.  C,  31  W.  N.  C.  416;  25  All 
Rep.  875. 

Wheie  a  third  person,  e.  g.,  the 
mother  of  the  deceased,  officiously, 
in  the  presence  of  the  husband  of 
deceased,  assumed  entire  control  of 
the  arrangements  and  sent  for  the 
undertaker,  telling  him  to  spTe  no 
expenses,  it  was  held  that  she  be- 
came personally  liable  to  the  under- 
taker for  the  funeral  expenses,  and 
that  both  the  husband  and  the  estate 
were  relieved  from  the  obligation 
otherwise  imposed  on  them  by  law. 
Redf.    Sur.    Prac.    438. 

The  wife  has  control  of  the  burial 
of  her  husband's  body.  A  man  can- 
not dispose  of  his  body  by  will.  A 
Court  of  Equity  will  decide  contro- 
versies over  the  burial  of  deceased 
persons.  Herold  vs.  Herold,  3  N.  P. 
(N.S.)    405;    16   Dec.   303. 

See  vol.  73,  Cen.  Law  Journal,  p. 
39,  for  article  on  "Property  Rights 
In   Human  Bodies." 


§649 


PAYMENT    OF    DEBTS 


566 


If  there  is  not  sufficient  assets  to  pay  the  expenses,  the  ad- 
ministrator is  not  personally  liable.^"  But  it  has  been  held  that 
the  administrator,  if  he  order  the  services,  is  personally  lia- 
ble.^^  This  is  especially  true  if  he  have  plenty  of  assets  and 
refuse  or  fail  to  pay  tlie  expenses."^  Mourning  apparel  for  the 
family  is  not  a  proper  charge. ^^  But  carriage  hire  in  cities  and 
towns  to  carry  the  family  and  friends  to  the  place  of  interment 
are  proper  charges,"^  although  not  from  one  town,  icy  another  and 
back.^^  Reasonable  expenses  for  taking  up  the  body  and  re- 
moving it  tO'  another  place  if  the  first  place  is  found  improper, 
are  allowable  ,^®  but  not  if  the  first  place  of  burial  was  proper." 
The  expense  of  communicating  the  news  of  the  death  of  the 
deceased  to  his  family  is  a  reasonable  charge,^^  and  also  the 
expense  of  the  widow  and  heirs  traveling  to  see  him  at  his 


20  Hapgood  vs.  Houghton,  10  Pick. 
154;  Adams  vs.  Butts,  16  Pick.  343; 
Gregory  vs.  Hooker,  1  Haucks  394; 
Parker  vs.  Lewis^  2  Dev.  L.  21; 
Trueman  vs.  Tilden,  6  N.  H.  201; 
Campfield  vs.  Ely,  13  N.  J.  L.  150. 

21  Tracy  vs.  Frost,  57  Hun  591; 
S.  C,  11  N.  Y.  Supp.  561. 

22Dampier  vs.  St.  Paul  Trust  Co. 
(Minn.),  49  N.  W.  Rep.  2SG. 

23  Went.  Ofi'.  Exec.  259.  C07itra 
Wood's  Estate,  1  Ashm.  314;  Allen 
vs.  Allen,  3  Dem.  524. 

Thus  it  was  held  in  the  days  of 
William  and  Mary,  "  that  for  strict- 
ness no  funeral  expenses  are  allow- 
able against  a  creditor,  except  for 
the  coffin,  ringing  of  the  bell,  par- 
son, clerk  and  bearers'  fees,  but  not 
for  the  pall  or  ornaments."  "  To 
which,"  says  Dr.  Burn,  "  the  expens- 
es of  the  shroud  and  digging  the 
gi'ave  ought  to  be  added."  Feasting 
and  banqueting  were  deemed  in- 
congruous with  the  solemnity,  and 
expenses  for  festivals  were  not  allow- 
able out  of  insolvent  estates.  Woer- 
ner  on  Admin.  760. 

It  hae  sometimes  been  held  in  this 


country  that  the  personal  represen- 
tative may  reckon  in  his  account  a 
moderate  expense  for  mourning  ap- 
parel for  the  widow  and  family  of 
the  deceased,  as  part  of  the  expenses 
of  the  funeral.  Wood's  Estate,  1 
Ashrnead  314.  And  this  seems  to  us 
not  unreasonable.  It  seems  far  more 
intimately  connected  with  the  decent 
perfoi-mance  of  funeral  rites  than 
the  same  amount  expended  in  a  mon- 
ument, which  is  now  almost  invari- 
ably allowed,  because  that  is  one  of 
the  demands  of  public  opinion.  3 
Redf.  Wills  246. 

24  Donald  vs.  McWhorter,  44  Miss. 
124. 

25  Lund  vs.  Lund,  41  X.  H.  355. 
So      are      suitable    burial     plats 

(Chalker  vs.  Chalker,  5  Redf.  480), 
and  even  vaults.  McGlinsey's  Ap- 
peal, 14  S.  &  R.  64.  Mourning  rings 
to  the  extent  of  £93  have  been  al- 
lowed in  England.  Paice  vs.  Arch- 
bishop of  Canterbury,  14  Ves.  364 

26  Allen  vs.  Allen,  3  Dem.  524. 

27  Watkins   vs    Romine,    106    Ind. 
378. 

28  Hasler  vs.  Hasler.  1  Bradf.  248. 


567  FUNEKAL  EXPENSES  §  649 

request,  though  they  did  not  reach  him  till  after  his  death. ^* 
So  the  expense  of  bringing  the  body  home  when  death  occurs 
abroad,  and  of  a  person  to  accompany  and  care  for  it.^** 

The  estate  is  not  liable  for  the  funeral  expenses  of  the 
widow  of  the  deceased,^^  but  where  the  husband,  wife  and  child 
perished  in  the  same  accident  his  estate  was  held  liable  for  all 
the  expenses.^"  And  so  for  a  minor  legatee,"'^  The  wife's  es- 
tate, and  not  his,  is  liable  for  her  funeral  expenses.^*  The  ex- 
penses of  a  post-mortem  examination  in  the  interest  of  science 
is  not  a  valid  claim  against  the  estate.^^  Nor  is  a  dinner,  fur- 
nished by  the  person  in  whose  house  the  funeral  was  held,  to 
the  gTiests,  and  food  for  their  horses,  after  the  return  from  the 
cemeter)',  according  to  the  custom  of  the  neighborhood.^^ 

A  donation  of  $250  made  by  an  executor  to  his  testator's 
commandery  for  parading  at  the  funeral  is  not  a  proper  charge 
against  tlie  estate,  where  it  does  not  appear  that  the  command- 
ery required  the  payment  of  that  sum.^  or  any  other,  as  a  condi- 
tion of  their  participation  in  the  funeral.^^  The  expenses  of  a 
wake,  if  not  unreasonable,  constitutes  a  proper  item  of  funeral 
charges;  as,  for  example,  where  the  banquet  provided  consisted 
only  of  cheese,  crackers  and  tobacco.^^  Where  a  will  directed 
that  the  testator's  funeral  expenses  should  not  exceed  $100,  and 
the  will  was  not  received  by  the  executor  until  after  the  funeral, 
it  was  held  eii^or  for  the  Court  not  to  allow  reasonable  and  prop- 
er charges  in  excess  of  $100.''*'*    Claims  founded  in  the  expenses 

29.Tpnnison  vs.  Hapgood,  10  Pick.  as  Pmith    vs.   IMcLausrhlin,   77    Til. 

77.  596. 

30  S'ullivivn   vs.    Horner,    41    N.    J.  3c>  Shaeffer    vs.    Shaeffer,    54    Md. 

Eq.  2nn.  079. 

»i  Lawal    vs.    Kreidlor,    3    Eawle  37 /n  re  Revnolds,  124  N.  Y.  388; 

300.  S.  C.  26  N. 'E.  Rep.  954,  affirming 

aiiSnllivan    vs.    Horner,   41    N.    J.  9  N.  Y.  Siipp.  949. 

Eq.  209.  38  Johnson's  Estate,  8  Pa.  Co.  Ct. 

3:iBntler's  Estato.  9  X.   Y.  Supp.  P.    1. 

G41;  R.  C,  1  Con.  Sur.  58.  '-o /„    re   Galland  Estate,   28   Pac. 

3iConstantinidrs  vs.  W-lsh,  146  Rep.  287 :  S.  C,  92  Cal.  293. 
Mass.  281;  McClellan  vs.  Eilson,  44  Judsje  Woodmansee,  of  Cincinnati 
Ohio  St.  184:  Freeman  vs.  Colt,  27  Common  Pleas  Court,  has  recently 
Hun  447;  Mc.Cne  vs.  Oarvey,  14  Hun  held  that,  if  the  wife  has  no  separate 
562:  reversing  Harvey  vs.  McCue,  3  estnte,  the  husband  is  liable  for  the 
Redf.  313;  Kessler  vs.  Hessen,  19  wife's  funeral  expenses,  even  though 
Abb.  N.  C.  86.  Conira.  Staple's  Ap-  she  was  living  senarate  and  apart 
peal,  52  Conn.  425;  Galloway  vs.  from  her  husband,  and  at  tlie  time 
McPherson  (Mich.),  35  N.  W.  Rep.  of  her  death  hnd  a  divorce  suit 
114.  pending,  in  which  temporary  all- 
See  S  649a.  mony  had  been  allowed. 


§  649  a  PAYMENT    OF    DEBTS 

incurred  by  relatives  of  the  deceased  in  attending  tlie  funera| 
their  services  and  time,  are  not  to  be  favored  in  settling  a  dece 
dent's  estate;  for  these  are  presumably  offices  of  respect  an^ 
tenderness,  gratuitously  rendered,  and  neither  purchased  no| 
solicited/" 

§  649a.     Funeral  expenses,  etc.    Husband  and  wife. 

By  reason  of  the  change  of  the  common-law  rule  of  the  con-' 
tractual  rights  of  the  wife  in  the  control  and  management  of 
her  separate  estate,  some  confusion  has  arisen  in  cases  where 
the  wife  dies  owning  property,  as  to  the  liability  of  the  husband 
to  pay  her  funeral  expenses  and  expenses  incurred  during  her 
illness.  In  an  early  case  it  was  held  that  where  a  married  woman 
dies  leaving  property,  her  estate  is  primarily  liable  for  her 
funeral  expenses,  and  where  the  husband  pays  the  same  he  may 
recover  them  from  her  administrator/"*^ 

Later  it  was  held  that  a  husband  who  has  paid  the  funeral 
■expenses  of  his  wife,  both  his  and  his  wife 's  estate  being  possessed 
of  ample  means,  is  not  entitled  to  reimbursement  from  her 
estate.-'"^ 

Along  in  the  same  line,  it  was  held  that  burial  services  and 
expenses  connected  with  the  death  of  his  wife,  are  part  of  the 
obligation  of  support  imposed  on  a  husband  by  sec.  7997,  G.  C, 
and  at  common  law,  and  hence  a  contract  of  separation  between 
husband  and  wife  releasing  him  from  all  claims  for  her  support 
and  maintenance,  does  not  relieve  him  frora  payment  of  her 
burial  expenses  regardless  of  any  separate  estate  of  the  deceased 
wife.*"*^ 

In  another  case  it  was  held  that  a  husband,  notwithstanding 
his  wife  is  living  separate  and  apart  from  him  and  an  allowance 
made  to  her  of  alimony  pendente  lite,  is  liable  for  her  funeral 
expenses  upon  her  death,  while  proceedings  for  divorce  is  pend- 

Again  it  was  held  that  unless  it  appears  that  a  wife  by  special 
contract  bound  her  separate  estate  therefor,  a  physician  render- 
ing her  medical  service  during  her  l^st  illness  may  proceed 
against  the  husband  without  first  presenting  the  same  to  the 
administrator  of  her  estate  and  have  it  paid  therefrom.^"*^ 

40LuncI  vs.  Lund,  41   X.   H.  355;  40c  Humphrey   vs.    Huff,   35    0.   C. 

Schoul.  Exrs.  421.  C.   117    (1914)';   20  O.  C.  C.    (IS'.S.) 

40a  Clauson  vs.  Briggs,  36  O.  C.  C.  178. 

582   (1907)  :   16  O.  C.  C.   (N.S.)   225.  40dEveland  vs.  Sherman,  21  Dec. 

40b  Phillips  vs.  Tolerston,  20  Dee.  726;  9  X.  P.    (N.S.)    559. 

249;    affirmed  no  op.,  82   O.   S.  403  ^oeWithrow     vs.     Boone,     16     X. 

(1910).  P.   (N.S.)  506;  25  Dee.  402. 


568a  AMOUNT  OF   FUNERAL  EXPENSES  §  649a 

These  decisions  seem  to  finally  settle  the  question  when  the 
husband  has  voluntarily  paid  the  funeral  expenses,  etc.,  when 
another  who  has  furnished  them  seeks  to  compel  the  husband 
to  pay  them.  But  if  the  deceased  wife  has  a  separate  estate, 
and  the  claim  is  presented  to  her  administrator,  should  he  pay 
it,  or  compel  the  creditor  to  recover  the  same  from  the  husband  ? 

In  a  case  heretofore  referred  to  *°^  the  court  says : 

"Wliile  the  wife's  estate,  if  she  had  one,  may  be  liable  for 
her  funeral  expenses,  yet  if  she  had  no  estate  the  husband  is 
liable  for  the  funeral  expenses.  In  other  words  the  undertaker 
has  recourse  against  both  the  wife's  estate  and  the  surviving 
husband  for  the  reasonable  funeral  expenses. ' ' 

The  case  of  McClellen  &  Filson,*"^'  rendered  before  the  passage 
of  the  present  statute  in  relation  to  husband  and  wife,  is  in- 
structive. In  this  case  the  wife  died  testate  leaving  an  estate  of 
her  own,  and  a  husband  surviving  her  who  also  had  property. 
A  son  was  appointed  executor  and  entered  upon  the  discharge 
of  his  trust;  as  such  executor  he  paid,  as  expenses  of  the  last 
sickness,  physician's  bills,  also  expenses  of  her  funeral  and  for 
a  tombstone.  The  physicians  who  attended  were  called  by  the 
sou  on  request  of  his  mother;  the  coffin  and  other  purchases  for 
the  funeral  were  made  by  the  son.  It  did  not  appear  that  the 
husband  took  any  action  in  employing  either  the  physician  or 
undertaker.  Exceptions  were  filed  to  the  executor's  account  by 
a  legatee  under  her  will.  In  deciding  the  case  the  Supreme 
Court  says: 

"We  think  the  executor  was  justified  in  paying  the  funeral 
expenses  and  those  of  last  sickness,  and  that  he  should  have 
been  allowed  for  such  items  in  his  settlement."* 

Unless,  therefore,  it  clearly  appears  that  the  husband  has 
contracted  the  bill  and  the  claim  is  presented  to  the  executor, 
the  executor  should  pay  it.  And  there  seems  to  be  no  good 
reaso.n  why  the  wife's  estate  should  not  pay  all  these  claims, 
even  when  the  husband  has  contracted  them,  and  if  the  executor 
does  pay  them,  the  court  ought,  and  the  author  believes  will 
allow  them  in  his  settlement. 

Of  course  a  wife's  estate  can  not  be  held  for  the  expenses  of 
her  husband's  funeral,  if  he  have  an  estate  of  his  own,  unless 
she  has  by  contract  obligated  herself  so  to  do.'*"^ 

If  the  husband  has  no  estate  is  the  wife  liable?  This  has 
never  been  decided  in  Ohio.  It  would  seem  that  the  duties 
placed  on  husband  and  wife  by  statute,  are  somewhat  reciprocal : 

"If  the  husband  is  able  he  must  support  his  wife;  if  he  is 
unable,  the  wife  must  assist  him  so  far  as  she  is  able."*"' 

"They  contract  toward  each  other  obligations  of  mutual 
respect,  fidelity  and  support. ' '  *"•> 

^OfEvcIand  vs.  Sherman,  21  Dec.  40h21  Cyc.  1446;  13  Cyc.  274. 

;  726;  9  N.  P.   (N.S.)   539.  40i  §  7907   G.   C. 

i      «>K44  0.  S.  185.  40J  §  7()05  G.  C. 


§  650  PAYMENT  OF  DEBTS  568b 

The  author  believes  that  under  these  statutes  the  wife  is  liable 
for  the  funeral  expenses  and  those  incurred  during  her  husband's 
last  illness,  even  where  she  has  not  directly  contracted  for  them, 
and  that  the  courts  will  finally  so  hold,  where  the  husband  has 
no  estate. 

Of  course  where  by  will  the  funeral  expenses  are  made  a 
charge  on  the  estate,  they  should  be  paid  therefrom,  even  though 
the  surviving  consort  might  be  liable.*"'^  A  widow  as  the  heir 
and  nest  of  kin  of  her  deceased  husband  is  by  law  to  dispose 
of  his  body  in  a  reasonable  and  sanitary  manner.'*"^  A  son  has 
a  quasi  property  right  in  the  body  of  his  dead  mother.^°'^ 

§  650.    Amount  to  be  allowed  as  funeral  expenses.* 

A  number  of  circumstances  enter  into  the  question  as  to  what 
will  constitute  a  proper  allowance  for  funeral  expenses.  Thus, 
whether  the  estate  be  solvent  or  insolvent,  whether  a  person  be 
high  or  low  in  society,  as  well  as  religious  faith,  fraternal  ideas 
and  family  connection.  It  has  never  been  questioned  that  the 
funeral  expenses  are  to  be  restricted  to  the  amount  necessary 
to  bury  the  decedent  in  the  style  usually  adopted  for  persons 
of  the  like  rank  and  condition  of  society/^ 

In  early  times  a  stricter  rule  was  followed  as  to  insolvent 
estates,  than  at  this  date.  Courts  have  constantly  inclined  in  a 
liberal  direction  in  this  matter  until  now  there  is  very  little 
differance  where  the  expenditure  has  not  been  extraordinarily 
great  in  amount  considering  all  the  circumstances,  between  a 
solvent  and  insolvent  estate. 

"The  circumstances  determining  what  is  reasonable  in  such 
cases,"  says  Wberner,  "are  numerous,  and  the  degree  of  im- 
portance attached  to  each  is  incapable  of  exact  measurement, 
impressing  themselves  more  or  less  strongly  on  different  minds. 
Public  opinion  and  general  expectation,  fashion,  the  feelings  of 
friends  and  neighbors,  the  age,  standing,  property,  the  habits  of 
life  of  the  decedent,  as  well  as  the  standing  and  rank  in  society 
of  the  surviving  family,  must  all  be  considered."  But  large 
expenditures  for  burials,  disproportioned  to  the  assets  of  an 
estate  should  not  be  encouraged.*- 

40k  Where   the   consort   of   a   de-  to  prevent  her  from  cremating  tne 

ceased  husband  or  wife  received  the  body, 

entire    estate    of    said    decedent   by  40m  59  Bull.  340. 

virtue  of  a  devise  for  his  or  her  life,  ^l  Woerner  on  Admin.  764,  citing 

for  his  or  her   support,  with  a   re-  Redf.  on  Wills  243;  Wms.  Ex.  968; 

mainder  over,  and  died  leaving  no  Schoul.  on  Ex.  421;  Willard  on  Ex. 

estate,   the   expenses   of   his   or   her  272;  Kellev.  Pr.  Guide.  220. 

last  illness  and  final  expenses,  are  a  *  Cited,  Kroll  vs.  Close,  8  O.  L.  R. 

legal     charge     against     the     estate  70;  82  0.  S.  193;  .'i2  Bull.  107. 

passed  to  him.     Kennedv  vs.  Price,  42  Estate  of  McKenna,  1  Leg.  Gaz. 

23  O.  C.  C.    (N.S.)    12;  "affirmed  no  Rep.  12. 

p.  83  O.  S.  472.  Says   Brewster,   J.:      "The  assets 

401  Evans  vs.  Evans,  23  Dec.  375,  of  an  estate  should  not  be  squandered 

Injunction  not  allowed  in  this  case  in     ostentatious     displays     for    the 

gratification   of   the  weakest  of  all 


569  AMOUNT  OF  FUNERAL  EXPENSES  §  650 

The  following  from  the  same  distinguished  author  has  often 
vividly  jDresented  itself  to  persons  who  have  had  experience 
in  dealing  with  estates  of  decedents.  "  If  greater  economy 
were  insisted  on,  in  small  as  well  as  great  estates,  many  a  widow 
and  heir  struggling  under  the  privation  of  bitter  poverty  would 
liave  reason  to  be  thankful  for  being  prevented  from  wasting  a 
substantial  part  of  their  means  upon  the  fruitless  pomp  and 
ceremony  of  an  extravagantly  costly  funeral."  *^ 

Foolish  and  extravagant  funerals  by  those  not  immediately 
concerned  in  the  estate  will  not  bind  the  administrator  or  execu- 
tor and  the  immediate  family  of  the  estate.**  In  determining 
what  is  reasonable,  an  undertaker  is  chargeable  with  only  such 
knowledge  as  to  the  decedent's  property,  etc.,  as  is  apparent 
upon  reasonable  observation,  and  is  entitled  to  payment  of  his 
demand  in  full,  if  in  accordance  with  decedent's  apparent  con- 
dition, although  the  estate  prove  insolvent.*^  However,  under- 
takers should  be  held  strictly  accountable  in  this  matter  and  not 
allowed  to  present  a  bill,  which  their  knowledge  of  the  affairs 
of  the  decedent,  should  have  informed  them  was  greater  than 
in  justice  to  all,  should  be  expended,  even  though  the  family  in- 
sisted upon  such  expenditure.*® 

vanities."      Bradley's      Estate,      11  those  of  one's  birthplace  besides,  de- 

Phila.  87.  serve  consideration  whatever  be  the 

43  Woerner    on   Admin.    764.  last    domicile. 

i      **Schoul.  421.  Ihe    standard    varies    essentially, 

I      45 /)j  j-g  Rooney,  3  Redf.   15.  however,  with  the  age  and  locality; 

I      *6  Burial    expenses    amounting    to  as  between  city  and  country  or  pol- 

$270  are  not  unreasonable  where  the  ished  and  simple  communities;  and, 

;  decedent    left    an    estate    of    $800.  in   general,   according  to   the  testa- 
Kittle  vs.  Huntley,  22  N.  Y.  Supp.  tor's  station  in  life;  all  this  aiding, 
510.  doubtless,  in  fixing  a  scale  of  prices 
The  standard  of  reasonable  burial  which,  even  in  such  simple  items  as 
expenses  is  established  by  local  and  the  cost  of  a  coffin,  may  vary  great- 

': contemporary  usage;  for  religious  ly.  Schoul.  on  Ex.,  §421. 
and  humane  sentiment  carries  tlie  It  has  been  held  that  an  under- 
cost  far  beyond  what  mere  sanitary  taker's  bill  of  $201,  where  the  estate 
rules  might  prescribe,  and  that  sen-  was  $798,  was  unreasonably  high, 
timent  should  not  be  outraged.  and  it  was  cut  down  to  $150.  In  re 
The  religious  persuasion  of  the  Karschner,  6  N.  P.  (N.S.)  459; 
deceased,  or,  perhaps  of  his  imme-  52  Bull.  107;  affirmed  KroU  vs. 
diate  family,  may  be  fairly  consid-  Close,  81  0.  S.  191. 
cred  in  determining  the  character  Where  it  is  said  "It  is  the  duty 
land  terms  of  costs  in  the  funeral;  of  the  Probate  Judge,  upon  the  hear- 
thus,  Jewish,  Christian  and  Pagan  ing  of  an  administrator's  account, 
usages  differ  on  these  points;  like-  whether  exceptions  have  been  filed  or 
wise  Catholic  and  Protestant,  nor  not,  to  scan  closely  the  amounts 
do  all  Protestant  sects  agree  among  claimed  to  have  been  paid  for  fu- 
themselves.      National    habits,    and  neral  expenses,  and  if  unreasonable 


§  651  PAYMENT    OF    DEBTS  570 

§  651.  Tombstone.  "The  court  in  settlement,  also  may  allow 
as  a  credit  to  the  executor  or  administrator,  a  just  amount  ex- 
pended by  him  for  a  tombstone  or  monument  for  the  deceased, 
and  for  a  just  amount  he  has  paid  to  a  cemetery  association  or 
corporation  as  a  perpetual  fund  for  caring  for  and  preserving 
the  lot  on  which  the  deceased  is  buried.  It  shall  not  be  in- 
cumbent on  an  executor  or  adiiiinistrator  to  procure  a  tombstone 
or  monument  or  to  pay  any  sum  into  such  fund."  [R.  S. 
§6185.]" 

Even  in  the  absence  of  a  statute  under  the  phrase  "  funeral 
expense  "  the  costs  of  a  monument  might  be  included.'*"  The 
former  statute  provided  that  the  administrator  should  not  be 
allowed  to  interfere  with  the  heirs  of  the  deceased  in  erecting 
one.  The  present  section  does  not  contemplate  the  erection  of  a 
monument  for  any  person  other  than  the  deceased.*^  The  stat- 
ute further  seems  to  give  to  the  administrator  or  executor,  the 
discretion  whether  or  not  the  expenditure  shall  be  made.  If 
it  is  made,  however,  the  Court  shall  pass  upon  its  reasonable- 
ness. "  He  should  not,"  says  a  distinguished  author,^"  "  before 
ascertaining  the  amount  of  the  estate,  purchase  a  larger  burial 
lot  than  is  necessary  Although  the  expenses  of  the  tombstone 
has  been  considered  a  funeral  charge,  yet,  Avhere  the  estate  is 
insolvent  it  can  be  allow^ed,  if  at  all,  to  a  very  moderate  amount 
only."  The  expenditure  may  be  made  in  a  reasonable  amount 
even  though  the  estate  be  insolvent.^^  However,  tlie  rights  of 
creditors  should  not  be  defeated  or  jeopardized  by  the  allowanftS 
of  a  credit  for  extravagant  monuments  or  tombstones.'^ 

and    extravagant,    should    be    disal-  (N.  S.)   417;   18  Dec.  374;  affirmed 

lowed,    even    against    legatees    aaid  81   0.   S.   GS. 

next   of  kin."  And  is  without  jurisdiction,  in  ad- 

*'^  §  10832   G.   C.  vance  of  settlement,  to  entertain  an 

48  See  Comments,   10  Bull.  338.  application    to    fix    maximum    that 

49  Catlin  vs.  Huestis,  11  C.  C.  mav  be  expended.  See  McMahou  vs. 
120;   5  C.  D.  23;    Morgan  vs.  Mor-  Auibach,  79  0.  S.   103. 

gan,  83  111.  196.  Cited  In  re  Matter  of  Erlacher,  3  Redf.  8.  In 
Lohnes,  57  Bull.  125.  that  case,  the  estate  amounted  to 
Uf  course,  the  heirs  may  erect  .$2,625.78.  Held,  that  the  admin- 
one  if  they  so  desire.  Cm-fcis  vs.  istrators  should  be  allowed  only 
Bank,  39  O.  S.  581.  $250  of  $1370  expended  by  them  for 

50  Kedf .  Surr.  Prac.  440.  a  monument  and  inclosing  the  burial 
5110  Bull.  338.  plot.  In  Matter  of  Wood  (3  Kedf. 
52\Voerner  on  Admin.  761.  9  n.),  it  appeared  that  the  estate 
The  Probate  Court  has  no  power  amounted  to  less  than   $2,800,  and 

to  order  an  administrator  to  pur-  that  $700  was  charged  by  the  ad- 
chase  a  monument,  under  the  gen-  ministratrix  for  burial  lot  and  mon- 
eral  authority  to  control  and  direct  ument,  and  $200  additional  was 
the  conduct  of  administrators,  nor  placed  to  the  account  of  funeral 
under  §  10832,  in  absence  of  settle-  expenses.  It  was  held,  that  the 
ment  to  pass  upon  such  expendi-  charge  for  burial  lot  and  monument 
tures.      In    re    Ferguson,    6    5f.    P.  was  excessive.     In  ^Matter  of  Mount 


571  TOMBSTONE  LAST     SICKNESS  §  652 

In  making  a  selection  for  a  tombstone,  it  certainly  is  proper 
fof  the  administrator  or  executor  to  confer  with  the  family  as 
to  the  kind  and  character  of  a  stone  to  be  put  up,  and  even  if 
the  estate  be  insolvent,  one  of  moderate  cost,  taking  into  consid- 
eration the  standing  and  character  of  tlie  deceased,  ought  to 
be  allowed.  If  the  estate  is  solvent  the  administrator  should 
proceed  and  make  such  expenditure  as  will  satisfy  the  general 
desire  of  the  family.^^ 

§  652.     Last  sickness. 

The  second  kind  of  expenses  that  is  entitled  to  a  first  pref- 
erment, is  the  expense  incurred  during  the  last  illness.  A 
consideration  of  this  question  divides  itself  into  two  parts, 
first,  what  kind  of  expenses  is  included,  and  second,  what  is 
meant  by  the  term  "  last  illness."  As  to  the  first  it  may  be 
said,  that  it  would  include  doctor  bills,  medicines,  nurse  hire, 
food,  clothing  and  place  of  habitation ;  and  generally  would 
include  all  bills  for  care  and  attention  which  were  proper  to 
give  to  the  decedent,  that  degree  of  care  and  attention  which  the 
usage  of  society  and  the  laws  of  humanity  require,  considering 
the  person's  station  in  life.     The  term  "last  sickness"  is   a 

(3  Redf.  9  n. ),  it  was  shown  that,  Supp.  148).  An  expense  of  $300  in- 
cut of  an  estate  of  $983.30,  the  ad-  curred  by  an  executor  for  testator's 
ministiatrix  paid  $425  for  funeral  tombstone  is  reasonable  where  the 
expenses,  besides  $00  for  clergy-  estate  is  valued  at  more  than  $6,000, 
man's  fee  and  music  and  $78  for  a  and  the  rights  of  creditors  are  not 
gravestone.  Held,  that  only  $200  impaired.  (Matter  of  Howard,  23 
should  be  allowed  for  funeral  ex-  Id.  836).  Patterson  vs.  Patterson, 
penses  and  .$50  for  a  gravestone.  59  N.  Y.  574 ;  Wood  a's.  Vanden- 
In  another  case,  it  was  held  that,  burgh,  6  Paige.  277 ;  Ferrin  vs.  My- 
as  against  decedent's  next  of  kin,  an  rick,  41  N.  Y.  315;  Owens  vs. 
expenditure  of  $351  for  a  burial  lot  Bloomer,  14  Hun.  296.  In  the  last 
is  not  unreasonable,  where  the  es-  case,  the  estate  did  not  exceed 
tate  amounts  to  $13,000;  but  as  $8,000.  An  expenditure  of  $500  for 
against  creditors,  the  expenditure  a  headstone  v/.is  held  to  be  extrava- 
would  not  have  been  allowed,  it  gant,  and  was  not  allowed  as  against 
aeems.  (Valentine  vs.  Valentine,  4  the  heirs.  Redf.  Surr.  Prac.  440. 
Redf.  265).  Funeral  expenses  in-  ^^  A  testator  who  directed  by  his 
curred  by  an  executor  to  the  amount  will  that  a  suitable  monument 
of  $60  will  not  be  held  excessive  should  be  erected  for  his  grave,  left 
where  the  executor  acted  in  good  a  large  fortune,  in  great  part  to 
faith,  though  testator's  estate  was  charities;  and  .$6,000  was  held  not 
not  sufficient  to  pay  in  full  the  an  imreasonable  amount  to  expend 
statutory  exemptions  of  the  widow.  for  the  monument.  Cannon  vs.  Ap 
(Matter    of   Hildebrand,    23    N.    Y.  person,  14  Lea.  553. 


§  652  PAYMENT   OF   DEBTS  572 

difficult  one  to  define.  It  probably  does  not  mean  such  a  limit- 
ed period  of  time  before  death  as  is  required  in  the  case  of 
making  a  nuncupative  will.  Some  Courts  have  held  that  it 
practically  means  in  extremis  and  not  lingering  illness.^* 

In  another  State  it  has  been  held  that  it  would  include  sick- 
ness no  matter  how  long  its  duration. ^^  We  can  probably  get 
our  best  idea  as  to  what  the  phrase  should  include  by  consid- 
ering the  reason  for  making  such  claims  preferred  in  the  settle- 
ment of  a  deceased  person's  estate.  It  was  no  doubt  a  hu- 
manitarian purpose,  that  induced  the  passage  of  the  Act,  the 
same  that  gives  to  the  widow  and  children  a  right  to  their  year's 
allowance,  before  the  payment  of  general  creditors.  If  a  per- 
son be  sick,  humanity  quires  that  he  be  given  attention,  and 
that  he  should  have  such  care,  medical  and  otherwise,  as  an 
enlightened  age  demands.  By  pledging  his  property  to  the 
payment  of  such  claims,  tlie  same  will  be  more  readily  secured. 
Possibly  if  such  were  not  the  law,  a  person  might  not  receive 
the  attention  that  illness  requires,  for  it  is  well  known  that  sure 
pay  procures  speedy  attention.  Besides  it  may  properly  be 
considered  that  a  man's  estate  should  first  give  him  the  care 
that  illness  requires,  even  though  other  debts  may  be  excluded. 
And  there  is  no  reason,  therefore,  why  a  continued  illness,  even 
if  extending  over  several  years,  if  it  is  the  illness  from  which 
the  decedent  died,  ought  not  to  come  within  the  terms  of  the 
statute.  If  there  is  a  definite  period  of  health  or  a  reasonable 
degree  of  health  between  one  sickness  and  another  sickness, 
the  former  could  not  properly  be  included  within  the  temis  of 
"  last  illness."  It  would  be  well  for  an  administrator  in  pay- 
ing a  bill  of  this  character,  where  he  had  any  doubts  on  the 
subject,  to  require  the  creditor  to  state  in  his  affidavit  that 
the  services  were  rendered  during  the  last  illness  of  the  de- 
ceased.^® 

54  See  Heese's  Estate,  2   Pearson  means  of  her  own.     Thompson  V3. 

482;  Duckett's  Estate,  1  Kulp.  227.  Jones.   33   0.    C.   C.    182. 

53  Huse  vs.   Bro\Vn.   8   Me.    167.  The  ph^intifF  can  not  recover  un- 

56  See    §1160,    last    sickness.  less    it    be    established    that    there 

Tlie  doctrine  announced  in  Hinkle  was  an  express  contract  on  one  side 

vs.    Sage,    67    0.    S.,    that   there    is  to  perform  the  service  for  conipen- 

no    obligation    on    a   member    of    a  sation   and   upon   the   other  side  to 

family   to  pay  another   for  services  accept    service    and    paj'    for    same, 

rendered,  held   not   to   apply   where  Merrick   vs.    Dilzler.   91    0.   S.    256. 

a    brotlicr    in    jwor    health,    abund-  See  Crawford  vs.  ]Merrell,  33  0.  C. 

antly    able    to    pay    for    his    board,  C.    104;    Edgar    vs.    Shock,    Admr., 

without     invitation    going    to    live  as  to  when  evidence  suffici     ':  to  es- 

vvith    a    married    sister    having    no  tablish  contract,  37  Cyc.  603. 


573  EXPENSES    OF    ADMINISTRATION  §  653 

§  653.     Expenses  of  administration. 

The  third  in  tlie  list  of  claims  entitled  to  a  firet  preference, 
is,  expenses  of  administration.  Within  this  term  is  included 
every  expense  incurred  hy  the  administrator  or  executor  in  the 
proper  discharge  of  his  duty,  in  the  administration  of  his  trust. 
It  would  include  Probate  Court  expenses,  including  the  proba- 
tion of  the  will,  granting  letters,  notice  of  appointment  in  the 
newspaper,  making  an  inventory,  paying  appraisers,  filing  the 
sale  bill,  filing  an  account  and  order  of  distribution.  If  real 
estate  be  sold  it  would  include  the  ordinary  costs  attached 
to  such  a  proceeding.  As  a  general  rule  it  may  be  said,  that 
the  administrator  is  primarily  responsible  for  the  payment  of 
these  Court  costs ;  and  that  they  are  to  be  paid  first,  but  the 
statute  seems  to  place  them  on  an  equality  .vith  funeral  ex- 
penses, and  expenses  of  last  illness.  If  there  is  any  litigation 
had,  concerning  matters  in  which  the  estate  was  interested,  the 
costs  incurred  in  that  respect,  if  the  administrator  acted  within 
the  proper  scope  of  his  authority,  would  also  come  within  "  the 
expenses  of  administration."  The  employment  of  help,  the 
gathering  of  crops,  and  s'ecuring  of  proper  counsel,^^  and  as 
before  said  whatever  expenses  the  administrator  incurs  in  a 
proper  discharge  of  his  duties,  in  the  just  and  rightful  admin- 
istration of  an  estate,  are  expenses  to  be  included  within  this 
provision.  It  likewise  includes  compensation  to  the  adminis- 
trator. These  m.atters  will  be  considered  in  subsequent  sec- 
tions. 

5  654.  Compensation  allowed  executors  or  administrators. 
Further  allowance.    Effect  of  compensation  provided  by  will. 

"Executors  and  administrators  may  be  allowed  commissions 
upon  the  amount  of  personal  estate  collected  and  accounted  for 
by  them,  and  of  the  proceeds  of  real  estate  sold  by  order  of 
court  to  pay  debts,  or  under  directions  of  the  will,  which  must 

f>7  Chapt.   29,    §  506   et  seq..   Care  The  court  has  power  to  order  an 

and    nianageiiieiit    of    estate.  expense  account  to  be  filed  prepara- 

As  these   expenses    are   necessary  tory  to  the  general  account.    Simith 

to  get   the    estate    in    condition    to  vs.    lihodes,    68    O.    iS,    500.       See 

pay  claimants,   the  expenses  of   ad-  §  645. 

ministration  ought  to  be  paid  first  Costs  connected   with   the  admin- 

— before  funeral  and   last  illness.  istration  of  the  estate  are  debts  of 

§§50S-!)-10,    as    to    attorney    fees.  the  estate.     Harbeson  vs.  Mellinger, 

etc.     See  §904,   Real   Estate.  2  O.  App,  75  j  35  0.  C.  C.  I'Jo. 


§  654a  PAYMENT  OF  DEBTS  574 1 

be  received  in  full  compensation  for  all  their  ordinary  services- 
as  follows :  for  the  first  thousand  dollars,  at  the  rate  of  six  pef 
cent;  all  above  that  sum,  and  not  exceeding  five  thousand  dol^ 
lars,  at  the  rate  of  four  per  cent,  and  all  above  five  thousanc 
dollars,  at  the  rate  of  two  per  cent."     [R.  S.  §  6188.] ^^ 

§  654a.  Further  allowance.  "Further  allowance  shall  be 
made  as  the  court  considers  just  and  reasonable  for  actual  and 
necessary  expenses,  and  for  extraordinary  services,  not  required 
of  an  executor  or  administrator  in  the  common  course  of  his 
duty.  When  provision  is  made  by  the  will  of  the  deceased,  for 
compensation  to  an  executor,  that  shall  be  a  full  satisfaction  for 
his  services,  in  lieu  of  such  commissions  or  his  share  thereof, 
unless  by  an  instrument  filed  in  the  court  he  renounces  all  claim 
to  the  compensation  given  by  the  will."     [R.  S.  §  6188.]°^* 

§  655.     When  entitled  to. 

In  some  States  the  compensation  of  an  executor  or  adminis- 
trator, like  guardians  in  this  State,  depends  upon  the  allow- 
ance made  by  the  Probate  Court.  With  us,  however,  this  com- 
pensation is  fixed  and  the  Probate  Court  has  nothing  to  do  with 
it,  except  where  extraordinary  services  have  been  rendered. 
An  administrator  or  executor  is  legally  entitled  to  the  statutory 
commissions  on  the  amount  of  the  personal  estate  collected  and 
accounted  for  by  him,  and  of  the  proceeds  of  the  real  estate  sold 
under  an  order  of  the  Court  for  the  payment  of  debts,  although 
he  may  have  failed  to  charge  himself  with  all  the  assets  received 
by  him,  or  has  asked  for  credits  for  sums  not  paid  by  him. 
Even  if  there  be  unfaithful  administration  of  the  estate,  it  will 
not  deprive  an  executor  or  administrator  of  a  right  to  com- 
pensation for  his  services,  so  far  as  they  have  been  beneficial  to 
the  persons  interested  in  the  estate.^^ 

58  §  10837  G.  C.    See  S  895,  Sale  of  Bank  vs.  Smith.  4  C.  C.  (KS.)  237; 

real  estate.     §1643,  Assignments.  20   O.   C.   C.  317;   affirmed  74   0.  S. 

-s*  §  10838  G.  C.  505. 

Where    real    estate    forming    part  A    trust    company,    under    an    in- 

of  a  residuary  estate  is   sold   under  valid  statute,  allowed.     /(/. 
an  agreement  between  the  heirs,  and  "'9  Campbell    vs.    MeCormick,    1    C. 

not  under   direction  of  the  will,   an  C.  504;    1   C.  D.  281. 
executor  is  not  entitled   to  commis-  We  think  it  was  the  intention  of 

sion  on   the   proceeds.     Union  Bank  the     legislature    to    withdraw    this 

vs.    Smith,  4   C.   C.    (N.,S.)    237;    26  matter    from    the    discretion    of   the 

0.  C.  C.  317.  Court,  and  to  have  it  fixed  so  that 

Personal    estate,    upon   which    the  the  administrator  or  executor  might 

executor   is   entitled  to  commission,  rely  on   receiving  what  the   statute 
includes  all  that  he  has  reduced  to  §  659,   Extra   expenses, 

money    and    accounted    for.      Union 


575 


ADMINISTRATOR  S  COMPENSATION 


§655 


In  some  states  it  is  held  that  where  he  makes  a  distribution 
in  kind,  he  is  not  entitled  to  commission  on  such  distribution. 
But  the  contrary  has  been  held,  where  certificates  of  stock  came 
into  the  hands  of  the  administrator,  and  were  by  him  held  until 
final  distribution  and  then  turned  over  to  the  widow  as  sole 
legatee.^*' 

In  anotlier  case  it  was  held  that  where  an  administrator  sold 
real  estate  and  the  judgment  creditor  accepted  the  purchaser's 
note,  that  the  administrator  was  entitled  to  his  commission 
although  nO'  money  passed  through  his  hands. ^^ 

It  has  also  been  held  that  where  the  testator  directed  cer- 
tain legacies  to  be  paid  by  his  executor,  and  devised  certain 
lands  to  A.,  charged  with  the  payment  of  the  legacies  and 
costs  of  administration,  so  far  as  funds  might  be  needed  by  the 
executor  for  the  payment  of  the  same,  and  A.  paid  and  took 
receipts  from  the  legatees,  that  the  executors  were  not  entitled  to 
a  commission  on  the  legacies.^^ 


provides  for,  and  to  have  a  uniform 
rate  of  compensation  tliroughout  the 
State,  and  not  have  the  amount  of 
such  commissions  to  vary  with  the 
views  or  feeling  of  the  Court  called 
upon  to  act  in  the  matter.  So  far 
as  we  are  advised  this  has  been  the 
uniform  practice  in  this  State.  This 
is  the  first  time  that  we  have  known 
an  administra.tor  to  be  deprived  of 
his  statutory  commissions,  even 
when  it  appeared  that  he  had  been 
derelict  in  his  duty  to  the  estate. 
Campbell  vs.  McCormick,  1  C.  C. 
504. 

It  is  held  in  numerous  cases  that 
compensation  must  be  refused  if  the 
administrator  has  been  guilty  of 
willful  default  or  gross  negligence  in 
the  management  of  the  estate, 
whereby  the  same  has  suffered  loss. 
This  principle  is  adhered  to  in  some 
of  the  States  in  which  the  compen- 
sation is  fixed  by  statute,  denying 
any  discretion  in  the  matter  to  the 


Courts  on  the  ground  that  the  stat- 
ute gives  compensation  for  faithful 
administration  only.  But  it  would 
seem  that  the  language  of  the  stat- 
ute in  most  States  fixing  the  com- 
pensation of  executors  and  admin- 
istrators precludes  all  discretion  in 
this  respect.  The  Court  can  neith- 
er add  to  nor  detract  from,  nor  in 
any  wise  vary,  the  compensation  di- 
lected  to  be  allowed  by  the  statute; 
it  can  never  allow  nor  disallow 
commissions  scaled  by  the  degree  of 
skill  or  of  vigilance,  6f  good  or  of 
bad  faith,  displayed  in  the  manage- 
ment of  the  estate,  unless  such  dis- 
cretion is  vested  in  the  Court  by 
statute.  Woerner  on  Admin.  1164. 
CO  Estate  of  Duddy,  Goebel,  1-30 ; 
7  N.  P.  589.  This  was  followed  in 
a  recent  Cincinnati  decision,  47 
Bull.,   286. 

61  Stone  vs.  Strong,  42  0.  S.  5?.. 

62  Williams  vs.  Williams,  8  O.  S. 
301. 


§  655  PAYMENT     OF    DEBTS  576 

Where  the  estate  was  indebted,  and  the  heirs  by  an  agreement 
with  the  creditor  conveyed  real  estate  to  the  crditor  in  discharge 
of  the  debt,  it  was  held  the  administrator  was  not  entitled  to 
charge  his  commission/^  The  executor  or  administrator  of  a 
surviving  partner,  who  dies  with  partnership  assets  in  his  pos- 
session, and  while  he  is  engaged  in  settling  his  partnership  busi- 
ness, is  entitled  to  receive  compensation  out  of  the  partnership 
funds  for  his  service,  and  performance  of  his  duties,  in  behalf 
of  the  settlement  of  such  partnership  affairs.^'* 

Where  an  administrator  sells  real  estate  that  is  encumbered 
with  a  mortgage,  he  is  entitled  to  commission  to  be  first  paid 
before  applying  the  proceeds  to  the  mortgage  or  other  liens. 
However,  if  the  mortgagee  buys  in  the  property,  upon  so  much 
of  the  proceeds  as  is  required  to  meet  the  mortgage  indebted- 
ness, no  commission  can  be  allowed."^ 

The  rule  excludes  commissions  on  advancements,^®  all  un- 
collectible debts,^^  and  property  lost  or  perished."^  And  where 
the  administrator  is  charged  with  and  delivers  over  to  the  wid- 
ow the  household  furniture  which  is  by  law  set  apart  for  her, 
he  should  be  allowed  commissions  on  its  appraised  value ;  ®' 
but  when  such  property  does  not  pass  through  his  hands,  as 
where  it  is  collected  and  retained  by  the  widow,  no  commission 

63  Piatt  vs.  Longworth,  27  0.  S.  essarv.  §  10606  G.  C,  §  1061S  G.  C. 
1S3.  See  §1643. 

64  Dayton  vs.  Bartlett,  38  0.  S.  ec  Metcalfe  vs.  Colles,  43  X.  J.  Eq. 
357.       '  148;   Barhite's  Appeal.   126  Pa.  St. 

65  Stone  vs.  Strong,  42  0.  S.  53.  404. 

Compensation  of  an  executor  can  67  Mayberry's  Appeal,   33   Pa.   St. 

not   be   reached   by   his   creditor  by  258;   Succession  of  Foulkes.   12  La. 

attachment,    by    creditor's    bill    or  An.  537;  Moffat  vs.  Loughridge,  51 

otherwise,   before    it   is   allowed   by  Miss.  211;  Vanderford's  Appeal,  12 

the   Probate   Court.      It   would   em-  Atl.  R.   (Pa.)  491;  Kester  vs.  Lyon, 

barrass    the    settlement    of    estates  40   \Y.   Va.    161. 

and   invade   the   jurisdiction  of  the  6S  Eversfield  vs.  Eversfield,  4  Har. 

Probate   Court.      Overturf   vs.    Ger-  &  .J.   12. 

lach,   62   0.   S.    127.  The   general  weight   of   authority 

An  executor  or  administrator  who  is  that  the  executor  is  not  entitled 

fails   to   file   an   account  within   30  to  commis'sion  on  specific  legacies  or 

days  from  the  time  he  is  notified  by  on  property  delivered  over  in  kind, 

the  Probate  Judge  can  get  no  com-  18   Cyc.    1147. 

pensation  for  his  services,  unless  the  69  ifayberry's  Appeal,   33  Pa.   St. 
Court    enters    on    its    journal    that  258.     This  does  not   apply  to  prop- 
such  delay  was  reasonable  and  nee-  erty  set  apart   and   not  deemed   as- 
sets of  the  estate  and  not  appraised. 


577  administrator's  compensation  §  656 

is   allowable   thereonJ°     Nor   are   commissions   allowed    on   his 

own  debt.''^ 

§  656.    How  calculated. 

The  commission  is  to  be  calculated  on  the  amount  of  personal 
estate  ^^^  collected  and  accounted  for ;  and  the  proceeds  of  the 
real  estate  sold  either  by  order  of  the  Court  or  by  directions 
of  a  will.  On  the  first  $1,000  it  is  6  per  cent.,  and  on  the  next 
$4,000,  4  per  cent.,  and  on  the  remainder,  2  per  cent. 

If  proceeds  of  real  estate  and  personal  property  come  into 
the  hands  of  the  administrator  or  executor,  the  calculation  is 
first  to  be  made  on  the  personal  property.  That  is,  if  the  per- 
sonal property  amounted  to  $1,000  and  the  real  estate  to 
$2,000,  the  commission  would  be  6  per  cent,  on  the  $1,000  of 
personalty  and  4  per  cent,  on  the  $2,000  of  realty.''^ 

In  no  ease,  however,  can  an  executor's  or  administrator's 
compensation  be  allowed  in  a  greater  amount  than  that  fixed  by 
the  statute  on  the  entire  amount  collected,  etc.,  and  if  there  is 
more  than  one  administration,  the  commission  can  be  charged 
but  once.  For  instance,  if  an  administrator  was  appointed, 
and  administered  on  $1,000  of  the  property,  then  died  and  an 
administrator  de  bonis  non,  administered  on  the  remaining 
$2,000,  the  administrator  would  be  entitled  to  6  per  cent,  of 
the  $1,000  on  that  which  he  administered,  and  the  administra- 
tor de  bonis  non  4  per  cent,  upon  the  remainder.^^ 

§  657.     Compensation  fixed  by  will. 

It  will  be  observed  that  sees.  10837,  10838  G.  C.  (§  654)  pro- 
\dde  that  if  a  provision  is  made  in  the  will  for  compensation  of 
an  executor,  that  the  same  shall  be  deemed  a  full  satisfaction  for 
his  services,  unless  he  shall  by  an  instrument  filed  in  the  Court, 

70  Estate  of  Sharp,   11  Phila.  92.  accounted    for    by    them,    includes 

TiBarhite's   Appeal,    126    Pa.    St.  stocks,   bonds    and   other    securities 

404;    IToffer's    Estate,    156    Pa.    St.  belonging    to    the    estate,    and    an 

473;  Woerner  on  Admin.   1167.  executor    is    entitled    to    statutory 

I  see  no  reason  for  this  and  doubt  commission   thereon.      In   the   opin- 

if  it  he  Ohio  law.     See  §  .594,  Arhi-  ion  it   is   said   the  words   "personal 

tration;  §7.50,  Distribution;  §  1490,  estate"  are  broad  enough  to  include 

Gdns.     compensation;      §1642,     As-  stocks,   bonds   and   other   securities, 

signee's    commission.  and   when    collected    and    accounted 

TiaTn   P>ank  vs.   Smith,   26   0.   C.  for  by   the   executor   he  is   entitled 

C.    317;    4    O.    C.    C.     (N.S.)     237;  to   his   statutory    commission, 
affirmed  74  O.   S.   305,   it  was  held  "  stone  vs.  Strong,  42  0.  S.  53. 

that   the   phrase   "personal    estate,"  ''^  In   re   Waring,   Goebel    146;    5 

§6188   G.    C,    §654,    which    allows  Dec.  4151;   7  N.  P.   553. 
full  compensation   upon  the  amount  §207,  Division  of  commissions, 

of  the  personal  estate  collected  and 


§  657  PAYMENT     OF    DEBTS  578 

renounce  all  claim  to  such  compensation.  Where  a  will  pro- 
vided "  that  in  consideration  of  tlie  legacies  herein  given  to 
said  sons,  that  no  fees,  conm:iission  or  charges  for  administer- 
ing upon  my  estate  shall  be  paid  to  them  or  either  of  them, 
except  for  expenses  actually  incurred."  It  was  held  that  they 
were  not  entitled  to  commission/*  Likewise  a  person  may 
make  an  agreement  to  serve  without  compensation,  which  will 
be  binding.^^  So  is  an  agreement  as  to  the  amount  of  com- 
pensation.^® Unless  a  \vill  otherwise  declares,  a  legate©  serving  g 
as  administrator  is  entitled  to  both  his  legacy  and  pay  for  his 
services.''^  If  a  legacy  be  given  in  lieu  of  compensation,  the 
Court  caimot  defeat  tlie  provisions  of  the  will.^^  Where  testa- 
tor by  his  will  provides  for  continuing  his  business  after  death 
by  his  executors,  one  of  whom  is  a  copartner,  in  conjunction 
with  another  surviving  partner,  neither  executor  nor  surviving 
partner  will  be  allowed  compensation  for  carrying  on  the  same ; 
no  provision  having  been  made  therefor  in  the  will.^" 

If  the  administrator  serve  as  a  trustee  of  the  estate,  and 
perform  two  distinct  acts  of  service,  he  is  entitled  to  pay  for 
services  in  both  capacities,  or  double  compensation.^*'  But  if 
the  functions  of  a  trustee  are  so  blended  with  those  of  the  ad- 
ministrator as  to  be  inseparable,  the  act  is  deemed  that  of  the 
administrator,  and  compensation  will  be  allowed  to  him  only  in 
that  capacity.®^     If  it  is  evident  from  the  will  that  the  com- 

74  Rote  vs.  Warner,  17  C.  C.  342  j  so  Baker  vs.  Johnston,  39  N.  J. 
9   C.  D.  536.  Eq.  493  j  Laytin  vs.  Davidson,  95  N. 

75  Bate  vs.  Bate,  11  Bush.  639;  In  Y.  263  j  Johnson  vs.  Lawrence,  95 
re  Hopkins,  32  Hun.  tilS;  Estate  N.  Y.  154;  Sanderson  vs.  Pearson, 
of  Davis,  65  Cal.  3U9;  McCam  vs.  45  Md.  4S3;  In  re  McCredier's  Es- 
Plewit,  2  McC.   Ch.  90.  tate,  77  Hun.  Ill;   S.  C.  28  N.  Y. 

76  Bowker    vs.    Pierce,    130   Mass.  Supp.    305. 

262.     But  see  Eoss  vs.   Conwell,  7  VVhere   the   executor  died   before 

Ind.  App.  375;   People,  etc.,  Co.  vs.  filing   an   account   and   an   adminis- 

Werner,  6  Ind.  App.  614;   y.  (J.  34  trator  de   bonis   non,   etc.,   was   ap- 

K.   E.   iiep.    1U5.  pointed,   but  one   commission   could 

77 /n,  re  Mason,  98  X.  Y.  527;  As-  be    charged    equitably    apportioned 

pinwall  vs.  Pirnie,  4  Edw.  Ch.  410;  between   them.     Bates   vs.    Creel,   2 

Estate  of  Guier,  l.Ashm.  317.  0.  App.   64. 

78  Matter  of  Gerard.  1  Dem.  244;  si  Johnson  vs.  Lawrence,  supra; 
Matter  of  Kernochan,  104  N.  Y.  Phoenix  vs.  Livingston,  101  N.  Y. 
618;  Haine's  Accounting,  8  N.  J.  451;  Little  vs.  Little  (Mass),  36 
Eq.  506;  Secor  vs.  Sentis,  5  Redf.  N.  E.  Rep.  795;  Everson  vs.  Pitney, 
570.  40  N.  J.  Eq.  539 j  S.  C.  42  N.  J.  Eq. 

79  Zn   re   Taft's    Estate,   8  N.   Y.  461. 
Supp.  282;  y.  C.  55  Hun.  603. 


579  COMPENSATION    OF    CO-ADMINISTEATORS  §  G58 

pensation  given  is  to  cover  all  his  allowance,  double  compensa- 
tion will  not  be  allowed.*^  If  a  will  declares  that  the  legacy 
given  to  the  executor  shall  be  in  lieu  of  all  compensation,  or  that 
he  shall  serve  without  any,  and  he  decline  to  accept  the  office, 
the  administrator  witli  the  will  annexed  appointed  in  his  place 
will  be  entitled  to  compensation.*^ 

§  658.     Compensation  of  joint  administrators.* 

Joint  administrators  are  entitled  to  no  more  compensation 
than  if  there  were  only  one  of  them  administering.**  If  one  be 
given  a  legacy  as  his  compensation  the  other  is  entitled  to  only 
one-half  of  what  they  jointly  would  be  entitled  to  receive.*^ 

The  Court  should  apportion  the  pay  for  services  among  the 
administrators  according  to  the  services  rendered  by  each  one.** 
But  the  presumption  is  that  eacli  is  entitled  to  an  equal 
share ;  and  if  any  of  them  claims  a  different  division  he  must 
show  cause  for  it.*^  ISTo  one  can  object  to  the  division  except 
the  administrators.**  If  the  Court  make  a  gross  allowance  it 
cannot  thereafter  compel  a  division.*®  They  may  agree  to  a 
division  of  the  amount  to  be  allowed  and  it  will  be  binding.®" 
An  agreeonent  whereby  one  administrator  renounces  his  right 
to  letters  in  favor  of  his  co-executor,  in  consideration  of  being 
paid  one-half  of  the  Courts'  allowance,  is  valid. ®^ 

Where  all  the  statutory  fees  allowed  executors  have  been  re- 

82  Shippen  vs.  Burd,  42  Pa.  St.  Where  there  are  two,  the  court 
461;  Lansing  vs.  Lansing,  45  Barb.  should  apportion  the  commission. 
182;  Ward  vs.  Ford,  4  Redf.  34;  Meyers  vs.  Hopi<ins,  7  C.  C.  (N.S.) 
In  re  Mason,  98  N.  Y.  527;  Ross  vs.  240;    28   C.    C.   209. 

Conwell,    7    Ind.   App.    375;    People,  se  Squier  vs.  Squier,  30  N.  J.  Eq. 

etc.,  vs.  Werner,  6  Ind.  App.  614.  627;  Pomeroy  vs.  Mills,  40  N.  J.  Eq. 

83  Ross  vs.  Conwell,  7  Ind.  App.  517;  Carver  vs.  Hallett,  26  Ala. 
375;  People  vs.  Werner,  6  Ind.  App.  722. 

614.  87  Shaw   vs.    Betts,   3    Cent.   Rep. 

84  See   §  207,  Division  of  commis-       592. 

sion;   Phillips  vs.  Richardson,   4  J.  88  Clavcomb     vs.      Claycomb,      10 

J.   IMarsh   212;    Walker's   Estate,   9  Gratt.    589. 

S.   &  R.   223;    Valentine  vs.   Valen-  S9  ^Tount  vs.   Slack,  39  N.   J.  Eq. 

tine.  2  Barb.  Cb.  430.  230. 

8s  Lee  vs.   Lee.   6   Clill   &  ,1.   316;  9"  Astor's    Estate,   5   W^hart.   228; 

Succession  of  Edwards,  34  La.  Ann.  Walker's  Estate,  9  S.  &  R.  223. 

216.  •'!  Oblendorf    vs.    Kanne,    66    Md. 

Where  one  executor  resigns  after  495;   Bassett  vs.  Miller,  8  Md.  548. 

the    estate    is    partly    administered  See  Ballard  vs.  Mack,  17  O.  C.  C. 

upon,     the     commission     should    be  839;    31   0.   L.   R.   249. 
equitably     divided.       Thurston     vs. 
Ludwig,    4    0.    App.    486. 


§  659  PAYMENT    OP    DEBTS  580 

ceived  from  the  estate  and  retained  by  one  of  several  co-execu- 
tors, equity  lias  jurisdiction  of  a  suit  by  the  others  against  him 
for  an  accounting,^^ 

§  659.    Extra  compensation.^-^ 

1.  The  statutes  of  the  State  bearing  upon  the  settlement  in 
the  Probate  Court  of  the  estates  of  deceased  persons,  taken  to- 
gether, show  that  the  allowance  to  an  administrator  for  extra- 
ordinary services  in  the  settlement  of  the  estate  is  part  of  the 
statement  of  his  account,  and  is  to  be  considered  by  the  court 
accordingly. 

2.  Whether  the  allowance  is  in  fact  made  at  the  time  of  or 
prior  to  the  filing  of  a  settlement  account,  such  allowance  can  not 
take  effect  as  prejudicing  the  rights  of  others  interested  in  the 
settlement  of  the  estate  who  have  not  had  notice  until  the  court, 
after  legal  notice,  acts  upon  the  settlement  account  itself. 

3.  Exceptions  to  such  allowance,  in  the  account  by  creditors 
constitute  a  direct  attack  on  the  allowance,  and  not  a  collateral 
attack,  and  the  allowance  is  then  subject  to  review  upon  the 
exceptions  the  same  as  any  other  disputed  item  of  the  admin- 
istrator's account.^-* 

In  addition  to  the  per  centum  fixed  by  the  statute,  the  Court 
may  allow  what  it  shall  consider  just  and  reasonable  for  actual 
and  necessary  expenses,  and  for  any  extraordinary  services  not 
required  of  an  executor  or  administrator  in  the  common  course 
of  his  duty.  A  construction  of  this  part  of  the  provisions  of 
sec.  6188  R.  S.  is  almost  daily  brought  to  the  attention  of  the 
Probate  Judge,  and  in  truth,  it  must  be  said,  that  administra- 
tors and  executors  are  sometimes  inclined  to  take  advantage  of 
this  provision  and  the  liberality  of  the  Court,  to  secure  that  to 
which  they  are  not  entitled.  It  is  the  object  and  purpose  of 
the  statute  in  fixing  the  per  centum  to  be  allowed  upon  the 
estate  collected  and  accounted  for,  in  that  manner,  to  compen- 
sate the  executor  or  administrator  for  all  the  services  which 
are  ordinarily  required  in  order  to  convert  the  estate  into  money 
and  distribute  the  same.  This  would  include  the  expenses  in- 
curred going  to  and  from  the  Probate  Court  for  the  purpose  of 
getting  out  letters,  filing  inventories,  sale  bills,  accounts,  and 
such  like  matter.  It  would  also  include  ordinary  eiforts  to 
collect  accounts  or  notes  due  the  estate,  and  sell  the  personal 
property  or  real  estate  if  it  be  required.  If  a  trip  to  another 
State  was  necessary  to  attend  to  some  matter,  this  might  be 
considered  an  extraordinary  expense,  or  if  it  was  found  proper 
to  have  the  will  of  the  decedent  construed,  or  if  there  Avas  real 
estate  which  required  looking  after  for  a  short  time."^     Extra 

92Speirs   vs.    Wisner    (Mich.),   50  93 /n  re  Wolf,  4  N.  P.  336;  7  Dec. 

N.  W.  Rep.  654;   Contra,  Carver  vs.  220.     See  §  1644,  As  to  assignees. 
Hallett.  26  Ala.  722.  See  §  508  as  to  attorney  fees,  etc. 

92*  McIMahon   vs.   Ambach,   79   O.  See  next  section. 
S.  110. 

92a  See  statute,   §  654. 


581 


EXTRA    COMPENSATION 


§659 


compensation  will  not  be  allowed  especially  where  an  unusual 
amount  of  time  was  expended  in  settling  a  dilference  growing 
out  of  a  misunderstanding  between  the  executors,*** 

Likewise  it  has  been  held  that  where  an  executor  refused  to 
obey  the  order  of  the  Court  to  file  an  account,  although  served 
with  five  citations,  he  should  not  receive  an  allowance  for  extra 
services.''^  Where  extraordinary  expenses  are  incurred  in  se- 
curing the  appointment,  they  may  be  allowed,  as  where  an  ad^ 
ministrator  went  to  New  Orleans,  and  had  the  will  set  aside.''*' 
Claims  made  by  the  executor  or  administrator,  for  extra  com- 
pensation for  his  individual  services,  in  connection  with  the 
administration  of  his  trust,  should  be  scrutinized  with  the 
strictest  care.  If  they  are  such  that  do  not  properly  come 
within  the  ordinary  duties  of  an  administrator,  they  should  be 
allowed,  for  the  law  does  not  expect  the  trustee  to  render  services 
without  compensation.  But  it  should  also  be  remembered  that 
the  statute  fixes  a  sum  which  it  considers  a  proper  and  full 
p,ayment  for  all  services  that  may  be  rendered  in  the  administra- 
tion of  the  estate,  unless  something  is  required  beyond  the  usual 
requirements  of  a  proper  administration.  Where  extra  compen- 
sation is  asl^d,  to  reimburse  an  administrator  or  executor  for 
expenses  incurred,  a  more  liberal  rule  might  be  applied  than 
if  the  executor  was  asking  extra  allowance  for  himself.  An 
executor  or  administrator  might  be  allowed  a  claim  for  serv- 

flling  of  a  petition  to  sell  real  estate, 
where  nothing  else  was  required, 
nor  the  public  sale  of  chattels,  nor 
collection  of  dividends  on  stock,  nor 
the  apjnaising  of  and  sale  of  lands 
as  an  entirety,  but  that  preparation 
of  papers  for  privsite  sale  of  per- 
sonal propert3%  or  the  sale  of  real 
estate  where  care  is  required,  and 
where  suit  to  construe  the  will  is  re- 
quired, and  where  lands  were  sub- 
divided, and  where  constant  atten- 
tion is  required,  extra  compensation 
may  ho  allowed. 

95  Cairns  vs.  Hedges,  2  C  C.  103; 
1   C.  D.  387. 

96  Huston  vs.  King.  3  Bull.   1147. 

The  executor  is  not  bound  to  as- 
sume the  defense  of  a  will,  but  if  he 
does  so  in  a  disinterested  effort  io 
maintain  it,  to  effectuate  the  inten- 
tion of  the  testator,  he  may  be  al- 
lowed his  expenses.  P>ut  where  he  is 
a  legatee,  and  that  a  special  bequest 
to  him  invites  the  attack,  it  will 
not  be  allowed.  Wei'-  vs.  Weir, 
7  C.  C.  (N.S.)  506;  28  0.  C.  C. 
190. 

Vven  if  by  agreement  with  the 
parties,  it  is  sijstained.  Union  Bank 
vs.  Smith,  4  C.  C.  (N.S.)  237: 
2fi  O.  C.  C.  317;  affirmed  74  0.  S. 
505. 


and   the 
previous 


9*7n  re  Johnson,  4  N.  P.  156; 
7  Dec.   1. 

Two  very  interesting  cases  have 
been  reported  from  the  Common 
Pleas  Courts  in  Ohio,  in  relation  to 
both  extraordinary  services  allowed 
to  executors  and  administrators,  and 
to  their  attornevs.  The  case  of  In 
re  McAlpin,  38'  Bull.  231;  8  Dec. 
655,  has  been  referred  to, 
syllabus  is  quoted  ii 
chapter.     §  508. 

Ihe  other  case  is  that  of  Chatfield 
&  ^^■oods  vs.  Swing  &  Mellen,  7  A. 
L.  R.  326.  In  this  case  the  execu- 
tors were  also  attmneys,  the  estate 
amounted  to  $171,000  and  they  pre- 
sented a  bill  for  extraordinary  serv- 
ices of  $24,000.  The  Court  in  pass- 
ing upon  the  matter  goes  into  the 
question  very  thoioughly  as  to  what 
are  extraordinary  services,  and  what 
should  be  included  within  the  com- 
mon course  of  ndministrntion.  for 
which  the  enmmiss-i'Mi  allowed  by 
fitntnte,  should  nav  ihe  ey^eutors  in 
full.  While  concf'diTTr  f?rit  an  ex- 
ecutor might  be  allowed  counsel  fees 
for  his  own  se''vice=,  the  bill  was 
reduced  to  $4,000.  Tn  this  case  it 
was  held  that  the  eriving  of  a  large 
bond  did  not  warrant  an  allowance 
as   extraordinary    services,    nor    the 


§  659  PAYMENT   OF   DEBTS  582 

ices  rendered  in  behalf  of  the  estate  by  others,  even  if  they 
were  such  services  that  he  himself  should  have  rendered  in  the 
ordinaiy  administration  of  an  estate.'*'' 

An  executor  who  necessarily  incurs  expense  in  searching  the 
title  of  land  belonging  to  his  testator's  estate  for  the  purpose  of 
paying  off  and  obtaining  an  assignment  of  a  mortgage  thereon 
should  be  allowed  the  sum  so  paid  in  the  settlement  of  his 
accounts.^* 

Executors  who  have  invested  trust  funds  in  a  bond  and  mort- 
gage which  are  perfectly  good,  are  not  entitled,  on  final  account- 
ing, to  the  expenses  incurred  by  them  on  a  sale  and  transfer  of 
such  bond  and  mortgage  before  maturity  to  a  third  person.''® 

Where  a  will  provides  that  the  expenses  of  administration 
shall  be  charged  upon,  and  paid  out  of,  the  estate  of  the  testa- 
tor, both  real  and  personal,  the  administratrix,  to  whom  one- 
half  of  the  estate  has  been  devised  for  life,  and  who  is  the  as- 
signee of  the  other  half,  is  not  personally  liable  for  such  ex- 
penses.'"° 

Where  an  executor  failed  to  render  an  account  until  forced  to 
do  so  by  process  of  Court,  and  various  items  of  the  account  filed 
by  him  were  contested  and  disallowed,  he  cannot  reimburse 
himself  from  the  estate  from  expenses  caused  by  such  contest.^°^ 
The  expenses  of  hunting  up  the  heirs  cannot  be  charged  to  the 
estate. ^^^  Nor  the  expense  of  looking  out  for  one's  own  in- 
terest."^ 

97  Though  an  executor  will  be  al-  Y.   Supp.   975 ;    S.   C.   3   Misc.   Rep. 

lowed    his    bill    for    reasonable   and  155. 

necessary    livery    expenses,    he    will  102  in   re   Glynn's    Estate,   58    X. 

not  be   allowed   for  the  use   of  his  W.   Rep.  684. 

o\\Ti  horse   and  wagon   in   collecting  103  Id. 

the  assets  of  decedent's  estate.     In  Entitled     to     railroad     fare     and 

re  Ingersoll,  6  Dem.   Sur.   184.  hotel    bills   while   traveling    in    dis- 

98 /ot   re    Bettels,    4    N.    Y.    Supp.  charge    of     duties;     also    telephone 

393.  bills.     But  not  a  per  diem  and  ex- 

99  7w  re  Lamb's  Estate,  21  X.  Y.  penses     in    traveling     in     the    com- 

Supp.   343;   S.  C.  66  Hun.  631.  munitv  where  the  estate  is  located. 

lOOBovnton  vs.   Laddv,   10  N.  Y.  In  re  "Pollock,  60  Bull.  273;    17  N. 

Supp.  622;   S.  C.  57  Hiin.  580,  594.  P.  495. 

The   cost   of    raising   a   fund,    in-  The  mere  fact  that  the  allowance 

eluding     counsel     fees,    auctioneer's  to   an  administrator  for  extraordi- 

charges.  commissions,  etc.,  fall  upon  nary    services    rendered    his    estate 

the    fund,    and    are    chargeable    as  seems  somewhat  large  will  not  war- 

"costs    of    administration."      Teaf's  rant  the  Circuit  Court  to  error  in 

Estate.  7  Pa.  Co.  Ct.  Rep.  463.  reversing    the    Probate    Court,    the 

101  In  re  Goetsehius'  Estate,  23  N.  Common  Pleas  Court  on  appeal  hav- 


583  AGENT  OFFICE   RENT,    ETC.  §  660 

§  660.     Employment  of  agent,  office  rent,  etc. 

As  a  general  nile  administrators  and  executors  are  not  au- 
thorized to  employ  agents  to  do  such  things  as  they  ought  to  do 
themselves.  That  is,  to  keep  their  accounts,  to  collect  bills,  etc. 
Nor  would  they  be  entitled  to  charge  for  office  rent.  But  cases 
are  easily  conceivable  where  the  magnitude  of  the  estate,  or  the 
complication  of  its  affairs,  would  amply  justify  the  payment 
of  office  rent.^°*  One  of  the  most  common  instances  of  employ- 
ment in  the  management  of  estates,  is  that  of  an  attorney. 
Such  employment  has  been  considered  in  a  previous  chapter. ^'*'' 

It  will  be  the  purpose  of  this  section  to  give  some  instances 
of  what  have  been  considered  proper  expenses.  Of  course  in 
all  these  instances,  the  administrator  or  executor  is  primarily 
liable,  unless  expressly  stipulated  to  the  contrary,  when  the 
services  were  rendered.  An  executor  is  not  entitled  to  credits 
for  clerk  hire,  where  the  evidence  does  not  show  payment  to 
a  clerk,  but  a  retention  of  funds  by  the  executor  for  services 
performed  by  himself  as  clerk. ^^® 

Usually  an  administrator  is  not  entitled  to  credit  for  sums 
paid  for  clerical  services  rendered  in  his  capacity  as  executor.^"^ 
The  employment  or  payment  of  agents  by  an  executor  to  collect 
the  rents  of,  and  manage  certain  real  estate  belonging  to  his 
decedent's  estate  is  not  wasteful  or  extravagant,  where  such 
real  estate  consists  of  a  drug  store  with  apartments  above. ^"^ 
It  is  proper  to  allow  an  administrator  for  rent  of  an  office  hired 

ing  fixed  the  same  amount.   Prentiss  107  Jn  re  Beache's  Estate,  22  N.  Y. 

vs.  Woods,  20  O.  C.  C.    (N.S.)   380.  Sunp.  1079;  S.  C.  1  Misc.  Rep.  27. 

Before      an      administrator      can  Where  a  resident  executor  removes 

be   allowed    extra   compensation    he  from  the  State  before  settlement  of 

must  show  his  right.     Piatt  vs.  St.  the  estate,  he  will  not  be  allowed  for 

Clair's  heirs,  W.  526.  payment  to  any  agent  in  completing 

104  Redf.  Sur.  Prac.  451.  the  unfinished  business,  performance 

105  §  508.  of   which   by   himself  was   rendered 
Whatever   services  were   rendered  impossible    by    his    absence,    or    for 

as  indicated  to  be  proper  in  §  506  traveling  expenses  incurred  in  re- 
would  be  a  service  for  whicli  the  es-  turning  to  the  State.  In  re  Tnger- 
tato  would  be  liable.  soil,  6  Dem.   Sur.   184. 

lOfi  Jn  re  Butler's  Estate,   1   Con.  los  Wells   vs.   Disbrow,   20   N.   Y. 

Sur.  58;  S.  C.  9  N.  Y.  Supp.  641.  Supp.  518;   S.  C.  65  Hun.  625. 


§  660  PAYMEA^T    OF    DEBTS  584 

by  him  exclusively  for  the  business  of  the  estate,  when  the  use 
of  such  office  is  reasonably  necessary  for  the  transaction  of  such 
business,  and  also  for  payments  made  by  him  for  reasonable 
and  necessary  services  rendered  in  prosecuting  claims  belonging 
to  the  estate,  and  for  money  paid  in  compromise  of  doubtful 
claims  against  the  estate/"^  The  administrator  is  entitled  to 
the  costs  of  preserving  the  crops  belonging  to  the  estate/^"  and 
expenses  incident  thereto,^^^  and  for  feeding  and  caring  for 
stock,^^^  and  gathering  crops/^^ 

A  direction  in  a  will  to  raise  crops  does  not  authorize  the 
purchase  of  property  and  anim.als  not  necessary  to  such  rais- 
ing/^* The  expenses  of  a  broker  to  sell  real  estate  may  be  al- 
lowed if  necessary ;  ^^^  or  an  auctioneer/^*'  The  costs  of  re- 
freshments furnished  those  at  the  sale  will  not  be  allowed.^^' 
Traveling  expenses  not  included  in  commissions,"^  will  be 
allowed  if  necessary  to  the  transaction  of  the  business  of  the 
estate."''  The  costs  of  an  audit  caused  by  unfounded  charges 
of  an  executor  are  properly  charged  to  him/"" 


i09Newal    vs.    West,     149    Mass.  258;    Ballentine's   Estate,   Myr.   86 

520;     S.    C.    21    N.    E.    Rep.    954;  us  Pinckard  vs.  Pinckard,  24  Ala. 

Qlover    vs.    Holley,    2    Biadf.    291;  250;   Garrett  vs.  Garrett,  2  Strobh. 

Hawley    vs.    Singer,    3    Dem.    589;  Eq.    272;    Shepard    vs.    Shepard,    19 

Clarke  vs.  Cotton,  2  Dev.  Eq.  51.  Fla.  300. 

110  Nimmo  vs.  Com.,  4  Hen.  &  M.  See  §  1644,  assignee's  commission 
57;  Lee  vs.  Lee,  6  Gill  &  J.  316;  Ingham  vs.  Lindeman,  37  O.  S.  218, 
Byrd  vs.  Wells,  40  Miss.  711;  Wat-  where  an  assignee  was  not  allowed 
ties  vs.  Hyde,  9  Conn.   10.  an  auctioneer. 

Succession  of  Wsderstradt,  19  La.  ht  Griswold  vs.  Chandler,  5  N.  H. 

Ann.  494.  492. 

111  Bomford  vs.  Grimes,  i7  Ark.  us  Stephenson  vs.  Stephenson,  3 
567;  Bantz,  52  Md.  680;  Edelen  vs.  Hayw.   123. 

Edelen,    11   Md.   415;    Myrick's   Es-  us  Clarke  vs.  Blount,  2  Dev.  Eq. 

tate.  38  La.  Ann.  611.  51;   Pinckard  vs.  Pinckard,  24  Ala. 

112  Branham  vs.  Com.,  7  J.  J.  Mar.  250;  Wendell  vs.  French,  19  N.  H. 
190.  203:  Doy  vs.  Codman,  39  N.  J.  Eq. 

113 /n  re  Turpin's  Estate,  7  N.  P.  259;    In  re   Rose's   Estate,   80   Cal. 

569;  5  Dec.  410.  166;  S.  C.  22  Pac.  Rep.  86. 

114  Johnson  vs.  Henagan,  11  S.  C.  120  Appeal    of    Barheite,    126    Pa. 

93.  St.  404;   S.  C.  24  W.  N.  C.  64;    17 

iisDey  vs.  Codman,  39  N.  J.  Eq.  Atl.  Rep.  617. 


585  ALLOWANCE  MADE  WIDOW.   ETC.  §  661 

§  661.     Allowance  made  to  the  widow  and  children. 

A  claim  entitled  to  be  paid  after  the  funeral  expenses,  those 
of  last  sickness,  and  expenses  of  administration,  is  the  allow- 
ance made  to  the  widow  and  children  for  their  support  for 
twelve  months.  The  nature,  character  and  law  relating  to 
such  allowance  has  been  discussed  in  a  previous  chapter.^^^ 
Sufficient  here  to  say,  that  such  an  allowance  is  not  a  preference 
over  a  mortgage  or  judgment  liens.^^"  Such  property  as  is  spe- 
cifically set  apart  to  the  widow  passes  at  once  intO'  her  posses- 
sion, and  it  is  the  duty  of  the  administrator  or  executor,  as  soon 
as  he  has  in  his  hands  assets  sufficient  to  pay  the  funeral  ex- 
penses, expenses  of  last  illness  and  costs  of  administration, 
to  apply  enough  of  the  remaining  assets  to  satisfy  this  debt. 
For  the  allowance  made  to  a  widow  and  her  children  for  her 
year's  support,  is  a  debt,  and  real  estate  may  be  sold  to  secure 
its  payment.^^^ 

§  662.     Debts  due  the  United  States. 

The  third  in  order  of  preference,  are  debts  due  the  United 
States.  The  following  are  the  two  sections  of  the  Revised 
Statutes  of  the  United  States  which  provide  generally  as  to  such 
preferences. 

"  Whenever  any  person  indebted  to  the  United  States  is  insol- 
vent, or  whenever  the  estate  of  any  deceased  debtor,  in  the 
hands  of  the  executors  or  administrators,  is  insufficient  to  pay 
all  the  debts  due  from  the  deceased,  the  debts  due  to  the  United 
States  shall  be  first  satisfied ;  and  the  priority  hereby  estab- 
lished shall  extend  as  well  to  cases  in  which  a  debtor,  not  having 
sufficient  property  to  pay  all  his  debts,  makes  a  voluntary  as- 
signment thereof,  or  in  which  the  estate  and  effects  of  an  ab- 
sconding, concealed,  or  absent  debtor  are  attached  by  process 
of  law,  as  to  eases  in  which  an  act  of  bankruptcy  is  commit- 
ted." "" 

1-1  s  310  ct  scq.  ^oe  also  Whitley  vs.  Weber,  2  C.  C. 

122  Jones  vs.   Allen,   6  N.   P.   513.       33G;  1  C.  D.  517;  See  §332. 

123  Allen  vs.  Allen,   18  0.  S.  235;  124  §  34GG,  U.  S.  Eevised  Statutes. 


§663 


PAYMENT    OF    DEBTS  586 


This  priority,  however,  does  not  operate  as  a  lien  upon  the 
property  of  the  debtor,  nor  in  derogation  of  a  lien  existing  be- 
fore his  death,  nor  of  the  widow's  allowance  under  the  State 
law,  and  necessarily  depends  upon  notice  being  given  to  the 
executor  or  administrator  either  by  action  against  him  or  other- 
wise in  default  of  which  payment  to  other  creditors  cannot 
make  him  liable  as  for  devastavit.  And  the  priority  extends 
only  to  the  net  proceeds  of  the  property  of  the  deceased  after 
payment  of  the  necessary  expenses  of  administration,  includ- 
ing taxes  and  funeral  charges,  but  not  expenses  of  last  illness.^^* 

§  663.     Taxes,  etc. 

Public  rates  and  taxes,  and  sums  due  the  State  for  duty  on 
sales  at  auction,  is  the  fifth  in  order  of  preference.  It  is  a 
general  rule,  that  taxes  whether  on  real  estate  or  personal  prop- 
erty, which  are  assessed  or  payable  at  the  death  of  the  de- 
cedent, are  to  be  paid  by  the  administrator  or  executor  out  of 
the  personal  property.  Taxes  assessed  on  real  estate  after  the 
demh  of  the  owner,  are  to  be  paid  by  those  receiving  the  in- 
heritance. There  may  be  taxes  which  the  administrator  or 
executor  is  required  to  pay  which  are  not  included  within  this 
preference.^-^*  Thus  it  has  been  held,^-^  that  the  term  taxes  does 
not  include  assessments  made  by  a  municipal  corporation  under 
authority,  derived  from  the  legislature;  and  although  such  an 
assessment,  which  was  confirmed  at  the  time  of  the  decease  of 
the  testator,  is  a  personal  debt,  and  should  be  paid  out  of  the 
personal  estate,  it  is  not  entitled  to  any  priority  before  other 

"Every    executor,     administrator,  !See  §  10662  G.  C,  §  300b. 

or    assignee,    or    other    person,    who  Wliere     a     life     tenant     died     in 

pays  any  debt  due  by  the  person  or  October  the  taxes  payable  in  Decem- 

estate  from  whom   or  for  which   he  ber  are  a  claim  on  the  life  tenant's 

acts,    before    he    satisfies    and    pays  estate,  and  if  the  executor  does  not 

the  debts  due  to  the  United  States  pay   them   the   remainder   man   may 

from  such  person  or  estate,  shall  be-  and    recover   them   from   the    execu- 

come  answerable  in  his  own  person  tor.     Robinson  vs.  Bouler,  18  C.  C. 

and  estate   for  the  debts  so  due  to  (X.S.)    372. 

the  United   States,  or  for   so   much  127  Seabury   vs.    Bowen,   3   Bradf. 

thereof  as  mav  remain  due  and  un-  207;    Redf.   Sur.  Prac.  549. 

paid."     §3467,  U.  S.  Revised  Stat-  See    §§511.    1202,    1392. 

utes.  If   the  testator   died   on   the  day 

126  Woerner  on  Admin.  772.  preceding    the    second    Monday    in 

126a  The    administrator   or   execu-  April,  the  heir  or  trustee,  and  not 

tor    must    see    that    the    inheritance  the  executor,  should  pav  the  taxes, 

tax  is  paid.     §349.     State  vs.  Bond-  In  Est.  of  O'Brien,  2  X.  P.    (X.S.) 

ing   Co.,    16   N.   P.    (X.S.)    297;    23  421:    14   Dee.   319.      It   would   have 

Dec.  609.  been  different  it  he  would  have  died 

a  few  davs  later. 


587  TAXES  §  663 

debts.  It  would,  therefore,  seem  that  the  taxes  which  are  intended 
by  the  law  to  be  preferred,  are  those  which  are  collected  for  State 
and  county  purposes  generally.  The  question  sometime  arises 
as  to  the  time  when  these  taxes  become  tixed,  so  as  to  charge  the 
administrator  or  executor  with  their  payment.  By  statutory 
provision,  personal  property  is  required  to  be  listed  on  the  second 
Monday  of  April,^-^  and  a  lien  for  State  taxes  attaches  on  the 
same  day.^-^ 

As  is  well  known,  the  rate  of  taxes  is  not  fixed  until  a  later 
date.  The  State  auditor  gives  notice  of  the  rate  required  for 
State  purposes  on  the  first  Monday  of  June,^^°  and  the  county 
commissioners  at  the  June  session  fix  the  amount  to  be  raised, ^^^ 
and  township  trustees  on  or  about  the  loth  day  of  May,  deter- 
mine the  amount  that  they  deem  necessary  for  township  pur- 
poses.^"^* 

As  to  real  estate,  the  amount  is  not  charged  on  the  auditors 
duplicate  until  the  first  of  October.  If  a  person  dies  after  the 
second  Monday  of  Ajjril,  and  before  October  first,  should  the 
personal  representative  or  the  heir  pay  the  taxes  on  the  real 
estate?  Just  at  what  time  this  period  becomes  fixed  so  as  to 
charge  an  executor  or  administrator,  has  not  been  passed  upon 
by  our  courts.  In  one  case,  however,  it  was  held,  that  the  assess- 
ment of  taxes  was  so  far  complete  by  the  second  Monday  of 
July  that  the  name  of  the  person  assessed  for  the  year  could 
not  be  changed;  and  hence  if  the  owner  died  on  that  date  the 
taxes  were  properly  chargeable  against  his  representative. "- 

In  New  York,  property  is  to  be  listed  between  the  first 
Monday  of  September  and  the  first  Monday  of  January.  There 
it  was  held  that  the  party  who  owned  the  property  between 
that  date,  and  died  after  the  first  Monday  in  January,  although 
the  rate  had  not  been  finally  fixed,  his  estate  would  be  charge- 
able. ^^'^ 

128  §  3375  G.  C.  Columbiana      county      that      taxes 

129  §  .5671   G.  C.  ajjainst     a     decedent's     real     estate 

130  §  .5626  G.  C.  accrue  and  are  payable  from  October 

131  §  5627  G.  C.  and  §  5630  G.  C.       1st.    not   second    Monday   of    April, 
131*  §§  5646,  5647  G.  C.  hence    are    chargeable    against    the 

132  Loomis  vs.  Van  Phul;  cited  in  heir  and  not  the  administrator.  In 
Morrison  vs.  Bruce,  1  Dec.  190.  this  case  a  number  of  authorities  are 

Recent  decision  of  Hamilton  Com-  cited,  but  there  seems  to  be  no  better 

men    Pleas,    In    re    Est.    of    Mary  reason   for   fixing  October   1st  than 

O'Brien,   it  is   held  that  where  the  the  second  Monday   in  April.     The 

owner  died  testate  the  day  on  which  heir  does  not  generallv  get  full  pos- 

the  taxes  became  a  lien,  but  which  session  on  the  death  of  the  ancestor, 

wore   not   ascertained    or    levied    at  If  when  the  ancestor  died  the  land 

the   time,   having   appointed   an  ex-  Avas   seeded,   the   entire   crop   would 

ecutor  and  also  a  trustee  of  a  por-  go  to  the  administrator,  even  though 

fion   of  the  real   estate,  the  trustee  it  did  not  mature  for  nine  months, 

thereupon  became  the  owner  of  the  However,   the    date   of   October    1st 

real    estate,    and    he,    and    not    the  being   in   the   fall   when   nearly   all 

evonitor    is    liable    for    the    taxes.  the  crops  are  matured,  it  might  he 

Loomis  vs.  Van  Phul.  14  Dec.  31P:  better  for  that   reason   than   April, 

ronorted  in  2  N.  P.    (N.S.)    423;   15  But   the   decisions   are  not  uniform 

T^f'f-   37.  rior  in  accord.     Where  a  life  tenant 

Jn    re    Lones,    57    Bull.     172,    it  died   in   Oetober,    1009,   it  was  held 

is   held   by  the   Probate   Court   of  the    administrator    must    pay    the 


§  664  PAYMENT   OP   DERTS  588 

In  view  of  these  decisions  it  may  properly  be  considered,  that 
if  the  person  be  living  on  the  second  Monday  of  April  that  his 
estate  will  be  chargeable  with  all  taxes  to  be  assessed  for  that 
year.  As  to  the  lien  of  assessments,  our  Supreme  Court  has 
recently  made  an  interesting  decision.^^* 

Installments  of  assessments  for  municipal  improvements 
which  are  certified  to  the  county  auditor  and  are  due  and  pay- 
able within  the  year  next  after  the  last  day  of  September  in 
any  year,  should  be  placed  upon  the  duplicate  of  the  county 
for  such  year  and  collected  as  other  taxes;  the  installments 
not  so  due  and  payable,  should  not  be  placed  upon  the  annual 
duplicate  until  they  become  so  due  and  payable.^^*^ 

Installments  which  are  properly  entered  upon  the  annual 
county  duplicate  should  be  collected  the  same  as  other  taxes, 
and  in  case  of  a  judicial  sale  of  real  estate,  or  a  sale  by  ad- 
ministrators, executors,  guardians  or  trustees,  made  after  tha 
last  day  of  September  in  any  year,  such  installments  as  stand 
unsatisfied  upon  such  duplicate  should  be  paid  out  of  the  pro- 
ceeds of  such  sale.  It  has  generally  been  held,  that  a  claim  for 
taxes  is  such  a  one  as  should  be  paid  by  the  personal  represen- 
tative even  without  presentation  to  him,  or  allowance  by  tha 
Court,  but  that  it  may  also  be  proved  up  as  a  claim  against 
the  estate  in  the  Piobate  Court  like  other  demands/^^ 

§  664.    Wages. 

The  fifth  in  order  of  preferment  is  the  wages  which  are  due 
to  a  person  who  has  performed  manual  labor  in  the  service  of 

taxes  due  December  20,  1909.    Rob-  omitted;  and  that  such  taxes  are  a 

inson  vs.  Bouler,  18  0.  C.  C.  (N.S.)  debt  of  the  deceased,  and  shall  have 

272.  the  same  priority  as  other  taxes  in 

133  Matter  of  Balcock,  115  N.  Y.  distribution  or  payment  of  inferior 
450;    Jes.   Sur.   Prac.   944.  debts    or   claims   that   shall    relieve 

134  Makeley  vs.  Whitmore,  61  0.  the  administrator  or  executor  from 
S.  587.  liability    to    pay    such    taxes.      See 

See  §§  895,  904,.  also     §"511,    as    to    taxation.       See 

134a  Where    decedent    during    his  §  904. 

lifetime     eiTected     insurance     in     a.  A   guardian   or   executor,   etc.,    is 

mutual   fire   insurance  company  his  entitled  to  a  lien  on  the  land  for  his 

estate   is   liable   for   assessments   up  expense    or    money    paid    in    listing 

to  the  time  of  his  death  and  jointly  property    for    taxation,    or    paying 

with  the  heirs  thereafter  during  the  taxes  thereon.     §  5687  G.  C. 

life  of  the  insurance,     hi  re  Lones,  Executors  who  hold  property  for  a 

57   Bull.   123.  term  of  years  and  required  to  pay 

135  See  Gager  vs.  Prout,  48  0.  S.  taxes,  are  owners,  and  should  be  no- 
89,  where  the  matter  is  discussed  as  tiiied  when  assessment  is  made, 
to  the  correction  of  false  returns.  Roberts  vs.  Bernard,  8  C.  C.  (N.S.) 
§§  106G0,   10665  G.   C,  presented   in  422;  29  0.  C.  C.  725. 

§  300,  provides  for  placing  property  Funds  in  the  hands  of  an  admin- 

on    the    duplicate,   which    has    been       istrator,  even  though  under  order  to 


589  TAXES  §  665 

the  estate  and  during  the  life  time  of  the  decedent,  where 
the  same  has  been  performed  within  twelve  months  preceding 
the  death  of  the  decedent,  the  amount  allowed  shall  not  exceed 
$150.  It  will  be  observed  that  there  are  several  essentials  to 
entitle  a  person  to  this  preference.  First,  it  must  be  man- 
ual labor;  second,  it  must  have  been  rendered  to  the  deceased 
during  his  life  time,  and  third,  it  must  have  been  performed 
within  twelve  months  previous  to  the  time  of  the  decedent's 
death ;  and  if  these  three  essentials  are  established,  the  claim  can 
be  allowed  as  a  preference  to  the  amount  of  $150.  If  such  a 
claim  exceeds  $150,  the  remainder  would  come  in  the  same 
class  as  debts  due  to  general  creditors.  There  may  be  some 
difficulty  sometimes  in  determining  just  what  is  included 
within  the  tei-m  "manual  labor."  It  usually  signifies  labor 
with  the  hands  as  distinguished  from  intellectual  labor.  Un- 
der an  act  giving  the  preference  to  employees,  it  has  been  held 
that  a  tram  car  driver  is  not  a  person  engaged  in  manual  labor. 
Likewise,  that  an  omnibus  conductor  was  not  a  person  engaged 
in  manual  labor."® 

§  665.     Debts  due  general  creditors. 

If  the  administrator  or  executor  has  sufficient  assets  of  the  es- 
tate to  pay  those  creditors  preferred  by  sec.  10714-5,  G.  C,  as  dis- 

pay   on   certain   mortgages,   is   tax-  ers,"  and  I  can  not  see  that  a  driver 

able.     Gregg  vs.  Harimon,  4  N.   P.  is     a     man     "engaged     in     manual 

(N.S.)  214;  16  Dec.  549.  labor,"  to  whom  the  act  is  intended 

136  14  Am.  &  Eng.  Ency.  of  Law  to  apply. 

255.  Grantham,  J.,  said:     "It  is  very 

"It  is  said  that  manual  labor  in-  difficult  to  draw  a  clear  and  definite 
eludes  any  work  done  with  the  line  as  to  how  much  and  what 
hands.  But  writing,  for  instance,  classes  of  work  are  included  in  the 
is  clearly  not  manual  labor  within  words  'manual  labor';  but  I  think 
the  meaning  of  the  Act,  but  yet  it  that  these  words  were  inserted  in 
would  come  under  the  definition  the  section  with  a  view  to  being  ap- 
contended  for,  if  it  were  a  good  one.  plied  to  those  whose  labor  is  labo- 
Again,  can  it  be  said  that  a  tele-  rious  without  being  intellectual.  The 
graph  clerk  is  a  manual  laborer,  or  ordinary  definition  of  labor  is  con- 
a  hair  cutter?  Clearly  not.  Is,  tinuous  work  without  any  necessity 
then,  a  driver  to  be  taken  to  come  for  very  much  thought.  Unless, 
within  the  meaning  of  the  clause  therefore,  driving  can  be  said  to  be 
merely  because  he  works  with  his  labor  of  such  continuous  kind  re- 
hands?  I  can  see  no  distinction  be-  quiring  little  thought,  it  does  not 
tween  his  case  and  thope  I  have  come  within  the  meaning  of  the 
taken  as  examples — namely,  a  tele-  Act." 

graph  clerk,  a  writer,  or  a  hair  cut-  See  In  re  Kohanzi,  where  the  ad- 

ter.     All  have  manual  work   to  do,  ministrator  paid  laborers  in  a  going 

but  that  does  not  necessarily  make  concern,   16  N.  P.  337. 
them   come  under  the  term   "labor- 


§  666  PAYMENT   OF   DEBTS  590 

cussed  in  the  previous  sections,  the  remainder  is  to  be  applied 
to  other  creditors.  The  statute  further  provides,  that  if  after 
paying  one  of  said  classes  and  there  is  not  enough  to  pay  the 
debts  of  the  next  class,  the  creditors  of  said  next  class  shall  be 
paid  ratably  in  proportion  to  their  respective  debts,  but  that 
no  payment  shall  be  made  to  creditors  of  any  one  class  until 
thosQ  of  the  preceding  class  or  classes  of  whose  claims  the 
executor  or  executors  shall  have  had  notice  shall  be  fully  paid. 
If  the  administrator  makes  payment  upon  a  claim  in  any  one 
of  these  classes  before  the  expiration  of  six  months,  he  does  so 
at  his  peril.  After  the  expiration  of  six  months,  however,  he 
can  make  payment  without  being  liable  to  a  creditor  of  a  pre- 
ceding class.^^"^  It  is  not  the  intention,  however,  of  the  legisla- 
ture, by  giving  the  preference  to  creditors  to  interfere  in  any 
respect  whatever  with  liens  existing  and  attaching  to  the  prop- 
erty of  the  deceased,  be  the  same,  either  real  or  personal.  A^ 
to  personal  property,  the  law  has  placed  this  matter  beyond 
question  by  the  following  section  of  the  General  Code."'' 

§666.  Previous  section  (10715)  not  to  affect  lien.  "Noth- 
ing in  the  next  two  preceding  sections  shall  affect  any  lien,  legal 
or  equitable,  which  a  creditor  or  other  person  had  upon  the 
personal  estate  of  the  deceased  during  his  lifetime."  [R.  S. 
5  (JUyi.J  1^^ 

This  section  preserves  the  rights  of  parties  as  existing  at 
the  time  of  the  death  of  the  decedent.  It  would  perhaps  have 
been  unconstitutional  to  have  attempted  to  take  away  rights 
of  this  character,  property  subject  to  a  lien  of  any  character 
should  be  sold,  the  lien  paid  and  the  remainder  placed  to  the 
credit  of  the  general  fund.  The  rights  of  lien  holders  to  the 
proceedings  of  real  estate  will  be  discussed  when  treating  of 

136a  See  §§645  and  667.  vs.  Brooks,  25  Ark.  318;  Fox's  Es- 

See  Schell  vs.  Bernhard,  24  Dec.  tate,  92  N.  Y.  93. 

182;  reversed  36  0.  C.  C.  39.  But    specific    property    or    funds 

A   person   dying,   owning   and    in  held    by    him    in    a    trust    capacity 

possession  of  property  which  he  had  must  be  turned  over  to  his  succes- 

mortgaged,  the  interest  of  the  mort-  sor    in     the    trust.       Governor    vs. 

gagee  is  transferred  to  the  fvmd.  etc.  Hooker,    19    Fla.    163:    Rowlev    vs. 

Lineler  vs.  Wesco,  79  0.  S.  225;   3  Fair,   104  Tnd.    189:    Nat.   Bank  of 

N.  P.   (KS.)   653:   16  Dec.  474.  Trov  vs.   Rtanton,  116  Mass.  435. 

See   McDonald    vs.    Aten,    1    0.  See  §  632. 

S.   293:    Grovenor  vs.   Austin.   6  0.  138  §10716  G.  C. 

103;  Lessee  vs.  Beed.  5  O.  221.  A  chattel  mortgage  unfiled  might 

137  Debts  owed  bv  the  deceased  in  be  a  good  lien  as  against  the  heirs 

a  fiduciary  capacitv  have  no  prefer-  of  the   df^ceased.   but  would   not  be 

ence  over  general  creditors.     Green  good    asra'n'st   creditors.     Kilbourne 

vs.  Fav,  20  O.  S.  264. 


591  NOTICE,    OF    DEMANDS  §  667 

tlie  sale  of  real  estate.  Suffice  it  to  say  that  the  holder  of  a 
claim  secured  by  a  lien  may  also  present  his  claim  to  the  ad- 
ministrator or  executor,  duly  verified  as  any  other  claim,  and 
have  it  paid  out  of  the  funds  in  the  hands  of  the  administra- 
tor or  executor.  The  lien  is  merely  security  for  the  payment 
of  the  debt,  and  the  holder  may  waive  the  right  to  proceed 
against  such  security. 

§  667.  When  executor  or  administrator  may  proceed  to  pay 
deibts  without  being  liable  for  deficiency  of  assets.  "If  an 
executor  or  administrator,  notice  of  whose  appointment  has 
been  given  as  provided  in  this  chapter,  does  not,  within  six 
months  thereafter  have  notice  of  demands  against  the  estate, 
which  will  authorize  him  to  represent  it  insolvent,  after  the 
expiration  of  such  six  months,  he  may  proceed  to  pay  the  debts 
due  from  the  estate.  He  shall  not  become  personally  liable  to 
any  other  creditor  in  consequence  of  such  payments  made  before 
notice  of  his  demand,  althousrh  the  remaining  estate  be  insuffi- 
cient to  satisfy  such  creditor."     [R.  S.  §  6109;  102  v.  202.]^^^ 

§  668.    Notice  of  demands,  etc.* 

There  are  several  essentials  required  before  an  administrator 
or  executor  can  proceed  to  pay  debts  of  the  decedent  without 
liability  to  creditors  who  have  not  presented  their  demands.  In 
the  first  place,  the  period  of  six  months  must  have  elapsed 
since  the  administrator  or  executor  gave  his  bond  or  received 
his  letters  of  appointment.  This  depends,  however,  upon  the 
further  fact  that  he  has  given  his  notice  of  appointment,  ^*° 
for  at  no  time  can  he  escape  a  liability  to  general  creditors,  if 
he  neglects  to  give  sudi  notice  of  appointment.  Another  es- 
sential is,  that  sufficient  demands  have  not  been  presented  to 
him,  to  cause  him  to  declare  the  estate  insolvent,^*^  for  if  the 
estate  be  insolvent,  then  it  must  be  paid  out  as  pro- 
il  vided  for  the  settlement  of  insolvent  estates.  The  question 
arises,  what  is  a  sufficient  notice  of  a  creditor's  demand  that 
"will  bind  the  executor  and  make  him  responsible,  if  he  pro- 

139  §  10741  G.  C;   applied  Harris  l^o  See  §  .543  et  seq. 

vs.  O'Connel,  8.5  O.  S.  136.  I4i  See  §  959  et  seq.  on  Insolvency 

Administrator   may   recover   from  of  estates. 

I     heir  if  he  distributes  more  to   lieir  See  8  903. 

\    than  heir  is  entitled  to.     Rogers  vs.  *  Cited  Bray  vs.  Darby,  82  O.  S. 


Weaver,  5  0.  536.  47. 


§  669  PAYMENT     OF    DEBTS  592 

ceeds  to  make  payment  without  recognizing  or  considering  such 
a  demand. 

In  a  previous  chajjter"^  this  matter  has  been  pretty  thor- 
oughly considered,  and  a  quotation  from  Woemer,  there,  places 
the  responsibility  upon  the  creditor,  to  strictly  comply  with  the 
provisions  of  the  statute ;  and  that  in  order  to  hold  an  executor 
or  administrator  responsible,  the  claim  must  be  presented  to 
the  administrator  as  required  by  statute.^*^ 

The  mere  fact  that  an  administrator  or  executor  has  knowl- 
edge that  there  is  a  demand,  will  not  be  sufficient;  for  aught 
that  he  knows  it  may  never  be  presented  for  payment.  But  if 
a  claim  is  presented  to  him  under  such  circiunstances  that 
would  lead  an  ordinarily  prudent  man  to  believe  that  the 
creditor  meant  to  assert  his  claim  against  the  estate,  the  ad- 
ministrator or  executor  ought  not  to  distribute  the  estate  with- 
out notifying  the  creditor  of  his  intention  tO'  so  do.  If  the  ex- 
ecutor or  administrator  so  acts  as  to  lead  a  reasonably  prudent 
man  to  believe  that  no  formal  presentation  is  necessary,  or  that 
the  claim  will  be  allowed  without  a.ny  presentation,  he  would 
be  liable  if  the  creditor's  claim  was  not  considered,  ^^^lile 
the  law  places  certain  duties  upon  the  creditor,  it  does  not 
throw  a  cloak  around  the  executor  or  administrator  which  Avill 
shield  him  from  the  consequences  of  his  own  ^\Tong. 

§  669.  And  if  whole  estate  be  paid  and  afterwards  other 
claims  presented  he  shall  not  be  liable  therefor.  "If  an  ex- 
ecutor or  administrator  in  manner  aforesaid,  pays  away  the 
whole  of  the  estate  and  effects  of  the  deceased  before  notice  of 
the  demand  of  any  other  creditor,  he  shall  not,  in  consequence 
of  such  new  demand,  be  required  to  represent  the  estate  in- 
solvent, but  may  plead  that  fact,  and,  upon  proving  such  pay- 
ments, shall  be  discharged."     [R.  S.  §6110.]^" 

142  §  555.  fects  of  a  deceased,  means  all  his 
1*3  See  §  10717  G.  C.  property;  and  if  a  claim  be  present- 
ly* §  10742  G.  C.  ed  the  real  estate  may  be  sold  even 
See  previous  section.  after  a  partition  by  the  heirs.  Far- 
The   whole  of   the  estate  and   ef-       an  vs.  Robinson,  17  0.  S.  242. 


593  ASSETS — EXHAUSTED  §  670 

?  670.  If  so  paid  away  as  to  leave  insufficient  assets  to 
satisfy  subsequent  claims.  How  far  liable.  "If  an  executor 
or  administrator  in  manner  aforesaid,  pays  away  so  much  of 
the  estate  and  effects  of  the  deceased,  that  the  remainder  is 
insufficient  to  satisfy  a  demand  of  which  he  afterward  has  no- 
tice, on  such  last  mentioned  demand,  he  shall  be  liable  to  pay 
only  so  much  as  may  then  remain  in  his  hands."  [R.  S. 
§6111.]i« 

§  670a.  May  prove  estate  insolvent.  "If  two  or  more  such 
demands  be  exhibited,  which  together  exceed  the  amount  of  assets 
in  his  hands,  he  may  represent  the  estate  insolvent,  and  must 
divide  and  pay  over  what  remains  in  his  hands,  to  and  among 
such  creditors  as  prove  their  debts,  under  the  commission  of 
insolvency,  pursuant  to  such  order  as  the  court  makes  in  that 
behalf.  The  creditors  of  the  deceased,  who  previously  were 
paid  shall  not  be  liable  to  refund  any  part  of  what  was  received 
by  them."     [R.  S.  §  6111.] '^•'>* 

An  important  provision  of  the  above  section  is,  that  it  pro- 
vides that  a  creditor  shall  not  be  obliged  to  refund  any  part  of 
the  money  where  it  has  been  properly  paid  to  him.  It  was  held 
in  an  early  case,  that  where  an  administrator  supposing  an 
estate  to  be  solvent  pays  a  creditor  beyond  his  distributive  share, 
that  he  might  recover  back  the  excess,"*'  whether  this  is  the  law 
now  or  not,  may  be  questionable."^ 

§  671.  If  assets  are  exhausted  in  paying  preferred  claims. 
Executor  or  administrator  not  liable  for  payment  of  subse- 
quent claim.  "Upon  settlement  of  the  administration  account 
in  court,  if  it  appears  that  the  estate  and  effects  which  came  to 
the  hands  of  the  executor  or  administrator  have  been  exhausted 
in  paying  charges  of  administration,  the  allowance  to  the  widow 
and  children  of  the  deceased,  the  charges  of  his  last  sickness 
and  funeral,  or  other  debts  or  claims,  entitled  by  law  to  a 
preference  over  the  general  creditors  such  settlement  shall  be  a 
bar  to  an  action  brought  against  the  executor  or  administrator, 
by  a  creditor  not  entitled  to  such  preference.  The  executor  or 
administrator  may  plead  and  give  it  in  evidence,  although  the 
estate  has  not  been  represented  insolvent.     [R.  S.  §  6112.]"^ 

i4''  §  1074.3   G.   C.  148  §  10745  G.  C. 

''■*"'*  §  10744  G.  C.  It     is     sometimes     the     practice 

148  Rodgcrs  vs.  Weaver,  5  0.  53G.  where    claims    are    presented   which 
147  See   §  9.5fl,  Insolvent  estate. 


I 


§  672  PAYMENT    OF    DEBTS  594 

§  672.     Interest  on  claims. 

As  a  general  laile,  aii  administrator  or  executor  is  not  charge- 
able with  interest  upon  the  money  of  the  estate  in  his  posses- 
sion and  control.  But  where  it  is  tlie  duty  of  an  executor  or 
administrator  to  pay  money  in  his  hands  to  creditors,  legatees 
or  distributees  of  the  estate,  and  he  needlessly  delays  such  pay- 
ment and  neglects  to  make  it  when  such  payment  is  due,  or 
where  he  has  unreasonably  and  causelessly  delayed  the  final 
settlement  of  the  estate,  and  has  used  the  funds  of  the  estates 
for  his  own  purposes,  he  will  be  chargeable  with  interest ;  and 
in  an  aggravated  case  it  is  the  duty  of  the  Court  to  charge  him 
with  compound  interest,  computing  the  interest  annually.^*^ 
The  principle  deducible  from  the  decided  cases  upon  this  sub- 
ject is  that  one  exercising  such  trust  is  liable  for  interest  when 
he  has  improperly  kept  the  beneficiaries  out  of  the  use  of  their 
money ;  and  mere  delay  in  closing  up  an  estate  is  held  to  some- 
times be  prima  facie  evidence  of  this.^^**  As  to  the  liability 
of  the  estate  of  the  decedent  for  interest  upon  claims,  it  may 
be  said  that,  with  the  exception  of  contracts  and  obligations 
which  expressly  bear  interest,  unless  the  statute  prescribes  a 
different  rule,  the  claims  of  creditors  are  to  be  treated  with  re- 
spect to  the  matter  of  interest  just  as  they  stood  at  the  time  of 
the  decedent's  death.^^^  l^o  interest  can  be  allowed  upon  a 
claim,  even  though  demanded,  unless  the  paper  or  contract 
which  is  the  basis  of  the  claim  shows  that  interest  results  as 
a  matter  of  course  from  the  facts  stated.^^^ 

are  not  entitled  to   preference,   and  Brackenridge  vs.  Holland,  2  Blackf. 

the  estate  is  insolvent,   in  order  to  377;   Roberts  vs.  Malin,  5  Ind.   18; 

save  expenses,  a  calculation  is  made  Case  vs.  Case,  51  Ind.  277;  Shaw  vs. 

by  the  executor  or  administrator  as  Bates,  53  Vt.  360. 

to  what  can  be  paid  pro  rata,  and  iso  Manning  vs.  Manning,  1  Johns, 

then  the  creditors  receipt  for  such  Ch.  528;  Dufour  vs.  Dufour,  28  Ind. 

amount  and  release  the  administra-  421;   Norris  App.,  71   Pa.   St.   106; 

tor  from  all  further  liability.     This  Vance  vs.  Vance,  32  La.  Ann.   186. 

mode  can  only  be  pursued  where  all  isi  Schouler    Exrs.    &    Adms.,     § 

creditors  agree.  440;  Davis  vs.  Wright,  2  Hill  Law 

See  §  515,  Investments.  560;  Sue.  Durnford,  1  La.  Ann.  92; 

i*9Cooch   vs.   Irwin,    7   0.   S.   23;  Holmes  vs.  Lusk,  78  Ky.  548. 

Henry     Prob.      Prac.      340;      citing  i52  Aguirre   vs.    Packard,    14    Cal. 

Johnson   vs.   Hedrick.    33   Ind.    129;  171. 


695  INTEREST,    ETC.  §  673 

Interest  should  be  allowed  on  accounts  and  other  claims  pre- 
sented according  to  custom,  and  in  the  same  manner  that  the 
same  could  have  been  collected  if  the  decedent  was  alive. 

General  legacies  bear  interest  at  the  legal  rate,  from  the  end 
of  the  first  year,  from  the  date  of  the  notice  of  the  appointment 
of  the  executor,  unless  it  be  clearly  apparent  that  the  testator 
did  not  so  intend.^^^ 

If  an  administrator  or  executor  pays  pressing  demands  out  of 
his  own  funds,  he  is.  entitled  to  credit  himself  with  interest  on 
the  sum  so  advanced.  ^^* 

§  673.     Payment  to  heirs,  etc.,  before  final  settlement 

An  executor  or  administrator  who  voluntarily  pays,  with 
knowledge  of  all  the  facts,  etc.,  a  part  of  the  assets 
of  the  estate  to  the  widow,  heirs,  or  legatees,  before  the 
final  settlement  of  the  estate,  leaving  insufficient  means  in 
his  hands  to  pay  the  debts  of  the  estate  and  the  expenses  of  ad- 
ministration, and  compensate  himself  for  his  services,  cannot 
recover  from  the  parties  to  whom  such  payments  were  made, 
sufficient  money  for  the  needs  of  the  administration.  The  loss 
is  his,  for  by  such  voluntary  pavment  he  is  guilty  of  waste  and 
is  not  entitled  to  relief.  To  make  such  payment  a  voluntary 
payment  so  asi  to  preclude  a  reooveiy  from  the  distributee,  to 
whom  the  payment  was  made,  it  must  have  been  made  with 
full  knowledge  of  all  the  facts,  or  with  full  opportunity  of  ob- 
taining such  knowledge,  otherwise  such  distributee  is  liable 
to  refund,  if  necessary,  foi'  the  payment  of  the  debts  and  ex- 
penses of  the  estate.^^^ 

As  a  rule  an  overpayment  to  a  creditor,  made  by  the  admin- 
istrator or  executor,  may  be  recovered.      It  being  inferred  that 

153  Gray  vs.  Case  School,  62  O.  S.  is*  See  §   715. 

1.  155  Smith  vs.  Smith,  76  Ind.  236 

The  above  is  the  syllabus  of  the  Stokes    vs.    Goodykoontz,    126    Ind 

case,  and  the  Court  says,  one  year  535;  Wolf  vs.  Beaird,  123  111.  585 

from  the  date  of  the  notice  of  ap-  Rogers    vs.    Weaver,    5    Ohio    536 

pointment.     It  seems  to  us  that   it  Walker    vs.     Hill,     17    Mass.     380 

would   have  been   more  accurate  to  Wheadon    vs.    Olds,    20   Wend.    174 

have  said,  one  year  from  the  date  of  Alexander  vs.  Fisher,  18  Ala.  374. 
giving  bond.  See    §  632^    also   James   vs.    West, 

47  Bull.,  857. 


§673 


PAYMENT    OF    DEBTS 


596 


he  only  intended  to  make  such  payment  as  the  estate  could 
afford,  and  not  to  subject  himself  to  personal  liability  on  ac- 
count of  a  deficiency  of  assets.  This  is,  however,  contrary  to 
the  common  law  rule/^° 

But  it  is  probably  essential  to  a  recovery,  that  such  payment 
has  been  made  under  the  impression  that  the  estate  was  sol- 
vent.'" 

The  better  practice  under  our  statute  is  to  take  a  refunding 
bond  where  a  distributive  share  is  paid  before  final  settlement 
of  the  estate.'^® 


156  Walker  vs.  Hill  17  Mass.  380; 
Hatcher  vs.  Royster,  14  Lea  222; 
Beatty  vs.  Dufief,  11  La.  Ann.  74. 

157  Rogers  vs.  Weaver,  5  Ohio  536 ; 
Walker  vs.  Hill,  17  Mass.  380. 

158  Edmunds  vs..  Scott,  78  Va. 
720. 

See  §  696. 

A  beneficiary  in  an  estate  has  no 
power  under  the  statute  to  receipt 
for  her  distributive  share  in  advance 


of  the  distribution  or  of  a  finding  of 
the  amount  coming  to  her,  and  a  re- 
ceipt so  given  by  her  remains  sub- 
ject to  explanation,  and  an  admin- 
istrator has  no  power  to  negotiate 
for  or  accept  such  a  receipt  where 
the  assets  of  the  estate  have  passed 
out  of  his  hands  and  he  is  therefore 
unable  to  settle  with  the  beneficiary. 
In  re  Kuehnken's  Estate,  8  N.  P. 
6S7. 


597 


PAYMENT   OF   LEGACIES 


§674 


CHAPTER   XL. 

PAYMENT  OF  LEGACIES. 


§  674  Introductory. 

§  G75  Specific  legacy. 

§  616  General  legacy. 

§  677  Demonstrative    legacies. 

§  678  Gifts  of  stock,  etc.,  General  or 
Special. 

§  679  Vested  and  contingent  legacies. 

§  680  Absolute  and  conditional  leg- 
acies. 

§  681  Cumulative,  repeated  and  sub- 
stituted legacies. 

§  682  Stated  amount  and  residuary 
legacies. 

5  683  Lapsed  legacies, 

§  684  Void   legacies. 

S  685  Adeemed  legacies. 

§  686  Satisfied  legacies. 

§  687  Legacies   in  lieu  of  dower. 

§  688  Legacies  to  creditors. 


§689 
§690 
§691 
§692 

§693 
§694 
§695 
§696 


§697 

§698 
§699 
§700 
§701 


Legacy  to  a  debtor. 

Legacies  charged  on  land. 

Legacy  for  life. 

Legacies  in  the  nature  of  in- 
comes and  annuities. 

Abatement  of  legacies. 

General  rules  as  to  payment. 

When  legacies  should  be  paid. 

If  any  legatee  require  legacy 
to  be  paid  within  eighteen 
months,  Court  may  require 
him  to  give  bond. 

Application  for  order  requir- 
ing payment. 

Form  of  application. 

Hearing,   etc. 

Form  of  bond. 

Form  of  entry,  approving  bond 
and  ordering  payment. i 


§  674.     Introductory. 

The  subject  of  legacies,  properly  speaking,  is  a  branch  of 
the  subject  of  wills,  and  to  general  treatises  on  wills,  the  reader 
must  be  referred  for  extended  discussion.  Of  course  it  can 
only  affect  the  administration  of  an  estate  where  there  is  a  will 
of  the  decedent,  for  a  legacy  is  a  gift  or  disposition  in  one's 
favor  by  a  last  will  and  testament,  and  is  commonly  applied 
to  a  gift  of  personal  property,  the  word  "  bequest "  being,  how- 
ever, a  more  proper  word,  strictly  confined  to  personalty. 
Many  difficult  questions  arise  as  to  the  payment  of  these  gifts ; 
when  and  how  such  payment  should  be  made.  Where  an  ex- 
ecutor or  administrator  with  the  will  annexed,  has  any  doubts 


^  See    §1180   ct   seq.,   As   to   con-   struction 
gifts  caitsi   mortis. 


of    wills;     §1240,     As    to 


§  675  PAYMENT  OF  LEGACIES  598 

about  the  propriety  of  making  payment  of  a  legacy,  he  should 
let  the  Court  decide  the  question.  This  he  can  do  in  a  num- 
ber of  ways*  He  can  bring  an.  action  to  construe  the  will,^  or 
he  can  refuse  payment  of  a  legacy,  and  in  that  manner  com- 
pel the  legatee  to  bring  an  action  in  the  Probate  Court  asking 
the  Court  to  direct  payment,^  This  may  be  done  before  a  final 
account  is  filed,  as  provided  in  sec.  10762,  G.  C.,*  or  after  final 
account  has  been  filed,  payment  may  be  enforced,  under  sec. 
10848-9,  G.  C.^ 

It  has  been  a  question  with  the  writer,  whether  this  chapter 
should  follow  the  chapter  on  accounting,  etc.,  or  should  be 
treated  of  when  speaking  of  wills.  However,  as  some  legacies 
may  be  required  to  be  paid  before  an  account  is  filed,  it  would 
seem  not  inappropriate  to  treat  of  the  subject  immediately 
after  the  consideration  of  the  matter  of  payment  of  debts. 
There  are  quite  a  number  of  different  kinds  of  legacies.  Thus 
we  have  general,  specific,  demonstrative,  pecuniary,  absolute, 
conditional,  vested,  contingent,  residuary,  cumulative,  addi- 
tional, repeated,  satisfied,  lapsed  and  adeemed.  These  various 
kinds  of  legacies  will  be  considered  in  the  subsequent  sections 
of  this  chapter,  although  from  the  nature  of  this  work,  they  can' 
not  be  treated  with  that  thoroughness  which  they  deserve.* 

§  675.     Specific  legacy. 

Probably  the  first  kind  of  a  legacy  that  an  executor  will  neexi 
to  deal  with,  is  that  of  a  specific  legacy,  which  is  defined  to  be 
a  gift  of  a  particular,  specified  and  determined  piece  of  prop- 
erty as  distinguished  from  a  general  gift.^  It  differs  from  a 
general  legacy  in  that  it  is  not  intended  by  testator  to  be  paiJ 
out  of  his  estate  generally,  but  is  to  be  paid  solely  by  deliver- 
ing to  the  beneficiary  the  specific  thing  given  by  -will,® 

2  §  10857,  10S58  G.  C,  §  33.  Keller  vs.  Shaffer,  29  O.  S.  264.     § 

sA  suit  to  collect  a  legacy  must  761. 

be   brought   in    the   Probate    Court.  6  See  §  720,  Accounting.     §   1206, 

Smith  vs    Harker,  41  0.  S.  236;   9  Real  estate  devised. 

Am    L.   Rec.   488.  7  Page  on  Wills,  912. 

4  §   696.  8  Byrne  vs.  Hume,  86  Mich.  546 ; 

5  An  unpaid  legacy  is  not  the  sub-  Page  on  Wills,  912,  citing: 

ject  matter  of  a  chattel  mortgage.  Thus,  a  gift  of  testator's  property 


599 


SPECIFIC    LEGACY 


§675 


Our  statute  provides-^  tli at  where  property  is  specifically  be-» 
queathed,  it  may  be  delivered  to  the  legatee,  by  the  legatee 
giving  to  the  executor  a  redelivery  bond,  otherwise  it  remains 
in  the  possession  of  the  executor  to'  be  disposed,  of  in.  the  final 
settlement  of  the  estate,  as  required  by  the  will.  A  specific 
legacy  under  certain  conditions  may  have  an  advantage  over 
other  legacies,  or  may  be  at  a  disadvantage.  If  the  estate  is 
insolvent  such  legacy  does  not  abate  until  the  entire  amount  of 
the  general  residuary  legacies  have  been  consumed  in  paying 
the  testator's  debts,  unless  a  contrary  intention  is  manifested 
by  the  will." 

However,  if  the  property  specifically  bequeathed  for  any 
cause  does  not  exist,  the  specific  legatee  cannot  hold  other 
propei-ty  of  the  testator  for  the  payment  of  such  a  legacy.      It 


invested  in  his  mercantile  business 
is  a  specific  gift.  Kelley  vs.  Rich- 
ardson, 100  Ala.  584.  So  a  gift  of 
the  horses,  farming  implements,  etc., 
upon  a  given  plantation,  is  a  spe- 
cific bequest.  McFadden  vs.  Hef- 
fley,  28  S.  C.  317;  13  Am.  State 
Rep.  675.  So  a  devise  of  land  owned 
by  testator  at  the  date  of  the  will  is 
a  specific  devise.  Kelley  vs.  Rich- 
ardson, 100  Ala.  584.  Money  may 
be  the  subject  of  a  specific  legacy. 
A  gift  of  money  deposited  at  a  cer- 
tain named  bank  is  a  specific  legacy. 
Barber  vs.  Davidson,  73  111.  App. 
441;  Prendergast  vs.  Walsh  (N.  J.), 
42  Atl.  1049;  Towle  vs.  Swasey,  106 
Mass.  100;  Crawford  vs.  McCarthy, 
159  N.  Y.  514.  A  gift  of  a  certain 
sum  out  of  a  certain  described  de- 
posit has  been  held  to  be  a  specific 
legacy.  Crawford  vs.  McCarthy,  159 
N.  Y.  514.  So  a  gift  to  the  bene- 
ficiary of  a  debt  specifically  de- 
scribed by  indicating  the  debtor  is 
a  specific  bequest.  Sinnott  vs.  Ken- 
aday,  14  App.  D.  C.  1 ;  Gelbach  vs. 
Shively,  Q7  Md.  498;  Tomlinson  vs. 
Bury,   145  Mass.  34G;   Gilbreath  vs. 


Winter,  10  Ohio  64;  Derby  vs. 
Derby,  4  R.  I.  414;  Gardner  vs. 
Printup,  2  Barb.  83.  So  a  gift  of  a 
debt,  secured  by  a  mortgage,  the 
executor  being  directed  to  assign  thf 
mortgage  to  the  legatee,  is  a  spe- 
cific bequest.  Wheeler  vs.  Wood, 
104  Mich.  414.  And  a  gift  of  a  cer- 
tain amount  to  be  paid  by  allowing 
the  legatee  to  select  such  amount  out 
of  a  specified  number  of  bonds  and 
mortgages  held  by  testator's  exe- 
cutors was  treated  as  a  specific  gift. 
Blundell  vs.  Pope,  (N.  J.)  21  Atl. 
456.  A  gift  of  certain  encumbered 
realty,  with  a  direction  that  the  exe- 
cutors pay  off  the  encumbrancee 
thereon,  is  a  specific  devise  of  such 
realty  free  from  all  encumbrance?. 
Porter  vs.  Howe,  173  Mass.  521. 
A  specific  legacy  may  be  a  gift  of 
property  to  be  afterwards  acquired, 
if  described  with  sufficient  particu- 
larity. Kelley  vs.  Richardson,  100 
Ala.  584 ;  ShaflFer's  Succession,  50 
La.  Ann.  601. 

9  §  10699  G.  C,  §  474. 

10  Pago  on  Wills,  923. 


§  676  PAYMENT  OF  LEGACIES  600 

is  sometimes  very  difficult  to  determine  whether  or  not  a  cer- 
tain bequest  is  specific  or  general.  From  the  liability  of  spe- 
cific bequests  to  fail  for  want  of  proper  property  to  apply  to- 
wards the  satisfaction  of  the  same,  the  Courts  have  inclined 
to  favor  general  legacies,  and  where  there  is  a  doubt  in  that  re- 
spect, to  hold  the  legacy  to  be  general  rather  than  specific.  A 
specific  legatee  is  entitled  to  all  the  income  or  increase  resulting 
thereon  from  the  time  of  tlie  death  of  the  testator. 

There  is  no  difference  in  Ohio  between  a  bequest  of  a  thing 
in  specie,  and  of  its  proceeds ;  both  are  specific  and  not  demon- 
strative.^^ 

§  676.     General  legacy. 

A  general  legacy  is  not  payable  until  it  is  shown  that  there 
are  sufficient  assets  to  pay  creditors  and  preferred  claims  as 
indicated  in  the  previous  chapter.  It  is  defined  to  be  a  be- 
quest chargeable  upon  the  general  estate  and  not  so  given  as 
to  be  distinguishable  from  other  parts  of  the  estate  of  the  same 
kind.^*  It  is  also  defined  to  be  a  legacy  which  may  be  satis- 
fied by  any  part  of  the  testator's  estate,  corresponding  either 
in  value  or  general  description  to  the  provisions  of  the  will.^' 

The  characteristic  of  the  general  legacy  or  devise  is  that  it 
does  not  attempt  to  dispose  of  specific  pieces  of  property.  x\ny 
pecuniary  legacy,  which  from  the  terms  of  the  will,  is  payable 
generally  from  testator's  estate  is  a  general  legacy.^*  A  be- 
quest of  "  all  moneys  or  legacies  coming  to  me  from  any 
source,"  is  said  not  to  be  a  specific  legacy.^'^  A  bequest  of 
money  due  the  testatrix  from  the  estate  of  her  deceased  hus- 
band, subject  to  payment  of  certain  other  legacies,  was  held 
to  be  a  general  and  not  a  specific  legacy. ^^  A  bequest  of  all 
testator's  property  except  certain  specified  articles  is  a  general 

11  Sharp   vs.   McPherson,    6   C.   D.  i*  Kelley  vs.  Richardson,  100  Ala. 

634;   10  C.  C.   181,  18G.     See  §  694  584;  Golder  vs.  Chandler,  87  Me.  63; 

a3  to  payment.  Hughes  vs.  Hughes,  91  Wis.  138. 

i2Bouver's  Law  Die.  20;    13  Am.  is  Dean  vs.  Rounds,  18  R.  I.  436; 

&  Eng.  EncY.  of  Law  10.  Derby  vs.  Derby,  4  R.  I.  414. 

13  Kelley  vs.  Richardson.  100  Ala.  le  Littig  vs.  Hance,  81  Md.  416. 

584;  Dean  vs.  Rounds,  18  R.  L  436. 


601  GENERAL.  AND   DEMONSTRATIVE  §  677. 

bequest/^  In  case  of  doubt  of  testator's  intention,  the  Courts 
always  presume  that  he  intended  to  give  a  general  legacy  in- 
stead of  a  specific  one." 

Thus,  certain  legacies  which  aggregate  in  amount  the  prin- 
cipal of  a  fund  given  by  testator  in  trust  for  other  legatees, 
and  which  are  payable  on  the  decease  of  such  other  legatees,  are 
held  to  be  general  legacies,  there  being  no  direction  that  they 
be  paid  out  of  such  trust  fund/® 

No  preference  is  indicated  between  general  legacies  by  such 
expressions  in  the  will,  as  "  in  the  first  place,"  ''  first  of  all," 
etc.,  followed  by  other  legacies  beginning  with  "  next,"  or 
"  secondly."^"  The  order  in  which  the  legatees  are  named  is 
immaterial,  as  well  as  the  fact  that  one  is  named  in  the  body 
of  the  will  and  the  others  in  the  codicil. ^^ 

§  677.      Demonstrative  Legacies. 

There  is  another  kind  of  a  legacy  which  has  some  of  the 
characteristics  of  both  a  general  and  a  specific  legacy,  and  is 
designated  as  a  demonstrative  legacy.  It  is  defined  to  be  one 
which  is  general  in  its  nature,  but  which  is  made  payable  out 
of  certain  specified  property,  either  real  or  personal.^^ 

17  Kelley  vs.  Richardson,  100  Ala.  invested    in    stocks";    Johnson    vs. 

684.  Conover,   54   N.   J.  Eq.   333;   and  a 

i^Dryden  vs.  Owing,  49  Md.  356;  gift  of  a  certain  sum  "which  may 

Littig    vs.     Hance,     81     Md.     416;  be  invested  in  bank  stock "  has  been 

Briggs  vs.  Hosford,  22  pick.  (Mass.)  held    demonstrative.     In    re    Hodg- 

288;  Wallace  vs.  Wallace,  23  N.  H.  man,  140  N.  Y.  421.     A  demonstra- 

149;  Gilbreath  vs.  Winter,  10  Ohio  tive    legacy    has    been    held    to    be 

64;  Dean  vs.  Rounds,  18  R.  I.  436.  created  by  a  gift  which,  in  its  terms, 

19  Teal  vs.  Hilton,  21  R.  I.   (Part  is    apparently    specific   where    it   is 
2)  227.  evidently  given  as  a  means  of  car- 

20  Everett  vs.   Carr,   59   Me.    325,  rying  out  testator's  intention  of  di- 
330;  Wms.  Ex.,  1370.  viding    his    estate    equally.     Ham- 

21  Sumner  vs.   Society,   64   N.   H.  mer's  Estate,  158  Pa.  St.  632;  Lake 
321,  per  Smith,  J.  vs.  Copeland,   82  Tex.  464. 

22  Page  on  Wills,  915.  Demonstrative  legacies  thus  com- 
A  gift  of  a  certain  amount  "  to  be       bine  most  of  the  advantages  of  both 

paid  out  of  my  personal  property  on  general  and  specific  legacies.     If  the 

hand    after   the    death    of    my   said  property   out  of   which    it   is   made 

wife,"    is    a    demonstrative    legacy.  payable  is  in  existence,  the  demon- 

Hibler   vs.    Hibler,    104   Mich.    274.  strative  legacy  is  payable  out  of  such 

So  is  a  gift  of  "the  sum  of  $8,000  fund  before  other  legacies.     Dunford 


§  678  PAYMENT  OF  LEGACIES  60! 

A  demonstrative  legacy  is,  of  course,  a  first  charge  upon  tne" 
fund  or  property  which  testator  designates  as  to  the  source  of' 
payment  of  such  legacy."^  A  demonstrative  legacy  is  not  de- 
feated, however,  by  the  partial  or  total  failure  of  the  fund  out 
of  which  such  legacy  is  payable,  but  in  such  case  the  deficiency 
is  to  be  made  up  out  of  testator's  personal  estate,  not  specifi- 
cally bequeathed.^* 

§  678.     Gifts  of  stock,  etc.,  general  or  special. 

When  a  testator,  by  will,  disposes  of  a  certain  number  of 
bonds  and  stocks,  or  bonds  and  stocks  of  a  certain  value,  it  is 
often  very  difficult  to  determine  whether  the  gift  is  general 
or  specific;  and  there  is  some  difference  of  judicial  opinion 
in  particular  cases.  The  general  principle  which  controls  in 
this  case  is  that,  if  it  appears  from  the  entire  will  th.at  testator 
intended  to  pass  particular,  designated  bonds  or  stocks,  that 
the  gift  is  specific;  while,  if  the  will  can  be  complied  with  by 
giving  any  bonds  or  stocks  of  the  kind,  value,  and  amount 
named,  the  gift  is  a  general  one.  Thus,  a  gift  of  a  certain 
amount  of  money  in  certain  named  securities,  and  identifying 
them,  is  a  general  gift,  and  not  a  specific  one,  though  testa- 
tor had  exactly  that  amount  at  his  death.     A  gift  of  a  certain 

vs.  Jackson,  22  S.  E.  853.  If  the  9  C.  D.  536 ;  Ives  vs.  Canby,  48  Fed. 
property  out  of  which  it  is  payable  718;  Golder  vs.  Chandler,  87  Me.  63; 
is  not  in  existence,  the  demonstra-  Byrne  vs.  Hume,  86  Mich.  546 ;  Lake 
live  legacy  is  payable  out  of  testa-  vs.  Copeland,  82  Tex.  464. 
tor's  property  generally.  Page  on  "  The  gift  is  unconditional  and  ab- 
Wills,  915^  916.  solute,  although  as  is  often  the  case, 
A  demonstrative  legacy  is  a  be-  he  overestimates  the  sources  of  sup- 
quest  of  a  sum  of  money  payable  out  ply  which  were  to  assure  its  pay- 
of  a  particular  fund  or  thing.  It  ment.  The  source  indicated  turning 
is  a  pecuniary  legacy,  "  given  gen-  out  to  be  insufficient,  others  must  be 
erally,  but  with  a  demonstration  of  taken  to  supply  the  deficiency.  It 
a  particular  funds  as  the  source  of  is  a  demonstrative  legacy,  not  lost 
its  payment."  It  is,  therefore,  because  of  the  non-existence  of  the 
equivalent  to,  or  in  the  nature  of,  a  property  specially  pointed  out  as  a 
devise  or  bequest  of  so  much,  or  means  of  satisfying  it."  ]\Ioore  vs. 
such  a  part  of  the  fund  or  thing  Alden,  80  Me.  301 ;  citing  Smith  V3. 
specified.  Glass  vs.  Dunn,  17  0.  S.  Fellows,  131  Mass.  20;  McLean  vs. 
413.  Robertson,    126   Mass.    537:    Potter 

■  23  See  Chapt.   36.   Page  on  Wills.  vs.  Brown,   11  R.  I.  232;   Wells  vs. 

''24 Rote  vs.  Warner,  17  C.  C.  342;  Borwick,  L.  R.  17  Ch.  D.  798. 


603  GIFTS    OF   STOCK,    ETC.  §  678 

value  of  securities,  to  be  selected  by  executors  from  his  estate 
generally,  is  a  general  and  not  a  specific  gift.  A  gift  of  a 
certain  sum,  "  either  in  stock  or  money,"  is,  of  course,  a  gen- 
eral gift.  But  where  testator  gives  stocks,  bonds,  or  other  se- 
curities in  such  way  as  to  show  that  he  gives  specific  bonds 
or  specific  shares  of  stock  or  particular  securities,  the  gift 
is  regarded  as  a  specific  and  not  a  general  one.  Thus,  where 
testator  gives  a  specified  number  of  shares  of  a  certain  kind 
to  one  beneficiaiy,  and  another  specified  number  to  another, 
the  two  together  being  exactly  equal  to  the  amount  of  stock 
owned  by  testator  when  he  made  his  will,  the  gift  is  treated 
as  a  specific  one,  especially,  as  in  a  subsequent  clause,  he  gives 
"  balance  of  my  stock,"  that  is,  the  rest  of  his  stock  of  other 
kinds,  to  other  beneficiaries.  A  gift  of  the  dividends  of  a 
specified  block  of  stock,  being  considered  in  law  as  a  gift  of 
the  stock  itself,  is  a  specific  bequest.  Where  testator's  inten- 
tion to  make  a  specific  gift  is  clear,  a  slight  misdescription  of 
the  security  to  be  given  does  not  prevent  tlie  gift  from  being 
a  specific  one.^^ 

A  bequest  of  $10,000,  payable  as  follows:  "  Twenty  shares  of 
the  First  Nat.  Bk.  at  $2,000,  $1,000  in  L.  S.  &  M.  S.  Ry.,  at 
par,  $7,000  in  money  or  good  note,"  is  a  demonstrative  legacy, 
and  if  the  testator  did  not  own  the  named  stock  or  bonds,  is  pay- 
able out  of  the  residuum  as  a  general  legacy.^^ 


25  Page  on  Wills,  914,  and  author-  should  be  construed  as  if  it  had  been 

ities  cited.  made  immediately  prior  to  testator's 

In  a   case  which   is   a   departure  death,   unless   his   intention   clearly 

from  the  normal,  a  gift  to  legatees  appears      otherwise.     The      legacies 

of   certain   number   of   shares   of   a  were,   therefore,   treated   as   general 

particular  kind  of  stock  "now  owned  pecuniary  legacies.     Where  testator 

by  me  and  standing  in  my  name"  directs  Ihat  a  certain  sum  of  money 

on    the    corporation     stock     books,  derived  from  his  estate  generally  be 

amounted  in  all  to  2,200  shares;  at  invested   in   a   certain   manner,   this 

the  date  of  the  will  testator  owned  is  held  to  be  a  general,  and  not  a 

ever  3.000  shares;  at  the  time  of  his  specific   legacy,    the    fund    thus    in- 

death    lie    owned    only    200    shares.  vested  being  raised  from  testator's 

I  The  Court  held  that  this  was  a  gen-  general  estate.     Page  on  Wills,  915. 

j  eral  and  not  specific  legacy.     This  26  Rote  vs.  Warner,  9  C.  D.  536; 

result  was  to  some  extent  aided  by  17  C.  C.  342,  343-4. 
a    statute    providing    that    a    will 


§  679  PAYMENT   OF  LEGACIES  60^ 

§  679.     Vested  and  contingent  legacies. 

A  legacy  is  contingent  when,  the  enjoyment  of  it  depen( 
upon  the  happening  of  some  event  as  the  arrival  of  the  legatee* 
at  a  certain  age  —  and  vested,  when  given  generally,  in  which 
case,  is  payable  out  of  the  personalty ;  it  vests  immediately 
upon  the  testator's  death.  The  distinction  between  vested  and 
contingent  legacies  is  important  mainly  With,  reference  to  the 
question  of  lapse.  It  also  becomes  important  as  bearing  upon 
the  question  whether,  and  from  what  time,  the  legatee  is  en- 
titled to  interest  on  the  legacy,  and  to  what  person  the  legacy 
goes  when  limited  over.  The  leading  inquiry  upon  which  the 
question  of  vesting  or  not  vesting  turns,  is,  whether  the  gift  is 
immediate,  and  the  time  of  payment  or  of  enjoyment  only 
postponed,  or  is  future  and  contingent,  depending  upon  the 
beneficiary  arriving  of  age,  or  surviving  some  other  person,  or 
the  like.  If  futurity  is  annexed  to  the  substance  of  the 
gift,  the  vesting  is  suspended;  but  if  it  appear  to  relate  to 
the  time  of  payment  only,  the  legacy  vests  instantly.  The 
mere  circumstance  that  the  gift  is  future,  that  is,  the  actual 
possession  is  postponed,  does  not  make  time  of  the  substance 
of  the  gift,  or  affix  a  condition  to  the  immediate  vesting  of  the 
interest.  That  question  is  detennined  by  the  intention  of 
testator,  as  gathered  from  the  w^hole  will,  and  not  by  partic- 
ular expressions."^  The  law  favors  the  vesting  of  estates,  and 
unless  a  contrary  intention  is  unequivocally  expressed,  it  will 
not  be  imputed  to  the  testator.^^  If  a  legacy  is  directed  to  be 
paid  when  the  legatee  attains  full  age,  the  gift  is  absolute,  and 
vests  on  the  death  of  the  testator ;  but  if  it  is  payable  when  he 
comes  of  age,  or  if,  or  provided,  he  lives  till  he  is  twenty-one, 
it  does  not  vest  till  the  contingency  happens,  and  if  it  never 
happens,  the  legacy  lapses."^ 

27  Hamilton  vs.  Rogers,   38  0.   S.  notwithstanding  it  is  given  over,  in 
255.  case    of    his    death    under    age,    or 

28  Linton   vs.    Laycock,    33    0.    S.  "  without  heirs  " ;  and  though  liable 
128.  to  be  divested  on  a  contingency,  the 

29  Page    on    Wills,    §667,    §670;  substituted  legatees  will   only   take 
Redf.  Sur.  Prac.  611.  the  principal;   and  the   interest  ac- 

A  direct  gift  to  a  minor  is  vested,       cruing    meanwhile    belongs    to    the 


605 


VESTED 


ABSOLUTEl ETC. 


§680 


§  680.    Absolute  and  conditional  legacies. 

An  absolute  legacy  is  where  a  thing  is  bequeathed  without 
any  qualification,  while  a  conditional  legacy  is  one  depending 
upon  the  happening  or  not  happening  of  some  uncertain  event, 
by  which  it  is  either  to  take  place  or  be  defeated.^" 

The  condition  may  be  either  precedent  or  subsequent.  If 
precedent,  the  estate  vests,  upon  its  performance;  if  subse- 
quent, it  vests  upon  the  testator's  death,  subject  to  be  divested 
by  non-performance.  Precedent  contingencies  are  such  as 
must  happen  or  be  performed  before  the  estate  can  vest  or  be 
enlarged ;  subsequent  are  such  that,  by  their,  failure  or  non- 
performance, an  estate  already  vested  may  be  defeated.^^ 
There  are  no  technical  words  to  distinguish  them,  and  whether 
they  be  the  one  or  the  other  is  a  matter  of  construction,  and 
depends  upon  the  intention  of  the  party  creating  the  estate.^^ 

Thus  a  legacy  in  trust  conditioned  upon  the  immediate  and 
continued  engagement  of  the  beneficiary  in  the  business  con- 


minor,  and  may  be  appropriated  for 
his  support.  Pinney  vs.  P'rancher, 
3  Bradf.  198.  See  Matter  of  Good- 
rich, 2  Redf.  45.  Willets  vs.  Ti- 
tus, 14  Hun  554;  Linton  vs.  Lay- 
cock,  33  O.  S.  128 ;  Foster  vs.  Wick, 
17  0.  250. 

The  rule  favoring  immediate  vest- 
ing must  yield  to  the  intention. 
Hence,  a  devise  requiring  the  estate 
to  be  divided  after  the  death  of  a 
son,  between  the  children  of  sons  A 
and  B,  and  if  A's  children  died 
childless,  that  share  to  go  to  B's 
children,  subject  to  a  requirement 
that  the  executors  should  pay  A 
$3,000;  held,  no  interest  vests  in  the 
children  of  A  or  B  until  C's  death, 
because  the  will  was  a  mere  direc- 
tion to  pay  to  them,  and  the  share 
of  A's  child  dying  would  go  to  B's 
children  after  C's  deatli,  subject  to 
the  payment  of  $3,000  to  A,  and  A 
having  died  before  C,  the  $.3,000 
never  vssted  in  him  and  he  could  not 


transmit  it  to  his  widow,  but  B's 
children  took  it.  Baldwin  vs. 
Humphrey,  4  C.  C.  57 ;  2  C.  D.  417. 
A  legacy  to  B,  payable  at  the 
death  of  the  testator's  widow  vesta 
at  once,  and  hence  does  not  lapse 
by  B's  death  before  the  widow,  but 
is  payable  to  his  administrators. 
McGuffey  vs.  Brooke,  2  C.  S.  C.  R. 
231. 

30  See  Caw  vs.  Robertson,  5  N.  Y. 
125;  rev'g  3  Barb.  410;  Cooper  vs. 
Remsen,  3  Johns  Ch.  382;  Id.  521 
5  Id.  459;  Crochercn  vs.  Jaques,  3 
Ewd.  Ch.  207.  Of  the  duty  of  ex- 
ecutors, in  the  payment  of  a  be- 
quest conditioned  on  their  being  sat- 
isfied that  the  beneficiary  had  re- 
formed from  dissipation.  See  Dus- 
tan  vs.  Dustan,  1  Paige.  509; 
Smith  vs.   Rockefeller,  3  Hun.  295. 

31  Bl.  Comm.  ii.  154. 

32  4  Kent  Comm.  124;  Towle  vs. 
Remsen.   70  N.  Y.  303. 


§^  680 


PAYMENT  OF  LEGACIES 


606 


ducted  by  the  testator  in  b,is  life  time,  fails  upon  the  discon- 
tinuance of  such  services,  although  caused  by  illness  and  per- 
manent physical  disability.'' 

'  If  a  legatee  upon  condition  accepts  the  legacy,  and  enters 
into  possession,  he  must  perform  the  condition,  however  bur- 
densome. He  is  not  bound  to  make  his  election  whether  or 
not  to  take  the  bequest,  until  the  condition  and  value  of  the 
gift  can  be  reasonably  ascertained.  A  mere  design  or  intention 
to  accept  will  not  conclude  him,  or  prevent  a  retraction,  if  he 
was  ignorant  of  the  real  state  of  the  legacy,  and  the  extent  of 
the  charge  upon  it.  If  he  refuses  to  accept  the  legacy,  the 
executor  will  be "  considered  as  a  trustee  holding  the  fund  for 
the  benefit  of  those  interested  in  the  legatory  charges.'* 

A  recital  in  a  will  that  the  legacy  given  is  in  consideration 
of  the  legatee's  attention  to  testatrix  and  her  husband, ^^  or  an 
expression*  of  gi'atitude  toward  a  legatee  for  his  services  to  be 
rendered  as  executor,'®  was  held  to  be  an  expression  of  motive 


33  Welsh  vs.  Welsh,  20  Week.  Dig. 
369. 

34Redf.  Sur.  Prac.  612. 
'  A  limitation  over  of  personal 
property  dependent  on  a  future  un- 
certfJn  event  (as  an  absolute  money 
legacy  to  L,  but  if  she  dies  without 
leaving  children  then  over)  takes  ef- 
fect (if  at  all)  as  an  executory  de- 
vise and  not  as  a  remainder,  and  no 
interest  vests  in  them  until  the  con- 
tingency. Lapham  vs.  Martin,  33 
O.  S.  99. 

Under  an  absolute  legacy  to  L, 
but  if  she  dies  leaving  no  children, 
then  over,  the  executor  has  no  power 
to  invest  the  fund  .and  give  L  the 
income  only,  but  mvist  give  her  pos- 
session of  the  principal,  though  she 
has  moved  out  of  the  State,  is  child- 
less and  has  no  property.  If  the 
limitation  over  is  valid,  the  execu- 
tory devisees  and  not  the  executor 
are  the  proper  parties  to  protect 
their  own  interests  without  requir- 


ing security.  Lapham  vs.  Martin, 
33  O.  S.  99. 

A  devisee,  or  grantee,  unlike  an 
heir,  may  disclaim  the  gift,  and  hi3 
creditors  can  not  charge  it.  Any 
unequivocal  act  of  disclaimer  —  as 
by  answer  in  a  suit  —  will  estop 
him.  Wallace  vs.  McMicken,  4 
Gaz.  16.5;  2  D.  564. 

Accepting  a  legacy  or  personalty 
is  not  an  election  to  accept  a  sep- 
arate devise  or  realty  charged  with 
paj^ment  to  other  legatees.  Collett 
vs.  Cook,  3  C.  C.  119;  2  C.  D.  68. 

Accepting  a  devise  or  bequest 
charged  with  the  payment  of  debts 
renders  the  devisee  personally  bound 
for  them  by  implication  of  law,  at 
least  to  the  extent  of  the  devise. 
Fuller  vs.  McEwen,  17  O.  S.  288. 

35  McCarty  vs.  Fish,  87  Mich.  48. 

36  Chassaing  vs.  Durrand,  85  Md. 
420.  (After  the  gift  was  added: 
"  I  thank  him,  in  advance,  for  serv- 
ices in  closing  up  my  estate  as  testa- 
mentary executor.") 


607  CUMULATIVE,    REPEATED,    ETC.  §  681 

of  testator  in  making  the  gift,  and  not  a  condition  upon  which 
he  made  it  Accordingly,  the  failure  of  the  beneficiary  to  act 
as  expected  by  testator  does  not  avoid  the  gift.  So  a  gift  of  a 
homestead  to  testator's  wife,  "  for  a  home  for  her  and  my 
children,"  shows  testator's  motive  in  making  the  gift,  and  does 
not  impose  a  condition  that  testator's  wife  shall  continue  to  rer 
side  thereon.^^ 

A  gift  to  one  upon  condition  that  after  receiving  the  gift  he 
pay  certain  sums  of  money  to  persons  designated,  is  generally 
considered  not  strictly  a  condition,  the  breach  of  which  may 
forfeit  the  estate  but  rather  as  imposing  a  personal  liability 
upon  such  devisee,  or  as  creating  a  trust. ^^ 

§  681.     Cumulative,  repeated  and  substituted  legacies. 

A  legacy  bequeathed  twice  to  the  same  person,  may  be  either 
cumulative,  if  the  testator  intended  the  legatee  to  have  two 
legacies  given  him  in  the  same  will,  or  it  may  be  only  a  repe- 
tition of  the  bequest  in  the  first,  in  which  case  the  legatee  will 
take  but  one  legacy.  The  latter  is  also  known  as  a  substituted 
or  repeated  legacy,  while  cumulative  legacy  seems  to  be  synon- 
ymous with  an  additional  legacy.^^  Woerner  gives  Williams' 
classification  as  to  the  determination  of  questions  arising  in 
the  matter  of  cumulative  or  repeated  legacies,  as  follows: 
First,  where  there  is  no  evidence  of  the  testator^s  intention 
apparent  on  the  face  of  the  will ;  second,  where  there  is  such 
evidence;  and  in  respect  of  those  cases  where  no  internal  evi- 
dence of  intention  is  discernible,  he  suggests  the  following 
proposition  to  aid  Courts  of  construction :  I.  If  the  same  spe- 
cific thing  is  bequeathed  twice  to  the  same  legatee  in  the  same 
will,  or  in  a  will  and  again  in  a  codicil,  but  one  legacy  is  given ; 
for  when  once  given,  the  testator  has  exhausted  his  power  of 
disposition  over  the  thing  given.  II.  Where  two  legacies  of 
quantity  are  given  in  the  same  instrument  of  equal  amount, 

37  Davis  vs.  Hardin,  80  Ky.  672;  29.       (This    is    recognized    by    the 

Talbot  vs.  Schneider,  151  Mo.  299.  Courts,  especially  wheie  there  is  no 

33  Young  vs.  Grove,  4  C.  P.  GG8 ;  gift  over.) 

Woodward  vs.  Walling,  ,31  Ta.  ,5.33;  39  Schoul.  Exrs.  468;   Woerner  on 

Cunningham  vs.  Parker,   146  N.  Y.  Admin.  968;   Page  on  Wills,   §  798. 


§  682  PAYMENT  OF  LEGACIES  608 

to  the  same  legatee,  there  also  the  same  bequest  is  considered  a 
repetition,  and  the  legatee  takes  but  one  legacy.  III.  Where 
two  legacies  of  quantity  of  unequal  amount  are  bequeathed 
to  the  same  legatee  in  one  and  the  same  instrument,  the  one 
is  not  merged  in  the  other,  but  the  latter  is  regarded  as  cumu- 
lative, and  the  legatee  takes  both.  IV.  And  where  two  legacies 
are  given  simpliciter  to  the  same  legatee  by  different  instru- 
ments, the  presumption  is,  also  that  the  latter  is  cumulative, 
whether  they  be  equal  or  unequal  in  amount. ■'° 

Of  course,  the  first  thing  always  to  be  considered  is  the  in- 
tention of  the  testator,  and  the  above  rules  apply  only  when 
there  is  no  possibility  of  ascertaining  the  testator's  intention 
from  his  words  construed  with  reference  to  any  circumstances 
which  the  Court  may  lawfully  consider.  Legacies  substituted 
for  or  added  to  former  legacies  are,  according  to  a  general  rule, 
subject  to  the  same  conditions  as  those  for  which  they  are  sub- 
stituted or  to  which  they  are  added,  although  it  is  not  so  ex- 
pressed in  the  testamentary  instruments.  But  this  rule,  like 
the  other  rules  of  construction,  above  mentioned,  is  never  ap- 
plied to  thwart,  but  only  to  cany  into  effect,  the  testator's 
intention ;  the  rule  must  always  yield  to  tlie  discernible  inten- 
tion of  the  testator.*^ 

If  the  two  legacies  are  payable  at  different  times  and  places, 
the  presumption  is  that  they  are  cumulative,  even  though  they 
are  given  in.  the  same  insti'ument.^"  Where  the  two  gifts  are 
given  in  the  same  instmment  to  the  same  beneficiary,  and  are 
of  the  same  amount  and  value,  the  prima  facie  rule  is  that,  in 
the  absence  of  anything  showing  a  contrary  intention,  the  lega- 
cies are  presumed  to  be  substitutional.*^ 

§  682.     Stated  amount  and  residuary  legacies. 

It  may  perhaps  be  stated  as  a  general  rule,  that  the  amount 
of  legacies  are  fixed  by  the  testator,  and  will  not  be  changed 

40Woerner  on  Admin.  970.  C.  C.  247;  Thompson  vs.  Teulon.  22 

4iWoerner  on  Admin.  971.  L.  J.  Ch.  243;   1  W.  R.  97. 

See  §  1182,  Construction  of  wills.  43  Brennan   vs.   Moran,    6    Ir.    Ch. 

42lTicrelfield   vs.    Coghlan,    2   Coll.  R.  126;  Garth  vs.  Meyrick,  1  Bro.  C. 


609  STATED   AMOUNT RESIDUARY  §  682 

unless  there  is  deficiency  in  the  estate.  Very  often,  however, 
in  the  same  instrument  the  testator  disposes  of  the  residue  of 
his  property,  and  this  residue  so  disposed  of  by  will,  constitutes 
a  residuary  legacy.  It  carries  with  it,  not  only  everything  in 
terms  disposed  of,  but  everything  that  in  the  end  turns  out  not 
to  be  well  disposed.**  Hence  lapsed  and  void  legacies  fall  into 
the  residue,  for  the  same  reason  that  general  residuary  bequests 
contingent  in  terms,  carries  the  income  which  accmnu- 
lates  between  the  testator's  death  and  the  period  of  vesting. 
If  the  testator's  estate  is  insufficient  to  pay  off  all  his  legacies 
and  devises  in  full,  after  paying  his  debts,  the  legacies  given  in 
the  residuary  clause  abate  first,  No  payment  can  be  made  to 
the  residuary  legatee  until  all  other  legacies  have  been  paid 
in  full.*^  Such  legacies  are  usually  to  be  classed  as  general 
legacies,  although  there-  might  be  instances  in  which  they 
would  be  specific,  especially  might  this  be  true  where  there  is 
sufficient  money  ou  hand  to  pay  debts  and  general  bequests; 
and  the  property  remaining  would  be  specific.**^ 

This  would  not,  however,  often  occur.  Where  the  testator 
gives  particular  specific  portions  of  a  tract  of  land  to  different 
devisees,  and  the  balance  to  another,  the  latter  devise  is  spe- 
cific.*' 

Where  a  specific  disposition  follows  or  is  preceded  by  a 
general  residuary  gift,  the  specific  disposition  is  regarded  as 

C.  30;  Manning  vs.  Thesiger,  3  Myl.  die  horses,"   it  was  held  that   this 
&  K.  29;  4  L.  J.  Ch.  285;   Uickin-  was  not  a  general  residuary  clause 
son  vs.   Overton,   57   N.  J.   Eq.   26;  carrying  slaves  on  two  several  plan- 
Page  on  Wills,  p.  948,  §  799.  tations,   but   must  be  construed   to 
**  1  Jar.  on  Wills,  §  762.  include  only  property   of  the   same 
<3  Page  on  Wills,   §  772.  kind    as    the    articles    enumerated. 
<8Schoul.  on  Exrs.  462.  Minor  vs.  Dabney,  3  Rand.  191,  198, 
*7  Pittman's    Estate,    182    Pa.    St.  et   seq.;   see   also   Godard  vs.   Wag- 
355.  ner,  2  Strobh.  Eq.  1,  9.     Where  cer- 
Thus,  where  a  testator  disposed  of  tain  things  are  enumerated  in  a  leg- 
real  and  personal  property  specific-  acy,  and  a  more  general  description 
ally,    and    then    proceeded,    "  I    be-  is  coupled  with  it,  that  description 
queath  to  my  friend.  Dr.  J.  D.,  all  generally   covers    only   things    of    a 
my  books,  medicines,  and  shop  fur-  like     kind     with      those     specially 
niture,  and  all  the  estate  not  before  named.     Andrews    vs.    Schoppe,    84 
devised,  including  my  gig  and  sad-  Me.  170;  Woerner  on  Admin.  968. 


§  bod  ?AYMENT  OF  LEGACIES  610 

an  exception  or  qualification  out  of  the  general  disposition;*^ 
but  the  gift  of  a  life  estate  specifically  to  one,  and  a  gift  of  the 
residue  to  the  same  donee,  will  give  him  a  fee  in,  or  absolute 
title  to,  tlie  property  so  given. 

A  clause  may  operate  as  a  residuai-y  gift  without  the  use  of 
the  words  "  rest,"  "  residue,"  etc.,*^  and  conversely  if  by 
*'  rest,"  "  balance,"  etc.,  the  testator  means  to  refer  to  a  portion 
of  land,  parts  of  which  are  devised  to  others,  these  words  will 
not  prevent  the  gift  from  being  specific.^" 

No  particular  fonn  of  words  is  necessary  to  constitute  a  resid- 
uary legatee ;  any  expression  is  sufficient  from  which  the  testa- 
tor's intention  is  discernible  that  the  person  designated  shall 
take  the  surplus.  Nor  is  it  of  controlling  consequence  that  the 
clause  is  not  the  last  of  the  disposing  provisions,  though  such  is 
the  usual  position. ^^ 

§  683.     Lapsed   legacies.^^^ 

A  lapsed  legacy  or  devise  is  one  which  was  originally  valid, 
so  that  if  testator  had  died  immediately  upon  the  execution  of 
his  will  such  devise  or  legacy  would  have  taken  effect,  but  which 
fails  because  the  beneficiary  in  some  way  becomes  incapable  of 
taking  under  the  will  before  the  devise  or  legacy  vests. '^^  A 
legacy  or  devise  is  also  said  to  lapse  where  the  beneficiary, 
though  competent  to  take  under  the  will,  refuses  to  do  so.^^ 

A  lapse  at  common  law  most  frequently  occurs  by  reason  of 
the  death  of  the  beneficiary  before  that  of  the  testator.  In 
Ohio,  as  in  a  number  of  other  States,  this  has  been  changed  by 
statute.^* 

And  the  legacy  does  not  lapse  where  it  is  made  tO'  any  child 
or  other  relative  of  the  testator.      If  such  child  or  other  relative 

48  Davis  vs.  Callahan,  78  Me.  313.       the   legacy   does   not  lapse.      Charl- 

49  Striewig's   Estate,    169   Pa.    St.      ton  vs.  Miller,  27  0.  S.  298. 

61.  53  See     §1195,    Lapsed    bequests; 

50  Tittman's   Estate,    182   Pa.    St.  Page  on  Wills,  8  728. 
355.  54  §  10581  G.  C. 

51  Morton  vs.  Woodbury,  153  N.  Where  the  will  provides  that  a 
Y.  243,  and  cases  cited.  certain  person  may  do  certain  acts, 

51a  See  §  1028,  Bequests  to  chari-  and   such    person   dies   Avithout  per- 

table  institutions.  forming    such    duties,    a    legacy    de- 

52  Where  a  person  makes  a  will  pendent  upon  such  performance 
to  his  wife  and  then  is  divorced —  lapses.     In  re  King,  17  Dec.  403. 


611  LAPSED     LEGACIES  §  683 

shall  have  been  dead  at  the  time  of  the  making  of  the  will,  or 
died  thereafter,  leaving  issue  surviving  the  testator,  in  either 
case,  such  issue  shall  take  the  estate  devised  in  the  same  manner 
as  the  devisee  would  have  done.  A  lapse  might  occur  by  reason 
of  the  death  of  the  beneficiary  after  testator's,  but  before  the 
gift  vested. °^ 

But  where  a  legacy  or  devise  vests  upon  testator's  death,  it 
does  not  lapse  because  the  beneficiary  dies  before  the  devise  or 
legacy  vests  in  possession.^" 

Likewise  a  devise  in  trust,  or  in  the  nature  of  a  trust,  does 
not  lapse  by  reason  of  the  death  of  the  trustee  before  the  bene- 
ficiary. Thus  a  gift  to  a  designated  priest,  to  be  expended  in 
masses  for  the  repose  of  the  soul  of  testatrix,  w^as  held  not  to 
lapse  by  reason  of  the  death  of  the  priest  before  that  of  testa- 
trix, since  another  trustee  might  be  appointed. ^^ 

If  a  legacy  be  given  upon  a  valuable  consideration  in  pay- 
ment of  a  debt  of  testator,  it  does  not  lapse. ^^ 

A  residuary  clause  of  "  the  balance "  of  certain  property, 
after  paying  the  foregoing  legacies,  does  not  pass  the  amount 
of  void  or  lapsed  legacies,  but  they  are  intestate  property,  and 
so  of  legacies  void  under  our  mortmain  statute. ^^  A  testa- 
tor may  by  will  prevent  a  lapse  and  the  common  law  favors 
such  reasonable  construction  of  the  will  as  would  prevent  a 
lapse.'^" 

Where  the  statute  against  lapse  applies  only  where  the  bene- 
ficiary is  a  "  relation  "  of  testator,  a  relation  by  marriage  is 

S5  Where  a  devise  is  made  of  lands  lion  by  tlie  liusband  does  not  au- 
to the  husband  of  the  testatrix  for  thorize  the  executor  to  sell  the  lands 
life,  with  a  direction  to  the  executor  before  the  death  of  the  husband, 
to  sell  after  the  death  of  the  hus-  Wilson  vs.  Hall,  6  C.  C.  571;  3  C.  D. 
band,    and    distribute    as    follows:  .589. 

"  1st   Should  my   sisters,   S  and  C,  se  Page  on  Wills,  §  739. 

or  either  of  them  sviTvive  myself  and  s;  Kerrigan  vs.  Tabb.,  39  Atl.  701. 

my  nusband,   I  give  either  or  each  bs  Page  on  Wills,   §  739. 

of   them    surviving   $500,"    and    the  See  §  687. 

husband  elects  not  to  take  under  the  bd  Davis  vs.  Davis,  62  0.  S.  411; 

will.     Held:     Upon    the    death    of  S.    c.   below,    6    Dec.    371;    4    N.   P. 

S  prior  to  the  death  of  the  husband  276 ;  8  C.  D.  52 ;  15  C.  C.  174. 

the  legacy  to  her  lapses.     Such  elec-  ^o  Page  on  Wills,   §  741. 


§  684  PAYMENT  OF  LEGACIES  612 

not  a  relation  within  the  meaning  of  the  statute.®^  Nor  is  a 
husband  a  ''  relative  "  of  his  wife  in  this  sense.®"  Nor  is  a 
wife  a  ''  relative  "  of  her  husband.®^ 

Where  the  statute  prevents  lapse,  and  in  case  a  beneficiary 
leaves  a  '^  lineal  descendant,"  it  is  held  that  the  mother  of  the 
beneficiary  is  not  a  "  lineal  descendant."^*  ISTor,  indeed,  are  any 
of  the  heirs  not  in  the  descending  line  from  the  beneficiary.®* 
Nor  is  an  adopted  child  a  descendant  so  as  to  prevent  a  lapse.®* 
Under  statutes  preventing  lapse,  the  beneficiary  who  dies  before 
testator  can  not,  by  his  will,  alter  the  devolution  of  the  gift 
from  that  indicated  by  statute.®^ 

§  684.     Void  legacies. 

A  void  legacy  or  devise,  is  one  which  never  could  have  taken 
effect  upon  testatoi>'s  death.  It  differs  from  a  lapsed  legacy,  in 
this,  that  a  lapsed  legacy  is  one  which  was  originally  valid, 
and  that  if  the  testator  had  died  immediately  on  the  execution 
of  the  will,  would  have  been  enforced.  Both  in  their  results 
are  the  same. 

61  Horton  vs.  Earle,  162  Mass.  heir  under  §  8598  G.  C,  S  1902,  thus 
448;  (a  brother-in-law  held  not  to  standing  like  a  grandchild  to  the 
1  1  +•  •  Ai  •  Ty  11  testator,  does  not  lapse  bv  the  death, 
be  a  relation  m  this  sense.     Bramell  ,        .       '.  *         i       "  i  „f  ..„ 

leaving  issue,  of  sucli  person  beiore 

vs.  Adams,  146  Mo.  70.  testator.        (Supr.     Ct.,     not     rep.) 

62  Norwood  vs.  Mills,  1  N.  P.  314.       White  vs.  Agnew,  38  B.  47. 

63  Kenton's  Estate,  10  Wash.  533.  ^^  Phillips    vs.    McConica,    59    0. 
See  §  5971  R.  S.,  §  1194,  providing       ^-eSHalsey  vs.  Convention  of  P.  E. 

against  a  devise  to  a  relative  fail-  Church,  75  Md.  275.     A  bequest  of 

ing  by  death   of  the  devisee  before  a  fund  in  trust  to  pay  the  income 

the  testator   applies  to   a  devise  to  to  S   for  life,   and   at  her  death   to 

,  ., -,                         ,            ,x-     11  divide  the  principal  among  her  sur- 

children    as    a    class.     Woolley    vs.  .    .           ,.,',              o     j-  i^     i„„,.-„„ 

''  vivmg    children.       b    died,    leaving 

Paxson,  46  O.   S.   307.  children  and  also  the  children  of  a 

64  Morse  vs.  Hayden,  82  Me.  227.       deceased    child.      Held,    the    latter 

65  Loveren  vs.  Donaldson  (N.  H.),  <^ould  not  take.  The  statute  (now 
.e    Atl    71  <;  ^-   S.,    §5971).   to   prevent   lapsing 

§  1C531    G.    C.,     §  1194,    provides  ct.,   not   rep.)      Stamp   vs.    Cooper, 

against  the  lapse  of  a  devise  to  "any  34  B.  318. 

child  or  other  relative"  of  the  testa-  ^ee  .<  1195,  Lapsed  bequest. 

,,.,..             »    ,     .  A  condition   m   a  will  making  a 

tor  who  dies  leaving  issue.    A  devise  ^^^^^^  dependent  upon  a  separation 

to  one  whom  the  testator's  daughter  of  husband  and  wife  is  void.    Moores 

had    adopted    under    §  S030    G.    C,  vs.  IMoores.  33  0.  C.  C.  463. 

§1898,   and   also   has   desicrnated   as  .    See  §  1028   As  to  bequests  to  char- 


itable  institutions. 


I 


613  VOID    LEGACIES  §  684 

Void  legacies  may,  for  purposes  of  convemence,  be  divided 
into  two  general  classes :  those  which  are  void  by  reason  of  some 
condition  in  testator's  will  which  is  not  complied  with,  and 
those  which  are  void  by  reason  of  the  existence  of  some  positive 
rule  of  law  which  prevents  testator  from  making  the  disposition 
of  his  property  which  he  contemplates.*'^ 

Legacies  which  are  void  by  reason  of  some  condition  in  testa- 
tor's will,  which  is  not  complied  with,  are  so  numerous  as  to 
prevent  a  discussion  in  this  treatise.^® 

Legacies  which  are  void  by  reason  of  the  existence  of  some 
positive  rule  of  law,  may  be  illustrated  by  gifts  of  remainders 
over  on  breach  of  a  condition  in  restraint  of  alienation,  or  by 
gifts  which  are  void  as  being  in  contravention  of  the  rule  against 
perpetuities.  So  a  gift  may  be  void,  because  the  description 
of  the  property  given  is  so  ambiguous  that  it  is  impossible  to 
tell  to  which  part  of  testatoi-'s  estate  it  applied.  A  gift  may 
also  be  void  because  the  legatee  never  had  the  capacity  to  take 
the  gift.'** 

The  rules  which  govern  the  devolution  of  void  legacies  are 
substantially  the  same  as  those  which  control  in  case  of  lapsed 
legacies.  In  the  absence  of  a  residuary  clause  the  property 
which  is  the  subject  of  a  void  gift  descends  as  in  case  of  intes- 
tacy.'^ 

Where  there  is  a  valid  general  residuary  clause,  void  legacies 
pass  under  such  residuaiy  clause  to  the  residuary  legatees.''^ 
While  at  common  law  void  devises  descended  to  the  heir,  they 
pass  now  under  a  residuary  clause  which  contains  apt  words  to 
pass  such  property.'^     A  well  recognized  exception  to  the  rule 

88  Page  on  Wills,  §  745.  174;   8  C.  D.  52;  rev.  4  N.  P.  276; 

60  See   for    discussion,    chapt.    30,  6  Dec.   371;   Dulany  vs.  Middleton, 

Page  on  wills.  72  Md.  67;  Carter  vs.  Presbyterian 

As    to    absolute    and    conditional  Church  Board  of  Education,  144  N. 

legacies,    see    previous    sections,    of  Y.  621;  In  re  Allen,  151  N.  Y.  243. 
this  chapter.  73  Davis   vs.   Hutchings,    15   C.   C. 

TO  Page  on  Wills,  §  745.  174;   8  C.  D.  52;  reversing  4  N.  P. 


"Levy  vs.  Levy,  33  N.  Y.  97 
State  vs.  Holmes,  115  Mich.  456 
McHugh  vs.  McCole,  07  Wis.  166 
to  L.  R.  A.  724.  Wis.  409 

72  Davis   vs.    Tlutchings,    15    C.    C. 


276;  6  Dec.  371;  Giddings  vs.  Gid- 
ding.s,  65  Conn.  149;  Milwaukee 
Protestant     Home    vs.     Becher,     87 


§  685  PAYMENT   OF   LEGACIES  61' 


that  void  legacies  and  devises  pass  under  a  residuary  clause,  is 
where  the  void  legacy  or  devise  is  itself  given  by  a  residuary 
clause.  In  such  case  the  property  which  is  the  subject  of  the 
void  gift  does  not  pass  to  the  other  residuary  legatee,  but  de- 
scends as  intestate  property.''* 

§685.     Adeemed  legacies. 

A  legacy  is,  strictly  speaking,  adeemed  (from  adimere,  to 
take  away)  when  the  thing  given  has  by  some  act  of  the  testa- 
tor, ceased  to  exist  in  the  form  in  which  it  is  described  in  the 
will,  so  that  on  his  death  there  is  nothing  answering  the  descrip- 
tion of  the  legacy  to  be  given  to  the  legatee.  This,  of  course, 
can  only  happen  in  cases  of  specific  legacies,  since  general  or 
demonstrative  legacies  are  not  dependent  npon  the  existence 
of  specific  things,  and  cannot,  therefore,  be  adeemed,  or  taken 
away,  by  the  destniction  or  alteration  of  the  subject  of  the 
gift.- 

A  similar  result  follows  where  the  testator  performs  the 
function  of  an  execut-or,  by  giving  during  his  lifetime  what  he 
intended  the  legatee  to  have  by  his  will,  thereby  satisfying  the 
legacy  himself,  leaving  nothing  for  the  executor  to  do  in  respect 
to  such  legacy.  The  distinction  between  the  ademption  and 
satisfaction  of  legacies  seems  clear  enough,  but  it  is  not  gener- 
ally observed,  the  term  "  ademption  "  being  applied  indiscrim- 
inately to  cases  where  the  legacy  is  cut  off  by  the  destruction 
or  alteration  of  the  subject,  and  where  it  is  satisfied  by  the 
delivery  of  the  subject  to  the  legatee  during  the  testator's 
lifetime.'® 

74  Powers  vs.   Codwise,   172  Mass.  must  be  shown  either  from  the  will 

425;   Temple  vs.   Pasquotank   Coun-  itself  or  by  extrinsic  evidence  that 

ty,  111  N.  C.  36;   Booth  vs.  Baptist  ademption  was  intended.     Ellard  v. 

'   Church,   126  N.  Y.  215.  Ferris.  91  0.  S.  339. 

fSGilbreath  vs.  Winter,   10  Ohio.  -6  Woerner  on  Admin.  973;  Page 

64,  68;   Smith's  Appeal,  103  Pa.  St.  on  Wills,  §  779. 

559 ;    Walton  vs.   Walton,   7   Johns.  "I  give  to  M  all  the  amount  that 

Ch.  258    362.  may   be   recovered   from   K   due  me 

Whether  a' gift  made  to  a  legatee  for' the  sale  of  the  P  estate,"  is  a 
bv  a  testator  subsequentlv  to  the  specific  and  not  pecuniary  or  demon- 
date  of  the  will  is  to  be  taken  as  an  strative  legacy,  and  is  adeemed  by 
ademption  if  the  legacy  depends  on  the  testator  having  received  the 
the  intention  of  the  testator,  then  money.  Gilbreath  vs.  \\  inter,  10 
the  legacy  is  to  a  person  other  than  0.  64. 

a   child,   unless   the   gift   is   for   the  An    ademption    is    a    premature 

same  specific  purpose  for  which  the  compliance  with  a  will,  but  an  act 

legacy  was  intended,  there  is  no  pre-  antedating  the  will,  or  an  advance, 

sumption  of   such   intention,  but  it  can  not  diminish  a  legacy,  for  evi- 


615  ADEEMED  LEGACIES  §  685 

From  the  nature  of  ademption,  it  follows  that  it  could  only 
apply  to  specific  legacies,  and  to  demonstrative  legacies.  If  it 
has  been  determined  that  the  legacy  is  a  specific  one,  little 
trouble  will  arise  whether  it  was  adeemed. 

The  question  sometimes  arises  whether  a  bequest  was  in- 
tended by  the  testator  to  be  paid  at  all  events,  the  fund  being 
pointed  out  by  the  way  only  of  demonstration.  The  leading 
principle  is  that  when  a  testator  bequeaths  a  sum  of  money,  or, 
what  is  the  same  thing,  a  life  annuity,  in  such  a  manner  as  to 
show  a  separate  and  independent  intention  that  the  money 
shall  be  paid  to  the  legatee  at  all  events,  such  intention  will  not 
be  permitted  to  be  overruled  merely  by  a  direction  in  the  will 
that  the  money  is  to  be  raised  in  a  particular  way  or  out  of 
a  particular  fund ;  although  no  positive  i*ule  of  ready  applica- 
tion to  every  case  can  be  laid  down.  Each  case  will  depend 
upon  a  consideration  of  all  the  material  provisions  of  the 
will,  and  of  the  extrinsic  circumstances  respecting  the  testa- 
tor's family  and  estate,  which  may  be  fairly  brought  to  bear 
upon  the  question  of  intent. ^^ 

Where  specific  property  remains  in  existence  in  specie,  slight 
and  immaterial  changes  in  its  form  do  not  adeem  legacies.'^ 
Where  B  and  his  wife  each  made  a  will,  B  giving  $700  to  a 
grandson,  C,  and  the  wife  giving  $500  to  the  same,  B  after- 
wards conveyed  to  C  real  estat©,  reciting  a  consideration  of 
$1,100,  the  wife  releasing  dower,  and  the  deed  stating  that  it 
was  in  part  consideration  of  C's  relinquishment  of  his  prospect- 
ive interest  in  the  estate  of  B  and  his  wife.  C  also  gave  B  a  re- 
ceipt for  the  deed,  stating  therein  that  it  was  an  advancement 
and  in  full  for  all  his  interest  as  heir-at-law  of  B  or  otherwise 

dencc  of  such  intent  would  vary  the  legacy  is  adeemed  only  when  a  gift 

will.  was   extended   at  the   time  to   be  a 

Nor    can    an    executory    contract  satisfaction   of   the   legacy.     A   sub- 

afTect  a  legacy  either  as  a  contract  sequent  intention  will  not  have  such 

or  an  estoppel.     Statements   in  the  effect.     Stichtenoth  vs.  Toph,  23  B. 

will  that   legacies   will   be   adeemed  126. 

in  a  certain  way,  merely  gives  his  ^^  Redf.  Sur.  Prac.  621. 

executors  convenient  evidence  of  his  '^s  See    Page    on    Wills,    781,    for 

intent  to  make  gifts  in  lifetime.     A  fiirtiier  discussion. 


§  686  PAYMENT   OF   LEGACIES  616 

and  also  "  as  heir  at  law  "  of  the  wife.  B  died  before  his  wife. 
Held,  C  is  entitled  to  the  $500  legacy  under  the  wife's  will. 
There  is  no  ademption,  nor  an  advancement,  nor  an  estoppel, 
nor  a  release.''^  A  specific  legacy  which  has  been  adeemed  is 
not  revived  merely  by  republishing  the  will,  nor  does  the  ademp- 
tion of  a  specific  legacy  revive  a  legacy  for  which  it  was  substi- 
tuted.«° 

§  686.     Satisfied  legacies. 

A  legacy  is  satisfied  when  the  testator  during  his  lifetime 
delivers  something  of  value  to  the  legatee  which  he  intends  to 
be  a  substitute  for  the  legacy.*^  Whether  or  not  a  legacy  has 
been  satisfied,  is  purely  a  question  of  fact,  and  from  the  fact 
that  the  law  favors  the  theory,  that  all  children  should  share 
equally  in  the  property  of  their  parent,  the  presumption  arises 
that  if  a  parent  gives  to  a  child  to  whom  a  legacy  is  provided, 
it  will  be  presumed  that  the  gift  was  in  satisfaction  of  tlie 
legacy.  It  was  the  doctrine  of  the  common  law,  that  if  a 
portion  be  given  to  a  child  it  satisfies  the  entire  legacy,  but 
the  doctrine  now  is,  probably,  that  a  gift  of  a  part  of  the 
legacy  is  only  a  protanto  satisfaction.*^ 

Whei'e  the  testator  does  not  occupy  a  relation  of  a  parent 
to  a  beneficiary,  a  gift  made  by  the  testator  to  the  beneficiary 
is  not  presumed  to  be  in  satisfaction  of  the  legacy.*^  These 
presumptions^  however,  make  out  only  prima  facie  cases  and 
may  be  overcome  by  testimony  to  the  contrary. 

Specific  legacies  are  said  not  to  be  affected  by  the  subsequent 

79  (Supr.  Ct.,  not  rep.)      BrowTi's  cash    money.      Held,    the    legacy    to 

Exception,  42  B.  258.  nephews  and  nieces  was  specific  and 

After    devising   to    his    sister    all  therefore  v.'as  adeemed  by  the  sale 

his  personalty  and  a  life  estate  in  and  the  remaining  proceeds  pass  to 

his  farm,  being  his  only  realty,  the  the  sister  under  the  bequest  of  per- 

testator  required  his  executor  after  sonalty.      Sharp    vs.    McPherson,    6 

his   sister's   death   to   sell   the   farm'  C.  D.  634;   10  C.  C.  181. 

and     divide     the     proceeds     among  so  13   Am.  &   Eng.   Ency.   of  Law 

nephews   and   nieces.      The   testator  80. 

afterwards  sold  the  farm  and  of  the  ^^  Page  on  Wills,  §  782. 

proceeds  there  remains  part  of  the  ^-  Page  on  Wills,   §   783. 

mortgage    unpaid,    and    also    some  "^  Page  on  Wills  §  784. 


617  IN  LIEU  OF  DOWER.  §  687 

advancement  of  a  portion^  because  the  gift  of  specific  articles  of 
personal  property,  by  the  father  to  his  child  is  not  presumed  to 
be  intended  as  a  portion.^*  Advancements  as  the  term  is  prop- 
erly applied,  does  not  apply  to  satisfaction  of  legacies.  For  in 
its  proper  application,  it  applies  to  the.  distribution  of  the  prop- 
erty of  an  intestate. 

§  687.     Legacies  in  lieu  of  dower. 

A  very  frequent  form  of  legacy,  is  that  given  by  will  to  the 
widow  of  the  testator.  By  our  statute,  such  a  provision,  made 
in  favor  of  the  widow,  or  widower,  will  be  considered  as  made 
in  lieu  of  her  dower  rights,  unless  it  plainly  appears  by  the 
will  of  the  testator,  to  have  been  the  intention  that  the  widow 
or  widower  should  have  the  provision  made  in  the  will  to  be  in 
addition  to  the  dower  rights,®^ 

Perhaps  the  most  important  attribute  to  this  kind  of  a  legacy, 
is  as  to  its  order  of  abatement,  where  there  is  an  insufficiency 
of  asse>ts  to  pay  other  legacies.  In  our  Statei  husband  and  wife 
stand  in  tlie  same  relation  as  to^  dower  rights.  The  text -books, 
however,  usually  speak  of  them  in  the-  feminine  gender.  "  The 
acceptance  by  tlie  widow,"  says  Woerner,*°  "  of  the  testamen- 
tary provision  made  for  her,  in  lieu  of  her  right  of  dower  in 
the  testatoi-'s  estate,  gives  her  an  interest  therein  superior  to 
that  of  a  legatee;  having  relinquished  her  dower,  which  is 
paramount  to  the  rights  of  creditors  as  well  as  of  legatees  or 
devisees,  she  thereby  became  a  purchaser  of  the  interest  rep- 
resented by  the  devise  uf  legaxry  to  her.  She  talces,  not  by  the 
bounty  of  the  testator,  but  in  virtue  of  a  contract  with  him, 
the  reciprocal  considerations-  being  tJie  relinquishment  by  the 
widow  of  her  right  of  dower,  thereby  enabling  the  testator  to 
dispose  of  his  estate  without  reference  thereto,  and  the  price 
offered  by  him  for  this  right,  consisting  in  the  devise  of  legacy 
to  her."" 

84  Woerner  on  Admin.  978.  Ch.  411,  413,  citing  Eng.  &  Am.  au- 

85§§105C6,    105G7,    105GS,  105G9       thorities;  Carper  vs.  Crowl,  149  111. 

G.    C,    §  1215.  465,  479;   Jarm  on  Wills   *467,  and 

86  Woorncr  on  Admin.  272.  Bigelow's    note,    p.    458,     collecting 

87  Isenhart    vs.    Brown.     1  Edw. 


§  687  PAYMENT  OF  LEGACIES  618 


"  Thus,"  says  the  same  author  in  another  place,^*  "  a  pro- 
vision for  a  widow  in  lieu  of  her  dower  right  entitles  her  to  take 
as  a  purchaser  for  a  valuable  consideration,  not  subject  to  that 
abatement  to  which  general  legacies  are  subject,^^  even  though 
the  value  of  the  legacy  be  in  excess  of  the  value  of  the  dower 
right,''**  and  tliough  the  will  was  made  before  marriage,  if  in 
contemplation  of  marriage,^^  and  although  the  gift  be  an  an- 
nuity payable  out  of  the  income."  ^^ 

The  provision  in  lieu  of  dower  is  held  to  be  superior  to 
specific,  as  well  as  general  legacies ;  these  must  abate  if  neces- 
sary to  satisfy  the  same.^^  But  whether  specific  devises  of 
real  estate  abate  in  favor  of  such  provision  is  not  so  unanimous- 
ly held.'* 

A  somewhat  difficult  question  might  arise  in  case  of  a 
legacy  given  in  lieu  of  dower,  as  to  its  abatement,  where  it 
was  in  the  nature  of  a  residuary  legacy,  should  the  assets  be 
insuflicient.  There  is  no  doubt  of  the  settled  rule  that  such 
legacies  are  to  be  favorably  considered,  and  if  possible  the  rights 
of  the  widow  or  widower  will  be  protected,  at  least  to  the  value 
of  those  rights  relinquished  by  the  acceptance  of  the  legacy.®^ 

The  judge  of  the  Probate  Court,  generally  finds  that  one  of 
his  most  difficult  duties,  is  to  correctly  inform  widows  and  wid- 
owers as  to  their  rights  under  the  will,  and  by  law  in  the  estate 

American  cases.     As  to   the  prefer-  citing  English  authorities;   Howard 

ence  of  legacies  in  lieu  of  dower  over  vs.  Francis,  30  N.  J.  Eq.  444,  448. 
other     legacies,     see     Woerner     on  ^i  Towle    vs.    Swasey,    106    Mass. 

Admin.  985,  and  cases.  100,   106;    Farnum  vs.  Bascom,  122 

88  Woerner  on  Admin.  985,  citing  Mass.  282,  289. 

authorities   given   below.  92  Moore   vs.   Alden,    80   Me.   301 ; 

89  Page  on  Wills,   §  776;    Security       Rowe  vs.  Lansing,  53  Hun.  210. 

Co.  vs.  Bryant,  52  Conn.  311;   Pol-  93  Borden    a's.    Jenks,     140    Mass. 

lard  vs.  Pollard,  1  Allen  490;  Lord  562;  Clayton  vs.  Aiken,  38  Ga.  320, 

vs.  Lord,  23   Conn.   327,  330;   Will-  332;    Loocock    vs.    Clarkson,    1    De- 

iamson  vs.  Williamson,   6  Pai.  298,  saus.  471,  475. 

305;   In  re  Gotzian,   34   Minn.    159,  9*  Affirmatively    in     the    case     of 

167;   See  Barnett's  Appeal,  104  Pa.  Borden  vs.  Jenks,  supra;  negatively 

St.  342,  in  which  the  widow's  legacy  in  Boykin  vs.  Boykin.  21  S.  C.  513, 

was  held  to  abate.  534,  and  Morse  vs.  Hayden,  82  Me. 

90  W^arren  vs.  Morris,   4  Del.   Ch.  223,  231 ;  Woerner  on  Admin.  985. 
289;   Brown  vs.  Brown,  79  Va.  648,  95  See   Page  on  Wills,    §776. 


619  LEGACIES  TO  CREDITORS  §  688 

of  the  deceased,  when  such  parties  are  making  their  election.^** 
Of  course  a  legacy  in  lieu  of  dower  could  not  have  preference 
unless  the  widow  was  entitled  to  dower.  Possibly  under  our 
statute,  the  iiile  would  apply  even  if  there  was  no  dower 
estate,  provided  the  widow  released  her  distributive  share  of 
the  personal  estate. 

While  personal  property  is  primarily  liable  for  the  payment 
of  bequests,  the  testator  may  change  or  exonerate  one  class  of 
his  property  for  the  payment  of  his  debts,  and  the  bequests 
made  to  his  widow  in  lieu  of  her  dower  have  been  held  to  be 
impliably  exonerated  from  the  payment  of  his  debts.^^ 

§  688.     Legacies  to  creditors. 

Legacies  to  creditors  are  like  those  spoken  of  in  the  pre- 
vious section,  made  upon  a  oonsideration,  and  are,  therefore,  en- 
titled to  a  preference.®^  The  rule  that  a  legacy  to  a  creditor  is 
a  satisfaction  of  the  debt,  is  subject  to  many  exceptions.  In 
general,  a  legacy  implies  a  bounty,  and  not  a  payment.®''  But 
one  who  accepts  a  bequest  and  is  put  to  his  election  between  the 
gift  in  the  will  and  a  claim  against  the  estate,  his  acceptance 
of  the  fonner  is  a  satisfaction  of  the  latter ;  and  it  is  imma- 
terial whether  what  he  takes  turns  out  to  be  of  greater  or  less 
value  than  that  which  he  surrendered.^"" 

The  cases  justify  the  following  statement  of  doctrine  on  this 
subject:  (1)  A  legacy  is  never  deemed  a  satisfaction  of  a  debt 
contracted  after  the  date  of  the  will.  (2)  It  is  not  considered 
a  payment  when  the  will  contains  an  express  direction  that  the 
debts  and  legacies  shall  be  paid,  such  as  "  after  all  my  debts 
and  legacies  are  paid,  then  I  give,"  etc.,  or  words  of  like  im- 
port. ^**^      (3)  Where  the  particular  motive  or  purpose  for  which 

»6  See    chapt.    on    election    under  loo  Caulfield  vs.  Sullivan,  85  N.  Y. 

wills,  §  1214  et  seq.  153. 

»T  Page    on    Wills,     §  763,    citing  loi  An    express    direction    for    the 

Calder  vs.  Curry,   17  R.  I.  610;   See  payment  of  all   the  testator's  debts 

§  946,  Dower  relinquished.  rebuts  the  presumption  that  a  leg- 

»8  Page    on    Wills.     §§776,    795;  acy  to  a  creditor  was  intended  as  a 

Woerner  on  Admin.  985.  satisfaction   of   the   debt    (Fort   vs. 

»9  Reynolds  vs.  Robinson,  82  N.  Y.  Gooding,  9  Barb.  371).     See  Bough- 

103.  ton  vs.   Flint,   5  Abb.  N.  Cas.   215; 


§  689  PAYMENT   OF   LEGACIES  620 

the  legacy  is  stated  in  the  will,  e.  g.,  as  a  token  of  regard,  or 
from  ancient  friendship,  or  from  relationship,  and  the  like,  it 
will  not  be  deemed  a  satisfaction  of  the  debt.  (4)  Where  the 
legacy  is  contingent  and  uncertain,  or  payable  at  a  future  time, 
or  upon  condition,  it  is  not  a  satisfaction.  (5)  Where 
the  legacy  is  less  than  the  debt,  or  the  debt  is  unliqui- 
dated, or  in  negotiable  paper,  or  in  a  current  account,  the 
debt  is  not  satisfied.  (6)  Where  the  legacy  is  of  a  different 
nature  from  the  debt,  as  where  the  testator  is  indebted  by  bond, 
and  he  bequeaths  an  interest  in  land,  it  is  not  a  satisfaction. 
(7)  A  specific  legacy  is  never  a  satisfaction,  unless  expressly 
so  declared  by  the  will,  and  it  is  so  accepted  by  the  legatee."^ 
The  general  rule  is  that  the  effect  of  a  legacy  to  testator's 
creditor  is  governed  by  testator's  intent,  and  that  an  intention 
thereby  to  pay  the  debt  must  be  either  evidenced  by  the  lan- 
guage of  the  will  or  be  fairly  inferable  from  the  circum- 
stances.^*'^ 

§  689,     Legacy  to  a  debtor. 

Where  a  testator  gives  a  legacy  to  one  who  is  indebted  to 
him,  without  any  expression  of  his  intention  to  release  such 
debt,  the  mere  fact  of  giving  such  legacy  does  not  of  itself  oper- 
ate as  a  release  of  the  debt."*  In  such  cases  the  indebtedness 
may  be  deducted  from  the  legacy  where  the  legacy  exceeds  the 
indebtedness,  as  a  proper  means  of  adjusting  the  mutual  credits. 
A  bequest,  however,  by  the  testator  to  his  debtor  of  the  amount 
of  his  debt,  is  a  forgiveness  of  the  debt,  and  might  be  classed  as 
being  a  specific  legacy."^     The  naming  of  a  person  as  executor 

s.   c.   74   N.   Y.   476;    rev'g    13   Hun  103  Redf.    Sur.   Prac.   615;    See   13 

206.  Bull   564. 

io2Willard    on   Ex'rs    360;    Will-  loi  Page    on    Wills,    §794,    citing 

iams  vs.  Crary,  5   Cow.  368;   8  Id.  Hayward  vs.  Leper,  147  III.  41,  af- 

246;    4  Wend.   443;    Clarke  vs.   Bo-  firming  49   111.  App.  53;    Spath  vs. 

gardus,  12  Wend.  67;  Compare  Mul-  Ziegler,  48  La.  Ann.   1168;    Sleeper 

heran  vs.  Gillespie,  Id.  349;  and  see  vs.  Kelley,  65  N.   H.  206;    Bailey's 

Eaton  vs.  Benton,  2  Hill  576.  Estate,  153  Pa.  St.  402 ;  Chaffee  vs. 

A   legacy   to   the   creditor's   wife,  Maker,  17  R.  I.  739. 

and  its  acceptance  is  not  an  extin-  los  Showell   vs.    Showell,    5    Barb, 

guishment.      (Mulheran    vs.    Gilles-  312. 
pie,  12  Wend.  349.) 


621  LEGACY  TO  DEBTOR,  ETC.  §  690 

in  a  will  does  not  as  at  common  law,  discharge  any  just  claim 
which  the  testator  had  against  the  executor."®  Such  a  be- 
quest is  like  any  other  bequest,  liable  to  be  taken  as  assets  to 
pay  the  testator's  debts,  and  as  before  herein  stated,  the  executor 
may,  where  the  legatee  is  indebted  to  the  testator,  retain  either 
in  partial  or  full  satisfaction  of  the  debt  by  way  of  set-off."' 
A  legatee  is  bound  by  a  recital  in  the  will  of  a  debt  due  by 
him,  except  in  a  clear  case  of  a  mistake  in  figures.  A  will  pro- 
vided that  as  testator  was  not  indebted  to  any  of  his  children, 
any  judgment  got  on  a  claim  by  any  of  them  should  be  de- 
ducted from  his  share.  One  child  held  testator's  note  and 
transferred  it  to  a  person  who  got  judgment  on  it  against  the 
estate.  The  same  child  also  had  a  claim  against  the  testator 
for  the  price  of  land  he  had  sold  for  her  and  had  not  paid  her, 
and  she  got  judgment  on  this  against  the  estate,  both  judgments 
having  been  paid  by  the  executor.  Held,  both  judgments  must 
be  deducted  from  said  child's  share."^ 

§  690.    Legacies  charged  on  land. 

Originally  at  common  law,  real  estate  was  not  liable  for  the 
debts  of  a  decedent.  From  this  followed  the  docrine,  that 
real  estate  is  not  subject  to  the  payment  of  a  legacy,  unlesis  it 
appears  to  have  been  the  intention  of  the  testator  to  make  such 
real  estate  liable  therefor;  and  the  doctrine  still  remains  that, 
in  the  absence  of  anything  in  the  will  showing  a  contrary  in- 
tention, legacies  are  never  to  be  paid  out  of  real  estate."^ 

To  enter  into  a  discussion  of  this  subject,  is  not  within  the 
province  of  this  work.  Suffice  to  say,  that  when  a  person  makes 
a  bequest,  it  may  be  fair  to  presume  that  he  expects  its  payment 
to  be  made  out  of  his  property,  and  it  will  not  take  very  strong 
language  to  give  a  construction  that  real  estate  may  be  used  for 

108  See  §  389.  costs  of  administration  and  legacies 
107  Woerner      on      Admin.      975  j       provided    for    in    the    will    are    not 

Schoul.  Exrs.,  §  470.  made  a  charge  on  the  land,  pro- 
log ( Supr.  Ct.  not  rep. ) ;  Sheets  ceeds  derived  from  the  sale  of  the 
vs.  Hunter,  37  B.  283.  land  do  not  fall  in  the  residium  but 
A  debt  due  to  a  legatee,  as  physi-  pass  to  the  heirs  for  want  of  a  fund 
clan  for  services,  is  not  extinguished  out  of  which  they  may  be  paid. 
by  a  legacy  of  $5,000  "to  my  good,  Ferguson  vs.  Wentz,  27  Dec.  462. 
kind,  attentive  physician.  Dr.  G.,"  he  A  devise  to  a  son  of  a  certain 
need  not  elect,  but  is  entitled  to  tract  of  land  upon  consideration 
both.  Swing  vs.  Gatch,  7  Am.  L.  that  he  pay  to  a  daughter  a  cer- 
Rec.  5;  3  B.  571.  tain    sum    devised,    is    a   charge   on 

109  Page  on  Wills,  §747;  Geiger  the  farm  and  in  such  case  the 
vs.  Worth,  17  0.  S.  564.  personal     property     is     exonerated 

When  a  testator's  personalty  is  from  its  payment.  Lacy  vs.  Buel- 
not  sufficient  to  pay  Ms  debts  and      sail,  33  0.  C.  C.  460. 


§  691  PAYMENT  OF  LEGACIES  622 

the  payment  of  such  legacies.  Especially  is  this  true,  where  the 
realty  aud  personalty  is  blended  in  one  fund/^'^  If  a  devisee 
of  land  charged  with  the  payment  of  legacies  accept  the  devise, 
he  has  the  personal  duty  imposed  on  him  to  pay  without  refer- 
ence to  the  fact,  whether  the  property  devised  and  accepted, 
is  sufficient  for  that  purpose.^^^  However,  to  charge  legacies 
on  land,  so  that  the  devisee  is  required  to  pay  them,  the  inten- 
tion to  make  it  such  a  charge  may  be  implied,  but  the  intention 
must  be  clear/^"  A  provision  that  certain  property,  part  of 
which  is  realty,  is  to  be  used  for  the  payment  of  debts,  clearly 
charges  the  debt  upon  the  realty/"  And  where  a  testator  gives 
legacies  in  excess  of  the  amount  of  his  personal  property,  this 
will  be  held  to  be  a  manifestation  of  his  intention,  that  his  real 
estate  may  be  used  for  the  payment  of  such  legacies.^^* 

Subject  to  the  payment  of  debts  and  expenses  of  administer- 
ing the  estate,  the  testator  may  make  any  portion  or  part  of  his 
property  responsible  for  the  payment  of  his  legacies  and  in 
such  a  manner  as  he  may  choose/'^  The  devisee  of  land  incum- 
bered by  a  mortgage  is  not  entitled  to  have  the  debt  paid  out  of 
personalty  and  realty  specifically  devised  to  others,  but  takes 
cum  onere  unless  there  is  personalty  or  realty  not  specifically 
devised  from  which  to  pay  the  debt,^^® 

§  691.     Legacy  for  liic. 

It  was  at  one  time  veiy  much  questioned  whether  a  life  es- 
tate could  be  created  in  personalty,  but  it  is  now  well  settled 
that  as  a  general  rule  such  estate  may  be  created/^^     Where 

110  Moore  vs.  Beckwith,  14  0.  S.  on  Wills;  Woerner  on  Admin.  1096- 
129;    Longley   vs.    Stump,    11    Bull       7. 

247;  Hunt  vs.  Hayes,  19  C.  C.  151;  ne  Tucker   vs.    Lungren,    5    C.    D. 

10  C.  D.  388.  577;    12  C.  C.  622. 

111  Fuller  vs.  McEwen,  17  O.  S.  n"  King  vs.  Beck,  15  Ohio  559; 
288.  Pruden  vs.   Pruden,    14   O.   S.   251; 

112  Clyde  vs.  Simpson,  4  O.  S.  445.  Keating    vs.    Reynolds,    1    Bay     (S. 

113  Watts  vs.  Watts,  38  0.  S.  480.       Car.)    80;    Williamson   vs.   Hall,    10 
ii*Townsend  vs.  Townsend,  25  0.       Am.  Law  Reg.  N.  S.  466. 

S.  477;   Dean  vs.  Loewenstein,  6  C.  See   §597   and   cases   there  cited, 

C.  587 ;   3  C.  D.  597.  Page  on  Wills. 

115  See  discussion.  Chapt.  35.  Page 


623  LEGACY   FOB   LIFE  §  691 

personal  property  is  bequeathed  tO'  one  for  life  only  with  re- 
mainder over,  it  sometimes  becomes  an  important  question 
whether  the  first  taker  is  entitled  to  the  possession  and  control 
of  the  coi-pus  of  the  property,  and,  if  so,  whether  the  first  taker 
must  give  bond  for  the  repayment  of  the  same  at  the  expiration 
of  the  life  estate.  Where  the  property  is  bequeathed  in  this 
way  in  trust,  it  is  elsewhere  held  the  first  taker  has  no  right  to 
the  possession  of  tlie  corpus  of  the  property.^^* 

Where  the  property  is  given  for  life,  and  no  trust  is  created, 
the  beneficiary  has  a  right  to  the  possession  of  the  corpus  of 
the  property  without  the  intervention  of  a  trustee."^  Where  a 
trustee  is  appointed  by  will  during  the  minority  of  the  life  ten- 
ant, the  tenant  is  entitled  to  the  possession  of  the  property  on 
coming  of  age/-°  In  Ohio  and  other  States  it  is  held  that  the 
life  tenant  is  entitled  to  the  possession  of  the  personal  property 
without  giving  any  bond  for  the  repayment  of  the  same,  unless 
some  special  showing  is  made,  which  will  induce  the  Court  in 
its  discretion  to  require  such/"^ 

Where  life  tenant  has  power  to  dispose  of  the  corpus  as  he 
sees  fit,  his  right  to  the  possession  of  the  property  without  giving 
bond  is  generally  recognized/^^  Dividends,  upon  stock  owned 
by  testator  which  have  been  declared  at  the  time  of  the  testator's 
death,  although  payable  subsequently  or  even  if  the  dividends 
were  declared  at  a  subsequent  time,  for  a  period  which  had 
expired  at  or  before  the  death  of  the  testator,  are  payable  to 
the  estate  and  do  not  go  to  a  life  tenant.  The  subject  of  divi- 
dends and  to  whom  they  should  be  paid  in  case  of  life  tenants 

•118  La   Bar's    Estate^    181    Pa.    St.  Martin  vs.   Lapham,   38   0.   S.   538; 

1 ;  Reynold's  Estate,  175  Pa.  St.  257.  Ratliff  vs.  Warner,  32  0.  S.  334. 

113  Fox  vs.  Senter,  83  Me.  295;  This  doctrine  has  been  applied 
Kuykendall  vs.  Devecmon,  78  Md.  even  where  the  life-tenant  is  a  non- 
537  ;  White  vs.  Massachusetts  In-  resident  and  is  financially  irrespon- 
stitute  of  Technology,  171  Mass.  84;  sible,  it  being  held  that  sec-urity  can 
Henderson  vs.  Kinard,  29  S.  Car.  15.  be    required    only    upon    a    showing 

120  Kuykendall    vs.    Devecmon,    78  that    the     life     tenant     intends     to 

Md.  537.  squander    the    corpus.     Martin    vs. 


121  Bierce  vs.  Bierce,  41  O.  S.  241 
Posegate  vs.  South,  4G  O.  S.  391 
Lapham   vs.   Martin,    33   0.    S.   99 


Lapham,  38  O.  S.  536. 

122  Posegate  vs.  South,  46  O.  S. 
391 ;  Langley  vs.  Farmington,  66  N. 
H.  431;   Woerner  on  Admin.  999. 


§  692  PAYMENT   OF  LEGACIES  624 

and  remaindeniian,   is  one  of  considerable  difficulty   and  the 
courts  do  not  seem  to  be  in  accord. ^"^ 

§  692.     Legacies  in  the  nature  of  incomes  and  annuities. 

A  testator  within  the  lailes  prescribed  by  law  may  make  such 
disposition  of  his  property  as  he  sees  fit,  and  may  dispose  of  his 
property  by  piece  meal  in  the  way  of  incomes  or  annuities/'* 

An  annuity  is  a  right  to  the  payment  of  a  specified  sum  of 
money  at  stated  intervals,  usually  annually  or  at  aliquot  parts 
of  a  year.^'^  One  of  the  chief  points  of  difference  between  a 
gift  of  income  and  an  annuity  is,  that  a  gift  of  income  fails  if 
the  principal  of  the  estate  is  not  sufficient  on  investment  to  pay 
the  income  bequeathed ;  ^'^  while  an  annuity  does  not  fail  be- 
cause the  net  income  is  insufficient  to  p'ay  it  in^  full,  but  is 
payable  out  of  tlie  principal. ^*^ 

Where  the  testator  absolutely  gives  the  beneficiary  a  given 
income  and  merely  indicates  in  his  wull  the  source  from  which 
it  is  to  be  obtained,  tlie  general  rule  is  that  the  income  in 
such  cases  is  to  be  estimated  from  the  death  of  testator,  enough 
of  the  capital,  if  necessary,  being  retained  to  pay  the  income 
during  the  period  in  whicK  tlie  fund  is  non-p-roductive.^"^  This 
rule  holds  good  even  where  the  first  payment  is  to  be  made  only 
when  "  sufficient  funds  for  that  purjwse  shall  come  "  into  the 


123  See  Woerner  on  Admin.  1002;  i25  Dewey's  Estate,  153  N.  Y.  63; 
Page  on  Wills,  §  602;  See  §  1398,  As  Kearney  vs.  Cruikshank,  117  N.  Y. 
to  dividends.  95. 

124  See  §  1287  et  seq.,  as  to  in-  It  need  not  be  paid  annually, 
come,  etc.  Cunimings  vs.  Cummings.  146  Mass. 

See  chapter  next  to  index  for  ta-  501 ;  Pierce's  Estate,  56  Wis.  560. 

bles,  etc.  1 26  Dewey's  Estate,   153  N.  Y.  63. 

It  cannot  be  within  the  province  127  Addition    vs.    Smith,    83    Me. 

of  this  work  to  give  an  extended  dis-  551;   Merritt  vs.  Merritt,  48  N.  J. 

cussion  of  this  subject,  and  it  more  Eq.  1 ;   Whitson  vs.  Whitson,  53  N. 

properly  belongs  to  the  duties  of  a  Y.  479;   Curran  vs.  Green,   18  R.  I. 

testamentary  trustee  than   to  those  329. 

attaching    to    an    administrator    or  128  Griggs    vs.    Veghte,    47    N.    J. 

executor.     But  by  reason  of  its  sim-  Eq.    179;   Stanfield's  Estate,   135  N. 

ilarity   to   legacies   is   inserted  here.  Y.  292. 
See  Chapt.  26,  Page  on  Wills. 


625  INCOMES   AND   ANNUITIES  §  692 

hands  of  the  trustee/^®  A  gift  of  the  income  generally  means 
a  gift  of  the  net  income  after  deducting  taxes  and  other  ex- 
penses necessary  to  the  preservation  of  the  property  from  which 
the  income  is  derived/^"  So  where  the  education  of  minors  i3 
charged  upon  testator's  estate^,  the  estate  may  be  distributed 
upon  withholding  a  sum  adequate  for  such  education/^^ 

Assessments  for  sewers  and  street  paving  must  be  deducted 
from  the  income  under  a  will  providing  that  "  all  reasonable 
repairs  and  improvements "  shall  be  deducted  from  the  in- 
come/^^  But  where  "  taxes  were  made  payable  out  of  the  in- 
come given  to  life  tenant,  it  was  held  that  sewer  assessments 
could  not  be  deducted  from  such  income.^^^  Where  a  life 
tenant  does  not  expend  the  entire  income  of  the  estate  in  which 
he  has  an  interest,  a  question  is  presented  as  to  the  proper  dis- 
position to  make  of  such  accumulation  at  his  death.  If  he  has  a 
life  estate,  it  was  held  that  the  income  was  his  absolutely,  and 
that  any  accumulations  are  the  property  of  the  life  tenant,  ?nd 
at  his  death  are  to  be  distributed  as  part  of  his  estate/^* 

If,  however,  the  first  tenant  has  not  a  life  estate,  but  is  merely 
given  a  proper  and  suitable  maintenance  and  support  out  of  the 
estate  for  his  life,  the  life  tenant  only  has  a  right  to  so  much 
of  the  income  of  the  estate  as  is  reasonably  necessary  and  proper 
for  his  support,  and  the  accumulations  will  pass  either  under 
a  residuary  clause  or  as  property  not  disposed  of  by  will/^' 

If  the  beneficiary  dies  between  the  periods  for  the  payment  of 
income,  it  is  now  held  that  the  income  should,  in  such  case,  be 
apportioned,  provided  it  is  an  absolute  gift  of  income  and  not  a 

128  Crew  vs    Pratt,   119  Cal.   131;  i32  Warren   vs.    Warren,    148    111. 

Page  on  Wills,   §  601.  641. 

130  Duke    of    Cleaveland's    Estate,  i33  Chambers  vs.  Chambers,  20  R. 

(1894,  1  Ch.  164)  ;  Heard  vs.  Read,  I.  370. 

169  Mass.   216;   Morse  vs.  Morrell,  "tEldred    vs.    Shaw,    112    Mich. 

82  Me.  80 ;  Dickinson  vs.  Henderson,  237 ;   Schwartz  vs.  Gehring,  7  C.  C. 

(Mich.)      (1900),    81    N.    W.    583;  426;  4  C.  D.  662;    (in  case  the  will 

Dewey's  Estate,  1.53  N.  Y.  63;  Boggs  gave  the  life  tenant  "  the  use  of  all 

vs.  Taylor,  29  0.  S.  172.  my  real  and  personal  property  dur- 

i3iNeff   vs.    Neff,    3    W.    L.    Gaz.  ing  her  life.") 

67 ;  Page  on  Wills,  §  602.  iss  Page  on  Wills,  §  605. 


§  693  PAYMENT  OF  LEGACIES  626 

gift  of  support  merely/^®  Common  law  and  equity  were  op- 
posed to  apportionment  of  annuities  where  the  annuitant  dies 
between  the  days  of  payment/^^  An  exception  was  always 
made  to  this  rule  in  jurisdictions  when  a  widow  who  elected  to 
take  in  lieu  of  dower  was  held  to  be  a  purchaser  for  value,  in 
favor  of  annuities  bequeathed  in  lieu  of  dower/^^ 


§  693.     Abatement  of  legacies. 

When  there  are  not  sufficient  assets  to  pay  all  the  legacies, 
according  to  the  rules  established  by  law,  or  the  declared  in- 
tention of  the  testator,  those  which  are  not  paid,  are  said  to 
abate.  Of  course  no  legacy  can  be  paid  at  the  expense  of  valid 
debts  of  the  testator,  for  tlie  law  will  compel  a  man  to  be  just, 
before  it  will  allow  him  to  be  generous.  The  order  of  abate- 
ment of  legacies  whether  by  will  directly  expressed,  or  by  rules 
of  law,  are  founded  upon  the  intention  of  the  testator.  Where 
the  decedent  does  not  direct  the  order  in  which  legacies  should 
abate,  the  following  is  the  order  of  their  abatement:  First, 
residuary  legacies,  second,,  general  legacies,  third,  legacies  given 
for  a  valiiable  consideration  or  the  relinquishment  of  dower  oi 
some  right  or  interest,  fourth,  specific  and  demonstrative  lega- 
cies. Thus  if  a  will  provided  legacies  of  the  above  mentioned 
class,  and  the  assets  were  insufficient,  the  first  class  that  would 
suffer  would  be  the  residuary  legacies,  and  after  that,  general 
legacies,  then  those  for  a  valuable  consideration,  and  last  spe- 
cific and  demonstrative  legacies.  These  various  legacies  abate 
pro  rata  in  the  class  to  which  they  belong,  as  a  general  rule.^'" 
Of  course  if  the  will  shows  that  one  legacy  of  a  class  should 
have  preference  over  another  of  the  same  class,  such  preference 
would  be  given. 

136  Page  on  Wills,  §  606.  i^s  Cushing's    Will,    58    Vt.    393; 

In  the  absence   of  instructions  in  Page   on   Wills,    §  609 ;    Woerner   on 

the    will    there    is    a    contrariety    of  Admin.  994,   1002;   Schoul.   Ex.  479. 

opinions.     Henry  vs.   Henderson,   63  i"0  See   Page  on  Wills,  chapt.   '57. 

L.  R.  A.  616;    (Miss.)    1905,  holding  A   recent    Connecticut   case   holds 

it  not  apportionable.  it    not    apportionable.       Slower    vs. 

i"7Wiggin     vs.      Swett,      6     Met.  Sanford    (1905),    63    L.    R.    A.    Clo, 

(Mass.)      194;     39     Am.    Dec.    710;  and   extensive   note. 

Kearney  vs.   Cruikshank,    117   N.   Y.  Where  the  will  has  a  number  of 

^5.  provisions  the  court  will  look  at  all 


627  GENERAL  RULES  AS  TO  §  694 

§  694.     General  rules  as  to  payment. 

The  general  rules  in  regard  to  the  payment  of  legacies, 
^here  no  time  is  fixed  or  indicated  by  the  will,  together  with 
the  interest  thereon,  may  be  stated  thus : 

First.  Specific  legacies  are  considered  as  severed  from  the 
bulk  of  the  testator's  property;  by  the  operation  of  the  will; 
from  the  death  of  the  testator ;  and,  as  specifically  appropriated, 
with  the  income  and  increase  thereof  for  the  benefit  of  the 
legatee  from  that  period,  and  interest  is  computed  thereon  from 
the  death  of  the  testator."** 

Second.  General  legacies  are  not  payable  until  one  year  from 
the  issuing  of  letters  testamentary,  but  draw  interest  from  the 
expiration  of  one  year  after  the  testator^s  death,  as  at  common 
law."^ 

Third.  A  legacy  given  to  a  widow,  in  lieu  of  dower,  where  the 
testator  died  seized  of  real  estate  of  which  she  was  dowablej 
draws  interest  from  the  death  of  the  testator. 

Fourth.  A  legacy  given  in  satisfaction  of  a  debt  draws  in- 
terest from  the  testator's  death. 

Fifth.  A  legacy  given  to  a  child  of  the  testator,  or  one  to 
whom  the  testator  has  placed  himself  in  loco  parrentis,  will,  if 
such  child  is  an  infant,  and  is  not  otherwise  provided  for  by 
the  testator's  bounty,  or  in  some  other  way,  draw  interest  from 
the  testator's  death,  to  provide  means  for  the  support  and  main- 
tenance of  such  infant  child ;  the  amount  of  interest  for  the 
first  year  to  be  fixed  by  the  Court  according  to  circumstances, 
not,  however,  to  exceed  the  amount  necessary  for  the  proper  sup- 
port, education  and  maintenance  of  such  infant  during  the  year 
succeeding  the  testator's  death.^*^ 


the  provisions  of  the  will  and  the  N".  P.  40;  9  Dec.  607;  12  Dee.  405. 

surroiindino;  conditions  of  the  testa-  See   §  327,   Right   barred   by   will 

tor    in    determining    which    of    the  or  contract. 

legacies    shall    abate.      Youtsey    vs.  While  the  contest  of  a  will,  pend- 

Bowman,   6   N.   P.    (N.S.)    381  j    18  ing  its  determination,  is  an  impedi- 

Dcc.  ,577.  ment  to  the  payment  of  the  legacy 

140  See  §675.  thereunder,  yet  it  will  not  prevent 

I'll  Webster  vs.   Bible  Society,   50  it  drawing   interest  after   one   year 

O.  S.  1 ;  Gray  vs.  Case  School,  02  O.  from     tlie    date    of    the     executor's 

S.  1.  qualification.     Ebersole  vs.  Cole,  19 

i-t2Krigbaum     vs.     Southard,     23  N.  P.  507;  27  Dec.  175. 
Bull.  438;   Langhorsfc  vs.  Alilers,   7 


§  695  PAYMENT   OF   LEGACIES  628 

Sixth.  An  annuity  draws  interest  from  tlie  death  of  the  testa- 
tor in  the  absence  of  any  direction  contained  in  the  will  to  the 
contrary. 

Seventh.  A  general  legacy  of  a  specific  amount  bequeathed  to 
one  for  life,  with  remainder  over,  on  the  death  of  the  life 
tenant,  will  begin  to  draw  interest  at  the  end  of  twelve  months 
from  the  death  of  the  testator ;  and  the  first  payment  of  interest 
will  become  due  thereon  at  the  expiration  of  the  second  year. 

Eighth.  A  life  tenant  of  the  residue  of  the  testator's  estate 
will  be  entitled  to  the  net  earnings  of  such  residue  from  the  tes- 
tator's death,  after  providing  for  the  payment  of  debts  and  other 
legacies."^ 

§  695.    When  legacies  should  be  paid. 

If  the  legacy  is  paid  before  the  time  limited  by  law  for  credi- 
tors to  present  their  claims,  it  is  done  at  the  peril  of  the  execu- 
tor or  administrator.  If  the  administrator  or  executor  is  satis- 
fied beyond  question  that  the  assets  will  be  sufficient  to  pay  all 
the  legacies  as  well  as  the  debts  of  the  decedent,  legacies  ought 
to  be  paid  when  sufficient  assets  are  realized.  Unless  the  admin- 
istrator or  executor  is  so  satisfied  he  should  not  make  pay- 
ment on  any  legacy  until  eighteen  months  have  elapsed  from  the 
date  of  his  giving  bond.  If  legatees  desire  their  legacies  at  an 
earlier  date  the  law  provides  a  method  in  which  to  acquire  them. 
In  the  case  of  specific  legacies  as  we  have  heretofore  seen,^"  the 
legatee  can  acquire  immediate  possession  by  giving  a  re-deliv- 
ery bond;  and  if  other  legatees  desire  their  legacies  and  there 
are  assets  in  the  hands  of  the  executor  or  administrator,  they 
may  require  pajnnent  by  giving  an  indemnity  bond  as  provided 
in  the  subsequent  section.  The  question  whether  or  not  an 
administrator  or  executor  will  be  required  to  pay  a  legacy  is 
vested  in  the  Probate  Court.^*^ 

143  Rice     Prob.     Law;     Page     on  Langliorst  V3.  Ahlers,  12  Dec.  405; 

Wills,  §§  499,  7S8,  804;  Woerner  on  65  0.  S.  600. 

Admin.    100.5-1012.            '  An  executor  can  not  be  compelled 

Where  a  will  devised  $25,000  to  A  to    pay    a    legacy    before    eighteen 

and  H  to  be  divided  share  and  share  months    from    the    date    of   his    ap- 

alike,     when     each     arrives     at    24  pointment   Tinless  bond  is  given  as 

years  of  age,  and  A  arrives -of  age  required   by    §  10762    G.    C.      Wella 

seven  years  before  H,  H  is  not  en-  vs.  King,  19  N.  P.  184. 

titled  to  interest  from  the  time  A  i^*  See  §  675. 

was  entitled  to  receive  her  legacy.  i^s  The  assets  constitute  a  trust 


629  WHEN   SHOULD   BE   PAID  §  686 

"While  the  statute  seems  to  contemplate  that  a  payment  might 
ibe  ordered  without  giving  the  bond,  yet  the  administrator  or 
executor  except  in  rare  instances  ought  to  be  protected  by  an 
indemnity  bond,  and  in  no  case  ought  he  be  required  to  pay  a 
legacy  before  the  eighteen  months'  limitation  for  creditors  to 
present  their  claims  has  expired.  Unless  the  remaining  assets 
to  pay  creditors  are  sufficient  beyond  all  reasonable  question. 
After  the  expiration  of  the  time  limited  for  presentation  of 
creditors'  claims,  a  failure  to  pay  might  make  the  executor 
or  administrator  liable   on  his  bond.^*® 

§  696.  If  any  legatee  require  legacy  to  be  paid  within 
eighteen  monti.s,  court  may  require  him  to  give  bond.  "When 
within  eighteen  months  after  having  given  bond  for  the  dis- 
charge of  his  trust,  an  executor  or  administrator  is  required  by 
any  legatee  or  next  of  kin,  to  make  payment  in  whole  or  part, 
of  his  legacy  or  distributive  share,  if  it  deems  fit,  the  court  may 
require  that  the  legatee  or  the  next  of  kin  first  give  bond  to 
the  executor  or  administrator,  with  surety  or  sureties  approved 
by  the  court,  conditioned  to  refund  the  amount  so  to  be  paid, 
or  as  much  of  it  as  may  be  necessary  to  satisfy  demands  that 
afterward  may  be  recovered  against  the  estate,  and  to  in- 
demnify the  executor  or  administrator  against  loss  and  damage 
on  account  of  such  payment."     [R.  S.  §  6128;  102  v.  204.]  '" 

fund,  first,  for  creditors,  and  second-  the    death    of    testator,    it    appears 

ly,  for  the  legatees  and  distributees.  that  it  may  safely  be  done. 
Over    the    administration     of     this  The  condition,  age  and  surround- 

trust  by  the  executor  or  administra-  ings  of  a  testator  may  be  talcen  into 

tor,    the    authority    of    tlie    probate  consideration  by  courts  in  determin- 

court  is  ample  to  see  that  the  fund  ing  probabilities,  and  where  it  thus 

is  faithfully  applied  for  the  benefit  appears   that   after   paying   the  leg- 

of   tliose   to   whom   it   belongs.      To  acy  ample  property  of  tlie  estate  is 

this  end,  where  payment  is  required  left  to  satisfy  all  claims  that  might 

of  a  legacy  or  distributive  sliare,  be-  possibly  l)e  presented,  and  where   it 

fore   the   time   has   elapsed,   allowed  appears  that   the   requirement  of   a 

for  creditors  to  present  their  claims,  bond  to  protect  the  executor  would 

the  court  is  expressly  authorized  to  be  a  great  hardship  to  the  legatee, 

require  the  executor  or  administra-  payment  to  him  of  the  legacy  with- 

tor  to  be  indemnified  by  a  refunding  out    giving   such    bond    may    be   or- 

bond    against    the    consequences    of  dered.     In  re  Isherwood's  Estate,  7 

such    payment.      Dawson    vs.    Daw-  N.  P.  332;  See  Disney  vs.  Hawes,  12 

son,  2.5  0.  S.  4.50.  Bull.  322. 

1^0  See     §§10743,     10744,    G.    C,  If    payment    is    made    before    re- 

§26.5.  quired    to   a   legatee,   this   does   not 

Where   the  will    leaves   the   time  prevent    it   being   credited   to   share 

when  a  legacy  should  be  paid  in  the  of    beneficiary    on    final    settlement, 

discretion   of  the  executor,   yet   the  Westwater    vs.    Gintner,    18    N.    P. 

courts  can   direct   the   legacy  to  be  209. 
paid,    notwithstanding    such    discre-  i*^  §  10762  G.  C. 

tion  given  to  the  trustee,  when  after 
the  lapse  of  a  reasonable  time  since 


§  697  LEGACIES  63( 


4  697.     Application  for  order  requiring  payment. 

If  the  legatee  desires  a  payment  to  him,  or  a  delivery  to  himj 
of  specific  articles,  he  should  file  an  application  in  the  Probate! 
Court  setting  forth  the  facts  upon  which  he  expects  to  rest  his 
application.  This  application  should  show,  outside  of  prelim- 
inary matters,  that  the  executor  or  administrator  has  assets 
in  his  hands  which  could  be  applied  on  the  payment  of  such 
legacies.  It  should  also  allege  a  willingness  on  the  part  of  the 
legatee  to  give  such  bond  of  indemnity  as  the  Court  might  re- 
quire, or  if  not,  to  allege  a  good  ground  for  not  giving  bond,  etc. 
The  administrator  or  executor  should  enter  his  appearance  to 
the  action,  if  not  tlie  Court,  should  order  that  a  notice  be  deliv- 
ered to  him.^** 

§  698.     Form  of  application. 

{Title.) 

Now  comes  A.  B.  and  represents  to  the  Court  that  on  the day  of 

,  C.  D.  was  duly  appointed  and  qualified  as  executor  (or  ad- 
ministrator  with   the   will   annexed)    of  E.   F..   deceased,   by   the   Probate 

Court  of county,  and  that  he  is  still  acting  as  such  executor. 

That  the  said  E.  F.  bequeathed  by  his  will,  which  is  probated  in  the  Pro- 
bate Court  of county  to  the  said  A.  B.    (here  state  what). 

That  the  said  C.  D.,  executor,  has  in  his  hands  sufficient  assets  to  pay 
said  legacy  as  provided  in  said  will,  and  all  debts  of  decedent,  that  he  has 
requested  said  executor  to  pay  said  legacies,  but  that  said  executor  has 
neglected  and  refused  so  to  do.  Said  A.  B.  further  alleges,  that  he  i« 
willing  to  give  a  bond  of  indemnity  to  the  said  C.  D.,  as  executor  in  such 
sum,  and  with  such  security  as  the  Court  may  require.  Wherefore  he 
prays  that  order  may  be  made  by  the  Court,  requiring  said  C.  D.  to  pay 
to  said  A.  B.  the  legacy  to  him  bequeathed  by  E.  F.,  deceased. 

Sworn  to  and  subscribed  before  me  and  in  my  presence,  this day 

of ,   190... 

§    699.     Hearing,    etc. 

If  the  executor  has  entered  his  appearance,  the  Court  might 
proceed  to  an  immediate  hearing  of  the  case.  If  the  executor 
has  not  entered  his  appearance,  the  Court  should  make  an  entiy 

14S  A  suit  to  collect  a  legacy  can  See  Gray  vs.  Case  School,  62  0.  S. 

only    be     brought     in     the     Probate       1,   7;    Lapham  vs.   Martin,  S3   0.  S. 
Court.      Smith    vs.    Havker,    9    Eec.       99. 
488;  41  0.  S.  236. 


631  BOND,    ETC.  I  700 

setting  the  case  down  for  a  date  for  hearing  and  also  requiring 
a  notice  to  be  issued  to  the  executor,  stating  the  time  of  hearing 
and  the  nature  of  the  complaint.  The  following  may  be  used 
as  an  order  requiring  bond,  etc,^^^ 

FORM    OF    ENTRY. 

(Title.) 

This  day  came  A.  B.,  a  legatee  under  the  will  of  E.  F.,  deceased,  and 
filed  his  application  in  this  Court  for  an  order  requiring  C.  D.,  executor 
of  the  estate  of  said  E.  F.,  to  pay  a  legacy  bequeathed  to  said  A.  B.  by 
E.  F.,  deceased;  and  it  appearing  to  the  Court  that  C.  D.  has  assets  in 
his  possession  belonging  to  said  estate  which  may  be  applied  on  the  pay- 
ment of  said  legacy,  it  is  ordered  that  said  A.  B.  give  bond  to  the  said  C. 

D.  in  the  sum  of dollars,  the  sureties  to  be  approved  by  this 

Court,  conditioned  according  to  law,  and  that  this  cause  be  continued 
imtil  such  bond  be  filed  herein  and  approved  by  the  Court. 

§  700.     Form  of  bond. 

I 

'     Know  all  men  by  these  presents,  that  we,  A.   B.,  C.  D.  and  E.  F.  are 

held  and  firmly  bound  unto  G.  H.  in  the  sum  of dollars ;   for 

the  payment  of  which  we  do  hereby  jointly  and  severally  bind  ourselves: 

Whereas,  said  G.  H.,  executor  of  the  last  will  and  testament  of  I.  J., 

has  this  day  paid  to  said  A.  B.  the  sum  of dollars  on  a  legacy 

left  to  him  by  the  said  I.  J.,  in  his  last  will  and  testament,  and  four  years 
not  having  expired  from  the  time  said  G.  H.  gave  bond  for  the  discharge  of 
his  trust  as  said  executor.  Now  the  condition  of  the  above  obligation  is 
Such  that  if  the  said  A.  B.  shall  refund  said  amount  paid  to  him,  or  so 
much  thereof  as  may  be  necessary  to  satisfy  any  demands  that  may  be  re- 
covered against  the  estate  of  said  I.  J.,  deceased,  and  shall  indemnify  the 
Baid  G.  H.  against  all  loss  and  damage  on  account  of  said  payment,  then 
this  obligation  to  be  void;  otherwise  to  be  and  remain  in  full  force  and 
effect. 

Signed  by  us  this day  of A.  D.   190. . .. 

'     Executed   in   presence  of iso 

§  701.     Form  of  entry,  approving  bond,  and  ordering  payment. 

{Title.) 

This  day  came  A.  B.,  a  legatee  under  the  will  of  E.  F.,  deceased,  and 
having  produced  to  the  Court,  the  bond  as  required  by  a  former  order 
herein  stated,  and  the  bond  having  been  examined  by  the  Court  and  the 
sureties  thereon  approved,  the  said  executor  is  airected  to  pay  to  the  said 
A.  B.  the  legacy  provided  for  him  in  the  will  of  E.  F.,  deceased,  as 
prayed  for  in  his  application  herein.isi 

'  1*9  If  the  executor  wished  to  raise  i^o  Whit.  Prob.  Code. 

an  issue  as  to  his  liability,  etc.,  he  i^i  If  an   action  is  brought  after 

might  file   an   answer   as   in    §  574,  the  filing  of  an  account  and  order  to 

for   form    of   notice    and    entry    see  distribute  according  to  law  and  the 


15,    566,    which    may    easily    be       will    of   deceased,   it    is   done   under 
changed   to   answer    in    the   matter       §§10848,  10849  G.  C,  §761. 
above. 


I 


§702 


ADMINISTKA-TOR  S    ACCOUNTING 


632 


CHAPTER   XLI. 

ADMINISTRATOR'S  AND    EXECUTOR'S  ACCOUNTING. 


702  Duty  to  account. 

703  Executor  or  administrator  to 

render  an  account,  etc. 
703a  W  hen  to  make  oath  as  to  ac- 
count. 

704  Where  to  be  filed. 

705  Time  extended. 

706  Time  allowed  to  collect  assets 

not  to  operate  as  allow- 
ance of  further  time  to  file 
account. 

707  Administrator,     etc.,     of     de- 

ceased or  msane  administra- 
tor, etc.,  to  file  account. 

708  Successive  administration. 

709  Joint  executors^  etc. 

710  With  what  executor  or  admin- 

istrator shall  be  charged. 

711  Amount  of  sale  bill. 

712  Goods    and    chattels    not    in- 

cluded,  etc. 

713  Rights  and  credits  of  the  de- 

cedent. 

714  Proceeds  of  real  estate  sold. 

715  Interest,  etc. 

716  Profit     and      income  —  Pients, 

etc. 

717  How  chargeable  with  property 

consumed  by  him. 

718  Increase  or  decrease  of  estate 

not  to  affect  executor  or  ad- 
ministrator. 

719  Executor  or  administrator  not 

responsible  for  bad  debts. 

720  Entitled  to  what  credits. 

721  Vouchers   lo   be   produced   for 

all  debts  paid. 

722  Vouchers.     What  is  proper. 

723  What   items   may  be   allowed 

without    vouchers. 


1  See  §  634,  As  to  ext'rs  and  Ad- 
m'r's  compensation;  See  §  1293,  As 
to  Trustees'  accovmting;  See  §  1484, 
as    to     Gdn's    accounting;     See     § 


§  724  Comments.     Affidavits,   etc. 

§  725  Preparation   of   account. 

§  726  Oath   to  account. 

§  727  Form  of  administrator's  or 
executor's  account. 

§  728  Filing  and  entry. 

§  729  Notice  of  filing  accounts  to  be 
published. 

§  730  Form  of  notice,  etc. 

§  731  Entry  and  record  of  publica- 
tion. 

§  732  Importance  of  notice. 

§  733  Examination  of  accountants 
under  oath. 

§  734  Hearing  when  no  exceptions 
are  filed. 

§  735  Entry  where  no  exceptions  are 
filed. 

§  730  Exceptions. 

§  737  Form  of  exceptions. 

§  738  Court  may  refer  account  to 
special    commissioner. 

§  739  Trial,  etc. 

§  740  Evidence. 

§  741  How  compelled  to  render  ac- 
count. 

§  742  Who  may   compel,  etc. 

§  743  When  and  how  account  may 
be  opened,  etc. 

§  743a  Mistakes  or  errors. 

§  743b  Distribution  after  settlement. 

§  744  Absence  of   party. 

§  745  To  correct  errors  and  mis- 
takes. 

§  746  Opening  account  after  eight 
months,   etc. 

§  747  Error  and  appeal. 

§  748  Statement  in  lieu  of  account. 

§  749  Ancillary  account.! 

1289,  Dividends;  See  §1290,  Gain 
and  loss;  See  §  1291,  Alteration  and 
repairs. 


633  DUTY  TO  ACCOUNT  §  702 

§  702.     Duty  to  account. 

An  administrator  or  executor  having  collected  the  assets  of 
the  estate,  and  paid  the  debts  as  provided  in  the  preceding 
chapters,  the  duty  will  be  incumbent  upon  him  to  give  to  the 
Court,  a  detailed  statement  of  his  management  of  the  trust. 
If  all  the  debts  and  all  the  assets  have  been  paid  within  the 
neriod  of  eighteen  months,  he  may  file  what  is  termed  a  "  final 
account."  If  he  has  not  been  able  to  perform  these  important 
functions  of  his  trust,  he  must  file  an  account  of  what  he  has 
already  done;  this  is  known  as  a  "  partial  account."  In  its  re- 
quirements, it  is  not  to  be  dealt  with  differently  from  a  final 
account.  This  obligation  to  file  an  account  rests  upon  all  who 
undertake  to  administer  an  estate.^*  It  is  usually  set  forth  in 
the  bond  which  administrators  or  persons  holding  a  trust  posi- 
tion are  required  tO'  file,^  but  it  is  not  dependent  upon  any  stip- 
ulation. It  rests  upon  all  executors  and  administrators,  admin- 
istrators with  the  will  annexed,  temporary  administrators,  tes- 
tamentary trustees,  guardians  by  will  or  deed,  representatives  of 
deceased  executors  of  administrators,  gTiardians,  or  testamen- 
tary trustees.  This  is  so  much  ingrained  in  the  policy  of  our 
law,  that  the  Courts  have  held  a  provision  in  a  will  invalid, 
which  attempted  to  free  an  executor  from  the  obligation  to  ac- 
count.^ 

The  object  of  accounting  is  to  furnish  for  all  persons  interest- 
ed a  complete  history  of  the  estate,  so  that  they  may  protect 
themselves  against  fraud,  negligence  or  loss.* 

An  account  may  be  described  as  a  statement  in  writing  veri- 
fied, containing,  in  concise  detail,  the  history  of  the  dealings 
with  the  trust  estate  or  funds.®  Settlement  out  of  Court  does 
not  dispense  with  the  duty  of  accounting,  and  is  not  a  compli- 
ance with  the  condition  of  the  bond,®,  but  a  residuary  legatee 

!•  RcTimil.  Exrs.  G31.  count.     Pherson  vs.  Mitchell,  12  O. 

2  §10606  G.   C,   §83;    §10618  G.       App.  336. 

C,  §  124;   §  10635  G.  C,  §  1367.  *  Hall  vs.  Grovier,  25  Mich.  428; 

3  Matter  of  Gilbert,  11  N.  Y.  In  re  Place,  1  Reclf.  276;  Swan  vs. 
,Supp.  743.  _  Wheeler,  4  Day  137;  Rhett  vs.  Ma- 

A  clause  in  a  deed  that  the  trustee       son,  18  Gratt.  541 ;  Woerner  on  Ad- 
shall  not  he  required  to  render  any      min.  1134. 
account  of  his  trusteeship,  does  not  n  Jess.  Sur.  Prae.  1266. 

supercede    the    jurisdiction    of    the  « Clark  vs.  Clay,  11  Fost.   (N.H.) 

Probate   Court    to    require    an    ac-      393;  Bard  vs.  Wood,  3  Met.  (Mass.) 

74;   Harris  vs.   Ely,  25  N.  Y.   138; 


§  703  administrator's  accounting  63^ 

who  has  given  the  required  hond/  or  an  executor  or  administra- 
tor, to  whose  hands  no  property  has  come,  need  not  account.^ 

§  703.     Executor  or  administrator  to  render  an  account,  etc, 

''Within  twelve  months  after  his  appointment,  every  executoi 
or  administrator  shall  render  his  account. of  his  administratini 
upon  oath,  and  in  like  manner  render  such  further  account! 
thereof  every  twelve  months  thereafter,  and  at  such  other  timei 
as  the  court  requires,  until  the  estate  is  wholly  settled.  He  maj 
be  examined  on  oath  on  any  matter  relating  to  his  accounts 
and  the  payments  tlierem  mentioned,  and  a 'so  touching  any 
property  or  effects  of  the  deceased,  which  came  to  his  hands. 
[R.  S.  §6175;  102  V.  205.]  9 

§  703a.  When  to  make  oath  as  to  itemized  account.  "Every 
executor,  administrator  with  the  will  annexed,  or  testamentary 
trustee  who  does  not  make  a  final  settlement  of  the  decedent's 
estate  within  such  twelve  months,  and  carries  the  administra- 
tion of  his  trust  from  year  to  year  thereafter,  whenever  he 
renders  such  account  above  mentioned,  on  oath  to  such  court, 
as  a  part  thereof,  shall  make  a  full,  itemized  statement  of  all 
the  funds  of  the  decedent's  estate  under  his  control,  the  date 
and  nature  of  their  invpstment.  the  security  therefor,  and  the 
rate  of  interest  or  income  accruing  thereon,  and  shall  at  such 
time  exhibit  to  the  court,  for  its  examination,  the  security  or 
securities  he  may  have  for  said  funds."  [R.  S.  §6175;  102 
v.  205.]  ''* 

The  above  section  provides  that  an  administrator  shall  file  an 
iccount  within  twelve  months  after  his  appointment,  and  the 
Courts  have  held  that  he  could  not  be  required  to  file  an  account 
at  an  earlier  date.^^ 

Thereafter  an  administrator  or  executor  if  further  time  be 
granted,  must  tile  his  account  within  twelve  months  and  also  at 
such  other  times  as  the  Court  may  require.     This  would  seem 

Stewart  vs.   Stewart,   31   Ala.  207;  filed   averring   merely   that   all   the 

Smile  vs.  Siler,  3.5  Ala.  88.  debts  have  been  paid,"^  without  in  de- 

7  Clark  vs.  Tufts,  5  Pick.  (Mass.)  tail   showing  the   amount  of   assets 

337;     McElroy    vs.     Hathaway,    44  received   and    the   debts    paid   there 

Mich.  399;   Copp  vs.  Hersey, '31  N.  may    be    some    question,    depending 

H.  317.  largely    who    the    interested    parties 

s  Walker  vs.  Hall,  1  Pick.  (Mass.)  may  be.     If  the  administrator  was 

20.     See  In  re  Soutter    (N.  Y. ),  12  the  sole  heir  or  the  executor  the  sole 

N.  E.  Rep.  34,  7  Am.  «Sd  Eng.  Ency.  legatee,   it   might   be   done.     If  the 

of  iLaw,  422.  items  can  not  be  given  in  detail  by 

But    it    seems    he    must    in    some  reason  of  loss,   negligence  or  death 

manner  inform  the  Court  and  others  of  administrator,  then  the  statement 

interested  that  he  has  had  no  funds.  should  be  made  as  complete  as  the 

In  practice  this  is  Tisually  done  by  known  facts  will  justify, 

filing  a  statement  in  lieu  of  an  ac-  ^  S  10820  G.  C. 

count.     See  subsequent  section.     See  9*  §  10S21   G.   C. 

§§  1491,  1484,  1296,  1293,  440.  10  State  of  Ohio  VS.  Moore,  £  W- 

Whether    a    statement    could    be  L.  Gaz.  405. 


635  WHERE  TO  BE  FILED  §  704 

to  give  authority  to  tlie  Court  if  good  cause  be  shown,  to 
require  an  accouut  to.  be  filed  at  any  time  even  though  an  ex- 
tension had  been  gi-ajited  of  twelve  months.  This  is  probably 
the  correct  view,  for  whatever  time  an  administrator  or  execu- 
tor has  beyond  the  twelve  months  provided  by  statute  he  re- 
ceives from  the  Court,  and  not  from  a  positive  provision  of 
law. 

§  704.     Where  to  be  filed. 

The  account  must  be  filed  in  the  Probate  Court  which  made 
the  appointment.  The  subject  of  accounting  belongs  general- 
ly to  a  Court  of  Equity,  but  it  was  undoubtedly  the  intention 
of  our  constitution  and  the  statutes  made  in  relation  to  estates, 
that  the  jurisdiction  over  the  settlement  of  estates  should  exclu- 
sively vest  in  the  Probate  Court/^  and  until  his  accounts  are 
finally  settled."^  If  for  any  reason  the  Probate  Court,  from  the 
nature  of  its  organization  and  the  general  powers  given  it,  could 
not  protect  substantial  rights  of  persons  interested  in  such 
estates,  a  Court  of  Equity  might  assume  jurisdiction.^-  But  if 
it  did  assume  jurisdiction,  it  would  only  be  in  the  nature  of 
affording  auxiliary  relief. 

This  is  very  well  expressed  by  Corwin,  J.,  when  he  says,^^ 
"  We  certainly  do  not  admit  the  right  of  a  creditor,  by  any 
proceeding,  at  his  own  option,  to  transfer  the  settlement  of 
an  estate  from  the  Probate  Court  to  a  Court  of  Equity.  But 
cases  have  arisen,  and  may  arise  again,  when,  from  the  pe- 
culiar relations  of  the  administrator  to  the  estate,  or  his  connec- 
tion with  a  title  sought  to  be  converted  into  assets,  in  the  opinion 
of  a  majority  of  this  Court,  the  aid  of  a  Court  of  Equity  may 
'be  invoked  by  a  creditor,  not  for  a  general  settlement  of  the 
estate  of  which  he  is  a  creditor,  but  for  the  purpose  of  reaching 
and  placing  in  the  hands  of  the  administrator  assets  which 
might  otherwise  not  be  reached.  But,  this  object  accomplished, 
the  Court  of  Equity  will  have  performed  its  function,  and  leave 
the  distribution  of  the  assets  thus  obtained,  to  the  Probate 
iCourt."  " 

11  state  vs.  Beatty,  33  Bull.  109.  13  McDonald  vs.  Aten,  1  O.  S.  296. 
iia-ln  re  Morrison  Estate,  68  O.  14  When   a   testator,   by   his   will, 

S.  252.  directed    liis    executors    to    invest   a 

12  Rote  vs.  Stratton,  2  N.  P.  27.  specific  fund,  the  interest  to  be  paid 


§  705  administkator's  accounting  I 

§  705.     Time  extended. 

We  have  seen  in  a  previous  section/^  that  every  executor 
and  administrator  is  required  to  proceed  with  diligence  to  pay 
the  debts  of  the  testator;  and  in  another  part  of  this  work," 
that  he  is  to  proceed  with  diligence  to  convert  the  assets  into 
money  or  funds,  for  the  purpose  of  distribution.  If,  however, 
after  having  exercised  diligence  in.  both  of  these  respects  and 
twelve  months  have  expired  from  the  time  of  the  administra- 
tor's or  executor's  appointment,  upon  his  filing  the  account  re- 
quired by  law,  a  further  time  of  twelve  months  may  be  allowed. 
The  Court  ought  to  require  in  all  cases,  diligence,  energetic,  and 
active  effort  on  the  part  of  the  administrator  or  executor,  to 
settle  the  estate  if  possible  within  the  twelve  months'  period. 
Observation  and  experience  has  demonstrated  that  a  prolonged 
settlement  of  an  estate  works  disadvantageously  in  more  ways 
than  one.  Assets  undisposed  of,  generally  depreciate  in  value. 
Debts  unsecured,  lose  their  security.  Family  feuds  increase 
and  are  encouraged.  Legatees,  administrators,  and  others  die 
and  hamper  the  administration  of  the  estate.  It,  therefore,  fol- 
lows, that  this  extension  of  time  should  only  be  granted  for 
good  and  sufficient  reasons;  and  if  it  is  granted  for  a  twelve 
month  period,  for  good  cause  shown,  I  apprehend  the  Court 
may  revoke  such  an  order  and  require  an  account  to  be  ren- 
dered at  an  earlier  date. 

^  706.  Time  allowed  to  collect  assets  not  to  operate  as  al- 
lowance of  further  time  to  file  account.    "The  time  allowed  by 

annually  to  S.,  the  -widow  of  his  de-  will,  and  the  entire  beneficial  inter- 
ceased   son,   during  her   life,  and  at  est  in  tJie  fund  having  vested  in  S., 
her  death,   the  principal   thereof  to  equity   will   decree   its   payment   di- 
be  paid  to  her  two  sons,  L.  and  D.,  reetly  to  her,  without  the  delay  and 
and   L.   and  D.   died  without   issue,  expense    of    successive    administra- 
leaving  no  brother  or   sister  either  tions.     Taplor  vs.   Huber,    13   0.  S. 
of  the  whole  or  half  blood,  and  leav-  288 ;     Pomeroy's    Equity    Jurispru- 
ing  no  debts  whereby  the  principal  dence,  §  1154,  vol.  3. 
of  said  fund  descended  to  S.,  as  their  Formerly  equity  would  enforce  an 
next   of  kin.     Held:     The  trust  in  accounting,    etc.     Cram    vs.    Green, 
the   hands    of   the   executor   having  6  O.  428. 
failed  by   the  occurrence  of  a   con-  is  §  647,  §  648. 
tingency    not    provided    for    by    the          i8  §  447. 


637  DECEASED    ADMINISTRATOR  §707 

the  court  to  collect  the  assets  of  the  estate,  shall  not  operate  as 
an  allowance  of  further  time  to  tile  the  accounts  mentioned  in 
the  preceding  sections."      [R.  S.   §6177.]^'' 

This  section  has  reference  to  the  extension  of  time  that  may 
be  granted  by  virtue  of  sec.  10684  G.  C,  previously  referred  to.'^ 
The  extension  of  time  for  the  collection  of  assets  and  the  filing 
of  accounts  are  usually  embodied  in  one  application,  and  is 
granted  when  the  account  is  filed.  Although  the  statute  would 
permit  the  extension  of  time  for  the  collection  of  assets  at  some 
other  time  than  at  the  filing  of  the  account,  yet  without  express 
permission  so  to  do  an  administrator  has  power  to  collect  assets 
so  long  as  assets  are  unadministered. 

§  707.  Administrator,  etc.,  of  deceased  or  insane  adminis- 
trator, etc.,  to  file  account.  "When  an  executor  or  admin- 
istrator dies,  or  by  reason  of  insanity  or  other  incompetency,  is 
placed  under  guardianship  before  the  estate  is  fully  admin- 
istered, the  executor,  administrator,  or  guardian  of  such  deceased 
or  incompetent  executor  or  administrator,  shall  render  a  final 
account  of  such  decedent's  or  ward's  administration  within  six 
months  after  his  appointment."     [R.  S.  §  6175a.] ^^ 

While  the  statute  grants  a  period  of  six  months  for  an  execu- 
tor or  administrator  of  a  deceased  or  insane  executor  or  admin- 
istrator to  file  his  account,  yet  it  ought  to  be  done  at  the  very 
earliest  possible  convenience.  Not  to  do  so  may  not  only  em- 
barrass the  estate  of  the  deceased  administrator,  etc.,  but  also 
the  estate  of  which  he  was  administrator.-** 

§  708.     Successive  administration. 

'  At  common  law  it  was  generally  held  that  an  administrator 
de  bonis  non  could  not  compel  an  accounting  by  his  predecessors. 
But  this  is  not  the  rule  in  our  State.    Here  it  is  the  duty  of  a 

17  §  10824  G.  C.  administrators     and     one     diea,     it 

18  See  §  440  et  seq.  would  seem  that  the  accounting 
'     19  §  10822  G.  C.  should    be    done    by    the    surviving 

20  See  §  10!)57  G.  C,  as  to  the  re-  executor   and   not  by   the   adminis- 

quirements   of   an  administrator   of  trator  of  the  deceased  executor, 

a   deceased   guardian;    §  H'J'J;    and  See  also  Jones  vs.  Williss,  72  0. 

§208  et  seq.,  as  to  removed  admin-  S.  201;  In  re  Sidwell,  67  O.  S.  424; 

istrator;  See  §  1500.  In   re  Morrison's   Estate,  68  O.   S. 

Where  there  are  two  executors  or  252. 


§  709  administrator's  accounting 


>a^ 


siieceeding  administrator  to  demand,  an  accounting  and  settle- 
ment of  tlie  administration  do^T^l  to  the  moment  of  a  death, 
removal,  or  resignation  of  the  previous  administrator  or  execu- 
tor.'' 

The  statute  does  not  make  it  veiy  clear  as  to  the  length  of 
time  that  an  administrator  de  bonis  non  has,  within  which  to  file 
his  first  account.  Generally  the  rules  applicable  to  administra- 
tors and  executors  are  applicable  to  succeeding  administrators. 
The  statute  requires  that  a  succeeding  administrator  should  give 
notice  of  his  appointment  the  same  as  an  original  administrator, 
and  likewise  applies  the  same  rule  of  statutory  limitation  as  to 
the  enforcement  of  creditors  claim."" 

It  would,  therefore,  seem  that  it  was  the  intention  of  the 
Legislature  to  apply  the  same  rule  as  to  the  time  within  which 
accounts  should  be  filed.  Generally,  it  may  be  said,  that  the 
principles  and  rules  which  govern  the  accounting  of  admin- 
istrators, are  applicable  to  the  accounts  of  administrators  or 
their  representatives  settling  with  their  successors.  Such  ac- 
counting, where  the  Court  has  jurisdiction,  is  final  and  conclu- 
sive,"^ but  only  as  to  the  rights  and  liabilities  of  the  estate  on 
the  one  hand,  and  the  deceased  or  removed  administrator  on  the 
other;  the  administration  of  the  estate  as  such  is  not  thereby 
affected,  but  is  to  be  continued  in  all  respects  as  if  no  change  in 
its  representation  had  taken  place."* 

§  709.      Joint  executors,  etc. 

Accounts  may  be  rendered  by  one  or  more  joint  executors  or 
administrators.'^  The  account  may  be  a  joint  accoimt  or  it 
may  be  the  separate  account  of  each.  As  each  one  is  entitled  to 
receive  and  keep  the  assets  of  the  estate,  he  is  entitled  to  file 

21  See  chapts.  9,   10  and  14.  63  et  seq.;  McManus  vs.  McDowell, 

22  See  §§  10755,  10757  G.  C.  11  Mo.  App.  436;   Woerner  on  Ad- 


23  State  vs.  Gray,  106  Mo.  526 
Scott  vs.  Crews,  72  Mo.  261,  265 
Spraddling  vs.  Pipkins,  15  Mo.  118 


rain.    1182;    See    §1496,    Settlement 
■with  succeeding  Gdn. 
See  §  1294,  Trustees. 


State  vs.  Matson,  44  Mo.  305;  State  25  See   §201  et   seq.,  for  Joint  or 

vs.  Thornton,  56  Mo.  325.  co-administration. 

21  Brooks   vs.   Mastin,   69  Mo.   58, 


639  JOINT  EXECUTORS,  ETC.  §  710 

his  separate  account  to  show  for  what  part  of  the  estate  he  is  re- 
sponsible.^*' Wliere,  however,  a  joint  account  is  filed,  all  will 
be  liable  as  shown  by  the  account,  unless  the  presumption  raised 
thereby  is  rebutted. ^'^  And  some  of  the  cases  go  so  far  as  to 
hold  that  filing  a  joint  account  is  more  than  prima  facie  evidence 
of  a  joint  liability  f^  th,at  it  is  conclusive,  and  the  fact  that  a 
joint  account  is  filed,  of  itself  makes  the  executors  or  admin- 
istrators joining  therein  jointly  liable.^® 

In  this  State,  when  an  account  is  rendered  by  one  or  more 
joint  executors  or  administrators,  the  Court  may,  in  its  discre- 
tion, allow  the  same  to  be  verified  by  any  one  of  them.^"  Ac- 
counts which  are  joint  in  form,  if  really  filed  by  only  one  exec- 
utor, wnll  not  bind  his  co-executor.^^  AYlien  one  of  two  execu- 
tors presents  his  account  for  settlement,  his  associate  mav  con- 
test it.^^ 

§  710.  With  what  executor  or  administrator  shall  be 
charged.  "Every  executor  or  administrator  shall  be  charge- 
able with  the  amount  of  the  sale-bill,  as  hereinbefore  provided, 
and  with  all  goods,  chattels,  rights,  and  credits  of  the  deceased 
which  come  to  his  hands,  and  are  by  law  to  be  administered, 
although  not  included  in  the  inventory  or  sale-bill ;  also,  with 
all  the  proceeds  of  real  estate  sold  for  the  payment  of  debts  or 

26  Barclay  vs.  Morrison,  16  S.  A  were  paid  out  of  assets  jointly  held, 
R.  129;  Bellerjeau  vs.  Knott.  4  N.  so  far  as  they  go;  3rd,  that  as  to 
J.  L.  359;  Heyer's  App.,  34  Pa.  St.  assets  charged  severally,  each  con- 
183.  tributed  ratably  to  the  payment  of 

27  Suydam  vs.  Bastedo,  40  N.  J.  debts  credited  to  both  equally. 
Eq.   433;    Conner   vs.    Mcllvaine.   4  Woerner  on  Admin.  1180. 

Del.,  Ch.   30;   Glacius  vs.  Fogel,  88  29  Haage's  App.,   17  Pa.   St.   181; 

N.  Y,  434;  Call  vs    Ewing,   1  Blkf.  Laroe   vs.   Douglass,    13    N.   J.    Eq. 

301.  308;    Young's   App.,   99   Pa.   St.    74. 

2s  In  Delaware,  the  following  pre-  3o  When  any  account  is  rendered 

sumptions     were     held     applicable,  by  two  or  more  joint  executors  or 

prima  facie,   upon  a   joint   account  administrators,    the   Court  may,   in 

passed  by  two  executors:      1st,  that  its    discretion,    allow    the    account 

the  balance   shown   by  the   account  upon  the  oath  of  any  one  of  them, 

was  held  by  them   jointly,   the  ac-  [38  v.  146,  §  162]  ;   §  10833  G.  C. 

count  including  assets   jointly  held  31  English   vs.    Newell,    42    N.   J. 

and  assets  charged  to  the  executors  Eq.  76. 

severally;    2nd,  that  debts  credited  32  Mead  vs.   Willoughby,  4  Dem. 

as    being    paid    by    both    executors  364. 


§  711  administrator's  accounting  640 

legacies,  and  all  the  interest,  profit,  and  income  that  in  any 
vvav  comes  to  his  hands  from  the  personal  estate  of  the  de- 
ceased."    [R.  S.  §6179.]'' 

§  711.     Amount  of  sale  bill. 

The  first  matter  particularized  with  which  the  administrator 
or  executor  is  chargeable,  is  tlie  amount  of  the  sale  bill.  There- 
fore it  is  not  necessary  in  the  account  to  set  out  in  detail  the 
prices  received  for  various  articles,  but  merely  to  state  that  so 
much  was  received  as  per  sale  bill.  In  other  States,  generally, 
the  inventoiy  is  the  basis  upon  which  the  administrator's  or 
executor's  account  must  rest,  and  in  such  States  in  his  account 
the  administrator  or  executor  charges  himself  with  the  amount 
of  the  inventory  and  then  deducts  or  adds  as  the  case  may  be, 
for  losses  or  gains  tliat  may  be  had  by  sale,  etc.  Our  law 
is  simpler,  in  that  it  provides  that  he  shall  account  for  the  ar- 
ticles as  sold.  However,  this  does  not  relieve  the  administra- 
tor or  executor  from  accounting  for  everything  that  has  been 
inventoried,  and  therefore  it  may  yet  be  said  that  the  inventory 
in  our  State  is  the  basis  of  accountability  of  the  executor  or 
administrator."* 

If  any  of  the  notes  taken  at  the  sale,  without  fault  of  the 
administrator  or  executor,  are  uncollectible,  the  same  could  be 
deducted.'^ 

§  712.     Goods  and  chattels  not  included,  etc. 

The  second  item  with  which  the  administrator  or  executor  is 
chargeable,  is  the  goods  and  chattels,  etc.,  which  shall  come  into 
his  hands  whetlier  they  be  included  in  the  inventory  and  sale 
bill  or  not.  This  is  broad  enough  to  include  every  item  of  a 
chattel  nature  which  comes  into  the  hands  of  tlie  administrator 
as  assets  of  the  estate.  If  such  articles  have  not  been  sold,  they 
must  in  some  manner  be  accounted  for.  Not  to  do  so  would  be 
a  devastavit. 

33  §  10826  G.  C.  note,  the  administrator  must  charge 

34  See  ch.  27,  §  469,  and  ch.  28,  himself  with  one-half  of  the  note. 
§  495.  In    re    Lones,    57    Bull.    122.      See 

35  See  §  485.  Perkins  vs.  State,  9  C.  C.  207,  6  C. 
Where   an   administrator  and  his       D.  229. 

decedent    gave    a    joint    promissory 


641  RIGHTS  AND  CEEDITS  §  713 

There  must  be  included  in  the  report  all  property  omitted 
from  tlie  inventory  which  has  come  to  the  administrator's 
knowledge,  with  a  statement  of  its  value  or  the  amount  received 
therefrom,  even,  though  he  received  such  property  in  the  life- 
time of  the  decedent^®  But  it  is  not  proper  to  charge  him  with 
property  of  which  he  has  no  knowledge  (or  cannot  obtain  the 
possession  ).^^ 

§  713.     Rights  and  credits  of  the  decedent.^ 

The  next  in  order  of  those  things  with  which  the  adminis- 
trator or  executor  stands  chargeable,  are  the  rights  and  credits 
of  the  deceased.  By  this  term  is  meant,  all  choses  in  action, 
that  belong  to  the  deceased  and  are  properly  an  asset  of  the 
estate.^^  If  he  personally  owe  the  estate  he  must  include 
that  in  his  current  report,  even  if  it  has  not  been  inventoried.^* 
But  he  need  not  include  a  debt  upon  which  he  is  only  contin- 
gently liable,  nor  one  owing,  not  to  the  deceased,  but  to  his 
former  representative.*" 

Although  his  own  debt  be  included  in  the  inventory  or  re- 
port, he  may  show  that  it  is  unjust.*^  In  such  case  he  has  the 
burden  to  show  that  he  does  not  owe  the  debt.*^  He  may 
show  that  the  claim  is  barred  by  the  statute  of  limitations  if  the 
bar  be  complete'  before  his  appointment,*^  With  the  statemeint 
of  his  own  debt  he  must  include  interest  if  it  bear  interest."** 
But  he  cannot  be  charged  eight  per  cent,   interest  merely  be- 

36  stone    vs.     Stillwell,     23    Ark.       vs.   Bigelow,   4   O.    138 ;    Baucus   vs. 
444;  Hurlburt  vs.  Wheeler,  40  N.  H.       Storer,  89  N.  Y.  1. 

73;    Boston   vs.    Boylston,    4   Mass.  ^o  Shields  vs.  Odell,  27  O.  S.  308. 

318;   Uovvnie  vs.  Knowles,   37  N.  J.  4i  Everts  vs.  Everts,  62  Barb.  577; 

Eq.    513;    Smith   vs.   Jewett,    40   N.  Black  vs.  White,  13  S.  C.  37;  Wood 

H.    513;    Valentine   vs.    Strong,    20  vs.  Tallman,  1  N.  J.  L.  153;  Lynch 

Md.  522 ;  Merchant  vs.  Comback,  39  vs.  Divan,  66  Wis.  490. 

N.  J.  Eq.   506;    S.  C.  41   N.  J.  Eq.  ■is  Dickie  vs.   Dickie,    80  Ala.   57. 

349  (milk  of  cows) .  43  Wilson  vs.  Rose,  3  Cr.  C.  C.  371. 

37  State  vs.  Scott,   12  Ind.  529.  **  Calvert  vs.  Holland,  9  B.  Mon. 
See  §  363  et  seq.  458 ;  Ackerman's  Case,  40  N.  J.  Eq. 

38  See  §  385.  533 ;    Rodenbach's  Appeal,    102   Pa. 
«9Rabb's    Estate,    16    0.    S.    273;  St.  572. 

Tracy  vs.  Card,  2  O.  S.  431 ;  Bigelow 


1 


§  714  admiivisteator's  accounti^^g  G42 

cause  he  realized  that  rate  on  his  own  money  and  did  not 
pay  the  debt.*^  But  the  fact  that  an  executor  or  admims- 
trator  is  insolvent  does  not  relieve  him  from  accounting  lor 
what  h°!  owes  the  estat^'.  Immediately  upon  the  appointment 
of  a  debtor  as  administrator  or  executor  such  debt  becomes 
assets  of  the  estate,  and  it  must  be  accounted  for.^" 

In  the  item  of  rights  and  credits,  the  accountant  should  be 
sure  to  account  for  all  the  moneys  on  hand  at  the  death  of  the 
decedent  ag  well  as  for  all  notes,  bills  of  account,  etc.*''  If  they 
are  uncollectible  the  administrator  or  executor  is  not  respon- 
sible, but  they  shoiild  be  accounted  for.*'* 

§  714.     Proceeds  of  real  estate  sold. 

The  next  in  order  of  the  matters  required  to  be  accounted  for, 
is  the  proceeds  of  real  estate  sold  for  the  payment  of  debts  or 
legacies  of  the  deceasd.  This  applies  to  all  real  estate  which  is 
converted  into  money,  be  the  same  by  virtue  of  autliority  de- 
rived from  a  will,  or  the  order  of  the  Court.  An  executor's 
items  of  account  of  sales  made  under  a  power  in  the  will  with- 
out order  of  the  Court  should  identify  each  tract.  An  account 
merely  giving  the  price  and  purchaser  is  not  sufficient.  The 
account  in  these  cases,  being  the  only  record  by  which  to  advise 
those  interested.*^ 

In  the  distribution  of  assets  derived  from  the  sale  of  real 
estate  after  the  payment  of  debts  it  should  he  applied  as  the 
will  directs  and  if  there  be  no  will,  it  is  to  be  distributed  aa 
real  estate.*^ 

§  715.     Interest,  etc. 

An  executor  or  administrator  is  not  chargeable  with  interest 
on  the  money  received  by  him  in  his  official  capacity  unless  he 

45  Grant    vs.    Edwards,    92    X.    C.  *"  For  various  kinds  of  rights  of 

442.  credits,   see   ehapt.   21. 

40  McGaughey    vs.    Jacoby,    54    0.  47*  See  §6181  R.  S.,   §719. 

S.  487;  See  §  390;  James  vs.  West,  48  Williamson's    Estate,    4    N.    P. 

47  Bull.  750.  882;  7  Dee.  24. 

49  §  10816  G.  C,  §  905. 


643 


INTEREST 


§715 


has  made  some  profitable  use  of  tlie  money,  or  has  been  guilty 
of  negligence  in  accounting  for  it/° 

An  administrator  is  not  expected  to  invest  any  part  of  the 
money  belonging  to  tlie  estate;  nor  is  an  executor,  unless  he  is 
required  to  do  so  by  the  will  of  the  testator.  On  the  contrary, 
it  is  his  duty  to  collect  the  assets  and  pay  them  over  to  the 
persons  entitled  to  receive  them  as  speedily  as  circumstances 
will  allow." 

But  if  he  has  invested  the  money  and  received  interest  upon 
it,  he  must  account  for  it;  and  the  fact  that  he  has  received 
interest,  or  has  made  use  of  the  money  in  his  own  business, 
may  be  inferred  from  a  long  delay  in  settling  his  accounts,  or 
his  neglect  to  pay  over  balances  after  demand  made  upon  him.''^ 
But  if  the  delay  was  without  negligence  on.  his  part^  he  vdll 
not  be  chargeable  with  interest  unless  he  has  made  profit  of 
the  funds.^^  He  is  not  to  be  charged  with  interest  in  any  case 
from  the   date   of  his   appointment,   or   of  his   receipt  of   the 


50  See  §  672;  James  vs.  West,  47 
Bull.  857;  Wyman  vs.  Hubbard,  13 
Mass.  232;  Duntap  vs.  Watson,  124 
Mass.  305;  White  vs.  Ditson,  140 
Mass.  351. 

Where  executors,  without  objec- 
tion, and  for  the  mutual  benefit  of 
all  interested  in  the  estate,  retain 
the  entire  fund  without  reference  to 
the  separate  beneficiaries,  each  of 
the  latter  is  entitled  to  his  propor- 
tionate share  in  the  income  realized 
from  the  investment  of  the  entire 
fund.  Foote  vs.  Bruggerhoff,  21  N". 
Y.  Supp.  509;  S.  C.  66  Hun.  406; 
22  N.  Y.  Supp.  1105;  67  Hun.  652. 

Instead  of  charging  him  with  in- 
terest, the  Court  may  charge  him 
with  the  profits  he  has  received  by 
an  investment  of  the  trust  funds. 
Wingate  vs.  Pool,  25  111.  118;  Mer- 
chant's Case,  39  N.  J.  Eq.  506;  S. 
C.  41  N.  J.  Eq.  349;  Gilbert  vs. 
Welsch,  75  Ind.  557. 

51  Executors  and  administrators, 
however  are  charged,  with  more  re- 


luctance than  trustees,  for  simply 
letting  funds  lie  idle,  since  their 
primary  function  is  to  administer 
and  not  to  invest.  Schoul.  Exrs., 
§  538 ;  See  McCrea  vs.  Martien,  32 
0.  S.  38. 

52Coosh  vs.  Irwin,  7  O.  S.  23; 
Wyman  vs.  Hubbard,  13  Mass.  232; 
Forward  vs.  Forward,  6  Allen,  494. 

53  Lamb  vs.   Lamb,   11   Pick.   370. 

Mere  delay  in  closing  the  admin- 
istration, when  it  does  not  appear 
to  haA'e  been  needless,  though  ac- 
companied by  demands  of  the  exe- 
cutor for  credits  which  the  Court 
properly  disallows,  will  not  justify 
the  Court  in  charging  him  with 
interest  on  balances  in  his  hands. 
Nor  could  he  be  charged  with  in- 
terest merely  because  he  has  not 
reported  it,  or  paid  it  into  Court, 
when  there  has  been  no  order  of 
Court  requiring  him  to  do  so.  Du- 
four  vs.  Dufour,  28  Ind.  421; 
Johnson  vs.  Hedriek,  33  Ind.  129; 
S.  C.  5  Am.  Rep.  191. 


1 


3  715  administrator's  accounting  644 

monej.  He  is  to  be  allowed  a  reasonable  time  to  settle  the 
estate,  and  the  time  proper  to  be  allowed  for  that  purpose  must 
depend  upon  the  circumstances  of  each  case.  No  general  rule 
would  do  justice  in  all  cases.^* 

When  the  administrator  employs  the  funds  of  the  estate 
in  trade,  he  is  liable  to  be  charged  with  compound  interest.^" 

If  an  administrator  fraudulently  fails  to  account  for  in- 
terest received,  whether  received  on  notes  or  bonds  or  on  funds 
in  his  hands,  he  will  be  chargeable  with  the  highest  rate  of 
interest  allowed  by  laAV,^®  and  may  be  charged  with  the  whole 
profits  on  the  fund  so  employed.^^ 

Interest  mil  be  charged  against  an  administrator  for  funds 
which  he  is  ready  to  distribute,  but  can  not  because  the  heirs 
are  unknov^ra.  It  is  his  duty  to  invest  the  money  for  them. 
"May,"  in  sec.  10843-5,  G.  C,  means  "must."^^ 

An  executor  who  is  indebted  to  the  estate  on  his  indi- 
vidual note  to  testator  will  be  charged  with  interest  on  the 
note  until  its  maturity,  and  he  caimot  relieve  himself  of  the 
payment  of  interest  by  crediting  the  note  to  the  estate  as 
collected  before  maturity,  imless  the  money  arising  therefrom 
was  used  for  the  benefit  of  the  estate,  at  the  time  of  the  credit.^* 

An  executor  who  has  been  prevented,  after  the  death  of  the 
life-tenant,  from  paying  over  the  principal  of  tlie  estate  to  the 
remainderman  by  the  pendency  of  the  legal  proceedings  to  de^ 
temiine  their  respective  rights  thereto,  is  not  chargeable  with 
interest  for  failui^e  to  invest  the  principal  after  the  life-tenant's 

^*  See  Clarkson  vs.  De  Peyster,  2  ^7  Utica    Ins.    Co.    vs.    Lynch,    11 

Wend.    77;    Schieffelin   vs.    Stewart,  Paige,   520. 

1    Johns.,    Ch.    020;     Jennison    vs.  If    an    e.Kecutor    mingles    the   as- 

Hapgood,   10  Pick.  77.  sets    of    the    estate    with    his    own 

55  Boynton  vs.  Dyer,  18  Pick.  1 ;  money,  and  afterwards  fails,  the 
Robbins  vs.  Hayward,  1  Pick.  528  parlies  entitled  to  the  estate  can 
note;  Schieffelin  vs.  Stewart,  1  come  in  and  prove  against  the  ex- 
Johns.,    Ch.    620.  ecutor's  estate  only  on  an  equality 

56  Ray  vs.  Doughty,  4  Blackf.  with  his  creditors.  Little  vs.  Chad- 
115;    Scott  vs.  Crews,  72  Mo.  261;  wick,   151   Mass.   109. 

Lommen  vs.   Tobiason,    52   la.   665;  58  Thornton's    Estate,    5    Dec.    D. 

Perrin   vs.    Lepper,    40   N.   W.   Rep.  151;    7  N.  P.  335. 

859 ;    In   re   Essex's    Estate,    20   N.  59  Clifford  vs.  Davis,  22  111.  App. 

Y.  Supp.  62.  316. 

James  vs.  West,  07   0.  S.  28. 


645  INCOME,  KENTS,  ETC.  §  716 

death,  since  he  was  justified  in  holding  it  for  distribution  among 
the  remaindermen,  who  were  in  a  position  to  settle  their  dispute 
and  demand  payment  of  him  at  any  time.®"  An  executor  is 
chargeable  with  profits  realized  on  estate  funds  loaned  to  him- 
self, and  any  bonus  received  on  loans  to  others,  and  if  he  real- 
ized less  than  the  legal  interest  on  money  used  by  him  he  is 
chargeable  with  the  deficiency.®^ 

§  716.     Profit  and  income.    Rents,  etc. 

If  there  is  any  profit  arising  from  any  of  the  personal  prop- 
erty other  than  that  of  interest,  which  is  spoken  of  in  the 
previous  section,  it  must  be  accounted  for.  Likewise  the  in- 
3ome  of  real  estate.®^  But  it  is  a  well  recognized  rule  that  the 
administrator  has  no  anthority  tO'  collect  the  rents  of  real  estate 
belonging  to  the  estate  of  the  deceased.  N^or  has  the  executor, 
mless  authorized  by  the  will  of  the  testator.  Real  estate  vests 
n  the  heirs  and  devisees  immediately  upon  the  death  of  the 
)wner,  and  all  rents  that  become  due  subsequent  tO'  his  death 
)elong  tO'  them.®^  Even  if  the  estate  is  insolvent  the  heirs 
ire  entitled  to  the  rents  and  profits  until  the  land  is  sold  by 
irder  of  the  Court  for  the  payment  of  debts.®*  But  rents  col- 
ected  by  the  executor  or  administrator  to  b©  applied  by  agree- 
^aent  with  the  parties  to  the  payment  of  claims  against  the 
Istate  thereby  rendering  it  unnecessary  to  sell  the  land  are 
ersonal  assets  and  must  be  accounted  for.®^ 

§  717.     How  chargeable  Vvith  property  consumed  by  him. 

If  an  executor  or  administrator  neglects  to  sell  personal  prop- 
rty  which  by  law  he  is  required  to  sell,  and  retains,  consumes, 
ir  disposes  of  it  for  his  own  benefit,  he  shall  be  charged  tliere- 

I 

6''  In  re  Howard's  Estate,    23   N.  63  Emblements  and  rents  that  are 

.   Supp.   836;    S.   C.   3   Misc.   Eep.  earned,  although  not  due,  go  to  the 

JO.  administrator. 

,  «i /n   re  Richardson's   Estate,   23  64  See  §§871  and  872,  as  to  rents 

I.  Y.  Supp.  978;  S.  C.  2  Misc.  Rep.  generally;    Overture   vs.   Dugan,   29 

|i8.  0.  S.  230. 

'  I  «2  See  §  1288,  as  to  profits,  etc.  c5Turpin    vs.    Turpin,     16    0.    S. 

;A8  to  assets  generally,  see  §303,  270;  Campbell  vs.  McCormick,  1  C 

;  seq.  C.  504;    1  C.  D.  281. 


§  718  administrator's  accounting  646 

with  at  double  the  value  affixed  thereto  by  the  appraisers." 

[R.  S.  §6182.]*'« 

^  718.  Increase  or  decrease  of  estate  not  to  affect  executor 
or  administrator.  "No  profits  shall  be  made  by  executors  or 
administrators,  by  the  increase,  nor  shall  they  sustain  any  loss 
by  the  decrease  or  destruction,  without  their  fault,  of  any  part 
of  the  estate."     [R.  S.  §6180.]" 

§  719.  Executor  or  administrator  not  responsible  for  bad 
debts.  "An  executor  or  administrator  shall  not  be  account- 
able for  debts  inventoried  as  due  to  the  deceased,  if  it  appears 
to  the  court  that,  without  his  iault,  they  remain  uncollected." 
[R.  S.  §6181.]«8 

§  720.    Entitled  to  what  credits. 

In  the  previous  sections  we  have  considered  with  what  the 
accountant  is  chargeable.  We  now  come  to  the  other  side  of 
the  ledger  and  have  for  consideration  that  with  which  he 
should  credit  himself.  As  a  general  rule  it  may  be  stated  that 
executors  and  administrators  are  allowed  as  proper  credits  in 
their  accounts  and  all  disbursements  made  in  good  faith  for  any 
liability  of  the  estate,  either  arising  in  the  course  of  the  admin- 

66  §  10820   G.  C.  so  manage  the  subject  of  his  trust, 

67  §  10827  G.  0.  as   to   make   profits   or   gain   there- 
As    to    Collection    of    assets,    see       from  for  himself.     The  beneficiaries 

§  440  ct  scq.;  as  to  Management  of  in  the  trust  have  a  right  to  expect 
estate,  see  §  506  et  scq.;  as  to  Sale  and  require  the  exercise  of  his  best 
of  personal  property,  see  §  469  et  judgment,  care  and  diligence,  on 
seq.;  as  to  Money  on  deposit,  see  their  behalf,  and  the  gains  resulting 
§  378,  §  513.  therefrom  inure  to  their  sole  benefit. 
All  the  power,  influence  and  skill  What  such  trustee  may  not  do  di- 
of  one  occupying  such  a  relation  rectly  he  is  not  permitted  to  do 
is  to  be  used  for  the  advantage  of  through  the  intervention  of  an  agent 
the  beneficial  owner,  and  not  for  per-  or  attorney.  Cox  vs.  John,  32  0. 
sonal  gain;  and  all  increase,  gains  S.  532. 
and  profits,  whether  arising  from  ^s  §  10828  G.  C. 
the  natural  increase  in  value  of  the  See  §  443,  Negligence  in  collect- 
property,   or   from  the   management  ^^g;   See  §  485    More  than  eighteen 

t    ,,    '   .        .  ,,  v     1    (  months  allowed, 

of    the    trustee,    are    the    absolute  Administrator  not  to  be  charged 

property   of   the   beneficiary.      Berk-  viith  money  in  his  hands  tied  up  by 

meyer  vs.  Kellerman,  32  0.  S.   239.  litigation.     James   vs.   West,  67  0. 

It  is  a  well  settled  rule  in  equity  J.  28      But  a  debt  owed  by  ex-^?cutor 

.      *     /  to  estate  can  not  be  classed  as  baa 

that  a  trustee   is  not   permitted  to  debt.      Jones    vs.    Williss,    72   0.   S. 

189;  McGaughey  vs.  Jacoby,  54  0.  S. 

487. 


647  VOUCHEE,  ETC.  §  721 

istration  or  existing  against  tlie  estate  at  the  time  of  decedent's 
death,  and  paid  in  the  manner  prescribed  by  the  law.  It  has 
been  mentioned  elsewhere,*'''  that  expenses  of  administration 
are  necessarily  entitled  to  payment  before  debts  of  the  deceased, 
because  they  are  incurred  for  the  very  purpose  of  securing  the 
payment  of  tlie-  debts.  The  matter  of  the  payment  of  debts  as 
well  as  tlie  payment  of  legacies  has  been  fully  considered  in 
previous  chapters.'^"  And  suffice  to  say  here  that  a,  debt  proper- 
ly ])aid,  and  expenses  properly  incurred  are  always  proper 
credits  in  the  account.^^  A  prerequisite  tO'  the  allowance  of  a 
credit  as  a  general  rule  is  a  receipt  for  its  payment.  This  is 
provided  for  by  the  following  section  of  the  General  Code : 

§  721.     Vouchers  to  be  produced  for  all  debts  paid.     ' '  In 

rendering  such  account,  every  executor  or  administrator  shall 
produce  vouchers  for  debts  and  legacies  paid,  and  for  funeral 
charges  and  just  and  necessary  expenses,  which  shall  be  filed 
with  the  account,  and  they,  together  with  the  account,  be  de- 
posited and  remain  in  the  probate  court."     [R.  S.  §6183.]^^ 

§  722.     Voucher,  what  is  proper. 

The  above  section  as  to  the  requirement  of  receipts  should  be 
strictly  enforced  against  every  executor  or  administrator.  The 
term  "  voucher,"  when  used  in  connection  with  the  disburse- 
ment of  moneys,  implies  some  written  or  printed  instrument  in 
the  nature  of  a  receipt,  note,  ac<?ount,  bill  of  particulars,  or 
something  of  that  character,  which  shows  on  what  account  or 
by  ^vhat  authority  a  particular  payment  has  been  made,  and 
which  may  be  kept  or  filed  away  by  the  party  receiving  it,  for 
his  own  convenience  or  protection,  or  that  of  the  public.  A 
voucher  is  any  instrument  which  attests,  warrants,  maintains, 
bears  witness. ^^ 

«9  §  646   et  seq.  ministration.      Woerner    on   Admin. 

TO  §646  et  seq.;  §67^    et  seq.  1144. 

"  In  tlie  previous   chapt.    39,    ex-  '2  §  10830  G.  C. 

penses   of    administration   has   been  See   §  1487,   Gdn's   accounting, 

treated  as  a  debt  of  the  estate,  and  ^s  28   Am.   &    Eng.   Ency.  of   Law 

likewise  exnenses  incurred  in  an  ad-  506. 


§  723  administrator's  accounting  648 

If  from  the  nature  of  the  transaction  vouchers  cannot  be  pro- 
duced, strict  proof  will  not  be  required/*  If  the  expense  of  a 
journey  made  in  the  interest  of  the  estate  is  claimed,  there 
should  be  an  itemized  account  thereof.^^  If  the  administra- 
tor has  vouchers  for  items  less  tlian  $10  he  should  produce 
them ;  and  the  failure  to  produce  them  will  furnish  sufficient 
reason,  under  the  discretion  of  the  Court,  for  the  rejection  of 
the  claim  for  an  allowance.^*  But  an  admission  that  the  ad- 
ministrator's books  put  in  evidence  are  correct,  dispenses  with 
the  production  of  vouchers.^^ 

In  proving  the  account  the  Court  is  not  bound  by  the  techni- 
cal rules  of  evidence.^^  If  a  voudier  is  lost,  and  the  item  it  rep- 
resents is  challenged,  the  administrator  must  prove  that  it  is  a 
proper  credit. ^^ 

§  723.    What  items  may  be  allowed  without  vouchers.    *'0n 

the  settlement  of  an  executor's  or  administrator's  account,  he 
may  be  allowed  any  item  of  expenditure,  not  exceeding  ten 
dollars,  for  which  no  voucher  is  produced,  if  such  item  be  sup- 
ported by  his  oath  positively  to  the  fact  of  payment,  specifying 
when  and  to  whom  it  was  made,  and  such  oath  be  uncontra- 
dicted. Such  allowances,  in  the  whole,  shall  not  exceed  two 
hundred  dollars."     [R.  S.  §  6184.]8o 


§  724.     Comments,  affidavit,  etc. 

The  above  section  embodies  the  common  law  rule  that  items 
not  exceeding  40^  are  sufficiently  proved  by  the  oath  of  the 
accountant,'^  provided  there  was  no  fraud  by  making  me  same 

74  Lidderdale      vs.      Robinson,      2  "  Sterrett's   Appeal,   2   Pa.   &  W. 
Brock.    159;    Matter   of   Pollock,    3       419. 

Redf.  100.  79  7,1    re    Rowland,    .5    Dem.    216; 

75  Williams  vs.  Pet'ticrew,  62  Mo.       See  §  1487. 

460;     Pearson    vs.    Darrington,    32  Books    of    a   business   carried   on 

Ala.  227.  by  an  executor,  when  properly  kept, 

70  In  re  Orser,  5  Dem.  21.  will  be  received  as  vouchers.     In  r9 

I"!  In  re  Langlois'  Estate,  26  Abb.  Reynolds,  3  N.  P.  292;  2  Dec.  11. 

N.   C.   226;    S.    C.    14   N.   Y.   Supp.  so  §  10831    G.    C. 

146.  siWoerner  on  Admin..    1116  and 

1188. 


649  PREPARATION  §  726 

come  within  the  limits,  by  a  division  of  a  larger  claim.     The 

general  practice  in  reference  to  the  allowance  of  items  without 

a  receipt  or  voucher  is,  that  such  items  should  be  set  out  in 

detail  in  the  account  with  a  designation  that  tliere  is  no  voucher 

for  them,  and  then  require  the  accountant  to  make  an  affidavit 

to  the  account.     However,  if  tlie  items  are  numerous  and  near 

the  excess  limit,  a  special  affidavit  may  be  required  which  may 

be  accepted  in  lieu  of  a  voucher.     The  following  may  be  used 

as  a  form  of  affidavit: 

State  of  Ohio,    county,  ss. 

Before  me  the  undersigned  Probate  Judge  in  and  for  Clark  countjr,  per- 
sonally came  A.  B.,  who  being  first  duly  sworn,  says  he  is  the  executor 
(or  administrator)   of  the  estate  of  C.  D.,  deceased;   and  that  as  such  on 

the day  of ,  he  paid  to the  sum  of 

dollars  for    (here  state  for  what  the  payment  was   made),   and   that   on 

the day  of he  paid  to  E.  F.  for    (here  stats  what)    the 

sum    of dollars.      All    of    such    payments   were   made    for    the 

benefit  of  said  estate  (or  state  the  reason  why  a  receipt  was  not  taken,  or 
if  a  receipt  was  taken  and  lost  so  state). 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this d?iy  of 

,   19.  .  ..82 


§  725.     Preparation  of  account. 

It  may  not  be  amiss  here  to  say  a  few  words  in  reference 
to  the  preparation  of  the  account.  Unless  the  account  is  of 
exceeding  simplicity,  no  administrator  or  executor  should  at- 
tempt to  prepare  it  unless  he  is  well  versed  in  such 
matters,  vdthout  the  employment  of  an  attorney.  Most  Pro- 
bate Judges  furnish  blanlcs  and  these  can  be  generally  had,  for 
the  asking,  and  usually  are  the  best  fitted  for  a  proper  ac- 
count. The  first  thing  that  should  be  consulted  in  the  prepa- 
ration of  an  account,  especially  if  it  be  the  first  account,  is  the 
inventory ;  and  all  matter  contained  in  the  inventory  should 
be  accounted  for  in  the  account  either  through  the  items  con- 
tained in  the  sale  bill  or  otherwise'.  Very  great  hardships  are 
sometimes  incurred  by  a  failure  tO'  consult  and  examine  all 

82  If   exceptions   are   filed   to   cer-  er    side    disprove    them.     Birkholm 

tain  items  of  a  report,  the  vouchers  vs.    Wardell,    42    N.    J.    Eq.    337; 

are  not  strictly  evidence.     Finch  vs.  Mctzger  vs.  Metzger,   1  Bradf.  265; 

Ragland,  2  Dev.  Eq.   137;  but  they  Boughton  vs.   Flint,  74  N.   Y.  476; 

are  received  aa  prima  facie  evidence  Valentine    vs.     Valentine,     4    Redf. 

of  the  expenditures,  unless  the  oth-  2G5;  Woerner  on  Admin.  1188. 


§  t-'^  administrator's  accounting  650 

the  previous  papers.  If  the  account  to  be  filed  is  the  second  or 
subsequent  account,  the  previous  account  should  be  examined.** 
The  next  thing  that  should  be  strictly  observed,  is  the  ascer- 
tainment of  vouchers  for  each  expenditure,  and  where  possible, 
get  a  voucher,  provided  none  has  been  already  acquired.  If 
any  assets  remain  uncollected,  the  account  should  state  the  fact 
and  the  reason  for  their  remaining  in,  that  condition.  If  any 
debts  have  not  been  paid,  a  like  statement  should  be  made. 
This  may  bei  made  in  the  body  of  the  account  or  separately, 
and  attached  to  the  account  as  an  exhibit.  Finally  the  account 
having  been  prepared,  a  careful  addition  should  be  made,  and 
the  vouchers  should  be  numbered  and  arranged  in  numerical 
order.  If  the  aecoimt  is  a  final  one^  or  even  if  not  final,  it 
would  be  well  to  submit  it  to  the  parties  in  interest  and  get 
their  approval.  And  if  all  is  satisfactory,  and  the  debts  are 
all  paid,  a  distribution  may  be  made  before  the  account  is  filed, 
and  included  in  the  account.^^^  Unless  all  is  satisfactory,  a  dis- 
tribution ought  not  to  be  made'  until  the  account  is  passed  upon. 
It  should  not  be  forgotten,  that  if  the  account  be  filed  by  the 
executor,  and  he  holds  trust  funds  and  carries  the  trust  from 
year  to  year,  that  he  must  also  attach  to  his  account,  a  full 
itemized  statement  of  all  the  funds  of  the  decedent's  estate 
under  his  control,  giving  the  date,  nature  of  the  investment, 
and  security  thereon,  and  the  rate  of  interest,  etc**  If  the  ad- 
ministrator or  executor  claims  extra  compensation,  a  statement 
in  detail  of  such  claims  should  be  made.  Likewise  if  the  ad- 
ministrator has  employed  an  attorney  or  other  person  in  the 

83  There  came  under  my  observa-  the  administrator  to  account  for  the 

tion    while    Probate    Judge    an    in-  money.    See  Gilbert  vs.  Marsh,  4  N. 

stance   where  an   account  had   been  P.  338;  7  Dec.  230. 

filed   and   omitted   to   state   a   sum  83a  it  should  not  be  forgotten  that 

of     money     which      the      inventory  if   a   distribution   to    heirs    is   made 

showed  to  be  on  hands.    Nine  years  prior  to  eighteen  months  from  date 

afterward   a   citation   was    filed,    re-  of   appointment   of   the   administra- 

quiring    the    administrator    to    ac-  tor,   and   debts   remain   unpaid,   the 

count    for    this    money.      At    that  administrator  would  still   be  liable 

length  of  time  no  one  was  able  to  for  them, 

give   a   satisfactory    explanation    of  s^  §  10939  G.  C. 

what  had  been  done  with  the  money  The  account  must  also  show  that 

on  hand,  although  most  of  the  par-  the  inheritance  tax  is  paid.     §  5347 

ties    interested    were    satisfied    that  G.  C,  §  361. 

it  had   been    in   some   manner   paid  See  previous  section  of  this  chap- 
out.     Yet  tliere  seemed  to  be  noth-  ter. 
ing  for  the  Court  to  do  but  to  order 


651  OATH,    ETC.  §  726 

managetment  of  the  estate,  whose  claim  is  considerable  in 
amount,  an,  itemized  statement  should  be  filed.^°  If  there  are 
desperate  claims  and  the  accountant  wishes  to  file  them  for  the 
benefit  of  the  heirs^  an  order  of  Court  for  that  purpose  should  be 
procured/^* 

§  726.     Oath  to  account. 

The  statute'  does  not  provide  that  the  account  should  be 
sworn  to,  but  simply  provides  that  the  administrator  or  execu- 
tor may  be  examined  upon  oath  on  any  matter  relating  to  his 
accounts,  and  tbe  payments  therein  mentioned,  and  also  touch- 
ing any  property  or  effects  of  the  deceased  which  have  come  to 
his  hands.*®  It  is,  however,  the  general  practice,  to  require  all 
accounts  to  be  sworn  to  by  the  accountant.  "Adult  parties,"  says 
Woemer,*^  "  interested  in  the  settlement  may  waive  the  veri- 
fication. But  it  is  the  duty  of  the  Court  to  require  the  ac- 
count to  be  sworn  to  when  the  rights  of  infants  or  absentees  are 
involved."  Another  reason  why  an  oath  should  be  required  at- 
tached to  the  account  is,  the  informal  manner  in  which  an 
adjudication  is  had  on  most  of  the  accounts.  Generally  when 
no  exceptions  are  filed,  no  further  examination  is  had  of  the 
accountant,  therefore  if  the  account  were  not  sworn  to,  a  great 
safeguard  against  fictitious  accounts  would  be  escaped.  The 
affidavit  may  be'  administered  by  any  officer  who  is  competent 
to  administer  an  oath.  Thfei  oath  usually  administered  is  to 
the  effect  that  the  account,  is  just  and  true,  and  that  it  contains 
a  full  statement  of  the  administration  of  the  estate.  A  form  for 
such  oath  is  attached  to  the  form  of  account.** 

85  It  is  advisable  that  every  ac-  party  himself  in  having  his  account 
count  intended  for  judicial  settle-  properly  made  up,  so  as  to  include 
ment,  whether  the  proceedings  in  all  legal  debts  and  credits,  and  to 
which  it  is  presented  be  voluntary  disclose  consecutively  and  intelligi- 
or  compulsory,  should  be  prepared  bly  the  history  of  his  administra- 
in  view  of  the  right  as  persons  in-  tion.  Jessup's  Sur.  Prac.  1286. 
terested  to  object  to  its  items,  and  85*  §§  1492,  Guardian's  account- 
put    the    accounting    party    to    his  ing;  §  456,  Sale  of  desperate  claims; 

" (   ....„,.          c   j.1.  ■  §  1655,  Assignee's  accounting. 

proof  in  justification  of  their  pro-  S6  s§  10820-21   G.    C,    §703;    also 

priety  or  amount.     No  one  can   be  previous  section. 

more  interested  than  the  accounting  87  Woerner  on  Admin.  1187. 

88  Schouler  Exrs.  525. 


^  727  administrator's  accounting  652 

§  727.     Form  of  administrator's  or  executor's  account. 

and  final  account  of ,  administrator  (or  exec- 
utor)  of  the of ,  deceased. 

In  account   with   said   t -ust  before   the   Probate   Court   of 

county,  Ohio. 

Said  administrator  or  executor  cliarges  himself  as  follows: 
190... 

To   amount   received    from 

Said  accountant  is  further  charged  with  balance  found  due 
said  estate  on  former  settlement  of  date  of 

,    190.. 


Total    $ 

Said  accountant   claims   credits   on   account   of   payments  and  disburse- 
ments made  on  behalf  of  said  estate,  as  follows,  to-wit: 
190... 

By  amount  paid,  Receipt  No.  1 

"     2 
By  amount  paid  Probate  Judge's  fees  —  this  account. ....  .$ 

By  Administrator's  and  Executor's  Commissions. 

6  per  cent,  on  first  thousand, $ 

4  per  cent,  on  next  4  thousand, $ 

2  per  cent,  on  remainder, $ 

Total ■ 

By  Administrator's  and  Executor's  further  allowance  made 

by  Court,    

Said  accountant  further  credits  himself  with  amount  found 
due  him  on  former  settlement  of  date  of ,  190. . 


Total  credits,   

RECAPITULATION. 

Total  amount   chargeable, 

"  "  credited,    


Balance  due  estate  —  Administrator  or  Executor,. 


OATH   TO   ACCOUNT. 

The  State  of  Ohio, county,  ss. 

,  administrator    (or  executor) ,  within  named,  being  duly 

sworn,  says  that  the  foregoing  account,  and  the  vouchers  therein  referred 
to,  present  a  full  and  correct  statement  and  exhibit  of  the  administration 
of  said  estate  to  the  time  of  the  filing  hereof  (except  as  shown  by  former 
accounts)    as  he  verily  believes. 


Sworn   to  before  me  and   subscribed   in   my   presence   this day  of 

A.  D.  190... 

,  Probate  Judge. 

By ,  Deputy  Clerk. 

APPLICATION  FOR  EXTENSION  OF  TIME. 

(Sec.    10685  G.   C.) 

Said  administrator  (or  executor)  asks  the  Court  for additional 

time,  from  this  date,  for  the  settlement  of  said  estate  for  the  reason 
that    

Said says  that  he  has  in  his  hands  moneys  applicable  to  the 


653  FILING,    ETC.  §  728 

payment  of  the  debts  of  the  deceased  amounting  to  $ and   that 

he  has  used  due  diligence  to  collect  the  assets  and  pay  the  debts  of  said 

estate.     That  said  estate  is  as  he  believes solvent;  that  at  the  time 

of  this  application  there  is  not  ir-  his  hands  more  than  one  hundred  dol- 
lars in  money;  subject  to  the  claims  of  creditors  of  said  estate. 


Sworn   to  before  me  and   subscribed   in   my   presence   this day   of 

,    190... 

,   Probate   Judge. 

By   ,  Deputy  Clerk. 

§  728.     Filing  and  entry. 

Having  prepared  the  account,  the  next  thing  in  order,  is  to 
present  it  to  the  Probate  Court.  Fees  for  the  account  should  be 
paid  at  the  filing,  and  likewise  if  there  is  any  claim  to  extraor- 
dinary compensation  on  the  part  of  the  executor  or  administra- 
tor, it  is  advisable  to  consult  the  judge  and  get  his  idea  as  to 
the  propriety  and  amount  of  the  allowance.  Of  course  if  ex- 
ceptions be  filed  to  the  account,  whatever  the  Court  might  say 
in  a  'pro  forma  manner,  would  not  be  binding,  but  in  many 
cases  no  exceptions  are  filed,  and  in  such  cases  if  consulta- 
tion has  been  had,  all  further  requirement  of  the  presence  of  the 
accountant  will  be  c^spensed  with.  The  following  may  be  used 
as  a  general  form  of  entry,  some  parts  of  which  may  be  elim- 
inated according  to  circumstances. 

ENTRY  ORDERING  NOTICE,  ETC. 

,    i90... 

,  deceased. 


of  the of 

(and  final ) account  current,  which  is  ordered  to  be  filed. 

(The  affidavit  required  by  law  being  filed,  and  there  not  being  in  the 
hands  of  said more  than  one  hundred  dollars  in  money,  sub- 
ject to  the  claims  of  creditors,  said  estate  being solvent.     On  motion 

additional  time,  from  this  date,  is  allowed  for  the  collection 

of  the  assets  of  said  estate. )  89 

Ordered  that  notice  be  given  of  the  filing  of  said  account,  and  the  same 

be   advertised   for    hearing   on day    of ,    190...,    to    which 

time  this  matter'  is  continued.so 

As  to  compensation  of  said.' ,  the  Court  finds  that  any  delay, 

after  notice  of  the  expiration  of  the  time  for  the  filing  of  said  account,  was 
necessary  and  reasonable.»i 

A.  B.,  Probate  J. 


8o§  10684  G.  C,  §440.  "'  Kco    §§  124    and    83;     §§  10618 

80  Previous   section.  and    10G06-7    G.   C. 


§  729  administrator's  accounting  654 

§  729.  Notice  of  filing  accounts  to  be  published.  ' '  The  pro- 
bate judge  shall  cause  notice  of  the  filing  of  accounts  by  execu- 
tors, administrators,  guardians,  trustees,  and  assignees,  trustees, 
and  commissioners  of  insolvents,  to  be  published  in  some 
newspaper  of  the  county,  specifying  when  such  accounts  will 
be  heard,  not  less  than  three  weeks  after  the  publication  of  such 
notice,  at  which  time  it  shall  be  competent,  for  cause,  to  allow 
further  time  to  file  exceptions  to  such  accounts.  The  costs  of 
such  notice,  if  more  than  one  account  be  specified  in  the  same 
notice,  must  be  paid  in  equal  proportions  by  the  executors, 
administrators,  guardians,  trustees,  and  assignees,  trustees  or 
commissioners  of  insolvents,  respectively."     [R.  S.  §  6402.] '^ 

§  730.     Fonn  of  notice,  etc. 

The  above  section  authorizes  and  the  general  practice  of  the 
Court  is,  to  only  make  advertisements  of  accounts  either  at 
stated  periods,  or  when  a  certain  number  of  accounts  have  been 
filed.  The  Court  may  oraer  a  single  account  to  be  advertised. 
The  following  may  be  used  as  a  general  form : 

NOTICE. 

State  of  Ohio,  Clark  countj,   ss. 

In  the  Probate  Court. 
To  whom  it  may  concern: 

Notice  is  hereby  given  that  accounts  and  vouchers  have  been  filed  in  the 
office  of  said  Court,  by  administrators  of  the  following  deceased  persons, 
to-wit:  (here  name)  and  by  executors  of  the  wills  of  the  following  deceased 
persons  (here  name)  and  by  guardians  of  the  following  persons  (here 
name  them)  and  by  trustees  of  (here  give  the  name  of  the  beneficiaries 
a*  well  as  the  power  of  appointment)  .93 

All  persons  interested  in  said  accounts  or  trusts  in  any  way  whatever, 

will  take  notice  that  the  same  have  been  set  for  hearing  on  the day 

of at  or  before  which  time  exceptions  may  be  filed  to  any  of 

said  accounts,  and  the  same  will  be  heard  at  that  date  or  at  such  other 
time  as  the  Court  may  designate. 

A.  B.,  Probate  Judge.9* 

§  731.     Entry  and  record  of  publication. " 

While  it  is  advisable  in  the  separate  finding  made  on  each 
account  to  include  a  finding,  and  that  proper  publication  is 
made  of  each,  yet  it  is  also  advisable  to  make  an  entry  on  the 

92  §  11201  G.  C.  a     separate    advertisement     of    as- 

93  Some    Courts    include    in    this      signee's  accounts. 

general  notice  the  hearing  as  to  as-  **  A  good  practice  is  to  regularly 

signee's   accounts,  but  as  a  general      give    the    notice    the    first    of    each 
m\e  it  will  be  found  better  to  maue      month.     See  §  1657,  Assignees. 


655  NOTICE^  ETC.  §  732 

entire  number  of  accounts,  which  are  advertised  at  one  time, 
and  also  order  that  they  be  recorded,  as  it  is  not  feasible  to 
record  the  advertisement  with  each  account.  The  entry  may 
be  in  the  following  form : 

ENTRY. 

{Title.) 

Proof  of  publication  of  notice  of  filing  accounts  to  be  heard  on  the 

day  of having  been  filed  in  this  Court,  the  same  is  hereby  ap- 
proved, and  it  is  hereby  ordered  that  said  notice,  together  with  the  proof 
of  publication,  be  entered  upon  the  journal  of  this  Court  in  full,  and  that 
said  accounts  be  recorded. 

§  732.  Importance  of  notice. 

The  judge  should  carefully  examine  the  notice  to  see  that  a 
proper  publication  has  been  made.     ISTo  provision  is  made  in 
I  our  statute  as  tO'  the  rights  of  infants,  and  as  none  is  made,  it 
may  be  presumed  that  an  account  may  be  passed  upon  and  bind 
the  infant,   although  he  is  not  represented  by  a  guardian  ad 
litem  or  otherwise.^^     To  bind  interested  parties  notice  must  be 
i  given  them,  or  as  to  them  there  will  be  no  adjudication.®^ 
!       Publishing  a  notice  in  the  English  language  in  a  German 
'  paper  is  insufficient.^^     But,  if  published  on  the  English  side  of 
the  paper,  where  such  paper  has  both  English  and  German 
sides,®^  a  notice  "  to  all  persons  interested  in  said  estate  "  is 
sufficient.®''     A  notice  that  a  partial  settlement  will  be  made 
will  not  authorize  a  final  settlement.^*'*'     But  a  final  settlement 
without  notice  will  have  the  effect  of  a  final  settlement  with  a 
prima  facie  validity. ^°^     The  administrator  cannot  take  advan- 
tage of  a  failure  to  give  notice,^**"  or  that  the  settlement  was 

95  See  Favorite  vs.  Booher,   17  O.  ss  McLean    vs.    Bergner,    80    Mo. 

S.  5o5;   §614.  414. 

osBarnett   vs.    Vanmeter,    7    Ind.  o'J  Roberts    vs.    Spencer,    112    Ind. 

App.    45;    Crawford    vs.    Redus,    54  81. 

Miss.   700;    Belloeq's   Succession,  28  i""  King  vs.   Collins,  21  Ala.  363. 

La.  Ann.  154;  Githens  vs.  Goodwin,  i"i  Winborn    vs.    King,    35    Miss. 

32  N.  J.  Eq.  286;  Long  vs.  Thomp-  157;    Grant    vs.    Hughes,    94   N.    C. 

son,  60  111.  27;  Clarke  vs.  Perry,  5  231. 

C.al.  59;  Gray  vs.  Myrick,  38  N.  J.  m- Williamson    vs.    Hill,    6    Port. 

Eq.  210;  Lenox  vs.  Harrison,  88  Mo.  184;    Davis   vs.   Davis,    6   Ala.    611. 

491 ;    Roberts   vs.   Johns,    16    S.    C.  See  Ballard  vs.  Mack,  27  0.  C.  C. 

171.  839;    3  0.  L.  R.  249;   McMahon  vs. 

87  iicitkamp  vs.  Biedenstein,  3  Mo.  Aiiil)acli,  79   0.   S.   119,  as  to  neces- 

I  App.  450.  sity. 


H 


§  733  administrator's  accounting  656 

made  before  the  day  fixed  for  it.^°^  The  fixing  by  the  Court 
of  a  date  for  hearing  the  report  is,  at  most,  a  mere  irregularity, 
and  the  order  of  the  Court  approving  the  report  and  dischaging 
the  administrator  is  not  invalidated  thereby.^''*  However  de- 
fective the  notice  may  be  in  form,  the  decree  will  be  binding, 
and  cannot  be  attacked  in  a  collateral  proceeding/*'^ 

§  733.  Examination  of  accountants  under  oath.  "The  pro- 
bate judge  may  examine  under  oath,  all  executors,  administra- 
tors, guardians,  and  trustees,  and  assignees,  trustees  and 
commissioners  of  insolvents,  touching  their  accounts.  If  he 
deems  it  proper  to  do  so,  he  may  reduce  such  examination  to 
writing,  and  require  such  executor,  administrator,  assignee, 
trustee,  or  guardian,  to  sign  it.  Such  examination  must  be  filed 
with  the  papers  in  the  case."     [R.  S.  §  6403.] i°« 

§  734.    Hearing  when  no  exceptions  are  filed.* 

The  mere  fact  that  no  exceptions  have  been  filed  to  an  ac' 
count  does  not  relieve  the  Court  of  its  duty  to  make  an  exam- 
ination of  the  account,  and,  for  matters  unexplained  by  the 
accomit  call  the  accountant  into  Court  to  make  an  explanation. 
I  fear  that  sometimes  Courts,  either  do  not  recognize  theii 
full  responsibility  in  tliis  matter,  or  if  they  do,  are  negligent 
in  the  performance  of  the  duties  devolving  upon  them.  The 
Probate  Judge  himself  should  make  the  examination,  but  if 
such  is  not  feasible  a  competent,  responsible  clerk  should  attend 
to  the  matter.  The  judge  or  his  clerk  should  see  that  the 
amounts  with  which  the  accountant  charges  himself  correspond 
with  those  in  the  sale  bill,  inventory,  or  former  account  as  the 
case  may  be.  If  the  fund  is  a  trust  account  he  should  observe 
whether  or  not  the  interest  has  been  collected  and  charged  on  the 
credit  side.  He  should  compare  the  vouchers  with  the  amoimts 
they  claim  to  represent  in  the  account,  and  in  this  way  he  will 

103  Semoice  vs.  Semoice,  35  Ala.  or  not,  to  scan  the  account  as  ^o 
295.  amounts   expended   for   personal  ex- 

104  Williams  vs.  Williams,  125  penses.  and  to  only  allow  such  sum 
Ind     156.  as    is    reasonable.      Kroll    vs.    Close. 

105  Jones  vs.  Jones,  115  Ind.  504;  82  O.   S.   190. 

§  1657,   Assignments.  It    is    likewise    the    duty    of    the 

106  §11202^0.  C.  Probate    Judge    to    see -that    trusts 
*Cited  Jones  vs.  Creamer,  Fayette       created  by  a  testator's  will  are  prop- 

Cir.  Ct.   1910.  erlv  carried  out.    Jones  vs.  Creamer, 

It    is    the    duty    of    the    Probate       u' C.   C.    (N.S.)    585;   32   0.   C.  C. 

Judge,    whether   exceptions   be    file  J      225;    affirmed  on   reasons  stated  in 


657  EXCEPTIONS,    ETC.  §  735 

ascertain  whether  a  vouclier  is  missing.  If  it  is  missing  and 
the  amount  exceeds  ten  dollars,  he  should  call  the  accountant 
and  require  him  to  make  an  explanation.  He  should  scrutinize 
closely  expenditures  m.ade  in  the  management  of  the  estate,  the 
emplojTnent  of  attorney,  etc.,  and  last  he  should  see  that  the 
additions  and  subtractions  are  correct.  Ko  account  should  be 
accepted  that  does  not  clearly  set  forth  the  administration  of 
the  estate  in  such  a  manner  that  it  will  show  an  its  face  a  full 
and  satisfactory  execution  of  the  trust  as  required  by  law.^^' 

§  735.     Entry  where  no  exceptions  are  filed. 

The  Court  having  made  a  satisfactory  examination,  the  fol- 
lowing may  be  used  as  a  general  form  of  entry : 

{Title.) 

,   19... 

of    the of ,    having    heretofore    to- 

wit,  on  the day  of ,  19 ... ,  filed  in  this  Court . .  h 

....  (and  final)  account  current,  and  notice  of  the  filing  and  of  the  time 
of  hearing  thereof  having  been  given,  for  not  less  than  three  weeks  prior 
thereto  by  publication,  in  the ,  a  newspaper  of  general  circu- 
lation in  said  county,  the  said  account,  and  there  being  no  exceptions  filed 

thereto,  is  now  here  heard.     And  the  Court  finds  that   said 

is  chargeable  with  assets  of  the  estate  of  said to  the  amount 

of  $ ,  and  entitled  to  credits  in  the  sum  of  $ ,  and  there 

is  due   said   estate ,   which   amount 

ordered  to  be  paid  over  or  distributed  to  the  party  entitled  thereto. 

Probate  Judge.ios 

§  736.     Exceptions. 

The  proper  method  of  objecting  to  an  account  is  to  file  a 
paper  in  the  Probate  Court  pointing  out  in  detail  each  item 
objected  to  and  stating  the  ground  of  the  objection.^"^  This 
writing  excepting  to-  certain  matters  contained  in  the  account 
must  be  filed  by  a  person,  having  actual  notice,  on  or  before  the 
date  at  which  the  account  is  to  be  heard.     It  may  be  filed  by 

the  opinion  of  the  Circuit  Court,  87  Under    a   former   statute    it   had 

0.  S.  480.  such    power.      McLaughlin    vs.    Mc- 

107  See  §  1659,  Assignees.  Laughlin,  4  O.  S.  508. 

108  The    Probate    Court    has    not  109  Woerner  on  Admin.  1190. 
jurisdiction   in  making  an  order  of  The     account    may     be    referred, 
distribution    to   determine   the   per-  James  vs.  West,  47  Bull.  857. 

sons  to  whom  distribution  is  to  be  Matters   passed  upon   in  proceed- 

made,  and  the  amount  going  to  each  ings   brought  by  the   administrator 

but  its  power  is  exhausted   in  that  to  sell  real  estate  can  not  be  made 

particular  when,  upon   final    settle-  the  subject  of  excentions  to  his  ac- 

ment  of  the  account  of  the  executor  count.     Estate  of  Hess.  .33  0.  C.  C. 

or  administVator,  it  enters  a  general  449.     See  §232  as  to  limitation  of 

order    of    distribution.      First    Na-  trust;  §  798,  entry  of  discharge, 
tional  Bank  vs.  Beebe,  62  O.  S.  41; 
See  §981. 


§  736  administbator's  accounting  658 

any  person  having  an  interest  in  the  result  of  the  accounting. 
The  interest  of  the  objecting  party  should  appear  of  record  and 
the  Court  niay  hear  evidence  to  determine  whether  he  is  entitled 
to  be  heard  or  not/^°  The  allegation  of  a  possible  interest  is 
not  suificient/^^  It  has  also  been  held  that  one  who-  claims 
property  by  a  title  paramount  to  that  of  the  deceased  cannot  be 
heard  to  object  to  the  accounting/^"  Creditors  may  except  to 
the  account,  but  not  creditors  of  the  heir  at  law/^^ 

In  a  ^ibsequent  section/^*  it  is  provided,  that  no  former  ac- 
count may  be  opened  so  as  to  correct  any  matter  therein  con- 
tained, Avhere  such  a  matter  had  been  previously  heard  and  de- 
termined, unless  by  leave  of  Court.  It  therefor  furnishes  an 
additional  reason  why  the  exception  should  set  out  definitely 
and  certainly  the  matter  objected  to;  and  while  rules  of  plead- 
ing will  not  be  strictly  adhered  to,  in  such  a  matter,  yet  they 
govern  as  far  as  practicable ;  and  it  has  been  held  that  an  ob- 
jection to  an  administrator's  final  settlement  or  report,  on  tht! 
grouuid  that  he  has  not  collected  debts  due  the  estate,  is  insuffi- 
cient unless  it  show  also  that  the  debts  are  collectible,  and  that 
the  debtors  are  solvent,  and  such  exception  may  be  disposed 
of  on  demurrer.  It  cannot  be  assigned  as  error  that  the  report 
does  not  show  facts  sufficient  to  entitle  the  administrator  to  his 
discharge.  So  a  general  objection  to  an  entire  account,  some 
of  the  items  of  which  are  properly  proved,  may  be  overiiiled.^" 

Exceptors,  however,  are  not  precluded  from  taking  further 
exceptions  to  eiTors  in  the  account  which  become  apparent  sub- 
sequently to  the  filing  of  the  original  objections,  and  which 
they  had  no  means  of  knowing  at  the  time.  In  such  cases  as 
a  matter  of  course,  the  accountant  must  have  sufficient  time  to 
prepare  a  reply.^^®  The  Probate  Court  has  power  to  charge 
an  executor  on  exceptions  to  his  account  with  loss  incurred  by 
selling  land  for  an  inadequate  price  in  bad  faith. ^^'^ 

110  Garwood  vs.  Garwood,  29  Cal.  m  §  10834-10836   G.   C,    §743, 
515,  518.  iisWoerner   on   Admin.    1190. 

111  Estate  of  Hallock,  49  Cal.  111.  ne  On  the  fiUng  of  exceptions  to 
ii2Cathey   vs.   Kerr,    15   La.   An.      an  administrator's  account  tlie  pro- 

228.  ceedings  are  in  the  nature  of  a  suit 

113  Owens  vs.  Thurmond,  40  Ala.  between  the  parties,  the  progress  of 

289.  which    eacli    must    observe    at    his 

Sureties  on  the  bond   of  the  ad-  peril.       Gray    vs.    Harris,    43    :Miss. 

ministrator  may  except  and  have  er-  421. 

rors    corrected      Porter    and    Wills  n"  Brown  vs.  Reed,  56  0.  S.  264; 

vs.  Brown,   16  Bull.  69.  f'  C.  D.  15;   10  C.  C.  44. 


659  EXCEPTIONS FOBM  §  737 


§  737.     Form  of  exceptions. 

The  Court  might  hear  exceptions  to  an  account  when  made 
orally,  but  such  is  not  good  practice  and  where  a  Court  had 
made  a  rule,  that  exceptions  should  he  in  writing  and  such  rule 
was  not  followed,  tlie  Court  was  sustained  in  dismissing  the  ex- 
ception. For  the  same  reason,  that  pleadings  are  required 
in  ordinary  actions  at  law,  the  exception  should  he  stated  in 
writing.  ISTo  particular  fomi  is  required,  but  it  should  show 
first,  that  the  party  filing  the  exceptions  has  some  interest  in 
the  accounting,  and  second,  it  should  show  a  prima  facie  case 
for  sustaining  the  exception.  The  statute  does  not  require  that 
it  should  be  verified,  but  there  are  no  reasons  existing  why  it 
should  not  be  verified  the  same  as  any  other  pleading. ^^" 

The  following  may  be  used  as  a  form  of  exceptions : 

(Title.) 

Now  conies  A.  B.  and  represents  that  he  is  (here  state),  whether  an 
heir  at  law,  creditor,  or  widow  of  deceased),  and  excepts  to  the  account 
herein  filed  by  E.  F.,  as  administrator  of  C.  D.,  and  which  is  for  hearing 

on  the day  of ,  and  says  that  said   account   is  not   true 

and  correct  in  the  following  matters,  to-wit:    (here  set  out  in  detail  mat- 
ters excepted  to ) . 

Sign 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day 

of 

While  not  absolutely  required ;  in  order  to  keep  a  record 
of  the  proceedings  in  the  case,  the  Court  should  on  filing  of 
the  exceptions  make  an  entry  which  may  be  as  follows : 

(Tiile.) 

This  day  came  A.  B.  and  filed  his  exception  to  the  account  of  E.  F., 
administrator  (or  executor)  of  the  estate  of  C.  D.,  and  the  Court  fixes 
the day   of at o'clock   for   hearing   said   excep- 

11*  In  New  York,  under  Code  Civ.  count   for   fraud    or   manifest    error 

Pro.,  §2514,  subdiv.  11,  "the  expres-  where    it    appears    that    the    benefi- 

sion  'person  interested,'  where  it  is  ciary  acquiesced  therein.     Koehnken 

used    in    connection    with    an    estate  In  re,  6  C.  C.    (N.S.)    359;   27  O.  C. 

or     a     fund,     includes     every     per-  C.  840. 

son    entitled,    either    absolutely    or  A  person  filing  exceptions  sliould 

contingently,  to  share  in  tlie  estate  be  one  who  is  interested  directly  in 

or   tlie    j)roce('ds   thereof,    or    in    the  the   distribution.     A  creditor   of   an 

fund,  as  husband,  wife,  legatee,  next  heir    is    not    such    person.      Sturges, 

,3f  kin,  heir,  (h'visee,  assignee,  gran-  In  re,   18  Dec.  344;    6  N.  P.    (N.S.) 

'tee,  or  otherwise,   except  as  a  cred-  667. 

;itor."     Owens  vs.  Thurmond,  40  Ala.  But    the    court    sua    sponte,    may 

-89.  take  up  the  matter  in  the  account. 

Petition  for  citation  alleging  that  and  make  such  orders  and  finding  as 

certain   Iwnds   which   came   into   the  are  proper.     See  Kroll  vs.  Close,  82 

wssession    of    executor    were    never  0.  S.  190;  Jones  vs.  Creamer,  32  O. 

lelivered  to  the  beneficiary,  does  not  C.  C.  225. 
itate  facts  sufficient  to  open  the  ac- 


§  738  administkatoe's  accounting  660 

tion;  and  orders  that  said  A.  B.  give  to  said  E.  F.  notice  of  the  time  of 
hearing  of  said  exception  at  least days  before  that  date.ns 

§  738.     Court  may  refer  account  to  special  commissioner. 

"If  it  deems  it  expedient  and  proper,  the  court  may  refer  the 
account  and  the  exceptions  thereto,  if  any,  to  a  special  com- 
missioner, appointed  by  it  for  that  purpose."     [R.  S.  §  6186.] ^^o 

The  usual  rules  pertaining  to  reference  and  the  appointment 
of  a  master-commissioner  or  referee  by  a  Court  apply  to  a 
reference  under  this  section/^^ 


The  entry  of  appointment  may  be  in  the  following  form : 

{Title.) 
This  cause  came  on  to  be  heard  on  the  account  of  E.  F.,  administrator 

of  C.   D.,   filed   on   the day   of and   exceptions   made 

thereto  by  A.  B.,  the  Court  upon  due  consideration  referred  the  same  to 
X.  Y.,  who  is  hereby  appointed  commissioner  to  examine  said  account  and 
report  to  this  Court. 

§739.    Trial,  etc. 

Such  proceedings  are  essentially  equitable  in  their  nature,^" 
and  the  rules  of  procedure  governing  ordinary  civil  cases  should 
be  applied  whenever  practicable.^-^  But  substance  is  considered 
rather  than  form,  and  strict  formality  of  procedure  is  not  re- 
quired. The  parties  have  no  right  of  a  trial  by  jury,  yet  there 
might  possibly  be  instances  where  an  issue  for  a  jury  might  be 
made  up. 

Where  an  account  is  contested  by  persons  interested,  the  ac- 
count and  the  objections  filed  thereto  stand  as  the  pleadings  in 

119  In  t..coe  proceedings  the  ac-  i--^  Goodbub  vs.  Hornung,  127  Ind, 
count   and    objections   thereto   form       181. 

the   pleadings;    and   an   objector   to  It  has  been  held  that  no  reference 

an  account  is  as  much  bound  to  set  can  be  made  unless  all  the  parties 

up    in    such    objections    any    claims  agree  thereto,  and  the  court  refers 

vi'hich  he  proposes  to  make,  as  the  to   §5215  R.  S.,  §  11483  G.   C,  but 

defendant  in  an  action  is  bound  to  that  section  only  refers  to  reference 

set    up    in    his    answer    any    claims  under   chapter   relating  to  appoint- 

which  he  proposes  to  urge.     Matter  ment   of    referees.      In   the    case   of 

of  Hart,  60  Hun.  516.  In  re  German,  2  N.  P.   (N.S.)   667; 

120  S;  10833  G.  C.  15  Dec.  304,  a  reference  was  made 

121  See  Kinkead's  Pract.  of    a    guardian's    account,    and   the 
A    referee    can    only    hear    such      court  held  it  was  void,  because  the 

matters  as  are  properly  referred  to  parties  did  not  consent.   This  seems, 

him.      When    exceptions    to   a    final  in    view    of    §  10833,    §  738,    to   be 

account  are  referred,  the  referee  has  somewhat  doubtful.     I  apprehend  it 

no  power  to  go  back  to  previous  ac-  would    make    no   difference   whether 

counts    filed,    especially    where    the  the  person  was  called  a  referee  or  a 

partial  accounts  had  been  filed  more  master   commissioner,   if   his  duties 

than    twenty    years    before.      In    re  were  the  same. 

Campbell,  22  Dec.  578.  Under  §  6186  R.  S.,  §  10833  G.  C, 
A  motion  for  a  new  trial  on  the  the  matter  of  an  account  and  excep- 
matter  of  reference  comes  too  late  tions  thereto  may  be  legally  re- 
after  the  report  of  the  referee  is  ferred,  although  the  parties  do  not 
filed.  consent.     All  that  is  required  is  that 

122  Ellis'  Estate,  5  N.  P.  207;   5  the  court  "deems  it  expedient." 
Dec.  330;  Woerner  on  Gdn.  315. 


661 


TRIAL 


EVIDENCE 


§740 


tKe  cause  and  determine  the  issues/-*  The  Probate  Court  has 
jurisdic-don  to  tiy  every  question  necessary  to  the  settlement  of 
the  account/"^  But  the  legality  of  an  executor's  or  adminis- 
trator's appointment  caimot  be  considered  in  such  a  proceed- 
ing/"^ nor  can  the  Court  consider  transactions  by  an  executor 
before  he  assumed  that  official  capacity/"^  nor  the  question 
whether  an  allowance  to  the  widow  from  the  decedent's  estate 
was  properl^^  made  by  the  Probate  Court,  where  the  same  is 
fixed  by  the  Court.''* 

§  740.    Evidence.i'^^ 

The  same  rules  of  evidence  are  applied  as  in  any  other  case, 
and  where  the  statutory  rule  makes  a  party  incompetent,  gener- 
ally it  will  be  applied  in  this  kind  of  a  proceeding.  Thus  an 
administrator  of  a  deceased  administrator  was  not  allowed  to 
testify  as  to  matters  he  had  excepted  in  the  former  administra- 


124  Matter  of  Heuser,  87  Hun  (N. 
'{.)  262;  Matter  of  Hart,  CO  Hun. 
(N.  Y.)   516. 

125  Merchant  vs.  Merchant,  2 
Bradf.  (N.  Y.)  432;  Shaffer's  Suc- 
cession, 50  La.  Ann.  601. 

126  Carroll  vs.  Hughes,  5  Redf. 
(N.  Y.)  337;  Matter  of  Altemua, 
32  La.  Ann.  364. 

127  Berryhill's  Estate,  61  Iowa 
345. 

128  19  Ency.  of  Plead,  and  Prac. 
1040. 

A  matter  not  properly  to  be  in- 
cluded in  the  account  cannot  be  held 
to  be  adjudicated  by  the  account. 
Sharp  vs.  Pontius,  2  C.  C.  7 ;  1  C. 
D.  336. 

.  An  account  of  an  administrator 
with  exceptions  thereto  having 
been  referred  to  a  special  comniis- 
sioner  by  the  Probate  Court  under 
|S  10833  G.  C,  and  such  commissioner 
having  made  his  report,  the  same 
'jeing  confirmed,  and  an  appeal  taken 
;o  the  Court  of  Common  Pleas,  that 
I!ourt  may  hear  and  determine 
i;he  cause  upon  such  report  and 
)ther  testimony  if  necessary,  or  may, 


if  it  deems  it  expedient  and  proper, 
refer  the  account  and  exceptions  to 
a  new  comuiissioner  appointed  by 
the  court  for  that  purpose.  The 
court  may  pursue  either  course  as 
to  it  may  seem  best,  and  error  will 
not  lie  for  so  doing.  James  vs. 
West,  47  Bull.  750. 

i2Sa  Cited,  Steward  vs.  Barry,  102 
0.  S.  —  (1921). 

Former  accounts  of  an  adminis- 
trator having  been  passed  upon  and 
settled,  and  exceptions  being  filed  to 
his  final  account  and  a  reference 
made  to  a  special  commissioner  and 
then  exceptions  filed  by  leave  of 
the  Court  to  parts  of  his  former  ac- 
counts, by  persons  claiming  to  be 
creditors,  it  is  not  error  for  the 
Court  to  refer  such  former  accounts 
and  the  exceptions  thereto,  together 
with  the  question  as  to  whether  such 
exceptors  are  creditors,  to  the  spe- 
cial commissioner  for  hearing  and 
report.  James  vs.  West,  47  Bull. 
750. 

See  Wehrmann  vs.  Beech,  7  C.  C. 
(KS.)  367;  28  0.  C.  C.  128. 

In  determining  matters  of  account 
the  court  is  governed  by  equitable 
principles.  Wilds,  In  re  Est.,  50 
Bull.  384. 

Where  an  allowance  is  made  to  a 
widow  for  dower,  etc.,  in  a  proceed- 
ings to  sell  real  estate  the  same  can 
not  fie  attacked  bv  exceptions  to  the 
account  of  the  administrator.  In  re 
Hess,  33  0.  C.  C.  449. 


§  740  administrator's  accounting  662 

tor's  account.^"''  But  generally  an  administrator  is  competent 
to  testify  in  behalf  of  either  party/^**  The  burden  of  proof 
rests  upon  the  executor  or  administrator  to  establish  the  validity 
of  any  item  of  credit  in  the  account,  which  is  challenged ;  for 
want  of  sufficient  prima  facie  proof,  such  credits  will  be  re- 
jected/^^  And  where  an  administrator  claims  that  a  debt 
shown  by  the  inventory  to  be  due  from  him  to  the  decedent  had 
been  paid  during  the  lifetime  of  the  testator,  the  burden  is  on 
him  to  prove  that  fact."'  But  when  credits  claimed  by  the 
executor  or  administrator  are  supported  by  vouchers,  showing 
the  nature  of  disbursement,  and  said  facts  which  if  true  show 
the  disbursement  to  be  reasonable  and  just,  and  for  the  good 
of  the  estate,  the  presumption  arises  in  favor  of  the  administra- 
tor's claim  and  the  person  contesting  bears  the  burden  of  disprov- 
ing them  "^ 

Generally  it  may  be  said  that  in  proceedings  for  the  settle- 
ment of  an  executor's  or  administrator's  accounts,  the  Court 
should  in  receiving  evidence  give  the  rules  of  evidence  the  most 
liberal  construction  consistent  with  justice."*  On  the  trial  of 
objections  filed  to  the  account  of  the  executor  or  administrator, 
the  executor  or  administrator  stands  in  the  position  of  plaintiff, 
but  each  party  objecting  must  make  out  his  case  by  proper  and 
sufficient  evidence.^^^     The  burden  of  establishing  more  assets 

129  In  re  Riinyan's  Estate,  4  N".  P.  gence   in   collecting  a   debt  for  the 

335;  7  Dec.  236.  nonpayment     of     which     he     takes 

See  Butt  vs.  Worthington,  36  0.  credit  in  his  account,  until  evidence 

C.   C.   720;    affirmed  57   O.   S.   636;  of  the  want  thereof  has  been  shown* 

Wehrman  vs.  Beach,  28  0.  C.  C.  128.  by   the   person   objecting.     Woerner 

131  Eabb's  Estate,  16  0.  S.  273.  on  Admin.  1189. 

131  Woerner  on  Admin.  1188,  cit-  134  Loomis  vs.  Armstrong,  63 
ing  authorities,  19  Ency.  Plead.  &  Mich.  355 ;  In  re  Ludigh,  15  Dec. 
Prac.  1044.  193;   affirmed,  71  O.  S.  485. 

A   person  who  is   incompetent  to  13»  Succession    of    Gayle,    27    La. 

testify  can  not  offer  in  evidence  the  Ann.  547. 

answer  to   a  letter  written   by   the  If  an  executor  is  invested  by  the 

deceased,   where   the   original    letter  will    with    powers    that    are    unlim- 

is  not  in  court.     Tolerton  vs.  Robin-  ited,  the  Probate  Court  will  not  hear 

son,  33  0.  C.  C.  179.  exceptions  to  his  acts  unless  fraud 

132  Dickie  vs.  Dickie,  80  Ala.  57;  is  shown.  If  such  executor  becomes 
Underbill  vs.  Xewburger,  4  Redf.  insane,  and  a  trustee  appointed  for 
499.  him  hied  the  final  account  for  such 

133  19  Ency.  Plead.  &  Prac.  1040.       executor,  exceptions  to  the  acts  done 
But  it  was  held  in  Pennsvlvania,       while  of  unsound  mind  will  not  be 

deviating    somewhat   from    the    cur-       considered.  Revnolds'  Estate,  2  'Low. 
rent  of  authorities,  that  the  a^min-       D.  11;  3  X.  F.  292. 
istrator  is  not  obliged  to  show  dili- 


663  COMPELLED  TO  RENDER  §  741 

than  the  executor  or  administrator  has  accouuted  for  rests  upon 
the  objecting  party,  and  the  objection  must  be  estaWished  with, 
reasonable  certainty.^^^ 

§741.  How  compelled  to  render  account.  "If  an  exec- 
utor or  administrator  fails  to  render  his  accounts  as  hereinbe- 
fore directed,  he  may  be  compelled  to  do  so,  as  in  case  of  failing 
to  file  an  inventory,  and  the  same  proceedings  be  had  to  attach 
and  remove  him  and  to  appoint  a  successor."     [R.  S.  §  6178.]^^^ 

§  742.    Who  and  when  may  compel,  etc. 

The  law  does  not  say  who  may  compel  the  filing  of  an  ac- 
count. Unquestionably  any  one  who  has  an  interest  in  the 
estate  may  compel  such  an  accounting,  I  apprehend  that  it 
would  not  only  include  persons  interested  in  the  estate,  but 
bondsmen  of  the  executor  or  administrator  as  well.  Not  only 
may  such  persons  compel  an  accounting,  but  the  court  of  its  own 
motion  may  do  so.  In  fact  the  court  ought  to  attend  to  this  mat- 
ter very  carefully.  Every  administrator  and  every  executor  as  a 
means  of  protecting  those  whose  interests  are  at  stake,  should  be 
compelled  to  file  his  account  at  the  times  indicated  by  the  statute. 
Some  courts  have  a  clerk  whose  especial  duty  it  is  to  attend  to 
this  matter,  and  in  those  courts  it  is  found  that  the  accounts  of 
estates  are  in  better  condition  than  in  those  courts  where  such 
matter  is  neglected.  A  citation  may  be  issued  at  any  time  before 
m  action  would  be  barred  on  an  administrator's  bond,   that 

136  Marre   vs.   Ginochio,   2   Bradf.  Probate  Court,  and  is  barred,  when 

(N.  Y. )   165;  Bainbridge  vs.  McCul-  action  on  the  bond  is  barred.     Phil- 

ough,  3  Thomp.  &  C.   (N.  Y.)   486;  lips  vs.  State,  5  0.  S.  122. 
Matter  of   Stevenson,   86   Hun.    (N.  Where  notice  for  hearing  has  been 

if.)    325;    Matter   of    Baker,   42   N.  properly  published,  an  account  can 

if.  App.  Div.  370;    19  Ency.  Plead.  not   be   opened   up,   to   determine   a 

t.  Prac.  1045.  question   whether  or  not  a   distrib- 

I    137  §  10825  G.  C.  utee,  whose  receipt  is  on  file,  did  in 

As  this  section  makes  special  ref-  fact  receive  her  share.     This  must 

•rence  that  an  account  may  be  or-  he  done   in   an   independent  action, 

lered  to  be  filed  in  the  same  man-  Kochken,  In  re  Est.,  1  C.  C.   (N.S.) 

ler  as  an  inventory,  the  reader  will  126;  25  0.  C.  C.  245. 
18  referred  to  the  chapter  on  inven-  The  power  of  citation  is  incident 

ory   where    the    forms    given    with  to   the  jurisdiction   of   the   Probate 

;ery  little  change  can  be  adopted  for  Court.     Phillips  vs.  Harter,  5  0.  S. 

ise  in  tills  section.     §  303.  122. 

■  The  Court  can   enforce  the  filing  An    administrator    can    be    com- 

f  an  account  by  proceedings  in  con-  pelled  to  file  an  account  so  long  as 

empt.     §  543  R.   S.     See   §981,  In-  he  has  not  filed  a  final   account  or 

olvent  statutes.  there  are  assets  in  his  hands.     The 

The  proceedings  by  citation,  etc.,  ten-vear  statute  of  limitations  does 

i3  a  necessary  incident  to  the  proper  not    anulv    to    such    cases.      In    re 

xercise    of    the    JMvisdiction    of    a  Campbrll,  33  O    C.  C.  578. 


§  743  administrator's  accounting  664 

is,  'O'ithiii  ten  years  from  the  time  the  account  could  have  been 
required. ^^^ 

If  the  time  has  elapsed  in  which  the  account  should  be  filed, 
the  allegations  of  the  application  for  a  citation  would  be  very 
simple.  If  an  account  was  desired  during  a  period  of  extension 
wliich  had  been  granted  by  the  Court,  the  application  should 
state  specifically  the  reasons  for  the  desirability  of  the  account 
being  filed  before  the  time  as  extended  by  the  Court  had  ex- 
pired.^^^ 

§  743.  When  and  how  account  may  be  opened  after  settle- 
ment. "When  an  account  is  settled  in  the  absence  of  a  person 
adversely  interested,  and  without  actual  notice  to  him,  it  may 
be  opened  on  his  filing  exceptions  to  the  account  within  eight 
months  thereafter."     [R.  S.  §  6187.]  ^^ 

§  743a.  Mistakes  or  errors.  "Upon  every  settlement  of  an 
account  by  an  executor  or  administrator,  all  his  former  accounts 
may  be  so  far  opened  as  to  correct  any  mistake  or  error  therein. 
I\Iatters  cf  dispute  between  two  parties,  which  previously  had 
been  heard  and  determined  by  the  court,  shall  not  again  be 
brought  into  question  by  either  of  the  same  parties  without 
leave  of  the  court."     [R.  S.  §  6187.] i*"* 

§  743b.  Distribution  after  settlement.  "If  upon  hearing 
and  settlement  of  such  account,  a  balance  due  the  estate  remains 
in  the  hands  of  the  executor  or  administrator,  the  court  in  its 
discretion  may  order  distribution  to  be  made  by  him  accord- 
ing to  law."     [R.  S.  §6187.]i^''t 

§  744.    Absence  of  party. 

It  is  now  well  settled  that  the  settlement  of  the  accounts  by  the 
Probate  Court  iz  conclusive  against  parties  with  actual  notice  as 
to  all  matters  set  out  therein,  and  no  second  accounting  as  to 
them  can  be  required  unless  such  account  is  impeached  for  fraud 
or  error.^*^  But  such  account  is  not  final  as  to  assets  in  the  exec- 
utor's hands  and  not  accounted  for,  or  passed  on,  or  when  pay- 
ment is  made  to  the  wrong  person.     As  to  them  the  Probate 

138  Phillips  vs.  State,  5  0.  S.  122;  to  suppress  the  mischief  and  ad- 
Gilbert  vs.  Marsh,  4  N.  P.  338;  7  vance  the  remedy,  and  uncontested 
Dec.   230.  partial   accovmts   may,   upon   proper 

139  See  §280  et  seq.,  §304,  as  to  exceptions,  be  opened  up  on  hearing 
filing  inventory.     See  §  1486.  of  the  final  account:   and  for  fraud 

140  §  10834  G.  C.  the  whole  account  can  be  required 
140*  §  10835  G.  C.  to  be  restated.  Ludigh,  In  re.  15 
i40t  §  10836  G.   C.  Dec.  193. 

141  McAfee  vs.  Phillips,  25  0.  S.  Where  there  is  no  other  relief  a 
374.                                                                  Court  of  Equity  may  protect  a  per- 

If  the  administrator  does  not  ac-  son  who  is  injuriously  affected,  and 

coimt  for  all   the  money  that  is  in  who   has   not   been   guilty   of   negli- 

his  hands,  or  should  be  in  the  ac-  gence   or   laches.      Gantz   vs.   Guase, 

count,  it  may  be  opened  up.     Lam-  82  O.  S.  41. 

bright  vs.  l.ambright,  74  0.  S.   198.  It    can    only    be    impeached    for 

This     statute     is     remedial,     and  fraud  where  action  is  brought  with- 

should  be  liberallv  construed   so  as  in    four    years    from    discovery    of 


665  ERRORS   AND   MISTAKES  §  745 

court  may  compel  further  accounting  any  time  within  the  statu- 
tory limit.  Subject  to  these  exceptions  and  to  those  provided 
in  the  above  section  in  reference  to  error  and  mistakes,"^^  the 
person  desiring  to  take  exceptions  to  the  account  where  he  has 
notice,  must  do  so  before  or  at  the  time  of  hearing  the  account. 
Pennitting  a  person  adversely  interested  to  open  up  an  account 
witliin  eight  months  from  the  date  of  its  hearing,  is  one  of  grace, 
extended  to  such  person  and  he  must  show  himself  strictly  en- 
titled to  come  within  the  statutory  provision.  As  to  whether 
he  had  actual  notice  is  a  question  of  fact,  and  it  will  be  in- 
cumbent upon  him  to  show  that  he  did  not  have  actual  notice. 
If  an  administrator  or  executor  wishes  to  preclude  persons 
from  taking  advantage  of  the  above  section,  he  should  in  addi- 
tion to  the  notice  given  by  publication,  give  to  all  persons  notice 
that  he  has  filed  his  account,  and  that  it  will  be  heard  on  the 
day  set  by  the  Court.  The  Court  would  hold,  no  doubt,  that  all 
minors  and  persons  under  a  disability,  even  if  tliey  had  actual 
notice,  could  open  up  the  account  within  the  eight  months. ^^'^ 

§  745.     To  correct  errors  and  mistakes. 

■  The  statute  gives  to  every  one  the  opportunity  to  have  errors 
or  mistakes  which  occurred  in  a  previous  account  corrected  in 
a  future  account.^*-^  This  provision  could  only  extend  to  inter* 
mediate  or  current  accounts.  The  statute  further  provides  that 
no  error  or  mistake  can  be  corrected  where  such  error  or  mis- 
take has  been  the  subject  of  controversy  between  the  parties, 
and  has  been  adjudicated,  unless  by  leave  of  court;  and  where 
a  matter  has  been  adjudicated  by  appeal  from  the  Probate 
Court,  it  can  not  be  reopened  even  by  permission  of  the  Probate 
Court.^*^ 

fraud.     Henry  vs.  Doyle,  82   0.  S.  titled  to  the  same.  Banning  vs.  Got- 

113.  shall,  62  0.  S.  210. 

See  §746.  I42a/,i,   re   Ludigh,   15   Dec.    193; 

141a  A  mistake  is  defined  as  some  affirmed,  71  0.  S.  485. 

unintentional  omission  or  error.    In  143  Stayner's  Case,  33  0.  S.  481. 

re  Campbell,  22  Dec.  581.  The   "errors   and  mistakes"   in   a 

142  Tlie  settlement  of  the  final  ac-  previous  account  which  might  be 
count  of  an  executor  or  administra-  corrected  on  the  hearing  of  a  sub- 
tor  showing  the  payment  of  money  sequent  account  do  not  embrace  er- 
to  a  person  not  entitled  thereto,  rors  and  mistakes  of  the  Court  on 
is  no  bar  to  a  subsequent  action  matters  previously  litigated,  so  far 
against  him  for  the  recovery  of  the  as  the  same  parties  are  concerned, 
money    by    one   who    is    legally    en-  They  have  had  their  day  in  Court. 


745 


ADMINISTRATOR  S    ACCOUNTING 


6( 


And  the  Court  in  any  instance  would  be  very  cautious  in  exei 
cising  tlie  power  to  grant  leave  to  open  an  account  which  haj 
been  judicially  settled.^** 

Where  the  Court  has  required  that  exceptions  to  an  accoui 
be  made  definite  and  certain,  little  trouble  will  be  experienced  ii 
determining  whether  or  not  a  matter  has  been  settled  judiciallj 
upon  dispute  of  the  parties.     A  more  difficult  question  arise 
as  to  the  kind  of  a  mistake  or  error  that  may  be  corrected  in 
subsequent  account.      The  errors  and  mistakes  that  may  be  coi 
rected  are  errors  and  mistakes  of  fact,  and  not  those  of  law.^^ 
For  whatever  has  been  judicially  passed  upon  it,  if  advantage 
to  be  taken  of  that  fact,  it  must  be  done  by  appeal  or  error  ij 
the  manner  provided  by  statute.     And  it  has  been  held  that 
account  containing  items  of  credit  to  an  administrator  for  hi 
statutory    commissions,    and    for    extra   sendees,    and    for    ai 
amount  paid  by  him  for  attorney  fees  in  the  settlement  of  tl 
estate,  and  which  account  current  was  duly  allowed  and  con- 
firmed by  the  Probate  Court,  cannot,  on  the  filing  of  a  second 
account,  more  than  one  year  thereafter,  be  reopened  for  hear- 
ing, and  such  items  be  disallowed  by  the  Court,  on  exceptions 
filed  thereto,  when  it  is  not  claimed  or  found  tliat  tliere  was  any 
error  or  mistake  tlierein,  or  in  their  alloAvance."® 

In  another  case  it  was  said,  "  If,  therefore,  there  was  any 
error  or  mistake,  either  in  the  debit  or  credit  side  of  the  former 
accounts,  not  heretofore  adjudicated  between  these  parties,  it 
was  subject  to  correction  in  this  account,  whether  that  error  or 
mistake  consisted  in  omitting  proper  charges  or  credits,  or  in 
including  incorrect  charges  or  credits,  or  whether  made  by  the 
Court  or  the  executrix."'' 


On  a  hearing  of  the  subsequent  ac- 
counts, the  Probate  Court  was  ap- 
pealed to  to  go  behind  this  judg- 
ment of  the  Gommon  Pleas,  so  far 
as  to  correct  the  alleged  errors  of 
that  court.  Clearly,  the  Probate 
Court  could  not  thus  disregard  a 
judgment  rendered  on  appeal  from 
its  decision.  To  do  so  would  de- 
feat the  right  of  appeal,  and  render 
nugatory  the  mandate  of  the  Appel- 
late Court,  which  it  was  bound  to 
respect  and  obey.    Id.  489, 

144  Field  vs.  Hitchcox,   14  Picker- 
ing 405;   Smith  vs.  Button,  4  Shep- 


ley    308;    Brown    vs.    Doolittle,    151 
Mass.  600. 

§  10834  G.  C,  §  743,  is  almost  a 
verbatim  copy  of  the  Massachusetts 
statute  and  the  citations  from  that 
State  are  peculiarly  applicable. 

145  19  Ency.  of  Prac.   1058,  1070. 

146  Campbell  vs.  McCormick,  1  C. 
C.  504;  1  C.  D.  281. 

See  note  at  end  of  §§  746,  743. 

147  Watts  vs.  Watts,  38  0.  S.  480. 


667  OPENING  UP,  ETC.  §  746 

Just  what  is  meant  by  the  above  as  to  correcting  a  mistake 
made  by  the  Court,  may  not  be  easy  to  determine.  If  it  is  a 
matter  in  the  account  which  the  Court  is  presumed  to  have 
judicially  passed  upon,  then  I  apprehend  it  could  not  be  cor- 
rected in  a  future  account. 

If  the  Court  errs  in  its  application  of  the  law  to  the  given 
facts,  it  is  an  error  and  mistake  that  cannot  be  opened  up  in  a 
subsequent  account.  If  the  error  or  mistake  is  one  of  facts,  it 
may  be. 

In  a  recent  and  well  considered  case,^*^  where  the  question 
involved  was  the  reopening  of  a  guardian's  account  under  the 
provisions  of  the  law  relating  to  guardians,  it  was  held 
ithat  an  account  cannot  b©  opened  up  unless  it  was  made  to 
appear  that  a  mistake  or  fraud  had  entered  into  the  settlement, 
md  to  that  extent,  and  to  that  extent  only,  might  it  be  reformed 
md  corrected,  for  the  Probate  Court  as  to  matters  that  come 
within  its  jurisdiction,  is  a  Court  of  record  and  its  judgments 
ire  of  the  same  binding  effect,  as  judgments  of  any  other 
Dourts,  and  can  only  be  impeached  for  fraud.^*® 

§  746.     Opening  account  after  eight  months,  etc. 

What  remedy  a  person  may  have  for  a  correction  of  an  error 
n  an  account  after  the  same  has  been  heard  when  a  person  is 
)resent  or  has  actual  notice,  or  when  not  present  and  eight 
aonths  has  expired,  is  not  so  very  plain.    It  is  well  settled  that 

Probate  Court  is  a  Court  of  record  and  its  judgments  import 
bsolute  verity.  When  it  passes  judgment  such  judgment  can 
nly  be  set  aside  or  vacated  in  a  manner  provided  by  law. 
lee.  11631,  G.  C,  provides  a  number  of  causes  which  may  be 

148  Millen  vs.  Young,  18  C.  C.  ecutor  or  administrator  becomes 
71;  8  C.  D.  391.  absolute  and  conclusive  and  can  not 

See  §  797,  as  Account  of  distribu-  be  attached  except  for  fraud  of  the 

on.  prevailing      party.        Crawford     vs. 

149  Woodward  vs.  Curtis,  19  C.  C.  Zeigler,  84  O.  S.  224;  56  Bull.  185. 
^5;  10  C.  D.  400.  See  §  743. 

It  has  been  held  that  an  account  In  Hunter  vs.  Yocum,  27  Dec.  31; 

'distribution  can  not  be  opened  up  18  N.   P.    14,   it  was   held  that  the 

'(  the  Probate  Court  when  eighteen  account  could  not  be  opened  up  ex- 

onths  have  elapsed.     In  re  Est.  of  cept  for   fraud.     But  where  a  mis- 

oehnken,    1    C.   C.    (N.S.)    126;    15  take   has   been   made   in  the  former 

jr.  D.  245;  C.  C.    (1903).  final  account  as  to  the  existence  of 

See  In  re  Ludigh,  15  Doe.  193.  debts  against  tlie  estate  and  credits 

i  After     the     expiration     of     eight  due    the    administrator,    the    former 

onths,  where  the  account  is  settled  account  may   be   opened   up   by  the 

the  absence  of  a  person  interested  P'-obate  Court  upon  the  filing  of  a 

k1    without   actual    notice   to   him,  subsequent    account    showing    exist- 

•'  judgment  of  the  Prol)ate  Court  ence  of  such  debts  and  credits, 
ttling  the  final   account  of  an  ex- 


§746  administrator's  accounting  668 

sufficient  to  vacate  a  former  order  made  by  the  Probate  Court 
or  Court  of  Common  Pleas.  Our  Supreme  Court,  however, 
has  held  that  the  provisions  of  sec.  11631  of  the  Code  of  Civil 
Procedure,  as  extended  by  sec.  11643  to  Probate  Courts,  do  not 
confer  power  upon  the  Probate  Court  in  the  proceedings  in- 
stituted under  sec,  11635  to  vacate  or  modify  its  own  order 
previously  made  in  the  settlement  of  the  accounts  of  the  ex- 
ecutors and  administrators. ^^° 

This  would  seem  to  leave  a  party  absolutely  without  a  remedy 
unless  he  might  file  a  petition  in  equity  to  review  the  account. 
The  Court,  in  the  case  of  Johnson  vs.  Johnson,^^^  seems  to  give 
as  a  reason  why  the  finding  could  not  be  opened  under  sec.  11631, 
etc.,  that  the  proceedings  in  an  accounting  are  of  an  ex  parte 
character,  and  that  the  provisions  of  sec.  11631  extend  only  to 
adversary  parties.  Whether  this  is  the  rightful  construction  or 
not,  it  is  settled  until  the  Supreme  Court  declares  to  the  con- 
trary. In  a  later  case,^^-  where  it  was  sought  to  vacate  a  for- 
mer order  of  the  Probate  Court,  the  judge  says,  "but  for  the 
opinion  in  Johnson  vs.  Johnson,  26  0.  S.  357,  I  should  have 
held  that  the  application  for  that  purpose  must  be  made  under 
sec.  11631,  R.  S.,  of  the  Code."  It  seems,  then,  that  a  Court 
of  equity  would  be  the  only  resource  that  could  be  possibly  had 
to  vacate  a  finding  of  the  Probate  Court  in  the  matter  of  a 
settlement  of  an  estate  after  the  time  had  elapsed  for  an  appeal 
or  a  proceedings  in  error.  This  would  apply  to  a  current  or 
partial  account,  as  well  as  a  final  account,  as  to  those  matters 
which  the  Court  judicially  passed  upon.  There  has  been  some 
question  as  to  the  power  of  a  Court  of  equity  in  such  cases,  but 
I  think  it  may  be  said  to  be  the  law  in  Ohio  that  the  Common 
Pleas  Courts  retain  jurisdiction  in  all  matters  in  the  settle- 
ment of  estates  where  the  remedies  afforded  by  law  and  the  ju- 
risdiction conferred  upon  the  Probate  Court  is  inadequate;  and 
in  one  Common  Pleas  decision,^^^  it  was  held  on  demurrer  that 
a  petition  was  good  which  was  filed  in  the  Court  of  Common 
Pleas  to  vacate  an  order  made  by  the  Probate  Court  in  the  set- 
tlement of  estates.  In  this  same  case  the  demurrer  was  sus- 
tained, however,  because  the  petition  did  not  allege  sufficient 

150  Johnson  vs.  Johnson,  26  0.  S.  iss  Rote  vs.  Straiten,  2  N.  P.  27. 
357.  The  Circuit  Court  in  Howenstine 

151  26  O.  S.  357.  vs.   Sweet,    13   C.    C.   239,    hold   the 

152  Stajmer's  Case,  33  0.  S.  491.  same  way.     7  C.  D.  498. 


669  OPENING  UP,  ETC.  §  746 

facts  to  constitute  a  cause  of  action,  the  charge  of  fraud  being 
only  alleged  in  general  terms.  In  a  later  case,^^*  it  ^vas  held 
that  the  fraud  for  which  a  Court  of  equity  will  vacate  a  judg- 
ment must  he  a  fraud  practiced  by  the  successful  party  in  ob- 
taining the  judgment.  Quoting  from  the  ISTew  York  Court  of 
Appeals,  it  is  said  "  the  fraud  which  will  satisfy  equitable  in- 
terference in  setting  aside  the  judgment  and  decree  must  be 
actual  and  positive,  not  merely  constructive ;  it  must  be  fraud 
occurring  in  the  conception  or  procurement  of  the  judgment  or 
decree,  which  was  not  known  to  the  party  at  the  time,  and  for 
not  knowing  which  he  was  not  chargeable  with  negligence." 

In  this  case  it  was  not  claimed  that  the  administrator  did 
not  make  the  payments  as  set  out  in  his  accounts,  but  that  they 
were  unauthorized  payments.  The  Court  says  "  so  far  as  this 
record  goes  there  is  nothing  to  show  that  tlie  Probate  Court  did 
not  pass  on  every  question  here  made  as  to  the  legality  of  these 
items  in  this  account."  The  presumption  is  that  the  Probate 
Court  has  performed  its  duty,  and  having  passed  upon  these 
questions,  even  if  the  Probate  Court  came  to  an  erroneous  con- 
<dusion  as  to  matters  of  law  —  or  as  to  those  matters  —  it  is 
aot  for  this  Court  or  the  Court  of  Common  Pleas,  sitting  as  a 
Court  of  original  jurisdiction,  to  reverse  the  judg-ment  of  the 
Probate  Court  because  it  may  differ  from  that  Court  as  to  mat- 
ters of  law  or  fact. 

In  another  case  it  is  said,^^^  '^  We  are  led  to  the  conclusion 
then,  that  where  in  the  settlement  of  an  account  of  that  kind, 
and  where,  as  in  this  case,  there  were  exceptions  to  the  ac- 
count of  the  executor,  and  a  decision  is  made  by  the  Court,  and 
that  decision  is  properly  entered  upon  the  journal  or  record  of 
the  Probate  Court,  it  is  final  unless  reviewed  or  changed  in 
some  manner  provided  for  by  the  law  regulating  the  settlement 
of  estates  of  deceased  persons  —  and  that  the  Probate  Court  in 
such  case  has  not  the  right  to  vacate  such  order  or  judgment 
otherwise,  and  that  an  order  made  long  after  the  entry  of  the 


154  Woodward  vs.  Curtis,  19  C.  C.  isr,  Kinselia  vs.  DeCamp,  15  C.  C 

25;   10  C.  D.  400.  498;  8  C.  D.  352. 


§747 


ADMINISTRATOR  S    ACCOUNTING 


670 


original  judgment,  as  was  done  in  this  case,  was  a  nullity,  and 
the  original  order  stands  in  full  force. ' '  ^^^ 

What  power  the  Court  might  have  to  correct  a  palpable  error 
made  in  its  own  journal  entry  after  the  day  it  was  rendered,  is 
not  very  clearly  settled  by  judicial  opinion.  It  would  seem 
that  a  Court  ought  always  to  have  power  to  make  its  journal 
show  exactly  what  the  Court  intended  it  to  show,  and  therefore 
if  the  finding  did  not  show  what  the  court  intended  it  to  show, 
or  what  the  actual  finding  of  the  Court  was,  that  at  any  time  it 
could  change  it  to  correspond  with  what  the  actual  decision  of 
the  Court  was.  In  another  case,  the  Court  seems  to  incline  to 
the  opinion  that  the  Probate  Court  might  open  up  an  account 
upon  notice.     But  it  is  merely  obiter  dicta.^^'^ 


§  747.     Error  and  appeal. 

The  statute  specifically  provides  that  an  appeal  may  be  taken 
to  the  Court  of  Common  Pleas  from  any  order,  decision  or 
judgment  of  the  Probate  Court  in  settling  the  accounts  of  ex- 
ecutors, administrators,  etc.,^^^  and  no  doubt  error  could  be 
prosecuted  to  any  finding  made  by  the  Court  upon  the  settle- 
ment of  an  estate.  Error,  however,  is  not  the  remedy  usually 
pursued,  as  an  appeal  is  the  simpler  and  brings  the  matter  to 
the  Probate  Court  for  an  adjudication  de  nova}^^ 


156  §  53,    Power    over    entries. 

157  Snider  vs.  Grayhani,  14  C.  C. 
386;    8   C.   D.   3. 

Proceedings  in  equity  for  relief 
against  fraud  or  mistake  in  the 
final  settlement  of  administrators' 
accounts  are  governed  by  the  same 
rules  and  principles  as  if  the  relief 
vv'ere  sought  against  an  ordinary 
judgment  at  law.  The  party  seek- 
ing it  must  show  himself  to  be  free 
from  fraud  or  negligence.  If  the 
question  brought  before  the  Court 
of  Equity  by  bill  to  open  and  cor- 
rect a  final  settlement  passed  on 
by  the  Probate  Court  was  there  pre- 
sented and  adjudicated,  either  di- 
rectly or  by  necessary  implication, 
and  the  party  complaining  had  an 
opportunity  to  be  heard,  and  to 
have  the  error  corrected  by  appeal, 
the  failure  to  do  so  constitutes  such 
laches  as  will  prevent  redress  in 
equity.      Woerner    on    Admin.    1132. 

In  a  recent  case  a  Common  Pleas 
Judge,  sitting  as  Probate  Judge, 
held,  that  all  settlements  may  be 
opened  up  for  fraud,  mistake,  or 
error  in  intervening  accounts: 
That  where  the  account  itself,  to- 
gether with  its  vouchers  filed,  does 
not  show  that  the  item  is  a  proper 


charge  against  the  estate,  the  bur- 
den rests  upon  the  executor  to  show 
that  it  was  a  proper  charge.  While 
the  court  refrains  from  stating  that 
the  account  is  opened  up  for  fraud, 
yet  the  facts  in  the  case  justify  that 
conclusion.  All  improper  charges 
and  mistakes  or  error,  this  decision 
seems  to  so  hold.  In  re  Ludigh,  15 
Dec.  193  (1902);  affirmed,  71  0.  S. 
485. 

It  is  difficult  to  reconcile  this 
decision  with  the  Circuit  Court  in 
Campbell  vs.  McCormick,  1  C.  C. 
504;   1  C.  D.  281. 

See  §§  743,  745. 

If  an  account  charges  a  person 
fraudulently,  such  person  might 
have  relief  in  a  Court  of  Equity. 
Gantz  vs.  Grease,  82  0.  S.  41. 

15S  §  11206  G.  C,  §39. 

159  An  administrator,  not  execu- 
tor, however,  should  be  careful  and 
file  a  written  notice  in  the  Probate 
Court  of  his  intention  to  appeal. 
See  §  1297,  Trustee's  appeal. 

The  Common  Pleas  Court  acquires 
no  jurisdiction  on  appeal  so  long  as 
an  item  of  an  account  remains  un- 
determined in  Probate  Court.  Gregg 
vs.  Klein,  22  0.  C.  C.  968. 


671  STATEMENT    IN    LIEU  §  748 

§  748.     statement  in  lieu  of  account. 

It  often  occurs  that  at  the  time  that  an  account  is  due  from 
an  executor  or  administrator  that  nothing  has  been  administered 
upon.  When  this  is  the  case  it  is  the  practice  of  some  Courts  to 
permit  the  executor  or  administrator  to  file  a  written  statement 
of  that  fact  under  oath  in  the  Probate  Court,  and  accept  the 
same  in  lieu  of  an  account.  If  notice  of  the  hearing  of  such  a 
statement  be  given  as  provided  for  accounts,  a  finding  thereon 
would  have  the  same  effect.  The  practice,  however,  in  some 
Courts  is  not  to  give  such  published  notice'.  Such  statement 
then  merely  acts  as  a  showing  of  the  then  condition  of  the  es- 
tate by  the  administrator.     It  may  be  in  the  following  form : 

{Title.) 

A.  B.,  administrator  of  the  estate  of  C.  D.,  represents  to  the  Court  that 
there  was  due  to  the  estate  of  the  said  C.  D.  (or  there  was  due  to  the 
said  A.  B.,  as  executor  or  administrator,  from  the  estate  of  C.  D.)  the  sum 

of dollars,  and  the  filing  of  his  former  account  made  on 

the day  of That  since  the  filing  of  said  former  ac- 
count he  has  collected  no  assets  belonging  to  said  estate  nor  paid  out 
anything  in  his  hands  belonging  to  said  estate  for  the  following  reason: 
And  there  is  now  in  his  hands  the  sum  of dollars,  belong- 
ing to  (to  the  said  estate)    (or  to  the  administrator  or  executor). 

Wherefor  he  asks  the  Court  may  accept  the  above  statement  in  lieu  of  an 
account. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this day 

of 


§  749.    Ancillary  account. 

It  sometimes  happens  that  the  administrator  or  executor 
appointed  by  the  Court  at  the  domicile  of  the  deceased  person  is 
also  appointed,  or  acts  as  an  ancillary  administrator,  over  the 
property  in  another  State.  It  is  a  rule  of  law  that  the  admin- 
istrator must  account  to  the  Court  of  the  domicile  of  the  de- 
ceased for  all  the  assets  of  the  estate  of  the  deceased.  The 
question  then  arises,  how  are  the  accountings  to  be  made  in  the 
different  jurisdictions,  and  what  effect  is  to  be  given  tO'  the  or- 
ders made  in  the  foreign  jurisdiction? 

The  manner  in  which  the  Court  will  require  this  to  be  fuJ 
filled  will  be  for  the  executor  or  administrator  to  obtain  a  oer* 
tified  copy  of  the  account  he  may  render  there,  with  a  state- 


§  749  administrator's  accounting  672 

ment  in  the  certificate,  under  the  seal  of  the  Court,  that  the 
same  has  heen  examined,  allowed  and  confirmed  (if  such  be 
the  fact),  and  that  the  original  account,  together  with  the 
necessary  vouchers  for  the  items  stated  in  the  same,  are  on  file 
in  his  office.  When  this  account  and  vouchers  thus  certified 
are  presented  and  filed  here,  the  Court,  upon  examination  in 
the  usual  mode  required  by  the  laws  of  Ohio,  for  the  settlement 
of  estates,  will,  if  the  same  are  found  to  be  correct,  order  them 
to  be  recorded,  and  thus  preserve  here  the  evidence  connected 
with  the  entire  settlement  of  the  estate/®"  And  the  orders  and 
finding  made  in  such  foreign  Court  cannot  be  attacked  in  the 
domicillai'y  Court,  and  tlius  the  matters  passed  upon  in  the 
foreign  Court  cannot  bo  readjudicated  in  a  domiciliary  Court; 
and  the  administrator  in  the  domiciliary  Court  can  only  be  held 
accountable  for  the  balance  which  was  found  in  his  hands  by 
the  foreign  Court/''^ 

160  In  re  Phelps,  Weekly  Law  A  consul  of  another  government 
Gaz.  161.  with  which  this  country  has  treaty 

161  In  re  Crawford,  21  C.  C.  554;  relations,  has  a  right  to  intervene  in 
See  §  165  et  seq.,  Ancillary  admin-  the  administration  of  the  estate  of 
istration.  a  decedent  who  was  a  citizen  of  that 

It  is  a  general  rule  that  the  power  country.     In  re  Vincenzo   Arduino, 

of  an  administrator  or  executor  over  9  N.  P.  (X.S.)   369;  20  Dec.  461. 

the  estate  emanates  from  the  laws  See    Pagano   vs.    Cerri,   92   O.    S. 

of  the  state  where  he  receives  his  345;    Cerri  vs.  Montalto,   93   0.  S. 

appointment.     Crawford,  In  re,  68  482;  hi  re  Costango,  15  X.  P.  225; 

0.  S.  58.  In  re  Todarallo,  15  N.  P.  593;  In  re 

Balbo,  16  N.  P.  9. 


673  METHODS   OF   DISTRIBUTION  §  750 


CHAPTER   XLII. 

DISTRIBUTION  IN  KIND. 

§  750     Methods  of  distribution.  §  ^^'^^  ^^jturn  of  assets  when-neces- 

§  751     Executor     or     administrator      §  753    Application  for,  etc. 

may   distribute   certain  as-      §  753     Hearing  and  order. 

sets  in  kind.  §  "54     Form   of   indemnity  bond. 

§  751a  Partial  distribution.  §  "'^"^'^  Application    to   distribute    in 

"  kind,  and  order  to  transfer 

stock. 

§  750.     Methods  of  distribution. 

Provision  is  made  by  our  statute  for  distribution  of  the  assets 
among  persons  entitled  thereto  in  two  methods  —  one  in  money, 
and  the  other  in  specie  or  kind. ,  The  first  method  will  be  the 
subject  of  the  subsequent  chapter,  and  the  other  will  be  dis- 
cussed in  the  present.  We  have  heretofore  seen,  in  the  discus- 
sion of  the  law  relating  to  the  administration  of  estates,  that  the 
purpose  and  necessity  of  an  administration,  was  to  pay  the 
debts  of  the  decedent,  and  distribute  the  remainder  to  those 
entitled.  The  legislature  in  its  wisdom  has  provided  that 
where  the  parties  in  interest  so  desire,  and  the  debts  of  cred- 
itors have  been  paid  or  seeured,  certain  kinds  of  assets  of 
the  estate  may  be  distributed  without  conversion.  The  first 
legislation  of  our  State  giving  such  authority  appears  to  have 
been  engrafted  into  our  statute  by  the  codifiers  in  1880.  It  is 
not  intended  by  such  legislation  to  affect  the  general  rights  of 
the  parties  to  assets  distributed  in  this  method ;  that  is,  the  ad- 
ministrator or  executor  is  entitled  to  commission  just  the  same 
as  if  such  assets  had  been  converted  into  money.^ 

Likewise  the  distributee  may  be  compelled  to  account  to  an 
unpaid  creditor  for  the  value  of  the  assets  he  may  receive.^ 

A  distribution  in  kind  may  be  made  at  any  time  during  the 
administration  of  the  estate,  for  under  our  law  the  j^ersonal 

^  §  655.  order  of  court  be  required  to  permit 

2  §§10877-8    G.    C,    §587.  tlie  executor  to  distribute  or  deliver 

It    is    not    contemplated    that   an       property    specifically    devised. 


§  751  DISTRIBUTION   IN   KIND  674 

property  of  an   intestate  vests   in  the  distributee   at  the  time 
of  his  decedent's  death." 

It  is  not  dependent  upon  any  other  account  having  been  filed 
in  the  Probate  Court;  and  while  the  statute  seems  to  confer 
upon  the  executor  or  administrator  the  right  of  initiating  the 
proceedings,  yet  I  have  no  doubt  that  if  all  the  parties  entitled 
to  a  distribution  would  unite  in  an  application  in  the  Probate 
Court  showing  that  the  debts  were  all  paid  and  that  assets  in 
kind  were  still  in  the  possession  of  the  administrator,  upon 
their  giving  the  bond  provided  by  law,  the  Court  would  compel 
an  administrator  to  make  a  distribution.  The  statute  in  refer- 
ence thereto  is  as  follows  :  * 

§  751.  Executor  or  administrator  may  distribute  certain 
assets  in  kind.  "An  executor  or  administrator  who  has  paid 
all  the  debts  of  an  estate,  but  has  in  his  possession  notes,  bonds, 
stocks,  claims,  or  other  rights  in  action,  belonging  thereto,  with 
the  approval  of  the  probate  court  entered  on  its  journal,  and 
the  assent  and  agreement  of  the  persons  entitled  to  the  proceeds 
of  such  assets  as  distributees,  including  executors,  trustees  and 
guardians,  may  distribute  and  pay  these  over  in  kind  to  those  of 
such  distributees  as  will  receive  them."     [R.  S.    §  6189.]^ 

§  751a.  Partial  distribution.  "When  the  debts  are  all  paid, 
except  claims  in  suit  and  contested,  or  liabilities  not  due  and 
payable,  or  both,  such  executor  or  administrator  may  provide 
for  the  payment  of  such  claims  and  liabilities,  by  setting  apart 
to  the  satisfaction  of  the  probate  court,  enough  assets  for  that 
purpose,  and  having  done  so,  with  the  approval,  assent,  and 
agreement,  aforesaid,  he  may  distribute  and  pay  over  in  cash, 
or  in  kind,  all  or  any  part  of  the  assets  in  his  hands,  not  set 
apart  to  such  of  the  distributees,  including  executors,  trustees 
and  guardians,  as  are  willing  to  receive  them."  [R.  S. 
§6189.]^* 

§  751b.  Return  of  assets  when  necessary.  "Such  executors, 
trustees  and  guardians  shall  be  liable  to  return  such  assets,  or 
the  proceeds  thereof,  should  they  be  necessary  to  pay  such 
claims  or  liabilities.  Each  of  the  other  distributees,  must  give 
an  indemnifying  bond  to  the  executor  or  administrator,  to  the 

3  Armstrong  vs.  Grandin,  39  0.  S.  may  be  made  where  there  is  an  heir 
368.  under  guardianship.     See  §  1390. 

*As  to   how  distribution  in  kind  s  §  10839    G.    C. 

s*  §  10840  G.  C. 

The  statute  seems  to  contemplate  that  a  distribution  in  kind  be  made 
only  of  notes,  stocks,  bonds,  etc.,  but  I  see  no  reason  why  any  kind  of 
property  could  not  be  disturbed  if  all  the  heirs  agree  and  the  debts  are 
paid. 


675  APPLICATION,   ETC.  §  752 

satisfaction  of  the  probate  court  for  that  purpose.  A  distribu- 
tion in  kind,  in  either  case,  shall  have  the  same  force  and  effect 
as  the  distribution  of  the  proceeds  of  such  assets."  [R.  S. 
§6189.]^t 

§  752.    Application  for,  etc. 

The  proceeding  contemplated  by  the  above  section  should  be 
commenced  by  the  filing  of  a  proper  application  in  the  Probate 
Court  that  has  jurisdiction  of  the  administrator  or  executor. 
As  before  stated,  it  is  the  opinion  of  the  author  that  the  appli- 
cation might  bc'  filed  by  the  distributees  as  well  as  the  admin- 
istrator, and  that  it  could  be  done  as  soon  as  it  was  shown  that 
the  debts  of  the  estate  have  all  been  paid.  The  application  may 
be  in  the  following  form: 

(Title.) 

Now  comes  C.  D.,  administrator  (or  executor)  of  the  estate  of  A.  B., 
deceased,  and  represents  to  the  Court  that  all  the  debts  of  said  deceased, 
so  far  as  he  has  any  knowledge  thereof,  have  been  paid,  and  that  there  are 
no  claims  against  the  estate;  and  that  he  still  holds  the  following  notes 
(or  bonds,  stocks,  claims,  or  other  rights  in  action),  belonging  to  said 
estate.  That  he  believes  that  it  will  be  to  the  interest  of  persons  entitled 
to  the  distribution  of  the  assets  of  said  estate,  that  the  same  may  be  dis- 
tributed to  them  in  kind.  He  further  presents  as  a  part  of  this  application 
the  written  consent  of  the  parties  entitled  thereto. 

Wherefor  he  prays  that  the  Court  may  make  an  order  authorizing  him 
upon  the  giving  of  a  proper  bond  of  indemnity  to  distribute  the  said  assets.* 


Sworn  to  and  subscribed  before  me  and   in  my  presence  this day 

of 

The  distributees  should  join  in  said  application,  and  the  fol- 
lowing may  be  used  as  a  form : 

We  the  undersigned,  all  the  persons  entitled  to  distribution  of  thft 
estate  of  A.  B.,  deceased,  hereby  join  in  the  above  application  of  C.  D., 
executor,  and  give  our  approval  to  the  same,  and  request  that  the  Court 
make  the  order  as  therein  prayed  for. 


§  753.     Hearing  and  order. 

If  the  Court  is  satisfied  that  the  debts  have  all  been  paid,  and 
the  distributees  have  all  agreed  to  such  distribution,  it  should 
make  the  order  prayed  for.  If  the  administrator  does  not  re- 
st §  10841  G.  C.  pointment,  then  no  indemnity  bond 
6  If  eighteen  months  has  elapsed  should  be  required,  unless  it  were 
since  the  date  of  the  appointment  of  shown  in  the  application  that  there 
the  administrator  or  executor,  pro-  is  a  claim  in  suit  or  a  liability  not 
vided  he  has  given  notice  of  such  ap-      yet  due  (now  eighteen  months). 


§  754  DISTRIBUTION   IN    KIND  676 

quest  an  indemnity  bond  the  same  might  be  omitted.  The  fol- 
lowing may  be  used  as  a  general  form  of  entry: 

(Title.) 

Jt  appearing  upon  the  application  of  C.  D.,  executor  (or  administrator) 
of  the  estate  of  A.  B.,  that  all  the  debts  of  said  estate  having  been  paid, 
and  that  there  remains  in  his  hands  certain  bonds  belonging  to  said  estate, 
and  that  it  is  the  desire  of  the  parties  entitled  to  the  distribution  of  the 
assets  of  said  estate  that  the  same  be  distributed  to  them  in  kind,  and  that 
said  parties  have  filed  in  this  Court  their  written  consent  thereto,  it  is 
hereby  ordered  that  said  executor  distribute  the  said  notes  and  bonds  among 
the  distributees  of  said  estate  as  follows:  To  G.  W.  (here  describe  what 
the  nature  of  the  assets  is  that  is  to  be  distributed,  and  its  value,  and 
likewise  proceed  and  make  similar  designation  to  all  the  distributees). 

It  is  further  orderd  that  said    (here  mention  the  names  of  distributees) 

give  to  the  said  C.  D.  as  executor,  an  indemnity  bond  in  the  sum  of 

dollars,  as  in  such  cases  made  and  provided  by  statute. 

Said  entry  might  conclude  as  follows: 

And  thereupon  came  the  said   (here  mention  distributee)   and  filed  herein 

for  approval  their  bond   in  the  sum  of dollars  with  V.   W. 

and  X.  Y.  as  sureties.  And  the  same  having  been  examined  by  the  Court, 
is  approved. 

§  754.     Form  of  indemnity  bond. 

Enoio  all  Men  hy  these  Presents: 

That  we,  B.  B.  (the  distributee)  as  principal,  and  V.  W.  and  Y.  Z.  as 
sureties,  are  bound  unto  C.  D.  as  administrator  of  the  estate  (or  executor  of 

the  last  will)  of  A.  B.,  deceased,  in  the  sum  of dollars  (double 

the  estimated  value  of  the  property  distributed  to  B.  B. ),  to  the  i^ayuient  of 
which  we  jointly  and  severally  bind  ourselves. 

The  condition  of  this  obligation  is  such,  that  whereas,  the  distributees 
of  the  estate  of  the  said  A.  B.,  deceased,  have  assented  and  agreed  to  the 
distribution  of  certain  assets  of  said  estate,  which  agreement  has  been  ap- 
proved by  the  Probate  Court  of county,  Ohio,   all  as 

provided  for  in  §  6189  of  the  Revised  Statutes  of  Ohio,  which  distribution 
said  C.  D.  as  administrator  (or  executor),  as  aforesaid,  is  willing  to  make 
if  duly  indemnified,  as  by  said  section  provided;  now  therefore,  if  said  C. 
D.,  as  administrator  (or  executor)  as  aforesaid,  shall  distribute  to 
said  B.  B.  the  following  described  property,  to-wit:  (Here  describe  the 
property  to  be  distributed  to  B.  B.)  we  ^\^ll  indemnify  and  hold  harmless 
the  said  C.  D.,  administrt.tor  (or  executor),  from  any  loss  or  damage  that 
may  arise  from  said  distribution  to  said  B.  B.,  and  from  not  having  in  his 
possession  and  control  said  property  so  distributed  to  said  B.  B  ^ 

Witness  our  hands  this day  of ,   190.  .. 


7  Giauque's  settlements,  §  611. 


676a  APPLICATION,  ETC.  §  754a 

§  754a.    Application  to  distribute  in  kind,  and  order  to 
transfer  stock. 

In   the  matter  of   the      )      Probate  Court 
Estate  of  >    County, 


Ohio. 


The  undersigned  respectfully  represents  that  on  the  29th  day  of  April, 

1919,  he  was  duly  appointed  and  qualified  as  administrator  of , 

deceased,  by  the  probate  court  of  Clark  County,  Ohio,  and  is  still  acting 
as  such.  That  no  claims  or  debts  against  said  estate  have  been  presented 
to  him  for  payment  and  he  believes  there  are  none. 

The   said    died   leaving    ,   his  widow,  and 

,  his  child  and  only  heir  at  law. 

That  said   died  the  owner  of  2  shares  of  the  preferred 

stock,  Xo.  C.  F.  3059,  of  the  International  Harvester  Co.  of  the  face  value 
of  $100.00  each,  and  also  the  owner  of  6  shares  of  the  common  stock, 
No.  C.  F.  6677,  of  the  said  International  Harvester  Co.  of  the  face  value 

of  $100.00  each.     That  it  is  the  desire  of  the  said  widow,    , 

and  the  said    ,  that  said  shares  of  stock  be  distributed  in 

kind  and  transferred  to  said Wherefore  this  administrator, 

,  of  said  estate  of    ,  asks  that  he  may  assign 

and  transfer  the  said  shares  of  stock  in  said  International  Harvester  Co. 
and  distribute  the  same  in  kind  to  said  


State  of  Ohio,  County,  ss: 

,  being  first  duly  sworn,  says  the  above  allegations  are 

true  as  he  verily  believes. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this  7th  day 
of  February,  1920. 


Notary  Public. 

We  hereby   approve  of  the  above  request  and  ask  that  the  order  be 
granted. 


Even  where  there  was  no  formal  note  has  appeared  in  the  account,  it 
order  of  distribution,  where  a  note  was  held  the  indorsee  could  main- 
was  indorsed  over  by  the  adminis-  tain  an  action  on  the  note.  Maister 
trator,  and  where  the  debts  were  all  vs.  Fenerstein,  19  C.  C.  (N.S.)  460. 
paid,   and   the   distribution   of  the 


§754a 


DISTRIBUTION    IN    KIND 

ENTRY-BORDER  TO  TRANSFER. 


676b 


In   the  matter   of   the 
Estate  of 


Probate  Court 

County, 

Ohio. 


This   day  of    ,   1920,  this  matter  came  on  to  be 

heard  on  application  of ,  administrator  of  said  estate,  to  dis- 
tribute in  kind,  and  assign  and  transfer  2  shares  of  preferred  stock.  No. 
0.  F.  3059,  of  the  International  Harvester  Co.,  and  6  shares  of  common 
stock,  No.  C.  F.  6677,  of  said  International  Harvester  Co,  each  of  the  face 
value  of  $100.00,  to ,  widow  of  said  decedent,  and  it  appear- 
ing to  the  court  that  the  same  is  not  necessary  to  pay  the  debts  of  said 

estate,  and  that ,  the  sole  heir  at  law  of  said  decedent,  joins 

in  the  request   of   said   application,    it  is  hereby   ordered   that   the   said 

,  as  administrator  of  said   ,  assign  and  transfer 

tb   ,  all  right  and  title  that  the  said   or  he  as 

such  administrator  may  have  in  and  to  said  stock  to  said   


677 


DEFINITION,    ETC. 


755 


CHAPTER  XLIII. 

DISTEIBUTION  OF  ASSETS  CONVERTED  INTO  MONEY. 


§  755  Definition,  etc. 

§  756  Kinds  and  when  made. 

§  757  Real  and  personal  estate. 

§  758  Law  of  domicile  controls. 

§  759  Creditors  of  heirs. 

§  760  Set-off  against  heirs. 

§  761  How  payment  of  distribution 
enforced.     Petition    therefor. 

§  761a  Citation. 

§  762  Nature  of  proceedings,  etc. 

§  763  Parties. 

§  764  Petition. 

§  765  Form  of  petition. 

§  766  Citation. 

§  767  Entry  ordering  citation. 

§  768  Form  of  citation. 

§  769  Service  of  citation. 

§  770  Service,  when  executor  or  ad- 
ministrator non-resident. 

§  771  Order  for  publication. 

§  772  Form  of  notice. 

§  773  Proof  of  service. 

§  774  Hearing  and  judgment.     Exe- 
cution. 
§774a  Lien. 


§  775  Trial,   proof,   etc. 

§  776  Entrj',    finding.     Judgment. 

§  777  Probate  Court  may  bring  in 
all  necessary  parties  and  de- 
termine all  questions. 

§  778  Comments. 

§  779  Probate  Court  shall  on  mo- 
tion of  either  party  send  the 
case  to  the  Common  Pleas. 

§  780  Motion,  etc. 

§  781  Common  Pleas  to  have  concur- 
rent jurisdiction  to  eitforce 
order  of  distribution. 

§  782  Comments. 

§  783  Sureties.  Their  liability. 
May  be  made  parties  to  judg- 
ment.    Defense. 

§  784  Comments. 

§  785  Appeal  from  Probate  Court 
and  from  Common  Pleas. 
Bills   of   exception. 

§  785a  When  an  appeal  may  be 
taken  in  enforcement  of 
orders  of  distribution. 


§  755.     Definition,  etc. 

In  the  sense  of  the  statute,  and  in  the  sense  in  which  the  term 
is  generally  used,  the  distribution  of  an  estate  has  reference  to 
the  division  and  apportionment  of  the  personal  property  and 
money  arising  from  the  sale  of  real  estate  by  the  administrator 
among  the  heirs  of  the  decedent  after  the  payment  of  all  the 
debts  and  legacies.  Where  there  is  no  will,  the  land  is  not  dis- 
tributed, but  descends  directly  to  the  heirs.  ISTor  where  there 
is  a  will  are  the  lands  distributed  in  the  statutory  and  ordinary 
sense;  but  its  descent  is  controlled  by  the  will.     In  the  absence 


If  there  are  no  intervening  equi- 
ties an  executor  may  maintain  an 
equitable  action  to  have  restored  to 
the   trust  estate   which   by   mistake 


has  been  conveyed  away.  Wentzel 
vs.  Chesley,  7  C.  C.  (N.'S.)  181;  18 
Cir.  D.  192;  28  O.  C.  0.  192. 


§756  DISTRIBUTION    IN    MONEY  678 

of  anything  to  the  contrary,  it  will  be  presumed  that  the  word 
"distribution"  is  used  in  the  statutory  and  ordinary  sense,^ 

The  administrator  of  an  estate  is  a  trustee  for  the  person  or 
persons  entitled  by  law  to  a  distributive  share  of  that  estate,  and 
such  is  a  direct  one.- 

§  756.    Kinds  and  when  made. 

For  reasons  satisfactory  to  the  legislative  mind,  power  has 
not  been  conferred  on  the  Probate  Court  when  passing  upon  an 
account,  to  de.signate  in  the  final  order  to  whom  the  residue 
should  be  distributed.  It  is  now  well  settled  that  the  Probate 
Court  has  not  jurisdiction  in  making  an  order  of  distribution 
to  determine  the  persons  to  whom  distribution  is  to  be  made  and 
the  amount  going  to  each.  But  its  power  is  exhausted  in  that 
particular  when  upon  final  settlement  of  the  account  of  an  ex- 
ecutor or  administrator  it  enters  a  general  order  of  distribution.^ 

It  has  no  doubt  frequently  occurred  to  those  upon  whom  de- 
volved the  execution  of  our  administration  laws  why  the  Pro- 
bate Court  should  not  have  such  authority.  Upon  investigation 
of  the  subsequent  sections  it  will  perhaps  suggest  itself  that 
the  method  provided  for  the  enforcement  of  distribution  of 
shares  is  better  than  if  made  on  the  hearing  of  the  account.  We 
have  what  we  might  term  a  voluntary  and  an  involuntary  dis- 
tribution. A  voluntary  distribution  would  be  a  distribution 
made  by  the  administrator  or  executor  without  proceedings  to 
enforce  the  same,  and  is  generally  followed  where  the  adminis- 
trator and  the  executor  is  sure  of  the  persons  to  whom  distribu- 
tion should  be  made.    If  he  makes  payment  to  a  wrong  person 

1  Beard  vs.  Loftin,  102  Ind.  408.  See  §  907  et  seq.,  Descent  and  dis- 

2  Smith  vs.  Calloway,  7  Blkf.  86;  tribution;  See  §921,  Distribution 
Nugent  vs.  Laduke,  87  Ind.  482;  personal  estate;  see  §810,  Sale  and 
Raugh  vs.  Weis,  138  Ind.  42.  distribution. 

"Anciently  the  administrator  or  The  fact  that  upon  the  filing  of 
ordinary  in  right  of  the  king,  him-  his  account  the  Probate  Court  dis- 
self  appropriated  the  residue  of  an  cliarged  an  administrator  from  fur- 
intestate's  estate,  after  payment  of  ther  liability  on  his  bond,  does  not 
the  debts,  assuming  to  devote  cer-  relieve  him  or  his  surety  for  wrong- 
tain  portions  to  pious  uses,  and  to  fully  or  illegally  distributing  any 
give  certain  other  portions  to  the  part  of  the  personal  estate.  Har- 
^vidow  and  children,  if  there  were  beson  vs.  Mellinger,  2  0.  App.  75; 
any.  Statutes  were  afterwards  35  O.  C.  C.  19.5;  18  0.  C.  C.  (N. 
passed  which  provided  in  detail  for  S.)  504. 

the  distribution  of  the  surplus  of  all  3  Bank  vs.  Beehe,  62  O.  S.  41. 
estates.      Enactments   of   this   char-  Tn  re  Maholm,  51  Bull.  209. 
acter  are  found   in  all  the  States."  Where  the  Circuit  Court  attempt- 
Sherwood   vs.   Thomasson,    124   Ind.  od  to  make  an  order  of  distribution 
541.  the    Probate    Court    held    that    the 


679  KINDS WHEN    MADE  §  T56 

he  does  so  at  his  peril.*  He  might,  howevei*,  recover  the  same 
from  such  person. 

If  the  settlement  of  a  final  account  of  an  executor  or  admin- 
istrator shows  the  payment  of  money  to  a  person  not  entitled 
thereto,  it  is  no  bar  to  a  subsequent  action  against  him  for  the 
recovery  of  the  same  by  one  who  is  legally  entitled  thereto.  An 
involuntary  distribution  might  be  said  to  be  one  made  by  an 
executor  or  administrator  by  judgment  of  the  Court,  and  it  is 
a  method  which  an  administrator  is  perfectly  justified  in  hav- 
ing pursued,  if  there  is  any  doubt  about  to  whom  payment 
should  be  made.  The  statute  is  ample  in  its  provisions  as  to 
the  settlement  of  all  claims  that  may  arise  as  to  such  a  fund. 
As  a  general  thing  distribution  is  had  on  a  final  account,  yet 
it  might  be  required  upon  an  intermediate  account  where  the 
account  shows  ^  the  debts  are  all  paid  and  there  are  assets  in 
the  hands  of  tlie  administrator  or  executor.  If  a  distribution 
be  made  before  eighteen  months  from  the  appointment  an  in- 
demnity bond  should  be  given  by  the  distributees  to  the  admin- 
istrator or  executor.'' 

The  action  is  barred  in  six  years  from  the  time  of  the  admin- 
istrator's or  executor's  default.'^ 

Interest  cannot  be  allowed  on  widow's  distributive  share 
until  the  distribution  is  ordered."' 

The  administrator  might  bring  an  action  under  sec.  10857, 
G.  C.  (§33),  in  Court  of  Common  Pleas,  if  the  distributee  fails 
so  to  do,  and  have  the  court  determine  to  whom  distribution 
should  be  made. 

Circuit  Court  did  so  without  author-  relation  of  administrator  and  guar- 

ity,  that  as  the  Probate  Court  could  dian  and  it  becomes  his  duty  to  pay 

not,  in  the  approval  of  an  account,  over   tlie   fund   to   himself   as   guar- 

make  a  specific  distribution,  neither  dian,  the  law  will  generally  presume 

could  the  Common  Pleas  or  the  Cir-  such    payment   to   have    been   made, 

cuit  Court.  Wilson  vs.  Wilson,  17  0.  S.  151 

4  Banning  vs.  Gotshawl,  62  0.  S.  6  See  §§  10753-4  G.  C,  §§  696-754. 
210;  In  re  Estate  of  Joseph  P.  7  Duhme  vs.  Mehner  3  N.  P.  266; 
Cloud,  7  C.  C.  67;  3  C.  D.  666;  5  Dec.  107;  18  C.  C.  706;  6  C.  D. 
James  vs.  West,  47  Bull.  750,  S57.  78;  Lease  vs.  Downey,  5  C.  C.  480; 

5  Disney  vs.  Hawes,  12  Bull.  322.  3  C.  D.  235. 

Where  a  person  occupies  a  double  8  In  re  Ilutchens,  21  C.  C.  721. 


§  757  DISTRIBUTION  IN  MONEY  680 

§  757.     Real  and  personal  estate. 

Formerly  we  had  a  special  section "  of  the  Revised  Statutes 
providing  for  the  distribution  of  personal  estate.  This,  how- 
ever, has  been  repealed  and  such  provision  has  been  inserted  in 
the  statute  relating  to  the  laws  of  descent  and  distribution.^'* 

When  a  person  dies  intestate  and  leaves  no  children,  or  their 
legal  representatives,  the  widow  or  widower  is  entitled,  as  next 
of  kin,  to  all  the  personal  property  which  is  subject  to  distribu- 
tion. If  there  are  any  children,  or  their  legal  representative, 
the  widow  or  wido^ver  gets  one-half  of  the  first  $400  and  one- 
third  of  the  remainder  of  the  personal  property.  The  law  re- 
lating to  the  distribution  of  personal  property  to  the  next  of 
kin  is  the  same  as  that  applying  to  the  inheritance  or  descent 
of  real  estate,  and  the  only  difference  being  that  in  real  estate 
the  widow  or  widower,  in  case  there  are  no  children,  or  their 
legal  representative,  and  the  property  comes  by  descent,  has  a 
life  interest  in  the  real  estate.  If  there  are  children,  the  widow 
or  widower  has  a  life  interest  in  one-third  of  the  real  estate.  If 
there  be  no  children,  and  the  title  to  the  real  estate  came  by 
purchase,  the  wddower  or  widow  acquires  all  of  it.  But  for 
further  discussion  of  this  matter  the  reader  is  referred  to  the 
chapter  on  descent  and  distribution.^^ 

It  should  not  be  forgotten,  however,  that  the  proceeds  of 
real  estate  which  is  converted  into  money  by  the  administrator 
or  executor  for  the  payment  of  debts,  after  such  debts  have  been 
paid,  is  to  be  distributed  not  as  personal  property,  but  as  real 
estate.^^ 

§  758.     Law  of  domicile  controls. 

It  is  too  well  settled  now  to  require  discussion  other  than  to 
call  attention  to  the  fact  that  in  the  distribution,  or  descent, 
if  the  word  may  be  so  used,  of  personal  property  and  real 
estate,  a  different  rule  applies  where  the  property  is  not  all 
located  at  the  domicile  of  the  decedent.     Personal  property  is 

9  §  6194  R.  S.  See   §  1206.   when  real   estate  un- 

10  §  8592  G.  C,  §  938.  devised  shall  be  applied  to  payment 

11  §  907  et  seq.  of  debts  instead  of  personalty. 

12  §  10816  G.  C,  §905. 


681  LAW   CONTROLLING  *  §  759 

always  to  be  distributed  according  to  the  laws  of  the  place 
where  the  decedent  has  his  domicile  at  tlie  time  of  his  death. 
Keal  estate  in  its  descent  is  controlled  by  the  laws  of  the  place 
where  it  is  located." 

§  759.     Creditors  of  heir. 

Whatever  the  law  may  have  formerly  been,  it  is  now  with- 
out controversy  that  the  assignee  of  the  share  of  a  distributee 
or  legatee  may  enforce  his  claim  in  the  same  manner  that  the 
distributee  or  legatee  himself  could ;  and  that  he  is  entitled  to 
recover  whatever  the  distributee  or  legatee^  himself  could  have 
recovered,  were  lie  still  the  owner  of  his  claim.  And  it  there- 
fore follows  that  an  assignee  can  have  no  greater  right  in  the 
legacy  or  distributive  share  than  the  assignor  had ;  and  that  any 
right  of  set-off  which  existed  against  the  assignor,  is  good 
against  the  assignee;  and  where  distributees  give  their  notes  to 
the  administrator  for  property  of  the  estate  purchased  by  them, 
and  then  assigned  their  interest  in  the  estate,  the  administrator 
or  executor  was  allowed  to  set-off  the  amount  of  the  note  against 
the  assignees.^* 

13  Evans  vs.  Beaver,  50  0.  S.  190,  See   §   922,   Distribution  and  per- 

I  74.  sonal  estate;  §  907,  Descent  and  dis- 

As  to  what  will  constitute  domi-  tribution. 

cile,  see  §   1016,  governing  wills.  i*Woerner  on  Admin.  1235;  Has- 

Personal    property    has    no    fixed  kin  vs.  Teller,   3  Redf.   316;   Dull's 

situs,  but  adheres  to  the  person  of  Estate,  137  Pa.  St.  116. 

the  owner,  and  upon  his  death,  the  But    if    the    assignee     (where    the 

ftucession   to   it   is   governed  by  the  Court    has    such    jurisdiction)    omit 

law  of  his   domicile.     The  final  ac-  to  present  his  claim  before  the  or- 

count    of    distribution    made   by    an  der  of  distribution  is  made,  he  will 

administrator,    appointed   upon   the  be  bound  by  the  order   in  favor  of 

estate  of  a  non-resident  of  this  es-  the  assignor,  ( Freeman  vs.  Rahm,  58 

tate,  approved  by  the  Probate  Court,  Cal.    Ill),    and    he    stands    in    the 

and   ordered   to   be   recorded,    is   no  same  relation  to  the  estate   as  the 

bar  to  an  action  brought  to  compel  heir  would  if  he  had  not  assigned; 

distribution  according  to  the  law  of  hence  he  is  estopped  from  objecting 

the    decedent's    domicile,    when    the  as  to  any  matters  to  which  the  heir 

distribution  actually  made  and  ap-  could  not  have  objected. 

proved    does    not    conform    to    such  Vanhorn  vs.  Walker,  27  Mo.  App. 

law.     Swearingen  vs.  Morris,   14  O.  78. 
S.  424. 


§  760  DISTRIBUTION  IN  MONEY  682 

The  assignment  or  sale  of  one's  interest  in  the  estate  of  a 
living  person  does  not  pass  liis  distributive  share  in  such  per- 
son's estate  after  her  death  intestate;  hence  such  assignee  has 
no  interest  therein/^ 

An  executor  or  administrator  may  be  garnisheed  by  a  creditor 
of  a  legatee  or  distributee,  and  anything  coming  to  him  there^ 
from,  on  final  settlement,  will  be  bound/* 

^  760.     Set-off  against  heirs. 

From  a  number  of  recent  decisions  of  our  Supreme  Court,  I 
think  it  may  noAv  be  said  to  be  a  settled  rule  in  this  State  that 
whatever  the  indebtedness  may  be  between  a  legatee  or  dis- 
tributee and  the  estate,  the  executor  or  administrator  has  a 
right  to  deduct  such  indebtedness  from  the  portion  coming  to 
the  legatee  or  distributee.  This  general  doctrine  was  first  an- 
nounced by  an  inferior  Court. ^^ 

Wliere  it  was  held  that  a  debt  due  from  an  heir  or  legatee  to 
an  estate  is  an  asset  of  such  estate,  and  where  the  distributive 
portion  of  such  heir  or  legatee  is  equal  to,  or  greater  than  such 
debt,  the  administrator  or  executor  should  charge  himself  with 
the  full  amount  of  the  same. 

In  a  subsequent  case,^^  the  Supreme  Court  held  that  the  per- 
sonal property  of  an  intestate  who  leaves  neither  ^^^fe  nor 
child,  passes  to  such  of  his  brothers  and  sisters  as  survive  him, 
and  to  the  legal  representatives  of  those  wliO'  died  before  him, 
and  children  of  a  pre-deceased  brother  take  in  a  representative 
character  and  subject  to  the  indebtedness  of  their  principal  to 
the  intestate. 

And  later,^^  it  was  held  that  when  the  lands  of  an  intestate 
descend  to  his  children,  there  being  no  personal  estate  for  dis- 
tribution, the  interest  of  each  child  in  the  lands  is  subject  to 
his  indebtednetis  to  the  intestate.    In  this  latter  ease  the  follow- 

15  bmitli  vs.  Baylis,  3  Dem.  567.  not  be  held  liable  as  garnishee  be- 

16  Sampsell  vs.  Sampsell,  17  C.  C.  fore  the  filing  of  a  final  account  in 
455;  9  G,  D.  510.  an  action  brought  by  a  creditor  of 

The    Supreme    Court    now    holds  the   estate.     In  re   Carl   Heller,   58 

that   it   can   not   be   attached   until  Bull.  445. 

after  distribution  is  ordered.    Orloff  i^  Estate  of  Ellis,  5  N.  P.  207. 

vs.   Schueller,  4   C.   C.    (N.S.)    611;  See   §392,   as   to   Debt  due   from 

16  Civ.  D.  127;  72  O.  S.  42    (1905).  heir,  etc. 

Contra,    Bently    vs.    Strathers,    5  i^  Martin  vs.  Martin,  56  O.  S.  333. 

Bull.  288.  19  Keever  vs.  Hunter,  62  O.  S.  616. 

The  executor  or  administrator  can 


683  SET-OFF  AGAINST   IIEIKS  §  761 

ing  is  cited  from  Judge  Woerner's  works  with  approval: 

''  The  distinction  between  debts  owing  by  an  heir  and  ad- 
vancements made  to  him  by  the  intestate  is  sharply  drawn ;  in 
some  States  debts  so  owing  cannot  be  deducted  from  the  share 
of  the  heir  in  the  real  estate,  and  from  the  personal  estate  only 
by  way  of  set-off,  but  the  true  principle  seems  to  be  that  a 
debt  owing  by  an  heir  constitutes  part  of  the  assets  of  the  es- 
tate, as  much  as  that  of  any  otlier  debtor,  for  which  he  should 
account  before  he  can  be  allowed  to  receive  anything  out  of  the 
other  assets ;  and  it  is  so  held  in  the  United  States."  ^" 

A  recent  case  seems  to  draw  a  distinction  between  property 
devised  specifically  and  in  a  residuaiy  manner.  The  distinc- 
tion being  that,  as  to  property  specifically  devised,  the  off-set 
cannot  be  applied,  and  that  a  judgment  and  levy  upon  such 
property  specifically  devised  would  have  priority  over  the  right 
of  the  administrator  or  executor  to  a  set-off  against  the  same.^^ 

This  decision  was  made  without  citing  the  recent  case  of 
Keever  vs.  Hunter,""  and  whether  it  would  have  been  so  held  in 
the  light  of  the  decision  in  that  case  may  be  questioned.  The 
doctrine  as  to  advancements  is  provided  for  in  sec.  8585,  G.  C, 
which  will  'be  discussed  in  a  future  chapter  in  this  work.-^ 

The  statute  of  limitations  does  not  operate  the  extinguish- 
ment of  debts,  but  bars  the  remedy  only ;  hence  such  debts  may 
be  set  off  to  legacies  or  distributive  shares,  notwithstanding  the 
efflux  of  the  statutoiy  period  of  limitation,^* 

Our  Circuit  Court,  however,^^  has  held  the  contrary  of  the 
above  doctrine  as  set  forth  by  Woemer,  and  it  may  he  said  to 
be  somewhat  of  an  open  question  so  far  as  this  State  is  con- 
cerned.^® 

§  761.  How  payment  of  distribution  enforced.  Petition 
therefor.  "After  thirty  days  from  the  time  of  the  settlement 
of  the  account  of  an  executor,  administrator,  or  guardian  is 
made,  and  an  order  of  distribution  made  thereon  by  the  probate 

20  American  Law  of  Admin.,  §  71 ;  23  gee  §  928,  et  seq. 

Keever  vs.  Hunter,  G2  0.  S.  G19.  24  Woerner   on  Admin.    1237-8. 

21  Woodruff  vs.  Snowden,  7  N.  P.  25  Harrod  vs.  Carter,  3  C.  C.  479; 
520.  C.  D.  274. 

22  62  O.  S.  GIG.  26  See   §   796. 


§  761a  DISTRIBUTION    IN    MONEY  684 

court,  if  such  executor,  administrator  or  guardian  neglects  or 
refuses  to  pay  to  a  person  interested  in  such  order  distribution 
as  creditor,  legatee,  widow,  heir,  or  other  distributee,  or  other- 
wise when  demanded,  his  or  her  share  of  the  estate  or  property 
ordered  to  be  distributed,  the  person  so  interested  may  file  a 
petition  in  the  probate  court  against  the  executor,  administra- 
tor, or  guardian,  making  such  settlement  of  his  or  her  account, 
briefly  setting  forth  therein  the  amount  and  nature  of  the  claim 
of  the  party  filing  it."     [R.  S.  §  6195.]" 

§  761a.  Citation,  "Thereupon  the  probate  judge  forthwith 
shall  issue  a  citation  against  such  executor,  administrator,  or 
guardian,  setting  forth  the  filing  of  the  petition,  the  amount 
claimed  by  the  petitioner,  and  commanding  him  to  appear 
before  his  court  on  the  return  day  thereof  to  answer  and  show 
cause,  if  any,  why  judgment  shall  not  be  rendered  and  execu- 
tion awarded  against  him  or  her  for  the  amount  claimed  by 
the  petitioner,  and  found  due  upon  such  settlement  and  order 
of  distribution.  Such  citation  must  be  made  returnable  not 
less  than  twenty  nor  more  than  forty  days  from  its  date,  and 
be  served  and  returned  by  the  sheriff  or  other  proper  officer, 
as  in  the  case  of  a  summons.  It  may  issue  to  any  county  in 
the  state."     [R.  S.  §6195.]-'* 


§  762.     Nature  of  proceedings,  etc. 

The  above  section  provides  the  method  of  procedure  whert 
an  executor  or  administrator  or  guardian  fails  to  pay  over  to 
the  party  entitled  thereto  his  portion  of  the  estate  in  the  trus- 
tee's hands.  The  remedies  provided  for  this  and  the  subsequent 
sections  are  cumulative  to  those  provided  in  a  previous  chapter 
for  suit  on  administration  bonds,  ete.,^^  and  is  intended  to  pro- 
ride  an  expeditious  remedy  against  neglectful  administrators 
and  executors."^ 

Proceedings  in  relation  to  the  settlement  of  an  estate  in  the 
Probate  Court  are  generally  ex  parte.^° 

27  §  10848  G.  C.     See  §§  607,  1303.  remedy  to  the  heir  to  enforce  dis- 

27*  §  10849  G.  C.  tribution.     Bowen  vs.  Bowen,  38  O. 

The  surviving  husband's  distribu-  S.   426;    Gray   vs.    Case   School,   62 

tive  share   in   his   wife's   estate   not  O.  S.  1. 

asserted  until   nineteen   years   after  28  §  260  et  seq. 

the  estate  has  been  settled,  is  barred  29  Dawson   vs.   Dawson,  25   O.   S. 

by  the  statute  of  limitations.    Lar^  443. 

kin  vs.  Robinson,  21  Dec.  14.  30  Johnson  vs.  Johnson,  26  O.  S. 

These   sections   afford   a  complete  357. 


685  ENFORCEMENT   OF  §  762 

But  the  provisions  of  the  above  section  clearly  provide  for  an 
adversary  proceeding;  and  sees.  10848  to  10856,  G.  C,  furnish 
a  complete,  adequate  remedy  for  the  recovery  by  any  person 
who  is  entitled  to  a  distributive  portion  of  an  estate. ^^ 

While  the  statute  does  not  say  that  the  proceeding  is  a  civil 
action,  yet  it  does  not  seem  different  in  its  characteristics  from 
what  the  Code  tenns  to  be  a  civil  action.^'  It  retains  its  char- 
acter, however,  as  a  proceeding  in  chancery  to  enforce  the  per- 
formance of  the  duties  devolving  upon  a  trustee ;  and  is  there- 
fore not  subject  to  a  trial  by  jury.  However,  it  has  been 
held  that  when  the  estate  is  settled  and  distribution  or- 
dered, the  trust  terminates  —  that  then  a  personal  liability  at- 
taches ;  and  that  tlie  remedies  provided  for  distributees  to 
recover  their  distributive  shares  are  actions  at  law  and  the  re- 
covery had  are  judgments  at  law,^^  and  that  an  action  will  be 
barred  unless  brought  within  six  years  after  the  expiration  of 
thirty  days  from  tlie  date  of  the  order  of  distribution  made  in 
the  Probate  Court. 

In  sec.  10851-2,  G.  C.  (§  774),  it  is  provided  that  the  Prolate 
Court  shall  render  judgment  in  favor  of  such  plaintiff,  etc. ;  and 
again  in  sec.  10853,  G.  C,  it  is  provided  that  the  Prolate  Judge 
may  hear  and  determine  all  such  questions  necessary  to  ascer- 
tain and  fix  the  amount  due  the  plaintiff  in  such  petition.  It 
would  therefore  seem  that  when  the  action  is  originally  begun  in 
the  Probate  Court  that  a  jury  trial  can  not  be  demanded,  but  if 
the  action  were  originally  instituted  in  the  Court  of  Common 
Pleas,  under  sec.  10855,  G.  C.  (§  781),  where  it  provides  that  it 
shall  be  governed  in  all  respects  as  other  civil  actions,  a  more  diffi- 
cult question  suggests  itself.  In  one  case  it  was  held  that  the 
right  to  trial  by  jury  does  not  depend  on  the  principle  upon 
which  relief  is  asked,  but  upon  the  nature  and  character  of  relief 
sought.  If  the  relief  sought  is  a  judgment  for  money  only,  the  fact 
that  before  the  adoption  of  our  reform  system  of  procedure  the 

31  Bowen  vs.  Bowen,  38  0.  S.  426.  33  Lease  vs.  Downey,  5  C.  C.  480; 

32  In   §  10855  G.  C,  providing  for       3  C.  D.  325. 

the  Court  of  Common  Pleas  to  have  The    judgment    may    be    enforced 

concurrent     jurisdiction,     it     is     re-       by   execution.     McLaughlin  vs.  Mc- 
ferred  to  as  a  civil  action.  Laughlin,  4  O.  S.  508. 


^  7G3  DISTRIBUTION  IN  MONEY  686 

proper  remedy  would  have  been  by  a  suit  in  equity,  does  not 
affect  the  nght  of  either  party  to  a  trial  by  jury."** 

In  another  case  it  was  held  that  a  suit  to  compel  a  trustee  to 
account  to  the  beneficiaries  of  his  trust  for  a  judgment  for  the 
amount,  upon  such  accounting,  found  in  his  hands,  is  not  an 
action  for  the  recovery  of  money  only.^^ 

While  the  action  in  this  case  seems  to  be  an  action  for  the  re- 
covery of  money  only,  it  is  in  fact  a  method  provided  for  the 
enforcement  of  distribution  of  a  trust,  and  it  w^ould  hardly  seem 
probable  that  the  legislature  intended  to  place  it  within  the 
power  of  a  party  by  bringing  the  action  in  the  Court  of  Common 
Pleas  to  change  the  nature  of  the  proceedings,  and  make  it  a 
jury  trial  instead  of  a  trial  by  the  Court.  Another  reason  for 
leading  to  the  opinion  that  the  matter  is  not  triable  by  jury  is 
the  fact  that  the  right  of  appeal,  which  ordinarily  does  not  exist 
in  juiy  trials,  is  reser\'ed  in  a  trial,  under  these  sections,  when 
the  case  is  brought  originally  in  either  the  Probate  Court  or 
Court  of  Common  Pleas. ^"^ 

§  763.     Parties. 

The  statute  confers  authority  upon  any  person  interested  in 
said  order  of  distribution  as  creditor,  legatee,  widow,  heir, 
distributee,  or  otherwise.  This  is  certainly  broad  enough 
to  cover  any  case  in  w-hich  a  person  might  be  interested 
in  the  recovery  of  such  a  share.  It  would  apply,  I  presume,  to 
a  person  who  had  a  jpro  tanto  assignment,  as  well  as  to  one  who 
had  an  assignment  of  the  entire  fund.  A  question  has  some- 
times arisen  whether  two  or  more  persons,  each  entitled  to  a 
certain  distributive  portion,  may  join  as  plaintiffs  in  the  pro- 
ceedings. The  better  opinion  seems  to  be  that  they  cannot.^®* 
Neither  can  other  heirs  be  made  parties  defendant,  unless  some 
matter  of  dispute  arises  as  provided  in  sec.  10853,  G.  C.  The 
action  may  be  brought  against  the  executor,  administrator  or 

34  Gunsaulus  vs.  Pettit,  46  O.  S.  36*  See  Waldsmith  V3.  Waldsmith, 
27;    Black  vs.  50  O.  S.  46.                        2  O.  156. 

35  Bricker  vs.  Elliot,  55  O.  S.  577. 

36  See  §  6203  R.  S.,  §  785. 


687  PARTIES  PETITION  §  '''64 

guardian  making  settlement.  As  before  stated,  the  Court  has 
ample  power  to  make  other  parties  defendants  so  as  to  com- 
pletely determine  the  rights  of  all  parties  to  the  fund  in  ques- 
tion. The  action  could  only  be  brought  in  the  Probate  Court 
in  which  the  account  had  been  filed,  and  the  general  order  of 
distribution  made.  The  usual  rules  applying  to  plaintiffs  and 
defendants  should  be  applied  in  this  kind  of  a  proceeding.  The 
person  bringing  the  action  being  styled  the  plaintiff  and  the  ex- 
ecutor or  administrator  the  defendant.  It  should  be  brought 
against  the  executor  or  administrator  in  his  individual  name  and 
not  merely  against  the  executor  or  administrator  of  the  estate, 
etc.'' 

When  one  of  tw^o  executors  or  administrators  has  m  his 
hands  the  balance  remaining  for  distributio'n,  an  action  may  be 
maintained  against  him  without  joining  his  co-executor  or  ad- 
ministrator.'^ 

§  764.     Petition. 

The  action  is  to  be  brought  by  the  filing  of  a  petition,  in 
which  should  be  briefly  set  forth  the  amount  of  the  claim  and 
the  name  of  the  party  filing  it.  These  are  the  requirements  of 
the  statute,  yet  I  apprehend  that  the  petition  must  have  other 
allegations.  It  must  state  that  thirty  days  have  elapsed  from 
the  time  of  the  settlement  of  the  account  at  which  the  order  of 
general  distribution  was  made.  It  must  also  set  forth  that  the 
executor  or  administrator  has  neglected  and  refused  to  pay,  to 
the  person  filing  the  petition,  the  amount  of  the  claim.     It  is 

37  Suit  may  be  brought  against  an  remaining  in  the  hands  of  the  ad- 
administrator  by  a  distributee,  in-  ministrator,  is  barred'  by  the  Stat- 
dividually,  as  for  money  had  and  ute  of  Limitations,  unless  such  ac- 
received  without  naming  him  as  ad-  tion  is  commenced  within  six  years 
ministrator.  after  the  expiration   of  thirty  days 

Waldsmith    vs.    Waldsmith,    2   O.  from  the  date  of   the  order  of  dis- 

156.  tribution     made     by     the     Probate 

38Negley  vs.  Gard,  20  O.  311.  Court.     Lease  vs.   Downey,   5   C.   C. 

An  action  brought  and  prosecuted  480;    3  C.  D.   325. 

under  §§  10848-9  and  10854  G.  C,  by  See  §  1475,  et  seq.,  as  to  CoIIec- 

the   distributees   of  a  decedent's  es-  tion  by   foreign   guardians.     §  10944 

tate,    to   recover   an    unpaid   balance  G.  C. 


§  T65  DISTRIBUTION  IN  MONEY  688 

necessary  to  allege  and  prove  a  demand  made  before  the  filing  of 
a  petition.*  It  would  seem  to  be  the  duty  of  the  administrator 
or  executor  to  make  payment  without  a  demand.  The  statute 
requires  a  demand  in  all  cases  where  the  same  can  be  made, 
and  such  fact  becomes  jurisdictional  and  must  be  alleged  in  the 
petition.  There  may  be  some  doubt  whether  the  petition  must 
be  verified,  but  the  safe  rule  and  the  one  which  the  Court  ought 
to  enforce  would  be  to  have  it  verified  as  other  pleadings.  The 
petition  should  also  state  the  appointment  and  qualification  of 
the  administrator  or  executor  and  the  time  when  the  account 
was  heard  and  passed  upon.  The  person  bringing  the  action 
should  fully  state  in  what  character  he  claims  the  fund,  whether 
as  legatee,  next  of  kin,  assignee,  or  creditor,  etc. 

§  765.     Form  of  petition. 

{Title.) 

Now  comes  A.  B.  and  respectfully  represents  to  the  Court  that  he  is  a  son 

and  heir-at-law  of  C.  D.,  deceased.       That  on  the day  of 

E.  F.  was  appointed  executor  of  the  estate  of  C.  D.  by  the  Probate 

Court  of county,  Ohio;   and  thereafter  said  E.   F.,  having 

filed  his  accoimt  in  said  Probate  Court,  said  Court  made  an  order  directing 
said  E.  F.  to  distribute  the  funds  remaining  in  his  hands  amounting  to 

dollars,  which  order  of  distribution  was  made  on  the 

day  of ,  and  that  more  than  thirty  days  have  elapsed 

since  said  order  of  distribution  was  made ;  and  the  said  E.  F.  has  neglected 
and  refused  to  pay  the  portion,  or  any  part  thereof,  belonging  to  the  said 
A.  B.,  although  often  requested  so  to  do.  That  the  portion  thereof  which 
this  plaintiff  claims  amounts  to dollars. 

Wherefore  the  plaintiff  prays  that  a  citation  may  be  issued  against  the 
■aid  E.  F.  as  required  by  law  and  that  he  may  have  judgment  and  execution 
against  the  said  E.  F.  for  the  said  sum  of dollars  w'ith  in- 
terest  thereon    from    the day    of ,    and    such    other 

relief  as  the  nature  of  the  case  requires. 


State  of  Ohio,  Clark  County,ss. 

A.  B.,  being  duly  sworn,  says  that  he  is  plaintiff  in  the  above  petition 
and  that  the  allegations  therein  contained  are  true  as  he  verily  believes. 


Sworn  to  and  subscribed  before  me  and   in  my  presence  this day 

of 

§  766.     Citation. 

Upon  the  filing  of  such  petition,  the  Probate  Judge  shall 
forthwith  issue  a  citation  against  the  executor,  administrator 
or  guardian.  Such  citation  must  set  forth  the  fact  of  the  filing 
of  the  petition  and  the  amount  claimed  therein,  and  command- 
ing such  executor,  administrator  or  guardian  to  appear  before 

*The  Supreme  Court  affirms  this 
doctrine.  Henry  vs.  Doyle,  82  0.  S. 
113. 


689  CITATION  NOTICE  §  Y67 

said  Probate  Court  on  the  day  named  to  answer  said  petition. 
The  object  and  purpose  of  this  citation  is  that  of  a  summons  in 
an  ordinary  case.  The  citation  shall  be  made  returnable  not 
less  tlian  twenty,  nor  more  than  forty,  days  from  the  date  of 
its  issue;  and  it  may  be  served  by  the  sheriff  or  other  proper 
officer.  It  is  a  requisite  of  this  notice  that  it  be  served  upon  the 
executor  or  administrator  as  summons  in  ordinary  actions.  Of 
course,  the  administrator  or  executor  might  enter  his  appearance 
as  in  any  other  action. 

§  767.     Entry  ordering  citation. 

This  day  came  A.  B.  and  filed  in  this  Court  a  petition  against  E.  F., 
administrator  (or  executor  )of  the  estate  of  C.  D.,  alleging  therein  that  he 
is  the  son  and  heir-at-law  of  said  C.  D.,  deceased,  and  that  he  is  entitled 
under  the  order  of  general  distribution  made  in  this  Court  upon  the  filing 

of  the  account  of  E.  F.  the  sum  of dollars,  and  praying  that 

a  citation  may  be  issued  against  said  E.  F.,  and  that  judgment  for  said 
amount  may  be  rendered  against  said  E.  F.  and  he  inay  have  execution 
thereon  as  provided  by  law.     Wherefore  it  is  ordered  that  a  citation  be 

issued  against  said  E.   F.   returnable  on  the day  of , 

at o'clock,  at  which  time  said  cause  is  set  for  hearing;  and  that 

said  E.  F.  be  required  to  show  cause  why  judgment  should  not  be  rendered 
and  execution  awarded  against  him   for  failure  to   pay  the   said   amount 

claimed,  to- wit:      dollars,  by  said  A.  B.,  that  said  citation 

be  directed  to  the  sheriff  of  this  county  returnable  according  to  law. 

§  768.     Form  of  citation. 

{Title.) 

To  the  Sheriff  of  said  County,  Greeting: 

You  are  hereby  commanded  to  make  known  to  said 

that   said has  this   day   filed   in   said   Court  a   petition 

claiming  the  sura  of dollars,  as  due  to  him  upon  defen- 
dant's settlement  with  the  Probate  Court  of  this  county,  as  guardian  of 

,    and    command   him   to    appear    on   the day    of 

,  190.  .,  and  answer  said  petition,  and  show  cause,  if  any  he 

has,  why  judgment  should  not  be  rendered  and  execution  awarded  against 
him  for  the  amount  claimed,  and  interest.  You  will  make  due  service  of 
this  citation,  and  return  the  same  upon  the  day  last  above  mentioned. 

Witness  my  hand  and  the  seal  of  said  Court,  this day  of 

,  A.  D.   190... 

(Signed,  etc.) 39 

§  769.     Service  of  citation. 

This  citation  must  be  served  and  returned  by  the  sheriff,  or 
other  proper  officer,  as  in  the  case  of  a  summons ;  and  it  may  b« 
issued  in  any  county  in  the  State,  that  is,  when  the  person  is  a 
resident  of  the  State;   if  he   is   a  non-resident  of  the   State, 

»»  Whittaker's  Probate  Code. 


§  770  DISTRIBUTION  IN  MONEY  690 

sen'ice  may  be  made  by  publication  as  provided  for  in  the 
next  section.  The  statute  does  not  seem  to  make  any  prorision 
for  service  made  by  any  one  except  a  sheriff  or  an  officer.  Yet 
I  apprehend  that  if  the  Court  wxDuld  order  the  service  to  be 
made  by  some  otlier  officer  or  ]>erson,  it  would  be  binding.  In 
such  cases  a  person  making  the  service  should  file  an  affidavit 
as  to  the  manner  and  time  in  which  the  service  was  made. 


§  770.    Service,  when  executor  or  administrator  non-resident. 

"If  such  executor  or  administrator  resides  out  of  this  state,  on 
being  satisfied  of  that  fact,  either  before  or  after  the  return  of 
the  citation,  the  court  may  order  such  non-resident  to  be  brought 
in  by  publication  in  some  newspaper  of  the  county  wherein  the 
petition  is  filed,  for  six  consecutive  weeks  before  the  time  fixed 
for  the  hearing  of  such  cause."     [R.  S.  §  6196.]**^ 


§  771.     Order  for  publication. 

The  above  section  says  tliat  if  the  Court  is  satisfied  that  the 
executor  or  administrator  shall  reside  out  of  the  State,  it  may 
order  publication  in  some  newspaper.  No  direction  is  given  as 
to  the  manner  in  which  the  Court  shall  be  convinced  or  satisfied 
of  the  fact  that  the  defendant  is  a  non-resident.  In  such  cases, 
I  presume,  it  is  the  intention  of  the  statute  that  the  ordinary 
rules  applying  to  ser\dce  by  publication  be  followed,  that  i;', 
that  the  plaintiff  file  in  the  Court  an  affidavit  setting  forth  the 
fact  tliat  the  defendant  is  a  non-resident  of  the  State.  If  this 
fact  of  non-residence  was  brought  to  the  attention  of  the  Court 
before  the  issue  of  a  citation  to  the  sheriff  or  other  officer,  the 
former  entry  should  be  made  to  conform  to  such  fact.  If  it 
is  made  afterwards,  the  Court  should  make  an  additional  entry 
ordering  service  by  publication.  In  all  cases  it  must  appear 
somewhere  that  the  Court  has  ordered  a  sen'ice  by  publication. 
The  entry  may  be  in  the  following  form : 

40  §  10850  G.  C  Tlip  codifiers  omit  guardian,  which 

was   in  the  original  act. 


691  PROOF  OF   SERVICE  §  772 

{Title.) 

It  appearing  to  the  satisfaction  of  the  Court  that  E.  F.  is  a  non-resident 
of  the  State  of  Ohio,  it  is  ordered  that  he  be  brought  into  Court  by  publica- 
tion as  required  by  section  619G  of  the  Revised  Statutes. 

§  772.     Form  of  notice. 

C.  D.,  who  resides  in  the  State  of ,  will  take  notice 

that  A.   B.,   on  the day  of ,   A.   D.    190..,   filed   his 

petition  in  the  Probate  Court  in  the  county  of ,  and  State 

of  Ohio,  alleging  that  as  one  of  the  creditors  of  the  estate  of  said  X.  Y., 
deceased,  he  is  entitled  to  the  sum  of dollars,  with  inter- 
est  thereon   from   the day   of ,    190..  .,    under    the    order 

of  distribution  made  by  said  Court  upon  settlement  of  the  account  of  said 
C.  D.,  as  executor  of  the  last  will  and  testament  (or  administrator  of  the 
estate)  of  X.  Y.,  deceased,  and  that  although  more  than  thirty  days  have 
elapsed  since  said  order  of  distribution  was  made  and  although  payment 
has  been  demanded  of  said  C.  D.,  he  has  neglected  and  refused  to  pay  said 
A.  B.  the  amount  claimed  by  him  as  aforesaid.  The  prayer  of  the  petition 
is  for  judgment  and  execution  against  the  said  C.  D.  for  the  amount  due 
said   A.   B.,   as  aforesaid. 

Said  petition  will  be  for  hearing  on  the  (at  least  six  weeks  after  date  of 
first  publication) 190.  .  A.  B." 

§  773.     Proof  of  service. 

In  these  proceedings,  like  all  other  proceedings  of  an  adver- 
sary character,  or  in  which  the  law  requires  notice  to  be  given, 
it  is  vitally  important  that  proof  of  service  when  made  either  by 
an  officer  personally  or  by  publication,  be  filed  with  the  Court. 
If  made  by  an  officer,  he  need  merely  endorse  on  the  original 
writ  the  time  and  method  of  sei'vice ;  if  made  by  private  persons 
personally  or  by  publication,  an  affidavit  should  be  filed  with 
the  writ,  or  the  notice  of  publication  setting  forth  the  fact  of 
its  publication.  It  has  been  held  that  where  the  record  says 
affirmatively  that  the  law  in  regard  tO'  service  by  publication, 
under  sec.  10850,  G.  C.  (§  770),  has  not  been  complied  with,  all 
proceedings  under  the  same  are  void,  and  may  be  set  aside  and 
vacated  on  motion  of  an  interested  party.  In  this  case  the  rec- 
ord showed  that  publication  had  been  ordered  for  five  weeks  in- 
stead of  six,  as  required  by  the  statute,  and  it  was  set  aside 
eleven  years  after  it  was  made.'*'' 

In  the  settlement  of  an  account  of  a  guardian,  it  is  held 
that  the  Probate  Court,  of  a  coimty  in  this  State  having  ap- 


"  Whittaker's  Probate  Code.  ■la  Estate  of  Cloud,  7  C.  C.  69;  3 

C.  D.  666. 


§  774  DISTRIBUTION  IN  MONEY  692 

pointed  a  guardian  for  the  person  and  estate  of  a  minor,  does 
not  lose  jurisdiction  of  such  guardianship  by  the  removal  of  the 
guardian  from  this  State,  and  may  compel  tlie  foreign  admin- 
istratrix of  such  guardian  after  his  decease  to  account  to  said 
ward,  and  that  service  may  be  had  upon  such  foreign  adminis- 
tratrix by  publication/^ 

§  774.  Hearing  and  judgment.  Execution.  "On  the  return 
of  the  citation  served,  or  the  service  of  notice  by  publication, 
the  cause  shall  be  for  hearing,  unless  for  good  cause  shown  it 
is  continued  for  trial  and  judgment,  as  in  Other  cases  of  con- 
tinuance. If  no  good  defense  be  shown  to  the  claim  in  such 
petition,  the  court  shall  render  judgment  in  favor  of  the  plain- 
tiff, against  such  executor  or  administrator,  for  the  amount 
found  to  be  due  to  him,  and  unpaid,  upon  the  settlement  and 
order  of  distribution,  with  interest  and  costs  of  suit,  and  award 
execution  thereon,  as  in  other  cases  of  judgments.  Such  execu- 
tion must  be  served  and  returned,  as  if  issued  from  the  court 
of  common  pleas."      [R.  S.  §6197.]** 

§  774a.  Lien.  "Judgments  rendered  under  the  next  pre- 
ceding section  shall  have  like  liens  upon  the  real  estate  of  the 
parties  as  do  judgments  rendered  in  the  court  of  common  pleas, 
and  be  governed  by  the  same  rules."     [R.  S.  §  6197.]*** 

§775.     Trial,  proof,  etc.*M 

On  the  day  of  the  return  of  the  citation,  the  cause  shall  be 
heard  unless  continued,  and  the  usual  ground  for  continuance 
is  applicable,  and  the  court  will  proceed  to  hear  the  matter, 
and  if  no  good  defense  be  shown,  it  shall  proceed  to  render 
judgment.  If  a  defense  be  made,  the  usual  order  of  trial 
would  be  followed.  The  court  should  examine  and  ascertain 
that  proper  service  has  been  made,  and  that  proof  of  the  same  is 
in  the  court.  The  court  must  be  satisfied  from  the  proof  that 
the  party  applying  therefor  is  either  by  virtue  of  a  will  of  the 
deceased,   or  by   relationship,    or  by   valid   assignment   of  the 

43  Netting  vs.  Strickland,  18  C.  guardians,  which  was  in  original 
C.  136;  9  C.  D.  841.  act. 

44  §  10851  G.  C.  .  Action  barred  unless  commenced 
44*  §  10852  G.  C.  within  six  years  after  expiration  of 
44t  Cited  approvingly,  Jackson  vs.       thirty   days.     Lease  vs.  Downey,  3 

Warsignary,  56  Bull.  1.  C.  D.  236;  5  0.  C.  C.  480. 

Codifiers      (ISSO)      have     omitted 


693  TRIAL,  PROOF,   ETC.  §  '?'75 

claim,  entitled  to  the  fund  or  a  clain>.  It  must  be  proven  not 
only  that  the  party  is  one  of  a  class  entitled  to  such  distribu- 
tion, but  also  that  there  are  no  other  next  of  kin  of  the  same 
degree.  Thus  it  has  been  said  where  father,  mother,  brothers 
and  sisters  are  entitled  to  equal  shares,  it  must  be  proven 
whether  the  father  or  mother  is  living  or  had  died  before  the 
intestate,  and  also  how  many  brotliers  and  sisters,  or  descend- 
ants of  deceased  brothers  or  sisters  survived  him.*' 

Distribution  of  an  estate  will  not  be  delayed  by  reason  of  a 
contingent  claim  arising,  from  decedents  having  signed  a  title 
bond  to  protect  a  defective  title  to  lands  sold.*' 

In  the  settlement  of  an  estate  before  the  Probate  Court,  such 
Court  cannot  make  provision  for  claims  against  the  estate  which 
no  creditor  is  asserting,  neither  can  it,  in  the  order  of  such  set- 
tlement, determine  the  state  of  accounts  between  an  administra- 
tor and  the  distributee.  But  in  a  proceeding  by  the  distributee 
against  the  administrator  or  executor  all  matters  of  accounts 
between  them  can  be  gone  into  and  the  administrator  or  execu- 
tor might  set  off  against  them  any  liquidated  demand  that  he 
might  hold.*^ 

In  some  States  it  is  held  that  the  Probate  Court  has  power 
only  to  determine  who  is  a  primary  legatee  entitled  to  receive 
payment  from  the  executor,  and  cannot  adjudicate  as  to  the 
right  of  successive  legatees  for  themselves.*'  It  seems,  how- 
ever, the  object  and  purpose  of  our  statute  is  to  confer  ample 
power  upon  the  Court  to  determine  all  rights  between  the 
parties.** 

45  Woerner  on  Admin.  1234,  citing  An  administrator  having  distrib- 
Hopkins  vs.  Claybrook,  5  J.  J.  uted  all  the  assets  under  a  decree 
Marsh.  234 ;  Delany  vs.  Noble,  3  N.  of  Court,  finding  who  were  entitled 
J.  Eq.  441;  Compo  vs.  Jackson,  50  thereto,  and  a  will  being  afterwards 
Mich.  578;  Anson  vs.  Stein,  6  Iowa  admitted  to  probate,  the  executor 
150.  seeks   to   compel    the   administrator 

46  Bates  Estate,  7  N.  P.  625;  5  to  pay  over  again,  and  to  compel 
Dec.  545.  purchasers    of    assets    from    former 

See  §569.  distributees     to     surrender     them: 

4'?  Cox  vs.  John,  32  O.  S.  534.  Held,  neither  relief  can  be  granted. 

48  Woerner  on   Admin.   1234,  351.  The   former   decree    is   evidence   for 

49  The  Probate  Court  has  com-  tbe  administrator,  though  the  com- 
plete power  to  determine  the  rights  plainant  was  not  a  party  to  it. 
of  all  parties  and  the  administrator  The  only  remedy  is  to  make  the 
is  protected  by  its  order.  Jackson  legatees  parties  and  compel  the  for- 
vs.  Wasignary,  56  Bull.  1.  mer   distributees   to   pay   back,   and 


§  776  DISTRIBUTION  IN  MONEY  694 

Where  a  distributee,  pursuant  to  a  private  arrangement  with 
one  of  two  joint  executors,  accepts  his  individual  check  for  the 
amount  of  her  distributive  share  and  executed  her  receipt  in 
full  to  the  executors,  it  is  held  she  could  not  maintain  an  action 
under  tlie  provisions  of  the  sections  refen'ed  to  in  this  chapter. 
If  the  check  w'as  dishonored,  she  would  be  compelled  to  sue  the 
executor  for  the  non-pa^mient  of  said  checlc.°° 

§  776.     Entry,  finding.     Judgment. 

The  subsequent  section  provides  that  the  Court  may  bring  in 
all  necessary  parties,  and  such  being  done,  the  entry  would  need 
to  be  varied  to  adopt  itself  to  the  circumstances.  Very  often 
no  other  persons  are  made  parties,  and  the  judgment  and  finding 
is  merely  against  the  administrator  or  executor,  and  may  be  in 
the  following  form : 

( Title. ) 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  and  the 
returns  of  service  and  testimony.  Wliereupon  the  Court  finds  that  the 
said  E.  F.,  administrator  (or  executor)  of  tlie  estate  of  C.  D.,  has  been 
duly  served  with  citation  in  this  case  as  required  by  law.  That  the 
allegations  of  the  plaintiflF's  petition  herein  filed  are  true  and  that  there  is 
due  the  said  A.  B.  from  the  said  E.  F.,  as  executor    (or  administrator)    of 

the  estate  of  C  D.,  on  his  distributive  share  thereof  the  sum  of 

dollars. 

It  is  therefore  adjudged  by  the  Court  that  the  said  plaintiff  recover 
against  the  defendant  as  his  distributive  share  of  the  estate  of  C.  D.,  the 

Bum  of 51  dollars,  with  the  costs  of  this  suit  taxed  at 

dollars;    and   tliat   execution   be    issued   against   the   goods   and 

chattels  of  said  defendant  in  the  same  manner  as  if  said  judgment  had 
been  rendered  in  the  Court  of  Common  Pleas. 

§  777.  Probate  Court  may  bring  in  all  necessary  parties  and 
determine  all  questions.     "If  the  amotmt  coming  to  an  heir, 

this  can  be  done  bv  amendment.  tors  of  his  existence  or  make  any 
Barkaloo  vs.  Emerick]  18  0.  268.  claim  until  eleven  years  after  final 
.  ,  .  1  i;.  i  settlement,  and  brought  suit  tor  nis 
Where  the  residuum  is  left  to  ^j^^^^  eighteen  years  after  final  set- 
children  and  their  issue,  and  the  ex-  tlement:  Held,'  his  action  against 
ecutors  had  published  all  statutory  the  executors  is  barred.  Stewart  vs. 
notices    and    a    grandson    by    a    de-  '^^'e^sh,  41  O.  S.  4S3. 

,    ,       ,  ,                    -ii      .    XI    •  And  the  court  can  make  no  order 

ceased  daughter  was,  without  their  ^^^^jj    account   is    filed,   etc.      In    re 

fault,  unknown  to  them,  but  he  knew  Cloud.  7  C.  C.  67 ;   3  C.  D.  667. 

his  relationship  before  decedent  died  so  Riggin  vs.  Creath,  60  0.  S.  114. 

and  that  he  might  inherit  and  could  ^   '^  ^  P^Jfor.  is  not  entitled  to  in- 

.     J  xT_     X     i.     f  terest  until  the  order  of  distribution 

readily  have  ascertained  the  fact  of  jg  ^^^^      j^  ^^  Hutehins,  21  C.  C. 

death,  but  did  not  inform  the  execu-  721. 


695  JURISDICTION  §  TTS 

legatee,  widow,  or  other  distributee,  under  such  order  of  dis- 
tribution, be  uncertain,  or  in  dispute,  the  probate  judge  may 
hear  and  determine  all  questions  necessary  to  ascertain  and  fix 
the  amount  due  the  plaintiff  in  such  petition,  and,  if  necessary, 
hear,  determine,  and  settle  the  rights  and  claims  of  all  parties 
interested,  iu'such  order  of  distribution.  For  that  purpose  the 
probate  court  may  cause  all  the  heirs,  legatees,  or  other  dis- 
tributees, parties  in  interest,  to  be  made  parties  to  such  peti- 
tion, when  necessary,  by  amended  or  supplemental  petition,  and 
service  of  notice,  as  provided  in  section  ten  thousand  eight 
hundred  and  fifty-one  and  in  such  case  to  render  judgment  and 
aAvard  execution  against  such  executor  or  administrator  in  favor 
of  the  parties,  for  the  amounts,  respectively,  found  due  them, 
with  interest  and  costs,  unless  the  court  is  of  opinion  that  the 
costs  should  be  paid  out  of  the  estate  to  be  distributed,  or  by 
the  parties,  in  which  case  it  shall  make  such  order  respecting 
costs  as  seems  equitable."     [R.  S.  §  6198.]^- 

§  778.     Comments. 

The  above  section  confers  upon  the  Probate  Court  ample 
jurisdiction  to  try  all  questions  of  dispute  in  reference 
to  the  funds  in  the  hands  of  the  administrator  or  executor ;  and 
incidentally  in  that  way  the  Probato  Court  might  be  required 
to  give  construction  to  a  will  as  Avell  as  the  effect  of  a  convey- 
ance, a  contract  or  what  would  constitute  an  advancement, 
and  the  rights  of  assignees  to  all,  or  part  of  the  funds,  and 
it  might  be  necessary  in  such  a  case  to  make  all  the  heirs  or 
legatees  parties,  in  order  to  determine  the  whole  controversy. 
The  object  and  purpose  of  the  law  generally  being  to  prevent 
a  multiplicity  of  suits,  and  that  when  a  matter  is  in  controversy, 
to  settle  all  matters  pertaining  tlicreto.  In  making  such  per- 
sons parties,  the  general  rules  of  pleading,  should  be  observed, 
and  service  of  notice  is  to  be  made  upon  any  such  other  person 
who  is  made  a  party,  as  is  provided  in  sec.  10848,  G.  C,  and 
sec.  10850,  G.  C,  providing  for  notice  upon  executor  or  admin- 
istrator. 

■'■•-§10853  G.  C.     Codifiers   (1880)  It   is  not  exclusive,   and  adminis- 

omit  guardian.  trators  may  commence  action  in  Com- 

Furnishcs    a   complete   remedy   to  mon    Pleas.      Davis    vs.    Hutchens, 

heir.      Bowen   vs.    Bowen,   38    0.   S.  8  C.   D.  52;    15  0.   C.  C.   174. 
426. 


§  779  DISTRIBUTION    IN    MONEY  696 

§  779.  Probate  court  shall  on  motion  of  either  party  send 
the  case  to  the  Common  Pleas.  "In  cases  relating  to  the  en- 
forcement of  an  order  of  distribution,  the  probate  court  before 
which  a  proceeding  is  pending,  on  motion  of  any  party  thereto, 
shall  reserve  and  send  it  to  the  common  pleas  court  for  trial, 
judgment  and  execution.  In  case  of  such  reservation,  the  pro- 
bate judge  forthwith  shall  make  'out  a  transcript  of  his  pro- 
ceedings in  the  cause,  so  far  as  it  has  progressed,  which,  with 
the  petition  and  other  papers  therein,  forthwith  shall  be  filed 
with  the  clerk  of  the  common  pleas  court.  Thereafter  the  cause 
shall  be  carried  on  to  final  judgment  and  execution  therein  as  a 
civil  action."     [R.  S.  §  6199.]^3 

§  780.     Motion,  etc. 

The  provisions  of  the  foregoing  section  seems  to  be  manda- 
tory, and  if  a  motion  be  made  that  a  case  be  transferred  to  the 
Court  of  Common  Pleas,  the  judge  must  allow  it;  and  he  must 
also  make  out  the  transcript  of  his  proceedings  and  file  the 
same  with  the  clerk  of  the  Court  of  Common  Pleas ;  and  there- 
after the  case  shall  proceed  as  if  originally  filed  there,  like  any 
other  civil  action.     The  motion  may  be  in  the  following  form : 

{Title.) 

Now  comes  A.  B.  by  X.  Y.,  his  attorney,  and  moves  the  Court  that  the 
proceedings  herein  be  reserved  and  sent  to  the  Court  of  Common  Pleas  of 
this  county  for  trial,  judgment  and  execution. 


On  the  filing  of  such  motion,  it  will  be  the  duty  of  the  Court 
to  terminate  his  proceedings  in  the  case  by  an  entry,  which  may 
be  in  the  following  form: 

(Title.) 

On  motion  of  A.  B..  one  of  the  parties  in  this  cause,  this  case  is  reserved 
to  the  Court  of  Common  Pleas  of  this  county  for  trial  and  judgment  and 
execution;  and  it  is  ordered  that  a  transcript  of  the  proceedings  as  far  as 
the  same  has  progressed,  be  made  out  and,  together  with  the  petition  and 
all  other  papers  in  this  cause  shall  be  forthwith  filed  with  the  clerk  of  the 
Court  of  Common  Pleas  of  this  county. 

§  781.  Common  Pleas  to  have  concurrent  jurisdiction  to 
enforce  order  of  distribution.  "The  court  of  common  pleas 
has  concurrent  original  jurisdiction  with  the  probate  court  in  all 

■-■  §  10854  G.  C. 


697  COMMON    PLEAS,    ETC.  §  782 

cases  provided  for  in  the  next  seven  preceding  sections  and  any 
creditor,  legatee,  widow,  or  other  distributee,  as  aforesaid,  may 
bring  an  action  in  the  common  pleas  court  of  the  proper  county, 
against  such  executor  or  administrator  for  his  or  her  share  of 
the  estate  upon  such  settlement  and  order  of  distribution,  and 
it  shall  go  on  to  final  judgment  and  execution  like  other  civil 
actions.  All  persons  interested  therein  may  be  made  parties 
thereto,  if  deemed  necessary  by  the  court,  which  shall  determine 
their  respective  rights,  render  judgment  thereon,  and  award 
execution,  as  in  other  cases."     [R.  S.  §  6200.]*^* 


§  782.     Comments. 

This  section  retains  to  the  Court  of  Common  Pleas  original 
jurisdiction  in  a  suit  brought  to  enforce  a  distribution  of  an 
estate.  The  case  may  therefore  come  into  the  Court  of  Common 
Pleas  in  three  ways.  It  may  be  brought  there  originally,  as  pro- 
vided by  sec.  10853,  G.  C.  (§  777).  It  may  be  brought  there  by 
reservation  from  the  Probate  Court,  as  provided  in  sec.  10854, 
G.  C.  (§  779).  It  may  be  brought  there  by  appeal,  as  provided 
in  sec.  10859-60,  G.  C.  Only  under  the  provisions  of  sec.  10853, 
G.  C,  does  the  Court  of  Common  Pleas  have  actual  original 
jurisdiction,  and  therefore  no  appeal  will  lie  to  the  Circuit  Court 
where  the  action  was  brought  into  the  Court  of  Common  Pleas 
by  virtue  of  the  provisions  of  either  sec.  10854,  G.  C,  or  sec. 
10859-60,  G.  C.^^ 

When  an  action  is  brought  in  the  Court  of  Common  Pleas,  it 
is  brought  as  any  other  civil  action,  and  service  is  had  by  sum- 
mons in  conformity  to  the  rules  applicable  to  civil  actions  gen- 
erally. It  differs  in  this  respect  from  the  action  when  brought 
in  the  Probate  Court,  for  there  a  citation  is  issued  returnable  not 
less  than  twenty,  nor  more  than  forty,  days,  otherwise  the  action 
seems  to  be  similar  to  that  of  the  Court  of   Common  Pleas. 

5*  §  10855  G.  C.  Laughlin  vs.  MdLaughlin,  4  0.  S. 

Under  a  former  statute  when  the  508. 

Probate  Court  had  power  in  passing  55  Estate  of  Correy,  4  C.  C.  220; 

upon  the  account  to   determine  the  2  C.  D.  510, 

matter  of  distribution,  the  Common  See  Puder  vs.  Azler,  242  Fed.  95. 
Pleas     had     no     jurisdiction.       Mc- 


§  783  DISTRIBUTION    IN    MONEY  698 

While  the  question  has  not  been  adjudicated  so  far  as  we  know, 
yet  we  are  of  the  opinion,  that  like  the  action  brought  in  the 
Probata  Court,  it  is  not  triable  by  jury.  If  the  action  were 
brought  against  the  executor  or  administrator  individually  as 
for  money  had  and  received,  it  would  then  be  triable  by  jury. 
Although  some  of  our  Courts  ^*^  have  spoken  of  the  action  as  a 
judgment  at  law,  yet  it  seems  that  it  is  more  in  the  nature  of 
the  termination  of  a  trust,  and  is  certainly  not  that  kind  of  an 
action  which  was  triable  by  jury  at  common  law.  The  mere 
fact  that  it  is  refen-ed  to  as  a  civil  action  does  not  make  it  a 
common  law  action,  for  under  our  Code  civil  action  includes 
both  proceedings  in  chancery  and  action  at  law. 

§  783.  Sureties.  Their  liability.  May  be  made  parties  to 
judgment.  Defense.  "The  sureties  of  every  such  executor  or 
administrator  moreover  shall  be  liable  upon  the  cfiScial  bond  of 
the  executor  or  administrator  against  whom  a  judgment  may 
be  rendered  under  the  pro\dsions  of  the  preceding  sections, 
either  in  the  probate  or  common  pleas  court.  Such  sureties  may 
be  made  parties  to  such  judgment  by  petition  cr  action  to  be 
commenced  and  prosecuted,  in  the  mann':'r  above  provided 
against  executors  or  administrators,  to  final  judgment  and 
execution.  In  cases  in  which  service  of  process  has  been  made 
upon  such  executors  or  administrators,  by  publication,  the 
surety  shall  be  permitted  to  make  any  dpfense  that  the  executor 
or  administrator  could  have  made."     [R.  S.  §6201.]^^ 

§  784.     Comments. 

In  some  matters  the  above  section  is  clear  and  in  some  not. 
It  is  evident  that  it  was  the  intention  of  the  legislature  to  re- 
serve all  the  rights  of  the  plaintilT,  which  he  might  have  on  the 
bond  given  by  the  administrator  or  executor,  and  that  he  might 
pursue  his  action  on  the  bond  as  elsewhere  provided.^^ 

50  Lease  vs.  Downey,  5  €.  C.  480;  57  §  10S56  G.  C. 

3  C.  D.  325.  Camp  vs.  Eoswick,  26  0.  S.  337. 

58  §  260  et  seq. 


699  APPEALS,   ETC.  §  785 

It  is  also  plain  that  a  surety  on  a  bond  has  a  right  to  appear 
and  make  any  defense  that  the  executor  or  administrator  could 
have  made  where  service  is  made  on  such  executor  by  publica- 
tion ;  and  having  made  an  exception  that  the  surety  could  only 
appear  v^hen  sei'vice  is  made  in  that  manner,  the  inference  is 
strong  that  if  service  is  made  on  the  administrator  or  executor 
in  any  other  manner  the  surety  has  no  right  to  defend.  When 
the  statute  provides  "'  that  such  sureties  may  be  parties  to  any 
judgment  by  any  petition  or  action  to  be  commenced,  and 
prosecuted  in  tlie  same  manner  as  above  provided  for  the  com- 
mencement and  prosecuting  causes  against  executors  and  ad- 
ministrators to  final  judgment  and  execution,  it  is  not  clear 
■whether  the  legislature  intended  to  confer  upon  the  Probate 
Court  jurisdiction  to  entertain  such  action  or'  not^  If  an  ac- 
tion is  brought  against  sureties,  it  must  be  brought  on  the  bond, 
and  sec.  10874,  G.  C.  (§  261),  specifically  provides  that  an  action 
on  the  bond  must  be  brought  in  the  Court  of  Common  Pleas  or 
Superior  Court  of  the  county  in  which  it  was  given  j  and  it 
therefore  rather  negatives  the  idea  of  the  above  section  that  an 
action  on  the  judgment  may  be  commenced  and  prosecuted  as 
is  provided  in  the  preceding  sections  in  this  chapter.^^ 

§  785.  Appeals  from  Probate  Court  and  from  Common 
Pleas.  Bills  of  exception.  "From  any  order,  judgment,  or 
decree  of  the  probate  court,  an  appeal  may  be  taken  to  the  court 
of  common  pleas,  by  any  person  against  whom  it  is  made,  or 
who  is  affected  thereby,  in  the  manner  provided  in  other  cases. 
Bills  of  exception  may  be  taken  and  allowed  upon  any  decision 
of  the  probate,  common  pleas  or  circuit  court,  in  such  proceed- 
ings as  in  other  cases."     [R.  S.  §  6203.]'"' 

^  785a.  When  an  appeal  may  be  taken  in  enforcement  of 
orders  of  distribution.  "An  appeal  may  be  taken  from  an 
order  or  judgment  of  the  common  pleas  court  to  the  circuit 
court,  in  proceedings  under  the  provisions  relating  to  the  en- 
forcement of  orders  of  distribution,  by  executors  or  adminis- 
trators by  a  person  against  whom  it  is  rendered,  or  who  may 
be  affected  thereby,  in  the' manner  provided  in  other  eases." 
fR.  S.  §6203.]«°** 

B9  §  260  et  seq.    See  §  261.  so  §  10859  G.  C. 

80*  §  10860  G.  a 


^785a 


DISTRIBUTION   IN    MONEY 


700 


The  provisions  of  the  above  section,  in  providing  for  appeal 
and  proceedings  in  error,  apply  only  to  actions  and  proceed- 
ings brought  under  sees.  10848,  G.  C.  (§761),  10850,  G.  C. 
(§770),  10853,  G.  C.  (§777),  10854,  G.  C.  (§779),  10855, 
G.  C.  (§781).«i 


61  Bair  vs.  Closterman,  2  C.  C. 
387;  1  C.  D.  546;  Ebersole  vs.  Schil- 
ler, 50  0.  S.  701 ;  Miller  vs.  Miller, 
19  C.  C.  243;  Gartner  vs.  Meyer,  19 
N.  P.  353. 


As  to  appeals  geherally,  see  §  43, 
§  11207  G.  C. 

See  Kislingberry  vs.  Donovan,  8 
N.  P.  (N.S.)  476;  11  Dec.  542; 
Pierson  vs.  Pierson,  5  N.  P.  (N.S.) 
235;  18  Dec.  825. 


701  UNCLAIMED    MONEY  ^      §  786 


CHAPTER    XLIV. 

INVESTMENT  OF  UNCLAIMED  MONEY,  AND  ACCOUNT 
OF  DISTRIBUTION. 

§  786    How  unclaimed  money  to  be  §  794     Judge    responsible    for    safe 

invested.  keeping  of   certificates,   etc. 

§  786a  Disposition   of  note   or  bond.  §  705     Account  of  final  distribution. 

§  786b  Limitations.  §  796     Objects    of    tlie   above    provi- 
§  787     Application   for   order   to   in-  sion. 

vest.  §  797     Form  of  account  of  final  dis- 
§  788     Entry      authorizing      invest-  tribution. 

ment.  §  798     Entry  and  order  of  discliarge. 

§  789     Return   of   investment.  §  798a  Probate    Court    to    order    re- 
§790     If  fund  can  not  be  invested.  ceipt    for    payment    of    in- 

§  791     When   and   how    such    money  cumbrances   recorded,  etc. 

paid  to  owner.  §  798b  Application    to    have    receipt 
§  792    Application,  and  order  to  pay  recorded,  etc. 

money   to   owner.  §  798c  Entry.      Notice. 

§  793     Entry  ordering  money  turned  §  798d  Hearing  and  order. 

over   to   claimant. 

§  786,  How  unclaimed  money  invested.  ' '  If  a  sum  of  money- 
directed  by  a  decree  or  order  of  the  court  to  be  distributed  to  heirs, 
next  of  kin,  or  legatees,  or  by  a  judgment  or  decree  of  court  in 
favor  of  a  creditor,  remains  for  six  months,  unclaimed,  the  execu- 
tor or  administrator  shall  loan  it  on  bond  or  mortgage,  as  the 
court  directs,  to  accumulate  for  the  benefit  of  the  persons  entitled 
thereto.  Such  loan  shall  be  made  in  the  name  of  the  judge  of 
the  court  for  the  time  being,  and  be  subject  to  the  order  of  the 
judge  and  his  successors  in  office,  as  hereinafter  provided." 
[R.  S.  §6191;  103  V.  435.]  ^ 

§  786a.  Disposition  of  note  or  bond.  "The  person  making 
such  loan  shall  file  in  the  court  a  memorandum  thereof,  with 
the  original  bond  or  note  and  mortgage,  as  the  case  may  be, 
which  shall  be  allowed  as  a  sufficient  voucher  for  such  payment 
under  the  order  or  decree.  If  the  amount  is  not  so  loaned 
during  another  six  months,  it  shall  be  turned  into  the  county 
treasury  and  credited  to  the  general  fund,  without  liability 
for  interest  thereon.  The  receipt  of  the  county  treasurer  taken 
for  it  and  filed  shall  be  a  sufficient  voucher."     [R.  S.  §  6191.]^* 

1  §  10843  G.  C.  1*  §  10844  G.  C. 


§  786b    ^  UJsrcLAiMED  money  702 

§  786b.  Limitations.  "The  statute  of  limitations  shall  not 
be  set  up  as  a  defense  or  bar  to  an  action  against  an  executor 
or  administrator  who  fails  or  neglects  to  comply  with  the  re- 
quirements of  the  next  two  preceding  sections."  [R.  S. 
§6191.]^t 


§  787.     Application  for  order  to  invest. 

The  above  section  is  designed  to  furnish  a  method  whereby 
an  administrator  or  executor  may  be  relieved  of  funds  in  his 
hands  w^hich  remain  uncalled  for  after  six  months  from  the 
time  the  order  of  distribution  is  made.  If  he  does  not  invest 
it,  he  will  be  chargeable  with  interest  whether  he  has  any  use 
of  the  funds  or  not.  It  has  been  held  that  the  word  "  may  "  in 
this  statute  means  "  must,"  and  if  an  executor  or  administra- 
tor fails  tO'  make  the  application  for  the  order  he  must  pay 
interest.^ 

The  matter  ought  to  be  brought  to  the  attention  of  the  Pro- 
bate Court  by  an  application  filed  for  that  pui'pose,  which  ap- 
plication may  be  in  the  following  form : 


{Title.) 

Now  comes  A.  B.,  administrator  (or  executor)  of  the  estate  of  C.  D.,  and 

represents  to  the  Coiul  that  on  the. ....  .day  of .  .  .' the  Court 

made  an  order  finding  that  there  was  in  the  possession  of  the  said  A.  B. 

as  administrator   (or  executor)   of  the  estate  of  C.  D.  the  sum  of 

dollars..  That    more    than    six    months    have    elapsed    since    said 

order   was   made,-  and   that   there   yet   remains   in    his   bands   the    sum    cf 

dollars  uncalled  for  by  the  parties  entitled  thereto.     He 

further  represents  that  he  is  informed  that  the  said  E.  F..  who  he  believes 
is  entitled  to  said  fund,  has  gone  to  parts  unknown. 

Wherefore  he  asks  that  the  Court  may  order  and  authorize  him  to  invest 
the  said  money  in  his  hands  in  stocks  or  loan  on  mortgage  as  the  Court 
may  see  best. 

Sworn  to  and   siibscrilioi]    bofnre  me   nnd    in  mv   presence  this day 

of 


§  788.     Entry  authorizing  investment. 
{Title.) 

This  day  came  A.  B..  administrator  of  the  estate  of  C.  D.,  and  filed  his 
application  in  this  Court,  praying  that  the  Coiu't  might  authorize  and 
direct  that  the  funds  remaining  in  his  hands  uncalled  for,  as  stated  in  his 


It  §  10845  G.C.  5      Dec.      151.      Statute     now 

2  Thornton's  Estate,  7  N.  P.  335 ;       •'shall"  instead  of  "may." 


703  IF  CANNOT,  BE  INVESTED  §  7.89 

said  application,  miglit  be  invested  in  stock  or  mortgage  loans,  and  it 
appearing  to  the  Court  that  the  statements  of  said  application  are  true, 
it  is  ordered  that  said  execirtor  invest  said  sum  in  (here  mention  how  the 
same  shall  be  invested),  in  the  name  of  E.  F.,  judge  of  this  Court,  for 
the  time  being  and  report  his  doings  hereunder  for  further  order  of  the 
Court. 

§  789.     Return  of  investment. 

Til©  administrator  or  executor  having  invested  the  fund  as 
the  Court  has.  directed,  ought' t'O  make  a  report  of  his  doings, 
which  may  be  in  the  following  form : 

(Title.)  ,    - 

Now  comes  A.  B.,  administrator  (or  executor)  of  the  estate  of  C.  D.,  and 
reports  to  the  Court  that  he  has  invested  the  funds  as  directed  by  the  former 
order  of  the  Court  in  (here  state  what),  and  files  herewith  the  evidoncos  of 
said  indebtedness.  (Here  state  whether  mortgage  or  bond,  with  such  a 
description  of  it  as  will  identify  it.) 

If  the  same  has  been  filed  in  the  Probate  Court,  the  judge 
should  make  an  entrv  of  the  fact,  which  may  be  in  the  follow- 
ing form : 

(Title.) 

This  day  came  A.  B.,  administrator  (or  executor)  of  the  estate  of  C.  D., 
And  filed  herein  his  report  of  the  investment  of  funds  remaining  in  his 
hands  uncalled  for;  and  the  same  appearing  to  the  Court  to  be  regular 
and  correct,  it  is  confirmed  and  it  is  further  ordered  that  these  proceedings 
shall  be  a  sufficient  voucher  to  the  said  administrator  (or  executor)  for 
his  payment  of  the  same,  and  that  the  costs  of  this  proceeding  be  taxed 
against  said  fund.s 

§  790.     If  fund  cannot  be  invested. 

The  statute  makes  it  the  duty  of  the  administrator  or  execu- 
tor to  invest  the  fund.  If,  however,  for  good  reasons  the  same 
cannot  be  invested,  then  the  Court  may  order  the  same  to  be 
turned  into  the  county  treasury,  and  there  it  is  to  be  credited 
to  the  general  fund,  and  the  County  Treasurer  is  to  give  a  re- 
ceipt therefor,  which  receipt  may  be  filed  as  a  voucher.  If  the 
fund  is  invested,  the  statute  makes  the  judge  of  the  Probate 
Court  and  his  successors  a  trustee  for  the  fund,  and  it  would  be 
the  Judge's  duty  to  look  after  the  same  and  collect  the  interest 
and  accumulations  thereon,  and  possibly  reinvest  the  same.  As 
a  general  rule  such  funds  are  turned  over  to  the  county  treasury. 

3  It  is  usual  to  ascertain  the  cost 
and  take  them  out  of  the  fund  before 
the  investment  is  made. 


§  791  UNCLAIMED    MONEY  704 

§791.  When  and  how  such  money  paid  to  owner.  "When  a 
person  entitled  to  the  money  invested,  or  turned  into  the  treas- 
ury, satisfies  the  court  of  his  right  to  receive  it,  the  court  shall 
order  it  to  be  paid  over  and  transferred  to  him.  In  case  it  has 
been  turned  into  the  treasury,  the  auditor  shall  give  to  him  a 
warrant  therefor,  upon  the  certificate  of  the  judge."  [R.  S. 
§6192.]* 

§  792.    Application,  and  order  to  pay  money  to  owner. 

Whenever  the  Court  is  satisfied  that  the  person  has  a  right  to 
receive  the  money,  it  may  order  it  to  be  paid  over  to  him.  The 
statute  does  not  seem  to  provide  any  guidance  for  the  Court  as 
to  what  will  be  sufficient  evidence  that  the  claimant  is  the  per- 
son to  whom  the  funds  should  be  paid.  It  simply  provides  that 
the  Court  should  be  satisfied.  The  most  difficult  matter  that  is 
experienced  in  these  cases  arise  from  the  unexplained  absence 
of  an  heir  or  legatee.  And  Courts  generally  in  such  cases,  I  be- 
lieve, have  gone  on  the  presumption  that  seven  years  of  unex- 
plained absence  is  sufficient  evidence  of  the  death  of  such  heir 
or  legatee  to  justify  the  Court  in  ordering  it  paid  to  the  next 
of  kin  of  such  absent  or  unknown  heir.  Before  the  Court 
makes  an  order  it  should  require  an  application  to  be  filed  set- 
ting forth  the  facts  upon  which  the  claimant  rests  his  cause. 
Such  application  may  be  in  the  following  form: 

( Title. )  5 

Now  comes  G.  H.  and  represents  to  the  Court  that  on  the day  of 

an  order  of  this  Court  was  made  directing  A.  B.,  adminis- 
trator (or  executor)  of  C.  D.,  to  invest  certain  funds  in  his  hands,  ordered 
by  the  Court  to  be  distributed,  the  same  having  remained  in  the  hands  of 
Baid  A.  B.  for  the  period  of  six  months  uncalled  for.  Thereafter  said 
funds  were  invested  and  a  report  thereof  was  made  to  the  Court  of  the 
eame  having  been  invested  in  (here  state  how  invested),  that  said  G.  H. 
claims  that  (here  state  in  what  manner  party  making  the  application 
claims  that  he  is  entitled  to  the  fund). 

Wherefore  said  G.  H.  prays  that  the  Court  may  make  an  order  directing 
that  said  (here  state  how  the  money  has  been  invested)  be  turned  over  to 
him  as  the  person  entitled  to  the  same. 


*  §  10846  G.  C.  '  person,  so  that  all  matters  pertain- 

5  The    title    to    proceedings    under  ing   thereto   will   be    in   a   connected 

this  chapter,  should  always  be  in  the  manner. 

name  of  the  estate  of  the  deceased 


705                                               FINAL  DISTRIBUTION                                           §  793 
Sworn  to  and  subscribed  before  me  and   in  my  presence  this day 


Of 


§  793.     Entry  ordering  money  turned  over  to  claimant. 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  G.  H. 
for  an  order  of  the  Court  directing  that  certain  funds  invested  by  A.  B.,  aa 
administrator  of  C.  D.,  be  turned  over  to  him  as  the  person  entitled  thereto, 
and  the  same  was  heard  by  the  Court. 

Whereupon  the  Court  finds  from  the  evidence  produced  that  the  said 
G.  H.  is  entitled  to  said  money  so  invested  (here  describe  same),  and  that 
the  Court  is  satisfied  that  he  is  the  person  entitled  to  the  same,  and  orders 
that  the  same  be  transferred  to  him  as  provided  by  law. 

If  the  money  has  been  invested  in  the  county  treasury,  con- 
clude the  above  entry  with  the  following : 

And  that  a  copy  of  this  journal  entry  be  given  to  the  auditor,  and  that  the 
auditor  issue  a  warrant  therefor  directing  the  county  treasurer  to  pay  the 
same,  and  the  costs  of  this  proceeding  be  paid  by  said  G.  H. 

§  794.    Judge  responsible  for  safe  keeping  of  certificates,  etc. 

"The  judge  with  whom  such  certificates  or  evidences  of  title 
are  deposited,  for  the  time  being,  and  each  succeeding  judge  to 
whom  they  come,  and  his  sureties,  shall  be  responsible  for  their 
safe-keeping  and  application,  as  provided  in  the  next  four  pre- 
ceding sections."     [R.  S.  §  6193.] « 

§  795.  Account  of  final  distribution.  ' '  When  an  executor 
or' administrator  has  paid  over  or  delivered  the  money  or  other 
property  in  his  hands  to  the  persons  entitled  thereto  as  required 
by  the  order  of  distribution,  or  otherwise,  he  shall  perpetuate 
the  evidence  thereof  by  presenting  to  the  court,  within  six 
months  after  such  order  was  made,  an  account  of  such  payments 
or  the  delivery  over  of  such  property ;  which,  being  proved  to 
the  satisfaction  of  the  court,  and  verified  by  the  oath  of  the 
party,  shall  be  allowed  as  his  final  discharge,  and  ordered  to 
be  recorded.  Such  discharge  shall  forever  exonerate  the  party 
and  his  sureties  from  liability  under  such  order,  unless  his 
account  be  impeached  for  fraud  or  manifest  error."  [R.  S. 
§6190;  102  V.  205.]  «* 

§  796.     Objects  of  the  above  provision. 

The  purpose  of  the  above  sections  is  to  enable  the  administra- 
tor or  executor  to  place  upon  record  evidences  of  the  completion 

«  §  10847  G.  C.  See   Opening   up   account,    §§  745, 

6*  §  10842  G.  G.  746. 


§  797  FINAL    DISTRIBUTION  706 

of  his  tiiist ;  and  to  have  the  same  acted  upon  by  the  Court  and 
be  relieved  from  all  further  liability,  unless  he  has  in  some 
manner  been  guilty  of  fraud  or  manifest  error.  In  order  to 
impeach  the  finding  for  fraud  or  error,  the  action  must  be  com- 
menced within  four  years  from  the  discovery  of  the  same/ 

It  has  also  been  held  that  a  debt  of  a  distributee  to  the  dece- 
dent, which  was  barred  by  the  statute  of  limitation  in  the  life- 
time of  the  decedent,  cannot  be  set  off  against  or  retained  out  of 
tlie  distributive  share  of  such  distributee.* 

Under  the  provisions  of  the  above  section,  as  it  formerly  ex- 
isted, it  was  within  the  option  of  the  administrator  or  executor, 
whether  or  not  he  should  file  such  account  of  distribution.® 

Fomierly  the  words  which  now  read  that  "  he  shall  perpet- 
uate the  evidence,"  etc.,  were  "  he  may  perpetuate  the  evidence," 
etc.  It  is  evident  that  th^  legislature  by  this  change  intended 
to  make  it  mandatory  upon  the  executor  or  admimstratcr  to  file 
such  account  cf  distribution  within  six  months  from  the  time 
the  general  order  of  distribution  is  made,  and  I  have  no  doubt 
but  what  the  Court  may  enforce  an  account  of  distribution  in 
the  same  manner  that  other  accounts  are  forced  to  be  filed.  If 
an  account  of  distribution  were  filed  and  all  the  distributees 
were  not  paid,  such  as  were  not  paid  would  not  be  affected  by 
the  filing  of  such  account  of  distribution.^*' 

§  797.     Form  of  account  of  final  distribution, 

of  the  Estate  of ,  deceased. 

T«  account  with  said  estate,  said cnarges  h self  as 

follows : 

Amount  found  due  estate  as  per  final  settlement  with 

said   Court,  made 190 $ 

Paid  Attorney  fees  preparing  this  account $ 

Paid  Probate  Judge's  fees  on  this  account $ 

Balance  for  distribution $ 

Said credits    h self    as    fol- 
lows : 
Amounts  paid  to  heirs  and  legatees,  as  per  distribu- 
tive order  of  said  Court  made ,  190. .,  viz: 

To ,..,f^....  .      $ 

T§  11224  G.  C.  tributee  upon  distribution,   and  the 

8  Harrod  vs.  Carder,  3  C.  C.  479;       account  of  the  administrator  is  prop- 
2  C.  D.  274.  erly  published  and  confirmed  by  the 

See    §  760    where    this    matter    is  Probate    Court,    the    evidence    thus 

discussed    and    it    is    said    that    the  perpetuated  is  complete  and  binding 

doctrine  of  this  case  is  contrary  to  upon  the  parties  so  fir  as  the  giving 

the    law    as    given    in    Woerner    on  of  the  receipt  is  concerned,  but  is  not 

Admin.  conclusive  as  to  whether  the  distrib- 

9  Negley  vs.  Girard,  20  0.   310.  utee  actually  received  the  monev,  or 

10  Xegley  vs.  Guard,  20  0.  310.  the  distribution  was  made  according 
Where  a  receipt  is  given  by  a  dis-       to   law. 


707  ACCOUNT  OF  §  798 

The  State  of  Ohio, County,  ss. 

of  the  estate  of ,  de- 
ceased, being  sworn,  says  that  the  foregoing  account  presents  a  true  and 
complete  statement  of  the  final  distribution  of  the  assets  of  said  estate,  as 
required  by  the  order  of  this  Court,  as... he  verily  believes;  and  said 
asks  that  the  same  be  allowed  as  h .  .  .  .  final  dis- 
charge, and  ordered  by  the  Court  to  be  recorded. 


Sworn  to  before  me  and  signed  in  my  presence  this day  of. 

190.. 


Probate  Judge. 
Deputy   Clerk. 

§  798.     Entry  and  order  of  discharge. 

The  statute  does  not  require  that  an  account  of  distribution 
should  be  advertised  as  other  accounts,  and  it  is  the  general 
practice  not  to  advertise  tliem.  However,  it  seems  that  it  would 
not  be  a  bad  practice  to  have  them  advertised  like  other  ac- 
counts' and  set  doA\m  for  hearing,  although  the  finding  would  be 
just  as  valid  in  the  absence  of  such  notice  as  with  it,  for  the 
proceeding  is  strictly  m  rem,  and  the  Court  has  full  jurisdic- 
tion of  tlie  subject  matter. 

We  have  seen  in  a  former  discussion  as  to  the  manner  of  the 
termination  of  an  administrator's  or  executor's  trust,"  that  if  the 
estate  had  not  been  fully  administered  upon,  the  adminis- 
trator or  executor  could,  even  after  an  order  had  been  made  on 
an  account,  collect  the  unadministered  estate.  The  question 
might  arise  whether  the  same  rule  would  be  applied  to  an  order 
made  on  an  account  of  distribution. 

In  the  case  of  Weyer  vs.  Watts,^"  in  which  the  doctrine  was 
announced  that  an  order  made  on  a  general  account  did  not  re- 
lieve the  administrator  or  executor  from  collecting  unadminis- 
tered assets,  it  is  said  that  "  it  is  not  intended  tliat  the  pro- 
ceeding in  the  Probate  Court  was  under  or  in  conformity  with 
sec.  10842  (§  795)  of  the  General  Code,  which  provides  for  per- 
petuating the  evidences  of  distribution.  The  account  filed  by 
the  plaintiff  was  not  of  that  description."  The  inference  to  be 
gathered  from  this  language,  as  well  as  the  purpose  of  the 
statute,  leads  to  the  opinion  that  the  entry  made  on  an  account 

But  the  filing  of  this  account  does  n  See  §  231,  Termination  of  trust, 

not    have   tiie   effect   of   discharging  12  48  O.  S.  54.5. 

the  administrator  of  his  trust  where  An  account  of  distribution  is  final 

there  are  assets  still  to   be   admin-  unless  impeached  for  fraud.     Henry 

istered.     In  re  Estate  of  Koehnken  vs.  Doyle,  82  O.  S.  113. 

(1903),  1  C.  C.   (N.S.)   126;   15  Cir.  The  verity  of  an  account  of  dis- 

D.  245;  27  O.  C.  C.  840.  tribution  can  not  be  opened  up   in 


§  798a  KECEIPT  FOR  INCUMBRANCES  708 

of  distribution  when  such  account  purports  to  be  a  complete  ad- 
ministration of  the  estate  acts  as  a  discharge  of  the  administra- 
tor or  executor  from  further  acting  in  his  official  capacity ; 
and  thereafter  an  administrator  de  bonis  non  would  be  required 
to  be  appointed  to  administer  upon  unadministered  assets.  The 
better  way,  in  order  to  avoid  a  question  of  this  kind,  is  to  pro- 
Tide  in  the  entry  that  the  administrator  or  executor  is  dis- 
charged. 

Upon  the  filing  of  such  account  of  distribution,  the  following 
may  be  used  as  a  general  form  of  entry : 

(Title.) 

This  day  came  A.  B.,  the  executor  (or  administrator)  of  the  estate  of 
C.  D.,  and  presented  to  the  Court  his  account  of  final  distribution  in  said 
estate,  duly  verified;  and  the  same  was  examined  by  the  Court.  Whereupon 
it  is  ordered  that  the  same  be  allowed  as  a  final  discharge  of  such  executor, 
and  be  placed  on  the  files  of  this  Court  and  also  recorded  in  the  records  of 
accounts,  and  the  said  A.  B.  is  hereby  discharged  as  executor  (or  ad- 
ministrator)   of   said  trust. 

§  798a.  Probate  Court  to  order  receipt  for  payment  of  in- 
cumbrances recorded,  etc.  "When  any  lands  or  real  estate 
are  left  incumbered  by  the  provisions  or  conditions  of  a  deed, 
will,  or  other  instrument  of  record,  with  the  payment  of  money, 
or  the  performance  of  any  act  or  acts,  by  the  grantee  or  devisee, 
such  grantee  or  devisee  or  their  heirs  or  assigns,  upon  the  pay- 
ment of  the  money  or  the  performance  of  the  act  or  acts,  may 
present  the  receipt  of  the  payment  of  the  money,  or  the  proof 
of  the  performance  of  the  act  or  acts,  to  the  probate  court  of 
the  county  in  which  the  lands  or  real  estate  is  situated,  who 
must  enter  such  payments  and  the  proof  of  the  performance  of 
such  act  or  acts,  on  its  journal,  reqord  the  receipts  and  the 
proof  of  the  performance  of  the  act  or  acts,  on  the  margin  of 
the  will  record  wherein  sucli  incumbrances  are  created,  and 
order  that  this  be  done  in  like  manner  on  the  margin  of  the 
deed  record  in  the  recorder's  office  by  the  county  recorder, 
which,  when  done,  will  relieve  such  lands  and  real  estate  from 
the  incumbrances  except  for  fraud."     [95  v.  571,  §  1.]^-^ 

"No  such  record  of  receipts  or  orders  can  be  made  by  the 
probate  judge  nor  shall  he  enter  proof  of  the  performance  of 
such  act  or  acts  as  hereinbefore  required  until  notice  thereof 
has  been  given  as  is  required  by  law  for  the  settlement  of  ad- 
ministrators' and  executors'  final  accounts."     [95  v.  571,  §  l.]^^t 

the    Probate    Court,    when.      In   re  statute    of    limitations    durinsr    the 

Koehnken,  1  C.  C.  126.  lifetime  of  the  ancestor  can  not  be 

In  order  to  protect  the  adminis-  deducted   from   the    interest    of   the 

trator  an  account  must  be  filed  and  heir.     TTarrod  vs.   Caseler,  3  C.  C. 

the   court   make   an    order   thereon.  47fl;  2  C.  D.  274. 

Fewlass  vs.  Keesham,  88  Fed.  573.  12*  §  8544  G.  C. 

A  debt  which  was  barred  by  the  l2t  §  8545  G.  C. 


709  APPLICATION  FOR  §  798b" 

§  798b.     Application  to  have  receipt  recorded,  etc. 

The  above  act  is  of  recent  date,  and  in  order  to  properij 
bring  the  matter  before  the  Probate  Court,  an  application  set- 
ting forth  the  facts  ought  to  be  filed.  This  application  might 
be  in  the  following  form : 

In  the  matter  of  Application  of  A.    )         Probate  Court, 

V  Clark  County,  Ohio. 

B.  to  record    receipt.  ^  APPLICATION. 

The   undersigned   respectfully   represents    that  by   item of   the 

last  will  and  testament  of  C.  D.,  deceased,  it  was  provided  (here  insert  the 
provision  of  the  will,  etc.).  Said  A.  B.  further  represents  that  he  has 
performed  the  conditions  of  said  will,  a  receipt  acknowledging  the  same  is 
herewith  attached  and  marked  "  Exhibit  A." 

Wherefore  he  prays  that  such  proceedings  may  be  had  as  authorized  by 
law,  and  that  said  receipt  be  recorded  on  the  margin  of  said  will  in  the 
record  of  wills  in  said  officc.12* 


Sworn  to  and  subscribed  before  me  and   in  my  presence  this day 

of 

§  798c.     Entry.     Notice. 

Upon  the  filing  of  such  sfn  application,  an  entry  should  be 
placed  upon  the  journal,  ordering  that  the  same  should  be  set 
down  for  hearing  on  a  certain  date,  and  that  notice  thereof  be 
given  in  some  newspaper  of  general  circulation  for  once  a  week 
for  at  least  three  consecutive  weeks,  the  law  requiring  the  same 
to  be  advertised  the  same  way  as  accounts  of  administrators.^* 

This  notice  should  briefly  state  the  fact  that  an  application 

had  been  made  in  the  Probate  Court  by 

for  an  order  of  the  Court  to  place  upon  the  margin  of  the 
will  of ,  a  receipt  showing  the  perform- 
ance of  a  certain  condition  in  item of  said  will. 

The  entry  therefore  might  be  as  follows : 

(Title.) 
This  day  came  A.  B.  and  filed  herein  his  application  to  have  a  receipt 

evidencing  the  performance  of  a  condition  in  item of  the  will   of 

,  deceased,   ordered  by  the  Court  to  be  placed  upon 

12*  If  the  condition  to  be  per-  will,  the  application  should  be  ac 
formed  is  one  in  a  deed  instead  of  a        cordingly  changed. 

13  §  11201    G.    C,    §729. 


§  798d  RECEIPTS    FOR    INCUMBRANCES  7lO 

the  margin  of  said  will  in  the  records  thereof;  and  it  is  ordered  that  the 

same  be  set  for  hearing  on  the day  of ,  190. .,  and 

publication  thereof  be  given  as  required  by  law. 

§  798d.     Hearing  and  order. 

At  the  time  the  same  is  set  for  hearing,  the  Court  should  as- 
certain whether  publication  has  been  made  as  required  by  the 
former  order  of  the  Court,  and  if  no  contention  arises  as  to  the 
validity  of  the  receipt,  it  should  order  that  the  same  be  placed 
upon  the  margin  of  the  will  record.  If  no  receipt  is  given,  then 
the  Court  should  hear  the  testimony  of  witnesses  as  to  the 
performance  of  the  condition  and  order  its  findings  placed  upon 
the  margin  of  the  will  record  or  deed  record  as  the  case  might  be. 
The  entry,  therefore,  might  be  as  follows : 

(Title.) 

This  day  this  matter  came  on  further  to  be  heard  upon  the  application 
ot  A.  B.  to  have  a  receipt  evidencing  the  performance  of  certain  conditions 

of  the  will  of ,  deceased,  placed  upon  the  margin  of  the 

will  in  the  records  thereof;  and  the  same  was  submitted  to  the  Court 
upon  the  exhibits  and  testimony,  wherefore  the  Court  finds  that  notice  of 
the  time  and  hearing  of  said  application  has  been  given  as  the  law  requires, 
and  it  further  appearing  to  the  Court  that  the  receipt  marked  "  Exhibit  A  " 
attached   to   the   application   is   genuine,   it   is   ordered  that   the   same   be 

recorded  on  the  margin  of  the  record  of  the  will  of , 

deceased,  in  the  records  of  this  office,  and  it  is  further  ordered  that  the 

costs  of  this   proceeding,   taxed  at dollars,   be   paid   by 

,  and  that  the  entire  proceedings  be  recorded  in  the 

rfcord  of  accounts. 


711 


POSSESSION  OF  EEAL  ESTATE 


§798 


CHAPTER  XLY. 

REAL  ESTATE.     SALE  WITHOUT  OEDER  OF  THE  COURT. 


:  799  Possession  of,  etc. 

800  Land  liable  for  debts. 

801  The    right    to    mortgage    and 

lease,  etc. 

802  When    sale    is    authorized    by 

will   no  order  of   sale  is  re- 
quired, 

803  Sufficient  authority. 

804  Title.     Devise   to   sell. 


§  805  Construction  of  power. 

§  806  Who  can  execute. 

§  807  Expiration  of  power. 

§  803  Control  of  Court  over  the  ex- 
ecution of  the  power  of  sale. 

§  809  Form  of  deed  of  executor  or 
administrator  with  the  will 
annexed. 

§  810  Sale  and  distribution. 


§  799.     Possession  of,  etc. 


We  have  heretofore  discussed  the  power  of  an  administrator 
or  eixecutor  to  collect  rents,  etc.,  arising  from  the  lands  of  the 
deceased,^  Generally  it  may  be  said  that  an  executor  or  ad- 
ministrator has  no  power  over  a  decedent's  real  estate  except 
that  which  may  be  given  to  him  by  statute  or  by  will ;  and  in  the 
absence  of  such  authority  he  cannot  take  or  pay  out  money  for 
it,  as  such  executor  or  administrator,^  when  no  authority  exists 
in  the  will  an  executor  must  get  an  order  of  Court. 

Neither  can  an  executor  or  administrator  prevent  the  heirs 
and  devisees  of  the  decedent  from  exercising  their  right  to  the 
title  and  possession  of  their  ancestor's  real  estate.^  Such  heirs 
may  have  partition  of  such  real  estate  and  the  title  will  vest  in 
them  until  it  passes  to  the  purchaser  at  a  sale  by  the  admin- 
istrator or  executor  for  the  payment  of  the  debts  of  such  an- 
cestors.* 


1  See  §  3G4,  §  373. 

2  When  no  authority  exists  in  the 
will  an  executor  must  get  an  order 
of  Court.  Goforth  vs.  Longvvorth, 
4  0.  129;  Ludlow's  Plcirs  vs.  Park, 
4  0.  5;  Newcomb  vs.  Smith,  5  O. 
447;  Ludlow's  Heirs  vs.  Wade,  5  0. 
494;    18  Cyc.   740;    17  Cyc.  504. 

Where  tlie  sole  devisee  of  land 
is  appointed  executor  and  sells  land 
in  his  individual  capacity,  the  pro- 
ceeds come  into  his  hands  as  execu- 
tor, and  if  tlie  personal  property  is 


insufficient  to  pay  the  debts  he  must 
apply  the  proceeds.  Railway  vs. 
White,  85  O.  S.  410. 

In  this  case  the  real  estate  was 
sold  under  a  defective  petition. 

3  Reed  vs.  Brown,  10  C.  C.  44;  6 
C.  D.  15. 

See  subsequent  section,  Construc- 
tion of  devise  to  sell. 

4  But  no  partition  shall  be  ordered 
by  the  Court  witliin  one  year  from 
tlie  death  of  tlie  decedent,  unless  the 
petition   shall   set  forth  and   it  be 


§  800  LAND   LIABLE   FOR  DEBTS  712 

The  title  to  the  real  estate  of  the  ancestor  intestate,  vests  at 
the  instant  of  his  death  in  his  heirs,  and  they  take  and  retain 
such  title  with  all  tlie  rights  and  incidents  belonging  thereto, 
until  the  administrator  of  the  ancestor  effectively  asserts  his 
right  thereto  for  the  purposes  provided  in  the  statute."  And 
until  it  becomes  necessary  to  sell  an  intestate's  land  tO'  pay 
debts,  his  administrator's  rights  therein  is  a  mere  naked  power 
resting  only  upon  the  contingency  that  tlie  personal  property 
will  be  insufficient  to  pay  such  debts.  Until  the  happpening  of 
that  contingency  the  possession  belongs  to  the  heirs ;  and  if 
there  should  be  no  debts,  or  sufficient  personal  property  to  pay 
them,  the  administrator  has  no  right  to  the  possession  of  the 
real  estate. 

This  same  rule  would  apply  to  an  executor  where  the  power 
granted  him  in  the  will,  was  a  mere  naked  power  to  sell  for 
the  purpose  of  paying  debts  and  making  distribution.  But 
if  the  power  has  a  trust  connected  with  it,  such  for  instance, 
as  that  the  executor  may  make  sale  of  the  lands  when  in  his 
opinion  a  sale  can  be  made  to  good  advantage,  and  the  pro- 
ceeds is  devised  to  children  as  they  become  of  age,  he  then 
is  entitled  to  the  possession  of  lands. ^  Even  when  a  will  directs 
land  to  be  sold  and  the  proceeds  divided,  the  parties  may  defeat 
the  sale  by  electing  to  take  the  land.'' 

§  800.     Land  liable  for  debts. 

At  common  law  the  title  to  real  estate  vested  absolutely  in 
the  heirs  upon  the  death  of  the  ancestor,  and  it  was  not  subject 
to  be  made  assets  for  the  payment  of  debts.  This  common  law 
doctrine,  however,  has  been  overthrown  by  statute,   and  now 

proved  that  all  the  debts  and  claims  Jones    vs.    Billstein,    28    Wis.    221 ; 

against  the  estate  of  such   decedent  Overturf  vs.  Dugan,  29  0.  S.  230. 

have  been  paid  or  secured  to  be  paid.  6  Dabney  vs.  Manning,  3  0.  321 ; 

Or    that    the    personal    property    of  Roberts    vs.    Roberts,    1    Diz.     197; 

said    decedent    is    sufficient    to    pay  Williams  vs.  Beach,  17  O.  171. 

the  same.     §  11943  G.  C.    See  §  1879  7  Holt  vs.  Lamb,  17  O.  S.  374;  9 

et  seq.  Cyc.  857. 

5  Shaw  vs.  Hoadley,  8  Blkf.   165;  Where  road  material  is  taken  an 

Beckett    vs.    Selover,    7    Cal.    215:  executor   or   guardian    may    receive 

Streeter    vs.    Baton,    7    Mich.    341;  the  money.     §  7178  G.  C. 


713  DEBTS,  ETC.  §  800 

the  right  of  a  creditor  to  have  the  land  subjected  to  the  payment 
of  his  claim  is  always  regarded  as  superior  to  the  right  of  an 
heir;  and  although  the  heir  may  have  sold  and  conveyed  the 
land,  the  conveyance  made  by  the  administrator  under  the  order 
of  the  Court  is  not  in  any  wise  affected  or  impaired  by  the  pre- 
vious incimibrances  or  conveyance  by  the  heir.* 

The  wasting  of  the  personal  assets  of  the  decedent  by  his 
executor  or  administrator  does  not  relieve  the  real  estate  from 
liability  for  the  debts.®  If,  however,  such  wasting  is  a  wrongful 
one  by  the  administrator,  he  would  be  liable  on  his  bond.^"  But 
if  the  assets  are  wasted  or  destroyed  without  fault  of  the  execu- 
tor or  administrator ;  or  by  reason  of  a  decrease  in  the  value  of 
such  assets,  or  the  insolvency  of  tlie  administrator  or  executor 
and  their  sureties,  the  loss  falls  on  the  estate.^^ 

A  purchaser  from  the  heir  acquires  precisely  the  same  right 
and  interest  which  the  heir  has  from  whom  he  tal^es  a  convey- 
ance, and  nothing  more.  He  is,  therefore,  bound  to  know  that, 
until  the  estate  is  finally  settled,  the  sale  of  the  real  estate  may 
become  necessary  for  the  payment  of  debts. ^"  The  heir  and 
purchaser  alike,  however,  have  the  right  to  insist  that  the  per- 
sonal property  shall  be^  first  applied  to  the  payment  of  debts, 
unless  the  testator  by  a  testamentary  provision  has  otherwise 
provided. 

8  Sidener  vs.  Hawse,  37  O.  S.  532 ;  descended  to  the  heirs^  and  some 
See  §  55.  have    been    sold    and    conveyed    by 

9  Conger  vs.  Cook,  56  la.  117;  them,  and  some  have  not,  a  court  of 
Smith  vs.  Brown,  99  N.  C.  377 ;  Van  chancery  will  so  far  control  a  cred- 
Bibber  vs.  Julian,  81  Mo.  618.  itor  of  the  ancestor  in  asserting  his 

10  In  re  Merritt,  62  Mo.  150 ;  Foley  lien  in  chancery  as  to  require  him  to 
vs.  McDonald,  46  Miss.  238 ;  Carlton  resort  first  to  land  remaining  un- 
vs.  Byers,  70  N.  C.  691.  sold,  and  if  that  be  not  sufficient  to 

11  Faran  vs.  Robinson,  17  O.  S.  liquidate  the  debt,  resort  must  be 
242 ;  Evans  vs.  Fisher,  40  Miss.  643 ;  had  to  the  sold  lands,  in  regular  or- 
Lilly  vs.  Wooley,  94  N.  C.  412;  May  der,  beginning  with  that  last  sold. 
vs.  Parham,  68  Ala.  253.  Pratt  vs.  St.  Clair,  6  0.  227. 


12  Piatt  vs.  St.  Clair,  6  0.  227 
McDonald  vs.  Alten,  1  O.  S.  293 
Weakley  vs.   Conradt,   56   Ind.  430 


Creditors  must  first  exhaust  their 
remedy  against  the  personal  repre- 
sentative,  before   they   can  have   re- 


Baker  vs.  Griffitt.  83  Ind.  411;   Fis-        course  to  lands  in  the  hands  of  pur- 
cus  vs.  Moore,  121  Ind.  547.  chasers   from    the   heirs.     Stiver   vs. 

Where  several  tracts  of  land  have        Stiver,  8  O.  217. 


§  801  REAL    ESTATE,    MORTGAGE,    ETC.  714 

§  801.     The  right  to  mortgage  and  lease,  etc. 

"As  the  power  of  an  executor  or  administrator  over  the  lands 
of  a  deceased  person  exist  entirely  by  virtue  of  the  power  of 
some  provision  in  the  will  or  statutory  enactment  in  the  ab- 
sence of  such  power,  it  therefore  follow^s  that  unless  the  statute 
provides  for  mortgaging  and  leasing  lands,  or  the  testator  has 
so  provided,  the  executor  or  administrator  can  neither  mortgage 
nor  lease  lands  of  a  deceased.  There  is  no  such  power  con- 
ferred by  the  statute  in  our  State.  There  may  be  some  in- 
stances when  such  power  might  be  advantageously  used  by  an  ad- 
ministrator. The  prevailing  idea  of  our  statute,  however,  is  to 
have  a  speedy  settlement  of  an  estate.  If  the  conditions  were 
such  that  the  lands  should  be  leased,  a  receiver  might  be  ap- 
pointed by  the  Court  for  tliat  purpose.^^ 

The  weight  of  authority,  apparently,  is  that  power  to  sell 
and  convey  does  not  carry  with  it  the  power  to  mortgage.^* 
A  power  to  sell  and  convey  real  estate  to  pay  testator's  debts 
can  not  be  exercised  by  a  conveyance  to  one  of  the  heirs  who  is 
to  mortgage  it  tO'  secure  money  for  the  executors  and  then  re- 
convey  it  to  the  executor  subject  to  the  mortgage.^^  A  power 
to  distribute  after  a  life  estate  "  by  cash  sale  or  division  "  does 
not  give  a  power  to  confirm  a  lease  made  by  the  life  tenant." 
A  power  of  sale  cannot  be  exercised  by  an  exchange.^' 
The  power  to  sell  real  estate  conferred  by  will  upon  executors 
for  the  purpose  of  paying  debts  of  the  testator,  and  dividing 
his  estate,  does  not  authorize  the  executors  to  make  a  perpetual 
lease  of  the  premises  with  privilege  of  purchase.^* 

§  802.  When  sale  is  authorized  by  will  no  order  of  sale  is 
required.     "If  an  executor  or  administrator,  duly  qualified, 

The  debts  of  a  decedent  are  a  lien  is  Arlington  State  Bank  vs.  Paul- 

upon  his  real  estate,  and  purchasers  sen,   57  Neb.   717;    S.  C.   80  N.   W. 

from  his  heirs  take  the  same  with  263. 

this  burden  upon  it,  and  subject  to  i6  Johnson  vs.  Grantham,  104  Ga. 

the   maxim    caveat    emptor.     Faran  558. 

vs.  Robison,  17  O.  S.  243.  "  Taylor  vs.  Galloway,   1  O.  232. 

13  See  §  372.  is  Breuer    vs.    Hayes,    21    B.    29. 

i4Hoyt  vs.  Jaques,  129  Mass.  286;  See  Prathcr  vs,  Foote,  1  Diz.  434. 
Arlington   State  Bank  vs.   Paulsen, 
67  Neb.  717. 


715  SALE  UNDER  WILL  §  803 

is  authorized  by  will  or  devise,  to  sell  real  estate,  no  order  is 
required  from  the  court  to  enable  him  to  act  in  pursuance  of  the 
power  vested  in  him  by  such  will."     [R.  S.  §  6167.]^^ 

§  803.    Sufficient  authority. 

The  first  question  that  arises  under  the  above  provisions  of 
our  statute  is,  what  words  in  a  will  are  sufficient  to  authorize 
an  executor  or  administrator  to  sell  real  estate.  A  power  is 
defined  to  be  ''an  authority  whereby  the  person  is  enabled  to 
dispose  of  an  interest  in  real  estate  vested  in  himself  or 
another."-"  A  power  of  sale  may  be  conferred  by  will  with- 
out the  employment  of  any  technical  words.  Any  expression  of 
testator's  intention  to  confer  upon  the  designated  persons  the 
power  to  dispose  of  testator's  property  by  deed  of  conveyance 
will  be  sufficient.-^ 

A  power  of  sale  is  often  implied  with  directions  to  executors 
or  trustees  to  divide  property,  where  from  the  nature  of  the 
property  or  the  context  of  the  will  it  is  evident  that  a  division  in 
specie  is  either  impossible  or  is  not  contemplated  by  testator.-- 
An  implied  power  of  sale  does  not  extend  any  further  than  the 
necessity  from  which  the  power  arises.-^  A  power  of  sale  of 
realty  may  also  be  implied  from  a  direction  that  some  part  of 
testator's  property,  it  not  appearing  clearly  what,  was  to  be 
sold  and  paid  upon  testator's  debts,  where  the  debts  exceeded  the 
amount  of  the  personal  property.-*  And  where  the  devisees 
may  take  personalty  but  can  not  take  realty,  as  where  they  are 
non-resident  aliens,  it  was  held  that  a  general  power  of  sale  in 
the  executor  imposes  on  him  a  duty  to  convert  realty  into  money 
and  distribute.-^ 

19  §  10812  G.  C.  See  Woerner  od  22  stoflf  vs.  McGinn,  178  111.  46; 
Admin.,  §1023.  §716.  Mulligan   vs.   Lambe,    178   111.    130; 

20  Page  on  Wills,  821.  lasigi    vs.    lasigi.     161    Mass.    7.5; 

21  Page  on  Wills,  821,  with  col-  Thompkins  vs.  Miller,  —  N.  J.  Eq. 
lection  of  cases  conferring  power  to  — ;  27  Atl.  484;  Story  vs.  Palmer, 
sell.  46  N.  J.  Eq.  1 ;  Wilson  vs.  Wilson, 

It   seems   that   if   an   executor   is  46  N.  J.  Eq.  321;  Parker  vs.  Seeley, 

sole  legatee  and  he  makes  sale  in  a  56  N.  J.  Eq.  110;   Mimms  vs.  Delk, 

defective  proceeding,  the  sale  will  be  42  S.  C.  195. 

considered  valid  and  he  will  be  re-  23  Smith  vs.  Hall,  20  R.  I.  170. 

quired  to  account  for  the  proceeds  24  Sehroeder  vs.   Wilcox,  39   Neb. 

to  a  creditor.     Hocking  Valley  Ry.  136;  57  N.  W.  1031. 

vs.  White,  87  O.  S.  413.  Such    power    becomes    legally    in- 

If  the  will   confers  power  on  an  onerative    when    estate    is    settled, 

executor  and  such  power  is  personal,  Ward  vs.  Barrows,  2  O.  S.  241.     See 

it  can   not  be   exercised   by   an   ad-  Hunter  vs.  Yocum,  18  N.  P.  14;  27 

ministrator  with  the  will   annexed.  Dee   31. 

If  the  power  is  annexed  to  the  posi-  When  will  be  set  aside.     Pollock 

ticff,  and  part  of  the  trust,  it  may  vs.  Pine,  1  C.  D.  529;  2  O.  C.  C.  350. 

be.     Wcstwater  vs.  Guidner,   18  N.  25  Greenwood  vs.  Greenwood,   178 

P.  209.  111.  387;  citing  Hunt's  Appeal,  105 


§  804  DEVISE    TO    SELL  716 

A  power  of  sale  was  implied  from  a  devise  of  the  use  of 
certain  realty  "  until  the  sale  and  conveyance  of  said  premises 
by  my  executor  as  hereinafter  provided,"  there  being  no  sub- 
sequent provision."®  Power  in  an  executor  to  convert  land 
into  money  is  a  power  to  sell."^  A  devise  in  trust  "  to  invest, 
manage  and  control "  as  deemed  best  to  combine  safety  with 
productiveness,  gives  power  to  sell  real  estate  at  discretion.^* 

Investing  an  executor  with  "  full,  ample  and  complete  power 
to  dispose  in  such  manner  as  he  thinks  proper,"  gives  him 
power  both  to  convey  and  to  sell."^  The  direction  in  a  will 
that  property  be  sold  and  the  proceeds  divided  and  the  mere 
nomination  of  one  as  executor,  has  been  held  does  not  give 
such  executor  authority  to  sell.^**  Where  a  will  provided  that 
an  executrix  should  hold  in  trust  certain  property  and  collect 
rents  for  a  term  of  five  years,  and  after  the  expiration  of  five 
years  the  property  was  to  be  sold  and  divided,  there  was  an  im- 
plied power  for  the  executrix  to  sell  real  estate.^^  A  power  to 
sell  does  not  authorize  an  exchange.^^^ 

§804.    Title.    Devise  to  sell. 

A  mere  direction  to  an  executor  to  sell  lands  for  the  purpose 
of  paying  legacies,  or  making  distribution,  does  not  vest  any 
title  to  the  land  in  the  executor."-     To  cut  off  the  heir  at  law 

Pa.   St.   128;    Penfield  vs.  Tower,   1  If  the  only  disposition  of  real  es- 

N.  D.  216:  Cook  vs.  Cook,  20  N.  J.  tate  is  directing  the  executors  to  sell 

Eq.  375 ;   Frazer  vs.  United  Presby-  it  and  pay  the  proceeds  to  a  trustee 

terian  Church,  124  N.  Y.  479 ;  Lent  for   others,   the   legal   title  descends 

vs.   Howard,    89   N.   Y.    169;    In  re  lo    the   heirs   subject  to  the   power, 

Gantert,  136  N.  Y.  106.  but  the  right  of  possession  is  in  the 

26  Cahil  vs.  Russell,  140  N.  Y.  402.  executors   to   enable   them   to  carry 

27  Dean  vs.  Lowenstein,  6  C.  C.  out  the  will.  Elstner  vs.  Fife,  32 
587;  3  C.  D.  597;  Schaupp  vs.  Jones,  O.  S.  358. 

12  Dec.  197.  No  title  is  vested  in  executors  by 

28  Sargent  vs.  Sibley.  11  B.  177.  a  naked  power  to  sell  and  convey  to 

29  Steele  vs.  Worthington,  2  0.  pay  debts  if  necessary,  but  the  title 
182.  is  in  the  heirs-at-law  until  the  power 

30  Weymouth  vs.  Irwin,  5  N.  P.  is  executed.  Mimmons  vs.  Westfall, 
248;  7  Dec.  291.  33  0.  S.  213,  223. 

As     a    general     proposition,     the  Where   the   will   gave   the   widow 

above  mav  be  a  doubtful  authority,  power  to  sell,  if  necessary  to  main- 

but  see  case  as  to  its  application.  tain   herself   and   children,   and   she 

31  Lawton  vs.  Lawton,  5  X.  P.  exercised  the  power,  reciting  in  the 
441 ;  7  Dec.  493.  deed  that   it  was   necessary   to   sell 

31a  Fleishman  vs.  Shumaker,  2  C.  the  same  to  provide  maintenance  for 

C.    152;    1    C.    D.    415;    Taylor   vs.  herself  and  children,  the  burden   is 

Galloway,  1  0.  232.  upon  attacking  parties  to  show  that 

Where  two   are   named   executors  it    was    not    necessarv.      Haun    vs. 

and  one  declines  to  serve,  the  other  Block,   9    C.   C.    (N.S.)    328;    29  0. 

may  sell.    Id.  C.  C.  460. 

32  See  §  1192,  on  Interest  devised.  See  Hiatt  vs.   Simpson,  5  N.  P. 


717 


NAKED   POWER 


§804 


the  title  must  be  devised,  expressly  or  by  implication,  to  some 
other  person.  "Where  there  is  merely  a  naked  power  to  sell  the 
estate  and  distribute  the  proceeds,  it  is  not  necessary  that  the 
executor  should  have  the  title  to  the  estate  to  enable  him  fully 
to  carry  into  effect  the  intentions  of  the  testator.  In  that  case 
the  legal  title  to  the  estate  will  be  divested  the  moment  the  execu- 
tor executes  his  trust,  but  in  the  meantime,  and  until  a  sale  is 
made,  the  heir  is  entitled  to  the  profits.^^ 

The  doctrine  is  thus  stated  in  an  old  work:  **A  devise  of 
land  to  executors  to  sell  passes  the  interest  in  it,  but  a  devise  that 
executors  shall  sell  the  land,  or  that  lands  shall  be  sold  by  the 
executors,  gives  them  but  a  power,  and  it  seems  that  even  a 
devise  of  land  by  a  testator  to  be  sold  by  his  executors,  without 
words  giving  the  estate  to  them,  will  invest  them  with  a  power 
only,  and  not  give  them  an  interest. ' '  ^"^ 

Where  the  power  given  to  the  executor  is  not  merely  to  sell 
but  vests  a  discretion  in  the  executor  in  the  nature  of  a  trust, 
the  executor  is  entitled  to  possession.  ^^ 


(N.S.)  513;  18  Dec.  390,  for  con- 
struction of  will  where  life  tenancy 
was  given  without  disposing  of  the 
remainder. 

33  H.  devised  his  farm  to  his  wife 
for  the  period  of  12  years;  at  the 
end  of  12  years  he  directed:  "All  my 
real  estate  shall  be  sold  by  my  ex- 
ecutor, hereafter  named,  at  public 
sale,  and  the  proceeds  divided  in 
three  equal  shares,  as  follows:  To 
my  son  G.  H.,  one  share;  to  my 
daughter  C,  one  share;  to  the  chil- 
dren of  my  daughter  E.  A.  S.,  one 
share.  Held,  that  the  fee  to  the  real 
estate  vested  in  the  legatees  at  the 
death  of  the  testator  subject  to  be 
divested,  upon  the  exercise  of  the 
power  of  sale  resting  in  the  execu- 
tor. Barkman  vs.  Hain,  5  N.  P. 
508;  5  Dec.  474. 

3*  Sugden  on  Powers,  129. 

In  the  absence  of  a  will  a  dece- 
dent's land  is  not  distributed,  but 
descends  to  his  heirs:  nor,  wliere 
there  is  a  will,  are  such  lands  dis- 
tributed in  the  statutory  and  ordi- 
nary sense  of  the  term  distribution, 
but  such  distribution  is  made  ac- 
cording to  the  terms  of  the  will. 
Where  a  will  gives  to  the  executor 
a  mere  naked  power  to  sell  the  real 
estate,  neither  the  title  nor  the  right 
to  the  possession  of  such  real  estate 
passes  to  such  executor,  nor  is  he 


liable  for  the  rent  thereof.  Dunn 
vs.  Renick,  40  W.  Va.  349. 

Where  the  testator  vesta  in  hia 
widow  a  life  estate  in  his  lands, 
with  the  provision  that  within  a 
reasonable  time  after  the  death  of 
the  widow  certain  land  shall  be  sold 
the  executors  named  in  the  will  "nd 
the  proceeds  divided  equally  among 
his  five  children,  or  if  any  child 
should  decease  before  distribution 
the  share  of  such  child  or  children 
should  go  to  his  or  their  heirs,  so 
that  the  proceeds  of  said  lot  may 
vest  in  my  children  and  their  heirs 
forever,  the  power  given  to  the  ex- 
ecutors vests  the  fee  in  them. 
Knisely  vs.  Young,  33  O.  C.  C.  439. 

35  A  bequest  to  a  wife  of  all  prop- 
erty, real,  leasehold  and  personal,  is 
qualified  by  a  clause  directing  the 
executors  to  lease  certain  premises 
and  pay  ground  rents  and  taxes  and 
the  balance  to  the  wife,  and  shows 
that  her  interest  is  only  in  the  pro- 
ceeds thereof  and  that  the  title  is  in 
the  executors.  Boyd  vs.  Talbert,  12 
O.  212.  See  also  Lessees  vs.  Veach, 
17  0.  171;  Dabney  vs.  Manning,  3 
O.  321. 

On  devise  to  the  wife  for  life,  the 
executors  to  divide  the  remainder 
among  children,  the  fee  is  in  the 
executors  and  does  not  vest  in  the 


§  805  SALE  OF  REAL  ESTATE  UNDER   POWEE  718 

§  805.     Construction  of  power. 

The  power  to  sell  must  be  strictly  pursued  and  must  be  exe- 
cuted according  to  the  manifest  intent  of  the  testator,^®  and 
the  power  simply  to  sell  does  not  include  or  imply  a  power  to 
dispose  of  the  same  by  exchange  or  barter.^^  Likewise  the  pow- 
er to  sell  must  be  a  sale  for  cash,  yet  if  land  be  talcen  in  pay- 
ment and  received  by  the  estate,  authority  might  be  presumed.^' 
Neither  will  a  power  to  sell  be  held  to  include  a  power  to  mort- 
gage.'^ 

A  power  of  sale  for  a  specific  purpose,  such  as  for  the  pay- 
ment of  testator's  debts  and  for  the  support  of  the  donee  of  the 
power,  does  not  confer  a  general  power  of  sale  for  ail  purposes,*" 
Therefore,  a  power  of  sale  to  pay  debts  of  testator  can  not  be 
exercised  if  the  personal  property  undisposed  of  is  sufficient 
to  pay  the  debts. ''^  And  such  a  power  of  sale  can  not  be  exer- 
cised where  the  debts  of  testator  are  barred  by  the  Statute  of 
Limitations.*^ 

A  power  to  sell,  to  provide  for  the  support  of  testator's  widow 
in  her  lifetime,  and  for  her  burial,  ^vith  a  provision  that  the 
trustees  shall  divide  the  residue  of  the  proceeds,  does  not 
authorize  a  sale  for  the  mere  purpose  of  dividing  the  property.*^ 

Where  an  express  power  of  sale  is  givec,  but  the  purpose 
for  which  it  is  to  be  used  is  not  specified,  it  is  held  to  be  a  power 
of  sale  in  order  to  pay  the  proceeds  to  the  devisees  in  lieu  of 
the  devise.**  And,  therefore,  such  a  power  of  sale  is  not  re 
pugnant  to  the  devise  of  the  property  in  fee.*^-  Where  the  exec- 
children.     Sinton  vs.  Bovd,  19  0.  S.  §  801. 

30-35;    Roberts   vs.   Roberts,   1   Dis.  38  Webster  vs.  Harris,  16  0.  490. 

117;  Williams  vs.  Mead,  4  Gaz.  293;  39  Breuer  vs.  Haves,  21  B.  29:  22 

2  Dis.  604.     See  §  1190.  B.  144;   Fleiseliman  vs.  Shoemaker, 

36  Taylor  vs.  Galloway,  1  O.  233.       2  C.  C.  L52;  1  C.  D.  415. 

A    testamentary     provision    that  ^'^  Griffin  vs.  Griffin,  141  111.  373. 

"whenever   it  may  be  necessary  for  ^1  Sweenev  vs.  Warren,  127  X.  Y. 

the  welfare   of  my  wife   *   *   *   my  426;  24  Am'.  St.  Rep.  468;  Seeds  vs. 

said  executor  shall  have  power  and  Burke,  181  Pa.  St.  281. 

authority  to  give  a  good  and  valid  42  Hemphill  vs.  Pry,  183  Pa.  St. 

deed    or    other    evidence    of    title,"  593. 

does    not    authorize    the    widow    to  43  Hammond  vs.  Conkright,  47  N. 

consume  the  estate.     And  if  author-  J.  Eq.  447. 

ity  to  consume  exists,  it  is  an  au-  44  Ness    vs.    Davidson,    45    Minn, 

thoritv  t^iat  must  be  exercised  diir-  424. 

ing  the  lifetime  of  the  widow.     Mc-  45  Sneer  vs.  Stutz,  93  Ta.  62;  dis- 

Coy  vs.  McCarthy,  23  Dec.  176.  tinsuishing    Hallidav    vs.    Strieker, 

37  Cleveland  vs.  State  Bank,  16  78  la.  3^8;  Mel  1  en  Vs.  Mellen,  139 
0.  S.  236.  K  Y.  210. 


719  CONSTRUCTION  OF  POWER  §  80G 

utor  is  given  power  to  sell  to  pay  debts,  the  purchaser  need  not 
inquire  as  to  debts  unless  the  time  between  the  death  and  sale 
is  SO  long  that  it  may  l>e  presumed  that  the  debts  are  paid. 
Seven  years  will  not  raise  presumption." 

§  806.     Who  can  execute. 

If  only  one  of  those  named  as  executors  accept  and  qualifies 
he  may  execute  the  power  to  sell,  though  such  power  is  not 
coupled  with  an  interest.*^  But  if  all  are  living  and  acting, 
all  must  join  in  the  exercise  of  the  power/®  An  executor  di- 
rected to  sell  real  estate  and  pay  the  proceeds  to  a  trustee  can- 
not exercise  such  power  after  he  has  ceased  to  act  in  that 
capacity.*"  In  such  cases  the  administrator  with  the  will 
annexed  would  have  power  to  complete  the  sale.^° 

Before  the  enactment  of  sec.  5980,  R.  S.,  sec.  10590,  G.  C, 
(§  107),  it  was  held  that  the  power  given  to  an  executor  named 
in  a  will  to  sell  Innds  without  any  trust  being  attached,  could 
not  be  exercised  by  an  administrator  with  the  will  annexed.^^ 

Where  a  power  of  sale  is  clearly  given,  but  the  will  does  not 
provide  who  is  to  exercise  it,  the  omission  may  be  supplied  by 
construction.     Thus  if  the  context  of  the  will  shows  that  the 

A  testator,  whose  estate  consisted  estate   in   land,    in   the   proportions 

of  a  single  tract  of  land,  occupied  as  specified,   and  not  a  bequest  of  the 

a    homestead,    and    some    personal  proceeds    of    said    land.      That    the 

property,  devised  and  bequeathed  to  power  of  sale  vested  in  the  executor 

his  wife  one-half  of  all  his  real  and  was  a  naked  power  only,  not  a  power 

personal   estate,  and  the  other  half  coupled  with  an  interest  in  the  land, 

to  this  brothers  and  sisters,  and  the  and  could  only  be  exercised,  if  neces 

children   of   a   deceased   sister   nam-  sary,  for  the  purpose  of  making  dis- 

ing  each,  and  specifying  the  proper-  tribution  among  the  devisees.    Hoyt. 

tion  or  share  of  each.     He  appointed  vs.  Day,  32  0.  S.  101. 

an  executor,  and  authorized  and  em-  *^  Smith    vs.    Mclntire,    13    Fed., 

powered  him  to  sell  and  convey  "  all  Dec.   14. 

said  real  estate  to  the  purchaser  or  ■*'^  Taylor  vs.  Galloway,   1  0.  232. 

purchasers  thereof,   if  necessary  for  ^8  Fleischman  vs.  Shoemaker,  2  C. 

the     purpose     ot     distributing"     it."  C.  152;   1  C.  D.  415.     See  §  203. 

"  among   the   devisees    and    legatees  <»  Elstner  vs.  Fife,  32  O.  S.  358. 

aforesaid."     It  was   held,   that  this  eo  §   5930  E,.   S.,   §   107. 

was  a  devise  in  fee,  to  each  of  the  bi  Wills  vs.  Cowper,  2  O.  124. 
devisees  bv   name,   on   an  undivided 


§  807         SALE  OF  REAL  ESTATE  UNDER  POWER  720 

executors  are  to  receive  and  expend  the  proceeds  of  the  sale,  it  is 
held  that  the  power  of  sale  is  given  to  them.°^ 

A  power  of  sale  given  to  tlie  executor  is  substantially  com- 
plied with  by  a  sale  by  the  devisee  of  the  property  subject  to 
such  power  of  sale,  when  the  proceeds  of  the  sale  are  given  to 
the  executor  and  are  applied  by  him  to  the  purposes  set  forth 
in  the  will." 

The  question  as  to  the  right  of  the  successors  of  executors,  or 
trustees  to  exercise  the  power,  turns  entirely  upon  the  intention 
of  the  testator  as  manifested  in  the  will.  If  he  absolutely 
gives  a  power  of  sale,  and  leaves  the  executors  or  trustees  only 
the  ministerial  duty  of  carrying  this  mandatory  power  into  exe- 
cution, it  is  generally  held  that  the  successors  may  exercise  this 
power  without  any  suit  for  that  purpose,  or  without  the  author- 
ity of  the  Court." 

But  if  the  power  of  sale  conferred  is  not  absolutely  and 
•unconditionally,,  but  is  entirely  discretionary  with  the  person 
to  whom  it  is  given,  his  successors  in  office  can  not  exercise  it.'* 

§  807.     Expiration  of  power. 

The  power  given  to  executors  by  will  to  sell  and  convey  land, 
becomes  legally  inoperative  and  ceases  to  exist,  when  the  estate 
is  settled,  or  all  claims  against  it  are  presumptively  satisfied"* 

52  Rathbone  vs.  Hamilton,  4  App.  Pa.  St.  285 ;  Boutelle  vs.  Bank,  17 
D.   C.   475;    Van   Brocklin's   Estate,      R.   I.   781;   In  re  Blakely,   19   R.  I. 

74  la.  412;  Mandlebaum  vs.  McDon-  324;  Smith  vs.  Hall,  20  R.  I.  170; 
ell,  29  Mich.  78;  Ogle  vs.  Reynolds,       Bredenburg  vs.    Bardin,   36   S.   Car. 

75  Md.   145;   Portertield  vs.  Porter-       197. 

field,  85  Md.  663;  Belcher  vs.  Belch-  55  Chambers   vs.   Tulane,   9   N.  J. 

er,  38  N.  J.  Eq.   126;   Vaughan  vs.  Eq.    146;    Farrar  vs.  McCue,  89  N. 

Farmer,  90  N.  Car.  607;   Collier  vs.  Y.  139;  Page  on  Wills,  830. 

Grimesey,    36   0.    S.    17;    Wood   vs.  See  §10590  G.  C. 

Hammond,  16  R.  I.  98.  Railroads  vs.   Hutehins,  37  0.   S. 

53  Dean  vs.  Loewenstein,  6  C.  C.  282;  Sargent  vs.  Sibley,  11  Bull. 
587;  3  C.  D.  597.  177;    Allen   vs.    Globe   Ins.    Co.,    19 

54Meddis  vs.  Bull  (Ky.),  18  S.  Bull.  198. 
W.  6;  Bay  vs.  Posner,  78  Md.  42;  55a  See  Clark  vs.  Xeil,  27  Dec. 
26  Atl.  1084;  Venable  vs.  Mercantile  328,  for  interesting  discussion  hold- 
Trust  Co.,  74  Md.  187;  Schroeder  ing  that  the  trust  continues  and  the 
vs.  Wilcox,  39  Neb.  136;  5  N.  W.  executor  had  power  to  sell  without 
1031;  Potts  vs.  Breneman,  182  Pa.  order  of  court. 
St.  295;  O'Rourke  vs.  Sherwin,  156 


721 


EXPIRATION   OF   POWER 


§807 


by  lapse  of  time,  and  nO'  obiect  of  the  testator  remains  to  be 
attained.'" 

A  power  given  lor  a  specific  purpose  exists  until  the  ac- 
complishment of  such  purpose.'^  In  a  devise  to  executors  to 
sell  realty  and  to  divide  the  proceeds  in  four  shares,  one  of 
which  was  to  be  held  during  the  life  of  the  beneficiary,  the 
power  of  sale  existed  after  division  of  the  realty  into  four 
shares. 

A  power  of  sale  to  be  exercised  under  specific  contingencies 
can  not  be  exercised  unless  those  contingencies  exist.'*  Thus 
a  power  to  sell  under  direction  of  the  Probate  Judge  could 
not  be  exercised  by  a  sale  without  such,  direction.'^  And 
where  power  of  sale  of  certain  described  property  under  spe- 
cific contingencies  is  given,  it  is  not  enlarged  by  a  subsequent 
general  power  of  sale  of  testator's  property.®**  When  the  con- 
tingencies have  been  complied  with,-  however,  the  power  of  sale 
may  be  exercised.^^ 


5-5  Ward  vs.  Barrows,  2  O.  S.  242. 

57  Johns  Hopkins  University  vs. 
Middleton,  76  Md.  186.  (A  devise 
in  trust  for  testator's  children  to 
terminate  when  each  should  reach 
the  age  of  thirty,  wiih  power  of  sale 
to  make  a  division  of  the  property 
between  the  children,  was  held  to 
confer  a  power  which  lasted  after 
the  first  child  reached  the  age  of 
thirty.)  Hallum  vs.  Silliman,  78 
Tex.  347. 

(A  direction  that,  upon  the  ar- 
rival of  the  eldest  son  at  majority, 
the  balance  of  the  property  left  after 
the  exercise  of  a  power  of  sale,  the 
proceeds  to  be  devoted  to  the  sup- 
port and  education  of  the  children, 
should  be  divided,  was  held  to  cre- 
ate a  power  of  sale  for  the  educa- 
tion of  the  minor  children  which  did 
not  terminate  with  the  arrival  of 
the  eldest  son  at  majority.) 

58  Petit  vs.  Flint,  etc.,  Ry.  Co., 
114  Mich.  362.  (A  power  to  sell 
land  after  it  was  platted  does  not 


authorize  the  exercise  of  sale  before 
it  is  platted.)  Mersman  vs.  Mers- 
man,  136  Mo.  244.  (A  power  to  sell 
a  homestead  when  none  of  testator's 
unmarried  children  desire  to  reside 
there,  does  not  authorize  a  sale  to 
reinvest  the  proceeds  in  another 
dwelling  to  be  used  as  a  homestead 
by  such  children.) 

59  Bates  vs.  Leonard,  99  Mich. 
296-;  58  N.  W.  311. 

60  Petit  vs.  Flint,  etc.,  Ry.  Co., 
114  Mich.  362.  (A  power  to  sell 
certain  real  estate  when  surveyed 
and  platted  can  not  be  exercised  be- 
fore  survey. ) 

So  Rice  vs.  Tavernier,  8  Minn. 
248;  Mersman  vs.  Mersman,  136  Mo. 
244. 

61  Harp  vs.  Wallin,  93  Ga.  811. 
(A  power  to  sell  lands  in  case  de- 
visee saw  fit  to  send  testator's  widow 
to  an  insane  asylum  may  be  exer- 
cised validly,  and  will  pass  good 
title  if  in  good  faith  when  the  de- 
visee    decides     to     send     testator's 


§  808  SALE   OF   REAL   ESTATE    UNDER   POWER  Y22 

A  power  of  sale  in  a  certain  time  is  not  destroyed  by  failure 
to  exercise  it  within  the  time  limited,*'^  Where  a  power  of  sale 
is  given  solely  as  a  means  of  accomplishing  some  purpose  which 
the  law  will  not  permit,  the  power  itself  is  invalid.^^  However, 
an  absolute  power  of  sale,  given,  without  any  reference  to  its 
purpose  is  not  avoided  by  the  fact  that  the  disposition  of  its 
proceeds  may  be  in  part  invalid.®*  The  attachment  of  the  share 
of  the  devisee  does  not  defeat  the  right  of  the  executor  to  sell.*' 
Neither  does  the  sale  of  a  share  by  a  devisee  defeat  the  right 
of  the  executor  to  sell.'^'^ 

§  808.     Control  of  court  over  the  execution  of  the  power  of  sale. 

It  is  a  very  common  method  for  testators  to  provide  that 
executors  may  sell  the  real  estate  upon  such  terms  and  at  such 
time  and  in  such  a  manner  as  they  may  deem  best.  Questions 
sometimes  arise  as  to  what  control  the.  Court  has  over  the  exe- 
cution of  such  a  power.  It  is  said  that  where  a  power  is  given 
to  trustees  to  do  or  not  to  do  a  particular  thing,  at  their  dis- 
cretion, the  Court  has  no  jurisdiction  to  lay  a  command  or  pro- 
hibition upon  the  trustees  as  to  the  exercise  of  that  power, 
provided  their  conduct  be  bona  fide  and  their  determination  is 
not  influenced  by  improper  motives.^^ 

But  where  tlie  power  is  accompanied  with  a  duty,  the  Court 
will  compel  the  execution  of  it.^^  And  it  has  been  held  where  p 
sale  is  directed,  but  the  J:ime  and  manner  of  the  same  is 
reposed  in  the   discretion  of  executors,   such   executors   must 

widow   to    an   ayslum   and   gets   an  the  power  of  sale  was  void  as  given 

order    adjudging    her    insane,    even  in  order  to  carry  out  a  scheme  which 

though    she    may    not    actually    be  involved     an    invalid     restraint    of 

sent.)  alienation.      Huidekoper  vs.    Perry, 

62Fahnestock  vs.  Fahnestock,  152  14  C.  C.  68;  7  C.  P.  326. 

Pa.  St.  56;  Marsh  vs.  Love,  42  N.  J.  64  Pearson's  Estate,   98   Cal.   602; 

Eq    112,   Hale  vs.  Hale,   137  Mass.  Page  on  Wills,  826. 

168.  65  Smyth   vs.   Anderson,,   31   O.   S. 

63  In  re  Piercy   ( 1898 ) ,  1  Ch.  565 ;  144. 

67  L.  J.  Ch.  N.  S.  297 ;   78  Law  T.  66  Hoyt  vs.  Day,  32  0.  S.  101. 

Rep.  277;  Dana  vs.  IMurray,  122  N.  67  Lewin  on  Trusts,  Page  773. 

Y.  604 ;  Petit  vs.  Flint,  etc.,  Ry.  Co.,  68  Pomeroy's  Equity,   §   835. 
114  Mich.  3G2.      (In  the  above  cases 


728  COWTKOL  OF  COURT  §  809 

exercise  such   discretion  with   fidelity   to  the  interest  of  the 
beneficiaries  and  in  a  reasonable  and  prudent  manner.®" 

There  is  no  doubt  but  that  a  Probate  Court  has  jurisdiction 
to  entertain  a  complaint  by  a  party  interested,  but  when  it 
should  be  exercised,  is  another  question/"  Creditors  undoubt- 
edly have  a  right  to  have  real  estate  sold  in  a  reasonably  short 
time  where  the  personal  property  will  not  pay  their  debts,  and 
no  doubt  tlie  Court  would  at  all  times  apply  the  rule  made  by 
statute  for  administrators,  that  as  soon  as  it  is  ascertained  that 
the  personalty  is  insufficient  to  pay  the  debts  action  shall  be 
had  for  the  purpose  of  selling  the  real  estateJ^  But  when  there 
is  no  necessity  for  selling  real  estate  to  pay  debts,  and  the  only 
parties  interested  are  beneficiaries  under  the  will,  the  Court 
would  be  slow  in  making  an  order  controlling  or  directing  the 
exercise  of  what  appears  to  be  a  discretionary  power.  In  such 
eases  the  court  would  look  to  the  intention  of  the  testator  in 
creating  the  power.  So  long  as  there  was  no  immediate  danger 
of  defeating  the  right  of  the  beneficiaries  the  Court  would 
not  interfere  in  the  discretion  of  the  executor.  But  as  a  gen- 
eral rule  the  testator  means  and  intends  that  his  real  estate 
shall  be  sold  in  a  reasonably  short  time  and  in  a  reasonable 
and  proper  manner.^^ 

§  809.     Form   of  deed  of  executor  or  administrator  with  will 
annexed. 

Know  all  Men  by  these  Presents: 

That,  whereas,  on  the day  of 190.  .,  the  last 

will  and  testament  of ,  deceased,  was  admitted  to 

Probate  and   record   in   the   Probate   Court  of County, 

Ohio,  and  on  the day  of 190 .  . ,    

w duly   appointed   and   qualified   as 

of  said  decedent  by  said  Probate  Court,   and now  the  lawful 

of  the  estate  of  said  testat 

That  said  last  will  and  testament,  among  other  provisions,  contained  the 
following,  to-wit: 

And,  whereas,  the  said  testat....  died  seized  in  fee  simple  of  tlie  real 
estate  hereinafter  described,  and   in  order  to  carry  out  tlie  provisions  of 

said  last  will  and  testament  and   it  is  necessary  to  sell 

said  real  estate. 

69  Corrington   vs.    Corrington,    16  7i  §  10762  G.  C. 

N.  E.  Pep.  252.  72  Reynold's  Estate,  2  Dec.   11;   3 

70  See  Gates   vs.  Pond,   12   C.   C,      N.  P.  292. 
66;  5  C.  D.  297. 


§  810         SALE  OF  REAL  ESTATE  UNDER  POWER  724 

Now,  therefore, as as  aforesaid,  in 

pursuance  to  the  said  pro\-isions  of  the  said  last  will  and  testament  of 

said ,  deceased,  and  by  virtue  of  the  statute  in  such 

cases  made  and  provided,  and  of  the  powers  vested  in 

and  for  and  in  consideration  of  the  premises,  and  the  sum  of 

dollars    {$ ),  paid,  or  secured  to  be  paid  to by 

said the  receipt  whereof  is  hereby  acknowledged,  do 

hereby  grant,  bargain,  sell  and  convey  to  the  said 

.  .h.  .  .  .heirs  and  assigns  forever,  the  following  real  estate,  situated  in  the 

county   of in   the   State   of and   in 

the and  bounded  and  described  as  follows : 

To  have  and  to  hold  said  premises,  with  all  the  privileges  and  appurte- 
nances   thereto    belonging,    to    the    said h.  .  .  .heirs    and 

assigns  forever,  as  fully  and  completely  as ,  the  said 

as  such by  virtue  of  said  last  will  and  testament,  and  of 

the  statute  made  and  provided  for  such  cases,  might  and  should  sell  and 
convey  the  same. 

In   Witness  Whereof,     The  said as  such 

ha  ...  .  hereunto  set .  .  h .  .  .  .  hand .  . ,  this day 

of A.  D.  190.. 

Signed  and  acknowledged  in  presence  of 


of    

The  State  of  Ohio, County,  ss. 

Be  it  remembered,  that  on  this day  of 190 . . 

before  me,  the  subscriber,  a in  and  for  said  coun- 
ty, personally  came  the  above  named as 

of the  grantor .  .  in  the  foregoing  deed,  and  acknowl- 
edged the  signing  of  the  same  to  be.  .h.  .  .  .voluntary  act  and  deed  as  such 
for  the  uses  and  purposes  therein  mentioned. 

In  Testimony  Whereof,  I  have  hereunto  subscribed  my  name  and  affixed 
my  official  seal  on  the  day  and  year  last  aforesaid. 


§  810.     Sale  and  distribution. 

The  same  law  applicable  to  tlie  fidelity  required  of  an  execu- 
tor or  administrator  in  the  sale  of  real  estate,  under  an  order  of 
the  Court,  is  applicable  here.  Except  that,  perhaps,  where 
oroad  discretionary  power  is  conferred  on  the  executor  by  will, 
the  Court  might  excuse  an  error  of  judgment  where  it  was  not 
so  great  as  to  impute  a  gross  degree  of  negligence,  or  manifest 
fraud.  As  the  sale  is  made  without  confirmation  of  the  Court, 
therefore,  in  order  that  interested  parties  may  be  fully  informed 
it  has  been  held  that  in  the  executor's  account,  where  different 
tracts  have  been  sold,  it  must  be  so  stated,  separately,  the  price 
received  for  each  tract,  as  well  as  the  name  of  the  purchaser 
given." 

73  In  re  Williamson,  4  N.  P.  282 :  7  Dee.  24. 


725  SALE  AND  DISTEIBUTION  §  810 

The  Probate  Court  has  full  authority  upon  exceptions  being 
filed  to  an  account  to  enter  into  the  question  as  to  the  proper 
exercise  of  a  testamentary  power  to  sell  lands  for  the  payment 
of  debts.  If  the  executor  in  bad  faith  sells  them  for  a  price 
that  is  manifestly  less  than  their  true  value,  he  should,  on  ex- 
ception to  his  account  in  the  Probate  Court,  be  charged  with  the 
difference  between  such  inadequate  price  and  the  true  value  of 
the  lands/*  An  administrator's  sale  of  real  estate  by  order  of 
the  Probate  Court,  is  a  judicial  sale/®  But  a  sale  under  a 
power  in  the  will  is  not  strictly  a  judicial  sale/® 

It  would  seem,  therefore,  that  when  an  executor  sells  by  vir- 
tue of  the  power  in  the  will,  the  same  rule  is  applied  as  to  a  pri- 
vate individual.  In  the  distribution  of  the  proceeds  of  a  sale, 
the  executor  should  follow  the  rule  laid  down  for  a  sale  made 
under  an  order  of  Court, ''^  so  far  as  debts  and  expenses  of  the 
estate  is  concerned,  unless  the  will  provides  otherwise.  As  to 
the  remainder,  the  same  must  be  distributed  in  accordance  with 
the  provisions  of  tlie  will ;  and  if  no  specific  provisions  are 
made,  the  ordinary  rules  applicable  to  descent  and  distribution 
should  be  followed.  If  the  executor  has  doubts  as  to  how  it 
should  be  distributed,  he  may  himself  bring  an  action  in  the 
Court  of  Common  Pleas  to  have  the  will  construed,^®  or  may 
permit  a  suit  to  be  brought  against  him  to  enforce  distribution 
as  provided  for  administrators.®** 

74  Brown  vs.  Reed,  56  0.  S.  264;  of  taxes;  for  land  sold  at  a  judicial 
10  C.  C.  44;  6  C.  D.  15.  sale,  all   taxes   that  are  on  the  tax 

75  Noland  vs.   Barrett,    122   Mass.  duplicate  October  first,  must  be  paid 
189 ;  Maul  vs.  Hellman.  39  Neb.  322.  out    of    the    proceeds    of    the    sale 

76Woerner   on   Admin.    1022,   cit-  Hoglen    vs.    Cohan,    30    0.    S.    43G; 

ing  in  re  Pearsons,  102  Cal.  574.  Ketcham   vs.    Fitch,    13   O.   S.    201; 

The  dividing  line  seems  to  be  in  Creps  vs.  Baird,  3  0.  S.  278. 

such  cases,  that  if  the  Court  must  See  §§  5635-6  G.  C. 

confirm  the  sale  it  is  judicial,  if  the  77  See  §  10809  G.  C,  S  903. 

Court  is  not  required  to  pass  upon  79  §§  10857-8  G.  C.     §  33. 

such    sale   then    it    is    not   judicial.  so  See   §  755,  et  seq. 

This    might    be    important    in    our  See  also  §§492,  493,  as  to  duties 

State   in   reference   to   the   payment  in    sale    of    property. 


§  811  SALE  OF  REAX  ESTATE  726 


CHAPTER  XLYI. 

REAL  ESTATE.     SALE  BY  COURT  PROCEEDINGS. 

§811  Direction  of  will.     Or  statute        §822  When  real  estate  fraudulently 

must  be  followed.  conveyed  liable  to  sale. 

§812  Nature  of  the  action.  §823  How   executor   or    administra- 

§  813  In    what    Court   action    to    be  tor  to  get  possession  of  land 

brought.  fraudulently     conveyed     and 

§  814  Power  of   the   Court.  avoid  such  conveyance. 

§  814a  May  release  lien.  §  824  Proceedings  Avhere  property  is 

!  ^V'  ^",^*"'"^  ''^  PO"'^!;-  ,  fraudulently  conveyed. 

§816   \\  hen  action  to  be  brousrht.  sot   n  a-^-        ^  i       r  -x  ui 

§817  Limitation  as  to  the  time  of  §  ^"^  Petition  for  sale  of  equitable 

bringing.  interest. 

§  818  For  what  the  action  may  be  §  825a  The  order  and  sale. 

brought.  §  826  Persons    interested    may    give 
§  819  For  the  payment  of  legacies.  bond  and  prevent  sale. 

§  820  What  may"  be  sold.  §827  Comments. 

§  821  When  can  not  be  sold.  §  828  Form  of  bond. 

§  811.     Direction  of  will.     Or  statute  must  be  followed. 

In  the  previous  chapter  our  attention  was  addressed  more 
particularly  to  the  sale  of  real  estate,  by  virtue  of  a  power  in 
the  will  of  a  decedent.  It  will  be  the  purpose  of  this  and  subse- 
quent chapters  to  treat  of  the  sale  by  virtue  of  a  Court  proceed- 
ings. As  we  have  had  an  occasion  to  say  before,  but  which  is 
a  matter  we  think  will  bear  repetition,  an  administrator  or  exec- 
utor has  no  power  to  sell  real  estate  except  such  as  is  given  to 
him  by  will  or  by  statute.  It,  therefore,  becomes  very  essen- 
tial that  all  the  requirements  of  the  statute  be  complied  ^^'4th.^ 

In  reference  to  the  importance  of  the  exercise  of  prudence 
and  care  in  such  matters,  I  cannot  do  better  than  to  quote  from 
Judge  Woemer's  most  excellent  work.  "  While  it  is  manifest- 
ly the  policy  of  the  law  to  uphold  judicial  sales  made  without 
fraud,  so  as  not  to  deter  purchasers  by  encouraging  the  appre- 

1  Such   power   can   not  be  set  up  Prior  to  1795  our  courts   Iiad  no 

in   a    Court   of    Equity.      LieOy    vs.  power  to  order  a  sale  of  deceuents 

Parks,  4  O.  469.  property,     nor     between     1805    and 

Statute  strictly  construed.     Kum-  18U8.     At  all  otiier  times  there  has 

mer  vs.  Lapp,  1  JN.  P.    (JN.S.)   209;  been    such    power.      Walkers    Am. 

13  Dec.  491.  Law,  460,  note. 


727  STATUTE  MUST  BE  FOLLOWED  §  811 

hension  that  their  substantial  rights  and  interests  may  be 
sacrificed  to  technical  considerations, —  while  Courts  will  go 
very  far  to  insure  protection  to  innocent  purchasers  in  collateral 
proceedings,  even  in  cases  of  gross  error  arising  out  of  blunders 
or  carelessness  of  Probate  Courts  or  their  officers, — it  is  obvious- 
ly of  the  gravest  importance  that  every  step  taken  in  subject- 
ing the  real  estate  to  sale  for  the  payment  of  debts  be  as  nearly 
as  possible  in  literal  compliance  with  the  method  pointed  out 
by  the  statute  upon  which  the  proceeding  is  based.  Where 
particular  forms  are  ]X)inted  out  for  the  execution  of  a  power, 
however  immaterial  they  may  appear  in  themselves,  these  forms 
are  conditions  that  cannot  be  dispensed  with.  It  is  a  perni- 
cious error,  fiiiitful  of  trouble  and  mischief,  to  suppose  that 
any  vague,  inartificial  statement  of  circumstances  is  sufficient  to 
authorize  an  order  for  the  sale  of  real  estate,  if  the  applicant 
and  the  judge  both  know  all  about  the  matter ;  or  that  the  good 
faith  and  honesty  with  which  the  application  is  made  are  a 
sufficient  safeguard  against  ruinous  complications  and  litigation 
that  may  follow  an  oversight  or  mistake.  The  anxiety  of 
Courts  to  vindicate  the  validity  of  judicial  sales  should  not  be 
relied  on  as  a  pretext  for  the'  carelessness  of  executors  and  ad- 
ministrators, or  the  supineness  of  Probate  Courts,  in  the  sev- 
eral steps  necessary  for  the  sale  of  real  estate.  Even  if  the  sale 
should  be  held  good  as  against  a  collateral  attack, —  and  it  is 
distressingly  uncertain  to  what  extent  the  trial,  and  even  ap- 
pellate, Courts  will  go  in  that  direction, —  yet  many  acts  of 
commission  or  omission  which  will  not  be  allowed  to  invalidate 
the  transaction  in  a  collateral  investigation,  may  in  a  direct 
proceeding  subject  the  administrator  to  serious  liability,  the 
estate  to  loss  and  delay,  and  all  parties  concerned  to  vexatious 
and  oftentimes  ruinous  litigation.  No  part  of  an  adminis- 
trator's duty  claims  more  careful  attention,  and  demands  more 
imperatively  the  advice  and  assistance  of  a  competent  profession- 
al man,  than  his  relations  to  and  duties  concerning  the  real  es- 
tate of  the  deceased."  ^ 

See  Goforth  vs.  Longworth,  4  O.      Miami  Exp.  Co.  vs.  Halley,  7  O.  11 
129;  Newcomb  vs.  Smith,  5  O.  447;        (pt.   1). 

2  Woerner  on  Admin.  1021. 


§  812  SALE  OP  REAL  ESTATE  728 

§  812.     Nature   of  the  action. 

Previous  to  the  adoption  of  our  present  Code,  an  action  to  sell 
real  estate  was  entirely  a  proceeding  in  rem.  And  minor  de- 
fendants not  served  with  process,  but  for  whom  a  guardian  ad 
litem  was  appointed  and  answered,  are  bound  by  the  decree,  as 
the  statute  required  them  to  be  made  parties  but  did  not  pre- 
scribe what  notice  should  be  given.^ 

But  whatever  the  former  practice  or  law  may  have  been, 
it  is  now  settled  that  the  action  brought  by  an  administrator 
or  executor  to  sell  real  estate  to  pay  debts  is  a  civil  action,  adver- 
sary in  its  character,^*  whether  the  same  be  prosecuted  in  the 
Court  of  Common  Pleas  or  the  Probate  Court ;  and  the  Probate 
Court  has  jurisdiction  to  try  any  question  of  fact  arising  in  such 
action,  and  to  afford  the  parties  a  trial  by  jury  when  the  nature 
of  the  issues  entitle  them  to  a  jury  trial  or  render  it  appro- 
priate.'* In  this  case  it  was  further  said,  that  the  proper 
practice  in  such  cases  requires  that  all  persons  claiming  an 
interest  in,  or  a  lien  on  the  land,  be  brought  before  the  court 
and  all  questions  affecting  the  title  adjudicated  and  settled,  in 
order  that  the  purchaser  may  buy  with  safety  and  the  prop- 
erty may  bring  its  fair  value. 

The  case  of  Doan  vs.  Biteley  "  was  a  pioneer  in  its  line  and 
settled  decisively  and  beyond  question  the  jurisdiction  of  the 
Probate  Court  in  such  proceedings. 

However,  the  action  can  not  be  made  to  include  the  recovery  of 
the  possession  of  real  estate  conveyed  by  a  decedent,  with  the 
intent  to  defraud  his  creditors.  Such  an  action  must  be  brought 
in  the  Court  of  Common  Pleas  in  accordance  with  sees.  10777 
and  10778  of  the  General  Code.« 

3  Robb  vs.  Irwin,  15  O.  680;  Sliel-  deceased  and  on  her  death  an  ad- 
don vs.  Newton,  3  0.  S.  4!)4;  Sneve-  ministrator  de  bonis  non  with  the 
ley  vs.  Lowe,  18  0.  368:  Benson  vs.  will  annexed  was  appointed,  who 
Cille3%  8  0.  S.  604;  Biggs  vs.  Bickel,  filed  a  petition  to  sell  real  estate,  it 
12  O.  S.  49.  was    held   this    was    not   the    proper 

3*  Holloway  vs.   Stuart,    1!)   O.   S.  proceeding.       The     creditor     should 

472.  Iiave  compelled  the  administrator  of 

The  personal  representative  is  the  the  deceased  executor  to  file  an  ac- 

only  person  authorized  to  maintain  count    and    therein    account    for   the 

an  action  to  sell  the  real  estate  of  a  r'-nceeds  of  snlc.     TTockintr  Valley  Ky. 

decedent  for  the  pavment  of  debts.  Co.  vs.  White.  87  O.  C.  413. 

Pvheinfurt  vs.  Hurr,  98  O.  S.  439.     A  4  Doan  vs.   Biteley.  49  O.   S.   5f^S. 

creditor     can     not     maintain     such  ^  49  0.  S.  588 

action.  6  Donev  vs.  Clark,  8  C.  C.  163:   4 

Where  a  person  was  executor  and  C.  D.  388:  55  O.  S.  294;  Spoors  vs. 

sole  legatee  and  did  not  file  an  ac-  Coen,  4i  O    R.  497. 

count,   but   sold   the   real   estate   of  See  §  1619. 


729  JURISDICTION   OP   COURT  §  813 

§  813.  In  what  court  action  to  be  brought.  ' '  To  obtain 
such  authority,  the  executor  or  administrator  shall  commence  a 
civil  action  in  the  probate  or  common  pleas  court  of  either  the 
county  in  which  the  real  estate  of  the  deceased,  or  a  part  thereof, 
is  situated,  or  of  the  county  in  which  his  letters  testamentary 
or  of  administration  were  issued."     [R.  S.  §  6137,]^ 

In  unequivocal  language,  the  above  section  makes  the  Probate 
Court  and  the  Court  of  Common  Pleas,  courts  of  concurrent  ju- 
risdiction in  the  sale  of  real  estate.  This  is  also  specifically  de- 
clared by  sec.  10493  G.  C.  (§  28).  It  is  a  well  settled  principle 
of  law  that  where  Courts  have  concurrent  jurisdiction  the  Court 
first  acquiring  jurisdiction  will  retain  it  to  the  exclusion  of  the 
other.  It  has  also  been  held  that  where  Courts  have  concurrent 
jurisdiction,  that  that  Court  will  retain  jurisdiction  which  is 
best  able  to  determine  the  matters  arising  in  the  case;  and  that 
therefore  where  a  mortgage  lien  holder  brought  an  action  in  tlie 
Court  of  Common  Pleas  to  foreclose  his  mortgage,  making  the 
heirs,  but  not  the  administrator,  a  party,  and  thereafter  the 
administrator  brought  suit  in  tlie  Probate  Court,  it  was  held 
that  the  Probate  Court  would  retain  jurisdiction. * 

The  action  may  be  brought  in  the  county  in  which  the  real  es- 
tate is  located,  or  in  the  county  in  which  the  letters  of  adminis- 
tration were  issued.  The  better  practice  seems  to  be  that  if  the 
land  is  located  in  the  county  in  which  the  letters  of  administra- 
tion have  been  granted,  the  proceedings  to  sell  real  estate  should 
be  brought  in  the  Probate  Court,  as  all  otlier  matters  of  admin- 
istration are  in  such  court.  If  the  proceedings  are  brought  in  a 
county  other  than  that  which  granted  letters  of  administration, 
it  might  be  better  to  bring  the  proceedings  in  the  Court  of 
Common  Pleas,  although  the  statute  is  broad  enough  to  permit 
the  action  to  be  brought  in  the  Probate  Court. 

7  §  10775  G.  C.  not  being  bound,  lie  could  bring  the 

8  Batenian    vs.    Morris,    4   N.    P,      action. 

397;  7  Dec.  287.  An  action  can  not  be  brought  in 

The  doctrine  of  this  case  is  criti-  the   Court  of  Common  Pleas  if  the 

cised   by   Kinkead    in   his   work   on  records  of  the  Probate  Court  show 

court  practice,  page  86.     But  it  cer-  that   the   administrator    lias   filed   a 

tainly  sooms  that  the  administrator  final     account    which     disclosed     no 

was  not  bound  by  an  action  to  which  debts.     Hunter  vs.  Yocum,  18  N.  P. 

he  had  not  been  made  a  party;  and  14. 


§  814  SALE  OF  REAL  ESTATE  730 

§814.  Power  of  the  Court.  "The  court  in  which  such 
action  is  pending,  may  determine  the  equities  between  the  par- 
ties and  the  priorities  of  lien  of  the  several  lien-holders  on  such 
real  estate,  and  order  a  distribution  of  the  money  arising  from 
its  sale,  according  to  the  respective  equities  and  priorities  of 
lien  as  found  by  the  court."     [R.  S.  §  6145.]^ 

§  814a.  Release  of  lien.  "When  such  action  is  determined 
by  the  probate  court,  the  judge  thereof  shall  make  the  neces- 
sary order  for  an  entry  of  release  and  satisfaction  of  all  mort- 
gages and  other  liens  upon  such  real  estate,  and  enter  such 
release  and  satisfaction,  together  with  a  memorandum  of  the 
title  of  the  case,  the  character  of  the  proceedings  and  the  volume 
and  page  of  record  where  recorded,  upon  the  record  of  such 
mortgage,  judgment  or  other  lien  in  the  office  where  they  appear 
as  matter  of  record.  He  shall  tax  in  his  cost  bill  the  fee  pro- 
vided by  law  for  entering  such  release  and  satisfaction,  and 
also  a  fee  of  twenty-five  cents  to  himself  for  such  entry.  This 
section  and  the  next  preceding  section  shall  applv  to  proceedings 
by  guardians,  assignees,  and  trustees  to  sell  lands  to  pay 
debts."     [R.  S.  §6145.]'-^* 

§  815.     Nature  of  power. 

The  above  section  confers  a  complete  jurisdiction  upon  the 
Probate  Court  to  pass  upon  any  equity  which  might  arise  in  the 
case.^°  As  was  well  said  in  another  case/^  "  The  policy  of  our 
Legislature  has  long  been  opposed  to  the  necessity  of  a  resort 
to  different  jurisdictions  and  multiplicity  of  actions,  in  order 
to  obtain  the  full  and  final  relief  to  which  parties  may  be  en- 
titled, and  in  favor  of  clothing  tribunals  once  acquiring  control 
of  the  subject-matter  of  a  controversy,  and  of  the  parties,  with 
jurisdiction,  if  capable  of  exercising  it,  to  determine  the  ulti- 
mate rights  of  the  parties,  and  administer  to  them  their  com- 
plete remedy.  The  policy  is  a  commendable  one,  with  which 
the  statute  making  actions  like  that  under  consideration,  civil 

9  §  10783  G.  C.     See  §  895,  Entry,      miiiable.     Seitz,  In  re,  11  C.  C.  (nS 
confirmation  of  sale,  etc.  S.)  204:  31  0.  C.  C.  32. 

9*  §  10784   G.   C.  The  Court  of  Common  Pleas  can 

10  Borntrager  vs.  Borntrager,  3  not  fix  costs  of  administration  and 
Bull.  891.  matters     over    which     the     Probate 

11  Doan  vs.  Bitelev,  49  O.  S.  594;  Court  has  exclusive  jurisdiction. 
Field  vs.  Bloch,  4  C.  C.  (N.S.)  216;  Field  vs.  Bloch,  4  C.  C.  (N.S.)  216; 
26  C.  C.  113.  26  C.  C.  113. 

Lien  judgment  against  heir  deter- 


731  NATURE  OF   POWER  §  815 

actions,  and  giving  the  Probate  Court  co-ordinate  jurisdiction 
with,  the  Court  of  Common  Pleas,  is  in  harmony." 

But  the  fact  that  the  action  is  a  civil  action  and  that  the 
Court  has  power  to  try  every  question  at  law  that  may  arise  and 
that  sec.  10783-4,  G.  C,  authorizes  it  to  determine  every  equity 
between  the  parties,  does  not  yet  place  the  Probate  Court  in  all 
cases  on  a  plane  with  the  Court,  of  Common  Pleas;  and  there 
may  actions  arise  in  which  the  Probate  Court  for  want  of  a 
general  equity  power  would  be  unable  to  give  relief.  Tlius 
if  two.  parties  were  tenants  in  common  of  a  certain  tract  of 
real  estate  and  gave  a  joint  mortgage  on  such  tract,  and  one  of 
such  joint  tenants  would  die,  it  is  very  doubtful  whether  the 
administrator  of  the  deceased  joint  tenant  could  procure  ade- 
quate relief  to  all  parties  in  the  Probate  Court.  In  such  cases 
the  mortgagees'  rights  would  demand  a  sale  of  the  living  ten- 
ant-in-common's  share;  and  a  foreclosure  of  a  mortgage  is  not 
within  the  power  of  the  Probate  Court.  There  has  been  some 
contention  that  the  same  rule  should  be  applied  to  the  sale  of 
land  by  an  administrator  as  by  an  assignee.  But  the  Courts 
hold  that  such  is  not  the  case.^^ 

It  is  not  within  the  power  of  a  Probate  Court  to  order  land 
sold  subject  to  a  mortgage,"  the  purpose  of  the  statute  being 
to  convey  land  to  the  purchaser  free  from  all  liens  or  claims; 
and  therefore  the  liens  are  transferred  by  the  action  from  the 
land  to  the  fund.^^  The  title  may  be  quieted  in  an  action 
brought  by  an  administrator  or  executor.^^     It  has  been  held  in 

12  The    question    in    this    case    is  lie  policy,  if  no  other  consideration, 

whether,  where  a  person  executes  a  requires  that  a  construction  so  long 

mortgage   on   real    estate   and   dies,  accepted   and    acquiesced    in    should 

the  mortgagee  can  bring  and  main-  not  be   distributed.      Bank   vs.   Ide, 

tain  a  suit,  a  foreclosure  suit,  in  the  20  C.  C.  665:  10  C.  D.  800. 

Common    Pleas,    making    heirs,    ad-  13  Stone  vs.  Strong,  42  0.  S.  53. 

ministrators,     executors     and     lien-  l*  Bank  vs.  Carpenter,  7  0.  21. 

holders   defendants,  or  is  compelled  15  Doan  vs.  Biteley,  49  O.  P.  588. 

to  work  out  his  rights  through  the  Partition  of  deceased's  real  estate 

executor    or    administrator    in    the  can  not  be  had  within  one  year  after 

Probate  Court.     The  Circuit  Court  his   death  luiless   it  is  averred   and 

holds  that  he  can  bring  and  main-  proved    (1)    that  there  is  sufficient 

tain    foreclosure    in     the     Common  personal  property  to  pay  the  debts; 

Pleas.      There    is    nothing    in    the  (2)  that  all  the  debts  are  paid,  and 

claims  of  the  administrator  in  this  (3)    that  pavment  of  the  debts  are 

case  which   requires   a  construction  secured.       Smith    vs.    Montaig,    32 

of    §6108,   Revised    Statutes,   differ-  Bull.  153;   1  Dee.  224;   Swichart  vs. 

ent  from  what  has  been  placed  upon  Swichart,  7  O.   C.   C.   338;   4  0.  C, 

it  by  the  Courts  and  the  profession  D.  624. 
for  more  than  half  a  century.    Pub- 


§  816  SALE  OF  i?J':al  estate  732 

a  case  where  an  assignee  brought  suit  to  sell  real  estate,  making 
a  person  who  held  a  mortgage  in  which  the  property  was  in- 
correctly described,  that  the  court  might  reform  the  mortgage 
upon  the  cross-petition  of  the  mortgagee  for  that  purpose.''^* 
Whether  or  not  the  Probate  Court  would  have  such  jurisdic- 
tion in  proceedings  brought  hx  an  administrator  or  executor  is 
not  so  clear.  Yet  under  the  general  policy  of  the  law,  it  seems 
that  such  jurisdiction  might  be  cntertaiued.'** 

§  816.  When  action  to  be  brought.  "As  soon  as  the  execu- 
tor or  administrator  ascertains  that  the  personal  estate  in  his 
hands  will  not  pay  all  the  debts  of  the  deceased,  with  the  allow- 
ance to  support  the  widow  and  children  for  twelve  months,  and 
the  charges  of  administering  the  estate,  he  must  apply  to  the 
probate  court  or  court  of  common  pleas  for  authority  to  sell  the 
decedent's  real  estate."     [R.  S.  §6136.]^" 

§  817.    Limitations  as  to  the  time  of  bringing. 

It  is  the  duty  of  the  administrator  to  applj'  for  a  sale  of 
the  real  estate  as  soon  as  he  ascertains  there  is  a  deficiency  in 
the  personal  assets,^''  and  if  he  neglects  to  do  so,  the  creditor 
may  compel  him  or  the  heir,  or  even  the  court  ex  moro  motu}^ 

There  is  no  doubt  that  the  court  would  at  once  upon  suffi- 
cient cause  being  shown,  order  an  administrator  or  executor  to 
sell  real  estate  to  paj^  debts  of  the  decedent,  and  in  case  of 
refusal,  W'Ould  summarily  remove  him.  In  order  to  carrj^  out 
the  general  polic}"  of  the  law,  which  requires  a  speedy  settle- 
ment of  the  estate,  the  administrator  ought  at  the  very  earliest 
moment  when  he  ascertains  that  the  personal  property  will  not 

But  an  action  brought  merely  to  is  Abbott  vs.  Cole,  5  0.  86. 

settle  a  dispute  is  an  abuse  of  the  19  Woerner,  Admin.  1027. 

statute  and  ought  not  to  be  enter-  An  action  to  sell  real  estate  must 

tained.     Wood  vs.  Butler,  23  O.  S.  be    brought   within   six   years   from 

520.  the  time  that  the  administrator  dis- 

15*  Adlard  vs.  Stockstill,  5  N.  P.  covers    the    necessity    for    the    sale 

487;  5  Dec.  4!13.  exists.    Kemper  vs.  Buildina:  &  Loan 

16  See  S  1619,  Assignee's  sale.  Co.,   5   X.   P.    (X.S.)    403:"  18   Dec. 

17  §  10774  G.  C.  484:   Ling  vs.  Strome,  Admr.,  12  C. 
See  §  829,  Real  estate  sale;  §818,  C.  (X.S.)   161. 

For  what  action  may  be  brought.  Such  knowledge  will  be  attributed 

Execution    levied    on    land    after  not  later  than  the  filing  of  his  final 

death  of  owner  is  void.     Cartney  vs.  account.    Id. 

Reed,  5  O.  222.  It  is  his  duty  to  bring  the  action 

If  the  will  directs  that  the  land  as  soon  as  he  finds  it  is  necessary, 

shall  be  sold  and  proceeds  divided.  Stout  vs.  Stout,  82  0.  S.  358. 

the    parties     entitled    thereto    may  Right     of     an     administrator     to 

elect    to    take    the    land.      Holt   vs.  bring  action  is  barred  in  six  years. 

Lamb,  17  0.  S.  374.  after  the  administrator  has  discov- 

Tf  there   is   not   sufficient   person-  ered  that  the   personal   propertv  is 

altv  to  pav  debts,  the  dutv  of  the  insufficient  to  pav  the  debts.     Linar 

administrator  to  file  petition  is  im-  vs.  Strome.  12  O.' C.  C.    (X.S.)    161": 

perative.     Andrews  vs.  Johns,  59  O.  31  O.  C.  C.  ?>(S'^:  Kemper  vs.  Build- 

S.  65.  insr  &  Loan  Co.,  5  XL  P.  (X'.S.)  405; 

18  Dee.  484. 


733  LIMITATIOXS    FOR    BRINGING    SUIT  §  817 

pay  the  debts,  file  his  petition  to  have  the  real  estate  sold.  Some 
states  have  statutory  limitations  as  to  the  time  in  which  an 
action  must  be  brought.  In  our  State  there  is  no  special 
statutory  limitation ;  and  it  has  been  held  that  tlie  statute  of  lim- 
itation does  not  apply  to  the  claims  of  heirs  in  such  cases;  and 
therefore  where  the  heir  brought  a  suit  in  partition  twenty-one 
years  after  the  death  of  the  ancestor,  it  was  held  that  the  ad- 
ministrator could  apply  for  part  of  the  proceeds  of  the  sale  in 
order  to  pay  debts.^° 

In  another  case  it  was  held  that  an  action  might  be  brought 
to  sell  real  estate  twenty-three  years  after  the  death  of  the  an- 
cestor.^^  Of  course  if  such  real  estate  gets  into  the  possession  of 
parties  other  than  the  heirs,  as  to  such  parties,  the  general  stat- 
ute of  limitations  would  apply,  and  there  the  rule  laid  down 
by  Justice  Story  that  the  statute  of  limitation  furnished  an 
analogy  which  might  be  safely  followed;  and  therefore  held 
that  no  application  should  be  entertained  to  subject  real  estate 
to  the  piayment  of  debts  after  the  period  which  would  bar  the 
right  of  entry  on  lands,  would  be  applied."^ 

It  seems  to  be  the  rule  in  Ohio  that  as  long  as  there  is  a 
valid  and  subsisting  debt  due  from  the  estate,  no  one  claiming 
as  heir  or  dowress  of  the  decedent  can  successfully  object  to  an 
order  to  sell  the  land  on  the  mere  lapse  of  time.^^  A  power 
given  to  executors  by  will  to  sell  "and  convey  land  becomes  lei- 
gally  inoperative,  and  ceases  to  exist  when  the  estate  is  settled 
or  all  claims  against  it  are  presumptively  satisfied  by  a  lapse 
of  time,,  and  nO'  object,  of  the  testator  remains  to  be  attained.^* 

The  above  expresses  correctly,  the  rule  that  should  be  ap- 
plied in  determining  the  limitation  to  be  placed  upon  the  power 
of  an  administrator  to  commence  proceedings  to  sell  real  estate. 
If  a  debt  is  unknown  at  the  time  of  distribution,  which  after- 
wards is  reduced  to  judgment  against  the  administrator,  he  is 

20  Lafferty  vs.  Shinn,  38  0.  S.  46.  If  an  heir  brings  a  suit  in  parti- 

21  Taylor  vs.  Thorn,  29  0.  S.  569.  tion  the  administrator  may  come  in 

22  Ricard  vs.  Williams,  7  Wheat.  by  cross-petition  and  have  the  real 
59^    115.  estate  sold,      j  he  partition   procecd- 

23  See  Yandell  vs.  Pugh,  5.3  Miss.  ing  will  be  superseded  by  the  action 
295.  of    the    administrator.       ]\Iyers     vs. 

Authorities  are  reviewed  in  Woer-  IMyers.  9  C.  C.    (N.S.)    449;    19  Cir. 

ner  on   Administration,   pages   1027,  D.  396;  29  0.  C.  C.  398. 

1028.  Or    the    administrator    may    com- 

21  Ward  vs.  Barrows,  2  0.  S.  241.  mence    an    independent    action    and 

See  note,  previous  page.  have    the   real    estate    sold,    and    he 


§  818  SALE  OF  REAL  ESTATE  734 

entitled  to  proceed  and  have  the  land  so'ld  to  pay  such  dehts^ 
even  though  partitioned  among  the  heirs,  and  by  them  sold.*' 

§  818.     For  what  the  action  may  be  brought. 

The  statute  provides  for  two  classes  of  liabilities  to  be  paid 
by  sale  of  real  estate.  One  is  debts,"**  and  the  other  is  legacies.*^ 
The  question  now  presented,  is  what  shall  constitute  a  debt  of 
the  deceased.  Taxes  which  had  accrued  before  the  death  of 
the  testator  are  such  debts  as  may  support  an  action  to  sell  real 
estate."^  Likewise  the  executor's  commission  where  properly 
charged  against  the  estate  is  a  debt  for  which  proceedings 
may  be  had.^^ 

The  allowance  for  the  support  of  the  widow  and  her  children 
is  a  debt  of  the  estate  for  the  payment  of  which  resort  may  be 
had  to  the  lands  of  the  testator.^"  Money  loaned  to  an  execu- 
trix to  pay  off  debts  of  the  testator  is  a  debt  for  which  real 
estate  may  be  sold.^^  But  a  person  lending  money  to  the  ad- 
ministrator gets  no  lien  on  the  land.^^  A  street  assessment  is 
not  a  debt  for  which  real  estate  may  be  sold.^^ 

A  buyer  of  the  land  from  an  heir  who  applies  the  money  to 
discharge  liens  thereon  and  preferred  claims  will  be  subrogated 
to  the  rights  of  the  holders  thereof,  against  the  estate  when  the 
land  is  sold  by  an  administrator.^*  A  mortgage  by  heirs  to 
borrow  money  to  pay  off  a  lien  on  the  property  is  void,  as 
against  creditors,  bnt  t]ie  mortgagee  will  be  subrogated  to  priori- 
ties of  the  liens  so  paid.^° 

A  person  lending  money  to  an  executor  to  pay  debts,  lends 
on  the  executor's  personal  responsibility,  and  if  he  does  so,  it  is 

may  do  so,  even  though  he  be  made  -^  Williams?  vs.  Williams,  8  O.  S. 

a  party  to  the  partition  suit.    Stout  .^OD. 

vs.  Stout,  82  0.  S.  358.  Sec  Carr  vs.  Hull,  65  O.  S.  :'>'.){. 

25  Faran   vs.    Robinson,    17    0.    S.  so  Allen  vs.  Allen.  18  0.  S.  235. 
242.      In    this    case    the    claim    had  ^'^  Veldman  vs.  Lindeman.  4   Bull, 
been  presented  to  the  administrator  911;   Behrens  vs.  Leucht,  2  C.  S.  C. 
and  by  him   rejected,   afterwards   a  R    217. 

suit  was  brought  against  him  and  a  ^'-  Lieby  vs.  Parks,  4  O.  469. 

judgment  had.     See  §  10819  G.  C.  ^^  Wilson  vs.  Hall,  6  C.  C.  570;  34 

26  §  10774  G.  C.     See  §  831.  Bull.  298. 

27  §  10817  G.  C,  §  819.  31  Sidener  vs.  Hanes,  37  0.  S.  532 

28  Welsh  vs.  Perkins,  8  0.  S,  52.  ss  Cate  vs.  Peck,  30  Bull.  5. 


735  WHEN    MAY   BE   BROUGHT  §  819 

questionable  whether  he  can  proceed  to  compel  the  executor  to 
sell  the  land  to  relieve  the  executor  of  such  personal  responsi- 
bility.^® As  a  general  rule  where  an  executor  or  administra- 
tor has  paid  debts  of  the  testator  in  excess  of  the  personal  assets 
of  the  estate,  he  will  be  subrogated  in  equity  to  the  rights  of 
the  creditors  whose  debts  he  has  discharged,^^  In  such  case 
it  is  incumbent  upon  him,  says  Judge  Woemer,  to  prove,  in 
order  to  obtain  a  decree  for  the  sale  of  the  land  to  reimburse 
him,  ilie  validity  of  the  debts  which  he  has  paid ;  the  passing  of 
the  account  in  the  Probate  Court  is  not  even  lyrinia  facie  proof 
thereof,  or  that  they  would  have  been  chargeable  upon  the  real 
estate,  either  at  law  or  in  equity.  If,  however,  he  has  debts 
barred  by  the  statute  of  limitations,  or  fails  to  make  applica- 
tion until  after  the  time  limited  for  the  enforcement  of  claims 
of  creditors,  or  pays  such  debts  voluntarily,  or  with  the  view 
of  making  the  heir  his  debtor,  so  as  to  avoid  the  question  of 
full  administration  in  the  proper  forum,  he  will  not  be  entitled 
to  relief  in  equity. ^^ 

It  seems  that  under  our  statute  the  administrator  or  executor 
is  to  judge  in  the  first  instance  whether  or  not  the  personal  prop- 
erty is  insufficient  to  pay  the  debts.  But  the  court  will  not 
order  the  sale  unless  it  is  satisfactorily  shown  that  such  is  a  true 
state  of  facts. 

While  lands  may  be  sold  to  pay  debts  of  a  decedent,  and  the 
year's  allowance  to  the  widow  in  case  the  personal  property  is 
insufficient,  yet  they  cannot  be  sold  to  pay  the  costs  of  admin- 
istration alone.^'' 

§  819.  For  the  payment  of  legacies.  "When  a  testator  has 
given  a  legacy  by  will  that  is  effectual  to  pass  or  charge  real 
estate,  and  his  personal  estate  is  insufficient  to  pay  such  legacy, 
tcpether  with  his  debts,  the  allowance  to  the  widow  and  children, 
and  the  costs  of  administration,  the  executor  or  administrator 
with  the  will  annexed,  may  be  ordered  to  sell  his  real  estate  for 

•*"  teiiuth    va.    iiaywaid,    5    N.    P.  Where     tlie     lieir     has     a     claim 

501;  5  Uec.  -IttZ;  mi.,  4o  iiull.  2i28.  against    tae    eSLate    but    Conceals    it 

3'  VVoeiner  ou  ^^auaii.  lUciSJ.  lioui  ine  aumiiusLiaiur  and  joins  iu 

3s  VVocrner  on  ^idnun.  luoi».  a  pioeeedmgs   in  partition,   tue   ad- 

3a  Can-  vs.  Hull,  40  iJull.  271;  47  uiinistrator  can  nut  biuig  an  action 

Bull,  yi;   66  O.  y.  3!J4.  to  sell  real  estate  to  pay  sucli  claim. 

bee   s  831,  l^ssentials  of  petition;  liiley  vs.  Arnold,  ID  xs.  T.  273;   02 

§  84d,  Prooi  required.  JJuil.  bUi. 


§  820  SALE  OF  REAL  ESTATE  736 

that  purpose,  in  the  manner  and  upon  the  terms  and  conditions 
prescribed  herein  for  the  payment  of  debts."     [R.  S.  §  6172.]*° 

The  above  section  of  the  General  Code  seems  to  place  the  pay- 
ment of  legacies  in  the  same  class  as  a  debt  against  the  estate,  so 
that  the  administrator  or  executor  may  proceed  to  sell  real  estate 
to  pay  such  legacy.*^ 


§  820.    What  may  be  sold. 

As  all  the  property  both  real  and  personal,  the  legal  or  equi- 
table title  to  which  is  in  the  man  at  the  time  of  his  death, 
becomes  liable  for  his  debts;  it  therefore  follows  that  whatever 
such  interest  may  be,  it  may  be  sold  by  the  administrator  or 
executor  for  that  purpose.*-  This  would  include  permanent 
leaseholds  and  interests  which  might  be  held  by  the  testator  as 
tenant  in  common,  and  would  include  all  rights  and  interest 
which  the  testator  in  his  lifetime  held  in  any  land,  tenements 
or  hereditaments.  Generally  it  may  be  said  that  a  testator  may 
exonerate  his  personal  property  from  the  payment  of  his  debts, 
and  charge  the  payment  upon  the  real  estate.*^ 

Lands  and  property  given  away  may  be  sold;  even  by  gift 
causa  mortis.^*  The  equity  of  redemption  of  a  deceased  mort- 
gagor or  grantor  in  a  deed  of  trust  may  be  sold.*^    Even  though 

40  §  10817  G.  C.  (N.S.)    403;    18   Dec.   491;    affirmed 

41  Whether  a  legacy  is  a  charge  11  C.  C.  (N.S.)  372;  30  O.  C.  C. 
upon   the    real   estate   of   a   testator       700;    80  0.  S.  732. 

is  to  be  determined  from  the  provi-  4  2  See  Avery  vs.  Dufrees,  9  0.  S. 

sions  of  his  will   and  the  condition  145;    Biggs  vs.   Bickel.   12  0.   S.  49. 

of    his    property    as    known    to    him  If  an  administrator  sold  property 

at    the    time    of    making    his    will.  to   which    deceased    had   no   title    in 

Authority  given  by  will  to  an  execu-  his    individual    capacity,    he    would 

tor     to     convert     real     estate     into  be   liable   to  the  purchaser.     Fisher 

monev  is  the  equivalent  of  authoritv  vs.  Fisher,  33  O.  C.  C.  555;  affirmed 

to  sell.     Dean  vs.  Lowenstein,  6  C.  no  op.,  80  O.  S.  365. 

C.  587;   3  C.  D.  597;   Aff.  35  Bull.  43  Scott  vs.  Morrison,  5  Ind.  551. 

79.  See   §  832. 

But  if  it  is  not  a  charge  on  the  44  See  Ch.  66.  §  1240,  Gifts  causa 

real  estate  it  can  not  be  sold  to  pay  mnrth :    ^IcGillicuddy    vs.    Cook,    5 

it.   Furweson  vs.  Wentz,  27  Dec.  462 ;  Blackf.   179:    Wyble  vs.   McPheters, 

20  N.  P.   13.     See  Hunt  vs.  Haves,  52  Ind.  393. 

19  C.   C.    151:    10   C.  D.   388,  when  4D.Tackson   vs.   iMagruder.  51   Mo. 

held  real  estate  may  be  sold.  55:  Kenley  vs.  Bryan,  110  Til.  652: 

S  674.  et  ftecf.,  as  to   Payment  of  Jennings    vs.   Jenkins.   9    Ala.   2'^5: 

legacies ;    §799,   et  seq.,  as  to   Sale  Diehl's    Appeal,    33    Pa.    St.    406: 

without  order  of  court.  Briggs  vs.  Bickel.  12  O.  S.  49;   Bol- 

Kemper    vs.    Loan    Co.,    5    N.    P.  liug  vs.  Jones,  67  Ala.  508. 


737 


WHAT   MAY   BE   SOLD 


§821 


proceedings  to  foreclose  the  mortgage  are  pending/^  The  heirs 
can  not  defeat  such  sale.^^  Land  entries  paid  for  but  no  patents 
obtained  may  be  sold/^  So  lands  to  which  deceased  had  no  valid 
title  of  record,  although  a  title  in  fact/^  So  head-right  certi- 
ficates,''°  final-settlement  certificates,^^  resulting  trusts,^-  estates 
in  reversion  or  remainder,"'-''  lands  conveyed  by  the  heirs  after  the 
death  of  their  ancestor,^*  even  if  sold  to  the  administrator,^^  or 
sold  on  execution  against  the  heir  or  heirs,^^  even  if  they  have 
been  devised  to  the  vendor.-"'"  The  consent  of  the  administra- 
tor to  the  sale  of  the  land  by  the  heir  can  not  divest  the  creditor 
of  his  right  to  have  his  debt  made  out  of  the  land,  although  such 

consent  might  estop  him,  were  the  right  of  creditors  not 
affected.^8 

§  821.     What  can  not  be  sold. 

Land  that  is  dedicated  to  the  public  can  not  be  sold  by  an 
administrator  for  the  purpose  of  paying  debts.^^  Likewise 
land  can  not  be  sold  which  is  set  apart  as  a  homestead  for  the 
widow  and  her  children  as  required  by  sec.  10794  G.  C.  (§  857). 
But  the  adult  heirs  are  not  entitled  to  a  homestead  or  to  any 


46  Bateman  vs.  Morris,  7  Dec. 
287;  4  N.  P.  377;  Fitzsimmon's 
Appeal,  40  Pa.  St.  422. 

47  Wolf  vs.  Robinson,  20  Mo.  459. 

48  Avery  vs.  Uupres,  9  0.  145; 
McDonald   vs.  Burton,  68   Cal.  445. 

49  Woods  vs.  Monroe,  17  Mich. 
238. 

50  Soye  vs.  Maverick,  18  Tex.  100. 

51  Strodes  vs.  Patton,  1  Brock. 
228. 

52  Matlock  vs.  Nave,  28  Ind.  35; 
Valle  vs.  Bryan,   19  Mo.  423. 

53  Williams  vs.  Ratcliff,  42  Miss. 
145. 

54  Fiscus  vs.  Moore,  121  Ind.  547; 
Sclierer  vs.  Ingerman,  110  Ind.  428. 

55  ymith  vs.  Anderson,  31  0.  S. 
144:  Carter  vs.  Lee,  51  Ind.  292: 
Ferguson  vs.  Carson,  9  Mo.  App. 
497;  Fike  vs.  Green,  64  N.  C.  665; 
State  vs.  Probate  Court,  25  ^linn. 
22;  Horner  vs.  Hasbrouck.  41  Pa. 
St.  169;  Clark's  Estate,  3  Redf.  225; 
Cole  vs.  Lafontaine,  84  Ind.  446: 
overruling  Pell  vs.  Farquar,  3 
Blackf.  331 :  Seymour  vs.  Sevmour, 
22  Conn.  272;  Camp  vs.  Sherley,  9 
Lea,  255. 


56  Smith  vs.  Seaton,  117  Pa.  St. 
382;  Knowles  vs.  Blodgett,  15  R.  I. 
463. 

57  Shaw  vs.  Nicolav,  30  Md.  99; 
King  vs.  Kent,  29  Ala.  542:  Green- 
awalt's  Appeal,  37  Pa.  St.  95;  Han- 
num  vs.  Spear,  2  Dall,  291. 

58  Moncrief  vs.  Moncrief,  73  Ind. 
587. 

See  §  825,  Sale  of  equitable  inter- 
est;  §  1409,  What  may  be  sold. 

59  Brown  vs.   Manning,  6  0.  298. 
The  Probate  Court  has  no  power 

to  order  the  sale  of  entailed  estates, 
such  power  is  lodged  in  the  Court 
of  Common  Pleas.  Jones  vs.  Wright, 
1  O.  C.  C.  (N.S.)  59;  20  0.  C.  C. 
649.     See  §  11925  G.  C. 

If  the  administrator  has  filed  a 
final  account,  showing  all  debts  paid 
the  action  can  not  be  maintained, 
in  such  cases  the  administrator 
should,  if  the  eight-months  period 
has  passed,  file  a  subsequent  account 
and  have  the  showing  of  all  debts 
paid  corrected,  and  that  there  are 
some  debts  unpaid.  Hunter  vs. 
Yoeum,  27  Dec.  31;   18  N.  P.  14. 


§  822  SALE  OF  REAL  ESTATE  738 

other  exemption  cut  of  the  land  against  the  claims  of  creditors. 
The  land  set  apart  as  a  homestead  for  the  wife  and  children 
may  be  sold  to  pay  debts  of  the  decedent  whenever  the  mdow 
remarries,  and  no  unmarried  child  of  the  decedent  continues  to 
reside  en  such  land.®" 

The  widow  unless  by  reason  of  an  ante-nuptial  contract  or  au 
election  to  take  under  the  will,  is  entitled  to  dower  in  the 
real  estate  and  such  dower  interest  of  the  widow  cannot  be 
disposed  of  without  her  consent  by  the  executor  or  administrator 
of  her  husband's  estate.  The  real  estate  may  be  sold  subject  to 
the  claim  of  the  widow  for  dower  or  homestead.^^ 

Real  estate  cannot  be  sold  to  which  the  owner  at  the  time  of 
his  death  held  neither  a  legal  nor  an  equitable  title,  and  thus 
where  a  husband  devised  real  estate  to  his  wife  with  power  to 
dispose  of  tlie  same  for  her  use  and  support,  and  tlie  wife 
failed  to  exercise  such  power,  it  was  held  that  the  administrator 
of  her  estate  cannot  maintain  an  action  to  sell  such  devised  real 
estate  for  the  purpose  of  paying  her  debts.*^  It  cannot  be  sold 
to  pay  costs  of  administration  only.®^ 

^  822.  When  real  estate  fraudulently  conveyed,  liable  to 
sale.  "The  real  estate  so  liabh^  to  be  sold  includes  all  that 
the  deceased  conveyed  with  intent  to  defraud  his  creditors,  and 
all  other  rights  and  interests  in  lands,  tenements,  and  heredita- 
ments;  except  that  lands  so  fraudulently  conveyed,  can  not  be 
taken  from  any  who  purchased  them  for  a  valuable  considera- 
tion, in  good  faitli,  without  knowledge  of  the  fraud.  No  claim 
to  lands,  so  fraudulently  conveyed,  shall  be  made  unless  within 
four  years  next  after  the  decease  of  the  grantor."  [R.  S. 
§6139.]«* 

§  823.  How  executor  or  administrator  to  get  possession  of 
land  fraudulently  conveyed  and  avoid  such  conveyance.    "If 

land  which  has  been  so  fraudulently  conveyed,  is  to  be  included 

60  Taylor  vs.  Thorn,  29  O.  S.  569.  See  §  829,  Commencement  of  action. 

61  See  S  10787  G.  C,  >5  850.  64  s  10777  G.  C. 

62  Undeported  case  of  Probate  This  section  is  intended  to  enable 
Court,  Clarlv  County,  Ohio.  This  the  administrator  to  obtain  in  one 
case  is  supported  by  Page  on  Wills,  action  authority  to  convert  into 
836,  wliere  it  is  said,  "but  where  money  all  realty  -wliich  in  equity 
the  donee  of  the  power  has  not  or-  ought  to  be  applied  to  tlie  payment 
dered  such  sale  in  lier  lifetime,  a  of  the  debts  of  decedent  and  not 
sale  can  not  be  had  at  the  instance  make  it  necessary  that  the  creditors 
of  her  creditors,  the  power  being  bring  the  action.  However,  in  such 
purely  a  personal  one."  case  the  action  must  be  in  the  Court 

63  Carr    vs.    Hull,    65    O.    S.    394.  of  Common  Pleas.   Beebe  vs.  Canada, 

18  G.  C.  C.   (N.S.)    104. 


739 


FRAUDULENTLY    CONVEYED 


§824 


in  such  action,  the  executor  or  administrator  either  before  or  at 
the  same  time,  may  bring  suit  to  recover  possession  of  it ;  or,  in 
his  action  for  its  sale,  allege  the  fraud  and  have  the  fraudulent 
conveyance  avoided  therein.  But  when  such  land  is  included  in 
the  application  before  recovery  of  possession,  the  action  shall  be 
in  the  court  of  common  pleas."     [R.  S.  §6140.]''^ 

§  824.    Proceedings  where  property  is  fraudulently  conveyed. 

Several  matters  are  to  be  strictly  observed  in  proceedings  in 
which  an  administrator  seeks  to  sell  lands  which  have  been 
fraudulently  conveyed  away  by  the  decedent.  In  the  first  place 
the  action  can  not  be  maintained  against  a  purchaser  for  valuable 
consideration  and  in  good  faith.  In  the  second  place  it  can  not 
be  brought  unless  within  the  expiration  of  four  years  from  the 
death  of  the  testator.  Third,  the  action  can  not  be  brought  un- 
less it  is  necessary  to  have  the  proceeds  of  the  real  estate  so 
fraudulently  sold  with  which  to  pay  the  debts  of  the  decedent.*"' 

It  should  also  be  observed  that  the  Probate  Court  has  no 
jurisdiction  to  order  a  sale  of  such  lands  until  after  a  proceeding 
is  had  in  the  Court  of  Common  Pleas,  declaring  the  sale  made 
by  the  decedent  to  have  been  fradulent.^^  If  the  action  is 
brouglit  to  sell  the  real  estate  before  the  conveyance  has  been 
found  and  decreed  fraudulent,  then  it  must  be  brought  in  the 
Court  of  Common  Pleas."^ 


63  §  10778  G.  C. 

66  McCall  vs.  Pixley,  48  O.  S.  379. 

67  Lowman  vs.  Sewall,  16  C.  C. 
466;  9  C.  D.  177.  This  same  case 
is  reported  in  2  IST.  P.  37G;  4  Dec. 
1,  ill'  which  tlie  Common  Pleas  Court 
held  that  wlien  the  administrator 
seeks  relief,  it  can  only  be  had  in 
an  action  brouglit  in  the  Court  of 
ConuiKjn  Pleas  for  the  purpose  of 
selling  fraudulently  conveyed  real 
estate  to  pay  debts.  In  this  case  it 
seems  that  the  Circuit  Court  or  the 
old  District  Court  having  found  the 
transfer  fraudulent,  dismissed  the 
action  intimating  tliat  the  admin- 
istrator should  proceed  in  the  Pro- 
bate Court  to  soil   real   estate. 

After  set  aside,  action  may  be 
brought  to  pav  widow's  allowance. 
Allen  vs.  A:i"n,   IS  O.  S.  234. 

Tlie  Probate  Court  has  no  equity 
power  to  set  laside  a  deed.  Fleming 
vs.  ]\Tcr4ufrv,  12  N.  P.  10;  21  Dec. 
3S7. 

The  action  CMn  only  be  brought 
when  needed  to  pav  debts.  McCall 
vs.   Pixley,   48   0.    S.   379. 


A  debt  barred  by  the  statute  of 
limitations  will  not  support  the 
action.  Jones  vs.  Lehman,  15  Dec. 
541. 

An  administrator  may  bring  his 
action  in  the  court  for  the  sale  of 
lands  to  pay  debts,  and  include  in 
such  action  lands  to  which  the  de- 
cedent never  had  title  but  for  which 
he  paid  and  had  conveyed  to  an- 
other. Beebe  vs.  Canada,  18  O. 
C.   C.   104.      " 

68  Spoors  vs.  Coen,  44  0.  S.  497. 

The  reason  of  this  provision 
doubtless  .arose  from  a  persuasion 
in  the  minds  of  the  Legislature  that 
a  recovery  of  such  lands  involved  an 
exercise  of  jurisdiction  that  should 
only  be  conferred  on  the  Court  of 
Common  Pleas,  they  being  courts  of 
general  jurisdiction  in  matters  of 
law  and  equity,  and  therefore  more 
competent,  from  the  character  of 
their  judges,  constantly  emploved  in 
the  exercise  of  such  jurisdiction,  to 
hear    and    determine    such   matters. 


§  825  SALE  OF  EEAL  ESTATE  740 

An  administrator  may  maintain  such  an  action  against  the 
fraudulent  grantee'  to  recover  the  value  of  the  lands,  if  the 
latter  has  conveyed  them  to  an  innocent  purchaser."^  Such  an 
action  would  be  governed  by  the  statutory  limitations  that  it 
must  be  brought  within  four  years  from  the  death  of  the  fraud- 
ulent grantor,  and  further  upon  such  a  trial  either  party  is  en- 
titled to  demand  a  jury.  The  action  brought  by  the  adminis- 
trator under  the  above  sections  of  the  General  Code  is  not 
exclusive.  The  creditor  may  also  bring  such  an  action  and  a 
Court  of  Equity  has  jurisdiction  to  entertain  the  same.  But 
when  tlie  assets  are  reached,  they  should  be  placed  in  the  hands 
of  the  administrator  to  be  by  him  administered  according  to 
law.'" 

It  would,  however,  not  be  proper  to  bring  an  action  to  set 
aside  such  a  conveyance  in  the  joint  name  of  the  administrator 
and  creditor.'^  For  foi-m  of  petition  to  set  aside  fraudulent 
conveyance,  the  reader  is  referred  to  the  works  on  Common 
Pleas  practice.^' 

§  825.  Petition  for  sale  of  equitable  interest.  ' '  When  a 
petition  is  filed  for  the  sale  of  an  equitable  estate,  or  equit&ble 
interest,  whicli  the  deceased  held  in  lands,  the  executor  or  ad- 
ministrator shall  set  forth  in  the  petition  the  nature  of  such 
equitable  estate  or  interest,  makinir  all  necessary  parties,  includ- 
ing the  persons  holdins:  the  legal  title  thereto  and  those  who  are 
entitled  to  the  purchase  money  therefor."     [R.  S.  §  6166.]'^ 

^  825a.  The  order  and  sale.  "In  such  case,  notwithstanding 
the  preceding  provisions  of  this  title,  tne  court  mav  make  such 
order  for  the  arinraiseinent  and  sale  of  the  equitable  estate,  for 
the  indemnity  of  the  estate  of  the  deceased  against  the  claim 
for  such  purchase  money,  and  for  the  adiustment  of  the  dower 
of  the  widow  or  widower  of  the  deceased  in  the  equitable  estate, 

And   so,  to  avoid  a  multiplicity  of  "o  Hoffman   vs.    Kiefer,    19    C.    C. 

suits,  it  is  provided  that  an  action  401;    10   C.   D.   304. 

to  set  aside  a  conveyance  of  lands,  "i  Webster   vs.    Ballard,   2    Cleve. 

that  had  been  made  by  decedent  to  Rep.    137. 

defraud    creditors,    may    be    united  "2  1     Kinkead's    PI.    500.      Wliit. 

with   a   proceeding  for   an   order  of  forms   252. 

sale  to  pay   debts,  by  resortinor,   in  ts  §  insiO   G.    C. 

the   first   instance,   to  the  Court  of  The  Probate  Court  has  no  power 

Common  Pleas.    Spoors  vs.  Coen,  44  to  order  the  sale  of  entailed  estates. 

^-   ^-   '501.  Jones  vs.  Wriorht,  1  O.  C.  C.   (N.S.) 

69Doney  vs.  Clark,  55  0.  S.  204,  59;   24  O.  C    C    649 
reversing  8  C.  C,  163;  4  C.  D.  380. 


741  PRESENTED — HOW  §  826 

by  estimating  and  directing  to  be  paid  to  her  or  him  the  value 
of  a  life  annuity  in  one-third  of  it,  or  otherA\dse,  as  the  court 
deems  just  and  right,  between  all  parties  in  interest."  [R.  S. 
§6166.]"* 

A  conveyance  in  trust  with  a  provision  for  reconveyance  is  an 
equitable  estate  which  may  be  sold  under  this  section. ''*  Like- 
wise a  perfect  equity  may  be  sold  to  pay  debts.'^''  Section 
10810-11,  G.  C.  simply  enlarges  the  rights  given  by  the  previous 
sections  which  are  confined  to  cases  in  which  the  legal  title  vests 
in  tbe  decedent,  or  where  it  was  fraudulently  conveyed  by  such 
decedent.  It  must  be  an  equitable  interest  or  an  equitable 
estate  in  order  to  come  within  the  statute.  This  does  not  mean 
an  equitable  claim  which  may  be  had,  but  it  means  a  claim 
which  is  in  such  a  position  that  it  may  be  considered  by  the 
niles  of  equity  to  be  an  equitable  estate  or  an  equitable  interest 
in  the  land.  It  would  likewise  be  held  to  be  a  civil  action  with- 
in the  meaning  of  the  code,  triable  by  the  Court,  or  by  jury  as 
the  facts  would  demand.  In  such  cases  the  wife's  dower  inter- 
est is  to  be  provided  for  in  proceeds  out  of  the  sale.^° 

§  826.    Persons  interested  may  give  bond  and  prevent  sale. 

"An  order  to  sell  the  real  estate  shall  not  be  granted  if  any 
person  interested  in  the  estate  gives  bond  to  the  executor  or 
administrator,  in  a  sum  and  with  sureties  to  be  approved  by  the 
court,  conditioned  to  pay  all  the  debts  mentioned  in  the  petition, 
eventually  found  due  from  the  estate,  "with  the  charges  of  ad- 
ministering it,  and  the  allowance  in  money  to  the  widow,  so  far 
as  the  personal  estate  of  the  deceased  is  insufficient  therefor." 
[R.  S.  §6146.]" 

§  827.     Comments. 

This  section  provides  that  any  person  interested  in  the  estate 
may  by  giving  a  bond,  prevent  an  order  of  sale.  But  I  appre- 
hend that  it  is  not  the  intention  of  the  statute  to  confine  the 

73*  §10811   G.   C.  77  §10785  G.  C. 

As  to  what  may  he  sold,  see  pre-  See  Davisson  vs.  Bnrjjess,  31  0.  S. 

vious   §820.  78;'  heir,  Stout  vs.  Stout,  82  0.  S. 

74  Biggs  vs.   Bickel,   12   O.   S.   40.  358;    Swihart  vs.  Swihart,  4   C.  D. 

75  Avery  vs.  Dufrees.  0  0.   145.  624;   7  0.  C.  C.  338;  widow,  Corey 

76  See  Annuity  tahles  in  last  vs.  Hayes,  7  C.  D.  272;  13  O.  C.  C. 
chapter.  185. 


§  828  SALE    OF    REAL    ESTATE  742 

right  to  give  the  bond  witbin  the  j^eriod  existing  befoje  an  order 
of  sale  has  been  granted.  For  the  spirit  of  the  law  is,  that  the 
real  estate  is  to  be  taken  only  to  pay  debts  of  the  decedent  when 
necessaiy  for  that  purpose,  and  if  some  one  provides  for  the 
payment  of  such  debts,  even  before  the  confirmation  of  sale,  it 
ought  to  be  allowed  by  the  Court;  and  it  has  been  held  tbat  a 
bond  given  after  the  order  of  sale  was  granted,  is  valid  and 
binding  on  the  sureties.'* 

A  widow  having  a  dower  interest  in  the  real  estate  of  her  de- 
I'eased  husband  is  sufficiently  interested  in  the  estate  to  entitle 
her  in  connection  with  one  or  more  of  the  heirs  of  such  estate  to 
give  the  bond  provided  for  in  the  above  section,  to  obviate  a 
sale  of  such  real  estate ;  and  having  given  such  bond,  she  is 
entitled  to  be  subrogated  to  the  right  of  the  administrator  and 
fully  reimbursed  from  a  fund  arising  from  the  sale  of  sucli 
real  estate  in  a  proceeding  in  partition  by  the  heir.^^ 

The  bond  having  been  given  and  filed  in  the  Probate  Court, 
the  judge  should  make  an  entry  of  that  fact,  which  may  be  in 
the  followina:  fonn  : 


{Title.) 

This  day  came  A.  B.,  an  heir-at-law    (or  other  interested  person),  and 
filed   herein  his   bond  with   C.   D.   and  E.   F.   as   sureties   thereon   with   a 

consideration  of dollars  (being  double  the  amount  of  the 

debts  alleged  in  the  petition),  unto  G.  H.,  executor  (or  administrator)  of 
the  estate  of  I.  J.,  for  the  purpose  of  preventing  a  sale  tf  the  real  estate 
described  in  a  petition  filed  in  the  Court  by  G.  H.,  and  the  same  was  sub- 
mitted to  the  Court,  and  upon  examination  of  the  same  the  said  bond  is 
proved  and  it  is  ordered  that  the  same  be  filed  in  this  Court  and  recorded 
witli  the  proceedings;  and  that  the  action  to  sell  real  estate  brought  by 
said  G.  H.,  as  executor  (or  administrator)  of  the  said  estate  be  and  the 
same  is  hereby  dismissed.  The  costs  thereon  to  be  paid  by  said  executor 
and  charged  as  a  debt  against  the  estate. 

§  828.     Form  of  bond. 

Knoiv  all  Men  hy  these  Presents: 

That  we,  A.  B..  C.  D.  and  E.  F.,  are  held  and  firmly  bound  unto  G.  H..  ex- 
ecutor of  the  last  will  and  testament    (or  administrator  of  the  estate)    of 

I.  J.,  deceased,  in  the  sum  of dollars,  to  the  payment  of 

which  we  hereby  jointly  and  severally  bind  ourselves,  our  heirs,  executors 
and  administrators.  The  condition  of  this  obligation  is  such  that  whereas 
the  said  G.  H.,  as  executor   (or  administrator)   as  aforesaid,  on  the 

TsDavisson  vs.  Bnrgess,  31   0.  S.  to  Corey  vs.  Hayes,  13  C.  C.  1S5: 

78.  ^  7   C.   D.   272. 

See  Stout  vs.  Stout,  S2  O.  S.  35S. 


743  BOND,    ETC.  ^  828 

day  of ,  made  an  application  to  the  Probate  Court  ol 

county,  Ohio,  for  an  order  to  sell  the  real  estate  of  said  de- 
cedent, alleging  that  the  personal  estate  of  said  decedent  was  insufficient 
for  the  payment  of  his  debts  and  tlie  charges  of  administering  his  estate. 
Now  if  the  said  A.  B.  shall  pay  all  the  debts  mentioned  in  the  petition  that 
shall  eventually  be  found  due  from  the  estate,  with  the  charges  of  admin- 
istering the  same,  and  the  allowance  in  money  to  the  widow  so  far  as  the 
personal  estate  of  the  deceased  shall  be  insufficient  therefor,  then  this  obli- 
gation to  be  void,  otherwise  to  be  in  full  force  and  effect.  (Signed,  etc.) 
Executed  in  the  presence  of so 

•oWhit.  Prob.  Code. 


§829 


SALE  OF  REAL  ESTATE 


744 


CHAPTER  XLVII. 

REAL  ESTATE.     PLEADINGS,  PROCESS  AND  TRIAL. 


§  829  Commencement  of  action,  etc. 

§  830  What  petition  for  sale  must 
contain. 

8  831  Essentials  of  petition. 

§  832  When  assets  will  be  marshal- 
ed in  conformity  with  the 
will. 

§  833  Necessary   parties. 

§  834  Parties    defendant. 

I  835  Administrator  de  bonis  non 
to  complete  sale  made  by  ex- 
ecutor or  administrator. 

§  836  Form  of  petition  for  sale  of 
real  estate  to  pay  debts. 

§  837  Filing  the  petition. 

§  838  Service.  Waiver  of.  Consent 
of  guardian. 

§  839  Actual  service. 

§  840  Constructive    service. 

§  841   How  publication   to  be  made. 

§  842  Copy  of  newspaper  to  be 
mailed. 

§  843  Waiver. 


§  844  W^hen  guardian  ad  litem  to 
be  appointed.  Such  guar- 
dian can  not  waive  notice, 
etc. 

§  845  How  appointed. 

§  846  Other    pleadings, 
widow. 


Answer    of 


Dower  and  homestead  ex- 
emptions. 

§  847  When  Court  to  order  real  es- 
tate to  be  sold.  Terms  of 
sale. 

§  848  Proof    required. 

§  849  Trial  if  contested. 

§  850  The  estate  of  the  heirs  in  the 
land  set  off  to  the  widow, 
may  be   sold. 

§  851  The  whole  to  be  sold  when  a 
partial  sale  would  injure  the 
residue. 

§  852  Judgment  and  order  of  sale. 

§  852a  Entry.  Appraisement. 
Dower    and    homestead. 

§  853  Effect  of   order. 

§  854  Costs,  when  there  are  objec- 
tions to  granting  order  for 
sale. 


§  829.     Commencement  of  action,  etc. 


The  Courts  have  held  that  the  action  is  a  civil  action/  and 
the  statute  provides  ^  that  the  provision  of  law  governing  civil 
proceedings  in  the  Court  of  Common  Pleas  shall,  as  far  as  ap- 
plicable, govern  like  proceedings  in  the  Probate  Court,  ■where 
there  is  no  provision  on  the  subject.  It  therefore  follows  tliat 
unless  otherwise  provided,  the  general  rule  of  pleadings,  proo- 
ese  and  trial  applicable  to  other  civil  actions  are  applicable  to 


iDoan  vs.  Biteley,  49  0.  S.  588. 

2§§  10743-44    G.    C.    §36. 

The  filing  of  the  petition  gives 
the  court  exclusive  jurisdiction  to 
try  all  questions.     Baker  vs.  Laxab- 


lin,   11   0.  C.   C.   103;  5   C.   D.  54; 

fciLout  vs.  Stout,  82  (J.  fci.  bob;  liud 

vs.  Bloch,  4  0.  C.  C.  (N.S.)    216; 
26  0.  C.  C.  113. 


745  COMMENCEMENT    OF    ACTION  §  829 

proceedings  brought  by  an  administrator  or  executor  to  sell  real 
estate.  The  provision  of  the  statute  referred  to  in  this  and 
other  chapters  relating  to  the  sale  of  real  estate  are  largely  those 
that  were  provided  for  the  sale  of  real  estate  before  the  adop- 
tion of  the  Code ;  and  while  they  contain  some  of  the  requisites 
that  must  be  followed  in  such  eases,  they  do  not  contain  all  the 
law  applicable  thereto.  It  will  not  be  within  the  province  of 
this  work  to  enter  into  a  discussion  of  the  general  principles  of 
pleadings.  For  this  matter  the  reader  is  referred  to  other 
works  upon  such  subjects.^ 

The  action  is  commenced  by  the  filing  of  a  petition  in  the 
proper  Court  and  the  issuance  of  smnmons  thereon.*  Before 
filing  such  petition,  the  administrator  should  examine  the  con- 
dition of  the  estate  and  ascertain  whether  it  is  necessary  to  sell 
the  real  estate  to  pay  debts  or  legacies.^  While  the  rules  of 
the  Probate  Court  do  not  generally  forbid  a  person  from  prac- 
ticing before  it  who  is  not  a  lawyer,  yet  in  all  cases  it  would  be 
advisable  for  the  administrator  or  executor  to  retain  com- 
petent legal  counsel  in  the  very  beginning  of  such  proceedings.^ 
The  statute  of  Indiana  contains,  a  provision  that  before  the  fil- 
ing of  such  petition,  the  administrator,  etc.,  shall  carefully  ex- 
amine the  offices  of  the  clerk,  auditor,  treasurer  and  recorder 
in  the  county  in  which  the  real  estate  of  the  deceased  may  be 
situated,  and  ascertain  the  exact  character  and  extent  of  each 
lien  thereon  created  or  suffered  by  the  deceased  in  his  lifetime 
and  remaining  unsatisfied  of  record.^ 

This  provision,  while  not  in  statutory  form  in  our  State, 
should,  without  exception,  be  adopted  and  followed.  Formerly 
it  was  held,  that  lien  holders  might  be  barred  of  their  lien  on 
the  land,  although  they  were  not  made  parties,  the  Court  hold- 
ing that  the  proceedings  to  sell  real  estate  was  a  proceeding  in 
rem,  and  that  the  lien  was  transferred  to  the  fund,  but  such  is 
not  now  the  case.      The  action  is  adversary  in  its  character, 

3  See     Kinkead's     PI.,     Kinkead's  «  See  §  811  as  to  Judge  Woerner'a 

Court  Practice,  Whittaker's  Forms.  advice. 

*  Kinkead's    Pract.    93.  §  508.     Employment  of  counsel. 

5  See    §§    816-821.     When    action  7§  2290  R.  S.  of  1894. 
may  be  brought. 


§  830  SALE  OF  REAL  ESTATE  746 

and  the  lien  holder  not  made  a  party  will  not  be  deprived  of 
his  lien.^ 

§  830.  What  petition  for  sale  must  contain.  ' '  The  petition 
shall  set  forth  the  amount  of  debts  due  from  the  deceased,  as 
nearly  as  they  can  be  ascertained,  the  amount  of  the  charges  of 
administration,  the  value  of  the  personal  estate  and  effects,  and  a 
description  of  the  real  estate,  and  its  value,  if  appraised." 
[R.  S.  §6141.]^ 

§  831.     Essentials  of  petition. 

The  above  statutory  provision  contains  some  of  the  essentials 
of  a  petition,  but  not  all.  A  petition  must  contain  the  name 
of  the  Court  and  the  county  in  which  the  action  is  brought.^'' 
The  names  of  the  parties  to  an  action  must  be  stated  and  fol- 
lowed by  the  word  "  Petition."  " 

This  means  that  the  names  of  all  the  parties,  plaintiffs  and 
defendants,  shall  be  stated  in  the  caption.  The  names  should 
be  set  out  fully  and  the  plaintiff  should  describe  himself  as  the 
administrator  of  the  estate  of  the  deceased  peprson.  It  is  a 
loose,  vicious  practice  to  use  initials.  It  is  only  necessary  to 
give  the  names  in  the  caption  of  the  pleadings,  and  they  need 
not  therefore  be  repeated  in  the  body.^^  If  the  name  is  un- 
known, it  may  be  so  designated,  and  it  should  be  averred  in 
the  petition  that  the  plaintiff  is  ig-norant  of  the  true  name. 
The  petition  must  be  subscribed  by  the  party  or  his  attorney.^' 

The  petition  must  be  verified  by  the  affidavit  of  the  party, 
his  agent  or  attorney.^* 

All  matters  stated  in  the  petition  should  be  a  statement  of 
facts  constituting  the  cause  of  action,  in  ordinary  and  concise 
language." 

The  petition  should  state  tlie  representative  capacity  of  the 

8  Holloway  vs.  Stewart,   19  0.  S.  order    can    be    issued.      Hunter    vs. 

472.  Yocum,  27  Dec.  ai;   18  N.  x\  14. 

8  §  10779    G.    C.  One  wuo  is  not  aliected  can   not 

See    §  SIG,    when    action    may   be  question  tlie  averments  of  the  peti- 

brought.  tiuu.      Tirmau    vs.    Gerhold,     i     X. 

10  ivinkead's    PL    40.  P.    6G4. 

An    averment    that    the    personal  Neither  can  the  fact  of  the  valid- 

is  but  ,  being  wholly  insuhi-  ity  of  the  debts.    This  must  be  done 

cient    to    pay    tlie    debts    and    costs  by  filing  a  requisition  with  admin- 
aforesaid,       is       not      a       sufficient  istrator    not    to    allow    the    claims, 
averment,  especially  if  it  be  shown  ii  §  11308  G.  C. 
that  there  was  some  personal  prop-  12  Whittaker  code  forms,  p.  1. 
erty.     Railway  vs.  White,  87  O.  S.  13  §  113,51  Q.  C. 
413.     See  also  Baen  vs.   Weller,   12           Finch    vs.    Evers,    25    0.    S.    82; 
Dec.  128.  Conn.  vs.  Rhodes,  26  O.  S.  644. 

If   there   are  do  debts,  no  valid  i4  §  11351   G.  C. 

iSKinkead's  PI.  50. 


747  ESSENTIALS   OF  PETITION  §  831 

executor,  and  although  not  essential,  the  fact  and  date  of  the 
death  of  the  decedent.  If  he  left  a  will  in  which  the  plaintiff 
or  defendant  was  named  as  executor,  it  should  be  stated,  also 
that  the  will  of  the  deceased  was  duly  probated,  giving  the 
daie  of  the  issuance  of  letters  testamentary,  that  the  defendant 
or  plaintiff  was  duly  qualified  and  entered  upon  his  duties  as 
sucli  administrator  or  executor,  and  is  still  acting  in  that  ca- 
pacity/® 

Where  the  petition  shows  that  property  has  been  in  charge  of 
two  administrators,  the  letters  of  one  of  whom  have  been  re- 
voked, the  petition  should  state  the  fact  of  such  revocation/^ 

The  petition  must  contain  the  amount  that  it  is  necessary  to 
sell  to  pay  debts;  it  is  not  sufficient  to  aver  that  the  land  has 
been  fraudulently  conveyed/'^* 

The  omission  of  the  word  "  as,"  between  the  name  of  the 
plaintiff  and  the  words  descriptive  of  his  representative  capac- 
ity, is  not  fatal/ ^ 

At  common  law  the  issue  of  representative  capacity  could 
be  raised  only  by  plea  in  bar  or  abatement.  The  rule  remains 
the  same  under  the  Code,  it  being  necessaiy  to  state  the  facts 
relied  upon  to  show  that  the  averment  is  not  true.^^ 


"Kinkead's  PI.,  §546.  don  vs.  Hoy,  11  How.  Pr.  11;  Day- 
In  alleging  the  representative  ton  vs.  Connah,  18  How.  Pr.  326; 
character  of  an  administrator,  it  is  Quinn  vs.  Newport  News  Co.,  22  S. 
held  to  be  sufficient  if  the  petition  W.  Rep.  223  (Ky.,  1893.) 
shows  that  the  plaintiff  filed  an  ap-  Under  an  allegation  that  a  per- 
plication  for  letters  of  administra-  son  has  been  appointed  administra- 
tion at  a  certain  time  in  a  desig-  tor  by  proper  authority,  it  will  be 
nated  Court,  and  that  such  proceed-  presumed  as  against  a  demurrer 
ings  were  had,  that  he  was  duly  ap-  that  he  has  taken  the  necessary 
pointed  and  qualified  and  that  let-  steps  to  secure  the  appointment, 
ters  of  administration  were  issued  Gutridge  vs.  Vanatta,  27  0.  S.  366. 
to  him.  Monroe  vs.  Dredging  Co.,  i7  State  vs.  Green,  65  Mo.  528. 
84  Cal.  515;  a.  c.  18  Am.  St.  Rep.  it*  Baen  vs.  Weller,  12  Dec.  128. 
248.  See  §  818.  Avery  vs.  Pugh,  9  0.  67, 
Merely  giving  the  name  of  the  ad-  is  Beers  vs.  Shannon,  73  N.  Y. 
ministrator  in  the  commencement  of  292. 

the     petition,     and     attaching     the  lo  Mayes  vs.  Turley,  60  Iowa  407; 

words  "administrator  of  C.  D.,  late  Ewen  vs.  Railway  Co.,  38  Wis.  614; 

of  — — ,  deceased,"  being  descriptive  Contra,  Gilmore  vs.  Morris,   13  Mo. 

only,  is  therefore  insufficient.     Shel-  App.   114. 


§  832  SALE    OF    REAL    ESTATE  748 

The  proper  method  of  reaching  a  defect  in  an  allegation  of 
representative  capacity  is  by  motion."" 

If  tlie  real  estate  has  been  appraised  by  the  appraisers  of  the 
personal  estate,  the  amount  of  such  appraisement  should  be 
stated." 

The  fact  should  also  be  stated  whether  or  not  the  administra- 
tor or  executor  has  given  bond,  and  if  bond  has  been  given,  the 
amount  of  the  bond  should  be  stated.  These  two  matters 
should  be  stated  for  the  reason  that  the  Court  is  to  pass  upon 
the  question  whether  an  appraisement  may  be  dispensed  with, 
and  also  whether  an  additional  bond  should  be  required.  If 
the  real  estate-  is  liable  for  debts  in  a  different  order  from  that 
provided  by  law,  it  should  be  set  forth  as  provided  in  the  next 
section.  The  nature  of  tlie  title  or  interest  of  the  decedent  in 
the  real  estate  should  be  set  forth,  as  well  as  a  proper  descrip- 
tion of  such  premises.  If  there  are  minor  defendants,  their 
ages  should  be  given,  and  if  they  have  guardians,  such  fact 
should  be  stated.  If  a  husband  or  wife  be  living,  entitled  to 
dower  or  homestead  exemption,  the^  same  should  be  set  forth.*' 

5  832.  When  assets  will  be  marshaled  in  conformity  with 
the  will.  "If,  in  the  last  will  of  the  deceased,  there  is  a  dis- 
position of  his  estate  for  the  payment  of  debts,  or  provision  that 
may  require  or  induce  the  court  to  marshal  the  assets  differently 
from  what  the  law  otherwise  would  prescribe,  such  devises,  or 
parts  of  the  mil,  must  be  set  forth  in  the  petition,  and  a  copy 
of  the  will  exhibited  to  the  court,  whereupon  the  assets  shall  be 
marshaled  accordinelv,  so  far  as  it  can  be  done,  consistently 
with  the  rights  of  creditors."     [R.  S.  §  6152.]=^^ 

§833.  Necessary  parties.  "In  such  action  the  widoAv  of 
the  deceased,  the  heirs,  devisees,  or  persons  ha\nng  the  next 
estate  of  inheritance  from  him,  and  all  mortgagees  and  other 
lien  holders,  whether  by  judgment  or  other\^ase,  of  any  of  the 
lands  sought  to  be  sold,  and  all  trustees  holding  the  legal  title 
thereto  or  to  any  part  thereof,  and,  if  a  fraudulent  conveyance 

20  Gillett   vs.    Fairchild,   4  Denio.  21  This     is     an     essential.       See 

83 ;   13  How.  Pr.  413 ;  Bangs  vs.  Mc-  §  10779  R.  S.,  §  830. 
Intosh,     23     Barb.     591;     Neil     vs.  22  See   §§818,   1686. 

Cherry,  1  W.  L.  M.  155;  Kinkead's  23  §  10791  G.  C. 

PI.  496. 


749  NECESSARY  PARTIES  §  834 

is  sought  to  be  set  aside,  all  persons  holding  or  claiming  there- 
under, must  be  made  parties."     [R.  S.  §  6142.]-* 

§  834.     Parties  defendant. 

The  above  is  a  provision  as  to  what  parties  are  necessary.  It 
is  so  headed,  but  it  does  not  forbid  making  other  persons  par- 
ties. It  only  provides  that  tinder  all  the  circxunstances  these 
shall  be  made  parties.^^  And  the  proper  practice  in  actions  to 
eell  real  estate  by  an  administrator  or  executor  requires  that 
all  persons  claiming  an  interest  in,  or  lien  on  the  land,  be 
brought  before  the  Court,  and  all  questions  affecting  the  title 
adjudicated  and  settled,  in  order  that  purchaser  may  buy  with 
safety  and  the  property  bring  its  full  and  fair  value. ^^ 

A  party  loaning  money  to  an  executor,  and  taking  the  execu- 
tor's note  as  evidence  of  such  loan,  is  not  a  necessary  or  even 
proper  party  in  a  proceeding  brought  by  an  administrator  of 
an  heir  to  sell  lands  of  such  heir  to  pay  his  debts.^' 

It  has.  been  held  that  lien  holders  against  an  heir,  and  pur- 
chaser of  an  heir's  interest  in  the  real  estate,  are  not  necessary 
or  even  proper  parties  to  the  suit,^* 

While  it  may  be  true  tliat  under  our  law  the  purchaser  of 
the  land  from  the  heir  would  not  be  a  necessary  party  if  the 
land  was  all  absorbed  in  the  payment  of  debts,  as  such  pur- 
chaser takes  with  full  knowledge  that  the  land  may  be  sold  to 
pay  debts  of  the  decedent.  But  if  there  are  any  proceeds  of 
the  land  remaining,  he  would  be  a  necessary  party  to  enable 
the  Court  to  determine  to  whom  such  remaining  proceeds 
should  be  paid;  and  it  may  be  stated  as  a  general  rule  that  a 
purchaser  from  the  heir  or  the  owner  of  a  judgment  which 
has  become  a  lien  on  the  heir's  interest,  is  a  proper  and  under 

24  §  10780  G.  C.  I)arty.      Arnold    vs.    Donaldson,    46 
An  administrator's  sale  made  un-       O.  S.  73. 

der  order  of  tlie  court  without  show-  A  party  loaning  money  to  execu- 

ing  tliat  the  heirs  were  made  parties  tor    for    benefit    of    estate,     not    a 

is  void.     Adams  vs.   Jeffries,    12  O.  proper  party.     Staith   vs.   Hayward, 

253.     If  an  heir  or  interested  party  5  N.  P.  501";  5  Dec.  462. 

is  unlsnown  or  can  not  be  found  he  27  Smith    vs.    Havward,    5    N.    P. 

should  be  made  a  party,  and  served  504;    5  Dec.  462;    aff.  45  Bull.  228. 

by  publication.      Whit,   forms    17.  28  Communication  in  25  Bull.  102. 

25  Biteley  vs.  Doan,  4  C.  C.  10;  2  A  judgment  creditor  of  a  devisee 
C.  D.  388.  is  not  a  lienliolder  within  the  mean- 

26  Doan  vs.  Biteley,  49  0.  S.  589;  ing  of  §  10780  G.  C,  and  is  not  a 
Tidd  vs.  Bloch,  4  C.  C.  (N.S.)  216;  necessary  party.  Kummer  vs.  Lapp, 
26  C.  D.  119.  1  N.  P.    (N.S.j   209;   13  Dec.  491. 

If    a    wife   has    been    divorced    by  His  remedy  is  under  §  10816  G.  C., 

reason     of    the     aggression     of     the       §  905. 

deceased,   she   ought  to   be   made   a  If   the   partv    is    insane,   he   may 

be  made  a  party,  if  the  consent  of 


m 


§   835  SALE  OF  REAL  ESTATE  750 

some  circumstances  a  necessary  party."®  If  the  heir  has  sold 
out  all  his  interest,  the  purchaser  stands  in  his  shoes,  and 
should  be  a  party  so  that  he  may  defend  if  necessary.  And  it 
has  been  held  elsewhere  tliat  an  heir  who  has  conveyed  his  in- 
terest in  decedent's  real  estate  is  not  a  necessary  party  to  an 
application  to  sell  real  estate.^" 

Where  a  testator  has  made  a  will,  it  may  not  be  necessary, 
unless  the  will  be  set  aside,  to  make  the  heirs  at  law  parties, 
unless  they  are  also  legatees  under  the  will.^^  The  widow  need 
not  be  made  a  party  unless  she  is  interested  in  the  real  estate.^^ 

If  the  widow  and  the  heir  at  law  have  no  interest  in  the  real 
estate,  they  could  have  no  interest  in  the  pending  suit;  there- 
fore it  would  be  an  idle  formality  to  make  them  parties.  But 
the  better  practice  would  be  to  make  all,  who  might  have  a 
possible  interest  in  the  real  estate  or  in  the  proceeds,  parties. 
I  have  no  doubt  but  what  under  the  provisions  of  sec.  10783-4, 
G.  C.  (§814),  the  Court  may  permit  any  person  possibly  in- 
terested to  come  in  and  be  made  a  party. 

As  the  title  of  an  heir  is  subject  to  be  defeated  by  sale  to  pay 
debts  of  an  ancestor,  the  wife  of  such  heir  need  not  be  made  a 
party,  her  dower  follov/ing  her  husband's  rights.^^ 

§  835.  Administrator  de  bonis  non  to  complete  sale  made 
by  executor  or  administrator.  "If  the  executor  or  adminis- 
trator, who  begins  such  action,  dies,  resigns,  or  is  removed,  or 
his  powers  cease  at  any  time  before  the  conveyance  of  real  estate 
sold  under  an  order  of  court,  the  administrator  de  bonis  non 
shall  proceed  with  such  sale,  and  may  convey  land  sold  before  or 

his   guardian   can   not   be   obtained,  es]3ecially   if  the   heirs   are  minors. 

or  if  he  has  no  guardian  and  tJmt  §  12087   G.   C. 

fact  is  alleged  in  the  petition.  32  To  a  suit  brought  to  effect  a 
§  11256  G.  C;  2  Bates'  PI.  1826,  sale  of  a  decedent's  land,  the  resid- 
As  to  defense  of  such  person,  see  uary  legatees,  among  whom  a  por- 
§  1384.  tion  of  the  proceeds  are  to  be  dis- 
ss Barkman  vs.  Hain,  5  X.  P.  508;  tributed,  are  necessary  parties,  but 
5  Dec.  474.  the  heirs  of  the  testator  are  not, 
More  properly  speaking  he  is  a  when  all  the  testator's  estate  is  dis- 
necessary  party  in  the  distribution,  jx)sed  of  by  the  will.  Pennsylvania 
and  not  in  making  a  legal  sale.  See  Co.  For.  Ins.  vs.  Baiierle.  143  111. 
Kummer  vs.  Lapp,  1  N.  P.  (X.S.)  459:  S.  C.  33  N.  E.  Rep.  166. 
209;    13  Dec.  491.     See  §905.  33  See  §943  et  seq.,  Dower. 

30  Piatt  V.  Brickley,  119  Ind.  333.  The   proceeds  left  after   payment 

31  As  the  statute  permits  one  year  of  debts,  is  personalty,  although  it 
in  which  to  contest  a  will,  it  would  descends  as  real  estate.  See  §  905. 
be  safer  if  suit  be  brought  within  See  Harrington  vs.  Harrington,  13 
<Jiat  time  to  make  all  heirs  parties,  Gray,  513. 


751  FORM    OF   PETITION  §  836 

after  his  appointment.     He  also  may  be  required  to  give  an 
additional  bond  in  like  manner  as  if  he  had  filed  the  petition." 

[R.  S.  §6138.]  3* 

If  the  contingency  occnrs,  as  suggested  in  the  above  section, 
it  would  be  advisable,  in  order  that  the  proceeding  show  all  the 
facts  before  the  Court,  to  make  an  entry,  of  which  the  following 
may  serve  as  a  general  form : 

(Title.) 

It  appearing  to  the  Court  that  A.  B.,  administrator  of  C.  D.,  who 
originally  brought  this  action,  has  died  (resigned  or  been  removed)  and 
that  E.  F.  has  been  appointed  and  duly  qualified  as  administrator  de  bonis 
non  of  the  estate  of  said  C.  D.  It  is  ordered  that  the  said  E.  F.  be  substi- 
tuted as  plaintiff  for  the  said  A.  B.  in  this  action  and  that  he  proceed 
therein  the  same  as  A.  B.  could  have  done  had  he  not  died  (resigned  or 
been  removed ) . 

§  836.     Form  of  petition  for  sale  of  real  estate  to  pay  debts. 


A.  B.,  Administrator  of  the  estate 
of  C.  D.,  deceased,   Pltf., 
vs. 

E.  F.,  G.  H.,  adults,  and  I.  J.,  a  minor  over 
fourteen  years  of  age,  and  K.  L.,  a  minor 
under  fourteen  years  of  age,  sole  heirs-at- 
law  of  C.  D.,  deceased ;  M.  N.,  the  widow 
of  said  C.  D.;  O.  P.  and  Q.  R.,  who 
claim  some  interest  in  said  land. 


Probate  Court, 

Clark  County,   Ohio. 
PETITION. 


The  plaintiff  represents  that  he  was  on  the day  of 

duly  appointed  and  qualified  administrator  of  the  estate  of  C.  D.,  late  of 
Clark   county,  Ohio,  and   is   still   acting  as   such   administrator ;   that  the 

amount  of  debts  due  from  tne  deceased  is dollars,  as  near 

as  they  can  be  ascertained  (a  schedule  of  which  debts  is  hereto  attached, 
marked  Exhibit  A) that  the  charges  of  adminis- 
tration of  said  estate  will  amount  to  about dollars   and 

that  the  total  value  of  t!ie  personal  estate  and  effects  of  said  deceased  is 

but dollars,  being  wholly  insufficient  to  pay  the  debts  and 

costs  aforesaid.  The  plaintiff  further  represents  that  said  C.  D.  died 
seized  in  fee  simple  of  the  following  described  real  estate,  situate  in  the 
County  of  Clark,  State  of  Ohio,  to-wit: 

Plaintiff  represents  that  said  real  estate  was  appraised  in  accordance 
with  the  order  of  the  Probate  Court  of  Clark  County,  Ohio,  by  the  ap- 
praisers   of    the   personal    estate    of   said    decedent    free    from   any    dower 

estate  therein  and  that  the  amount  of  said  appraisement  is , 

dollars.  That  plaintiff  has  given  bond  as  such  administrator  (or  executor) 
in  the  sum  of 

The  said  decedent  died  leaving  the  defendant,  M.  N.,  who  is 

years  of  age,  his  widow,  who  is  entitled  to  dower  in  said  premises;  that 
the  defendants,  E.  F.,  G.  H.,  I.  J.  and  K.  L.,  are  the  only  children  and 
heirs-at-Iaw  of  said  decedent,  having  the  next  estate  of  inheritance  from 
said  C.  D.,  deceased,  in  said  premises,  that  the  defendants,  0.  P.  and  Q.  R., 
claim  to  liave  a  mortgage  lien  in  said  premises.  The  plaintiff  therefore 
prays  that  the  dower  of  said  M.  N.  in  said  premises  may  be  assigned  and 
set  off  to  her,  unless  she  file  her  answer  herein  and  consent  that  the  same 

34  §  10776  G.  C. 


§  837  SALE  OF  REAL  ESTATE  752 

may  be  sold  free  from  her  said  dower,  homestead  and  other  rights  she  or 
defendants  mav  have  therein;  that  the  rights,  interests  and  liens  of  the 
said  0.  P.  and  Q.  R.  may  be  fully  determined,  adjusted  and  protected 
according  to  equity,  and  that  your  petitioner  may  he  aiithorized  and  ordpred 

to sell  said  real  estate  suhiprt  to  said  dower,  unless  the  widow 

release  the  same  according  to  the  statute  in  such  case  made  and  provided, 
and  for  all  other  proper  orders  and  relief  in  the  premises. 


Atty.  for  Pltf. 
The  State  of  Ohio,  Clark  County,  ss. 

A.  B.,  the  within  named  plaintiff,  being  duly  sworn,  says  that  the 
Taiious  matters  and  things  set  forth  in  said  petition  are  true,  to  the  best 
of  his  knowledge  and  belief. 


Sworn  to  before  me  and  signed  in  my  presence  this day  of. 

190... 


Probate  Court,  Clark  County,  Ohio. 

A.  B.,  Administrator  of  C.  D.,  Pltf.,  Petition  to  sell  Real  Estate 

vs.  PRAECIPE. 

E.   F.,  ct  al.,   Def'ts.  To  the  Probate  Judge: 

Issue  summons  for  said  E.  F.,  who  resides  at  41  Section  St.,  Springfield, 
Ohio,  and  I.  J.,  a  minor  over  fourteen  years  of  age,  and  K.  L.,  a  minor 
under  fourteen  years  of  age,  who  resides  witli  M.  N.,  the  mother,  at  tj8 
Western  St.,  of  said  city,  and  for  defendants,  directed  to  the  sheriff  of 
said  county  (or  plaintiff),  returnable  according  to  law.  G.  H.  will  enter 
his  appearance. 


Pltf.  Atty. 


§  837.     Filing  the  petition. 


Having  examined  the  petition  and  ascertained  that  the  prop- 
erty is  correctly  described,  and  all  lien  holders  and  others  hav- 
ing any  claim  on  the  property  are  made  parties,  the  petition 
should  he  filed  in  the  Court  in  which  the  proceedings  are  to 
be  had.  A  cautious  lawyer  will  not  rely  upon  the  Court  to 
make  a  proper  journal  entry ;  indeed,  it  is  not  safe  to  do  so,  for 
all  Courts  and  their  deputies  do  not  possess  an  equal  degree  of 
ability  and  carefulness.  The  petition  should  have  attached  a 
praecipe  setting  out  the  names  of  parties  defendant,  with  their 
place  of  residence,  who  are  to  be  served  with  process.  x\s  Pro- 
bate Courts  are  always  in  session,  a  ver\^  proper  practice  is  to 
set  the  case  for  hearing  the  first  day  at  which  the  same  can  be 
heard  after  answer  day.  The  summons  is  returnable  the  sec- 
ond Monday  after  its  date,^^  and  the  answer  must  be  filed  on 

35  §11283  G.  C. 


V53  SEKVICE    OF    SUMMONS  §  838 

or  before  the  third  Saturday  after  the  return  day  of  the  sum- 
mons. The  earliest  date  at  which  the  case  could  be  heard  then, 
would  be  the  first  Monday  after  tlie  third  Saturday  from  the 
return  day  of  the  summons.  Likewise,  if  some  of  the  parties 
were  to  be  served  by  publication,  such  fact  might  be  provided  for 
in  the  entry.  Although  it  seems  that  there  is  no  necessity  for 
an  entry  for  that  purpose.  The  entry  may  be  in  the  following 
form: 

{Title.) 

This  day  come  A.  B.,  administrator  (or  executor)  of  the  estate  of  C.  D., 
and  filed  lierein  his  petition  for  the  sale  of  the  real  estate  therein  described 
to  pay  debts  of  the  said  deceased.  And  on  his  motion  summons  is  issued 
for  E.  F.,  M.  N.,  O.  P.  and  Q.  R.,  adults,  and  I.  J.,  a  minor  over  fourt«en 
years  of  age,  and  K.  L.,  a  minor  under  fourteen  years  of  age,  directed  to  the 
sheriff  (or  plaintiff)  and  returnable  according  to  law.  The  Court  is  informed 
that  G.  H.  will  enter  his  appearance  and  no  summons  for  him  is  issued. 

The  said  cause  is  set  for  hearing  on  the day  of , 

that  being  the  first  day  at  which  the  same  can  be  heard  after  answer  day. 

If  some  of  the  parties  are  non-residents,  the  following  might 
be  added : 

And  it  appearing  by  the  affidavit  of  the  plaintiff  that  O.  P.  and  Q.  R. 
are  non-residents  of  the  State  of  Ohio,  and  that  they  are  such  as  are 
authorized  by  statute  to  be  served  by  publication,  it  is  ordered  that  they 
be  notified  by  publication  as  provided  by  law.38 

§838.  Service.  Waiver  of .  Consent  of  guardian.  ''Serv- 
ice, actual  or  constructive,  shall  be  made  as  in  other  civil  actions ; 
except,  that  if  all  persons  in  interest  consent  in  writing  to  the 
sale,  service  or  process  may  be  dispensed  with.  Legal  guardians 
may  sign  such  consent  for  their  wards,  except  guardians  of  the 
person  only  of  minors ;  or,  unless  otherwise  ordered  by  the  court, 
the  summons  may  be  served  by  the  plaintiff  or  other  person,  by 
copy  personally.  The  return  of  such  service  must  be  verified 
by  the  oath  of  the  person  who  makes  it.  All  proceedings  in  the 
action  in  either  court  shall  be  the  same  as  in  other  civil  actions, 
except  as  otherwise  herein  provided."     [R.  S.  §  6143.]^^ 

36  See  §  1623,  Assignees.  vided  by  the  Civil  Code.   Calkins  vs. 

37  §  10781  G.  C.  Johnson,  2U  O.  S.  539. 

A  guardian  can  not  enter  an  ap-  {See  §  843  for  form  of  waiver, 

pearance  for  his  ward  unless  autiior-  Heirs    who   are   idiots,    are   made 

ized   by   statute.     Roberts   vs.   iCob-  parties   to  the  record   by  the  filing 

erts,  61  0.  S.  96.  of  an  answer  and  cross-petition  uy 

Before  a  valid  decree  can  be  made  their  guardian,  wherein  the  allega- 

it  must  aliirmatively  apjjear  that  the  tions  of  the  petition  are  admitted, 

minor  defendants  have  been  served.  service  of  summons  waived  and  tne 

Moore  vs.  Stark,  1  O.  S.  369.  court  is  asked  to  grant  the  prayer 

See  §  1378  et  seq.,  §  1415.  of    the    petition.      Liegal    va.    ii^agie 

If   the   action   is    brought   in   the  Bldg.  Co.,  11  O.  C.  (J.   (JSI.!S.)    118; 

Court  of  Common  Pleas  under  the  31  U.  C.  C.  519. 
code,  service  may  be  made  as  pro- 


§  839  SALE    OF    REAL    ESTATE  754 


There  are  two  kinds  of  service  or  notice  provided  for  by  law. 
One  is  actual,  and  the  otlier  constructive.  Actual  service  is 
where  tJie  summons  is  served  upon  the  party  by  the  sheriff  or  as 
provided  in  the  above  section,  by  the  plaintiff  or  some  other 
person,  when  directed  so  to  do  by  the  Court.  If  the  summons 
is  to  be  served  by  the  sheriff,  it  is  made  in  the  usual  manner. 
That  is,  a  copy  of  the  summons,  "with  the  endorsements  thereon, 
is  delivered  to  the  defendants  personally  or  by  leaving  a  copy 
at  his  usual  place  of  residence. ^^ 

The  statute  now  requires  the  same  kind  of  servnce  to  be  made 
upon  a  minor  over  fourteen  years  of  age  as  if  under  that  age. 

§  840.     Constructive  service. 

Constructive  service  is  service  which  is  made  by  publication, 
and  the  instances  in  which  service  may  be  made  by  publication 
are  defined  by  statute. ^°* 

When  service  by  publication  may  be  made.     "Service  may 

be  made  by  publication  in  any  of  the  following  cases : 

1.  In  an  action  for  the  recovery  of  real  property  or  of  an 
estate  or  interest  therein,  when  the  defendant  is  not  a  resident 
of  this  state  or  his  place  of  residence  can  not  be  ascertained; 

2.  In  an  action  for  the  partition  of  real  property,  when  the 
defendant  is  not  a  resident  of  this  state  or  his  place  of  resi- 
dence can  not  be  ascertained ; 

3.  In  an  action  to  foreclose  a  mortgage  or  to  enforce  a  lien 
or  other  incumbrance  or  charge  on  real  property,  when  the 

38  §  11286  G.  C.  See  §  1623,  Assignees. 

39  §  11291  G.  C.  See  §  1691,  Condemnation  proceed- 
Statute  now  requires  that  in  all       ings. 

cases  both  guardian  or  parent,  etc.,  See   Kinkead's   Court   Pract.   118. 

and   ward   must  be  notified.     95   v.  39*  The  reader  is  referred  to  the 

235.  statute  and  works  of  general  prac- 

See     §  1415,     Service    of    notice,  tice  as  to  matters  pertaining  to  con- 

Gdns.                           ,  structive  or  actual  service. 


755  •  CONSTRUCTIVE   SERVICE  S  oW 

defendant  is  not  a  resident  of  this  state  or  his  place  oi:  residence 
can  not  be  ascertained ; 

4.  In  an  action  to  compel  the  specific  performance  of  a  con- 
tract for  the  sale  of  real  property,  when  the  defendant  is  not  a 
resident  of  this  state  or  his  place  of  residence  can  not  be  ascer- 
tained ; 

5.  In  an  action  to  establish  or  set  aside  "a  will,  when  the  de- 
fendant is  not  a  resident  of  this  state  or  his  place  of  residence 
can  not  be  ascertained; 

6.  In  an  action  b.y  an  executor,  administrator,  guardian,  or 
trustee  seeking  the  direction  of  the  court  respecting  the  trust  or 
property  to  be  administered  and  the  rights  of  the  parties  in  in- 
terest, when  the  defendant  is  not  a  resident  of  this  state  or  his 
place  of  residence  can  not  be  ascertained ; 

7.  In  an  action  in  which  it  is  sought  by  a  provisional  remedy 
to  take  or  to  appropriate  in  any  way  property  of  the  defendant, 
when  the  defendant  is  not  a  resident  of  this  state  or  is  a  foreign 
corporation  or  his  place  of  residence  can  not  be  ascertained; 

8.  In  an  action  against  a  corporation  organized  under  the 
laws  of  this  state,  which  has  failed  to  elect  officers  or  to  appoint 
an  agent  upon  whom  service  of  summons  can  be  made,  and 
which  has  no  place  of  doing  business  in  this  state ; 

9.  In  an  action  which  relates  to  or  the  subject  of  which  is 
real  or  personal  property  in  this  state,  when  the  defendant  has 
or  claims  a  lien  thereon,  or  an  actual  or  contingent  interest 
therein,  or  the  relief  demanded  consists  wiiolly  or  partly  in 
excluding  him  from  any  interest  therein,  and  such  defendant  is 
not  a  resident  of  this  state,  or  is  a  foreign  corporation,  or  his 
place  of  residence  can  not  be  ascertained; 

10.  In  an  action  against  an  executor,  administrator,  or  guard- 
ian who  has  given  bond  as  such  in  this  state,  but  at  the  time  of 
the  commencement  of  the  action  is  not  a  resident  of  this  state 
or  his  place  of  residence  can  not  be  ascertained ; 

11.  In  an  action  or  proceeding  for  a  new  trial  or  other  relief 
after  judgment,  or  to  impeach  a  judgment  or  order  for  fraud, 
or  to  obtain  an  order  of  satisfaction  thereof,  when  the  defendant 
is  not  a  resident  of  this  state  or  his  place  of  residence  can  not 
be  ascertained; 

12.  In  an  action  where  the  defendant,  being  a  resident  of 
this  state,  has  departed  from  the  county  of  his  residence,  with 
intent  to  delay  or  defraud  his  creditors,  or  to  avoid  the  service 
of  a  summons,  or  keeps  himself  concealed  with  like  intent ; 

13.  In  a  proceeding  in  error  when  the  defendant  has  no 
attorney  of  record  in  this  state  and  is  not  a  resident  of  and 
absent  from  this  state,  or  has  left  the  state  to  avoid  the  service 
of  a  summons  in  error,  or  so  conceals  himself  that  it  can  not  be 
served  upon  him."     [R.  S.  §  5045.]  '" 


§  841  SALE  OF  REAL  ESTATE  756 

When  residence  is  known.  "When  in  a  case  in  wliich 
service  may  be  made  by  publication,  the  residence  of  the  defend- 
ant is  known,  it  must  be  stated  in  the  publication.  Immediately 
after  the  first  publication,  the  party  making  the  ser\dce  shall 
deliver  copies  thereof,  with  the  proper  postage,  to  the  clerk  of 
the  court  who  shall  mail  a  copy  to  each  defendant,  directed  to 
his  place  of  residence  named  therein,  and  make  an  entry  thereof 
on  the  appearance  docket.  In  all  other  cases  the  party  who 
makes  the  ser\'ice,  his  agent  or  attorney,  before  the  hearing,  must 
make  and  file  an  affidavit  that  the  residence  of  the  defendant  is 
unkno^^^l  and  can  not  with  reasonable  diligence  be  ascertained." 
[R.  S.  §5045.]*«* 

Affidavit  necessary.  "Before  service  by  publication  can  be 
made,  an  alitidavit  must  be  filed  that  service  of  summons  can  not 
be  made  within  this  state  on  the  defendant  sought  to  be  served, 
and  that  the  case  is  one  of  those  mentioned  in  the  next  precedino- 
section."     [R.  S.  §5046.]*^ 

The  affidavit  to  obtain  such  publication  may  be  as  follows: 

( Title. ) 

A.  B.,  the  above  named  plaintiff,  being  duly  sworn,  says  that  E.  F.,  de- 
fendant in  this  action,  is  a  nonresident  of  the  State  of  Ohio,  and  service 
of  summons  can  not  be  made  u]X)n  him  in  this  State,  that  the  residence  of 
the  defendant,  G.  H.,  is  unknown  and  c^n  not  with  reasonable  diligence  be 
ascertained,  and  service  of  summons  can  not  be  made  upon  him,  and  that 
the  case  is  one  of  those  mentioned  in  §  11292  of  the  Genei'al  Code  of  Ohio. 42 

§841.  How  publication  to  be  made.  "The  publication 
must  be  made  for  six  consecutive  weeks,  in  a  newspaper  printed 
in  the  county  w^here  the  petition  is  filed.  When  made  in  a  daily 
newspaper,  one  insertion  a  week  shall  be  sufficient.  It  must 
contain  a  summary  statement  of  the  object  and  prayer  of  the 
petition,  mention  the  court  wherein  it  is  filed,  and  notify  the 
person  or  persons  thus  to  be  served  when  thev  are  required  to 
answer."     [R.  S.  §5047.]" 

Service  by  publication  shall  be  deemed  complete  at  the  date 
of  the  last  publication.**  The  following  may  be  used  as  a  form 
of  notice  of  publication: 

40  §  11292  G.  C.  Co.,  165  Fed.  572. 

40*  §  11294  G.  C.  A    paper    devoted    principally    to 

41  §  11293  G.  C.  proceedings     in     court     but    giving 

42  Constructive  service  may  be  more  or  less  general  news  of  the 
made  on  a  lunatic.  Sturges  vs.  day,  is  a  "newspaper."  Bigalke  vs. 
Longworth,   1  O.  S.  544.  Bigalki,  19  C.  C.  331;   10  C.  D.  395. 

An  affidavit  for  service  by  publi-  43  §  11295  G.  C. 

cation  made  before  the  attorney  for  44  §  11296  G.  C.     This  means  the 

plaintiff    is    void.      Hunt   vs.    Hunt,  sixth    insertion.      Case   vs.    Oil    Co., 

27  Dec.  153;   14  X.  P.  522.  40  O.  S.  636,  and  the  answer  would 

There  must  be  a  proper  affidavit  be    the    third    Saturday    thereafter, 

or  the  adem  is  void.     Endel  vs.  Lei-  even  if  the  last  day  or  the  sixth  in- 

brock,  33  0.  S.  268,  Whitehead  vs.  sertion  was  on  Friday.    1  Bates'  PI., 

Post,   2   Dis.   468;    Welch  vs.   Loan  p.  613. 


757  MAILING   NEWSPAPER  §  842 

(Title.)  Case  No 

Probate  Court,  Court,  Ohio. 

E.  F.,  who  resides  at county,  State  of 

Indiana,  and  G.  H.,  whose  residence  is  unknown,  will  take  notice  that  A.  B., 
administrator  of  the  estate  of  C.  D.,  deceased,  on  the day  of 

,  190 . . ,  filed  his  petition  in  the  Probate  Court  of   

county,  Ohio,  alleging  that  the  personal   estate  of  said  decedent  is 

insufficient  to  pay  his  debts  and  the  charges  of  administering  his  estate; 
that  he  died  seized  in  fee  simple  of  the  following  described  real  estate,  to-wit: 

(Here  describe  the  real  estate.)  That  Q.  R.,  the  widow  of  said  decedent, 
is  entitled  to  dower  in  said  real  estate,  and  that  S.  T.  claims  to  hold  a 

mortgage  thereon  for dollars.     The  prayer  of  the  petition 

is  for  the  assignment  of  dower  in  said  property,  that  S.  T.  be  required  to 
answer,  setting  forth  the  particulars  of  his  mortgage  lien  thereon  and  that 
said  property  be  sold  to  pay  the  debts  and  charges  aforesaid.  E.  F.  and 
G.  H.  are  hereby  notified  that  they  have  been  made  parties-defendant  to 
said  petition  and  that  they  are  required  to  answer  the  same  on  or  before 
the day  of 190... 45 

ADMINISTRATOR  OF  ESTATE. 

§  842.     Copy  of  newspaper  to  be  mailed. 

The  statute  further  provides  ^^  that  when  the  residence  of  a 
defendant  is  known,  it  must  be  stated  in  the  publication,  and 
immediately"  after  the  first  publication,  the  party  making  the 
service  shall  deliver  to  the  clerk  '''^  copies  of  the  publication 
with  proper  postage  thereon,  and  the  clerk  shall  mail  a  copy  to 
each  defendant,  directed  to  his  residence  named  therein,  and 
make  an  entry  thereof  on  the  appearance  docket.  It  will  be 
seen  therefore  that  a  duty  devolves  upon  both  the  parties,  and 
the  court,  in  mailing  copies,  if  the  defendant's  residence  is 
known."  In  such  cases  it  would  be  proper  to  make  a  journal 
entry  of  the  fact,  which  may  be  in  the  following  form: 

JOURNAL  ENTRY. 

(Title.) 
This  day  came  A.  B.  and  delivered  to  the  clerk  of  this  Court  copies  of 

Publishing  for  the  unknown  heirs  (S.    &    C.    965);     R.    S.    of    1880, 

of  P.  is  void,  if  P.  be  living.    Archer  §5053;     79     vs.     26;     94     vs.     275, 

vs.  Brushnudit,  5  N.  P.  349;  5  Dec.  §  11298  G.  C] 

340.  A    proceeding    against    unknown 

45  See  §  1415,  Service  of  notice.  heirs    is    valid    if    statute   complied 

See  §  1623,  Assignments.  with.      Sullivan   vs.   Weaver,    10   0. 

See  §  1693,  Condemnation.  275;  Rhodes  vs.  Gunn,  .35  0.  S.  387. 

Proceedings     when     residence     of  Action   against   "the   heirs  of   P., 
heir  or  devisee  is  unknown.     When  deceased,"   does   not  estop  the  chil- 
an    heir    or    devisee    of    a    deceased  dren  if  P.  is  not  deceased.     Archer 
per-son  is  a  necessary  party,  and  it  vs.    Brockschmidt,    5    N.    P.    349;    5 
appears  by  affidavit  that  his  name  Dec.  348. 
and    residence   are   unknown    to   the  46  §§  11292,  11294  G.  C. 
plaintiff",    proceedings    against    him  47  The  Court  or  clerk  must  do  the 
may   be  had   without  naming  him;  mailing,  not  the  party, 
and   the  Court,  or  a  judge  thereof,  The    publication    is    deemed    com- 
shall  make  an  order  respecting  the  plete  on   the  day  of  the   last  inser- 
publication  of  notice,  but  the  order  tion,   and   the  time   set  for   answer 
shall     require     not     less     than     six  sliould  be  the  third  Saturday  there- 
week's  publication.    [51  vs.  57,  §  76;  after. 


§  843  SALE  OF  REAL  ESTATE  758 

The  Morning  Sun,  a  newspaper  of  general  circulation  in County, 

Ohio,  containing  a  publication  of  notice  of  the  pendency  and  time  of  hearing 
of  this  action.  And  one  copy  of  the  said  newspaper  was  this  day  mailed  to 
,  by  the  Judge  ( or  clerk  of  this  Court) . 

The  publishers  of  such  notice  must  also  file  an  affidavit  with 
a  copy  of  such  notice,  which  should  be  made  a  part  of  the  pro- 
ceedings in  the  case. 

§843.    Waiver."^^ 

Summons  may  be  waived  by  the  parties  in  interest  in  several 
ways,  provided  they  are  possessed  of  the  capacity  to  do  the 
same.  First  they  may  acknowledge  on  the  back  of  the  sum- 
mons or  petition  a  waiver  of  the  same/^  or  they  may  by  a  sepa- 
rate paper  enter  their  appearance  and  waive  the  issuance  of 
summons,  or  they  may  do  some  act  in  the  proceeding  that 
the  court  will  construe  as  an  entry  of  appearance.*^  The  stat- 
ute further  provides  that  legal  guardians  may  sign  such  consent 
for  their  wards.^"  But  guardians  ad  litem  can  not  enter  such 
appearance  or  waive  notice,  or  issue  of  summons.^"* 

The  following  may  be  used  as  a  waiver  of  summons,  and  con- 
sent to  sell : 

(Title.) 

We,  the  undersigned,  parties-defendant  to  the  petition  in  said  cause, 
waive  issuing  and  service  of  summons  and  voluntarily  enter  our  appearance 
as  such  defendants,  and  we  do  hereby  consent  to  the  sale  of  the  real  estate 
described  in  said  petition.* 

§  844.  When  guardian  ad  litem  to  be  appointed.  Such 
guardian  can  not  waive  notice,  etc.  "Unless  the  prayer  of 
the  petition  for  a  sale  is  contested,  it  shall  not  be  necessary  to 
appoint  guardians  ad  litem  for  infant  heirs  or  devisees  or  other 
persons  having  the  next  estate  of  inheritance  from  the  deceased 
who  are  defendants.  No  such  guardian  can  waive  notice  or 
service  of  summons."     [R.  S.  §6144.]" 

47a  Recently  a  statute  has  been  en-  of  sale  can  not  be  made  until  aftef 

acted    to    permit    service    by    regis-  answer  day. 

tered  letter,  when  the  judges  have  A  guardian  can  not  enter  the  ap- 

made  an  order  to  that  effect.     See  pearance  of  his  ward  in  a  proceed- 

§  11297-1  G.  C,  107  V.  653.  ing   where   he    sustains   an    adverse 

48  §  11287  G.  C.  interest.     Ream  vs.  Wolls,  61  0.  S. 

49  Fee  vs.  Big  Sand  Iron  Co.,  13  131.  And  in  no  case  can  a  guardian 
O.  S.  563;  Evans  vs.  lies,  7  O.  S.  enter  the  ward's  appearance  and 
233;  Abernathy  vs.  Latimore,  19  O.  waive  service  unless  so  authorized 
286;   Mason  vs.  Embree,  5  O.  277;  by  statute. 

Maholn  vs.  Marshall,  29  0.  S.  611;  See  §  1623. 

Watson   vs.    Paine,   25    0.    S.    340;  so*  §  10782  G.  C,  §844. 

Schafer  vs.  Waldo.  7  0.  S.  309.  51  §  10782  G.  C. 

60  §  10781  G.  C,  §  838.  See  §  838  for  power  oi  guardian 

Unless  consent  is  given,  the  order      to    enter    appearance   of   minor  de- 
fendant. 


759  GUARDIAN    AD    LITEM  §  844 

It  is  generally  provided  by  statute  that  the  defense  of  an 
infant  must  be  by  a  guardian  for  the  suit,  who  may  be  ap- 
pointed by  the  Court  in  which  the  action  is  prosecuted,  or  by  a 
judge  thereof,  or  the  Probate  Judge.'"'^* 

The  above  section  of  the  General  Code  makes  an  exception, 
that  if  the  prayer  of  the  petition  for  sale  is  not  contested,  then 
no  guardian  ad  litem  need  to  be  appointed,  but  if  the  prayer 
of  the  petition  for  sale  is  contested,  then  the  guardian  ad  litem 
Tnust  be  appointed ;  and  a  proceeding  in  which  a  guardian  ad 
litem  was  not  appointed,  would  not  be  binding  upon  such  in- 
fant. But  the  judgment  could  probably  not  be  impeached 
without  showing  some  fraud  or  unfairness,^'  It  would  seem 
under  the  statute,  that  if  at  any  stage  of  the  proceedings  it 
appears  that  the  proceedings  are  to  be  contested,  a  guardian  ad  li- 
tem, ought  to  be  appointed.  It  is  the  duty  of  the  Court  to 
require  the  guardian  ad  litem,  to  faithfully  discharge  his  obliga- 
tions." 

It  may  not  be  improper  to  call  the  Court's  attention  to  the 
provisions  of  the  statute  in  this  respect.  The  matter  of  ap- 
pointing a  guardian  ad  litevi,  I  fear  is  too  often  regarded  as  a 
mere  matter  of  fonn.  Attorneys  likewise  seem  to  be  imbued 
with  the  idea  that  it  is  for  the  purpose  of  complying  with  a 
statutory  provision.  Such  is  not  its  object.  The  object  and 
intent  of  the  statute  is,  that  such  attorney  should  carefully  in- 
vestigate the  rights  of  his  ward  and  should  look  after  them  with 
a  higher  conscientious  regard  of  his  duty  to  a  client  than  is 
required  in  ordinary  cases.  This  minor  defendant  by  reason 
of  want  of  years  is  unable  to  know  his  rights  or  protect  them. 
Attorneys  should  not  be  affronted  if  the  Court  in  sucli  cases 
makes  direct  inquiry  whether  they  have  carefully  looked  into 
the  infant's  rights."*  The  answer  to  be  put  in  by  such  guardian 
ad  litem  is  a.  general  denial.'^ 

in*  See  §  11252  G.  C.     See  §  1384,  Harper  vs.   Cilley,   4   C.  O.    (N.S.) 

Actions  against  ward.  15   Cir.   D.   770;    25  0.   C.  C.   770; 

See   §  1383,  Actions  for  ward.  affirmed  74  0.  S.  447. 

52  Johnson  vs.  Pomeroy,  31   0.  S.  53  §  11250  G.  C. 

247.  54  Long  vs.  Mulford,  17  O.  S.  485. 

See  Massie  vs.  Matthew,  12  0.351.  ss  §  5074  R.   S. 

The  guardian  ad  litem  has  a  right  See  Biggs  vs.  Bickel,  12  0.  S.  49. 

to   take   an   appeal   of   the   case,   if  .Judgment    can    only    be    rendered 

decided  adverse  to  his  client.   In  this  against  an   infant  upon  proof — not 
sense    he    is    a    party   to    the    suit. 


§  845  SALE  OF  REAL  ESTATE  760 

§  845.     How  appointed. 

If  the  infant  is  fourteen  years  of  age  he  may  within  twenty 
days  after  the  return  of  the  summons  or  service  by  publication, 
make  application  to  have  a  guardian  ad  litem  appointed.  If  he 
is  under  age  or  neglects  to  make  an  application  within  such 
twenty  days,  the  application  may  be  made  by  the  plaintiff  or  a 
friend  of  the  infant.  But  the  appointment  cannot  be  made 
until  after  ser\dce  of  summons  or  publication.^* 

The  following  may  be  used  as  a  form  for  such  purpose: 


Now  comes  I.  J.,  a  minor  defendant  over  fourteen  years  of  age,  and 
applies  to  the  Court  for  the  appointment  of  a  guardian  ad  litem  for  him  in 
this  cause,  and  asks  that  X.  Y.  be  appointed  said  guardian. 


FORM  OF  ENTRY  OF  APPOINTMENT. 

{Title.) 

This  cause  came  on  this  day  to  be  heard,  and  it  appearing  to  the  Court 
that  I.  J.,  a  minor  defendant  over  fourteen  years  of  age,  has  been  duly 
served  with  process  herein  and  has  filed  in  this  Court  an  application  to 
have  X.  Y.  appointed  his  griardian.  and  K.  L.,  a  minor  under  fourteen 
years  of  age,  having  been  properly  served  with  process,  it  is  hereby  ordered 
that  X.  Y.  be  appointed  guardian  ad  litem  of  said  minor  defendants,  and 
thereby  X.  Y'.  having  appeared  in  open  Court  accepts  said  appointment. 

The  following  may  be  used  as  a  general  form  for  an  answer 
of  a  guardian  ad  litem.  If  the  minor  has  any  other  defense 
which  could  be  better  reached  by  a  detailed  statement  of  facts, 
the  guardian  ad  litem  should  not  feel  himself  limited  to  the 
mere  formal  denial. 

FORM  OF  ANSWER. 
(Title.) 

Vow  comes  K.  L.  and  T.  .T.,  minor  defendants  hereto  by  X.  Y.,  guardian 
ad  litem  heretofore  appointed  in  this  cause  by  this  Court,  and  for  answer 
to  the  petition  deny  all  the  allesations  therein  contained  prejudicial  to 
said  defendant,  and  further  say  that  they  are  of  tender  years  and  not  ac- 
quainted with  the  law  in  such  cases,  and  therefore  asks  the  Court  to  pro- 
tect their  rights  in  this  case  and  for  such  relief  as  may  be  just. 57 

bv  default.    Massie's  Heirs  vs.  Don-  days     from     return     of     summons, 

aldson,  8  0.  377;   Randall  vs.  Tur-  except  the   minor.     If   he   is   under 

ner,  17  0.  S.  262.  fourteen,  then  the  appointment  can 

It    is    error    to    render    a    decree  be  made  on  application  of  plaintiff 

without  an  answer  from  the  guar-  or  his   next  friend,  any  time  after 

dian    ad    litem.      Sturges    v.    Long-  return  of  summons,  or  the  date  of 

Avorth,  1  O.  S.  545.  the  last  publication. 

56  §  11253  G.  C.  57  An    insane   person    is   defended 

The  appointment  can  not  be  made  in  the  same  wav  as  a  minor.     Such 

until    process    is    properly    served.  an  answer  requires  proof  of  all  the 

Keys  vs.  McDonald,  1  Handv  287.  material  allegations  in  the  adminis- 

It  would  seem  that  if  a  minor  trator's  petition.     Woods  vs.  Butler, 

is   over  fourteen  vears  of  ase  then  23   0.   S.   520.      See   notes   previous 

no  sruardian  cw7  litem   could  be  ap-  section. 

pointed,    on    anv    ppi-snn's    annlica-  Itneednotbeverified.    §  11725G.C. 
tion,  until  the  expiration  of  twenty 


761 


PLEADINGS,  ETC. 


§846 


§  846.     Other  pleadings. 

The  subsequent  pleadings  that  may  be  filed  in  an  action  to 
sell  real  estate'  would  be  governed  entirely  by  the  Code  of  Civil 
Procedure.  Matters  of  defense  v^ould  be  set  up  by  answers, 
or  the  petition  might  be  demurred  to  or  other  defects  taken 
advantage  of  by  motion.  As  before  stated,  a  person  would  not 
be  in  default  for  answer  until  the  expiration  of  the  third  Satur- 
day after  the  second  Monday  from  the  time  the  summons  was 
issued,  or  when  service  is  made  by  publication  after  the  date  of 
the  sixth  insertion  in  the  newspaper.  If  the  widow  desired  to 
have  the  land  sold  and  take  her  dower  interest  in  the  proceeds, 
or  if  she  wished  to  assert  her  right  to  five  hundred  dollars  in 
lieu  of  a  homestead,  it  should  be  done  by  answer.  The  widow's 
right  to  dower  will  be  protected  even  though  she  may  not  have 
filed  an  answer  where  the  same  is  manifest.^^ 


The  following  may  be  used  as  a  form  for  the  answer  of  the 
widow,  the  first  being  where  there  are  no  homestead  rights 
claimed : 

ANSWER  OF  WIDOW. 

Probate  Court,  Clark  County,  Ohio. 


of  the  Estate  of 
deceased,  Pltf. 


et  al. 


Deft. 


No. 


Proceedings  to  Sell  Real  Estate. 
ANSWER  OF  WIDOW. 


And  now  comes ,  one  of  the  defendants  in  the  above 

entitled    cause    and    voluntarily    enters    h .  .  .  .  appearance    herein    and    for 
answer  to  the  petition  in  this  case  filed,  says  that,  .he  is  the  widow.  .  .of 

said ,  deceased,  and  as  such  is  entitled  to 

dower  in  the  premises  described  in  said  petition,  that  h .  .  .  age  is 


Must  deny  all  material  allega- 
tions    prejudicial      to      defendants. 

For  insane  widow,  see  §§  12018, 
11322,   12020   G.   C. 

§  11326  G.  C.  provides  what  the 
answer  of  the  guardian  ad  Utem 
should  contain. 

See  §  1623. 

Under  the  Act  of  1824  no  mode 
was  prescribed  for  notice,  etc.,  and 


the  Court  could  make  such  notice  it 
deemed  proper.  Briggs  vs.  Bickel, 
12  O.  S.  49. 

And  a  sale  might  have  been  sus- 
tained without  service  on  minors. 
Lewis  vs.  Lewis,  15  0.  715. 

See  §  1694.  The  compensation  of 
a  guardian  ad  litem  is  fixed  by  the 
Court  and  taxed  as  part  of  the  costs. 

§  12250  G.  C. 

58  McDonald  vs.  Atea,  1  0.  S.  293. 


846 


SALE    OF    REAL    ESTATE 


Y62 


years,  and.. he  freely  consents  to  said  sale  as  prayed  for,  and 

waives  the  assignment  of  dower  in  said  premises  by  metes  and  bounds, 
or  in  rents  and  profits  and  asks  the  Court  that  said  premises  may  be  sold 

free  from  h. .  .dower  estate  therein,  and  that  the  value  of  such 

dower  estate  may  be  allowed  and  paid  h...in  lieu  thereof  out  of  the 
proceeds  of  the  sale,  such  sum  of  money  as  the  Court  deems  the  just  and 
reasonab?e  value  of  h. .  .dower  interest  in  said  real  estate.ss* 


The  State  of  Ohio,  Clark  County,  ss. 

being  duly  sworn,  says  that  the  statements  in  the 

foregoing  answer  are  true  as  he  verily  believes. 

Sworn  to  before  me  and  signed  in  my  presence  this day  of 

190... 


Probate  Judge. 

ANSWER  AND  CROSS-PETITION  OF  WIDOW. 

(Dower  and  Homestead.) 

Probate  Court,  Clark  County,  Ohio. 


of  the  Estate  of 
deceased, 
et  al. 


Pltf. 
Defts. 


No. 


Petition  to  Sell  Real  Estate. 

Answer  and  Cross-Petition  of 

Widow. 


And  now  comes ,  one  of  the  defendants  in  the  above 

entitled  cause,  and  voluntarily  enters  her  appearance  herein,  and  for  answer 

to  the  petition  in  this  case  filed,  says  that  she  is  the  widow-  of  said 

,  deceased,  and,  as  such,  is  entitled  to dower  in 

the  premises  described  in  said  petition,  that  her  age  is years,  and 

she  freely  consents  to  said  sale  as  prayed  for, 

and  waives  the  assignment  of  dower  in  said  premises  by  metes  and  bounds, 
or  in  rents  and  profits. 

And,  by  way  of  cross-petition,  this  defendant  says,  that  said  decedent 
left  her  as  his  widow  and  composing  a  part  of  his  family;  that  she  is  still 
his  widow  and  unmarried ;  that,  at  the  time  of  his  death,  she  with  her  said 
deceased  husband,  resided  on  said  premises  in  the  petition  descril)ed,  and 
wer^j  using  and  occupying  the  same  as  their  family  homestead;  that  she 
is  still  residing  thereon  and  using  and  occupying  the  same  as  such ;  and 
that  she  is  entitled  to  a  homestead  as  such  widow,  in  the  lands  of  her  said 
deceased  husband,  under  the  laws  of  Ohio  in  such  cases.  (This  defendant 
further  says  that  she  joined  with  her  said  husband  as  his  surety  only,  in  the 
execution  of  said  mortgage  to  said  defendant,  which  said  mortgage  pre- 
cludes the  assignment  of  a  homestead  to  her  by  metes  and  bounds  as  pro- 
vided by  law),  and,  that  it  is  necessary  to  sell  said  premises  to  pay  said 
mortgage  lien. 

Wherefore  this  defendant  asks  that  said  premises  may  be  sold  free  of  her 
dower  and  homestead  therein,  and  that  the  value  of  such  dower  estate  may 
be  allowed  and  paid  her  in  money  out  of  the  proceeds  of  such  sale  as  the 
Court  may  deem  the  just  and  reasonable  value  thereof,  and  that  she  be 
allowed  the  residue  of  the  proceeds  not  exceeding  five  hundred  dollars  in  lieu 
of  her  homesteaa,  after  the  satisfaction  of  said  mortgage  lien  and  the  costs 
of  sale  herein,  and  for  all  relief  to  which  she  may  be  entitled. 


58*  §  12018   G.   C. 


763  DOWEK    AND    HOMESTEAD    RIGHTS  §  846a 

The  State  of  Ohio,  Clark  County,  ss. 

The  within  named  defendant  being  first  duly  sworn,  says  that  the  state- 
ments in  the  foregoing  answer  and  cross-petition  are  true  as  she  verily 
believes. 

Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 

59 


§  846a.    Dower  and  homestead  rigfhts. 

In  the  sale  of  a  deceased  married  person's  real  estate  the  matter 
of  fixing  the  surviving  consort's  rights  therein  often  becomes  one 
of  considerable  difficulty.  If  the  real  estate  was  not  occupied  as  a 
homestead  there  is  little  trouble.  In  such  cases,  widow  and  wid- 
ower stand  in  a  like  position ;  that  is,  they  are  entitled  to  have  a 
one  third  set  off  to  them  in  metes  and  bounds.  If  it  cannot  be 
set  off  it  must  be  assigned  in  the  rents  and  profits."'^'^ 

If  there  are  liens  that  preclude  the  assignment  in  metes  and 
bounds,  or  the  property  is  such  that  this  cannot  be  done,  it 
is  always  advisable  for  the  surviving  consort  to  file  an  answer 
waiving  such  assignment,  and  consent  that  it  be  sold  free  of  the 
dower  interest. 

If  the  deceased  left  a  family  homestead,  that  is  a  place  occu- 
pied by  himself  and  family  as  a  home,  and  left  a  widow  or  minor 
children,  a  homestead  is  to  be  set  off.'^^''  This  seems  to  be  mand- 
atory and  one  court  has  so  held;  it  was  however,  an  obiter 
dictum.^^'^  In  that  case  it  was  merely  held  that  the  allowance 
could  be  made  on  application  while  the  proceeds  were  still  in 
court.  But  Section  10795  does  not  define  what  the  homestead 
right  is.  This  is  defined  by  provisions  of  the  general  homestead 
act,  and  that  a  family  homestead  not  exceeding  $1000.00  in 
value  is  to  be  set  off"'^*^  and  under  this  general  statute,  it  is  con- 
sidered as  a  personal  priviledge.^®**  And  that  it  may  be  lost  on 
failure  to  demand  it.^'^^ 

It  is  laid  down  as  a  general  proposition  that  one  who  is  a 
party  to  a  suit  in  which  a  homestead  right  is  available  as  a  de- 
fense, must  interpose  it,  and  if  he  fails  or  neglects  to  do  so, 
the  judgment  in  such  suit  will  bar  his  subsequent  assertion  of 

58a  §  12011  G.  C.  320;    Schuler    vs.    Miller,    45    O.    S. 

58b  §  1070.5,  §8.57a.  .'?2.5. 

58c  Jones  vs.  Line,  6  N.  P.  .518.  58f]\rcComba  vs.  Thompson,  42  0. 

58'l§  11730  G.  C.  S.  130;   Rehuler  vs.  Miller,  4,5  O.  S. 

sSeConley    vs.    Chilcote,    25    O.    S.  330. 


§  846a  DOWER   AND    HOMESTEAD   RIGHTS  763a 

it.''*'*''  And  if  a  debtor  desires  to  have  the  benefit  of  the  exemp- 
tion act  he  must  claim  it ;  if  not,  his  silence  will  be  construed  as 
a  waiver.'"*" 

Another  section  of  the  general  homestead  law^^^  specifically 
provides  that  the  homestead  shall  be  set  off  on  application  of  the 
party  interested.  So  I  think  the  law  to  be,  that  to  secure  the 
benefit  of  the  homestead  exemption  in  a  proceeding  to  sell  real 
estate  by  an  administrator,  unless  the  same  is  claimed  by  either 
the  widow  or  children,  it  is  waived,  and  it  need  not  be  set  off,  etc. 

Another  section  of  the  homestead  law  provides  if  the  home- 
stead is  so  covered  with  liens  as  to  preclude  the  setting  of  the 
homestead  by  metes  and  bounds  therein,  the  sum  of  $500.00 
may  be  allowed,  out  of  the  proceeds,  after  payment  of  the 
liens.^^^    This  I  think  also  must  be  claimed  or  it  will  be  lost.^^'^ 

If  the  homestead  is  not  subject  to  liens,  or  the  lands  to  be 
sold  are  not  of  a  homestead  character,  nothing  in  money  can  be 
allowed  the  widow  or  children,^*' 

If  the  homestead  consists  of  a  house  and  lot  which  will  not 
bear  division  without  manifest  injury,  the  widow  and  children 
might  possibly  be  allowed  to  occupy  it  on  payment  of  a  reason- 
able rent  not  to  exceed  $100.00  annually,  as  the  appraisers  might 
allow.'^*"  Thus  it  would  be  seen,  that  by  reason  of  the  limited 
and  uncertain  length  of  time  that  a  homestead  may  be  enjoyed, 
it  is  not  often  claimed  in  the  sale  of  lands  by  an  administrator. 

When  the  widow  dies  or  re-marries,  and  no  minor  child  occu- 
pies the  premises,  and  the  premises  have  not  been  sold,  they  may 
then  be  sold.^^° 

The  statute  specially  provides  the  order  in  which  the  home- 
stead shall  be  set  off.  If  there  is  a  homestead,  then  this  is  first 
to  be  set  off — by  metes  and  bounds — to  the  value  of  $1000.00; 
then  the  dower  in  the  whole,  all  the  lands  in  which  she  is  en- 
titled to  dower.  When  this  is  done,  the  premises  are  to  be  ap- 
praised subject  to  such  dower  and  homestead  rights,  and  may 
be  thus  sold. 

58g21  Cyc.  619.  581  Bliss  vs.  Fuchman,  6  0.  C.  C. 

58h  Green  vs.  Fislier,  7  Bull.  133.  203;    3    C.    D.    416;    Wolverton   vs. 

581  §11734  G.  C,  §1599,  note.  Paddock,   3   0.   C.   C.   4S8,   2   C.   D. 

58j  §  11737  G.  C.  279. 

58k  T    know   there    may   be    some  5Sm  §  11735  G.  C.     See  Powell  vs. 

questions    about    a    minor    waiving  Hamilton,  7  Pec.  605. 

his    right,    but    if    he    is    made    a  5Sn  Taylor    vs.    Thorn,    29    0.    S. 

party,  and  does  not  assert  it,  he  is  569. 
^stopped. 


763b 


PROOF   REQUIRED 


§847 


It  has  been  held  that  where  an  executor  sells  real  estate  under 
a  power  in  a  will,  that  the  same  homestead  rights  exist  as  where 
action  to  sell  is  brought  in  the  probate  court.^^** 

§  847.  When  Court  to  order  real  estate  to  be  sold.  Terms 
of  sale.  "If  the  court  is  satisfied  that  it  is  necessary  to  sell 
real  estate  of  the  deceased  to  pay  his  debts,  it  shall  order  so  much, 
thereof  as  is  necessary  for  their  payment  to  be  sold  by  the 
executor  or  administrator,  for  cash  in  hand,  or  upon  deferred 
payment,  not  exceeding  two  years,  with  interest."  [R.  S. 
§6147,  109  V.  12.] 60 

§848.     Proof  required. 

If  no  contest  is  made  and  the  time  for  answer  has  passed, 
and  the  Court  is  satisfied  that  it  is  necessary  to  sell  the  real  es- 
tate to  pay  the  decedent's  debts,  it  shall  order  it  to  be  sold  or 


58oWanzer  vs.  Smith,  2  W.  L.  M. 
432. 

However,  the  real  estate  must 
have  been  sold  to  pay  debts,  etc., 
and  application  made  for  the  ex- 
emption. 

See  §  868,  Assignment  of  dower. 

See  §  867,  When  entitled  to  home- 
stead. 

59  See  §  943  et  seq. ;  Dower, 
§  1623. 

In  a  proceeding  by  an  administra- 
tor to  sell  land  to  pay  judgments, 
the  heir  may,  by  cross-petition, 
attack  the  judgments  for  fraud,  and 
it  is  error  to  hold  them  conclusive 
of  the  fact  and  amount  of  the  in- 
debtedness, thus  precluding  inquiry 
into  the  alleged  fraud  and  collusion. 
Conway  vs.  Duncan,  28  O.  S.  102; 
Donley  vs.  Shields,  14  0.  359. 

On  petition  to  sell  land  to  pay 
judgment  creditors,  an  heir  who  has 
an  interest  may,  by  cross-petition, 
attack  the  judgment  for  fraud.  An 
heir  wlio  had  sold  the  land  on  war- 
ranty still  has  such  interest.  Side- 
ner  vs.  Hawes,  37  O.  S.  532. 

Such  judgment  is  conclusive  evi- 
dence of  indebtedness  of  the  estate, 
and  can  not  be  collaterally  im- 
peached except  for  fraud  or  mistake, 
or  perhaps  culpable  negligence  of 
the  administrator  in  defending. 
Faran  vs.  Ewing,  17  O.  S.  242. 

Denial  of  the  validity  of  the  debts 
by  a  surviving  husband,  subject  to 
whose  curtesy  a  sale  is  asked,  is  no 
resistance  to  the  order,  because  the 
Probate    Court   can    not   adjudicate 


the  validity  of  debts,  and  because 
his  interest  is  not  affected.  Pir- 
mann  vs.  Gerhold,  Goebel,  142. 

The  remedy  is  for  the  party  to 
serve  notice  on  the  administrator  to 
reject  the  claims  under  §  6098  R,  S., 
§561. 

See  §  947. 

When  a  cross-petition  sets  up 
matters  which  are  not  drawn  in 
question  in  the  petition  and  seeks 
affirmative  relief  against  a  co-de- 
fendant, of  a  nature  different  from 
that  sought  in  the  petition,  sum- 
mons must  be  issued  therein.  South- 
ward vg.  Jamison  (Sup.  Ct.),  48 
Bull.  531. 

60  §  10786  G.  C. 

Can  not  order  sale  subject  to 
liens.  Stone  vs.  Strong,  42  0.  S. 
55.  But  where  the  administrator's 
report  of  sale  showed  that  the  pur- 
chaser took  the  premises  subject  to 
a  mortgage,  which  she  assumes  and 
agrees  to  pay,  the  grantee  of  such 
purchaser  will  take  the  property 
subject  to  such  mortgage,  even 
though  the  mortgagee  did  not  set 
up  the  mortgage  upon  these  par- 
ticular premises  in  an  action  to  sell 
them  and  there  was  no  finding  of 
the  Probate  Court  of  the  amount 
due.  Savings  &  Loan  Co.  v.  Weber, 
21  0.  C.  C.  (N.S.)  130.  See  Leist 
vs.  Savings  &  Loan  Co.,  79  0.  S. 
472. 

As  a  general  rule,  it  is  said  it 
mav  be  sold  subject  to  incumbrance. 
18  Cyc.  695. 


§  848  SALE   OF   KEAL   ESTATE  764 

SO  much  as  nec^ssar)'.  "  It  must  clearly  appear,"  says  Judge 
Woenier,  "  that  the  personal  assets  are,  at  the  time  when  the 
application  is  heard,  insufficient  to  pay  the  debts  and  expenses 
of  administration ;  and  that  they  were  so  at  the  time  of  the 
grant  of  letters,  or  have  become  so  in  the  course  of  administra- 
tion for  causes  beyond  the  control  of  the  executor  or  adminis- 
trator and  without  fault  on  the  part  of  the  creditor  or  person 
demanding  the  sale.  Where  the  personal  property  was  orig- 
inally sufficient  for  the  payment  of  the  debts,  but  became  in- 
sufficient in  consequence  of  devastavit  or  neglect  of  duty  by 
the  executor  or  administrator,  the  distributees  or  legatees  may 
insist  on  this  as  a  defense  against  an  order  for  the  sale  of  lands 
devised  or  descended;  and  the  remedy  of  creditors  will  be 
against  the  administrator  personally  and  the  sureties  on  his 
official  bond,  and  not  against  the  land.*'^  But  if  the  personal 
assets,  although  ample  at  the  time  of  the  grant  of  letters  be- 
come insufficient  in  the  course  of  the  administration,  for  any 
cause  not  arising  out  of  the  fault  of  the  executor  or  adminis- 
trator, so  that  neither  he  nor  his  sureties  can  be  held  liable, 
and  the  creditors  have  no  other  remedy,  they  may  resort  to 
the  Probate  Court  for  an  order  to  sell  the  real  estate  for  the 
payment  of  their  claims.*'" 

Upon  the  question  whether  a  devastavit  or  neglect  of  the 
executor  will  be  a  defense  of  the  heirs  against  the  sale  of  the 
land,  is  a  question  upon  which  the  Courts  are  not  in  accord. 
Some  of  the  Courts  holding  that  creditors  are  not  bound  for  the 
wrongful  acts  of  the  administrator,  aiid  although  he  may  be 
liable  on  his  bond,  and  may  have  the  real  estate  applied  on 
their  debts,  there  must  be  some  proof  of  the  allegations  of  the 
petition  if  demanded,  showing  the  necessity  of  the  sale.®^ 

As  against  the  interest  of  a  minor,  the  Court  must  hear  proof, 
and  the  guardian  cannot  admit  the  indebtedness  of  the  estate.^* 

61  The  decisions  are  not  uniform  «3  Martin  vs.   Starr,    7    Ind.   224 ; 

on  this.  Gavin  vs.  Graydon,  41  Ind.  559. 

62Woerner  on  Admin.  1040.     Carr  6  4  See  §  838. 

vs.  Hull.  40  Bull.  271  ■.  47  Bull.  91.  Thompson     vs.     Doe.     8     Blackf. 

See  §  818.  Power  of  court.  336;  Chuk  vs.  Thompson.  47  Til.  25; 


T65  TRIAL    IF    CONTESTED  §  849 

The  fact,  however,  that  the  administrator  has  failed  to  allow  a 
claim  within  the  time  required  hy  the  statute  does  not  prevent 
proof  that  it  is  due  and  owing.^^  If  the  administrator  has  paid 
the  debt,  he  may  he  subrogated  for  the  creditor,  and  that  is  suffi- 
cient proof  of  indebtedness.*'*  He  must  show  th.at  the  debts  he  . 
paid  were  valid  and  not  barred  by  the  statute  of  limitation.'^' 
The  evidence  must  show  that  the  personal  assets  are  not  sufficient 
to  pay  the  debts  or  costs.®^  If  the  question  of  title  is  put  in 
issue,  proof  of  tlie  intestate's  title  is  necessary.^® 

§  849.     Trial  if  contested. 

If  the  proceedings  are  contested,  then  the  same  rules  of 
evidence  and  method  of  procedure  should  be  followed  as  is 
proper  under  the  Code  of  Civil  Procedure.  If  the  issues  raised 
are  such  as  are  triable  by  the  Couii;  without  intervention  of  a 
jury,  the  Court  should  pass  upon  them.  If,  however,  the  is- 
sues are  such  as  by  right,  are  triable  by  a  jury  and  a  jury  is 
demanded  by  any  of  the  parties,  the  judge  should  issue 
an  order  for  the  clerk  of  the  Court  of  Common  Pleas  to  draw 
a  juiy  from  the  jury  box,  and  proceed  to  the  trial  in  the  same 
m-anner  as  other  jury  trials  are  conducted  in  the  Court  of 
Common  Pleas. ^"^ 

§  850.  The  estate  of  the  heirs  in  the  land  set  off  to  the 
widow  may  be  sold.  "The  court  may  include  in  its  order  of 
sale  the  title  of  the  heirs  or  devisees  of  the  deceased  in  the 
premises  set  off  to  the  widow  or  widower  for  dower,  which  may 
be  sold  subject  to  his  or  her  life  estate  therein."  [R.  S. 
§6148.]" 

Hooper    vs.    Hardie,    80    Ala.    114;  67  Gilchrist  vs.  Rea,   9  Paige  66; 

Fridley    vs.    Murphy,    25    111.    146;  Heath  vs.  Wells,  5  Pick.  140. 

Doe  vs.  Anderson,  5  Ind.   33;    Tim-  cs  Thompson  vs.  Joyner,  71  N.  C. 

mons  vs.  Timmons,  6  Ind.  8;  Quarles  3G0;  Newcomer  vs.  Wallace,  30  Ind. 

vs.  Campbell,  72  Ala.  64.  216. 

65/n  re  Haxtun,  102  N.  Y.  157.  en  Jackson    vs.    Weaver,    98    Ind. 

66  Woolley  vs.  Pemberton,  41  N.  J.  307. 

Eq.  394;   Ex  parte  Street,   1   Bland  •?«  See   §409,   for  order   and   form 

Cb.  532,  note;   Pendergass  vs.  Pen-  to  draw  jury 

dergass,  26  S.  C.  19;  Ingram  vs.  In-  See  §  1701  et  seq.,  for  impaneling 

gram,   5  Heisk.  541 ;   Livingston  vs.  jury,  etc. 

Newkirk,  3  Johns.  Ch.  312;  Gist  vs.  ti  §  10787  G.  C. 
Cockey,  7  Har.  k  J.  134. 


§  851  SALE  OF  REAL  ESTATE  766 

§  851.  The  whole  to  be  sold  when  a  partial  sale  would  in- 
jure the  residue.  "If  it  be  represented  in  such  petition  and 
appears  to  the  court  that  it  is  necessary  to  sell  part  of  the  real 
estate,  and  that,  by  such  partial  sale,  the  residue  of  the  estate, 
or  some  specific  part  or  piece  thereof,  would  be  greatly  injured, 
the  court  may  order  a  sale  of  the  whole  of  the  estate,  or  of  such 
part  as  it  deems  necessary  and  for  the  interest  of  all  concerned 
therein."     [R.  S.  §  6149.]^2 

It  is  the  general  practice  to  order  all  of  the  entire  tract  to 
be  sold  unless  it  appears  to  the  Court  that  a  part  could  be  sold 
without  injury  to  the  remainder.  And  as  a  general  rule  the 
Court  orders  the  premises  in  the  petition  described  to  be  sold. 

§  852.     Judgment  and  order  of  sale. 

In  a  great  many  cases  it  will  happen  that  the  real  estate 
has  been  appraised  with  the  personal  property  and  sufficient 
bond  has  been  given  and  there  is  no  widow  or  widower  or  if 
there  be  one,  she  has  filed  her  answer.  In  such  cases  the  fol- 
lowing might  serve  as  a  form  of  entry : 

{Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  of  the  plaintiff, 
filed  for  the  purpose  of  having  the  real  estate  therein  described  sold  to  pay 
the  debts  and  costs  of  administration  of  the  deceased;  and  also  upon  tha 
return  of  summons  issued,  and  the  answer  of  X.  Y.,  guardian  ad  litem, 
appointed  for  the  minor  defendants,  and  the  answer  of  0.  P.  and  Q.  R., 
defendants  herein  named,  as  well  as  by  the  answer  of  M.  N.,  widow  of  said 
deceased.  And  the  Court  being  fully  advised  in  the  premises  finds  that  all 
the  defendants  herein  have  been  legally  served  with  process  and  that  G.  H. 
has  entered  his  appearance  herein  in  writing;  and  that  all  have  been  notified 
of  the  pendency  and  prayer  of  the  petition  as  prescribed  by  law.  And  the 
Court  further  finds  that  M.  N.,  widow  of  the  said  C.  D.,  deceased,  waives 
as  in  her  answer  herein  set  forth,  assignment  of  her  dower  in  said  premises 
in  metes  and  bounds,  and  desires  that  the  same  may  be  sold  clear  and  free 
of  her  said  dower,  and  that  the  Court  set  off  to  her  out  of  the  proceeds 
of  the  sale  of  said  premises  such  a  sum  of  money  as  may  be  just  and 
reasonable  in  lieu  of  her  said  dower  interest ;  and  the  Court  finds  that  the 
allegations  of  said  petition  are  true  and  that  it  is  necessary  to  sell 
the  real  estate  in  the  petition  described  to  pay  the  debts  of  the  deceased 
and  costs  of  administration. 

The  Court  further  finds  that  the  real  estate  in  the  petition  described  was 

appraised  by  the  appraisers  of  the  personal  estate  at 

dollars,  and  the  Court  also  finds  that  the  bond  heretofore  given  by  the 
plaintiff   as   administrator    (or   executor)    of   the   estate   of   C.   D.   in  the 

72  §  10788  G.  C.  An   order   of   sale    is   essential   to 

See  §  858  for  entry  where  ap-  title.  Newcomb  vs.  Smith,  W.  208. 
praisement  is  required. 


767  ENTRY   OP   APPRAISEMENT  §  852a 

amount  of dollars  is  sufficient.     It  is  therefore  ordered 

that  further  appraisement  and  additional  bond  be  dispensed  with.  *  It  is 
now  ordered  that  the  said  A.  B.  as  such  administrator  proceed  to  advertise 
for  sale  on  the  premises  (or  at  the  door  of  the  Court  House)  said  real 
estate  for  four  consecutive  weeks  in  a  newspaper  of  general  circulation  in 
said  county,  in  which  said  land  is  situated  and  he  is  further  ordered  to  sell 
the  same  at  not  less  than  two-thirds  of  the  appraised  value  and  on  the 
following  terms,  to- wit :  One-third  cash  in  hand  and  the  balance  in  one  and 
two  years  from  day  of  sale,  deferred  payments  to  be  secured  by  mortgage 
on  the  premises  sold  and  to  bear  interest.  And  said  plaintiff  is  ordered  to 
make  return  to  this  Court  immediately  after  such  sale.  (If  it  is  desired 
to  employ  an  auctioneer,  or  have  printed  posters,  the  following  should  be 
added: ) 

That  said  A.  B.  is  authorized  to  expend dollars  in  em- 
ploying an  auctioneer  to   cry  said  sale,  and  is  also  authorized  to  expend 

dollars  in  printing  and  posting  bills,  advertising  said 

«ale. 

(If  he  desires  to  sell  said  premises  at  private  sale,  the  above  entry 
should  be  changed,  and  the  following  substituted  from  the  star  mark.) 

And  it  further  appearing  to  the  Court  that  it  would  be  to  the  interest 
of  the  said  estate  to  sell  the  real  estate  described  in  the  above  petition  at 
private  sale,  it  is  now  ordered  that  said  A.  B.  as  such  administrator  proceed 
to  sell  said  real  estate  at  private  sale  at  not  less  than  the  appraised  value 
thereof -in  the  following  terms   (nere  insert  terms ).73 

§  852a.    Entry  of  appraisement — Dower — Homestead. 

{Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  of  plaintiff, 
filed  for  the  purpose  of  having  the  real  estate  herein  described,  sold  to 
pay  debts  and  costs  of  administration  of  the  deceased;  and  also  upon  the 

return  of  summons  issued  and  upon  the  answer  of  ,  widow  of 

said  deceased;  and  upon  the  answer  of   ,  only  heir  at  law  of 

said  deceased,  and  the  evidence;  and  the  court  being  fully  advised  in  the 
premises,  finds  that  all  defendants  herein  have  been  legally  served  with 
process,  and  that  they  all  have  been  notified  of  the  pendency  and  prayer 
of  the  petition  as  prescribed  by  law. 

And  the  court  further  finds  that  the  allegations  of  the  petition  are  as 
to  the  debts  and  liabilities  true  and  that  it  is  necessary  to  sell  the  real 
estate  in  the  petition  described  to  pay  the  debts  of  deceased  and  the  costs 
of  administration. 

And  the  court  further  finds  that   ,  widow  of  said  deceased, 

is  entitled  to  dower  in  said  premises,  and  that  by  her  answer  here  she 
elects  to  have  allowed  to  her,  in  lieu  of  her  said  dower,  such  sum  of 
money,  out  of  the  proceeds  of  the  sale,  as  the  court  deems  a  just  and 
reasonable  value,  of  her  dower  interest  therein. 

And  the  court  further  finds  that  all  the  allegations  in  the  answer  and 

cross-petition  of  said   ,  as  to  her  right  to  have  a  homestead 

by  metes  and  bounds  set  apart  in  said  premises  are  true. 

The  court  further  finds  that  said ,  as  widow  of  said  deceased, 

is  entitled  to  have  a  homestead  set  apart  to  her  in  the  premises  first 
described  in  the  petition,  by  metes  and  bounds,  at  the  value  of  $1,000.00, 

73  See  next  chapter  for  entry  or-  See  §  1623,  Assignments, 

dering  appraisement. 


§  853  EFFECT   OF  ORDER  767a 

to-wit:  The  West  parts  of  Lots  Number  13  and  Number  14  in , 

Ohio,  abutting  on  High  Street  in  said  village,  a  distance  of  ninety    (90) 

feet,  and  abutting  on  Main  Street  in  said   a  distance  of  one 

hundred  (100)  feet. 

Wherefore,  it  is  considered  and  ordered  by  the  court  that , 

and    ,    three    (3)    judicious   and   disinterested 

men,  freeholders  of  the  vicinity,  after  being  first  duly  sworn  and  upon 
actual   view   of   the  premises   in   said   petition   described,   proceed   to   set 

apart  to  said  ,  her  homestead  in  the  premises  first  described 

in  the  petition,  and  hereinbefore  described,  that  they  appraise  said  premises 
first  described  in  the  petition  at  its  cash  value,  free  from  dower  and  sub- 
ject to  said  homestead;  and  that  said  appraisers  proceed  upon  actual  view 
of  the  premises,  to  appraise  the  other  real  estate  described  in  the  petition 
at  its  cash  value,  and  that  an  order  issue  to  said  executor  accordingly. 

In  the  event  a  homestead  can  not  be  set  off  by  metes  and  bounds  in  the 
above    described    property,    being    parts    of    Lots    Number    13    and    14    in 

,  without  manifest  injury  and  inconvenience,  and  if  the  said 

appraisers  find  that  the  same  will  not  bear  division,  they  will  appraise 
the  same  at  its  cash  value,  and  fix  the  reasonable  annual  rental  value  of 
said  homestead  property,  and  make  due  return  accordingly,  to  this  court. 

§  853.    Effect   of   order. 

The  order  of  finding  made  in  a  proceeding  by  an  administra- 
tor or  executor  to  sell  real  estate  is  the  authority  for  such 
executor  or  administrator  to  consummate  a  sale,  "^"ithout  such 
order,  his  proceedings  are  absolutely  void.  It  was  formerly 
held,  that  the  records  of  the  Court  must  show  that  such  order 
was  made,  and  the  mere  endorsement  on  the  back  of  the  peti- 
tion, and  that  petition  was  allowed,  was  not  sufficient.^* 

It  is  no  doubt  still  the  law  that  there  must  be  an  order  made 
by  the  Court,  but  it  is  now  held  that  where  the  petition  shows 
sufficient  facts  to  have  justified  the  order,  the  sale  would  not 
be  set  aside  because  the  journal  does  not  contain  a  record  of 
such  order.  It  will  be  presumed  in  such  case  that  the  order 
was  made.^^    An  order  made  after  its  jurisdiction  was  exhaust- 

74  Newcomb's  Lessee  vs.  Smith,  5  tion,  it  would  be  presumed  that 
0.  447;  Wright,  208.  proof  was  sufficient  to  warrant  the 

75  Sidner  vs.  Hause,  37  0.  S.  532.       judgment. 

In  this  case  the  proceedings  were  While   the   Probate   Court   is   not 

had   in  a  Court  of  Common  Pleas,  a  Court  of  general  jurisdiction,  yet 

and  the  Court  held  that  because  it  it  is   a   Court  of  record,  and  these 

was  in  a  Court  of  general  jurisdic-  proceedings    being    a    civil     action, 


i 


767b  EFFECT  OP  ORDER  §  853 

ed  could  not  be  cured  by  a  nunc  pro  tunc  entry  of  a  prior  date/^ 
Under  our  present  existing  law,  real  estate  cannot  be  sold 
for  the  payment  of  the  debts  of  a  deceased  person,  until  it  is 
ascertained  that  there  will  be  a  failure  of  personal  assets. 
The  Court  must  be  satisfied  of  such  failure,  before  it  can,  with 
propriety  make  an  order  of  sale.  Yet  when  a  sale  has  been 
made,  and  its  validity  is  questioned,  the  reviemng  Court  will 
go  no  further  back  than  to  inquire  whether  it  was  ordered  by 
competent  authority.  "  So  far  as  the  interests  of  the  purchaser 
are  concenied,  we  consider  such  orders  equally  available  as 
judgments.  The  former  can  be  no  more  impeached  collateral- 
ly, because  there  was  an  abundance  of  personal  estate  to  have 
satisfied  all  debts,  than  the  latter  can  by  showing  that  the 
evidence  under  which  they  were  recovered  was  insufficient."  ''^ 
Neither  can  an  order  be  made  after  the  sale  has  been  made.^" 
As  a  matter  of  course  lands  could  not  be  sold  wliich  were  not 
included  within  the  petition,^*'  or  where  there  was  no  order  of 
sale.*^  And  the  same  would  be  applied  to  a  sale  made  under 
an  order  of  a  foreigii  Court-^^  An  heir  might,  however,  by 
his  conduct  be  estopped  from,  attacking  such  a  sale.^^  It  was 
formerly  the  law  that  no  order  of  sale  could  be  issued  until  aft^r 
an  appraisement.  The  statute  now  provides,^*  that  if  no  as- 
signment of  dower  is  required,  the  order  of  sale  and  order  of 
appraisement  may  be  made,  at  the  same  time.  As  a  matter  of 
practice  I  would  say,  that  it  is  better  where  an  appraisement 
is  not  dispensed  with  to  first  make  the  order  requiring  an 
appraisement  and  then  on  the  return  of  the  appraisement  make 

there    is    no    reason    why    the    rule  ^2  Nowler  vs.  Coit,  1  0.  519. 

should    not    be   applied    to   Probate  S3  Saldmons  vs.  Price,  13  0.  368. 

Courts.  See  Price  vs.  Johnson,  1  0.  S.  390. 

77  §  53.  84  §  10793  G.  C,  §  856. 

iLudlow  vs.  Johnson,  3  0.  553.  Where  the  proceedings   are   regu- 

78  Ludlow  vs.  Johnson,  3  0.  553.  lar  it  will  be  presumed  that  infant 

79  Ludlow  vs.  Pai'k,  4  0.  5.  heirs  had  notice  and  that  the  court 

80  Ludlow  vs.  Park,  4  0.  5.  had      jurisdiction.       Hamilton      vs. 

81  Mawhorter   vs.    Armstrong,    16  Stewart,   5    N.   P.    (N.S.)    553;    18 
0.  1S8.  Dec.  130. 


§  854  JUDGMENTS COST  768 

an  order  of  sale,  this  will  tend  to  preserve  a  better  order  of 
regularity  in  the  matter.  It  may  not  be  necessary  in  this  order 
of  sale  to  make  a  finding,  that  the  parties  have  all  been  properly 
served  and  have  had  due  notice  as  required  by  law.  But  as  a 
finding  of  such  fact  cannot  be  impeached  collaterally  it  is  very 
good  practice  to  make  a  finding  on  that  subject.*^  This,  of 
course,  would  only  be  true  where  the  proceedings  show  that  the 
Court  had  jurisdiction,  and  in  that  respect  shows  the  impor- 
tance of  having  the  petition  set  forth  all  the  jurisdictional 
facts.  Until  the  order  of  sale  is  made,  the  administrator  or 
executor  has  no  power  to  negotiate  for  such  sale.  Even  under 
an  order  of  private  sale  afterwards  had,  he  could  not  be  held  to 
carry  into  execution  a  contract  he  had  made  to  sell  the  real 
estate,  which  contract  was  entered  into  before  the  order  was 
made.  The  order  of  Court  in  such  case  is  subject  to  the  general 
rules  which  govern  judgments,  that  parties  thereto  are  only 
concluded  in  the  capacity  in  which  they  sue  or  are  sued.*®  If 
the  administrator  is  compelled  to  take  back  land  once  sold  under 
a  valid  order,  by  reason  of  the  failure  of  the  purchaser  to  com- 
ply with  the  terms  of  his  purchase,  such  land  may  be  resold 
"without  any  further  order  of  Court.  *^ 

An  order  of  sale  made  upon  the  application  of  an  executor 
or  administrator  directing  the  sale  of  a  decedent's  real  estate 
for  the  payment  of  his  debts,  is  in  the  nature  of  a  judgment 
and  can  not  be  collaterally  impeached  for  mere  errors  or  irreg- 
ularities, if  the  Court  making  the  order  had  jurisdiction  of  the 
subject-matter  and  of  the  person.** 

§  854.  Costs  when  there  are  objections  to  granting  order 
for  sale.  "If  a  party,  in  his  answer,  objects  to  granting  an 
order  for  the  sale  of  real  estate,  by  an  executor  or  administrator, 

85  Richard  vs.  Skiff,  —  0.  S.  586.  Allowance  made  to  the  widow  by 

86  Barrett  vs.  Choen,   19  Ind.  56.  way  of  dower  or  homestead  can  not 

87  Stowe  vs.  Banks,  M.  27  S,  W.  be  attached  by  filing  exception  to 
347.  the   account    of   the    administrator, 

But  he  had  better  report  such  fact  such  would  be  a  collateral  attack, 
knd  get  an  order.  In  re  Hess,  33  0.  C.  C.  449. 

88  Pepper  vs.  Zahnzinger,  94  Ind. 
88;   Henry  Prob.  Prac,   §243. 


769  JUDGMENTS — COSTS  §  854 

and,  on  hearing,  it  appears  to  the  court  that  either  the  petition 
or  the  objection  thereto  is  unreasonable,  it  may  award  costs  to 
the  party  prevailing  on  that  issue."     [R.  S.  §  6153.] ^'^ 

89  §  10792  G.  C. 


§  655  REAL  ESTATE  APPEAISEMENT  779 


chaptp:r  xlviii. 

EEAL  ESTATE.     APPRAISEMENT. 

§  855    Object  and  purpose.  §  865  Employment  of  surveyor. 

§  856     Appraisement  when  no  dower  §  866  Subdividing  and  platting. 

is  to  be  assigned.  §  867  Assignment    of   homestead. 

§  857     Appointment     of    appraisers.  §  867a  Homestead      for      decedent's 

Duty  as  to  dower  and  home-  family. 

stead.      Copy    of    order    to  §  867b  Money    consideration    in    lieu 

issue.  of   homestead. 

§  857a  Dower  and  homestead.  §  868  When  entitled  to  homestead. 

§  857b  Lands      in      two      or      more  §  860  Assignment   of  dower. 

covmties.  §  870  Dower   specially   assigned   to 
§  858     Judgment   and    order    to   ap-  be  a  charge  on  the  land. 

praise,    etc.  §  871  Report. 

§  859     Copy   of   order   and   form    of  §  872  Compensation    of    appraisers. 

return.  §  873  Executor  or  administrator  to 
§  860    Who   may    '      appraisers.  give  bond,  etc. 

§  861     Vacancy  in  office  of  apprais-  §  874  Form   of   bond. 

ers;  how  filled.  §875  And  give   additional  bond  to 
§  862    Valuation.  secure  further  assets  if  re- 

§  863     Appraisers  may  be  sworn  by  quired.     I     viiat  Court. 

whom.  §  876  Confirmation  of  appraisement 
§  864     Actual  view.  and  order  of   sale. 

§  855.     Object  and  purpose. 

By  a])])raisement.  of  property,  we  mean  an  ascertainment  of 
its  just  value;  it  is  a  preliminaiy  proceeding  to  the  execution  of 
a  judicial  sale.  An  administratoi^s  or  executor's  sale  of  real 
estate  made  otherwise  than  by  authority  of  the  will,  is  a  judicial 
sale.  It  is  said  that  an  appraisement  is  necessary  to  guide  the 
discretion  of  the  Court  in  approving  or  disapproving  the  sale, 
and  as  a  means  of  furnishing  prima  facie  evidence  of  value,  any 
question  affecting  the  liability  or  fides  of  executors  or  adminis- 
trators and  purchasers.^ 

The  statute  describes  in  detail  the  method  to  be  pursued,  in 
order  to  have  a  sale  regularly  made;  and  some  states  hold  that 

1  Woerner   on   Admin.    1053 ;    Cit- 
ing Noland  vs.  Barrett,  122  Mo.  187. 


T71  OBJECTS  AND  PURPOSES  §  856 

a  valid  judicial  sale  cannot  b©  held  without  a  regular  appraise- 
ment. But  the  rule  in  Ohio  would  seem  to  be,  that  the  sale 
of  real  estate  by  an  executor  or  administrator  without  first  hav- 
ing had  tlie  same  appraised  is  a  mere  irregularity  which  will 
cause  it  to  be  set  aside  in  a  direct  proceeding  for  that  purpose ; 
and  the  purcliaser  could  not  bo  compelled  to  comply  with  tho 
terms  of  sale,  and  that  a  sale  made  without  appraisement  can- 
not be  attacked  in   a  collateral  proceeding.^ 

While  the  same  importance  might  not  attach  to  the  details  of 
an  appraisement  as  would  to  the  statements  in  a  petition  and 
a  finding  thereon,  yet  in  order  to  avoid  the  annoyance  and  vexa- 
tion arising  from  having  a.  sale  set  aside,  which  the  Courts  will 
always  do  where  the  statute  is  not  complied  with,  it  becomes  es- 
sential that  the  statute  be  followed  fully  and  completely.  In 
addition  to  tlie  ordinary  matters  attaching  to  a  judicial  sale,  arc 
those  under  administrators'  and  executors'  sales  relating  to  the 
assignment  of  dower  and  homesteads.  It  will  b©  observed  that 
there  are  three  different  kinds  of  appraisements,  which  seem 
to  be  contemplated  by  the  statuta  First  there  is  an  appraise^ 
ment  of  the  real  ©state  free  from  any  other  claims.  Second 
there  is  an  assignment  of  dower  and  appraisement  of  the  real 
estate,  and  Third  there  is  an  assignment  of  dower  and  homestead 
and  appraisement.  These  will  be  discussed  in  the  following 
sections.^ 

§  856.    Appraisement  when  no  dower  is  to  be  assigned.    "If 

the  deceased  left  no  widow  or  widower,  entitled  to  dower  in  the 
estate  to  be  sold,  and  an  appraisement  of  such  real  estate  is  con- 
tained in  the  inventory,  the  court  may  order  a  sale  according 

2  But  when  the  jiid::,nnent  debtor,  void,  for  want  of  an  appraisement, 

who  ought  to  be  vigilant,  if  he  will  or    on    account   of    a    defective    ap- 

enjoy  his  privileges  and  protect  his  praisenient.     The  judgment  debtor's 

rights,    stands    by    and    suffers    the  remedy    is    against    the    officer    for 

sheriflf   or   other   officer   to   sell   his  neglect  of  duty ;  and  to  him  he  must 

lands,  after  judgment,  execution  and  look  for  redress,  for  the  injury  he 

lexy,    receive    the    purchase    money  has  sustained.     Allen  vs.  Parish,  3 

and   execute  and   deliver  a  deed   of  O.   187. 

conveyance   to   the   purchaser,    such  3  See   §   1593,  Assignees.     Exemp- 

aale   is  not  vitiated,   nor   the  deed  tion. 


§  857  REAL   ESTATE    APPRAISEMENT  772 

to  it,  or  order  a  new  appraisement.  If  a  new  one  is  not  ordered, 
the  appraisement  set  forth  in  the  inventory  shall  be  the  ap- 
praised value  of  the  real  estate.  If  the  court  orders  a  new 
appraisement,  the  value  returned  shall  be  its  appraised  value. 
The  order  of  sale,  and  for  the  appraisement,  may  be  made  at 
the  same  time,  if  no  assignment  of  dower  is  required."  [R.  S. 
§6154.]* 

§  857.  Appointment  of  appraisers.  Duty  as  to  dower  and 
homestead.  Copy  of  order  to  issue.  "Except  when  there  has 
been  a  valuation  of  the  real  estate  in  the  inventory,  and  the 
court  dispenses  with  another  appraisement,  upon  finding  that  a 
sale  is  necessary,  it  shall  appoint  three  judicious  disinterested 
men  of  the  vicinity,  who  are  freeholders,  to  appraise  the  lands 
at  their  true  value  in  money."     [R.  S.  §  6155.]^ 

§  857a.  Dower  and  homestead.  "If  the  deceased  left  a 
family  homestead,  and  a  \ndow  or  a  minor  child  or  children, 
or  both,  entitled  to  have  a  homestead  set  off,  the  court  shall 
order  the  appraisers  first  to  set  off  and  assign  such  homestead. 
If  he  left  a  widow  entitled  to  dower  in  the  premises,  the  court 
also  shall  order  them  to  set  off  and  assign  to  her  in  each,  or  in 
one  or  more  of  the  tracts  of  land,  by  metes  and  bounds,  one- 
third  part  of  the  whole  lands  in  which  she  is  entitled  to  dower, 
as  and  for  such  dower,  and  to  appraise  the  whole  premises 
either  as  a  whole  or  in  parcels,  subject  to  such  homestead  and 
dower,  or  in  ease  there  is  no  such  homestead,  then  subject  to  such 
dower  so  assigned,  and  in  case  there  is  no  such  dower  then 
subject  to  such  homestead.  If,  on  view,  the  appraisers  find  inat 
the  dower  can  not  be  so  assigned,  they  then  must  assign  such 
dower  specially  as  of  the  rents  and  profits."     [R.  S.  §  6155.]^* 

^  857b.  Lands  in  two  or  more  counties.  "If  the  lands  lie 
in  two  or  more  counties,  if  it  deems  fit,  the  court  may  appoint 
appraisers  in  more  than  one  of  the  counties.  In  all  cases  a  copy 
of  the  order  to  be  executed  shall  be  issued  to  the  executor  or 
administrator,  and  any  lands  subject  to  such  homestead  aiid 
dower,  or  either,  may  be  sold  pursuant  to  the  provisions  of  this 
chapter."     [R.  S.  §6155.]^t 

4  §  10793  G.  C.  filed     no     answer.       McDonald     vs. 
The    finding    and    order    for    sale      Aten,  1  O.  S.  293. 

given  in  a  previous  chapter  may  be  If  the  husband  was  not  the  owner 

used  where  there  is  no  assignment  of  of    a    homestead    the    widow    is    not 

dower.     8  852.  entitled   to  an  allowance  in   lieu  of 

5  §  10794  G.  C.  a   homestead.      Wolverton    vs.   Pad- 
B*  §  10795  G.  C.  dock,  3  C.  C.  4S8:  2  C.  D.  279. 
§646a.     The  dower  of  the  widow  5t  §  10796  G.  C. 

will  be  protected  although  she  has 


773  JUDGMENT OEDER  TO  APPRAISE  §  858 

§  858.     Judgment  and  order  to  appraise,  etc. 

If  upon  the  hearing  of  the  case  it  is  found  necessary  to 
have  an  appraisement  or  assignment  of  dower  or  a  setting  apart 
of  a  homestead,  an  entry  should  be  made  embodying  such  facts. 
The  following  may  serve  as  a  form: 

{Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  of  the  plaintiff 
filed  for  the  purpose  of  having  the  real  estate  therein  described  sold  to  pay 
debts  and  costs  of  administration  of  the  deceased ;  and  also  upon  the  return 
of  summons  issued  and  the  answer  of  the  guardian  X.  Y.,  for  the  minor 
defendants,  and  an  answer  of  0.  P.  and  Q.  R.  herein  named,  as  well  as  by 
the  answer  of  M.  N.,  widow  of  said  deceased;  and  the  Court  being  fully 
advised  in  the  premises,  finds  that  all  defendants  herein  have  been  legally 
served  with  process,  and  that  G.  H.  has  entered  his  appearance  in  writing, 
and  that  all  have  been  notified  of  the  pendency  and  prayer  of  the  petition 
as  prescribed  by  law;  and  the  Court  further  finds  that  M.  N.,  widow  of 
said  C.  D.,  deceased,  is  entitled  to  dower  in  said  premises  (and  also  add  if 
•uch  be  the  fact)  and  finds  that  M.  N.  as  widow  of  said  deceased  is  entitled 
to  have  a  homestead  set  apart  in  the  premises  described  in  the  petition; 
and  the  Court  further  finds  that  all  the  allegations  of  the  petition  are 
true,  and  that  it  is  necessary  to  sell  the  real  estate  in  the  petition  described 
to  pay  the  debts  of  deceased  and  costs  of  administration. 

Wherefore  it  is  considered  and  ordered  by  the  Court  that  O,  P.  and  Q.  R. 
and  X.  Y.,  three  judicious  and  disinterested  men,  freeholders  of  the 
vicinity,  after  being  first  duly  sworn  and  upon  actual  view  of  the  premises 
in  said  petition  described,  appraise  the  same  at  its  cash  value,  subject  to 
the  dower  estate  of  the  said  M.  N.  (and  if  such  be  the  facts)  and  also 
subject  to  the  homestead  set  apart  to  said  M.  N.  Said  appraisers  will 
proceed  to  set  apart  to  said  M.  N.,  her  homestead  and  dower  rights  in  the 
premises  in  the  petition  described.  They  may  call  to  their  aid  a  civil 
engineer  to  define  the  metes  and  bounds  of  said  lands.  (If  it  is  desired  or 
thought  advisable  to  have  the  premises  platted,  the  entry  may  conclude  as 
follows)  : 

And  said  appraisers  are  authorized  to  divide  and  subdivide  the  said 
premises  as  in  their  best  judgment  they  deem  proper  and  appraise  the  same 
separately  and  as  a  whole,  and  return  the  same  to  this  Court  for  coh- 
firmation.6 

§  859.     Copy  of  order  and  form  of  return. 

The  statute  provides  that  in  all  cases  the  copy  of  the  order 
to  be  executed  shall  be  issued  to  the  executor  or  administrator.' 
This  makes  it  mandatory  on  the  Probate  Judge  to  give  to  the 
administrator  an  order  setting  forth  what  is  to  be  done.  This 
is  no  doubt  required  to  secure  regularity  in  the  proceedings. 
It  will  vary  in  different  cases,  but  the  following  may  with 
slight  changes  be  made  to  subserve  every  purpose. 

8  See   §  1420,  Gdns.   order  to  ap-  See    §  852    for    entry    where    ap- 

praise, praisement   was   made   with   inven- 

7  §§  10794-5-6  G.  C.  tory. 


§859 


REAL    ESTATE    APPRAISEMENT  774 


APPRAISEMENT- 


The  State  of  Ohio,   Clark   County,   ss. 
Probate   Court. 

To 

Greeting : 

In  obedience  to  an  order  and  decree  of  the  Probate  Court,  within  and 
for  said  county,  made  this  day,  in  a  certain  cause  wherein  you  as...... 

are  plaintiff,  .and et  al.,  are  defendants,  you  are  com- 
manded that  by  the  oaths  of and judicious,  dis- 
interested men  of  the  vicinity,  not  of  kin  to  the  petitioner,  who  are  free- 
holders of  the  county  in  which  said  real  estate  is  situated,  a»d  upon 
actual  view,  you  cause  to  be  set  off  and  assigned  to ,  com- 
posing part  of  the  decedent's  family  at  the  time  of  his  death,  by  metes 
and   bounds,   a  homestead,    not   exceeding   one   thousand   dollars   in  value, 

and  to  be  set  off  and  assigned  to ,  widow.  .  .  .of  the  said 

deceased,  one  full  equal  third  part,  as  and  for  h. .  .dower  estate 

in   the  following   described   premises,   to-wit: 

And  that  said  appraisers  having  set  off  and  assigned  said  homestead 
and  dower  as  aforesaid,  do  upon  their  oaths  and  actual  view,  as  afore- 
said, make  a  just  valuation  and  appraisement,  according  to  law,  of  said 
real  estate,  subject  to  such  homestead  and  dower  so  assigned. 

You  will  make  return  of  your  proceedings  to  this  Court  forthwith  upon 
execution  of   this   order. 

Witness  my  signature  and  the  Seal 

of  said  Probate  Court  at , 

Ohio,    this day    of A. 

D.  19.... 


RETURN.  Probate  Judge. 

To  the  Probate  Court  of  Clark  County,  Ohio: 

In  obedience  to  the  foregoing  order,  I  have  caused  the  same  to  be  duly 
executed,  as  will  fully  appear  by  the  proceedings  hereto  attached. 

Dated  the day  of ,  19 

OATH    OF    APPRAISERS. 

The  State  of  Ohio,  Claj-k  County,  ss. 

We,  the  undersigned  appraisers,  do  make  solemn  oath  that  we  will, 
upon  actual  view,  honestly  and  impartially  appraise  the  within  described 
real  estate  at  its  fair  cash  value,  and  perform  the  duties  required  of  ua 
in  pursuance  of  the  foregoing  order. 

(Sign) 

Sworn  to  before  me  and  signed  in  my  presence,  this day  of 

,   19..  .. 

appraisers'  return. 

In  obedience  to  the  foregoing  order,  after  being  first  duly  sworn  and 
upon  actual  view  of  the  premises  therein   described,  we,  the  undersigned 

appraisers,    do   set    off   and   assign    to composing 

part  of  decedent's  family  at  the  time  of  his  death,  a  homestead,  not  exceed- 
ing one  thousand-  dollars  in  value,  being  so  much  of  said  premises  as  is 
contained  within  the  following  bounds,  to-wlt: 

And  we do  set  off  and  assign  to widow  of 

said deceased,  as  and  for  h . .  .  dower  estate  in  said  premises, 

so  much  thereof  as  is  contained  wathin  the  following  bounds,  to-wit: 

do    find    said    premises    are    entire,    and    that   dower    cannot    be    assigned 

therein  by  metes  and  bounds,  and  therefore  we  do  set  off  and  assign  to 

■aid ,  widow .  .  of  said ,  deceased,  as  and  for  h . . . 

dower    therein,    the    sum    of dollars,    yearly,    during    h...life, 


775  WHO    MAY    BE    APPRAISERS  §  860 

being  one-third  part  of  the  clear  annual   rents,  issues  and  profits  of  said 
premises.     And,  subject  to  and  encumbered  by  said  homestead  and  dower 

so  assigned,  we  do  estimate  the  value  of  said  real  estae  at 

dollars. 

Given  under   our   hands,   this day  of ,    19.  .  .. 

(Sign) 

Fees  of  appraisers  $1.00  per  day  each.s 

§  860.     Who  may  be  appraisers. 

The  language  of  the  statute  is,  that  the  Court  shall  appoint 
three  judicious  disinterested  men  of  the  vicinity  who  are  free- 
holders.® Judicious,  means  the  possession  of  sound  judgment 
and  the  exercise  of  reason  and  wisdom.  Its  proper  use  here  is 
to  mean  the  choice  of  a  person  who  is  in  the  habit  of  exercising 
good  common  sense,  and  one  who  has  sufficient  knowledge  of 
real  estate  to  enable  him  to  determine  its  value.  A  disinter'- 
ested  person  is  one  who  is  free  from  self  interest.  It  would 
be  very  difficult  to  define  what  would  in  all  cases  constitute  an 
interested  or  disinterested  person.  But  as  applied  to  apprais- 
ers it  should  mean  one  who  is  not  or  will  not  be  affected  in  any 
manner  by  either  a  high  or  low  valuation,  or  in  the  portion 
that  may  be^  set  off  to  the  widow  as  her  dower  or  homestead. 
The  person  selected  ought  not  to  be  a  relative  or  a  creditor  of  the 
deceased.  ISTeither  ought  he  to  be  a  prospective  purchaser.  Of 
the  vicinity,  means  in  the  neighborhood.  It  is  very  doubtful 
whether  the  appraisers  must  reside  in  the  county  in  which  the 
land  is  located,  provided  the  land  is  in  such  a  part  of  the 
county  that  the  appraiser  would  be  within  the  vicinity,  even 
though  he  resides  in  another  county.  If  the  land  is  in  two  or 
more  counties  the  Court  may  appoint  appraisers  in  each  of 
said  -  counties.  In  all  cases  the  Court  ouglit  to  appoint  only 
such  persons  as  are  qualified  by  age,  residence,  experience  and 
business  abilities  to  determine  the  true  value  of  the  property. 
As  applied  to  an  appraiser,  vicinity  means  the  selection  of  a 
person  who  lives  close  enough  to  the  property  to  be  appraised,  to 
be  enabled  to  fix  the  value  by  the  general  value  of  the  sur- 

s  That  the  order  did  not  describe  See  §  871,  Report  dower  assigned, 

the  lands  is  a  mere  irreguhiriLy,  and  9  §§  10794-5-6  G.  C,   §  857. 

not  ground   for   collateral    imijeach-  The  courts  have  held  tliat  vicinity 

ment,  as  in  ejectment  by  the  heirs  may  mean  within  the  county,  but  it 

against  the  buyer.    Herbst  vs.  Bates,  seems   it    should   better   be   held   to 

13  B.  565.  mean  neighborhood. 

See  §  872  as  to  Fees. 


§  861  REAL    ESTATE    APPRAISEMENT  776 

rounding  property.  A  freeholder  is  one  who  owns  the  fee  or  a 
life  estate  in  real  estate.  Under  our  statute  the  owner  of  a 
ninety-nine  year  lease  renewable  forever,  would  be  a  freehold- 
er. The  Court  is  presumed  to  appoint  the  appraisers,  but  the 
fact  that  the  administrator  selected  the  appraisers  will  not 
avoid  the  sale." 

While  the  statute  does  not  say  so  it  of  course  means  that  the 
appraisers  shall  be  men  over  twenty-one  years  of  age.  The  ad- 
ministrator and  the  Court  should  both  be  careful  to  ascertain 
that  the  appraisers  have  the  statutory  qualifications.  The  ab- 
sence of  such  statutory  qualification  would  not  make  void  a 
sale,  after  the  same  had  been  confirmed." 

§  861.  Vacancy  in  ofRce  of  appraisers;  how  filled.  "When 
a  person  appointed  by  the  court  as  an  appraiser  fails  to  dis- 
charge his  duties,  the  probate  judge  or  a  justice  of  the  peace  of 
the  county  in  which  the  lands  to  be  appraised  are  situated,  at 
the  instance  of  the  executor  or  administrator,  may  appoint  an 
appraiser,  of  which  appointment  the  officer  appointing  shall 
make  and  sign  a  certificate  which  must  be  returned  with  the 
appraisements,  or  the  executor  or  administrator  may  apply  to 
the  court  making  the  order  of  appraisement  and  have  another 
appraiser  appointed."     [R.  S.  §6156.]i2 

The  above  section  contemplates  that  three  persons  should 
always  act  in  making  the  appraisement,  and  if  three  persons  do 
act  a  report  signed  by  two  would  be  sufficient,  the  action  of  a 
majority  being  binding.^'  Where  possible  the  plaintiff  should 
not  exercise  the  above  privilege  of  having  a  Justice  of  the  Peac« 
make  the  appointment,  but  should  have  the  Court  make  a  new 
appointment. 

§  862.     Valuation. 

They  are  to  appraise  the  lands  at  their  true  value  in  money. 
This  "  true  value  in  money  "  means  its  fair  cash  price  or  what 
is  known  as  its  market  value.     The  market  value  is  not  what  a 

10  Rice  vs.   Cleghorn,  21   Ind.  80.  isNJchoig  vs.  Balzer,  1  C.  C.  47; 

11  See  §  1595,  Assignments.  1  C.  D.  29. 

12  §  10797  G.  C. 


777  VALUATION  §  863 

piece  of  property  can  be  bought  at  by  taking  advantage  of  the 
necessities  of  the  seller,  nor  by  bringing  the  property  to  sale 
under  foreclosure.  Such  situations  have  a  tendency  to  dimin- 
ish the  value  of  the  property.  Nor  on  the  other  hand  is  it  fair 
to  make  as  a  standard  of  value  the  case  where  the  buyer  may  be 
compelled  to  take  the  property  by  reason  of  some  unusual  sur- 
roundings or  circumstances.  It  is  the  highest  price  which  those 
having  the  ability  and  occasion  to  buy  are  willing  to  pay.  As 
a  general  rule,  the  market  value  of  real  estate  is  to  be  ascer- 
tained from  sales  either  of  property  out  of  the  same  tract  or  of 
property  in  the  immediate  vicinity  having  substantially  the 
same  surroundings  and  the  same  conditions,^*  The  fact  that 
property  might  be  sold  for  two-thirds  of  its  appraised  value  is 
no  excuse  for  the  appraisers  fixing  a  value  greater  than  its  true 
value  in  money. 

§  863.  Appraisers  may  be  sworn  by  whom.  ' '  The  appraisers 
shall  be  sworn  by  some  officer  authorized  to  administer  oaths,  and 
a  certificate  thereof  inserted  in  or  annexed  to  their  return.  In 
the  absence  of  such  officer,  the  administrator  or  executor  may 
administer  the  oath.  Afterward,  upon  actual  view,  they  must 
perform  the  duties  required  of  them  by  the  order  of  the  court, 
and  make  return  of  their  proceedings  to  it  in  writing. "  [R  S. 
§6157;  103  V.  245.]  1= 

This  oath  may  be  administered  by  any  one  who  is  authorized 
to  administer  oaths  generally.  The  section  referring  to  the 
oath  to  be  administered  to  appraisers  of  personal  property  per- 
mits the  same  to  be  administered  by  an  administrator  or  execu- 
tor. ^^ 

However,  in  proceedings  to  sell  real  estate  the  statute  as 
formerly  existing  did  not  confer  such  power  on  the  administra- 
tor^^ and  the  above  section  is  now  amended  to  permit  the  same 
in  Real  Estate  Proceedings.  The  oath  must  be  administered 
before  they  enter  upon  the  discharge  of  their  duties.  The  form 
of  oath  may  be  as  follows: 

FORM  OF  OATH. 

State  of  Ohio county,  ss. 

Personally  appeared  before  me,  the  undersigned,  a  notary  public  in  and 
for  said  county,  B.  A.,  D.  C.  and  F,  E.,  who  upon  being  duly  sworn  say, 

14  0.  S.  Ry.  Co.  vs.  Snyder,  5  N.  15  §  10798  G.  C. 

P.  461 ;  5  Dec.  480.  16  §  11649  G.  C,  §  290. 


§  864  REAL    ESTATE    APPRAISEMENT  778 

that  they  will  upon  actual  view,  honestly  and  impartially  assign  dower 
and  appraise  the  real  estate  in  the  foregoing  order  described  and  perform 
the  duties  required  of  thera  by  said  order.  (Sworn  to,  etc.)^' 

§  864.     Actual  view. 

The  appraisers  shall  after  they  have  been  duly  sworn,  upon 
actual  view  perform  the  duties  required  of  them.  In  a  recent 
case  in  the  Insolvency  Court  at  Cincinnati,  it  was  held  that  ap- 
praisers of  real  estate  upon  which  there  are  buildings  situated 
must  enter  such  buildings  and  go  through  them,  so  they  may 
ascertain  the  character  of  the  interior  finishings,  and  the  plumb- 
ing and  fixtures  which  are  in  the  interior  of  the  building;  and 
where  the  same  had  not  been  done  the  appraisement  was  set 
aside.^° 

In  an  earlier  case,  where  it  was  shown  that  the  appraisers  had 
not  gone  through  the  buildings,  but  had  returned  an  appraise- 
ment at  eight  thousand  dollars,  an  affidavit  of  competent  wit- 
nesses who  had  gone  through  the  buildings  fixing  the  valuation 
at  ten  thousand  dollars,  were  filed,  the  appraisement  was  set 
aside  without  specifically  holding  that  they  were  required  to 
view  the  interior  of  tlie  building.^^  Where  the  real  estate  to  be 
appraised  is  naked  land,  the  appraisers  ought  to  go  within 
actual  view  of  every  part  of  the  entire  tract.  If  it  is  shown  that 
an  appraisement  has  been  made  without  actual  view,  upon  ap- 
plication made  before  the  sale  or  confirmation  of  sale  the  Court 
will  set  aside  the  appraisement  and  order  a  new  one.^" 

§  865.     Employment  of  surveyor. 

V-Hiere  dower  is  to  be  set  off  or  a  homestead  set  apart,  it  is 
imperative  on  the  part  of  the  administrator  and  appraisers  to 
secure  the  services  of  a  competent  civil  engineer.  There  might 
be  a  case  in  which  the  services  of  a  civil  engineer  could  be  dis- 
pensed with,  but  such  a  one  would  be  exceptional.     It  is  very 

17  See   §   1595,  Assignments.     Ap-  20  Creditors  vs.  Search,  3  W.  L.  M, 
praisers.                                                          319. 

18  See  42  Bull.  89;  9  Dec.  830.  See  §  1596,  Assignments. 

19  Mills    vs.    Life    Association,    4 
Bull.  935. 


779  SURVEYOR SUBDIVIDING  §866 

often  exceedingly  important  where  old  land  marks  have  been 
destroyed,  that  a  re-surv^ey  be  made  even  where  there  is  no 
dower  or  homestead  to  be  set  off.  In  all  snch  cases  the  adminis- 
trator or  executor  should  use  his  discretion.  It  might  be  ad- 
visable to  provide  in  the  journal  entry  for  the  calling  in  of  a 
civil  engineer  to  aid  the  appraisers  in  the  discharge  of  their 
duty. 

§  866.     Subdividing  and  platting. 

There  is  no  statutory  provision  in  our  State  like  some  oth- 
ers, making  provision  for  subdividing  and  platting. ^^  The  ad- 
ministrator or  executor  might  sell  the  land  in  different  tracts, 
but  in  such  cases  the  whole  when  added  together  must  equal 
two-thirds  of  the  appraised  value  of  the  entire  tract,  or  the  sale 
would  be  set  aside.^" 

Likewise  an  administrator  or  executor  might  sell  real  estate 
under  a  power  in  the  will,  in  separate  tracts,  provided  it  was 
shown  that  he  exercised  a  reasonable  discretion  in  making  the 
sale  in  that  manner.  If  it  is  desired  to  plat  a  tract  or  lay  it 
out  in  lots  it  would  be  advisable  for  the  administrator  or  exec- 
utor to  have  an  order  of  the  Court  especially  authorizing  the 
sub-division,  and  then  have  each  tract  separately  appraised. 
In  such  cases  it  might  also  be  well  to  have  the  tract  appraised  as 
an  entirety,  and  then  have  it  sold  in  both  ways  and  accepting 
that  bid  which  will  realize  the  most  money  for  the  estate.^'^ 

21  §  2507   Ind.   R.   S.  shall  be  sold  together  or  in  separate 
Recently  the  statute  was  amended      parcels.     The  first  object  should  be 

granting  such  rights.     §  10803  G.  C,  to  sell  in  such  a  manner  as  to  se- 

§  879.  cure  the  greatest  price.     If  this  ob- 

22  Stall  vs.  Macalester,  9  0.  19.  ject  can  be  effected  by  offering  the 
The  next  objection  to  the  defend-  property  in  parcels,  the  officer  sell- 
ants'  title  is,  that  the  land  having  ing  would  be  censurable  did  he  not 
been  appraised  as  one  entire  parcel,  divide  it.  In  all  cases  he  must  ex- 
was  sold  in  two  separate  parcels.  ercise  a  sound  discretion,  having 
We  do  not  see  that  there  was  any-  reference  to  the  interests  of  all  con- 
thing  improper  in  this.  cerned,    and    being    responsible    for 

In  <^ales  of  land  by  sheriff,  admin-  every  abuse  of  discretion.  9  O.  24. 
istrator,  or  guardian,  the  individual  23  The  following  was  held  to  be 
making  the  sale  must  exercise  his  sufficient  order:  "The  commission- 
own  discretion  whether  the  property  er  is  authorized  to  make  such  a  sub- 


§  867  REAL  ESTATE  APPRAISEMENT  780 

An  objection  by  an  interested  party  to  a  sale  that  it  was 
made  as  an  entirety  instead  of  in  parcels  comes  too  late  after 
sale  has  been  made.^* 

§  867.     Assignment  of  homestead. 

If  the  deceased  left  a  family  homestead  and  widow  or  minor 
child  -^  or  children  or  both  entitled  to  have  a  homestead  set  off, 
pursuant  to  the  provisions  of  sec.  11732  below,  the  Court  shall 
order  the  appraisers  first  to  proceed  to  set  apart  and  to  assign 
such  homestead. 

§  867a.  Homestead  for  decedent's  family.  "On  petition  of 
executors  or  administrators  to  sell  to  pay  debts,  the  lands  of  a 
decedent  who  has  left  a  widow,  or  a  minor  child,  unmarried,  and 
composing  part  of  the  decedent 's  family  at  the  time  of  his  death, 
the  appraisers  shall  set  apart  a  homestead  as  required  in  section 
eleven  thousand  seven  hundred  and  thirty-four.-**  Except  as 
otherwise  provided  in  sections  ten  thousand  seven  hundred  and 
ninety-four,-*^  ten  thousand  seven  hundred  and  ninety-five-*'^ 
and  ten  thousand  seven  hundred  and  ninety-six,-*"^  it  shall  re- 
main exempt  from  sale  on  execution,  and  exempt  from  sale 
under  order  of  court  so  long  as  the  widow,  if  she  remains  unmar- 
ried, or  an  unmarried  minor  child  of  the  decedent  resides 
thereon."     [R.  S.  §5437.]-« 

§  867b.  Money  consideration  in  lieu  of  homestead.  ' '  When 
a  homestead  is  sold  to  pay  a  lien  which  precludes  the  allowance 
thereof,  the  residue  of  the  proceeds,  not  exceeding  five  hundred 
dollars,  shall  be  paid  to  the  widow,  or  in  case  there  be  no  widow, 
to  the  minor  child,  unmarried,  in  lieu  of  a  homestead,  on  her 
or  such  child's  application,  in  person,  by  agent,  attorney  or 
guardian."     [R.  S.  §5437.]-*=* 

division  of  said  lots  on  Walnut  a  woman  is  entitled  to  the  year's  al- 
Hills,  prior  to  such  re-appraisement  lowance  the  same  as  a  minor  child 
as  in  his  opinion  will  be  to  the  ad-  of  a  man.  Tiie  same  reason  might 
vantage  of  the  parties  in  interest,  allow  the  minor  child  of  a  woman  to 
and  he  may  appraise  such  of  said  claim  the  homestead.  In  re  Hinton, 
lots  as  he  thinks  fit  as  a  whole  and  45  Bull.  423. 
also  as  subdivided."  He  is  also  au-  26  §  I1732  G.  C. 
thorized  to  lay  out  a  street,  etc.  This  statute  is  to  be  liberally  con- 
Mathers  vs.  Kinney,  8  Bull.  267.  strued,  and  where  by  agreement  the 

24  Hartshorn  vs.  Reader,  3  W.  L.  property  is  voluntarily  sold  to  pay 
G.  245.  debts  that  will  preclude  the  assign- 

24a  §  I598n.      See    §  846a,    Dower  ment    of    the    same    by    metes    and 

and  homesteads.  bounds,  the  widow  will  be   entitled 

24b  §  857.  to  her  dower  and  $500  in  proceeds. 

24c  §  857a.  16   Cir.  D.  66:    26  0.  C.   C.    (1904) 

24d§857b.  66;   affirmed,  69  O.  S.  574. 

25  In   a   recent   case  the  Supreme  26*  §  11733  G.  C. 
Court  has  held  that  a  minor  child  of 


781  HOMESTEAD  §  8G8 

§  868.     When  entitled  to  homestead. 

A  homestead  is  the  house  and  land  constituting  the  family 
residence,  and' it  would  seem,  from  the  wording  of  sec.  10794-6, 
G.  C.,^''  that  if  there  is  a  homestead,  and  a  widow  or  a 
minor  child,  the  imperative  duty  rests  upon  the  appraisers  to 
set  the  same  off  tO'  such  widow  and  minor  child ;  and  differing 
somewhat  from  the  right  to  homestead  generally,  sucli  widow  or 
child  does  not  need  to  make  an  application  to  have  it  set  apart 
to  them.  It  has  been  held  that  the  widow  cannot  waive  such  a 
right  if  there  were  unmarried  minor  children.-^ 

It,  therefore,  becomes  very  important  on  the  part  of  the 
administrator  or  executor  to  have  such  assignment  of  homestead 
made  where  the  conditions  exist  demanding  the  same.  If  not 
set  apart,  the  administrator  or  executor  might  be  responsible, 
and  the  purchaser  might  be  held  to  have  bought  the  property 
subject  to  such  a  right,  although  no  assignment  had  been  mad  . 
The  value  of  the  homestead  is  not  to  exceed  one  thousand  dol- 
lars.-® 

If  there  are  liens  which  preclude  the  allowance  of  the  home- 
stead, then  five  hundred  dollars  must  be  paid  to  the  widow  or  to 
the  unmarried  minor  child. ^°  Where  there  is  both  dower 
and  homestead  to  be  set  off,  it  seems  that  the  homestead  should 
be  first  set  off  and  the  dower  set  apart  in  another  tract. ^^  The 
property  must  be  appraised  subject  to  such  a  homestead  right, 
and  should  be  sold  in  that  manner.^-  If  the  widow  remarry,  or 
moves  off  of  said  homestead,  and  if  any  unmarried  minor  child 
ceases  to  reside  thereon,  the  homestead  right  ends.^^  If  the 
decedent  leaves  no  homestead,  but  other  real  estate,  the  widow 
is  not  entitled  to  an  allowance  in  lieu  of  the  homestead.^* 

27  §  857.  In   Wehrle  vs.   Wehrle,   39    0.   S. 

28  See  §  326,  Widow's  allowance.  36.5,  it  was  held  tliat  the  tract  upon 
Jones   s.    Allen,    6   N".    P.    518,    8       which    the    homestead    was    located 

Dec.  338.     See  Bliss  vs.  Fuhrman,  6  could    not    be    sold    subject    to    the 

C.  C.  203;   3  C.  D.  416.  lomestead.      At   that   time   however 

29  §  11730  G.  C.  §  10794-5-6  (§  8857-a-b)  did  not  con- 
so  §  11732  G.  C.     See  previous  sec-  tain  any  provisions  relating  to  liome- 

tion.  steads  and  this  decision  is  not  now 

"^  §  O^'JO.                                              _  controlling      upon      this      question. 

See  Stoehr  vs.  Moerlein   Brewing  Having    been    given    in    Longsdorf's 

Co.,    27    C.    C.    330 ;    20   L.    R.    440  Notes  has  caused  some  queries  as  to 

(1905),  where  wife  had  signed  mort-  its  effect, 

gage  as  surety  for  lier  husband,  the  33  §  11731    G.  C. 

donee    was    ailowed    as    a    first    lien  Taylor  vs.  Thorn,  29  0.  S.  569. 

after  payment  of  mortgage,  etc.  s*  Wolverton  vs.  Paddock,  3  C.  C. 

25   Bull.   102;    Wanzer  vs.  Smith,  488;   2  C.  D.  279. 

2  W.  L.  M.  426.  See  §  846a,  Dower  and  homestead. 

'■~  §§  10794-5-6  G.  C,  §  857.  A   widow   having  senarated   from 

her  husband  and  permanently  resid- 
ing elsewhere,  is  not  entitled  to  al- 


§  868  REAL    ESTATE    APPRAISEMENT  782 

If  a  decedent  own  a  homestead,  and  the  widow  waives  dower 
and  asks  that  he  same  be  sold,  she  has  waived  her  right  to  have 
set  apart  to  her  an  allowance  of  five  hundred  dollars  in  lieu  of 
a  homestead.^^  A  judgment  is  not  such  a  lien  as  prevents  a 
homestead  from  being  set  apart  to  the  widow.'^^  A  confirma- 
tion of  a  sale  of  real  estate  set  apart  as  a  homestead,  was  for- 
merly held  not  to  be  merely  voidable,  but  void.  But  the  statute 
now  provides  that  it  should  be  sold  subject  to  such  homestead 
rights.^' 

If  the  widow  and  miner  child  do  not  compose  a  part  of  the 
decedent's  family  at  the  time  of  his  death,  they  are  not  entitled 
to  a  homestead.^^  The  appraisers  should  set  apart  the  family 
dwelling  and  the  buildings  used  in  connection  therewith,  and 
sufficient  land  which  will  equal  according  to  the  ordinary  sell- 
ing price  of  the  same,  the  value  of  one  thousand  dollars.  Of 
course  the  property  set  apart  must  be  used  as  a  homestead,  and 
must  be  one  tract  or  lot.  It  cannot  be  set  off  so  as  to  include 
a  part  or  entirety  of  two  tracts  or  lots.  If  the  buildings  ac- 
tually occupied  a  part  of  two  lots,  the  rule  might  be  different. ^^ 

The  only  instances  provided  by  statute  in  which  the  widow  or 
minor  children  can  receive  money  in  lieu  of  a  homestead,  is 
where  the  homestead  must  be  sold  to  pay  a  lien  thereon.  If 
the  homestead  is  of  a  greater  value  than  one  thousand  dollars 
and  indivisible,  it  is  an  unsettled  question  if  anything  in  lieu 
thereof  can  be  set  apart  to  the  widow^  and  minor  children.  No 
provision  seems  to  be  made  for  such  a  case,  like  there  is 
where  an  execution  is  issued  against  the  homestead  of  a  living 
debtor." 

The  defeat  of  such  a  right  merely  because  the  l.omestead  is 
indivisible,  and  of  a  greater  value  than  one  thousand  dollars,  is 
so  contrary  to  the  spirit  of  legislation  which  is  manifested  in 
these  homestead  acts,  that  it  is  almost  impossible  to  assume  that 

lowance  in  lieu  of  homestead  in  the  38  §g  11732-3   G.  C. 
proceeds   of   her   deceased   husband's  39  9    Am.    &    Eng.    Eney.    of    Law- 
residence     property.        Nichols     vs.  461. 
French.  83  0.  S.  162.  «  §^  1173.5-6  G.  C. 

35  Bliss  vs  Fuhrman,  6  C.  C.  203 ;  If  the  real  estate  is  so  covered  by 
3   C.  D.  416.  liens  that  it  must  be  sold,  the  widow 

The  matter  as  to  homestead  rights  is    entitled    to    $500,    in    lieu    of    a 

will  again  be  referred  to  when  treat-  liomestead.      Bank  vs.   Stoughton,  5 

ing   cf   assignments   for    the  benefit  0.  L.   R.  613;    IS  Dec.  633. 
of  creditors"  \Yidow     entitled     to     doAver     and 

36  Jiones  vs.  Allen,  6  X.  P.  518;  homesteid.  see  Bretz  vs.  Moore.  4 
8  Dec.  338.  C.   C.    (X.S.)    566;    26  0.  C.   C.  66; 

37Wehrle    vs.    Wehrle,    39    0.    S        affirmed  69  0.  S.  574. 
365. 


783  ASSIGNMENT    OF    DOWEK  §  869 

such  could  have  been  the  intention  of  the  Legislature.  And 
Courts  will  very  likely  endeavor  to  find  some  method  to  prevent 
such  a  result.  The  course  then  most  likely  followed  would  be 
that  provided  by  statute  in  a  case  of  dower,  where  the  estate 
is  indivisible.*^  And  the  rents  and  profits  out  of  such  portion 
of  the  homestead  equalling  one  thousand  dollars  in  value,  would 
be  allowed,  by  the  appraisers  to  the  widow  and  her  infant  chil- 
dren.*^ 

§  869.     Assigpiment  of  dower. 

After  the  homestead  has  been  set  ajjart  —  or  if  there  be  no 
homestead,  the  appraisers  shall  set  off  and  assign  to  the  widow 
in  each  or  in  one  or  more  of  the  tracts  of  lands  by  metes  and 
bounds  one  equal  tliird  part  of  the  whole  lands  to  which  she  is 
entitled  to  dower/^  —  the  widow  may  waive  her  right  of  dower 
by  an  election  under  the  will.**  Or  she  may  elect  to  have  al- 
lowed to  her  in  lieu  of  her  said  dower  such  sum  of  money  out  of 
the  proceeds  of  the  sale  as  the  Court  deems  a  just  and  reasonable 
value  of  her  dower  interest  therein.*^ 

In  such  cases  the  appraisers  are  to  proceed  as  if  no  dower 
was  to  be  assigned  in  the  premises.  If  the  property  is  of 
such  character  and  nature  that  no  dower  can  be  assigned 
out  of  the  same  in  metes  and  bounds,*®  then  the  dower  shall 
be  assigned  as  of  a  third  part  of  the  rents,  issues  and  profits 
thereof  to  be  computed  and  ascertained  by  the  appraisers.*^ 
And  in  assigning  dower  by  rents  and  profits,  deduction  should 
be  made  from  the  gross  rents  for  reasonable  repairs  and  taxes, 
but  no  deduction  should  be  made  on  account  of  water  rents  or 
insurance.** 

<i  §  12011  G.  C.  §§  10571-2  G.  C,  §  1221. 

42  §  1623,  Assignments.  *■>  §  12018  G.  C. 

§  1598,  Exempt  property.  -to  Such  as  the  indivisibility  of  the 

§   1227,  Election  under  will.  land. 

§  1598,  Exempt  property.  <'§  12011   G.   C.     Annuity   tables 

§  1227,   Election  under  will.  might   be   used   to    accomplish    this 

*3  Wanzer  vs.  Smith,  2  W.  L.  M.       result. 

426.  48  Hillgartner  vs.  Gebhart,  25  O. 

**  See    Ch.    51,    §  943    et    seq.  on       S.  557. 

dower.  See  §  846a,  Dower  and  homestead. 


§  869  REAL    ESTATE    APPRAISEMENT  784 

The  widow's  right  to  dower  must  always  be  considered, 
whether  she  claims  it  or  not.  If  there  are  mortgage  liens  on 
the  real  estate  in  which  the  wife  releases  her  dower,  and  there 
is  not  sufficient  real  estate  to  pay  such  mortgage  lien  and  allow 
the  widow's  dower  to  be  set  apart  by  metes  and  bounds,  then 
all  such  lands  would  have  to  be  sold  and  the  widow's  right  pro- 
vided out  of  the  proceeds.  If  such  mortgage  debt  was  a  debt 
of  her  husband's,  she  would  be  entitled  to  be  endowed  out  of 
the  entire  proceeds  realized  out  of  tlie  sale  of  the  lands,*^  The 
amount  allowed  her,  however,  could  not  affect  the  mortgage 
claim.  The  mortgage  lien  must  be  paid  in  full.  The  rule 
might  be  different  if  the  debt  was  a  joint  one. 

Growing  crops  do  not  pass  to  the  widow  on  assignment  of 
dower  by  metes  and  bounds.^"  Where  property  was  insured 
and  burned  after  the  death  of  the  husband,  the  widow  was  en- 
titled to  have  her  dower  calculated  on  the  proceeds  of  the  in- 
surance.^^ Some  difficulty  may  be  experienced  by  appraisers  in 
their  setting  off  a  dower,  where  there  is  also  a  homestead  to 
be  set  apart.  In  such  cases  the  homestead  should  first  be  set 
apart,  then  the  dower  interest  in  not  what  is  left,  but  in  the 
entire  tract.  For  illustration,  supposing  the  decedent  died 
owning  a  farm  of  one  hundred  acres  worth  six  thousand  dollars. 
The  appraisers  would  proceed  and  set  apart  as  homestead  the 
land  upon  which  the  dwellings  were  situated  and  including  two 
acres  of  land  valued  at  one  thousand  dollars.  They  should  then 
proceed  to  set  apart  out  of  the  remaining  land  sufficient  to 
equal  one-third  of  the  whole.  That  is,  the  widow  would  have 
set  apart  to  her  the  homestead,  one  thousand  dollars  in  value, 
and  a  dower  of  two  thousand  dollars  in  value ;  equaling  a  life 
estate  in  one-half  of  the  entire  property.  The  supreme  Court 
has  said  that  the  widow  must  bear  her  share  of  the  costs  in  the 
Probate  Court  incurred  in  settling  her  dower.^^ 

49  Kling  vs.   Ballentine,   40  O.   S.  See  §  950  as  to  costs,  etc. 

391;   Society  for  Savings  vs.  Drake,  6i  Flemming  vs.  Jordan,  28   Bull. 

10  C.  C.  59;  6  C.  D.  31.  332. 

so  Davis   vs.   Brown,   4   W.   L.   M.  52  Kling  vs.   Ballentine,   40  0.   S. 

272.  396. 

See   §  947.  If  the  widow  dies  after  filing  an 


785  REPORT  OF  APPRAISEMENT  §  870 

§  870.    Dower  especially  assigned  to  be  a  charge  on  the  land. 

"If  the  appraisers  assign  dower  especially  of  the  rents  and 
profits,  and  the  purchaser  takes,  by  deed  of  the  executor  or 
administrator,  the  lands  upon  which  such  dower  was  assigned, 
the  court  shall  make  such  orders  as  will  secure  to  the  widow  or 
widower  a  charge  thereon  for  the  dower."     [R.  S.  §  6164.]^^ 

§  871.     Report. 

The  appraisers  having  attended  to  tlie  duties  assig:ned  them, 
that  is,  having  set  aside  a  homestead  where  the  same  was  re- 
quired, and  also  having  set  apart  dower  for  the  widow,  and 
having  appraised  all  the  lands  subject  to  such  dower  and  home- 
stead right,  should  make  a  written  report  of  their  doings.  The 
form  for  such  report  was  given  in  the  order  issued  to  them.''* 
To  this  order  they  should  attach  their  fees  and  the  fees  of  the 
civil  engineer.  This  matter  should  be  attended  to  as  rapidly  as 
the  same  can  conveniently  be  done. 

§  872.  Compensation  of  appraisers.  ''Appraisers  shall  each. 
be  paid  one  dollar  per  day,  for  services  performed  by  them  in 
the  county  in  which  they  reside,  and  two  dollars  per  day  for 
services  performed  without  such  county."     [R.  S.  §  6158.]^^ 

It  very  often  occurs  that  the  compensation  provided  in  the 
above  section  is  entirely  inadequate  to  secure  the  services  of 
competent  men.  Where  such  is  the  case  it  would  be  proper  for 
the  administrator  to  consult  the  parties  in  interest  as  to  tlie 
payment  of  such  compensation  to  appraisers  as  would  secure 
competent  persons  to  perform  that  duty.      Generally,  however, 

answer,   but  before  sale,   the   acticMi  should  be  estimated  as  of  ths  time 

can   be   revived   by   her   administra-  the  action  is  brought  to  have  dower 

tor    and    he    would    be    entitled    to  assigned  and  a  lease  of  the  property 

whatever    it    was    worth    from    the  at    an    extravagant   rent,    furnishes 

time  the  answer  was  filed.     Renner  no  rule  binding  and  controlling  the 

vs.  Bird,  2  Bull.  76.  commissioners     as     to     the    annual 

See   §957,  Assignment  of  dower;  rents,  issues  and  profits.     Stoddart 

8  1625,  Assignments;  §  1600,  Dower.  rs.  Marshall,  1  Disney,  527. 

83  §  10808  G.  C.  B4  Previous  §  859. 

The     rents,     issues     and     profits  55  §  10790  G.  C. 


§  873  KEAL    ESTATE    APPRAISEMENT  786 

persons  are  willing  to  sacrifice  some  of  their  time  and  accept 
such  positions  as  a  part  of  the  discharge  of  their  proper  duties 
as  citizens,  and  accept  the  statutory  allowance. 

§  873.    Executor  or  administrator  to  give  bond,  etc. 

It  will  very  often  occur  at  this  stage  of  a  proceeding  that 
the  bond  heretofore  given  by  the  executor  or  administrator  is 
not  sufficient,  and  therefore  the  statute  has  provided  that  when- 
ever such  occurs  the  Courts  may  order  additional  bond.  The 
following  is  one  section  in  relation  thereto. 

"Wlien,  in  cases  named  in  the  next  preceding  section,  the 
executor  or  administrator  is  ordered  to  sell  more  than  is  neces- 
sary to  pay  debts,  before  the  sale,  he  must  give  bond  with  suffi- 
cient sureties  payable  to  the  state,  conditioned  to  account  for 
all  proceeds  of  the  sale  remaining  after  payment  of  the  debts 
and  charges  for  which  the  land  is  sold,  and  to  dispose  of  them 
according  to  law."     [E.  S.  §  6150.] ^« 

The  giving  of  the  bond  provided  for  in  this  section  is  not 
jurisdictional  and  tlie  failure  to  give  the  same  would  not  affect 
the  validity  of  the  sale.^^ 

§  874.     Form  of  bond. 

Know  all  men  by  these  presents,  that  we,  A.  B.,  C.  D.  and  E.  F.,  are 

held  and  firmly  bound  unto  the  State  of  Ohio  in  the  sum  of 

dollars,  to  the  payment  of  which  we  do  hereby  jointly  and  severally  bind 
ourselves,  our  heirs,  executors  and  administrators.*  The  condition  of  this 
obligation  is  such  that,  whereas  in  a  certain  cause  pending  in  the  Probate 

Court   of   the    county   of and    State   of    Ohio,   wherein   A.    B., 

executor  of  the  last  will  and  testament  (or  administrator  of  the  estate) 
of  G.  H.,  deceased,  is  plaintiff,  and  I.  J.  and  others  are  defendants,  the 
said  A.  B.  has  been  ordered  by  said  Court  to  sell  more  real  estate  than 
will  be  necessary  for  the  payment  of  the  debts  of  said  decedent  and  the 
charges  of  administering  his  estate.  Now,  if  the  said  A.  B.  shall  account 
for  all  the  proceeds  of  the  real  estate  so  ordered  to  be  sold,  that  shall 
remain  after  the  payment  of  the  debts  and  charges  aforesaid,  aq'd  dispose 
of  the  same  according  to  law,  then  this  obligation  to  be  void,  otherwise 
to  be  in  full  force.  (Signed,  etc.) 58 

66  §  10789  G.  C.  58  Whittaker's  Probate  Code. 

57  See  chapt.  15.  16,  17  and 
§§  233,  243,  260,  as  to  bonds  gen- 
erally. 


787  CONFIKMATION  OF  APPKAISEMENT  §  875 


§  875.  And  give  additional  bond  to  secure  further  assets  if 
required  in  what  Court.  "Before  such  sale,  if  the  court  deems 
it  necessary  it  may  require  the  administrator  or  executor  to 
give  an  additional  administration  bond,  to  secure  the  further 
assets  arising  therefrom.  The  bond  mentioned  in  this  section 
and  the  next  preceding  section,  when  so  ordered,  must  be  given 
in  the  court  from  which  letters  were  issued.  If  the  action  is 
pending  in  another  court,  the  latter  shall  proceed  no  further  till 
there  is  filed  therein  a  certificate  from  the  former  court,  under 
its  seal,  that  such  bond  has  been  given  as  ordered."      [R.  S. 

As  a  matter  of  course  all  such  additional  bonds  must  be  givBU 
in  the  Court  which  granted  tlie  letters  of  administration.^" 

§  876.     Confirmation  of  appraisement  and  order  of  sale. 

Upon  tlie  filing  of  the  report  of  the  appraisers  in  the  Pro- 
bate Court,  the  judge  should  carefully  examine  the  same  to  as- 
certain that  the  former  orders  of  the  Court  have  been  complied 
with.  He  then  should  place  an  entry  on  his  journal,  confirm- 
ing the  appraisement,  and  if  new  bond  or  additional  bond  was 
necessary,  approving  the  bond  and  order  a  sale.  As  a  general 
thing  it  will  be  found  beneficial  to  the  estate  to  order  a  sale  at 
private  sale  if  the  full  appraised  value  can  be  received.  If 
there  is  any  controversy,  however,  about  the  matter  a  public 
sale  should  be  ordered.  The  following  may  serve  as  a  general 
form  of  entry : 

(Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  return  of  the  ap- 
praisement heretofore  ordered  in  this  cause,  and  the  same  was  submitted 
to  the  Court.  Whereupon  after  careful  examination  of  the  same,  the 
Court  finds  that  said  appraisement  has  been  made  in  all  respects  in  accord- 
ance with  law  and  the  orders  of  this  Court,  and  the  same  is  hereby  ap- 
proved  and   confirmed ;    and   it   further   appearing   to   the   Court  that  the 

plaintiff  has  given  additional  bond  in  the  sum  of dollars,  with 

approved  sureties  thereon,  conditioned  according  to  law,  the  said  bond  is 
Hereby  approved.si 

50  §  10790  G.  C.  bonds  equally  liable  for  proceeds  of 

60  As  to  the  liability  of  the  sure-  sale.     Kehnast   vs.   Daum,   4   N.    P. 

tios  on  the  various  bonds,  see  §258.  3&6;    6    Dec.   401. 

Sureties    in    first    and    additional  oi  If    sufficient    bond    has    already 


§  876  REAL  ESTATE  APPRAISEMENT  788 

*(If  it  is  desired  to  have  a  public  sale  of  the  property,  proceed  as 
follows.) 

On  motion  of  the  plaintiff  and  for  good  cause  shown,  publication  in  a 
German  newspaper  is  dispensed  with  and  said  plaintiff  is  authorized  in 
his  discretion  to  employ  an  auctioneer  to  cry  said  sale  at  an  expenditure 

not  exceeding dollars.     He  may  also  advertise  said  sale  by  bills 

or  posters  and  e.xpend  therefor  not  exceeding dollars. 

It  is  now  ordered  that  A.  B.,  as  such  administrator,  proceed  to  adver- 
tise for  sale  on  the  premises  (or  elsewhere,  if  so  ordered)  the  real  estate 
in  the  petition  described,  as  provided  by  law;  and  that  he  sell  the  same  at 
not  less  than  two-thirds  of  the  appraised  value  thereof  on  the  following 
terms,   to  wit: 

One-third  cash  in  hand  and  the  balance  in  one  and  two  years  from  day 
of  sale,  deferred  payments  to  be  secured  by  mortgage  on  the  premises 
sold  and  to  bear  interest.  And  said  plaintiff  is  ordered  to  make  return 
to  this  Court  immediately  after  such   sale. 

If  it  is  desired  to  have  a  private  sale,  follow  the  above  entry  from  the 
star  as  follows : 

And  it  appearing  to  the  Court  that  it  would  be  to  the  interest  of  said 
estate  to  sell  the  real  estate  described  in  the  petition  at  private  sale,  it 
is  now  ordered  that  said  A.  B.  as  such  administrator,  proceed  and  sell 
said  real  estate  at  private  sale  at  not  less  than  the  appraised  value  thereof, 
on  the  following  terms,  to-wit:    (here  insert  the  terms  as  above  stated.) 

been  given,  say  "  and  sufficient  bond       plaintiff,    additional    bond    is    dii- 
having  already  been  given  by   said       pensed  with." 


789 


SALE   GENERALLY 


§877 


CHAPTER  XLIX. 


REAL  ESTATE.     ADVERTISEMENT  AND  SALE. 


877  The  sale  generally.  §891 

878  Order   of   sale   and  report   of      §  892 

sale.     Dower.  §  893 

879  When  sale  to  be  public  and       §  894 

when    private.  §  895 

880  Sale  of  improved  lands;   un- 

improved. §  896 

880a  Re-advertisement.  §  897 

881  Private    sale.  §898 

882  Affidavit   before   private   sale 

confirmed.  §  899 

883  Public  sale.     Notice  of. 

884  Notice  to  contain  street  num-       §  900 

ber,    or   name    of    township,       §  901 
etc. 
884a  Name  of  township  in  certain       §  902 
cases.  §  902a 

885  Notice  of  sale  in  German  or 

Bohemian    newspaper.  §  902b 

886  Points  to  be  observed. 

887  Form     of     notice     of     public       §  903 

sale. 

888  Conduct  of  sale.  §  904 

889  Who  may  become  purchasers.       §  905 

890  Return.    Confirmation,    Order 

for  deed. 
890a  Deferred  payments.  §906 

i890b  Sale  of  notes. 


Return  of  sale. 
Confirmation. 
Sufficient  confirmation. 
Errors  cured  by  confirmation. 
Entry    confirming    sale,    and 

distributing    proceeds. 
Resale. 

Securing  payments. 
When  motion  to  be  set  aside 

to   be   filed. 
Deed   evidence  of  validity  of 

sale. 
Execution   and  kind  of   deed. 
Form    of    administrator's    or 

executor's    deed. 
Purchasers  right  and  title. 
Remedy  of  purchaser  if  sale 

invalid. 
Remedy  in  other  cases  of  in- 
valid sales. 
How     money     arising     from 
sale  of  land  to  be  applied. 
Comments. 
Surplus    of    proceeds    of    sale 

to    be    considered    as    real 

estate. 
Appeal  and  error. 


§  877.     The  sale  generally. 

As  a  sale  of  real  estate  by  an  administrator  or  executor  under 
the  order  of  the  Court  is  a  judicial  sale,  the  law  applicable  to 
judicial  sales  generally  will  be  found  applicable  to  such  sales. 
There  are  many  things  connected  with  the  sale  of  real  estate 
that  are  merely  directory,  and,  are  cured  by  confirmation  of 
the  sale.^ 

In  selling  the  real  estate  of  a  deceased  person,  the  executor 
or  administrator  must  act  within  the  scope  of  his  power  and 

1  See  subsequent  eection,  0  894,  on 
errors  cured  by  confirmation.  See 
§  876  for  entry  ordering  sale. 


§  877  KEAL  ESTATE  ADVEKTISEMEvNT  790 

the  statute,  and  according  to  the  direction  contained  in  the  order 
of  sale.^ 

He  is  personally  liable  on  his  bond  for  the  consequences  of 
any  deviation  therefrom.  Thus,  if  he  is  directed  to  sell  for 
cash,  a  sale  on  credit  is  in  excess  of  his  authority,  and  may, 
therefore,  be  void,  unless  confirmed  in  Court  or  by  the  heirs  f 
and  the  administrat-or  is  liable  to  the  estate  for  the  price  at 
which  the  land  was  sold.* 

So,  if  he  report  that  he  has  complied  with  the  order  of  the 
Court,  when  the  fact  is  other^vise,  he  is  liable  for  any  loss 
arising  »ut  of  the  failure.^ 

A  private  sale  by  him  confers  no  title,  unless  the  order  given 
by  tlie  Court  under  its  statutory  power  so  direct.®  Since  he 
has  no  power  to  sell  without  order  or  decree  of  Court,  an  agree- 
ment or  bond  made  by  him  before  obtaining  such  order  to  sell 
the  land  of  the  deceased  is  utterly  void,  incapable  of  being  en- 
forced at  law  or  in  equity.  It  is  held  to  be  against  public 
policy  to  allow  the  administrator  to  place  himself  in  a  position 
where  the  exercise  of  his  lawful  authority  would  be  influenced 
or  controlled  by  previous  contracts  binding  upon  him.^  I 

The  statute  does  not  require  tJiat  a  formal  order  of  sale  be 
issued  to  the  administrator  or  executor.      It  is  the  practice  of   i 
some  Probate  Courts  and  tends  to  preserve  regularity  in  the  J 
proceeding  to  issue  such  order.      This  form  of  an  order  of  sal^i 
together  with  the  report  of  sale  may  be  as  follows:® 

2  See  §§811-829.  7  Stuart   vs.   Allen,    16   Cal.    474; 

Filmore  vs.  Eeithman,  6  Col.  120,  Bridgewater   vs.   Brookfield,   3    Cow^ 

130.  299;  Woerner  on  Admin.  1055. 

sMcCully   vs.    Chapman,   58   Ala.  s  See    §1427,    Gdns.;    §  162G,    As- 

325.  signees. 

4  Richards  vs.  Adamson,  43  Iowa  A  copy  of  appraisement  must  be 
248.  made,  §  857. 

5  Heath  vs.  Layne,  G2  Tex.  68G;  It  is  not  error  prejudicial  to  or- 
Payne  vs.  Pippey,  49  Ala.  599;  der  an  appraisement  and  also  fis 
James  vs.  Faulk,  54  Ala.  184;  an  upset  price,  if  the  sale  is  raadi 
Fontenet  vs.  DeBaillon,  8  La.  An.  at  more  than  two-thirds  of  the  ap- 
509.  praisement.     Ferguson  vs.  Ferguson, 

6Fambro  vs.  Gantt,  12  Ala.  298;        3  X.  P.   (X.S.)   549;   16  Dec.  486. 
Schlicker   vs.    Hemenway,    110    Cal. 
579. 


791  ORDER    OF    SALE  §878 

§  878.    Order  of  sale.     Dower. 

The  State  of  Ohio,  Clark  County,  ss. 

Probate  Court. 
To Greeting : 

In  obedience  to  an  order  and  decree  of  the  Probate   Court,  within  and 

for  said  county,  made  this  day,  in  a  certain  cause,  wherein  you  as 

are  phiintiff,   and  et  al.  are  defendants,  you  are  com- 
manded  to  proceed  according  to  law,   to  sell  at s;-le,   for  not 

less  than the  appraised  value  thereof the  dower  of 

widow.  .  .  .of deceased,   the   following  described 

premises,  to-wit :    

Said  sale  to  be   (state  where)    the and  to  be  upon  the  fol- 
lowing terms : 

The  deferred  payments  to  be  secured  by  mortgage  on  the  premises  and 
to  bear  interest  from  the  day  of  the  sale,  payable  annually. 

You  will  make  return  of  your  proceedings  to  this  Court  forthwith  upon 
t,<fecution  of  this  order. 

Witness  my  signature  and  the  seal  of  said  Probate  Court  at 

Ohio,  this day  of A.  D.  190 


Probate  Judge.sa 

RETURN. 

To  the  Probate  Court  of  Clark  County,  Ohio.  ' 

In  obedience  to  the  foregoing  order,  I  have  caused  the  same  to  be  duly 

executed,  as  will  fully  appear  by  tlie  proceedings  hereto  attached. 
Dated  the day  of ,   190 

REPORT    OF    SALE. 

(When  sold  at  public  sale.) 

In  obedience  to  the  within  order,  I  duly  advertised  the  real  estate  therein 

described  for  sale,  in  the a  newspaper  printed  and  of  general 

circulation  in County,  Ohio,  where  said  real  estate  is  situate, 

for  at  least  four  consecutive  weeks  prior  to  the day  of , 

190.  .  .,  the  day  of  sale  therein  mentioned;  stating  in  the  notice  the  time, 

place  and   terms   of   sale;    and   on   said   da}^   at  the  hour   of o'clock 

M.,    I    attended the and    offered    said    real    estate 

for  sale the  dower  estate  of therein  when 

bid  to  pay  for  the  same,  the  sum  of dollars,  which  oeing 

the   highest   and   best   bid    that   was   offered,    and    being two- 
thirds,  of  the  appraised  value  of  said  premises,  I  then  and  there  sold  the 

game  to for  that  sum  . 

( Signed. ) 

Dated day  of ,    190 

REPORT    OF    SALE. 

(Wlien  sold  at  Private  Sale.) 

In   obedience   to   the   within    order,   I   sold   said   premises   on   the 

day  of 190 ... ,  to for  the  sum  of 

dollars,  said  sum  being the  appraised  value  of  the  same. 

(Signed.) 

Dated  the day  of ,  190.  .  . 

The  State  of  Ohio,  Clark  County,  ss. 

Tlie  above  named being  duly  sworn,  say.  .  .that  the  sale  abov« 

reported  has  been  made  after  diligent  endeavor  to  obtain  the  best   price 

8a  Sale  may  for  cash   in  hand  or  deferred    payments    with   interest   for 
two  years.     §  10786  G.  C,  §  847. 


§  879  EEAL  ESTATE  PUBLIC  SALE  792 


for  said  property,  and  that  said  sale  is  for  the  highest  price he. 

could  get  for  said  property.  (Signed.) 

Sworn  to  before  me  and  signed  in  my  presence,  this day  of . 

,   190.... 


Probate  Judge.9 

§  879.     When  sale  to  be  public  and  when  private. 

Sales  are  either  public  or  private.  A  sale  is  public,  within 
the  meaning  of  the  statute  when  it  is  advertised  as  provided 
by  law  and  sold  at  public  out-cry  to  the  highest  bidder.  It  is 
private  when  it  is  sold  without  advertisement  as  provided  by 
statute.  It  cannot  be  sold  at  private  sale  for  less  than  its  ap- 
praised value.  At  public  sale  it  may  be  sold  for  two-thirds  of 
the  appraised  value.  An  administrator  or  executor  may  under 
an  order  of  private  sale,  put  the  property  up  at  public  auction, 
but  no  bid  can  be  received  for  less  than  the  appraised  value. 
The  statute  relating  to  such  sale  is  as  follows: 

"The  sale  must  be  made  at  public  auction  at  the  door  of  the 
courthouse  in  the  county  in  which  the  order  of  sale  was  made 
or  at  such  other  place  as  the  court  directs,  except  that  if  it 
appears  to  be  more  for  the  interest  of  such  estate  to  sell  such 
real  estate  at  private  sale,  the  court  may  authorize  the  petitioner 
so  to  sell  it,  either  in  whole  or  in  part  for  cash  in  hand  or  on 
deferred  payments,  not  exceeding  two  years,  with  interest.  In 
no  case  shall  it  be  sold  at  private  sale  for  less  than  its  appraised 
value.  If  an  order  for  private  sale  is  issued  under  this  section, 
upon  motion  and  showing  by  a  person  interested  in  the  pro- 
ceeds of  sale,  filed  after  thirty  days  from  date  of  such  order,  the 
court  may  require  the  petitioner  to  return  the  order  if  the  prem- 
ises have  not  been  sold.  Thereupon  the  court  may  order  the 
''lands  to  be  sold  at  public  sale  as  herein  provided.  If,  upon 
showing  of  any  person  interested,  the  court  finds  that  it  will  be 
to  the  interest  of  such  estate  it  may  order  a  reappraisement  and 
sale  thereof,  in  parcels."     [R.  S.  §  6161.] i" 

§880.  Sale  of  improved  land;  unimproved.  "If  improved, 
the  lands  shall  not  be  sold  for  less  than  two-thirds  of  the  ap- 
praised value;  if  not  improved,  for  less  than  one-half  the 
appraised  value.  After  being  twice  offered  for  sale,  the  court 
may  direct  the  amount  for  which  they  can  be  sold,  or  may  set 
aside  the  appraisement  and  order  a  new  one." 

9  See  §  882,  Affidavits,  etc.,  §  876,  regular  the  sale  will  not  be  set  aside. 

Entry  ordering  sale.  Sniilev  vs.   Cook,  4   L.   R.   738;    52 

10 '§  10803  G.  C.  Bull.  '1.56;  affirmed,  79  O.  S.  452. 

The  matter  of  place  is  directory  See  §  898,  Motion  to  set  aside, 
only,    and    if    a    sale    is    otherwise 


793  TERMS  OF  SALE  §  880a 

§  880a.  Readvertisement.  "If  improved,  the  lands  shall  not 
be  sold  for  less  than  two-thirds  of  the  appraised  value ;  if  not 
improved,  for  less  than  one-half  the  appraised  value.  After  be- 
ing twice  offered  for  sale,  the  court  may  direct  the  amount  for 
which  they  can  be  sold,  or  may  set  aside  the  appraisement  and 
order  a  new  one.  If  such  appraisement  does  not  exceed  two 
hundred  dollars  and  upon  first  offer  at  public  sale  there  are 
no  bids,  then  upon  motion  of  any  party  interested,  the  court 
may  order  the  lands  to  be  readvertised  and  sold  at  public 
sale  to  the  highest  bidder."     [R.  S.  §  6160;  101  v.  46.]  ^^ 

It  is  elsewhere  provided  that  at  private  sale  it  must  bring 
the  appraised  value.*  The  time  of  payment  must  be  either 
all  cash  or  deferred  payments,  not  exceeding  two  years,  with 
interest.^"  The  general  practice  is  to  make  one-third  cash,  but 
this  could  be  changed  to  suit  the  circumstances. 

The  administrator  must  strictly  pursue  the  authority  under 
which  he  acts.^^ 

The  order  of  sale  is  like  an  execution  of  decree  of  court 
issued  to  a  sheriff  to  sell  specific  real  estate. ^^  The  order  does 
not  limit  the  time  within  which  the  sale  is  to  be  made ;  and  if 
a  report  of  the  sale  is  required  by  a  certain  time,  a  sale  made 
after  the  time  required  for  the  filing  of  such  report  will  be 
valid.^^ 

If  an  administrator  be  removed,  his  successor  may  pick  up 
the  proceedings  where  he  left  them  and  proceed  to  complete 
the  sale.^^ 

11  §  10802  G.  C.  changed  by  the  agency  of  men,  from 

Some  question  has  been  made  as  their  natural  condition  would  be  im- 

to  what  is  meant  by  the  words  "im-  proved,  even  though  they  might  be 

proved  land"  under  §  880.     This  ex-  vacant  lots   in   a   city   or   lands    in 

pression  is  the  same  as  in  the  law  the    country,    without   buildings    or 

of    1840.      At    that    time    a    large  even  fences  thereon. 

portion   of   the  lands   of  Ohio   were  12  §§  10786,    10803   G.    C,    §§847, 

in   the    same    condition,    practically  879. 

as    nature    left    them,    undoubtedly  13  Wiley  vs.  White,  3  Stew.  &  P. 

they    were    not    "improved    lands."  355;    ILockwood    vs.    Sturdevant,    6 

"Unimproved"  when  used  "in  refer-  Conn.  373;  Reynolds  vs.  Wilson,  15 

ence  to  land  is  a  term  which  con-  Til.   394;    Broadwater   vs.   Richards, 

veys    the    idea    of    the    absence    of  4  Mont.  80. 

cultivation;  a  state  of  nature."     39  i*  7w  re  Lawrence,  1  Redf.  310. 

Cyc.  686.  See  §  879. 

The  mere  fact  that  the  land  had  is  Bowen  vs.  Bond,  80  111.  351. 

no  dwellings  on  it  would  not  make  1^  Steele  vs.   Steele,   89   111.   51. 

it  unimproved,  my  judgment  would  See  §  835, 

be  that  any  lands  which  have  been 


§  881  REAL  ESTATE PRIVATE  SALE  794 

If  the  order  is  to  sell  at  a  public  sale,  it  may  be  changed  by 
the  court  to  a  private  one,  or  vice  versa}'  If  the  order  is  to  sell 
at  private  sale,  neither  the  time  nor  place  need  be  specified.^^ 

An  instrument  executed  by  an  heir  of  the  intestate,  author- 
izing the  administrator  to  sell  certain  land  "under  the  direction 
of  the  court,"  does  not  dispense  with  the  necessity  for  observ- 
ing all  the  statutory  requirements.^® 

Where  an  administrator  sells  land  under  the  statute  he  can 
impose  no  conditions,  but  simply  sells  the  right  of  the  heirs  in 
the  real  estate.     His  sale  is  equivalent  to  a  sale  by  the  heirs.-" 

§  881.     Private   sale. 

The  statute  leaves  the  matter  in  the  discretion  of  the  Probate 
Judge  whether  or  not  to  order  the  property  to  be  sold  at  private 
sale.  In  order  to  justify  the  Probate  Judge  in  making  an  order 
of  private  sale  he  should  be  satisfied  that  it  would  be  to  the 
interest  of  the  estate  to  make  such  an  order.  The  statute  con- 
templates that  where  a  good  reason  does  not  exist  that  the  sale 
be  made  at  public  auction,  and  in  that  manner  the  rights  of  all 
will  be  amply  provided  for.  But  there  are  many  instances, 
especially  where  the  estate  is  small,  in  order  to  save  the  costs  of 
advertising,  etc.,  the  court  should  grant  the  application  for  a 
private  sale.  As  a  general  rule,  it  may  be  said,  that  when 
property  sells  for  the  value  fixed  by  the  appraisers,  it  brings 
its  full  value.  If  there  is  opposition  to  the  order,  it  should 
not  be  allowed,  unless  the  administrator  would  put  the  property 
to  the  highest  bidder,  the  upshot  price,  of  course,  being  the 
appraisement.  One  matter  is  to  be  strictly  observed,  and  that 
is,  in  the  return  made,  the  administrator  or  executor  must 
comply  with  the  following  section  of  the  General  Code  r^ 

1'' Meek  vs.  Spencer,  8  Ind.  118.  181.     The  administrator  may  sell  in 

IS  Eice  vs.  Cleghorn,  21  Ind.  80;  parcels,    in   his    discretion,    a    tract 

Maxwell  vs.  Campbell,  4.5  Ind.  360.  ordered  to  be  sold  as  a  whole.     Stall 

19  7?i  re  Hartley    (Minn.),   37   X.  vs.  Macalester,  9  O.  19. 

W.  Eep.  449;  S.  C.  38  Minn.  32.5.  21  The  statute  now  authorizes  any 

20  Foote  vs.  Overman,  22  111.  App.       interested  person  to  make   applica- 


795  NOTICE  OF  SALE  §  882 

§882.  Affidavit  before  private  sale  confirmed.  "Before  the 
court  confirms  a  sale  by  an  executor,  administrator,  guardian, 
assignee,  or  trustee,  made  under  an  order  allowing  such  officer 
to  make  private  sale,  it  shall  require  such  officer  to  file  an  affi- 
davit that  such  private  sale  was  made  after  diligent  endeavor 
to  obtain  the  best  price  for  the  property,  and  that  the  sale  re- 
ported, is  the  highest  price  he  could  get  for  it."    [R.  S.  §  6412.]^^ 

It  is  sometimes  the  practice  to  receive  bids  at  private  sale  and 
report  them  to  the  court,  and  get  the  court's  approval  of  the 
sale  before  the  bid  is  accepted.  This,  however,  is  not  necessary 
as  no  sale  becomes  effective  until  confirmed.-^ 


§  883.  Public  sale.  Notice  of.  "If  the  sale  is  to  be  public, 
the  executor  or  administrator  must  give  notice  of  the  time  and 
place  of  sale,  by  advertisement  at  least  four  weeks  successively, 
in  some  newspaper  printed  in  the  county  where  the  lands  are 
situated."     [R.  S.  §6159.]^* 

§  884.  Notice  to  contain  street  number,  or  name  of  town- 
ship, etc.  "All  notices  and  advertisements  for  the  sale  of 
lands  and  tenements  located  in  a  city  or  village  in  this  state, 
made  by  virtue  of  proceedings  in  a  court  of  record  therein,  in 
addition  to  a  de.scription  of  such  lands  and  tenements,  shall 
contain  the  street  number  of  the  building  or  buildings  erected 
on  the  lands,  or  the  street  number  of  the  lots  offered  for  sale. 
If  no  such  number  exists,  then  the  notice  or  advertisement  must 
contain  the  name  of  the  street  or  road  upon  which  such  lands 
and  tenements  are  located,  together  with  the  names  of  the  streets 
or  roads  immediately  north  and  south  or  east  and  west  of  such 
lands  and  tenements,  that  cross  or  intersect  the  street  or  road 
upon  which  they  are  located."     [93  v.  256,  §  1.]'° 

tion  to  have  an  order  of  private  sale  25  §  §  11G78  G.  C. 

returned  if  no  sale  is  made  within  Omission  of  house  number  of  an 

30  days.     §  10803  G.  C,  §  879.  improved     scct:on     of     city,     fatal. 

See   §  002,  Purchaser's  right  and  Gr:cfcn!:aup    vs.    Cresap,    26    C.    C. 

title;  §  888,  Conduct  of  sale.  (KS.)    177.     But  failure   to   state 

22  §  11213  G.  C.  street  number  or  adjacent  intersect- 
The  form  for  such  return  .and  af-  ing  streets  is  not,  where  it  is  other- 

fidavit  will  be  found  attached  to  the  wise    properly   described   on   vacant 

order  of  sale  given  in  the  previous  lots.     Hopkins  vs.  Eradburry,  19  N. 

section,  §878.  P.   2SG;    2G   Doc.   573;    Hopkins   vs. 

23  Foo  5  1014,  Assignees.  Oliphand,  20  N.  P.   399. 

24  §  10800  G.  C. 


§884a 


REAL   ESTATE ADVERTISEMENT 


796 


§  884a.  Name  of  township  in  certain  cases.  "All  notices 
and  advertisements  for  the  sale  of  lands  and  tenements  located 
in  a  township  and  not  within  the  limits  of  a  city  or  village  in 
this  state,  which  are  made  by  virtue  of  proceedings  in  a  court 
of  record  therein,  must  contain  the  name  of  the  township  in 
which  the  lands  and  tenements  are  located."     [93  v.  256,  §  1.]' 

§  885.  Notice  of  sale  in  German  or  Bohemian  newspaper. 
Repealed. 


§  886.    Points  to  be  observed. 

From  the  above  sections  of  the  General  Code,  it  will  be 
observed  that  a  proper  notice  of  sale  must  contain,  first,  the 
time  and  place  of  sale.^^ 

Second,  a  description  of  the  property,  and  if  the  property  is 
in  a  town  or  city  the  street  number  of  the  building  must  be 
given.  Or  if  there  are  no  buildings  or  no  such  numbers,  then 
the  name  of  the  street  or  road,  together  with  the  names  of  the 
roads  north  and  south  or  east  and  west,  must  be  given.^^ 

Unless  the  court  otherwise  provide,  the  place  will  be  at  the 
door  of  the  court  house  in  the  county  in  which  the  order  of  sale 
is  made.^® 

The  names  of  the  parties  should  be  given,  but  this  is  not  a 
material  matter.^" 

The  notice  must  be  given  in  the  county  in  which  the  lands 
are  situated.^^ 


25*  11679  G.  C, 

See  §  8S6,  §  1625. 

Want  of  legal  notice  will  not  de- 
feat purchaser's  title.  Stall  vs.  Mac- 
alester,  9  0.  19. 

27  §  10800  G.  C,  §  883. 
Craig  vs.  Fox,  16  0.  563. 

28  §§  11678-9  G.  C,  §  884. 
Incorrect  metes  and  bounds  in  the 

advertisement  is  not  sufficient  to  set 
aside   a   sale   if  the   lot   number   is 


correctly  given,  and  the  plat  would 
show  the  dimensions  and  no  injury 
is  shown.  Kotch  vs.  Sieplein,  1 
Clev.  17.  If  not  in  a  platted  town 
the  name  of  the  township  must  be 
given.     §  11679  G.  C. 


29  §  10803  G.  C; 

30  Schneider  vs. 


§879. 

Ferrin,  41   Bull. 


54. 


31  §  10801  G.  C,  §  885. 


797  POINTS  TO  BE  OBSERVED  §  886 

If  there  is  no  newspaper  printed  therein,  it  must  be  by 
posters,  put  up  in  at  least  five  public  places.  If  there  is  a 
newspaper,  it  must  be  inserted  at  least  four  weeks  successively 
before  the  date  of  the  sale.  This  means  that  four  full  weeks 
must  elapse  from  the  time  of  the  first  insertion  until  the  day  of 
sale.  Some  attorneys  by  reason  of  extra  precaution  have  five 
insertions.  This  is  more  than  is  required,  but  the  time  should 
be  long  enough  that  five  insertions  could  be  made  before  the 
day  of  sale.  If  it  is  made  in  a  daily  paper  it  should  be  once  a 
week  on  the  same  day  of  the  week.^-  The  statute  does  not  in 
words  say  that  it  may  be  advertised  in  a  daily  paper,  as  it  does 
in  sales  on  execution,^^  but  I  have  no  doubt  where  it  is  shown  or 
known  that  a  daily  is  as  good  a  means  of  spreading  news  as 
the  weekly,  that  the  daily  may  be  used.^*  "Where  there  is  only 
one  publication  to  be  made  in  a  newspaper,  the  statute  means 
an  English  newspaper.^'^ 

The  notice  should  be  signed  by  the  person  making  the  sale, 
and  should  have  inserted  the  terms  of  sale.  It  is  customary  to 
state  the  appraisement.  As  a  general  rule  it  will  be  found 
advisable  to  make  the  advertisement  by  posters  as  well  as  by  the 
legal  advertisements  required  in  a  newspaper.  In  these  mat- 
ters the  administrator  should  use  his  discretion.  If  he  desires 
to  advertise  by  posters  it  would  be  well  to  include  such  author- 
ity in  the  entry  ordering  the  sale.  As  to  such  notice  it  may 
be  said  generally,  a  sale  without  notice  first  given  is  void.^^ 
But  the  failure  of  the  record  to  show  notice  given  will  not 
avoid  the  sale;  for  it  will  be  presumed  that  such  notice  was 


32Lemert  vs.  Clark,  1  C.  C.  569;  49;  In  re  Ringwald,  5  N.  P.  496;  5 

1  C.  D.  318.  Dec.  452. 

33  §§  11681-2  G.  C.  36  Matter    of   Malioney,    34   Hun. 

S"*  The  notice  miglit  be  made  in  a  501. 

Sunday  paper.    Hastings  vs.  Colum-  See  service  by  publication  where 

bus,  42  0.  S.  585;  State  vs.  Thomas,  newspaper    is    defined.      The    court 

61  0.  S.  444.  may  refuse  confirmation  if  not  pub- 

35  Cincinnati  vs.  Bickett,  26  0.  S.  lished    in    newspaper    as    required. 

Craig  vs.  Fox. 


§886  EEAL  ESTATE ADVERTISEMENT  798 

given. ^^  Sale  on  too  short  notice  does  not  render  the  transac- 
tion void.^^ 

Failure  tO'  give  notice  of  the  time,  terms  and  place  of  sale 
has  been  held  not  to  invalidate  sale  after  confirmation.^^ 

A  notice  published  in  the  English  language  inserted  in  a 
German  newspaper  is  not  sufficient.'*'*  Publication  in  one 
newspaper  is  sufficient;  and  if  the  administrator  publish  the 
notice  in  more  than  one,  he  will  not  be  allowed  the  cost  of  the 
extra  publication.'*^  If  the  Court  direct  publication  to  be  made 
in  two  newspapers  a  confirmation  of  the  sale  after  publication 
in  one  paper  only  will  make  it  valid.*^  If  the  publication  of 
the  notice  is  made  according  to  the  statute,  an  order  directing 
notice  to  be  given  in  a  different  manner  will  not  avoid  the  sale.'*^ 
The  publication  must  be  continuous  in  the  same  newspaper  for 
thei  whole  time  required  by  the  statute.^* 

The  report  of  the  sale,  or  the  affidavit  of  posting,  should  show 
that  tlie  places  where  notices  were  posted  were  public  places, 
and  not  merely  state  where  tliey  were  posted,  unless  such 
places  are  such  as  the  Court  will  take  notice  are  public  places. 
The  court  will  not  presume  a  school-house  is  a  public  place.*' 
Proof  of  the  posting  may  be  made  by  copy  attached  to  tlie  affi- 
davit.*^ Pailure  to  state  tbe  terms  of  the  sale  will  probably  not 
avoid  the  sale.*^     The  use  of  the  wrong  street  number  will  not 


37  Saltonstall  vs.  Eiley,  28  Ala.  *^  Lawrence's  Appeal,  49  Conn. 
164;    S.   C.   65  Am.  Dee.   334;    Ger-  411. 

rarcl     vs.     Johnson,     12     Ind.     636;  ^i  Town  send   vs.   Tallant,   33    Cal. 

Schaale  vs.  Wasey,  70  Mich.  414;  S,  45. 

C.  38  K  W.  Rep.  317.  «  Sowards    vs.    Pritchett,    37    111. 

38  Bland  vs.  Muncaster,  24  Miss.  517;  Hugo  vs.  Miller,  50  Minn.  105; 
62;   S.  C.  57  Am.  Dec.   162;    Minor  S.   C.  52  N.  W.  Rep.  381. 

vs.  Selectmen,  4  Sm.  &  M.  602;  S.  C.  46  Brown  vs.  Redwyne,   16  Ga.  67. 

43  Am.  Dec.  488.     Unless  cured  by  The  notice  should  state  the  time 

confirmation  it  would  be  void.  and  place  of  sale,  or  it  will  be  void 

39  Richardson  vs.  Farwell  (]Minn.)  (unless  there  is  a  confirmation). 
51   N.  W.   Rep.   915.  Blodgett  vs.  Hitt,  29  Wis.   169. 

40  Graham   vs.    King,   50   Mo.   22;  *' Paine  vs.  Fox,  16  Mass.  129. 
Doerge  vs.  Heimenz,  1  Mo.  App.  238;  Where  the  order  of  sale  directed 
Heitkamp    vs.    Biedenstein,    3    jNIo.  the    sale    to    be    held    according    to 
App.  450.  law,  but  the  notice  of  sale   showed 

41  Succession  of  Hautau,  32  La.  that  the  sale  was  held  on  the  prem- 
Ann.  54.  The  court  might  allow  it  i^ea  (instead  of  at  the  court  house), 
if  it  deems  it  advisable.  the  sale  was  held  to  be  valid.     Smi- 

42Sankey's    Appeal,    55    Pa.    St.  ley  vs.  Cook,  40  L.  R.  737;  52  Bull. 

491.  156. 


799  CONDUCT    AND    NOTICE    OF    SALE  §  887 

avoid  the  sale,  if  the  description  by  boundaries  is  correct/**  A 
sale  will  not  be  set  aside  because  the  description,  of  the  premises 
is  not  full,  if  it  did  not  mislead  the  bidder,*'*  and  if  the  notice  is 
sufficient  to  put  an  ordinary  man  on  inquiry,  and  such  an  in- 
quiry would  disclose  the  true  facts,  a  misdescription  in  th© 
notice  will  not  release  the  bidder.'^"  But  if  the  notice  doeg  not 
fairly  include  a  tract,  no  title  to  it  will  pass.'^^ 

The  date  of  sale  must  be  stated,  or  it  will  be  invalid,^^  A  no- 
tice of  a  private  sale  need  not  be  given.^'^ 

§  887.     Form  of  notice  of  public  sale. 

In  pursuance  of  an  order  of  the  Probate  Court  of County, 

Ohio,  I  will  offer  for  sale  at  public  auction  on  the day  of 

at o'clock  at  the  door  of  the  court  house  m  the  city  of 

(or  such  other  place  as  the  Court  may  have  ordered  the  sale),  the  follow- 
ing  described    real    estate,    situate    in   the    county   of State    of 

Ohio,  to-wit:  (here  describe  property) ,  (and  also  insert,  if  the  property 
is  in  a  town  or  city,  the  number  of  the  building,  if  there  is  no  number 
to  the  building  then  give  the  name  of  the  street  and  likewise  the  names  of 
the  streets  north  and  south  or  east  and  west.  If  the  property  is  in  the 
country,  name  the  township  and   public  road  upon  which   it  is  situated, 

as  well   as   its   proximity   to   some   village).        Appraised   at 

dollars,  terms  of  sale  (here  state  how  payments  are  to  be  made,  which 
may  be  varied  in  such  a  manner  as  the  Court  may  order.  But  the 
terms  must  correspond  with  those  given  by  the  Court,  which  usually 
are  as  follows:  one-third  in  hand,  one-third  in  one  year  and  one-third  in 
two  years  from  the  day  of  sale,  with  interest ) .  The  payments  to  be  secured 
by  a  mortgage  upon  the  premises  sold. 53a 

A.  B.,  administrator  of  the  estate  (or  executor  of  the  last  will  and  testa- 
ment)   of  C.  D.J  deceased.54 

§  888.     Conduct  of  sale. 

The  advertisement  having  been  made  according  to  law,  and 
the  time  having  arrived  at  which  the  sale  should  be  made,  the 
next  tiling  in  order  is,  making  the  sale.  In  this  matter  the 
administrator  or  executor  is  not  only  required  to  exercise  or- 
dinary care  and  prudence,  but  must  follow  the  orders  of  the 
Court. 

*8  New   England  Hospital  vs.   So-  ^-  VVellman  vs.  Lawrence,  15  Mass. 

hier,  115  Mass.  50.  326. 

See  statute,     Previous,  see  §  884.  53  Rice  vs.  Cleghorn,   21   Ind.   80; 

*!' Succession  of  Wadsworth,  2  La.  Maxwell  vs.  Campbell,  45  Ind.  360. 

Ann.  960.  See  §  1625,  Assignees. 

BoWylly  vs.  Gazan,  69  Ga.  506.  53a  May  be  all  cash.     §  10786  G. 

51  Bradford    vs.    McConihany,    15  ^-  ^'  *^47. 

W.Va.732.  54  See  §1625. 


^  888  EEAL  ESTATE  SALE  800 

The  stataments  and  representations  made  by  the  adminis- 
trator at  the  time  of  the  sale  hind  the  estate  only  as  to  such 
matters  as  are  prescribed  in  the  order,  or  concerning  which 
he  has  discretionary  power,^^  hence,  the  estate  is  not^  for  in- 
stance, bound  by  his  representations  of  the  validity  of  the  title. 
If  he  mislead  purchasers  by  false  statements  which  he  is  not  au- 
thorized to  make,  or  in  respect  of  matters  lying  beyond  the  scope 
of  his  discretion,  he  may  make  himself  personally  liable  thereby, 
but  not  the  estate."*' 

Puffing,  the  employment  of  sham  bidders,  and  similar  con- 
trivances to  stimulate  bidding  at  public  sales,  are  discounte- 
nanced by  Courts ;  the  current  of  authorities  is  now,  that  the 
employment  of  such  means  taints  the  transaction  Avith  fraud, 
against  which  Probate  or  Chancery  Courts  will  relieve  a  pur- 
chaser, upon  his  complaint,  by  setting  aside  the  sale.''" 

The  Court  can  appoint  no  one  but  the  executor  or  adminis- 
trator to  make  the  sale,^^  but  I  apprehend  this  will  not  preclude 
the  administrator  to  act  by  agent.  There  is  no  doubt  but  what 
if  the  estate  is  of  considerable  amount,  unless  the  administrator 
or  executor  is  particularly  qualified  for  such  a  purpose  he  could 
secure  an  auctioneer.  Yet  our  Supreme  Court  has  held  that  it 
is  presumed  that  he  has  such  ability,  and  unless  there  is  an  order 
of  the  Court  allowing  procuration  of  an  auctioneer,  the  admin- 
istrator or  executor  would  not  be  allowed  the  expense  of  such 
auctioneer.^^ 

From  this  ruling  of  our  Supreme  Court  it  is  never  safe 
to  employ  an  auctioneer  without  an  order  of  the  Court  for  that 
purpose.  jSTo  bid  can  be  received  for  less  than  two-thirds  of  the 
appraised  value,  nor  should  the  bid  of  any  one  be  received  who 

BsDunlap  vs.  Robinson,   12  0.   S.  M.    100;    Riley   vs.   Kepler,    94   Ind. 

530;    Giles  vs.  Moore,  4  Gray  600;  308,  311;    \Yest  vs.  Wright,  98  Ind. 

Randolph's  Appeal,    5   Pa.   St.   242,  335;  Fritz  vs.  McGill,  31  Minn.  536, 

245;    Cruikshank    vs.    Luttrell,    67  539;   Wells  vs.  Harper,  81  Ga.   194. 

Ala.  318-325;  Selb  vs.  Montague,  102  5^  Woerner  on  Admin.  1055. 

111.  446,  451 ;  Foote  vs.  Overman,  22  -^'S  Woerner  on  Admin.  1058. 

111.    App.     181;     See    Woerner    on  "s  Ingham  vs.  Lindemann,  37  0.  S. 

Guardianship,  §  82.  218. 

66  Westfall   vs.  Dungan,    14   0.   S.  This  holding  was  made  in  an  as- 

276;  Arnold  vs.  Donaldson,  46  O.  S.  signment  ease,  but  the  reasoning  ap- 

73;   Mellen  vs.   Boarman,   13  Sm.  &  plies  to  administrators. 


801  "WHO   MAY  BE   PUKCHASERS  §  889 

is  not  qualified  to  bid.  When  the  property  is  knocked  down 
to  the  successful  bidder,  he  should  be  required  to  make  a  de- 
posit of  not  less  than  double  the  amount  that  a  readvertisement 
would  require. 

It  is  probable  that  the  Court  could  enforce  by  proceedings  in 
contempt  the  acceptance  of  the  property  and  compliance  of  the 
bid  on  the  part  of  a  purchaser.""*  A  slight  variation  of  the  time 
and  place  of  sale  would  not  affect  its  validity  unless  it  be  shown 
that  some  prospective  purchaser  was  misled  thereby."" 

§  889.     Who  may  become  purchasers. 

This  matter  has  been  discussed  somewhat  in  the  chapter  on 
the  sales  of  personal  property,*'^  and  what  was  there  said  is 
equally  applicable  to  purchasers  of  real  estate.  The  statute 
forbids  an  appraiser  from  becoming  a  purchaser,  and  an  officer 
making  sale  on  execution/-  and  a  long  line  of  authorities  es- 
tablish the  principle,  that  a  person  acting  as  a  trustee  of  any 
kind,  cannot  either  directly  or  indirectly  purchase  the  property 
he  holds  in  trust,  and  that  if  he  becomes  interested  in  the  pur- 
chase of  such  property,  the  beneficiaries  may  have  the  purchase 
set  aside.*'^ 

It  has,  however,  been  held  that  ians,  etc.  Welsh  vs.  Perkins,  8  O. 
such  a  sale  is  not  absolutely  void,  52-56;  Armstrong  vs.  Huston,  8  0. 
but  only  voidable,  and  will  only  be  552,  554 ;  Dunlap  vs.  Mitchell,  10 
considered  fraudulent  and  void  by  a  Ohio  117;  Id.  120;  Glass  vs.  Great- 
party  directly  interested,  etc.  Ter-  house,  20  Ohio  503;  Sheldon  vs. 
rill  vs.  Auchaner,  14  O.  S.  80.  -Newton,  3  O.  S.  494;  Barrington  vs. 

60  See   8  1625,   Assignees.  Alexander,  6   0.  .S.   189;    Riddle   vs. 

61  §  469,  et  seq.,  §  506  et  seq.  Roll,  24  O.  S.  572 ;   Piatt  vs.  Long- 

62  §  11696  G.C.  Hurst  vs.  Fisher,  worth,  27  0.  S.  159;  Rammelsberg 
46  Bull.  19.  vs.  Mitchell,  29  0.  S.  22 ;  Beard  vs. 

59*  Section  11687  G.  C.  provides  Westerman,  32  0.  S.  29.  Does  not 
that  the  court  from  which  any  exe-  apply  to  partition  sales.  Bohart  vs. 
cution  or  order  of  sale  issues,  shall,  Atkinson,  14  0.  228. 
upon  notice  and  motion  of  the  officer  The  direct  purchase  by  a  trustee 
who  makes  sale,  or  an  interested  at  a  sale  made  by  him,  in  his  trust 
party,  punish  as  for  contempt  any  capacity,  is  voidable,  but  it  can  not 
purchaser  of  real  estate  who  fails  to  be  set  aside  after  the  land  has  been 
pay  the  purchase  money  tlierefor,  conveyed  to  a  bona  fide  purchaser 
and  §  10500  G.  C,  gives  the  Probate  without  notice  of  the  indirect  pur- 
Court  the  same  power  to  punish  for  chase  by  the  trustee.  Harrison  vs. 
contempt  as  the  Common  Pleas  has.  Heckler",  6  C.  C.  443;  3  C.  D.  530. 
See    §  17.  S.    having    inherited    real    estate 

03  This  principle  has  been  applied,  from  her  deceased  mother,  her  step- 
in  the  following  cases,  to  purchasers  father  induced  her  to  convey  it  to 
by  various  trustees  in  Ohio,  such  as  him  for  an  inadequate  consideration 
executors,      administrators,      guard'  by    representing    that    it    had    been 


^889  REAL  ESTATE SALE  802 

Fullness  of  price,  absence  of  fraud,  and  fairness  of  purchase 
are  not  sufficient  to  countervail  this  rule  of  policy.  To  give 
it  effect,  it  is  necessary  to  recognize  a  right  to  set  aside  the 
sale  in  all  cases,  on  repayment  of  the  money  in  advance,°*  but 
where  ah  executor,  having  brought  property  at  a  sale  to  pay 
debts  for  the  estate,  upon  failure  to  sell  for  want  of  bidders, 
resigned,  and,  upon  a  sale  by  his  successor  in  trust,  bought  the 
property  as  executor  of  his  father's  estate,  at  a  price  claimed 
to  be  inadequate,  does  not  constitute  ground  for  setting  aside 
the  sale,  where  it  does  not  appear  that  vendee  and  former  ex- 
ecutor, did  anything  to  prevent  fair  competition.®^ 

In  our  S*^ate  it  has  been  held  that  a  creditor  in  an  execution 
may  claim*  the  benefit  of  a  purchase  made  by  his  attorney.  By 
analog}'  this  might  apply  to  attorneys  acting  for  the  adminis- 
trator, and  the  purchase  of  the  attorney  might  be  considered 
in  law,  the  purchase  of  an  administrator  or  executor.^®  It 
seems,  however,  in  such  a  case  if  it  be  shown  that  an  attorney 
acted  entirely  for  himself  in  the  absence  of  fraud  and  a  want 
of  proper  vigilance  to  secure  the  best  price  on  the  part  of  the 
administrator  or  executor,  the  Court  might  approve  the  sale,®' 

The  rule,  however,  prohibits  not  only  the  purchase  by  the  ex- 
ecutor or  administrator,  but  is  applicable  if  he  become  bene- 
ficially interested  in  tlie  property  sold  l>efore  the  confirmation 
of  the  sale,  although  after  it  had  been  struck  off,  and  although 
the  confirmation  was  ex  parte/and,  notwithstanding  the  agree- 
ment by  which  he  became  interested  is  void  under  the  Statute 
of  Frauds.®' 

bought  with  his  money  and  the  title  Marsham,  2  C.  C.  471;   1  C.  D.  594. 

put   in   his    wife's    name   to    secure  c  4  Armstrong    vs.    Huston,    8    O. 

money  he  owed  her.     S.  filed  a  peti-  554;   Price  vs.  Morris,  5  McLean  4. 

tion  to  compel  her  step-father's  heirs  c 5  Woodward  vs.  Curtis,  10  C.  D. 

to  pay  her  the  real  value  of  the  prop-  400;   19  C  C.  15. 

erty.     Ileld,  such  petition  is  demur-  66  Wade  vs.   Pettibone,   11   O.   57, 

rable.     S.  must  affirm  or  repudiate  60. 

the  eonveyanfe,  and  can  not  assert  a  6  7  Woerner  on  Admin.  1083. 

vendor's  lien  for  the  full  value  and  es  Terwilliger    vs.    Brown,    44    N. 

repudiate     the   actual    sale.      These  Y.  237 ;  O'Conner  vs.  Flynn.  57  Cal. 

facts  do  not  amount  to  a  sale,  and  293;    Gibson   vs.   Herriott,   55   Ark. 

constituted    the    step-father    a    con-  85.      If    an    executor    purchases    it 

structive  trustee  for  S.     Stewart  vs.  -will  be  presumed  fraudulent  and  the 


803  WHO    MAY    Bt:    PURCHASERS  §  889 

An  agreement,  by  an  execiitxar  selling,  with  the  purchaser 
bo  share  in  future  profits  and  losses,  is  a  constructive  fraud,  and 
he  can  obtain  a  voidable  title  only ;  but  in  the  absence  of  any- 
thing done  to  prevent  competition  in  bidding,  and  if  the  prop- 
erty produce  all  it  is  worth,  such  agreement  is  not  an  actual 
fraud,  so  as  to  make  the  sale  void  collaterally.''''  But  where  the 
administrator  got  the  benefit  of  land  sold  to  another  who  paid 
no  purcliase-money,  the  Court,  in  setting  aside  the  sale,  will 
refuse  to  allow  the  claims  of  the  administrator  for  debts  of  the 
estate  paid  by  him,  and  his  own  claim  allowed  by  the  Probate 
Court,  and  will  hold  him  liable  for  rents  and  profits  ;'^°  so  it  has 
been  held  that  equity  will  not  permit  property  sold  by  execu- 
tors to  be  reconveyed  to  them  by  the  purchaser  for  the  same 
consideration,  before  the  executor's  duties  are  ended,  except  for 
the  benefit  of  the  cestui  que  trustent,  or  parties  beneficially  inter- 
ested.'^ The  administrator  is  prohibited  alike  from  purchas- 
ing for  himself  through  an  agent/^  and  from  purchasing  as  an 
agent  for  another.'^ 

A  sale  to  a  relative  for  less  than  could  have  been  obtained 
from  a  stranger  is  fraudulent;  nor  can  the  son  of  an  executrix, 
having  bought  land  with  the  understanding  that  he  is  to  hold  it 
for  her  use,  hold  it  against  creditors ;  and  a  purchaser  of  land 
from  an  executrix,  which  she  had  paid  for  out  of  the  assets  of 
the  estate,  will,  if  he  had  notice,  hold  in  trust  for  the  creditors.'* 
This  rule  does  not  apply  to  one  who  was  nominated  by  the  de- 
cedent as  executor,  but  who  does  not  qualify  as  such.'^ 

The  administrator  is  not,  subsequent  to  the  sale,  precluded 
from  dealing  with  the  purchaser,  and  may  acquire  from  him  a 
valid  title  to  the  property  sold,  if  there  was  no  understanding, 
express  or  implied,  at  the  time  of  the  administrator's  sale,  that 
he  should  have  an  interest  in  the  purchase.'® 

court  will  set  sale  aside  on  applica-  "i  Boynton    vs.    Barstow,    53    Me. 

tion  of  a  party  interested.     Barring-  3G2. 

ton  vs.  Alexander,  6  O.  S.  189.     See  •? 2  Decker  vs.  Decker,  74  Me.  465; 

Sheldon   vs.   Xcwton,   3    0.    S.    404;  Kruse  vs.  Stetfens,  47  111.  112. 

Glass    vs.    Greathouse,    20    0.    503;  73  Neda  vs.  Fontenot,  2  La.  Ann. 

Riddle  &  Parker  vs.  Roll,  24  O.  S'.  782;    State  vs.  Jones,  53  Mo.  App. 

572;  Pratt  vs.  Lon^wortli,  27  O.  S.  207. 

159;  Caldwell  vs.  Caldwell,  45  O.  S.  74  Woerner  on  Admin.  1083. 

512.  75  Bowden  vs.  Pierce,  73  Cal.  459- 

69  Williams  vs.  Rhodes,  81  111.  571.  463. 

70  Coat  vs.  Coat,  63  111.  73.  76  Woerner  on  Admin.  1086. 


§  890  KEAL  ESTATE  SALE  804 

A  bona  fide  purchaser  from  an  administrator,  who  indi- 
rectly buys  at  his  own  sale,  such  purchaser  having  no  notioe 
thereof,  is,  of  course,  protected  in  his  purchase.'^  An  exec- 
utor or  administrator,  having  purchased  at  his  own  sale,  is 
treated  in  equity  as  a  trustee  for  the  heirs  or  devisees ;  hence,  if 
such  sale  is  set  aside  on  their  suit,  he  will  be  required  to  ac- 
count, being  chargeable  for  rents  and  profits  received  from  the 
property,  or,  if  converted  into  money,  then  for  the  money,  with 
interest,  and  to  be  credited  with  payments  for  the  purchase,  if 
applied  in  the  administration  of  the  estate,  for  taxes,  neces- 
sary repairs,  and  reasonable  improvements,  also  ^vith  interest.^* 

§  890,  Return.  Confirmation.  Order  for  deed.  ' '  The  ex- 
ecutor or  adniinistraior  shall  make  reiurn  of  liis  proceedings 
under  the  order  of  sale ;  and  the  court,  after  careful  examina- 
tion thereof,  if  satisfied  that  the  sale  in  all  respects  has  been 
legally  made,  shall  confirm  it,  and  order  the  executor  or  admin- 
istrator to  make  a  deed  to  the  purchaser."     [R.  S.  §  6162. j''* 

§  890a.  Deferred  payments.  ' '  The  order,  in  such  case  also 
may  require  that  before  the  delivery  of  such  deed  the  deferred 
installments  of  the  purchase  money  be  secured  by  mortgage. 
But  if  after  the  sale  is  made,  the  purchaser  offers  to  pay  the  full 
amount  of  the  purchase  money  in  cash,  the  court  may  order  +'--■♦ 
it  be  accepted,  if  for  the  best  interest  of  the  estate,  and  direct 
its  distribution."      [R.  S.   §6162.]'^* 

§  890b.  Sale  of  notes.  ' '  The  court  in  such  case  also  may 
direct  the  sale,  without  recourse,  of  all  or  any  of  the  notes  taken 
for  deferred  payments,  if  for  the  best  interest  of  the  estate,  at 
not  less  than  their  face  value  with  accrued  interest,  and  direct 
distribution  of  the  proceeds."     [R.  S.  §  6162.] ^"f 

:  891.    Eeturn  of  sale.* 
The  property  having  been  knocked  dovm  to  the  highest  bid- 
der, it  is  the  duty  of  the  administrator  or  executor  to  report  the 
sale  to  the  Probate  Court  for  confirmation.     If  he  refuses  to 
do  so   he  may  be   compelled  to   act   by  order   of  the   Probate 

77  Woerner  on  Admin.   lOSS.  79f  lOSOfi  G.  C. 

78  Lagger  vs.  Bldg.  Association,  See  §  878,  for  form  of  report  of 
146  111.  283;    Miles  vs.   Wlieeler.  43       sale. 

111.   123;   Ebelniesser  vs.  Ebelmesser,  *  Cited,   Fitzgerald  vs.   Welds,  50 

99  111.  541:    O'Conner  vs.   Flynn,  o7  Bull.    384. 

Cal.  293:    Fisher  vs.  Bush,  133  Ind.  Where  an  administrator  has  sold 

315.                    "  under  order  of  court  he  mav  convey 

See   §  1625.  Assignees.  directly     to     the     assignee'  of     the 

79  §  10804  G.  C.  purchaser.      Ewing  vs.   Higbv,   7   0. 
79*  §10805   G.   C.  (pr.  1)   198. 


805  RETURN    OF    SALE  §  891 

Court, *°  or,  as  it  has  been  held  in  some  instances,  a  Court  of 
Chancery  might  confirm. ^^  The  course  in  our  State  would  be 
to  apply  to  the  Probate  Court,  and  if  he  fail  to  act,  the  Court 
would  remove  him,  and  the  person  appointed  in  his  place  could 
report  the  sale.  Before  reporting  the  sale  for  confirmation, 
the  administrator  or  executor  should  ascertain  whether  the 
purchaser  desires  to  pay  all  cash  or  whether  he  desires  to  pay 
more  in  cash  than  required  by  the  terms  of  sale.  Such  fact 
should  be  reported  so  that  the  Court  may  make  an  order  in 
conformity  to  the  wishes  of  the  parties.  The  object  of  the  re- 
port is  to  enable  the  Court  to  examine  into  the  doings  of  the 
administrator  in  respect  to  the  sale  and  to  determine  whether 
he  has  complied  with  all  the  requirements  of  the  statute  and 
the  orders  of  the  Court  touching  the  same.®^ 

If  there  is  apparently  no  contest,  the  Court  may  proceed  to 
confirm  the  sale  upon  the  report.  As  a  general  rule,  it  may 
be  said,  that  the  sale  ought  not  to  be  confirmed  until  the 
parties  interested  have  had  a  reasonable  time  to  examine  the 
same  and  make  contest  thereto,  if  so  desired.  Usually  parties 
interested  can  and  ought  to  make  objection  at  once.  The  re- 
port should  be  signed  by  the  administrator  or  executor,  but 
.need  not  be  sworn  to.^'*  The  form  of  such  report  is  attached 
to  the  order  of  sale  given  in  the  previous  section.  If  there  are 
several  tracts  offered,  each  tract  should  be  reported  separately 
in  the  return  -with  the  price  received  for  each. 

A  report  of  sale  by  an  administrator,  showing  that  land  be- 
longing to  his  decedent's  estate  has  been  sold  to  a  designated 
person,  is  not  conclusive  as  to  who  the  person  was,  but  the  real 
purchaser  may  be  shown  by  parol,  though  the  decree  of  confir- 
mation, directed  that  conveyance  be  made  to  "  the  purchaser."^^ 

The  report  of  sale  need  not  contain  a  precise  and  full  de- 
scription of  the  lands  by  metes  and  bounds.^*  Reference  to 
the  order  of  sale  is  sufficient. ^^ 

But  he  can  not  make  to  another,  82  Woerner  on  Admin.   1059. 

if   the    other    is   to   convej^   to   him.  83*  If  gale  is  public. 

Caldwell  vs.  Caldwell,  45  0.  S.  512.  83  Dodd  vs.  Templeman,  13  S.  W. 

80  Stow  vs.   Kimball,   28   111.   83;  Hep.    187;    ,S.   C.   76   Tex.   57. 
Mason  vs.  Osgood,  04  N.  C.  467.  84  Calvert  vs.  Alexander   (Ky.),  8 

81  Rea   vs.   McEachron,    13   Wend.  S.  W.   Rep.  696. 

465.  85  Sullivan  vs.  Berry,  83  Ky.  198. 


g  892  REAL  ESTATE  —  SALE  806 

A  purchaser  named  Mary  Hynod  cannot  be  compelled  to  pay 
for  a  sale  returned  and  confirmed  to  May  and  Inott.  She  is  not 
connected  therewith.^®  If  the  purchaser  consent,  the  adminis- 
trator may  substitute  some  one  else  as  purchaser  in  his  re- 
port.*^ If  the  highest  bidder  fails  to  comply  with  the  order 
making  a  deposit,  or  for  some  other  good  reason  is  unable  to  com- 
ply with  the  terms  of  the  sale  and  where  the  difference  between 
his  bid  and  the  next  highest  is  very  slight,  the  name  of  such 
next  highest  bidder  might  be  substituted  for  the  highest  bidder, 
he  consenting  thereto.^* 

§  892.     Confirmation. 

The  confirmation  or  approval  of  the  sale  by  the  Court  is  the 
judicial  ascertainment  of  its  validity  and  legality,  and  the  de- 
cree so  made  cannot  thereafter,  in  any  collateral  proceeding,  be 
questioned. ®®  The  matter  of  confirming  the  sale  rests  largely 
in  the  discretion  of  the  judge,  and  the  higher  Court  will  not 
review  the  same  on  the  weight  of  the  evidence.®** 

The  judge  should  inquire  into  all  the  circumstances  connect- 
ed with  the  transaction,  examine  the  administrator  or  executor, 
the  purchaser  and  other  witnesses  if  necessary,  and  if  he  reach 
the  conclusion  that  the  sale  was  not  fairly  made  or  not  in  con- 
formity with  law,  the  sale  should  be  vacated.      It  is  not  proper 


86  Starbuck  vs.  Hynod,  1  Bull.  the  sale  on  execution  vacated  in  the 
140.  Court's   discretion,   though   the   pro- 

87  Ewing  vs.  Higby,  7  0.  ( pt.  1 )  ceedings  are  regular  and  though  R. 
198;  Thompson  vs.  McManama,  2  S.  §5398  seems  to  be  mandatory. 
Dis.  213.  (Aff'd,   no   rep.,   23   B.   253.)      Bear 

ssWoerner  on  Admin,  1063.  vs.  Bookmiller,  3  C.  C.  484;  2  C.  P. 

89Noland    vs.    Barrett,     122    Mo.  277. 

181;    Sturdy   vs.   Jacoway,    19   Ark.  Amendment  of  return  giving  rea- 

199;  Thorn  vs.  Ingram,  25  Ark.  52;  sons  for  not  executing  order  of  sale. 

Osman  vs.  Traphagen,  23  Mich.  80;  Bereman   vs.   Directors,   4   W.   L.   J. 

Camden  vs.  Plain,  91  Mo.  117;   4  S.  500. 

W.    Rep.    86 ;     See    also    Keller    vs.  Where  a  sale  had  been  made  for  a 
Amos,   31   Keb.   438.  fair     price    upon    competitive    bid- 
But  the  approval  can  not  by  any  ding,  the  court  can  not  set  it  aside 
retroactive  effect  impart  validity  to  merely  because  the  sale  was  on  the 
a  sale  which   is  wholly  void.     Cun-  premises,  when  the  statute  provides 
ningham  vs.  Andersoh,"l07  Mo.  371;  that    when    not    otherwise    directed 
Schlicker    vs.    Hemenway,    110    Cal.  the  sale  shall  be  held  at  the  court 
579.                                      "  house.     Smiley  vs.  Cook,  4  O.  L.  R. 
soNiles  vs.   Parks,   49   O.   S.   370.  737;  52  Bull.  156. 
Confirmation  may  be  refused  and 


807  CONFIRMATION  §  892 

for  tlie  Court  to  go  into  and  investigate  as  to  the  legality  of 
the  finding  made,  upon  which  the  order  of  sale  rests.  If  a 
question  is  to  be  raised  upon  that  question,  it  cannot  be  done  in 
an  objection  to  confinnation.  If  it  was  clearly  shown,  how- 
ever, that  the  Court  had  no  jurisdiction  to  make  the  order  of 
sale,  it  should  not  be  confirmed.''^  As  a  general  rule  it  may  be 
said  that  the  Court  wall  refuse  to  confirm  the  sale  if  the  statute 
has  not  been  literally  complied  with.''^  If  made  on  an  improper 
day  and  the  property  bring  but  two-thirds  of  a  low  appraise- 
ment, it  should  be  set  aside.**^  A  defect  in  the  description  where 
not  material  and  not  objected  tO'  by  the  purchaser  is  no  ground 
to  resist  confirmation."* 

A  very  common  objection  to  confirmation  is  the  inadequate 
price  at  which  the  property  has  been  sold.  This  is  never  a 
good  reason  to  refuse  confirmation,  unless  the  Court  be  satis- 
fied that  a  better  price  will  be  secured.  Generally  tbe  Court 
of  Probate  being  charged  with  the  duty  of  seeing  that  the  es- 
tate receive  the  most  that  can  be  had  on  such  sale,  will  set  aside 
a  sale  where  a  higher  price  is  guaranteed.  Such  action  on  the 
part  of  the  Court  sometimes  brings  on  it  the  ill  feeling  of  the 
person  who  bid  it  ofi^.  But  a  Court  mindful  of  tlie  duty  de- 
volved upon  it,  to  look  after  the  interests  of  infants,  widows, 
and  creditors  not  directly  represented,  should  not  be  afraid  of 
offending  some  one  who  may  by  its  action  loose  a  fortunate 
chance  of  speculation.  The  general  practice  is  in  order  to  set 
aside  such  sale  by  reason  of  inadequate  price,  to  require  that  a 
bond  be  taken  or  security  given  to  insure  a  sale  of  the  premises 
if  again  offered  for  an  amount  sufficient  to  equal  the  present 
bid  and  the  costs  of  an  additional  sale,  as  well  as  interest  which 
might  accrue  on  the  purchase  money  from  tbe  date  of  the  first 
sale  to  tlie  second."^ 


81  See  Buckingham  vs.  Grandville,  ss  Where   corporation   property   is 

2  0.   3G0;    Fritsch   vs.   Van  Mitten-  bid  in  at  foreclosure   sale  by  a  di- 

dorff,  2  C.  S.  C.  Rep.  262.  rector  at  much  less  than  its  value, 

92  Craig  vs.  Fox,  16  O.  563.  and    a   bond   holder    offers    security 

03  Banning   vs.    Pendery.    4    Bull.  that   he   will   bid   twenty   per   cent. 

912.  more  if  a  new  sale  is  ordered,  it  will 

»*  Wilson  vs.  Scott,  29  O.  8.  636.  be  ordered  on  condition  this  proposi- 


§  893  REAL  ESTATE — SALE  808 

No  title  can  vest  until  a  confirmation.^^*  But  a  confirmation 
does  not  of  itself  constitute  the  sale.""^  The  title  of  the  heirs 
is  not  divested  until  the  purchase  money  is  paid  and  the  deed 
delivered  by  the  administrator."^  If  an  heir  or  person  inter- 
ested as  provided  by  statute,''^  appear  in  Court  and  offer  to  give 
bond  to  the  administrator  to  pay  all  the  debts  of  the  estate,  the 
sale  ought  not  to  be  confirmed,  as  the  heirs  ought  to  have  an 
opportunity  of  preserving  the  estate  to  themselves.  The  object 
of  the  sale  is  to  secure  funds  with  which  to  pay  the  debts  of  the 
deceased  and  not  to  divest  the  heirs  of  their  title  for  any  other 
purpose.*" 

§  893.     Sufficient  confirmation. 

Where  there  is  any  evidence  of  confirmation,  or  of  some- 
thing from  Avhich  an  intention  to  confirm  might  be  inferred,  or 
something  entitling  the  purchaser  to  have  the  sale  confirmed, 
the  purchaser  will  be  entitled  to  claim  title  to  the  land.^°° 

The  minutes  of  tlie  judge  making  the  approval  is  sufficient  to 
sustain  the  sale  against  a  collateral  attack. ^°^  An  approval  of 
a  sale  wall  be  construed  also  as  an  approval  of  the  appointment 
of  the  administrator.^*^"  So  ordering  the  report  to  be  spread 
of  record,  accepting  an  account  of  the  proceeds,  and  approving 
the  deed,  is  a  confirmation  of  the  report. ^''^  An  acknowledg- 
ment of  the  execution  of  the  deed  taken  by  the  judge  of  the 
Court,  and  charging  the  administrator  with  the  proceeds  of  the 
sale,  is  a  confirmation  of  the  sale,"*  and  if  no  formal  entry  can 
be  found,  an  approval  will  be  presumed  in  a  collateral  attack.^"' 

tion  is  put  into  shape  within  a  week.  loi  Camden  vs.  Plain,  91  Mo.  il7; 

Secor  vs.  Manraee  Rolling  Mill,  1  N.  S.  C.  4  S.  W.  Rep.  86. 

P.  100;   1  Dec.  80.  io2Shuniaid  vs.  Phillips,  53  Ark. 

95*  See  Johnson  vs.  Cincinnati,  11  37.   g.  q.  13  S.  W.  Rep.  510. 

C.  C.   (KS.)   344;   30  0.  C.  C.  644.  103  Grayson    vs.    Weddle,    63    Mo. 

96  Curtis  vs.   Norton,    1   O.   278.  523. 

97  Woerner  on  Admin.   1003.  io4  Agan    vs.    Shannon,     103    Mo. 
»«  §  826.  661 ;  S.  C.  15  S.  W.  Rep.  757. 

9!)  The  title  of  the  purchaser  may  Moore  vs.  Davis,  85  Mo.  464. 

not  be  divested  by  a  subsequent  re-  105  Jones  vs.  Manly,  58  Mo.  559. 

versal   of  the  order  of  sale.     Irwin 
vs.  Jeffers,  SOS.  330. 

looMoodv  vs.  Butler,  63  Tex.  210. 


809 


SUFFICIENT    CONFIEMATION 


894 


A  confirmation  may  be  made  any  time  after  the  sale/*"  even 
after  suit  to  set  aside  the  same  or  deed/''^ 

If  several  tracts  be  sold,  the  sale  of  some  may  be  approved 
and  the  others  disapproved,  although  there  be  only  one  report 
embracing  them  all/°^  Long  possession  of  the  purchaser  under 
a  deed  will  raise  a  presumption  of  confirmation.^"® 

§  894.     Errors  cured  by  confirmation. 

Where  jurisdiction  has  been  acquired  in  such  a  proceedings, 
subsequent  errors  in  the  course  of  its  exercise,  as  in  the  order 
of  sale  and  its  confirmation,  however  grave  and  glaring,  will 
not  subject  the  judgment  to  successful  collateral  attack.^^" 

If  a  deed  be  made  before  confirmation,  the  fact  of  confirma- 
tion will  cure  the  defect.^"  If  an  order  be  given  to  two  joint 
administrators,  a  sale  by  one  is  valid  after  confirmation.^*^  The 
confirmation  cures  all  defects  in  the  advertisement  or  notice  of 
the  sale,**^  or  the  failure  of  the  notice  to  give  the  terms  of  sale,*** 


106 /„  re  Harvey,  16  111.   127. 

107  Morgan's  Appeal,  110  Pa.  St. 
271. 

A  confirmation  cannot  be  collater- 
ally  attacked. 

Sturdy  vs.  Jacoway,  19  Ark.  499; 
Thorn  vs.  Ingram,  25  Ark.  52 ;  Os- 
man  vs.  Traphagen,  23  Mich.  80; 
Camden  vs.  Plain,  91  Mo.   117. 

los  Delaplaine  vs.  Lawrence,  3  N. 
Y.  301 ;  Bacon  vs.  Morrison,  57  Mo. 
68. 

109  Smith  vs.  Wert,  64  Ala.  34; 
Neill  vs.  Cody,  26  Tex.  286;  Moody 
vs.  Butler,  63  Tex.  210. 

In  passing  on  a  sale,  the  Court 
can  not  go  behind  and  revise  the 
original   order   of   sale. 

Allen  vs.  Shepard,  87  111.  314. 

The  order  of  confirmation  is  not 
void  because  it  does  not  show  to 
whom  each  of  several  tracts  was 
sold. 


Perry  vs.  Blakey,  5  Tex.  Civ.  App. 
331;  S.  C.  23  S.  W.  Rep.  804. 

A  recital  that  the  sale  had  been 
made,  and  that  on  inspection  it  ap- 
peared it  was  made  according  to 
law,  is  a  sufficient  report  and  con- 
firmation  of   the   sale. 

Day  Land,  etc.,  vs.  N.  Y.,  etc.,  Co. 
(Tex.),  25  S.  W.  Rep.  1089. 

110  Bohart  vs.  Atkinson,  14  O. 
228;  Spaulding  vs.  Baldwin,  31  Ind. 
376 ;  Hammann  vs.  Mink,  99  Ind. 
279. 

iiiLemert  vs.  Clark,  1  C.  C.  569; 
1  C.  D.  31S;  Hammann  vs.  Mink,  99 
Ind.  279;  Contra,  Stillwell  vs. 
Swarthout,  81  N.  Y.   109. 

112  Osman  vs.  Traphagen,  23  Mich. 
80. 

113  Jackson  vs.  Magruder,  51  Mo. 
55.' 

11*  Braubaker  vs.  Jones,  23  Kan. 
411. 


§  895  REAL  ESTATE — SALE  810 

or  the  place/^^  or  both  the  time  and  place,^^®  or  any  departure 
from  the  order  of  sale,"^  or  the  fact  that  the  notice  was  too 
short/^^  A  sale  for  less  than  the  appraisement  is  cured  by  the 
confirmation,"^  or  by  selling  at  private  sale  when  ordered  to  sell 
at  public  sale,^-"  or  selling  upon  different  terms  from  the  order/-^ 
or  the  omission  to  verify  the  report.^"  A  void  sale,  however, 
can  not  be  rendered  valid  by  confirmation/^^ 

§  895.    Entry  confirming  sale,  and  distributing  proceeds. 

No  objection  being  made  and  tlie  Court  being  satisfied  that 
a  proper  sale  has  been  made,  an  entrj'  should  be  placed  upon 
record  reciting  these  facts.  Generally  the  same  entrj^  include? 
a  distribution  of  the  proceeds,  but  this  is  not  essential  and  an 
entry  might  be  made  confirming  the  sale  and  thereafter  another 
entry  distributing  the  proceeds.  For  convenience  they  will 
both  be  included  in  the  following,  which  may  be  used  as  a 
general  form :  * 

{Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  report  of  a  public  (ot 
private)  sale  of  the  property  described  in  the  petition  herein;  and  therf 
appearing  to  be  no  objection  to  the  sale  it  was  submitted  to  the  Court  upori. 
such  return  of  sale,  \^hereupon  the  Court  finds,  after  due  and  careful 
examination  of  the  same  that  said  sale  has  been  duly  and  legally  made  in 
conformity  to  law,  and  the  former  orders  of  the  Court.  \Yherefore  it  is 
ordered  that  the  same  be  and  is  hereby  approved  and  confirmed.  And  it 
is  further  ordered  that  said  A.  B.  as  such  administrator  (or  executor)  make 
to  the  purchaser,  E.  F.,  a  good  and  sufficient  deed  for  the  premises  so  sold. 
(If  the  purchaser  desires  to  change  the  terms  of  sale  t!ie  entry  may  con- 
tinue.) And.  the  said  E.  F.  desiring  to  pay  all  of  said  purchase  money  in 
cash,  said  administrator    (or  executor)    is  ordered  to  accept  the  same. 124 

11a  Blodgett  vs.  Hitt,  29  Wis.  169.       go  to    his   heirs    as   personalty,   and 

110  Beidler   vs.    Friedell,    44   Ark.       should  be  paid  to  his  administrator. 

411;   Cadwallader  vs.  Evans,   1   Dis.       ^^'^ry  vs.   Howard,   7   N.  P.    (N.S.) 


585 


97;    19   Dec.   71. 


,,,  „                           ,,.   ,      „^    -.    ,  i22Spragins   vs.    Tavlor,    48    Ala. 

ii^Haramann    vs.    Mink,    99    Ind.  ^-,^       *      *                      ' 

^'  123  Cunningham       vs.       Anderson 

iisWyant    vs.    Tuthill,     17    Neb.  (Mo.),  17  S.  W.  Rep.  972;  Temple- 

495;  S.  C.  23  N.  W.  Rep.  342.  ton  vs.  Falls,  etc.,  Co.,  77  Tex.  55; 

lis  Spaulding  vs.  Baldwin,  31  Ind.  S.   C.    13   S.   W.   Rep.   964. 

376.  See  §§  10783-4   G.  C,  §  814. 

120  Apel  vs.  Kelsey,  52  Ark.  341;  12*  If  the  administrator  or  execu- 
S.  C.  12  S.  W.  Rep.  703;  Ex  parte  ^^^  desires  to  get  an  order  to  sell  the 
Kirkman,  3  Hed  517.  ''°*^^  representing  the  deferred  pay- 

,0,  T       1    ,   A          ^    ^^  -r.      oi^   ..,,  ments,   the   entry   should   state   and 

121  .Jacobs'  Appeal,  23  Pa.  St.  477.  '    ,,      •            ,      '1           :i      •   1  *  1      ,„ 

'  '       '  nuthorize  such  sale,  and  might  be  as 

Where  a   devisee  of  a   share  dies  fQ^lo^ys■.      "And  it  appearing  to  the 

before  distribution  is  made,  the  pro-  Court  that  it  would  be  for  the  best 

ceeds  of  from  a  sale  of  the  property  interest   of    the    estate    to    sell    the 


811 


CONFIRMATION 


DISTRIBUTION 


§  895 


And  the  said  M.  N.,  having  by  her  answer  elected  to  receive,  in  lieu  of 
her  dower  in  said  real  estate,  its  value  in  money,  the  Court  finds  the  just 
and  reasonable  value  thereof  to  be dollars.i-s 

And  it  is  further  ordered  that  upon  satisfaction  of  the  mortgage  of 
O.  P.  herein  set  forth  in  the  cross  petition  of  said  0.  P.,  said  mortgage 

being  recorded  in  volume page Mortgage  Records  of 

County,  Ohio,  cancellation  be  entered  on  the  record  thereof  in  the  office  of 
the  Recorder  of  said  county  where  it  is  recorded. 1 26 

And  the  Court  coming  now  to  the  distribution  of  the  proceeds  of  said 

sale,  amounting  to dollars,  the  said  E.  F.,  purchaser,  having 

elected  to  pay  the  same  in  cash  (or  the  said  administrator  having  sold 
the  notes  and  secured  the  cash  therefor),  it  is  ordered  that  said  adminis- 
trator out  of  the  moneys  in  his  hands  pay  first  to  the  treasurer  of  this 
county,  taxes,  penalties  and  interests  thereon  against  said  property,  to-wit, 
the  sum  of dollars. 127 

Secondly,  costs  and  expenses  incurred  in  the  sale  of  said  land  to  the 
sum   of dollars,   as   follows: 

1.  Probate  Court  costs,  amounting  to dollars.  2.  The  Morn- 
ing Sun,  for  advertising  said  property dollars.     3.  James  Foley, 

auctioneer,  the  sum  of dollars.     4.  Van  Bird,  surveyor,  the 

sum  of dollars.     5.  The  per  centum  of  the  executor,  the  sum 

of dollars.128 

Thirdly,    to   M.    N.,   widow,    the    sum    of dollars,    which    the 

Court  finds  to  be  the  reasonable  value  of  her  dower  interest  in  said 
premises. 

Fourthly,  to  0.  P.  on  the  note  and  mortgage  set  forth  in  his  cross- 
petition  herein,  the  sum  of dollars,  which   the  Court   finds  to 

be  due  him.     And  it  is  ordered  that  the  balance  of  said  sum,  amounting 


notes  taken  for  the  deferred  pay- 
ment, it  is  ordered  that  said  admin- 
istrator sell  the  same  without  re- 
course for  not  less  than  their  face 
value  and   accrued   interest." 

120  This  dower  interest  of  the 
widow  is  calculated  by  use  of  the 
ordinary  tables  of  mortality.  See 
chapt.  next  to  index. 

i-'6  Tliis  entry  should  always  con- 
tain the  volume  and  page  of  the 
record  where  the  lien  is  recorded. 
It  sometimes  becomes  a  difficult  mat- 
ter and  one  exceedingly  dangerous  to 
the  clerk  or  Probate  Judge  where 
such  is  not  done.  For  perchaiice 
he  might  cancel  the  wrong  mortgage, 
and  besides,  it  is  much  easier  for  the 
attorney  when  preparing  the  entry 
to  insert  the  volume  and  page  of 
such  lien  record  than  it  is  for  the 
judge  or  clerk  to  search  through  a 
number  of  papers  to  ascertain  the 
same  and  then  fail  to  find  it  correct- 
ly given.  §§10783-4  G.  C,  §814; 
as  to  statute  providing  for  distribu- 
tion, see  §  903. 

127  As  to  how  money  is  to  be  dis- 
tributed, see  subsequent  section  and 
§  10809  G.  C,  §  903. 

This  does  not  include  street  as- 
sessments which  are  not  on  the  tax 
duplicate.  Makley  vs.  Whitmore,  61 
0.  S.  587. 

Taxes,      interest     and      penalties 


which  by  the  statute  are  to  be  paid 
out  of  the  proceeds  means  taxes 
standing  on  the  duplicate;  and  taxes 
are  deemed  due  on  October  first  for 
tlie  purjTOse  of  being  paid  out  of  tlit 
purchase  money  on  administrators, 
ci-editors,  trustees,  or  judicial  sales 
though  the  lien  of  the  same  attaches 
at  a  prior  April.  Hoglen  vs. 
Cohan,  30  0.  S.  436;  Ketchem  vs. 
Fitchem,   13   0.   S.   204. 

128  As  to  collection  and  compen- 
sation of  the  executors  and  admin- 
istrators,   see    §§  654-659. 

Neither  attorney  fees  of  an  admin- 
istrator nor  premiums  due  on  the 
administrator's  bond,  are  costs,  un- 
der §  10809  G.  C,  §  903,  prior  to 
a  first  mortgage,  nor  can  they  be 
allowed  as  extraordinary  expenses. 
Sherman  vs.  Millard,  6  C.  C.  (N.S.) 
338;   27  O.  C.  C.  181. 

The  author  is  somewhat  inclined 
to  doubt  the  soundness  of  this  opin- 
ion. It  seems  that  such  expense  as 
the  mortgage-holder  would  have 
been  put  to  if  he  had  foreclosed  his 
mortgage  would  have  at  least  been 
proper  to  allow  the  administrator. 
The  recent  case  of  Klimper  vs. 
Klimpcr,  12  0.  App.  332,  would  sup- 
port the  allowance  of  such  costs 
which  supports  the  view  of  the 
author. 

For  taxes,  costs  and  expenses  be- 


§  896  REAL  ESTATE RESALE  812 

to dollars,    be   distributed   by   said  administrator   as   provided 

by  law.  129 

§  896.    Resale. 

If  there  are  no  bidders,  the  premises  should  be  re-offered.  If 
offered  twice  and  there  are  no  bidders  the  Court  may  then  fix 
the  amount  for  which  they  may  be  sold  or  may  order  a  new  ap- 
praisement. ^^°  If  the  purchaser  fails  to  pay  the  price  bid  by 
him,  there  must  be  a  resale  of  the  property.  The  Court  may 
order  a  resale  even  after  a  sale  has  been  confirmed,  for  it  does 
not  lose  its  jurisdiction  until  the  sale  has  been  actually  con- 
summated.^^^ 

In  all  cases  where  there  has  been  no  sale  made,  either  for 
want  of  bidders  or  by  reason  of  a  bidder  refusing  to  comply 
with  his  bid,  the  matter  should  be  reported  to  the  Probate 
Court  and  the  Court  should  order  a  resale.  Such  proceedings 
tend  to  preserve  a  regularity  which  will  prevent  errors.  If  a 
purchaser  refuses  to  take  the  property  and  it  is  resold  he  will 
be  liable  if  it  brings  a  less  amount  than  his  bid.  The  Court 
may  also  enforce  a  purchaser's  bid  by  proceeding  against  him 
for  contempt.  If  the  Court  fixes  the  value  once  after  the  prop- 
erty has  been  twice  offered,  it  cannot  fix  it  a  second  time.^^^ 
The  Court  might,  perhaps,  order  a  reappraisement  if  a  great 
length  of  time  had  expired  between  a  foi*mer  appraisement  and 
the  time  of  the  proposed  sale,  where  it  is  shown  that  values 
have  changed.  The  journal  entry  in  such  cases  might  be  as 
follows  ordering  a  reappraisement : 

ENTRY. 

(Title.) 

It  appearing  to  the  Court  that  the  real  estate  herein  ordered  to  be  sold 
has  been  twice  offered  for  sale  under  the  present  appraisement  and  not 
sold  for  want  of  bidders,  it  is  now  on  motion  ordered  that  said  ;..ppraise- 
ment  be  set  aside  and  re-appraisement  of  the  same  be  made  by   (name  the 

ing  prior  to  dower,  see  §  950.  See  §  1626,  Assignees. 

See    §  814,    Power    to    determine  130  §  10802  G.  C,  §  880. 

liens.  131  GreiTet  vs.   Willman,   114  Mo. 

129  After    distribution    lias    been  106;  Woerner  on  Admin.  1064. 

made  in  payment  of  costs  and  liens  1^2  Brown  vs.  Conn.  M.  L.  Ins.  Co., 

on     the     property     the     remainder  6  C.  C.  62 ;  3  C.  D.  350. 

should    be    applied    in    payment    of  See  §  888,  Conduct  of  sale. 

debts,  etc.    'See  §  646  et  seq.  The  beneficiary  may  apply  for  a 

If   anything   remains   after   debts  resale.      Caldwell   vs.    Caldwell,    45 

have  been  paid  it  must  be  distrib-  O.  S.  512. 
uted  as  real  estate.    See  §  6171  R.  S., 
§905. 


813  SECURING   PAYMENTS  §  897 

persons),  three  judicious,  disinterested  men  of  the  vicinity,  who  are  free- 
holders.133 

If  the  court  is  to  fix  the  value  the  following  may  serve  as  an 
entry : 
{Title.) 

It  appearing  to  the  Court  that  the  real  estate  herein  ordered  to  be  sold 
has  been  twice  offered  for  sale  under  the  present  appraisement  and  not 
sold  for  the  want  of  bidders,  it  is  now  on  motion  ordered  that  said  real 

estate  may  be  sold  for  the  sum  of dollars    (at  private  sale  or 

public  auction,  etc). 

§  897.     Securing  payments. 

Before  the  delivery  of  the  deed,  or  at  the  same  time,  the 
administrator  or  executor  must  secure  payment  for  the  real  es- 
tate sold.  Having  delivered  the  deed  he  is  responsible  for  the 
purchase  money  unless  it  should  be  a  loss  through  deferred  pay- 
ments secured  as  provided  by  law.  The  statute  provides  that 
with  the  permission  of  the  Probate  Court  the  purchaser  may 
pay  all  cash.  Otherwise  he  must  make  payments  as  directed 
in  the  order  of  sale.  If  the  administrator  trusts  the  purchaser 
or  takes  notes  in  any  otlier  method  tlian  that  directed  by  law, 
he  is  responsible.  The  deferred  payments  must  be  secured  by 
mortgage  on  the  premises,  and  must  bear  interest  at  six  per  cent, 
and  must  not  exceed  two  years  from  the  date  of  sale.^^* 

Some  care  should  be  exercised  in  the  drafting  of  the  mort- 
gage. The  purchaser's  wife  or  husband  need  not  sigTi  the  same 
unless  he  or  she  be  joint  purchasers,  although  it  will  do  no  harm 
to  have  them  to  do  so.  Being  a  purchase  money  mortgage  their 
dower  does  not  attach  until  the  purchase  money  is  paid.  The 
mortgage  should  be  made  to  the  administrator,  his  heirs,  suc- 
cessors and  assigns.  If  the  word  "  heirs  "  is  not  used  in  the 
granting  clause,  or  in  habendum  clause,  or  in  the  covenants,  no 
fee  simple  is  conveyed,  but  only  a.  life'  estate.^^^ 

The'  only  instance  in  which  the  word  successors  can  be  used 
instead  of  the  word  heirs,  is  when  the  mortagee  is  a  corpora- 

133  This  entry  may  be  changed  to  mere  fact  that  he  does  not  conduct 

suit  where  appraisement  is  ordered  tlie    sale    would     not     prevent     the 

for  any  other  reason.  court  from  granting  the  writ  direct 

It   is    not  generally   necessary  to  to  him.     See   Bates  PI.  and  Pr.,  p. 

have  a  writ  of  possession,  and  there  2218;  §  11634  G.  C. 

might   be   a    doubt   whether,    in    an  "4  §  10786  G.  C.,  §  847. 

administrator's  sale  under  order  of  135  Stephenson    vs.    Sedam,    12    C. 

'court,    a    writ    of    this    kind    could  C.  40S,  414;   5  C.  D.  609.     See  case 

issue   directed   to    the   sheriff.      But  for  application. 

the  sheriff  is  the  executive  offleer  of  See  Stambaugh  vs.  Fox,  16  C.  C. 

the    Probate    Court    as    well    as    the  427;   8  C.  D.  625. 
Court    of    Common    Pleas    and    the 


§  898  REAL  ESTATE SALE  814 

tion.  The  administrator  has  no  power  to  make  a  valid  agree- 
ment with  a  partial  nimiber  of  the  heirs  to  deduct  a  part  of  the 
purchase  money  for  an  alleged  deficiency  in  the  quantity  of  the 
land  sold,  nor  can  an  heir  retain  the  purchase  money  until  his 
share  to  which  he  may  be  entitled  out  of  the  estate  be  ascer*- 
tained,  if  the  money  is  needed  for  purposes  of  administration. 
The  same  is  equally  true  with  a  creditor/^® 

The  administrator's  claim  for  the  purchase  money  constitutes 
a  vendor's  lien  as  in  other  cases  of  sale/^^ 

§  898.     When  motion  to  be  set  aside  to  be  filed. 

Until  a  sale  is  confirmed,  the  Probate  Court  undoubtedly 
has  power  to  entertain  a  motion  to  set  aside  the  appraisement 
or  to  refuse  to  confirm,  and  for  equal  reasons  the  Court  should 
entertain  a  .motion,  for  such  purposes  until  the  deed  has  been 
delivered  to  the  purchaser.  The  general  rule  being  that  all 
judgments  are  subject  to  vacation  or  modification  during  the 
term  at  which  they  are  pfonounced.^^* 

The  difficulty  in  the  application  of  this  rule  is,  as»  to  whether 
or  not  the  Probate  Court  has  terms  for  such  purpose.  What- 
ever terms  the  Probate  has  are  those  given  by  sec.  11643,  G.  C. 
(see  §  5),  and  consist  of  three  terms  of  four  months  each,  com- 
mencing on  the  first  of  January  of  each  year.^^^*  In  this  section 
it  specifically  applies  to  new  trials  and  other  relief  after  judg- 
ment, and  the  reasoning  is  cogent  that  if  the  Probate  Court  shall 
have  terms  for  a  new  trial  after  judgment  it  should  also  have 
tej'ms  for  all  adversary  proceedings  before  judgment.^^^  If  relief 
is  had  after  the  terra,  the  practice  provided  for  Common  Pleas 
Courts  should  be  followed.  In  some  States  it  has  been  held  that 
when  a  sale  is  confirmed  by  the  Probate  Court  it  has  no  further 
jurisdiction  in  the  premises ;  "^*  and  generally  it  is  said  the 
power  to  review  or  set  aside  the  judgment  or  decree  confirming 

13G  Woerner  on  Admin.  10G3.  139  Potter  vs.  Jenman,  4  X.  P.  78; 

137  Woerner  on  Admin.  1065.  4  Dec.  444. 

138  1.5  Ency.  of  Plead,  and  Prac,  139*  State  vs.  Probate  Court,  19 
205;  19  Ency.  of  Plead,  and  Prac.  Minn.  117;  State  A's.  Probate  Courl, 
904.  33  Minn.  94. 

138*  S'ee  §  5,  Terms  of  court. 


815  MOTION   TO   SET  ASIDE  §  898 

a  sale  after  the  expiration  of  the  term  at  which  it  was  rendered 
does  not  in  the  absence  of  statutory  enactment  to  that  effect, 
reside  in  Probate  Courts,"" 

Sales  will  b©  set  aside  in  equity  where  there  has  been 
fraud  ;^*^  or  where  the  purchase  was  made  by  an  appraiser  •,^*^ 
or  for  great  and  manifest  inadequacy  of  price,  from  which 
fraud  may  be  presumed  ;^*^  or  where  the  property  was  bought 
by  the  executor  or  administrator  himself,  or  by  one  of  his 
relatives.  But  in  such  cases  application  for  the  vacation  of 
the  sale  must  be  made  wathin  a  reasonable  time,"*  and  all  the 
heirs  must  be  made  parties ;"°  nor  will  the  sale  be  set  aside  if  the 
rights  of  a  stranger  or  innocent  purchaser  have  attached. ^*^ 

The  form  of  a  motion  to  set  aside  an  appraisement  or  sale  may 
b©  as  follows: 

FORM  OF  MOTION. 

{Title.) 

Now  comes  I.  J.,  defendant  herein  and  as  heir  at  law  of  C.  D.,  deceased, 
and  moves  the  Court  to  set  aside  the  appraisement  (or  sale)  heretofore 
made  of  the  real  estate  described  in  the  petition  for  the  following  rea- 
sons :  First,  because  ( here  state  reason ) .  Second,  because  ( set  out  rea- 
son). 

Wherefore  he  asks  that  said  appraisement  (or  sale)  be  set  aside  and 
such  proceedings  be  taken  as  authorized  by  law. 


The  hearing  of  such  a  motion  is  usually  had  upon  affidavits, 
although  the  Court  may  hear  the  matter  by  oral  testimony.  The 
practice  of  the  various  Courts  are  not  alike  in  this  respect  and 
no  uniform  rule  can  be  given.  If  the  motion  is  sustained,  a 
journal  entry  should  be  made  sustaining  the  same  and  grant- 
ing the  relief  to  which  the  party  is  entitled.  Before  a  sale  of 
land  will  be  vacated  relief  will  not  be  granted  until  the  full 

140  Woemer  on  Admin.  1062.  i**Haynes     vs.      Swann,      supra; 

1*1  Van  Horn  vs.  Ford,   16  Iowa,  Murphy  vs.  De  France,  105  Mo.  53. 

578;  Smith  vs.  Chew,  35  Miss.  153;  ""'Hoe  vs.  Wilson,  9  Wall.  501. 

Tillman  vs.  Thomas,  87  Ala.  321.  I'to  Sivley   vs.   Summers,   57   Miss. 

1*2  Armstrong   vs.    Huston,    8    O.  712;    Adams    vs.    Toomer,    44    Ark. 

552  271;  Jones  vs.  French.  92  Ind.  138; 

1*3  Haynes    vs.    Swann,    6    Heisk.  Adams   vs.    Thomas,   44    Ark.    267 ; 

560.  Woemer  on  Adminis.   1062 

Sec  Kinkead's  Pract.  574. 


§899  REAL   ESTATE  SALE  816 

amount  paid  by  the  purchaser  is  returned  to  him/*'      He  is  en 
titled  to  recover  from  the  heirs  for  taxes  paid/*^ 

If  the  purchase  money  has  been  applied  to  the  payment  of  the 
debts,  and  the  sale  is  set  aside,  the  heirs  will  be  liable  to  the 
extent  of  tbe  property  they  have  received,  if  necessary,  to  re- 
imburse the  purchaser/*^  If  the  purchase  money  did  not  go  to 
pay  the  debts  the  heirs  are  not  liable  except  for  taxes/^**  He 
cannot  recover  for  improvements  made  after  notice  to  set  aside 
the  sale/'' 

§  899.  Deed  evidence  of  validity  of  sale.  "The  deed  of  the 
executor  or  administrator,  made  in  pursuance  of  the  order  of 
the  court,  shall  be  received  in  all  courts  as  prima  facie  evidence 
that  the  executor  or  administrator  in  all  respects  observed  the 
directions  and  complied  with  the  requisitions  of  the  law,  and 
shall  vest  the  title  in  the  purchaser,  in  like  manner  as  it"  con- 
veyed by  the  deceased  in  his  lifetime."     [R.  S.  §  6163.]^=^ 

§  900.     Execution  and  kind  of  deed. 

A  deed  made  by  an  administrator  or  executor  in  pursuance 
of  aji  order  of  Court  for  real  estate  sold,  conveys  and  vests  in 
the  purchaser  the  title  which  the  deceased  possessed.  It  is  not 
a  warranty  deed.  The  Court  has  no  power  to  authorize  an  ad- 
ministrator to  make  a  deed  of  that  kind,'^^  and  therefore  in  no 
instance  could  an  administrator  or  executor  make  a  deed  of 
general  warranty,  unless  a  power  expressly  so  to  do.  was  given 
in  tlie  will  of  the  testator.      If  any  effect  at  all  can  be  given  to 


1  IT  Longworth    vs.    Wolfington,    6  796;     Schaefer    vs.    Causey,    8    Mo. 

O.  9;  Fisher  vs.  Bush,  133  Ind.  315;  App.  142;  Jones  vs.  French,  92  Ind. 

Burdett    vs.    Silsbee,    15    Tex.    604;  138;   Smith  vs.  Knoebel.  82  111.  392. 

Neel  vs.  Carson,  47  Ark.  421;  S.  C,  i5o  Nowler  vs.  Coit,  1  0.  519    (2d 

2  S.  W.  Rep.  107;   Scott  vs.  Dunn,  ed.). 

1  Dev.  &  Eq.  425 ;  Wilson  vs.  Holt,  is^  Snider   vs.    Snider,    3    W.    Va. 

83  Ala.  528;   S  C,  3  So.  Rep.  321;  200. 

Bennett  vs.  Caldwell,  8  Baxt.  483.  152  §  10807  G.  C. 

148  Schaefer  vs.  Causey,  6  Mo.  365.  153  Lockwood  vs.  Gilson,  12  0.  S. 

i49Wehrle   vs.    Wehrle.    39    0.    S.  529. 
365;  Jayne  vs.  Boisgerard^  39  Miss. 


817  DEED  §  900 

a  covenant  of  warranty  in  a  deed  it  is  personal,  and  it  can  only 
be  enforced  against  an  administrator  or  executor/^* 

As  a  general  rule,  it  may  be  said  that  executors  and  adminis- 
trators are  tbe  mere  agents  and  instruments  of  law  for  conveying 
the  title  of  the  deceased,  and  therefore  it  may  be  said  that  cove- 
nants of  warranty  contained  in  such  a  deed  do  not  bind  these/^^ 
But  the  executor  or  administrator  may  bind  himself  by  an  ex- 
press and  voluntary  covenant  collateral  with  his  official  act,  and 
if  he  chooses,  in  order  to  make  a  good  sale,  he  may  make  a  war- 
ranty that  will  bind  him.  But  in  order  to  bind  the  estate  it 
must  be  shown  first  that  he  was  authorized  by  will  to  give  a  war- 
ranty deed.  Second,  that  it  appears  clearly  from  the  instrument 
that  he  made  a  warranty  collateral  to  his  official  act.^^* 

The  deed  must  be  executed  with  the  formalities  of  any  other 
deed.  It  should  show  on  its  face  the  autliority  under  which  it 
was  given,  with  suificient  certainty  to  enable  the  act  done  to  he 
traced  to  the  authority  for  that  purpose.  It  should  have  the 
essentials  given  in  the  form  hereinafter  given.  An  administra- 
tor's deed,  even  if  made  under  order  of  Court  with  but  one  wit- 
ness, conveys  no  legal  title.^^^ 

"  If  the  deed  conveys  the  equitable  interest "  of  the  deceased 
and  all  his  "  right,  title  and  interest,"  it  is  sufficient  to  carry  the 
legal  title,  if  the  decedent  possessed  a  legal  title.  An  adminis- 
trator's sale  passes  no  title  until  a  deed  is  executed  and  deliv- 
ered. But  where  the  sale  is  otherwise  complete,  equity  will 
compel  the  delivery  of  a  deed  and  the  payment  of  the  purchase 
money ;  and  the  Probate  Court  might  indirectly  at  least  enforce 
the  execution  and  delivery  of  a  deed.  It  could  make  an  order 
directing  the  executor  to  perform  such  an  act,  and  if  he  failed, 

154  Lockwood  vs.  Gilson,  12  0.  S.  A  covenant  by  executors  in  a  deed 

526;  Dunlap  vs.  Robinson,  12  O.  S.  made  by  order  of  the  Probate  Court 

530.  vi^arranting  the  title  "  as  far  as  ex- 

An  agreement  to  protect  the  title  ecutors  are  bound  by  law  to  do,"  is 

or  indemnify  the  purchaser  against  not   a    personal    covenant.     Day   vs. 

incumbrances,    orally    made    by    the  Brown,  2  O.  345. 

executor,    does    not   bind   the   estate  iss  Woerner,  Admin.   106G. 

without  authority  from  the  will  or  ise  Woerner,  Admin.  1067. 

Court.     Arnold  vs.  Donaldson,  46  O.  i'''^  Miami  Exp.   Co.  vs.  Halley,   7 

S.  73.  O.    (1  pt.)    11. 


§  901  REAL  ESTATE SALE  818 

could  remove  him  and  appoint  some  one  who  would  comply  with 
the  orders  of  the  Court.     Where  there  are  several  executors  or  1 
administrators,  the  deed  should  be  made  hy  all.     An  executor 
cannot  make  a  deed  hy  power  of  attorney,  but  if  he  dies  or  is 
removed  his  successor  could  make  the  sale.^^^ 

§  901.     Form  of  administrator's  (or  executor's)  deed. 

Know  all  men  by  these  presents: 

That,   whereas,    on    the clay   of ,    19 ... ,    

w. .  .duly  appointed  and  qualified  as of  the  estate  of 

deceased,  late  of County,  Ohio,  by  the  Probate  Court  of  said 

county;   and  afterwards,  to-wit:    on  the day  of ,   19. . ., 

said filed  his  certain  petition  and  then  and  there  commenced 

an  action  in  the  Probate  Court  of County,  Ohio,  against 

and  numbered  on  the  Docket  of  said   Court  as   Case  No 

praying  among  other  things,  for  an  order  of  sale  of  certain  real  estate 
therein  mentioned  and  hereafter  described. 

And,  whereas,  such  proceedings  were  had  in  said  action,  on  the 

day  of ,  19.  .  .,  said  Court  finding  the  allegations  of  the  peti- 
tion true,  and  that  said  real  estate  ought  to  be  sold  as  prayed  for  in 
said  petition.* 

And   the   Court   having   found   that   said   property   had   been   appraised 

with  the  personal  property  of  said  estate,  ordered  that  said 

proceed  according   to  law  to   sell   the   real   estate  at  public    (or   private) 

sale,    as    provided    hy    law,    free    from    the    dower    estate    of 

therein  (if  said  real  estate  has  been  appraised  in  the  Real  Estate  Pro- 
ceedings, commence  at  the  star  above,  and  the  following  should  be  inserted 
in  the  deed) . 

*  And  on  the  same  day,  in  pursuance  of  said  order  and  judgment,  an 
order  of  appraisement  was  issued  out  of  said  Court  under  the  seal  thereof 

to  the  said as as  aforesaid  directed,   commanding 

him  to  execute  the  said  order,  and  of  the  same,  together  with  his  pro- 
ceedings thereon,  to  make  due  return; 

And,  whereas,  said having  caused  said  premises  to  be  ap- 
praised; and  having  on  the day  of returned  said  ap- 
praisement, the  same  was  by  the  Court  confirmed,  and  said  Court  ordered 
that  the  said proceed  to  sell  said  property  at  public  (or  pri- 
vate)   sale,  as  provided  by  law;   and  thereafter,   to  wit,  on   the day 

of said made  a  report  to  this  Court  of  a  sale  mad* 

of  the  premises   in   the  petition  described   to for   the  sum   of 

dollars. 

And,   whereas,  on  the day  of ,    19...,   the  said   Court 

having  examined  the  proceedings  of  the  said aforesaid,  under 

said  order  of  sale,  and  it  appearing  to  the  Court  that  said  sale  was  in  all 
respects  legally  made,  ordered  that  the  same  be  approved  and  confirmed, 

and  that  said should  execute  and  deliver  a  proper  deed  to  the 

purchaser,   of  the  real  estate  so  sold. 

158  Woerner,  Admin.  1068.  cree  it.    Piatt  vs.  Bank,  7  O.  (pt.  2) 

§  10776  G.  C,  §  835.  165. 

An   administrator's   deed  may  be  The   proceedings    of    the   Probate 

voidable  in  the  hands  of  a  first  pur-  Court  will  be  presumed  to  be  regu- 

chaser    and    good    in    a    subsequent  lar,  and  where  the  order  shows  tliat 

purchaser.  due  notice  was  given,  it  will  be  pre- 

Though    an    administrator's    deed  sumed   all    parties   had    notice   and 

contain  no  words  of  perpetuity,  yet  the  court  had  jurisdiction.     Hamil- 

if  the  sale  was  in  fact  made  of  the  ton  vs.  Stewart,  5  N.  P.  (N.S.)  558; 

whole  estate,  chancery  would  so  de-  18  Dec.  133. 


819  purchaser's  right  and  title  §  902 

AH  of  which  will  more  fully  appear  by  the  records  of  said  Court,   to 
which  reference  is  here  made. 

Now,  therefore, the  said of  the  estate  of 

deceased,  aforesaid,  by  virtue  of  said  judgment,  order  of  sale,  sale 

and  confirmation  and  of  the  statute  in  such  cases  made  and  provided,  and 

of  the  powers  vested  in and   for  and   in  consideration  of  the 

premises,  and  the  sum  of dollars   ($ ) ,  paid  or  secured 

to    be    paid    to by    said ,    the    receipt    whereof    is 

hereby  acknowledged,  do  hereby  Grant,  Bargain,   Sell  and  Convey  to  the 

said his   heirs  and  assigns  forever,  the   following  real   estate, 

situated  in  the  County  of in  the  State  of and  in 

the and  bounded  and  described  as  follows :    

the  dower  estate  aforesaid. 

To  have  and  to  hold  said  premises,  with  all  the  privileges  and  appur- 
tenances thereto  belonging,  to  the  said his  heirs  and   assigns 

forever,  as  fully  and  completely  as  he,  the  said as  such 

by   virtue   of   said   judgment,   order  of    sale,   sale   and   confirmation, 

and  of  the  statute  made  and  provided  for  such  cases,  might  or  should  sell 
or  convey  the  same. 

In  Witness  Whereof,  The  said as  such has  here- 
unto set  his  hand,  this day  of A.  D.   19 ... . 

Signed  and  acknowledged  in 

presence  of 

(Signed.) 

The  State  of  Ohio,   Clark  County,  ss. 

Be  it  remembered.  That  on  the day  of ,   19.  .  .,  before 

me,  the  subscriber,  a in  and  for  said  county,  personally  came 

the  above  named as of the  grantor  in 

the  foregoing  deed,  and  acknowledged  the  signing  of  the  same  to  be  his  vol- 
untary act  and  deed  as  such for  the  uses  and  purposes  therein 

mentioned. 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name  and  aflSxed 
my  official  seal  on  the  day  and  year  last  aforesaid. 


§902.    Purchaser's  right  and  title. 

The  sale  being  a  judicial  sale,  the  doctrine  of  caveat  emptor 
applies  in  all  its  rigor.^^" 

159  ifj   however,   there  is  no  title  Caveat    Emptor,    "Let    the    pur- 

and    the    administrator    represents  chaser  take  care"  is  a  legal  maxim 

that  there  is,  and  the  purchaser  in  expressive    of    the    rule    at    common 

ignorance   pays   tlie  purchase  price,  law    that   a   purchaser   of    proi^erty 

the     administrator      is     personally  buys  at  his  own  risk  as  to  title  and 

lial)le.     Fisher  vs.  Fisher,  33  U.  C.  quality,    unless    the    seller    gives    a 

C.  525;  affirmed,  86  O.  S.  365.  warranty    or   the    law    implies    one. 

The    facts    in    this    case    are    not  Wright  vs.  Hart,  18  Wend.   (N.  Y.) 

reported   and    it   seems    to   me    that  449. 

it  is  going  a  good  way  to  hold  the  Caveat   venditor,   "Let   the   seller 

administrator  liable  if  he  does  noth-  take    care"    expresses    the    civil-law 

ing  more  tlian  make  representations  rule,  which  contrary  to  the  common- 

in   his   petition,   that  deceased   ivas  law  doctrine,  required  the  seller  to 

thr  oirner.  protect  himself  from  future  respon- 

Meclianics,  etc.,  vs.  O'Connor,  29  sibility   by   a   particular   agreement 

0.   >S.   651;    Riddle   vs.    Bryan,   5   O.  with    the    purchaser.       Wright    vs. 

48;  Vattier  vs.  Lytic,  6  O.  477;  Mc-  Hart,  18  Wend.   (N.  Y.)  452;  5  Am. 

Louth  vs.  Kathbone,  19  O.  21;   Cor-  &  Eng.  Ency.  of  Law,  778    (2d  ed.), 

win  vs.  Benliain,  2  O.   S.  36;   Creps  The    purchaser,    after    his    bid    is 

vs.  Baird,  3  O.  S.  277,  279;  McKin-  accepted,  can  not  refuse  to  take  the 

'.ic   vs.   Perrill,   15   0.   §.    162,   108;  property    because    there    are    liens, 

Drcsliach    vs.    Stein,    41    0.    S.    70;  etc.,  upon  it.     He   is   bound  to   ex- 

fJoal  vs.  Price,  13  0.  368.  amine    the    records    before    bidding, 


§  902  REAL  ESTATE SALE  820 

A  sale  does  not  carn^  a  sound  title,  but  only  the  deceased's 
title,  a  title  clear  and  free,  but  only  as  free  and  clear  a  title  as 
the  deceased  had."° 

It  was  foraierly  held  to  be  the  law  in  Ohio  that  a  sale  made 
by  an  administrator  conveyed  the  property  free  from  incum- 
brance to  the  purchaser/*'^  But  since  the  law  of  1858,  requir- 
ing mortgagees  and  other  lien  holders  to  be  made  parties  in  the 
petition  for  the  sale  of  such  land,  a  mortgagee  who  was  not 
made  such  party  retains  his  rights  unaffected  by  the  administra- 
tor's sale,  and  the  purchaser  is  liable  therefor.^®'  And  where 
a  purchase  was  made  by  one  who  was  advised  by  his  counsel 
that  the  land  was  clear  and  unincumbered,  and  that  the  wife 
had  no  dower  estate  therein,  and  thereupon  he  bought  tJie  lands 
at  their  full  value  and  paid  over  tlie  money  to  the  executor  and 
entered  into  possession,  and  afterwards  the  Court  of  Common 
Pleas  found  that  tlie  wife  was  entitled  to  dower,  it  was  held, 
that  tlie  purchaser  could  not  recover  back  sufficient  of  the  pur- 
chase money  to  compensate  him  for  the  loss  he  sustained,^®^ 

The  rights  of  a  purchaser  at  a  judicial  sale  as  to  the  payment 
of  taxes  out  of  the  proceeds  are  fixed  by  date  of  sale,  after  con- 
firmation it  relates  back  to  that  date,^"*  and  consequently 
the  purchaser  is  entitled  to  all  the  rents  that  accrued  after  that 
date.^°^     Emblements,  however,  do  not  pass  to  the  purchaser.^^® 

Similar  to  a  sale  made  on  execution,  the  purchaser  is  entitled 
to  a  writ  to  put  him  into  possession.  The  rights  of  a  purdiaser 
to  appear  in  Court  and  ask' for  confirmation  of  the  sale  are  not 
very  clearly  detennined.  By  courtesy  the  Court  generally  al- 
lows him  to  be  present  and  protect  his  o^^^l  interests  so  far  as 
they  may  be  involved.     But  it  seems  he  has  no  rights  in  the 

or   failing   so  to  do,  must  bear  the  i^s  Arnold    vs.    Donaldson,    46    0. 

consequences.     Mull   vs.   Typewriter  S.    73. 

Co.,    1   X.   P.    (N.S.)    509;    14   Dec.  ic4  Scheid  vs.  Schcid,  5  Dec.  559. 

(1904)   455.  lo-^Dcjd  vs.  Longworth,  11  0.  205; 

This   may   be   good   law,   but   the  Oviatt  vs.   Brown,    14   0.  2S5. 

policy    of    its    enforcement    may    be  ice  [Mason  vs.  Lemon,  4  Dec.  322; 

questionable.  3   !N.   P.    116. 

iGo  Vattier  vs.  Lytle's,   6   0.   477.  As  to   what   are  emblements,   see 

161  Miller  vs.  Greenham,  11  0.  S.  §368.     As   to   when   a   trade   mark 

486;  Muskingum  vs.  Carpenter,  7  0.  wi'.l  pass  to  the  purchaser,  sec  Burk- 

21.  hardt  vs.  Burkhardt,  4  X.  P.  358;  9 

iG2Holloway  vs.  Stuart,   19  0.  S.  Dec.   84. 
472. 


821  purchaser's  right  and  title  §  902a 

matter  superior  to  whatever  tho  Court  may  deem  for  the  best 
interests  of  the  estate/^^ 

A  statement  made  by  tlie  administrator  at  tlie  sale  that  the 
crops  are  not  reserved  cannot  prejudice  the  rights  of  the  heirs  in 
the  crops  sowed  by  them  or  their  tenahts.^"^* 

The  purchaser  acquires  no  title  to  cordwood  on  the  land  sold, 
nor  to  growing  crops  sowed  by  tlie  heirs  or  tlieir  tenants  after 
the  decedent's  death/®^ 

As  against  prior  unrecorded  liens  and  secret  trasts,  the  pur- 
chaser acquired  a  free  title/*'® 

The  administrator  is  not  bound  to  reveal  defects  in  the  title/^" 

The  purchaser  is  bound  to  pay  his  bid,  although  there  is  a 
defect  in  the  title,  unless  the  administrator  has  misled  him/'^ 
His  title  is  superior  to  an  unrecorded  deed  of  which  he  had  no 
notiee.^^" 

The  administrator  cannot  insist  on  rescinding  the  sale  on  the 
ground  that  the  title  is  defective/^^  But  a  purchaser  may  in- 
sist that  it  be  not  confirmed.  It  seems  that  a  purchaser  ought 
not  to  be  required  to  take  a  defective  title,  and  if  such  appear 
to  be  tlie  fact  before  confirmation,  he  ought  to^  be^  relieved.  After 
confirmation  it  is  probably  too  late  to  raise  the  question. ^^* 

§  902a.  Remedy  of  purchaser,  if  sale  invalid.  "Upon  the 
sale  of  property  on  execution,  if  the  title  of  the  purchaser  is 
invalid  by  reason  of  a  defect  in  the  proceedings,  he  may  be 
subrogated  to  the  right  of  the  creditor  against  the  debtor,  to  the 

167  As    to    purchasers'    rights    in  200;    Corbitt   vs.   Daukins,    54   Ala. 

general,   see   Woerner,   Admin.    1071  282. 

to  1091.  iT2Barto   vs.    Bank,    15    Hun    11; 

167*  Barrett   vs.    Cohen,    119    Ind.  Emerson  vs.  Ross,  17  Fla.  122. 

56.  I'^a  McCulloeh  vs.  Weaver,   14  La. 

16S  Barrett  vs.  Cohen,  119  Ind.  56;  Ann.  33;   Peele  vs.  Chever,  8  Allen 

Law's   Estate,    7    Pa.    Co.    Ct.    Rep.  89. 

605.  174  See  §  493,  Warranty  of  title. 

169  Lumpkin  vs.  Adams,  74  Tex.  A  purchaser  who  loses  a  title 
96;  S.  C.  11  S.  W.  Rep.  1070;  Banks  which  depends  on  an  administra- 
vs.  Ammon,  27  Pa.  St.  172;  Love  tor's  sale,  can  set  up  no  equity  on 
vs.  Berry,  22  Tex.  371.  the  estate  of  the  decedent  by  reason 

170  Thompson  vs.  Munger,  15  Tex.  of  appropriations  of  the  purchase 
523;  Hawpe  vs.  Smith,  25  Tex.  Supp.  money  to  pay  debts  of  decedent. 
448.  Beal  vs.  Price,   13  0.  368. 

171  Mellen  vs.  Boarman,  13  Sm.  &  A  purchaser,  however,  is  not  di- 
M.  100;  Burns  vs.  Hamilton,  33  Ala.  vested  of  title  by  a  subsequent  re- 
210;  Bishop  vs.  O'Conner,  69  111.  versal  of  the  order  of  sale.  Irwin 
431;    Jones    vs.    Read,    1    La.    Ann.  vs.  Jeffers,  3  O.  S.  389. 


§  902b  REAL  ESTATE — SALE  822 

extent  of  the  money  paid  and  applied  to  the  debtor's  benefit, 
and,  to  the  same  extent  have  a  lien  on  the  property  sold,  as 
against  all  persons,  except  bona  fide  purchasers  without  notice. 
This  section  shall  not  require  the  creditor  to  refund  the  pur- 
chase monev,  br  reason  of  the  invalidi'V  of  such  sales."     [R.  S. 

§  902b.  Remedy  in  other  cases  of  invalid  sales.  ' '  The  next 
preceding  section  shall  apply  also,  to  sales  by  order  of  court, 
sales  bv  executors,  administrators,  guardians,  and  assignees, 
and  to 'sales  for  taxes."     [R.  S.  §  5411.]  ^'"^ 

§  903.  How  money  arising  from  sale  of  land  to  be  applied. 
"The  money  arising  from  the  sale  of  real  estate  shall  be  applied 
as  follows : 

"1.  To  discharge  the  costs  and  expenses  of  the  sale,  and  the 
per  cent  and  charges  of  the  executor  or  administrator  thereon, 
for  his  administration ; 

"2.  To  the  payment  of  mortgages  and  judgments  against  the 
deceased,  according  to  their  respective  priorities  of  lien,  so  far 
as  they  operated  as  a  lien  on  the  estate  at  the  time  of  his  death ; 
which  shall  be  apportioned  and  determined  by  the  court,  on 
reference  to  a  master  or  otherwise ; 

"3.  To  the  discharge  of  claims  and  debts,  in  the  order  men- 
tioned in  this  title."     [R.  S.  §  6165.] ^^^ 

§  904.    Comments. 

The  above  section  omits  one  very  important  item  which  is 
always  considered  a  first  lien  on  the  funds  of  such  a  sale,  to-wit, 
taxes.  The  rule  is  that  at  judicial  sales  all  the  taxes  which 
stand  charged  against  the  property  on  the  tax  duplicate  are  to 
be  paid  out  of  the  proceeds  of  the  sale,  and  this  duplicate  is  made 
up  on  October  1st.  In  such  a  sale  street  assessments  paj-able  in 
installments  are  not  to  be  placed  on  the  tax  duplicate  except 
those  payable  at  the  end  of  September  of  any  year.  And  only 
those  properly  on  the  duplicate  can  be  paid  out  of  the  proceeds 
of  judicial  sales.  Those  falling  due  later  must  be  paid  by  the 
purchaser  of  the  land.^'*^ 

As  to  the  costs  of  expenses  of  the  sale  and  percentum,  the 
same  rule  is  applied  as  to  personal  property.^" 

174a  §  11703  G.  C.    Subsequent  re-  iTSMakley  vs.  Whitmore,  61  0.  S. 

versal    does    not    affect     judcrment.  587. 

Smith  vs.  Dixon,  27  0.  S.  477:   In-  "7  See  §§653,  663. 

surance  Co.   vs.   Sampson,  38   0.  S.  See  note  906. 

696.  Neither   attorney    fees    of   an   ad- 

174b  §  11704  G.  C.  Where  wronj?  ministrator,  general  costs  of  an  ad- 
tract  included  Court  of  Equity  will  ministrator.  nor  premiums  due  an 
protect,  etc.  Stites  vs.  Wiedner.  35  insurance  company  are  included  in 
O.  S.  555.  See  Endel  vs.  Leibrock,  costs  and  expenses  prior  to  a  mort- 
33  0.  S.  270;  Timmerman  vs.  Hurell,  gage  lien.  Sherman  vs.  Millard,  6 
2  C.  C.  27:   1  C.  D.  342.  C.  C.   (N.S.)   338:  27  C.  C.  175. 

175  §  10809  G.  C.  A  piircbaser  in  The  administrator  was  not  dis- 
possession after  judicial  sale  liable  turbed  in  his  commissions,  however, 
for   care   of   premises   while    in    his  in  above  case. 

possession.      Christ   vs.   Lay,   37   0.  See  Alms  vs.  Felton,  6  C.  D.  415; 

C.  C.  312.                                 ■  9  0.  C.  C.  255. 


823  APPEAL  AND  ERROR  §  905 

After  taxes  and  costs  of  administration  and  liens  are  paid  on 
the  property,  the  remainder  is  to  be  applied  in  the  payment  of 
debts,  as  set  forth  in  the  previous  chapter.'" 

§  905.  Surplus  of  proceeds  of  sale  to  be  considered  as  real 
estate.  "In  all  cases  of  a  sale  by  an  executor  or  administrator 
of  part  or  the  whole  of  the  real  estate  of  the  deceased,  under  an 
order  of  court,  whether  such  executor  or  administrator  has  been 
appointed  in  this  state  or  elsewhere,  the  surplus  of  the  proceeds 
of  sale  remaining  on  the  final  settlement  of  the  account,  must 
be  considered  as  real  estate,  and  be  disposed  of  accordingly." 
[R.  S.  §6171.]i'« 

It  has  been  held  under  the  alx)ve  section,  that  although  the 
■.urplus  goes  to  the  heirs  in  the  line  that  real  estate  would  go, 
such  proceeds  are  personalty  and  are  held  as  personalty  by  the 
heir,  and  as  such  passes  from  such  heir/^° 

The  widow  is  not  entitled  to  a  distributive  siiare  in  such  pro- 
ceeds.^^^  However,  land  directed  by  a  will  to  be  sold  and  oon- 
yerted  into  money  is  treated  as  personal  property.^*^ 

§  906.    Appeal  and  error.^^'' 

It  is  specifically  provided  that  appeal  may  be  taken  from  the 
Probate  Court  to  the  Court  of  Common  Pleas  in  proceedings  for 
the  sale  of  real  estate  for  the  payment  of  debts.^''*  And  it  has 
been  held  that  as  an  administrator's  petition  to  sell  real  estate 
may  properly  be  brought  in  the  Court  of  Common  Pleas,  an 
appeal  would  lie  to  the  Circuit  Court  from  the  Court  of  Com- 
mon Pleas.^*^^ 

See  Klimper   vs.   Klimper,   12   0.  property.     Pence  vs.  Fence,  11  O.  S. 

App.      332      (Jan.,      1920),      where  295.     The  wife  of  the  heir  lias  no 

premiums    on    bond   and    auctioneer  dower  interest  therein, 
fees  were  allowed.  181  Griswold   vs.    Frink,   22   0.    S. 

178  S  646,  et  seq.  79. 

See  §  895,  distribution  of  proceeds.  182  Furguson    vs.    Stuart,    14    O. 

179  8  1  OS  16  G.  C.  140;  Collier  vs.  Collier,  3  O.  S.  369. 

180  Tuttle  vs.  Nortlirop,  44  0.  S.  As  to  wliom  distribution  should 
178.  be  made  of  such  proceeds,  see  sub- 

An  action  commenced  in  the  Pro-  sequent  chapter  on  descent  and  dis- 

bate  Court  to  sell   real  estate,  and  tribution. 

appealed   to   tlie   Court   of   Common  S  927. 

Pleas,  the  jurisdiction  of  the  latter  See  §  1429,  Guardian's  sale, 

is   the    same    as    if    the    action    had  183    See  §  40. 

been  commenced  in  that  court.    Tidd  IS*  §  11206  G.  C,  §  39. 

vs.  Block,  4  C.  C.   (N.S.)   216;  26  0.  185  Dalton  vs.  Davis,  18  C.  C.  878; 

C.  C.  113.  6  C.  D.  133. 

If  the  heir  had  been  an  adult,  and  I  do  not  know  whether  the  ques- 

dicd    leaving    a    wife    and    children,  tion  has  been  raised  under  the  pres- 

while  the  money  so  remained  there,  ent  constitution   as   to  the  right  to 

it    could    not    be    dou])t('d    tliat    the  appeal  to  tlie  Court  of  Appeals,  but 

same  would,  in  distribution  between  I  am  inclined  the  rule  remains  the 

the  children  and  the  widow  of  such  same.     It  would  probably  be  held  a 

intestate,  l)e  governed  by  the  law  re-  "chancery    case."      See    Wagner    vs. 

garding    personal    rather    than    real  Armstrong,  93  O.  S.  443. 


§  906  REAL  ESTATE SALE  824 

As  there  are  several  different  hearings  and  entries  made  in 
such  proceedings,  such  as  the  finding  of  the  necessity  to  sell, 
the  confirmation  of  appraisement,  and  confirmation  of  sale,  it 
will  be  important  to  know  whether  this  entire  proceeding  is  to  be 
regarded  as  an  entirety  or  whether,  if  appeal  and  error  be  taken, 
each  order  is  to  be  regarded  as  a  final  order,  or  an  interlocutory 
one.  In  some  States  the  proceeding  is  regarded  as  an  entirety, 
and  all  orders  made  before  confirmation,  as  interlocutory  ones/** 
But  in  our  State  it  would  seem  that  the  order  made  upon  the  pe- 
tition, finding  it  necessary  to  sell  real  estate,  would  be  a  final 
order  as  to  the  questions<  passed  upon  in  such  an  order,^®^  ana 
that  tiie  finding  made  on  confirmation  of  appraisement,  and 
confirmation  of  sale,  would  also  be  a  final  order/**  And  there- 
fore, if  appeal  is  tO'  be  taken  from  any  one  of  these  orders,  it 
must  be  taken  within  the  time  limited  from  the  date  of  each 
order;  and  the  same  rule  would  be  applied  in  proceedings  in 
error.  It  has  been  questioned  whether  the  right  of  appeal  ex- 
ists as  to  tlie  order  confinning  tlie  sale.^*** 

If  tliere  is  an  order  of  distribution  included  in  the  order  of 
confirmation,  then  it  might  be  appealable.^®"  However,  in  a 
recent  case  in  the  Supreme  Court  it  was  held  that  an  appeal  lies 
from  the  Court  of  Probate  and  the  Court  of  Insolvency  to  the 
Court  of  Common  Pleas,  from  an  order,  decree  or  judgment  con- 
firming a  sale  of  real  estate  at  private  sale  by  an  assignee  revers- 
ing the  inferior  Court,^"^  and  the  same  principle  would  hold  that 
an  appeal  might  be  taken  from  tlie  confirmation  of  an  admin- 
istrator's sale,^®^  but  exception  must  be  taken  at  the  time  of  the 
confirmation.^®^ 

186  Staley  vs.  Dorset,  11  Ind.  367;  dates,  and  there  seems  to  be  no  par- 
Love  vs.  Mikals,  12  Ind.  439;  Simp-  ticular  reason  why  the  same  rule 
son  vs.  Pearson,  31  Ind.  1.  should  not  apply  to  proceedings  to 

187  Potter  vs.  Jennman,  4  N.  P.  sell  real  estate.  §1721.  Reversed 
78;  4  Dec.  444.  in    Bro\ra    vs.    Wallace,,    69    0.    S. 

188  See  Evans  vs.  Dunn,  26  0.  S.  179. 

439;    Kelley   vs.    Standberry,    13    O.  i9o  Spence  vs.  Basey,  34  0.  S.  42. 

422.  191  Browne  vs.   Wallace,   60   0.   S. 

181  Norwood  vs.  Park  Co.,  4  N.  P.  177;  Kev.  16  0.  C.  124;  8  C.  P.  764; 

240;  6  Dec.  341.  4  N.  P.  240;   6  Dec.  341. 

Ib   condemnation   proceedings   the  192  See  Kinkead's  PI.  1175. 

supreme   court   held   that   the   final  i93McArthur  vs.   Cen.  Trust  Co., 

judgment   is   the    "final   order"   and  21  C.  C.  654:   Ail.  44  Bull.  287. 

the   time    from    which    appeal,    etc.,  See  §  1626,  Assignee. 


825 


APPEAL    AND    ERROR 


§906 


It  is  likewise  very  doubtful  whether  a  court,  iu  proceedings 
in  error,  would  reverse  an  order  of  the  court  confirming  a  sale, 
where  there  was  not  a  manifest  abuse  of  discretion.  And,  in 
order  to  vacate  such  an  order,  it  must  appear  from  the  record 
that  said  judgment  and  order  was  clearly  and  palpably  against 
the  weijT-ht  of  the  evidence.^^* 


194  Brigel  vs.  Kittredge,  5  N.  P. 
412;  3  Dec.  512. 

The  Appellate  Court,  in  reversing 
an  order  of  distribution  made  by  the 
Probate  Court,  should  either  make 
the  order  of  distribution  or,  in  re- 
manding the  case  to  the  Probate 
Court,  specifically  indicate  the  items 
to  which  the  fund  for  distribution 
should  be  applied.  Sherman  vs.  Mil- 
lard, 6  C.  C.  (N.S.)  33S;  17  Cir. 
D.  175;  27  C.  C.  175   (1905). 

It  would  seem  from  analogy  to 
the  decision  of  the  Supreme  Court 
in  condemnation  proceedings,  that 
the  final  order  from  which  the  time 
limited  for  appeal  would  be  the 
order  confirming  sale  and  distribu- 
tion. However  (note  187),  the  text 
is  quoted  with  approval  in  Mans- 
field vs.  Cole,  16  N.  P.  222,  where 
a  judgment  is  vacated,  the  order 
vacating  same  is  not  appealable.  If 
review  is  had  it  must  be  by  error. 
The  successive  steps  in  proceedings 
to   vacate   a   judgment,   after   term, 


under  §§  11631-11643  G.  C.  are:  (1) 
an  application,  styled  a  petition, 
filed  in  the  original  case,  averring 
the  ground  for  vacation  and  a  state- 
ment of  the  defense,  upon  which  ap- 
plication a  summons  shall  issue; 
no  pleading  to  such  application  is 
required;  (2)  pleading  upon  the 
application;  (3)  if  ground  for 
vacation  exists  and  if  a  valid  de^ 
fense  be  found  averred  in  the  appli- 
cation, and  the  order  of  vacation 
suspended  pending  trial  on  the 
merits,  this  proceeding  to  the  lien 
of  the  original  judgment  in  case  the 
defense  fails;  (4)  a  pleading  to  that 
ixpon  which  the  judgment  was  taken, 
setting  up  the  defense  of  the  move- 
ment for  vacation,  and  a  trial  upon 
the  issues  then  made  up  as  if  no 
judgment  had  been  rendered;  (5) 
judgment  thereon,  either  restoring 
the  status  of  the  old  judgment  or 
extinguishing  it,  as  the  facts  in  the 
trial  demand.  Bank  vs.  Mullen,  25 
Bull.  28;  18  Dec.  637. 


§907 


DESCKKT  AND  DISTKIBUTIOJN 


826 


CHAPTER   L. 

DESCENT  AND  DISTRIBUTION. 


§  907  Introductory. 

§  908  Ancestor. 

§  909  Descent  and  devise. 

§  910  Deed  of  gift. 

§  911  By  purchase. 

§912  Legal  representative. 

§  913  Next  of  kin. 

§914  Relict  of  deceased  husband  or 
wife. 

§  915  Order  of  descent  of  real  estate 
where  title  came  by  descent, 
devise  or  deed  of  gift. 

§  916  Comments. 

§  917  Order  of  descent  where  estate 
came  by  purchase,  etc. 

§  918  When  real  estate  to  pass  to 
husband  or  v/ife;  when  to 
next  of  kin  of  intestate. 

§  rtin  \Mien  real  estate  to  pass  to 
cliildren  of  former  husband 
or  wife,  etc. 

§  920  Descent  of  estate  which  came 
from  former  husband  or  wife. 

§  921  Distribution  of  personal  es- 
tate. 

§  921a  Wlien  personal  property  to 
escheat. 

§  922  Comments. 

§  92.3  Wlien  estate  to  descend  to 
children  of  intestate  and 
how. 

§  924  Descent  when  all  descendants 
of  equal  degree  of  consan- 
guinity. 

§  925  When  there  are  living  both 
children  and  heirs  of  de- 
ceased children  of  intestate. 


§  926  Extent  of  application  of  last 
section. 

§  927  Previous  sections  apply  to  real 
and  personal  propel  ty. 

§  928  Advancements  by  intestate  to 
be  considered  as  part  of  es- 
tate. 

§  929  Definition,  etc. 

§  930  What  constitutes  an  advance- 
ment. 

§  931  How  proven. 

§  932  When  advancement  is  greater 
or  less  than  heirs'  share. 

§  933  When  advancement  is  wholly 
real  or  personal  estate. 

§  934  When  value  of  advancement 
expressed  in  deed,  etc. 

§  935  Heirs  of  aliens  may  inherit; 
aliens  may  hold  lands. 

§  936  Capability  of  bastards  as  to 
inheritance. 

§  937  When  illegitimate  children 
deemed  legitimate,  etc. 

§  938  Amount  of  personal  estate  to 
which  a  widow  or  widower  is 
entitled  upon  distribution. 

§  939  Comments. 

§  940  Construction  of  words,  "  liv- 
ing ■'  and  "  died." 

§  941  I'osthumous  child  of  intestate 
to  inherit. 

§  942  Permanent  leases  to  descend 
same  as  estates,  in  fee.i 


1  See  §  1180,  et  seq..  Construction       case;    §    1031.   Rule  as   to   perpetui- 
of  wills;    §    1189,   Rule   in    Shell v"s       tics. 


827  REGULATED  BY  STATUTE  §  907 

§  907.     Introductory. 

Descent  and  distribution  is  the  method  pointed  out  by  law  for 
the  transmission  of  a  person's  property  after  his  death, ^  when 
such  person  has  failed  in  the  manner  provided  by  law  to  desig- 
nate the  manner  and  the  persons  to  whom  the  same  should  be 
transmitted.  Technically  speaking,  by  descent  we  mean  the 
transmission  of  real  property,  and  by  distribution  the  passing 
of  personal  property.  Under  our  law,  both  kinds  of  property 
vest  alike  on  the  death  of  the  ancestor  in  the  heir.  But  per- 
sonal property  is  not  directly  transmitted  for  reasons  originate 
ing  with  the  common  law  itself.  Such  property  is  to  be  trans- 
mitted through  a  legal  representative,  known  as  an  administra- 
tor or  executor.  For  the  same  common  law  reason,  personal 
property  was  made  primarily  applicable  to  the  payment  of  all 
debts  of  the  decedent.  As  the  executor  or  administrator  must 
distribute  the  remainder  as  provided  by  law,  after  the  payment 
of  debts  and  costs  of  administration,  it  will  be  necessary  to  at 
least  insert  the  statutes  providing  for  the  same  in  this  work 
whatever  is  left  must  be  distributed  as  real  estate  where  the 
real  estate  is  sold.* 

It  will  likewise  be  necessary  to  insert  the  statutes  relating  to 
descent.  In  these  statutory  provisions  there  are  some  terms 
used  which  may  be  advisable  to  define  in  order  to  properly  un- 
derstand the  statutes  themselves.  Preliminary  to  such  matters 
it  may,  however,  be  repeated  that  these  statutes  only  apply 
where  a  person  dies  intestate ;  that  is,  dies  without  having  made 
a  valid  mil  disposing  of  his  property.  Where  there  is  a  will, 
the  administrator  or  executor  must  look  there  and  not  to  the 
statutes  for  his  power  and  direction  to  distribute  the  estate. 
"  Intestate,"  therefore,  means  the  person  who  was  seized  of  the 
property  at  the  time  of  his  death,  and  who  made  no  valid  dis- 
position of  such  property.     A  person  may  die  testate  as  to  some 

3  The  statutfi  of  descents  embraces  *  §  lOSlG  G.  C,  §  879. 
tlie  whole  subject,  and  is  intended  Where  a  testator  provided  that 
to  provide  for  all  poss.ible  cases.  all  her  property  should  go  as  the 
Penn  vs.  Cox,  16  0.  30;  Drake  vs.  law  directs,  with  the  following  modi- 
Rogers,  13  0.  S.  21,  31;  Spangen-  fications,  all  the  property  goes  by 
berger  vs.  Guiney,  2  N.  P.  39.  devise   and   not   by   descent.      Huber 

The   Legishiture   may   change  the  vs.    Carew,    2    N.    P.    (N.S.)     81;    7 

course  of  descent,  such  laws  are  not  C.   C.    (N.S.)    609;   26   0.  C.  C.  389. 

retroactive  nor  impairing  the  obliga-  Affirmed. 
tion  of  contract.    Tarvin  vs.  Brough- 
ton,  8  Bull.   21. 


§  908  DESCENT   AND  DISTRIBUTION  828 

of  his  property  and  intestate  as  to  other.  If  he  makes  no  pro- 
vision for  a  person  who  has  an  absolute  right  to  some  portion  of 
his  property,  as  to  such  person,  he  will  die  intestate.^  But  a 
child  has  no  such  right  in  his  parent's  estate  that  a  failure  to 
provide  for  him  will  in  any  manner  affect  the  testamentary'  dis- 
position of  the  parent's  estate.  But  if  a  posthumous  child  is 
born,  for  whom  no  provision  is  made  as  to  such  child,  the  parent 
will  be  held  to  have  died  intestate." 

In  distribution  of  real  estate  the  law  of  the  place  where  it  is 
located  controls.'^ 

The  course  of  descent  of  real  property  is  always  controlled 
by  the  legal  title, ^ 

§  908.     Ancestor. 

A  word  in  common  use  in  these  sections  is  the  word  "  ances- 
tor." This  word,  within  the  meaning  of  the  statute  of  descent, 
means  the  person  from  whom  tlie  claimant  has  the  capacity  to 
inherit.  That  is,  the  claimant  must  be  one,  who,  had  tliere  been 
no  nearer  relation,  might  have  inlierited  from  the  person  claimed 
to  be  an  ancestor,  had  such  ancestor  died  intestate.^ 

5  Thus,  if  a  man  dispose  by  will  the  same  couple  of  common  ances- 
of  all  his  propertj-  without  making  tors."  2  Black.  Com.,  220,  note  9. 
any  provision  for  his  wife,  as  to  her  Any  one  from  whom  an  estate  is 
he  would  die  intestate,  and  she  derived  by  act  of  law  and  right  of 
would  receive  the  distributive  share  blood,  is  in  a  proper  legal  sense  an 
provided  by  law.  Doy^.e  vs.  Doyle,  ancestor.  This  appears  from  the 
50  O.  S.  330.  definition  of  the  term  "  descent "  in 

6  s  '"^"  ■       's  110"..  authorities.       "It    signifieth,    when 

7  Evans  vs.  Beaver,  CO  0.  S.   190.  lands  do  by  right  of  blood  fall  unto 

8  Russell  vs.  Bruer,  64  O.  S.  1;  fmy  after  the  death  of  his  ancestors; 
Patterson  ^s.  Lamson,  45  O.  S-  77.  or  a  descent  is  a  means  whereby  one 

See  §  755,  757,  as  to  Distribution,  doth    derive    him.    title    to    certain 

etc.  lands,    as   heir   to    some   of   his    an- 

0  Springer  vs.  Fortune,  2  Han.  52.  cestors."     Co.  Lit.,  13  b.;  2  Thomas' 

The  statute  refers  to  the  ancestor  Coke,    156. 

from  whom  the  estate  came  for  the  "  This  is  the  noblest  and  worthi- 

purpose  of  limiting  the  inheritance  est  means  whereby  lands  are  derived 

to   the  blood  of  that  ancestor.     To  from   one   to   another,   bcause    it   is 

be  of  the   blood  of  any  person,   "  is  wrought   and   vested   by   the   act   of 

either   to  be   immediately  descended  law,    the   right    of    blood,    unto    the 

from  him,  or  to  be  descended  from  worthiest  and  next  of  the  blood  and 

kindred  of  the  ancestor." 


829  ANCESTOR  DESCENT  DEVISE  §  909 

In  another  case  it  was  said  that  "  ancestor  "  meant  in  the 
statute  any  one  from  whom  the  estate  was  inherited,  and  that 
the  phrase  *'  ancestor  from  whom  the  estate  came,"  was  he  from 
whom  it  was  immediately  inherited.^*' 

"  Ancestral  property  "  is  a  term  used  to  mean  property  that 
comes  by  inheritance,  devise  or  deed  of-  gift,  as  contradistin- 
guished from  a  title  by  purchase.  There  are  no  limitations  in 
our  State  upon  tlie  power  of  a  person  to  receive  or  transmit 
property.  ^^  Where  a  person  is  seized  of  property  by  both  a 
legal  and  equitable  title,  the  legal  title  controls  the  descent.^^ 

The  statute  of  descent  is  not  applied  on  equitable  principles, 
but  by  rules  of  law.^^ 

An  ancestor  need  not  be  lineal.  An  uncle  may  be  an  ancestor 
if  the  devisees,  being  nephews,  would  have  inherited  from  him 
had  he  died  intestate.^* 

§  909.     Descent  and  devise. 

These  terms  are  used  in  the  statute  to  describe  the  devolution 
of  what  may  be  considered  ancestral  property.  By  descent  is 
meant  the  receiving  of  property  by  virtue  of  the  rules  of  law. 
Devise  means  the  receiving  of  property  by  virtue  of  the  act  of 

10  Pricket  vs.  Parker,  3  O.  S.  395.  12  Stembel    vs.    Martin,    50    O.    S. 
That  the  word  ancestor,  as  used       495. 

in  this  act,  is  not  to  be  understood  i^  Patterson  vs.  Lamson,  45  O.  S. 

as  when  used  in  common  parlance,  77. 

is    well    settled    in    Ohio.     That    an  1*  Brewster    vs.    Benedict,     14    O. 

uncle   of   the   intestate,    from  whom  368. 

the  latter  inherited,  was  his  ances-  Land    descended    from    father    to 

tor   in   the   sense   of   a    statute   like  son    and    from    son    to    grandson  — 

that  before  us,  in  this  respect,  being  the     grandson     died,     leaving     only 

the    aniendatorj'    act    of    1835,    was  brothers  of  his  grandfather  and   of 

held  in  Brewster  vs.  Benedict,  14  0.  his   grandmother.     Held,,  the  ances- 

68.     That   a    father,    who    took    the  tor    from    whom    the    estate    came 

estate    by    deed    of    gift    from    his  means  the  immediate  ancestor,  viz., 

father,    was    the    legal    ancestor    of  the  father,  and  such  ancestors   ma- 

his    son    and    heir,    not    the    grand-  ternal     and     paternal     uncles,     are 

father   from   whom   the  estate  came  equally  near  to  him.     The  civil  law, 

through  the  father,  was  held  in  Cur-  and  not  the  common  law  determines 

ren  vs.  Taylor,  19  O.  36;  Id.  3  0.  S.  who   arc  next  of   kin.     Clayton  vs. 

396.  Drake,    17   0.    S.   367;    Prickett  vs. 

11  Deem  vs.  Milliken,  6  C.  C.  357 ;  Parker,  3  0.  S.  394 ;  Curren  vs.  Tay- 
3  C.  D.  491:  Aff.  53  O.  S.  668.  lor,  19  O.  36. 


§  910  DESCENT   AND   DISTRIBUTION  830 

the  o^ATier  by  provisions  in  his  last  will  and  testament*      These     J 
statutes  are  intended  to  cany  into  execution  the  general  desires 
of  mankind  as  to  who  should  enjoy  their  property  after  their 
death ;  and  are  construed  with  that  end  in  view.^^ 


§  910.     Deed  of  gift. 

The  statute  places  property  acquired  by  a  "  deed  of  gift "  in 
the  same  line  as  property  acquired  by  descent  or  devise.  It 
may  be  defined  as  the  receiving  title  from  an  ancestor  by  virtue 
of  a  deed,  without  payment  of  a  valuable  consideration  there- 
for; and  it  is  a  recognition  of  the  distribution  of  a  person's 
property  in  his  lifetime,  and  the  law  has  considered  that  prop- 
erty acquired  in  such  a  manner  from  the  ancestor  should  be 
considered,  as  to  its  inheritable  qualities,  the  same  as  if  it  had 
been  transmitted  by  operation  of  law  or  the  last  will  of  the 
ancestor.  The  consideration  mentioned  in  a  deed  of  "  love  and 
affections  "  presume  a  gift,  but  if  the  consideration  be  one  of 
money,  then  it  is  valuable  and  the  title  transmitted  becomes 
one  of  purchase  to  the  recipient,  and  the  Courts  have  held 
that  parol  evidence  is  not  competent  to  vary  or  contradict  the 
considerations  stated  in  a  deed  when  the  same  will  affect  the 
transmission  of  the  title. ^*' 

A  deed  from  a  parent  to  a  daughter,  in  consideration  of  "  love 
and  affection,  dutiful  obedience  and  faithful  service,  and  one 
dollar,  is  not  a  deed  of  gift.  To  constitute  ancestral  prop- 
erty, the  consideration  must  be  blood  or  marriage  without  other 
consideration.^' 

1"  See    §  911.    Title    by    purchase.  consideration  of  blood  or  marriage, 

A  title  as   devisee   is  a  new  title  and  that  a  deed  for  a  consideration 

as    distinguished    from    a    title    by  other  than  blood,  that  is  a  valuable 

inheritance,  and  is  not  acquired  un-  consideration,  should  be  regarded  as 

til  the   probate  of   the  will.     Doug-  a    purchase.     58   0.   S.    668. 

lass    vs.    Miller,    3    N.    P.    220;     4  Where  the  consideration  expressed 

Dec.    414.  in    a    deed    is    a    valuable    one,    the 

ic  Nave    vs.    Marshall,    6    N.    P.  title  comes   by   purchase,   and   it  is 

488;   9  Dec.  415;   Kerr  vs.  Paul,  37  not    competent    to    show    by    parol 

Bull.    171.  that  the   deed  is  in  fact  a   deed  of 

17  Brown    vs.    Whaley,    58    O.    S.  gift — was  to  change  the  line  of  de- 

G54.  scent.     Ossman  vs.  Schnetz,  4  C.  C. 

The    Legislature     seems    to    have  (N.S.)     502;     14    Cir.    D.    709;    24 

had    tliese    distinctions    in    mind    in  O.  C.  C.  709. 

framing  our   statute  of   descents   as  The  title  of  a  devisee  relates  back 

to   deed   of   gift,    and    intended   that  to  the  probate  of  the  will,  and  takes 

a    deed    of    gift    from    an    ancestor  efl'ect   as  of   the   time  of  the   death 

should    be    supported    alone,    by    a  of   the  testator.     Miller  vs.  Miller, 


831  BY  PURCHASp;  §  911 

§  911.      By  purchase. 

Property  acquired  by  purchase  means  property  acquired  in 
any  other  manner  than  h}^  descent,  devise  or  deed  of  gift.^^ 

The  law  seems  to  favor  the  acquisition  of  an  estate  by  pur- 
chase, and  in  pleading  it  will  be  presumed  that  tlie  land  acquired 
was  acquired  by  purchase  and  not  ancestral,  unless  it  be  averred 
to  be  ancestral.^" 

Land  acquired  by  descent,  devise  or  deed  of  gift,  which  is 
partitioned  among  the  heirs  by  division  of  tlie  same,  does  not 
lose  its  ancestral  qualities.'"  But  if  such  persons,  after  the 
division  is  made,  trade  the  properties  between  themselves,  re- 
citing a  money  consideration,  this  destroys  its  ancestral  charac>- 
ter,  and  the  title  held  by  them  is  one  of  purchase. ^^ 

If  an  heir  elects  to  take  an  estate  in  partition,  then  he  holds 
his  original  share  by  descent  and  that  acquired  by  purchase.*^ 

Where  land  was  inherited  by  an  infant  and  converted  into 
money  by  his  guardian,  it  loses  its  ancestral  qualities  and 
descends  as  personalty. ^^ 

Likewise  it  has  been  held  that  the  proceeds  remaining,  in  the 
sale  of  real  estate  sold  by  an  administrator  or  executor,  while 
the  same  is  to  be  distributed  by  such  administrator  or  executor  as 
real  estate,  yet  in  the  hands  of  the  heir,  it  is  personalty,  and 

9   C.   C.    (N.S.)    242;    30   0.    C.    C.  title.     McBain  vs.  McBain,  15  0.  S. 

666;  affirmed,  77  O.  S.  643.  337;    Tabler  vs.   Wiseman,   2   0.    S. 

18  All  intestate  estates  are  by  onr  208.     ■ 

law  divided  into  two  classes,  and  the  Purchasing  of  property  at  a  sale 

line  or  order  of  succession  is  to  be  in  partition  by  a  tenant  in  common 

determined    by    the   class    to    which  extinguishes  the  title  cast  upon  him 

they  belong.     The  first  section  ere-  as    heir    at    law    by    the    laws    of 

ates,     defines     and     prescribes     the  descent,  and  rests  in  him  a  title  by 

course  of  the  first  class,  and  all  es-  purchase.    Lawson  vs.  McDougal,  22 

tates    embraced   within    this   section  Dec.   618. 

have   been   appropriately  called   an-  A    farm    divided    subject    to    the 

cestral.     All  estates  not  included  in  payment  of  legacies  is  an  estate  by 

the  first  class  necessarily  belong  to  purchase.     Royer   vs.   Trumpler,   38 

the     second,     are     nonancestral     in  O.  C.  C.  190. 

their  character,  and  pass  under  the  l!'  Mathews  vs.  Krisher,  59  0.  S. 

second  section.    Persons  claiming  as  502. 

heirs  to  an  intestate  can  not  trace  20  Carter   vs.   Day,   59   O.    S.   96; 
their  title  to  the  same  estate  partly  Smith  vs.  Carver,  .30  B.  189. 
under    the    first    and    partly    under  21  Brower  vs.  Hunt,  18  O.  S.  311. 
the  second  section.  Brower  vs.  Hunt,  22  Freeman  vs.  Allen,  17  O.  8.  527. 
i   18  0.  S.  334.  23  Armstrong  vs.  Miller,  6  O.  118. 
(  ,    At  common  law,  property  acquired  Now    changed    by    statute.      See 
I  in  any  other  way  than  by  descent,  §  4163  E.  S'.,  §  921. 
was   acquired   by   purcliase.      Black  But    if    the    guardian    invests    in 
Com.,  vol.  1,  p.  215.  real    estate    it    then    becomes    non- 
Parties    in    partition    where    the  ancestral.     See  §  921. 


■  premises    are   sold   acquire   no   new 


§912 


DESCENT   AND   DISTRIBUTION 


832 


descends  from  him  as  personal  property.'*  However^  if  an 
owner  conveys  away  property  and  immediately  receives  it  back, 
if  he  does  it  solely  to  break  the  descent,  it  will  not  change  his 
title,  and  it  will  still  remain  as  it  was  before  such  conveyance.^^ 

In  construing  a  conveyance,  the  last  conveyance  is  alone 
looked  to  to  determine  whether  the  title  is  one  by  purchase  or 
deed  of  gift."*' 

Where  the  legal  title  is  acquired  by  purchase  and  an  equity 
by  inheritance,  they  at  once  unite,  and  on  the  death  of  the 
owner,  descend  as  title  acquired  by  purchase."^ 

§  912.     Legal  representative. 

The  words  "  legal  representative  "  have  several  meanings  in 
thd  administration  of  estates.  It  is  used  by  text  book  writers 
as  a  common  tenn  to  include  both  executors  and  administra- 
tors. But  as  used  in  the  statute  of  descent  it  has  an  entirely 
different  application.  It  here  means  the  lineal  descendants  of 
an  intestate's  children.'^  In  other  places  it  may  mean  the  lineal 
descendants  of  the  children  of  the  ancestor."^ 

Generally,  throughout  these  statutes  of  descent,  the  word 
"  legal  representative  "  is  meant  to  include  a  lineal  descendant 
of  some  desipmated  person  or  class  of  persons.^" 


§  913.     Next  of  kin. 

Next  of  kin  of  a  decedent  are  the  persons  or  person  nearest 
in  degree  of  blood  surviving  him.^^     In  ascertaining  "  the  next 


24  Pence  vs.  Pence,  11   0.  S.  290. 

See   §  905. 

25Helftnger  vs.   Wolf,  30   B.   383. 

Where  the  father  bought  a  piece 
of  property  and  had  it  deeded  di- 
rectly to  a  daughter  from  the  per- 
son from  whom  he  purchased  it,  it 
was  held,  although  the  father  fur- 
nished all  the  consideration  that  the 
daugliter  held  a  title  by  purchase. 
Patterson  vs.  Lamson,  45   0.  S.  77. 

See  Burnett  vs.  Felt.  3  Bates  Dig. 
457. 

28Kihlken  vs.  Kihlken,  59  0.  S. 
106. 

27  Higgina   vs.   Higgins,   57    0.   S. 


239;    Olmstead  vs.   Douglass,   16   C. 
C.  171;  8  C.  D.  465. 
See  §  1879,  Partition. 

28  Thomas  vs.  Lett,  4  N.  P.  393; 
6  Dec.  429. 

29  Gosling  vs.  Rupp,  7  N.  P.  185; 
6    Dec.    345. 

See  Hague  vs.  Thompson,  11  C.  C. 
(N.S.)  407;  affirmed,  without  report, 
October  5,  1909  (81  O.  S.  — ;)  30 
0.  C.   C.  628. 

30  See  §1196,  as  to  Construction 
of  the  word   heirs   in  will. 

31  §  1199.  Construction  in  wills; 
§  121,    Appointment    administrator. 

16  Am.  &  Eng.  Ency.  of  Law,  703i 
"The    words "  'next    of    kin'    are 


833  NEXT    OF    KIN  §  913 

of  kin  to  the  intestate,"  mentioned  in  the  sixth  clause  of  sec. 
8517  G.  C.  (§  915),  the  degree  of  consanguinity  are  to  be,  com- 
puted according  to  the  rule  of  civil  law.  The  words  "next  of 
kin"  in  this  clause  are  descriptive  of  a  particular  person,  or  of  a 
class  of  persons  related  to  the  intestate,  in  an  equal  degree  of 
consanguinity.  They  exclude  the  more  remote  kindred,  and  do 
not  imply  the  principle  of  representation,^^ 

Xo  one  is  included  within  the  term  "  next  of  kin,"  who  does 
not  come  within  the  statute.  As  above  stated,  our  Court  adopts 
the  rule  of  the  civil  law.  In  determining  lineal  consanguinity 
each  step  up  or  down  from  the  decedent  counts  as  one  degree. 
Thus  an  intestate  and  his  son  or  father  are  related  in  the  first 
degree ;  an  intestate  and  his  grandson  or  grandfather  are  related 
in  the  second  degree.  In  determining  collateral  consanguinity, 
the  rule  is  to  count  up  from  the  intestate,  to  the  common  ancestor 
and  then  down  to  the  person  whose  kinship  with  the  intestate 
is  sought  tO'  be  ascertained.  In  this  computation  each  step, 
both  in  tlie  ascending  and  descending  lines,  counts  as  one  degree. 
Thus  an  intestate  and  his  brother  are  related  in  the  second 
degree,  an  intestate  and  his  cousin  in  the  fourth  degree. ^^ 

In  cases  of  distribution,  relatives  of  the  intestate  on  the 
father's  side  and  the  mother's  side  stand  on  an  equal  footing. 
It  follows  from  this  that  there  may  be  relatives,  distant  from 
the  intestate  by  an  equal,  number  of  degrees,  who  are  not  re- 
lated to  each  other,  but  who  have  equal  rights  in  the  distribution 
of  the  intestate's  estate,  and  stand  on  an  equal  footing  as  to 
rights  of  administration.^* 

limited  in  legal  meaning,  as  in  com-  32  Clayton  vs.  Drake,  17  0.  S,  368. 

nion  use,  to  blood  relations,  and  do  33  2  Black  Com.  202;  Lee  vs.  Sedg- 

not   include  a  iiusband  or   wife,  nn-  wick,  1  Koot  (Conn.)   52. 

less    accompanied    b_v    other    words  ^4  Kearney    vs.     Turner,    28    Md. 

clearly  manifesting  a  purpose  to  ex-  408;    16  Ency.  of  Law,  703. 

tend    tlieir    signification;     and    the  The    distinguishing    rules    of    the 

mere  addition  of  a  reference  to  the  common  law  doctrine  of  descent  are 

statutes  of  distribution   is  not  suf-  the  converse  of  those  in  this  coun- 

lieient."     Per  Gray,  C.  J.,  in  Hara-  try.     They  consist  of  the  following 

den  vs.  Larrabee,  113  Mass.  430;   16  principles  of  law,  viz.:  preference  of 

Am.  &  Eng.  Ency.  of  Law,  70.5.  males     to     females;     primogeniture 

Brothers    and    sisters    of    the    de-  among    the    males;    the    inheritance 

ceased  fatlier  are  nearer  of  kin  than  shall  never  lineally  ascend;   the  ex- 
tiie  grand-parents.     Ampy  vs.  Heish, 
27  Dec.  410;  20  N.  P.  1. 


§  914  DESCENT    AND    DISTRIBUTION  834 

§  914.     Relict  of  deceased  husband  or  wife. 

The.  words  ' '  relict  of  deceased  husband  or  wife, ' '  as  used  in 
the  General  Code  of  sec.  8577,^'^  are  used  to  designate  the 
relationship  to  a  former  married  pair,  of  the  survivor  of  a 
marriage  union ;  and  such  relationship  is  not  destroyed  or 
changed  by  the  subsequent  marriage  of  such  sur^'ivor.  And 
therefore  it  was  held  that  where  a  man  who  had  acquired  prop- 
erty by  purchase  died  witliout  diildren,  and  his  wife  remarri'ed 
and  died  without  children,  the  second  husband  did  not  acquire 
the  title  of  the  real  estate  as  being  ihe  relict  of  his  deceased 
wife;  but  that  in  such  a  case  the  second  husband  had  a  mere 
life  estate,  and  the  fee  of  the  property  belonged  to  the  brothet-s 
and  sisters  of  the  wife  and  the  brothers  and  sisters  of  the  first 
husband.^® 

Where  such  relict  dies,  the  property  is  subject  to  his  or  her 
debts,'  and  the  brothers  and  sisters  of  such  relict  and  the  de- 
ceased consort  take  the  property  subject  to  the  payment  of  such 
debts.^^  However,  if  the  first  husband  had  no  brothers  or 
sisters,  and  the  relict  had  no  brother  or  sister  living  at  her 
death,  the  property  then  passes  to  her  second  husband.^* 

The  surviving  husband  or  wnie  takes  under  the  statute  only 

where  the  intestate  spouse  dies  seized.      Hence,  if  a  daughter 

dies  before  her  father,  her  husband  inherits  nothing  from  her 

father's  estate  as  her  legal  representative.^^ 

elusion  of  the  half  blood ;  the  strict  ss  Thomas  vs.  Lett,  4  N.  P.  393 ; 

adherence  to  the  doctrine  of  succes-  6  Dec.  429. 

sion.  per  stirpes;  the  collateral  heir  A  widow  who  inherits  her  hus- 
of  the  person  last  seized,  to  be  his  band's  property  under  R.  S.  §  4159, 
next  collateral  kinsman  of  the  whole  he  dying  without  children,  or  broth- 
blood;  and  kindred  derived  from  the  ers  and  sisters,  and  she  dies  without 
blood  of  the  male  ancestors,  how-  children,  her  brothers  and  sisters 
pver  remote,  to  be  preferred  to  kin-  take  the  whole  estate,  to  the  exclu- 
dred  from  the  blood  of  the  female  sion  of  his  uncles  and  cousins.  § 
ancestors,  however  near,  unless  the  4162  R.  S.  does  not  apply.  The 
land  came  from  a  female  ancestor.  last  words  therein,  "  or  their  per- 
2  Bl.  Comm.  c.  14;  Kent's  Comm.  sonal  representatives,"  refer  to 
412.  brothers  and  sisters,  and  not  to  hus- 

35  §  920.  band  or  wife.     Ellis  vs.  Ellis,   3  C. 

36Spitler  vs.  Heeter,  42  O.  S.  100.  C.  186;  2  C.  D.   105. 

37  Gosling  vs.  Rupp,  7  N.  P.  185;  "^ 9  Lane  vs.    McKinstn,',    31    O.    S. 

6  Dee.  345.  640. 


835  WHERE    TITLE    COMES    BY    DEVISE  §  915 

The  term  "'any  former  deceased  husband,"  in  see.  8577  G.  C. 
(§  920),  refers  to  any  husband  who  has  deceased  leaving  a  widow 
to  whom  any  real  estate  or  personal  property  has  passed  by 
virtue  of  the  provisions  of  said  section,  and  is  not  confined  in 
its  application  to  cases  where  the  widow  has  had  two  or  more 
husbands  who  are  deceased. ■'° 

§  915.  Order  of  descent  of  real  estate  v^^here  title  came  by  ^^^^^^ 
descent,  devise  or  deed  of  gift.  "When  a  person  dies  intestate, 
having  title  or  right  to  any  real  estate  or  inheritance  in  this 
state,  which  title  came  to  such  intestate  by  descent,  devise,  or 
deed  of  gift  from  an  ancestor,  such  estate  shall  descend  and 
pass  in  parcenary  to  his  or  her  kindred  in  the  following  course : 

"1.  To  the  children  of  such  intestate,  or  their  legal  repre- 
sentatives. 

"2.  If  there  are  no  children  or  their  legal  representatives 
living,  the  estate  shall  pass  to  and  vest  in  the  husband  or  wife, 
relict  of  such  intestate,  during  his  or  her  natural  life. 

"3.  if  such  intestate  leave  no  husband  or  wife,  relict  of 
himself  or  herself,  or  at  the  death  of  such  relict,  the  estate  shall 
pass  to  and  vest  in  the  brothers  and  sisters  of  the  intestate  who 
are  of  the  blood  of  the  ancestor  from  whom  the  estate  came,  or 
their  legal  representatives,  Avhether  such  brothers  and  sisters  be 
of  the  whole  or  half  blood  of  the  intestate. 

"4.  If  there  are  no  brothers  or  sisters  of  the  intestate  of  the 
blood  of  the  ancestor  from  Avhom  the  estate  came,  or  their  legal 
representatives,  and  the  estate  came  by  deed  of  gift  from  an 
ancestor  who  is  living,  the  estate  shall  ascend  to  such  ancestor. 

"5.  If  the  ancestor  from  whom  the  estate  came  is  deceased, 
the  estate  shall  pass  to  and  vest  in  the  children  of  the  ancestor 
from  whom  the  estate  came,  or  their  legal  representatives ;  if 
there  are  no  children  of  the  ancestor  from  whom  the  estate 
came,  or  their  legal  representatives,  the  estate  shall  pass  to  and 
vest  in  the  husband  or  wife,  relict  of  such  ancestor,  if  a  parent 
of  the  decedent,  during  the  life  of  such  relict.  On  the  death  of 
such  husband  or  wife,  or  if  there  is  no  such  husband  or  wife, 
the  estate  shall  pass  to  and  vest  in  the  brothers  and  sisters  of 
such  ancestors,  or  their  legal  representatives ;  and  for  want  of 
such  brothers  and  sisters,  or  their  legal  representatives,  to  the 
brothers  and  sisters  of  the  half  blood  of  the  intestate,  or  their 
legal  representatives,  though  such  brothers  and  sisters  are  not 
of  the  blood  of  the  ancestor  from  whom  the  estate  came. 


41  Anderson  vs.  Gilchrist,  44  0.  S.  See    §  920,    §  8577    G.   C. 

440. 


§916 


DESCENT    AND   DISTRIBUTION 


836 


"6,  If  there  are  no  such  half-brothers  and  sisters  of  the  in- 
testate, or  their  legal  representatives,  the  estate  shall  pass  to  the 
next  of  kin  to  the  intestate  of  the  blood  of  the  ancestors  from 
whom  the  estate  came,  or  their  legal  representatives."  [R.  S. 
§4158.]*^ 

§  916.     Comments. 

The  distinguishing  features  between  the  above  section  and  the 
next  subsequent  section  is  that  the  above  section  provides  for 
the  devolution  of  property  acquired  by  descent,  including  devise 
and  deed  of  gift.  The  object  and  purpose  running  through  the 
entire  section  is  to  confine  the  devolution  of  such  property  tJ 
persons  who  are  of  the  Mood  of  the  person  from  whom  the  irr 
testate  received  it.  As  to  children  and  their  representatives,  the 
first  subdivision  of  the  above  and  subsequent  sections  are  tie 
same.  The  second  clause  differs  only  that  where  it  comes  by 
descent,  the  husband  or  wife  acquires  a  life  estate;  where  H 
oomes  by  purchase,  the  entire  estate.  For  all  ordinary  cases,  a 
careful  reading  of  the  sections  of  the  General  Code  will  indi- 
cate to  an  administrator  or  executor  the  person  to  whom  distribu- 
tion is  to  be  made.  If  a  person  receives  property  by  purchase, 
as  to  all  persons  receiving  an  inheritance  under  him,  he  is  an 
ancestor.  If  such  person  receives  the  title  by  descent,  etc.,  be 
is  not  an  ancestor,  but  the  person  from  whom  it  came  is  the 
ancestor,  and  the  policy  running  through  all  of  our  statutes  of 
descent  in  respect  to  ancestor's  estates  is  not  to  prefer  the  blood 
of  the  ancestor  to  the  exclusion  of  the  blood  of  the  intestate. 
But  to  prefer  those  of  the  kindreds  of  the  intestate  who  are  of 
the  blood  of  the  ancestor.*^ 

Eeal  estate  acquired  by  descent  from  a  paternal  ancestor  of 
one  who  dies  intestate,  leaving  neither  widow,  children,  broth- 
ers, sisters,  nor  parents,  passes  under  this  section  to  the  brothers 
and  sisters  of  the  father  or  their  legal  representatives,  whether 


41  §  8573  G.  C. 

42Brow€r  vs.  Hunt,  18  0.  S.  311. 

Ground  rent  is  a  freehold  estate 
and  goes  by  descent.  McCamnion  vs. 
Cooper,  affirmed  1  N.  P.  (N.S.)  154; 
12  Dec.  677:   69  0.  S.  367. 


Half  brothers  and  half  sisters  of 
the  ancestor  are  included  in  the 
words  brothers  and  sisters  of  such 
ancestor,  etc.  Stockton  vs.  Frazier, 
81  0.  S.  227. 

See  §  911,  Title  by  purchase. 


837  WHERE    TITLE    COMES    BY    PURCHASE  §  917 

such  brothers  and  sisters  are  of  the  whole  or  half-blood  of  the 
father.''^ 

§  917.    Order  of  descent  where  estate  came  by  purchase,  etc. 

"If  the  estate  came  not  by  descent,  devise,  or  deed  of  gift,  it 
shall  descend  and  pass  as  follows : 

"1.  To  the  children  of  the  intestate  and  their  legal  represen- 
tatives. 

"2.  If  there  are  no  children,  or  their  legal  representatives, 
the  estate  shall  pass  to  and  be  vested  in  the  husband  or  wife, 
relict  of  such  intestate. 

"3.  If  such  intestate  leaves  no  husband  or  wife,  relict  to 
himself  or  herself,  the  estate  shall  pass  to  the  brothers  and  sisters 
of  the  intestate  of  the  whole  blood,  and  their  legal  representa- 
tives. 

"4.  If  there  are  no  brothers  or  sisters  of  the  intestate  of  the 
whole  blood,  or  their  legal  representatives,  the  estate  shall  pass 
to  the  brothers  and  sisters  of  the  half-blood,  and  their  legal 
representatives. 

"5.  If  there  are  no  brothers  or  sisters  of  the  intestate  of  the 
half-blood,  or  their  legal  representatives,  the  estate  shall  ascend 
to  the  father  and  mother  equally ;  if  one  of  them  be  dead,  then 

to  the  other. 

"6.  If  the  father  and  mother  are  dead,  the  estate  shall  pass 
to  the  next  of  kin,  and  their  legal  representatives,  to  and  of  the 
blood  of  the  intestate."     [R.  S.  §  4159 ;  108  v.  69.]** 

Real  estate  purchased  with  partnership  funds  and  used  for 
partnership  purposes,  is  thereby  converted  into  personalty,  and 
so  continues  after  death  of  one  of  the  partners  until  complete 
settlement  of  partnership  business.*^ 

§  918.  When  real  estate  to  pass  to  husband  or  wife ;  when 
to  next  of  kin  of  intestate.  "When  a  person  dies  intestate, 
having  title  or  right  to  any  real  estate  or  inheritance,  as  pro- 
vided  in   section   eighty-five   hundred    and    seventy-three,    and 

<3  Burdwick    vs.    Shaw,    10    Dec.  45  Fisher  vs.  Lang,  10  Dec.   (Re.) 

533;  8  N.  P.  22.  178;   19  B.  130. 

Where  an  estate  conies  by  devise  See    §  438,    What    is    partnership 

and   there   are   no   children   on    the  real  estate. 

death  of  the  wife,  etc.,  it  is  divided  The  next  of  kin  of  one  wlio  died 

one-half   equally  between   tlie  wife's  leavinfj   no    issue   and   whose   father 

brothers    and    sisters    and    one-half  and    mother    are    dead    and    left    no 

equally  between  the  husband's  broth-  issue,    are    decedent's    grandparents 

ers  and  sisters.  or    great-grandparents    as    far    back 

44  §  8.')74  G.  C.  as  may  be  necessary  to  go.     Chara- 

This  sect'on  provides  how  personal  plain  vs.  Walsh,  37  0.  C.  C.  534. 
estate    shall     be    distributed.       See 
§§  8578-n  G.  C,   §  921. 


§  yi9  DESCENT    AND    DISTRIBUTION  838 

leaves  husband  or  wife,  relict  of  himself  or  herself  and  there  is 
no  person  who,  under  the  provisions  of  that  section,  would  be 
entitled  to  inherit  it,  or  an  estate  therein,  save  and  except  such 
husband  or  wife,  relict  of  such  intestate,  then  the  estate  shall 
pass  to  and  vest  in  the  husband  or  wife  of  the  intestate  as  an 
estate  of  inheritance.  If  there  is  no  such  person,  and  no  hus- 
band or  wife  relict  of  the  intestate,  then  the  estate  shall  pass  to 
and  vest  in  the  next  of  kin  of  the  intestate,  though  not  of  the 
blood  of  the  ancestor  from  whom  the  estate  came."  [R.  S. 
§  4160.]« 

§  919.  When  real  estate  to  pass  to  children  of  former  hus- 
band or  wife,  etc.  "When  a  person  dies  intestate,  having 
title  or  right  to  any  real  estate  or  inheritance,  whether  by  de- 
scent, devise,  or  deed  of  gift  from  an  ancestor,  or  acquired,  and 
there  is  no  person  entitled  to  inherit  it  under  the  next  three 
preceding  sections,  then  the  estate  shall  pass  to  and  vest  in  the 
children  of  any  deceased  husband  or  husbands,  wife  or  -udves,  of 
the  intestate,  whose  marriage  with  the  intestate  Avas  not  annulled 
prior  to  his,  her,  or  their  death,  or  their  legal  representatives. 
If  there  are  no  children,  or  their  legal  representatives,  living, 
then  the  estate  shall  pass  to  the  brothers  and  sisters  of  any  such 
husband  or  wife,  or  their  legal  representatives ;  if  there  are  no 
brothers  and  sisters,  nor  their  legal  representatives,  the  estate 
shall  pass  to  the  next  of  kin  of  such  intestate ;  and  if  there  are 
none  such,  then  the  estate  shall  escheat  and  be  vested  in  the 
state  of  Ohio."      [R.  S.  §4161.]*^ 

§  920.  Descent  of  estate  which  came  from  former  husband 
or  wife.  "When  the  relict  of  a  deceased  husband  or  wife 
dies  intestate  and  without  issue,  possessed  of  any  real  estate  or 
personal  property  which  came  to  such  intestate  from  a  former 
deceased  husband  or  wife  by  deed  of  gift,  devise  or  bequest,  or 
under  the  provisions  of  section  eighty-five  hundred  and  seventy- 
four,  then  such  estate,  real  and  personal,  shall  pass  to  and  vest 
in  the  children  of  such  deceased  husband,  or  wife,  or  the  legal 
representatives  of  such  children.  If  there  are  no  children  or 
their  legal  representatives  living,  then  such  estate,  real  and  per- 
sonal, shall  pass  and  descend,  one-half  to  the  brothers  and  sisters 
of  such  intestate,  or  their  legal  representatives,  and  one-half  to 

46  §  8.575  G.  C.  47  §  8576  G.  C.  Heirs  of  a  de- 
This  section  is  only  intenrled  to  ceased  wife  do  not  inherit  any  inter- 
provide  for  cases  where  there  was  est  in  the  estate  of  the  husband 
a  faihire  of  persons  canahle  of  tak-  when  he  leaves  heirs.  McCune  vs. 
ing  under  the  precedins  section.  Larkin.  25  C.  C.  (N.S.)  118;  36 
Lathrop  vs.  Young,  25  O.'S.  451.  C.  C.  357. 


839  PERSONAL   ESTATE  §  921 

the  brothers  and  sisters  of  such  deceased  husband  or  wife  froin 
which  such  personal  or  real  estate  came,  or  their  personal  rep- 
resentatives."    [R.  S.  §  4162.]" 

It  will  be  observed  that  the  above  section  makes  provisions  for 
property  that  was  inherited  or  received  by  a  mfe  or  husband 
from  her  deceased  consort  by  virtue  of  the  provisions  of  sec. 
8574,  G.  C.  (§  917),  providing  for  the  devolution  cf  a  title  ac- 
quired by  purchase.  It  is  essential  under  this  section  that  the 
wife  or  husband  shall  die  intestate  and  without  issue,  and  in 
possession  of  the  property  which  she  received  from  her  husband. 
If  she  has  parted  with  the  property  in  any  manner,  the  above 
section  would  not  apply — that  is,  if  she  had  converted  real  estate 
into  money  or  vice  versa,  the  above  section  would  not  apply. 
The  identical  property  must  remain.*'' 

§  921.  Distribution  of  personal  estate.  "When  a  i:>erson 
dies  intestate  and  leaves  personal  property,  it  shall  be  distrib- 
uted in  the  manner  prescribed  in  section  eighty-tive  hundred 
and  seventy-four,  as  to  real  property  which  came  not  by  descent, 
devise  or  deed  of  gift  from  an  ancestor;  saving,  however,  such 
right  as  a  widow  or  widower  may  have  to  any  part  of  such  per- 
sonal property.  But  a  fund  in  the  hands  of  an  administrator, 
guardian,  assignee  or  other  trustee,  arising  from  the  sale  of  real 
estate  which  came  to  such  intestate  by  descent,  devise  or  deed 
of  gift  from  an  ancestor,  shall  descend  according  to  the  course 
of  descent  prescribed  by  section  eighty-five  hundred  and  seventy- 
three,  for  ancestral  real  estate."     [R.  S.  §4163.]^<» 

§  921a.  When  personal  property  to  escheat.  "If  there  be 
no  person  living  to  inherit  it  by  the  provisions  of  this  chapter, 
such  personal  property  shall  pass  to  and  be  vested  in  the  state. 
The  prosecuting  attorney  of  the  county,  in  which  letters  of 
administration  are  granted  upon  such  estate,  shall  collect  and 
pay  it  over  to  the  treasurer  of  such  county ;  to  be  applied  ex- 
clusively to  the  support  of  the  common  schools  of  the  county 
in  which  collected,  in  such  manner  as  is  prescribed  by  law." 
[R.  S.  §4163.]^°* 

48  §  8.577  G.  C.  See  previous  5i>  §  8578  G.  C.  See  §  755,  et  seq. 
§  914;   Fay  vs.  Scott,  14  N.  P.  241;  50*  §  8579  G.  C. 

23  Dec.  4'64;   Spitler  vs.  Heeter,  42  See  Marshall  vs.  Bash,   17  K.   P. 

0.   S.    100;    Anderson   vs.   Giicliiist,  428,  where  the  section  was  applied 

44  0.  S.  440;  Seney  vs.  Schmith,  25  in    case    where    wife    and    husband 

C.  C.   (N.S.)   185;  Gosling  vs.  Rupp,  were  both  deceased  each  owning  both 

7  N.  P.  185.  real   and  personal   property. 

49  See  Bruer  vs.  Johnson,  04  O.  It  lias  recently  been  held  tliat  if 
S.  7.  This  seetion  points  out  the  a  guardian  sells  real  estate  and  then 
course  of  descent  and  distribution  reinvests  the  funds  in  real  estate,  the 
of  personal  property.  Lingler  vs.  real  estate  so  held  would  descend  a3 
Wesco,  79  0.  S.  225. 


§  922  DESCENT   AND   DISTKIBUTION  840 

§  922.     Comments. 

The  above  section  is  one  brought  intO'  question  most  frequently 
in  the  administration  of  estates.  According  to  its  provisions, 
personal  property  may  always  be  considered  as  coming  to  the 
decedent  by  purchase  and  is  never  ancestral.  It  provides  that 
such  personal  property  shall  be  distributed  in  the  same  manner 
as  real  estate  acquired  by  purchase,  excepting  only  the  right  that 
the  widow  may  have  tlierein.^^ 

While  personal  property  does  not  immediately  pass  to  the  dis- 
tributee, yet  the  right  vests  at  the  death  of  the  decedent.^' 

The  provisions  in  the  above  section  in  reference  to  a  fund 
that  may  be  in  the  hands  of  an  administrator,  and  which  has 
arisen  from  the  sale  of  real  estate,  shall  in  certain  cases  be  dis- 
tributed as  real  estate,  are  no  doubt  inserted  into  the  statute 
because  the  Supreme  Court  had  decided  that  in  such  cases  the 
property  had  lost  its  ancestral  character  and  was  to  be  distrib- 
uted as  personalty. ^^ 

The  latter  part  of  the  section  merely  provides  when  such 
property  escheats.^* 

§  923.  When  estate  to  descend  to  children  of  intestate  and 
how.  "When  a  person  dies  intestate  leaving  children,  and 
none  of  the  children  of  such  intestate  have  died  leaving  children 
or  their  legal  representatives,  such  estate  shall  descend  to  the 
children  of  such  intestate,  living  at  the  time  of  his  or  her  death, 
in  equal  proportions."     [R.  S.  §  4164.] ^^ 

§  924.  Descent  when  all  descendants  of  equal  degree  of  con- 
sanguinity. "When  all  the  descendants  of  an  intestate,  in  a 
direct  line  of  descent,  are  of  an  equal  degree  of  consanguinity 

to  the  intestate,  whether  children,  grandchildren,  or  great-grand- 

• 

land  acquired  by  purchase  and  not  34  Personal  property  is  always  dis- 

by  descent.     McCammon  vs.  Cooper,  tributed  according  to  the  law  of  the 

12  Dec.  677;  affirmed  1  N.  P.  (X.S.)  domicile    of   the    decedent.      Swear- 

154;   12  D.  677;  69  0.  .S.  367.  ingen  vs.   Morris,    14   0.   S.   424;    2 

This  decision  seems  to  the  author  Kent's   Com.  571. 

to  be  questionable.  See  §  758,  Law  of  domicile. 

51  See  §  8592  G.  C.  §  938.  ss  §  8580  G.  C. 

52  Armstrong  vs.  Grandin,  39  0.  The  purpose  and  object  of  the 
S-  368.  above  section  is  not  easily  perceived. 

53  Pence  vs.  Pence,  11  0.  S.  290;  In  the  absence  of  statute,  where 
Armstrong  vs.  Miller,  6   0.   118.  property    descends    to    a    class,    it 

would  go  to  them  in  equal  portions. 


841  CHILDREN    AND    HEIRS    OF    DECEASED    CHILD  §  925 

children,  or  of  a  more  remote  degree  of  consanguinity  to  such 
intestate,  the  estate  shall  pass  to  such  persons  of  equal  degree 
of  consanguinity  to  such  intestate  in  equal  parts,  however  remote 
from  the  intestate  such  equal  and  common  degree  of  consanguin- 
ity may  be."     [R.  S.  §4165.]^-' 

§  925.  When  there  are  living  both  children  and  heirs  of  de- 
ceased children  of  intestate.  "If  some  of  the  children  of  such 
intestate  are  living,  and  others  are  dead,  the  estate  shall  descend 
to  the  children  who  are  living,  and  to  the  legal  representatives 
of  such  as  are  dead,  so  that  each  child  of  the  intestate  who  is 
living  will  inherit  the  share  to  which  he  or  she  would  have  been 
entitled  if  all  the  children  of  the  intestate  were  living,  and  the 
legal  representatives  of  the  deceased  child  or  children  of  the 
intestate  inherit  equal  parts  of  that  portion  of  the  estate  to 
which  such  deceased  child  or  children  would  be  entitled  if  such 
deceased  child  or  children  were  living."     [R.  S.  §  4166.]^'^ 

§  926.  Extent  of  application  of  last  section.  ' '  The  provi- 
sions of  the  next  preceding  section  shall  apply  in  all  cases  in 
which  the  descendants  of  the  intestate,  entitled  to  share  in  the 
estate,  are  of  unequal  degree  of  consanguinity  to  the  intestate, 
so  that  those  who  are  of  the  nearest  degree  of  consanguinity, 
will  take  the  share  to  which  he  or  she  w^ould  have  been  entitled, 
had  all  the  descendants  in  the  same  degree  of  consanguinity 
with  him  or  her,  who  died  leaving  issue,  been  living."  [R.  S. 
§4167.]^« 

§  927.  Previous  sections  apply  to  real  and  personal  prop- 
erty. "The  provisions  of  the  next  four  preceding  sections 
shall  apply,  both  to  personal  and  real  estate.     [R.  S.  §  4168.]'^^ 

56  §  8581  G.  C.  as   well    as    real    estate.      D —  died 
This  section  disturbs  the  cencral       leaving  six  children — two  other  chil- 

rule     that     property     descends     per  dren    having    previously    died,    one 

stirpes  and  not  per  capita.     Under  leaving  a   family   of   three   children 

this   statute,   when   all   the  descend-  and     the     other     five;     these     eight 

ants  are  of  an  equal  degree  of  con-  grandchildren    are    not    entitled    to 

sansruinity,  they  should  share  eqnr.l.  participate  equally,  but  the  three  of 

That    is,    supposing   a    brother    died  one  family  are  each  entitled  to  1-24. 

before  his  father,  leaving  three  chil-  and  the  five  of  the  other  each   1-40. 

dren,  and  another  brother  died  loav-  Dutoit  vs.  Doyle,  16  0.  S.  400. 

ing    nine    children,    the    estate    then  5S  §  8583  G.  C. 

would  be  divided   into  twelve  equal  59  §  8584  G.  C. 

parts,   the  children   of   one  brother.  Applies  to  nonancestral   property 

receiving   one-fourth    and    the   other  and   to   collateral    as   well    as   lineal 

three-fourths.     Tf  one  brother  would  descendants.     Goff"  vs.  Dispeunlt,  33 

have  been  living  at  the  death  of  lii,?  O.  C.  C.  234;  23  Dec.  66G:  20  N.  P. 

parent,  the  estate  would  then  hnve  666,   where   an   ancestor   dies   seized 

been    divided    into  two   equal   part=!.  of  nonancestral    real   estate   leaving 

the  livincr  brother  receiving  one  imrt  as  next  of  kin.  nephews  and  nieces, 

and  the  children  of  tlie  riead  brother  the  inheritance  descends  per  capita 

,  the  other.     S'ee  next  section.     Ewers  to  nephews  and  nieces,  the  issue  of 

vs.  Foil  in.  fl  O.  S.  326.  one  deceasefl  takes  a  share  by  repre- 

57  S  8582  G.  C.  Rcntation.     Treat  vs.   Bessey,  35   O. 
Th's    anrl    the    preceding    section  C.  C.  366. 

would    apply    to    personal    property 


§  928  DESCENT    AND    DISTRIBUTION      *  842 

§  928.  Advancements  by  intestate  to  be  considered  as  part 
of  estate.  "If  any  estate,  real  or  personal,  has  l)eeu  given 
by  an  intestate  in  his  lifetime  as  an  advancement  to  any  child 
or  children  of  his,  or  their  descendants,  it  must  be  considered  a 
part  of  the  estate  of  the  intestate,  so  far  as  it  regards  the  division 
and  distribution  thereof  among  his  children  or  their  descendants, 
and  be  taken  by  such  child  or  children  or  their  descendants 
toward  his  or  her  share  of  the  estate."     [R.  S.  §  4169.]'^'* 

§  929.    Definition,  etc.* 

An  advancement  is  a  gift  by  a  person  to  a  presumptive  heir 
of  certain  property  with  the  intention  that  the  value  of  such 
property  shall  be  deducted  from  the  portion  that  such  pre- 
sumptive heir  would  otherwise  be  entitled  to  receive  out  of  such 
person's  estate  after  such  person  was  deceased.  The  statute  ap- 
plies to  both  real  and  personal  property  and  limits  its  applica- 
tion to  the  case  of  an  intestate.  The  reason  for  this  is  that  a 
person  dying  testate  and  having  provided  for  the  disposition  of 
his  estate  after  his  death,  is  presumed  to  have  had  in  mind  the 
claims  upon  his  bounty  of  those  to  whom  he  leaves  legacies,  as 
well  as  of  those  whom  he  excludes ;  "^  and  all  advancements 
made  by  a  testator  prior  to  the  making  of  the  will,  and  not  re- 

*Cited  and  quoted  from  Fisher  vs.  (K.S.)     125;     15    Dec.    576     (1005), 

Fisher,    11    C.    C.     (N.S.)     375;    af-  In  this  case  it  is  held  that  creditors 

firmed,   without  report    (80   0.   S.),  can  not  acquire   a   prior   lien   on   a 

30  0.   C.   C.   607.  child's  share  until  his  advancement 

60  §  8585  G.  C.  has  been  deducted  from  such  share. 
The  law  presumes  in  the  absence  As  between  parent  and  child,  a  deed 

of    an    expressed    intention    to    the  of  gift  from  the  former  is  presumed 

contrary,    that    a    person's    children  to  be  an  advancement.     Cowden  vs. 

are   alike   in   his   affection   and   are  Cowden,  7  C.  C.   (N.S.)  277;   18  Cir. 

entitled  to  receive  an  equal  portion  D.  71,  and  28   0.  C.  C.  71. 

of  his  estate.      With   this   object  in  A  debtor  heir  who  claims  a  share 

view,  the  above  section  was  enacted  of  the  estate  must  account  to  it  for 

into  law,  and  in  order  to  accomplish  advancements    by    him    received,    al- 

this  purpose  should  be  so  construed.  though  some  are  evidenced  by  notes 

In    partition    of    lands    of    a    de-  that    are   barred   by    the    statute   of 

ceased's  farm  among  his  children,  a  limitations.      No    interest    is    calcu- 

child      receiving      an      advancement  lated  after  the  death  of  the  ancestor, 

should    be    charged   with    the    same.  Tobias     vs.     Ricluirdson,     5     C.     C. 

Parsons  vs.  Parsons,  52  0.  S.  470.  (N".,S.)   74;  26  0.  C.  C.  81;  affirmed 

iSee    §  1065,    Absent    child— wills.  72  0.  S.  626. 

§  760,  Set-off  against  heirs.  The  law  of  advancements  can  only 

61  Woerner  on  Admin.    1215.  ^Ppl.Y  where  decedent  died  intestate. 
The     doctrine     of     advancements  In  re  Bullock,  15  Dec.  783;  reversed 

does    not    apply    to    collateral    rela-  3  N.  P.   (X.S.)    190;  SOB.  160. 
tives.     Waldron  vs.  Taylor,  45  S.  E.  Advancements   made   by   a   father 

336    (1913).  '  to  his  daughter  are  gifts  if) ^rr  t^ji'os, 

See  interesting  article  in  58   Cen.  and  when  actually  delivered  can  not 

L.  J.  42,  on  "Tlie  conversion  of  the  be    recovered    back,    and    parol    evi- 

debt  of  a  child  into  an  advancement  dence  is  admissible  to  show  that  it 

by  the  parent."  was    an    advancement.      JSIartin    vs. 

"Defined  in  Dow  vs.  Dow,  3  N.  P.  Scudder,   14   Dec.   283. 


843  ADVANCEMENTS  §  930 

ferred  to  therein,  cannot  be  reckoned  against  the  donee,  al- 
though tliey  would  have  been  deducted  if  there  had  been  no 
will ;  nor  can  parol  evidence  be  received  to  show  that  the  contrary- 
was  intended.''" 

A  testator  may,  h-owever,  provide  that  his  estate  shall  descend 
as  if  he  had  died  intestate,  in  which  case  advancements  are  to  be 
reckoned  as  if  there  were  no  will.  The  gift,  in  order  to  consti- 
tute an  advancement,  must  be  irrevocable,''^  divesting  entirely  all 
of  the  ancestor's  interest,*'*  and  forming  no  part  of  the  property 
to  be  administered ;  "^  hence,  the  donee  can  in  no  case  be  com- 
pelled to  refund  what  he  has  received.'"' 

The  statute  does  not  apply  to  unintentional  intestacy."^  But 
the  fact  that  there  is  a  partial  disposition  of  the  estate  will  not 
prevent  the  statute  applying  to  the  property  of  which  the  person 
died  intestate."® 

An  oral  advancement  of  real  estate  is  ineffectual  notwith- 
standing the  grantor's  intent,  by  reason  of  the  statute  of  frauds.'® 

§  930.     What  constitutes  an  advancement. 

Whether  a  gift  or  conveyance  is  to  be  regarded  as  an  ad- 
vancement is  to  be  determined  by  the  donor  at  the  time  the 
gift  is  made.  A  person  may  convey  property  to  a  presumptive 
heir  which  may  result,  as  to  the  rights  of  such  heir,  in  three  dif- 
ferent ways.     First,  he  may  make  an  outright  gift  to  the  heir, 

62 /ji  re  Lyon,  70  Iowa,  375.  163;  ^Manning  vs.  Planning,  12  Rich. 

Recitals  in  a  will  of  certain  ad-  Eq.  410. 
vanccnients  to  certain  children,  sr.  Miller's  Will,  73  Iowa,  118, 
which  are  to  be  deducted  from  their  per  Bradley,  J.,  in  Ritch  vs.  Haw- 
shares,  can  hot  be  disproved  by  the  hurst,  114  N.  Y.  512;  Black  vs. 
children  either  as  to  the  fact  of  any  Whitall,  9  N.  J.  Eq.  572;  Barrett 
advancement  or  their  amount.  vs.  Morriss,  33  Gratt.  273;  Metcalfe 
Farmer  vs.  Cope,  37  Bull.  132  vs.  Colles,  43  N.  J.  Eq.  148. 
(Supr.   Ct.,   not  rep.).  6g  Marston  vs.  Lord,  65  N.  H.  4; 

63  Herkimer    vs.     McGregor,     126  Woerner  on  Admin.  1214. 

Ind.  247;   Harly  vs.  Harly,  57  Md.  Dow  vs.  Dow,  3  N.  P.  (N.S.)   125; 

340;    Dugan    vs.    Gittings,    3    Gill.  15    Dec.    576.      A    child    may    sell 


TOO      nT-11     )      A          1     oi     Ti       04.  property    received    as    an    advance- 

138;    Miller's    Appeal,    31    Pa.    St.  ^^^^ 

337;    Fellows  vs.  Little,   46  N.   H.  67  Needles  vs.  Needles,  7  0.  S.  432. 

27;  Darne  vs.  Lloyd,  82  Va.  859.  es  Dittoe  vs.  Cluney,  22  0.  S.  436. 

„       .,^          m    T    1  69  Williams  vs.  Nears,  2  Dis.  604. 

64  Joyce   vs.    Hamilton,    111    ind.  g^^  ademption  of  legacies,  §685. 


§930 


ADVANCEMENTS 


844 


in  whicli  case  the  heir  is  to  be  held  to  no  accountability  whatever 
for  the  same,  except  to  creditors  of  the  intestate  where  the  es* 
tate  is  insolvent.  Secondly,  property  may  be  loaned  to  the 
heir,  in  which  case  the  heir  is  held  bound  to  repay  the  same  in 
full,  no  matter  what  his  portion  of  the  estate  may  be,  and  our 
Court  has  held  tliat  sums  voluntarily  paid  by  an  ancestor  for  the 
heir,  "  as  where  he  was  surety  for  the  latter,"  are  not  advance- 
ments, but  debts,  and  as  such  are  entitled  to  be  off-set  against 
any  claim  that  the  heir  may  have  against  the  estate.^"  And  the 
third  way  in  which  an  ancestor  may  convey  property  to  an  heir 
is  by  the  method  under  discussion,  to-wit,  by  advancement.  In 
such  a  case  the  heir  is  not  bound  to  return  to  the  estate  any 
portion  he  has  received,  but  he  is  not  entitled  to  receive  any  from 
the  estate  until  his  portion  exceeds  the  amount  he  has  already 
received.  Such  advancement  is  not  tO'  be  considered  as  an  asset 
of  the  estate,  but  in  order  to  determine  the  portion  coming  to 
each  heir,  it  is  to  be  added  to  the  amount  to  be  distributed. 
Thus  if  a  person  die  intestate,  leaving  four  children,  and  an 
estate  amounting  to  three  tliousand  dollars,  having  made  an 
advancement  of  one  thousand  to  one  of  his  children.  For  the 
purpose  of  calculating  the  portion  coming  to  each  child,  his 
estate  would  be  considered  as  of  the  value  of  four  thousand  dol- 
lars, one-fourth  of  which,  to-wit,  one  thousand  dollars,  would  be 
the  portion  of  each  child.  The  administrator  or  executor  is  not 
entitled  to  charge  commission  on  an  advancement.'^ 

A  purchase  in  a  child's  name  is  presimiably  an  advance- 
ment.^^    But  such  presumption  can  always  be  rebutted.^^ 

On  the  question  of  whether  a  deed  from  father  to  son  was  an 


70  Keever  vs.  Hunter,  C2  0.  S. 
616. 

'■i  Woerner  on  Admin.   1168. 

72  Myers  vs.  Warner,  18  0.  519; 
Creed  vs.  Bank,  1  0.  ,S.  1 ;  Vanzant 
vs.   Davies,   6  O.   S.  52.- 

73  Intention  must  determine 
whether  a  transfer  is  a  gift,  debt, 
or  advancement.  If  in  a  partition 
case  a  deduction  from  an  heir's 
share  is  demanded  by  reason  of  ad- 
vancements,   and    the    only   proof   is 


decedent's  account  book,  charging 
payments  for  the  heir  and  credits 
of  payments  by  him,  this  is  prima 
facie  a  debt  only,  and  can  not  in 
such  proceeding  be  deducted.  Fels 
vs.  Fels,  1  C.  C.  420;  1  C.  D.  235. 
In  the  case  of  a  gift  from  a  child 
to  a  parent,  undue  influence  may  be 
inferred  from  the  relation  of  the 
parties,  but  never  when  the  gift  is 
from  the  parent  to  the  child.  Mc- 
Adams  vs.   McAdams,   8   0.   S.   244. 


845  HOW  PROVEN  §  931 

advancemeoit,  or  for  a  consideration  still  due,  the  relation  of  the 
parties  and  tlie  circumstances. of  the  father  are  relevant/* 

A  gift  to  a  son-in-law,  intended  as  an  advancement  to  tlie 
daughter,  would  be  charged  against  her  if  she,  knov^dng  the  in- 
tention of  the  gift,  acquiesced  therein/^  But  a  conveyance  to 
a  son-in-law  to  advance  him  in  life,  in  consideration  of  love  and 
affection  for  the  daughter,  creates  no  trust  in  favor  of  the 
daughter.^® 

Delivering  money  to  a  daughter  to  build  a  home,  she  to  pay 
interest  during  her  parent's  life,  and  to  own  the  principal  at  his 
death,  is  not  an  advancement.^^ 

§  931.    How  proven. 

There  is  no  statutory  provision  in  our  State  providing  spe- 
cifically ho'w  an  advancement  shall  be  shown,  and  therefore  the 
general  rules  of  evidence  as  to  such  matters  would  be  applicable, 
and  the  declaration  of  the  grantor  at  the  time  of  making  the 
advancement  as  a  part  of  the  res  gesta  would  be  admissible; 
and  as  a  declaration  against  interest,  the  admission  of  the  person 
receiving  the  advancement  would  be  competent.  Book  entries 
made,  or  caused  to  be  made,  by  the  father,  although  the  child 

T4  Harrison  vs.  Castner,   11  0.  S.  against   the   husband.      Stayner    vs. 

339,   346.  Bower,  42  0.  S.  314. 

A    father    conveyed    land    to    his  "  Medill  vs.   Fitzgerald.   15  C.  C. 

son,  and  for  part  of  the  price  took  415;    8   C.   D.   129.     Where  a   dece- 

.    ,      ,,  -D      •     J      j;    +V,  dent,  at  his  death,  holds  promissory 

a    receipt,    tnus;      Received    or    the  ,'         ,  '  i.   i    t 

,  ,,        f.,'  ^       ,,  .,,      ,  notes   and   a   mortgage   executed    co 

father    $1,000    for    the    use    without  j^.^^   ,,^^  ^^.^   daughter   and  her   hus- 

interest  received   by   me,   signed  by  ^.^^^^^  \^^  ^^.jgj.  ^^  establish  a  claim 

the  son.     Held,  not  an  advancement,  that  the   money  for  which  such  in- 

but  payable  to  the  father  when  re-  struments  were  given  was  a  gift  to 

quired.     Overholser   vs.    Wright,    17  the    daughter    by    way    of    advanee- 

0.   S.    157.  ment  or  otherwise,  the  evidence  must 

T5  Dittoe  vs.  Cluney,  22  0.  S.  436.  '^e  clear  and  convincing.     Medill  vs. 

ToTliompson  vs.  Thompson,   18  O.  I^tzgerald,    15    C.    C.    415;    8    C.   D. 

^-  '  ^-  See  Tobias  vs.  Richardson,  5  C.  C. 

If    the    husband    of    an    heir    re-  ^j^g^    74.   ge  C.  C.    (1904),  as  to 

ceives  from  her  father  property  as  ^^5,^^  a  note  may  be  treated  as  an 

an    advancement,    she    may    compel  advancement. 

the    father's    administrator    to    pay  Parol    evidence    is  not   competent 

'her    share    in    full    or    may    collect  to      show      that      an      advancement 

from  lier  husband.     If  siie  elects  to  charged  in  a  book  of  advancements, 

take  the  former  remedy,  the  admin-  ^':f^^"°*  ™^^^-  Younees  vs.  Flory. 
istrator  is  subrogated  to  her  claim 


77  0.  S.  71. 


§932 


ADVANCEMENTS 


846 


charged  had  no  knowledge  thereof,  and  contemporaneous  memo- 
randum and  book  accounts  are  admissable.'^ 

The  relation  of  the  parties  may  be  sho\vn,  and  whatever  tends 
to  show  the  true  purpose  of  the  act,  and  the  grantor's  family 
relation,  property  relation,  and  other  matters,  may  be  given  in 
evidence  where  the  same  will  tend  to  throw  light  on  the  nature 
of  the  transaction.  It  will  be  competent  for  the  child  to  show 
that  the  charges  made  for  claims  have  been  by  him  repaid. 
But  a  declaration  made  by  a  parent  in  tji©  absence  of  the  child, 
and  not  agreed  to  by  the  latter  or  communicated  to  him,  must 
be  excluded.  But  if  made  in  the  presence  of  the  child  and  not 
controverted,  they  are  competent.''^ 

Where  in  a  will  a  certain  gift  is  stated  to  be  an  advancement^ 
no  evidence  is  competent  to  disprove  such  a  fact.*° 

In  the  absence  of  evidence  shomng  testator's  intention,  prop- 
erty conveyed  by  him  as  a  pennanent  provision  for  donee,  is 
regarded  as  an  advancement.  But  gifts  of  small  sums  to  donor's 
children,  to  be  used  for  actual  support  and  maintenance,  will 
not  be  regarded  as  an  advancement  in  the  absence  of  evidenc») 
of  testator's  intention.®^ 

§  932.  When  advancement  is  greater  or  less  than  heir's 
share.  "If  the  amount  of  such  advancement  equals  or  exceeds 
the  share  of  the  heir  to  whom  it  M'as  made,  he  shall  be  excluded 


78  Woerner  on  Admin.  1222.  See 
Construction  of  wills. 

79  Woerner,  Admin.  1223. 

Gifts  of  property  by  a  parent  to 
his  children  in  such  proportions  as 
they,  considering  their  states  of 
health  and  the  circumstances  of  each 
seemed  to  need,  if  not  designed  by 
him  as  advancements,  will  not  be 
so  treated,  although  his  entire  ob- 
ject fails  by  the  refusal  of  one  to 
accept.  Burbeck  vs.  Spollen,  10  Rec. 
491. 

Where  a  father  having  an  equita- 
ble right  to  land  causes  the  deed  to 
be  made  to  his  son,  the  father's  ex- 
ecutors, claiming  the  land,  may  in 
order  to  rebut  the  presumption  of 
an    advancement    or    gift,    put    the 


deed  in  evidence  wherein  the  son  i»» 
called  trustee,  and  may  show  tho 
father's  prior  declarations  and  in- 
structions that  it  was  to  be  made  to 
the  son  in  trust  for  the  father. 
Paddock  vs.  Adams,  56  0.  S.  242. 

80  Farmer  vs.  Cope,  37  Bull.  132. 

An  allegation  that  deceased  ad- 
vanced to  H.  B.,  husband  of  M.  B., 
his  daugter,  is  not  an  allegation  of 
an  advancement  to  his  daughter  and 
heir-at-law.  Boyer  vs.  Boyer,  7  Dee. 
525;  7  N.  P.  153. 

81  Carmichael  vs.  Lathrop,  112 
Mich.  301;  Page  on  Wills,  935,  S 
788. 

See  §  934,  When  stated  in  deed, 
etc. 


847  WHOLLY  IN   REAL  OR  PERSONAL  ESTATE  §  933 

from  any  further  part  in  the  division  or  distribution  of  the 
estate,  but  not  be  required  to  refund  any  of  such  advancement. 
If  the  amount  so  advanced  is  less  than  his  full  share,  he  will  be 
entitled  to  as  much  more  as  will  give  him  his  full  share  of  the 
estate."     [K.  S.  §4170.]^' 

§  933.    When  advancement  is  wholly  real  or  personal  estate. 

"If  such  advancement  is  made  in  real  estate,  the  value  thereof 
must  be  considered  and  taken  as  a  part  of  the  real  estate  to  be 
divided;  if  in  money  or  other  personal  estate  as  a  part  of  the 
personal  estate  to  be  distributed.  In  either  case,  if  it  exceeds 
the  share  of  the  real  or  personal  estate  that  would  have  come  to 
the  heir  to  whom  the  advancement  was  made,  he  need  not  refund 
any  part  of  it,  but  shall  receive  so  much  less  out  of  the  other 
part  of  the  estate  as  will  make  his  whole  share  equal,  as  near  as 
can  be  estimated,  to  that  of  either  of  the  other  heirs  who  are  in 
the  same  degree  of  consanguinity  with  him."     [R.  S.  §  4171.]^^ 

§  934.    When  value  of  advancement  expressed  in  deed,  etc. 

"If  the  value  of  the  estate,  real  or  personal,  so  advanced,  is  ex- 
pressed in  the  deed  of  conveyance,  or  in  the  charge  thereof, 
made  by  the  intestate,  or  in  the  receipt  in  writing,  given  by  the 
person  receiving  the  advancement,  it  must  be  considered  of 
that  value,  in  the  division  and  distribution  of  the  estate,  other- 
wise, at  its  estimated  value  when  advanced."     [R.  S.  §4172.]** 

The  latter  part  of  the  above  section  places  in  statutory  form 
the  rule  which  prevails  in  the  absence  of  statute.^^  Of  course, 
as  the  gift  is  irrevocable,  the  donee  is  not  chargeable  with  any 
interest,  or  for  any  increase  in  the  advancement,  unless  ex- 
pressly given  on  such  terms ;  and  if  the  advancements  are  made 


82  §  8586  G.  C.  8*  §  8588  G.  C. 

See  Moore  vs.  Freeman,  50  O.  S.  85  Woerner  Administration  1222. 

592,      A    debtor    heir,    who    makes  If  the  heir  transfers  his  interest, 

claim   tor   distribution,   is    required  ' 

to  account  to  the  estate  for  the  debt  ^^^   grantee    will   take    the    interest 

he  owes.    Lockwood  vs.  VVitlesly,  23  the  heir  would  have  taken  had  the 

cFo   ^     '.F'J,   ^*^"  same  not  been  transferred,  and  the 

»3  §  8587  G.  C.  1            1 1          1     T  .,      •   . 

By  virtue  of  §  4171  R.  S.,  an  ad-  ^^""^  ™^«  '^""^^  ^PP^^  '^  *'^^  ^^t^'" 

vancement  is   first  to  be  taken  out  est  of  the  heir  was  attached.     Dow 

of    the    same    kind    of    property    in  vs,   Dow,   3    N.   P.    (N.S.)     125;    15 

which    it    was    given.      But    in    all  y>cc.  576. 
cases    tlie    full    amount   of   the    ad- 
vancement is  to  be  charged  to  the 
heir.     Reeves  vs.  Hunter,  62  O.  S. 
619. 


5  935 


DESCENT    AND    DISTRIBUTION 


848 


by  will,  and  the  will  states  that  they  are  of  a  certain  sum,  such 
sum  as  fixed  by  the  will  must  be  taken  to  be  the  value  of  the 
advancement.^^ 

§  935.    Heirs  of  aliens  may  inherit ;  aliens  may  hold  lands. 

"No  person  who  is  capable  of  inheriting  shall  be  deprived  of  the 
inheritance  by  reason  of  any  of  his  ancestors  having  been  aliens. 
Aliens  may  hold,  possess  and  enjoy  lands,  tenements,  and  here- 
ditaments, within  this  state,  either  by  descent,  devise,  gift,  or 
purchase,  as  fully  and  completely  as  any  citizen  of  the  United 
States  or  this  state  can  do."     [R.  S.  §  4173.] «^ 

§  936.  Capability  of  bastards  as  to  inheritance.  "Bastards 
shall  be  capable  of  inheriting  or  transmitting  inheritance  from 
and  to  the  mother,  and  from  and  to  those  from  whom  she  may 
inherit,  or  to  whom  she  may  transmit  inheritance,  in  like  man- 
ner as  if  born  in  lawful  wedlock."     [R.  S.  §  4174.] ^^ 


§  937.     When  illegitimate  children  deemed  legitimate,  etc. 

""When,  by  a  woman  a  man  has  one  or  more  children,  and  after- 
ward intermarries  with  her,  such  issue,  if  acknowledged  by  him 
as  his  child  or  children,  will  be  legitimate.  The  issue  of  parents 
whose  marriage  is  null  in  law,  shall  nevertheless  be  legitimate." 
[R.  S.  §4175.]«9 


86  Farmer  vs.  Cope,  37  Bull.  132. 
See  Page  on  Wills,  935. 

87  §8589  G.  C. 

This  section  removes  all  dis- 
abilities of  aliens  as  to  inheritance. 
Ky.  vs.  Naylor,  73  O.  S.  115. 

88  §  8590  G.  €. 

Under  previous  laws  it  was  held, 
that  bastard's  estate  did  not  pass 
maternal  line  and  gave  no  right  to 
inherit  from  mother's  relatives. 
But  under  the  above  provision  it 
would  seem  that  so  far  as  through 
the  mother,  the  bastard  would  be  in 
tlie  same  position  as  a  legitimate 
child.  The  following  are  cases  con- 
struing the  former  acts:  Little  vs. 
Lake,  8  0.  289;  Lewis  vs.  Eutsler, 
4  0.  S.  354;  Gibson  vs.,  McNeely,  11 
O.  S.  131;  Hawkins  vs.  Jones,  19  0. 
S.  22;  Bruner  vs.  Briggs,  39  O.  S. 
478. 

89  §  8591  G.  C. 

Again  the  language  of  the  statute 
is  too  clear  to  require  construction: 
"When  a  man  has  by  a  woman  one 
or    more   children,    and    afterwards 


intermarries  with  her,"  etc.  A 
"man"  means  any  man,  and  a 
"woman"  means  any  woman.  There 
are  no  exceptions.  If  he  is  a  man 
and  she  is  a  woman,  no  matter  what 
their  previous  lives  may  have  been, 
they  come  within  the  language  of 
the  statute,  and  when  legally  mar- 
ried and  the  former  issue  acknowl- 
edged by  him  as  his  child,  such  issue 
becomes  thereby  legitimated,  even 
though  it  is  an  adulterine  bastard. 
(Ives  vs.  McNicoll,  59  0.  S.  402.) 
This  case  is  also  reported  in  thp 
Circuit  Court  (12  C.  C.  297;  5  C. 
D.  555),  and  in  the  Court  of  Com- 
mon Pleas   (3  N.  P.  6;  4  Dec.  75). 

And  a  person  legitimized  in  the 
manner  provided  by  statute  is  the 
lawful  issue  of  his  parent  and  en- 
titled to  take  under  a  devise  "to 
the  heirs  of  his  father's  body." 
Kniffin  vs.  Schaffer,  12  C.  C.  753; 
4  C.  D.  62. 

See  Miller  vs.  Anderson,  43  O.  S. 
473;  Wright  vs.  Love,  12  0.  619; 
LaRoche  vs.  LaRoche,  29  O.  C.  A. 
113. 


849  WIDOW 'S  SHARE  §  938 

§  938.  Amount  of  personal  estate  to  which  a  widow  or  wid- 
ower is  entitled  upon  distribution.  "When  a  person  dies  in- 
testate and  leaves  no  children  or  their  legal  representatives,  the 
widow  or  widower,  as  next  of  kin,  will  be  entitled  to  all  the 
personal  property  which  is  subject  to  distribution  upon  settle- 
ment of  the  estate.  If  the  intestate  leaves  any  children  or  their 
legal  representatives,  the  widow  or  widower  will  be  entitled  to 
one-half  of  the  first  four  hundred  dollars  and  to  one-third  of 
the  remainder  of  the  personal  property  subject  to  distribution." 
[R.  S.  §4176.]  9° 

§  939.    Comments. 

It  will  be  observed  that  the  above  section  provides  for  that 
portion  which  is  to  be  distributed  to  the  surviving  consort.  It 
does  not  therefore  include  any  part  of  the  assets  of  the  deceased 
which  are  set  apart  to  the  widow  by  the  appraisers  of  the  per- 
sonal estate  of  the  husband.^^  This  right  to  a  share  of  the  estate 
on  distribution,  I  have  no  doubt,  could  be  relinquished  by  the 
widow  or  widower  by  either  an  ante-nuptial  or  post-nuptial 
contract,^^^  provided  that  it  was  shown  clearly  to  have  been  the 
intention  of  the  parties  when  the  contract  was  made.^- 

And  it  may  be  stated  as  a  general  rule  that  the  right  to  a  dis- 
tributive share  in  personal  property  may  be  barred  in  the  same 
manner  as  the  right  to  dower  in  the  real  estate,  except  that  as  to 
personal  property  a  man  or  woman  might  defeat  the  right  of  his 
wife  or  her  husband  to  share  in  his  personal  property  by  dis- 
posal of  the  same  during  his  lifetime  either  by  sale  or  valid 

See  §  1887,  Adoption,  etc.  cided.    There  is  a  dissenting  opinion 

90  §  8592  G.  C.     See  §  921.  by  C.  J.  Nichols,  and  it  is  not  im- 
Where   a   husband   sold   land  and       probable  there  will  be  some  legisla- 

on  demand  of  his  wife  he  gave  her  tion  in  the  future  on  the  subject, 

one-third  the  purchase   money,  this  92  Miller  vs.  Miller,  16  O.  S.  527; 

did    not    keep    her    from    receiving  Smith  vs.  Smith,  57  O.  S.  27;  Ward 

her    distributive    share    of   his    per-  vs.  Ward,  63  0.  S.  125. 

sonal   property,   although   such   per-  See    Election    of    widow,     §  1227 

sonal  property  was  the  remainder  of  G.  C,  as  to  right  to  share  in  pro- 

the    purchase    price    of    said    land.  ceeds  of  real  estate,  when  the  same 

Barber  vs.  Hite,  39  0.  S.  185.  is  directed  to  be  sold,  etc. 

The     right    to    such    distributive  A  widow  is  entitled  to   dower  in 

share    accrues    at    the    time    of    the  the  real  estate   and  a  share  of  his 

deatli  of  the  husband  or  wife.    Con-  personal  property  subject  to  distri- 

ger  vs.  Barl<er,  11  0.  S.  1.  bution  when  he  dies  intestate  with- 

See  §  319,  et  seq.,  Widow's  allow-  out  making  provision  for  her  by  his 

ance.  will,    and   when    provision    is    made 

91  See  §  319,  et  seq.  for  her  she  may  elect  to  retain  her 
91a  Recently    the    Supreme    Court  dower   and   not   to   take   under   the 

has  held  that  a  contract  could  not  will;  and  when  she  retains  her  dower 

be  made  between  husband  and  wife  and   distributive   share,   such    share 

•when  they  were  living  to  bar  them-  is    to    be    ascertained    by    regarding 

selves  of  their  dower  rights  or  dis-  the   husband's    estate   as    if    he   had 

tributive  share.     DuBois  vs.  Coven,  died      intestate,     leaving     chilrlren. 

100  0.  S.   17.  Geiffcr  vs.  Bitzer,  80  O.  S.  65 ;  over- 

Whether   they   could   do   so   in   a  ruling  Hutchings  vs.  Davis,  68  O.  S. 

contract    of    separation    is    not    de-  160. 


§  939  DESCENT  AND  DISTRIBUTION  850 

gift.®^  But  a  husband  or  wife  csauld  not,  by  disposing  of  all  of 
his  or  her  personal  property  hy  will,  deprive  the  surviving  con- 
sort of  his  OT  her  distributive  share  of  the  estate.  As  to  such 
surviving  consort.,  the  deceased  would  have  died  intestate.^*  | 

In  such  a  case  the  sui-viving  consort  is  not  required  to  elect,  as 
the  will  makes  no  provision  for  such  consort,®^  as  a  person  may 
die  both  testate  and  intestate.  In  suck  a  case  the  widow  would 
be  entitled  to  her  share  of  the  intestate  property,  although  she 
may  have  elected  to  take  under  the  will.^® 

Where  some  of  the  children  have  received  advancements,  such 
advancements  are  not  to  be  taken  into  consideration  in  determin- 
ing the  amount  to  be  distributed  to  the  widow.  She  is  only 
entitled  to  one-third  of  the  estate  exclusive  of  the  advance- 
ment." 

A  widow's  right  to  distribution,  for  whom  no  provision  is 
made  in  her  husband's  will,  is  just  what  it  would  have  been  had 
her  husband  died  intestate,  and  the  amount  to  be  paid  to  her 
is  ascertained  by  charging  to  the  executor  whatever  amount  he 
is  chargeable  with  under  the  law,  deducting  therefrom  whatever 
he  is  entitled  to  be  credited  with  under  the  law,  and  giving  to 
her  out  of  what  remains  one-half  of  tlie  first  four  kundred  dol- 
lars and  one-third  of  the  balance.  She  is  not  entitled  to  interest 
on  her  distributive  portion  of  the  personal  property  of  the  es- 
tate, until  one  year  after  the  appointment  of  the  executor,  and 
then  until  the  distribution  is  made."® 

»3  A  wife  may  by  gift  causa  mor-  vs.  Rannells,  9  Dec.  503 ;  7  N.  P.  78. 

tis    dispose   of    her   entire   personal  »*  Doyle  vs.  Doyle,  50  0.  S.  330. 

property,    to    the   exclusion    of    her  »5  Doyle  vs.  Doyle,  50  O.  S.  345. 

surviving   husband   who    had   aban-  It  is  intimated  that  a  person  could 

doned  her.     South  vs.  Fair,  41  Bull.  not  give  away  his  property  if  done 

343.  in  fraud  of  the  consort's  rights. 

A  husband  may  by  gift  inter  vivos  See  Smith  vs.  Smith,  57  O.  S.  37. 

of  all  his  property  deprive  his  wife  See     §     1214    et    seq..    Election    ol 

of  any  share  therein  at  his  death,  widow.     See  §  1249,  Gifts  etc. 

although    done  for  the   purpose   of  96  Gardner  vs.  Gardner,  13  0.  S. 

excluding  her  from  inheriting  any-  426. 

thing   from   him    for   his    dominion  97  Young  vs.  Roberts,  7  C.  C.  105; 

over  his  personalty  is  absolute  and  3  C.  D.  685. 

she  is  not  a  quasi  creditor.     Brodt  ^^  In  re  Mary  Hutchins'  Estate, 

21  C.  C.  721;  12  C.  D.  29. 


851 


POSTHUMOUS    CHILD 


940 


§940.      Construction    of    words,     "living"    and    "died." 

"Wlien  in  this  chapter  a  person  is  described  as  living,  it  means 
that  he  was  living  at  the  time  of  the  death  of  the  intestate  from 
whom  the  estate  came,  and  when  a  person  is  described  as  having 
died,   it   means   that   he   died   before   such   intestate."      [R.    S. 

§4178.]«9 

§  941.  Posthumous  child  of  intestate  to  inherit.  "Descend- 
ants of  the  intestate  begotten  before  his  or  her  death,  but  born 
thereafter,  in  all  cases  will  inherit  in  the  same  manner  as  if 
born  in  the  lifetime  of  the  intestate,  and  surviving  him ;  but  in 
no  other  case  can  a  person  inherit,  unless  living  at  the  time  of 
the  death  of  the  intestate."     [R.  S.  §  4179.] i°° 

§  942.    Permanent  lease-hold  to  descend  same  as  estates  in  fee. 

"Permanent  lease-hold  estates,  renewable  forever,  shall  be  sub- 
ject to  the  same  law  of  descent  as  estates  in  fee  are  subject  to 
by  the  provisions  of  this  chapter."     [R.  S.  §  4181.]^°^ 


Where  a  widow's  right  to  dower 
was  dependent  upon  the  proposition 
that  the  lands  left  by  her  husband 
were,  as  to  her,  to  be  treated  as  real 
estate,  notwithstanding  the  fact  that 
as  to  all  others  interested  in  said 
estate  they  were  to  be  treated  as 
converted  into  personalty,  her  claim 
to  distribution  out  of  the  avails  of 
the    sale    of   the   real    estate    based 

!  upon  the  proposition  that  such  lands 
are  to  be  treated  as  to  her,  as  well 
as  to  the  residuaiy  legatees,  as  con- 

i  verted  into  personalty,  is  consistent 
with  the  former,  and  she  must  elect 
which  to  pursue.     Id. 

At  the  law  school  in  Columbus  I 
given  an  interpretation  to  sec.  4076 
with  the  general  practice,  nor  my 
the  first  $400.00,  he  considers  the 
less  $200,  instead  of  less  $400.  That 
distribution.  The  widow  would  get 
According  to  the  general  practice 
%  of  $G00  =  $400.00. 


99  §  8594  G.  C. 

100  §  8595  G.  C. 

See  §  10561  G,  C,  as  to  rights  of 
posthumous  child  under  will. 
§  10G2,  as  to  how  an  heir  may  be 
designated;  see  chapter  on  adoption, 
§  1887,  et  seq. 

101  §  8597  G.  O. 

There  may  be  several  distinct 
tenements  in  the  same  building  un- 
der the  same  roof,  as  well  where  one 
is  over  the  other,  as  where  one  is 
beside  the  other.  Cin.  College  vs. 
Yeatman,  30  O.  S.  276. 

See  §  949,  Dower. 


am  informed  Prof.  Kinkeed  has 
R.  S.  (938)  which  is  not  in  accord 
own  idea.  After  taking  one  half  of 
remainder  to  mean  the  entire  fund 
is,  suppose  there  is  $1,000.00  for 
1/2  of  $400  +  1/3  of  $800  =  $466.66. 
the  widow  would  get  %  of  $400  + 


§943 


DOWEK 


852 


CHAPTER  LI. 

DOWEE. 


^  943  Nature.     Definition,   etc. 

^  944  Of    what    estate    a    widow    or 

.    widower   endowed. 
1 944a  Mansion   house,   etc. 

945  Widow  or  wudower. 

946  Relinquished. 

947  How  barred. 

948  Death  of  a  consort. 

949  To    what   property    the   right 

attaclies. 

950  Value  and   rights  when  lands 

are  sold. 

951  Conveyance  in  lieu  of  dower. 


952  EiTect  of  defective  conveyance 

in  lieu  of  dow'er. 
:  953  Effect  of  eviction  from  prem- 
ises conveyed  in  lieu  of  dow- 
er. 

954  When  person  dwelling  in  adul- 

tery is  barred  of  dower. 

955  Where  lands  are  given  up  by 

fraud. 

956  Dower  is  forfeited  by  waste. 

957  Assignment  of. 

958  Application    for    Court's    ap- 

proval.! 


§  943.     Nature.     Definition,   etc.* 

The  settlement  of  estates  of  deceased  persons,  as  well  as  the 
assignment  of  property  for  the  benefit  of  creditors,  often  neceS' 
sarily  requires  a  knowledge  of  the  law  relating  to  dower.  In 
addition  to  the  method  provided  by  law  in  the  settlement  of 
estates  and  assignments  for  creditors  for  the  setting  apart  of  the 
dower  right,  the  statute  provides  that  an  action  may  be  brought 
in  the  Court  of  Common  Pleas  for  the  assignment  of  the  dower 
right. ^  The  provisions  relating  to  the  assignment  of  a  dower 
right  in  the  Court  of  Common  Plesa  would  not  strictly  oome 
within  the  limits  of  work  on  Probate  Law  and  Practice,  and  is 
therefore  omitted.^ 

Dower  may  be  defined  to  be  the  right  which  the  law  gives  to  a 


1  §  1214,  et  seq.,  Election,  etc., 
under  will.  For  tables  calculating 
dower  interest,  see  chapter  next  to 
index. 

a  Cited  Lape  vs.  Lape,  31  Dec.  192. 

2  §  12005  G.  C. 

3  For  practice  and  form  for  such 


matter  see  Kinkead's  Pleading,  484; 
Bates  PI.  and  Prac,  pp.  150S-1521; 
Whittaker's  Forms,  224. 

See  §  846a,  Dower  and  home- 
stead; §869,  Assignment  of  dower; 
S  1523,  Assignment  of  insane  per- 
son's dower. 


858  NATURE DEFINITION  §  943 

husband  or  wife  in  the  real  estate  of  a  living  or  deceased  con- 
sort. It  is  said  that  its  origin  can  not  be  traced.  At  common 
law,  the  rights  of  a  husband  in  such  property  was  knowm.  as  an 
estate  by  curtesy,  and  the  right  of  tlie  wife  a  dawer  right. 
In  our  State  the  estate  by  curtesy  has  been  abolished,  and  a 
husband  and  wife  now  stand  alike  in  reference  to  their  re- 
spective rights  in  the  real  estate  of  the  other,*  and  the  name  of 
"  dower  "  has  been  designated  as  the  common  name  for  such  a 
right.  With  us  it  is  a  statutory  right  and  does  not  rest  upon 
any  right  of  contract  between  the  parties,  and  is  entirely  subject 
to  legislative  control.^ 

It  is  therefore  within  the  province  of  the  legislature  to  abolish 
this  right  at  any  time.  As  a  rule,  however,  whenever  the  legis- 
lature makes  changes,  it  reser\^es  the  rights  of  persons  whose 
dower  has  become  vested  and  fixed.  A  liberal  construction  is 
to  be  applied  to  the  dower  statutes,  and  it  is  said  that  assign- 
ments by  metes  and  bounds  is  favored.*' 

It  is  generally  held  that  until  the  dower  becomes  fixed  —  that 
is,  until  the  wife  or  husband  has  died  —  that  it  is  not  such  a 
right  that  can  be  sold  or  levied  on,  but  it  may  be  released  to  a 
party  having  the  greater  estate.  It  has  been  a  mooted  question 
whether  dower  after  the  death  of  the  consort  and  before  it  has 
been  assigned  or  set  off  by  metes  and  bounds  can  be  sold  or 
transferred.  The  more  recent  decisions  sustain  the  view  that  it 
can  be-  sold,  but  not  on  execution.'^ 

Of  course,  if  the  wife  or  husband  dies  before  an  action  is 
brought  or  proceedings  had  to  set  apart  the  dower  right,  such 
right  would  fail  and  the  purchaser  would  receive  nothing.* 

Until  the  death  of  a  consort,  the  dower  right  is  spoken  of  as 
inchoate  or  contingent  dower.**  After  the  death  of  the  consort 
it  is  called  vested  or  consummated  dower.     After  the  death  of 

See  §§  12004  to  12025  G.  C,  as  to  7  Bauach  vs.   McCunnell,   7   N.   P. 

statute  for  assignment  of  dower.  387;   5  Dec.   132;    Weyer  vs.  Sager, 

4  MacLaren    vs.    Stone,    18    C,    C.  21  C.  C.  710. 

854;   9  C.  D.  794.  8  Roth's   Estate,   6   N.   P.   498;    9 

B  Weaver  vs.   Gregg,  6  0.   S.   547.  Dec.  429. 

A  dowrcss  takes  by  purchase  and  »*  It  does  not  pass  to  a  trustee  in 

not    by    testament    or    inheritance.  bankruptcy.     In  re  Russell,  14  Fed- 

Kling  vs.  Ballentine,  40  0.   S.   39G.  Dec.  364    (1905). 

sDunseth  vs.  Bank  of  U.  S.    6  0. 
76. 


§943 


DOWER 


854 


the  consort,  when  the  dower  has  been  assigned,  it  may  be  levied 
on  and  sold  under  execution.  But  until  it  is  assigned  it  is  not 
subject  to  a  lien  of  judgment  or  levy,  but  may  be  reached  by  a 
bill  in  equity.'*  Inchoate  dower  is  not  an  estate  within  the 
ordinary  meaning  of  the  term,  but  merely  a  right  which  may 
develop  into  an  estate  by  the  death  of  the  consort.^"  While  it  is 
not  an  estate,  it  is  a  right  capable  of  being  barred  by  estoppel.' 
It  has  a  value  which  must  be  recognized  on  distribution,  hence 
foreclosure  in  the  mortgagor's  lifetime,  dower  must  be  allowed.' 
Likewise  in  setting  aside  a  fraudulent  conveyance  by  a  husband 
in  an  alimony  suit  the  present  value  of  the  contingent  dower  will 
be  awarded  to  her.'^ 


9  Maclaren  vs.  Stone,  18  C.  C.  854; 
9  Dec.  794;  Moore  vs.  Moore,  7  N. 
P.  320;  6  Dec.  154. 

10  In  this  connection  it  is  proper 
to  remarlv  that,  although  dower  in- 
choate is  not  an  estate,  neverthe- 
less, it  is  a  right  or  interest  in  the 
land,  created  by  the  law  for  the 
wife's  benefit,  and  vested  in  her.  It 
is  a  legal  right,  contingent,  it  is 
true,  upon  her  husband's  death,  as 
to  whether  it  will  ripen  into  a  right, 
in  her,  to  have  it  assigned,  and  to 
enter  upon  its  enjoyment,  but  not 
otherwise  uncertain.  It  is  a  right 
valuable  to  the  wife,  and  valuable 
in  respect  to  the  estate.  Its  exist- 
ence diminishes,  while  its  extin- 
guishment enhances  the  value  of  the 
inheritance.  Having  once  attached 
by  the  concurrence  of  seizin  of  the 
inheritance  in  the  husband  and 
coverture,  its  continued  existence 
does  not  depend  upon  the  continu- 
ance of  the  husband's  seizin.  His 
alienation  does  not  impair  the  right. 
It  is  inseparable  from  the  inherit- 
ance, and  attends  it  to  whomsoever 
it  may  pass  until  discharged  by  her 
own  deed,  or  in  some  other  statu- 
tory mode.  And  while  admitting 
that  dower  inchoate  is  not  an  estate, 
yet  it  may  also  be  said  that,  strictly 
speaking,  neither  is  dower,  the  title 
to  which  has   become    consummate, 


until  after  it  is  assigned  in  the 
land. 

White,  J.,  in  McArthur  vs.  Frank- 
lin,   16    0.    S.    193. 

A  widow's  unassigned  right  maj 
be  made  subject  to  the  payment  o{ 
her  debts,  created  after  her  hus- 
band's death,  Boltz  vs.  Stotz,  41  0. 
S.   540. 

In  re  Russell,  14  Fed.  Dec.  '6Q4 
(1905), 

The  inchoate  dower  of  the  wife 
is  not  a  lien  upon  the  land;  it  is 
an  interest  in  the  land  of  the  hus- 
band. And  she  is  not  barred,  if 
made  a  party  defendant  in  a  fore- 
closure, unless  her  rights  are  pro- 
tected. Jewett  vs.  Feldheiser,  6{ 
0.  S.  523. 

11  Rosenthal  vs.  ]\Iayhugh,  33  0, 
S.   155. 

12  Sprague  vs;  Law,  7  N.  P.  554; 
5  Dec.  484;  Aff.  17  C.  C.  735;  8  G 
D.  428. 

See  German  Bank  vs.  Guthrie, 
N.  P.  311;   3  Dec.  686. 

13  Tate  vs.  Tate,  19  C.  C.  532;   lOH 
C.   D.   321. 

As  to  the  calculation  of  contin- 
gent dower,  see  chapter  next  to  ia 
dex. 

See  §§846,   834,   1601. 

If  the  wife  join  a  mortgage^  smi 
the  husband,  without  the  wife  join 
ing,   afterwards  conveys  his  equil^ 


855 


WIDOW  OR  WIDOWER  §  944 


Where  a  dower  interest  has  been  allowed  in  proceeds  of  a  sale 
of  lands,  and  the  same  is  held  by  the  administrator,  together 
with  the  remaining  proceeds,  such  dower  interest  is  entitled  to 
its  own  earnings  in  the  way  of  interest,  etc." 

S  944.  Of  what  estates  a  widow  or  widower  endowed.  ' '  ^ 
widow  or  widower  who  has  not  relinquished  or  been  barred  of 
it,  shall  be  endowed  of  an  estate  for  life  in  one-third  of  all  \h^^ 
real  property  of  which  the  deceased  consort  was  seized  as  an 
estate  of  inheritance  at  any  time  during  the  marriage,  in  one- 
third  of  all  the  real  property  of  which  the  deceased  consort,  at 
decease,  held  the  fee  simple  in  reversion  or  remainder,  and  in 
one-third  of  all  the  title  or  interest  that  the  deceased  consort 
had,  at  decease,  in  any  real  property  held  by  article,  bond,  or 
other  evidence  of  claim."     [R.  S.  §4188.]^^ 

§  944a.  Mansion  house,  etc.  "The  widow  or  widower  may 
remain  in  the  mansion  house  of  the  deceased  consort,  free  of 
charge,  for  one  year,  if  dower  is  not  sooner  assigned.  Dower 
shall  not  be  assigned  to  a  widow  or  widower  in  real  property 
of  which  the  deceased  consort,  at  decease,  held  the  fee  simple 
in  reversion  or  remainder,  until  the  termination  of  the  prior 
estate."     [R.  S.  §4188.]!^* 

§  945.     Widow  or  widower. 

The  first  requisite  in  the  above  section  as  to  the  right  of 
dower  is  that  the  person  claiming  the  same  must  be  a  widow  or 
widower.  This  implies  that  at  some  time  there  was  a  valid 
marriage  relation.  The  first  essential,  then,  in  ascertaining  the 
existence  of  a  dower  right  would  be  to  determine  the  facb  that 
the  claimant  had  been  legally  married  to  the  deceased.  It  would 
not  necessarily  mean  a  marriage  according  to  the  forms  of  law, 

of  redemption  to  the  mortgagee,  the  lease  is  governed  by  the  law  of  the 

wife  is  not  entitled  to  dower.    Dural  place  where   the   contract   is    made. 

vs.  Febiger,   1   C.  S.  C.  R.  269.  Sell  vs.  Miller,  11  O.  S.  331. 

But  a  widow  is  not  barred  of  her  i*  In  re  Geo.  W.  Arnold  Est.,  47 

equity   of   redemption,   unless   made  Bull.   616. 

a  party  to  a  suit  of  foreclosure,  etc.  See  §  128S,  Income  And  principals. 

McArtliur    vs.    Franklin,    15    O.    S.  is  §  8606  G.  C. 

485.  There    can    be    neitlier    dower    or 

When   land    is   mortcraged   by   tlie  curtesy  unless  the  deceased  consort 

husband  and  the  condition  is  broken  bad,    at    his    death,    tlie    right    of 

before  marriage,   and   the  equity  of  possession.     Landis  vs.  Marsh,  32  0. 

redemption  is  released  during  cover-  C.  C.  3!)!). 

'ture,   the   widow   is   not   entitled    to  15*  §  ,S607  G.  C. 

dower.      l!ands   vs.    Kendall,    15    O.  As    to    widow's    quarantine,    see 

671.  §  319  et  spq.,  and  widow's  allowance. 

A  contract  in  reference  to  dower  Stee  Rent  of  mansion  house,  372. 
and  tlie  capacity  of  the  wife  to  re- 


§  945  DOWER  856 

but  a  common  law  marriage  might  answer  as  well/®  But  if  the 
marriage  was  void,  for  instance,  if  the  husband  had  another  vriie 
at  the  time  of  the  marriage,  the  second  wife,  though  innocent^ 
would  acquire  no  right  to  dower/^ 

There  may  be  instances  in  which  a  husband  or  wife  might  die, 
leaving  two  or  more  persons  who  would  be  entitled  to  dower  in 
the  real  estate.  Thus,  if  a:  wife  secured  a  divorce  from  the  hus- 
band by  reason  of  his  aggression,  she  would  be  entitled  to  dower, 
unless  provided  in  the  decree  otherwise,  in  all  the  real  estate  on 
which  her  husband  was  seized  at  any  time  during  the  coverture/* 

If  such  party  remarrj^,  the  second  wife  would  be  entitled  to 
dower  in  all  the  real  estate  which  her  husband  acquired  or  held 
during  her  coverture/** 

An  interesting  case  in  assignment  of  dower  is  that  of  King 
vs.  King.""  In  this  case  King  received  by  inheritance  from  his 
father  fifty-four  acres.  Out  of  this  fifty -four  acres,  twenty-nine 
acres  was-  assigned  as  dower  to  his  mother,  leaving  twenty-five 
acres  in  which  no  dower  was  assigned.  King  married  and 
afterwards  a  divorce  was  secured  from  him  by  reason  of  his  ag- 
gression. He  then  remarried  and  died,  thus  making  a  case 
where  three  widows  were  entitled  to  dower  in  one  tract  of  land. 
The  mother's  dower  had  already  been  assigned.  Tlie  Court  held 
that  the  first  wife  was  entitled  to  dower  in  the  twenty-five  acres, 
but  not  in  the  twenty-nine  acres  which  had  been  set  apart  as  the 
dower  of  his  mother.  ^^     The  second  wife  was  held  to  be  en- 

16  Adultery,  however  long  contin-  i^Kennelly    vs.    Cowle,    4    N.    P. 

ued,    does   not   constitute   marriage.  105;   6  Dec.  170. 

Swartz  vs.  State,  13  C.  C.  62;  7  C.  See  Brown  vs.  Kerns,  6  X.  P.  68; 

D.   43.  9  Dec.   112. 

Reputation  for  cohabitation  is  not  is  §§  11921   G.   C.      See  Julier  vs. 

sufficient.     Kobberts  vs.  Pvobberts,  8  Julier,  62  0.  S.  90. 

W.  L.  J.  372;  Carmichael  vs.  State,  §5700   R.   S.   makes  substantially 

12  O.  S.  553.  the  same  provisions  for  the  husband. 

Mutual  promise  to  marry   in  fu-  is  See    Arnold   vs.    Donaldson,    46 

ture,    followed"  by    cohabitation,    is  0.  S.  80. 

not  sufficient.     Ducan  vs.  Ducan,  10  209   c.  C.    191;    4  C.  D.    1. 

O.  S.  181.  21  Court     citing     §5799     R.     S., 

As  to  what  will  constitute  a  com-  §  11921   G.   C. 

mon-law  marriage  on  a  very  inter-  Scribner  on  Dower,  311;   Lamkin 

esting  state  of  facts,  see  Johnson  vs.  vs.  Knapp,  20  O.  S.  454:  Harvey  vs. 

Dudley,   4   Dec.    243;    3   N.   P.    196.  Gardner,    41    0.    S.    642;    Foote  v& 

Also  Fulton  vs.  Spear,  28  Dec.  394.  Worthington,  4   Bull.   645. 


857  RELINQUISHED  §  946 

titled  to  dower  in  said  twenty-five  acres  subject  to  tlie  dower 
right  of  the  first  wife,  and  if  she  survived  the  mother,  she  would 
also  be  entitled  to  dower  in  the  twenty-nine  acres ;  and  that  the 
assignment  of  dower  to  the  second  wife  should  bo  so  made  as  not 
to  include  any  part  assigned  to  tlie  first  wife ;  and  that,  in  order 
to  ascertain  how  much  land  should  be  allotted  to  the  second  wife, 
in  respect  to  that  part  of  the  land  to  be  assigned  to  the  first  wife, 
the  commissioners,  should  mahe  valuations  of  the  land  and  have 
recourse  to  tables  showing  the  value  of  the  chance  of  survivor- 
ship between  two  lives  similar  to  those  of  appellant." 

In  no  instance  can  a  husband's  lands  be  used  for  dower  pur- 
poses in  excess  of  the  one-third  thereof  as  provided  by  statute. 

§  946.    Relinquished. 

The  second  requisite  as  provided  in  sec.  8606-7,  G.  C,  is  that 
the  person  who  is  entitled  to  the  dower  right  has  not  relinquished 
or  been  barred  of  the  same.  In  a  subsequent  section  '^  it  is 
provided  how  such  dower  may  be  defeated  by  a  conveyance  in 
lieu  of  dower.  There  are  a  number  of  other  ways  in  which 
dower  may  be  relinquished  or  barred.  The  dower  right  may 
be  relinquished  by  contraet.^^*  The  common  and  ordinary  way  in 
which  such  dower  is  relinquished  is  by  a  husband  or  wife  joining 
in  a  deed  in  which  the  property  is  conveyed  to  a  third  party.  It 
is  said,  however,  that  a  contingent  dower  cannot  be  released  to 
any  one  except  an  owner  of  the  fee,  or  one  taking  the  fee  by  the 

24 

same  conveyance. 

If  a  release  is  obtained  by  fraudulent  representation  it  can 
be  avoided,  provided  the  rights  of  bona  fide  purchasers  did  not 
intervene.  ^^ 

The  dower  right  might  alsci  be  relinquished  by  either  a  postr 
nuptial  or  ante-nuptial  contract,  where  the  same  was  entered 
into  fairly  and  with  a  just  perception  of  the  respective  rights  of 
the   parties.'''     But  the   Courts  will  carefully   scrutinize   such 

22  See  §  049,  Wliat  dower  at-  nuptial  contract  it  should  be  averred 
taches.     2   Scribner  on  Dower,  468.  that    the    terms    and    provisions    of 

23  §  8608  G.  C,  §9ol.  See  §687,  the  contract  were  fair  and  just  to 
Legacy  in  lieu  of  dower.  the  wife.      Binkley  vs.   Binkley,   50 

23a  Tlie    Supreme    Court    has    re-  Bull.  58. 

cently  held   that  husband   an<l   wife  A  contract  giving  $200  a  year  in 

living  together  can  not  contract  to  lieu  of  dower,  etc.,  out  of  ari  estate 

release  the  rights  they  have  in  each  of  $4,500,  is  on  its  face  vnreasonable. 

others    property.      Dubois   vs.   Coen,  Id, 

100  O.  S.  17.     ■  25  Pumphrev  vs.  Pumphrey,  4  W. 

24  Smitli   vs.   Flickinger,  22   Bull.  L.  M.  40. 

254.  2G  A    reasonable    antenuptial   con- 

In  setting  up  estoppel  by  an  ante-       tract   in   bar   of   dower,   if   between 


§946 


DOWER 


858 


contracts,  and  where  disproportionate  to  the  rights  relinquished, 
will  set  them  aside.  ^^ 

An  equitable  jointure,  rt^asonable  and  fully  executed,  bars 
dower  as  where  a  couple  owning  about  equal  properties,  by  ante- 
nuptial contract,  agreed  to  enjov  the  whole  during  coverture,  and 
at  the  death  of  either,  the  survivor  and  the  estate  should  resume 
their  respective  realty  and  divide  the  personalty,  and  neither 
have  any  claim  on  the  other's  share,  this  bars  dower.^^ 

A  woman's  ante-nuptial  covenant  net  to  claim  dower  will  not 
bar  dower  unless  it  is  either  a  legal  or  equitable  bar.^^ 

A  contract  to  relinquish  dower  must  bo  made  in  writing  in 
order  to  be  valid,  and  in  the  manner  tlie  statute  provides.^" 

If  a  wife  be  a  minor  when  she  joined  in  the  deed  slie  does  not 
relinquish  her  dower  right.^^  It  might  be  relinqiiished  by  ac- 
cepting the  amount  awarded  in  a  decree  in  a  di\"orce."' 


parties  of  matur*  age,  without  im- 
position and  in  good  faith,  given 
full  efl'ect  during  life  by  the  hus- 
band, will  be  enforced.  Mintier  vs. 
Mintier.  28  0.  S.  307. 

If  both  parties  are  of  full  age, 
and  have  a  reasonable  knowledge  of 
each  other's  circumstances,  and  there 
is  no  fraud,  the  adequacy  of  the  pro- 
visions for  the  wife  does  not  depend 
on  its  proportion  to  the  husband's 
estate  to  bar  dower.  Ross  vs.  Ross, 
2  W.  L.  M.  17. 

27  A  woman  about  to  marry  a 
man  77  years  old,  in  feeble  health, 
and  with  nine  children,  and  owning 
366  acres  of  land  of  no  great  value 
agreed  to  receive  $700  in  case  she 
survived  him,  in  lieu  of  dower,  held, 
not  to  bar  dower.  Johnson  vs. 
Johnson,  1  C.  C.  521 ;   1  C.  D.  201. 

Unless  the  ante-nuptial  contract 
relinquishing  all  share  in  the  hus- 
band's estate  has  been  fairly  per- 
formed in  favor  of  the  wife,  it  will 
not  bar  her.  Phillips  vs.  Phillips, 
14  0.  S.  308. 

Such  coi]tracts  are  to  be  tested 
by    the    rules    which    determine    the 


validity  of  contracts  between  per- 
sons standing  in  a  confidential  rela- 
tion to  each  other.  Where  a  man 
had  $20,000  of  real  e?tate  and  $35,- 
000  of  personal  property,  an  ante- 
nuptial agreement  of  $2,500  was  set 
aside,  where  it  was  shown  that  the 
wife  had  no  knowledge  of  the  hus- 
band's wealth.  DuttenhofTer  vs.  Dut- 
tenhoffer,   12  Dec.   736. 

28  Murphy  vs.  Murphy,  12  0.  S, 
407. 

2J  Grogan  vs.  Garrison,  27  0.  S. 
50;  Ross  vs.  Ross,  2  W.  L.  M.  17; 
Stilley  vs.  Folger,  14  O.  610. 

so  Finch  vs.  Finch,  10  0.  S.  501; 
Conover  vs.  Porter,  14  0.  S.  4o0. 

31  Hughes  vs.  ^Vatson,  10  O.  127 ; 
Woerner  on  Admin.  250. 

Not  barred  of  distributive  share 
wlien  receiving  the  Vg  of  proceeds 
of  sale  from  husband,  etc.  Barber 
vs.  Hite,  39  O.  S.  185,  §  938. 

32  Julier  vs.  Julier,  62  O.  S.   109. 
A  sale  of  consummated  dower  in 

defraud  of  the  rights  of  creditors 
may  be  set  aside.  McLaren  vs. 
Stone,  18  C.  C.  854;  9  C  D.  794. 


659  HOW    BARRED  §  947 

Where  a  wife  joined  in  a  deed  made  by  her  husband  to  de- 
fraud, etc.,  and  the  same  is  set  aside,  she  is  not  barred  of  her 
dower.^^ 

Dower  may  be  relinquished  by  an  answer  and  election  to  take 
in  money  out  of  proceeds,  etc.^* 

§  947.     How  barred. 

A  subsequent  section  ^**  provides  that  a  husband  or  wife  liv- 
ing in  adultery  shall  be  barred  of  tlie  right,  and  the  fact  that 
the  other  party  is  also  living  in  adultery  does  not  relieve  the  bar.^^ 

It  is  also  provided  that  dower  may  bo  forfeited  by  waste.^* 

A  tax  sale  bars  all  dower  rights,  be  the  same  inchoate  or  per- 
fect.^^  The  right  may  also  be  barred  by  an  estoppel.  Thus, 
where  a  woman  who,  believing  herself  divorced,  lives  with  an- 
other man,  and  sees  her  real  husband  marry  another  woman,  and 
acquire  and  convey  property  in  which  the  second  woman  re- 
leases dower,  she  is  estopped  to  claim  dower  against  innocent 
grantees,  as  well  as  the  second  wife.^^  But  where  a  wife  joined 
in  the  deed  executed  by  her  husband  to  defraud  his  creditors,  she 
would  not  be  estopped  to  claim  dower  against  the  grantee  or  any 
purchaser  from  him  with  notice. ^^ 

Dower  may  also  be  barred  by  the  statute  of  limitations  if 
twenty-one  years  has  been  allowed  to  elapse  after  the  right  has 
accrued.*"  And  where  a  widow  who  is  entitled  to  dower  is 
present  at  the  sale  of  the  lands  under  an  order  of  Court  and 
assents,  that  the  sale  may  be  made  free  from  her  dower,  and  in 
consequence  of  which  tlie  purchaser  pays  a  higher  price,  she  is 
thereby  barred  from  her  dower,  notwithstanding  the  purchaser 
had  notice  of  her  claim. *^ 

33  Eedgeway  vs.   Mastning,   23    0.  4o  Tuttle  vs.  Wilson,  10  O.  24. 

S.   294.  41  Smiley   vs.   Wright,    2    0.   506; 

34  §  12019  G.  C.  McFarland  vs.  Febiger,  7  0.   (pt.  1) 
A  guardian  may  elect  for  an  in-       194. 

sane   widow,   §  12020  G.   C.  Where    the    parties    in    a    divorce 

34*  §8011  G.  C.,  §954.  proceeding   agree   that  the   husband 

35  Brown  vs.  Kerns,  G  N.  P.  68 ;  shall  pay  his  wife  a  certain  sum 
9  Dec.   112.  during    her    lifetime,    his    estate    is 

36  §  8613  G.  C.  liable  for  same  after  his  death.    Has- 

37  Jones  vs.  Devore,  8  0.  S.  430;  saurek  vs.  Markbreit,  68  0.  S.  554. 
§  2852  R.  S.  The  statute  of  limitation  does  not 

38  Brown  vs.  Kerns,  6  N.  P.  68 ;  commence  to  run  against  the  claim 
9  Dec.  112.  of  dower  until  the  death  of  the  hus- 

33  Woodworth  vs.  Page,  5  0.  S.  70.  band.     48   Bull.  896. 

Only  privies  under  her  deed  could  Deed  by  infant  wife  does  not  bar. 

plead  his  act  in  estoppel.     Kitzmil-  Hughes  vs.  Watson,  10  0.  127. 
ler  vs.  Van  Ransaeler,  10  0.  S.  63. 


§  947  DOWER  860 

Dower  may  also  be  relinquished  or  barred  by  accepting  the 
provisions  of  a  will.*^ 

As  a  matter  of  course,  a  decree  of  divorce  bars  all  right  to 
dower  in  property  afterward  acquired/^  except  where  caused  by 
the  aggression  of  the  husband.** 

The  law  has  provided  that  a  widow  might,  by  no-  act  of  her 
own,  be  barred  of  her  right  to  dower  in  lands  of  her  deceased 
husband,  where  the  same  has  been  sold  in  partition  proceed- 
ings.*^ But  where  property  is  held  in  common,  which  is  sold, 
the  widow  is  entitled  to  her  dower  interest  out  of  the  pro- 
ceeds.*^ 

A  dower  right  may  also  be  barred  by  judicial  proceedings 
where  the  widow  files  her  answer  and  agrees  to  accept  part  of 
the  proceeds.*^ 

In  assignments  where  she  has  joined  in  a  mortgage  on  prop- 
erty, her  dower  may  be  extinguished  in  the  entire  tract,  even 
though  she  filed  no  answer.  But  she  is  entitled  to  a  reasonable 
value  of  the  same  in  the  proceeds-  after  the  mortgage  is  satis- 
fied.*^ So  in  partition  proceedings.*^*  Likewise  as  an  heir  takes 
real  estate  subject  to  the  right  to  have  his  title  divested  by  a  sale 
of  the  same  to  pay  debts  of  the  ancestor,  therefore  a  widow  or 
widower  of  an  heir  would  be  divested  of  their  dower  right  in 
the  same  manner;  and  in  proceedings  by  an  administrator  or 
executor  to  sell  real  estate  to  pay  debts,  a  consort  of  an  heir  is 
not  a  necessary  party.*® 

42  See  §  1214  et  seq.  on  election  of  ^vas  divorced  in  California  by  reason 
■widow.  Lingart  vs.  Ripley,  19  0.  S.  of  the  aggression  of  her  husband, 
24.  that  being  the  place  of  her  domicile. 

43  Rice  vs.  Lumley,  10  0.   S.  596.  she   was   not  barred   of   her   dower. 

44  McGill  vs.  Deming,  44  O.  S.  645.  McGill    vs.    Deming,    44    0.    S.    645. 

45  Weaver  vs.  Gregg,  6  0.  S.  547.  48  §  11124  G.  C,  §  1601. 

See  Elliott   vs.   Platter,   43    0.    S.  48*  Thus   if  the  husband  sells  his 

197,  where  there  was  an   exchange,  interest  in  the  property  and  she  does 

etc.,  and  wife  was  held  not  to  have  not  join  in  the  deed,  and  partition 

dower.  proceedings  are  afterwards  had,  the 

46  Gillett  vs.  Miller,  12  C.  C.  209 ;  wife  is  entitled  to  her  dower. 
5  C.  D.  588.  Smith's  Trustee  vs.  Rothchild,  4  C. 

47  See  §  846,  §  12018  G.  C.  C.  544. 

But  a  divorce  granted  in  Kentucky  49  §  12020  G.  C,  et  seq.,  provides 

has  been  held   not   to  bar  dower  in  how  the  dower  of  an  insane  person 

lands    in    Ohio.      Mansfield   vs.    Mc-  may  be  released.     See  §  954,  §  1396. 
Intire,  10  0.  27.     And  where  a  wife 


861  ATTACHES  TO  WHAT  §  948 

§  948.     Death  of  a  consort. 

Before  the  dower  can  vest,  the  person  owning  the  land  must 
have  died,  for  as  long  as  he  is  living,  tlie  right  does  not  attach 
or  vest ;  and  for  the  pnq:)ose  of  fixing  the  right  of  dower,  when 
a  man  leaves  his  home  or  usual  place  of  residence  and  goes  to 
parts  unknown,  and  is  not  heard  of  or  known  to  be  living  for 
the  period  of  seven  years,  the  legal  presumption  that  he  is  dead 
applies,  and  the  widow  may  claim  her  dower.^" 

§  949.     To  what  property  the  right  attaches. 

The  statute  is  broad  in  reference  to  the  property  which  may 
be  subject  to  such  dower  right.  First,  in  any  real  property  of 
which  the  deceased  consort  was  seized  as  an  estate  of  inheritance 
during  the  marriage ;  and  second,  all  real  property  of  which  the 
deceased  consort  had  held  a  fee  simple  in  reversion,  or  remain- 
der, and  third,  where  the  title  or  interest  in  real  property  was 
held  by  article,  bond,  or  other  evidence  or  claim.  Any  property 
held  in  reversion  and  remainder,  however,  the  dower  right  does 
not  attach  until  the  termination  of  the  prior  estate.  These 
provisions  are  broad  enough  to  include  all  ordinary  kinds  of  real 
property.      It  would  include  a  perpetual  leasehold. ^^     But  it  is 

Guardian   may   act    for.      §  10907  But  it  seems   to  the  writer   that 

G.  C,   §  1523.  the  legislature  intended  when  mak- 

A  wife  is  not  barred  of  her  dower  ing  a  leasehold  interest,  pass  by  de- 

unless    a    party    to    the    suit,    etc.  scent    (§8597  G.  C,  §942),  that  it 

Dingmen  vs.  Dingmen,  39  O.  S.  172;  should  be  subject  to  dower  right  the 

Parmenter  vs.  Binkley,  28  0.  S.  32.  same  as  any  other  real  estate  or  es- 

60  Rice  vs.  Lumley,   10  O.  S.  596.  tate    of    inheritance.      See    Woerner 

2  Scribner  on  Dower,  222,  229.  on  Admin.  231  N.  7. 

Such  presumption  of  death,  how-  Dower  does  not  attach  to  vested 

ever,  does  not  authorize  an  adminis-  remainder,  where  at  the  time  of  the 

tration  of  the  estate.     §   109,  Death  husband's  death  the  previous  estate 

of  party;  §  1106,  Probate  of  will.  had  not  terminated.     Wood  vs.  Phil- 

51  Whether  or  not  the  right  at-  lips,  2  C.  C.  136;  1  C.  D.  406. 
taches  to  leasehold  interest  is  a  Where  a  wife  had  adopted  a  child 
matter  not  adjudicated  by  our  Su-  before  her  marriage,  it  was  held 
preme  Court.  Inferior  Courts  have  that  her  surviving  husband  was  en- 
held  that  they  are  not  subject  to  titled  to  curtesy  the  same  as  if  the 
such  dower  right.  Oliver  vs.  Jones,  child  was  of  natural  birth.  Clark 
3  N.  P.  129;  6  Dec.  194.  vs.  Harlan,  17  Bull.  320. 

Be*  King  vs.  King,  §  945. 


§949 


DO  WEE 


862 


said  there  is  no  dower  in  an  equitable  estate,  if  the  husband  had 
parted  with  it  before  his  death.^"  Neither  are  partnership  lands 
subject  to  dower  to  the  prejudice  of  creditors  of  the  firm.^' 

iSTeither  would  dower  attach  to  property  held  in  trust.  The 
estate  of  a  deceased  consort  is  all  that  can  be  reached  by 
dower;  ^*  it  cannot  rise  higher  than  such  estate,  and  hence  is 
subject  to  all  equities  therein. ^^ 

But  where  a  consort  has  during  coverture  made  an  exchange 
of  lands,  the  widow  or  widower  is  entitled  to  dower  in  both 
properties,  that  which  was  conveyed  by,  as  well  as  that  which 
was  conveyed  to  the  consort,  because  the  consort  was  seized  of 
both  during  coverture.  Unless,  perhaps,  where  the  exchange  is 
a  mutual  grant  of  equal  interests,  the  one  in  consideration  of  the 
other,  in  which  case  the  surviving  consort  might  have  an  election 
in  either  parcel,  but  could  not  take  both.^° 

No  exceptions  are  made  in  our  State  as  to  wild  or  timber 
lands  —  the  statute  includes  all  lands.^^ 

Real  estate  owned  by  a  husband  in  fee,  but  subject  to  a  devise 
over  to  another,  if  he  dies  before  such  other,  is  not  subject  to 
dower.^* 

Mines  and  quarries  which  have  been  opened  in  tlie  lifetime  of 
the  husband  are  subject  to  the  widow's  dower.^^ 


52  Abbott  vs.  Bosworth,  36  0.  S. 
605;  Rands  vs.  Kendall,  15  0.  671; 
Miller  vs.  Wilson,   15  0.  108. 

53  Green  vs.  Green,  1  Ohio  535 ; 
Ludlow  vs.  Cooper,  4  O.  S.  1 ;  Sum- 
ner vs.  Hampson,  8  O.  S.  328;  Fish- 
er vs.  Lang,  19  Bull.  139. 

See  further  discussion,  §  438. 
See     Partnership     assets,     §  438, 
note  38. 

54  \vhen  a  Avoman  was  divorced 
and  the  husband's  lands  were  de- 
creed to  her  as  alimony,  after  his 
death,  she  can  not  also  claim  dower 
therein.  McKean  vs.  Furgeson,  5\ 
O.  S.  207. 

Where  land  is  sold  on  vendoi-'s 
lien   the   widow    is   not   entitled   to 


dower.  McArthur  vs.  Porter,  1  O. 
S.  99. 

Woerner   on   Admin.    235. 

55  If  the  husband  had  the  legal 
title,  but  before  marriage  had  agreed 
to  sell  to  his  son,  who  paid  the 
consideration  and  took  possession, 
the  conveyance  after  marriage  re- 
lated to  the  title  as  of  the  date  of 
the  contract,  and  no  dower  at- 
taches as  against  the  son's  equity. 
Firestone  vs.  Firestone,  2  0.  S.  415. 

5G  Woerner  on  Admin.  234;  Brown 
vs.  Kerns,  6  N.  P.  68;   9  Dec.   112. 

57  Allen  vs.  McCoy,  8  0.  418. 

58  Myers  vs.   Moore,    12   Bull.   90. 

59  Woerner  on  Admin.  229. 


863  VALUE    WHEN    LANDS    SOLD  §  950 

Growing  crops  do  not  pass  to  the  consort  in  an  assignment  of 
dower.®"     Burial  grounds  are  not  subject  to  dower.*^ 

It  is  also  held  that  dower  does  not  exist  in  lands  acquired  by 
the  public,®"  or  any  land  taken  by  condemnation  proceedings.®^ 

§  950.     Value  and  rights  when  lands  are  sold. 

Where  a  widow  or  widower  has  joined  in  a  mortgage  on  lands, 
or  where  the  mortgage  was  given  before  the  marriage  relation 
was  entered  into,  the  premises  may  be  sold  under  foreclosure 
free  from  such  dower  right.  In  such  a  case  the  consort  is  en- 
titled to  dower  in  the  surplus  as  against  liens  not  binding  on 
the  dower.®*  The  same  rule  applies  to  a  purchase  money  mort- 
gage.®' 

If  a  wife  join  in  her  husband's  mortgage  of  property  already 
incumbered  by  liens,  in  which  dower  is  not  released,  she  can  not 
claim,  after  his  death,  any  dower  out  of  the  proceeds  on  fore- 
closure until  the  mortgage  is  paid  in  full.®® 

Where  on  a  foreclosure  of  a  mortgage  not  signed  by  a  wdfe, 
but  she  and  the  second  mortgagee,  in  whose  mortgage  she  had 
released  dower,  were  both  made  parties,  and  were  both  in  de- 
fault, a  decree  was  taken  on  first  mortgage,  and  a  sale  had  there- 
under, realized  only  enough  to  pay  the  first  mortgage,  it  was 

60  Davis  vs.  Brown,  4  W.  L.  M.  only  as  to  those  claiming  under  the 
272.  mortgage.     As   against   a   judgment 

61  §  10105  G.  C.  ohtained   since  the  marriage   she   is 

62  Gwynne  vs.  Cincinnati,  3  0.  24.       entitled  to  dower  in  the  whole  prem- 
iSchool   property   conveyed   to   the       ises     after     paying     the     mortgage. 

board  of  education  is  not  subject  to  (Aff.    5    Dec.    384;    7    N.    P.    554)  ; 

dower     of     the     grantor's     widow.  Sprague  vs.   Law,  8   C.   D.  428;    17 

Steele  vs.  B'd  of  Educ,  31  Bull.  84.  C.  C.  735. 

63  Little  Miami  Ry.  vs.  Jones,  3  66  Baker  vs.  Fetters,  16  0.  S.  596. 
Dec.  219;  2  N.  P.  71;  Woerner  on  Where  real  estate  is  sold  subject 
Admin.  1240;  Long  vs.  Long,  99  0.  to  a  purchase  money  mortgage  as- 
S.  330.  sumed   by   the   decedent,    her   dower 

64  Smith  vs.  Handy,  16  0.  191;  is  calculated  on  the  full  amount. 
State  Bank  vs.  Hinton,  21  0.  S.  509.  Hickey  vs.   Conine,   6   C.   C     (N.S.) 

65  Culver  vs.  Harper,  27  0.  S.  321;  affirming  3  N.  P.  (N.S.)  209; 
464;   Fox  vs.  Pratt,  27  0.  S.  512.  15  Dec.  709;  allirming  71  0.  S.  548. 

As  against  a  mortgage  made  by  a  A  widow  is  dowable  only  on  the 

man    before    marriage    his    widow's  surplus  arising  from  a  sale  of  real 

dower  is  secondary,  but  as  against  estate  held  by  her  husband,  in  which 

executions  levied  after  marriage  she  he  only  held  an   equity  of  redemp- 

is   dowable   in   the   entire   proceeds.  tion  at  the  time  of  his  marriage  to 

Winkler    vs.     Winkler,     1     Dayton,  her,  having  mortgaged  the  land  be- 

Term  Reps.  124.  fore     marriage     and     not     during 

A  mortgage  antedating  the  mar-  marriage.  King  vs.  Alt,  22  Dec.  183. 
riage    deprives    the    wife    of    dower 


§  950  DOWEE  864 

held,  that  after  the  second  mortgage  is  barred  by  limitation,  her 
right  of  dower  against  the  buyers  at  the  foreclosure  sale  could 
be  enforced,  for  they  only  obtained  what  the  first  mortgage  had 
to  sell." 

As  a  general  rule  it  may  be  said  that  a  release  of  dower  in 
a  mortgage  does  not  inure  to  others  than  the  holder  of  the  mort- 
gage, and  only  to  him  if  she  is  made  a  party.®* 

A  vendor's  lien  stands  upon  the  same  footing  as  a  purchase 
money  mortgage  or  ante-nuptial  mortgage  lien ;  and  where  such 
lien  is  foreclosed,  the  wife  or  husband  need  not  be  made  a 
party. ®^  The  existence  of  a  purchase  money  mortgage  does  not 
prevent  petition  for  dower,  but  the  wife's  dower  is  subject  to  the 
purchase  money  mortgage.^" 

Where  a  husband  asks  assignment  of  his  dower  in  his  de- 
ceased wife's  lands,  and  the  heirs  claim  that  a  mortgage  thereon 
was  his  debt,  and  that  he  is  insolvent,  and  that  dower  should  be 
subject  thereto,  it  is  proper  for  the  Court  to  assign  dower  and 
to  dismiss  the  issue  as  to  who  should  pay  the  mortgage,  without 
prejudice  to  another  suit  for  this  purpose.'^^ 

If  the  property  is  sold  on  foreclosure  of  a  mechanic's  lien 
which  did  not  exist  at  tlie  time  of  marriage,  tlie  dower  right 
therein  is  not  defeated.  The  purchaser  takes  subject  to  such 
right.  ^' 

Where  the  executor  sells  lands  to  pay  debts,  which  is  incum- 
bered by  a  mortgage  in  which  dower  is  released,  the  widow  is, 
as  against  deWsees,  general  creditors  and  heirs,  dowable,  in  the 
entire  proceeds,  but  payable  out  of  the  surplus  after  satisfying 
the  mortgage.  ^^  And  the  same  applies  to  property  sold  on  ex- 
ecution.^* 

cTCole  vs.  Mathews,  38  Bull.  223;  72  Rockel    &    White's    Mechanic's 

Taylor  vs.  Fowler,  18  O.  567.  ^ien  Law,  43. 

esKetchum    vs.    Shaw,    28    0.    S.  73  Kling  vs.   Ballentine,  40   0.   S. 

503 ;      Moerlien     Brewing     Co.     vs.  qq-i 

Westmeier,    4   C.    C.    296;    2    C.   D.  The  part  of  the  fund  in  the  hands 

^^^-  of  an  executor  which  represents  the 

«»Ruffner  vs.  Evans,  2  C.  C  70;  ^^^^^  ^f  ^  widow's  dower  is  entitled 

1   C.   D.   368 ;    Phillips  vs.   Keels,   4  ^^  ^j^^^.^  ^,^g  interest  earned  pro  rata 

C.   C.   316;    2  C.   D.   .568.  ^^.j^  ^j^^   ^^^^   of   decedent's    estate. 

70  Carter  vs.  Goodin.  3  0.  S.  75;  j^  ^^  ^^^.^  ^f  Arnold,  48  Bull.  929. 

Folsom  vs.  Rhodes,  22  0.  S.  435.  74Mandell  vs.  McClave,  46  0.  S. 

Ti  Kinney  vs.  Kinney,  33  Bull.  4.  ^q^.  jicArthur  vs.  Franklin,  16  0. 

S.   193. 


805  VALUE  WHEN  LANDS  SOLD  §  950 

And  where  property  burned  after  the  decedent's  death,  the 
widow  was  entitled  to  have  her  dower  calculated  on  the  amount 
received  for  the  lands,  together  with  the  proceeds  of  insurance.^" 
But  in  a  sale  by  an  assignee,  the  widow  is  only  entitled  to  have 
her  contingent  right  of  dower  estimated  on  the  proceeds  remain- 
ing after  mortgage  debts  have  been  paid/** 

A.  received  a  mortgage  from  M.  and  his  wife  in  1880,  B.  re- 
covered judgment  against  M.  in  1888,  C.  received  a  mortgage 
from  M.  and  wife  in  1891,  M.  assigned  for  benefit  of  creditors. 
On.  distribution,  held  A.'s  mortgage  must  be  paid  in  full,  then 
M.'s  wife  must  have  dower,  though  her  husband  is  alive,  as 
against  the  judgment  computed  on  the  entire  proceeds  of  the 
land,  and  this  amount  must  be  paid,  if  necessary,  to  C.  on  his 
mortgage.  ^^ 

The  widow  of  a  bankrupt  is  entitled  to  her  inchoate  right  of 
dower  in  his  real  estate,  and  if  she  consents  to  the  sale  of  the 
same  free  from  her  dower,  she  is  entitled  to  the:  rdght  of  dower 
as  the  law  fixes  it,  by  tlie  State  of  the  bankrupt's  residence,  and 
where  the  laws  of  the  State  of  the  bankrupt's  residence  provide 
a  manner  of  determining  the  value  of  dower  in  land  sold  in  as- 
signment and  insolvency  proceedings,  that  rule  will  be  applied 
in  bankruptcy  proceedings.  Taxes,  costs  and  expenses  of  ad- 
ministering the  trust  have  priority  over  the  dower.^® 


When  the  widow  dies  pending  an  '^s  Fleming    vs.    Jordan,    28    Bull, 

action  in  partition,  in  which  she  has  332. 

filed 'her  answer,  etc.,  the  action  can  ^o  §  GSSOjr  R.  S.,  §  1601. 

be   revived   in  the  name   of  her   ad-  '^^  Finley  vs.  First  Nat.,   32  Bull, 

ministrator,    and    he   would    be   en-  382. 

titled  to  whatever  the  dower  would  '^^  in  re   George  Forbes,   46   Bull, 

be  worth  from  the  time  of  filing  her  268;  In  re  Frick,  41  Bull.  267. 

answer  until  his  death.     Penner  vs.  See   §  869. 

Bird    2  Bull.  76.  The  value  of  a  future  contingent 

When    a    widow    is    entitled    to  dower  is  ascertained  by  the  tables  of 

dower     and     homestead     both,     her  mortality,  aided  by  evidence  respect- 

,            .             ,1  •   J     ^     11  .1.           li  ing  the  state  of  health  of  the   hus- 

dower  is  one  third  of  all  the  realty,  ,       ,         ,       -s        ivr      i  •      -d    ,  .■«« 

•'  band  and   wife.      Moerlein   Brewing 

not  merely  one  third   after  the  as-  ^^^   ^^   Westmeier,  4  C.  C.  296;  2  C. 

signment  of   the   homestead.     Wan-  j)    555 

zer  vs.  Smith,  2  W.  L.  M.  426.  Mandal  vs.  McClave,  40  0.  S.  407. 

See  §  868.  For  table,  see  chapter  next  index. 


§  951  DOWER  866 

§951.  Conveyance  in  lieu  of  dower.  "The  conveyance  of 
an  estate  or  interest  in  real  property,  to  a  person  in  lieu  of 
dower,  to  take  effect  on  the  death  of  the  grantor,  if  accepted  by 
the  grantee,  will  bar  the  grantee's  right  of  dower  in  the  real 
property  of  the  grantor.  But  if  the  conveyance  was  made 
when  the  grantee  was  within  the  age  of  minority,  or  during  the 
marriage,  the  grantee  may  waive  title  to  such  real  property  and 
demand  dower."     [R.  S.  §4189.]"" 

This  section  is  construed  by  the  Supreme  Court  in  Grogan 
vs.  Garrison,^*^  in  which  it  was  held,  under  sec.  2  of  the  dower 
act,  an  estate  conveyed  as  jointure,  to  be  a  good  legal  or  statutory 
bar  to  dower,  must  be  such  an  estate,  as  to  certainty  and  kind, 
that  the  wife,  on  the  deatli  of  her  husband,  may  take  possession 
of,  and  hold  in  severalty,  and  not  in  common  with  others.  If 
the  estate  so  conveyed  must  be  such  as  that  at  common  law, 
dower  could  be  assigned  by  metes  and  bounds,  then  in  such  case 
the  jointure,  to  be  a  legal  bar  to  dower,  should  be  an  estate  in 
severalty,  so  that  the  widow  may  enter  and  hold  in  severalty, 
without  being  compelled  to  resort  to  an  action  to  have  hei* 
jointure  assigned  to  her  by  metes  and  bounds. 

An  ante-nuptial  contract  which  conveys  an  undivided  one- 
third  part,  or  any  other  interest  in  common  with  others,  in  lieu 
of  dower,  is  not  a  good  statutory  bar.  Whether  such  an  estate 
will  constitute  a  good  equitable  jointure  depends  on  tlie  facts 
and  circumstanoes  of  the  case,  and  when  such  contract  is  pleaded 
by  way  of  equitable  defense  to  an  action  for  dower,  the  facts 
upon  which  it  depends,  and  not  the  pleader's  conclusions  from 
the  facts,  must  be  stated.  The  conveyance  of  an  estate  as 
jointure,  of  an  undivided  one-third  of  a  lot  of  land  for  the  life 
of  the  wife,  when  such  lot  is  less  than  one-third  of  the  husband's 
lauds,  is  prima  facie  not  a  good  equitable  jointure,  in  the  ab- 
sence of  facts  showing  that  the  same  is  fair  and  reasonable,  or 
of  such  acts  of  the  widow  as  amount  to  an  estoppel.  The  ante- 
nuptial covenants  of  a  woman,  that  in  case  she  survive  her  hus- 
band she  will  not  claim  dower  in  his  estate,  can  not,  in  an  action 
by  her  for  dower,  operate  to  bar  such  action,  either  by  way  of 

T8§8608  G.  C.  80  27  O.   S.  50. 


867  CONVEYANCE    IN    LIEU  §  952 

release  or  estoppel,  where  such  ante-nuptial  contract  does  not 
constitute  either  a  legal  or  equitable  bar. 

Where,  by  ante-nuptial  settlement,  a  sum  of  money  is  secured 
to  the  wife,  to  be  paid  after  the  husband's  death,  and,  by  a  sub- 
sequent will,  the  husband  directs  all  his  just  debts  of  every  kind 
to  be  first  paid,  and  makes  provision  for  the  support  of  his  wife 
during  widowhood,  with  a  declaration  that  the  intent  and  mean- 
ing of  the  testator  was  to  give  to  his  wife  the  provision  made  for 
her  in  his  will,  she  may  claim  the  provision  in  the  will,  and 
also  that  made  for  her  in  the  settlement.*^ 

In  an  action  brought  to  have  dower  assigned,  the  defense  set 
up  a  contract  in  which  it  was  alleged  that  the  deceased  agreed 
to  pay  or  secure  to  be  paid  out  of  his  estate  by  his  executors  after 
his  demise  the  sum  of  $700  in  two  years.  It  was  held  not  to 
be  a  defense  and  that  she  was  entitled  to  dower.®^ 

It  will  be  observed  that  if  the  conveyance  is  made  when  the 
grantee  is  within  the  age  of  minority  or  during  marriage,  the 
grantee  may  waive  the  title  to  the  property  and  demand  dower ; 
and  where  she  makes  her  election  before  she  is  fully  advised, 
she  is  .not  estopped,  provided  she  restore  to  the  estate  the  amount 
she  has  received.*^ 

§  952.     Effect  of  defective   conveyance  in  lieu  of  dower. 

"When  a  conveyance  which  is  intended  to  be  in  lieu  of  dower, 
fails  through  any  defect  to  be  a  legal  bar  thereto,  and  the 
widow  or  widower  availing  of  such  defect  demands  dower,  the 
estate  or  interest  conveyed  to  such  widow  or  widower,  with  the 
intention  to  bar  dower,  thereupon  shall  cease."     [R.  S.  §  4190  "" 


Si 


§  953.  Effect  of  eviction  from  premises  conveyed  in  lieu  of 
dower.  "A  widow  or  widower  lawfully  evicted  from  real 
property  conveyed  in  lieu  of  dower,  or  any  part  thereof,  shall 
be  endowed  of  so  much  of  the  residue  of  the  real  property  of 
the  deceased  consort  as  will  equal  that  from  which  such  widow 
or  widower  is  evicted."     [R.  S.  §  4191.] «= 

81  Bowen  vs.  Bowen,  34  O.  S.  164.  Marriap;e  is  not  now  a  disability. 

82  Johnson   vs.  Johnson,    1    C.   C.  84  §  8609   G.   C. 

521;  1  C.  D.  291.  There   miist   be   the  utmost  good 

83  Spangler  vs.  Dukes,  39  O.  S.  faith  and  full  disclosure  of  prop- 
642.  erty    in    an    antenuptial    agreement 

As  to  relinquishment  of  dower  by  to  make  it  valid.  Duttendorfer  vs. 
antenuptial  contract,  see  §  946.  Duttendorfer,  12  Dec.  736. 

85  §  8610  G.  C, 


§  954  DOWER  868 

§  954.    When  person  dwelling  in  adultery  is  barred  of  dower. 

"A  husband  or  wife  who  leaves  the  other  and  dwells  in  adultery^ 
will  thereby  be  barred  of  the  right  of  dower  in  the  real  prop- 
erty of  the  other,  unless  the  offense  is  condoned  by  the  injured 
consort."     [R.  S.  §4192.]«« 

§  955.  Where  lands  are  given  up  by  fraud,  etc.  "If  a  hus- 
band or  wife  gives  up  real  property  by  collusion  or  fraud,  or 
loses  it  by  default,  the  widow  or  widower  may  recover  dower 
therein."     [R.  S.  §4193.]" 

In  reference  to  the  provisions  of  this  section, ■  Wo^rner  says: 
"  But  her  dower  rights  are  nevertheless  protected  against  the 
husband's  fraudulent  attempts  to  deprive  her  thereof  by  volun- 
tary conveyance  or  collusive  charges  upon  his  lands  during 
coverture.  '  The  notion,'  says  the  Court  in  Thayer  vs.  Thayer,®* 
*  that  the  right  of  the  wife  to  dower  in  the  husband's  lifetime  is 
a  nonentity,  and  not  susceptible  of  fraud  being  perpetrated  of 
it,  is  unsatisfactory,  and,  we  think,  unsound,  and  at  war  with 
the  principles  of  justice.  Though  the  right  may  be  inchoate, 
it  should  be  protected  against  the  mala  fde  acts  of  the  hus- 
band." A  conveyance  without  valuable  consideration,  with  the 
intent  to  defeat  the  wife  of  her  dower,  is  void,  and  will  be  set 
aside;  and  so  a  deed  to  a  stranger,  although  he  paid  full  con- 
sideration, if  he  knew  that  the  intention  was  to  defeat  the  wife's 
dower."  «« 

And  recently  our  Supreme  Court  has  held,  "  A  conveyance 
by  a  man  who  has  entered  into  a  contract  of  marriage,  which 
subsequently  takes  place,  of  a  portion  of  his  land  to  his  sons  by 
a  former  marriage,  without  consideration  other  than  love  and 
affection,  and  without  the  knowledge  or  consent  of  his  contem- 
plated wife,  is  a  fraud  on  her  marital  rights,  and  she,  at  his 
death,  is  entitled  to  dower  therein."  ®° 

88  §  8611  G.  C.  89  Woerner  on  Admin.  247. 

See   previous   section,  how   dower  ^o  Ward  vs.   Ward,   63  O.   S.    125. 

is    barred,    §  947.  See  Tate  vs.  Tate,   19  C.  C.  532 ; 

87  §  8012  O.  C.  10  C.  D.  321. 

88  14    Vt.    107,    120. 


869  DOWER   FORFEITED    BY   WASTE  §  956 

§  956.  Dower  is  forfeited  by  waste.  "A  tenant  in  dower 
in  real  property  who  commits  or  suffers  waste  thereto,  will  for- 
feit that  part  of  the  property  to  which  such  waste  is  committed 
or  suffered,  to  the  person  having  the  immediate  estate  in  rever- 
sion or  remainder.  Such  tenant  in  dower  also  will  be  liable 
in  damages  to  the  person  having  the  immediate  estate  in  rever- 
sion or  remainder,  for  the  waste  committed  or  suffered  thereto.'* 
[R.  S.  §4194.] ''I 

§  957.     Assignment  of. 

The  w^dow  is  entitled  to  remain  in  the  mansion  house  for  one 
year  unless  dower  be  sooner  assigned.  This  is  called  the 
widow's  quarantine  of  dower.  The  assignment  of  dower  only 
comes  within  the  province  of  this  work  when  such  assignment 
is  necessary  in  the  settlement  of  estates,  or  assignment  for  bene- 
fit of  creditors,  and  reference  will  be  made  to  those  chapters  for 
matters  concerning  assignment  in  such  cases. ''^ 

In  addition  to  assignments  set  apart  by  law  or  action,  the 
statute  provides  that  "  when  the  lands  of  a  deceased  person  are 
not  incumbered  by  mortgage  or  by  judgment  obtained  against 
such  decedent  during  life,  the  heir,  or  guardian  of  any  heir,  or 
other  person  having  the  next  immediate  estate  of  inheritance, 
may  assign  to  the  widow  or  widower  dower  therein,  by  writing, 
under  his  hand,  particularly  describing  the  same,  which,  if  ap- 
proved in  writing  on  the  deed  of  assignment  by  the  Probate 
Judge  of  the  county,  and  also  by  the  Probate  Judge  of  the 
county  appointing  such  guardian,  and  accepted  by  the  widow  or 
widower,  in  writing  thereon,  shall  be  a  good  assignment  in 
law."  " 

This  section  has  been  construed  as  follows :  "  The  approval 
of  the  Probate  Judge,  as  contemplated  in  sec.  12004,  G.  C,  is 
evidently  for  the  protection  of  the  widow  that  she  may  not  be 
imposed  upon;  to  see  that  the  heirs  are  dealt  with  fairly,  and 

91  §  8613  G.  C.  dens.      Teideman    Real    Prop.,    §  72, 

May    cut    timber    to    pav    taxes.  the  tenant  must  keep  the  buildings 

Crocket  vs.  Crocket,  2  0.  S.   LSI.  in  repair.     Id.   §  77.     If  they  burn 

Strict  common-law  rule  does  not  down  by  his  netrligence  he  is  re- 
prevail.  Carpenter  vs.  Denoon,  29  sponsible  but  not  otherwise.  He  is 
O.  S.  37.  not  bound  to  keep  them  insured  but 

§  8503   G.    C,   contains   a   similar  may  insure  his   interest  and  collect 

provision  as  to  tenants  for  life  and  tlie    insurance.      19    Cyc.    844.      See 

§5688  G.   C.   requires   them   to   pay  5  1292,   Taxes,    insurance,   etc.;    Act 

the  taxes.  79  Cen.  L.  J.,  p.  59. 

Waste    is    any    unlawful    act    or  See  §  10997  G.  C,  §  1523,  Assign- 
omission   of   duty   which    results   in  ment  of  dower  of  insane  or  imbecile 
permanent  injury  to  the  inheritance.  person. 
It   may   consist  in   either   diminish-  92  §  gfjn. 
ing  its  value  or  increasing  its  bur-  93  §  12104  G.  C. 


§958  DOWER     '  870 

that  the  minors  who  are  bound  in  a  proceeding  of  this  sort  by 
the  act  of  their  guardian,  are  not  overreached.  Creditors  of  a 
deceased  person  might  have  rights  that  could  be  jeopardized  by 
an  unfair  assignment  of  dower.  Nothing  but  this  interposition 
of  the  judge  could  prevent  the  heirs  from  giving  all  the  prop- 
erty of  an  estate  to  a  mdow  under  such  an  assignment  if  they 
were  so  disposed.  And  that  no  injustice  to  any  of  the  inter- 
ested parties  be  the  consequence,  a  proceeding  of  this  sort  is  kept 
under  the  supervision  of  the  Probate  Court."  ^* 

Under  this  provision  of  the  law,  it  is  the  duty  of  the  Probate 
Judge  to  ascertain  whether  or  not  the  assignment  made  by  the 
heirs  to  the  widow  is  a  fair  and  just  one.  The  judge  acts  in  a 
judicial  capacity  to  determine  the  fact  whether  or  not  the  as- 
signment is  just.  The  fact  that  the  same  is  not  submitted  to 
the  Probate  Judge  for  his  approval  will  not  permit  either  the 
heir  or  the  widow  who  has  accepted  under  the  deed  or  contract 
to  avoid  it,  if  it  was  fair  and  reasonable."^ 

As  the  action  of  the  Probate  Judge  under  this  section  may 
become  important,  it  seems  that  there  ought  to  be  some  record 
of  the  judge's  action,  and  there  ought  to  be  an  application  filed 
with  the  Probate  Court  setting  out  the  facts,. and  the  Court  hav- 
ing all  the  parties  and  facts  before  it,  should  make  the  finding 
in  accordance  with  the  statute ;  and  the  judge  must  give  his  ap- 
proval on  the  deed  of  assignments.  The  application  might  be 
somewhat  as  follows :  °® 

§  958.     Application. 


In  the  Matter  of  the  Estate  of  ,~,i     i    ,-i        .      /%.  • 

G.  H..  deceased.  Clark  County,  Ohio. 


Probate  Court, 
lark  C 
Application. 


Now  come  A.  B.,  C.  D.  and  E.  F.,  heirs-at-law  of  G.  H.,  deceased,  and 
represent  to  the  Court  that  said  G.  H.  died  seized  of  the  following  described 
real  estate.      (Here  describe  real  state.) 

Leaving  said  I.  J.  as  his  widow,  and  the  said  A.  B.,  C.  D.  and  E.  F.,  as  his 
only  heirs-at-law.  That  the  said  real  estate  belonging  to  the  said  deceased 
was  not  incumbered  by  mortgage  or  judgment  obtained  against  said  deceased 
during  his  lifetime,  and  that  the  valid  debts  of  said  deceased  have  all  been 
paid. 

Said  A.  B.,  C.  D.  and  E.  F.  further  represent  that  they  and  the  said 
I.  J.,  widow  of  deceased,  have  agreed  as  to  the  portion  of  said  real  estate, 

9*  Smith   vs.   Whistler,  16  C.  G.  98  See    §  1524,   Assignments. 

130;   8   C.  D.  768.  A   minor   is  not  bound  by   a   col- 

85  Smith    vs.    Whistler,    16    C.    C.  lusive   assignment    of   dower   if   the 

137;   8  0.  D.   768.  same  is  to  his  prejudice.  §  12016  G.C. 


871  ASSIGNMENT    OF  §  958 

which  should  be  assigned  to  said  1.  J.  as  her  dower  interest  therein  the 
same  being  described  as  follows. 

They  further  represent  to  the  Court  that  in  accordance  with  said  agree- 
ment they  have  executed  and  delivered  to  said  1.  J.  a  proper  deed  therefor 
which  the  said  I.  J.  has  accepted  in  writing  thereon. 

They  therefore  pray  that  the  Court  will  approve  of  the  said  assignment 
of  dower  to  said  I.  J.  and  will  in  writing  approve  the  same  on  the  said 
deed  of  assignments.  ^ 


Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 

If  any  of  the  parties  to  said  assignment  are  subject  to  a  legal 
guardian  the  approval  must  also  be  made  by  the  Probate  Judge 
who  appointed  the  guardian.  From  this  it  is  inferred  that  an 
heir  under  guardianship  may  enter  into  such  an  arrangement ; 
and  the  approval  must  also  be  made  by  the  judge  of  the  Court 
of  the  county  in  which  the  land  is  situat-e.  If  the  lands  were 
fiituated  in  two  or  more  counties,  it  would  probably  be  necessary 
to  have  it  approved  by  the  judge  of  the  Probate  Court  of  the 
county  in  which  the  deceased  had  his  domicile,  and  in  which 
some  portion  of  the  land  was  located.  The  entry  entered  there- 
on may  be  as  follows : 

ENTRY. 
{Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B., 
C.  D.  and  E.  F.,  heirs-at-law  of  G.  H.,  deceased,  praying  for  the  Court's 
approval  of  a  deed  of  assignment  made  by  them  to  I.  J.,  widow  of  G.  H., 
deceased,  "issigning  to  her  certain  portion  of  the  land  of  said  deceased  as 
her  dowe^"  interest;  and  the  same  was  submitted  to  the  Court. 

Whereupon  the  Court  finds  that  said  assignment  of  dower  is  just  and 
reasonable,  and  the  deed  therefor  conveyed  to  said  I.  J.  a  proper  portion 
of  said  premises  for  her  said  dower  interest  in  the  land  of  said  deceased. 

Wh<vefore  it  is  by  the  Court  ordered  that  the  said  assignment  of  dower 
is  apprc^ved,  and  it  is  further  ordered  that  the  Court  enter  its  approval  ia 
writing  on  the  said  deed  of  assignment. 


959 


INSOLVENT    ESTATES 


872 


CHAPTER  LII. 

INSOLVENT   ESTATES   WHEN   SETTLED   BY  ADMINISTRA- 

TOR,  ETC. 


§  959  When  estate  need  not  be  de- 
clared insolvent. 

§  960  When  an  estate  should  be  de- 
clared insolvent. 

§  961  Application   for    insolvency. 

§  962  Form  of  application. 

§  963  When  commissioners  not  ap- 
pointed, executor  or  admin- 
istrator to  act  as  such. 

§  964  Entry  and  order  declaring  the 
estate  insolvent. 

§  96-5  Executor  or  administrator 
shall  give  notice  of  insol- 
vency of  estate  to  creditors. 

5  966  Form    of   notice. 

§  967  Time  allowed  in  such  case  for 
creditors  to  present  claims. 
List  of  claims  to  be  filed. 

§  968  Comments. 

§  969  Claim  disallowed  may  be  sub- 
mitted to  referees. 

1 970  Presentation  and  proof  of 
claims. 

f  971  If  not  referred,  creditors  to 
commence    suit.     Limitation. 

§  972  Court  or  referee  to  award 
costs. 

§973  How  judgment  to  be  rendered 
on  disallowed  claim. 

§  974  Preparation  of   report. 

§  975  Report  of  claims  presented  in 
insolvency. 

§  976  When  Court  to  make  order 
of  distribution  on  return  of 
list  of  debts. 


977  Hearing    and    order    of    dis- 

tribution. 

978  R3port    of    payment    of    divi- 

dends. 

979  Confirmation    of    distribution. 

980  When  Court  to  make  further 

order  of  distribution. 

981  Exceptions. 

982  Provisions       for       contingent 

debts. 

983  When     contingent     debt     be- 

comes absolute. 

984  Dividends     thereon.     Disposi- 

tion of  residue. 

985  Action     against     executor    cw 

administrator     of     insolvent 
estates. 
985a  Estate      declared      insolvent 
while      action      against      it 
pending. 

986  Comments. 

987  Claims    not    presented    as    re- 

quired, barred  unless,   etc. 

988  If   surplus   remain  after   pay- 

ing debts  allowed  other 
creditors  may  claim  it. 

989  How     divided     between     two 

or  mo-re  such  creditors. 

990  Executor      or      administrator 

liable  only  for  assets  in  his 
hands. 

991  Creditors  may  sue  after  three 

years  in  case^  etc. 

992  \Vhen    and    how    executor    or 

administrator  may  be  com- 
pelled to  render  his  account 
to  Court. 


I 
i 


873  NEED  NOT  BE  DECLAKED  §  959 

§  959.     When  estate  need  not  be  declared  insolvent. 

An  estate  is  insolvent  when  its  assets  do  not  equal  its  liabili- 
ties, but  not  every  estate  which,  is  in  this  condition  is  by  the 
law  required  to  be  declared  insolvent.  If  the  administrator  or 
executor  has  only  assets  sufficient  in  his  hands  to  pay  the  debts 
that  are  entitled  by  the  statute  to  preference  and  no  more,  he 
would  not  be  required  to  ask  the  Court  to  declare  the  estate  sol- 
vent.^ 

For  the  statute  provides  that  if  it  shall  appear  upon  settle^ 
ment  of  an  estate  that  the  whole  effects  which  have  com©  into 
the  hands  of  the  administrator  or  executor  have  been  exhausted 
in  paying  the  charges  of  administration,  the  allowance  to  the 
widow  and  children  of  the  deceased,  and  the  charges  of  last 
sickness,  and  funeral  expenses  or-debts  or  claims  entitled  by  law 
to  a  preference,  such  a  settlement  would  be  a  sufficient  bar  to 
any  action  brought  against  the  executor  or  administrator  by 
any  creditor  who  is  not  entitled  to  a  preference,  and  the  executor 
or  administrator  may  plead  and  give  the  same  in  evidence,  al- 
though the  estate  may  not  have  been  represented  insolvent.^ 

There  might  be  cases  even  in  the  payment  of  preferred  claims, 
where  it  would  be  well  to  have  tlie  estate  declared  insolvent,  for 
instance  if  there  were  a  large  number  of  claims  in  a  certain  class 
and  the  estate  was  not  sufficient  to  pay  all  in  full  in  that  class. 
An  estate  need  not  be  declared  insolvent  if  a  period  of  six  months 
has  elapsed  since  the  appointment  of  the  executor  or  adminis- 
trator and  all  those  creditors  who  have  presented  their  claims 
agree  to  accept  a  certain  portion  and  relieve  the  executor  or 
administrator  from  all  liability  thereon.  The  executor  or  ad- 
ministrator should  never  pay  claims  before  the  expiration  of  six 
months  from  the  date  of  his  qualification  unless  the  assets  in  his 
hands  are  ample  to  meet  all  demands  that  may  be  made  in  the 
class  to  which  any  debt  may  belong.  However,  after  the  expira- 
tion of  six  months  when  all  the  assets  are  collected,  it  will  be  an 
expeditious  as  well  as  an  advantageous  way  of  settling  the  estate 
to  see  the  creditors  and  have  them  agree  to  accept  a  certain  por- 

1  For  order  in  which  debts  are  to  2  §  10745  G.  C,  §  670. 

be  paid.     See  §  646  et  seq. 


§  960  INSOLVENT  ESTATES  874 

tion  as  their  proportionate  share  of  the  same.  Such  a  course  of 
proceedings  will  allow  a  speedy  settlement  to  be  made  as  well 
as  the  saving  of  a  considerable  expense.  When  a  distribution 
is  made  by  consent  of  creditors,  the  administrator  or  executor 
should  be  careful  that  the  creditor  receipts  to  him  in  full  of  all 
demands  he  may  have  against  hiin  as  administrator  or  executor. 

§  960.     When  an  estate  should  be  declared  insolvent. 

The  statute  makes  it  the  duty  of  the  administrator  or  execu- 
tor to  apply  to  the  Court  to  have  the  estate  declared  insolvent 
whenever  it  would  be  probable  that  the  real  or  personal  estate 
of  the  deceased  would  be  insufficient  for  the  payment  of  debts.^ 
When  such  fact  of  insolvency  plainly  appears  to  the  administra- 
tor or  executor,  he  ought  at  once  to  proceed  and  make  appli- 
cation to  have  the  estate  declared  insolvent.  It  should  not  be 
forgotten  that  this  and  the  subsequent  chapter  in  relation  to  in- 
solvent estates  only  apply  to  the  distribution  of  the  estate.  A» 
to  collection  of  assets,  the  administrator  or  executor  must  pro 
ceed  in  the  same  manner  as  if  the  estate  was  solvent.  It  is  only 
when  he  comes  to  the  payment  of  claims  that  it  is  material  to 
have  the  estate  declared  insolvent.  Our  statute  in  reference  to 
settlement  of  insolvent  estates  is  copied  very  closely  from  the 
Massachusetts  law  upon  tlie  subject,  and  the  follovvdng  from 
a  work  specially  dealing  with  the  Massachusetts  statutes  as  to  the 
duty  of  an  administrator  or  executor  in  making  an  application 
for  insolvency  is  peculiarly  applicable  to  our  law.* 

"  If  the  estate  is  insolvent  it  is  the  duty  of  the  executor 
or  administrator  to  represent  the  fact  to  the  Probate  Court.. 
His  neglect  to  do  so  may  make  him  personally  liable  to  creditors 
of  the  deceased.  He  is  allowed  ample  time  to  satisfy  himself 
as  to  the  condition  of  the  estate.  He  is  not  held  liable  to  an- 
swer to  the  suit  of  any  creditor  commenced  within  one  year  after 
he  gives  bond  for  the  faithful  discharge  of  his  trust,  unless  the 
demand  is  one  that  would  not  be  affected  by  the  insolvency  of  the 

8  §  10884  G.  C.  §  993.  *  Smith  Probate  Law  191. 


875  WHEN  SHOULD  BE  DECLARED  §    960 

estate,  or  is  brought  after  the  estate  has  been  represented  in- 
solvent for  the  purpose  of  ascertaining  a  contested  claim."' 

If  within  six  months  after  giving  notice  of  his  appointment 
he  does  not  have  notice  of  demands  which  will  authorize  him  to 
represent  the  estate  insolvent,  he  may  proceed  to  pay  the  debts 
due  from  the  estate;  and  he  will  not  be  personally  liable  to  any 
creditor  in  consequence  of  payments  made  before  notice  of  his 
demand.  If  he  so  pays  away  the  whole  of  the  estate  before 
notice  of  the  demand  of  any  other  creditor,  he  is  not  required  in 
consequence  of  such  notice  to  represent  the  estate  insolvent, 
but  may  plead  that  he  has  fully  administered,  and  be  discharged 
on  proving  such  pa^anents." 

Or  if  any  effects  remain,  and  such  remainder  is  insufficient 
to  satisfy  a  demand  of  which  he  afterwards  has  notice,  he  is 
liable  to  pay  only  so  much  as  may  then  remain ;  if  there  are  two 
or  more  such  demands,  which  together  exceed  the  amount  of  as- 
sets remaining,  he  may  then  represent  the  estate  insolvent,  and 
pay  over  the  amount  in  his  bauds  to  such  persons  as  the  Court 
shall  order ;  but  creditors  who  have  been  previously  paid  cannot 
be  required  to  refund  any  part  of  the  amount  received  by  them.^ 

5  §  10906  G.   C,    §  985;    Greenleaf  It  is  no  bar  to  an  action  against 

vs.  Allen,   127   IMass.  248 ;   Converse  an  administrator  on  a  debt  of  his  in- 

vs.  Johnson,  146  Mass.  20;   Browne  testate,  that  he  gave  due  notice  of 

vs.  Doolittle,   151   Mass.  595.  his  appointment,  and  had  no  notice 

But  he  is  accountable  for  money  within  a  year  thereafter  of  demands 

paid    on'    debts    within     the    year,  against  the  estate  which  would  au- 

though  without  the  knowledge  that  thorize  him  to  represent  it  insolvent; 

the  estate  was   insolvent.     Cobb  vs.  and  applied  in  payment  of  the  debts 

Muzzey,    13    Gray,    57.  of  the  deceased  all  the  personal  and 

In  case  the  estate  has  been  repre-  a  sufficient  portion  of   the  real  es- 

sented  insolvent,  the  whole  amount  tate   to   pay   the   debts   then   ascer- 

of  the  judgment  against  the  admin-  tained;    and   that  the   heirs   at  the 

istrator,  including  costs  as  well  as  same  time  sold  all  the  residue  of  the 

debts,  is  to  be  certified  to  the  judge  real   estate;   and   the  administrator 

of  Probate,  and  added  to  the  list  of  rendered    his    final    account    which 

claims  reported  by  the  commission-  was    allowed.     The    statute    applies 

ers  of  insolvency.     Healy  vs.   Root,  only  when   the  whole  of  the  estate 

11  Pick.  389.  has    been    exhausted.     Hildreth    vs. 

«§  10741     G.    C,     §667;     §10742  Marshall,   7   Gray,    167;    Bassett  vs. 

G.   C,    §669;    Gushing   vs.   Field,   9  Granger,   136  Mass.   174. 

Met.    180;    Fuller  vs.   Connelly,   142  ^  Colegrove  vs.  Robinson,   11  Met. 

Mass.  227;  Browne  vs.  Doolittle,  238;  Heard  vs.  Drake,  4  Gray,  514. 
supra. 


§961 


INSOLVENT  ESTATES 


876 


§  961,     Application  for  insolvency. 

The  representation  of  insolvency  must  be  addressed  to  the 
Probate  Court  in  tlie  county  in  which  the  executor  or  adminis- 
trator was  appointed,  and  should  set  forth  the  amount  of  the 
indebtedness  of  the  estate,  so  far  as  it  can  be  ascertained  (in- 
cluding the  funeral  expenses,  charges  of  administration,  and  the 
allowance,  if  any,  made  to  the  widow  or  minor  children),  and 
the  amount  of  the  assets  in  the  hands  of  the  executor  or  admin- 
istrator. There  should  also  be  filed  a  list  of  the  claims  against 
the  estate,  showing  the  name  of  each  creditor  and  the  sum 
claimed  by  each.  If  the  evidence  of  the  fact  of  insolvency  is 
satisfactory,  the  Court  may  appoint  two  or  more  fit  persons  to 
be  commissioners  to  receive  and  examine  the  claims  of  creditors.* 


This  provision  of  the  statute  ap- 
plies to  payments  made  after  the  ex- 
piration of  six  months.  If  the  execu- 
tor, within  a  year  after  giving  no- 
tice of  his  appointment,  pays  a  debt 
of  his  intestate,  he  may,  if  the  es- 
tate afterwards  proves  insolvent,  re- 
cover of  the  creditors  the  excess  of 
the  sum  so  paid  over  the  amount 
awarded  to  the  creditor  by  commis- 
sioners of  insolvency.  Walker  vs. 
Hill,  17  Mass.  380;  Bliss  vs.  Lee,  17 
Pick.  83 ;  Heard  vs.  Drake,  4  Gray, 
514;  Richards  vs.  Nightingale,  9  Al- 
len,  149. 

The  administrator  cannot  recover 
unless  he  proves  the  insolvency  of 
the  estate  by  a  commission  of  insol- 
vency regularly  issued,  executed  and 
leturned,  and  a  dividend  declared  by 
the  Court.  Bascom  vs.  Butterfield, 
1  Met.  536;  Flint  vs.  Valpey.  130 
Mass.  385. 

The  general  statute  of  limitations 
will  begin  to  run  against  the  claim 
of  the  administrator  from  the  date 
when  the  dividend  is  ordered.  Rich- 
ards vs.  Nightingale,  9  Allen,  149. 

A  decree  of  the  Probate  Court  al- 
lowing  distribution   of   all   the   per- 


sonal estate  of  a  deceased  person  be- 
fore the  end  of  the  two  years  of  ad- 
ministration, is  void  as  to  creditors 
prosecuting  their  claims  within  that 
period,  whether  they  have  notice  of 
it  or  not;  and  the  administrator  has 
no  defense  to  actions  by  such  credit- 
ors. Browne  vs.  Doolittle,  151 
Mass.  595;  Newell  vs.  Peaslee,  151 
Mass.  601. 

8  Newell  vs.  West,  149  Mass.  520. 

Where  a  judge  of  Probate  has  re- 
jected a  representation  of  insolvency 
made  by  an  administrator,  and  upon 
a  second  application,  which  the  ad- 
ministrator offered  to  support  by 
legal  evidence,  again  refused  to  re- 
ceive it,  giving  his  former  decision 
as  a  reason  for  the  second  denial, 
and  an  appeal  was  taken,  he  was  di- 
rected to  receive  the  evidence,  and 
thereupon  to  decree  according  to  law 
and  the  justice  of  the  case.  Buck- 
nam  vs.  Phelps,  6  Mass.  448. 

No  appeal  lies  from  a  decree  of 
the  Probate  Court  appointing  such 
commissioners.  Putney  vs.  Fletch- 
er, 140  Mass.  596;  Smith  Pro.  Law 
194. 


877  APPLICATION    FOR  §  962 

Or  the  Court  may  refuse  to  appoint  commissioners  and  allow 
the  administrator  or  executor  to  act  as  commissioner  to  receive 
and  examine  the  claims.^  As  a  general  rule  the  administrator 
or  executor  should  be  appointed  or  allowed  to  act  as  commis- 
sioner, as  he  is  familiar  with  all  the  affairs  of  the  estate  and 
is  the  one  to  whom  claims  against  the  estate  are  presented ;  and 
therefore  as  a  matter  of  convenience  the  course  pursued  in  this 
chapter  will  be  the  consideration  first  of  the  subject  when  the 
administrator  or  executor  acts  as  commissioner.  The  method 
to  be  pursued  when  commissioners  are  appointed  will  be  the 
subject  of  the  next  chapter. 

§  962.     Form  of  application. 

Probate  Court, County,  Ohio. 

In  the  Matter  of 

the  Estate  of 

,  deceased. 

No 

Representation  of  Insolvency. 
To  the  Probate  Judge  of  said  County: 

The   undersigned of  the  estate  of 

,  deceased,  respectfully  represents  that  the  total  value  of  the  real 

and  personal  estate  of   said  decedent  is   about dollars; 

that  the  cost  of  administration   and  other   preferred   claims   against  said 

estate  amount  to dollars ;    and  that  the  balance  of  the 

assets  applicable  to  the  payment  of  ordinary  claims,  will  not  exceed 

dollars ;  that  claims  against  said  estate  have  been  presented  to 

the  undersigned,  or  have  come  to  his  knowledge,  amounting  to 

dollars,  as  will  appear  by  the  following  schedule: 

Names    of    Creditors 

Nature    of    Claim 

Original    Amount $ •. 

Interest     $ 

Amount  now  due $ 

Wherefore  the  undersigned  asks  that  said  estate  may  be  declared  prob- 
ably insolvent,  and  that  such  proceedings  may  be  had  in  the  premises  as 
are  authorized  by   law. 


of ,  deceased. 

190. .. 

The  State  of  Ohio, County,  ss. 

of  the  estate  of deceased, 

being  duly  sworn  says  that  the  statements  in  the  foregoing  representation 
are  true  as  he  verily  believes. 


Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 

Probate  Judge.io 

9  §  10898   G.   C.   §  963.  lo  See  §  994. 


I  963  INSOLVENT  ESTATES  '  878 

§  963.  When  commissioners  not  appointed,  executor  or  ad- 
ministrator to  act  as  such.  "If  the  court  does  not  appoint 
commissioners,  when  satisfied  that  the  estate  will  probably  be 
insolvent,  the  executor  or  administrator  shall  proceed,  in  the 
place  of  such  commissioners,  to  receive  and  allow,  if  valid,  the 
claims  of  creditors  against  the  estate,  and  return  to  the  court  a 
list  of  all  claims  laid  before  him,  with  the  sum  allowed  by  him 
on  each  claim."     [R.  S.  §  6236.]^^ 


§  964.    Entry  and  order  declaring  the  estate  insolvent. 

If  the  Court  is  satisfied  that  the  assets  of  the  estate  will  prob- 
ably be  insufficient  for  the  payment  of  all  the  debts  of  the  de- 
cedent it  may  in  its  discretion  appoint  commissioners.^^  Or 
if  it  does  not  think  fit  to  appoint  commissioners,  the  executor 
shall  proceed  and  perform  the  duties  of  a  commissioner.  The 
Court  usually  acts  upon  the  facts  set  out  in  the  application  and 
the  entry  thereon  may  be  in  the  following  form: 

{Title.) 

This  day  this  cause  came  on  to  be  heard  iipon  the  application  of  A.  B., 
administrator  of  the  estate  of  C.  D.,  herein  filed,  and  representing  to  the 
Court  that  the  estate  of  said  C.  D.  is  probably  insolvent  and  the  same  was 
submitted  to  the  Court  upon  the  said  application  and  testimony. 

Wliereupon,  after  due  consideration,  the  Court  finds  that  the  allegations 
of  said  application  are  true  and  that  the  said  estate  of  C.  D.,  deceased,  is 
probably  insolvent;  and  the  Court  is  further  of  the  opinion  that  the 
interest  of  all  concerned  in  said  estate  will  be  best  subserved  by  the  said 
A.  B.  acting  as  a  commissioner  to  receive  and  allow  the  valid  claims  of 
creditors  against  the  estate. 

Wherefore  it  is  ordered  that  said  estate  be  and  the  same  is  hereby  de- 
clared insolvent  and  the  said  A.  B.  is  directed  to  receive  and  allow  the 
claims  presented  in  the  same  manner  that  commissioners  should  do  as 
provided   by   statute. 

It  is  further  ordered  that  said  A.  B.  shall  give  notice  as  provided  in 
■§  10898   G.   C,   to  the   creditors   of   said   estate,   that   the   sajne  has   been 

declared  insolvent  by   publication   in   the    newspaper  for 

three  weeks,  one  insertion  each  week. is 

§  965.  Executor  or  administrator  shall  give  notice  of  in- 
solvency of  estate  to  creditors.  "In  such  case,  immediately 
after  the  court  declares  the  estate  probably  insolvent,  the  ad- 

11  §  10896  G.  C.  less  the  Court  makes  some  order,  the 

12  §  11050    G.  C,    §  993.  notice    may    be    given    by    posting. 

13  Or  whatever  the  Court  may  or-  Cut  in  all  cases  whether  by  posting 
der  in  reference  to  such  notice,  the  or  by  publication,  the  Court  should 
entry  should  make  provision  there-  define  how  the  notice  should  be 
for.    For  by  §  10897  G.  C,  §  965,  un-  given. 


879  PRESENTATION  OF  CLAIMS  §  966 

ministrator  or  executor  shall  give  notice  to  creditors  of  its 
insolvency  and  to  present  their  claims  to  him  within  three 
months  for  allowance,  by  causing  notification  to  be  posted  in 
public  places  in  the  township  in  which  the  deceased  last  dwelt, 
or  in  such  other  manner  as  having  regard  to  the  situation  of 
the  creditors  of  the  estate,  the  court  orders."  [R.  S.  §6237; 
102  V.  205.]^^ 

§  966.    Form  of  notice. 

The  notice  mentioned  in  the  next  preceding  section  in  sub- 
stance may  be  as  follows : 

On  tlie day  of ,  in  the  year   ,  the  Probate 

Court  of   county  declared  the  estate  of 

deceased,  to  be  probably  insolvent:  Creditors,  therefore,  are  required  to 
present  their  claims  apainst  the  estate  to  the  undersigTied.  for  allowance, 
within  three  months  from  the  time  above  mentioned,  or  they  will  not  be 
entitled  to  payment. 

(Signed.) 

Date    

Executors  or  administrators,  etc. 

[R.  S.  §6238;  102  v.  205.]'^^ 

§  967.  Time  allowed  in  such  cases  for  creditors  to  present 
claims.  List  of  claims  to  be  filed.  "After  the  court  declares 
the  estate  probably  insolvent,  three  months  must  be  allowed  the 
creditors,  to  present  their  claims  to  the  executors  or  adminis- 
trators. Further  time  may  be  granted  therefor,  in  like  manner 
as  when  commissioners  are  appointed  to  receive  and  audit 
claims.  After  the  expiration  of  such  period,  the  executor  or 
administrator  shall  file  the  list  of  the  claims  hereinbefore  men- 
tioned."    [R.  S.  §6239;  102  v.  205.]  ^« 


§  968.     Comments. 

If  for  any  reason,  the  Court  may  think  it  necessary,  it  may 
allow  additional  time  not  exceeding  twelve  months  from  the 
date  of  the  appointment  of  the  administrator.  It  seems  that 
this  application  for  an  extension  of  time  may  be  applied  for  by 

14  §  10897  G.  C.  See  §  997. 

15  §  10898  G.  C.  16  §  10899  G.  C. 
Copy    and    proof    of    this    notice           See  §  998. 

should  be  filed  with  report  of  valid  A  claim  once  presented  to  the  ad- 

claimK.  ministrator   and   accepted   need   not 

be  again  presented.    Haley  vs.  King, 
1  C.  C.  44;   1  C.  D.  27. 


§  969  INSOLVENT  ESTATES  880 

any  ci'editor  who  has  failed  after  using  due  diligence  to  present 
his  claim  for  approval.^^ 

The  application  should  fully  set  forth  the  facts  of  the  case 
and  may  be  in  the  following  form : 

FORM  OF  APPLICATION. 

(Title.) 

Xow  comes  E.  F.  and.  represents  to  the  Oourt  that  he  is  a  creditor  of 
the  estate  of  C.  D.,  deceased.  That  he  has  been  absent  from  the  State 
during  the  period  of  three  months  time  allowed  to  A.  B.,  administrator  of 
said  estate  for  presentation  to  him  of  claims  against  said  estate  and  that 
he  had  no  notice  of  said  proceedings  of  insolvency  in  time  to  make  a 
presentation  of  his  claim. 

Wherefore  he  asks  that  further  time  may  be  allowed  to  the  creditors  to 
present  their  claims  against  said  estate. 

Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 


The  following  may  ser\'e  as  an  entry : 

(Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  application  of  E.  F., 
creditor  of  the  estate  of  C.  D.,  deceased,  for  an  extension  of  time  to  present 
claims  against  the  estate  of  said  C.  D. ;  and  the  same  was  submitted  to  the 
Court. 

Whereupon  Court  finds  that  the  allegations  of  said  application  are  true, 
and  it  is  the  opinion  of  the  Court  that  it  is  proper  and  ne-cessary  that  tlie 

time  of  presentation  of  claims  be  extended  for  a  further  period  of . 

months,    and   it   is   ordered   that   said   time   be   extended months. '» 

§  969.    Claim  disallowed  may  be  submitted  to  referees.    "If 

a  claim,  so  presented  to  the  executor  or  administrator  for  al- 
lowance, be  disallowed,  in  whole  or  part,  it  may  be  referred  to 
referees,  by  the  agreement  of  the  parties,  in  the  manner  here- 
tofore prescribed  in  this  chapter."     [R.  S.  §  6240.]^^ 

§  970.    Presentation  and  proof  of  claims. 

The  claims  must  be  presented  with  three  months,  unless 
further  time  be  allowed  and  the  administrator  has  no  right  to 

17  Walker  vs.  Lyman's  Adminis-  The  reference  to  arbitration  re- 
trators,  6  Pick.  458 :  Towle  vs.  Ban-  ferred  to  in  this  section  probably 
nister.    16   Pick.   255.  means  the  arbitration  pro\'ided  for 

18  Extension  of  time  does  not  ex-  in  ordinary  claims  against  the  es- 
tend  the  time  in  which  suit  must  be  tate,  in  cases  where  the  estate  is 
brought  on  rejected  claims.  solvent.     See  §  594  et  seq. 

19  §  10900  G.  C. 


881  PRESENTATION  OF  CLAIMS  «§970 

receive  a  claim  beyond  such  a  length  of  time.^®*  The  statute 
is  not  clear  as  to  the  method  the  administrator  or  executor  shall 
adopt  to  satisfy  himself  as  to  the  validity  of  the  claim.  As  he 
is  to  act  in  the  place  of  a  commissioner  it  is  fair  to  presume 
that  the  rule  laid  dowii  for  the  method  in  which  claims  are  to 
be  established  before  the  commissioners  would  apply  to  the  ad- 
ministrator or  executor  when  acting  as  commissioner,  and  it 
may  therefore  be  said  that  he  may  fix  the  time  for  the  hearing 
of  claims  and  administer  oaths  to  witnesses  and  proceed  in  the 
hearing  of  the  matter  in  the  same  way  that  a  judge  or  referee 
would  hear  it.  He  may,  and  perhaps  in  the  absence  of  contro- 
versy it  is  the  rule  that  should  be  usually  followed,  require  the 
claimant  to  make  an  affidavit  to  his  claims  in  the  same  method 
as  is  prescribed  by  law  for  the  presentation  of  a  claim  to  an 
executor  or  administrator.^" 

Where  a  claim  against  an  estate  is  allowed  by  an  administra- 
tor thereof,  and  the  verified  account  is  left  wdth  him,  and  the 
estate  is  afterwards  declared  probably  insolvent,  and  no  com- 
missioners of  insolvency  appointed,  the  claim  should  be  reported 
to  the  Court  as  a  valid  one,  without  a  new  presentation  and 
allowance  thereof,  unless  the  holder  of  such  claim  is  duly  notified 
by  the  administrator  that  it  is  disputed  or  rejected  by  him.^^ 

Whatever  the  proof  may  be  it  must  be  such  that  satisfies  the 
administrator  or  executor  that  the  claim  is  valid.  The  party 
has  a  right  by  excepting  to  the  report  to  have  the  question  passed 
upon  by  the  Probate  Court, "^  or  may  bring  action  on 
the  claim. ^^*  The  administrator  or  executor  is  to  liqui- 
date and  balance  all  mutual  demands  subsisting  between 
the  deceased  insolvent  and  his  creditor.  If  the  balance  is 
found  in  favor  of  the  creditor,  it  should  be  allowed  by  the  com- 
missioner, and  included  in  his  report ;  but  if  the  balance  is  found 
to  be  against  the  creditor,  it  is  not  a  subject  of  their  report, 
which  is  to  include  claims  against  the  estate  only.^^     A  claim 

i9»  10901    G.    C,    §971;     §10908  22  Cromwell  vs.  Herron,  11  C.  C. 

G.  C,  §987.  448;   5  C.  D.   19G. 

20  See  §  552  et  seq.  --*  §  10901   G.   C,    §  971. 

21  Haley  vs.  Krug,  1  C.  C.  44 ;  1  23  When  the  defendant  in  a  suit 
C.  D.  27.  brought  by  the  administrator  of  an 


§971 


INSOLVENT  ESTATES 


882 


payable  absolutely  may  be  proved  before  its  maturity ;  and  con- 
tingent liabilities  which  become  absolute  debts  at  any  time  be- 
fore being  presented  to  the  commissioners  may  be  allowed.^* 


§  971.  If  not  referred,  creditors  to  commence  snit.  Limita- 
tion. "If  such  claim  is  not  so  referred,  the  creditor  shall 
commence  a  suit  thereon,  within  three  months  after  its  dis- 
allowance, or  within  three  months  after  it  or  any  part  thereof, 
becomes  due,  for  its  recovery.  If  no  suit  is  begun  within  such 
time,  the  claim  shall  be  forever  barred."     [R.  S.  §  6241.] ^^ 


insolvent  estate  files  in  set-off  a 
claim  larger  than  that  on  which  he 
is  sued,  he  is  entitled  to  judgment 
for  the  balance,  and  need  not  pre-, 
sent  his  claim  to  the  commissioners. 
The  judgment  is  to  be  presented  to 
the  j\idge  of  Probate  and  by  him 
added  to  the  claims  allowed  by  the 
commissioners.  Bigelow  vs.  Folger, 
2  Met.  25.5. 

In  such  suit  the  defendant  may 
set  off  a  note  which  falls  due  pend- 
ing the  suit,  though  not  due  when 
the  action,  was  commenced.  Ibid.; 
Boyden  vs.  Mass.  Life  Ins.  Co.,  153 
Mass.  544. 

24  See  §  10887  G.  C,  §  982. 

A  stipulation  in  partnership 
articles  that  in  case  of  the  decease 
of  either  partner  the  business  may 
be  carried  on  for  one  year  by  the 
survivor  for  the  mutual  benefit  of 
both  parties,  does  not,  in  case  of  the 
death  of  one  partner,  justify  the  al- 
lowance against  his  insolvent  es- 
tate of  a  debt  contracted  by  the  sur- 
vivor within  the  year,  with  one  who 
had  notice  of  the  death.  Stanwood 
vs.  Owen,  14  Gray,  195;  Bacon  vs. 
Pomeroy,   104  Mass.  576. 

Payments  made  by  the  surviving 
partner  while  carrying  on  the  part- 
nership business  pursuant  to  such 
stipulation,  upon  an  account,  some 
items  of  which  were  contracted  be- 


fore, and  some  after,  the  death  of 
the  other  partner,  must  be  applied 
to  the  discharge  of  the  first  items. 
Ibid.  A  surviving  partner  may 
prove  a  claim  against  the  estate  of 
his  deceased  partner.  Sparhawk  vs. 
Russell,  10  Met.  305;  Haverhill 
Loan  and  Fund  Assoc,  vs.  Cronin,  4 
Allen,    141. 

A  lessor  is  entitled  to  prove  his 
claim  for  rent  becoming  payable  by 
the  terms  of  the  lease  before  or  after 
the  death  of  the  lessee,  up  to  the 
time  the  claim  is  presented  to  the 
commissioners,  but  not  for  rent  pay- 
able in  the  future.  Deane  vs.  Cald- 
well, 127  Mass.  242;  Bowditch  vs. 
Raymond,   146   IMass.    109. 

And  see  Wilby  vs.  Phinney,  15 
Mass.  116;  Harding  vs.  Smith,  11 
Pick.  478;  Savage  vs.  Winchester, 
15  Gray,  453. 

A  ward  after  coming  of  age  is  not 
entitled  to  prove  against  the  estate 
in  insolvency  of  his  guardian,  a 
claim  for  the  property  which  came 
into  the  hands  of  the  guardian,  until 
the  latter  has  settled  his  account  in 
the  Probate  Court,  or  imtil  a  judg- 
ment has  been  obtained  on  his  bond. 
Murray  vs.  Wood,  144  Mass.  195. 
See  Thorndike  vs.  Hinckley,  155 
Mass.  263;   Smith  Pro.  Law  198. 

See  §  982,  Contingent  debts. 

25  §  10901  G.  C. 


883  PREPARATION  OF  REPORT  §  972 

§  972.  Court  or  referee  to  award  costs.  "In  a  suit  or  pro- 
ceeding upon  a  claim  mentioned  in  the  next  preceding  section, 
the  referees  or  court,  before  whom  it  is  tried,  may  direct  such 
costs  to  be  awarded  against  the  creditor,  or  the  executor  or  ad- 
ministrator, personally,  or  to  be  paid  out  of  the  assets  of  the 
estate,  as  a  part  of  the  costs  of  administration,  as  shall  be  just, 
having  reference  to  the  facts  that  appeared  on  the  trial."  [R.  S. 
§6242.]=« 

§  973.    How  judgment  to  be  rendered  on  disallowed  claim. 

"The  judgment  on  the  award  or  in  the  suit  upon  the  claim  men- 
tioned in  the  next  preceding  section,  shall  be  rendered  in  the 
manner,  and  with  the  effect,  provided  in  the  case  of  an  appeal 
from  the  award  of  commissioners."    R.  S.  §  6243.]^'' 

§  974.     Preparation  of  report. 

The  administrator  or  executor  must  after  the  expiration  of  the 
period  allowed  for  the  filing  of  claims,  file  a  list  of  the  claims 
presented.  This  report  should  set  out  the  names  of  the  credi- 
tors, kind  of  a  claim,  amount  of  claim,  rate  of  interest  and  total 
amoimt  due ;  and  it  would  be  advisable  to  make  separate  lists 
of  the  claims  allowed  and  those  rejected.  When  a  claim  is  re- 
jected the  reason  ought  briefly  to  be  stated.  A  question  of  some 
difficulty  often  presents  itself  as  to  the  calculation  of  interest  on 
the  claims.  If  the  estate  is  hopelessly  insolvent,  it  makes 
little  difference  to  what  period  the  interest  is  calculated,  be  it  at 
the  death  of  the  deceased  or  the  date  of  the  filing  of  the  report. 
The  better  plan  would  be,  and  one  to  which  there  could  be  no 
objection,  to  calculate  the  interest  of  each  claim  up  to  the  date 
of  the  time  when  the  report  is  to  be  filed.     Interest  should  be 

The  above  section  seems  to  be  an       stitute  a   rejection  as   if  the  estate 
absolute  bar  if  suit  is  not  brought      had   not  been    declared    insolvent, 
within  three  months  from  the  time  See   §  552   et  seq.,  as  to  rejection 

the  claim  has  been  rejected  and  the      of  claims. 
Bame  rule  would  be  applied  to  con-  ^o  §  10002  G.  C. 

27  §  10903  G.  C. 


§  975  INSOLVENT  ESTATES  884 

calculated  at  the  rate  stipulated  in  the  instrument  evidencing  the 
indebtedness,  or  if  no  rate  is  stipulated  the  legal  rate  of  six 
per  cent,  will  prevail.  If  claims  are  not  due  a  rebate  might 
be  made.  Another  question  which  sometimes  presents  itself  is, 
where  a  creditor  has  his  claim  secured,  whether  he  is  entitled  to 
receive  a  dividend  on  the  full  amount  of  his  claim  or  only  so 
much  thereof  as  remains  after  the  security  has  been  exhausted 
and  applied  on  the  claim.  There  is  a  difference  of  opinion  on 
this  question.  The  Circuit  Court  in  Cromwell  v.  Herron,^*  held 
that  the  claim  is  entitled  to  a  dividend  on  the  full  amount.  And 
United  States  Courts  have  held  to  the  same  effect.^®  Other 
Courts  have  held  that  all  a  preferred  creditor  is  entitled  to,  is  a 
dividend  on  his  claim  after  it  has  been  reduced  by  application  of 
the  security.^"  And  Woerner  says^°*  "This  view  seems  to  be 
gaining  ground  in  the  United  States,  as  being  consonant  with 
principles  of  justice,  and  putting  the  specialty  creditors  and 
general  creditors  on  same  footing."  ^^ 

§  975.     Report  of  claims  presented  in  insolvency. 

In  Probate  Court. 
In  the  Matter  of  the  Estate  of ,  deceased. 


To  the  Probate  Court  of County,  Ohio. 

The    undersigned of    the of 

,   deceased,   makes   report  —  That   he  gave  notice   in  due  form   of 

28  11  C.  C.  448;   5  C.  D.   106.  The  Supreme  Court  in  State  Xa- 
See  annuity  table  for  calculation       tional    Bank    vs.    Esterly.    48    Bull. 

of  debt  not  due.  909;  69  0.  S.  39,  has  finally  settled 

29  Merrill  vs.  Natl.  Bank.  19  Sup.  this  matter  in  assignment  matters, 
r^f  Tj  o^^  TVT  XT  -11  Tx  /  that  the  claimant  is  only  entitled  to 
Ct.  Rep.  360;  McNeill  vs.  Hagerty,  ^.^,.^^^^^  ^^  ^^^  remainder  after  the 


31    Bull.    356;    51    D.    S.    255;    See 


coUateral  has  been  applied. 


Jelke  vs.  Stallo,  1  N.  P.  29 ;   1  Dec.  30*  Woerner  on  Admin.  859. 

43.  31  He  gives  Earle  vs.  Lane,  22  Col. 

30  Spence  vs.  Kiefer,  4  N.  P.  439 ;  273-278 ;    LaPlante    vs.    Convey,    98 

7  Dec.  386;  7  N.  P.  624.  Ind.  499;   Wintz  vs.  Hart,   13  Iowa 

In  the  case  of  Cromwell  vs.  Her-  515,  518;  Masonic  Bank  vs.  Bangs, 
ron.  11  C.  C.  451  5  C.  D.  196;  §4  Ky.  135,  144;  Union  Bank  vs. 
T  ,  o  -^T,  •  ^,•  ^  •  •  f  Mariguv.  11  Rob.  La.  209;  Haver- 
Judge  Smith  says  in  his  decision  of  ,  .,,  ^  '  r^  ■  a  ^^^  ^A^  vx\^^ 
f  ■  ,  hill  vs.  Cronm,  4  Allen,  141;  HiU 
that  case,  "  So  far  as  I  am  concerned  ^^  Tounley,  45  ilinn.  167 ;  Drew  vs. 
I  come  to  this  conclusion  with  re-  Daniel,  6o"n.  H.  482;  Bell  vs.  Flem- 
luctance,  for  I  feel  that  it  is  not  the  \^a^  \2  N.  J.  Eq.  13-25 ;  Hanselt  vs. 
most  equitable  rule."  Patterson,  124  N.  Y.  349;  Moore  vs. 

This  matter  will  be  further  dis-  Dunn,  92  N.  C.  63 ;  Wheat  vs.  Ding- 
cussed  in  Assignments  for  benefit  of  l^y,  32  ,S.  C.  473.  as  supporting  the 
creditors.      U631.  ^'i«^v  taken  in  Spence  vs.  Kiefer. 


885 


KEPOKT  OF  CLAIMS 


976 


law,  of  the  probable  insolvency  of  the  estate  of  said  decedent,  a  copy  of 
which  notice,  with  proof  of  publication,  is  filed  herewith,  marked  "A," 
and  made  part  of  this  report; — and  that  after  carefully  examining  tho 
claims  against  said  estate   presented   to   him   for  allowance,   he   has  made 

disposition  of  the  same  as  follows: —  interest  computed  from 

,   190. ..to ,    190..  .. 

CLAIMS     ALLOWED. 


NAMES  OF  CREDITORS. 


Kind 

of 
Claim. 


Amount 

of 
Claim. 


Rate 

of 

Interest. 


Interest 


Accrued. 


190. 


Amount 

Total 

Now   Due. 


CLAIMS   NOT  ALLOWED. 


NAMES  OF  CREDITORS. 


Kind 

of 
Claim. 


Amount 

of 
Claim. 


With     I      At 
Interest 
From    I      % 


Amount 
Claimed  as 
Now  Due. 


Administrator  — •  Executor 


Respectfully  submitted, 
•  of    the of ,    deceased. 


§  976.  When  court  to  make  order  of  distribution  on  return 
of  list  of  debts.  "After  the  expiration  of  thirty  days  from, 
the  return  by  the  executors  or  administrators  of  the  list  of  debts, 
the  court  shall  make  an  order  of  distribution,  as  provided  in  the 
ease  of  the  return  of  the  commissioners,  except  that  the  court 
may  first  hear  and  determine  any  exceptions  filed,  by  a  person 
interested,  against  the  allowance  of  debts  allowed  by  the  ex- 
ecutor or  administrator,  and  also  make  an  order  in  relation  to 
any  suit  pending  against  an  executor  or  administrator,  as  when 
an  appeal  is  had,  or  pending,  before  or  at  the  time  an  order  of 
distribution  is  required,  upon  the  report  of  commissioners." 
[R.  S.  §6244.]  32 

§  977.    Hearing  and  order  of  distribution. 

This  report  is  to  be  on  file  in  the  office  of  the  Probate  Judge 
for  a  period  of  thirty  days,  and  it  should  have  attached  to  it  a 
proof  of  service  of  notice  required  by  sec.  6236  R.  S.^^    This  is 


32  §  10904  G.  C. 


33  §  963. 


§  977  INSOLVENT  ESTATES  886 

for  the  purpose  of  permitting  any  interested  person  to  file  ex- 
ceptions to  such  report  and  then  the  questions  raised  by  the 
exception  are  to  be  heard  and  determined  by  the  Probate  Court. 
And  in  such  cases  the  Probate  Court  has  the  power  to  adjudge 
whether  a  part  of  the  fund  in  the  hands  of  the  administrator 
shall  be  used  to  pay  a  particular  claim.^* 

In  this  case  ^^  the  question  was  made  that  a  certain  person  nad 
a  lien  or  a  priority  of  right  to  a  certain  portion  of  the  funds  in 
the  hands  of  the  administrator,  and  it  was  held  that  the  same 
rule  applied  that  applies  in  the  distribution  of  the  estate  in 
assignment  for  the  benefit  of  creditors,  that  necessarily  in  de- 
termining how  the  assets  should  be  distributed,  the  Court  must 
pass  upon  the  question  whether  any  part  of  the  effects  to  be 
distributed  shall  be  used  for  the  payment  of  a  particular  debt 
and  until  such  question  is  determined,  the  Court  could  not 
determine  what  distribution  "  the  case  shall  require." 

If  no  exceptions  are  filed  at  the  end  of  thirty  days,  the  Court 
should  make  an  order  in  conformity  to  the  report  filed.  The 
entry  for  the  order  may  be  as  follows : 

FORM  OF  ENTRY. 
{Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  report  of  claims 
allowed  and  disallowed  by  A.  B..  administrator  (or  executor)  of  the  estate 
of  C.  D.  Said  estate  having  been  declared  insolvent  and  the  same  was 
submitted  to  the  Court,  whereupon  the  Court  finds  that  thirty  days  have 
expired  since  said  report  was  filed  in  Court,  and  that  no  exceptions  have 
been  filed  thereto,  and  that  the  same  has  been  examined  by  the  Court  and 
is  now  and  here  proved. 

The  Court  further  finds  that  the  said  A.  B.  has  given  notice  as  required 
by  section  10898  G.  C.,35*  and  that  said  three  months'  time  from  the 
giving  of  said  notice  had  expired  when  said  report  was  filed  in  this  Court; 
and  the  Court  finds  that  the  notice  giveu  was  correct  and  according  to  law. 
It  is  ordered  that  said  administrator  •  (or  executor)  of  the  estate  of  said 
A.  B.,  after  deducting  from  the  assets  in  his  hands  the  amount  necessary 
to  pay  the  costs  of  administration  that  may  yet  accrue,  pay  over  to  the 
creditors  whose  claims  liave  been  allowed  under  the  proceedings  had  in 
insolvency  in  this  Court  an  equal  portion  according  to  their  respective 
claims,  the  balance  of  the  assets  there  remaining,  the  sum  being  a  dividend 

of per   cent,    and    that    he   make   a    report   to    this    Court   of    such 

distribution.36 

8*  Brown    vs.    Trottner,    11    C.    C.  try  the  manner  in  which  the  credit- 

498;    5  C.  D.  222.  ors  shall  be  notified. 

35  Id.  503,  citing  Clapp  ts.  Bank-  In    making   the    distribution,    the 

ing  Co.,  50  0.  S.  524.  preferred  creditors,  if  the  assets  are 

35*  §  966.  sufficient,  are  paid  in  full,  in  the  or- 

»•  The  Court  may  add  in  this  en- 


887  REPORT  OF  DIVIDENDS  §  978 

§  978.     Report  of  payment  of  dividends. 

The  administrator  or  executor  should  at  the  very  earliest 
possible  time  make  payment  of  the  amoimt  to  which  each  credi- 
tor is  entitled.  If  he  fails  to  do  so,  he  may  be  sued  as  provided 
in  the  previous  section. ^^ 

The  following  may  be  used  as  a  form : 

REPORT  OF  PAYMENT  OF  DIVIDENDS  IN  INSOLVENCY. 
In  the  Matter  of  the  Estate  of ,  deceased. 


In  the  Probate  Court  of County,  Ohio. 

The  undersigned, of  the of 

,  deceased  makes  report :       That  in  obedience  to  a  former  order  of 

this    Court,     made ,     190..,     .  .he.  .ha. .  .made     distribution 

from  the  assets  of  said  estate  in  his  hands,  to  the  persons  entitled  thereto, 
on  account  of  their  several  claims  heretofore  presented  and  allowed  (and  for 
which  payments,  vouchers  are  herewith  filed),  as  follows,  to- wit: 

Total  Balance,  due  estate,  as  per  account  filed 190.  .     $ 

Less  amounts  paid  —  Costs  of  this  proceeding  and  preferred  claims,  viz: 
Probate  Judge,  voucher     $ 

Total, $ 


Balance  for  distribution  to  general  creditors,         -        -        -     $ 

DISTRIBUTION    TO    GENERAL    CREDITORS. P^TE PER    CENT. 

Interest   computed    from ,    190 .. ,    to ,    190 . 

Names   of   creditors 

Kind  of  claim 


der  required  by  statute.     If  there  is  the    joint    creditors.     If    there    is   a 

not  enough  to  pay  all  the  debts  on  balance  of  the  joint  stock  after  the 

any  one  class,  the  creditors  of  that  pajment  of  the  joint  debts,  it  is  di- 

class  are  paid  ratably  upon  their  re-  vided  among  the  separate  estates  of 

Bpective  debts.     The  balance  remain-  Ihe  partners  according  to  their  re- 

ing  after   the  payment   of  the   pre-  spective     interests     therein,     as     it 

ferred  claims  is  distributed  ratably  would  have  been  if  the  partnership 

among  the   other   creditors.     If   the  had    been    dissolved    without    insol- 

deceased   had   been  a   member   of   a  vency ;  and  the  sum  so  appropriated 

co-partnership,   and   died   in   posses-  to  the  separate  estate  of  each  part- 

eion  of  both   separate  and  partner-  ner  is  applied  to  the  payment  of  his 

ship  estate,  and  was  indebted  as  a  separate  debts.     Howe  vs.  Lawrence, 

partner   as   well   as   on   private   ac-  9  Cush.  553 ;  Fall  River  Whaling  Co. 

count,  his  partnership  debts  are  pay-  vs.  Borden,  10  Cush.  458;  Jewett  vs. 

able  from  the  partnership  estate,  and  Phillips,   5   Allen,    150;    Smith   Pro. 

his  separate  debts  from  his  separate  Law.   209. 

estate.     If  there  is  a  balance  of  the  See     §  1011,     Distribution     after 

separate  estate  after  the  pajment  of  commissioner's  return, 

his   separate   debts,   it   is   added    to  37  §  108G9  G.  C  §  262, 
the  joint  stock  for  the  payment  of 


§  979  INSOLVENT  ESTATES  888 


Amount  claimed. 

Interest  due 

Total  due 

Amount  paid.  .  .  . 
Voucher    


Respectfully  submitted, 
Administrator  —  Executor  —  of of ,    deceased. 


The  State  of  Ohio, County,  ss. 

,   above  named,  being  sworn,  says 

that  the  foregoing  account  and  statement  are  in  all  respects  correct. 


Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 

, Probate   Judge. 

§  979.     Confirmation  of  distribution. 

The  executor  or  administrator  having  filed  his  report  of  dis- 
tribution the  Court  should  carefully  examine  the  same  with  th'e 
same  prudence  and  care  that  would  be  exercised  in  an  ordinary 
account  of  an  executor  or  administrator.  The  footings  should 
be  verified  and  the  vouchers  compared,  and  if  it  is  ascertained 
to  be  correct,  an  entry  should  be  made,  of  which  the  followirg 
may  sei've  as  a  general  form : 

( Title. ) 

This  day  this  matter  came  on  to  be  heard  upon  the  report  of  distribution 
made  by  A.  B.,  as  administrator  of  C.  D.,  whose  estate  has  heretofore  been 
declared  to  be  insolvent;  and  said  report  having  been  duly  and  carefully 
examined  by  the  Court,  is  found  to  be  correct  and  according  to  law.  and  the 
same  is  hereby  proved  and  it  is  ordered  that  said  report  and  proceedings 
hereunder  be  recorded  and  that  the  said  administrator  (or  executor)  be  dis- 
charged from  his  trust. 

§  980.     When  court  to  make  further  order  of  distribution. 

"If  all  the  assets  were  not  distributed  on  the  first  order  of  dis- 
tribution, or  if  further  assets  afterward  come  to  the  hands  of  the 
executor  or  administrator,  the  court  shall  make  such  order  or 
orders   for  their  distribution   as   the   case  requires."      [R.   S. 

S6245.J3S 

§  981.     Exceptions. 

When  the  Court  makes  its  order  of  distribution,  it  may  hear 
exceptions  that  may  be  filed. by  any  person  against  the  allowance 

38  §  10905  G.  C. 


889  EXCEPTIONS CONTINGENT,  ETC.  §  982 

of  any  debts  which  have  been  allowed  by  the  administrator  or 
executor.^'^  It  will  be  observed  that  exceptions  can  only  be 
taken  where  the  claim  has  been  allowed.  If  it  has  been  rejected, 
the  creditor  must  bring  suit  Avithin  three  months,*"  or  submit  it 
to  arbitration ;  and  it  has  also  been  held  by  filing  an  exception 
a  question  may  be  raised  as  to  a  priority  of  liens  on  some  part  of 
the  fund." 

On  his  report  of  distribution,  the  questions  that  could  be 
raised  in.  exceptions  to  an  ordinary  account  could  be  raised 
against  such  report  of  distribution,  except  those  claims  which 
had  been  reported  as  valid  in  the  report  of  the  list  of  valid  debts, 
could  not  be  attacked  and  the  right  of  the  administrator  to  paj 
the  same  as  reported  to  the  Court  in  such  report  of  valid  debts, 
could  not  be  questioned.  The  order  of  the  Court  c-onfirming  the 
report  of  valid  debts  against  the  estate  is  an  adjudication,  and 
unless  appealed  from  would  stand  as  a  charge  against  the  ad- 
ministrator or  executor,  for  which  suit  might  be  brought  against 
him  on  his  bond.*^*  The  statute  seems  to  make  no  provision 
for  opening  up  a  report  of  distribution,  and  the  order  of  the 
Court  thereon  Avould  seem  to  be  a  finality,  unless  it  was  ap- 
pealed from  as  provided  by  law.*" 

If  on  the  trial  of  exceptions  the  Court  sustain  the  same,  an 
entry  to  that  effect  should  be  made,  and  the  report  of  valid 
claims  should  be  made  to  conform  thereto.  If  any  one  is 
aggrieved  thereby,  he  could  appeal  from  the  decision  of  the 
Probate  Court  or  Common  Pleas  Court. *^ 

§  982.  Provisions  for  contingent  debts.  "At  the  return  of 
the  list  of  claims  against  the  estate  so  made  out  by  the  com- 
missioners, or  by  the  executor  or  administrator  as  hereinafter 
provided,  if  a  person  be  liable  as  a  surety  for  the  deceased,  or 
has  any  other  contingent  claim  against  his  estate  which  could 
not  be  proved  as  a  debt  under  the  commission,  upon  the  pres- 
entation and  proof  of  it,  before  the  court,  in  ordering  a  divi- 
dend it  shall  leave  in  the  hands  of  the  executor  or  administrator, 

39  §  10904  G.  C,  §  976.  4i*  §  265. 

40  §10901  G.  C,  §971.  42  See    §§735-741,    as   to   form   of 

41  Cromwell  vs.  Herron,  11   C.  C.       exception,  trial,  etc. 
448;  5  C.  D.  196.  43  §  112O6  G.  C,  §39. 


§  983  INSOLVENT  ESTATES  890 

a  sum  sufficient  to  pay  to  such  contingent  creditor,  a  proportion 
equal  to  what  then  is   paid  to   the   other   creditors."      [R.    S. 

§6227.]*^ 

§  983.  When  contingent  debt  becomes  absolute.  ' '  If,  within 
four  years  after  the  date  of  the  administration  bond,  such  con- 
tingent debt  becomes  absolute,  it  may  be  allowed  by  the  court, 
if  not  disputed  by  the  executor  or  administrator.  If  disputed 
it  may  be  proved  before  the  commissioners  already  appointed, 
or  others  to  be  appointed  by  the  court,  in  like  manner  as  if 
presented  before  the  first  return  of  the  list  of  claims  against  the 
estate."     [R.  S.  §  6228.] « 

§984.  Dividend  thereon.  Disposition  of  residue.  "Upon 
the  allo^yance  of  such  claim,  the  creditor  shall  be  entitled  to  a 
dividend  thereon,  equal  to  w^hat  was  paid  to  other  creditors  so 
far  as  it  can  be  paid  without  disturbing  the  former  dividend. 
If  his  claim  is  not  finally  established,  or  if  the  dividend  due  to 
him  does  not  exhaust  the  assets  in  the  hands  of  the  executor  or 
administrator,  the  residue  shall  be  divided  among  all  the  cred- 
itors who  have  proved  their  debts."     [R.  S.  §  6229.] *« 

§  985.  Action  against  executor  or  administrator  of  insolvent 
estate.  "No  action  shall  be  maintained  against  an  executor 
or  administrator  after  the  estate  is  represented  insolvent,  unless 
it  be  for  a  demand  that  is  entitled  to  a  preference,  and  would 
not  be  affected  by  the  insolvency  of  the  estate,  or  the  assets 
prove  more  than  sufficient  to  pay  all  the  debts  allowed  by  the 
commissioners,  or  a  claim  is  presented  and  rejected,  or  disputed 
by  the  executor  or  administrator,  before  the  estate  is  repre- 
sented as  insolvent,  or  the  suit  is  brought  against  the  executor 
or  administrator,  while  acting  in  the  place  of  commissioners, 
upon  an  estate  represented  to  be  insolvent,  and  upon  a  claim 
disallowed  by  such  executor  or  administrator."     [R.  S.  §  6246. ]'*^ 

§  985a.  Estate  declared  insolvent  while  action  against  it 
pending.  "If  an  estate  is  represented  insolvent,  while  an 
action  is  pending  against  an  executor  or  administrator,  for  a 

44  §  10887  G.  C.  does  not  terminate  within  four  years, 

It   will   be  observed   that  the  ob-  the  fund  must  be  distributed  to  tlie 

ject    of    this    section    is    to    protect  other    creditor.      See    §  970   of   this 

claims  that  could  not  be  presented  chapter. 

against  the  estate  to  the  administra-  See  §  569  et  seq. 

tor.     But  it  seems  that  it  only  ap-  i->  §  10888  G.  C. 

plies  when  the  contingency  may  be  ^^  §  10889  G.  C. 

terminated  within  four  years.     If  it  *"  §  10906  G.  C. 


891  BARRED    CLAIMS  §  986 

demand  that  is  not  entitled  to  preference,  it  may  be  discon- 
tinued without  the  payment  of  costs ;  or,  if  the  demand  is  dis- 
puted, the  action  may  be  tried  and  determined,  and  judgment 
be  rendered  thereon,  in  the  manner  and  with  the  effect  pro- 
vided in  the  ease  of  an  appeal  from  the  award  of  commissioners ; 
or,  the  case  may  be  continued  until  it  appears  whether  the 
estate  is  insolvent.  If  it  proves  not  to  be  so,  the  plaintiff  may 
prosecute  the  action  as  if  no  such  representation  had  been, 
made."     [R.  S.  §6246.]*^* 

§  986.     Comments. 

It  will  be  observed  that  the  above  section  protects  the  admin- 
istrator or  executor  against  suit,  while  the  estate  is  in  progi*ess  of 
being  settled  by  the  methods  provided  by  this  section.  Speci- 
fically, no  action  can  be  brought  unless  first  it  is  for  a  demand 
that  is  entitled  to  preference,  and  therefore  it  would  not  be  af- 
fected by  the  solvency  or  insolvency  of  the  estate.  But  I  ap- 
prehend tliat  it  could  not  be  brought  even  if  it  were  such  a  de- 
mand, unless  it  was  first  presented  to  the  administrator  and  by 
him  rejected.  The  second,  exception  given  above  is,  that  no  ac- 
tion shall  be  brought  unless  the  assets  are  more  than  sufficient 
to  pay  all  the  debts.  Or  giving  a  tliird  reason,  if  the  claim  has 
been  disputed  by  the  executor  or  administrator  before  the  estate 
is  represented  insolvent.  Or  fourthly  unless  suit  is  brought 
against  the  executor  or  administrator  upon  a  claim  which  was 
disallowed  by  such  executor  or  administrator.  These  cover  all 
cases  in  which  the  suit  may  be  brought  against  an  administrator 
or  executor  after  the  estate  has  been  declared  insolvent. 

§  987.    Claims  not  presented  as  required,  barred  unless,  etc. 

"Every  creditor  of  an  estate  that  proves  to  be  insolvent,  wiio 
has  not  presented  his  claim  for  allowance,  in  the  manner  pre- 
scribed herein,  shall  be  forever  barred  from  recovering  it,  unless 
assets  of  the  deceased  come  to  the  hands  of  the  executor  or 
administrator,  after  the  order  of  distribution,  in  which  case  his 
claim  may  be  proved,  allowed,  and  paid,  in  the  manner  and  with 
the  limitations  provided  for  the  case  of  contingent  debts." 
[R.  S.  §6247.]*« 

47*  §  10907  G.  C.  See  §  607  et  seq.,  as  to  Limitation 

See  State  vs.  'Scliott,  22  Dec.  320.      of  actions  against  administrator,  etc. 
48§  10908  G.  C. 


§  988  INSOLVENT  ESTATES  892 

§  988.  If  surplus  remain  after  paying  debts  allowed,  other 
creditors  may  claim  it.  "After  the  report  of  the  commission- 
ers of  insolvency,  or  of  the  executor  or  administrator  acting  in 
their  place,  if  the  assets  prove  to  be  sufficient  to  pay  all  debts 
allowed  under  the  commission,  or  under  the  report  of  the  ex- 
ecutor or  administrator,  as  the  case  may  be,  the  executor  or 
administrator  must  pay  them  in  full.  After  such  order  is  made, 
if  other  debts  be  recovered  against  him,  he  shall  be  liable  there- 
for only  to  the  extent  of  assets  then  in  his  hands."  [R.  S. 
§6248.]*^ 

§  989.     How  divided  between  two  or  more  such  creditors. 

"If  there  be  two  or  more  such  creditors,  the  assets,  if  not  suffi- 
cient to  pay  their  demands  in  full,  shall  be  divided  among  them, 
in  proportion  to  the  amount  of  their  respective  debts."  [R.  S. 
§  6249.]  5° 

§  990.  Executor  or  administrator  liable  only  for  assets  in 
his  hands.  "In  such  case,  the  executor  or  administrator  may 
prove  the  amount  of  the  assets  in  his  hands,  whereupon  judg- 
ment must  be  rendered  in  the  usual  form.  Execution  shall  not 
issue  for  more  than  the  amount  of  such  assets ;  and  if  there  is 
more  than  one  judgment,  the  court  shall  apportion  the  amount 
between  them."     [R.  S.  §6250.] 

§  991.     Creditor  may  sue  after  two  years  in  case,  etc.    ' '  At 

the  end  of  two  years  after  granting  letters  testamentary,  or  of 
administration,  if  it  is  not  ascertained  whether  an  estate  rep- 
resented insolvent,  is  or  is  not  so  in  fact,  any  creditor  whose 
claim  was  not  presented  before  the  commissioners,  or  to  the 
executor  or  administrator  acting  in  their  place,  may  commence 
an  action  for  it  against  the  executor  or  administrator,  which 
may  be  continued  for  the  defendant  until  it  appears  whether 
the  estate  is  insolvent.  If  it  should  not  prove  to  be  so  the 
plaintiff  may  prosecute  his  action  as  if  no  such  representation 
had  been  made."     [R.  S.  §  6251;  102  v.  205.]" 

§  992.  When  and  how  executor  or  administrator  may  be 
compelled  to  render  his  account  to  court.  "If  an  executor  or 
administrator  neglects  to  render  and  settle  his  accounts  in  court, 
within  three  months  after  the  return  is  made  by  the  commis- 
sioners, or  by  the  executor  or  administrator,  in  their  place,  or 
after  the  final  liquidation  of  the  demands  of  the  creditors,  or 

*9  §  10909  G.  a  51  §  10911  G.  C. 

eo  §  10910  G.  C.  52  §  10912  G.  C. 


b93  ACCOUNT,   ETC.  §  992 

within  such  further  time  as  the  court  allows  in  which  to  col- 
lect the  debts  and  assets,  so  as  to  delay  an  order  of  distribution, 
he  may  be  compelled  to  render  such  account,  in  the  manner 
hereinbefore  directed,  to  compel  the  return  of  an  inventory. 
The  same  proceedings  may  be  had  to  attach  and  to  discharge 
him,  and  the  like  revocation  of  the  letters  to  him  be  made  as  in 
case  of  a  party  absconding  or  concealing  himself,  so  that  no 
order  can  be  personally  served,  or  of  his  neglecting  to  render 
an  account  within  thirty  days  after  being  committed.  New 
letters  shall  be  granted  with  the  like  effect,  and  remedies  on  the 
administration  bond,  as  in  those  cases."  [R.  S.  §6252;  102 
v.  205.]  ^3 

63  §  10913  G.  0. 


§993 


INSOLVENT  ESTATES 


894 


CHAPTER   LIU. 

SETTLEMENT  OF  INSOLVENT  ESTATES  BY  COMMISSIONER, 

ETC. 


§  993  When   estate   insolvent,   Court       §  1003 
to  appoint  commissioners  to 
audit  claims.  §  1004 

§  994  Comments. 

§  995  Duties  of   administrator,   etc.. 

when  commissioners  appoint-        §  1005 
ed.  §  1006 

§  996  Commissioners   to   give   notice 

of   their   appointment,   etc.  §  1007 

§  997   Form  of  notice,  etc. 

§  998  Time  allowed  creditors  to  pre-        §  1008 
sent  and  prove  claims.     Com- 
missioners     to      report      to       §  1009 
Court.  §  1010 

§  999  Presentation  of  claims. 

§  1000  Commissioners        examine 

claimants  on  oath.  r  jqII 

§  1001  Any  one  of  commissioners  to 
administer    oath. 

§  1002  Hearing  and  action  on  claim.       §  101"2 


Report  of  the  commission- 
ers. 

Appeal  from  decision  of  com- 
missioner, how  perfected. 
Hearing  and  costs. 

Procedure   and   appeal. 

Form  of  bond,  and  notice  of 
appeal. 

Duty  of  commssioners  when 
bond  or  notice  is  filed. 

How  persons  should  proceed 
who  have  omitted  to  appeal. 

Comments. 

Allowance  of  appeal  not  to 
disturb  distribution  previ- 
ously made. 

Distribution  among  creditors 
after  commissioners  return. 

Compensation  of  commission- 
ers. 


§  993.  When  estate  insolvent,  court  to  appoint  commission- 
ers to  audit  claims.  "AYhen,  from  the  representation  of  an 
executor  or  administrator,  it  appears  to  the  court  that  the  real 
and  personal  estate  of  the  deceased  will  probably  be  inisufficient 
for  the  payment  of  his  debts,  it  may  appoint  two  or  more  fit 
persons  to  be  commissioners  to  receive  and  examine  all  claims 
of  creditors  against  the  estate,  including  claims  presented  and 
allowed  by  the  administrator  or  executor,  and  other  claims  duly 
verified  and  presented  to  them,  and  return  to  the  court  a  list 
of  the  claims  thus  laid  before  them,  with  the  sum  they  allowed 
on  each  claim.  Before  entering  on  the  duties  of  their  office,  the 
commissioners  must  be  sworn  to  the  faithful  discharge  thereof." 
[R.  S.  §6224.]! 


1  §§  10884  to  10914  G.  C,  deal 
wholly  with  creditors  and  not  for 
the   heirs,   for   the   reason   that   the 


heirs  have  no  beneficial  interest  in 
an  insolvent  estate.  Insurance  vs. 
Bank,  172  Fed.  390. 


895  BY   COMMISSIONERS  §  994 

§  994.     Comments. 

By  the  above  section  of  the  General  Code,  the  Probate 
Court  is  permitted  in  the  case  of  insolvent  estates  to  appoint  a 
board  of  quasi  judicial  character  to  determine  the  validity  of 
claims  against  the  estate."  There  seems  to  be  very  little  use 
for  the  appointment  of  such  board,  and  except  in  very  large  and 
complicated  estates  it  would  be  far  better  to  allow  the  adminis- 
trator or  executor  to  serve  as  a  commissioner.  The  right  to 
appoint  commissioners  vests  solely  in  the  Probate  Court  and  no 
appeal  would  lie  from  action  of  the  Court  thereon.^ 

Upon  receiving  their  appointment  and  before  entering  upon 
their  duties,  they  must  be  sworn  to  the  faithful  discharge  of 
the  same.  The  form  of  the  oath  to  be  administered  may  be  as 
follows : 

State  of  Ohio,  Clark  County,  ss. 

E.  F.  and  G.  H.,  being  duly  sworn,  say  that  they  will  faithfully  and 
impartially  discharge  all  of  the  duties  devolving  upon  them  by  law,  as 
commissioners  to  receive  and  examine  all  claims  of  creditors  against  the 
estate  of  A.  B.,  deceased,  and  report  the  same  to  Court  as  provided  by  law, 
and  according  to  their  best  understanding  and  ability. 

Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 

There  is  no  statutory  requirement  as  to  the  ineligibility  of  a 
person  to  act  as  commissioner,  but  the  Court  should  select  only 
such  as  are  competent  by  knowledge  and  experience,  to  properly 
perform  their  duties,  and  free  from  influences  by  relation  or 
otherAvise,  which  Avould  affect  their  judgment  in  the  discharge  of 
the  trust  devolving  upon  them.  It  is  presumed  that  the  com- 
missioners will  as  soon  as  they  are  informed  of  their  appoint- 

3  As  to  form  of  application  to  be  3  Putney  vs.   Fletcher,   140  Mass. 

filed,  see  §  962.  596. 

An   entry   thereon    can   easily   be  The  commissioners  shall   act  and 

adopted  to  suit  an  appointment  of  have  the  power  of  a  quasi  judicial 
oommissioners.  tribunal.    'Cromwell  vs.  Herron,  11 

C.  C.  452;  5  C.  D.  196. 


§  995  INSOLVENT  ESTATES  896 

ment,  enter  upon  the  discharge  of  their  duties.  ISTo  formal 
method  is  prescribed  as  to  the  manner  in  which  they  should  be 
notified.  It  is  presumed  that  the  Court  or  parties  interested 
will  convey  to  them  this  information. 

§  995.     Duties   of   administrator,   etc.,   when   commissioners  ap- 
pointed. 

The  only  power  that  the  commissioners  have  is  to  receive  and 
audit  the  claims  against  the  estate  and  report  the  same  to  the 
Probate  Court.  It  only  interferes  with  the  ordinary  duties  of 
the  administrator  or  executor,  that  it  takes  away  from  him  the 
allowance  or  rejection  of  claims  against  the  estate.  Otherwise 
he  acts  as  if  no  commissioners  had  been  appointed.  He  will 
proceed  to  collect  all  the  assets  and  convert  the  real  estate  into 
money,  and  after  the  report  of  the  commissioners  has  been 
passed  upon  by  the  Court,  it  will  be  the  duty  of  the  administra- 
tor or  executor  to  make  distribution  of  the  funds  in  his  hands  in 
conformity  with  the  order  of  the  Court.  It  would  be  the  duty  of 
the  administrator  to  turn  over  to  the  commissioners  all  evidences 
of  indebtedness  against  the  estate  which  are  in  his  possession. 
It  would  likewise  be  his  duty  to  attend  the  sessions  of  the  com- 
missioners, and  if  a  claim  was  allowed  which  in  his  judgment 
should  not  have  been  allowed,  to  appeal  the  same  to  the  Probate 
Court.  If  he  is  guilty  of  corrupt  conduct  in  not  opposing  the 
allowance  of  illegal  claims,  he  will  be  liable  to  an  action  on  his 
bond.* 

It  is  held  under  the  Massachusetts  law,  that  the  individual 
claim  of  the  administrator  or  executor  is  not  to  be  presented 
to  the  commissioners,  but  to  the  Court  for  allowance.^ 

§  996.     Commissioners  to  give  notice  of  their  appointment,  etc. 

As  soon  as  the  commissioners  have  received  notice  of  their 
appointment,  they  must  fix  a  time  and  place,  where  they  will 


♦  Parson  vs.  Mills,  2  Mass.   80.  536;    Newell    vs.    West,    149    Mass. 

B  Green    vs.    Russell,     132    Mass.       520. 


897  APPOINTMENT   OF   COMMISSIONEES  §  997 

hold  their  session  for  the  purpose  of  examining  claims  and 
creditors.     The  statute  relating  thereto  is  as  follows: 

"The  commissioners  of  insolvency  shall  appoint  convenient 
times  and  places  for  their  meetings,  to  receive  and  examine  all 
claims  of  creditors  as  provided  for  in  the  next  preceding  section, 
and  give  notice  thereof,  in  writing,  to  each  of  such  creditors  by 
mailing  it  to  his  postoffice  address;  and  further,  by  causing 
notification  to  be  posted  up  in  some  public  places  where  the  de- 
ceased last  dwelt,  or  in  such  other  manner  as  the  court  having 
regard  to  the  situation  of  the  creditors  of  the  estate,  may  order.'* 
[R.  S.  §6225.]« 

§  997.    Form  of  notice,  etc. 

No  particular  form  of  notice  is  required.  The  notice  provided 
in  sec.  10898,  G.  C,  would  be  sufficient  with  the  matter  added, 
fixing  the  time  and  place  where  the  commissioners  will  meet  for 
the  purpose  of  receiving  and  auditing  the  claims.  In  addition 
to  sending  a  notice  in  writing  to  each  of  the  creditors,  it  further 
provides  that  the  notice  shall  be  put  up  in  some  public  place  in 
the  vicinity  where  the  deceased  last  dwelt,  or  in  such  other  man- 
ner as  the  Court  may  provide.  Generally  the  Court  will  pro- 
vide that  notice  shall  be  given  in  a  newspaper  of  general  circu- 
lation for  such  a  length  of  time  as  it  may  think  fit.  A  copy  of 
the  notice  sent  to  the  creditors  and  the  date  of  its  mailing  as 
well  as  a  copy  of  the  notice  published  with  proof  of  its  publi- 
cation should  be  filed  with  the  report  of  the  commissioners. 
The  commissioners  ought  perhaps  to  fix,  especially  where  the 
estate  is  large,  two  or  three  different  days  on  which  they  will 
be  in  session.'^ 

§  998.  Time  allowed  for  creditors  to  present  and  prove  their 
claims;  commissioners  to  report  to  court.  "After  the  appoint- 
ment of  the  commissioners,  three  months  shall  be  allowed  to 
creditors  to  present  and  prove  their  claims.  The  court  may 
allow  such  further  time  for  this  purpose,  not  to  exceed  one 
year  from  the  date  of  the  commission,  as  it  thinks  necessary. 

e  §  10885   G.   C.  7  §  966. 


§  999  INSOLVENT  ESTATES  898 

At  the  expiration  of  the  time  for  proof  of  debts,  the  commis- 
sioners must  make  their  written  report  to  the  court."  [R.  S. 
§6226;  102  V.  205.] « 


§  999.     Presentation  of  claims. 

All  kinds  of  claims  against  the  estate  ought  to  be  presented  to 
the  commissioners ;  even  claims  reduced  to  judgment.  Also  all 
claims  that  have  been  previously  presented  to  the  administrator 
or  executor ;  likewise  claims  which  have  a  preference  ought  to  be 
presented,  for  it  is  the  intention  of  the  statute  that  this  board  of 
commissioners  should  audit  and  receive  all  the  claims  against  the 
estate  and  if  creditors  fail  to  present  their  claims  they  shall  be 
forever  barred  from  recovering  the  same/ 

If  a  person  hold  a  claim  against  the  estate  which  was  secured 
and  he  did  not  present  it,  the  estate  would  be  relieved  and  the 
creditor  would  be  obliged  to  look  to  the  security  alone  for  its 
payment.  Contingent  claims  as  well  as  those  fixed  must  be 
presented.^" 

The  commissioners  cannot  allow  claims  after  the  expiration 
of  the  time  limited  by  statute  or  fixed  by  the  Court^^  For  a 
good  reason  the  Court  may  extend  the  time.^^  But  such  exten- 
sion of  time  does  not  relieve  a  creditor  from  the  obligation  to 
commence  the  prosecution  of  his  claims.^^  It  is  provided  by 
a  subsequent  section,^*  that  a  person  who  by  accident  or  other- 
wise fails  to  appeal  his  claim  may  prosecute  an  appeal  to  the 
Probate  Court.  But  this  does  not  apply  to  cases  where  claims 
have  not  been  presented  at  all.  As  was  said  in  a  previous  chap- 
ter,^^  the  creditor  in  order  to  protect  his  rights  must  strictly 
pursue  the  line  marked  out  by  the  statute.  Any  other  course  is 
dangerous  and  may  defeat  his  right.     Necessarily  in  cases  where 

e  §  10836  G.  C.  12  §  10886    G.    C.    §11899    G.    C, 

This  section  is  very  much  similar  §  967. 

to  §  10899  G.  C,  §  9G7.  12  Walker    vs.    Lamins    Admr.,    6 

9  §  10908  G.  C,  §987.  Pick.    458;    Towie   vs.    Banister,    16 

10  §  10887  G.  C.,    982.  Pick.   255. 

iiBascon  vs.  Butterfield,   1  Mete.  i*  §  10891  G.  C.,  §  1008. 

536.  15  §  552  et  seq. 


899  EXAMINATION  OF  CLAIMANTS  §  1000 

an  estate  is  insolvent,  there  must  be  a  reasonably  short  limit 
upon  the  presentation  of  claims  so  that  the  same  can  be  expedi- 
tiously distributed. 

§  1000.  Commissioners  examine  claimants  on  oath.  "When 
they  think  it  proper,  the  commissioners  may  require  an  oath 
to  be  administered  to  a  claimant,  and  thereupon  examine  him 
on  all  matters  relating  to  his  claim.  If  he  refuses  to  take  such 
oath,  or  to  answer  fully  all  questions  lawfully  put  to  him,  the 
commissioners  may  disallow  his  claim.  On  an  appeal  from  the 
award  of  the  commissioners,  the  court  shall  examine  the  claim- 
ant on  oath,  and  disallow  his  claim,  if  he  refuses  to  take  the 
oath,  or  to  answer  fully  upon  his  examination  thereon."  [R.  S. 
§6233.]i« 

§  1001.      Any    one    of    commissioners    to    administer    oath. 

"Any  of  the  commissioners  may  administer  the  oath  to  the 
claimant,  and  also  the  oath  to  all  witnesses  produced  and  exam- 
ined before  them."     [R.  S.  §6234.]^^ 

§  1002.     Hearing  and  action  on  claim. 

At  the  time  set  for  hearing,  or  at  such  other  time  as  the 
board  of  commissioners  may  adjourn  to  from  time  to  time  they 
shall  proceed  to  hear  in  an  orderly  manner  the  witnesses  to  the 
claims  presented.  They  shall  have  power  to  administer  oaths 
to  the  claimaiut  himseK  and  question  him  concerning  his  claims.^® 
And  if  he  refuses  to  answer,  the  penalty  attached  is  a  rejection  of 
his  claim.  They  may  also  administer  oaths  to  all  witnesses 
produced.  The  statute  does  not  give  them  the  authority  to  sub- 
poena witnesses.  This-examination  should  be  carried  on  under 
the  same  rules  of  evidence  applicable  to  any  Court  of  justice. 
The  commissioners  shall  liquidate  and  balance  all  mutual  de- 
mands subsisting  between  the  deceased  insolvent  and  his  credi- 
tors. If  the  balance  is  found  in  favor  of  the  creditors,  it  should 
be  allowed  by  the  commissioners,  and  included  in  their  reports ; 

te  §  10893  G.  C.  »8  §  10883  G.  C.  §  593. 

IT  §  10894  G.  0. 


§  1003  INSOLVENT  ESTATES  900 

but  if  the  balance  is  found  to  be  against  tbe  creditors,  it  is  not 
a  subject  of  theiV  report,  which  is  to  include  claims  against  the 
estate  only/'' 

§  1003.     Report  of  the  commissioners. 

At  the  end  of  three  months  after  their  appointment  they  must 
make  their  written  report  to  the  Court.  This  report  should  be 
very  much  similar  to  that  made  by  the  administrator  or  execu- 
tor when  he  is  acting  as  such  commissioner.  It  should  have 
filed  with  it,  a  proof  of  the  notice  given  to  creditors,  when  given 
by  mail,  or  publication  or  posting  up,  for  if  no  such  notice  "be 
given,  the  creditors  will  not  be  barred  of  their  right  to  present 
claims.  The  form  provided  in  sec.  975  of  the  previous  chapter 
can  easily  be  adopted  for  report  by  commissioners.  Likewise 
the  entry  of  distribution  would  be  very  much  similar,^**  and  the 
commissioners  may  be  compelled  on  motion  of  an  interested 
party  to  make  a  return-'^ 

§  1004.  Appeal  from  decision  of  commissioners,  how  per- 
fected. Hearing  and  costs.  "A  person  -whose  claim  is  disal- 
lowed in  whole  or  part,  by  the  commissioners,  and  an  executor 
or  administrator  who  is  dissatisfied  with  the  allowance  of  any 
claim,  may  appeal  from  the  decision  of  the  commissioners  to 
the  probate  court.  If  the  creditor  appeals,  within  ten  days 
after  the  decision,  he  must  file  with  the  commissioners  a  bond 
to  the  executor  or  administrator,  with  surety  to  be  approved 
by  the  commissioners  in  the  sum  of  one  hundred  dollars,  con- 
ditioned to  pay  all  costs  adjudged  against  him  on  such  appeal. 

19  When  the  defendant   in  a   suit  falls   due   pending  the  suit,   though 

brought  by  the  administrator  of  an  not  due  when  the  action  was  com- 

insolvent    estate    files    in    set-off    a  menced.     Ibid;     Boyden    vs.    Mass. 

claim  larger  than  that  on  which  he  Life  Ins.  Co.,  153  Mass.  548;  Smith 

is  sued,  he  is  entitled  to  judgment  Pro.  Law  198. 

for  the  balance,  and  need  not  pre-  20  Equitable    liabilities    shall    be 

sent  his  claim  to  the  commissioners.  deemed  to  be  debts  provable  against 

The  judgment  is  to  be  presented  to  insolvent    estates    of    deceased    per- 

the  judge  of   Probate,   and   by   him  sons. 

added  to  the  claims  allowed  by  the  21  Blanchard  vs.  Allen,  116  Masa. 

commissioners.     Bigelow  vs.  Fowler,  447. 

2   Met.   255.     In  such   suit  the   de-  See  §  1568,  Form  citation, 
fendant  may   set  off  a   note  which 


901  APPEAL,    ETC.  §  1005 

The  executor  or  administrator  may  appeal  by  giving  notice  to 
the  commissioners  within  ten  days.  In  case  of  an  appeal,  as 
soon  as  practicable  the  court  shall  hear  and  determine  the  allow- 
ance or  disallowance  of  the  claim,  and  adjudge  the  costs  against 
the  party  failing  on  such  hearing."     [R.  S.  §  6230.] 22 

§  1005.     Procedure  on  appeal. 

The  statute  furnishing  relief  to  creditors  makes  a  distinction 
between  where  there  is  a  board  of  commissioners,  and  where  the 
administrator  or  executor  is  acting  in  that  capacity.  Where 
there  is  a  board  of  commissioners,  the  creditor  whose  claim  is 
not  allowed  must  seek  his  remedy  by  appeal  to  the  probate  Court. 
If  it  is  not  allowed  where  the  administrator  is  acting  as  commis- 
sioner, he  must  bring  suit  within  three  months.  If  no  one  ap- 
peals as  provided  in  the  statute,  the  report  of  the  commissioners 
is  conclusive.'^ 

The  right  of  appeal  is  given  to  both  the  creditor  and  the  ad- 
ministrator. If  the  creditor  appeals,  he  must  within  ten  days 
after  the  board  of  commissioners  have  rendered  their  decision, 
file  a  bond  as  provided  in  the  previous  section.  If  the  executor 
or  administrator  wdshes  to  appeal,  he  must  give  notice  within 
ten  days  and  the  Probate  Court  must  try  the  case  at  as  early  a 
date  as  the  same  can  practicably  be  done,  and  the  costs  must  be 
charged  against  the  party  who  fails  on  appeal.^* 

§  1006.     Form  of  bond,  and  notice  of  appeal. 

If  the  administrator  or  executor  intends  to  appeal,  he  should 
file  a  notice  with  the  commissioners,  which  must  be  done  within 
ten  days.      The  following  may  serve  as  a  notice : 

22  §  10890  G.  C.  24  Pierce  vs.  Saxton,  14  Pick.  274 ; 
The   Supreme   Court   cannot  take       Perkins  vs.  Fellows,   136  Mass.  294. 

jurisdiction   in  an  appeal  from  the  If  the  creditor,  on  appeal,  does  not 

decision  of  the  commissioner.     Mc-  receive  a  sum  greater  than  that  al- 

Curdy  vs.  Legally,  14  O.  391.  lowed  by  the  commissioners,  the  ex- 

23  Boardman    vs.    Smith,    4    Pick.  ecutor  shall  recover  his  costs  of  suit 
211;     Se6    Wright    vs.    Dunham,    9  against    such    creditor.      Dodge    vs. 

Pick.  37.  Breed,  13  Mass.  537. 


§  1007  INSOLVENT  ESTATES  902 

(Title.) 

To  E.  F.  and  G.  H.,  commissioners  of  the  estate  of  A.  B.,  deceased: 

You  are  hereby   notified  that  I,  as  administrator    (or  executor)    of  the 
estate  of  A.  B.,  deceased,  intend  to  appeal  to  the  Probate  Court  from  your 

decision   rendered   on   the day   of ,allowing   as   a   valid 

claim  against  said  estate,  the  clam  of  J.  K.  for dollars. 


When  such  notice  is  filed  or  when  a  bond  is  filed,  the  commis- 
sioners should  endorse  the  fact  and  date  of  filing  thereon.  If  a 
creditor  wishes  to  appeal,  instead  of  the  notice  he  must  file  a 
bond  which  may  be  in  the  following  form : 

FORM  OF  BOND. 

Know  all  Men  by  the  Presents. 

That  we,  L.  S.  and  P.  Q.,  are  bound  unto  C.  D.,  executor  of  the  last  will 

(or  administrator  of  the  estate)   of  A.  B.,  deceased,  in  the  sum  of 

dollars;  to  the  payment  of  which  we  do  hereby  jointly  and  sev- 
erally bond  ourselves,  if  default  be  made  in  the  conditions  following: 

Whereas  L.  R.  and  C.  H.,  commissioners  appointed  by  the  Probate  Court 

of county,   in   the  State  of  Ohio,  to  receive  and  examine 

claims  against  the  estate  of  the  said  A.  B.,  deceased,  have  refused  to  allow 

i   claim   of dollars    against   the    same,    presented    by    the 

Baid  L.  S.,  from  which  decision  the  said  L.  S.  has  appealed  to  the  Probate 

Court  in  and  for  said  county  of Now,  if  the  said  L.  S.  shall 

prosecute  his  said  appeal  to  effect,  and  shall  pay  the  costs  that  may  have 
accrued  thereon,  and  that  may  accrue  thereon  in  the  Court  of  Common 
Pleas,  in  case  the  claim  shall  be  disallowed  by  the  said  Court,  then  this  obli- 
gation shall  be  void;  otherwise,  it  shall  be  and  remain  in  full  force  and 
effect. 

Signed  by  us  this day  of A.  D.  190 . . . 


§  1007.     Duty  of  commissioners  when  bond  or  notice  is  filed. 

There  seems  to  be  no  provision  in  the  statute  as  to  how  the 
Probate  Court  is  to  have  notice  or  get  jurisdiction  of  a  claim 
when  an  appeal  has  been  taken.  It  is  probably  the  duty  in  such 
cases  of  the  commissioners  to  notify  the  Court  of  such  action 
and  transmit  with  such  report,  the  claim  presented  and  all  mat- 
ters connected  therewith,  which  might  be  something  in  the 
following  form: 

( Title. ) 

To  the  Probate  Court  of County,  Ohio : 

The  undersigned  commissioners,  appointed  by  your  honor,  beg  leave  to 
report  that  in  pursuance  of  the  duties  devolving  upon  them,  on  the 

25  No   reasons    of    appeal    are    re-  2fl  Giauque's     Settlement     of    Es- 

quired  to   be   filed.     Jacobs   vs.   Ja-       tates. 
cobs,  110  Mass.  229. 


903  WHEN  FAILURE  TO  APPEAL  §  1008 

lay  of they  did  allow    (or  reject)    the  claim  of 

in  the  sum  of dollars.     That  thereafter  said 

filed  with  them  a  bond  to  appeal  the  same,  which  bond 

was  approved  by  us.  (If  the  administrator  or  executor  is  the  appealing 
party,  say  the  administrator  gave  written  notice  of  his  intention  to  appeal 
in  said  matter.) 

We  therefore  report  the  fact  of  such  appeal  to  your  honor  and  transmit 
herewith  the  papers  filed  with  us  in  reference  to  said  claims. 


Commissioners.2T 

§  1008.     How  persons  should  proceed  who  have  omitted  to 

appeal.  "A  person  whose  claim  is  disallowed  by  the  com- 
missioners, and  who  by  accident,  mistake,  or  otherwise,  and  not 
by  his  own  neglect,  omits  to  claim  or  prosecute  his  appeal,  as 
before  provided,  upon  his  petition  and  notice  thereof  to  the 
executor  or  administrator,  may  be  allowed  by  the  court  to 
prosecute  his  appeal  in  manner  aforesaid,  upon  such  terms  as 
it  imposes,  if  it  appears  by  affidavit  that  justice  requires  a 
further  examination  of  his  claim.  No  such  petition  shall  be 
sustained,  unless  it  be  presented  within  two  years  after  the 
return  of  the  commissioners,  and  within  four  years  after  the 
date  of  the  administration  bond,  and  before  final  distribution." 
[R.  S.  §  6231.] 28 

§  1009.     Comments. 

The  above  section  is  one  which  saves  to  a  person  the  right  to 
perfect  an  appeal  when  by  reason  of  accident  or  mistake  or  some 
other  good  reason  he  has  neglected  to  perfect  his  appeal  within 
the  time  pennitted  by  law.  Such  a  right  will  rest  largely  in 
the  discretion  of  the  Court.  In  the  application  for  such  an  ap- 
peal the  reason  why  the  same  was  not  perfected  should  be  set 
out  in  detail  and  the  Court  should  be  satisfied  by  affidavit  that 
such  want  of  appeal  was  not  by  neglect.  There  should  be  strong 
and  urgent  reason  in  behalf  of  justice  and  right  before  such 
a  claim  should  be  allowed.  This  section  does  not  permit  the 
Court  to  pass  upon  a  claim  that  was  not  presented  to  the  commis- 
sioners, it  is  confined  to  claims  that  were  disallowed,  etc.^° 

27  Upon    receipt    of    such    notice  of  the  time  when   it  will  be  heard 

from  the  commissioners  the  Probate  and    proceed    thereafter    as    in    any 

judge  should  docket  the  claim  and  other  case, 

set  it  down  for  hearing,  and  notify  28  §  10891  G.  C. 

the  creditor  and  the  administrator  29  See    §  1003. 


§  1010  INSOL\^NT   ESTATES  904 

§  1010.  Allowance  of  appeal  not  to  disturb  distribution  pre- 
viously made.  "The  allowance  of  such  appeal,  and  the  judg- 
ment that  follows  thereon,  shall  not  disturb  any  distribution 
ordered  before  notice  of  the  petition,  or  notice  of  the  intention 
to  present  it  was  given  to  the  executor  or  administrator.  The 
debts,  if  any,  proved  and  allowed  in  the  case  last  mentioned 
shall  be  paid  only  out  of  such  assets  as  remain  in  or  come  to 
the  hands  of  the  executor  or  administrator  after  paying  the 
sums  due  on  such  prior  order  of  distribution."     [R.  S.  §  6232.]^° 

§  1011.  Distribution  among-  creditors  after  commissioners 
return.  "After  the  expiration  of  thirty  days  from  the  return 
made  by  the  commissioners,  the  court  shall  make  such  order  for 
the  distribution  of  the  effects  among  the  creditors  as  the  case 
requires.  If,  before  making  an  order,  the  court  has  notice  of 
an  appeal  from  the  commissioners,  then  made  or  pending,  it 
may  suspend  any  order  until  the  determination  of  such  appeal, 
or  order  a  distribution  among  the  creditors  whose  debts  are 
allowed,  leaving  in  the  hands  of  the  executor  or  administrator  a 
sum  sufficient  to  pay  the  claimant,  whose  demand  is  disputed,  a 
proportion  equal  to  what  is  paid  to  the  other  creditors."  [R.  S. 
§6235.]=^! 

When  the  commissioners  have  filed  their  report,  then  their 
duties  cease  and  the  orders  made  thereafter  are  to  be  enforced 
by  the  administrator  or  executor  in  the  same  manner  as  if  such 
administrator  or  executor  were  acting  as  commissioner.^- 

§  1012.  Compensation  of  commissioners.  ' '  The  court  shall 
allow  the  commissioners  such  compensation  as  it  deems  reason- 
able, for  their  services,  which  the  executor  or  administrator 
must  pay  as  a  part  of  the  costs  of  administration."  [R.  S. 
§6253. 1=^3 

30  §  10892  G.  C.  similar    to    an    order    inade    under 

31  §  10895  G.  C.  §  10904  G.  €.,  §  976. 

This  section  is  very  much  similar  ^-  See    §  977    for    form    of    entry 

to  §  10904  G.  C,  §  976,  and  the  order      which  can  be  readily  adopted  to  meet 
made  in  reference  thereto  would  be       an  entry  under  the  above  section. 

33  §  10914    G.    C. 


905 


WILLS DEFINITIONS 


§1013 


CHAPTER  LIY. 

WILLS  —  GENERALLY. 


§  1013 

§  1014 

§  1015 


§  1016 
§  1017 
§  1018 
§  1019 
§  1020 
§  1021 
§  1022 

§  1023 


Definitions,   etc. 

Distinguishing  characteris- 
tics. 

Confusion  between  wills  and 
other  instruments  in  writ- 
ing. 

Law  governing  will. 

Right  to  make. 

Who  may  make  a  will. 

Any  person. 

Full  age. 

Sound  mind  and   memory. 

Idiots,  imbeciles  and  luna- 
tics. 

Blind,  deaf  and  dumb  per- 
sons. 


§  1024  Person  under  guardianship. 

§  1025  Not  under  any  restraint. 

§  1026  Having  property. 

§  1027  May  give  any  person. 

§  1028  Bequest  or  devise  to  chari- 
table purpose,  when  void. 

§  1029  Corporation  and  charitable 
uses. 

§  1030  Entailed  estates  pass  to  is- 
sue of  first  donee. 

§  1031  Rule  against  perpetuities. 

§  1032  Contract  to  make  a  will. 

§  1033  Statutory  meaning  of  certain 
words  as  applied  to  wills. 


§  1013,     Definitions,  etc. 

It  can  not  be  within  the  province  of  a  work  of  this  character 
to  enter  into  an  extended  discussion  of  the  subject  of  wills. 
But  such  examination  of  the  subject  will  be  given  as  is  most 
likely  to  be  useful  in  the  practice  of  law  in  the  Probate  Court.^^ 

A  "  will,"  "  last  will,"  or  more  accurately,  "  last  will  and 
testament,"  may  be  defined,  in  the  present  condition  of  the  com- 
mon and  statute  law,  as  the  legal  declaration  of  a  man's  intention 
which  he  wills  to  be  performed  after  his  death,  touching  either 
the  disposition  of  his  property,  the  guardianship  of  his  children, 
or  the  administration  of  his  estate.^" 


21  For  full  discussion  of  this  sub- 
ject, the  reader  is  referred  to  works 
exclusively  devoted  thereto.  The 
most  voluminous  is  Jarman  on  Wills. 
The  most  recent  and  a  very  excellent 
work  is  Page  on  Wills,  which  has 
been  used  liberally  in  this  work. 
Schouler's  law  on  Wills  is  also  a 
very  good  work. 

22  Am.  &  Eng.  Ency.  of  Law, 
Wills. 

The  expressed  wish  of  the  testator 
that  all  the  property  shall  go  as  the 


law  directs  with  certain  modifica- 
tions, is  a  testamentary  disposition. 
Huber  vs.  Carey,  26  0.  C.  C.  389; 
aftirmed,  74  O.  S.  469;  Huber  vs. 
Carew,  7  C.  C.  (N.S.)  609;  16  Cir. 
D.  389;  affirming,  2  N.  P.  (N.S.) 
81;  14  Law  D.  656;  affirmed,  no 
report,  etc. 

Will  defined.  Hall  vs.  Hall,  2  O. 
L.  R.  328;    15  Dec.   167. 

See  §  1033,  Statutory  meaning  of 
certain  words. 


§1013  WILLS DEPIi^ITIONS  906 

The  above  definition  seems  to  be  a  broad  one  and  permits 
an  instrument  to  be  classed  as  a  will  which  does  not  make  a 
disposition  of  property.  Upon  this  question  the  Courts  are  not 
in  accord ;  one  of  our  Probate  Judges  held  that  it  was  not  a  will 
unless  it  disposed  of  property,"^  and  a  Common  Pleas  Judge 
held  to  the  contrary."*  Our  statute,  however,  gives  an  infer- 
ence towards  the  idea  that  in  order  to  be  a  valid  will,  it  must 
contain  a  disposition  of  property.^^ 

Of  course  there  can  be  no  valid  will,  unless  it  is  executed 
in  conformity  to  the  statute,  which  recognizes  only  written  wills 
and  nuncupative  wills.  A  number  of  terms  or  words  are  used 
in  the  making  and  construction  of  wills,  which  may  be  defined 
as  follows: 

"  Testament  "  —  An  instrument  which  disposes  of  personalty 
only,  is  called  a  ''  testament,"  and  an  instrument  disposing  of 
both  realty  and  personalty  is  known  as  a  "  will  and  testament." 
The  popular  meaning  of  "  will  "  has  so  far  encroached  upon  the 
technical  meaning,  that  "  will,"  is  used  indiscriminately  of 
instruments  passing  realty  or  personalty  or  both.  "  Testa- 
ment," however,  is  almost  never  used  of  an  instrimient  passing 
realty  only. 

"  Testator  "  —  The  word  "  testator  "  is  very  commonly  used 
of  the  person  making  either  a  will  or  a  testament. 

"  Devisor  " — "  Devisor  "  is,  according  to  derivation,  the  cor- 
rect term  for  one  who  makes  a  will,  but,  while  used,  is  not  com- 
mon.'^* 

"  Devisee,"  on  the  other  hand,  is  the  word  regularly  used  to 
denote  one  to  whom  realty  passes  by  will. 

"  Legatee"  is  properly  used  to  denote  one  to  whom  personalty 
passes  by  will.^^ 

23  See    §1026,    Having   property;  daughters,    L.    and    B.,    each    equal 

In  re  Williamson,  5  N.  P.  1 ;  6  Dec.  heirs   with   my   own   children — held 

505.  the  instrument  was  dispositive  and 

24/n  re  Williamson,  6  N".  P.  79;  devised     to     each     of     the     grand- 

8  Dec.  47.  daughters  an  equal   share  with  the 

25  §  5914  R.  S.,  §  1018.  children. 

In    Moon    vs.    Stewart,    87    O.   S.  25*  Coke    on    Littleton,    vol.     11, 

349;  below  33  0.  C.  C.  337.     When  chapt.  10,  §  17. 

a    will    properly    executed    and    an  26  Xeville  vs.  Dulaney,  89  Va.  842. 

executor  appointed  "after  my  death  There   is   no   property   in   a   dead 

to  settle  up   all   my   property  both  body,   therefore    it   can    not   be   dis- 

real  and  personal,"  the  second  item  posed  of  bv  will.    Herold  vs.  Herold, 

being — I  hereby  make  my  two  grand-  3  N.  P.   (N.S.)   405;   16  Dec.  303. 


907  WILLS — CHARACTERISTICS  §  1014 

"Legatee"  and  "devisee"  are  frequently  interchanged  in 
popular  usage,  however. 

"Devise"  and  "'bequeath" — Of  the  verbs  used  to  denote  the 
act  of  making  a  will,  "  devise  "  is  properly  used  of  realty,  and 
"  bequeath  "  of  personalty. 

"  Devise  " — Of  the  nouns  used  to  name  the  various  forms  of 
gift,  "  devise  "  is  used  of  a  gift  of  realty. 

"  Legacy  " — "  Legacy  "  is  used  of  a  gift  of  a  sum  of  money. 

"  Bequest  "  —  ^'  Bequest  is  used  of  a  gift  of  personalty  in 
general."^ 

None  of  these  words  have  so  fixed  a  legal  meaning,  however, 
that  a  gift  will  fail  because  testator  does  not  use  the  words  de- 
scriptive of  the  gift  or  the  act  of  giving  with  technical  accuracy. 

'A  ''  devise  "  is  often  miscalled  a  "  bequest,"  "*  or  "  bequest  " 
is  often  used  to  include  both  realty  and  personalty,^^  or  is  used  of 
a  gift  of  money  alone.^°  So  the  verb  "  devise  "  is  often  used  to 
refer  to  personalty  alone. ^^ 

§  1014.     Distinguishing   characteristics. 

The  Probate  Judge  will  be  sometimes  called  upon  to  pass  upon 
the  question  whether  a  paper  properly  attested  and  signed  is 
after  all  a  will  or  not.  In  such  cases  where  the  paper  submitted 
for  probate,  is  otherwise  entitled  to  be  probated  as  a  will,  the 
Court  should,  if  any  doubts  exist,  resolve  the  doubt  in  favor 
of  the  will  and  probate  it  and  let  the  matter  be  settled  on  con- 
test. There  are  some  qualities  in  a  will  which  are  termed  in- 
herent. They  are  those  which  cannot  be  altered  without  de- 
stroying every  idea  of  a  will,  and  entirely  altering  its  place  in 
our  law.  These  inherent  elements  are  grouped  under  two  gen- 
eral heads.,  first  the  animus  testandi,  second  the  revocability. 
Animus  testandi  means  the  intention  of  making  a  testamentary 
disposition.  This  matter  is  not  gathered  from  the  words  that 
the  testator  may  use  entirely,  but  from  the  instrument  itself. 
A  man  might  make  a  valid  will  and  yet  call  it  a  deed.^^ 

27  Keating  vs.  McAdoo,  180  Pa.  ai /^  re  White,  125  N.  Y.  544; 
St.  5.  Clark  vs.  Clark,  46  S.  Car.  230. 

28  In  re  White,  125  N.  Y.  544.  Page  on  Wills,   3.     This  work  is 

29  Evans  vs.  Price,  118  111.  593;  made  use  of  quite  frequently  herein. 
Allen  vs.  White,  97  Mass.  504 ;  Lamb  Sco  §  1026. 

vs.  Lamb,  131  N.  Y.  227.  *»  See  Page  on  Wills  38. 

30  White    vs.    Maes.    Institute    of 
Technology,  171  Mass.  84. 


§  1014  WILLS CHARACTERISTICS  908 

A  distinguished  author  divides,  as  to  what  constitutes  this 
animus  testandi,  in  three  separate  ideas.  The  first  is,  that  the 
will  may  deal  with  any  or  all  of  three  things : 

(a)  It  may  deal  with  property  of  the  testator  either  real  or 
personal. 

(b)  It  may  appoint  an  executor  to  take  charge  of  the  estate  of 
the  testator,  and  deal  with  it  according  to  the  law  and  the  will. 

(c)  It  may  appoint  a  guardian  for  the  minor  children  of  the 
testator.  ^^ 

Accordingly  the  formal  expression  by  the  testator  of  his 
wishes  as  to  any  matter  not  included  under  a,  b  and  c  as  above 
given  is  not  a  will,  because  the  subject  matter  is  not  testamentary 
in  its  character.  The  second  idea  is,  that  the  instrument  must 
express  the  wishes  of  the  testator  in  reality  as  well  as  in  outward 
form,  that  is,  the  testator  must  be  able  mentally  to  make  a  will 
and  not  under  restraint,  etc.^* 

And  the  third  idea  included  under  the  term  animus  testayidi 
is,  that  the  will  can  take  effect  only  at  the  death  of  the  testator. 
This  is  one  of  the  important  distinctions  between  a  will  and 
an  instrument  whereby  title  to  property  is  conveyed. 

Revocability,  heretofore  given  as  the  second  of  the  inherent 
elements  follows  very  closely  the  last  idea  of  animus  testandi, 
that  the  will  does  not  take  effeot  until  the  death  of  the  testator. 
So  essential  a  feature  of  a  will  is  revocability,  that  the  insertion 
in  the  instrument  which  is  clearly  a  will  of  a  clause  providing 
that  it  is  not  to  be  revoked,  has  no  effect  whatever  in  preventing 
revocation.^** 

If  an  instrmnent  is  executed  as  such,  that  the  maker  cannot 
revoke  it,  it  may  be  a  deed  or  contract,  but  cannot  be  a  will.  An 
instrument  which  unites  the  elements  included  and  discussed  un- 
der the  heads  animus  testandi  and  revocability,  is  a  will  as  far  as 
the  inherent  elements  are  concerned.  An  instrument  which  pos- 
sesses any  number  of  these  elements  less  than  all  is  not  a  will.^* 

53  Page  on  Wills  39.     ,  See    §  1082,    What    may    be    pro- 

«*Page  on  Wills  41.  bated;   §  1173.  Revocability  of  joint 

84*  Page  on  Wills  48.  wills;  §  1224,  Gifts  causa  mortis. 

85  See  in  re  Williamson,  5  N.  P.  1 ; 
6  Dec.  505 ;  6  N.  P.  79 ;  8  Dec.  47. 


909  WILLS CHARACTEKISTICS  §  1015 

§  1015.     Confusion    between    wills    and    other    instruments  in 
writing-. 

I  cannot  go  into  detail  on  this  subject,  but  a  few  examples 
may  be  given.  Thus  an  instrument  in  form  of  a  warranty  deed, 
but  containing  a  clause,  "  This  paper  to  be  in  full  force  till  I 
desire  to  act,"  or  "  to  alt,"  possess  a  present  estate,  though  with 
a  possible  right  of  revocation,  and  is  a  covenant,  to  stand  seized 
to  uses,  i.  e.,  a  deed.^" 

In  another  case  an  instrument,  in  form  a  warranty  deed,  con- 
tained a  clause :  "  Conditions  of  this  deed  is  such  as  said  party 
of  the  second  part  that  this  land  shall  not  be  encumbered  in  any 
way,  or  this  deed  shall  be  void.  The  party  of  the  first  part  is  to 
hold  said  property  his  lifetime."  This  was  held  a  deed.^' 
Where  the  grantor  deeded  his  estate  in  trust,  reserving  a  life 
estate  to  himself,  and  also  reserving  the  power  of  revoking  the 
trust  deed  as  to  some  of  the  objects  of  the  trust,  for  fifteen 
years,  it  was  held  a  deed.^^ 

Where,  on  the  other  hand,  testator's  intention  is  manifest 
from  the  whole  instrument  that  it  shall  not  take  effect  until  the 
death  of  the  maker  and  shall  not  pass  any  property  right,  till 
that  time,  it  is  held  to  be  inherently  a  will,  no  matter  what  out- 
ward form  it  may  assume. ^^ 

Thus,  where  the  maker  executed  the  following  instrument: 
"  Know  all  men  by  these  presents  that  I,  Joseph  Robinson,  for 
the  consideration  of  one  hundred  dollars  to  me  in  hand  paid, 
as  well  as  my  affection,  do  hereby  assign  and  set  over  to  my 


30  Watson  vs.  Watson,  24  S.  Car.  38  Pres.    of    Bowdoin    College    vs. 

228.  Merritt,   7.5   Fed.   480;    Stewart  vs. 

See    13    Green    Bag,    §    567,    for  Stewart,  5  Conn.  317;  Page  on  Wills 

quaint  and  curious  wills.  49. 

37  Gates  vs.   Gates,   135   Ind.  272;  39  Mosser  vs.  Mosser,  32  Ala.  551; 

Bevins    vs.    Phillips,    6    Kan.    App.  Walker  vs.  Jones,  23  Ala.  448. 
324. 


§  1015  WILLS CHARACTERISTICS  910 

daughter,  Elizabetli  Jane  Brewster,  all  of  my  property,  both 
personal  and  real,  to  have  the  same  after  my  death. 

Attest :  his 

A.  S.  Post,  Joseph    X    Robinson. 

E.  McClellan.  mark." 

Such  instrument  was  held  to  be  a  v/ill.**' 

In  determining  whether  an  instrument  in  doubt  is  a 
will  or  a  contract,  the  same  test  applies  as  in  the  case  of  con- 
fusion between  wills  and  deeds.  The  test  is  not  the  time  of 
performance,  but  the  time  at  which  by  the  terms  of  the  in- 
strument a  property  right  under  the  instrument  attaches.  If 
by  the  terms  of  the  instrument  no  property  right  is  to  attach 
under  it,  until  testator's  death,  the  instrument  is  a  will,  pro- 
vided, of  course,  it  is  properly  executed,  but  if  a  property  right 
attaches  during  testator's  lifetime,  the  instrument  is  a  contract, 
even  though  the  time  of  performance  may  be  postponed  till  the 
death  of  testator.^^ 

If  an  instniment  possesses  all  the  elemeaits  of  a  contract,  the 
fact  that  the  time  of  performance  is  fixed  at  testator's  death, 
or  within  a  given  time  thereafter,  does  not  make  it  a  will.*" 

Where  the  defendants'  intestate  executed  the  following  pa- 
per :  "  For  value  received,  I  promise  to  pay  to  Mrs.  Hamor, 
wife  of  John  Hamor,  the  sum  of  $300,  as  a  small  recompense 
for  the  kindness  shown  to  me  by  her.  Thfi.  executors  of  my  last 
will  and  testament  are  hereby  directed  to  pay  the  above  to  Mrs. 
H.,  or  her  sons,  Moses  and  John,  after  my  decease. 

Attest:     Philip  Riggs.  John  R.  Moore." 

February  28,   1850. 

And  delivered  the  same  to  the  subscribing  witness,  with  in- 
junctions to  deliver  it  to  Mrs.  Hamor  after  his  death,  which 
was  done.  Held :  1,  That  this  was  not  a  gift  inter  vivos, 
nor  a  gift  causa  mortis,  nor  was  it  good  as  a  testamentary  dis- 
position.    2,   That  the   "  kindness "  mentioned  in  the  paper, 

■to  Robinson  vs.  Brewster,   140  111.  Aff.  71  111.  App.  587;  Hegeman  vs. 

649;  Page  on  Wills  51.  Moon,  131  N.  Y.  462. 

§  1214,  Gifts  causa  mortis.  The   reader   will   find  the  matter 

*i  Page  on  Wills  55.  very  fully  discussed  as  to  these  dis- 

<2  Beatty  vs.  College,  177  111.  280;  tinctions  in  Page  on  Wills. 

Miller  vs.  College,  42  L.  R.  A.  797; 


911  WILLS  LAW    GOVERNING  §  1016 

being  acts  of  friendship  and  hospitality  merely  done  and  ac- 
cepted at  the  time  as  gratutious,  does  not  in  law  constitute  a 
good  consideration  to  support  the  express  promise/^ 

§  1016.   Law  governing  will. 

Where  a  person  has  made  a  will  in  conformity  to  the  law, 
then  in  force,  and  the  law  is  changed  before  his  death,  the 
law  in  force  at  the  time  of  his  death  will  govern  the  execution 
and  construction  of  the  will.** 

When  a  testator  is  domiciled  in  one  State  at  the  time  of  his 
death,  and  leaves  property  in  anotlier  State,  the  question  arises 
as  to  which  law  is  to  prevail.  As  a  general  rule  except  where 
modified  by  statute,  so  far  as  concerns  the  capacity  of  the 
testator  or  form  of  tlie  will  when  the  same  devises  real  property 
the  law  of  the  place  where  the  property  is  situated  controls.*^ 

And  tJie  same  may  be  said  to  be  the  prevailing  law  as  to  the 
construction  to  be  given  to  the  will  in  devising  real  estate. 
Our  statute,  however,  provides  in  our  State  that  if  a  will 
is  executed  and  proved  according  to  the  laws  of  anv  State  or 
territory  of  the  United  States,  etc.,  an  authenticated  copy  may 
be  placed  on  rocord  and  it  would  have  the  same  validity  as  a 
will  probated  here.*® 

As  to  personal  property,  the  validity  of  the  will,  is  to  be  de- 
termined by  the  law  of  the  testator's  domicile  at  the  time  of 
his  death.  But  a  will  not  recognized  by  our  laws  or  against 
the  policy  of  our  statute,  even  though  valid  where  made,  could 
not  lie  effective.''^ 

43  Hamor  vs.  Moore,  8  0.  S.  231).  In  this  case,  M.  domiciled  in  Ohio, 

44  Root  vs.  Stuvesant,  18  Wend.  made  a  will  of  personalty  in  the 
257;    Redf.    Sur.  Prac.   146.  olographic  form  valid  by  the  laws  of 

45  Page  on  Wills,  27.  Louisiana,  while  in  New  Orleans  for 
40  §§  10535,  10536  (J.  C,  §  1119.  business  purposes.  He  returned  to 
3  Am.  &  Eng.  Ency.  632.  his  domicile  in  Ohio  and  died  here, 
The  lex  rei  sitae  controls  the  con-  the    will   was    sent   to   New    Orleans 

truction   of   a    will    executed   in   an-  and   there  admitted   to   probate.     It 

other    State    by    a    resident    thereof  was  held  that  the  copy  of  the  will 

devising  land  in  this  State.     Ilorten  was   improperly  admitted   to   record 

vs.  Haines,  7  C.  C.    (N.S.)    261;   28  in  this   State.      It  will   be  observed 

0.  C.  C.  79.     Reversed,   but  not  on  that  in  this  case,  the  maker  of  the 

this  ground.     76  0.  S.  588.  olographic  will  had  his  actual  domi- 

47  Manuel    vs,    Manuel,    13    0.    S.  cile  in  Ohio.     If  he  would  have  had 

458.  liis  domicile  in  Louisiana  it  is  prob- 
able that  an  authenticated  copy  of 


§  1017  WILLS RIGHT  TO  MAKE  912 

And  generally  it  may  be  said  that  questions  of  construction 
are  controlled  by  the  law  of  the  testator's  domicile  in  a  be- 
quest of  personal  property.  If  a  testator  makes  a  will  which  is 
valid  by  the  laws  of  the  place  where  he  then  lived  and  after- 
wards moves  to  another  place,  by  the  law  of  which  latter  place 
his  will  is  invalid  and  he  died,  at  tlie  latter  place,  his  will  will 
be  controlled  by  the  place  of  his  death  and  would  be  invalid.*^ 

Where  a  devise  of  land  creates  a  trust  its  validity  is  to  be  de- 
termined by  the  law  of  the  place  where  the  land  is  situated. 
A  bequest  of  personalty  is  to  be  determined  by  the  law  of  the 
domicile  of  the  testator,  and  not  of  the  place  where  the  property 
is  situated.  In  determining  the  validity  of  the  execution  of  a 
power  given  by  will,  the  law  of  the  domicile  of  the  testator  con- 
trols.*'' 

When  no  evidence  is  given  as  to  what  the  law  of  the  domicile 
is,  the  Court  trying  the  case  will  take  judicial  notice  that  the 
State  of  testator's  domicile  recognizes  the  common  law  as  the 
basis  of  its  system,  if  such  be  the  case,  ami  will  construe  the 
will  by  the  common  law.^" 

If  the  law  of  the  State  of  testator's  domicile  is  not  based 
upon  the  common  law  the  Court  will,  in  the  absence  of  evi- 
dence as  to  what  such  foreign  law  is,  treat  the  will  as  con- 
trolled by  the  law  of  the  forum. ^^ 

§  1017.     Right  to  make. 

The  right  of  testamentary  disposition,  depends  solely  on  the 
municipal  law  and  has  never  been  regarded  as  a  natural  or 
inalienable  right.  It  has  always  been  subject  to  the  control  of 
legislative  power  and  sucli  power  is  not  limited  in  this  State  by 
constitutional  provision.'^"     The  right  to  make  a  will  may  be 

the  olographic  will  would  have  been  wills;   §758,  Distribution,  etc;  Page 

admitted  to  record  in  our  State.  on  Wills  31. 

Thus  an  olographic  will  made  in  ^9  Page  on   \YiIls  35. 

New  York  by  one  domiciled  in  Que-  5o  Benbow  vs.  Moore,   114  N.  Car. 

bee,  while  on  a  short  visit  to  New  263;  19  S.  E.  156. 

York   is   valid   by   the   Quebec   law.  si  Davison    vs.    Gibson,    56    Fed. 

Page  on  Wills  30.  443;   Page  on  Wills  35. 

48  See     §  1180,      Construction     of  52  Patton  vs.  Patton,  39  0.  S.  590. 

See   §  1119.   foreign  will. 


913  WILLS WHO  MAY  MAKE  §  1018 

limited  or  regulated  m  any  manner  the  Legislature  sees  fit  or 
taken  away  altogether."^  And  as  heretofore  said  it  is  the  law 
in  force  at  the  time  of  a  testator's  death  that  controls.^* 

§  1018.  Who  may  make  a  will.  ' '  A  person  of  full  age,  of 
sound  mind  and  memory,  and  not  under  restraint,  who  has 
property,  or  an  interest  therein,  may  give  and  bequeath  it  by 
last  will  and  testament  lawfully  executed."      [R.   S.   §5914.]^'^ 

§  1019.     Any  person. 

The  statute  gives  the  only  restriction  as  to  what  person  may 
make  a  will,  when  it  says  that  he  must  be  of  full  age  and  of 
sound  mind  and  memory  and  not  under  any  restraint.  For- 
merly there  were  other  restrictions,  such  as  aliens,  married  wom- 
an, or  a  person  convicted  of  a  heinous  offense,  outlawry,  etc. 
Of  course  the  words  "  any  person  "  means  a  natural  person  and 
not  an  artificial  one. 

§  1020.     Full  age. 

In  Ohio,  all  male  persons  of  the  age  of  twenty-one  years 
and  upward,  and  all  female  persons  of  the  age  of  eighteen 
years  and  upward  are  considered  to  be  of  full  age,  any  law  or 
custom,  to  the  contrary  notwithstanding.^®  The  ecclesiastical 
law  had  settled  the  matter  that  males  of  fourteen  years  of  age 
and  females  of  twelve  years  of  age  could  make  testaments  dis- 
posing of  personalty,  but  no  such  distinction  exists  in  Ohio.^^ 

53  Folsom  vs.  Haas,  9  C.  C.  473;  testamentary  purposes,  the  day  of 
6  C.  D.  460.  his  birth    is   included.      As   the   law 

54  Page  on  Wills  18;  See  Woerner  does  not  recognize  fractions  of  a  day, 
on  Administration   19  and  6.  but  directs  both  the  day  of  the  birth 

f'5  §  10503  G.  C.  and  of  the  anniversary  to  be  reck- 

f'S  §  8023  G.  C.  oned  as  full  days,  it  results  that  a 

S7  Page  on  Wills  100.  person  born  on  the  first  day  of  Jan- 

A  rule  of  computing  time  should  uary,  1800,  in  the  last  hour  of  that 

be   noticed    in    connection    with    the  day,  will  attain  majority  on  the  first 

question    of    infancy    and    majority,  instant  of  the  thirty-first  day  of  De- 

which   is   a    departure  from   the  or-  ccmber,  1900. —  nearly  two  days  less 

dinary    rule.      At    common    law,    in  than   twenty-one   years.     1   Jar.   on 

computing  the   age  of  a  person  for  Wills  45 ;  Woerner  on  Admin.  25. 


§1021 


WILLS  SOUND    MIND    AND    MEMORY 


914 


§  1021.     Sound  mind  and  memory. 

A  man  of  sound  mind  and  disposing  memory  is  one  who  has 
a  full  and  intelligent  knowledge  of  the  act  he  is  engaged  in,  a 
full  knowledge  of  the  property  he  possesses,  an  intelligent  per- 
ception and  understanding  of  tlie  disposition  he  desires  to 
make  of  it,  and  of  the  persons  and  objects  he  desires  shall  be 
the  recipients  of  his  bounty.  It  is  not  necessary  that  he 
should  collect  these  in  one  review.  If  he  understands  in  detail 
what  he  is  about  and  chooses  with  understanding  and  reason 
between  one  disposition  and  another,  it  is  sufficient  for  making 
a  will.^'^ 

The  real  test  of  capacity  has  finally  been  agreed  upon  by  the 
great  weight  of  authority,  as  follows : 

The  testator  must  have  strength  and  clearness  of  mind  and 


68  Wilson  vs.  Mitchell,  101  Pa. 
St.  495:  Miller  vs.  Oestrich,  157  Pa. 
St.  2G4;  Hoopes'  Estate,  174  Pa.  St. 
373. 

The  expression  "sound  mind"  does 
not  mean  a  perfectly  balanced  mind. 
The  question  of  soundness  is  one 
of  degree.  Bougliton  vs.  Knight,  42 
L.   J.   P.   25. 

"Sound  and  disposing  mind" 
means  a  mind  of  natural  capacity, 
not  unduly  impaired  by  old  age,  or 
enfeebled  by  illness,  or  tainted  by 
morbid  influence.  Smith  vs.  Teb- 
betts.  36  L.   J.   97;    16  W.   R.   18. 

The  term  "unsound  mind"  includes 
every  species  of  unsoundness.  Wil- 
lett'vs.  Porter,  42  Ind.   250. 

A  "sound  mind"  is  one  wholly 
free  from  delusion.  Tittel's  Estate, 
Myr.    Prob.    (Cal.)     12. 

A  person  may  not  be  of  "sound 
mind,"  and  yet  be  of  "disposing 
mind,"  and  capable  of  making  a  will. 
Freeman  vs.  Easly,   117  111.  317. 

"Sound  and  disposing  mind" 
means  the  power  of  understanding 
the  nature  of  the  property,  the  fam- 
ily, and  the  rest  of  the  will.  Sefton 
vs.   Hopwood.    1    F.  &   F.  578. 

Under  the  statute  providing  that 
persons  of  "sound  mind  and  mem- 
ory" may  make  a  will,  an  instruc- 
tion in  those  terms  can  not  be  com- 
plained of  because  it  makes  no  dis- 
tinction between  "sound  mind"  and 


"disposing  mind."  Keithley  vs. 
Statlord,    126   111.   507. 

The  words  "mind"  atid  "mem- 
ory," as  used  in  the  New  York  stat- 
ute regarding  testamentary  capacity, 
are  convertible  terms.  Forman's 
Will,   54   Barb.    (X.  Y.)    274. 

"The  words  'unsound  mind'  in- 
clude every  species  of  mental  de- 
fect, and  are  not  confined  to  idiots, 
non  compotes,  lunatics,  monomani- 
acSj  or  distracted  persons,  though 
so  defined  bv  statute.  Durham  vs. 
Smith,  120  Ind.  463. 

A  person  may  be  of  "sound  mind 
and  memory"  though  his  recollec- 
tion be  impaired.  Y'oe  vs.  McCord, 
74  111.  33;  25  Am.  &  Eng.  Ency.  of 
Law  971. 

See  West  vs.  Kroppenberger,  4  C. 
C.    (N.S.)    305;    26   0.   C.  C.    168. 

A  person  eighty-four  years  of  age 
who  can  enumerate  all  his  property 
without  suggestions,  etc.,  and  in  his 
instructions  in  reference  to  his  will, 
shows  himself  to  be  acquainted  with 
its  value  and  disposition,  is  compe- 
tent. Revell  vs.  Warden.  4  C.  C. 
(X.S.)    545;    24  O.   C.  C.  344. 

Mere  eccentricity  will  not  be  suflS- 
cient  to  destroy  power  to  make  a 
valid  will.  Ketteman  vs.  Metzgar. 
3  C.  C.    (N.S.)   224;   23  0.  C.  C.  61. 

What  undue  influence  is  sufficient 
to  set  aside  a  will.  Hall  vs.  Hall, 
2  O.  L.  R.  328;    15  Dec.  161. 


915  WILLS  IDIOTS^  IMBECILES  §  1022 

memory  sufficient  to  know  in  general,  without  prompting,  tiie 
nature  and  extent  of  the  property  of  which  he  is  about  to 
dispose,  the  nature  of  the  act  which  he  is  about  to  perform,  and 
the  names  and  identity  of  the  persons  who  are  the  proper  ob- 
jects of  his  bounty,  and  his  relation  towards  them.^" 

Greater  capacity  than  this  the  law  does  not  demand  ;  less  than 
this  is  insufficient ;  and  in  each  case  it  is  a  question  of  fact  or  of 
mixed  law  and  fact  whether  the  testator  possess  the  requisite 
capacity.®" 

Woerner  gives  the  following  as  the  rule :  "  While  the  law 
does  not  undertake  to  measure  a  person's  intellect,  and  define 
the  exact  quantity  of  mind  and  memory  which  a  testator  shall 
possess  to  authorize  him  to  make  a  valid  will,  yet  it  does  require 
him  to  possess  mind  to  know  the  extent  and  value  of  his  prop- 
erty, the  number  and  names  of  the  persons  who  are  the  natural 
objects  of  his  bounty,  their  deserts  with  reference  to  their 
"wnduct  and  treatment  toward  him,  their  capacity  and  neces- 
)ity,  and  that  he  shall  have  sufficient  active  memory  to  retain  all 
these  facts  in  his  mind  long  enough  to  have  his  will  prepared 
and  executed ;  if  he  has  sufficient  mind  and  memory  to  do  this, 
the  law  holds  that  he  has  testamentary  capacity ;  and  even  if 
this  amount  of  mental  capacity  is  somewhat  obscured  or  clouded, 
still  the  will  may  be  sustained."  ®^ 

§  1022.     Idiots,  imbeciles  and  lunatics. 

Following  very  closely  the  facts  which  constitute  a  sound 
mind  and  memory  is  the  capacity  of  idiots,  lunatics,  imbeciles, 
etc.,  60  make  a  valid  will.  Idiots  are  defined  to  be  persons  who 
ar-^,  born  without  reasoning  and  understanding.     As  a  matter  of 

Incapacity  to  make  a  will  is  not  testator's  will  made  under  such  cir- 

ehown      by      pliysical      helplessness.  cumstances  should  be  upheld  the  law 

Gregg  vs.  Moore,  23  0.   C.  C.   534;  will  make  a  new  will  for  him.     In 

nor  a  delusion  whicli  does  not  siiovv  re  Burrows,  8  N.  P.  358. 

lack      of      testamentary      capacity.  Want   of  mental  capacity  on  the 

Foreign  Missions   vs.   Bevan,    17   O.  part  of   the   testator   is   not   shown 

C.  C.   (N.S. )  275;  2  O.  Ai)p.  182.  by   a   recital    of    circumstances   and 

59  Campbell  vs.  Carnaham,  13  S.  incidents  which  go  no  further  than 
W.  1098;  Tliompson  vs.  Ish,  99  Mo.  to  indicate  physical  weakness,  or 
160.  failure  of  memory,  or  mistake  of  an 

60  Page  on  Wills  114.  unimportant   character    in   business 

61  Woerner  on  Admin.  31.  affairs,  nor  because  he  did  not  make 
A  testamentary  disposition  should       a     will     as     in     tlie     judgment     of 

indicate  the  wishes  of  a  man  abso-  witnesses  he  ought  to  have  made, 
lutely  free  from  pains  that  are  in-  Wilson  vs.  Wilson,  22  O.  C.  C.  498. 
cident  to  death,  and  rather  than  the 


§  1022  WILLS — IDIOTS,   IMBECILES,   ETC.  916 

course  a  person  of  that  kind  could  not  make  a  valid  will. 
The  trouble  in  these  cases  is  not  whether  the  person  has  any  in- 
tellect but  whether  he  has  sufficient  intellect,  and  in  order  tc> 
determine  this,  we  must  go  back  to  the  definition  of  what  con- 
stitutes a  sound  mind  and  memory.  While  there  must  be  intel- 
lect, a  high  grade  is  not  absolutely  essential.  It  is  not  even 
necessaiy  that  he  should  possess  the  average  intellect.  The 
fact  that  the  testator  was  competent  to  transact  the  ordinary 
business  of  life  conclusively  establishes  his  capacity  so  far  as  ^ 
charge  of  idiocy  or  imbecility  is  concerned.®^ 

Imbecility  is  the  same  as  idiocy  except  that  it  is  a  failure 
and  not  a  want  of  mental  powers.  Senile  dementia  is  merely 
a  form  of  imbecility  applicable  to  persons  in  old  age.  The  test 
here  is  whether  the  testator  had  mind  and  memory  sufficiently 
sound  to  enable  him  to  know  and  understand  the  business  in 
which  he  was  engaged  at  the  time  he  executed  the  will.  If 
testator  does  not  possess  mental  capacity  of  this  degree  he 
can  not  make  a  will,  even  if  h©  ^vi-ote  it  out  himself,  and  has 
carried   on   business  transactions  with   apparent   ability.'^ 

But  old  age  alone  never  deprives  a  testator  of  testamentary 
capacity.  Insanity  is  defined  to  be  a  prolonged  departure 
without  any  adequate  cause,  from  the  states  of  feeling  and 
modes  of  thinking  usual  to  the  individual  in  health.**  Of 
course  if  a  person  is  insane,  he  could  not  be  said  to  be  possessed 
of  testamentary  capacity.  A  person  might  be  generally  sane 
and  yet  seized  of  an  insane  delusion  which  has  been  defined  to 
be  "  a  false  belief  for  which  there  is  no  reasonable  founda- 
tion." ^^  Some  Courts  have  defined  an  insane  delusion  as  a 
belief  in  facts  that  no  rational  person  would  believe.*® 

62  Page  on  Wills   120.  Car.)    229;   Trezevant  vs.  Rains,  85 

63  Bever  vs.  Spangler,  93  la.  576;       Tex.  329;    Sehr  vs.  Lindemann,  Mo. 
Campbell   vs.    Carnaham, —  Ark. — ;         (1899),  54  S.  W.  537. 

13  S.  W.  1098;  O'Connor  vs.  Madi-  64  Bouvier's     Law     Die.     "  Insan- 

son,  98  Mich.  183;  Norton  vs.  Pax-  ity."     Mundway  vs.   Croft,   3   Curt. 

ton,   110  Mo.  456;   Clifton  vs.   Clif-  Ecc.  Rep.  671    (Eng.). 

ton,  47  N.  J.  Eq.  227;  Waddington  65  Kimberly's    Appeals,    68    Conn. 

vs.  Buzby,  45  N.  J.  Eq.  173;  Blair's  428. 

Will,   16  N.  Y.   Supp.  874;   Naple's  66  Duffleld    vs.    Robeson,    2    Harr, 

Estate,  134  Pa.  St.  492;  In  re  Bow-  (Del.)     375;    Nicewander    vs.    Nice- 

yer's  Estate,  166  Pa.  St.  630;  In  re  wander,  151  111.  156;  Orehardson  vs. 

Loesor's    Estate.    167    Pa.    St.    498;  Cofield,   171   111.   14. 

McKnight  vs.   Wright,   12  Rich    (S. 


917  BLIND,    DEAF   AND    DUMB  §  102»^ 

In  an  Ohio  case,  Judge  Longworth  charged  the  jury  that  if 
the  testator  did  not  believe  that  any  woman  was  virtuous ;  that 
all  women  were  prostitutes ;  that  they  were  created  simply  for 
the  purpose  of  gratifying  the  lusts  of  man ;  that  they  were 
therefore  able  to  support  and  maintain  themselves  out  of  the 
wages  of  sin ;  and  that  tlierefore  no  provision  ought,  in  any 
case,  to  be  made  for  them,  and  that  acting  on  this  belief  he  gave 
the  bulk  of  his  property  to  his  son  and  not  to  his  daughters, 
and  that  he  made  this  disposition  of  his  property  by  reason  of 
this  belief,  then  the  jury  would  be  justified  in  finding  that  his 
will  is  void.^^ 

It  will  not  be  within  the  province  of  this  work  to  enter 
into  a  discussion  of  what  will  constitute  imbecility  or  insanity 
in  its  various  forms.  Somewhat  in  the  same  line  is  drunkenness, 
delirium,  etc.,  they  are  all  more  or  less  a  species  of  insanity. 
No  matter  what  the  condition  of  the  mind  of  the  testator 
may  have,  at  some  time,  been,  the  question  is,  what  was  the 
condition  of  the  mind  of  the  testator  at  the  time  the  will  was 
made.  If  at  such  time  he  has  a  disposing  mind  and  memory, 
he  may  make  a  valid  will.  It,  therefore,  follows  that  a  person 
generally  insane  might  make  a  valid  will^  and  likewise  if  a 
person  made  a  valid  will  while  insane,  the  fact  that  he  after- 
wards became  sane  would  not  make  the  will  a  valid  one.^^ 

§  1023.    Blind,  deaf  and  dumb  persons. 

At  common  law  it  was  held  that  persons  who  were  deaf,  dumb 
and  blind,  were  not  capable  of  making  wills.  "  They  are 
incapable,"  says  Blackstone,*"*  "  of  having  animum  testandi  and 
their  testamentary  acts  are  therefore  void."  Those  who  were 
only  deaf  and  diunb  were  likewise  held  incapable  of  having 
that  understanding  which  is  necessary  to  make  a  valid  will. 
From  ol)9ervation  of  persons  laboring  under  these  disabilities, 
it  has  been  discovered  that  this  common  law  doctrine  is  founded 


«7  Joslyn  vs.  Sedam,  2  Bull.   147;  es  See  §  1361  et  seq.,  Gd.  of  imbe- 

Page  on  Wills  127.  dies,  etc. 

«9  2   BIks.    Comm.   497. 


g  1024  WILLS UNDER  GUARDIAJfSHIP  918 

upon  an  untruth,  and  it  is  now  held,  that  such  persons  are  not 
to  be  considered  as  lacking  testamentary  capacity.'" 

The  question  now  in  reference  to  such  persons  is  the  same 
as  if  they  were  not  under  such  disability ;  and  if  it  is  shown 
that  they  have  mental  capacity,  sufficient  that  they  may  make 
a  valid  will  they  may  do  so.  Deaf  and  dumb  persons  are  gen- 
erally capable  of  reading,  and  some  few  have  shown  themselves 
capable  of  reading,  although  they  were  deaf,  dumb  and  blind."^ 
There  is  a  chance  of  imposition  when  a  blind  person  signs  a 
will,  but  perhaps  no  more  than  where  one  is  unable  to  read.  It 
is  said  to  be  the  best  test,  where  a  blind  person  executes  a  will, 
that  the  act  must  be  done  in  such  proximity  to  the  person,  that 
he  can  by  means  of  his  remaining  senses,  know  what  is  being 
done.''^ 

In  executing  a  will  of  this  character,  great  care  should  be 
taken  to  convey  in  some  way,  the  contents  of  the  will  to  the 
testator ;  and  the  testator  by  express  signs  or  otherwise,  indi- 
cate to  the  witnesses,  that  he  understands  and  knows  what  is 
in  the  will. 

§  1024.     Persons  under  guardianship. 

A  suggestive  as  well  as  a  practical  question  to  Probate  Judges 
and  lawyers  engaged  in  probate  practice  is  what  effect  will  an 
adjudication  of  guardianship  have  upon  the  testamentary  ca- 
pacity of  the  person  adjudged  a  proper  subject  of  guardianship. 
Some  no  doubt  would  say  that  a  person  under  guardianship 
could  not  make  a  valid  will,  but  such  is  not  the  law.^" 

Such  person  may  make  a  valid  will  if  he  has,  at  the  time  his 
will  is  made,  a  testamentary  capacity  which  is  required  by  law 
in  such  cases.  But  the  fact  of  such  guardianship  is  prima  fa- 
cie evidence  of  the  party's  incapacity,  and  the  adjudication 
would  make  a  prima  facie  case  of  the  testator's  incompetency 

70  Weir  vs.  Fitzgerald,  2  Bradf.  Guardianship,  for  intemperance, 
(N.  Y.)  42.  does    not    raise    a    presumption    of 

71  Helen  Kellar  for  instance.  testamentary  incapacity  that  might 

72  866  Page  on  Wills,  §117,  p.  arise  from 'insanity  or  imbecility. 
138;   §  214,  p.  234.  Fagan  vs.  Welsh,  19  O.  C.  C.  (NvS.) 

73  Page  on  Wills  136.  177. 


919  WILLS  NOT    UNDER    RESTRAINT  §  1.025 

from  the  date  of  the  guardianship  and  during  its  continuance/* 
and  where  the  guardianship  is  made  on  the  ground  of  insanity, 
very  clear  evidence  is  required  to  overthrow  the  presumption 
of  insanity  arising  from  such  an  adjudication  ;^°  but  the  record 
of  a  guardianship  which  did  not  exist  for  several  years  after 
the  will  was  made,  is  incompetent.^® 

The  record  of  discharge  from  a  guardianship  of  insanity  as 
cured  is  also  only  prima  facie  evidence  of  such  cure.''' 
Whether  there  would  be  a  distinction  drawn  where  the  guar- 
dian was  appointed  for  some  of  the  other  statutory  grounds, 
such  as  habitual  drunlcards,  etc.,  is  a  question  without  judicial 
light.  It  would  seem  that  tlfe  presumption  ought  not  to  be  as 
strong  against  the  testamentary  capacity  of  a  person  who  is 
adjudged  an  habitual  drunkard  as  against  one  found  to  be  a 
lunatic.  ^^ 

§  1025.     Not  under  any  restraint. 

• 

"  'Not  under  any  restraint "  means  that  the  testator  acted 
in  conformity  to  the  conclusions  of  his  own  judgment  when  such 
conclusions  were  formed  by  the  free  exercise  of  his  reasoning 
power.  Our  Supreme  Court  in  passing  on  this  question  makes 
use  of  the  following: 

Restrictions  are  imposed  upon  none,  but  all  are  alike  left 
to  the  exercise  of  their  own  free  wills  and  inclinations  in  the 
disposition  of  their  property.  The  power  thus  given  to  dispose 
of  property  does  not  depend  upon  the  disposition  thereof,  nor  is 
it  restricted  to  those  who  may  employ  it  only  for  just  and  wise 
purposes;  but  all  upon  whom  the  right  is  conferred  may  use 
it  without  "  any  restraint."  Indeed,  it  is  contemplated  by  the 
statute  that  this  is  the  only  way  in  which,  it  can  be  exercised. 

74Millcn  vs.  Young,  18  C.  C.  575;  See    §1511,    Effect   of    finding   of 

8  C.  D.  394;  Page  on  Wills  478.  disability. 

75  Stevens  vs.  Stevens,  127  Ind.  A  person  weakened  by  sickness 
660.  ttiay  be  capable  of  making  a  will  if 

76  Entwistle  vs.  Meikle,  180  111.  9,  he  has  sninciont  memory  to  under- 

77  Page  on  Wills  479.  stand  fully  what  he  is  doing.     Stark 

78  §  1538,  Incapacity  to  contract.  vs.   Cress,   22   O.   C.    C.    (N.S.)    88; 

4  O.  App.  92;  14  N.  P.  545. 


§  1025  WILLS  NOT    UNDER    RESTEAINT  920 

Freedom  from  restraint  is  essential  to  the  validity  of  a  will. 
So  careful  is  the  law  in  this  respect,  that  it  will  not  uphold  a 
will  that  has  been  induced  by  restraint  upon  the  testator, 
whether  in  the  form  of  fraud  practiced  upon  him,  or  any  other 
influence  that  destroys  the  free  exercise  of  his  own  will/^ 

It  would  be  inconsistent  with  the  right  conferred  by  the 
statute,  and  with  the  spirit  of  the  construction  it  has  hitherto 
received,  to  sanction  restraints  upon  a  testator,  based  alone  on 
the  character  of  the  motives  or  causes  that  may  have  induced 
any  disposition  of  his  property  that  he  may  make  while  in  the 
free  exercise  of  his  own  inclinations  and  judgment.  He  may 
give  his  property  to  whomsoever  he  pleases,  and  his  motives 
or  reasons  therefor,  so  long  as  he  is  "  not  under  any  restraint," 
are  matters  of  his  own  conscience,  for  which  he  is  not  account- 
able to  the  law.  His  will,  executed  in  conformity  to  the  stat- 
ute, if  it  be  his  own,  and  not  in  any  sense  the  will  of  another, 
cannot  be  invalidated,  however  much  its  provisions  may  be  dis- 
approved by  others. 

It  is  claimed,  in  the  proposition  under  consideration,  that 
the  will,  upon  the  facts  therein  assumed,  would  be  void  for 
"  illegal  influence."  In  the  solution  of  the  question  made  by 
this  proposition,  much  of  the  difficulty  disappears  when  we  con- 
sider what  "  influence,"  as  applied  to  the  invalidation  of  wills, 
is  "  illegal." 

Every  will,  as  before  remarked,  is  the  result  of  influences 
strong  enough  to  produce  it.  Since,  then,  it  is  the  policy  of 
the  law  to  secure  to  every  one  the  right  to  dispose  of  his  prop- 
erty in  accordance  with  his  individual  will,  that  influence  alone 
is  illegal  which  places  the  freedom  of  a  testator's  will  under 
some  kind  of  restraint.  If  this  be  so,  it  follows  that  it  matters 
not  what  may  be  the  origin  or  character  of  any  influence  oper- 
ating upon,  a  testator,  if  it  does  not  place  him  "  under  any  re- 
straint." It  would  seem  to  follow,  also,  that  it  would  be 
equally  immaterial  how  an  individual  may  have  acquired  an 

79  Redf.  on  Wills  524,  527.  not  herself  given  an  undue  portion. 

Undue  influence  over  the  testator  O'Rourke  vs.  Kinney,  22  Dec.  56. 
on   the   part   of   his    second   wife   is  Changing  a  will,  even  if  it  makes 

not  shown  by  the  fact  that  her  chil-  an  unfair  and  unreasonable  disposi- 

dren  fared  better  than  a  child  of  a  tion  of  testator's  property  is  alone 

first  wife  since  the  second  wife  was  insufficient  to  show  undue  influence. 

Gregg  vs.  Moore,  33  O.  C.  C.  534. 


921  WILLS — NOT   UNDER  RESTRAINT  §  1025 

influence  over  a  testator,  unless  such  influence  is  exerted  in  a 
manner  that  tends  to  restrain  the  free  exercise  of  his  will  in 
the  disposition  of  his  property,^** 

Under  this  subject  of  restraint  may  be  included  a  will  that 
was  caused  to  be  executed  by  practicing  a  fraud  or  deceit  upon 
the  testator.  The  question  at  issue  always  is,  does  the  paper 
purporting  to  be  the  will  of  a  testator  convey  or  declare  the  real 
intention  of  the  testator.  If  for  any  reason  it  does  not  convey 
the  real  intention  of  the  testator,  it  is  not  his  will.  Thus  if  he 
was  induced  to  sign  a  paper  which  is  supposed  to  be  his  will, 
but  is  not,^^  or  by  falsei  representations  is  induced  to  make  a 
■^ill  of  a  certain  character,®^  and  likewise  if  he  is  under  such 
X)ercion.  that  he  makes  what  purports  to  be  a  will,^^  in  all  3 
^hese  cases  it  must  be  shown  that  the  power  or  the  undue  m 
l3uence  which  causes  the  testator  to  make  his  will,  are  exercised 
\t  the  time  or  before  its  execution.  If  exercised  after  its  ex- 
cution  no  matter  how  overpowering,  even  if  it  goes  to  prevent 
the  testator  from  revoking  his  will  when  he  wishes  so  to  do, 
it  will  not  be  held  to  affect  the  disposition  already  made. 
Where  it  is  shown  that  undue  influence  existed  before  the  will 
was  made  it  must  also  be  shown  that  the  influence  existed  up 
until  the  time  of  its  execution.®* 

80  Monroe   vs.    Barclay,    17    O.    S.  mand   asserted    and   yielded    to   for 

302.  the  sake  of  peace  and  quiet;  or  of  es- 

"  To    make    a   good    will,    a    man  caping  from  distress  of  mind  or  so- 
must  be  a  free  agent.     But  all  in-  cial  discomfort, —  these  if  carried  to 
fluences  are  not  unlawful.     Persua-  a  degree  in  which  the  free  play  of 
sion  —  appeals  to  the  affections,  or  the  testator's  judgment,   discretion, 
ties  of  kindred  —  to  a  sentiment  of  or  wish  is  overborne,  will  constitute 
gratitude  for  past  services,   or  pity  undue  influence,  though  no  force  is 
for   future   destitution,   or   the   like  either    used    or    threatened.     In    a 
—  these  are  all  legitimate  and  may  word,  a  testator  may  be  led,  but  not 
be  fairly  pressed  on  a  testator.     On  driven;  and  his  will  must  be  the  off- 
the   other   hand,   pressure   of   what-  spring  of  his  own  volition,  but  not 
ever    character,    whether    acting    on  the  record  of  some  one  else's.     Hall 
the  fears  or  hopes,  if  so  exerted  as  vs.  Hall,  37  L.  J.  P.  40;  Woerner  on 
to  overpower   volition  without  con-  Admin.  45. 
vincing   the  judgment,   is   a   species  si  Page  on  Wills,  143. 
of   restraint   under  which   no   valid  82  Page  on  Wills  144. 
will   can  be  made.     Importunity  or  83  Page  on  Wills  154. 
threats  such  as  the  testator  has  not  84  Page  on  Wills   151. 
the  courage  to  resist  —  moral  com- 


§  1026  WILLS  HAVING  PROPERTY  922 

§  1026.     Having  property. 

Formerly  there  were  limitations  upon  the  power  of  disposi- 
tion of  property  by  will,  but  these  have  all  been  taken  away 
until  now  both  in  England  and  America,  the  right  to  dispose 
of  property  by  a  will  is  as  broad  and  comprehensive  as  the 
right  of  disposition  while  living. ^^ 

The  provisions  of  our  statute  would  seem  to  convey  the  idea 
that  if  a  person  had  no  property,  then  he  could  not  make  a  will, 
and  the  reason  why  such  should  be  the  law  is  very  palpable,  for 
if  he  possess  no  property  there  is  nothing  to  devise.*®  How- 
ever, it  would  take  a  very  small  amount  of  property  to  give 
the  right  to  make  a  will.  Of  course,  no  property  can  be  dis- 
posed of  by  testator's  will  except  such  as  belongs  to  him.  The 
line  of  decision  in  all  such  cases  is,  was  it  such  property  that 
the  testator  could  have  disposed  of  in  his  lifetime ;  if  it  was, 
then  he'can  convey  it  by  will.  Thus  if  a  person  was  given  cer- 
tain property  for  support  during  his  life,  the  accumulation  of 
the  income  over  and  above  such  support  could  not  be  devised  by 
him.^^  Neither  can  a  testator  by  will  pass  the  proceeds  of 
insurance  policies  upon  his  own  life  where  the  policies  are  by 
their  terms  made  payable  to  specified  persons.  But  if  the  pol- 
icy is  made  payable  to  his  executors  or  administrators,  then  it 
may  be  disposed  of  by  will  or  where  the  name  of  the  beneficiary 
is  left  in  blank.  jSTeither  husband  nor  wife  can  by  will,  with- 
out the  consent  of  the  other,  make  such  disposition  of  his  real 
estate  as  will  destroy  the  dower  rights  of  the  other  therein. 
Neither  can  the  husband  or  wife  by  will  destroy  the  right  of 
the  other  to  a  distributive  portion  of  the  personalty.**  Neither 
could  the  right  to  a  year's  allow^ance  or  property  set  apart  to  the 
widow  be  affected  by  a  will;  such  as  is  provided  for  imder 
sees.  10654,  10656,  General  Code.*® 

In  some  States  it  is  held  that  the  husband  could  not  devise 
away  the  rights  of  the  widow  or  children  to  have  a  homestead 
set  apart  in  the  real  estate.    But  these  decisions  are  generally 

P'- Sec     §1030,     Definition,  etc.:  so  See  §  319   c/  sc^'. 

VVoerner  on  Admin.  20.  There   is   no   property    in   a    dead 

86  See   §  G8.  body.      Herold   vs.    Herold,    16   Dec. 

87  Page  on  Wills,   157,  700.  303! 

88  See  §§  327,   039. 


923  WILLS HAVING  PROPERTY  §  1027 

upon  statutes  which  give  the  widow  and  children  a  right  to  a 
homestead  during  the  testator's  life,  such  that  the  testator  could 
not  dispose  of  it  without  the  consent  of  his  wife."" 

In  our  State  there  being  no  restriction  upon  the  power  of  the 
husband  to  sell  the  same  during  his  life  time  he  would  have 
the  power  to  dispose  of  the  same  by  will.  A  legacy  might,  how- 
ever, be  defeated  by  the  claim  of  homestead  made  by  the  widow, 
where  the  personalty  was  insufficient  to  pay  the  same.  In 
such  a  case,  the  real  estate  would  need  to  be  sold  in  order  to 
pay  the  legacies  and  in  tlie  proceedings  to  sell  such  real  estate, 
it  would  be  the  duty  of  the  appraisers  to  set  apart  to  the 
widow  and  children  the  homestead  as  provided  by  law.®^  The 
question  has  never  been  passed  upon  to  my  knowledge  by  our 
Courts.°- 

At  common  law  it  was  settled  that  a  will  could  only  operate 
on  real  property  which  was  owned  by  the  testator  at  the  time 
that  he  executed  the  will.  But  it  is  now  provided  by  statute 
that  after  acquired  property  shall  pass  in  the  same  manner  as 
if  held  or  possessed  by  him  at  the  time  of  making  the  will  if 
such  shall  appear  to  have  been  the  intention  of  the  testator,^^ 
after  acquired  personalty,  could  by  the  common  law  be  dis- 
posed of  by  will.^*  Likewise,  estates  to  commence  in  the  future 
might  be  devised,*^^  but  a  mere  possibility,  such  as  the  hope  of 
an  heir  to  succeed  to  his  ancestor's  estate,  could  not  be  devised.®' 

§  1027.     May  give  any  person. 

At  common  law  there  were  some  limitations  upon  the  capac- 
ity of  a  person  to  receive  a  devise  or  bequest,  such  as  a  rule, 
that  an  alien  could  not  acquire  realty,  etc.  But  such  laws  have 
never  existed  in  this  country.  The  only  limitations  upon  the 
power  to  receive  under  ^  will  are  those  which  will  be  found  in 
the  statutes  presented  in  the  subsequent  sections  of  this  chapter, 

80  Pratt  vs.  Pratt,  161  Mass.  276.  o*  Page  on  Wills   162 

91  See  §§819,  868.  ss  See  previous  §    1013.     Page  on 

02  This    question    is    discussed    in  Wills   165. 

Page  on  Wills  160.  96  Needles    vs.    Needles,    7    O.    S. 

93  §  10579   G.   C,    §  1191.  432. 


§  1028  WILLS CHARITABLE   USES  924 

where  a  provision  is  made  against  perpetuities,  and  certain  in- 
stitutions receiving  under  a  will  where  the  will  is  executed 
within  one  year  of  the  testator's  death.  As  a  general  rule,  un- 
less ultra  vires  a  corporation  can  receive  property  under  a  will. 
It  has  been  held  that  the  State  may  be  a  beneficiary,  but  whether 
the  United  States  may  take  property  by  devise  is  a  question 
upon  which  the  Courts  are  at  variance.®^ 

§  1028.    Bequest  or  devise  to  charitable  purposes,  when  void. 

"If  a  testator  dies  leaving  issue  of  his  body,  or  an  adopted  child, 
living,  or  the  legal  representative  of  either,  and  the  will  of  such 
testator,  gives,  devises  or  bequeaths  the  estate  of  such  testator, 
or  any  part  thereof,  to  a  benevolent,  religious,  educational, 
or  charitable  purpose,  or  to  this  state  or  to  any  other  state 
or  country,  or  to  a  county,  city,  village,  or  other  corporation,  or 
association  in  this  or  any  other  state  or  country,  or  to  a  person 
in  trust  for  such  purposes,  or  municipalities,  corporations,  or 
associations,  whether  such  trust  appears  on  the  face  of  the  in- 
strument making  such  gift,  devise,  or  bequest  or  not ;  such  will 
as  to  such  gift,  devise,  or  bequest,  shall  be  invalid  unless  it  was 
executed  according  to  law,  at  least  one  year  prior  to  the  death 
of  the  testator."     [R.  S.  §  5915.] »« 

§  1029.     Corporation  and  charitable  uses. 

It  will  be  observed  that  three  things  are  necessary  to  consti- 
tute a  bequest  to  charitable  uses,  void.  First,  the  testator  must 
die  leaving  issue  of  his  body  or  an  adopted  child,^®  or  the  legal 
representative  of  either.  Second,  the  will  must  be  made  less  than 
one  year  prior  to  the  testator's  decease.  Third,  the  bequest 
must  be  for  benevolent,  religious,  educational  or  charitable 
purposes,  either  directly  or  indirectly.  Very  little  trouble 
will  be  experienced  in  the  application  of  the  first  two.  The 
latter  may  sometimes  afford  considerable  ingenuity  in  deter- 
mining whether  the  bequest  is  made  for  a  charitable  purpose. 

97  Page  on  Wills  174.  See  §  1321. 

98  §  10504  G.  C.  99  The  gift  to  a  religious  denomi- 
This  statute  does  not  include  heirs       nation  is  a  gift  to  a  public  charity. 

designated  under  §  8598  G.  C.,  First  German  Church  vs.  Winkel, 
§  1902.  19  Dec.  239. 

Theobald   vs.   Fugman,   64   O.    S. 
473. 


925 


WILLS 


CHARITABLE    USES 


§1029 


The  above  section  no  doubt  had  its  origin  in  the  statute  of  mort- 
main/"" 

The  statutes  of  mortmain  were  never  in  force  in  this  coun- 
try, and  with  us  the  corporation  may  receive  property  by  be- 
quest the  same  as  a  private  individual,  unless  expressly  pro- 
hibited by  law.'"' 

The  object  of  the  limitation  that  a  bequest  for  the  purpose 
mentioned  in  the  previous  section  shall  be  void  if  not  made 
one  year  before  the  testator's  death,  is  to  prevent  persons  in- 
terested in  such  purpose,  from,  by  reason  of  the  testator's  dan- 
gerous illness  and  proximity  of  death  prevailing  upon  him,  to 
make  a  disposition  of  his  property  which  he  would  not  other- 
wise have  done."^ 


100  These  statutes  are  known  by 
the  name  of  the  statutes  of  mort- 
main, and  they  applied  only  to  real 
property;  and  were  introduced  dur- 
ing the  establishment  and  grandeur 
of  the  Eoman  church,  to  check  the 
ecclesiastics  from  absorbing  in  per- 
petuity, in  hands  that  never  die,  all 
the  lands  of  the  kingdom,  and  there- 
by withdrawing  them  from  public 
and  feudal  charges.  The  earlier 
statutes  of  mortmain  were  original- 
ly levelled  at  the  religious  houses; 
but  the  statute  of  15  R.  II.,  c  5, 
declared  that  civil  or  lay  corpora- 
tions were  equally  within  the  mis- 
chief and  within  the  prohibition; 
and  this  statute  made  lands  con- 
veyed to  any  third  person,  for  the 
use  of  a  corporation,  liable  to  for- 
feiture in  like  manner  as  if  con- 
veyed directly  in  mortmain. 

Kent's  Com.   282. 

loiWoerner  on  Admin.  910;  Page 
on  Wills,  172-173;  4  Am.  &  Eng. 
Ency.  of  Law,  235. 

102  The   reason   of    the    limitation 


placed  upon  the  power  of  the  testa- 
tors, under  §  5915  R.  S.,  to  devise 
or  bequeath  their  property  to  relig- 
ious, benevolent,  educational,  or 
charitable  purposes,  only  in  wills 
executed  more  than  a  year  before 
their  death,  was  founded  upoij  a 
broad  public  policy;  it  was  for  the 
protection  of  the  testators  against 
the  importunities  of  designing  per- 
sons, and  against  themselves,  as 
well  as  for  the  protection  of  their 
families,  and  the  interest  of  the 
State.  Folsom  vs.  Haas,  9  C.  C. 
474;  6  C.  D.  460. 

§  10504  of  the  General  Code,  which 
avoids  legacies  and  devises  of  the 
character  therein  mentioned  upon 
the  happening  of  the  specified  event, 
was  designed  specially  for  the  pro- 
tection of  the  children  of  adopted 
child  of  the  testator  and  their  repre- 
sentatives, though  it  inures  to  the 
benefit  of  the  collateral  lieir  when 
the  lineal  heir  survives  the  testator 
and  then  dies.  Davis  vs.  Davis,  62 
O.  S.  411. 

40  Cyc.  1056,  1565,  1047. 

It  does  not  apply  to  a  person 
designated  as  an  heir  at  law  under 
§  8598  G.  C.  Theobald  vs.  Fugman, 
64  O.  S.  473. 


§1029 


WILLS 


CHARITABLE     USES 


926 


A  statute  of  this  character  is  constitutional,^**^  and  gifts  to 
charitable  uses  are  to  receive  the  most  liberal  construction."* 

These  provisions  in  reference  to  benevolent,  religious,  educa- 
tional or  charitable  purposes  seem  to  have  their  origin  in  an  En- 
glish statute  which  defined  what  should  constitute  a  valid  chari- 
table trust/**^  Our  statute  is  more  specific  and  includes 
benevolent,  religious,  and  educational,  together  with  charitable 
purposes.  The  support  and  propagation  of  religion  is  clearly 
a  charitable  use."*^  Thus  devises  for  the  erection  of  buildings 
for  public  worship  or  keeping  them  in  repair  are  upheld  as  char- 
itable devises.     Devises  in  aid  of  the  poor  and  destitute  are  al- 


ios Patton  vs.  Patton,  39  O.  S. 
590. 

lo-t  Zanesville  Canal  and  Man.  Co. 
vs.  Zanesville,  20  0.  483. 

A  fund  given  to  establish  "  a 
school  in  the  to\^Ti  of  Zanesville  for 
the  poor  children  of  said  town,"  is 
not  limited  in  its  benefits  to  the 
children  of  pareats  residing  in  that 
locality  which  constituted  the  cor- 
porate of  Zanesville  at  the  decease 
of  the  testator.  The  charity  will  be 
administered  for  the  benefit  of  poor 
children  in  the  town  of  Zanesville, 
according  to  the  most  general  and 
popular  sense  of  the  term.  20  Ohio 
483. 

To  same  effect,  concerning  same 
fund.  Mclntire  vs.  Zanesville,  17 
O.   S.   352;    9  O.  203. 

105  The  general  objects  which 
come  within  the  description  of 
"  charitable  uses,"  and  which  may 
therefore  constitute  a  valid  charit- 
able trust,  were  enumerated  in  the 
"  statute  of  charitable  uses,"  passed 
in  the  reign  of  Queen  Elizabeth,  as 
follows :  "  The  relief  of  aged,  im- 
potent, and  poor  people,  the  main- 
tenance of  mained  and  sick  soldiers 
and  mariners ;  the  support  of  schools 
of  learning,  free  schools,  and  schol- 
ars    of     universities;      repairs     of 


bridges,  ports,  havens,  causeways, 
churches,  sea  banks,  and  highways; 
education  and  preferment  of  or- 
phans; the  relief,  stock,  and  main- 
tenance of  houses  of  correction; 
marriage  of  poor  maids;  aid  and 
help  of  young  tradesmen,  handi- 
craftsmen, and  persons  decayed;  re- 
lief or  redemption  of  prisoners  and 
captives;  aid  of  poor  inhabitants 
concerning  payments  of  fifteenths, 
setting  out  of  soldiers,  and  other  tax- 
es." It  will  be  seen  that  this  list 
omits  some  most  important  and  fa- 
miliar charitable  objects  —  as,  for 
example,  the  support  and  propaga- 
tion of  religion.  The  English  and 
American  courts  have  never  regard- 
ed this  enumeration  as  exhaustive, 
but  as  designed  to  be  merely  illus- 
trative. Numerous  objects  analogous 
to  those  mentioned  in  the  statute, 
are  held  to  be  charitable.  The  doc- 
trine is  settled  that  all  particular 
objects,  embraced  within  the  general 
spirit,  intent,  and  scope  of  the  stat- 
ute, are  to  be  considered  as  charit- 
able, unless  they  violate  some  rule 
of  public  policy,  or  the  provisions 
of  some  positive  statute.  Pomeroy'9 
Equity,  586. 

loii  Pomeroy's  Equity,   587. 


927 


WILLS 


CHARITABLE    USES 


§  102!} 


ways  upheld  as  charitable  devises  if  the  other  requisite  elements 
of  a  charity  fire  present."^ 

The  beneficiaries  may  be  limited  to  the  poor  of  a  certain 
area/"^  and  in  some  States  the  beneficiaries  may  be  restricted 
to  the  poor  of  a  certain  chiirch,^"^  or  to  the  poor  of  a  non-char- 
itable association. ^^°  But  in  some  States  a  devise  to  the  poor 
of  an  unincorporated  church  or  association  is  held  void  as  too 
indefinite."^ 

The  other  use  of  specific  designation  is  charity  to  educa- 
tion."^ Education  is  held  to  be  a  charitable  use,  where  the  re- 
cipients of  the  gift  are  so  indefinite  as  to  render  the  grant  char- 
itable."^    Thus,  a  devise  to  a  State  to  establish  a  permanent 


107  In  re  Geek,  69  L.  T.  N.  S.  819 
(a  devise  "to  the  poor").  Duggan 
vs.  Slocumb,  83  Fed.  244;  Wood  vs. 
Paine,  66  Fed.  807;  Strong's  Ap- 
peal, 68  Conn.  527  (devises  to  the 
"  worthy  poor  of  said  town  ")  :  Phil- 
lips vs.  Harrow,  93,  la.  92  (a  devise 
to  the  "  poor  and  needy  people  "  of 
a  given  city  "  who  are  dependent  on 
their  own  labor  for  a  livelihood")  ; 
Doughten  vs.  Vandever,  5  Del.  Cli. 
51;  Hunt  vs.  Fowler,  121  111.  269; 
Dascomb  vs.  Marsten,  80  Me.  223; 
McAllister  vs.  Burgess,  161  Mass. 
269;  24  L.  R.  A.  1,58;  Ballard  vs. 
Chandler,  149  Mass.  532;  5  L.  R.  A. 
104;  Kelly  vs.  Nichols,  18  R.  I.  62: 
19  L.  R.  A.  413;  Tichenor  vs.  Brew- 
er, 98  Ky.  349;  33  S.  W.  86;  Fox 
vs.  Gibbs,  86  Me.  87;  Wardens,  etc., 
of  St.  Paul's  Church  vs.  Attorney 
General,  164  Mass.  188;  Chadwick 
vs.  Livesey,  56  N.  J.  Eq.  453;  41 
Atl.  1115,  affirming  55  N.  J.  Eq. 
204;  Trim's.  Estate,  168  Pa.  St.  395 
(a  devise  "  for  the  benefit  of  the 
poor"  of  a  named  township); 
Staines  vs.  Burton,  17  Utah,  331;  53 
Pac.  1015. 

los  See  some  cases  especially  quot- 
ed in  last  note;  and  Urmey  vs. 
Wooden,    1    0.    S.    160;     Scott    V3. 


Trustees,  39  O.  S.  153;  Trim's  Es- 
tate, 168  Pa.  St.  395;  Sheldon  vs. 
Stockbridge,  67  Vt.  299;  Sawtelle 
vs.  Witham,  94  Wis.  412;  69  N.  W. 
72. 

109  Bird  vs.  Merklee,  144  N.  Y. 
544  (a  devise  to  certain  named 
churches  "  according  to  the  number 
of  members  to  buy  coal  for  the  poor 
of  said  churches  ")  ;  O'Neal  vs.  Caul- 
field,  5  N.  P.  149;  8  Dec.  248. 

iioWilley's  Estate,  128  Cal.  1; 
56  Pac.  550  (a  devise  to  the  "wid- 
ows' and  orphans'  fund  "  of  a  non- 
charitable  association)  ;  Guilfoil  vs. 
Arthur,  158  HI.  600. 

iiiYingling  vs.  Miller,  77  (Md.) 
104;  26  Atl.  491;  Page  on  Wills, 
755. 

ii2Pomeroy's  Equity,  590;  Woer- 
ner  on  Admin.  925. 

11-'  Birchard  vs.  Scott,  39  Conn 
63 ;  Doughten  vs.  Vandever,  5  Del 
Ch.  51;  Fox.  vs.  Gibbs,  86  Me.  87; 
Grand  Prairie  Seminary  vs.  Mor- 
gan, 171  111.  444;  John's  Will,  30 
Ore.  494 ;  Attorney-General  vs. 
Parker,  126  Mass.  216;  De  Camp 
vs.  Dobbins,  29  N.  J.  Eq.  36;  Cle- 
ment vs.  Hyde,  50  Vt.  716;  Dodge 
vs.  Williams,  46  Wis.  70;  Almy  vs. 
Jones,  17  R.  I.  265. 


§1029 


WILLS 


CHAKITABLE    USES 


928 


school  fund  is  a  cKaritable  devise  ;^^*  so  a  devise  for  the 
benefit  of  public  schools  generally  is  a  charitable  devise,  even 
though  taxation  provides  such  schools  already  ;^^^  so  is  a  devise 
to  existing  educational  institutions  of  a  private  nature,^^®  and 
to  parochial  schools,^^^  and  a  devise  to  trustees  for  paying  the 
tuition  of  poor  children  ;^^®  so  are  devises  to  educate  young 
men,  one  at  a  time,  for  the  priesthood.^^^  Public  libraries  are 
recognized  by  the  Courts  as  a  most  valuable  means  of  education, 
and  devises  for  such  purposes  are  upheld  as  charitable.^^" 
A  devise  to  maintain  a  cemetery  is  generally  upheld  as  char- 
ity/^^  Likewise  the  establishment  of  a  public  park  or  play- 
ground was  held  to  be  a  charitable  devise.  So  have  bequests  for 
the  advancement  of  woman  suffrage  been  upheld  as  valid, 
and  a  devise  for  the  purpose  of  promulgating  the  views  of 
Henry  George  as  to  land  ownership  is  upheld  as  valid/^^ 

Where  bequests  are  void  because  made  within  one  year  of  a 
testator's  death  the  heir  at  law  is  not  the  only  party  who  may 


114  Sears  vs.  Chapman,  158  Mass. 
400;  Almy  vs.  Jones,  17  R.  I.  265. 

115  John  vs.  Smith,  91  Fed.  Rep. 
827;  John's  Will,  30  Ore.  494;  47 
Pac.  341 ;  36  L.  R.  A.  242 ;  Page  on 
Wills.  753. 

116  Abend  vs.  Endowment  Fund 
Commission,  174  111.  96;  Curlings 
vs.  Curlings,  8  Dana  (Ky.)  38; 
Blackburn  vs.  Tucker,  72  Miss.  735; 
17  So.  737  (though  void  as  to  real- 
ty, yet  valid  as  to  personalty). 

117  Hanson  vs.  Little  Sisters  of 
the  Poor,  79  Md.  434. 

118  Dye  vs.  Beaver  Creek  Church, 
48  S.  Car.  444. 

119  O'Neal  vs.  Caulfield,  5  N.  P. 
149 ;  8  Dec.  248  ( Gen.  Edu. )  ;  in  re 
Rymer  (C.  A.),  (1895),  1  Ch.  19; 
64  L.  J.  Ch.  (N.  S.)  86  (Theolog- 
ical Seminary)  ;  Barnard  vs.  Adams, 
58  Fed.  Rep.  313  (2  at  a  time)  ; 
Field  vs.  Drew  Theol.  Sem.,  41  Fed, 
371. 

120  Page  on  Wills,  7.54. 


121  Page  on  Wills,  758. 

i2:i  Page  on  Wills,  759. 

The  following  Ohio  cases  have  in 
one  way  or  the  other  considered 
this  question.  Thus  in  Mclntyre  vs. 
Zanesville,  17  0.  S.  352.  The  one 
to  be  applied  for  the  support  of  a 
poor  school.  See  also  same  case,  9 
O.  213. 

Another  case  is  a  Board  Ed.  vs. 
Ladd,  26  0.  S.  210.  Where  property 
has  been  devised  for  a  charitable 
purpose,  the  Court  of  Equity  will 
see  that  the  trustees  perform  their 
business.  Cincinnati  vs.  Mc^Iicken, 
6  C.  C.  188;  3  C.  D.  409. 

As  to  when  a  Court  of  Chancery 
will  supply  the  defect,  see  Urmey  vs. 
Wooden,   1  O.  S.   160. 

The  trustees  of  a  township  may 
receive  the  bequest.  Scott  vs.  Mar- 
ion Township,  39  O.  S.  153. 

So  may  County  Commissioners. 
Christy  vs.  County  Comm'rs,  41  0. 
S.  711. 


929  WILLS— ENTAILED    ESTATES  |  1030 

object  to  such  bequests,  but  any  party  interested  in  the  estate 
may  do  so.^-^ 

§  1030.     Entailed  estates  pass  to  issue  of  first  donee.     ' '  No 

estate  in  fee  simple,  fee  tail,  or  any  lesser  estate,  in  lands  or 
tenements,  lying  within  this  state,  shall  be  given  or  granted,  by 
deed  or  will,  to  any  person  or  persons  but  such  as  are  in  being, 
or  to  the  immediate  issue  or  descendants  of  such  as  are  in  being 
at  the  time  of  making  such  deed  or  will;  and  all  estates  given 
in  tail  shall  be  and  remain  an  absolute  estate  in  fee  simple  to 
the  issue  of  the  first  donee  in  tail."     [R.  S.  §  4200.]^-* 

§  1031.     Rule  against  perpetuities. 

The  above  section  is  the  law  in  Ohio  against  what  is  com- 
monly known  as  a  law  against  perpetuities.  This  term  is  de- 
fined as  follows :  In  the  technical  sense  a  perpetuity  is  a  grant 
of  property  "  wherein  the  vesting  of  an  estate  or  interest  is 
unlawfully  postponed ;  and  they  aro  called  perpetuities  not  be- 
cause the  grant  as  written  would  make  them  perpetual,  but 
because  they  transgress  the  limits  which  the  law  has  set  in  re- 
straint of  grants  that  tend  to  a  perpetual  suspense  of  the  title  of 
its  vesting."^^^ 

Oui'  Supreme  Court  in  passing  upon  this  question,  makes 
use  of  the  following  language:  "  If  the  devise  in  question  is 
not  within  the  limitation,  it  is  valid  under  the  general  author- 
ity. This  supersedes  inquiry  as  tO'  the  scope  of  the  rule  of  the 
common  law  upon  the  subject.  The  statute  does  not  contem- 
plate mere  possibilities.  It  forbids  devises  to  persons  who 
are  in  fact  more  remote  than  the  immediate  issue  of  persons  in 
being  at  the  time  of  the  testator's  death.  That  further  issue  of 
the  first  donee  in  tail  might  come  into  being,  is  immaterial."  ^^* 

123  Davis  vs.  Hutchings,   15  C.  C.      in   fee.      Pollock  vs.    Speidel,   17    O. 
174;   8  C.  D.  52.  S.  439;   27  0.  S.  86. 

124  §  8622    G.    C.  123  Page  on  Wills,  728. 

Where  an  estate  is  devised  to  cer-  i26  Phillips   vs.    Herron,    55    0.    S. 

tain   trustees,   and   their   successors,  478. 

the   limitation   over   is   void.      Miles  Under   §  8622   G.   C,  the   issue   of 

vs.  Fisher,  10  0.  1.  the    donee    in    tail    during    the    life 

Where    land    is    conveyed    "to    A,  of   such    donee,    has    no    interest    or 

the    heirs   of   his   body    and    assigns  estate    in    tlie    lands    inlierited    that 

forever,"    tlio    grantee    takes    an    es-  he  can  alienate.     Dungan  vs.  Kline, 

tate  tail,  and  under  the  statute  the  7  0.  L.  R.  578;    81   0.  S.  371. 

issue  of  A  take   an  absolute  estate  As  to  sale  of  entailed  estates,  see 

§  11925  G.  C. 


§  1031 


WILLS 


RULE   AGAINST    PERPETUITIES 


930 


The  expression,  "  time  of  making  a  will,"  is  construed  to 
me«&i  the  death  of  the  testator,  and  the  words,  "  immediate  is- 
sue or  descendants,"  includes  grandchildren  of  one  in  being 
where  the  parent  of  such  grandchildren,  who  was  the  child  of 
such  person  in  being,  dies  before  such  person  in  being,^"^  and 
a  person  in  ventre  sa  mere  is,  of  course,  a  person  in  being 
within  the  meaning  of  the  statute/"^  This  rule  is  applicable  to 
all  persons  holding  property,  except  a  charitable  devise,  as  to 
such  a  devise  it  is  held  that  the  statute  against  perpetuities  does 
not  prevail/^® 

There  seems  to  be  no  limitation  in  Ohio  as  to  personalty,^^" 
yet  an  inferior  Court  held  that  the  common  law  rule  against 
per|>etuities  as  to  personalty  is  in  force  in  Ohio/^^ 


izTMcArthur  vs.  Scott  113  U.  S. 
340;  Stevenson  vs.  Evans,  10  0.  S. 
307;  Turley  vs.  Turley.  11  O.  S.  173. 

12«  Phillips  vs.  Herron,  55  O.  S. 
478;  Page  on  Wills,  738. 

129  O'Neill  vs.  Caufield,  5  N.  P. 
149;  8  Dec.  248;  Page  on  Wills, 
747;   Woerner  on  Admin.  919. 

A  devise  to  one  for  life  and  then 
to  his  children,  or  to  the  children 
lawfully  begotten  of  the  body  of 
such  children,  held,  the  remainder  is 
not  void  for  vmcertainty.  The  desig- 
nation is  of  persons  in  being  at  the 
end  of  the  life  tenancy,  either  chil- 
dren, or  the  children  of  predeceased 
children,  and  not  of  a  succession, 
first  to  children,  and  then  to  their 
children.  Stevenson  vs.  Evans,  10 
O.  S.  307. 

A  will  may  be  good  in  part  and 
void  in  part.  Limitations  illegal  as 
creating  entails  or  perpetuities  do 
not  invalidate  the  rest  of  the  will. 
Hears  vs.  ]\Iears,  15  O.  S.  90,  95. 

That  in  a  devise  of  successive  es- 
tates some  are  void  under  our  stat- 
ute against  perpetuities,  R.  S.  4200, 
does  not  invalidate  the  intermediate 
ones,  which  are  not  too  remote. 
Hatch  vs.  Hatch,  31  B.  57. 


130  Smith  vs.  Lowenstein,  50  O.  S. 
346. 

131  Dayton  vs.  Phillips,  28  Bull. 
327. 

No  interest,  subject  to  a  condition 
])recedent  is  good,  unless  the  condi- 
tion is  to  be  fulfilled,  if  at  all,  with- 
in twenty-one  years  after  some  life, 
or  lives,  in  being  at  the  creation  of 
the  estate.  The  number  of  lives 
upon  which  the  vesting  of  the  estate 
depends  is  immaterial  if  all  the 
lives  are  in  existence  at  the  time 
the  estate  is  created.  To  this  length 
of  time  is  added  the  period  of  gesta- 
tion, whenever  gestation  in  fact  ex- 
ists, whether  it  is  the  gestation 
period  of  a  person  in  ventre  sa  mere, 
who  is  the  person  in  being  whose 
life  determines  the  estate,  or  the 
gestation  period  of  the  person  whose 
minority  is  the  twenty-one  year 
period  after  a  life  in  being.  By  the 
wording  of  the  rule  it  can  not  apply 
to  invested  estates;  but  it  does  apply 
to  every  sort  of  property  right  other 
than  a  vested  interest,  such  as  a 
contingent  remainder,  or  an  execu- 
tory devise;  and  it  includes  both 
legal  and  equitable  estates.  Page 
on  Wills  730. 

See  Pollock  vs.  Speidel,  27  O.  S. 
86:  Harkness  vs.  Corning.  24  O.  S. 
416;    Poor  vs.   Hart,   11   N.   P.  49; 


931  CONTEACT    TO    MAKE    A    WILL  §  1032 

§  1032.     Contract  to  make  a  will. 

While  our  Supreme  Court  has  declared  that  contracts  by  an 
owner  in  respect  to  a  disposition  of  his  property  to  take  effect 
after  his  death,  and  different  from  such  as  the  law  would  pre- 
scribe in  a  case  of  intestacy,  are  of  no  validity  unless  made 
through  (he  medium  of  a  last  will  and  testament,^^^  yet  the 
right  to  make  a  contract  agreeing  to  make  a  certain  disposition 
of  one's  property  has  on  several  occasions  been  upheld  by  the 
sajne  Court/^^     It  must,  however,  be  in  writing/^* 

Our  Court  has  not  only  recognized  the  validity  of  such  con- 
tracts, but  has  snstained  an  action  against  the  heir  to  compel 
a  specific  performance  of  the  contract.^^^  The  enforcement 
of  such  a  contract  does  not  prevent  the  will  itself,  if  there  be 
one  made,  from  being  revocable.  If  it  is  irrevocable  it  is  not 
a  will.  A  will  made  in  pursuance  of  a  contract  to  make  a  will, 
as  far  as  the  Probate  Court  is  concerned,  should  be  treated  as 
a  will,  and  whatever  objections  are  made  thereto,  must  be  made 
in  some  other  tribunal.  The  remedy  that  a  person  has  against 
the  testator  must  be  an  action  at  law  against  his  estate  for  dam- 
ages, for  breach  of  contract,  or  a  suit  in  equity,  to  have  the 
heirs  and  next  of  kin,  or  the  beneficiaries  under  the  will,  if  the 
testator  has  left  another  will,  declared  trustees  for  the 
promisee,"®  or  as  above  stated,  a  suit  for  specific  performance. 
It  is  said  "  that  while  such  contracts  are  enforceable  as  valid 
contracts,  they  do  not  stand  upon  a  special  favorite  footing.  In 
order  to  be  enforceable  they  must  have  all  the  essential  elements 
of  any  valid  contract."^  The  contract  to  make  a  will  must,  in 
order  to  be  enforceable,  be  clearly  proved  and  be  certain  and 

unambiguous  in  all  its  terms.^^^  ♦ 

21  Dec.  260;   Naylor  vs.  Loomis,  9  ham  vs.  Swan,  48  O.  S.  25;  Hopple 

C.    C.   96;    6    C.    D.    41;    Harris   vs.  vs.  Hopple,  3  C.  C.  102;  2  C.  D.  59. 

Maholm,  20  N.  P.  439 ;  28  Dec.  228.  ici  KHng    vs.    Bordner,    45    Bull. 

A  devise  to  a  son  "and  his  heirs  44^2 

to  the  third  generation,"  is  an  en-  i"-'-,  T?rr,r.,-TT    -..o     T^n,.i;r,„     r.n    rt     c 

,    .,         ,         ..f.       XI  •  £  i">  iLmcry    vs.    Dariing,    50    U.    b. 

tailment    witiun    the     meaning     of      ,„rv 

§6222  G.  C.     Under  the  provisions  ^^'^-                             ,      ^ 

of  that  section  the  son  takes  a  life  ""  Pa?e  on  Wills,  79. 

estate    in    fee    simple.      Naylor    vs.  ^^t  Page  on   \A  ills,  80. 

Loomis,  9  C.  C.  96;  6  C.  D.  41.  As  to  tha  various  kinds  of  consid- 

132  Phippg  vs.  Hope,  16  0.  S.  586;  eration    wl-ich   will    support    a    con- 

40  Cyc.   1134.  tract,  see  Page  on  Wills,  §  72,  p.  80, 

i33Phipps  vs.  Hope,  16  0.  S.  595;  iss  Shaham  vs.  Swan,  48  0.  S.  25; 

Emery   vs.   Darling,   50   0.   S.    160;  page  on  Wills,  §73,  p.  83. 

Norris  vs.  Clark,  3  Bull.  994;   Sha-  ^                    >  ^      ,  i-       - 


§  1033  STATUTORY  MEANING  OF  CERTAIN  WORDS,  ETC.  932 

A  question  which  frequently  arises  in  these  cases  is,  whether 
the  action  comes  witliin  the  statute  of  frauds,  and  the  Courts 
hold  that  it  does;^^®  and  also  hold  that  where  the  contract  is 
entire  and  some  part  of  tlie  matter  agreed  to,  if  it  stood  alone, 
would  not  be  within  the  statute,  yet  in  such  case  it  all  comes 
within  the  provisions  of  the  statute  of  fraud. ^**' 

There  is  some  controversy  among  courts,  as  to  what  will 
constitute  a  part,  performance  that  will  take  it  out  of  the  statute 
of  frauds."^  Of  course,  in  such  case  the  death  of  the  prom- 
isor not  having  made  tlie  provisions  agreed  upon,  will  constitute 
the  breach  of  the  contract.  The  promisee  has  several  remedies. 
He  may  sue  on  the  contract,  in  which  case  the  measure  of  dam- 
ages will  be  the  value  of  the  property  which  by  the  terms  of  the 
contract  was  to  have  been  devised  or  bequeathed  to  him.  Or 
he  may  treat  the  contract  as  rescinded  and  sue  on  quantum 
meruit  for  the  reasonable  value  of  his  services,^*^  or  he  may 
maintain  an  action  in  specific  performance."^ 

The  right  of  such  an  action  accrues  at  the  death  of  the  testa- 
tor and  the  statute  of  limitation  must  be  calculated  from  that 
date."* 

§  1033.  Statutory  meaning  of  certain  words  as  applied  to 
wills.  "In  the  interpretation  of  part  third,  unless  the  context 
shows  that  another  sense  was  intended,  the  word  'person'  in- 
cludes a  private  corporation;  'writing'  includes  printing;  'oath' 
includes  affirmation;  'of  unsound  mind'  includes  every  species 
of  mental  deficiency  or  derangement;  'bond'  includes  an  under- 
taking; 'and'  may  be  read  'or,'  and  'or'  read  'and,'  if  the 
sense  requires  it.  Words  in  the  present  tense  include  a  future 
tense,  and  in  the  masculine  gender  include  the  feminine  and 
neuter  genders.  Words  in  the  plural  include  the  singular,  and 
in  the  singular  include  the  plural  number.  This  enumeration 
shall  not  be  construed  to  require  a  strict  construction  of  other 
general  words  in  this  part."     [R.  S.  §4947,  5913.] ^"^ 

Definition  of  terms,  "In  this  title  the  term  'will'  includes 
codicils."     [R.  S.  §5913.]"^* 

139  Shaham  vs.  Swan,  48  0.  S.  25.       worth    more   when   paid   for    in    the 

140  Shaham  vs.  Swan,  48  0.  S.  25.       future.      Norris    vs.    Clark,    3    Bull. 
1*1  See  discussion  of  this   subject,       994. 

§  75,  Page  on  Wills,  86.  l«  Emery   vs.    Darling,   50   O.   S. 

142  Page  on  Wills,  90.  160;    Page    on   Wills,    91;    36    Cyc. 

On    promise   to   pay   by   will,   the  ^^^• 

damages  are  the  value  of  the  serv-  i**  ^^ge  on  Wills,  97. 

ices  when  rendered,  but  without  in-  |*^^  ^'^^  Schouler  on  Wills,  451, 

terest  until  after  the  death.     It  is  a  j^g  p  ioq-io  p    p 

question  of  fact  whether  services  are  i45»  s  10502  G    C 


933 


WILLS 


HOW  MADE 


§  1084 


CHAPTER  LY. 

WILLS.     EXECUTION. 


§  1034  How  will  made. 

§  1035  In  writing. 

§  1036  Will   being  on  several  pieces 

of  paper. 
§  1037  Signed  at  the  end. 
§  1038  By  party  making  the  same. 
§  1039  Signed  by  other  person. 
§  1040  Attestation. 
§  1041   Subscription. 
§  1042  In  presence  of  testator. 


§  1043  Two  or  more  competent  wit- 
nesses. 

§  1044  Effect  of  a  person  being  a 
devisee  or  legatee. 

§  1045  Who  saw  testator  subscribe 
or  heard  him  acknowledge. 

§  1046  Suggestions  for  drawing 
wills. 

f  1047  Form  of  will. 


§1034.  How  will  made.  "Except  nuncupative  wills,  every 
last  will  and  testament  must  be  in  writing,  but  may  be  hand- 
written or  typewritten.  Such  will  must  be  signed  at  the  end 
by  the  party  making  it,  or  by  some  other  person  in  his  presence 
and  by  his  express  direction,  and  be  attested  and  subscribed  in 
the  presence  of  such  party,  by  two  or  more  competent  witnesses, 
who  saw  the  testator  subscribe,  or  heard  him  acknowledge  it." 
[R.  S.  §5916.]^ 

§  1035.     In  writing. 

In  our  State  there  can  be  no  valid  will  except  it  conforms  to 
the  provisions  of  the  above  section.  Except  nuncupative  wills, 
every  will  must  be  in  writing.  It  may  be  written  by  a  pen  as 
in  ordinary  writing,  or  it  may  be  printed  or  lithographed  or 
typewritten.^ 

"  In  writing,"  as  used  in  this  section,  would  include  a  will 
which  was  partly  printed  and  partly  written.^ 


1  §  10505  G.  C. 

A  faulty  execution  of  a  will  may 
be  remedied  by  a  codicil. 

See  §  1177. 

See  Sears  vs.  Sears,  77  O.  S.  104. 
In  the  interpretation  of  the  statute 
the  intention  of  the  legislature  con- 
trols. 

2  Page  on  Wills,  §  159,  p.  181. 
sRouseh    vs.    Wenzel,    15    C.    C. 

133;   8  C.  D.  141. 


A  testamentary  clause  in  a  will 
disposing  of  the  testatrix's  property 
after  death,  in  case  she  does  not 
recover,  is  a  contingent  will,  and 
valid  if  recovery  does  not  happen. 
Underwood  vs.  Rutan,  65  Bull.  268; 
Supreme   Court    (1920);    101   0.   S. 

A  will  may  be  executed  on  the 
[Lord's  day.  Bennett  vs.  Brooks,  9 
Allen   (Mass.)    118. 


§  1036  WILLS EXECUTION  934 

It  may  also  be  "uritten  in  lead  pencil,*  and  it  may  be  written 
on  any  material  which  can  be  used  to  write  upon.  But  it  has 
been  held  that  a  will  written  on  a  slate  is  so  easily  altered,  that 
it  should  not  be  recognized  as  a  valid  will.^ 

Where,  in  accordance  with  the  custom  of  a  country,  a  will 
was  written  in  a  book,  it  was  held  proper,  and  if  the  book 
could  not  be  produced  an  authenticated  copy  could  be  admitted 
to  probate.® 

The  will  may  be  written  in  any  language;  it  is  not  necessary 
that  it  be  the  English  language  ncr  that  it  be  a  language  with 
Vvhich  the  testator  is  acquainted,  but  it  must  be  shown  that  he 
understood  what  the  will  contained.  If  a  will  was  written  in 
a  language  that  the  testator  did  not  understand,  it  seems  that 
the  burden  would  be  upon  the  person  propounding  the  will 
to  establish  the  fact  that  the  will  was  made  in  conformity  to 
the  idea  of  the  testator,  A  will  ought  also  to  be  written  in 
the  simplest  and  plainest  words  that  express  the  intention  of  the 
testator,  and  the  person  drafting  the  will  should  be  careful 
to  use  the  words  that  will  carry  into  effect  the  ideas  of  the 
testator. '^ 

§  1036.    Will  being  on  several  pieces  of  paper.'^ 

A  will  is  valid  if  written  upon  several  pieces  of  paper.'  It 
is  valid  even  if  the  testator's  signature  is  on  a  piece  of  paper 
separate  from  the  dispositive  clauses  of  the  will ;  and  it  is  held 
that  it  is  not  necessary  that  these  papers  be  fastened  together 
if  their  sense  connects  them.  But  it  must  be  shown  from  the 
several  pieces  of  paper  themselves  that  they  constitute  but  one 
entirety.® 

4  Harris  vs.  Pue,  39  Md.  535 ;  Where  a  disposition  clause  is 
Myers  vs.  Vanderbilt,  84  Pa.  St.  placed  in  the  margin  before  it  is 
510;   Knox  Estate,   131   Pa.   St.  220.  signed    by    the    testator,     this    Avill 

5  Reed  vs.  Woodward,  11  Phila.  make  the  will  void,  as  it  is  not 
541.  then  signed  at  the  end.     Fac  simile 

6  Faber's  Estate,  7  X.  P.  561;  5  of  will,  on  page  3r8,  of  Irwin  vs. 
Dee.   575.  Jacques,  71  0.  S.  395. 

7  Page  on  Wills,   182.  The   mere   fact   that   the   testator 
7a  Cited  Chaney  vs.  Coulter,  29  O.       writes  the  will  himself  will  not  do 

C.  C.  186.  away  with  the  requirement  that  he 

See  §  1046.  must    sio^n    at    the   end.      Sears    vs. 

8  Bond  vs.  Seawell,  3  Burrows,  Sears,  77  O.  S.  104.  For  criticism 
1773;    Barnewall    vs.    Murrell,    108  of  this  case,  see  5*  Bull.  137. 

Ala.    366;     St.    John's    Parish    vs.  Where    a    will    is    written    on    a 

Bostwick,  8  App.  D.  C.  4'52:   Jones  blank    form,    and    there    is    a    space 

vs.   Habersham,   63   Ga.    146;    Harp  of    twenty-one    inches    between    the 

vs.  Parr,   168  111.  459;    Ela  vs.  Ed-  last  disposition   part  and  sisnature, 

wards,   16  Gray    (Mass.)   91;   Burn-  it  is  sicrned  at  the  end.     Mader  vs. 

ham    vs.    Porter,    24    N.    H.    570;  Apple,  6  N.  P.   (X.S.)   592;  80  0.  S. 

Grubb,  Estate  of,   174  Pa.  St.   187;  691;   reversing  18  Dec.  301. 

Ginder  vs.  Farnum,   10  Pa.  St.  98;  tjpg    Cruft    vs.    Wilber.    9    N.    P. 

Wikoflf's    Appeal,    15    Pa.    St.    281;  (X.S.)    161;    19  Dec.  421. 

Gass   vs.    Gass,    3    Hump.    (Tenn.)  9  Page  on  Wills,  182,  §161. 
278. 


935  IN    SEVERAJ.    PIECES   •  §1037 

From  the  proposition  that  a  will  may  be  written  on  several 
pieces  of  paper,  follows  the  doctrine  that  a  document  or  writing 
may  be  made  a  part  of  the  will  by  reference,  the  same  as  if 
copied  in  the  will.  "  In  order  to  incorporate,"  says  a  distin- 
guished author,^"  "  three  things  are  necessary.  1.  The  will 
itself  must  refer  to  such  paper  to  be  incorporated  (a)  as  being 
in  existence  at  the  time  of  the  execution  of  the  will,  and  (b)  in 
such  a  way  as  to  reasonably  identify  such  paper  in  the  will,  and 
(c)  in  such  a  way  as  to  show  testator's  intention  to  incorporate 
such  instrument  in  his  will  and  to  make  it  a  part  thereof.  Thus 
a  paper  placed  with  a  will  is  not  a  part  thereof  where  the  will 
shows  no  intention  to  incorporate  it 

"  2.  Such  document  must,  in  fact,  be  in  existence  at  the  time 
of  the  execution  of  the  w^ill.  If  this  were  not  the  rule  testa- 
tor could,  by  executing  a  will  and  incorporating  therein  a  docu- 
ment to  be  executed  in  the  future,  create  for  himself  a  power  to 
dispose  of  his  property  in  a  testamentary  manner  by  an  instru- 
ment not  executed  in  accordance  with  the  statute  of  wills. 

"  3.  Such  instrument  must  correspond  to  the  description 
thereof  in  the  will  and  must  be  shown  to  be  the  instrument 
therein  referred  to."* 

§  1037.    Signed  at  the  end. 

It  is  the  obvious  and  general  recognized  object  of  the  Legis- 
lature in  requiring  a  testamentary  paper  to  be  signed  at  the  foot 
or  end  thereof,  to  prevent  the  possibility  of  fraudulent  interpo- 
lation between  the  will  and  the  signature  of  the  testator  after 
execution.^^ 

The  general  meaning  attached  to  the  requirement  that  the 
testator  must  sign  at  the  end,  means  that  he  must  sign  at  the 
end  of  the  dispositive  parts  of  the  will ;  and  it  has  been  held  to 
comply  with  the  law  where  the  testator  signs  either  before  or 
after  the  attestation  clause.     And  where  there  are  blanks  in  a 

10  Page  on  Wills,  183,  §  162.  hered  to  the  face  of  the  sheet,  and 

11  Judge    Dickman,    in    Baker   vs.      underneath  this  attached  paper  orig- 
Baker,  51  O.   S.   217.  inally     there     were     written     other 

A    will    executed    on    Sunday    is  words    which    are    entirely    covered 

valid.     See  Gedding  vs.  Schmid,  37  and  obscured  by  it,  and  there  is  no 

Cyc.   565;    20  0.  C.  C.    (N.S.)    142.  testimony  showing  when  or  for  what 

See    Thompson    on    Wills,    §  152,  purpose  this  change  was  made  in  the 

where   authorities   are  cited   on    in-  original   construction   of   the  paper, 

corporation    by    reference.      Newton  but    the    words   vipon    the    attached 

vs.  Seaman's  Friends,  etc.,  130  Mass.  slip  are  proved  to  have  been  writ- 

91.  ten    by    the    testatrix    and    are    so 

^Vhere    in    the   physical   construe-  framed  in  the  will  with  reference  to 

tion  of  a  will,  a  piece  of  paper,  ruled  what  precedes  and  follows  that  the 

and  very  similar  in  all  respects  to  literary  construction  is  complete,  it 

the  body  of  the  paper,  has  been  ad-  will   be   presumed    that   the   paper, 


§  1037  WILLS  EXECT/TION  936 

will,  even  though  such  a  blank  would  permit  interlineation,  yet 
a  will  signed  after  the  last  clause  of  such  an  instrument  is  held 
to  be  signed  at  the  end  thereof.^^ 

Although  the  Courts  do  not  look  with  favor  on  wills  executed 
in  this  manner,  for  wide  blanks  in  a  will  permit  the  very  thing 
which  it  is  the  object  of  the  statute  to  prevent,  to-wit,  inter- 
lineation. Yet  where  the  writing  is  incorporated  by  reference, 
and  the  original  writing  is  signed  at  the  end,  this  complies  with 
the  statute.  It  is  sometimes  a  matter  of  no  little  diflBculty 
where  the  writing  is  placed  on  a  will  after  the  testator's  signa- 
ture, to  determine  whether  such  writing  invalidates  the  entire 
will  because  it  is  not  signed  at  the  end. 

In  an  Ohio  case  it  was  held,  where  a  decendent  in  his  life- 
time drew  a  will  and  signed  it,  but  without  having  it  witnessed, 
and  afterwards  added  thereto  a  clause  making  an  additional 
devise  of  the  property  mentioned  in  the  will,  and  then  caused 
it  to  be  subscribed  by  two  witnesses,  but  without  again  signing 
the  same  himself  "  at  the  end  thereof,"  as  required  by  the  ''  act 
relating  to  wills :"  that  the  whole  instrument  was  invalid  as  a 
last  will  and  testament.^^ 

Generally  in  such  cases  if  the  writing  added  was  a  part  of 
the  original  will,  as  intended  by  the  testator,  subsequent  matter 
written  thereon  will  not  aifect  the  original  will  unless  it  is 
signed  and  witnessed  as  a  codicil.  In  such  a  case  the  ques- 
tion of  the  intention  of  the  testator  must  govern.  If  the  part 
added  to  the  will  after  the  testator's  signature,  even  though 
made  at  the  time  of  its  execution,  does  not  make  a  disposition 
of  his  property,  the  same  will  not  atfect  the  will.  Thus  it  has 
been  held  in  our  State  that  where  the  testator  wrote  after  his 
signature,  "My  sister-in-law  is  not  required  to  give  bond  when 
probated,"  that  it  did  not  invalidate  the  will.^'* 

Where,  after  signing  his  name  the  testator  added  a  clause, 
directing  the  executor  to  sell  certain  realty,  and  devote  the  pro- 
ceeds to  pay  the  debts  and  legacies  and  then  the  witnesses 
signed,  it  was  held  that  the  will  was  invalid  as  not  signed  at 

when   it  was   intended   to  be  made  to.    In  re  Buffington's  Will,  88  Atl. 

final  by  subscription  and  attestation,  1093   (N.  J.,  1914). 

contained  tlie  attached  slip  in  ques-  12  Page  on  Wills,  §§  183  and  184, 

tion.     Estate  of  Nicholson,  49  Bull.  p.  202. 

379;   reversed,   72  0.   S.   104.  13  Glancy  vs.  Glancy,  17  0.  S.  134. 

Where  an  interlineation  was  made  i^  Baker  vs.  Baker,  51  0.  S.  217. 

after   the   will   was    subscribed,    but  The  recent  case  of  Irwin  vs.  Jac- 

before     it    was     published     or     the  ques,   71   0.   S.   1905,  will  no  doubt 

signature    acknowledged,     the    will,  be  the  leading  case  in   Ohio,  as  to 

with  the   interlineation,  was   signed  wliat  constitutes  signing  at  the  end. 

at  the  end  though  the  testator  did  In    this   case,   at   the   suggestion   of 

not  again  subscribe  his  name  there-  the   testator,   and   before   he   signed 

the  same,  a  clause  disinheriting  any 


937  SIGNED   AT   END  §  1038 

the  end."  In  our  State,  however,  the  Court  would  probably 
have  held  that  such  a  direction  did  not  invalidate  the  entire 
will/' 

§  1038.     By  party  making  the  same. 

It  has  always  been  absolutely  essential  that  the  testator  must 
in  some  way  sign  the  will.  To  write  out  '^  One's  own  name  in 
full,"  says  Schouler,  "  is  doubtless  the  safest  course  as  vwll 
as  the  most  natural ;  for  such  compliance  best  indicates  a  ra- 
tional mind,  free  will,  and  physical  power  at  the  date  of  exe- 
cution. But,  undoubtedly,  the  making  of  his  mark  or  cross 
by  the  testator  will  satisfy  the  statute ;  and  that,  too,  as  various 
cases  rule,  notwithstanding  he  was  able  to  write  at  the  time.^** 

The  testator  may  sign  his  name  by  writing  it  out  in  full  or 
by  abbreviating  it,  or  by  writing  the  initials  of  his  Christian 
name,  or  by  using  an  assumed  name  where  not  done  with  in- 
tent to  deceive.  Misspelling  the  name  signed  does  not  in- 
validate the  will.  The  signature  may  be  in  ink  or  with  a  pen- 
cil, or  with  a  stamp,  or  a  seal.^' 

The  testator  may  sign  by  mark  if  he  is  in  good  health.  How- 
ever, it  is  not  a  safe  thing  to  do,  as  it  may  give  rise  to  suspicions 
of  fraud  or  forgery  ;^^  but  such  a  mark  must  be  made  with  the 
intention  of  being  considered  the  signature  of  the  testator.^® 

If  the  name  by  the  mark  is  written  incorrectly,  such  mis^- 
take  does  not  invalidate  the  will.  Where  a  person  guides  the 
course  of  a  pen  or  traces  his  own  name  while  the  name  is  writ- 
ten by  another,  this  would  be  his  own  signature  and  made  by 
himself.  If  the  right  instrument  is  intentionally  signed  as  one's 
own  will,  a  mere  misnomer  or  discrepancy  of  signature  does 
vitiate  the  paper,  provided  its  genuineness  be  duly  established. 
As  where  the  will  of  T.  D.  describes  the  testator  throughout  by 

child  that  should  contest  the  will,  clause  and  it  was  held  that  the  will 
was  written  on  the  margin,  opposite  was  signed  at  the  end.  The  holding 
to  the  name  of  the  testator,  and  it  goes  to  the  extreme  and  justly  sub- 
was  held  the  will  was  not  signed  at  ject  to  the  criticism  made  in  53 
the   end,   althougli   it  was   admitted  Bull.  137. 

that  the  testator  intended  it  to  be  a  l^*  Schouler  on  Wills,  303. 

part  of  his  will.  17  Page  on  Wills,  191,  §  172. 

15  In  re  Blair,  1.52  N.  Y.  645.  18  Page  on  Wills,  193. 

16  See  Page  on  Wills,  203,  §  186;  19  But  where  testator  tried  to  sign 
Schouler  on  Wills,  312;  Woerner  on  the  will  himself,  and  was  unable  to 
Admin.  64.  do   so  from  weakness,   a   small   line 

See  note    §  1036.     Tn  the  case   of  made  by   him    in   such   unsuccessful 

Sears   vs.    Sears,   77   O.    S.    104,   the  attempt,  not  intended  by  him  as  a 

testator   attached   her   name   in   the  signature,  is  not  a  mark  within  the 

attestation  clause  and   not  after  or  meaning  of  the  law.    Page  on  Wills, 

immediately  below  the  testimonium  192. 


§  1039  WILLS  —  EXECUTION  938 

a  wrong  name,  such  as  C.  D.,  and  he  signs  it  by  his  righf-  one, 
or  where  against  the  testators  mark  a  "wrong  name  is  written, 
the  will  describing  him  by  the  right  one.^° 

§  1039.     Signed  by  another  person. 

If  the  testator  for  some  reason  is  unable  to  attach  his  signa- 
ture, it  may  be  done  by  some  other  person  in  his  presence,  and 
by  his  express  direction.  It  will  be  observed  from  the  statute, 
that  two  things  are  essential  in  thus  attaching  the  signature 
of  a  testator :  it  must  be  done  in  his  presence  and  by  his  ex- 
press direction.  In  the  absence  of  statute,  the  signature  could 
not  be  so  attached.  As  t-o  what  shall  constitute  his  presence, 
will  be  discussed  under  a  subsequent  section  when  treating  of 
how  a  will  must  be  witnessed.  The'  same  rules  apply  in  order 
to  constitute  "  in  the  presence  of  the  testator  "  in  both  cases. 
As  to  what  shall  constitute  au  express  direction,  it  must  be 
such  action  either  by  words  or  otherwise  on  the  part  of  the 
testator,  as  will  convey  to  the  person  who  is  to  attach  his  signa- 
ture, the  idea  that  it  is  the  will  of  the  testator  to  which  the  tes- 
tator wishes  such  person  to  attach  his  signature.  Thus  it  was 
held  that  where  an  attorney  had  drawn  a  will  and  then  said  to 
the  testator,  "  you  can  make  your  cross,  and  I  can  sign  for  you 
if  you  so  direct,"  and  the  testator  said,  "  very  well ;  do  so,"  that 
this  was.  a  sufficient  request."^ 

Under  our  statute  there  need  be  no  special  reason  why  the 
signature  is  attached  by  another  person,  although,  as  was  said 
in  a  previous  section,  when  a  person  is  able  to  attach  his  own 
signature,  and  does  not,  it  gives  suspicion  of  fraud.  There  is 
no  particular  limitation  as  to  who  may  attach  such  signature  in 
our  Sti'fp.'"" 

20  Schouler  on  Wills,  310;    Woer-  space    in     the     printed     attestation 

ned   on   Admin.    63.  clause     immediately     under     dotted 

Where  a  testatrix  did  no  writing  lines  intended  for  the  signature,  and 

in  the  presence  of  the  witnesses  of  the    will     was    not    otherwise    sub- 

her   will    and  they   did    not   observe  scribed  or  acknowledged,  said  signa- 

her    signature    thereto    because    the  ture  is  signed  at  the  end  thereof  in 

paper  was  folded  in  such  a  manner  compliance  with  the  requirement  of 

that  they  could  not  see   whether   it  §5916    Rev.    Stat.     E-state   of   Xich- 

was    signed    or    not,    but   both    were  olson.  49  Bull.  379    (1904). 
perfectly  cognizant  of  the  fact  that  ^^i  Page  on  Wills,  195,  §  176. 

they  were  subscribing  and  attesting  22  See    Trembly    vs.    Trembly,    11 

a  will  and  not  any  other  document,  Bull.   59,  where  it  was  held  that  a 

and  the  testatrix's  name  is  written  witness   to   a   will    could    write   the 

at   the    end    of    the    paper    writing,  name  of  the  testator, 
but  so  placed  as  to  be  within  a  blank 


939  ATTESTATION  §  1040 

"Tlie  best  method  in  signing  a  will  in  such  a  case,"  says 
Page,-^  "is  to  write  the  name  of  testator,  followed  by  the  state- 
ment that  it  was  written  ])y  subscriber,  naming  such  subscriber, 
in  the  presence  of  testator  and  at  his  express  request.  But  such 
accuracy  of  statement  is.  not  indispensable  unless  demanded  by 
the  provisions  of  the  statute." 

It  has  been  held  that  if  the  name  of  the  testator  be  written 
by  another  in  the  will  and  a  place,  is  left  for  the  testator  to  make 
his  mark,  which  is  not  done  by  the  testator,  that  this  would  not 
invalidate  the  will,  if  it  was  shown  that  the  testator  had  adopted 
such  signature  as  his  own."*  The  fact  of  such  signing  and  the 
authority  to  sigTi,  when  done  in  the  absence  of  the  attesting  wit- 
nesses, may  be  shown  by  tlie  acknowledment  to  the  witnesses, 
or  by  other  competent  testimony,  or  may  be  presumed  from  the. 
facts  and  circumstances  of  the  case.^^ 

§  1040.     Attestation. 

The  signature  of  the  testator,  whether  made  by  himself  or 
by  another  for  him,  must  be  attested  and  subscribed  by  two  or 
more  witnesses,  etc.  Unless  statute  required,  it  would  not  be 
necessary  that  the  wrll  be  attested  or  subscribed  by  witnesses.^^ 
Some  Courts  have  been  inclined  to  treat  these  two  words,  at- 
test and  subscribe,  as  synonymous,^^  but  I  think  it  may  be  safely 

23  Page  on  Wills,  196,  §  178.  26  Page  on  Wills,  §  188,  207. 

24  Cleveland  vs  Spilman  25  Ind.  27  "  it  would  be  difficult,  no  doubt, 
95;  Page  on  Wills,  198,  §  179,  pro-  ^  ^.  .  ^  •,  ,  ^  ^v,\  ,  1 
vidpd  it  is  signed  at  the  end.  ^^  satisfactorily  define  that  element 

25  Haynes    vs.    Haynes,   33    0.    S.  in  the  attestation  of   a  will  which 
598.  is  not  also  present  in  the  mere  sub- 
Where  a  will  has  been  signed  for  scription  to  a  will.     No  physical  act 

the   testator  by   another   person,   in  is  required  in  the  one  which  is  not 

his  presence  and  by  his  express  di-  also  required  in  the  other,  and  it  is 

rection,  in  the  absence  of  the  attest-  not   clear  what  mental   act  or  fact 

ing   witnesses,   the   acknowledgment  appropriate    to    the    one    is    absent 

of   the   fact   by   the   testator   in    the  from  the  other,  and  the  definitions 

hearing  of  the  witnesses,    which   is  of  the  most  recent  lexicographers  do 

requisite,  is  not  required  to  be  made  not  make  it  quite  perspicuous.    The 

in  any  particular  form  of  words  of  Century   Dictionary    defines    an    at- 

any    specified    manner;    but,    if    by  testing  witness  to  be  a  person  who 

signs,  motions,  conduct,  or  attending  signs  his  name  to  an  instrument  to 

circumstances  the  attesting  witness-  prove    it    and    for    the    purpose    of 

es  are  given  to  understand,  by  the  identifying    the    maker    or    makers. 

_  testator,   that   he   acknowledges   the  The  Standard  Dictionary  defines  at- 

signature  thereto  as  his^  and  the  in-  testation  to  be  the  subscription  by 

st.rument  itself  as  his  will,  it  is  suf-  a  person  of  his  name  to  a  written  in- 

ficient.    Haynes  vs.  Haynes,  33  O.  S.  strument  to  signify  that  the  same 
698. 


§1040 


WILLS — EXECUTION 


940 


said  from  the  syllabus  of  the  case  of  Keyl  vs.  Feuchter,^^  that 
they  are  not  to  be  treated  as  synonymous  in  this  State.  Attesta- 
tion is  the  act  of  perceiving  the  performance  of  the  various  acts 
necessary  to  the  legal  execution  of  a  will;  and  while  our  stat- 
ute has  not  in  expressed  terms  provided  that  the  witness  must 
know  that  the  paper  he  is  signing  is  a  will,  yet  our  court  has 
followed  those  courts  which  hold  that  in  order  to  constitute  a 
valid  execution,  the  witness  must  know  that  it  is  a  will.-^  In 
other  words,  our  court  has  declared,  although  the  statute  does 
not  in  express  terms,  so  require,  that  the  testator  must  make 
a  publication  of  his  will,  and  by  attesting  the  will,  therefore, 
the  witness  attests  that  the  paper  he  signs  is  the  will  of  the 
testator,  and  not  merely  that  it  is  the  signature  of  the  testator; 
and  further  he  also  attests  that  the  testator  is  of  legal  age,  has 
a  sound  mind  and  memory  and  not  under  any  restraint.^" 

Draftsmen  in  making  a  will  too  often  neglect  this  important 
feature,  and  witnesses  often  sign  such  an  instrument  when  they 
think  they  are  only  attesting  the  signature.  The  distinction 
between  attestation  and  subscription  has  been  clearly  drawn 
by   the   Supreme   Court   of   Kentucky.^^     It   certainly  is  very 


was  executed  in  his  presence,  or  that 
it  is  correct.  Since  it  is  well  settled 
in  this  state  t  -^t  it  is  not  necessary 
to  the  validity  of  a  will  that  the 
witnesses  at  the  time  when  they  at- 
test it,  shall  know  the  nature  of  the 
instrument  that  they  are  attesting 
(Allen  vs.  Griffin,  69  Wis.  529), 
it  is  not  clear  what,  if  anything, 
attestation  is  intended  to  add  to  the 
mere  fact  of  subscription."  Skinner 
vs.  American  Bible  Society,  92  Wis. 
209;   Page  on  Wijls,  209.' 

28  56  O.  S.  424.  Recently  the 
Supreme  Court  has  held  that  it  is 
not  necessary  for  the  witness  to 
know  that  it  is  a  will,  the  second 
syllabus  being:  "Where  two  sub- 
scribing witnesses  have  seen  a  testa- 
trix subscribe  her  name  to  a  will 
by  directing  another  to  sign  her 
name  thereto  in  her  presence,  the 
testatrix  attaching  her  mark  there- 
to, and  the  signature  so  made  is 
then  attested  and  subscribed  by  said 
witnesses  in  the  testatrix's  presence, 
the  will  is  properly  executed.  In 
such  case  it  is  not  necessary  that 
the  testatrix  declare  that  the  instru- 
ment is  her  will  or  that  she  has 
signed  it."  Kevl  et  al  vs.  Feuchter 
et  al.,  56  Oliio  St.  424,  distinguished 
Underwood  vs.  Rutan,  65  Bull.  268; 
101  0.  S.  —  (June  8,  1920). 


29  Keyl  vs.  Feuchter,  56  0.  S.  424; 
Missionary  Society  vs.  Ely,  42  Bull. 
273;   Page  on  Wills.  247, ■^§  227. 

30  See  Page  on  Wills,  228,  §  208. 

31  "To  attest  the  publication  of  a 
paper  as  a  last  will,"  observed  Rob- 
ertson, C.  J.,  of  Kentucky,  in  1840, 
"and  to  subscribe  to  that  paper  the 
name  of  the  witnesses,  are  very  dif- 
ferent things,  and  are  required  for 
obviously  distinct  different  ends. 
Attestation  is  the  act  of  the  sense; 
subscription  is  the  act  of  the  hand; 
the  one  is  mental,  the  other  me- 
chanical; and  to  attest  a  will  is  to 
know  that  it  was  published  as 
such,  and  to  certify  the  facts  re- 
quired to  constitute  an  actual  and 
legal  publication;  but  to  subscribe 
a  paper  published  as  a  will,  is  only 
to  write  on  the  same  paper  the 
names  of  the  witnesses,  for  the  sole 
purpose  of  identification.  Schouler 
on  Wills,  330. 

Acknowledgment  by  the  testatrix 
of  either  the  will  itself,  or  of  her 
signature,  is  a  sufficient  acknowledg- 
ment or  publication  of  the  will, 
as  required  by  §  5916  Rev.  Stat. 
Keyl  vs.  Feuchter,  56  Ohio  St.  424, 
explained.  Estate  of  Nicholson,  49 
Bull.  379. 


941  SUBSCRIPTION  §  1041 

questionable  whether  a  person  can  attest  a  will  without  being 
conscious  of  the  fact  that  the  paper  to  which  he  attaches  his 
signature  is  a  will.^^ 

§  1041.     Subscription. 

Subscription  is  the  act  of  tlie  attesting  witness  in  signing  his 
name  upon  the  will  to  identify  the  instrument  thus  attested. 
This  subscription,  like  that  of  the  testator's,  should  be  made  in 
his  full  name,  but  such  is  not  indispensable.  The  witness  may 
sign  his  initial  or  an  assumed  name,  unless  such  name  is  as- 
sumed for  the  purpose  of  deceit  or  a  witness  may  sign  by  his 
mark,^^  but  the  statute  does  not  permit  the  signature  of  a  wit- 
ness to  be  made  by  another.  This  does  not  prevent  the  witness 
from  signing  by  mark  or  even  tracing  his  own  name,  for  this  is 
not  the  signature  of  another,  but  the  signature  of  the  witness.^* 

It  is  not  required  that  the  witnesses  sign  at  any  particular 
place  on  the  will,  but  it  must  appear  that  their  names  were 
signed  with  the  intention  of  attesting  and  subscribing  the  in- 
strument. Of  course,  the  witnesses  cannot  sign  their  names 
before  the  testator  signs  his,  unless  the  signature  of  the  testator 
and  witnesses  are  all  made  at  the  same  time  and  form  one 
transaction.^^ 

It  is  usual  in  the  mailing  of  a  will  to  add  a  full  attestation 
clause.^®  While  it  is  not  indispensable,  it  is  said,^^  "  a  full  at- 
testation clause  is  of  the  highest  value.  It  removes  all  doubt 
as  to  the  animus  attestandi,  and  on  proof  of  the  signature  is 

32  An  inferior  court  has  held  that     clause  is  as  follows:     "Signed,  and 
if  the  witness  attests  the  signature      foaled  by  the  said  testator,   as   and 

"  for  his  last  will  and  testament,   in 

of   a    party    to    an    instrument,    al-  ^-^^  presence  of  us,  who  at   his   re- 

though  he  does  not  know  that  it  is  quest   and   in   his   presence,   and    in 

a  will,  that  it  will  be  sufficient  to  the    presence    of    each    other,    have 

entitle  the  will   to   probate.     In   re  l^fjeunto    subscribed    our   names    as 

attesting  witnesses.      Ihis.  it  is  per- 

Wilhamson,  6  N.  P.  81;  8  Dec.  47.  ceived,    recites    some    details   useful 

See   Missionary   Soc.   vs.   Ely,   42  on  such  an  occasion,  but  not  under 

Bull    273  most  of  our  codes  absolutely  indis- 

33  Page    on    Wills.    238,     §     219;       P^^^'^J^^^'      ^' w^r  oL  ^loo^   ^*^' 

^  '     *"  '  37  Page  on  Wills,  244,  §  223. 

Schouler  on  Wills,  331.  Tj^j^   j^   ^^  ^iH    j  ^^^^  ^^^   ^ 

3*  Page  on  Wills,  239,  §  220.  witness   it,   is  a   sufficient   acknowl- 

35  Page  on  Wills,  241,  §  222.  edgement.      Eggleston    vs.    Gardner, 

36  A    good     form     of    attestation      ^^   ^-   ^-   ^-   ^^^' 


§  1042  WILLS EXECUTION  942 

prima  facie  evidence  that  the  acts  therein  recited  have  all  been 
properly  done.  This  is  true  even  where  the  subscribing  wit- 
nesses have  forgotten  what  took  place  at  the  time  of  executing 
the  wilh"'« 

§  1042.     In  presence  of  testator. 

The  statute  requires  that  if  a  person  signs  the  name  of  the 
testator  by  his  request,  it  shall  be  done  in  his  presence  and  also 
that  the  witnesses  sliall  sign  their  names  in  his  presence.^^* 
The  question  arises,  what  constitutes  "  in  presence  of  testator  ?  " 
This  matter  has  been  a  subject  of  extended  discussion  by 
Courts  and  text-book  writers.  In  the  first  place,  the  testator 
must  be  in  a  condition  to  know  and  understand  what  is  being 
done  before  an  act  can  be  said  to  be  done  in  his  presence.  Thus 
if  he  is  so  faint  or  asleep  or  in  a  stupor  or  dying,  so  that  he  is 
not  able  to  know  what  is  being  done,  it  cannot  be  said  to  be 
done  in  his  presence.^® 

The  design  of  the  Legislature  in  requiring  witnesses  to  sign 
in  presence  of  the  testator,  was,  as  English  authorities  state, 
tliat  the  testator  might  have  ocular  or  other  bodily  evidence  of 
the  identity  of  the  instrument  subscribed  by  them :  and  this  de- 
sign the  Courts  have  kept  steadily  in  view,  while  fixing  upon 
the  legal  sense  of  the  word  "  presence."*" 

Carrying  into  effect  this  idea  above  stated,  the  English 
Courts  have  held  with  strictness  that  a  signature  of  a  witness 
attached  to  a  will  at  a  place  where  it  was  impossible  for  the 
testator  to  see  the  act  done,  was  not  in  the  testator's  presence. 
A  difficult  question  that  Courts  have  contended  about  is,  where 
the  signature  of  the  witnesses  was  attached  in  such  a  place  that 
there  was  no  visible  obstacle  preventing  the  testator  from  seeing 
the  act  done.  If  the  act  is  done  in  the  same  room  with  the 
testator,  it  is  prima  facie  done'  in  his  presence,*^  while  if  done 

38  Page  on  Wills,  244,  §223;  4i  Ayres  vs.  Ayres,  43  N.  J.  Eq. 
Schouler  on  Wills,  347 ;  Randebaugh  565;  Stewart  vs.  Stewart  56  N.  J. 
vs.  Shelley,  6  0.  S.  307;   Carpenter      Eq.   761. 

vs.  Denoon,  29  0.   S.  379.  A  witness  signing  before  the  tes- 

38*  But  witnesses  are  not  required  tator  signs  does  not  invalidate  the 

to  sign   in   each  other's  presence.  will    where    the    signing    was    one 

39  Page    on    Wills.    229,    §  209.  continuous    transaction,      Slemmons 
4oSchoulpr  on  Wills,  340;   Jarm.  vs.  Toland,  25  O.  C.  C.   (N.S.)   485: 

Wills,  86,  87.  5  0.  App.  201. 


943 


IN    PRESENCE    OF    TESTATOE 


§1042 


in  another  room,  it  is  prima  facie  done  out  of  his  presence."* 
In  either  case  the  presumption  is  only  prima  facie,  and  may 
be  rebutted,*"  for  one  who  can  see,  the  test  of  presence,  as  far  as 
physical  proximity  is  concerned,  is  that  the  act  must  be  done 
where  he  can,  with  reasonable  effort,  see  what  is  being  done,  so 
as  to  identify  the  whole  act.  If  he  can,  with  reasonable  efforts, 
see  what  is  being  done,  it  is  not  necessary  that  he  actually  see 
it." 

As  before  stated,  the  general  rule  seems  to  be,  that  the  act 
must  he  done  within  the  range  of  the  vision  of  the  testator. 
Our  Supreme  Court  has  not  passed  upon  this  question.  There 
has  been  a  departure  from  this  rule  by  some  of  the  courts, 
which  hold  that  if  the  testator  was  in  such  a  position  that  he 
knew  w^at  was  taking  place,  and  that  he  knew,  or  acknowl- 


•ti*  Lamb  vs.  Girtman,  26  Ga.  625; 
Lamb  vs.  Girtman,  33  Ga.  289. 

42  Hopkins  vs.  Wheeler,  21  R.  I. 
533;  45  Atl.  551;  Page  on  Wills, 
230,  §  210. 

43  Page  on  Wills,  231,  §  210. 

Page  on  Wills  says,  that  an  an- 
alysis of  the  adjudicated  cases  will 
show  that  the  weight  of  authority 
established  the  following  proposi- 
tion: 

1.  If  the  person  in  whose  presence 
the  act  is  to  be  done  can  see  what 
is  taking  place  by  changing  the  di- 
rection of  his  gaze,  without  moving 
from  the  place  where  he  is  at  the 
time;  and  he  is  able  to  change  the 
direction  of  his  gaze  without  pain, 
discomfort  or  danger,  the  act  thus 
done  is  done  in  his  presence. 

2.  If  the  testator  is  so  situated 
that  he  can  not  see  what  is  taking 
place  without  leaving  his  place,  and 
he  does  not  leave  it,  the  act  is  not 
done  in  his  presence;  even  though 
he  was  able  to  move  with  comfort. 
Thus,  where  a  door-shutter  was  par- 
tially closed  so  that  testator  could 
not  see  the  witnesses  sign  without 
moving,  and  he  did  not  move,  it  was 


held  that  the  act  was  not  done  in 
his  presence.  Where  the  witnesses: 
signed  in  an  adjoining  room,  and 
testator  could  have  seen  them  sign 
by  walking  to  the  door  and  looking 
into  the  next  room,  v/hicli  he  did 
not  do,  the  will  was  not  attested  in 
his  presence. 

3.  If  the  exertion  necessary  for 
such  person  to  change  the  direction 
of  his  gaze,  is  painful  but  not  dan- 
gerous, it  seems  that  the  act  is  not 
done  in  his  presence,  unless  it  is 
done  where  he  can  see  the  transac- 
tion without  making  svich  painful 
exertion  to  change  the  direction  of 
his  gaze. 

4.  Likewise,  if  the  exertion  neces- 
sary for  him  to  change  the  direction 
of  his  gaze,  is  dangerous  to  his  life, 
an  act  done  where  he  does  not  in 
fact  see  it,  but  where  he  could  see 
it  by  changing  the  direction  of  his 
gaze,  can  not  be  said  to  be  done  in 
his  presence. 

5.  If  it  is  physically  impossible 
for  him  to  move,  so  as  to  see  the 
act  done,  such  act  can  not  be  said 
to  be  done  in  his  presence. 

Page   on   Wills,   232,    §211. 

See  Piggs  vs.  Riggs,  135  Mas9. 
238;  Eaymon  vs.  Wagner,  178 
Mass.  315. 


§1042 


WILLS 


EXECUTION 


944 


edged  that  he  knew,  the  witnesses  had  attached  their  signatures 
to  his  will,  it  would  be  sufficient.** 

Where  the  strict  rule  is  in  force,  it  is  held  that  if  the  witness 
sign  out  of  testator's  presence  and  afterwards  acknowledge 
in  his  presence  that  they  signed  their  names,  the  will  is  in- 
valid ;  and  retracing  their  signature'  with  a  dry  pen  is  nothing 
more  than  an  acknowledgment,  and  to  retrace  the  former  signa- 
ture with  a  dry  pen  is  not  a  signature  by  the  witness.*'^ 

It  seems  that  a  proper  rule  to  adopt  in  such  cases  would  be, 
dia  the  testator  know  that  tlie  witness  had  attached  his  signature 
to  the  testator's  will,  or  was  the  witnesses  signature  attached  at 
such  a  p]ace  that  it  is  reasonable  to  presume  that  the  testator  did 
know  that  the  witness  attached  his  signature  as  a  witness  to 
his  will.      Where  a  person  is  blind,  the  act  must  be  done  in  such 


44  Page  on  Wills,  234,  cites  the 
following  cases :  In  Riggs  vs.  Riggs, 
135  Mass.  238,  the  witnesses  signed 
in  the  same  room  with  the  testator 
about  nine  feet  away  from  him.  He 
lay  on  the  bed  flat  on  his  back,  and 
by  reason  of  an  injury  to  his  neck 
could  not  turn  his  head  so  as  to  see 
the  witnesses  sign  the  will,  though 
his  sight  wao  unimpaired.  He  knew 
what  was  taking  place  and  had  re- 
quested the  witnesses  to  sign.  Held, 
such  signature  was  in  his  presence, 
citing  and  refusing  to  follow  Aiken 
vs.  Weckerly,  19  Mich.  482;  Downie's 
Will,  42  Wis.  66;  Jones  vs.  Tuck,  3 
Jones  (N.  Car.)  202;  Graham  vs. 
Graham,  10  Ired.  Law,  219. 

On  similar  facts  the  same  view 
of  what  "  presence "  means  was 
taken  in  Cook  vs.  Winchester,  81 
Mich.  581;  8  L.  R.  A.  832. 

In  Smith  vs.  Holden,  58  Kan.  535, 
the  evidence  developed  that  a  wit- 
ness had  been  inattentive  and  ap- 
parently had  gone  into  an  adjoining 
room  at  the  moment  of  signature  by 
testatrix  and  returning  had  found 
the  act  done.  The  Court  held  that 
even  if  the  witness  did  not  see  the 


signature  written  and  heard  no  ac- 
knowledgment thereof,  it  was  never- 
theless signed  in  his  presence. 
Speaking  of  the  witnesses,  the  Court 
said:  "If  not  at  all  time  within 
her  (the  testatrix's)  sight  and  hear- 
ing, they  were  within  the  circle  and 
continguity  of  her  presence."  In 
Cunningham  vs.  Cunningham,  83  N. 
W.  (Minn.),  (1900)  58,  testator 
signed  the  will  in  the  presence  of 
the  witnesses.  They  then  stepped 
into  the  next  room  to  a  table  and 
subscribed  their  name  to  the  will. 
Testator  could  have  seen  them  sign 
by  arising  from  the  chair  in  w\iich 
he  was  sitting  and  stepping  forward 
about  three  feet;  but  by  preference 
he  remained  in  the  chair  from  which 
he  could  not  see  the  table.  In  less 
than  two  minutes  tlie  witnesses  re- 
turned with  the  will  and  painted 
out  their  signatures  to  testator,  who 
looked  over  and  pronounced  it  "  all 
right."  This  was  held  to  be  a  valid 
attestation  in  the  presence  of  tes- 
tator. 

45  See  Page  on  Wills,  235,   §  215, 
and  cases  there  cited. 


945  COMPETENT    WITNESSES  §  1043 

proximity  to  the  testator,  that  he  can,  by  means  of  his  remain- 
ing senses,  know  what  is  being  done/" 

§  1043.     Two  or  more  competent  witnesses. 

In  order  to  be  a  valid  will,  it  must  have  two  or  more  compe- 
tent witnesses.  If  it  has  a  less  number  than  two,  the  will  is 
not  sufficiently  attested.  By  "  competent  witnesses  "  is  meant 
that  the  persons  subscribing  their  names  are  qualified  to  testify 
under  the  rules  of  evidence  in  force  at  the  date  of  the  execution 
of  a  will.*''  In  our  State  there  is  no  disqualification  except 
as  provided  in.  the  subsequent  section.  Where  a  person  is  a 
legatee,  he  disqualifies  himself  by  being  a  witness  to  receive  un- 
der tlie  will.  As  a  general  rule  it  may  be  said  that  idiots,  lu- 
natics and  insane  persons  would  be  incompetent  to  serve  as 
subscribing  witnesses  to  a  will.  But  even  in  a  case  of  this  kind, 
where  the.  insanity  was  of  a  mild  form,  it  would  be  a  question 
whether  the  witness  would  be  incompetent.  Infants  less  than 
fourteen  years  of  age  might  be  presumed  to  be  incompetent, 
but  this  incompetency  might  be  removed  by  proof  to  the  con- 
trary.*^ An  executor  is  a  competent  witness  to  a  will.  So  may 
an  attorney  whom  the  will  provides  shall  be  employed  by  the 
executor.*^* 

§  1044.    Effect  of  a  person  being  a  devisee  or  legatee.    **If 

a  devise  or  bequest  is  made  to  a  person  who  is  a  witness  to  the 
will,  and  the  will  can  not  be  proved  except  by  his  testimony,  the 
devise  or  bequest  shall  be  void.  The  witness  shall  then  be 
competent  to  testify  to  the  execution  of  the  will  in  like  manner 
as  if  such  devise  or  bequest  had  not  been  made.  If  he  would 
have  been  entitled  to  a  share  of  the  testator's  estate,  in  case  the 
will  was  not  established,  he  shall  have  so  much  of  such  share 
as  does  not  exceed  the  bequest  or  devise  to  him.  The  devisees 
and  legatees  must  contribute  for  that  purpose  in  the  mode  here- 

46  Page     on     Wills,     235,     §214;  relation  or  otherwise.     A  person  un- 
Schoiiler  on  Wills,  24.3.  der  fourteen  years  of  age  or  of  weak 
-17  Page  on  Wills,   210,   §  191.  mind,  should   never   be   taken    as   a 
'**  Schouler  on  Wills,  352.  witness 'to  a  will,   except  where  no 
4Ha\Vyni!in  vs.  Synines,   10  Allen.  others    are    obtainable.      No    person 
(]\Iass.)     153.  should    be    a    witness    who    receives 
4si)/,j  re  Richards  Estate,  143  N.  property  under  the  will.     Pease  vs. 
W.    (Iowa   1914)    1100.  AUis,  110  Mass.  474.     Neither  wife 
The  draftsman  of  a  will  ought  to  or  child  should  be  a  witness,  yet  it 
exercise  care  in  the  selection  of  per-  was  held  that  a  child  who  was  dis- 
sons  asked  to  become  witnesses  to  a  inherited  by  the  will  might  be  com- 
will.     It   is  better  in   all  cases  not  petent.      Sparhawk    vs.    Sparhawk, 
only  to  take  what  might  be  termed  10  Allen   (Mass.)   155.     And  a  mem- 
competont  witnesses,  but  also  those  ber  of  a  corporation  to  which  prop- 
that    are   disinterested,    by   way    of  erty    is    given    for    charitable    uses, 


§  1045  WILLS EXECUTION  946 

inafter  directed  for  an   absent  or   after-born  child."      [R.   S. 
§5925.]*^ 

The  above  section  of  the  Revised  Statute  does  not  destroy 
the  competency  of  a  witness,  but  invalidates  whatea^er  portion 
the  will  may  have  giVen  to  him.  If  he  is  an  heir  it  places  him 
in  the  same  position  as  he  would  have  been  in  if  the  testator 
had  died  intestate;  and  the  statute  would  also  apply  only  to 
where  the  bequest  or  devise  was  made  to  the  witness  in  his  own 
behalf,  and  would  not  defeat  a  bequest  or  devise  which  was 
made  to  him  in  trust  or  otherwise.^" 

§  1045.     Who  saw  testator  subscribe  or  heard  him  acknowledge. 

In  order  for  the  witness  to  be  competent,  he  must  either  have 
seen  the  testator  write  his  name  to  the  instrument  or  heard  him 
acknowledge  the  same.  The  ordinary  meaning  of  this  lan- 
guage would  be,  that  by  acknowledging  the  same,  the  testator 
acknowledged  that  the  signature  to  the  will  is  his.  Our  Su- 
preme Court,  however,  seems  to  have  given  a  wider  significa- 
tion to  this  term  "  acknowledge."^^  For  it  is  said  that  "  one 
essential  to  the  admission  of  a  paper  or  writing,  purporting  to 
be  a  will,  to  probate  is,  that  it  shall  be  acknowledged  by  the 
maker  as  his  will,  and  his  signature  also  acknowledged,  in  the 
presence  of  two  subscribing  witnesses. °^ 

So  in  our  State,  whatever  the  rule  may  be  elsewhere,  it  is 
necessary  that  the  testator  acknowledge  that  the  instrument  to 
which  the  witness  is  to  attach  his  signature,  is  his  will ;  and  if 
the  testator  has  previously  attached  his  signature  he  must  also 
acknowledge  that  the  signature  to  the  paper  presented  is  his. 
This  rule  in  effect,  requires  the  testator  to  malce  what  is  known 
as  a  publication  of  his  will.     This  may  be  done  in  any  method 

held    competent.      Loring   vs.    Park,  Co.  vs.  Lushev,  11   C.  D.  52;   20  C. 

7  Gray   (Mass.)    1856.  C.  198. 

49  §  10515  G.   C.  51  Keyl  vs.  Feuchter,  56  O.  S.  424. 
This   section   is  not  applicable   to  See  Curry  vs.  Horner,  43  Bull.  273. 

verbal  wills.     Vrooman  vs.  Powers,  52  Id, 

47  0.  S.   191.  See  §  1040  G.  C.     Estate  of  Xicli- 

As  to  what  will  constitute  proper  olson,  49  Bull.   379. 

witnesses    to    a    nuncupative    will.  In    Tims   vs.    Tims,    32    0.    C.    C. 

§  1158,  et  seq.  589,    it   is   expressly   held   that   the 

50  Page     on     Wills,     213,     §194;  witness  must  know' at  the  time  he 
Schouler  on  Wills,  353,  358.  is   attaching  a  signature  that  it  is 

This     section     does     not     repeal       a  will.     See  40  Cyc.   1115. 
§  10503  G.   C,  but  simply  places   a  Other     courts     have     declined    to 

limitation    upon    it.      German    Ins.       follow    this    decision.      See    §  1040, 

recent  holding  of  Supreme  Court. 


947  SUGGESTIONS DEAWING  WILLS  §  1046 

whereby  he  communicates  to  the  witnesses  that  the  instrument 
is  his  wilL^^  In  the  same  manner  he  may  maJ<;e  an  acknowledg- 
ment to  the  signature  already  made.  The  acknowledgment  by 
the  testator  that  it  is  his  will  or  his  signature,  must  be  made 
by  himself  or  by  some  one  else  in  his  presence  and  by  his 
knowledge.^* 

§  1046.     Suggestions  for  drawing  wills. 

In  drawing  a  will,  the  following  suggestions  are  given. 

1.  In  the  first  place,  let  me  say,  that  too  much  care  cannot 
be  exercised  in  the  making  of  a  will.  It  differs  from  other 
instruments,  in  one  important  feature,  in  this,  after  the  death 
of  the  testator  it  cannot  be  changed,  it  must  stand  as  it  has 
been  written,  and  Courts  can  only  give  construction  to  the 
words  it  contains.  If  a  mistalvc  has  been  made,  no  matter 
how  clear  and  how  satisfactory  it  may  appear,  yet  the  will  must 
stand  as  it  is  written.  Furthermore,  where  not  required  by  tlie 
exigencies  of  the  case,  it  should  not  be  written  hurriedly. 

2.  In  the  second  place,  the  draftsman  should  require  the 
testator  to  give  him  full  information  as  to  all  the  property  he 
possesses,  where  it  is  situated,  and  by  what  title  he  holds  the 
same.  Also  whether  it  is  incumbered  by  mortgage'  or  other- 
wise. 

3.  In  the  third  place,  the  draftsman  should  get  from  the 
testator,  the  real  purpose  and  manner  in  which  he  wishes  to 
dispose  of  his  property. 

4.  He  should  explain  to  the  testator,  the  claims  that  the  law 
places  upon  his  property,  which  he  has  no  power  to  alter  by 
testamentary  disposition.  That  is,  the  testator  should  be  in- 
formed that  his  debts  must  be  paid,  and  that  his  wife  has  a 

53  Haynes    vs.    Ilaynes,    33    0.    S.  liis     will,     if     the     witnesses     were 

50'8 ;   Page  on  Wills,  246,   §  226.  present  when  the  testator  subscribed 

5*  Pago  on  Wills,  224,  227,  §  205;  the  same.     The  Court  says  the  stat- 

/n  ?-c  Williamson  Estate,  G  N.  P.  81;  ute    requires    either    and   not    both. 

8    Dec.    47,    in    the    Common    Pleas  This  seems  to  be  in  conflict  with  the 

Court,  reversing  the  decision  of  the  decision    of    the    case    of    Keyl    vs. 

Probate  Court,  held  that  it  was  not  Feuchter,  56  0.  S.  424. 
necessary  that  the  testator  had   to  See  Estate  of  Nicholson    (1904), 

acknowledge   the    instrument    to    be  49  Bull.  379. 


§  1046  WILLS EXECUTION  948 

dower  in  his  real  estate,  and  is  entitled  to  a  certain  portion  of 
the  personal  property  on  distribution,  and  that  certain  prop- 
erty will  be  set  aside  to  the  widow  and  children  for  their  year's 
sustenance. 

5.  He  should  inquire  of  the  testator  if  any  property  is  to  be 
sold,  whether  the  same  is  to  b©  done  by  the  executor  without 
order  of  court.  The  draftsman  should  then  place  in  writing, 
the  express  wish  of  the  testator.  He  should  be  careful  that  the 
words  used  axe  understood  by  the  testator,  and  tliat  they  are 
such  words  as  the  law  will  construe  to  carry  into  effect  the  in- 
tention of  the  testator.  If  any  technical  words  are  used,  he 
should  be  careful  that  the  testator  understands  their  meaning. 
The  draftsman  should  remember  that  he  is  making  the  testator's 
will  and  not  his  own,  and  not  to  influence  the  testator  in  any 
manner. 

6.  In  the  execution  of  the  will,  the  draftsman  should  see 
that  the  testator  signs  the  same  at  the  end  thereof,  and  that  two 
witnesses  attest  the  testator's  signature,  and  that  the  witnesses 
either  see  the  testator  write  his  name  or  hear  him  acknowledge 
that  tlie  signature  is  his.  He  must  further  see  that  the  testator, 
or  some  one  for  him,  infoiTns  the  witnesses  that  the  paper  which 
they  are  attesting  is  testator's  will. 

7.  The  draftsman  should  call  the  witnesses'  attention  to  the 
fact  whether  the  testator  is  in  his  right  mind,  and  understands 
the  nature  of  the  transaction,  as  well  as  to  the  fact,  whetlier  the 
will  is  the  free  expression  of  the  testator  —  that  is,  that  it  is 
not  made  under  restraint. 

8.  The  will  should  be  written  on  one  piece  of  paper,  or  if  on 
several,  they  should  be^  so  attached  as  to  constitute  one  entirety. 
If  any  interlineations  are  made,  it  should  be  stated  that  they 
were  made  before  the  will  was  sigTied  by  the  testator.  The  will 
should  be  so  written  that  interlineations  or  changes  can  not 
easily  be  made  without  detection. 

Mr.   Jarman  suggests  the  following  considerations: 

1.  That  in  a  devise  of  real  estate  there  be  accurate  descrip- 
tion, and  that  where  the  same  estate  is  described  by  boundaries, 


949  FOBM   OF    WILL  §  1047 

and  the  name  of  the  occupant,  care  be  taken  that  both,  precisely 
concur. 

2.  That  where  an  estate  is  devised  to  a  class  not  certain  to  be 
in  existence  at  the  death  of  the  testator,  provision  be.  made  for 
the  disposition  of  the  intermediate  profits  of  the  estate. 

3.  That  where  any  particular  funds  are  set  apart  for  the  pay- 
ment of  debts,  it  should  be  clearly  defined  whether  it  is  the  in- 
tention of  the  testator  to  thereby  exonerate  the  general  per- 
sonalty from  being  primarily  liable  to  that  charge. 

4.  Instructions  for  wills  should  be  taken  from  the  testator 
himself,  rather  than  from  third  persons,  particularly  where 
such  persons  are  interested. 

§  1047.     Form  of  will. 

I,  A.  B.,  of  Cincinnati,  Hamilton  County,  Ohio,  do  hereby  make  my  last 
will  and  testament. 

I  appoint  my  son,  C.  D.,  sole  executor  of  this  will  and  direct  that  he  shall 
not  be  required  to  give  bond  in  qualifyng  as  such  executor. 

I  give  and  bequeath  to  E.  T.,  G.  H.  and  I.  J.  the  sum  of  one  thousand 
dollars  each.  I  give  and  bequeath  to  my  servant,  K.  L.,  the  sum  of  one 
hundred  dollars.  All  the  residue  of  my  estate,  real  and  personal,  I  give,  de- 
vise and  bequeath  to  my  children,  C.  D.,  M.  N.  and  0.  P.,  to  be  divided 
among  them  in  equal  portions. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  this  first  day  of 
September,  in  the  year  of  one  thousand,  eight  hundred  and  ninety-four. 

A.  B. 

Signed,  published  and  declared  by  the  above-named  A.  B.  as  for  his  last 
will  and  testament  in  presence  of  us,  who  in  his  presence  and  in  the  presence 
of  each  other,  and  at  his  request  have  hereto  subscribed  our  names  as 
witnesses. 

Q.  R. 

S.   T.BB 

B5  The  object  of  this  full  attesta-  tation  clause  to  contradict  such  per- 

tion    has    been    referred    to    in    the  sons,   or   possibly   without   it,   wills 

previous  §   1040.     As  to  the  advan-  have     been     established     in     proof, 

tage    of     such     a    full     attestation  against  the  concurring  statements  of 

clause,    Schouler    says :      "  The    ad-  both    subscribing    witnesses    or    the 

vantage    of    an    attestation    clause  statement  of   either,   that  the  legal 

with   suitable   recitals   is   shown   in  requirements  of  execution  were  not 

many   of   our   decisions   relating   to  fully    complied    with.      And    wher- 

the  proof  of  wills.     Where,   indeed,  ever  these  witnesses  fail  to  recollect 

there  is  nothing  but  a  formal  attes-  and  give  no  positive   testimony,   or 

tation  clause  on  one   side,   and   the  cannot,  both  or  all,  be  produced  in 

testimony   decidedly   adverse   of   all  Court,  the  clearer  the  recitals  of  an 

Bubscribing  witnesses  on  the  other,  attestation  clause,   the  stronger  be- 

probate  of  a  will  has  been  refused.  t-omes  tlie  presumption  that  the  will 

But,  with  the  aid  of  a  proper  attes-  was  executed  in  all   details  as  th« 


U047 


WILLS EXECUTION 


950 


law  requires.  It  matters  little,  un- 
der such  circumstances,  that  sub- 
scribing -witnesses  can  not  testify 
affirmatively  to  the  facts  thus  re- 
cited; that  the  memory  fails;  that 
details  are  not  orally  shown  with 
clearness.  And  though  the  attesting 
witnesses  were  all  dead  cr  beyond 
the  reach  cf  process,  proof  of  their 
handwriting  would  in  general  make 
out  a  prima  facie  case  of  due  exe- 
cution, which,  if  aided  by  the  re- 
citals cf  a  full  attestation  clause, 
would  afford  a  very  strong  presump- 
tion, unless  the  contrary  appeared 
on  the  face  of  the  will.  Schoulcr  on 
\Yills,    347. 

The   testator   should   be  asked    in 
the  presence  of  witnesses  if  the  in- 


strument they  are  asked  to  witness 
is  his  will,  and  the  witness  might 
also  be  asked  to  notice  the  condi- 
tion of  the  person  making  the  will. 

See  Missionary  Society  vs.  Ely,  42 
Bull.  273,  where  the  Supreme  Court 
confirmed  without  report  a  Circuit 
Court  decision,  holding  that  the  wit- 
ness must  see  the  testator  write  his 
name  or  hear  him  acknowledge  the 
same  and  know  that  the  instrument 
he  is  witnessing  is  a  will.  See 
Haynes  vs.  Haynes,  33  0.  S.  598. 

The  draftsman  should  especially 
call  the  attention  of  the  witnesses  to 
the  matters  recited  in  this  full  at- 
testation. If  such  is  done  many 
troublesome  questions  arising  in  the 
probate  of  a  will,  will  be  avoided. 


951 


JEIBVOCATION    OF    WILLS 


§1048 


CHAPTER    LVI. 

REVOCATION  OF  WILLS. 


§  1048     General  principles.  §  1059 

§  1049    How  will  expressly  revoked 
or  cancelled. 

§  1050     Tearing,  etc. 

§  1051     Interlineation.  §  1060 

§  1052     By      some     other     will     or 
codicil. 

§  1053     Destruction    of    second    will      §  1061 
not  to  revive  first,  unless, 
etc.  §  1002 

§  1054     Revocation    of    latter    will,      §  1063 
etc. 

§  1055     By      other      instrument      in       §  1064 
writin^r. 

§  1056     Revocation  bj^  sales,  or  con- 
veyance   of    property,    etc. 

§  1057     Property  sold  by  bond,  sale       §  1064a 
or  agreement  not  a  revoca- 
tion, etc.  §  1065 

§  1058     Charge   or   incumbrance   not 
deemed  a  revocation. 


Conveyance,  etc.  Altering 
but  not  divesting  estate, 
not  a  revocation  unless, 
etc. 

When  provisions  of  instru- 
ment are  inconsistent  with 
terms  of  will. 

Marriage  will  not  revoke  the 
will. 

Revocation  by  birth  of  child. 

Having  child  and  making 
provision,  etc. 

Child  absent,  reported  dead, 
or  born  after  will  made  to 
have  portion  of  estate. 
How  portion  raised. 

How  contribution  appor- 
tioned. 

Advancements  to  be  taken 
into  account  in  such  set- 
tlement. 


§  1048.     General  principles. 


Revocability  is  one  of  tbe  characteristics  that  distinguishes 
a  will  from  other  instruments  in  writing.  A  paper  that  is  not 
revocable  in  its  character  is  not  a  will.  By  revocation  of  a  will 
is  meant  the  annulling  or  destruction  of  the  will.  A  revoked 
will  has  no  legal  effect  whatever.  It  leaves  the  testator's  prop- 
erty just  as  if  the  will  had  never  been  in  existence.  A  will 
may  be  revoked  by  acts  of  the  testator  or  by  operation  of  law, 
resulting  from  changed  conditions  in  his  circumstances  or  his 
property.  For  a  testator  to  revoke  a  will  by  his  own  acts  he 
must  possess  the  same  capacity  as  is  requisite  for  him  to  make 
a  valid  will,  and  he  must  act  under  similar  conditions  —  that 


§  1048  KEVOCATIOlSr  OF  WILLS  952 

is,  he  must  be  of  sound  mind  and  memory,  and  not  under  any 
restraint  when  the  act  of  revocation  is  carried  into  execution. 
Similarly  to  the  execution  of  a  will,  it  can  only  be  revoked  in 
the  method  provided  by  statute.  Two  things  are  essential  in 
our  State  to  constitute  a  revocation  of  a  will,  when  the  same 
is  done  by  the  act  of  the  testator,  otherwise  than  by  codicil  or 
a  paper  executed  as  provided  by  statute.  In  the  first  place,  the 
act  must  be  done  with  the  intention  of  the  testator  to  revoke  his 
will.  If  this  intention  is  wanting,  no  matter  how  complete  the 
destruction,  it  will  not  be  a  revocation,  provided  its  substance 
can  be  otherwise  proved,  and  it  could  be  probated  as  a  spoliated 
will.  The  second  essential  in  Ohio  is  that  tlie  intention  must 
be  carried  into  execution  by  a  physical  act  to  or  upon  the  will 
which  is  sought  to  be  revoked.^ 

A  written  will  can  not  be  revoked  by  the  mere  wishes  of  the 
testator,  and  therefore  is  not  affected  by  a  subsequent  nuncupa- 
tive will.^ 

If  a  will  is  valid  when  executed  and  afterwards  revoked,  as 
provided  in  sec.  10555,  G.  C.,^  it  should  nevertheless  be  admitted 
to  probate  and  recorded,  that  any  person  interested  in  having  it 
set  aside  as  valid  may  contest  its  validity  by  proceeding  under 
the  statute.      That  is,  where  the  will  is  revoked  by  operation 

1  "Revocation    is    an    act    of    the  and  admitted  to  probate.    Held,  that 

mind,  which   must   be  demonstrated  such  facts  do  not  amount  to  a  revo- 

by  some  outward  and  visible  sign  or  cation  under  the  statute,  no  sign  or 

symlx)!    of   revocation.      Tlie   statute  symbol    of    such    attempted    revoca- 

has  specified  the  form  of  these  (burn-  tion  appearing  upon  the  paper  itself, 

ing,  tearing,  cancelling  or  obliterat-  Id.  204. 

ing),   and   if  these  or   any  of  them  2  M'Cune  vs.  House,  8  0.   144. 

are  performed  in  the  slightest  man-  ^  §  1049. 

ner,   this,   joined   with   the   declared  To  effect  a  revocation  there  must 

intent,    will    be    a    good    revocation.  be  some  positive  act,  either  a  total 

Kent  vs.  Mahaffey,  10  0.'  S.  213.  or  partial  destruction  or  obliteration 

A  testator,  being  blind,  told  J.  to  concurrent    with    intent    to    revoke, 

bring  his  will,  and  J.  handed  it  to  Coghlin  vs.  Coghlin,  9  C.   C.    (N.S.) 

testator  inclosed  in  an  envelope  with  3S5 ;  29  0.  C.  0.  257. 
tliree    seals.      Testator,    having    felt  A    clause    in    a    will    can    not   be 

the   seals   handed   it  back,   with   the  revoked  by  drawing  a  line  through 

seals  unbroken,  to  J.,  directing  him  it.     In  such  cases  the  erasure  will  be 

to  throw  it  into  the  fire-  and  burn  it.  disregarded  and  such  clause  will  be 

J.  pretended  to  do  so,  but,   in  fact,  regarded    as    a    valid    part    of    the 

put   the   will    linto   his    pocket,    and  will.      Porterfield   vs.    Portertield,    4 

threw    another    paper    into    the    fire  X.  P.    (N.S.)    654;    17   Dec.   448. 
calling  upon  testator   to   listen   and  Where  a  will  is  found  among  the 

hear  it  burn,  and  the  testator,  smell-  papers  of  a  deceased  person  with  the 

ing  the  paper  burning,  believed  the  name  torn  off  or  his  name  erased,  it 

will   destroyed,    as   he   had    directed,  will  be  held  to  be  revoked.     Crosby 

and  died  in  that  belief.     After   tes-  vs.  Crosby,   10  C.  C.    (N.S.)    67;   30 

tator's  death,  the  will  was  produced  O.   C.  C  14. 


953  TEARING,  ETC.  §  1049 

of  law.  If  it  is  revoked  by  the  acts  of  the  testator,  then  it 
ought  no ^  to  he  admitted  to  probate.* 

Where  a  will  was  in  the  testator's  custody  and  can  not  be 
found  after  death,  the  presumption  is  that  he  destroyed  and 
revoked  it,  but  this  may  be  rebutted  by  recent  declarations  of 
the  testator,  as  that  he  had  made  a  will  and  was  glad  he  had 
done  so,  and  spoke  of  its  contents,  and  gave  reasons  for  making 
it,  coupled  with  proof  of  inability  to  destroy  it  thereafter." 

§  1049.     How  will  expressly  revoked  or  canceled,     ' '  A  will 

shall  be  revoked  by  the  testator  tearing,  canceling,  obliterating, 
or  destroying  it  with  the  intention  of  revoking  it,  by  the  testator 
himself,  or  by  some  person  in  his  presence,  or  by  his  direction, 
or  by  some  other  will  or  codicil,  in  writing,  executed  as  pre- 
scribed by  this  title,  or  by  some  other  writing,  signed,  attested, 
and  subscribed,  in  the  manner  provided  by  this  title  for  the 
making  of  a  will,  but  nothin<T  herein  contained  shall  prevent  the 
revocation  implied  by  law,  from  subsequent  changes  in  the  con- 
dition or  circumstances  of  the  testator."     [R.  S.  §  5953.]  ^ 

§  1050.     Tearing,  etc. 

It  will  be  observed  that  the  above  section  provides  four  ways 
in  which  a  will  may  be  revoked  —  first,  by  some  act  upon  the 
will  itself  by  tearing,  cancelling,  etc. ;  second,  by  some  other 
will  or  codicil ;  third,  by  some  other  writing  sigiied  and  sub- 
scribed in  the  same  manner  as  a  will ;  fourth,  by  operation  of 
law,  such  as  birth  of  child,  conveyance  of  property,  etc. 

As  to  the  first  of  these  metliods,  to-wit,  tearing,  cancelling, 
obliterating  or  destroying,  as  before  stated,  the  same  can  not  be 
done  except  by  some  physical  act  appearing  on  the  paper  itself, 
made  with  an  intention  to  revoke.^ 

4l\Ivers  vs.  Barrow,   3   C.   C.  91;  7  Kent  vs.  Mahaffev,  10  0.  S.  204. 

2  C.  D.  ,52.  See  note,  §  1048. 

The  probate  of  a  will  may  be  re-  Tearing  a  page  from   a  will  sev- 

voked   by   admitting   a  more   recent  eral  years  after  its  execution,  with 

will    to "  probate.       §§  10522    G.    C.  intention    to    revoke    the    part    torn 

11.31a.  out,  will  not  revoke  the  entire  will, 

sWisewell's    will.    In    re    Ooebcl,  and  if  the  part  torn  out  is  preserved, 

19;    Blymyer's    Will,    Id.    14.      See  the   e'ntire  will  should  be   probated. 

§  1050, 'Tearing.      §  113S,    Spoliated  Coghlin  vs.  Coghlin.  9  C.  C.    (KS.) 

wills.      §  1224,   Revocating   of   gifts,  .385;   29  0.  C.  C.  251. 
causa  mortis.  The  question  whether  the  tearing 

See  Cole  vs.  McClure,  88  O.  S.  7,  was  done  with  intent  to  revoke  the 

as  to  what  is  necessary  to  overcome  will,  is  one  for  the  jury  on   contest 

presumptions    as    to    revocation    by  of  the  will.     Coghlin  vs.  Coghlin,  9 

reason  of  being  incapable  to  revoke.  C.  C.    (N.S.)    .385;   79  0.  S.  71. 

6  §  10555  G.  C. 


\ 

§  1051  REVOCATION  OF  WILLS  954 

Our  statute  does  not  include  burning,  but  Courts  have  in- 
cluded it  as  coming  within  the  terms  mentioned  in  the  statute.^ 
Where  tlie  instrument  is  destroyed  by  burning,  the  marks  of 
fire  must  appear  upon  the  paper  itself.® 

Any  act  of  tearing  which  is  manifest  upon  the  paper  on 
which  the  will  is  written,  however  slight  it  may  be,  is  an  act  of 
tearing  within  the  meaning  of  the  statute,  if  done  with  the  in- 
tention of  revoking  the  will.     Tearing  includes  cutting/" 

Revocation  by  cancellation  means  a  revocation  of  a  will  by 
means  of  drawing  lines  through  the  name  or  through  the  body 
of  the  will  with  a.  manifest  intention  to  revoke  it.  A  \vi\\  can 
not  be  revoked  in  part,  by  cancellation,  either  the  cancellation  is 
inoperative  or  it  cancels  the  entire  will.^^ 

Obliterating  probably  means  the  erasing  or  marking  over  or 
mutilating  the  will  in  such  a  manner  as  to  indicate  an  intention 
to  revoke  the  same.^'" 

Destruction  is  a  tenn  which  needs  no  definition,  as  the  word 
itself  manifests  its  meaning.  ^^ 

The  destruction  of  a  duplicate  wall  with  intention  to  destroy 
the  will  operates  as  a  revocation. 

§  1051.     Interlineation. 

It  sometimes  happens  that  after  a  will  has  been  executed, 
testator,  without  knowing  the  law  in  relation  thereto  and  with- 
out any  intention  of  revoking  the  will,  makes  interlineations, 
adding  to  the  same  or  changing  the  will  in  some  of  its  terms. 
This  can  not  be  done  in  Ohio  and  such  interlineations  are  held 

8  The  liuiitation  of  this  work  will  was  scorched.     It  was  surrcptitious- 
prevent    an    extended    discussion    of  ly    removed   witnout   his   knowledge 
these   various   ways    of    revoking    a  before  it  burned.     It  was  held  that 
will.     Reference  is  made  to  Page  on  this  amounted  to  a  revocation. 
Wills,   where  the  same  is  discussed  lo  Page  on  Wills,   276,    §   248. 

in  detail.  n  Giffen  vs.  Brooks,  3  C.  C.  110; 

9  Bibb  vs.  Thomas,  2  W.  Bl.  1043.       2  C.  D.  64;  Aff.  48  O.  S.  211.     See 
In  this  celebrated  and  most  quot-       Page  on  Wills,  277,  §  249. 

ed    case    the    testator    crumpled    the  12  See  Page  on  Wills,  §§  250,  251, 

will    up    so    as    to    tear    it    slightly       page  281. 


an 


d   threw   it   on    the   fire   where    it  is  Page  on  Wills,  281,  §  251. 


955  INTERLINEATIONS OTHER  WILL         §  1052 

merely  as  surplusage.^*  Neither  can  a  testator  by  interlinea- 
tions or  obliterations  or  erasures  cancel  a  part  of  the  will.  In 
sucli  cases  the  interlineation  or  obliteration  will  be  treated  as 
of  no  effect  and  the  will  will  exist  as  it  was  originally  ex- 
ecuted. ^^ 

A  will  can  never  be  revoked  until  after  it  is  made,  and  there- 
fore, if  immaterial  words  are  erased  or  the  will  is  interlined 
before  the  will  is  executed,  it  has  no  effect  as  revoking  the 
will.'' 

An  alteration  of  a  will,  to  be  effective,  must  be  made  by  a 
codicil  or  a  re-execution  of  the  will. 

§  1052.     By  some  other  will  or  codicil. 

When  see.  10535,  G.  C.,^'  speaks  of  revoking  a  will  by  codicil, 
it  is  in  a  certain  sense  a  misnomer.  If  a  writing  had  no  dis- 
position in  it  other  than  revoking  the  will,  it  would  not  be  a 
codicil,  and  if  it  changed  the  entire  disposition  of  a  testator's 
property,  it  would  be  a  new  will.  What  is  meant  is  that  some 
portion  of  the  will  may  be  changed  or  modified  by  a  codicil,  and 
that  is  the  only  way  in  which  a  portion  of  the  will  may  be  re- 
voked or  modified  by  codicil.'® 

1*  Brundage  vs.  Benton,  17  BulL  must  have  an  existence.  It  is  a  part 
243.  and    parcel    of    a    will.      The    only 

«  ^'^^^.".  ^'^;i^^'°^^^'    o^-  ^-  ^i^'  province  of  a  codicil  known  to  law 

2  C.  D.  64;   Aff.  48  0.  S'.  211.     See  f     ,        ,  ,,    ,  ui.      j. 

Page  on  Wills,  291,  §  260.  ^^   *°   change,    add   to,    or    subtract 

i«  HoUman    vs.    Riddle,    8    O.    S.  from,  a  will.      Now,  this  accords,  too, 

384.  with  the  object  to  be  accomplished 

8  ^'^^J  jjj  ^l^g  change  as  made  by  the  legis- 

A  codicil   only  revokes  a  will  as  ,   ,  m,  -t  ,     ■,  i-  j 

far  as  absolutely  necessary.     Blume  l^^^^^"     ^he  evil  to  be  remedied,  we 

vs.  Thompson,  15  N.  P.  97;  23  Dec.  have  seen,  was  not  the  act  of  revoca- 

512.  tion,   but   the   manner    in   which    it 

18  The  word  "codicil"  has  a  defi-  ^^^s  done,  allowing  it  to  be  done  in 

nite  legal  signification.     Its  signin-  ,,       ,       ,  ^,1.1... 

cation  Is,  "a  supplement  to  a  vvill."  *^^«  ^^°"^*^'  secretly,  by  the  testator. 

The  province  of  a  codicil  is  not  to  simply   by   drawing   mk    lines   over 

revoke  a  will,  but  to  change,  add  to,  the  words.    But  a  codicil  is  a  thing 

or   subtract  from,   a   will;    so  that,  to  be  in  writing,  and  it  is  required 

ex  VI   termini,   the   legislature  have  .     ,  x  j      -j-u  j.i 

authorized  a  ^-evocation  in  part,  by  *«  ^^  executed  with  the  same  punc- 

the   use   of   the   term   "codicil."     It  tilio   as   the   will    itself.     Here  the 

is  a  misuse   of  words,   to   speak   of  legislature,  then,  secured  the  object 

revoking    a    will    by    codicil.      The  to  be  gained,   in   allowing   it  to  be 

thing  to  which   it  is  a   supplement  ,         ,  j-  -i     u  i.i    i.  j. 

"  '  ^  done  by  codicil ;   because  that  must 


§  1053  KEVOCATION  OF  WILLS  956 

A  will  may  be  revoked  by  a  subsequent  will  either  when  the 
subsequent  will  contains  a  new  disposition  of  the  property,  or 
where  the  subsequent  will  contains  an  expressed  provision  of 
revocation.  If  the  subsequent  will  in  either  of  these  methods 
revokes  the  previous  will,  such  previous  will  is  of  no  effect ;  and 
where  there  is  no  clause  of  expressed  revocation  it  becomes  a 
question  of  construction  whether  the  testator  intended  the  new 
will  to  be  a  codicil  or  in  fact  a  new  disposition  of  his  property. 
If  the  latter,  then  it  is  a  revocation ;  if  the  former,  it  is  a  revoca- 
tion pro  tantum  only.  If  the  latter  will  is  consistent  with  the 
former  will,  no  revocation  is  effected,  and  the  two  wills  will  be 
taken  together  as  one  in  effect.  But  if  it  is  inconsistent,  where 
it  does  not  appear  to  have  been  the  intention  to  make  a  new 
disposition  of  the  property,  it  will  revoke  the  earlier  will  so  far 
as  it  is  inconsistent.  Where  there  is  no  revocation  clause,  if 
the  second  will  fails  of  effect  for  any  cause  ffor  invalidity,  etc.), 
the  earlier  will  is  not  revoked.^® 

It  seems  that  the  distinction  to  be  dra^vn  here  is  whether  the 
new  will  is  in  effect,  a  new  disposition  of  the  testator's  property, 
or  a  mere  codicil.  It  is  an  elementary  principle  in  wills  that 
the  latter  part  of  a  will  controls  the  former,  and  that  a  latter 
disposition  controls  a  former.^" 

§  1053.    Destruction  of  second  will  not  to  revive  first,  unless, 

etc.  "After  making  a  will,  if  the  testator  duly  makes  and 
executes  a  second  will,  the  destruction,  canceling,  or  revocation 
of  the  second  will,  shall  not  revive  the  first  will  unless  the  terms 
of  such  revocation  show  that  it  was  his  intention  to  revive  and 
give  effect  to  his  first  will ;  or,  after  such  destruction,  canceling, 
or  revocation,  he  duly  republishes  his  first  will."  [R.  S. 
§5960.]  21 

§  1054.    Revocation  of  later  will,  etc. 

It  was  a  matter  of  considerable  dissension  among  Courts  as 
to  what  effect  the  destruction  of  a  later  will  would  have  upon  a 

he  in  writing,  and  executed  with  the  ="  Page  on  Wills.  299,  §  269.     See 

same  formalities  as  a  will.     Giffen  §  1174,  Definition  of  codicil. 

vs.  Brooks,  3  C.  C.  118;  2  C.  D.  64.  21  §  10562  G.  C. 
10  Page  on  Wills,  298. 


957  BY  LATER  WILL,  §  1055 

former  will.  Some  Courts  held  that  if  the  former  will  was 
left  intact  and  the  later  will  was  destroyed,  that  thereby  the 
testator  showed  his  intention  of  establishing  the  former  will  as 
his  last  will.  It  is  the  object  and  purpose  of  the  above  section 
to  settle  this  question  in  Ohio,  and  therefore:  here  the  destruc- 
tion of  such  second  will  does  not  revive  the  first,  unless  it  ap- 
pear by  the  terms  of  such  revocation  that  it  was  the  intention 
of  the  testator  to  revive  and  give  effect  to  the  first  will,  or  by 
republishing  his  first  will. 

The  question  might  arise  what  is  meant  by  the  statute  when 
it  says  "  unless  it  appear  by  the  terms  of  such  revocation  that 
it  was  his  intention  to  revive  and  give  effect  tO'  his  first  will." 
How  is  this  intention  to  b©  manifested  ?  It  seems,  taking  into 
consideration  the  entire  policy  of  the  statute  of  the  wills,  that 
this  intention  can  only  be  made  effective  if  it  is  done  in  writing, 
and  in  the  same  manner  that  a  new  will  might  be  executed. 
In  other  words,  that  when  a  will  is  once  revoked  it  cannot  be 
revived  except  it  be  in  effect  re-signed,  rerwitnessed  and  re- 
published.^^ 

§  1055.    By  other  instrument  in  writing. 

In  order  for  a  will,  or  a  codicil  to  a  will,  to  be  revoked  by 
any  other  instrument  of  writing,  such  other  instrument  must 
be  executed  with  all  the  formalities  of  a  will,  and  this  provi- 
sion of  the  statute  would  seem  to  imply  that  a  will  can  be  re- 
voked in  writing  in  no  other  manner  than  where  such  writing 
is  attested  and  witnessed  according  to  law;  and  hence,  if  the 
testator  should  write  across  an  envelope  in  which  was  contained 
his  last  will,  merely  the  words  "  I  revoke  this  will,"  and  then 
attach  his  signature,  without  having  it  witnessed  according 
to  the  law  of  wills,  that  it  would  not  be  a  revocation.  It  is  not 
necessary  that  the  second  instrument  be  probated  in  order  that 
it  may  be  used  in  the  contest  of  the  first  will  to  show  a  revoea- 

22  Stickney's  Will,  161   K".  Y.  42;  that  there  was  a  later  will  in  exist- 

Page  on  Wills,   .306.   §274.  ^ce  at  tlie  time  of  testator's  death. 

Kepublication    with    lis    means    a  In   re   Estate   of   INIurray,    63    Bull. 

re-exceution    with    all    the    formali-  84;   20  N.  P.  305. 

ties  of  a  new  will.  Sees.     10543     and     10544,    G.    C., 

See    §  1131a   an   to    revocation    of  must    be    read    in    connection    with 

probate  of  will.  §  10562.      See   In   re   Thompson,    11 

A  will   can   no*^,  be  revoked  by   a,  O.  L.  R.;   58  Bull.  316. 
later   will   unless    it    can   be   shown 


§  1056  EEVOCATION  OF  WILLS  958 

tion  thereof.^^  Of  course,  in  such  an  instrument  it  must  ap- 
pear on  its  face  that  it  is  the  intention  of  the  testator  to  revoke 
his  will,  and  it  must  show  that  by  the  act  of  such  instrument 
testator  intends  to  revoke  his  will.  If  it  merely  shows  that  he 
intends  to  revoke  his  will  at  some  future  time^  it  will  not  be  a 
revocation.^* 

§  1056.     Revocation  by  sales,   or  conv.eyance   of  property,   etc. 

At  common  law,  if  the  testator  disposes  of  property  that  he 
had  devised  in  the  will,  this  was  held  to  revoke  the  will,  on  the 
theory  that  the  testator  had  changed  his  intention.'^  But  such 
common  law  idea  has  been  entirely  abrogated,  especially  in 
our  State,  by  the  provisions  of  the  four  following  sections  of  the 
General  Code,-®  So  it  may  be  said  that,  as  far  as  the  will 
itself  is  concerned,  no  subsequent  act  of  the  testator  in  reference 
to  his  then  property,  or  subsequently  acquired  property,  will 
have  any  effect  as  a  revocation  of  the  will.  It  may  destroy  cer- 
tain parts  of  the  will,  or  even  make  ineffectual  the  entire  will, 
but  the  will  itself  exists  as  the  testator  made  it.^^ 


§  1057.  Property  sold  by  bond,  sale  or  agreement,  not  a 
revocation,  etc.  "A  bond,  agreement,  or  covenant,  for  a  valu- 
able consideration  made  by  a  testator,  to  convey  property  pre- 
viously devised  or  bequeathed  in  a  will,  shall  not  revoke  such 
devise  or  bequest,  either  at  law  or  in  equity.  The  property  shall 
pass  by  such  devise  or  bequest,  subject  to  the  remedies  en  such 
bond,  agreement,  or  covenant,  for  a  specific  performance  or 
otherwise,  against  the  devisees  or  legatees,  which  might  be  had 
by  law  against  the  heirs  of  the  testator,  or  his  next  of  kin,  if  it 
had  descended  to  them."     [R.  S.  §  5954.] ^^ 

23  Page  on  Wills,  295,  §  265.  voke  the  will  unless  it  makes  an  en- 

24  Schouler  on  Wills,  421,  422.  tire  disposition  of  the  estate,  but  to 

25  See  Woerner  on  Admin.   102.  any   portion    undisposed    of   hy    the 

26  §§10556,  10557,  10558,  10559  deed  the  will  attaches  pro  ian  and 
G.  C,   §  1057  et  seq.  carries  it  to  the  devisee.     Brush  vs, 

27  A    deed    of    conveyance,    made  Brush,  110.  287. 
subsequent  t-o  a  devise,  does  not  re-  28  §  10556  G.  C. 


959  MARRIAGE    WILL    NOT  §  1058 

§  1058.     Char£''e  or  incumbrance  not  deemed  a  revocation. 

"A  charge  or  incumbrance  upon  real  or  personal  estate  for  the 
purpose  of  securing  the  payment  of  money,  or  the  performance 
of  a  covenant,  shall  not  revoke  a  will  relating  to  the  same  estate, 
previously  executed ;  but  the  devises  and  legacies  therein  con- 
tained shall  pass  and  take  effect,  subject  to  such  charge  or  in- 
cumbrance."    [R.  S.  §5955.]=^" 

§  1059.  Conveyance,  etc.,  altering  but  not  divesting  estate, 
not  a  revocation  unless,  etc.  ' '  A  conveyance,  settlement,  deed, 
or  other  act  of  the  testator,  by  which  his  estate  or  interest  in 
property  previously  devised  or  bequeathed  by  him,  is  altered, 
but  not  wholly  divested,  shall  not  be  deemed  a  revocation  of  the 
devise  or  bequest  of  such  property,  but  such  devise  or  bequest 
shall  pass  to  the  devisee  or  legatee,  the  actual  estate  or  interest 
of  the  testator,  which  would  otherwise  descend  to  his  heirs,  or 
pass  to  his  next  of  kin ;  unless,  in  the  instrument  by  which  such 
alteration  is  made,  the  intention  is  declared,  that  it  shall  operate 
as  a  revocation  of  such  previous  devise  or  bequest."  [R.  S. 
§5956.]='<' 

§  1060.  When  provisions  of  instrument  are  inconsistent 
with  terms  of  will.  Effect.  "But  if  the  provisions  of  the  in- 
strument by  which  such  alteration  is  made,  are  wholly  incon- 
sistent with  the  terms  and  nature  of  the  previous  devise  or  be- 
quest, such  instrument  will  operate  as  a  revocation  thereof, 
unless  the  provisions  depend  on  a  condition  or  contingency,  and 
such  condition  be  not  performed,  or  contingency  does  not 
happen."      [R.  S.  §  SOST.J^i 


§  1061.     Marriage  will  not  revoke  the  will. 

At  common  law  the  will  of  a  man  was  not  revoked  by  his  sub- 
sequent marriage  alone,  without  the  birth  of  a  child.  In  this 
matter  a  subsequent  statute  now  places  a  woman  in  the  same 


29  §  105.57  G.  C.  voke  tlie  will  as  to  such   provisions 

30  §  10558  G.  C,  §  1056.  in  the  will  and  not  the  entire  will. 
•'*i  §  10559  G.  C.  The  fact  still  remains  that  a  will 
The  careful    reading  of  the  above  .in  Ohio  can  only  be  revoked  in  some 

section  will  convey  the  meaning  that  of  the  methods  provided  by  §  10555 

such  inconsistent  provisions  will  re-  G.  C.,  §  1049. 


§  1062  REVOCATION  OF  WILLS  960 

position.^"  The  reason  generally  given  for  the  rule  was  that, 
as  the  wife  could  not  inherit  under  the  laws  of  descent,  she 
would  not  be  benefited  by  the  revocation  of  the  will,  and  there 
was  no  reason  for  making  the  marriage  act  as  a  revocation  of 
the  will,  for  the  benefit  of  the  collateral  heirs  of  the  husband. 
At  common  law  the  will  of  a  married  woman  was  revoked 
by  marriage,  for  the  reason  that  by  such  law  she  could  not  after 
marriage  make  a  valid  will,  and  therefore  being  incapacitated 
to  make  a  will  after  marriage,  the  marriage  itself  was  held  to 
revoke  the  will  already  made.  As  the  common  law  held  that 
a  husband's  will  was  not  revoked  by  marriage,  for  the  reason 
that  the  wife  did  not  inherit  his  property,  a  question  has  arisen 
whether  under  the  statute  which  now  makes  the  wife  the  heir  of 
the  husband,  such  fact  might  not  change  the  law.  But  it  has  been 
held  in  our  State,  upon  what  seems  to  be  the  soundest  of  reason- 
ing, that  it  does  not  have  such  effect,^^  and  therefore  it  may  be 
said  that  in  Ohio  a  subsequent  marriage  of  either  the  husband 
or  wife,  unless  a  child  he  bom,  does  not  revoke  a  prior  ex- 
ecuted will.  Of  course,  in  such  a  case  the  marital  rights 
would  attach,  and  in  that  manner  some  of  the  provisions  of 
the  will  before  marriage  might  be  revoked  in  part  or  as  a 
whole. 

§  1062.  Revocation  by  birth  of  child.  "If  the  testator  had 
no  children  at  the  time  of  executing  his  will,  but  afterward  has 
a  child  living,  or  born  alive  after  his  death,  such  will  shall  be 
revoked,  unless  provision  has  been  made  for  such  child  by 
some  settlement,  or  he  is  provided  for  in  the  will,  or  in  such 
way  mentioned  therein  as  to  show  an  intention  not  to  make 
such  provision.  No  other  evidence  to  rebut  the  presumption  of 
revocation  shall  be  received."      [R.  S.  §5959.]^* 

§  1063.     Having  child  and  making  provision,  etc. 

Several  things  in  the  above  section  of  the  statute  are  essential 
in  order  to  make  a  revocation  of  the  will.     In  the  first  place,  the 

32  "A  will  executed  by  an  unmar-  ss  Miindy  vs.  Mundy,  15  C.  C.  155; 

ried    woman,    shall    not    be    deemed  8   C.  D.  44. 

revoked     by     her     subsequent     mar-  34  §  10561    G.    C.      See    §§10563-4 

riage."     §  10560  G.  €.  G.  C,   §  1064. 

See  47  Bull.  844. 


961  BY    BIRTH    OF    CHILD  §  1063 

testator  must  have  no  child  or  children  at  the  time  the  will  is 
made.  This  means  that  the  testator  must  have  no  child  alive 
and  does  not  include  a  child  in  ventre  sa  mere.  In  the  second 
place,  he  must  afterward  have  a  child  living  or  one  born  alive 
after  his  death ;  and  third,  he  must  have  failed  to  make  provi- 
sion for  such  child  in  his  will.  As  to  the  first  of  the  above,  if 
he  had  children,  then  the  provisions  of  sec.  5961  R.  S.,^^ 
would  apply.  Afterwards  having  a  child,  living  or  born  alive, 
includes  a  child  that  was  in  being  at  the  time  of  his  death. 
Thus,  where  E.  made  his  will  June  12,  1830,  devising  all  his 
property  to  his  wife,  and  died  without  issue  on  the  7tli  of  July 
following,  seized  of  lands.  The  will  was  admitted  to  probate 
October  7,  1830 ;  and  on  the  4th  of  December  following  the 
widow  of  E.  was  delivered  of  a  son,  the  child  of  E.  It  was 
held  that  at  the  time  of  executing  such  will  the  testator  had  no 
child  in  esse,  within  the  meaning  of  the  statute,  and  that  the 
probate  of  the  will  is  not  impugned  by  the  subsequent  birth  of 
the  child ;  but  that  event,  by  virtue  of  the  statute,  avoids  the 
wilh^*^ 

It  is  generally  held  that  the  adoption  of  a  child  subsequently 
to  the  making  of  a  will  will  not  revoke  it.^^  Likewise,  where 
an  illegitimate  child  is  afterwards  legitimatized  by  marriage  of 
the  parents,  it  is  held  not  to  revoke  the  will.  Where  a  person 
having  no  child,  makes  her  will  and  afte^rwards  has  a  living 
child,  and  such  child  dies  before  she  dies,  nevertheless  the  will 
is  revoked.^^ 

As  to  what  will  constitute  a  provision  for  such  child,  the 
Courts  have  held  that  it  must  be  a  present  vested  interest  to 
take  immediate  effect  in  possession  upon  the  death  of  the  testa- 
tor. A  vested  interest  in  futuro,  such  as  a  remainder  or  re- 
version, is  not  sufficient.  "  A  reversionary  interest,  whether 
vested  or  contingent,  is  not  a  provision  for  an  after-bom  child 
within  the  words  or  spirit  of  the  statute."  ^® 

88  §  1064.  vision"  for  an  afterborn  child  with- 

38  Evans    vs.    Anderson,    15    0.    S.  in  the  meaning  of  §  5961  Rev.  Stat., 

324.  notwithstanding   the   interest   in   re- 

37  Page  on  Wills,  3.31,  §290.  niainder  may   subsequently  inure  to 

38  Ash  vs.  Ash,  9  0.   S.  383.  tlie   benefit  of   such  cliild.     Weiland 
A  devise  of  real  estate  by  a  testa-  v.    Muntz^   2    C.    C.    (N.S.)     71;    25 

tor   to   his  widow   for   life,   with   re-       C.  C.  185. 

mainder    to    his    children    generally  -9  Page  on  Wills,  336,  §  293. 

without  naming  them,  is  not  a  ''pro-  Where  a  testator  devised  his  real 


§  1064  REVOCATION  OF   WILLS  962 

Where  a  testator  devised  property  to  his  wife  and  each  of  his 
children  then  living,  and  provided  that  the  residue  should  be 
divided  among  his  "  surviving  children,"  it  was  held  that  a 
posthumous  child  was  not  provided  for  within  tlie  meaning  of 
the  statute,  nor  did  the  fact  that  the  residuary  clause  was  by 
accident  so  worded  as  to  include  such  child  show  an  intent  to 
exclude  it  further/**  So  a  devise  of  testator's  real  estate  to  his 
wife  to  hold  till  his  youngest  child,  ^'  if  any  be  bom  to  me," 
should  come  of  age,  and  if  no  child  of  testator  is  alive  at  his 
death  to  the  wife  absolutely,  is  an  implied  gift  to  the  children 
when  the  youngest  comes  of  age,  and  is  a  "  provision  "  within 
the  meaning  of  the  statute/*** 

A  gift  to  the  surviving  consort  and  his  or  her  heirs,  as  the 
case  may  be,  is  usually  held  neither  to  be  a  provision  for  after- 
born  children  nor  to  show  an  intent  to  exclude  them.*^ 

A  gift  for  the  maintenance  and  support  of  after-bom  children 
during  their  minority  is  a  provision  for  them/" 

Where  a  will  contains  a  clause  "  disinheriting  an  imborn 
child,"  such  clause  does  not  constitute  a  provision  for  the  after- 
born  child  within  the  meaning  of  sec.  10564,  G.  C,  (§  1064), 
and  the  intention  of  the  testator  being  contrary  to  the  law,  does 
not  control/^ 

§  1064.  Child  absent,  reported  dead,  or  born  after  w^ill  made 
to  have  portion  of  estate.  How  portion  raised.  "When,  at  the 
time  of  executing  his  will,  a  testator  has  a  child  absent  and 
reported  to  be  dead,  or  having  a  child  at  the  time  of  executing 
the  will,  afterward  has  a  child  who  is  not  provided  for  therein, 
the  absent  child,  or  child  born  after  executing  the  will,  shall 
take  the  same  share  of  the  estate,  real  and  personal,  that  he 
would  have  been  entitled  to  if  the  testator  had  died  intestate." 
[R.  S.  §5961.]** 

estate  to  his  wife  for  life,  "and  after  *-  Forbes  vs.  Darling,  di  Mich, 
her  death  to  the  heirs  of  her  body  G21.  See  Woerner  on  Admin.  106. 
begotten,"  a  child  born  to  him  ^3  German  Fire  Ins.  Co.  vs.  Lush- 
after  the  execution  of  the  will  is  ey.,  20  C.  C.  198:  11  C.  D.  52;  7  X, 
not  "provided  for  in  the  will,"  in  P.  62;  10  Dec.  24. 
the  sense  of  §  10561  G.  'C,  §  1062.  See  article  in  37  Bull.  265,  306, 
Rhodes  vs.  Weldy,  46  0.  S.  234.  327,    344,    364,   as   to    revocation    of 

40  Bowen  vs.  Hoxie,  137  Mass.  527.  wills  by  marriage  and  birth  of  child. 
40*  Donge's  Estate,   103  Wis.  497.  **  §  10563  G.  C. 

41  Page  on  Wills,  338,  §  293. 


963  ADVANCEMENTS  §  1064a 

§  1064a.  How  contribution  apportioned.  ' '  Toward  raising 
the  portion  of  such  child,  the  devisees  and  legatees  shall  equally 
contribute,  in  proportion  to  the  value  of  what  they  respectively 
receive  under  the  will,  unless,  in  consequence  of  a  specific  devise 
or  bequest,  or  of  some  other  provisions  in  the  will,  a  different 
apportionment  among  the  devisees  and  legatees  be  found  neces- 
sary, in  order  to  give  effect  to  the  intention  of  the  testator,  as 
to  that  part  of  the  estate  which  passes  by  the  will.  If  such  child, 
supposed  to  be  dead  at  the  time  of  executing  the  will,  has  a 
child  or  children,  provision  for  whom  is  made  by  the  testator, 
the  other  legatees  and  devisees  shall  not  be  required  to  con- 
tribute. The  child,  supposed  to  have  been  dead,  shall  take  the 
provision  made  for  his  child  or  children,  or  such  part  of  it  as 
the  circumstances  of  the  case,  in  the  opinion  of  a  proper  court 
may  be  just  and  equitable."     [R.  S.  §  5961.]*** 

§  1065.  Advancements  to  be  taken  into  account  in  such  set- 
tlement. "In  settling  the  extent  of  the  claim  of  a  child,  as 
provided  for  in  the  next  two  preceding  sections,  any  portion  of 
the  estate  of  the  testator  received  by  a  party  interested,  by  way 
of  advancement,  shall  be  deemed  a  portion  of  the  estate,  and 
charged  to  the  party  who  has  received  it."     [R.  S.  §  5962. j*^ 

***  10564  G.  C.  a    recent    case,    Insurance    Co.    vs. 

The    above   section    is   very   much  Lushy,   66   0.   S.   233,  where  a  will 

similar  to  §  5959  R.  S.,   §  1062,  ex-  provided,  "Should  any  child  or  chil- 

cept   that    where    a    testator   has   a  dren,   we   having  now   only  one,    G. 

child  or  children  and  makes  a  will,  G.,  be  born  to  me  hereafter,  it  shall 

and    afterwards   has    another    child,  in  no  wise  alter  or  revoke  this  will 

the   will    is    not    revoked,    but    such  and  testament,"  it  was  held  that  an 

after-born  child  is  entitled  to  receive  after-born      child,      notwithstanding 

out  of  the  estate  such  portion  of  the  this  explicit  language,  would  inherit 

same  as  it  would  have  received  had  from    the    testatrix    as    her    heir-at- 

its    father    died    intestate,    and    the  law. 

section  provides  how  the  other  chil-  45  §  10565  G.  C.     See  §  928  et  seq., 

dren  shall  contribute  to  make  up  the  as  to  advancements, 

portion  of  such  after-born  child.    In  See   Farmer   vs.    Cope,   55   O.   S. 

695. 


§  1066  CUSTODY  or  will  964 


CHAPTER  LYII. 

CUSTODY. 

§  1066  Generally  .     ,       .  ,    „  §  1075  Attachment  or  warrant. 

§1067  May  be   deposited  with  Pro-  „  ,„_^  -.   4-        u   4-  ..•  u 

bate  Judge.     Notice  of  pro-  §  ^^'^  I^^to  what  counties  such  pro- 

bate.  ^^ss  ro^y  issue. 

§  1067a  Xotice    of   probate.  §  1077  Liability    of    officer    serving 
§  1068  How  such  will  enclosed,  etc.  same. 

§  1069  To  whom  it  may  be  delivered.  §  1078  Hearing,   etc. 

§  1070  When  to  be  opened.  §  1079  Punishment  and   liability  of 
§  1071  Comments.  persons   refusing  to   produce 

§  1072  Who    may    enforce   the   pro-  will. 

duction  of  a  will  and  how.  §  1080  Form  of  entry  and  warrant, 
§  1073  Application  for  citation,  etc.  etc. 

I  1074  Form  of  entry  and  order  of 

citation. 

§  1066.     Generally. 

There  is  no  mandatory  provision  in  our  statute  as  to  who 
shall  have  custody  of  a  will  from  the  time  it  is  executed  until  it 
is  probated.  Of  course,  after  it  is  probated,  it  is  then  exclu- 
sively in  possession  and  under  control  of  the  Probate  Court. 
In  some  of  the  continental  countries  of  Europe,  perhaps  follow- 
ing the  civil  law,  it  is  required  that  when  a  person  makes  a 
will,  he  appear  before  some  officer  who  has  charge  of  such  mat- 
ters, and  make  his  will,  which  is  recorded  in  a  book  and  kept 
there  until  the  decease  of  the  testator.  Such  a  law  has  never 
been  in  force  in  countries  which  have  adopted  the  common  law. 
While  our  statute  permits  the  testator  to  deposit  his  will  in 
the  Probate  Court,  it  can  safely  be  said  that  more  wills  are 
kept  under  the  control  of  the  testator  or  his  legal  advisor  than 
are  placed  in  the  possession  of  the  Probate  Court.  To  pre- 
vent unauthorized  destruction  or  tampering,  it  will  always  be 
a  safer  course  to  file  the  will  with  the  Probate  Court.     Our 


965  DEPOSITED    WITH    PROBATE    JUDGE  §  1067 

statute  recognizes  these  two  methods  of  keeping  the  will,  by- 
provisions  for  the  filing  in  the  Probate  Court,  and  for  com- 
pelling the  production  of  a  will  where  the  same  is  held  by  an- 
other. If  a  person  wrongfully  gets  possession  of  a  will,  it 
might  be  replevied  during  the  lifetime  of  the  testator.^ 

§  1067.  May  be  deposited  with  Probate  Judge.  Notice  of 
probate.  "A  will  may  be  deposited  by  the  person  making  it, 
or  by  some  person  for  him,  in  the  office  of  the  judge  of  the 
probate  court  in  the  county  in  which  such  testator  lives,  to  be 
safely  kept  until  delivered  or  disposed  of  as  hereinafter  pro- 
vided. The  probate  judge,  on  being  paid  the  fee  of  one  dollar 
therefor,  shall  receive  and  keep  such  will,  and  give  a  certificate 
of  deposit  for  it."     [R.  S.  §  5917.] ^ 

§  1067a.  Notice  of  probate.  "No  will  shall  be  admitted 
to  probate  without  notice  to  the  widow  or  husband  and  next  of 
kin  of  the  testator,  if  any,  resident  in  the  state,  in  such  manner 
and  for  such  time  as  the  probate  court  directs  or  approves." 

[R.  S.  §5917.]-* 

In  such  eases  provided  for  by  the  above  section,  the  following 
certificate  of  deposit  should  be  issued  to  the  depositor: 

FORM  OF  CERTIFICATE  OF  DEPOSIT. 

State  of   Ohio,   Clark   County,   sa. 
Probate  Court. 

This  is  to  certify  that    has   this   day   deposited   in   the 

Probate  Court  in  and  for  the  County  of  Clark,  a  paper  in  writing  purport- 
ing to  be  the  last  will  and  testament  of ,  now  a  resident  of 

said  county,  the  same  to  be  delivered  to    on  the  decease 

of  said  testator  and  subject  to  withdrawals  during  the  lifetime  of  testator 
as  provided  by  law. 

§  1068.  How  such  will  enclosed,  etc.  ''Every  will  intended 
to  be  deposited  as  aforesaid,  must  be  inclosed  in  a  sealed  wrapper, 
which  shall  have  indorsed  thereon  the  name  of  the  testator.  The 
probate  judge  must  indorse  thereon  the  day  when,  and  the 
person  by  whom  it  was  delivered.  The  wrapper  may  also  have 
indorsed  the  name  of  a  person  to  w^hom  it  is  to  be  delivered 
after  the  death  of  the  testator.     It  shall  not  be  opened  or  read 

1  In    some    Probate    Courts    wills  2  §  10506  G.  C. 

"on  deposit"  are  kept  in  the  usual  2*  §  10507  G.  C. 

file  boxes.     This  is  a  loose  practice.  3  See   §  1069,  To  whom   delivered. 

They  should  be  kept  vmder  lock  and 
key,  inaccessible  to  the  public. 


§  1069  CUSTODY  OF   WILL  966 

until  delivered  to  a  person  entitled  to  receive  it,  or  otherwise 
disposed  of-  as  hereinafter  provided."     [R.  S.  §  5918.]* 

§1069.  To  whom  it  may  be  delivered.  "During  the  life- 
time of  the  testator,  such  will  shall  be  delivered  only  to  himself 
or  to  some  person  authorized  by  him,  by  an  order  in  writing 
duly  proved  by  the  oath  of  a  subscribing  \dtness.  After  his 
death  it  shall  be  delivered  to  the  person  named  in  the  indorse- 
ment on  the  wrapper  of  the  will,  if  there  be  a  person  so  named, 
who  demands  it."     [R.  S.  §  5919.] ^ 

It  would  be  well  if  the  certificate  of  deposit  provided  for 
in  sec.  1067  should  have  printed  on  the  back  of  it  a  blank  order 
for  a  delivery  of  such  will,  wiiich  order  might  be  in  the  follow- 
ing form : 

To  the  Probate  Judge  of  Clark  County: 

I    hereby    authorize   and    direct   you    to    deliver    to a 

paper  filed  in  your  office  purporting  to  be  the  last  will  and  testament  of  the 
undersigned. 

Witnessed  by  (Sign.) 


State  of  Ohio,  Clark  County,  ss. 

A.  B.,  one  of  the  subscribing  witnesses  to  the  above  order,  being  first 
duly  sworn,  says  that  he  was  present  and  saw  the  testator  subscribe  the 
above  order  and  heard  him  direct  that  his  will  be  delivered  to  tVie  person 
therein   mentioned. 

(Sign.) 

Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190.  .  .6 

§  1070.  When  to  be  opened.  "If  no  person  demands  the 
will  in  pursuance  of  such  appointment,  it  shall  be  publicly 
opened  in  the  probate  court  within  two  months  after  notice  of 
the  testators'  death,  and  be  retained  in  the  office  of  the  probate 
judge  until  offered  for  probate.  Or,  if  the  jurisdiction  belongs 
to  any  other  court,  it  shall  be  delivered  to  the  executor  or  other 
person  entitled  to  its  custody,  to  be  presented  for  probate  in 
such  other  court.     If  the  jurisdiction  of  such  will  belongs  to 

*  §  10508  G.   C.  box  with  such  wills^  and  had   in  it 

When  the  writer  filled   the   office  blank.s  for  marking  the  date  of  filing 

of  Probate  Judge,  he  found  it  very  and  a  date  for  marking  when  it  was 

convenient  to  keep  an  index  of  the  taken  out  and  by  whom. 

wills  filed  by  testators.     This  index  s  §  10509  G.  C. 

was  made  about  the  size  of  an  or-  »  See   §     1067. 

dinary  file  envelope,  and  kept  in  a 


967  WHEN  TO  BE  OPENED  §  1071 

the  probate  judge  opening  it  he  shall  immediately  give  notice 
of  its  existence  to  the  executor  if  any  is  named  in  the  will,  but 
if  none  is  named,  then  to  other  persons  immediately  interested." 
[R.  S.  §5920.]^ 

§  1071.     Comments. 

By  the  above  provision  of  the  General  Code,  the  Probate 
Judge  is  authorized,  if  no  one  appears  to  have  the  will  pro- 
bated, to  open  it  himself  within  two  months  after  the  death  of 
the  testator.  It  is  presumed  that  the  Probate  Court  has 
knowledge  of  testator's  death,  and  also  that  the  Court  has  re- 
membered that  such  a  will  is  on  file.  Practice,  however,  has 
demonstrated  that  many  cases  of  death  occur  when  the  Probate 
Judge  has  no  knowledge  either  of  the  death  of  the  testator  or 
of  the  fact  that  he  has  a  will  on  file.  Usually,  however,  parties 
interested  search  for  such  matters  and  bring  the  same  to  the 
knowledge  of  the  Probate  Court.  If  the  person  has  died  in 
some  other  jurisdiction,  it  is  the  duty  of  the  Probate  Court  to 
deliver  the  same  to  the  person  entitled  to  its  custody.  If  no 
one  is  mentioned  who  is  entitled  to  its  custody,  he  should  send 
it  by  express  or  registered  letter  to  the  Probate  Court  that  has 
jurisdiction  of  the  matter.  When  the  will  is  opened  in  the  ab- 
sence of  the  parties  interested,  the  judge  should  in  some  man- 
ner notify  the  executor  or  executrix  therein  named,  or  if  there 
be  no  one  named,  then  some  interested  party. 


§  1072.    Who  may  enforce  the  production  of  a  will  and  how. 

"If  real  or  personal  estate  be  devised,  or  bequeathed,  by  a  last 
will,  the  executor,  or  any  person  interested  therein,  may  cause 
it  to  be  brought  before  the  probate  court  of  the  county  in  which 
such  estate  is  situated.  By  citation,  attachment,  or  warrant,  or, 
if  circumstances  require  it  by  warrant  or  attachment  in  the 
first  instance,  such  court  may  compel  the  person  having  the 
custody  or  control  of  such  will,  to  produce  it  before  the  court 
for  the  purpose  of  being  proved."     [R.  S.  §  5921.]^ 

7  §  10510  G.  C.  8§  10611  G.  C. 


§  1073  CUSTODY  OF  WHIj  968 

§  1073.    Application  for  citation,  etc. 

The  above  section  gives  ample  provision  to  enforce  tlie  pro- 
duction of  a  will.  The  essentials  in  such  a  case  seems  to  be 
that  the  application  for  citation  must  be  filed  by  the  executor 
or  by  a  party  interested,  and  can  only  be  filed  in  the  Probate 
Court  in  which  there  is  an  estate.**  It  would  be  proper  and 
better  practice  to  file  such  application  where  the  same  can  be 
conveniently  done,  in  the  Probate  Court  of  the  county  of  the 
testator's  domicile,  as  that  is  the  county  in  which  an  executor 
must  be  appointed.    It  may  be  in  the  following  form : 

(Title.) 

Now  comes  A.  B.  and  represents  to  the  Court  that  on  or  about  the 

day  of ,  C.  D.  died  leaving  a  will  in  the  custody  of 

G.  H..  who  has  neglected  and  refused  upon  request  to  produce  the  same  in 

the   Probate   Court   of for   the   probating   of   the   same. 

And  the  said  C.  D.  was  a  resident  of county,  Ohio,  and 

had  the  estate  therein.  That  the  undersigned  is  interested  in  said  will  in 
this  manner,  to-wit:  That  he  is  the  executor  thereof  (or  legatee  or  heir, 
etc.)  of  the  deceased.  Said  A.  B.  therefore  asks  the  Court  that  a  citation 
may  be  issued  against  G.  H.  ordering  him  to  bring  said  will  in  this  Court 
for  probate,  if  it  be  in  his  possession. 


Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 

§   1074.     Form  of  entry  and  order  of  citation. 

When  such  an  application  for  citation  is  filed,  the  practice 
generally  followed  would  be  to  put  an  entry  on  the  journal, 
ordering  the  issue  of  a  citation  and  fixing  a  date  for  the  hearing 
of  the  same.     The  entry  may  be  in  the  following  form  : 

{Title.) 

A.  B.  having  this  day  filed  an  application  for  a  citation  to  G.  H.  to 
bring  the  will  of  C.  D.,  deceased,  for  probate  in  this  Court,  said  application 

is   set   for   hearing  on    the day   of at 

o'clock,  and  said  A.  B.   (or  the  sheriff)   is  ordered  to  notify  said  G.  H. 

CITATION. 
State  of  Ohio,  Clark  County,  ss. 
I'o  the  Sheriff  of  said  County,  Greeting: 

We  command  you  that  you  cite  and  give  notice  to  G.  H.  to  be  and  appedr 
before  J.  P.,  judge  of  the  Probate  Court  within  and  for  the  county  aforesaid 

at  the  Court  House,  on  the day  of at o'clock, 

to  have  then  and  there  the  will  of  the  said  C.  D.,  deceased,  and  then  and 
there  to  show  cause,  if  any  he  have,  why  he  has  not  produced  for  probate 
the  said  will  of  A.  B.,  deceased.  Of  this  writ  make  due  service  and  return  to 
our  said  Court,  at  tlie  time  and  place  aforesaid. 

J  u  testimony  whereof  I  have  hereunto  set  my  hand  this  ....  day  of 


[Seal]  J.  p..  Judge. 

9  See    §  10S6.      Where    should    be  sionary  Soc.  vs.  Ely,  56  0.  S.  405. 

probated.  And     any     person     interested     may 

This  is  a  special  proceeding.   Mis-  have  the  wiU  probated. 


969  ATTTACHMENT — ENFORCED   PRODUCTION  §  1075 

§  1075.     Attachment  or  warrant. 

See.  10511,  G.  C.,"*  provides  that,  in  addition  to  the  provision 
for  bringing  a  party  before  the  Probate  Court  by  citation,  he 
may  be  brought  by  warrant  or  attachment.  This  is  an  extraor- 
dinary remedy  provided,  and  one  which  will  not  be  used  very 
often.  Just  what  will  authorize  the  Court  to  direct  a  warrant 
to  be  issued  for  arrest  of  a  person  holding  a  will,  the  statute 
does  not  provide.  However,  if  there  is  any  reasonable  cause 
shown  that  the  person  intends  to  destroy  or  secrete  thei  will  or 
remove  beyond  the  jurisdiction  of  the  Court,  either  would  be  a 
sufficient  cause  to  justify  the  Court  in  issuing  a  warrant  in  the 
first  instance,  on  the  filing  of  the  application.  In  such  cases 
the  application  should  state  the  reason  for  desiring  the  Court 
to  issue  a  warrant.  The  following  might  serve  as  an  entry 
ordering  a  warrant  or  attachment  on  the  original  application : 

FORM  OF  ENTRY. 

(Title.) 
A.  B.,  having  thii  day  filed  his  application  in  the  Probate  Court  of  this 

county,  represents  therein  that  C.  D.  died  on  the day  of 

,  leaving  an  estate  in  this  county,  and  also  died  leaving  a  will 

which  he  represents  is  now  in  the  possession  and  under  the  control  of  G.  H. ; 
and  further  represents  therein  that  said  G.  H.  is  now  about  to  remove  from 
this  county  (or  state  other  cause  justifying  the  issuance  of  a  warrant)  ; 
and  that  the  said  G.  H.  has  failed  and  refuses  to  produce  the  said  will  in 
this  Court  for  probate,  and  it  appearing  to  the  Court  that  the  allegations 
of  said  application  are  true,  it  is  ordered  that  a  warrant  be  issued  to  the 
sheriff  of  this  county  commanding  him  to  arrest  the  said  G.  H.  and  bring 

him  before  the  Court  on  the day  of ,  to  show  cause 

why  said  will  has  not  been  produced  for  the  purpose  of  being  probated. 

FORM  OF  WARRANT  FOR  ARREST. 

State  of  Ohio,  Clark  County,  ss. 

To  the  Sheriff  of  said  County,  Greeting: 

Whereas,  on  the day  of ,  there  was  filed  in  the 

Probate  Court  of  Clark  County  by  A.  B.  a  paper  alleging  that  the  said 
G.  H.  had  in  his  possession  the  will  of  C.  D.,  deceased,  and,  whereupon  the 
Court  ordered  that  a  warrant  be  issued  to  the  Sheriff  of  Clark  County  to 

arrest  said  G.  H.  and  bring  him  before  said  Court  on  the.  .  .  .day  of 

at o'clock,  to   show  cause  why  said  will  has  not 

been  produced  for  the  purpose  of  being  probated.  You  are  therefore  com- 
manded to  take  G.  H.  and  have  his  body  forthwith  before  this  Court  to 
abide  such  order  concerning  him  in  his  behalf.  Hereof  fail  not;  and  of  this 
writ  make  due  return. 

Witness  my  signature  and  seal  of  said  Probate  Court  at 

this day   of ,   A.   D.    190... 

J.  P.,  Probate  Judge 

9*§  11320  G.  C. 


§  1076  CUSTODY    OP    WILL  970 

§  1076.    Into  what  counties  such  process  may  issue.     ' '  The 

process  mentioned  in  the  next  preceding  section  may  be  issued 
into  any  county  in  the  state,  and  must  be  served  and  returned 
by  the  sheriff,  or  other  officer  to  whom  it  is  delivered."     [R.  S. 

5922.]  ^« 

§1077.  Liability  of  officer  serving  same.  ''The  officer  to 
whom  such  process  is  delivered  shall  be  liable  for  neglect  in  its 
service  or  return  in  like  manner  as  sheriffs  are,  or  by  law  may 
be,  liable  for  neglect  in  not  serving  or  returning  a  capias  issued 
upon  an  indictment."     [R.  S.  §  5923.] ^^ 

§  1078.     Hearing,  etc. 

When  the  person  alleged  to  have  the  will  in  his  possession  is 
before  the  Court,  either  by  reason  of  the  service  of  a  citation  or 
by  arrest,  it  will  then  devolve  upon  the  Court  to  try  the  ques- 
tion whether  or  not  the  said  party  has  the  will  in  his  possession 
or  under  his  control.  If  the  party  stands  mute  the  Court 
might  go  on  the  assumption  that  he  has  the  will  in  his  posses- 
sion, and  if  he  fails  to  produce  it,  commit  him  to  prison.  If 
he  denies  the  charge,  it  will  devolve  upon  the  party  filing  the 
application  to  sustain  his  charge  by  testimony,  and  in  such 
cases  the  Court  will  proceed  to  the  trial  of  the  matter  in  the 
same  manner  as  causes  are  usually  heard  and  tried.  The  de- 
fendant, however,  has  no  right  to  a  trial  by  jury.  If  the 
party  charged  fails  to  appear,  the  Court,  should  proceed  and 
hear  the  cause,  and  if  the  evidence  justifies,  should  make  an 
order  committing  the  party  to  imprisonment,  the  statute  say- 
ing that  "  if  the  party  having  the  custody  of  the  will  shall, 
without  any  reasonable  cause,  neglect  or  refuse  to  produce  the 
same,  then  he  may  be  committed."  The  first  question  in  all 
such  cases  is.  Has  the  party  the  custody  of  such  will  ?  It  will 
be  observed  that  in  addition  to  a  liability  to  be  committed  to 
jail,  the  party  w^ho  has  a  will,  and  fails  to  produce  it,  is  liable 
to  a  suit  in  damages  to  any  person  that  may  be  aggrieved  by 
failure  to  produce  such  will. 

10  §  10512  G.  C.  "  §  10513    G.   C. 


971  PUNISHMENT — COMMITMBNT  §  1079 

§  1079.  Punishment  and  liability  of  person  refusing  to  pro- 
duce will.  "If  the  person  having  the  custody  or  control  of  a 
will,  without  reasonable  cause,  neglects  or  refuses  to  produce  it 
for  probate,  after  being  duly  cited  for  that  purpose,  he  may  be 
committed  to  the  jail  of  the  county  there  to  be  kept  in  close 
custody  until  he  produces  the  will.  He  also  shall  be  liable  to 
the  action  of  any  party  aggrieved  for  the  damages  sustained  by 
such  neglect  or  'refusal."     [R.  S.  §  5924.] ^^ 

§  1080.     Form  of  entry  and  warrant,  etc. 

{Title.) 

This  day  came  said  G.  H.  in  obedience  to  the  citation  issued  for  him  (or 
in  the  custody  of  the  sheriff)  and  was  examined  concerning  his  refusal 
to  pioduce  the  will  of  the  said  C.  D.  for  probate,  and  after  full  consideration 
the  Court  finds  that  he  has  the  custody  and  control  of  said  will  and  that 
without  any  reasonable  cause  he  neglects  and  refuses  to  produce  the  same 
for  probate  after  having  been  duly  cited  for  that  purpose,  and  that  he 
still  refuses  without  any  reasonable  cause  to  produce  the  same.  Therefore 
it  is  ordered  that  said  G.  H.  be  committed  to  jail  of  this  county,  there  to  be 
kept  in  close  custody  until  he  shall  produce  the  said  will. 

CGMJVIITMENT. 

State  of  Ohio,  Clark  County,  ss. 

To  the  Jailer  of  said  County,  Greeting: 

Whereas  G.  H.  has  been  brought  before  the  judge  of  the  Probate  Court 
of  the  above  county  for  the  purpose  of  compelling  him  to  produce  for 
probate  the  last  will  and  testament  of  the  said  C.  D.,  and  whereas,  after- 
wards the  said  matter  came  on  for  hearing  before  the  said  Probate  Court, 
and  the  said  G.  H.  being  present,  the  Probate  Court  found  that  said  G.  H. 
still  neglects  and  refuses  to  produce  the  same.     Whereas  the  said  Probate 

Judge  ordered  and  required  him  to  produce  the  said  will  on  the day  of 

and    that   he   refuses   and    neglects    so   to   do   without 

reasonable  cause.  W'herefore,  I,  the  Judge  of  said  Court  order  that  said 
G.  H.  be  committed  to  the  jail  of  said  county,  there  to  be  kept  in  close 
custody  until  the  production  of  said  will.  You  are  therefore  hereby  com- 
manded to  receive  the  said  G.  H.,  to  confine  him  in  the  jail  of  said  county 
until  he  produce  said  will  or  until  he  be  otherwise  duly  discharged  ac- 
cording to  law. 

Given    under    my    hand    and    seal    of    the    said    Court    this day 

of 190... 


12  §  10514  G.  C. 


§1081 


WILLS — PROBATE 


972 


CHAPTER  LVIII. 

WILLS.     PROBATE. 


§1081     Definition.     Nature   of   pro-       §1100 

ceedinjjs,   etc. 
§  1082     What    may   be    admitted   to       §  1101 

probate. 
§  108,3     When    should   be    presented. 
§1084     Effect    of    devisee    withhohl-       §1102 

ing  will   from  probate   for 

three  years.  §  110,3 

§  1085     Who  should  present  will  for       §  1104 

probate.  §  110.5 

§  1086     In   what   court  wills   should 

be   probated.  §  1106 

§  108Ca  Persons    interested    in    pro-       §  1107 

bate    of    will    may    contest       §  1108 

jurisdiction     of     court     to       §  llOfl 

entertain    application;    ap-       §  llOOa 

peal  from  decision. 
§  1086b  Contest. 

§1087     Application    for   probate.  §  1109b 

§  1088     Form  of  application  for  pro-       §  llOflc 
bate  of  will.  §  1110 

§  1080     Time  of  hearing. 

§  1000     Entry   fixing   time,   etc.  §  1111 

§  1091     To    whom   notice    should   be 

given. 
§  1092     Service    of   notice.  §  1111a 

§  1093     Form   of  notice.  §  1112 

§  1094     Essentials    to   be    proven    in 

probate  of  a  will.  §  1112a 

§  1095     Examination     of     witnesses       §  1112b 

to  will.  §  1113 

§  1096     What     witnesses     may     be 

heard,  etc.  §  1114 

§  1097     Form  of  testimony.  §  1115 

§1098     How    will    proved,    if    wit-       §  1115a 

nesses  unknown  or  incom-       §  1116 

petent,  etc. 
§  1099     Sufficient    testimony    where       §  1117 

witness  is  dead  or  absent. 


Form  of  testimony'  of  sub- 
scribing  witnesses. 

\Mien  coiirt  may  issue  com- 
mission to  take  their  tes- 
timony. 

Order  to  take  testimony  of 
absent   witness. 

Form   of   commission. 

Return   of  commissioner. 

Admission  of  will  to  pro- 
bate. 

Sufficient    proof,    etc. 

Entry    ordering   probate. 

Effect  of  order. 

liccord  of  title  by  will. 

Certificate  of  probate  judge 
when  will  devises  real  es- 
tate. 

Record   by   county   recorder. 

Fees. 

Certified  copy  of  will,  etc., 
evidence. 

Recorded  in  each  county 
where  real  estate  is 
situate. 

Record   of   title  by   descent. 

Uncontested  probate  after 
one  year  binding. 

Contests,   etc. 

Set  aside  by  agreement. 

Duty  of  judge  on  notice  of 
contest. 

Error,  etc. 

Repropounding   of    will. 

Probating  second   will. 

Appeal  from  refusal  to  ad- 
mit   will    to   probate. 

How  appeal  perfected  and 
proceedings  in  Common 
Pleas. 


§1081.     Definition.    Nature  of  Proceedings,  etc.* 

The  probate  of  a  will  is  defined  to  be  the  proof  before  an 
officer  authorized  by  law,  that  an  instrument  offered  to  be 
proved  or  recorded  is  the  last  will  and  testament  of  the  de- 


a  On  the  hearing  of  an  applica- 
tion to  probate  a  will  the  court  has 
jurisdiction  to  fully  and  finally  de- 
termine all  questions  involved,  in- 
cluding that  of  domicile  of  the 
testator.  The  judgment  of  the  court 
is  protected  by  the  same  rules  as 
to  collateral  attack  as  other  iudg- 
ments  of  courts  of  record.    Wilber- 


ding  vs.  Miller.  08  O.  S.  28;   State 
ys.  Allen,  96  0.  S.   10. 

But  it  has  no  power  to  refuse  to 
probate  a  will  merely  because  a 
devise  therein  may  be  against  pub- 
lic policy,  illegal  or  immoral,  or 
give  aid  and  comfort  to  the  enemies 
of  the  United  States.  Tn  re  Estate 
of  Schrader,  63  Bull.  95;  20  N.  P. 
433. 


973  NATURE  OF  PKOCEEDING  §  1081 

ceased  person  whose  testamentary  act  it  is  alleged  to  be.^  This 
is  a  matter  which  deserves  full  treatment  in  this  work,  as  it 
comes  within  the  exclusive  jurisdiction  of  the  Probate  Court. ^ 
Formerly  such  matters  came  within  the  jurisdiction  of  the  ec- 
clesiastical court,  and  there  were  two  kinds  of  probate  —  one 
was  designated  "  probate  in  common  form,"  and  the  other  the 
"  solemn  form."  Probate  in  the  solemn  form  was  a  proceed- 
ing upon  citation  to  all  persons  interested  and  upon  full  proof 
by  witnesses  for  and  against  the  will.^ 

Probate  under  common  form  was  an  ex  parte  proceeding,  and 
did  not  require  a  notice  to  any  of  the  interested  parties.  The 
proceedings  to  probate  a  will  in  our  State  are  usually  termed 
to  be  proceedings  in  the  common  form  and  ex  parte  in  their 
character.  It  departs,  however,  somewhat  from  the  ordinary 
rule  of  "  probate  in  common  form  "  when  it  requires  that  no 
will  shall  be  probated  without  notice  to  the  widow  or  husband 
and  next  of  kin  of  the  testator.  It  preserves  its  distinctive 
feature  of  probate  in  "  the  coramon  form  "  in  this  that  it  is  not 
of  an  adversary  character,  and  no  testimony  can  be  heard  on  the 
admission  to  probate  except  such  as  is  necessary  to  malce  out  a 
prima  facie  case  to  establish  the  will.*     The  proceeding  is  of 

1  Vol.  2,  Bouv.  Law  Die.  sons  interested  being  made  parties, 

2  §  10492  G.   C,   §  27.  and  having  an  opportunity  of  being 

3  Page  on  Wills,  §§  312,  352.  heard  with  all  their  proofs  for  and 
In  England  there  are  two  modes  against  the  will,  corresponding  near- 

of  proving  a  will  of  personalty  in  ly  with  the  mode  of  probate  in  En- 
the  proper  Court  of  Probate ;  I.  "  In  gland,  "in  solemn  form"  or  "per 
the  common  form."  2.  "  In  the  testes."  The  jurisdiction  exercised 
form  of  law,"  or  "  solemn  form,"  or  in  all  such  cases  by  the  Court  and 
"  per  testes."  The  first,  like  our  or-  jury  is  virtually  that  of  a  Court  of 
dinary  mode  of  probate  in  the  Pro-  Probate.  1  B.  Mon.  390;  Hamber- 
bate  Court,  was  ex  parte,  the  last  lin  vs.  Terry,  7  Howard  (Miss.) 
was  inter  partes,  upon  citation  of  143;  Coalter's  executor  and  others 
r11  persons  interested  and  upon  full  vs.  Bryan  and  others,  1  Grattan  18, 
proof  by  witnesses,  for  and  against  80;  Small  vs.  Small,  4  Greenleaf 
the  will.  It  is  manifest  that  our  220;  Mears  vs.  Hears,  15  0.  S,  96. 
legislature  in  its  provisions  for  the  *An  application  to  admit  a  will 
contest  of  a  will  by  bill  in  chan-  to  probate  is  not  an  adversary  pro- 
eery,  above  cited,  simply  designed  a  ceeding.  Those  who  may  be  inter- 
mode  of  bringing  up  the  will  for  ested  adversely  are  not  required  to 
final   probate  or   rejection,   all   per-  be  notified  or  summoned  to  be  pres- 


§1082 


WILLS 


PKOTJATE 


974 


a  judicial  nature,  and  not  being  an  action  within  the  sense  of 
the  Code,  it  follows  that  it  belongs  to  that  class  known  as  spe- 
cial proceedings.^ 

A  will  is  of  no  effect  in  the  conveyance  of  title  to  property 
until  it  is  admitted  to  probate,  and  such  proceedings  must  he 
in  compliance  with  the  statute  of  our  State.  Wlien  once 
probated  tlie  will  becomes  effective  from  the  date  of  the  death 
of  the  testator. 


§  1082.     What  may  be  admitted  to  probate. 

As  a  general  rule,  it  may  be  stated  that  all  papers  of  a  testa- 
mentary character  should  be  admitted  to  probate.^  The  diffi- 
culty we  encounter  is  the  determination  of  whether  or  not  the 
paper  presented  is  of  a  testamentary  character.  This  matter 
has  been  discussed  in  a  previous  chapter.'^ 

It  seems  to  be  the  rule  that  where  there  is  doubt,  whether 
the  paper  presented  is  testamentary  or  not,  that  the  Probate 
Court  should  admit  the  will  to  probate  and  then  let  the  matter 
be  settled  in  contest.* 


ent ;  and  no  issue  is  made  for  a  con- 
test between  adverse  parties.  This 
is  not  the  proceeding  in  which  those 
who  deny  the  validity  of  a  will  are 
authorized  to  contest  it.  After  a 
will  shall  have  been  admitted  to 
probate  those  who  have  adverse  in- 
terests have  the  right  to  contest  its 
validity  by  petition  in  the  Court  of 
Common  Picas.  Last  will  of  Hath- 
away, 4  0.  S.  383. 

5  Missionary  Society  vs.  Ely,  56 
O.  S.  408. 

eSchouler  on  Exe.  60,  63. 

7  §  1014   et  seg. 

Attempts  to  defeat  the  probate 
of  imwelcome  wills  by  family 
arrangements  connived  at  by 
attestory  witnesses  are  contrary  to 
public  policy  and  should  be  frus- 
strated  in  a  court  of  probate  if 
possible.  In  re  Solomons  Estate, 
145  X.  Y.  Supp.  525.  See  Walker 
vs.  Hollister,  20  N.  P.  225;  Rohr 
vs.  Gatch,  21  X.  P.  65,  as  to  illegal 
arrangement  to  set  aside  a  will. 

8  In  re  Williamson  Estate,  6  N. 
P.  79;  8  Dec.  47. 

The  paper  which  was  presented 
for  probate  in  the  above  case  was 
as    follows:       "I,    the    undersigned. 


George  H.  Williamson,  citizen  of  the 
United  States  of  America  and  of 
the  State  of  Ohio,  legally  domiciled 
in  the  city  of  Cincinnati,  Ohio,  but 
sojourning  at  present  at  Paris, 
France,  182  Boulevard  Saint  Ger- 
main, for  reasons  of  health,  sick  in 
body  but  of  sound  mind,  at  the  mo- 
ment of  appearing  before  God,  (do) 
solemnly  declare  that  I  have  always 
intended  to  return  to  my  country 
and  that  the  bad  state  of  my  health 
has  prevented  me  from  doing  so.  I 
declare  that  I  am  still  a  citizen  of 
the  State  of  Ohio  and  subject  to  its 
laws.  I  further  solemnly  declare, 
that  the  two  persons  who  live,  and 
have  always  lived  with  me  and  with 
their  mother  under  the  names  of 
Georgette  and  Henriette  William- 
son, are  my  legitimate  daughters, 
issue  of  my  union  with  Marguerite 
Grandcamp,  dwelling  with  me  (at) 
182  Boulevard  Saint  Germain,  Paris. 
I  declare  further  that  I  expressly 
revoke  all  testamentary  dispositions 


975         WHAT  MAY  BE  ADMITTED  TO  PKOBATE         §  1082 

Codicils  are  usually  so  connected  with  the  will  that  they  can 
not  be  probated  apart  from  the  will.  If  they  are  of  such  a 
character  as  to  be  probated  apart  from  the  will,  they  would  lose 
their  characteristics  of  codicils  and  become  in  themselves  new 
wills.  However,  a  will  may  be  probated  even  though  the  codicil 
can  not  be  found,  for  it  may  operate  separate  and  apart  from 
the  codicil,  A  paper,  it  is  said,  which  disposes  of  no  property 
has,  generally  speaking,  no  testamentary  character  so  as  to 
enable  the  probate  thereof  to  be  granted.^ 

Yet  a  will  which  makes  a  mere  designation  of  a  person  to 
be  an  executor  of  the  estate  should  be  probated,  and  likewise 
the  designation  of  a  person  to  be  a  guardian  of  a  testator's  chil- 
dren ought  to  be  admitted  to  probate/" 

The  question  as  to  the  effect  the  will  may  have  upon  the 
testator's  property,  or  even  upon  dispositions  made  of  the  same, 
is  not  a  question  to  be  brought  up  in  the  probate  of  a  will.  A 
will  would  be  entitled  to  probate  even  though  it  takes  effect  in 
certain  provisions  only  and  is  void  as  others/^ 

In  the  probate  of  wills  all  papers  which  are  by  reference  made 
a  part  of  the  same,  should  be  offered  with  the  will,  and  in  that 
way  become  effective  and  j)laced  on  record/^ 

that  I  have  made  up  to   this   day.  This  was  held  in  the  lower  Court, 
''  In  testimony  whereof  I  have  signed  5  N.  P.  1 ;   6  Dec.  505,  not  to  be  a 
and  sealed  these  presents  this  fourth  paper  of  a  testamentary  character, 
(day)    of   December,    eighteen  hun-  The  Common  Pleas  Court  held,  how- 
dred  and  ninety-six.  ever,  that  it  was,  and  even  if  they 
( Signed )  "  George  H.  Williamson.  were   in   doubt   about   that   matter, 
"  Signed  and  sealed,  and  declared  that  being  a  paper  properly  execut- 
to  be  the  expression  of  his  last  Avish-  3d,  it  should  have  been  admitted  to 
es,  by  George  H.  Williamson,  in  the  probate, 
presence  of  the  subscribers,  who  at  9  Schouler  on  Ex.  60. 
his  request  and  in  his  presence,  and  lo  Schouler  on  Ex.  60. 
in  the  presence  of  each  other,  have  Upon  this   last  proposition  there 
signed  as  witnesses  this  fourth  day  seems   to   be   some   controversy,   but 
of  December,  eighteen  hundred  and  it  seems  that  in  Ohio  where  testa- 
ninety-six.  mentary   guardians   are    recognized, 
"P.   G.   Tremond,  j  10930    G.    C,    §  1307,    that    there 
9  Ecole  de  Medicine,  would  be  little  dnu1)t  iipon  this  proj>- 
Paris,  France.  osition. 
"B.  Gerguad,  n  Schouler   on    Ex.    60;    Page   on 
32   Ave  de  I'Opera,  Wills,  §314,  p.  359. 

Paris,    France."  12  Sometimes    testators    make    di- 


§  1083 


WILLS 


PROBATE 


976 


§  1083.     When  should  be  presented. 

Our  statute  has  no  provision  limiting  the  time  in  which  a  will 
should  be  presented  for  probate.  In  the  previous  chapter  we 
have  seen  that  if  a  will  is  left  on  deposit  with  the  Probate 
Judge,  and  if  it  is  uncalled  for  within  two  months,  it  is  the 
judge's  duty  to  open  the  will  and  notify  the  executors  or  next 
of  kin  of  the  fact  of  such  will  being  there.  But  it  makes  no 
provision  for  the  enforcement  of  a  probating  of  the  will.  A 
delivery  of  the  will  can  be  compelled,  but  if  no  one  applies  to 
have  it  probated,  it  seems  that  the  Court  of  its  own  motion  has 
no  right  to  probate  it.  It  might  therefore  be  said  that  the 
rule  adopted  in  Massachusetts,  from  which  State  our  testamen- 
tary and  administration  laws  have  largely  been  taken,  would 
be  the  rule  in  our  State.  In  that  State  a  will  may  be  ad- 
mitted to  probate  at  any  time  in  order  to  establish  title  to  real 
estate,  etc.^^ 

In  the  same  State  it  was  held  that  a  codicil  to  a  will  which 
had  escaped  attention  and  was  not  passed  upon,  at  the  time  of 
the  probate  of  the  original  will,  might  be  admitted  to  probate 
fourteen  years  after  the  original  was  probated.^*  In  a  recent 
case  a  will  was  admitted  to  probate  sixty-one  years  after  the 
death  of  the  testator. ^^ 


vision  of  their  property  among  their 
children  and  execute  deeds  for  the 
same  and  simultaneously  make  a 
will  and  reference  is  mad*  to  such 
deeds.  Usually  the  deeds  are  left 
in  the  control  of  the  testator  and 
therefore,  as  deeds  they  are  wanting 
in  the  essential  character  of  delivery 
and  convey  no  title  to  the  children. 
In  such  cases  it  becomes  very  im- 
portant that  the  deeds  are  presented 
with  the  will  and  made  .a  part  of  it 
and  placed  upon  the  record. 

The  expressions  of  a  man  stand- 
ing upon  the  verge  of  eternity,  with 
the  grave  yawning  before  him,  with 
every  indication  of  dissolution,  can 
not  be  said  to  be  those  of  a  man  of 


sound  mind  and  memory,  and  a  will 
made  under  such  conditions  will  not 
be  admitted  to  probate.  In  re  Bur- 
rows, 8  N.  P.  358. 

13  Shumway  vs.  Holdwood,  1  Pick. 
114;   11  Am.  Dec.   153. 

1*  Waters  vs.  Stickney,  12  Allen  1. 

15  Haddock  vs.  Boston  Ry.  Co., 
146  Mass.  155. 

In  this  case  it  was  said  "  So  long 
as  one  can  produce  the  evidence 
necessaiy  to  obtain  the  probate  of 
a  will,  we  can  see  no  legal  reason 
why  one  who  relies  upon  it  should 
not  be  allowed  to  prove  it  as  he 
would  be  permitted  to  prove  a  deed, 
however  ancient,  under  which  he 
claimed  a   title.     The   fact   that   he 


977  WHEN    SHOULD   BE    PRESENTED  §    1084 

Of  course,  as  a  matter  of  good  practice  a  will  ought  to  be 
presented  for  probate  as  soon  as  a  decent  observation  of  the 
ceremonies  attending  the  death  of  the  testator  have  been  ob- 
served. Many  reasons  might  be  given  for  prompt  execution 
of  this  matter,  such  as  tlie  destruction  of  the  will  or  its  loss, 
or  the  effect  it  might  have  upon  various  persons.  The  only 
provision  that  our  statute  seems  to  have  is  one  made  inflicting 
a  penalty  upon  a  devisee'  for  withholding  a  will,  which  is  as  fol- 
lows: 

§  1084.  Effect  of  devisee  withholding  will  from  probate  for 
three  years.  "No  lands,  tenements,  or  heriditaments,  shall 
pass  to  any  devisee  in  a  will,  who  for  three  years  knows  of  its 
existence  and  has  it  in  his  power  to  control  it,  unless,  within 
that  time,  he  causes  it  to  be  offered  for,  or  admitted  to,  probate. 
By  such  neglect,  the  estate  devised  to  such  devisee  shall  descend 
to  the  heirs  of  the  testator."     [R.  S.  §  5943.] i« 

The  above  limitation  does  not  refer  to  the  record  or  admis- 
sion to  probate  of  a  will  probated  in  a  sister  State.^^  The  fact 
that  a  devisee  has  held  the  will  for  three  years  has  no  effect 
upon  the  will  itself,  and  it  shall  be  admitted  to  probate  when 
presented,  even  after  that  time,  provided  it  meets  the  other 
requirements.^^ 

§  1085.     Who  should  present  will  for  probate. 

In  earlier  procedure  it  was  often  said  that  the  executor  was 
the  proper  person  to  propound  the  will  for  admission  to  pro- 
bate; and  he  is  no  doubt  a  very  proper  person  under  our  law  to 
make  the  application.  But  any  one  may  make  the  application 
who  has  an  interest  in  the  will,  or  the  estate  of  the  person  de- 
could  not  offer  in  evidence  a  will  i^  Carpenter  vs.  Denoon,  29  O.  S. 
not  admitted  to  probate,  as  he  might       379. 

an  ancient  deed,  would  certainly  af-  is  Will  of  Blymyer,  Goebel   14. 

ford    no    reason    why    its    authority  A  custodian  of  the  last  will  and 

should  not  be  established  in  the  testament,  probated  it  within  thirty 
Probate  Court  by  its  regular  course  days  after  a  lapse  of  more  than 
of  procedure."  10  Am.  &  Eng.  Ency.  three  years  upon  the  setting  it  aside, 
of  Law   179.  second    probate    of    an    earlier    will 

ifi  §  10542  G.  C.  This  section  is  also  left  in  his  possession  is  not 
punitive  and  should  be  strictly  con-  deprived  from  holding  as  legatee, 
strucd — mere  delay  may  not  Ije  suf-  because  his  withholding  it  more  than 
ficient.  Mitcbel  vs.  Levy,  9  N.  P.  iliree-  years.  Avery  vs.  Howard,  7 
(X.S.)    113;   20  Dec.  41.  N.  P.    (N.S.)    97j    19  Dec.  71. 


§  1086  WILLS  PKOBATE  978 

ceased."     Whoever  has  a  right  to  offer  the  will  in  evidence,  or 
to  malce  title  under  it,  may  insist  on  having  it  proved.^** 

§  1086.     In  what  court  wills  should  be  probated. 

Of  course,  the  will  must  be  filed  in  some  Probate  Courtj  as 
no  other  Court  has  jurisdiction.  If  a  resident  of  Ohio  dies 
living  in  one  county  and  having  an  estate  in  another,  in  which 
county  should  the  will  be  presented  for  probate  ?  It  is  a  sin- 
gular fact  that  the  statutes  of  our  State  do  not  present  a  direct 
answer  to  this  inquiry.  In  see.  10511,  G.  C.,^^  it  provides  that 
where  real  or  personal  property  is  devised,  a  person  interested 
may  cause  the  same  to  be  brought  before  the  Probate  Court  of 
the  county  in  which  the  estate  may  be.  It  does  not  say  here 
that  the  will  shall  be  probated  in  such  a  Court,  but  merely 
states  that  such  Probate  Court  has  jurisdiction  to  compel  the 
production  of  a  will.  The  will  having  been  produced,  it  might 
be  taken  to  some  other  coimty  for  probate  so  far  as  the  direc- 
tions of  the  statute  are  concerned.  But  from  the  fact  that  a 
subsequent  section  ""  provides  that  "  said  Court  shall  cause  the 
witnesses  to  such  will,"  etc.,  to  go  before  it  for  the  purpose  of 
having  the  will  probated,  the  inference  is  strong,  if  not  irre- 
sistible, that  it  was  the  intention  of  the  legislature  to  confer 
jurisdiction  to  admit  a  will  to  probate  in  the  Probate  Court  of 

19  Page  on  Wills,  363,  §317.     See  law   authorizes  him   to   do   so-,    and 

§  1082.  j(^  jg  unimportant  that  the  petition- 
It  is  a  matter  of  public  interest  ,.  j      iu  4.  t   *. 

.,     ,     ,,  11      1,      11    1  1       A  er  applies  under  the  wrong  statute, 

that    the   will    should    be   produced.  ^'^  ° 

Anyone  expecting  a  legacy  may  thus  Schober    vs.    Pro.    Judge,    49    Mich, 

petition,  as  the  old  books  say,  "to  323;  Schouler  on  Exrs.  65. 

the   intent   that  they   may   thereby  -o  Steibbus  vs.  Lathrop,  4  Pick.  33. 

be    certified    whether    the    testator  The   devisees   and   legatees   under 

left  them  a  legacy."     Godolph  pt.  1,  a   will,   which   after   the  decease  of 

chapt.  20,  §  2 ;  3  Redf .  Wills,  2d  ed.  the    testator    has    been    wrongfully 

45;    1   Wms.  Exrs.   318-320;    Foster  spoliated,     may    maintain    proceed- 

vs.   Foster,   7   Paige,   48.  ings  in  the  Probate  Court  to  have 

The  jurisdiction  of  the  local  Pro-  the   will    admitted    to    probate   and 

bate  Court  for  thus  subserving  pub-  record.     Taylor  vs.  Bennett,  1  C.  C. 

lie  policy  is  usually  detailed  by  the  95;  1  C.  D.  57.    See  §  1142,  Spoliate] 

local     statute.       A     probate     judge  ed  wills, 

should  entertain  a  petition  for  the  21  §    1072. 

allowance    of    a    will    wherever    the  22  §  10515  G.   C,    §  1095. 


979  WHERE    SHOULD   BE  §  1086 

the  county  in  which  there  was  an  estate  of  testator's.^^  The 
statute  makes  no  reference  whatever  to  the  admission  of  a  will 
to  probate  in  the  county  where  the  deceased  had  his  domicile. 
Yet  from  the  fact  that  the  statutes  provide  that  a  deceased  may 
deposit  his  will  in  the  county  in  which  he  lives,^*  and  also 
makes  provision  that  if  letters  testamentary  be  issued,  they 
must  be  issued  from  the  county  in  which  he  was  a  resident. '° 
The  inference  is  strong  that  the  will  may  be  probated  in  the 
county  of  the  testator's  domicile,^®  even  though  his  estate  be 
in  another  county ;  and  such  has  been  the  holding  of  our  Su- 
preme Court. '^ 

Admitting  that  a  will  might  be  admitted  to  probate  in  any 
county  of  this  State  where  the  testator  had  property,  yet  the 
law  certainly  favors  the  jurisdiction  of  the  Court  located  in 
the  county,  in  which  the  testator  had  his  domicile."^ 

If  there  is  to  be  an  administration  of  the  estate,  as  a  matter 

of  convenience  a  will  ought  never  to  be  probated  in  any  other 

county,  when  the  testator  was  a  resident  of  Ohio,  except  in  the 

county  of  his  domicile.     If  it  be  probated  in  any  other  county, 

a  certified  copy  must  be  filed  for  record  in  the  county  in  which 

letters  of  administration  are  issued.     If  a  resident  of  Ohio  dies 

in  another  State,  in  order  to  affect  property  in  this  State,  the 

will  must  be  probated  in  the  county  of  his  domicile.     It  can 

not  be  probated  in  the  foreign  country  and  an  authenticated 

copy  produced  here  for  record.^** 

/ 

23  Limes  vs.   Irwin,   16  0.   S.  488.  without    regard    to    where   the   will 

21  §§  1050G-7  G.  C,   §  1067.  was  made  or  where  such  person  died. 

2s§  l()(]()4  G.  C.,  §72.  Manuel  vs.   Manuel,    1.3   0.   S.   459; 

28  It   takes    very    little   estate   to  Story's    Conflict    of   Laws,    §§    467, 

confer  jurisdiction  and  the  presump-  468;    Converse   vs.   Starr,   23   O.   S. 

tion  is  that  a  testator  on  his  death  491. 

has  an  estate  at  the  place  of  such  28  A    will    disposing    of    property 

death,  sufficient  to  at  least  give  jur-  should   be   offered   for  original   pro- 

isdiction  to  probate  his  will  there.  bate  in  the  Court  within  whose  ju- 

Will  of  Blymeyer,  1  Goebel  16.  risdiction  testator  was  domiciled  at 

27  The    will    of    a    person    whose  the  time  of  his  death,  irrespective  of 

domicile,  at  the  time  of  his  death  is  whore  he  might  have  died.   Paige  on 

in  this  State,  is  a  domestic  will,  and  Wills,  361,  §   315. 

properly   admitted   to  original   pro-  29  McNeal  vs.  Ross,  39  Bull.  353; 

bate  at  the  place  of  such  domicile,  Manuel  vs.  Manuel,  23  0.  S.  459. 


§  1086  WILLS PROBATE  980 

If  a  non-resident  dies  owning  property  in  this  State,  can  the 
will  be  presented  for  original  probate  in  this  State,  or  must  it 
be  presented  for  original  probate  in  the  State  of  the  testator's 
domicile,  and  an  authenticated  copy  presented  here  for  record  ? 
It  seems  to  the  writer  that  in  such  a  case  the  will  might  be  of- 
fered for  original  probate  in  any  county  in  this  State  in  which 
there  was  found  to  be  property  of  the  testator.  A  recent  deci- 
sion of  one  of  our  Common  Pleas  Courts  seems  to  hold  to  the 
contrary.^"  But  it  is  questionable  whether  this  case  is  well  re- 
ported. Judge  Goebel  held  that  such  a  will  could  be  pro- 
bated.^^ 

I  can  see  no  reason  why  a  will,  although  executed  in  another 
State  by  a  resident  of  such  State,  if  it  be  executed  in  accordance 
with  the  laws  of  Ohio,  should  not  be  entitled  to  original  pro- 
bate in  this  State.^^  As  to  what  mil  constitute  a  "  person  a 
resident  of  a  county,"  such  as  to  give  jurisdiction,  see  discus- 
sion of  the  same  under  letters  testamjentary.^^ 

In  the  absence  or  disability  of  the  Probate  Judge,  the  Judge 
of  the  Court  of  Common  Pleas  may  take  the  proof  of  wills.^* 

30  Fleming   vs.    Hoffman,   8    N.   P.  pone  the  probate  of  a  foreign  will, 
86;    10  Dec.  5G0.  until  the  instrument  has  been  sub- 
See  §  1118  G.  C.  niitted  to  the  proper  judicial  tribu- 
In  the  Supreme   Court  tliis   ques-  nal  of  the  decedent's  domicile.   Redf. 

tion    is    suggested    but    not    passed  Sur.  Prac.  126. 

upon.    Hoffman  vs.  Fleming,  47  Bull.  ^2  Provided,  of  course,  there  is  an 

4G0.  estate  in  the  county  where  the  same 

31  Will  of  Blymyer,    1   Goebel   14.  is  presented  for  probate.  Stee  Thomp- 
A   foreign   will   in  the   sense   that  son  on  Wills,  §  487. 

the    same    is    used    in    our    statutes  ^^  §  "4. 

means    that    it   is   a   will    not    only  ^    person    who    was    born    here 

executed    but    admitted    to    probate  and  lived  here  until  23  years  of  age, 

in  another  State  or  country.     Page  and    thereafter    in    France    for    40 

on   Wills,    §§  355     423.  years  until   he  died,  but  who  kept 

And   therefore   until   such   will   is  ^"s  valuable  securities  here,  and  oc- 

prohated   in   the   foreign   country    it  casionally    returned   on   visits,    and 

is    not    a    foreign    will    within    the  declared  in  his  will  that  he  was  a 

sense   that  it  must  be   admitted   to  ^^*^^^"  ^f  this  place,  was  domiciled 

probate   or   record   in   this    State   as  '^•^^^'  ^""^  ^"^  ^^^^  ^*"  ^^  admitted 

provided  by   §§  10535,   1053G.    10538  ^^  probate  here.    Williamson's  Will, 

G.  C,  §§1119,   1125.  8  Dec.  47;   6  N.  P.  79. 

The   jurisdictional   facts   existing,  ''  §  1590  G.  C,  §  10.     See  §  1094, 

the  Court  here  is  not  bound  to  post-  Essentials  to  be  proven. 


981  CONTEST  OF   JUBISDICTION  §  1086a 

§  1086a.  Persons  interested  in  probate  of  will  may  contest 
jurisdiction  of  Court  to  entertain  application;  appeal  from 
decision.  "When  a  will,  claimed  to  have  been  executed  by  a 
person  domiciled  in  this  state,  is  presented  for  probate  in  a 
county  thereof,  persons  interested  in  its  probate  may  contest  the 
jurisdiction  of  the  court  to  entertain  the  application."  [R.  S. 
§  5929a.  J^'^ 

§  1086b.  Contest.  ''When  such  contest  is  made,  parties 
shall  have  the  right  to  call  witnesses  and  be  heard  upon  the 
question  it  involves.  The  decision  of  the  court  as  to  its  juris- 
diction may  be  reviewed  on  error."      [R.  S.   §  5929a. ]^^* 

The  above  section  is  of  recent  date.  The  intention  seems  to 
be  to  give  a  contesting  party  the  right  to  raise  the  question  of 
jurisdiction  and  prosecute  error  from  the  Courts  ruling  there- 
on, making  the  finding  of  the  Court  as  to  its  jurisdiction  or 
right  to  entertain  the  application  a  final  order.  I  am  not  sure 
but  what  this  could  have  been  done  without  the  provisions  of 
the  above  section.  If  a  person  wishes  to  raise  the  question  of 
jurisdiction,  as  provided  in  the  above  section,  he  should  file  an 
answer;  and  the  Court  should  proceed  to  hear  the  question 
raised  by  such  an  answer  before  calling  witnesses  to  pr^ve  the 
will.     The  answer  might  be  in  the  following  form : 

(Title.) 

Now  comes  A.  B.  and  represents  to  the  Court  that  he  is  interested  in  the 
following  manner  (here  state  how)  in  the  estate  of  E.  F.,  deceased,  applica- 
tion to  probate  whose  will  has  been  filed  in  the  Probate  Court  of 

county,   Ohio.     The   said    undersigned   hereby   denies   that   said 

Court  has  jurisdiction  to  entertain  said  application  and  asks  that  the  same 
may  be  dismissed. 

Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 


§  1087.     Application  for  probate. 

The  statute  contains  no  direct  provision  that  there  shall  be  a 
formal  application  filed  to  admit  a  will  to  probate;  and  yet  it 
seems  doubtful  if  the'  statute  contemplates  that  the  Court 
should  sua  sponte  order  a  will  to  be  probated,  for  in  sec.  10510, 
G.  C.,^^t  it  is  provided  that  if  a  will  is  opened,  it  shall  remain 
in  the  office  of  the  Probate  Judge  until  offered  for  probate. 

35  §  10520  G.  C.  See  Wilberding  vs.  Miller,  90  O. 

35*  §  10521   G.  C.  S.  281;  Iline  vs.  Cowles,  18  O.  C.  C. 

35t  §  1070.  (N.S.)   578;   affirmed,  no  op.,  86  O. 

S.  350. 


§  1087  WILLS  PKOBATE  982 

Whether  or  not  the  statute  contemplates  that  a  formal  applica- 
tion be  filed,  the  practice  now  is  that  such  an  application  should 
be  filed.'*' 

The  advantages  of  having  such  an  application  are  many.  It 
gives  the  Probate  Court  the  jurisdictional  facts  upon  which 
its  action  must  rest.  These  facts  are,  first,  that  the  testator  is 
dead ;  second,  that  he  left  a  last  will  and  testament ;  third,  that 
the  paper  offered  is  his  last  will  and  testament ;  fourth,  that  he 
resided  in  the  county  at  the  time  of  his  death,  or  had  an  estate 
therein.  In  addition  to  these  jurisdictional  facts,  the  applica- 
tion should  show  whether  or  not  the  testator  left  a  surviving 
consort,  and  should  give  the  name  of  such  sur^'iving  consort,  as 
well  as  the  names,  ages  and  address  of  all  of  the  testator's  next 
of  kin.  These  matters  are  proper,  in  order  that  the  Court  may 
order  notice  to  be  given  as  provided  in  a  previous  section.'^ 

This  application  should  not  only  state  the  names  of  the  next 
of  kin,  resident  in  the  State,  but  should  give  all  the  names 
whether  resident  in  the  State  or  not.  It  is  matter  of  informa- 
tion that  may  be  useful  to  the  Court  and  others  interested  in 
the  estate  in  future  proceedings.  As  tlie  Court  acts  upon  the 
information  contained  in  this  application,  it  should  require  the 
same  to  be  swora  to.  The  application  may  be  made  by  any 
one  who  knows  the  facts  and  has  some  interest  in  the  estate. 

3  6  Usually,   however,   the  petition  residence    of    the    surviving    widow 

for   probate   embraces   that   for   the  or  husband  and  next  of  kin,  and,  al- 

appointment  of  executor  or  admin-  leging    that    the    paper    or    papers 

istrator  with  the  will  annexed,  and  presented    constitute    the    last    wilJ 

is  presented  by  the  party  claiming  and     testament     of     the     deceased, 

the    office;    and    imder    the    simple  prays  his  appointment,  making  due 

probate    practice    of    our    American  reference   to   the   foundation   of   his 

County   Courts,   the   petitioner   sets  claim  for  the  office,  and  his  willing- 

forth,  in  a  printed  blank,  the  facts  ness    to    qualify    according   to    law. 

of   death    and   last   domicile   of   the  Schouler  on  Exrs.  65. 

deceased,   the   names   and   places   of  '"  §§  10506-7    CJ.    L.,    §  10G7. 


983  APPLICATION  FOR  §  1088 

§  108S.     rorm  of  application  for  probate  of  will. 

Probate  Court County,  Ohio. 

In  the  Matter  of 

The  Last  Will  and  Testament  of 
,  deceased. 

Application  to  Admit  to  Probate. 
To  the  Probate  Court  of  said  County.- 

Your   petitioner   respectfully   represents   that ,   late 

a  resident  of  the  township  of in  said  county,  and  leav- 
ing an  estate  therein,  died  on  or  about  the day  of 

A.  D.  190 .  . ,  leaving  an  instrument  in  writing,  herewith  produced,  purport- 
ing to  be  h.  .  .  .   last  will  and  testament: 

That  the  said died  leaving h .  .  . 

widow.  .  .who  resides  at and  the  following  named  per- 
sons h...only  next  of  kin,  to-wit; 


AGE  OF 
MINORS. 


DEGREK  OF  KINSHIP. 


P.  O  ADDRESS. 


Your  petitioner  offers  said  will  for  probate  and  prajs  that  a  time  may 
be  fixed  for  the  proving  of  the  same,  and  that  said  above  named  persons, 
resident  in  this  State,  may  be  notified  according  to  law  of  the  pendency  of 
said   proceedings. 

. ,  Petitioner. 

The  State  of  Ohio, County,   ss. 

The  above  named being  first  duly  sworn,  says  that  the 

facts  stated  and  allegations  in  the  foregoing  application  contained,  are  true 
as... he  verily  believes. 


Swora    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 

Probate    Judge.sT* 

We,   the  undersigned of   the   within    named    dece- 
dent, hereby  waive  further  notice,  and  consent  to  the  probate  of  said  will. 

Dated  this day  of 190 


§  1089.     Time  of  hearing. 

The  statute,  see  §  1067,  relating  to  wills  does  not  fix  the  kind  of 
notice  that  must  be  given  or  when  the  case  should  be  set  for  hear- 
ing, or  what  length  of  time  should  intervene  between  the  filing 
of  the  probate  of  the  will  and  the  time  when  the  witnesses  should 
be  heard  to  testify.  It  therefore  comes  under  the  provisions  of 
a  general  section,^^  and  the  Court  may  fix  the  time  of  hearing 
and  order  notice  thereof  to  be  given  for  such  a  length  of  time 
as  it  shall  deem  reasonable.  This  practice  varies  in  different 
Courts.  Some  require  at  least  one  day  to  intervene  between 
the  filing  and  the  probate  of  the  will,  unless  all  parties  in  in- 
terest agree  to  the  immediate  action  of  the  Court.     Others  re- 

"•  See  §  1092.  See  §  1067. 

38  §  1120.5  G.  C,  §37. 


§  1090  WILLS  PKOBATE  984 

quire  a  greater  length  of  time  to  intervena  The  length  of 
time  between  the  offering  for  probate  and  the  time  when  the  will 
would  be  heard  should  be  sufficient  to  allow  any  person  who  is 
interested  in  the  will,  or  required  to  be  notified,  time  and  op- 
portunity to  reach  the  Probate  Court  after  service  of  notice 
was  given  to  such  person.  Indeed,  while  sec.  11206,  G.  C,  pro- 
vides that  the  Court  may  fix  the  time  and  length  of  service,  it 
is  not  to  be  left  arbitrarily  to  the  Court.  The  Court  must  fix  a 
reasonable  time. 

§  1090.     Entry  fixing  time,  etc. 

The  will  having  been  produced  in  Court,  and  the  proper  ap- 
plication filed,  the  Court  should  then  determine,  first,  when 
the  testimony  would  be  heard  for  admitting  the  will  to  pro- 
bate ;  second,  how  service  of  notice  should  be  made  on  those 
required  by  statute  to  be  notified ;  third,  that  testator  died  a 
resident  of  the  county  in  which  the  will  is  offered  or  had  an 
estate  therein ;  and  fourth,  the  length  of  time  that  should  inter- 
vene between  the  service  of  the  notice,  and  the  time  of  probat- 
ing the  will.  The  entry  for  probating  the  same  may  be  in  the 
following  form : 

{Title.) 

This  day  came  A.  B.  and  filed  in  this  Court  the  will  of  C.  D.,  and  his 
application  therewith  to  have  the  same  duly  probated.  Whereupon  the 
Court  finds  that  the  allegations  of  said  application  are  true  and  it  is 
ordered  that  the  time  set  for  hearing  the  testimony  of  witnesses  to  probate 

the  same  be  on  the day  of at o'clock. 

And  it  is  ordered  that  said  A.  B.  notify  (here  insert  the  names  of  next 
of  kin)  by  delivering  to  each  of  them  personally  a  written  notice  of  the 
time  when  said  will  will  be  for  hearing,  which  notice  shall  be  served  upon 
them  at  least days  before  the  time  so  fixed. 

§  1091.     To  whom  notice  should  be  given. 

In  the  absence  of  a  statutory  requirement,  the  Court  might 
admit  a  will  to  probate  without  giving  any  notice,  as  the  pro- 
ceeding to  probate  a  will  in  our  State  is  that  kind  which  was 
kno^vTl  at  common  or  ecclesiastical  law  as  being  in  "  common 
form."  Xo  notice  being  required,  other  than  that  mentioned 
in  the  statute,  when  the  statute  is  followed,  it  will  be  sufficient 

Prior  to  1878  the  statute  did  not 
require  any  notice  to  be  given. 


985  SERVICE  OF  NOTICE  §  1092 

and  therefore  the  proceedings  are  binding  on  infants  and  per- 
sons non  compos  mentis.  The  statute  directs  that  no  will  shall 
be  admitted  to  probate  without  notice  to  the  widow  or  hus- 
band and  next  of  kin  of  the  testator  being  a  resident  in  the 
State.^' 

It  is  never  necessary  m  any  case  in  the  probate  of  a  will  to 
appoint  a- guardian  ad  litem  over  an  infant  or  person  under 
disability.  *•* 

If  a  party  has  no  notice  and  the  will  is  refused  probate,  such 
party  may  offer  the  will  again  for  probate.**^* 

§  1092.     Service  of  notice. 

No  provision  is  made  as  to  who  shall  make  the  service,  or  in 
what  manner  it  shall  be  made,  except  that  it  shall  be  in  such  a 
manner  and  for  such  a  time  as  the  Probate  Court  shall  direct 
or  approve.  Usually  it  is  made  by  the  person  filing  the  appli- 
cation, and  it  is  the  general  practice  of  Courts  to  require  the 
notice  to  be  delivered  personally.  It  is  the  practice  of  some 
Courts  that  where  there  are  no  persons  resident  in  the  State  who 
are  by  law  required  to  be  notified,  to  give  notice  by  publica- 
tion ;  and  even  some  Courts  have  adopted  this  form  of  notice 
when  some  of  the"  next  of  kin  are  non-residents  of  the  county, 
but  residents  of  the  State.  I  presaime  that  such  a  notice  would 
be  legal,  as  the  entire  matter  is  left  in  the  discretion  of  the 
Court.  But  the  better  practice  is,  in  all  cases,  to  require  the 
notice  to  be  served  personally  on  the  next  of  kin  resident  in  the 
State,  If  they  are  quite  numerous,  and  the  estate  is  small,  the 
Court  might  be  justified  in  ordering  a  notice  to  be  given  by  pub- 
lication. If  such  a  notice  be  given  by  publication,  it  ought  to 
be  for  at  least  three  weeks  in  a  newspaper  of  general  circula- 
tion in  the  county  where  the  will  is  offered  for  probate.     The 

39  §§  10506-7   G.  C.,    §  1067.  not  familiar  with  any  such  statutory 

4f'  In  Feuchter  vs.  Keyl,  48  0.  S.  provision. 
370,  Minshull,  J.,  intimates  that  no-  ■lo*  Feuchter    vs.    Keyl,    48    0.    S. 

tice  must  be  given  the  executor,  and  357. 
that  the  statute  so  requires.     I    am 


§1093  WILLS PROBATE  986 

person  making  the  service  should  make  an  affidavit  of  the  time 
and  mode  of  making  the  same.*^ 

§  1093.     Form  of  notice. 

State  of  Ohio, County,   ss. 

Probate  Court. 

To  A.  B.,  of County: 

We    command   you    that   you    notify ."  (five    days* 

notice  required  in  Hamilton  county)  that  a  paper  purporting  to  be  the  last 
will  and  testament  of  C.  D.,  late  of  said  county,  deceased,  has  been  filed  in 
the  office  of  the  Probate  Court  of  said  county;  and  that  the  same  will  be 
offered  for  probate  and  record  before  the  judge  of  the  Probate  Court  at  the 

Court    House    in iii    said    county,    on    the day    of 

A.  D.  190... at o'clock M. 

In  witness  whei-eof,  I,    ,  judge  of  the  said  Court,  have 

hereunto  set  my  hand  and  affixed  the  seal  of  the  said  Court,  at 

this day  of A.  D.   190 

Probate  Judge, 

By Deputy   Clerk. 

State  of  Ohio, county.     Personally  appeared  before 

me,   the  undersigned,  judge  vi  the  Probate   Court,   in   and  for  the  county 

of A.  B..  who  upon  oath  deposes  r.nd  says  that  on 

the day  of 189.  ...  he  served  the  persons  named  herein 

personallv  with  a  true  copy  of  the  within  notice. 

A.   B. 

Sworn   to  and  subscribed  before  me,  this day  of 

A.  D.   189 

Probate  Judge. 

By Deputy  Clerk.*2 

§  1094.     Essentials  to  be  proven  in  probate  of  a  will. 

In  order  to  justify  the  Court  in  admitting  a  will  to  probate, 
the  following  essential  points  should  be  proven  by  the  pro- 
ponent: First,  the  death  of  the  testator  must  be  shown.  This 
is  an  essential  without  which  there  can  be  no  valid  probating  of 
a  will,  for  until  a  person  is  dead  there  can  be  no  last  will  and 
testament,  and  any  proceeding  had  during  the  lifetime  of  a 
testator  would  be  of  no  effect  whatever.*^  The  second  essen- 
tial is  that  the  testator  at  the  time  of  his  death  was  either  a 
resident  of  the  county  in  which  the  will  is  offered  for  probate 
or  had  an  estate  therein,"     The  third  matter  to  be  shown  is 

41  Persons  of  age  may,  when  not  ^3  See     Schouler     on     Wills,     55, 
under   disability,    in  writing,  waive       §  119, 

service     of     notice.       See     form     in  a  See    previous     §§  10S6,     10S6a, 

§  1088.  §§  72,  74,  where  the  decea=ed  was  a 

42  Whit.  Prob.  Code.     See  §1145,  resident    of    t!-.e    state     tlie    brtter 
Spoliated  wills.  doctrine  is  that  it  must  be  probated 

in  the  county  of  testator's  domicile. 


987  ESSENTIALS  TO  BE  PROVEN  §  1095 

that  the  parties  required  by  statute  to  be  notified  have  been 
notified  in  the  manner  required  by  a  former  order  of  the  Court. 
This  fact  should  not  he.  overlooked.  While  the  Couil;  can  fix  the 
manner  in  which  the  parties  are  to  be  notified,  the  statute  is 
positive  in  its  direction  as  to  who  shall  be  notified.  Fourth, 
it  must  be  proven  that  the  instrument  presented  is  the  will  of 
the  testator,  and  that  it  was  by  him  executed  as  provided  by  our 
statutes — ^  that  is,  he  must  have  signed  it  at  the  end;  he  must 
have  attached  his  signature  himself,  or  some  one  else  have  done 
so  for  him  at  his  request.  The  testator  must  have  signed  it  or 
have  acknowledged  his  signature  to  two  witnesses,  who  must 
have  attached  their  names  as  witnesses  to  tke  will,  knowing  at 
the  time  they  did  so  that  it  was  the  will  of  tbe  testator ;  **^  and 
furthermore,  it  must  be  shown  that  at  the  time  the  testator 
signed  the  will,  lie  was  G-f  full  age,  of  sound  mind  and  memory, 
and  not  under  any  restraint.  How  these  matters  may  be  proved 
will  be  discussed  in  subsequent  sections.*^ 

§  1095.  Examination  of  witnesses  to  will.  ' '  The  court  shall 
cause  the  witnes.ses  to  the  will,  and  such  other  witnesses  as  any 
person  interested  in  having  it  admitted  to  probate  desire,  to 
come  before  the  court.  Such  witnesses  shall  be  examined  in 
open  court,  and  their  testimony  reduced  to  writing  and  filed." 
[R.  S.  §5926.]^" 

§  1096.  What  witnesses  may  be  heard,  etc. 
As  a  matter  of  course,  the  Probate  Court  has  authority  to  com- 
pel by  subpoena  all  witnesses  who  are  within  its  jurisdiction  ^'^^ 
to  attend  court  and  give  their  testimony  the  same  as  in  any 
other  proceeding  in  the  court.  The  above  section,  soon  after 
its  adoption,  was  construed  by  our  Supreme  Court,*''  where  it 
was  held  "that  under  the  proceedings  authorized  for  admitting 
a  will  to  probate,  persons  interested  to  resist  the  probate  of 
the  will,  are  not  allowed  to  introduce  evidence  to  contest  its 
validity."     So  it  may  be  said  that  under   the   provisions  of 

44a  There   is   some   controversy  as  46a  This    now    extends    to   persons 

to  wliethcr  the  witnesses  must  know  residing   in  the  adjoining  county, 

that  it  is  a  will  tliey  are  signing.  47  Matter   of   Hathaway,   4   0.    S. 

See  §  1040  et  seq.,  note.  383;    Kamman    vs.    Kamman,    6    O. 

45  See  §110(5.  App.   455;    Barr  vs.   Cloisterman,  3 

46  §  10516     G.     C.       See     §§  1086,  C.  C.  441;  2  C.  D.  251. 
1086a,  As  to  jurisdiction. 


§  1097  WILLS PROBATE  988 

the  above  section,  the  Court  should  call  the  witnesses  to  the  will, 
and  it  has  been  held  that  it  is  proper  to  call  all  the  witnesses  to 
the  will,  but  if  only  two  are  called,  it  will  not  be  en-or  for 
which  the  proceedings  might  be  reversed.'*® 

The  provision  of  the  above  section  as  to  the  mode  of  proving 
a  will  are  conclusive,  and  they  must  be  strictly  pursued  in  pro- 
ceedings to  probate  a  will.  In  addition  to  the  witnesses  who 
have  attached  their  signatures  to  a  will,  the  Court  may  hear 
sucii  other  witnesses  as  any  person  interested  in  having  the  will 
probated  may  desire  to  have  brought  before  tlie  Court  for  that 
purpose.  A  person  who  is  not  interested  in  having  the  will  ad- 
mitted to  probate  could  not  call  a  witness.  He  must  not  merely 
be  interested  in  the  result  of  the  admission,  to  probate,  but 
must  ha\"e  an  interest  in  having  the  will  probated,  and  not  have 
an.  interest  in  having  it  fail.  It  is  not  always  clear  what  range 
of  examination  should  be  allowed  of  the  witnesses  called  to 
prove  the  will,  but  it  seems,  if  the  power  be  limited,  so  that 
only  witnesses,  may  be  called  by  a  person  interested  in  having 
the  will  admitted  to  probate,  that  any  interested  person  should 
be  pemiitted  to  cross-examine  such  witness  within  reasonable 
limits,  and  assist  the  Court  in  ascertaining  whether  the  testi- 
mony offered  is  sufficient  to  justify  the  Court  in  making  an 
order  admitting  the  will  to  probate.  The  matters  to  be  in- 
quired into  are  as  to  the  capacity  of  a  testator  to  make  a  will 
and  whether  it  was  made  in.  accordance  with  the  statute.  A 
further  matter  may  be  gone  into  as  to  the  jurisdiction  of  the 
Court,  but  usually  this  matter  rests  upon  the  application  filed 
for  probate  of  the  will.*^ 

§  1097.    Form  of  testimony. 

It  will  be  observed  by  the  provisions  of  sec.  10516,  G.  C.*^* 
the   testimony   must   be   reduced   to  writing   and  filed   in   the 

48Mosier    vs.    Harmon,    29    0.    S.  nesses     mav     be     heard.       §§10520, 

220;    Wadsworth   vs.   Purdv,    12    C.  10521  G.  C\,  §  1086a. 

C.   (N.S.)    8;   31  C.  C.  IIO."  Due  execution   of   a  will  may  be 

49  See    extended    opinion    in    the  proven  by  witnesses  independent  of 

Estate  of  Jones,  2  N.  P.  190;  2  Dec.  the  subscribing  witness,  and  even  in 

409.  contradiction     of     such     witnesses. 

The  issue  of  jurisdiction  to  enter-  Watts'  Will,  19  N.  P.  225 ;   27  Dec. 

tain    the    application    may    now    be  87. 

made,  and  upon  that  question  wit-  ^^*  §  1095. 


989  FORM  OF  TESTIMONY  §  1098 

Court  The  usual  form  of  such,  testimony  is  as  follows,  al- 
though, if  there  be  additional  testimony,  it  must  all  be  written 
and  filed  with  the  proceedings: 

Probate  Court,  Clark  County,  Ohio. 

In  the  matter  of  )  jjo 

the  Will  of  i 
J ^  deceased.         )        Testimony  of  Witnesses. 

The  State  of  Ohio, County,  ss. 

Personally  appeared  in  open  Court,  A.  B.  and  C.  D.,  who  being  first  duly 
sworn  to  testify  to  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  in  relation  to  the  execution  of  the  last  will  and  testament  of  E.  F., 
deceased,  depose  and  say :      That  they  were  present  at  the  execution  of  the 

instrument  of  writing  now  before  them  bearing  date  the day  of 

A.  D.  190.  . ,  purporting  to  be  the  last  will  and  testament  of  E. 

F.,  deceased;  that  they  respectively  subscribed  their  names  thereto  as 
witnesses  at  the  request  of  said  testator  and  in  his  presence;  that  they  saw 
said  testator  sign  said  instrument  at  the  end  thereof,  and  heard  him  ac- 
knowledge the  same  to  be  his  will;  and  that  said  E.  F.  at  the  time  of 
executing  the  same  was  of  full  age,  and  of  sound  mind  and  memory,  and 
not  under  any  restraint. 

Sworn  to  before  me  and  signed  in  my  presence  by  said  witnesses  in  open 

Court  this day  of 190 ..  . 

Probate  Judge. 

Deputy  Clerk. 

§  1098.  How  will  proved,  if  witnesses  unknown  or  incom- 
petent, etc.  ' '  When  a  will  is  offered  for  probate,  if  it  appears 
to  the  court  that  a  witness  thereto  is  gone  to  parts  unknown ;  or 
if  the  witnesses  were  competent  at  the  time  of  attesting  its 
execution  and  afterward  became  incompetent,  or  the  testimony 
of  a  witness  can  not  be  obtained  -^^dthin  a  reasonable  time,  the 
will  may  be  admitted  to  probate  and  allowed  upon  such  proof 
as  would  be  satisfactory,  and  in  like  manner  as  if  such  absent 
or  incompetent  witness  were  dead."     [R.  S.  §  5927.]^° 

§  1099.    Sufficient  testimony  where  witnesses  are  dead  or 

absent. 

The  requisites  of  the  above  section  are,  first,  that  the  witness 
has  gone  to  parts  unknown.  If  known,  the  testimony  must 
either  be  had  in  open  Court,  as  provided  by  sec.  10516,  G.  C, 
or  by  a  commission,  as  provided  by  sec.  10518,  G.  C. ;  or  sec- 
ondlj^  the  witness  must  have  become  incompetent  or  have  be- 
come so  situated  that  his  testimony  could  not  be  obtained  in 

60  §  10517  G.  C. 


§  1099  WILLS PROBATE  990 

any  reasonable  time.  This  might  allow  testimony  to  be  taken 
of  an  absent  witness'  signature,  even  though  his  place  of 
residence  was  known,  if  his  testimony  could  not  be  obtained  in 
a  reasonable  length  of  time.  However,  the  Court  should  re- 
quire the  direct  testimony  of  the  witness  where  the  procuring 
of  the  same  would  not  delay  the  matter  to  such  a  length  of  time 
that  it  might  result  in  injury  to  the  estate.  If  the  above  mat- 
ters appear  to  the  Court,  then  the  will  shall  be  allowed  upon 
such  proof  as  would  be  satisfactory  in  like  manner  as  if  such 
absent  or  incompetent  witness  were  dead.  But  nowhere  does 
the  statute  say  in  what  manner  the  proof  should  be  offered  if 
a  witness  is  dead.  In  such  cases,  says  a  recent  law  writer,^^  and 
which  accords  with  the  practice  in  our  State :  "  If  one  or  more 
of  the  subscribing  witnesses  to  a  will  are  dead,  or  absent  from 
the  jurisdiction  of  the  Court  before  which  the  will  is  offered 
for  probate,  proof  of  the  genuineness  of  the  signatures  of  such 
attesting  witnesses  and  of  testator  is  sufficient,  with  the  aid  of 
this  presumption  that  the  remaining  acts  were  properly  done, 
to  establish  the  validity  of  tke  wall."  ^' 

The  same  rule  applies  where  one  of  the  subscribing  wit- 
nesses is  dead  or  beyond  the  jurisdiction  of  the  Court,  and  the 
rest  do  not  remember  the  facts  of  execution.  Proof  of  the  gen- 
uineness of  the  signatures  of  testator  and  the  witnesses  will, 
with  the  aid  of  the  presumption  under  discussion,  establish  the 
validity  of  the  will.^^ 

This  legal  presumption  is,  of  course,  greatly  aided  by  the 
direct  testimony  of  such  subscribing  witnesses  as  can  be  pro- 
duced at  probate,  or  whose  evidence  can  l>e  taken  by  deposition, 
that  the  acts  necessary  to  a  legal  execution  actually  took  place. 
Under  these  circumstances  a  will  may  be  admitted  to  probate 
upon  such  evidence."  ^^ 

51  Page  on  Wills,  §  373,  p.  442.  12  Cush.   332;    Sullivan's  Will,    114 

52  Citing  Barnewall  vs.  Murrell,  Mich.  189 ;  Jackson  vs.  Van  Dusen, 
108    Ala.    366;    Robinson    vs.    Brew-       5  Johns   (N.  Y.)   144. 

ster,   140   111.   649;    Hobart  vs.   Ho-  53  Tyler's    Estate,    121    Cal.    405; 

bart,   154   111.  610;   Taylor  vs.   Cox,  Slingloff  vs.  Brimer,  174  111.  561, 

153  111.  220;  Scott  vs.  Hawk,  107  la.  55  (Jones'   Will),   Jones   vs.   Rob- 

723;    Allison's  Estate,    104  la.   130;  erts.  9fl  Wis.  427. 

73  N.  W.  489;  Nickerson  vs.  Buck,  In  Matter  of  Dreyer    (N.  Y.  Law 


991  SUFFICIENT  TESTIMONY  §  1100 

Tbe  Court  is  not  limited  to  witnesses  who  can  testify  to  any 
one  particular  fact,  but  may  hear  such  testimony  as  will  tend 
to  complete  a  chain  of  testimony  which  will  establish  the  fact 
that  the  will  presented  for  probate  is  the  last  will  and  testament 
of  the  deceased. 


§  1100.     Form  of  testimony  of  subscribing  witnesses. 

The  testimony  given  where  witnesses  absent  or  dead  must  be 
reduced  to  writing  the  same  as  if  the  witnesses  were  present. 
The  following  is  a  general  form : 


Probate  Court County,  Ohio. 

In  the  Matter  of  )  jjo 

The  Will  of  C 

\  Testimony. 

The  State  of  Ohio County,  ss. 

Personally  appeared  in  open  Court ,  who  being  first 

duly  sworn  to  testify  to  the  truth,  the  whole  truth,  and  nothing  but  the 

truth,  in  the  matter  of  the  will  of deceased,  depose  and 

say:      That whose  name  appears  as  one  of  the  subscrib- 
ing witnesses  to  the  last  will  and  testament  of ,  deceased, 

hereunto  annexed,  has  since  the  date  of  said  will A.  D. 

100.  ....  deceased that  we  are  each  of  us  well  acquainted 

with  the  handwriting  and  signature  of  said  deceased  witness,  and  that  the 

signature  of  said purporting  to  be  his,  as  one  of  the 

subscribing  witnesses  to  said  will,  is  the  true  and  genuine  signature  of  the 
said  deceased  witness 


Sworn  to  before  me  and  signed  in  my  presence  in  open  Court  this 

day  of 190.  .  . 

Probate  Judge. 

5;  1101.  When  Court  may  issue  commission  to  take  their 
testimony.  "The  court  may  issue  a  commission  with  the  will 
annexed,  directed  to  any  suitable  person  or  persons,  to  take  the 
deposition  of  a  witness  to  a  will  who  resides  out  of  its  jurisdic- 
tion, or  who  resides  within  it,  but  is  infirm  and  unable  to  attend 

J.,  Feb.  21,  1892, )  the  will  was  made  either  could  be  found.     Probate  was 

in    1867.     Neither  of   the   witnesses  denied,  "  although,"  said  Ransom,  S., 

were    produced,    the    testator's    son  "  I   am  morally  convinced  that  the 

and   daughter    (proponents)    proved  paper  was  properly  executed."  Redf. 

his  signature;  in  their  younger  days  Sur.  Prac.  1,39;  See  Woerner  on  Ad- 

they   knew   the   two   witnesses,    but  min.  474.   Stephen  Dig.  Ev.,  art.  66; 

were  unable  to  prove  the  signature  Rice  Probate  Law,  84 ;  1  Green.  Ev. 

of  either,  and  did  not  know  where  §  572. 


§1102  WILLS PROBATE 


992 


court.  Every  deposition  so  taken,  certified,  and  returned  by  one 
or  more  of  the  persons  named  in  such  commission,  shall  be  as 
valid  as  if  taken  in  open  court."     [R.  S.  §  5928.]=*' 


§  1102.     Order  to  take  testimony  of  absent  witness. 

WTien  it  is  made  to  appear  to  the  Court  that  some  witness  re- 
sides out  of  the  jurisdiction  of  the  Court,  or  is  infirm  and  un- 
able to  attend  Court,  then  the  Court  shall  direct  that  a  oommis- 
sion  be  taken,  to  take  the  testimony  of  such  a  witness.  The 
following  may  be  used  as  an  entry : 

{Title.) 

It  appearing  to  the  Court  that  A.  B.  and  C.  D.,  subscribing  witnesses  of 
the  last  will  and  testament  of  E.  F..  are  now  residents  of  Chicago,  111.,  and 
without  the  jurisdiction  of  this  Court.  It  is  therefore  ordered  that  a 
commission  be  executed,  with  the  said  will  thereto  annexed,  to  X.  Y.  of  Chi- 
cago, 111.,  to  take  the  deposition  of  said  subscribing  ^vitness  and  return 
the  same  duly  executed  with  all  convenient  speed  into  our  said  Court.s^ 


§  1103.     Form  of  commission. 


State  of  Ohio, County,   ss. 

To  X.  Y.,  Greeting: 

Know  ye,  That  we,  in  confidence  of  your  prudence  and  fidelity,  have 
appointed  you,  and  by  these  presents  do  give  to  you  full  power  and 
authority  to  examine  and  take  the  depositions  of  A.  B.  and  C.  D.,  subscrib- 
ing witnesses  to  the  last  will  and  testament  of  E.  F..  deceased,  hereto 
annexed,  late  of  the  county  of ,  in  the  State  of  Ohio,  de- 
ceased, and  therefore  we  command  you  that  at  certain  days  and  places 
appointed  by  you,  you  cause  the  said  A.  B.  and  C.  D.  to  be  brought  before 
you.  and  then  and  there  examine  them  on  oath  or  affirmation  first  taken 
before  you  touching  the  due  execution  of  said  will  of  the  said  E.  F., 
deceased,  and  that  you  reduce  such  examination  to  writing,  and  return  the 
same,  together  with  this  commission  and  the  will  of  the  said  E.  F.,  deceased, 
thereto  annexed,  closed  up  under  your  seals  and  our  said  Probate  Court, 
with  all  convenient  speed. 

In  testimony  whereof,  I, ,  judge  of  the  said  Court,  have 

hereunto  set  mv  hand  and  affixed  the  seal  of  said  Court,  at 

this day  of A.   D.    190.  ..  . 

Probate  Judge.ss 

56  §  10518  G.  C.  takes   the    statement    of   parties    to 

57  Statute  does  not  say  how  it  that  effect.  It  may  be  required  by 
shall    appear   to    the    Court   that    a  affidavit. 

witness   is  without   the  jurisdiction  58  Whittaker's  Probate  Code, 
of   the   Court.      Usuallv   the    Court 


993  COMMISSION,    ETC.  §  1104 

§  1104.     Keturn  of  commissioner. 

In  the  matter  of  the  last  will  and  testament  of  E.  F.,  deceased,  I,  X.  Y., 
duly  appointed  and  commissioned  by  the  judge  of  the  Probate  Court  of  the 

county  of ,  in  the  State  of  Ohio,  to  take  the  testimony  of 

A.  B.  and  C.  D.,  the  subscribing  witnesses  of  the  last  will  and  testament 

of  E.  F.,  deceased,  late  a  resident  of  said  county  of ,  in  the 

State  of  Ohio,  which  commission  and  the  said  will  are  hereunto  annexed, 

do   hereby   certify,    that   in    pursuance   of    said    commission    I 

caused  A.  B.  and  C.  D.,  said  subscribing  witnesses  as  aforesaid,   to   come 

personally  before  me,  at ,  who  being  by  me  first  duly  sworn 

according  to  law,  to  speak  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  concerning  and  in  relation  to  the  execution  of  said  will,  depose  and 
say  that  they  were  present  at  the  making  of  said  will,  hereto  attached, 
marked  "  A,"  and  at  the  request  of  the  deceased,  subscribed  their  names 
to  said  will  as  witnesses  in  the  presence  of  the  deceased,  (and  of  each 
other)  ;  that  they  saw  the  said  E.  F.,  deceased,  sign  said  will  (or  heard)  ; 
him  acknowledge  the  same  to  be  his  last  will  and  testament;  that  the  said 
E.  F.,  deceased,  was,  at  the  time  of  making,  signing  and  sealing  said  last 
will  and  testament,  of  legal  age,  and  of  sound  mind  and  memory,  and  under 
no  undue  or  unlawful  restraint  whatsoever. 


I,  X.  Y., ,  do  further  testify  that  said  testimony  was  re- 
duced to  writing  by  myself,  in  the  presence  of  said  witnesses  respectively, 

and  subscribed  by  said  witnesses  in  my  presence,  on  the day  of 

190.. .. 

In  witness  whereof,  I  have  hereunto  set  my  hand, ,  this 

day  of 190 

,  Commissioner.5» 

§  1105.  Admission  of  will  to  probate.  "If  it  appears  that 
such  will  was  duly  attested  and  executed,  and  that  the  testator, 
at  the  time  of  executing  it  was  of  full  age,  of  sound  mind  and 
memory,  and  not  under  restraint,  the  court  shall  admit  the  will 
to  probate."      [R.  S.   §  5929.]*^° 

§  1106.    Sufficient  proof,  etc. 

The  previous  section  of  the  General  Code  merely  requires 
that  the  Probate  Court  shall  find  that  the  will  has  been  executed 
as  provided  by  sec.  10503,*'^°*  G.  C.  The  thoughtless  manner 
in  which  wills  are  sometimes  executed,  and  the  informality 
surrounding  such  execution,  failing  to  leave  an  impression  on 
the  witnesses  of  the  importance  of  the  document  they  have  at- 
tested, often  results  in  the  kind  of  testimony  that  gives  a  couri. 
some  trouble  in  arriving  at  its  conclusions.  While  the  probating 
of  a  will  is  an  ex  parte  proceeding,  yet  it  is  one  of  a  judi- 

59  Whittaker's  Probate  Code.  if    believed,    to    admit    the   will    to 

60  §  10519  G.  C.  probate,  notwithstanding  the  other 
60*  §  1018.  witness  to  the  will  fails  to  remem- 
The    testimony    of    one    attesting  her  or  denie?  compliance  by  testator 

witness  that  all  the  formalities  by  witli    one    or   more   of   the   essential 

testator  and  both  attesting  witnesses  requirements    to    its   due    execution, 

have    been    performed,    to    the    due  In  re  Watts,  27  Dec.  87;    19  N.  P. 

execution    of    the   will,   is   suflicient,  225. 


§  1106  WILLS  PROBATE  994 

cial  character,  and  the  ordinary  rules  of  evidence  must  control 
ilie  Court  in  arriving  at  its  conclusion.  In  this  kind  of  a  pro- 
ceeding, like  others,  the  burden,  rests  on  him  who  seeks  to  es- 
tablish the  validity  of  the  will,  and  it  must  be  done  by  a  fair 
preponderance  of  all  the  evidence.*"'*  The  Court  need  not  be 
satisfied  beyond  a  reasonable  doubt,  but  it  should  appear  from 
all  the  testimony  that  it  is  reasonably  certain  that  the  stat- 
utory requirements  have  been  complied  wdth.  In  this  kind  of 
a  proceeding,  like  some  others,  one  fact  being  proven,  the  law 
presumes  another.  Thus  where  a  will  had  an  attestation 
clause  that  ''it  is  signed,  sealed  and  published  in  the  pres- 
ence "  of  the  witnesses,  if  it  was  shovni  that  the  witnesses  signed 
the  instrument,  the  presumption  would  follow  that  it  was 
signed  in  the  presence  of  the  testator.^^  And  where  a  paper 
propounded  as  a  will  is  shown  to  have  been  signed  by  the  al- 
leged testator,  and  the  requisite  number  of  witnesses,  in  the 
absence  of  any  satisfactory  evidence  to  the  contrary,  the  pre- 
sumption is  that  all  the  fonnalities  have  been,  complied  with.*^ 
And  it  has  been  held  that  mere  forgetfulness  of  the  accessible 
subscribing  witness,  as  to  certain  necessary  facts  of  execution, 
does  not  avoid  the  prima  facie  case  made  out  by  proof  of  the 
genuineness  of  the  sig-natures  of  testator  and  the  subscribing 
witnesses.®^ 

Where  the  subscribing  witness  testified  that  she  signed  as 
witness  in  the  presence  of  the  testator  and  at  his  request,  but 
could  not  remember  that  she  saw  the  signature  of  testator,  it 
was  held  to  make  out  a  prima  facie  case  for  the  validity  of  the 
will.  So  where  the  subscribing  T\atnesses  identify  their  sig- 
natures, but  have  no  recollection  of  having  attested  the  instru- 

eo*  In   Re  Ludlow.  4  N.  P.  9.  ,  6  561;    Hobart    vs.    Hobart,    154    111. 

Dec.   lOG.  610;   Nickerson  vs.   Buck,    12   Cseh. 

61  Carpenter  vs.  Denoon,  29  O.  S.  (Mass.)  332;  in  re  Kellum,  52  N. 
379.     See  §§   1042-1046.  Y.  517;  in  re  Hunt,  110  N.  Y.  278; 

62  Page  on  Wills.  §  371,  p.  440.  Luper  vs.  Werts,  19  Ore.  122;  Sulli- 
es Page  on  Wills.  441,  §  372,  cit-       van's  Will,  114  Mich.  189;  Abbot  vs. 

ing   'ryler's    Estate;    121    Cal.    405;  Abbot,    41    Mich.    540;    Gable    vs. 

53  Pac.  928;  Gillis  vs.  Gillis,  96  Ga.  Rauch,  50  S.  Car.  95;  27  S.  E.  555; 

1;    Canatsey   vs.   Canatsey,   130   111.  Welch  vs.  Welch,  9  Rich.   (S.  Car.) 

397;    Slingloff  vs.   Bniner.    174   111.  133 ;  Will  of  O'Hagan,  73  Wis.  78. 


995 


SUFFICIENT    TROOF 


§  1106 


tiieiit,  or  of  the  circumstances  of  execution,  the  presumption 
tliat  it  was  proj>erly  executed  will  uphold  it  in  the  absence  of 
clear  and  satisfactory  proof  to  the  contrary,"* 

If  the  testimony  of  subscribing  witnesses  are  not  sufficient, 
the  Court  should  hear  other  testimony,  for  the  will  should  not 
fail  by  reason  of  forgetfulness  or  other  acts  of  the  witnesses. ** 

Where  it  is  shown  that  the  testator  signed  the  will,  it  is  pre- 
sumed that  he  signed  it  understandingly,*®  and  it  is  also  pre- 
sumed that  the  will  is  made  free  from  restraint  and  that  the 
testator  has  the  capacity  to  make  a  valid  will ;  where  it  is  not 
shown  that  the  testator  labored  under  some  disability,®^  the 
Court  must  determine  the  facts  from  the  testimony  of  wit- 


eiHobart  vs.  Hobart,  154  111.  610. 

The  following  testimony  was  held 
to  be  insufficient  to  sustain  an  order 
admitting  a  will  to  probate.  There 
were  three  subscribing  witnesses  to 
the  will;  one  was  dead  at  the  time 
it  was  probated,  the  other  two  were 
examined  before  the  probate  judge. 
Neither  of  these  upon  examination 
had  any  recollection  of  signing  their 
names  as  witnesses  to  the  will,  al- 
though they  recognized  their  own 
signatures.  Neither  of  them  remem- 
bered to  have  seen  the  will,  nor 
could  they  tell  whether  they  signed 
it  in  the  presence  of  the  testator, 
or  at  his  request,  or  in  the  presence 
of  each  other.  They  would  not  say 
whether  that  was  the  last  will  and 
testament  of  the  deceased,  or  not; 
nor  did  they  know  that  the  signa- 
ture to  the  will  was  the  genuine 
signatm-e  of  Baudendistle.  They 
were  of  opinion  that  about  the  year 
1842  he  was  of  sound  and  disposing 
mind  and  memory,  but  did  not  know 
that  he  was  so  at  the  time  the  will 
purports  to  have  been  signed,  nor 
could  they  tell  whether  he  was  un- 
der any  restraint.  Kuntz  vs.  Bau- 
dendistle,   Dayton,    Ohio,    Dec.    225. 


65  That,  while  the  due  execution  of 
a  will  cannot  be  assumed  in  the  face 
of  positive  evidence  to  the  contrary, 
merely  because  it  has  been  signed 
and  attested  in  due  form,  yet  mere 
failure  of  the  attesting  witnesses,  or 
their  denial  of  the  facts,  will  not 
defeat  it  if  it  can  be  established  by 
other  evidence. 

Neither  failure  of  memory,  nor  the 
corrupt  or  false  swearing  of  attest- 
ing witnesses  will  be  allowed  to  de- 
feat the  ^vill,  if  its  due  execution  can 
be  shown  by  other  testimony.  3 
Redf.  on  Wills,  chapt.  1,  §  3,  p.  9; 
Clark  vs.  Dunnavant,  10  Leigh,  13; 
1  Redf.  on  Wills,  chapt.  4,  §  19,  p. 
22;  Dean  vs.  Dean,  27  Vt.  746;  El- 
liott vs.  Elliot,  10  Allen,  357 ;  Law- 
yer vs.  Smith,  8  Mich,  411;  Tilden 
vs.  Tilden,  13  Gray,  110;  Ella  vs. 
Edwards,  16  Gray,  91;  Dewey  vs. 
Dewey,  1  Mete.  349;  Chaffee  vs. 
Bap,  Miss.  Con.,  10  Paige  85; 
Adams  vs.  Field,  21  Vt.  256;  Bow- 
man vs.  Christman,  4  Wend.  277;  2 
Phill.  on  Ev.,  935,  note;  Kirk  V8. 
Carr,  54  Penn.  St.  285.  Haynes  vs. 
Haynes,   33   0.   S.   598. 

66  Page  on  Wills,  §§  380,  447. 

67  Page  on  Wills,  §  383,  p.  45L 


§  1107  WILLS PROBATE  996 

nesses  and  cannot  refuse  to  admit  a  will'because  of  an  absurd  o:f 
ridiculous  proposition  in  the  will.''* 

Where  a  will  was  properly  signed  by  two  witnesses,  neither 
of  whom  saw  the  testator  subscribe  his  name  to  the  paper,  one, 
however,  heard  him  expressly  acknowledge  the  same,  but  the 
other  did  not,  the  juiy  found,  from  the  surrounding  circum- 
stances, that  the  will  was  properly  executed/" 

In  another  case  one  witness  was  dead,  and  the  other  witness 
could  not  testify  that  he  saw  the  signature  on  the  will,  or  that 
thler©  was  an  acknowledgmient  by  the  maker  that  it  was  his 
will  at  the  time  the  witness  was  asked  to  attach  his  signature; 
and  in  this  case,  there  being  no  other  testimony,  the  will  was 
refused  admission  to  probate.^'' 

While  the  Probate'  Judge  should  fee.1  satisfied  that  the  for- 
malities of  the  statute  have  been  complied  with  in  the  execution 
of  the  instrument,  and  that  the  paper  ought  to  be  admitted  to 
probate,  yet  he  should  only  have  a  reasonable  assurance  of 
that  fact  and  should  not  by  reason  of  possible  doubts,  refuse 
admission,  for  the  statute  has  provided  by  way  of  contest  a 
method  by  which  this  matter  may  be  fully  gone  into,  and  the 
questions  passed  upon  by  a  jury  under  instructions  of  a  com- 
petent Court/^ 

§  1107.     Entry  ordering  probate. 

When  the  Court  is  satisfied  that  the  paper  presented  should 
be  admitted  to  probate,  an  entry  of  that  fact  should  be  placed 
on  record.  It  is  a  common  practice  to  have  this  entry  only  state 
the  requirements  of  sec.  10519,  G.  C.,^^*  but  it  seems  that 
it  ought  also  to  state,  unless  the  previous  entry  has  made  a 
finding  of  that  fact,  that  the  testator  was  a  resident  of  the 
county,  or  had  an  estate  therein.     The  following  will  serve  as  a 

68  7n   re   Oskamp's   Will,   7    X.    P.  7i»  §  1105. 

665;  5  Dec.  584.  A  proceeding  where  a  will  is  pro- 

69  See  Raudebaugh  vs.  Shelley,  6  pounded  for  probate  is  not  adver- 
0.  S.  307.  "  sarj',  but  entirely  ex  parte,  and  noth- 

70  Keyle  vs.  Feuchter,  56  0.  S.  424.       ing    more    is    required    than   that    a 
This    will,    it    seems,    might    have       prima  facie   case   is   made   that   the 

been    admitted    upon    the    presump-  testatrix  was   of  full   age,   of  sound 
tion  following  the  attestation  clause.  mind  and  memory,  and  free  from  re- 
71 7n  re   Ludlow,    4    N.    P.    99;    6  straint;  that  the  paper  writing  pro- 
Dec.  106.  pounded  was  in  writing,  and  that  it 


997  ORDER  OF  PROBATE  §  1108 

form  of  entry,  and  is  made  to  be  used  where  a  codicil  is  at- 
tached to  tiie  will : 

FORM  OF  ORDER  OF  PROBATE. 

In  the  Matter  of  the  Probate  of  the  Last  Will  of ,  de- 
ceased,   190 .... 

Notice  of  the  time  of  hearing  of  this  application  having  been  given  (or 
waived)  as  heretofore  ordered  by  the  Court,  and  the  same  now  coming  on  to 

be    heard Thereupon    said    will    was    duly 

proved  by  the  oaths  of and ,  sub- 
scribing witnesses  thereto    ( and  the  oaths  of and 

,   subscribing  witnesses   to  the  codicil,   a  part  thereof )    who 

duly  sworn  and  examined  in  open  Court,  and  testimony  reduced 

to  writing  and  filed  therein 

and  it  appearing  to  the  Court,  from  the  testimony  of  said  witnesses  "  that 
said  will  (and  codicil)  is  duly  attested  and  executed;  and  that  the  testator 
at  the  time  of  executing  the  same  was  of  full  age,  of  sound  mind  and  mem- 
ory, and  not  unde-  any  restraint,"  and  that  said  testator  was  a  resident  of 
and  had  an  estate  in  this  county.  It  is  now  ordered  that  said  will  (and 
codicil)  be  admitted  to  probate  and  filed  and  that  the  same,  together  with 
the  testimony  so  taken  as  aforesaid,  be  recorded.  Citation  ordered  and  is- 
sued to ,  widow  of  said  decedent,  to  elect  as  to  said  will 

13  required  by  law. 

Probate    Judge.^a 

§  1108.    Effect  of  order. 

The  statute  expressly  provides  that : 

"Unless  it  has  been  duly  admitted  to  probate  or  record,  as 
provided  in  this  chapter,  no  will  shall  be  effectual  to  pass  real 
or  personal  estate. ' '     [R.  S.  §  5942.] ''' 

It  therefore  follows  that  until  a  will  is  duly  admitted  to 
probate,  where  it  is  a  domestic  will,  or  to  record  where  it  is 
a  foreign  will,  that  no  title  is  passed  thereby,  and  that  the  title 
remains  in  the  heirs  at  law  of  the  testator.'^* 

The  Probate  Court  being  a  court  of  record,  its  orders  im- 
pute absolute  verity,  and  such  orders  can  not  be  attached  in  a 

is  signed  at  the  end  thereof  by  her,  iiig  and  filed  by  order  of  the  court, 
and  attested  and  subscribed  in  her  and  that  thereupon  the  court  or- 
presence  by  two  or  more  competent  dered  tiie  will  to  be  filed  and  admit- 
witnesses  who  saw  the  testatrix  sub-  ted  to  record,  is  sufiicient  evidence 
scribe  or  heard  her  acknowledge  the  that  the  will  was  provetl  in  accord- 
same.  Estate  of  Nicholson.  2  N.  P.  ance  with  law,  and  ordered  to  be 
(N.S.)    189;  49  Bull.  379,  recorded.     Holman  vs.   Riddle,  8  O. 

72  The  order  of  a  Court  of  Probate  S.  384. 

which  recites  that  the  will  was  pre-  '^  §  10541   G.  C. 

sented  to  the  court  for  probate,  and  "^^  Swazey  vs.   Blackman,  8   O.  5; 

the  subscribing  witnesses  were  sworn  Woodbridge   vs.    Banning,    14    O.    S. 

and    examined    in    open    court,    and  328. 
their  testimony  was  reduced  to  writ- 


§  1108  WILLS PROBATE  998 

collateral  proceeding.  In  reference  to  the  effect  of  such  order 
of  probate,  our  Supreme  Court  has  laid  down  the  following 
propositions : 

'^  1.  That  the  Probate  Court  has  exclusive  jurisdiction  to  take 
the  proof  of  wills,  admit  them  to  probate,  and  record  them  to- 
gether with  the  testimony.  A  record  thus  made,  in  pursuance 
of  these  provisions,  is  the  only  one  authorized  or  required  by 
law,  and  without  such  probating  and  recording,  wills  are  wholly 
inoperative  in  Ohio  for  any  purpose  whatever. 

"  2.  That  from  the  time  the  will  is  probated  and  recorded, 
it  is  binding  and  conclusive  in  every  respect-,  except  as  evidence 
against  interested  persons,  who  may  contest  it  within  the  time 
limited. 

"  3.  If  no  sucJi  contest  is  made  by  interested  persons  within 
the  time  limited,  then  it  becomes  also  forever  binding  upon 
them,  as  it  had  been  on  all  others  in  the  world,  from  the  date 
of  the  probate  and  record. 

"  4.  If  interested  persons,  as  they  may,  do  contest  the  will, 
the  probate  and  record  are  not  thereby  annulled,  or  the  force 
and  validity  of  the  will  weakened  during  the  pendency  of  the 
proceedings  contesting  it.  It  still  remains  in  full  force  for  all 
purposes,  except  as  evidence  on  the  trial  of  the  issue  between 
the  contestants  and  contestees,  where  the  validity  of  the  will  is 
directly  called  in  question.  Even  here,  and  for  this  pui^oose, 
the  record  is  still  accompanied  by  a  legal  presumption  in  its 
favor,  for  on  the  trial  it  is  prima  facie  evidence  of  the  validity 
of  the  will,  and  this  presumption  attends  it  until  the  verdict  of 
a  jury  against  it  has  been  retvimed,  and  a  proper  judicial  de- 
cree setting  it  aside  hasi  been  rendered."  ^^ 

On   the  contest  of   a  will   in  the  of  the  testator'8  estate,  but  not  of 

Court   of   Common   Pleas   the  ques-  the    wife's    separate    property     (as 

tion     of     whether     the     will     was  where  she   owned   part  of  the   land 

properly    probated    is    not    involved  devised  to  her  in  the  will).     Hibbs 

and  can  not  be  gone  into.     By  bring-  vs.  Ins.  Co.,  40  0.  S.  543. 

ing  such  action  the  plaintiffs  admit  _       It  has  been  held  that  tlie  title  of  a 

the  probate  of  the  will,  and  will  not  devisee  relates  back  from  the  probate 

on   trial   therefore,  be   permitted   to  of   the   will   and    takes    effect   as   of 

question   or  deny  the  regularity  of  the  time  of  the  death  of  the  testator, 

the  order  of  the  Probate  Court,  or  and   that    if    a   devisee   conveys   the 

the  authority  or  jurisdiction  of  the  same    in    the    interim    between    the 

court  that  made  it.     Stacy  vs.  Cun-  death  of  the  testator  and  probate  of 

ningham,  69  0.  S.  176.      "  the    will,    he    takes    the    legal    title 

75  Lessees    of    Swazey's   Heirs   vs.  upon  the  probate  of  the  will  as  trus- 

Blackmann,  8  0.  19;  Brown  vs.  Bur-  tee  for  his  grantee.   IMiller  vs.  Poug- 

dick,  25  0.  S.  260.  lass,    11    C.    C.    (N.S.)    205;    30   O. 

The  probate  of  a  will  and  the  wid-  C.  C.  666. 

ow's  election  are  constructive  notice  If    the    finding    of    the    Probate 


999  RECORD  OF   TITLE  BY  WILL.  §  1109 

§1109.  Record  of  title  by  will.  "When  admitted  to  pro- 
bate every  will  sliall  be  filed  in  the  office  of  the  probate  judge 
and  recorded,  together  with  the  testimony,  by  him  or  his  clerk 
in  a  book  to  be  kept  for  that  purpose."     [R.  S.  §  5930.]^'^ 

§  1109a.  Certificate  of  probate  judge  when  will  devises  real 
estate.  "When  a  will  is  admitted  to  probate  which  devises 
real  estate  situated  in  the  county  where  it  is  recorded,  or  when 
the  certified  copy  of  a  will  is  filed  in  the  probate  court,  as  here- 
inafter provided  in  this  chapter,  which  devises  real  estate  in 
the  county  where  it  is  recorded,  upon  recording  such  will,  the 
court  shall  immediately  transmit  to  the  recorder  of  the  county 
in  which  the  will  is  recorded,  a  certificate  containing  the  fact  of 
such  filing  and  probate,  the  name  of  the  testator,  the  name  of 
the  devisees  of  the  real  estate,  and  a  description  of  such  real 
estate  as  the  will  contains,  and  separately  state  with  each  parcel 
the  names  of  the  devisees  thereof,  together  with  the  volume  and 
page  of  the  record  of  the  will."     [R.  S.  §  5930.] '6* 

§  1109b.  Record  by  county  recorder.  "Upon  receipt  of 
such  certificate,  the  recorder  shall  record  it  in  the  books  pro- 
vided for  the  recording  of  deeds  and  index  such  records  in  the 
name  of  the  testator  as  grantor  and  the  devisees  as  grantees,  in 
the  index  provided  for  the  record  of  deeds."     [R.  S.  §  5930.] '^^f 

§  1109c.  Fees.  "For  recording  and  indexing  such  certifi- 
cate, the  recorder  shall  be  paid  the  fees  provided  by  law  for  the 
recording  and  indexing  deeds,  and  the  probate  judge  be 
allowed  the  fees  the  law  provides  for  similar  certificates,  which 
fees  of  recorder  and  probate  judge  the  judge  shall  tax  in  the 
costs  of  probating  and  recording  such  will,  and  collect  as  other 
costs."     [R.  S.  §5930.]-'^$ 

§1110.  Certified  copy  of  will,  etc.,  evidence.  "A  copy  of 
such  recorded  will,  with  a  copy  of  the  order  of  probate  annexed 
thereto,  certified  by  the  judge  of  probate  under  seal  of  his  court, 
shall  be  as  effectual  in  all  cases  as  the  original  would  be,  if  pro- 
duced and  established  by  proof."     [R.  S.  §  5931.]^^ 

§  1111.  Recorded  in  each  county  where  real  estate  is  sit- 
uate. "If  real  estate  devised  by  will  is  situated  in  any  other 
county  than  that  in  which  the  will  is  proved,  an  authenticated 
copy  of  the  will  and  order  of  probate  shall  be  admitted  to  record 
in  the  office  of  the  probate  judge  of  each  county  in  which  such 

Court   on   jurisdictional   matters    is  This  is  no  part  of  the  probate  of 

questioned,   it  must  he   in  a  direct      the  will.    Wolf  vs.  Menager,  14  Dec. 
proceodins.     See  §1112.  128;  48  B.  617. 

76  §  10525  G.  C.  76t  §  10527  G.  C. 

76*  §  10526  G.  C.  76$  §  1052S  G.  C. 

77  §  10529  G.  C. 


§  1111  WILLS PROBATE  999a 

real  estate  is  situated,  upon  the  order  of  such  judge,  and  shall 
have  the  same  validity  therein  as  if  probate  had  been  had  in 
such  county. "     [  R.  S."  §  5932.  ]  ^« 

APPLICATION    FOR   TRANSFER   AND    RECORD    OF   REAL    ESTATE 

DEVISED. 

Probate  Court County,  Ohio. 

In  the  Matter  of  the  Estate  of  No 

Application    for   Transfer   and 

Deceased.  record  of  Real  Estate  Devised. 

Now  comes and  represents  to  the  Court  that  by  the  terms 

of   the   last   will    and   testament   of    ,    deceased,    late    of    said 

county,  which  w- ill  was  duly  admitted  to  probate  on  the  ....  day  of , 

A.  D.  19. .,  and  recorded  in  Vol P^ge   ,  of  the  \Vill  Records 

of  said County,  certain  real  estate  was  devised  to 

That  the  following  is  a  description  of  said  real  estate  such  as  is  con- 
tained in  the  will,  to-wit:*  (Here  describe  said  real  estate  in  the  language 
of  the  will,  and  if  not  specific,  such  as  would  be  necessary  in  making  a 
deed,  then  after  giving  said  description,  say  "The  following  is  a  specific 
description  of  said  real  estate,"  and  describe   it  accordingly.) 


*If  there  are  several  parcels  devised  separately  to  different  persons 
■write  the  word  "To"  and  give  the  name  of  the  devisee  of  the  first  parcel 
before  describing  it.  And  then  follow  similarly  with  the  next  devisee  and 
his  parcel,  and  so  on. 

*  Your  petitioner  represents  that  all  the  provisions  and  conditions 
of  said  will  have  been  fully  complied  with  upon  the  part  of  said  devisee. 

Wherefore,    ...  .he  prays  for  an  order  to  the  County  Auditor  directing 

the   transfer  of   said   real   estate   upon  the  tax   duplicate   to    

name,  and  for  a  certificate  to  the  County  Recorder,  as  provided  by  law. 


*If  not  so.  then  cross  out  or  alter  accordingh',  the  part  relating  to 
order  for  transfer.  The  certificate  to  Recorder  should  issue  even  if  the 
conditions  of  the  will  have  not  been  complied  with. 

The  State  of  Ohio^    County,  ss. 

being  first  duly  sworn  says  that  the  facts  stated  in  the 

foregoing  application  are  true  as    ....he  verily  believes. 

Sworn  to  before  me  and  subscribed  in  my  presence  this    dav  of 

,  19...  ; 

Probate  Judge. 

By  , 

Deputy  Clerk. 


78  §  10530  G.  C  is  a  mistake  the  probate  judge  might 

Persons  are  bound  by  the  will  as      be    responsible.      Wolfe   vs.    Menger, 
it  appears  on   the  record.     If  there       15  Dec.  128.  i 


999b  FILING   AND    RECORDING.  §  1111 

CERTIFICATE    FOR    TRANSFER    AND   RECORD    OF    REAL   ESTATE 

DEVISED. 

Probate  Court County,  Ohio. 

To  the  Auditor  and  Recorder  of  said  County: 

I  hereby  certify  that  on  the    day  of    ,  A.   D.   190.  .,  the 

last  will    and   testament   of    ,   late   of   said   county,   was   duly 

admitted  to  probate  in  this  Court,  and  the  same  has  been  duly  recorded  in 

Vol ,  pfiRe of  the  Records  of  Wills  in  this  office.     That  by 

the  terms  of  said  will  certain  real  estate  was  devised  to   

That  the  following  is  a  description  of  said  real  estate  such  as  is  con- 
tained in  the  will,  to-wit:*  (Here  describe  said  i-eal  estate  in  the  language 
of  the  will,  and  if  not  specific,  such  as  would  be  necessary  in  making  a  deed, 
then  after  giving  description,  say  "The  following  is  a  specific  description 
of  said  real  estate,"  and  describe  it  accordingly.) 


*If  there  are  several  parcels  devised  separately  to  different  persons 
write  the  word  "To"  and  give  the  name  of  the  devisee  of  the  first  parcel 
before  describing  it.  And  then  follow  similarly  with  the  next  devisee  and 
his  parcel,  and  so  on. 

*And  it  appearing  to  the  satisfaction  of  the  Court  that  the  terms  of 
said  will  have  been  fully  carried  out  on  the  part  of  the  devisee  hereinbefore 
named,  it  is  ordered  that  such  real  estate  be  transferred  upon  the  duplicates 
of  the  county  to  the  name  of  the  said  devisee;  and  that  this  certificate  then 
be  presented  to  the  said  County    Recorder  for   record. 

Witness  my  hand  and  the  seal  of  said  Court  this day  of , 

190.  , 

Probate  Judge. 

By , 

Deputy  Clerk. 


*If  not  so,  then  cross  out  or  alter  accordingly,  the  part  relating  to 
order  for  transfer.  The  certificate  to  Recorder  should  issue  even  if  the 
conditions  of  the  will  have  not  been  complied  with. 

Probate  Court,    County,   Ohio,  A.  D.   19.  .. 

In  the  Matter  of  the  Estate  of  Authority  to  Transfer  and  Record 

Real  Estate  Devised. 

Deceased. 

This  day  came    and  filed  herein  h.  .  .  .    application  duly 

verified,  for  an  order  to  the  County  Auditor  directing  the  transfer  upon  the 

tax   duplicate  of    County,   of  certain   real   estate   devised   by 

deceased,   and  for  a  certificate  to  the  County   Recorder. 

Upon  consideration  whereof,  the  Court  finds  that  by  the  terms  of  the 

will  of  said  decedent,   said  real   estate  was  devised  to 

And  that  the  description  of  said  real  estate  such  as  is  contained  in  said 
will,  and  the  specific  description  of  said  real  estate,  are  as  set  out  in  said 
application. 

*And  it  appearing  to  the  satisfaction  of  the  Court  that  the  terms  of 
said  will  have  been  fully  coiiijilied  with  on  the  part  of  said  devisee  herein- 
before named,  it  is  ordered  that  said  real  estate  be  transferred  upon  the 


§  1111a  WILLS PROBATE  9:)9c 

duplicate  of  the  county  to  the  name  of   ,  and  that  a  certificate 

of  this  order,  too-ether  Avith  tlie  description   contained   in  the  application, 
issue  to  said  Auditor  and  Recorder,  as  required  by  law. 


Judge. 


*If  not  so,  then  cross  out  or  alter  accordingly,  the  part  relating  to 
order  for  transfer.  The  certificate  to  Recorder  should  issue  even  if  the 
conditions  of  the  will  have  not  been  complied  witli. 

§  1111a.     Record  of  Title  by  descent. 

The  county  recorder  shall  not  record  any  deed  of  absolute 
conveyance  of  land  until  it  has  been  presented  to  the  county 
auditor,  and  by  him  indorsed  "transferred,"  or  "transfer  not 
necessary. ' '  Before  any  real  estate,  the  title  to  which  shall  have 
passed  under  the  laws  of  descent  shall  be  transferred  as  above 
provided,  from  the  name  of  the  ancestor  to  the  heir  at  law  or 
next  of  kin  of  such  ancestor,  or  to  any  grantee  of  such  heir  at 
law  or  next  of  kin ; 

Affidavit  of  lien.  And  before  any  deed  or  conveyance  of 
real  estate  made  by  any  such  heir  at  law  or  next  of  kin  shall 
be  presented  to  or  filed  for  record  by  the  recorder  of  any  county, 
such  heir  at  law  or  next  of  kin,  or  his  or  their  grantee,  his  agent 
or  attorney  shall  present  to  such  auditor  the  affidavit  of  such 
heir  or  heirs  at  law  or  next  of  kin,  or  of  two  persons  resident  of 
the  state  of  Ohio,  each  of  whom  has  personal  knowledge  of  the 
facts,  which  affidavit  shall  set  forth  the  date  of  such  ancestor's 
death,  and  the  place  of  residence  at  the  time  or  his  or  her  death ; 
the  fact  that  he  or  she  died  intestate ;  the  names,  ages,  and  ad- 
dresses, so  far  as  the  ages  and  addresses  are  known  and  can  be 
ascertained  of  each  of  such  ancestor's  heirs  at  law  and  next 
of  kin,  who  by  his  death  inherited  such  real  estate  and  the  rela- 
tionship of  each  to  such  ancestor  and  the  part  or  portion  of 
such  real  estate  inherited  ])y  each,  which  such  transfers  shall  be 
made  by  the  auditor  in  accordance  with  the  statement  contained 
in  such  affidavit. 

Indorsement  of  auditor.  And  such  auditor  shall  indorse 
upon  such  deed  or  conveyance  the  fact  that  such  transfer  was 
made  by  affidavit.  Such  affidavit  shall  be  filed  with  recorder 
of  the  county  in  which  such  real  estate  is  situated  at  or  before 
the  time  when  such  deed  or  conveyance  shall  be  filed  with  such 
recorder  for  record  and  shall  be  by  him  recorded  in  the  record 
of  deeds,  and  such  affidavit  of  descent  shall  be  by  him  indexed 
in  the  general  index  of  deeds,  in  his  office,  in  the  name  of  such 
ancestor  as  grantor  and  in  the  name  of  each  of  such  heirs  at 
law  or  next  of  kin  as  grantees  in  the  same  manner  as  if  such 
names  occurred  in  a  deed  of  conveyance  from  such  ancestor 
to  said  heirs  at  law  and  for  such  indexing  and  recording  the 
recorder  shall  receive  the  same  fees  as  are  provided  by  law  for 
the  indexing  and  recording  of  deeds. 


999d 


RECORD  OP  TITLE  BY  DESCENT 


§  1111a 


Prima  facie  evidence  of  title.  The  said  record  of  the  affi- 
davit above  mentioned,  shall,  in  the  trial  of  any  cause,  so  far  as 
competent,  be  prima  facie  evidence  only,  of  the  truth  of  the 
statements  made  therein  in  accordance  with  the  foregoing  pro- 
visions of  this  act,  but  the  truth  of  such  statements  may  be 
rebutted  or  overcome  by  any  competent  evidence. 

Penalty  for  false  statement.  '<  *  *  *  Any  person  or  persons 
who  shall,  wilfully  and  fraudulently  make  affidavit  to  any 
statement  above  mentioned,  which  shall  be  false,  knowing  the 
same  to  be  false  or  who  shall,  for  the  purpose  above  mentioned, 
deliver  to  any  county  auditor  for  the  purpose  of  obtaining  any 
such  transfer,  or  deliver  to  the  county  recorder,  for  the  pur- 
pose of  having  the  same  recorded,  any  such  affidavit  containing 
any  such  false  stateraents,  knowing  the  same  \o  be  a  false  state- 
ment, shall  be  guilty  of  a  misdemeanor  and  on  conviction 
thereof,  be  fined  in  any  sum  not  exceeding  five  hundred  dollars 
and  be  imprisoned  in  the  county  jail  not  to  exceed  six  months, 
or  both,  and  in  addition,  be  liable  in  damages  to  any  person 
who  may  be  injured  by  the  making,  filing,  recording  or  use 
as  aforesaid  of  such  affidavit."     [R.  S.  §  1159;  108  v.  282.]"* 

AFFIDAVIT    FOR    TRANSFER    AND     RECORD    OF    REAL    ESTATE 

INHERITED. 

i 

Deceased, 

State  of   Ohio, 
County,  ss. 


Heirs  at  Law. 


and 


being  first  duly  sworn,  says  — he —  is   ( are )    heir —  at  law  of , 

deceased ;   that  on  the    day  of    ,    19 .... ,   the  said 

died  intestate,  residing  at    ;    leaving 

the  persons  herein  designated,  all  h —  heirs  at  law  and  next  of  kin,  with 
their  age,  address,  relationship  and  portion  inherited  by  them  in  the  real 
estate  hereinafter  described: 


Name 

Agt'    1      Address 

Relationship 

Portion  Inherited 



That  on  the  day  of   ,  19 .... ,   ... 

was  duly  appointed  administrator  of  h.  .  estate  by  the  Probate  Court 
of County,  and  thereafter  filed  his  final  account  in  execu- 
tion  of   said   trust. 

'Iliat  said   ,  at  the  time  of  h.  .   decease,  was  seized  of 

the  following  described   real    estate : 


78a  §  2768  G.  C. 


§  1112  WILLS PROBATE  1000 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day  of 

,  19 * , 

The  object  and  purpose  of  the  above  provisions  of  our  statute 
is  to  create  a  system  of  registration  of  title  to  land  vrithin  each 
county  which  v^ill  show  the  true  condition  of  the  title  to  lands 
therein,  or  at  least  establish  that  the  apparent  owner  of  record 
is  to  be  considered  the  true  owner;  that  upon  record  so  made 
innocent  dona  fide  purchasers  may  rely,  and  be  justified  in  act- 
ing upon  the  information  thus  acquired.  And  the  same  con- 
struction should  be  given  to  the  above  provision  of  the  General 
Code  as  is  given  to  the  act  requiring  the  record  of  deeds. 
While  the  will  might  be  sufficient  to  transfer  title,  although  it 
was  not  recorded  in  the  county,  as  to  a  party  who  had  knowl- 
edge of  all  the  facts,  yet  if  the  heir-at-law  would  sell  the  land  to 
an  innocent  purchaser  before  the  will  was  left  for  record,  a 
good  title  would  be  conveyed.^® 

§  1112.  Uncontested  probate  after  one  year  binding-.  ' '  If, 
within  one  year  after  probate  had,  no  person  interested  appears 
and  contests  the  validity  of  the  will,  the  probate  shall  be  forever 
binding,  saving,  however,  to  infants,  and  persons  of  unsound 
mind,  or  in  captivitv,  the  like  period  after  the  respective  dis- 
abilities are  removed."     [R.  S.  §  5933;  103  v.  173.] «° 

The  above  section  is  very  much  similar  to  sec.  12087  G.  C. 
The  statute  of  limitations  in  contest  it  is  said  differs  from  the 
ordinary  statute  in  that  it  is  jurisdictional  in  its  nature,  and 
cannot  be  waived  by  consent  of  the  parties,  since  after  the 
limit  fixed  by  statute,  the  Court  has  no  jurisdiction  over  the 
subject  matter  of  the  contest.     And  even  where  the  ground  of 

79  Eggleston   vs.    Harrison,    61    0.  the  recording  in  such  other  counties 

S.  397 ;  Coe  vs.  Erb,  59  0.  S.  259.  is  not  made  a  condition  upon  which 

See    §  28.  the  estate  of  the  devisee  vests,  nor 

Upon   the   probate  of  a   domestic  does  the  failure  to  record  such  copy 

will,  the  title  of  the  devisee  becomes  and   order  of   probate   in   any   case 

vested  immediately,  and  by  relation,  defeat  the  title  of  devisee.     Carpen- 

as  of  the  date  of  the  death  of  the  ter  vs.  Denoon,  29  O.  S.  395. 

testator,  whether  the  lands  devised  See  §§  1086a,  1113a. 

be  situate  in  the  county  wherein  the  so  §  10531   G.   C. 

will  is  probated  or  in  another  county  §  12087   G.   C.   has  been  amended 

of  the   State.     It  is  true  that  pro-  to  require  a  contest  to  be  commenced 

vision  is  made  for  recording  a  copy  within  one  year  instead  of  two  years 

of  the  will  and  the  order  of  probate  after    the    will    has    been    probated, 

in  other   counties   where    lands    de-  Vol.   102,  p.  308. 
vised  by   the  will  are   situate;   but 


1001  NOTICE   OF   CONTEST  §  1112a 

contest  is  uiikiiown  to  the  heir,  or  was  not  discovered  by  him 
until  the  limit  for  contest  has  elapsed,  it  was  held  that  such 
heir  could  not  contest  the  will  under  the  statute,  and  that 
equity  would  grant  him  no  relief.*^ 

The  general  principle  of  the  statute  of  limitations,  that  dis- 
abilities cannot  be  tacked  together  to  take  the  case  out  of  the 
statute,  applies  in  cases  of  contest.^^  But  where  a  proceeding 
to  contest  a  will  is  commenced  within  the  limit  of  the  statutory 
period,  although  only  a  part  of  the  parties  interested  in  the  con- 
test are  made  parties  thereto,  the  right  of  action  is  saved  to 
all  who  are  ultimately  made  parties,  not"wdthstanding  that  some 
of  them  are  not  brought  in  the  case  until  after  the  period  of 
limitation  has  expired. ^^ 

The  action  to  contest  a  will  is  an  original  proceeding  orought 
in  the  Court  of  Common  Pleas.  But,  as  a  matter  of  course, 
cannot  be  brought  until  after  the  will  has  been  admitted  to 
probate,  for  until  such  is  the  case  there  is  no  will  to  contest.®* 

Where  a  will  was  set  aside  at  the  instance  of  one  who  ia 
within  the  saving  clause  of  the  statute  of  limitations,  it  is 
wholly  annulled,  and  the  entire  estate  is  to  be  distributed.®* 

§  1112a.     Contests,  etc. 

Only  such  persons  as  are  interested  in  the  will  at  the  time  it 
is  probated  can  enter  or  maintain  a  suit  to  contest  a  will.^^^ 

A  person  who  has  gone  into  possession  of  land  devised  to  him 
and  leased  the  same  knowing  the  contents  of  the  will,  can  not 
bring  or  maintain  the  action.®^*' 

A  legatee  who  has  accepted  a  portion  under  the  will  can 
not  bring  an  action  to  contest  while  he  retains  such  portion.^^° 
But  he  may,  if  it  is  personal  property,  tender  it  back  and  bring 
the  action.**'"^ 

81  Page  on  Wills,  372,  §  321.  §§  5858-5866  E.  S.  Kinkead's  Plead- 

52  Powell    vs.    Koehler,    52    O.    S.       ings,  §§  1207,  1208. 

103.  ssaDeBow   vs.    Fifth    Church,   23 

53  Bradford  vs.  Andrews,  20  O.  S.       Dec.  017. 

208.  8r,b  Lesley  vs.  Cockley,  32  0.  C.  C. 

SI  Id.  22.  29!). 

85  Meese  vs.  Keefc,  10  0.  362.  85c  Zinn  vs.  Ferris,  27  Dec.  27. 

As  to  proceedings  in  contest,  see 


§  1112b  SET   ASIDE    BY    AGREEMENT  1001a 

A  will  contest  can  not  take  the  place  of  an  action  to  quiet 
title ;  a  legatee  is  a  necessary  party. 

In  the  contest  of  a  will  there  is  no  appeal  from  the  Court  of 
Common  Pleas;  the  case  can  only  go  up  farther  by  error.^^® 
The  same  as  cases  that  are  tried  by  jury  as  distinguished  from 
those  triable  by  a  judge  sitting  as  a  Court  of  Equity. 

The  issue  of  the  capacity  of  plaintiff  to  bring  the  action  be- 
cause not  heir  or  next  of  kin  may  be  fried  as  a  preliminary 
issue.^^^  All  persons  interested  in  the-  will  at  the  time  of  trial 
must  be  made  parties ;  hence  grandchildren  born  after  the  com- 
mencement of  the  action,  but  before  trial,  are  not  bound.®^^ 
But  it  is  binding  upon  unborn  remaindermen.^^^ 

The  grantee  of  a  devisee  is  a  necessary  party.^^* 

A  subscribing  witness  may  testify  in  behalf  of  the  will  on 
contest,  even  though  he  was  testator's  attorney.^^^ 

A  three-fourths  verdict  of  the  jury  is  sufficient.^^^ 

§  1112b.     Set  aside  by  agreement. 

It  is  an  elementary  proposition  that  a  person  has  a  right  to 
dispose  of  his  property  as  he  may  see  fit;  the  only  condition  is 
that  he  must  exercise  a  free  will  when  he  is  so  doing,  and  be 
capaljle  of  exercising  it.  Yet  it  is  a  notorious  fact  that  if  the 
disposition  the  testator  has  made  of  his  property  does  not  suit 
his  heirs  at  law,  a  friendly  contest  is  begun,  only  slight  testimony 
for  plaintiff  is  introduced,  and  the  jury  brings  in  a  verdict  setting 
aside  the  will,  and  at  once  the  heirs  divide  up  the  property  to 
suit  themselves — according  to  a  pre-arrangement  between  them. 
One  court  has  recently  condemned  this  kind  of  action  and  held 
that  the  law  of  Ohio  forbids  the  setting  aside  of  a  will  by  con- 
sent or  the  collusion  of  those  who  are  interested  as  beneficiaries 
and  contestants,  and  the  continued  prosecution  of  the  suit  will 

85(1  Spangler  vs.  Beall,  19  O.  C.  C.  S5h  Stewart  vs.   O'Neal,   14   0.   L. 

:(N.S.)  512.  R.  533. 

85e  §  12086  G.  C.  8"  Sears  vs.  Stinebelfer,  89  0.  S. 

85f  Arnold  vs.  Pease,  17  N.  P.  228.  163. 

85g  Wallace  vs.  Ludwig,  18  0.  C.  ssj  Baird  vs.  Detrick,  20  N.  P.  207. 

C.    (N.S.)    422;   affirmed  no  op.,  91  ssk  Slemmons  vs.  Toland,  25  0.  C. 

O.  S.  397.  C.  (N.S.)  485. 


1001b  NOTICE  OF  CONTEST  §  1113 

not  be  permitted  after  the  facts  are  brought  to  the  attention  of 
the  court/^^ 

In  another  and  later  decision  the  court  questions  the  correct- 
ness of  the  holding  of  the  court  in  the  above  case,  and  holds  that 
a  plaintiff  in  a  suit  to  contest  a  will  does  not  lose  his  right  to  main- 
tain such  action  by  reason  of  having  entered  into  a  contract  with 
the  beneficiaries  under  the  will  not  to  resist  such  contest.^'"'™  Yet 
in  this  case  it  is  recognized  that  it  is  a  matter  of  serious  consider- 
ation whether  court  and  jury  may  ratify  an  agreement  of  parties 
to  set  aside  wills,  by  the  formal  rendition  of  a  verdict  and  judg- 
ment, and  there  may  be  serious  doubts  concerning  a  practice 
which  is  becoming  common,  to  have  wills  set  aside  by  agreement 
and  consent  of  all  parties  interested,  and  to  have  the  rule  of  des- 
cent substituted  for  the  law  of  the  will,  or  other  arrangements. 

It  is  difficult  to  know  just  how  to  reach  the  matter,  but  if  the 
courts  are  going  to  permit  the  heirs  at  law  to  enter  into  agree- 
ments whereby  they  will  share  in  the  estate  as  they  may  see  fit 
and  that  the  will  may  be  set  aside,  certainly  grave  question  is  cast 
upon  the  power  of  anyone  to  dispose  of  property  by  will.^^° 

§1113.  Duty  of  judge  on  notice  of  contest.  "When  the 
probate  court  receives  from  the  clerk  of  the  court  of  common 
pleas  a  certificate  that  a  petition  has  been  filed  in  that  court  to 
contest  the  validity  of  a  will  admitted  to  record  or  recorded 
in  the  probate  court,  that  court  forthwith  shall  transmit  to  the 
common  pleas  court  the  will,  testimony,  and  all  papers  relating 
thereto,  with  a  copy  of  the  order  of  probate,  attaching  them 
together  and  certifying  them  under  the  seal  of  the  court.  A 
copy  of  the  final  judgment  on  such  contest  shall  be  certified  by 
the  clerk  of  the  common  pleas  to  the  probate  court.  Such  clerk 
also  must  transmit  to  the  probate  court  the  will  and  other  papers 
transmitted  as  aforesaid  to  the  common  pleas  court ;  and  they 
shall  be  deposited  and  remain  in  the  probate  court."  [R.  S. 
§5936.]«« 

851  Walker  &  Hollister,  20  K   P.  The  Court  of  Common  Pleas  can 

225  Dot  appoint  a  receiver  to  take  charge 

ssmRohr  vs.  Gatch,  21  N.  P.  65.  of    real    estate    specifically    devised 

85n  See  Wagner  vs.  Ziegler,  44  O.  during  contest  of  will.     Burgess  vs. 

S  59;  Gugoltz  vs.  Gehrlaw,  130  Pac.  Sullivan,   2   N.    P.    (N.'S.)    327;    14 

E,'.  8.  I^cc.  712. 

In'  this  last  case  the  contestant  Any  person  interested  may  con- 
agreed  to  give  a  devisee  one-fourth  test  a  will.  This  would  include  the 
of  the  estate  if  she  would  not  oppose  creditor  of  an  lieir  who  has  obtained 
the  setting  aside  of  tlie  will,  etc.,  a  lien  by  levy  on  the  property  which, 
and  it  was  not  permitted.  in  the  absence  of  the  will,  would  go 
86  §  10534  G.  C. 


§  1114  ERROR — REPROPOUNDING  1002 

§  1114.    Error,  etc.^«^ 

Unless  the  cases  in  the  Supreme  Court  are  critically  exam- 
ined, considerable  confusion  will  arise  upon  the  question  as  to 
whether  proceedings  in  error  may  be  prosecuted  in  matters  re- 
lating to  the  probate  of  a  will.  In  the  case  of  Moiser  vs. 
Harmon,*^  it  was  directly  held  that  error  will  not  lie  to  review 
the  action  of  the  Probate  Court  made  in  admitting  a  will  to 
probate.  Yet  in  another  case,  where  it  was  sought  to  admit  to 
probate  a  lost  or  spoliated  will,  proceedings  in  error  were  en- 
tertained to  set  aside  the  admission  of  the  will  to  probate  on 
the  ground  that  sufficient  notice  had  not  been  given.^* 

In  a  more  recent  case,*^  it  was  held  that  an  application  to  the 
Probate  Court  to  admit  an  alleged  will  to  probate  is  a  special 
proceeding  within  the  meaning  of  that  clause  in  sec.  6007, 
P.  S.,  "  that  an  order  affecting  a  substantial  right  made  in  a 
special  proceeding  is  a  final  order,  and  therefore  may  be  va- 
cated, modified  or  refused  in  proceedings  in  error.  This  case, 
however,  was  decided  where  error  was  prosecuted  from  the 
Common  Pleas  to  the  Circuit  Court,  and  the  error  alleged  was 
a  refusal  of  the  Common  Pleas  to  admit  the  will  to  probate. 
It  therefore  does  not  conflict  with  Moiser  vs.  Harmon,®"  for 
that  case  was  upon  the  question  of  reviewing  an  order  of  the 
Probate  Court  refusing  to  admit  a  will  to  probate.  The  reason 
of  the  decision  in  Missionary  Society  vs.  Ely,^^  was  that  it  was 
the  only  way  in  which  the  Circuit  Court  could  review  such  an 
order;  and  the  reason  of  the  decision  in  Moiser  vs.  Harmon,®^ 
was  that  the  statute  made  ample  provision  by  proceedings  to 
contest  a  will,  and  therefore  no  proceeding  in  error  was  con- 
templated by  tlie  legislature  from  the  Probate  Court.  These 
cases  have  been  recently  reviewed,  and  it  was  held  that  an  order 
of  the  Probate  Court  admitting  a  paper  to  probate  as  a  last 

to  the  heir.     The  court,  in  the  case,  89Missionary  Soc.  vs.   Ely,  56  O. 

gives    a    prettv    broad    construction  S.  405. 

as    to    -who    niay    be    an    interested  90  29  0.  S.  220. 

partv.      Bloom  Vs.   Piatt,    78   0.    S.  9156  0.  S.  411. 

46.   '  92  29  0.  S.  220. 

86a  Error  may  be  prosecuted  on  The  regularity  of  an  order  to  pro- 
question  of  jurisdiction  of  the  court  bate  a  will  can  not  be  attacked  in 
under  §  10521  G.  C,  §  1086a.  a  trial  to  contest  the  will.     Stacey 

87  29  0.  S.  220.  vs.    Cunningham,   48    Bull.   991;    69 

88  Baugarth   vs.  Miller,   26   O.  S.  O.  S.  176. 
541. 


1003  APPEAL  §  1115 

will  and  testament  is  not  reviewable  on  petition  in  error,  though 
an  order  refusing  to  admit  puch  paper  to  probate  is  review- 
able,®^ It  would  therefore  follow,  where  the  Court  refused  to 
admit  a.  will  to  probate,  a  party  may  either  prosecute  an  appeal 
or  repropound  the  will  or  have  the  same  reviewed  in  proceedings 
in  error.  °* 

§  1115.    Repropounding  a  will. 

It  seemed  formerly  to  be  a  doctrine  laid  down  by  our  Courts 
that  if  the  Probate  Court  refused  to  admit  a  -svill  to  probate, 
that  any  interested  party  might  make  an  application  again  to 
probate  the  will.®^  At  the  time  these  earlier  decisions  were 
made,  it  was  not  required  by  statute  that  any  person  be  given 
notice  or  made  parties  to  the  proceedings  to  probate  the  will. 
Afterwards  it  was  required  to  make  certain  persons  parties,  and 
the  law  now  seems  to  be  that  any  person  who  is  interested  in  a 
will,  and  has  no  notice  of  the  proceedings  to  admit  said  will  to 
probate  until  it  is  too  late  to  perfect,  an  appeal,  to  the  Court  of 
Common  Pleas,  may  repropound  the  will,  even  though  the  for- 
mer order  of  the  refusal  has  not  been  vacated.®*' 

The  person  interested  in  a  will  means  not  only  the  heirs  of 
the  testator,  but  legatees  under  the  will.  If  a  will  should  be 
probated  and  afterwards  it  was  discovered  that  an  heir  had 
not  been  made  a  party  and  a  motion  is  made  to  repropound  the 
will,  which  is  done,  the  acts  of  the  person  appointed  executor 
when  the  will  is  first  probated  are  valid,  and  unless  for  good 
cause  shown,  no  new  appointment  need  be  made.  The  executor 
appointed  can  proceed  and  administer  the  trust. 

§  1115a.     Probating  second  will. 

"When  a  will  has  been  probated  can  the  court  probate  another 
will  before  the  will  first  probated  is  set  aside  in  an  action  to  con- 
test the  same,  is  a  question  not  free  from  difficulty.     I  think  it 

93Hollrah  vs.  Lasance,  63  0.  S.  Will,  G  0.  149;  In  re  Hunter's  Will, 
58,  16  C.  C.  187;  8  C.  D.  788.  6  0,  490;  Swazer  vs.  Blackman,  8 

94  Stee  §§  1153,  1086a,  as  to  ques-      0.  5. 

tion  of  jurisdiction  to  entertain  ap-  S''  Feuchtcr   vs.   Keyle,  48   0.   S. 

plication.  357;   Stacey's  Will,  4  N.  P.  143;  6 

95  In    the   Matter    of    Chapman's      Dec.  142. 


§  1115a  WILLS — PROBATE  1004 

will  be  conceded  that  under  the  laws  of  this  State  that  the  Pro- 
bate Court  can  not  set  aside  an  order  it  has  made,  and  the  only 
way  that  the  will  could  directly  be  set  aside  is  by  an  action  to 
contest.  But  what  is  there  to  prevent  the  Probate  Court  from 
admitting  the  second  will  to  probate,  if  it  is  shown  to  be  entitled 
to  probate,  that  is  that  the  testator  was  of  sound  mind,  etc.,  as 
provided  in  Sec.  1105.    Sec.  10579  G.  C. 

If  two  wills  are  probated,  then  as  a  matter  of  law  the  one  last 
made  would  be  the  one  to  prevail,  irrespective  of  the  priority  of 
probate.  It  is  a  matter  upon  which  there  is  a  diversity  of  opin- 
ion. Page  on  Wills,  §  322,  thinks  that  the  second  will  can  not 
be  probated  until  the  will  first  probated  is  set  aside.  He  says, 
however,  that  recently  it  has  been  held  to  the  contrarj^  It  seems 
to  the  writer  that  the  prevailing  opinion  of  the  authorities  is 
that  the  Probate  Court  may  admit  to  probate  a  will  of  a  deceased 
person,  notwithstanding  the  fact  that  it  has  previously  admitted 
a  will  of  such  person  to  probate. 

In  Bowen  vs.  Johnson,  5  R.  I.  199,  we  find  this  language : 

"Our  statute  nowhere  recognizes  in  express  terms  the  power 
of  our  courts  of  probate  to  revoke  a  probate  once  granted  by 
them;  leaving  that  just  and  necessary  power  implied  from  their 
general  power  'to  take  the  probate  of  wills  and  grant  administra- 
tion on  the  estates  of  deceased  persons'  *  *  *  no  one  can 
suppose  however  that  such  power  of  revocation  does  not  exist 
therein ;  that  if  probate  of  a  will  be  granted  and  the  time  of 
appeal  be  passed  inasmuch  as  their  jurisdiction  is  exclusive, 
etc.  Now  it  seems  to  be  quite  congruous  with  the  statute  mode 
of  conferring  this  power  of  revoking  the  old  probate,  to-wit,'as 
incidental  to  the  power  of  taking  probate  of  the  later  will  when 
discovered,  for  the  court  to  exercise  this  power  of  revocation  as 
incidental  to  the  new  grant  of  probate,  rather  than  to  make  it 
necessarily  the  subject  of  a  preliminary  and  separate  action."®^* 

96a  See  also  Waters  vs.  Stickney,  than  ordinary  weight  in  this  state. 
12    Allen     (Mass.),    p.     1,    where  See  also  Vance  vs.  Upson.  64  Tex. 

Justice  Gray  discusses  the  matter  266;    Besancon    vs.    Brownson,    39 

quite   lengthily   and    conies   to   the  Mich.   388:    Gaines  vs.  Hennen,  24 

same   conclusion.     As    our   probate  How.   (U.  S.)   553;   16  L.  Ed.  770; 

law  is  largely  taken  from  the  Massa-  40  C^c.  1224,  l^dS,  1235, 
chusetts  law,  this  opinion  is  of  more 


1004a  WILLS— PROBATE  §  1116 

§1116.     Appeal  from  refusal  to  admit  will  to  probate. 

"When  the  probate  court  decides  not  to  admit  a  will  to  probate, 
a  person  thereby  aggrieved  may  appeal  from  this  decision  to 
the  next  term  of  the  common  pleas  court,  by  filing  notice  of  an 
intention  to  do  so  within  ten  days  after  it  is  rendered."  [R.  S. 
§5934.]^' 


It  is  a  well-settled  principle  that  an  appeal  only  lies  for  such 
cases  as  is  provided  for  by  statute;  and  it  will  be  observed 
that  the  above  section  relating  to  appeals  applies  only  to  cased 
where  the  court  refuses  to  admit  the  will  to  probate.  It 
therefore  follows  that  no  appeal  will  lie  where  the  will  is  ad- 
mitted to  probate.  The  proceedings  providing  for  contest  fur- 
nish the  only  remedy  to  review  the  proceedings  to  probate 
the  will  where  the  Probate  Court  allows  the  will  to  be  pro- 
bated. In  order  to  have  the  right  under  the  above  section,  the 
notice  must  be  filed  with  the  court  within  ten  days  from  the 
time  the  order  of  probate  is  made.  The  statute  does  not  seem 
to  require  that  the  person  appealing  the  case  shall  give  a  bond, 
as  is  provided  for  generally  in  appeals  from  the  Probate 
Court.^^  When  such  notice  of  appeal  is  given,  the  court  should 
make  an  entry  of  that  fact  and  order  that  a  certified  copy  of 
the  order  of  the  Probate  Court  rejecting  the  will  should  be 
made  out  and  given  to  the  person  who  desires  to  appeal.  It 
is  the  duty  of  the  person  appealing  the  case  to  file  the  same 
in  the  Court  of  Common  Pleas,  and  while  the  above  section  does 
not  say  anything  about  a  bond,  the  provisions  of  sees.  11207-8-9, 
G.  C.,^^  may  apply  as  to  bond. 


§  1117.  How  appeal  perfected  and  proceedings  in  common 
pleas.  "The  person  appealing  shall  procure  and  file  in  the 
court  of  common  pleas  a  certified  copy  of  the  order  of  the  pro- 
bate court  rejecting  the  will,  together  with  the  will,  and  there- 
upon the,  appeal  will  be  perfected.  The  court,  on  the  hearing, 
shall  take  testimony  touching  the  execution  of  such  will  and 

97  §  10532  G.  C. 

98  §§  11207-8-n,  §  43,  but  no  doubt     99  §  43. 
bond  should  be  required. 


§  1117  WILLS — PROBATE  1004b 

have  it  reduced  to  writing.  The  final  order  of  the  common  pleas 
court,  together  with  the  will  and  testimony  so  taken,  shall  be 
certified  by  the  clerk  to  the  probate  court,  and  if  by  such  order 
the  will  is  admitted  to  probate,  the  will,  order,  and  testimony 
shall  be  recorded  in  the  probate  court."     [R.  S.  §  5935. ]"» 

100  §  10533  G.  C. 


The  Complete  Law 
and  Practice 


IN  THE 

Probate  Courts  of  Ohio 

INCLUDING  THE 

Administration  and  Settlement  of  Estates  of  Deceased   Persons — Including  the 
Inheritance  Tax  and  Administration   of    Estates   by   Trust   Companies — The 
Guardianship  of  Infants,   Imbeciles  and   Drunkards — The  Assignments  for 
Benefit  of  Creditors — The  Law   Relating  to  the   Execution,    Construction 
and    Probate   of   Wills — The   Statutes   of    Descent    and    Distribution — 
Dower — Trustees — Appropriation   of   Property — Adoption    of   Child- 
ren— Juvenile   Court    Proceedings — Mothers'    Pensions — Road    and 
Ditch  Appeals — Appeals  in   Condemnation  of  Road  Material — 
Appeals  in  Allowance  of  Sheep  Claims — Franchises — Proceed- 
ings    in    Aid     of     Execution     Habeas     Corpus — Contempt 
and   other   Miscellaneous  Matters  (other  than  Criminal) 
Within    the    Jurisdiction    of    the    Probate    Court. 

WITH 

COMPLETE  AND  PRACTICAL  FORMS 

BY 

WILLIAM  M.  ROCKEL, 

(of   the  Springfield   Bar,   late   Probate   Judge   of   Clark    County),    fonner 
Judge   of   Circuit   Court,    Second   Judicial   District 

THIRD  EDITION 


VOLUME  IL 


CINCINNATI, 

THE  W.  H.  ANDERSON  CO., 

1922 


1902 

COPTBTGHT    BY 

THE   W.  H.    ANDERSON  CO. 

1911 

Copyright  by 

THE  W.  H.  ANDERSON  CO. 

1912 

Copyright  by 

THE  VV.  H.  ANDERSON  CO. 

1922 

Copyright  by 

THE  W.  H.  ANDERSON  CO. 


1005 


FOREIGN    WILLS 


§1118 


CHAPTER  LIX. 

FOREIGN  WILLS. 


1118 
1119 


§  1119a 
§1120 

§1121 
§1122 
§1123 
§1124 

§1125 


§1126 

§1127 
§1128 
§1129 


Introductory,  definition,  etc. 
Will  executed  in  other  States 

admitted    to     record    here 

and     its     effect.       Foreign 

wills. 
Record  of  foreign  will. 
Method   and   effect   of    such 

admission. 
Application,  etc. 
Form  of  entry. 
Appeal,  error,  etc. 
Probate,   etc.,   of   will  made 

out   of  the   United   States. 
Proceedings  to  admit  a  will 

to   record   which   has   been 

probated  without  the  State. 
Application     or     motion     to 

admit  copy  of  will,  etc. 
Entry    ordering   notice,   etc. 
Form   of  notice. 
Admission    of    such    will   to 

probate. 


§  1130  Admission  and  effect  of  ad- 
mission  to   record. 

§1131  Entry  ordering  admission  of 
will  made  in  foreign 
countries  to  probate. 

§  1131a  Probate  of  foreign  will  of 
later  date  than  one  already 
admitted  to  probate  in 
this    State. 

§  1131b  Effect  of  admitting  later 
will   to   probate. 

§  1131c  Contests. 

§  1132  Powers  of  executor  or  ad- 
ministrator under  will 
made    out    of    this    State. 

§  1133  Rights  of  purchaser  with- 
out knowledge  of  foreign 
will.  No  contest  of  foreign 
will.  Effect,  if  set  aside 
in    foreign    state. 

§  1133a  Foreign  will  can  not  be  con- 
tested here. 


§  1118.     Introductory,  definition,  etc. 

A  will  may  be  designated  as  a  foreign  will  under  several 
different  conditions.  First,  it  may  be  foreign,  merely  because 
the  testator's  domicile  was  in  another  State  or  country;  sec- 
ond, it  may  be  foreign  because  it  was  probated  in  another 
State;  third,  it  may  be  foreign  because  it  was  probated  in  a 
country  outside  of  the  United  States.  Generally  used,  how- 
ever, a  foreign  will  is  a  will  executed  in  another  State  or 
country  by  a  testator  there  domiciled,  and  there,  upon  the 
death  of  such  testator,  admitted  tO'  probate,  and  subsequently 
offered  for  record  in  this  State.  A  question  might  occur 
whether  or  not  a  will  executed  according  to  the  laws  of  our 
State,  but  made  by  a  person  who  lived  and  died  in  another 
[  State  or  country,  could  be  offered  for  original  probate  in  this 
I    State,  or  must  the  will  be  first  probated  in  the  place  of  the  tes- 


§  1138  FOREIGN   WILLS  J.<^06 

tator's  domicile  ?  ^  As  a  general  rule,  it  is  stated  that  the 
proper  place  to  probate  the  will  of  a  testator  is  in  the  Probate 
Court  of  tlie  county  where  the  testator  was  last  domiciled,  and 
this  is  the  case  irrespective  of  the  place  where  the  will  was 
made  or  the  country  or  State  where  the  testator  happened  to 
die.^  And  so  it  is  said  that  the  law  of  one's  last  domicile  not 
only  decides  what  constitutes  one^s  last  will,  but  whether  one 
died  testate  in  point  of  fact,  or  intestate,  and  that  all  questions 
as  to  the  forms  and  solemnities  attending  a  due  execution  are 
therefor  to  be  referred  to  the  place  of  last  domicile.^ 

Originally  and  ^\dthout  any  law  to  the  contrary,  no  property 
e-ould  pass  by  will  in  the  jurisdiction  of  any  State  or  country, 
unless  the  will  was  made  and  executed  according  to  the  laws  of 
the  countr)^  within  which  the  property  was  situate.  It  there- 
fore follows  that  although  our  statute  allows  authenticated 
copies  of  wills  to  be  admitted  to  probate,  it  does  not  take  away 
the  right  to  submit  the  original  "wnll  for  probate  in  the  country 
where  there  is  an  estate.  However,  if  a  will  of  a  testator 
whose  domicile  is  in  another  State,  be  admitted  to  probate,  an 
authenticated  copy  of  such  i*eoord  cannot  be  presented  for  record 
within  the  State  of  his  domicile.  In  other  words,  where  a  tes- 
tator dies  having  an  estate  in  another  country,  two  methods 
may  be  pursued  in  reference  to  the  probate  of  the  will  in  the 
other  country.  The  first  is,  the  original  will  may  be  presented, 
and  if  it  is  made  in  conformity  to  the  laws  of  the  State  where 
presented,  be  admitted  to  probate.  However,  if  the  will  is  to  be 
effective  in  the  country  or  State  where  the  testator  has  his  domi- 
cile, it  must  be  admitted  to  original  probate  in  the  State  of  the 
domicile.* 

The  second  method  is  by  presenting  an  authenticated  copy 
of  the  will  when  admitted  to  probate  in  the  place  of  domicile. 
In  the  matter  of  probating  foreign  wills,  it  should  not  be 
forgotten  that  the  laws  of  the  domicile  of  the  testator,  control 


1  See  §  1086  and  §  74.  3  Schoul.  Ex.  17. 

2  Converse  vs.  Starr,  23  0.  S.  491 ;  *  Woerner  on  Admin.  495 ;  Page 
Carpenter  vs.  Denoon,  29  0.  S.  379;  on  Wills,  423,  §  355;  McNeal  vs. 
19  Am.  &  Eng.  Ency.  of  Law,   17a.  Ross,  39  Bull.  353. 


1001  IN  OTHER  STATE  §  1119 

as  to  the  disposition  of  personal  property,  while  the  laws  of 
the  place  where  the  property  is  situate,  controls  the  disposition 
of  real  estate.^ 

For  some  purpose,  perhaps  to  conform  to  the  constitution  of 
the  United  States,  which  requires  one  State  to  give  full  faith 
and  credit  to  the  judicial  acts  of  another,  our  statute  has  made 
a  distinction  in  reference  to  the  admission  of  a  will  probated 
in  another  State  of  the  union  and  those  probated  in  some 
other  country.  The  following  section  provides  as  to  the  ad- 
mission of  a  will  probated  in  other  States.^ 

§  1119.  Will  executed  in  other  States  admitted  to  record 
here  and  its  effect.  Foreign  wills.  "Authenticated  copies  of 
wills,  executed  and  proved  according  to  the  laws  of  any  state 
or  territory  of  the  United  States,  relative  to  property  in  this 
state,  may  be  admitted  to  record  in  the  probate  court  of  a  county 
where  a  part  of  such  property  is  situated.  Such  authenticated 
copies,  so  recorded,  shall  have  the  same  validity  in  law  as  wills 
duly  made  in  this  state  are  declared  to  have."     [R.  S.  §  5937.]'^ 

§  1119a.  Record  of  a  foreign  will.  ' '  When  such  a  will,  or 
authenticated  copy,  is  admitted  to  record,  in  the  probate  court 
of  a  county  where  a  part  of  such  property  is  situated,  a  copy 
thereof,  with  the  copy  of  the  order  to  record  it  annexed  thereto, 
certified  by  the  probate  judge  under  the  seal  of  his  court,  may 
be  filed  and  recorded  in  the  office  of  the  probate  judge  of  any 
other  county  where  a  part  of  such  property  is  situated,  and  it 


•'■'  In  Brewster  vs.  Brewster,   14  0.  to  the  distribution  of  that  property 

S.  368,  382,  a  question  arose  as  to  thus   transmitted,    and   where    it   is 

the    distribution   of    property    under  not  controlled  by  the  will,  that  ques- 

a  clause  in  a  will  made  in  Connec-  tion  must  be  settled  according  to  the 

ticut,  and  it  was  said:     "To  a  very  laws  of  Ohio." 

considerable  extent,  the  construction  See  §§  1181,  1016  G.  C. 

of  the   will   must   depend   upon   the  6  See  §  1267,  Trusts  created  by  for- 

law  of  Connecticut.     But  when  it  is  eign  wills. 

considered  that  the  devisees  and  le-  A    will    made    in    another    State, 

gatees  are  all  in  Ohio,  that  the  trus-  takes   effect  from  the   death   of  the 

tee  in  Ohio,  that  the  property  itself,  testator   and   not  from   the   date   of 

so  far  as   it  can  be   done,   is  to   be  its  registry.     Hall  vs.  Ashby,   9   O. 

and   actually   has   been   transmitted  96. 

to  Ohio;   when  a  question  arises  as  ^  §  10535    G.    C. 


§  1120  FOREIGN  WILLS  1008 

shall  be  as  effectual  as  the  authenticated  copy  of  such  will  would 
be  if  proved  and  admitted  to  record  by  the  court."  [R.  S. 
§5937.]^* 

§  1120.     Method  and  effect  of  such  admission. 

By  the  provisions  of  the  above  section,  the  admission  of  a 
will  probated  in  another  State  to  record  in  this  State  becomes 
a  very  simple  affair.  It  is  purely  ex  parte,  requiring  no  notice 
to  be  given  to  any  parties  interested,  although  the  Court  may 
in  its  discretion  admit  parties  interested  to  appear,  and  it  has 
been  held  that  the  Court  admitting  a  will  to  record  may  hear 
testimony  in  opposition  to  such  admission.® 

There  has  been  some  discussion  as  to  what  must  be  shown 
when  an  authenticated  copy  of  a  will  proved  in  a  sister  State  is 
to  be  admitted  to  record.  The  general  opinion  seems  to  be  that 
the  Court,  must  be  satisfied  that  the  will  was  executed  and 
proved  according  to  the  laws  of  the  State  or  territory  of  the 
United  States  in  which  it  was  originally  offered  for  probate 
and  at  the  domicile  of  the  testator.  If  it  was  not  so  proved 
and  executed,  the  Court  should  not  admit  it  to  probate  and  as 
to  the  fact  whether  or  not  it  was  so  admitted  to  probate, 
testimony  may  be  heard.^ 

And  as  to  this  question,  the  Probate  Court  is  not  bound  by 
the  facts  represented  from  the  authenticated  record  alone.^" 
Whether  or  not  if  a  foreign  will  be  admitted  to  probate  in 
one  county  and  there  is  an  estate  in  another  county,  the  admis- 
sion of  the  will  in  one  county  Avill  carry  the  title  to  the  lands 
in  the  other,  presents  some  questions.  The  effect  of  such  action 
probably  is,  so  far  as  the  devisee  and  the  heirs  at  law  are  con- 
cerned, to  convey  the  title ;  but  generally  according  to  our 
registration  acts,  unless  a  copy  be  filed  in  the  county  in  which 
the  land  is  situate,  it  would  not  protect  the  devisee  against 
an  innocent  purchaser  from  an  heir-at-law.*^ 

-!*  §  in536   G.   C.  f  Bfirr  vs.  Closterman,  2  C.  C.  387; 

A  deed  made  before  a  foreign  will  1    ('.    D.   546. 

is  registered,  conveys  title  in  prefer-  i''  See  ^ilatter  of  Will  of  Barr,   15 

ence  to  the  will.     Hall  vs.  Ashby,  9  Bull.    310. 

0.  99.  11  S8  10576-7  G.  C.,  §  1133.  Rights 

8  Barr  vs.  C'losterman,  2  C.  C.  387 ;  of  purchaser.     A   foreign  will  must 

1    C.   D.   546.  be   admitted    to   record    within    four 

years  from  time  of  original  probate. 


1009  APPLICATION  §  1121 

§  1121.     Application,  etc. 

As  a  general  rule  I  think  it  may  be  said  that  Probate  Courts 
do  not  require  a  formal  application  to  be  made  in  admitting 
an  authenticated  copy  of  a  will  for  record,  yet  as  a  protection  to 
the  Court,  it  seems  that  such  an  application  would  be  advisable. 
It  may  be  in  the  following  form : 

{Title.) 

Now  comes  A.  B.  and  represents  to  the  Court  that  C.  D.  died  an  in- 
habitant of  the  county  of ,  State  of 

leaving  a  last  will  and  testament,  and  thereafter  said  last  will  and  testa- 
ment was  duly  admitted  to  probate  in  the  said  county  of 

and   State  of ,   and   that  said   C.   D.,   deceased,   left  an 

estate  in  this  county.  Said  A.  B,  represents  that  the  following  persons, 
living  in  the  State  of  Ohio,  are  interested  in  said  will.  (Here  state  names 
of  persons  and  how  interested.) 

Wherefore  he  presents  to  the  Probate  Court  of  this  county,  a  duly  authen- 
ticated copy  of  said  will  and  asks  that  the  same  be  admitted  to  probate  in 
this  county  and  placed  upon  record. 


Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of ; 190... 

§  1122.     Form  of  entry. 

The  Court,  having  examined  the  papers  presented  and  ascer- 
taining whether  from  the  recitals  therein  contained  that  such 
will  was  duly  executed  and  proved  according  to  the  laws  of  the 
State  where  it  was  originally  ofPered  for  probate,  should  admit 
the  will  to  record.     The  following  may  serve  as  an  entry : 

(Title.) 

This  day  came  A.  B.  and  presented  to  this  Court  a  duly  authenticated 
copy   of  the  will  of  C.  D.,   which  was  originally  admitted  tc   probate  in 

the  county  of ,  and  State  of ,  and  the 

Court  finding  that  said  will  of  said  C.  D.  was  duly  executed  and  proved 

according  to  the  laws  of  State  of ,  and  that  said  C.  D. 

died    leaving   an   estate   in   this   county,    it   is   ordered   that   the   same   be 
admitted  to  record  in  the  Probate  Court  of  this  county.i2 

§  1123.     Appeal,  error^  etc. 

It  is  generally  held  that  an  appeal  will  not  lie  to  the  common 
pleas  from  the  judgment  of  the  probate,  refusing  to  admit  an 
authenticated  copy  of  a  will  to  probate  under  sec.  10535  G.  C. 

12  In  Barr  vs.  Closterman,  2  C.  C.  does  not  sustain  the  syllabus.     Id., 

389;  2  C.  D.  222,  the  syllabus  seems  p.  401. 

to   be   that   it   is   not   necessary   to  i3  Barr   vs.  .Closterman,    2    C.    C. 

show  that  there  is  an  estate  in  the  387;   1  C.  D.  546;  30  Bull.  264. 
county,  but  the  opinion  of  the  Court 


§  1124  FOREIGN  WILLS  1010 

(§  1119).''  The  remedy  afforded  to  a  person  where  the  Court 
refuses  to  admit  a  will,  is  to  repropound  or  reoffer  the  au- 
thenticated copy  for  record."  If  an  order  admitting  the  will 
to  probate  be  made  inadvertently  or  by  reason  of  misrepresen- 
tation, the  Court  may  set  such  order  aside.^^ 

While  the  statute  is  not  specific  on  the  subject,  yet  in  analogy 
to  the  remedy  provided  on  the  original  probate  of  a  will,  where 
the  authenticated  copy  is  admitted  to  record,  the  repiedy  of  an 
aggrieved  party  is  not  by  error  nor  appeal,  but  by  contest.  Al- 
though the  subsequent  section  of  the  General  Code/**  says 
"  there  shall  be  no  contest,"  that  means  there  shall  be  no  contest 
if  the  will  has  been  proved  and  executed  according  to  the  laws 
of  the  other  State,  if  not  so  proven  and  executed,  there  may  be 
a  contest/^ 

If  the  will  itself  is  to  be  contested  and  not  the  order  of 
probate,  such  a  contest  must  be  made  where  the  original  will 
was  probated,  it  cannot  be  made  in  this  State. 

§  1124.    Probate,  etc.,  of  will  made  out  of  the  United  States. 

"A  will  executed,  proved,  and  allowed  in  a  country  other  than 
the  United  States  and  territories  thereof,  according  to  the  laws 
of  such  foreign  state  or  country,  may  be  allowed  and  admitted 
to  record  in  this  state  in  the  manner  and  for  the  purpose  men- 
tioned in  the  following  sections."      [R.  S.  §  5938.]i« 

§  1125.  Proceedings  to  admit  will  to  record  which  has  been 
probated  without  the  State.  "A  copy  of  the  will  and  pro- 
bate thereof,  duly  authenticated,  must  be  produced  by  the 
executor,  or  by  a  person  interested  therein,  to  the  probate  judge 
of  the  county  in  which  there  is  any  estate  upon  which  the  will 
may  operate,  whereupon  such  judge  shall  continue  the  motion 
to  admit  it  to  probate  for  two  months.  Notice  of  the  filing  of 
such  application  must  be  given  to  all  persons  interested,  in  some 

1*  Barr    vs.    Clostemian,    3    C.   C  i^  See   remarks  of   Court  in   3   C. 

441;    2  C.  D.   251.  C.  391;   2  C.  D.  216;  Jones  vs.  Rob- 
is  Barr   vs.    Clostemian,    7    C.    C.  inson,    17    0.    S.    171;    Manuel    vs. 

371;   4  C.  D.  641.  Manuel,    13    O.    S.    458;    Bailey   vs. 

16  §§10576-7   G.   C,    §1133.      See  Bailey,  8   0.   239;   Meese  vs.  Keefe, 

§  1086a  and  §  1131a.         '  10  0.  S.  362. 

18  §  10537  G.  C. 


1011  APPLICATION,  ETC.  §  1126 

public  newspaper  printed  or  in  general  circulation  in  the  county 
where  the  motion  is  made,  at  least  three  weeks  consecutively. 
The  first  publication  shall  be  at  least  forty  days  before  the  time 
set  for  the  final  hearing  of  the  motion."     [R.  S.  §  5939. V» 

§  1126.    Application  or  motion  to  admit  copy  of  will,  etc. 

It  will  be  observed  that  sec.  10538,  G.  C,  diifers  from  see. 
10535  G.  C.  (§1119),  in  that  it  requires  that  the  proceedings 
shall  be  begun  by  motion,  and  that  such  action  shall  be  continued 
for  the  term  of  two  months  after  the  filing  of  such  application, 
and  that  notice  of  such  application  is  to  be  given,  etc.  The 
application  to  admit  a  will  for  probate  made  outside  of  the 
United  States  should  set  forth  the  fact  that  the  mil  was  duly 
authenticated  and  probated  in  some  foreign  Court,  that  the 
person  making  the  application  has  an  interest  therein,  and  that 
the  testator  died  with  an  estate  in  the  county  in  which  the  appli- 
cation was  made.  Such  application  should  also  state  the  names 
of  all  persons  residing  in  the  State  or  elsewhere  if  known,  so  that 
they  might  be  mentioned  in  the  notice  that  is  required  to  be 
given.  Their  postoflfice  address  should  also  be  given.  It  may 
be   in  the  following  form : 

FORM  OF  APPLICATION. 

{Title.) 

A.  B.  respectfully  represents  that  on  the day  of 

190. .  .the  last  will  and  testament  of  C.  D.  was  duly  probated  in  the  Court 
of at in country. 

He  further  rep"resents  that  he  is  interested  in  said  will,  in  this,  to-wit, 
(here  state  how  interested)  and  that  the  said  C.  D.  died  leaving  an  estate 
in  this  county  of which  will  be  operated  upon  by  said  will. 

lie  further  represents  that  the  following  persons  are  interested  in  the 
fact  whether  said  will  be  probated  or  not,  to-wit.  (Here  state  names  of 
persons,  with  postoffice  addresses.) 

He  herewith  presents  a  copy  of  said  last  will  and  testament,  and  the 
probate  thereof  duly  authenticated  of  the  said  C.  D.,  and  asks  that  the 
same  may  be  admitted  to  record  in  this  said  county. 


Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 

§  1127.     Entry  ordering  notice,  etc. 

The  will  having  been  presented,  the  Court  should  then  order 
notice  to  be  given  as  required  by  statute,  and  must  make  a 

19  §  10538  G.   C.  See    §  1119. 


§  1128  FOKEIGN  WILLS  1012 

continuance  of  at  least  two  months  between  the  time  the  order 
to  give  notice  is  made  and  the  order  admitting  to  record  is 
made.     The  entry  may  be  in  the  following  fonn: 

(Title.) 

This  day  came  A.  B.  and  filed  herein  his  motion  or  application  to  admit 
to  record  the  last  will  and  testament  of  C.  D.  and  presented  with  his  said 
application,  a  copy  of  the  said  will  and  the  probate  thereof  duly  authenti- 
cated. Wherefore  it  is  ordered  that  notice  thereof  be  given  to  (here  men- 
tion the  names  and  postoffice  address  of  the  persons  who  appear  to  be  inter- 
ested in  said  will ) ,  and  that  said  notice  shall  be  given  in 

paper,  the  same  being  a  public  newspaper  printed  (or  of  general  circula- 
tion) in  this  county,  and  that  the  same  be  published  once  a  week  therein 
for   three  successive  weeks,  and  that  the  first  publication  be  made  forty 

days  before  the day  of ,  which  is  the  time  set  by 

this  Court  for  the  final  hearing  of  said  motion. 

§  1128.     Form  of  notice. 

To ( Here  give  the  names  and  residence  of  all  person3 

known  to  be  interested  in  the  probate  of  said  will.) 

You  will  take  notice  that  on  the day  of ,  A.  B. 

produced  to  the  Probate  Court  of county,  Ohio,  a  copy 

of  the  last  will  and  testament  of  C.  D.,  late  of City  of 

country,  deceased,  and  has  applied  to  have  said  will 

probated  and  recorded  in  said  county  of  Ohio.     Said  A.  B.  representing  to 

said  Court  that  he  is  interested  in   said  will  as (here 

state  how)  and  there  is  some  estate  in  said  county  upon  which  said  will 
operates.  The  hearing  of  said  application  has  been  set  by  said  Pro- 
bate Court  of County,  Ohio,  for  the day  of 

at o'clock,    1901. 

§  1129.     Admission  of  such  will  to  probate. 

Upon  the  day  set  for  final  hearing  which  must  not  be  less 
than  two  months  from  the  day  the  application  is  filed,  and 
there  having  been  filed  in  the  Court  the  proof  of  publication 
in  conformity  to  the  former  order  of  the  Court,  which  shows 
that  it  was  made  in  a  public  newspaper  printed  or  of  general 
circulation  in  the  county  for  at  least  three  weeks  successively 
and  that  the  first  was  forty  days  before  said  date  of  final  hear- 
ing, the  Court  should  proceed  to  a  hearing  of  the  fact  whether  or 
not  said  will  should  be  admitted  to  probate.  The  same  fact 
comes,  up  here  for  adjudication  as  if  the  will  was  originally 
proved  in  another  State,  that  is  whether  the  will  has  been 
executed,  proved  and  allowed  according  to  the  laws  of  the 
domicile  of  the  testator.  If  it  has  been  it  should  be  admitted 
probate.     The  statute  does  not  sav  that  it.  must  be.  but  it  may 


1013  ADMISSION  TO  RECORD  §  1130 

be  allowed,  and  it  seems  to  vest  a  discretion  whether  it  should  be 
admitted  or  not.  The  proceedings  from  the  fact  that  notice 
is  required  to  be  given,  differ  somewhat  from  the  proceedings 
to  admit  a  will  proven  in  another  State,  and  seem  to  partake 
more  of  an  adversary  character.  There  are  no  adjudications 
in  our  State  upon  this  question.  It  undoubtedly  means  from 
the  fact  that  notice  is  required,  and  that  the  Court  may  admit 
a  will  to  probate  that  the  proceedings  is  somewhat  different, 
just  to  what  extent  I  am  not  able  to  say.  However,  before  the 
Court  admits  such  a  will  to  probate,  it  should  be  satisfied  that 
the  will  was  properly  admitted  in  the  domicile  of  the  testator, 
and  tliat  the  same  is  not  contrary  to  the  laws  of  our  State.  It 
must  alsO'  be  shown  that  the  will  is  valid  by  the  laws  of  the 
State  where  made. 

§  1130.  Admission  and  effect  of  admission  to  record.  "If, 
on  such  hearing,  it  appears  to  the  court  that  the  instrument 
ought  to  be  allowed  in  this  state,  it  shall  order  the  copy  to  be 
filed  and  recorded.  The  will,  and  the  probate  and  record  thereof, 
then  shall  have  the  same  force  and  effect  as  if  the  will  orig- 
inally had  been  proved  and  allowed  in  that  court,  in  the  usual 
manner.  Nothing  herein  contained  shall  give  any  operation  or 
effect  to  the  will  of  an  alien,  different  from  what  it  would  have 
had  if  originally  proved  and  allowed  in  this  state."  [R.  S. 
§  ,5040.1^0 

§  1131.     Entry  ordering  admission  of  will  made  in  foreign  coun- 
try to  probate. 

(Title.) 
This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B. 

to  have  tlie  will  of  C.  D.,  late  of City  of 

country,  admitted  to  probate  in  this  Court,  and  having  presented  a  copy  of 
said  will  with  the  probate  thereof  and  duly  authenticated,  and  having 
given  notice  to  all  the  interested  persons  as  required  by  a  former  order 
of  this  Court  and  by  the  statutes  in  such  cases  made  and  provided,  and  it 
appearing  to  the  Court  that  said  C.  D.  left  an  estate  in  this  county  upon 
which  said  will  operates,  and  it  further  appearing  to  the  Court  that  said 

will  was  duly  executed,  proved  and  allowed  in  said  city  of 

of country,  the  same  being  the  domicile  of  the  said  C.  D. 

and  it  further  appearing  to  the  Court  that  said  will  ought  to  be  allowed  in 
this  county,  it  is  ordered  that  a  copy  thereof  be  filed  and  recorded  in  the 
records  of  wills  in  this  Court. 

20  §  10539  G.  C. 


§  1131a  FOREIGN  WILLS  1014 

§  1131a.  Probate  of  foreign  will  of  later  date  than  one  al- 
ready admitted  to  probate  in  this  State.  "When  a  will,  or 
authenticated  copy  of  one  lias  been  admitted  to  probate  or  to 
record  in  this  state,  and  a  will  of  later  date,  or  authenticated 
copy  of  one,  executed  and  proved  as  required  by  the  law  of 
any  other  state  or  territory  in  the  United  States,  which  relates 
to  property  in  this  state,  is  presented  to  the  same  court  for  pro- 
bate or  record,  upon  giving  notice  to  the  widow  or  husband,  the 
next  of  kin  to  the  testator,  and  his  personal  representative,  with 
the  will  annexed,  of  such  will  earlier  in  date,  and  the  benefi- 
ciaries therein,  the  mode  and  for  the  time  such  court  directs,  it 
shall  have  the  same  authority  to  admit  the  later  will  to  probate 
or  to  record  that  it  would  possess  if  no  earlier  will  or  copy  of 
one  had  been  so  admitted.  In  such  ease,  the  proceedings  shall 
be  the  same  as  if  no  other  will  of  the  party  ever  had  been 
proved  or  recorded."     [R.  S.  §  5929b.] ^^ 

§  1131b.  Effect  of  admitting  later  will  to  probate.  "Should 
the  probate  court,  as  a  result  of  such  hearing,  admit  the  later 
will  or  authenticated  copy  to  probate  or  to  record,  its  order 
also  shall  operate  as  a  revocation  of  the  order  admitting  the 
instrument  earliest  in  date  to  probate  or  record."  [R.  S. 
§  5929b.] -1* 

§  1131c.  Contests.  ' '  The  provisions  of  law  relating  to  the 
contest  of  wills  originally  admitted  to  probate  or  to  record  apply 
in  all  respects  to  later  wills  so  admitted."     [R.  S.  §  5929b.] -^f 

§  1132.  Powers  of  executor  or  administrator  under  will 
made  out  of  this  State.  "After  allowing  and  admitting  to 
record  a  will,  pursuant  to  either  of  the  next  four  preceding  sec- 
tions, the  court  may  grant  letters  testamentary  thereon,  or 
letters  of  administration  with  the  will  annexed,  and  must  pro- 
ceed in  the  settlement  of  the  estate  found  in  this  state.  The 
executor  taking  out  letters,  or  the  administrator  with  the  will 
annexed,  shall  have  the  same  power  to  sell  and  convey  the  real 
or  personal  estate,  by  virtue  of  the  wall  or  the  law,  as  other 

executors  or  administrators  with  the  will  annexed."      [R.   S. 
§5941.]  22 

21  §  10522  G.  C.  the  same  are  admitted  to  record  as 
21*  §  10523  G.  C.  provided  by  the  provisions  referred 
2it  10524  G.  C.  to  in  this  chapter.     This  would  ap- 

22  §  10540  G.  C.  ply  more  strictly  to  real  estate  thaji 
It  is  a  matter  so  elementary  that  to  personal  property,  as  our  statute 

perhaps  it  does  not  need  mentioning  recognizes    the   authority   of   execti- 

that  no  foreign  will  has   any  effect  tors    and    administrators    appointed 

upon   the   lands  or  estate  of   a   de-  in  foreign  States  to  sue  and  be  sued 

ceased   person   in  this   State,   unless  in  this  State.     See  §  186  et  seq. 


1015  RIGHTS  OF  PURCHASER,  ETC.  §  1133 

§  1133.  Rights  of  purchaser  without  knowledge  of  foreign 
will.  No  contest  of  foreign  will.  Effect,  if  set  aside  in  foreign 
State.  "The  title  of  a  bona  fide  purchaser,  without  knowl- 
edge of  a  will,  to  land  situated  in  this  state  derived  from  the 
heir  or  heirs  of  a  person  not  a  resident  of  the  state  at  the  time 
of  his  or  her  death,  shall  not  be  defeated  by  the  production  of 
the  will  of  such  decedent,  unless  it  is  offered  for  record  in  this 
state  within  four  years  from  its  final  probate  and  establish- 
ment in  the  state  or  territory  in  which  it  was  admitted  to  pro- 
bate. But  the  rights  of  infants,  or  persons  of  insane  mind  and 
memory,  shall  not  be  concluded  by  delay  or  failure  to  record 
such  will  in  this  state,  until  two  years  after  their  respective 
disabilities  are  removed."     [R.  S.  §  5967.]-^ 

§  1133a.  Foreign  will  can  not  be  contested  here.  ' '  No  pro- 
ceeding shall  be  had  in  this  state  to  contest  a  will  executed  and 
proved  according  to  the  law  of  a  state  or  territory  of  the  United 
States,  or  of  a  foreign  country,  relative  to  property  in  this 
state;  but  if  such  will  be  set  aside  in  the  state,  territory,  or 
country  in  which  it  is  executed  and  proved,  it  shall  be  of  no 
validity  in  this  state  as  to  persons  claiming  under  it,  with 
notice  of  its  being  set  aside,  and  as  to  all  other  persons,  from 
the  time  an  authenticated  copy  of  the  final  order  or  decree 
setting  it  aside,  is  filed  in  the  office  of  the  probate  judge,  of  the 
county  in  which  the  will  is  recorded."     [R.  S.  §  5967.]-^* 

s!*  §  10576  G.  C.  must    be    recorded    in    Ohio    before 

23*  §  10577  G.  C.  title    to    land    vests     in    devisee. 

A    will    made    in    a    sister    state      Abraham  vs.  Tappan,  6  0.  172. 


§11^4: 


SPOLIATED    WILLS 


1016 


CHAPTKRLX. 

SPOLIATED  WILLS. 


§1134 
§1135 


§1136 
§1137 
§1138 

§  1130 
§  1140 

§1141 

§1142 
§1143 
§1144 
§  1145 
§1146 
§  1147 
§1148 


§  1148a 


Definition,   etc. 

Wills  when  lost  or  destroyed 
may  be  admitted  to  pro- 
bate. 

There  must  have  been  a  will. 

Duly   executed. 

Not  revoked  at  death  of 
testator. 

Lost,  spoliated  or  destroyed. 

Lost,  etc.,  subsequent  to 
death  of  testator. 

After  testator  is  incapable, 
etc. 

Application. 

Form    of   application. 

Notice   of    application. 

Ordering  notice,  etc. 

Examination   of   witnesses. 

Nature    of    proceedings. 

On  what  proofs  will  estab- 
lished. How  lost  or 
spoliated  will  may  be 
probated. 

Notice. 


§  1149    Degree  of   proof. 

§  1150     Proof  of  contents. 

§  1151     Order   establishing  wills. 

§  1152     Effect  of  will  so  established. 

§  1153     Error  and  appeal,   etc. 

§  11.54  When  record  of  will  de- 
stroyed, authenticated  copy 
of  the  will  and  probate 
thereof  may  be  admitted' 
to  record. 

§  1155  An  original  will  may  again 
be  admitted  to   probate. 

§  1156  Or  an  authenticated  copy  of 
the  will  alone  may  be  ad- 
mitted  to   record. 

g  1156a  Limitation    as    to    contest;^. 

§  1157  Notice  that  copy  has  been 
admitted  to  record  to  bi^ 
published,  coi.test  of  same, 
and  effect  if  not  set  aside. 

§  1157a  Appeal  from  order  supply 
ing  record  of  will  to  the 
common    pleas. 


§  1134.     Definition,  etc. 


A  spoliated  will  is  a  will  that  for  some  reason  camiot  be 
produced  in  the  form  that  it  was  made  by  the  testator.  A  will 
may  become  spoliated  within  the  meaning  of  the  statute  in 
several  different  ways.  That  is,  it  may  be  lost  or  it  may  be 
destroyed.  The  proceedings  authorizing  such  a  will  to  be  pro- 
bated are  strictly  statutory  and  before  a  Probate  Court  can  es- 
tablish such  a  will  the  requirements  of  the  statute  must  have 
been  complied  with.  Considering  the  dangers  that  surround 
such  a  proceeding,  the  Court  should  proceed  with  great  caution.* 


1  Davis  vs.  Sigourney,  8  Mete. 
(Mass.)  487;  Matter  of  Johnson,  40 
Conn.  587. 


See  In  re  Murray  Estate,  63  Bull. 
81 ;  20  N.  P.  305. 


1017  MUST  HAVE  BEEN  A  WILL  §  1135 

In  many  respects  a  spoliated  and  revoked  will  are  similar, 
but  they  differ  vitally  in  this,  that  a  revoked  will  is  a  destruc- 
tion or  annulling  of  the  instrument  by  the  testator.  While  a 
spoliated  M'ill  is  one  that  in  the  mind  of  the  testator  exists  as  it 
did  when  it  was  finally  executed.  Our  statute  has  some  marked 
characteristics  in  reference  to  the  probating  of  such  wills, 
which  must  be  closely  observed  in  such  proceedings.^ 


§  1135.  Wills  when  lost  or  destroyed  may  be  admitted  to 
probate.  "The  probate  court  may  admit  to  probate  a  last 
will  and  testament  which  it  is  satisfied  was  executed  according 
to  the  provisions  of  law  in  force  at  the  time  of  its  execution, 
and  not  revoked  at  the  death  of  the  testator,  when  such  original 
will  was  lost,  spoliated,  or  destroyed,  subsequent  to  the  death 
of  such  testator,  or  after  he  became  incapable  of  making  a  will 
by  reason  of  insanity,  and  it  can  not  be  produced  in  court  in 
as  full,  ample,  and  complete  a  manner  as  the  court  now  admits 
to  probate  last  wills  and  testaments,  the  originals  of  which  are 
actually  produced  therein  for  probate."     [R.  S.  §5944.]^ 


§  1136.    Must  have  been  a  will. 

The  first  essential  feature  in  the  establishment  of  a  spoliated 
will  is  proof  that  there  was  a  will,  and  that  it  had  a  legal  exist- 
ence at  the  time  of  the  death  of  the  testator.  "The  existence 
will  not  be  presumed  from  the  fact  that  it  was  seen  shortly  be- 
fore testator's  death,  nor  is  it  proved  by  a  declaration  of  the  tes- 
tator, made  seven  months  before  his  death,  that  he  had  made  a 
will,  for  this  does  not  suffice  to  rebut  the  presumption  of  de- 
struction wdth  intent  to  revoke,  which  arises  from  the  fact  that 
no  will  could  be  found  after  diligent  search,  made  soon  after 
death. ' '  *  The  burden  of  proof  is  on  the  proponent  to  show  either 
the  existence  of  the  will  at  testator's  death  or  its  subsequent 

2  Page  on  Wills,  §  347,  p.  420.  4  Collyer  vs.  Collyer,  4  Dem.  53, 

3  §  10543  G.  C.  aff.  110  N.  Y.  481.     See  Matter  of 
Chancery  Courts  never  had  juris-      Marsh,  45  Ilun,  107. 

diction    in    Ohio.      Morningstar    vs-  The  Probate  Court  has  exclusive 

Selby,  15  0.  345.  jurisdiction. 


§1137  SPOLIATED   WILLS  1018 

destrnctiou.-''  Either  fact  may  be  proved  by  circumstantial 
evidence.  Thus  when  it  appears  that  the  will,  at  the  time  of 
its  execution,  was  placed  by  the  testator  in  the  hands  of  an- 
other person  as  custodian,  who  took  charge  of  it,  and  locked  it 
np  in  a  trunk,  and  supposed  it  was  there  at  the  time  of  the  tes- 
tator's death,  but,  upon  search  after  his  death,  it  could  not  be 
found,  its  legal  existence,  at  the  time  of  the  testator's  death, 
is  sufficiently  shown.*^ 

But  a  lost  will,  not  traced  out  of  testator's  possession,  is  pre- 
sumed to  have  been  revoked  by  him  by  destruction/  And  when 
a  ^dll  once  kno\\Ti  to  exist  and  to  have  been  in  the  custody  of 
the  testator,  cannot  be  found  after  his  death,  the  legal  presump- 
tion is  that  it  was  destroyed  by  the  testator  wtli  the  intention 
of  revoking  it. 

§  1137.     Duly  executed. 

Another  essential  of  a  spoliated  will  is  that  the  ^vill  which  is 
sought  to  be  probated  as  a  spoliated  will  was  at  one  time  duly 
executed  as  the  statute  provides.  These  requisites  must  be 
proved  as  if  the  will  were  present.  It  cannot  be  done,  it  is  true, 
by  the  same  description  of  evidence  in  all  respects,  but  some  evi- 
dence sufficient  to  show  a  compliance  with  the  statute,  in  all  its 
provisions,  must  be  given.* 

These  facts  are  to  be  proved  in  the  usual  way,  as  other  facts 
are  required  to  be  proved,  to  make  them  evidence  in  a  Court  of 
justice.  The  fact  of  testator's  mental  capacity  must  be  shown ; 
if  not,  although  the  existence  of  the  will  is  proved,  probate  will 
be  refused.* 

While  the  statute  requires  rules  to  be  observ^ed  in  the  execu- 
tion and  publication  of  wills,  which  it  does  not  prescribe  in  re- 
gard to  the  execution  and  delivery  of  other  written  instruments, 
tJie  proof  of  the  several  acts  so  prescribed  is  the  same  as  the  proof 

5  Perry  vs.  Perry,  21  N.  Y.  Supp.  .7  Idley  vs.  Bowen,   11  Wend.  227, 

133;    McXally   vs.    Brown,  ,5    Eedf.  aff.  Edw.  148;  Bulkley  vs.  Redmond, 

372;    In   re   Estate   of   Murray,    63  2  Bradf.  281;  Holland  vs.  Ferris,  Id. 

Bull.  81;  20  N.  P.  305.  334;  Eedf.  Law  and  Prac.  207. 

G  Schultz  vs.  Schultz,  35  K  Y.  653.  «  Grant  vs.   Grant,   1    Sandf.   Ch. 

iSee  Cahill  vs.  Owens,  2  Gaz.  89.  235;  343;  Voorhees  vs.  Yoorbees,  39 

6a  Bebrens  vs.  Behrens,  47  0.  S.  X.  Y.  4G3. 

323.  9  Matter  of  Paine,  6  Dem.  361. 


1019  NOT  KEVOKED  AT  DEATH,  ETC.  §  1138 

required  to  establish  any  other  fact.  The  law  lays  dowr^.  no 
stubborn,  inflexible  rules  in  such  cases,  but  accepts  the  best  evi- 
dence that  can  be  procured,  adapted  to>  the  nature  of  human  af- 
fairs, human  infinnities  and  casualties,  which  tends  with  rea- 
sonable certainty  to  establish  the  facts  in  controversy.^** 

§  1138.     Not  revoked  at  death  of  testator. 

It  will  be  observed  that  one  of  the  essential  conditions  of  the 
establishment  of  a  will  as  a  spoliated  will  is  that  the  original 
will  waS'  not  revoked  at  the  time  of  the  testator's  death.  From 
this  follows  what  has  been  heretofore  stated  that  the  will 
must  exist  as  a  will  at  the  time  of  testator's  death/^  if  he  has 
destroyed  it,  then,  as  a  matter  of  course,  it  can  never  be  estab- 
lished as  his  will.^^ 

§  1139.     Lost,  spoliated  or  destroyed. 

These  are  three  terms  which  are  used  to  describe  the  condi- 
tion that  the  original  instrument  must  be  in,  in  order  that  sec- 
ondary evidence  may  be  given  to  establish  the  instrument  itself 
or  its  contents.  They  are  in  a  certain  sense  synonymous,  but 
there  might  be  a  discrimination  between  them.  A  lost  will 
would  be  one  that  can  not  be  found,  and  no  explanation  can  be 
given  as  to  its  whereabouts.  A  destroyed  will  would  be  one  for 
which  a  reason  could  be  given  for  its  non-production,  and  for 
its  non-existence,  by  describing  how  it  was  put  out  of  existence. 
A  spoliated  will  might  be  a  will  which  has  been  partly  lost  or 
partly  destroyed  by  some  agency  other  than  the  testator 's.^-^  As 
to  this  fact  of  the  will  being  lost,  spoliated  or  destroyed,  proof 
must  be  given  of  the  exercise  of  reasonable  diligence  in  the 
effort  to  procure  the  original.  Generally  it  has  been  a  sufficient 
excuse  for  the  non-production  of  a  document  to  trace  it  to  the 

10  Redf .  Prob.  Law  and  Prac.  207 ;  Where  a  will  has  been  lost  or 
Page  on  Wills,  §  438,  p.  518.                      destroyed   before   the   death   of   the 

11  §  1136.  testator  the  law  presumes  he  revoked 
See  Cahill  vs.   Owens,  2  Gaz.  89,       it,  and  when  he  became  insane  after 

where  it  was  shown  tliat  three  days  he   made   the   will,   the   evidence   to 

before  the  death  of  testator,  that  it  overcome  this  presumption  must  be 

was  in  his  chest,  that  the  keys  were  certain,   satisfactory  and  conclusive 

in  possession  of  another,  etc.,  it  was  that  it  was  unrevoked  and  in  exist- 

admitted.  ence   after  he  became   incapable  by 

12  As  to  what  will  constitute  revo-  reason  of  insanity,  to  make  a  will, 
cation,  §  1048  et  seq.  Cole  vs.  McClune,'  88  0.  S.  7. 

The  word  "lost"  means  nonexist-  No   presumption    arises   that   tes- 

ent,  and  must  be  given  some  of  the  tator  destroyed  a  will  by  failure  to 

signification   of   "spoliated"   or   "de-  find   it  after"  her  death,  if  her  hus- 

stroyed,"  although  as  a  general  rule  band  had  the  custody  of  it.     In  re 

it  means  when  a  tiling  has  been  duly  Thompson,   59   Bull.   344;    16  N.   P. 

searched  for  and  can  not  be  found.  121. 

Gibson   vs.   Gibson,   0   C.   C.    (N.S.)  i2a  Followed  hr.  re  Murray's  Est., 

269;  25  0.  C.  698;  affirmed  72  O.  S.  63  Bull.  33;  20  N.  P.  305. 
677. 


§  1140  SPOLIATED  WILLS  1020 

possession  of  one  interested  in  retaining  it,  and  who  were  he  sub- 
poenaed to  produce  it,  would  refuse  to  do  so,  on  the  ground  that 
it  would  tend  to  criminate  him/^ 

In  civil  eases  it  has  been  repeatedly  held  that  where  the  paper 
or  docimient  wanted  in  evidence  has  been  traced  to  the  posses- 
sion of  a  certain  party,  that  party  must  be  produced  to  prove  its 
loss,  and  if  beyond  the  jurisdiction  of  the  Court,  his  testimony 
must  be  taken  by  deposition,  or  a  reasonable  excuse  given  for  the 
failure.  It  must  also  appear  that  the  party  offering  secondary 
evidence  shows  that  he  has  exercised  good  faith  and  reasonable 
diligence  in  seeking  for  the  primary  evidence,  and  that  he  has 
explored  with  reasonable  fidelity  all  sources  of  information  the 
case  would  naturally  suggest.^* 

But  there  is  no  universal  rule  as  to  the  necessary  foundation 
for  the  introduction  of  secondary  evidence ;  but  the  judge  must 
be  reasonably  satisfied  that  the  document  is  lost,  destroyed,  or 
beyond  the  jurisdiction  of  the  Court.  When  no  probable  motive 
appears  for  withholding  the  document,  less  evidence  is  required 
than  under  suspicious  eircumstanoes.^'* 

§  1140.    Lost,  etc.,  subsequent  to  death  of  testator.* 

Our  statute  has  made  an  essential  fact  to  be  that  the  will  must 
be  in  existence,  not  merely  in  contemplation  of  law,  but  actual, 
tangible  existence  at  the  time  of  the  death  of  the  testator.  This 
question  came  before  our  Supreme  Court  shortly  after  the  pass- 
age of  the  present  wills  act,'^  and  there  it  was  said:  "  If  all 
tliis  legislative  machinery  tvqs  to  establish  a  will  lost  after  the 
death  of  the  testator,  why  is  it  that  all  provision  whatever  is 
omitted  for  the  establishment  of  proof  and  record  of  a  will  lost 
before  the  decea.=^  of  the  testator  ?     The   answer  is  obvious. 

13  Abbott's  Tria\  Brief,  §  452,  cit-  vs.  Hurst,  3  Desaus,  Eq.  273;  5  Am. 
ing  United   States  vs.   Reyburn,   31       Dec.   551. 

U.  S.    (6  T^et.)    353,  366;   8  L.  Ed.  is  Jernigan  vs.  State,  81  Ala.  58; 

424,    429;    State   vs.   Kimbrough,    2  Haun  vs.  State,   13  Tex.  App.  383; 

Dev.  L.  431.  44   Am.    Rep.    706;    Rice   Am.    Pro. 

14  Simpson  vs.  Dall,  70  U.   S.    (3  Law,  254. 

Wall.)  460,  475;  IS  L.  Ed.  265.  267;  ic  In  the  Matter  of  Sinclair's  Will, 

Deaver  vs.  Rice,  2  Ire.  L.  280;  Par-  5  0.  S.  2^1. 

kins  vs.   Cobbet,   1   Car.   &  P.   282 ;  *Cited,  Gibson  vs.  Gibson,  14  Dee. 

Dickinson  vs.  Breeden,  25  111.   186;  331;    affirmed  25   0.  C.  C.  698;    72 

T^irner    vs.    Yates,    67    U.    S.     (16  0.  S.  677. 

How.)     14;    14   L.   Ed.   824;    Bunch 


1021  AFTER  TESTATOR  INCAPABLE  §  1141 

The  General  Assembly  deemed  it  either  impolitic,  as  opening 
the  door  to  imposition  and  )erjury,  or  unnecessary,  to  permit 
wills  lost  or  destroyed  befc  e  the  decease  of  the  testator  to  he 
established.  This  Court  can  not,  by  construction,  enlarge  the 
terms  of  a  statute  so  studiously  limited  and  circumscribed,"  ^^ 

Other  States  make  an  exception  to  where  wills  were  destroyed 
without  the  knowledge  or  consent  of  tlie  testator  during  his  life- 
time. But  for  reasons  which  the  Legislature  alone  determined 
sufficient,  such  a  will  can  not  hei  probated  in  this  State,  even 
though  the  testator  died  in  the  full  belief  of  the  fact  that  the 
will  he  had  made  was  still  in  existence.^-* 

§  1141.     After  testator  is  incapable,  etc. 

The  only  instance  in  which  a  will  may  be  probated  as  a  spol- 
iated will  which  was  lost  or  destroyed  during  the  lifetime  of  the 
testator  is  when  it  is  shown  that  the  will  was  lost  or  destroyed 
at  a  time  when  the  testator  was  incapable  of  making  a  will  by 
reason  of  insanity.  This  is  a  provision  which  was  not  in  the 
original  wills  act  when  the  same  was  before  the  Supreme  Court 
for  construction  in  the  5  O.  S,  290.  It  was  subsequently  added 
to  the  statute  as  it  now  appears,  but  the  limitation  is  specific  in 
its  application,  and  two  things  must  be  necessary  in  order  to 
be  within  its  provision.  First,  the  testator  must  have  become 
incapable  of  making  a  wall,  and  such  incapacity  must  have 
been  the  result  of  insanity.  If  these  facts  are  not  shown,  in  no 
case  can  a  will  be  admitted  to  probate  as  a  spoliated  will,  unless 
it  be  first  shown  that  the  will  was  in  existence  after  the  death  of 
the  testator. 

§  1142.     Application. 

It  is  a  singular  fact  that  the  statute  does  not  in  some  manner 
provide  for  a  written  application  to  be  made.  It  is  certain  that 
such  a  method  of  procedure  is  contemplated,  and  it  has  beern  said 
by  a  distinguished  author  that  "  the  statute  and  the  peculiarities 

1^  Id.  tions  of  testator  as  to  liis  having  de- 
See  Bejirens  vs.  Behrens,  47  O.  S.  stroyed  same,  see  Gurley  vs.  Armen- 
323.  trout,  G  C.  C.    (N.S.)    156;   27  C.  C. 
18*  As  to  admissibility  of  declara-  199   (1905). 


§1142 


SPOLIATED   WILLS 


1022 


of  the  case  make  a  petition  in  an  action  to  estaiblish  a  lost  will 
far  more  necessary  than  in  an  ordinary  probate  proceeding, 
where  the  will  can  be  offered  and'lan  oral  motion  to  admit  to 
probate  can  be  made.  Accordingly,  it  is  usually  required  that 
a  lost  will  be  admitted  to  probate  only  on  petition,  and  this 
petition  must  allege  all  necessary  facts  to  entitle  the  will  to  be 
admitted  to  probate  as  a  lost  will.  Thus,  where  it  is  required 
that  the  will,  in  order  to  be  admitted  to  probate,  shall  be  in 
€xistence  after  the  death  of  testator,  the  petition  must  allege 
that  fact,  and,  unless  the  statute  requires  it,  an  answer  need 
not  be  verified."  '* 

Neither  does  the  statute  say  who  may  offer  such  a  will  for  pro- 
bate, but  it  may  be  presumed  that  the  same  rule  should  be  fol- 
lowed as  in  the  probating  of  an  ordinary  will.^^ 

Our  Courts  have  held  that  the  devisees  and  legatees  under  a 
will  are  proper  persons  to  present  the  same  for  the  purpose  of 
having  it  established.'" 

It  is  generally  said  that  any  interested  person  may  have  a  will 
admitted  to  probate.  ^^ 

The  petition  ought  therefore  to  show,  first,  that  the  testator 
is  dead ;  second,  that  he  was  a  resident  of  the  county  in  which 
the  will  is  offered  for  probate;  third,  that  he  died  leaving  a 
last  will  and  testament,  and  tliat  said  will  was  properly  ex- 
ecuted, unrevoked  and  in  existence  at  the  time  of  the  testator's 
death ;  fourth,  that  the  will  was  lost  or  destroyed  after  the  death 
of  the  testator ;  fifth,  it  should  set  out  in  full  the  contents  of  the 
lost  or  destroyed  will ;  sixth,  it  should  give  the  names  of  the 
widow  and  next  of  kin,  as  well  as  the  persons  who  have  an  in- 
terest to  resist  the  probate  of  said  will,  and  their  place  of  resi- 
dence ;  seventh,  the  petitioner  should  show  in  what  manner  he  is 
interested. 


18  Page  on  Wills,  422,  §  352. 

19  §    1085. 

20  Taylor  vs.  Bennett,  1  C.  C.  95 ; 
1  C.  D.  57. 

31  It  is  said  that  a  person  interest- 
ed is  a  person  pecuniarily  interested, 
materially  interested  in  the  subject- 
matter  of  the  probate  of  the  will,  or 


in  the  having  the  will  probated; 
that  it  is  not  a  question  of  dispo- 
sition; it  is  not  a  question  of  emo- 
tion; it  is  not  a  question  of  wish  or 
desire,  but  that  it  is  merely  a  ques- 
tion of  whether  the  person  is  in- 
terested in  the  establishment  of  the 
will  and  is  to  be  affected  bv  it  in 


1023  APPLICATION  §  1143 

§  1143.     Form  of  application. 

In  the  Matter   of   the   Probate  of       \       Probate  Court, 

iu      T     4.   TT-ii      f    T  1.       T  Clark   County,   Ohio, 

the   Last   \\ill    of   John   Jones,  Application    for    Probate    of    Spoil- 

deceased.  J  ated  Wills. 

The  undersigned  respectfully  represents  that  on  the  2nd  day  of  January, 
1895,  John  Jones,  then  an  inhabitant  of  said  Clark  County  (or  leaving  an 
estate  in  said  county)  died.  That  on  or  about  the  10th  day  of  October, 
1894,  said  John  Jones  made,  subscribed,  acknowledged  and  published  his 
last  will  and  testament,  which  said  will  was  duly  signed  and  attested  at  the 
request  of  said  John  Jones,  as  witnessed  by  Sam  Smith  and  Jack  Brown. 
That  said  will  was  in  existence  and  unrevoked  at  the  death  of  said  John 
Jones.  But  that  subsequent  to  his  death  the  same  has  become  lost  and  can- 
not be  found  although  strict  search  has  been  made  for  the  same  (or  if  the 
facts  are  known  to  be  otherwise,  allege  how  the  will  became  destroyed  or 
lost).  That  your  petitioners  cannot  give  a  copy  of  said  will,  but  the 
substance  of  the  same  was  as  follows :  That  said  testator  bequeathed  to 
Anna  Jones  a  fee  simple  of  lot  2,500  in  the  City  of  Springfield.  That  he 
Dequeathed  and  gave  Susan  Smith  $1,000  in  cash.  That  he  appointed  your 
petitioner  the  executor  of  said  will  (or  state  in  what  manner  the  person 
making  the  application  is  interested  in  having  the  will  probated ) .  Your 
petitioner  further  represents  that  said  John  Jones  died  leaving  Mary  Jones, 
his  widow,  and  the  following  named  persons  his  next  of  kin:  (Here  state 
names  and  age  of  minors  if  any,  and  postoffice  address  of  all,  just  as  if  it 
was  an  application  to  probate  an  ordinary  will.)  Your  petitioner  further 
represents  that  the  following  named  persons  may  be  interested  to  resist  the 
probate  of  said  will:  (Here  give  names  of  parties  who  have  in  any  way 
interest  in  said  will.) 

Wherefore  your  petitioner  prays  that  said  will  may  be  established  and 
admitted  to  probate. 

Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 


§  1144.  Notice  of  application.  ' '  "When  application  is  made 
to  the  probate  court  to  admit  to  probate  a  will  duly  executed, 
and  lost,  .spoliated,  or  destroyed,  the  party  seeking  to  prove  it 
must  give  a  written  notice  to  all  persons  whose  interest  it  may 
be  to  resist  the  probate,  and  who  reside  in  the  county  wiiere 
the  testator  resided  at  the  time  of  his  death,  or  to  their  agent 
or  attorney,  five  days  before  the  day  on  which  such  proof  is 
to  be  made,  or  give  notice,  by  publication  in  a  newspaper  printed 

his  interest;  and  that  if  he  is,  then  In  Matter  of  Jones.  2  N.  P.  209; 

he  has  a  right  to  appear,  either  os-  2  Dec.  404. 

tensibly  as  a  proponent  of  the  will,  22  Not   every   variance   between   a 

or  has  a  right  to  appear  and  intro-  spoliated  will  as  made,  and  the  will 

duce  or  call  witnesses  in  that  pro-  as  admitted   to  probate,  will  avoid 

ceeding  to  probate  the  will.    The  ap-  the  latter.    Banning  vs.  Banning,  12 

plication  ought  to  state  the  domicile  O.   S.  437. 
of  deceased. 


§  1145  SPOLIATED  WILLS.  1024 

in  the  county,  thirty  days  before  the  day  set  for  hearing  such 
proof.     [R.  S.  §5945.]  23 

§  1145.     Ordering  notice,  etc. 

The  provision  as  to  the  giving  of  notice  provided  for  in  the 
above  section  is  peculiar  to  the  proceedings  to  establish  a  spol- 
iated will,  in  that  it  requires  that  written  notice  be  given  to  all 
persons  whose  interest  it  may  be  to  resist  the  probate.  It  does 
not  say  that  notice  must  also  be  given  to  the  widow  and  next  of 
kin  as  provided  in  the  section  relating  to  the  probate  of  an  ordi- 
nary will,  yet  I  apprehend  that  the  section  relating  to  probate  of 
an  ordinaiy  will  applies  to  this  kind  of  a  proceeding,  and  that 
it  would  be  an  illegal  proceeding  where  such  notice  was  not 
given."*  There  is  certainly  no  reason  why  the  next  of  kin 
should  not  be  notified  in  the  proceedings  to  probate  a  spoliated 
will,  as  well  as  where  an  ordinary  will  is  probated,  even  though 
they  had  no  interest  to  resist  the  probate.  If  there  is  no  person 
residing  in  the  county  who  is  interested  to  resist  the  will,  then 
notice  must  be  given  by  publication.^^ 

The  statute  seems  to  contemplate  that  notice  must  be  given 
before  the  application  to  admit  tO'  probate  is  filed.  But  the 
more  logical  way  is  to  have  the  petition  first  filed,  then  the 
Court  may  set  the  same  down  for  hearing  and  order  the  notice 
to  be  given  as  provided  by  the  statute.  The  entry  for  such 
notice  may  be  as  follows: 

23  §  10544   G.   C.  one  or   the  other   of   the  modes   re- 

24  §§  10506-7  G.  C,  §  1067.  quired,   of  the  day   set   for   hearing 

25  Whatsoever  may  have  been  the  the  proof  has  been  given  and  we  are 
reasons  that  induced  the  General  As-  are  of  the  opinion  that  the  section 
sembly  to  apply  a  diflferent  mode  of  reasonably  construes  that  where 
proceeding  in  applications  to  admit  there  is  no  person  residing  in  the 
lost,  spoliated  or  destroyed  wills  to  county  in  which  the  application  is 
probate,  from  that  applied  to  wills  made,  who  is  interested  in  resisting 
actually  produced  in  Court  and  ver-  the  probate  of  the  will,  to  whom 
bal  wills,  it  is  quite  clear  that  under  written  notice  of  the  day  set  for 
§  5945  R.  S.,  §  1144,  it  would  be  er-  hearing  the  proof  can  be  given,  no- 
ror  in  the  Probate  Court,  upon  ap-  tice  must  •  be  given  by  publication, 
plication  to  find  and  establish  the  Baugarth  vs.  Miller,  26  0.  S.  541; 
contents  of  a  spoliated  will,  or  admit  Miller  vs.  Baugarth,  I  Bull.  126. 
the  same  to  probate,  until  notice,  in 


1025  EXAMINATION    OF    WITNESSES  §  1146 

ENTRY. 

(Title.) 

This  day  came  A.  B.  and  filed  herein  his  petition  for  the  probate  and 
establishment  of  a   spoliated   will  of  John  Jones,   deceased,   and   the  same 

is  set  for  liearing  on  the day  of ;  and  it  is  ordered 

that  written  notice  be  given  to  the  widow  and  all  the  next  of  kin  resident  of 
the  State  of  Ohio,  and  to  all  other  persons  who  are  interested  in  resisting 
the  probate  of  said  will  who  reside  in  this  county,  and  if  there  be  any 
others  interested  in  resisting  the  probate  of  said  will  who  are  non-residents 
of  tliis  county,  it  is  ordered  as  to  them  notice  be  given  by  publication  as 
required  by  statute.  That  the  written  notice  be  given  at  least  five  days 
before  the  day  of  hearing  and  that  the  printed  notices  be  given  30  days 
before  the  day  set  for  hearing,  by  inserting  once  a  week  for  four  weeks 
in  a  newspaper  of  general  circulation  in  this  county.26 

§  1146.  Examination  of  witnesses.  ' '  In  such  cases,  the 
court  shall  cause  the  witnesses  to  such  will  and  such  other  wit- 
nesses as  any  person  interested  in  having  it  admitted  to  pro- 
bate desire,  to  come  before  the  court.  They  shall  be  examined 
by  the  probate  judge,  and  their  testimony  reduced  to  writing 
and  filed  by  him  in  his  court.  When  necessary  so  to  do,  because 
witnesses  reside  out  of  its  jurisdiction,  or  who,  though  within 
such  jurisdiction  are  infirm  or  unable  to  attend,  the  court  may 
order  their  testimony  to  be  taken  and  reduced  to  wanting  by 
some  competent  person,  which  testimony  shall  be  filed  in  such 
court."     [R.  S.   §5946.]-^ 

§  1147.     Nature  of  proceedings. 

There  has  been  considerable  discussion  as  to  the  nature  of  a 
proceeding  to  establish  a  spoliated  will,  whether  it  was  an  ad- 
versary one  or  ex  parte;  and  if  adversary,  it  has  been  claimed 
that  witnesses  might  be  introduced  to  resist  the  probate  of  a 
will.  It  seems,  how^eyer,  from  a  careful  reading  of  the  above 
section,  that  it  was  not  the  intention  of  the  legislature  to  change 
the  character  of  the  proceedings  from  that  where  an  ordinary 
will  was  admitted  to  probate.  From  the  fact  that  the  document 
itself  is  not  in  being  and  before  the  court,  the  legislature  has 
deemed  it  wise  that  a  greater  degree  of  notice  be  given  than 
where  the  will  itself  is  in  Court.  But  the  language  of  the 
above  section  is  "that  the  Court  shall  cause  witnesses  to  such 
will,"  etc.,  "and  such  other  witnesses  as  any  person  interested. 

2«  The  form  of  notice  provided  for       a  notice  required  for  a  spoliated  will. 
in   the    application    of   an    ordinary       See  §  1093. 
will  can  easily  be  changed  to  answer  27  §  10545  G.  C. 


g  1148  SPOLIATED  WILLS  1026 

in  having  such  will  admitted  to  probate  may  desire,"  etc.,  and 
it  has  therefore  been  very  properly  held  that  no  testimony  may 
be  heard  in  opposition  to  the  probate  of  such  will.'^ 

The  proper  rule  in  such  cases  seems  to  be  that  a  person  inter- 
ested in  tlie  probate  of  a  will  may  submit  any  testimony  he  de- 
sires, and  that  such  witnesses  may  be  cross-examined  by  any 
person  who  desires  tO'  resist  the  probate  of  the  will  —  this  being 
necessary  in  order  to  enable  the  Court  to  know  what  weight 
should  be  given  to  such  testimony.  It  might  not  be  error  to 
allow  other  testimony,  but  it  is  certainly  not  within  the  meaning 
of  the  statute.  Like  in  tlie  probate  of  an  original  will,  the  testi- 
mony must  be  reduced  to  writing,  and  infirm  or  nonresident 
witnesses,  must  be  examined  by  commissioners. 

§  1148.  On  what  proofs,  will  established.  How  lost  or 
spoliated  wills  may  be  probated.  "if  upon  such  proof,  the 
court  is  satisfied  that  such  last  will  and  testament  was  executed 
in  the  mode  provided  by  the  law  in  force  at  the  time  of  its 
execution,  that  its  contents  are  substantially  proved,  that  it 
was  unrevoked  at  the  death  of  the  testator,  and  has  been  lost, 
spoliated  or  destroyed  since  his  death,  or  his  becoming  in- 
capable as  aforesaid,  such  court  sliall  find  and  establish  the 
contents  of  such  will  as  near  as  can  be  ascertained,  and  cause 
them  and  the  testimony  taken  in  the  case  to  be  recorded  in  such 
court."     [R.  S.  §5947.]-^ 

§  1148a.  Notice.  If  a  will  has  been  lost,  spoliated,  de- 
stroyed, mislaid,  or  stolen,  after  it  Avas  admitted  to  probate  but 
before  it  had  been  recorded,  upon  notice  being  given,  as  herein- 
before provided,  to  persons  whose  interest  it  may  be  to  resist 
the  probate  and  record  of  such  will,  the  court  may  hear  testi- 
mony, and  if  satisfied  that  the  contents  of  the  will  have  been 
substantially  proved,  record  it  as  thus  proven,  which  record 
shall  have  all  the  force  and  effect  of  a  record  of  the  original 
will."     [R.  S.  §5947.]-«* 

28  In  the  matter  of  the   estate  of  bating  a   spoliated  will.     !Matter  of 

William  Jones,  the  able  Probate  Jones,  2  N.  P.  191,  224;  2  Dee.  409. 
Judge  of  Cuyahoga  County,  has  dis-  29  §  10546  G.  C. 

cussed    in    an    exhaustive    manner,  29*  10547  G.  C. 

various  question  that  arise   in   pro- 


1027  DEGREE  OP  PROOF  §  1149 

§  1149.    Degree  of  proof  .'^^ 

If  the  court  upon  such  proof  shall  be  satisfied,  etc.,  then  the 
will  shall  be  admitted  to  probate.  Just  what  degree  of  evidence 
it  should  require  to  satisfy  the  court  is  difficult  to  determine. 
In  the  probate  of  an  ordinary  will  the  question  is,  "if  it  appear 
to  the  court,  etc.,"  it  shall  be  admitted  to  prob'ate.  Evidently 
the  legislature  intended,  by  the  use  of  the  word  satisfy,  to  re- 
quire a  greater  degree  of  proof  than  in  the  probate  of  an  ordi- 
nary will.  Satisfy  means  to  convince,  and  satisfactory  evidence 
of  a  matter  has  been  sometimes  called  sufficient  evidence,  and 
is  intended  to  be  that  amount  of  proof  which  ordinarily  satisfies 
an  unprejudiced  mind,  beyond  a  reasonable  doubt.-^° 

Upon  this  subject  a  recent  author  on  wills  says:  "It  is 
clearly  settled  that  the  burden  of  proof  in  probate  of  lost  wills 
is  upon  the  parties  offering  such  lost  will  for  probate.  To 
what  degree  this  burden  of  proof  extends  is  not  so  well  settled. 
The  courts  exact  a  greater  amount  of  evidence  than  a  prepon- 
derance. In  some  cases  it  is  said  that  the  evidence  must  be 
"clear";  in  others  it  is  said  that  the  evidence  must  be  "full 
and  satisfactory";  in  still  other  cases  it  is  put  in  the  superlative 
degree,  and  it  is  said  that  the  proof  must  be  "very  clear";  or 
the  "clearest,  most  conclusive  and  satisfactory."  In  other  cases 
it  is  said  that  the  proof  must  be  "beyond  all  reasonable  doubt." 
This  degree  has  been  held  too  high  in  Alabama.  In  other  cases 
it  is  said  that  it  should  be  "free  from  all  doubts."  But  while 
exacting  a  high  degree  of  proof,  the  courts  hold  that  upon  the 
facts  of  the  destruction,  circumstantial  evidence  alone  may  be 
sufficient  to  justify  a  finding  for  the  will.^^ 

In  a  case  before  referred  to,  the  court  comes  to  the  conclu- 
sion that  in  order  to  be  judicially  satisfied,  the  mind,  after 
fairly  considering  all  the  evidence,  must  rest  quiescent  and  sat- 
isfied with  its  conclusion  as  being  the  best  supported  by  the  over- 
balancing weight  of  evidence.^- 

29a  Cited  Cole  vs.  McCIune,  88  0.  are  not  so  strong,  clear  and  positive 
S-  7.  ^  and  unbiased  evidence  of  its  con- 
To  establish  a  lost  or  destroyed  tents  as  will  admit  such  will  to 
will  the  evidence  of  its  execution  probate  as  a  spoliated  will.  In  re 
and  its  contents  must  be  clear,  Thompson,  59  Bull.  M4;  16  N.  P. 
strong  and  positive,  free  from  bias  121. 

and  convincing  bevond  a  reasonable  so  21  Am.  &  Eng.  Eney    of  Law, 

doubt.   Cole  vs.  McClune,  88  0.  S.  7.  71.5. 

Declarations  by  testatrix  and  her  3i  Page  on  Wills,  516,  §  434. 

huisband  as  to  the  existence  and  cus-  Cibson    vs.    Gibson.    25    0.    C.    C. 

tody    of   her    will    devising    certain  6fl8:   affirmed  72  O.  S.  677. 

real  estate  in  her  name  to  the  pur-  32  The   court  must   be   "satisfied" 

chase  of  which  each  had  contributed,  of  the  existence  of  everv  one  of  these 

that    such    real    estate    was    to    be  material  conditions  in  the  premises, 

divided   equally   upon   the   death   of  Evidently  this  expression  means  sat- 

the  wife,   one   half   to   her   nephews  isfied  as  a  judge,  or  "iudiciallv  sat- 

and    one   half   to  his   nephews,   but  iafiod."     It' does  not  mean  that  the 

not  stating  whether  the  estate  went  evidence  shall  remove  all  doubts.   In 
to   the   husband    m    fee   or   for   life 


§1150 


SPOLIATED     WILLS 


1028 


It  has  been  held  that  where  it  was  endeavored  to  establish  a 
lost  deed  that  the  unsupported  parol  evidence  of  one  person  is 
not  sufficient,  and  that  the  evidence  sufficient  to  establish  an  al- 
leged deed  must  be  clear  and  convincing  —  it  must  produce  in 
the  mind  of  the  Court  a  conviction  that  a  valid  deed  once  ex- 
isted, and  that  "  conviction  "  means  a  state  of  mind  free  from 
doubt.  ^^ 

There  is  no  reason  why  a  less  strict  rule  should  be  applied  to 
a  will  than  to  a  deed. 

§  1150.     Proof  of  contents. 

In  logical  order,  after  the  existence  and  execution  of  the  lost 
will  have  been  proven,  then  it  would  be  proper  to  establish  what 
its  contents  were.  As  to  this  matter  the  statute  provides  that 
the  "  Court  shall  find  and  establish  the  contents  of  such  -will  as 
near  as  the  same  can  be  ascertained."  The  evidence  by  which, 
the  same  can  be  established  would  be  such,  as  is  generally  ap- 
plicable to  establish  the  cont-ents  of  any  lost  instrument,  follow- 
ing the  general  rule  that  the  best  evidence  that  can  be  had  is 
always  required.  Thus,  if  a  copy  of  a  will  was  in  existence 
and  it  could-  be  shown  that  it  was  an  exact  copy,  the  Court 
would  require  a  production  of  such  copy  before  other  testimony 
to  be  introduced  as  showing  the  contents  of  a  will.^* 

A  person  who  had  read  over  the  original  will  would  be  a  very 


civil  causes  to  be  judicially  satis- 
fied of  the  existence  of  a  fact,  or  the 
truth  of  a  proposition,  is  the  result 
of  the  weighing  and  balancing  of  evi- 
dence. Ihe  effect  of  a  fair  prepon- 
derance of  the  evidence  must  be  to 
cause  the  mind  and  the  judgment  to 
rest  content  with  a  certain  conclu- 
sion, while  there  may  still  linger 
remnants  of  doubts  unremoved :  yet 
the  mind,  after  fairly  considering 
all  tlie  evidence  must  rest  quiescent 
and  satisfied  with  its  conclusion,  as 
being  the  best  supported  by  the  over- 
balancing weight  of  the  evidence. 
To  be  in  this  frame  of  mind  and 
condition  of  judgment,  is  to  be  judi- 
cially   satisfied,    or    judicially    con- 


vinced, which  is  the  same  thing.  But 
to  produce  such  judicial  satisfaction 
of  the  existence  of  a  fact  or  the 
truth  of  a  proposition  of  law,  the 
quality  and  quantity  of  the  evidence 
necessarily  depends  upon  the  nature 
of  the  facts  or  proposition  to  be  es- 
tablished or  maintained.  In  Matter 
of  Jones,  2  X.   P.   210;    2  Dec.  409. 

33  Smith  vs.  Neff,  5  N.  P.  495;  5 
Dec.  449. 

34  In  re  Estate  of  Lasance,  5  N.  P. 
20;  7  Dec.  246. 

If  lost  before  death  of  testator  it 
cannot  be  probated.  Gibson  vs  Gib- 
son, 25  O.  C.  C.  698;  affirmed  72 
O   S.  677. 


1029  ORDER   ESTABLISHING  §  1151 

proper  witness,  and  he  might  use  a  certified  copy  to  refresh  his 
memory,  but  it  has  been  held  that  a  person  to  whom  the  de- 
ceased read  over  his  will  could  not  testify  as  to  its  contents, 
unless  the  declarations  of  testator  were  competent.^" 

As  a  general  rule  it  may  be  said  that  the  declarations  of  a 
testator  are  admissible  to  establish  the  contents  of  a  lost  will 
Vi'holly  or  in  part,  but  such  declarations  alone  are  not  sufficient.^* 

Under  the  wording  of  a  previous  statute,  it  was  held  that 
the  contents  of  a  spoliated  will  need  only  be  substantially 
proven,^^  and  such  is  the  probable  intention  of  the  present  law, 
although  the  wording  is  slightly  changed.  It  has  also  been  held 
that  the  lost  or  destroyed  will  may  be  admitted  in  part,  and 
that  the  executor  named  in  the  will  may  be  appointed  an  execu- 
tor to  the  will.^^ 

§  1151.     Order  establishing  will. 

The  Court  being  satisfied,  as  provided  in  sec.  10546-7,  G.  C.,^* 
that  the  will  was  in  existence,  etc.,  and  was  lost  and  destroyed, 
and  having  ascertained  the  contents  as  near  as  the  same  could 
be,  should  make  its  finding  and  enter  it  upon  record.  The  fol- 
lowing may  serve  as  an.  entry : 

(Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  application  of  A.  B. 
to  admit  to  probate  and  establish  a  spoliated  will  of  C.  D.,  deceased;  and 
the  same  was  submitted  to  the  Court  upon  the  papers  in  the  case,  and  the 
testimony  of  witnesses.  Wliereupon  the  Court  finds  that  said  C.  D.  was 
an  inhabitant  of  this  county  at  the  time  of  his  death  (or  had  an  estate 
therein ) ,  and  that  all  the  persons  who  were  entitled  by  law  to  notice  of 
this  proceedings  have  been  duly  notified  as  provided  by  law,  and  the 
former  orders  of  this  Court;  and  the  Court  having  caused  E.  F.  and  G.  H., 
witnesses  to  said  will,  and  other  witnesses,  to-wit:  I.  J.  and  K.  L.,  to  appear 
in  open  Court  and  testify  touching  the  execution  and  contents  of  said  will, 
and  their  testimony  thereof  having  been  reduced  to  writing  and  filed;  and 
the  Court  being  satisfied  from  the  testimony  so  taken  that  the  said  C.  D. 

did  on  the day  of duly  execute  his  last  will  and 

testament,  in  the  mode  provided  by  the  law  in  force  at  the  time  of  its 
execution,  and  that  the  said  C.  D.  was  of  sound  mind  and  memory,  and 
not  under  any  restraint  when  the  same  was  executed  by  him,  and  that 
the  said  will  was  signed  and  witnessed  as  provided  by  law,  and  that  the 
same  was  unrevoked  at  the  death  of  the  said  C.  D.  and  that  it  became 
lost,  spoliated  or  destroyed  subsequent  to  the  death  of  such  testator,  and 
the  Court  finds  and  does  hereby  establish  the  contents  of  such  will,  as 
near  as  the  same  can  be  ascertained,  as  follows:      (Here  set  out  the  will 

35  Page  on  Wills,  519,  §  440.  37  Banning  vs.   Banning,   12  O.  S. 

36  Page  on   Wills   says  that   this       437. 

matter  has  been  discussed,  but  not  ss  Cahill  vs.  Owens,  2  Gaz.  89. 

decided  bv  the  Courts.    521,  §  441.  so  §   1148. 


§  1152  SPOLIATED  WILLS  1030 

in  full.)  And  the  Court  further  orders  that  said  wil  and  testament  be 
recorded  as  in  the  case  of  other  wills  admitted  to   probate. 

§  1152.  Effect  of  will  so  established.  "The  contents  of  such 
a  last  will  and  testament  found,  established,  and  admitted  to 
probate  as  aforesaid,  shall  be  as  effectual  to  pass  real  and  per- 
sonal estate,  and  for  all  other  purposes,  as  if  the  original  will 
had  been  admitted  to  probate  and  record  according  to  the  pro- 
visions of  this  title.  Such  wills  shall  be  governed  by  the  laws 
in  force  relating  to  other  wills,  not  only  with  respect  to  their 
contest,  but  in  all  other  matters."     [R.  S.  §  5948.]*'^ 

§  1153.     Error  and  appeal,  etc. 

It  is  settled  by  a  recent  decision  of  our  Supreme  Court  that 
neither  error  nor  appeal  will  lie  from  an  order  of  the  Probate 
Court  admitting  a  spoliated  will  to  probate,  and  that  the  only 
way  of  revoking  such  order  is  by  contest,  as  provided  by  sec. 
10560  of  the  General  Code.^^ 

The  same  case  seems  to  hold,  quoting  the  language  of  the 
above  section,  that  the  same  rule  is  to  apply  to  appeal  and  error 
as  applies  to  the  probate  of  an  original  A^dll,  and  therefore  it 
would  follow  that  an  aggrieved  party  might  appeal  from  an 
order  of  the  Probate  Court  refusing  to  admit  a  spoliated  will  to 
probate,  or  the  will  might  be  repropounded.  It  is  very  ques- 
tionable whether  there  could  be  proceedings  in  error  to  an  order 
refusing  to  admit  a  spoliated  will  to  probate. " 

§  1154.  When  record  of  will  destroyed,  authenticated  copy 
of  the  will  and  probate  thereof  may  be  admitted  to  record. 

"Wlien  the  record  of  a  will  is  destroyed,  a  copy  of  it  and  the 
probate  thereof  may  be  recorded  by  the  probate  court  of  the 
proper  county,  whenever  it  is  made  to  appear  to  its  satisfac- 
tion that  such  record  has  been  destroyed,  and,  by  a  certificate 
under  the  hand  and  seal  of  the  probate  .judge,  or  clerk  of  the 
common  pleas  court  of  the  proper  county,  that  such  copy  is  a 
true  copy  of  the  original  will  and  of  "its  probate."  [R.  S. 
§5949.]« 

40  §  10548  G.  C.  order    of    the    Probate    Court    over- 

4iHollrah   vs.   Lasance,   63   O.   S.  ruling    an    application    to    establish 

58;   Banning  vs.  Banning,   12  O.  S.  a  lost  will.     Eoth  vs.  Siefert,  77  0. 

437.  S.  417. 

42  S.  C,  16  C.  C.  187;  8  C.  D.  788;  But  there  is  no  right  if  error  to 
5  X.  P.  20;  7  Dec.  246.  See  §  1114,  Circuit  Court  from  Common  Pleas, 
^'"'■or.  where  the  Common  Pleas  establishes 

43  §  10549  G.  C.  the  will.     Id. 

The  Supreme  Court  has  now  held  See    Brewing    vs.    Hardware    Co., 

that   there   is    a.n    appeal   from   the       17   C.   C.    (N.S.)    475. 


1031  ERROR  AND  APPEAL  |  1155 

§  1155.     An  original  will  may  again  be  admitted  to  probate. 

*'When  the  record  of  a  will  has  been  destroyed,  the  original  will 
may  again  be  admitted  to  probate  and  record."     [R.  S.  §  5950.]** 

§  1156.  Or  an  authenticated  copy  of  the  will  alone  may  be 
admitted  to  record.  "The  probate  court  of  a  county  where 
the  record  of  a  will  has  l)een  destroyed,  may  admit  to  record  a 
copy  of  such  will  whenever  it  appears  that  the  copy  for  record 
bears  the  certificate  of  a  probate  judge,  or  clerk  of  the  common 
pleas  court,  setting  forth  that  it  is  a  true  copy  of  the  will,  the 
record  of  which  has  been  destroyed."     [R.  S.  §  5951.]*® 

§  1156a.  Limitations  as  to  contests,  "Nothing  in  the  next 
three  preceding  sections  shall  affect  the  proceedings  or  extend 
the  time  for  contesting  the  validity  of  any  will,  or  for  asserting 
rights  thereunder.  The  record  provided  for  in  such  preceding 
sections  must  show  that  the  original  record  was  destroyed,  and 
the  time,  as  near  as  may  be,  when  the  will  was  originally  ad- 
mitted to  probate  and  record."     [R.  S.  §  5951.]"* 

§  1157.  Notice  that  copy  has  been  admitted  to  record  to  be 
published,  contest  of  same,  and  effect  if  not  set  aside.  ' '  Every 
probate  judge  who  admits  to  record  a  will  or  copy  of  one  under 
either  of  the  next  four  preceding  sections,  immediately  there- 
after shall  give  notice  for  three  consecutive  weeks,  in  two 
weekly  newspapers  of  his  county,  if  so  many  be  published 
therein,  or  if  not,  in  one  newspaper  published  and  of  general 
circulation  in  the  county,  stating  the  name  of  the  person  the 
record  of  whose  will  has  been  destroyed,  and  the  day  when 
such  record  was  supplied.  All  persons  interested  in  the  record, 
at  any  time  within  five  years  from  the  making  of  it,  may  come 
into  the  probate  court  of  the  proper  county,,  and  contest  the 
question  whethei*  the  record  thus  supplied  is  the  same  as  the 
record  destroyed."     [R.  S.  §5952.]*« 

§  1157a.  Appeal  from  order  supplying  record  of  will  to  the 
common  pleas.  "When,  by  order  of  a  probate  court,  the  lost 
record  of  a  will  has  been  supplied,  and  such  action  is  contested 
by  a  person  interested,  from  all  final  orders  or  decrees  in  such 
contest,  either  party  may  appeal  to  the  court  of  common  pleas, 
in  the  manner  as  appeals  are  now  or  hereafter  may  be  provided 
for  from  the  probate  court;  and  if  any  ])erson  interested  in 
such  record  shall,  at  the  time  such  record  is  supplied,  be  under 

44  §  10550  G.  C.  4.-.*  §  10,552   G.  C. 

4r.  §  10551    G.    C.  46  §  1055.3  G.  C. 


§  1157a  SPOLIATED  WILLS  1032 

any  legal  disability,  such  person  may  contest  the  record  ^nthin 
two  years  from  the  removal  of  the  disability,  and  the  new 
record  supplied,  according  to  either  of  the  next  five  preceding 
sections,  shall,  unless  set  aside  in  proceedings  provided  for  in 
this  section,  have  the  same  force,  effect,  and  validity,  as  the 
original  record."      [R.  S.  §5952.]*«* 

«*  §  10554  G.  C. 


1033 


NUNCUPATIVE  WILLS 


§1158 


CHAPTER    LXl. 

NUNCUPATIVE  WILLS. 


1158  Definition. 

1159  Nuncupative  will,  how  made 
and  proved. 

1160  Last  sickness. 

1161  Personal  estate. 

1162  Reduced  to  writing. 

1163  Subscribed  by  competent  wit- 


§  1164  Called   upon   person  present. 

§  1105  Testamentary  words. 

§  1166  Must  be  admitted  to  probate 

within  six  months. 
§  1167  Matter  pertaining  to  probate. 
§  1168  Proof  required,  etc. 
§  1169  Form  of  will. 


§  1158.     Definition. 

A  nuncupative  will  is  defined  to  be  "  an  oral  will  declared  by 
testator  in  extremis  before  witness,  and  afterwards  reduced  to 
writing."  ^  It  should  not  be  forgotten  here  that  nuncupative, 
like  written  wills,  must  in  every  respect  conform  to  the  stat- 
utory provisions  of  our  law;  and  this  laAV  is  strictly  construed, 
for  the  power  to  make  a  disposition  of  one's  property  by  an  oral 
or  verbal  will  is  one  which  gives  great  temptation  for  fraud. 
Formerly,  when  but  a  comparatively  few  of  the  people  could 
write,  there  was  a  mucli  greater  reason  than  now  for  allowing 
this  kind  of  a  will.  By  reason  of  soldiers  and  sailors  often 
meeting  death  at  a  place  where  it  was  impossible,  or  at  least  very 


1  Bouv.  Law  Die. 

Nuncupative  Avills  or  testaments 
(which  have  a  place  in  the  Roman 
civil  law)  are  so  called  from  nuncu- 
pare,  to  name,  declare  or  make  a 
solemn  declaration  because  the  testa- 
tor declares  his  will  in  extremis  be- 
fore a  sufTicient  number  of  witnesses 
whose  oral  proof  must  afterwards 
establish  it.  These  verbal  wills  offer 
great  temptation  to  fravid  and  per- 
,  juiy,  besides  occasioning  much  hon- 


est error,  and  the  need  of  them  les- 
sens as  the  art  of  penmanship  be- 
comes more  universal  and  vrriting 
materials  abound.  The  Statute  of 
Frauds,  29  Car.  11,  chapt  3,  laid 
them  under  various  restrictions;  and 
the  tenor  of  legislation,  English  and 
American,  at  the  present  day  is  to 
invalidate  them  altogether,  except 
as  to  soldiers  in  actual  military  ser- 
vice and  mariners  at  sea.  Schoul.  on 
Wills,  §  6. 


§  1159  NUNCUPATIVE   WILLS.  1034 

inconvenient,  to  reduce  their  desires  in  reference  to  the  disposi- 
tion of  their  property  to  writing,  they  were  made  a  favorite 
class  who  retained  the  right  to  make  a  verbal  disposition  of 
their  property  after  it  had  been  taken  aAvay  from  the  people 
generally.  Our  statute  makes  no  provision  for  any  favorite 
class — every  one  alike  must  come  within  its  strict  provisions. - 

§1159.     Nuncupative    will,    how   made    and   proved.      "A 

verbal  will,  made  in  the  last  sickness,  shall  be  valid  in  respect 
to  personal  estate,  if  reduced  to  writing,  and  subscribed  by 
two  competent  disinterested  witnesses,  within  ten  days  after 
the  speaking  of  the  testamentary  words,  if  it  also  be  proved  by 
such  witnesses,  that  the  testator  was  of  sound  mind  and  mem- 
ory, not  under  restraint,  and  that  he  called  upon  some  pei-son 
present,  at  the  time  the  testamentary  words  were  spoken,  to 
bear  testimony  to  such  disposition  as  his  will."     [R.  S.  §  5991.]^ 

§  1160.     Last  sickness. 

One  of  the  most  important  provisions  of  our  statute  in  ref- 
erence to  the  power  to  make  a  verbal  will  is  that  it  must  be  made 
during  the  last  sickness  of  the  deceased.  It  is  a  matter  of  no 
little  difficulty  to  determine  just  when  a  person  comes  within 
this  provision.  I  believe  the  term  is  not  defined  in  any  of  the 
reported  decisions  of  our  State.  A  text  writer  says :  "In  the 
majority  of  States  it  is  held  that  the  term  'last  illness'  means 
an  illness  so  violent  that  testator  had  not  the  time,  opportunity 
and  means  at  hand,  after  making  his  oral  wdll,  to  make  a  written 
will  in  legal  form."*  And  in  other  States,  he  says,  it  is  held 
that  a  will  made  during  the  last  illness,  as  already  defined,  is  a 

2  See   Page  on   Wills,   354,    §322.       Eq.    625;    Dockum   vs.   Robison,   26 
See  §  1044,  Effect  of  person  being      N.  II.  372;   Prince  vs.  Ilazelton,  20 

legatee.  Johns.     (N.    Y.)     502     (the    leading 

3  §  lOGOl  G.  C.  American    case    upon    this    point); 

4  Page  on  Wills,  §234,  p.  260,  Jones  vs.  Norton,  10  Tex.  120; 
citing  the  following:  Johnston  vs.  Pvcese  vs.  Hawthorne,  10  Gratt. 
Glasscock,    2    Ala.    218;     Scaife    vs.        (Va.)    548. 

Emmons,  84  Ga.  619;   Ellington  vs.  A   nuncupative   will   can   not   re- 

Dillard,   42    Ga.    361;    Bellamy    vs.  voke    a   written    will.      McCune   vs. 

Peeler.     96     Ga.     467;     CXeill     vs.  House,  8  0.  144. 

Smith,     33    Md.    569;     Donald    vs.  The  fact  that  a  nuncupative  will 

Unger,    75    Miss.    294;     Lucas    vs.  attempts    to    dispose   of    real    prop- 

Gofi",    33    Miss.    629;    Parkison    vs.  erty  will  not  affect  it  as  to  personal 

Parkison,    12    Smed.   &   M.    (INIiss.)  property  therein  disposed  of.     Par- 

672;   Carroll  vs.  Bonham,  42  N.  J.  sons  vs.  Wass,  16  C.  C.   (N.S.)   404. 


1035  LAST  SICKNESS PERSONAL  ESTATE  §  1161 

valid  nimciipative  will,  even  though  testator  had  opportunity, 
after  making  such  will  before  his  death,  to  make  a  written  will." 

It  will  be  observed  that  our  statute  uses  the  words  "  last  sick- 
ness "  instead  of  "  last  illness."  These  words,  however,  are 
synonymous.  The  probability  is  that,  following  the  rule  of  a 
strict  construction  that  our  Courts  will  hold,  with  the  majority, 
that  if  a  testator  has  the  time  and  opportunity  and  means  at 
hand,  after  lie  haa  made  an  oral  will,  to  have  reduced  it  to 
writing,  that  it  cannot  be  admitted  as  a  valid  nuncupative  will.* 

It  is  probable  that  no  definite  rule  can  be  given  on  this  sub- 
ject, but  each  case  will  be  governed  largely  by  the  circumstances 
surrounding  it.^ 

It  is  said  that  it  is  not  apparently  necessary  to  the  validity 
of  the  will  that  the  testator  believe  that  he  was  about  to  die.* 
But  this  does  not  dispense  with  the  idea  that  the  deceased  must 
have  an  intention  to  make  a  mil  when  the  words  are  uttered. 
This  matter  will  come  up  for  discussion  further  along.** 

§  1161.     Personal  estate. 

The  statute  distinctly  provides  that  such  a  will  "  shall  be 
valid  in  respect  to  personal  estate,"  and  it  therefore  follows  that 
no  nuncupative  will  could  be  made  that  would  affect  the  testa- 
tor's real  estate.  Under  tlie  act  of  1824,  it  was  held  that  a 
nuncupative  will  was  valid  to  pass  real  estate.^" 

It  has  been  held,  however,  that  where  a  person  who  is  the 
owliel*  of  both  real  estate  and  personal  property,  makes  a  nun- 
cupative will,  that  the  Court  will  change  the  ordinary  rule  tliat 
personal  property  shall  first  be:  applied  in  payment  of  the  debts 


5  Bradford  vs.  Glower,  60  111.  App.  ^  Sadler  vs.  Sadler,  60  Miss.  251. 
55;  Harrington  vs.  Stees,  82  111.  50,  »  Page  on  Wills,  §  234,  p.  261. 
qualifying   Morgan   vs.    Stevens,    78  9  See  §  652,  Last  sickness. 

111.  287;  Wiley's  Estate,  187  Pa.  St.  lo  See   case   of   Gillis   vs.   Weller, 

82 ;    Nolan    vs.    Gardner,    7    Heisk.  10  0.  462. 

(Tenn.)    215;    Gwin   vs.   Wright,    8  In  a  previous  case,  however,  it  had 

Hump.   (Tenn.)  639.  been  held  that  realtj' would  not  pass 

6  Schou.  Wills,   §   371;   2  Blackst.  by  a  nuncupative  will.    Williams  vs. 
Comm.  501.  Pope,  Wright,  406. 


§  1162  NUNCUPATIVE    WILL  1036 

of  a  testator  and  require  that  the  proceeds  of  tlie  real  estate  be 
first  applied  to  the  payment  of  the  debts  of  the  testator. ^^ 

§   1162.     Reduced  to  writing. 

In  order  for  a  will  to  be  a  valid  one  the  words  of  the  testator 
must  be  reduced  to  writing,  and  this  must  be  done  within  ten 
days  after  they  were  spoken.  Omission  to  comply  with  this 
provision  renders  the  will  a  nullity.^^  Whether  this  condition, 
as  well  ar,  the  others  required  by  the  statute,  have  been  complied 
with,  are  questions  of  fact  which  can  be  submitted  to  a  jury  in 
an  action  to  contest  or  establish  the  validity  of  a  will.^^ 

In  view  of  the  necessities  of  the  case,  it  is  held  that  the  exact 
words  used  by  the  testator  need  not  be  reduced  to  writing.  It 
is  sufficient  if  their  substance  can  thus  be  reduced. 

§  1163.     Subscribed  by  competent  witnesses. 

The  testamentaiy  words  must  not  only  be  reduced  to  writing, 
but  they  must  be  subscribed  by  two  competent  disinterested  wit- 
nesses. It  will  be  obserA'ed  that  the  language  used  in  reference 
to  witnesses  of  nuncupative  will  is  different  from  that  used  in 
reference  to  a  vrritten  will  —  in  this,  that  they  must  not  only  be 
competent,  but  they  must  be  disinterested  witnesses.  These 
witnesses,  in  addition  to  being  competent  and  disinterested,  must 
have  heard  the  testator  utter  the  testamentary  words;  and  in 
addition,  they  should  be  able  to  testify  that  the  testator  was  of 
full  age  and  of  sound  mind  and  memory,  and  not  imder  any 
legal  restraint.  A  beneficiary  under  the  will  is  not  a  com- 
petent disinterested  witness.^* 

Our  Court  has  also  held  that  the  witnesses  must  be  competent 
and  disinterested  at  the  time  of  their  attestation,  and  that  their 
disqualification  as  witnesses  by  reason  of  interest  under  the 
will  cannot  be  removed  by  a  renunciation  of  such  interest  at 
the  time  the  will  is  admitted  to  probate,  or  at  the  trial  of  an 
issue  to  contest  the  validity  of  the  will;  and  further  that  sec. 

11  Skinner  Vi?.  Blackburn,  4  C.  C.  They  are  not  disinterested  if  at 
325;   2  C.  D.  574.                                        the  time  thev  believe  thev  are  bene- 

12  Page  on  Wills,  §§320,  26fi.  fieiaries.      Wass   vs.    Trust   Co.,    15 
isBolles  vs.  Harris,  34  0.  S.  38.      Dec.  577. 

iiVrooman  vs.  Powers,  47  O.  S. 
191. 


1037  CALLED  UPON  PERSON  PRESENT  §  1164 

10515,  G.  C.  (§  1044),  to  the  effect  of  a  witness  being  a  devisee 
or  legatee  under  the  will,  is  not  applicable  to  verbal  wills. ^' 

The  statute  does  not  seem  to  require  any  request  on  the  part 
of  the  testator  that  the  witnesses  should  act  as  witnesses  to  his 
will.  However,  he  must  call  upon  some  one  to  bear  testimony 
to  his  disposition,    and  this  would  generally  include  the  wit- 

nesses.^'^ 

§  1164.     Called  upon  person  present. 

A  further  requisite  of  the  validity  of  a  nuncupative  will  is 
that  the  testator  at  the  time  that  the  words  are  spoken  called 
upon  some  pereon  present  to  bear  testimony  to  his  said  disposi- 
tion. This  formal  calling  upon  witnesses  to  bear  witness  to  this 
fact  is  known  as  rogatio  testium,  and  is  a  necessai-y  element  of 
a  nuncupative  will.  Without  this  the  will  is  invalid,  and  no 
matter  how  clear  the  testamentary  intent.  No  set  phrase  is 
necessary,  says  a  recent  text  writer,^'  for  a  valid  rogatio  testium. 
While  it  is  desirable  that  the  testator  should  in  clear  and  un- 
mistakable language  formally  ask  the  witness  to  bear  witness  that 
his  words  are  his  last  wall,  this  request  may  be  made  informally. 
If  a  person  gives  a  mere  direction  as  to  how  his  property  should 
be  disposed  of,  without  any  request  either  formally  or  informal- 
ly, to  any  person  present  to  bear  witness  that  it  is  a  testamentary 
disposition,  the  instrument  would  fail  for  want  of  this  fact." 

The  following  was  held  to  be  a  sufficient  request  of  Avitness : 
A  party  present  said  to  the  deceased,  "  If  you  tell  us  as  wit- 
nesses what  disjwsition  you  want  to  make  of  your  property,  we 

15  Vrooman   vs.   Powers,   47   0.   S.  In  this  case  the  testator  was  run 

191.  over  by   a  train.      A  physician  was 

See  Wass  vs.   Trust  Co.,   15   Dec.  called,    who,    after    examining    the 

677     (1905),    where    this    matter    is  wounds,  said  to  the  deceased,  "your 

discussed    by   the    Court    and    it    is  time  is  short,  if  j-ou  have  any  word 

held   that  the   fact  whether   the  be-  to  leave,  you  liad  better  say  it  now." 

quest  is  valid  or  not,  will  not  change  The     deceased     then     uttered     these 

tlie  rule.  words :     "T   was  to  be   married  next 

§  10575  G.  C,  §  1044,  provides  that  Thursday,     tell    my    folks    to    give 

where  a  witness  is  a  devisee  he  may  ^lartha   Jane    Wade,    my    intended, 

renounce   such    devise    and   then   he  $1,000  of  my  money."  Nothing  more 

would  take  the  share  allowed  to  him  was   said  either  by  Seevcr  or  those 

by  law  as  if  no  will  had  been  made.  around  him.     About   15  minutes  af- 

i«Sec  Page  on  Wills,  §§  238,  2GG.  terwards  he  died.     It  was  held  here 

17  Page  on  Wills,  §§  237,  2G4.  tliat  there  was  no  proper  rogatio  tcs- 

18  Seever  vs.  Seever,  2  C.  C.  298;  Hum. 
1   C.  D.  490. 


§1165  NUNCUPATIVE    WILL  1038 

will  testify  to  that  fact  in  the  Probate  Court,  and  it  will  do  aa 
if  it  were  a  written  will."  The  testator  then  spoke  of  his  in- 
tended wife,  and  said:  "It  has  been  my  intention  all  along 
that  she  should  have  everything  I  have,  real  and  personal,  and 
that  is  my  will  now."  Another  person  then  said :  "  This  is 
your  last  will  and  testament  made  in  our  presence  as  wit- 
nesses ?  "  Testator  said,  '^  Yes,"  and  then,  after  a  pause  added, 
''  I  want  my  life  insurance  policy  to  go  direct  to  her  without 
going  through  a  course  of  administration."  ^® 

It  has  been  held  that  a  look  is  not  sufficient,  and  that  there 
must  be  some  words  spoken  to  indicate  a  calling  upon  those 
present."** 

§  1165.     Testamentary  words. 

The  same  rule  applies  in  a  nuncupative  will  as  in  a  written 
will.  The  testator  must  have  spoken  the  words  with  the  inten- 
tion of  making  a  testamentary  disposition.  If  they  are  not 
such  words  tliat  indicate  a  testamentary  disposition,  the  will 
would  fail.  It  must  also  appear  that  the  words  were  spoken 
with  tlie  intention  of  making  a  nuncupative  will.  Thus  in  the 
case  before  cited  ^^  it  was  held  that  the  words  there  spoken  were 
not  such  words  as  would  support  a  testamentary  bequest.  Like- 
wise it  has  been  held  that  the  mere  fact  of  the  testator  figuring 
up  how  much  he  desired  each  child  to  receive,  and  entering  it 
into  an  account  book,  could  not  be  a  valid  nuncupative  will."" 

A  recent  text  writer  gives  the  following  as  an  instance  in 
which  it  was  held  that  there  was  no  intention  manifested  to 
make  a  nuncupative  will:  A  physician  was  called,  who  as- 
sured the  testator  that  there  would  be  no  danger  of  death  for 
twenty-four  hours.  The  testator's  brother  asked  him  if  he 
wished  to  malce  any  disposition  of  his  property.  The  testator 
said,  "All  right;  you  can  take  a  statement  of  how  I  want  it 
fixed."  And  the  brother  took  down  the  instructions,  and  said : 
"  I  will  make  a  memorandum,  and  fix  it  up  in  shape.  If  you 
think  it  is  proper  you  can  sign  it  and  make  a  kind  of  will  of  it." 

19  Page   on    Wills,    §§    237,    264;  21  §   1164. 

Harrington  vs.  Stees,  82  111.  50.  Seever  vs.  Seever..  2  C.  C.  298;   1 

20Woerner  on  Admin.   82.     See  §  C.  D.  496. 

1165,  Testamentary  words.  22  Williams  vs.  Pope,  Wright  406. 


1039  MUST  BE  ADMITTED  TO   PROBATE  §  1166 

The  testator  assented.  The  next  morning  the  brother  received 
a  telephone  message  that  A.  was  sinking  fast.  He  at  onoe 
wrote  out  the  will  and  hurried  to  the  hospital,  arriving  there 
after  A.  's  death.  This  was  held  not  to  be  a  sufficient  declara- 
tion to  support  a  nuncupative  will.-' 

§  1166.  Must  be  admitted  to  probate  within  six  months. 
No  nuncupative  will  shall  be  admitted  to  record  unless  it  be 
offered  for  probate  within  six  months  after  the  death  of  the 
testator."     [R.  S.  §5992.]=^* 

§  1167.  Matter  pertaining  to  probate. 
The  law  applicable  to  the  probate  of  a  written  will  is  in  all 
respects  applicable  to  the  probate  of  a  nuncupative  will.  An 
application  should  be  made  for  probate  and  all  the  next  of  kin 
resident  in  the  State  of  Ohio,  and  the  widow  or  widower  of  the 
deceased,  must  be  notified."^  It  is  the  same  kind  of  a  proceed- 
ing in  Probate  Court  —  that  is,  ex  parte,  and  the  will  may  be 
contested  in  the  Common  Pleas  Court  just  the  same  as  a  written 
will  could  be.  In  addition  to  the  facts  required  by  sec.  10691, 
G.  C.  (§  1159),  the  testimony  of  witnesses  must  show  that  the 
testator  was  of  sound  mind  and  memory,  and  not  under  any 
restraint.  The  will  must  be  probated  in  the  county  in  which  the 
testator  had  his  domicile.  The  forms  and  directions  given  for 
probating  a  written  will  can  be  used  for  probating  a  nuncupa- 
tive will.  The  same  law  would  apply  as  to  appeals  and  error 
and  the  repropounding  of  the  will.-*^ 

§  1168.    Proof  required,  etc. 

From  the  nature  of  a  nuncupative  will  in  that  it  affords  great 
temptation  to  the  establishment  of  a  will  other  than  that  desired 
by  the  testator,  courts  have  been  inclined  to  require  strict  proof 
of  all  the  essentials  requisite  to  the  establishment  of  such  a  will. 
Some  courts  have  held  that  the  evidence  must  be  of  the  clearest 
and  most  convincing  character.-^  Our  own  courts  have  said 
that  the  statute  in  reference  to  nuncupative  wills  must  be  strictly 
complied  with,  and  that  it  must  appear  that  all  the  requirements 

23  Page  on  Wills,  §§  236,  262.  the    law.      Until    it    is    shown    that 
•■^i  §  10602  G.  C.  they    expected    a    benefit    from    the 
25  §  5917    R.    S.,    §  1067.  will  it   is  error  to  direct  a  verdict 
2G  §  1159.  annulling    the    will.      That    a    nun- 
27  Page  on  Wills,   §§447,  524.  cupative   will    attempts    to    dispose 
That  a  nuncupative  will  attempts  of    real    as   well    as    personal    prop- 
to    devise    real    estate    to    the    wit-  erty    does    not    make    it    invalid    as 
ncsses    thereto    does    not    disqualify  to   the  personal   property.      Parsons 
them,  for  they  are  presumed  to  know  vs.  Wass,   16  0.   C,   C.    (N.S.)    404. 


§  1169  NUNCUPATIVE   WILLS  1040 

of  the  law  have  been  fully  followed,  that  such  wills  are  not 
favorites  of  the  law,  and  tliat  the  factum  of  such  a  will  should 
be  strictly  proved  to  conform  to  the  legal  requirements  for  such 
a  will ;  testamentary  capacity  and  the  animus  testandi  at  the 
time  of  the  alleged  nuncupation,  must  be  shown  by  the  clearest 
and  most  indisputable  testimony,^^ 

In  consequence  of  the  disfavor  with  which  this  class  of  wills 
is  looked  upon  by  the  Courts,  says  Woerner,^"  it  is  necessary  to 
observe  the  utmost  strictness  in  -fulfilling  the  statutory  require- 
ments with  reference  to  them,  and  tO'  prove  the  testamentary 
capacity  and  animus  testandi  by  the  clearest  evidence ;  and 
deviation  therefrom  will,  according  to  the  unvarying  current  of 
authorities,  prove  fatal. 

§  1169.     Form  of  will. 

LAST  WILL  AND  TESTAMENT  OF  A.  B.,  DECEASED. 

On  the  6th  day  of  October,  A.  D.  1890,  A.  B.,  being  in  his  last  sickness 
at  his  residence  ( here  state  place ) ,  in  the  presence  of  the  subscribers,  did 
declare  his  last  will  concerning  the  disposition  of  his  property,  as  follows: 
(Here  insert  the  testamentary  words  as  near  as  they  can  be  remembered 
as  they  were  utteretl  by  the  testator.)  That  at  the  time  the  above  testa- 
mentary words  were  spoken,  the  said  A.  B.  called  upon  the  undersigned, 
who  were  then  present  to  bear  testimony  of  his  disposition  thereby  made  of 
his  property;  and  that  at  the  time  the  said  A.  B.  made  the  above  state- 
ments to  be  and  for  his  will,  he  was  of  sound  mind  and  memory  and  not 
under  any  restraint. 

Reduced  to  writing  this day  of and  subscribed  by 

us  as  witnesses  thereto.  


The  following  may  be  used  as  a  fonn  for  taking  the  testimony 

of  the  witnesses  to  a  nuncupative  will : 

State  of  Ohio, County,  ss. 

Before   me ,    Judge    ( or   deputy    clerk )    of   the    Probate 

Court  of county,   personally   appeared   I.  J.   and   K.   L., 

who  being  duly   sworn,   say   that  they  were   present  on  the  sixth   day  of 

October,   1888,  at  the  residence  of  A.   B.,   number street  in 

Cincinnati,  Hamilton  county,  Ohio,  and  did  hear  A.  B.  utter  what  is  speci- 
fied in  the  foregoing  writing;  that  he  was  at  that  time  of  sound  mind  and 
memory,  and  not  under  any  restraint,  and  that  he,  at  the  time  the  testa- 
mentary words  were  spoken  called  upon  them  to  bear  testimony  to  said 
disposition,  as  his  will,  and  that  said  A.  B.  was  then  in  his  last  sickness  to 
the  best  of  their  knowledge  and  belief. 


Sworn  and  subscribed  ,before  me  this  16th  day  of  October,  A.  D.   1888. 
Judge    (or  Deputy  Clerk)    Probate  Court County.  Ohio. 

28  Seever  vs.  Seever,  2  C.  C.  302 ;  1  Woerner   on    Admin.    489. 

C.   D.    496. 


1041  JOINT  WILLS  §  1170 

CHAPTER   LXII. 
JOINT  AND  MUTUAL  WILLS. 

§1170  Definition   and    classification.       §1173  Revocability  of  joint  and  mu- 
§  1171   Ohio  decisions.  tual    wills. 

§  1172  When  admissible  to  probate. 

§  1170.    Definition  and  classification. 

There  seems  to  have  been  a  great  deal  of  confusion  among 
Courts  in  reference  to  the  law  to  be  applied  to  joint,  mutual  or 
reciprocal  wills,  and  while  the  atmosphere  is  yet  full  of  judicial 
fog,  it  seems  to  be  clearing,  and  it  may  not  be  long  until  definite 
rules  may  be  laid  down  as  to  this  class  of  wills.  If  the  common 
intention  is  expressed  in  one  instrument,  which  is  signed  and 
executed  by  both  the  testators,  this  will  may  be  classed  as  a 
joint  ivill.  If  the  testators  have  executed  two  separate  instru- 
ments to  manifest  their  common  intention,  this  may  be  called  a 
mutual  ii'ill.  If  this  common  intention  is  that  the  property  of 
the  one  dying  first  shall  go  to  the  survivor,  it  may  be  termed  a 
mutual  or  reciprocal  u'ill.  "This  classification,"  says  Page,  "is 
not  adequate,"  and  as  to  the  substance  of  these  wills,  he  gives 
the   following  classification : 

1.  "The  will  by  which  the  one  dying  first  leaves  his  property 
to  the  survivor  or  survivors,  whether  this  is  done  by  one  will 
executed  by  all  the  testators  or  by  separate  wills  executed  sepa- 
rately. Some  of  the  Courts  have  termed  this  a  double  will, 
and  other  Courts,  while  applying  the  same  legal  principles,  re- 
fuse to  recognize  such  will  as  even  a  mutual  will,  but  prefer  to 
style  it  the  separate  will  of  each.  Wlien  such  arr  intention 
manifests  itself  in  separate  wills  they  are  sometimes  spoken  of 
as  concurrent  or  reciprocal  wills. 

2.  "The  will  by  which  the  testators,  in  separate  clauses,  dis- 
pose of  their  several  interests  in  tlie  execution  of  a  common 
intention. 

Where  a  husband  and  wife  make  Mutual  wills  concurrently  made  in 
the  same  testamentary  disposition  compliance  with  a  contract  between 
of  their  property  so  their  respective  two  parties  who  are  competent  and 
estates  may  take  the  same  course  and  free  to  act,  which  wills  are  sup- 
be  distributed  in  the  same  way  after  ported  by  both  mutually,  and  a  suf- 
death,  the  validity  of  a  trust  under  ficient  consideration  are  valid;  and 
one  will  not  be  defeated  by  reason  an  oral  agreement  to  execute  such 
of  a  faulty  execution  of  the  will  of  will  is  proved  bv  same  kind  of  evi- 
the  other.  Coghlan  vs.  Coghlan,  2G  dence  as  other  contracts,  etc.  Such 
O.  C.  C.    18.  Jin  ao-reement,  when  executed  by  the 

A  joint  will  is  not  created  when  the  making   of   such    will    is   irrevocable 

wills   are   separate,   executed    at   dif-  after   the   death    of    one.      Minor  vs. 

ferent     times     although     they     may  Minor,  2  N.  P.   (N.S.)   439;   15  Dec. 

make   the   same    disposition   of   the  204. 
property.    Id. 


§  1171  JOINT  WILLS  1042 

3.  "  The  will  by  which  the  testators  jointly  devise  their  joint 
interests  to  third  persons,  or  by  which  they  treat  their  sepa- 
rate property  as  a  common  fund  out  of  which  they  provide  for 
third  persons.     A  will  of  this  kind  is  often  termed  a  joint  will/ 

4.  "  The  will  which  is  a  composite  of  the  foregoing  types ; 
that  is,  which  provides  in  part  for  third  persons  and  in  part 
provides  for  the  survivor. 

5.  "  The  will  which  differs  from  the  third  class  only  in  that  it 
specifically  directs  that  it  shall  not  take  effect  till  the  death  of 
the  survivor  of  the  testators."  ^ 

§  1171.     Ohio  decisions. 

This  method  of  disposing  of  property  is  not  a  very  common 
one.  In  Ohio  but  two  cases  have  reached  the  Supreme  Court, 
and  these  are  not  in  accord ;  and  three  cases  are  reported  in 
inferior  reports.  The  first  case  in  the  Supreme  Court  is  that  of 
'Walker  vs.  Walker.^  In  this  case  it  is  held,  "A  joint  will  is 
unknown  to  tlie  testamentary  law  of  this  State,  and  is  incon- 
sistent with  the  policy  of  its  legislation ;  and  where  a  husband 
and  wife^  each  being  the  separate  owner  of  property,  join  in  the 
execution  of  an  instrument  in  the  form  of  a  will,  and  treating 
the  separate  property  of  each  as  a  joint  fund,  bequeathed  lega- 
cies and  devised  lands  to  divers  persons,  the  same  can  not  be  ad- 
mitted to  probate  as  the  joint  will  of  both  parties,  nor  as  the 
separate  will  of  either.  Although  some  of  the  provisions  con- 
tained in  the  body  of  such  a  will  may  be,  in  form  and  effect, 
several ;  yet,  inasmuch  as  the  provisions  of  such  a  will  partake 
of  the  nature  of  a  compact,  in  which  such  provision  is  influ- 
enced by  all  the  rest,  all  the  provisions  of  the  will  must  stand 
or  fall  together." 

There  is  quite  an  extended  opinion  in  this  case,  and  the  Court 
seems  to  arrive  at  its  conclusion,  giving  as  one  reason  the  fact 
that  the  statute  in  relation  to  wills  does  not  apply  to  a  plural 
number.  This  reason  is  exploded  in  the  later  case  of  Betts  vs. 
Harper,*  and  the  Court  further  relies  very  much  on  the  case  of 

1  Betts  vs.  Harper,  39  0.  S.  639.  3  14  0.  S.   157. 

2  Page  on  Wills,  §  66,  p.  70.  *  39  O.  S.  639. 


1043  OHIO  DECISIONS  §  1171 

Clayton  vs.  Liverman,  decided  by  the  Supreme  Court  of  North 
Carolina  in  1837.^  This  JSTorth  Carolina  case  has  been  repu- 
diated by  a  recent  case  in  the  same  State.** 

In  the  case  of  Betts  vs.  Harper,  in  speaking  of  the  case  of 
Walker  vs.  Walker,  the  Court  says :  "  Assuming  as  we  should 
—  more  than,  twenty  years  having  elapsed  since  the  case  was  de- 
cided —  that  the  instrument  received  the  proper  consideration, 
we  are  not  disposed  to  question  the  decision."  Then  the  Court 
goes  on  and  does  question  the  decision,  and  seems  to  avoid 
directly  overruling  it,  for  the  reason  that  the  case  before  it  is  not 
exactly  like  the  case  of  Walker  vs.  Walker.  It  seems  to  m©  that 
the  authorities  at  this  time  are  not  in  accord  with  the  decision 
in  Walker  vs.  Walker.     . 

In  the  case  of  Kunnen  vs.  7Airline,^  the  Superior  Court  of 
Cincinnati  attempted  to  follow  Walker  vs.  Walker,  but  held 
that  although  the  will  was  joint  in  form,  yet  from  the  fact  that 
one  person  owned  all  the  property,  and  the  other  person,  who 
was  the  wife,  owned  none,  that  such  a  will  was  not  the  joint  will 
of  both,  but  merely  the  valid  will  of  the  husband  and  could  be 
probated. 

In  another  case,^  where  wills  were  mutually  made  by  husband 
and  wife,  who  each  owned  property,  at  the  same  time  they  en- 
tered into  a  contract  in  writing  provided  that  the  provisions  of 
each  will  should  be  unalterable  and  irrevocable.  The  husband, 
however,  after  the  death  of  the  wife,  changed  his  will.  The 
Court  did  not  question  his  right  to  do  so,  neither  was  the  right 
to  make  a  mutual  will  questioned,  nor  the  power  of  the  Court 
to  admit  to  probate  the  will  of  the  person  who  first  died.  The 
decision  turned  upon  the  question  as  to  the  power  of  changing 
the  contract  and  the  effect  of  the  will. 

The  case  of  Albeny  et  al.  vs.  Session  "  was  a  case  in  which  the 
direction  of  the  Court  was  sought  upon  the  provisions  of  what 
it  termed  twin  wills.  In  this  case  the  right  of  each  person  to 
make  such  a  mil  is  not  questioned,  but  the  question  before  the 

6  2  Dev.  &  Bat.  L.  Rep.  558.  8  Trustees,  etc.,  vs.  Wise,  17  C.  0. 
c  In  re  Davis,  120  N.  C.  9 ;  38  L.       659 ;  6  C.  D.  703. 

R.  A.  289.  »  2  N.  P.  237 ;  3  Dec.  330. 

7  2  C.  S.  C.  R.  440. 


§  1172  JOINT  WILLS  1044 

Court  was  as  to  the  enforcement  of  what  is  termed  a  testamen- 
tary contract,  and  in  defining  what  constitutes  a  testamentary 
contract.     The  Court  says: 

1.  "  The  mind  of  both  parties  must  meet  in  regard  to  the 
same  thing. 

2.  "  They  must  be  competent  and  free  to  act. 

3.  "  There  must  be  a  consideration.  The  execution  of  each 
of  the  mutual  wills  must  be  the  consideration  for  the  execution 
of  the  other. 

4.  "  There  must  be  a  mutuality.  The  mutuality  must  run 
through  the  whole  of  both  wills,  and  through  every  part  of  each 
will.  A  reciprocity  must  pervade  both  wills.  '  The  property 
of  both  is  put  into  a  common  fund,  and  every  devise  is  the  joint 
devise  of  both,'  so  says  judicial  precept.^" 

5.  "  The  two  must  be  concurrently  executed.  They  could 
not  be  twins  unless  they  were  executed  at  the  same  time,  or 
within  a  reasonably  short  time  of  each  other. 

6.  "  Eacli  testator,  at  tlie  time  the  wills  were  executed,  or  be- 
fore that  time,  must  have  knovrn  what  were  the  provisions  of 
both  wills. 

7.  "  Both  testators  must  have  intended  that  the  wills  should 
not  be  revoked  without  the  consent  of  both  of  tbem." 

8.  The  existence  and  terms  of  the  contract  must  be  estab- 
lished by  tJie  most  clear  and  satisfactory  evidence.  The  same 
kind  of  evidence  by  which  other  contracts  are  proved  may  he 
used.^^ 

§  1172.    When  admissible  to  probate. 

The  same  author  from  which  we  have  before  quoted,  says: 
''There  is  no  dispute  as  to  the  admissibility  to  probate  of  wills 
of  the  first  and  second  types,  by  which  (a)  the  survivor  is  to 
take  the  property  of  tlie  one  dying  first,  or  (h)  by  which  sepa- 
rate interests  are  disposed  of  in  separate  clauses.  Such  wills 
are  to  be  admitted  to  probate,  if  in  other  respects  regular,  upon 
the  death  of  the  first  testator,  as  his  will. 

loDefonr   vs.   Peraro,    1    Dicken's  tator.       The     court     in     this     case 

Chancery  Kep.  419.  refrains    from    overruling    the    case 

112N.  P.  240;   3  Dec.  330.  of    Walker    vs.    Walker,    14    0.    S. 

In  the  recent  case  of  Ballard  vs.  639,  because   it  thinks   that   should 

Ballard,  37  O.  C.  C.  562 ;   26  0.  C.  be  done  by  the  Supreme  Court,  but 

C.    (¥.S.)    490;   5  0.  App.  469,  the  the  Walker  case  is  not  followed,  be- 

court  holds  that  tenants  in  common  cause  the  court  is  able  to  distinguish 

of    real    estate   may    by    single    will  a  difference  between  the  case  under 

dispose    of    real    estate    and    person-  consideration   and   the  Walker  case, 

alty    without    designating   the    pro-  One    thing    is    clear,    the    power    to 

portion  of  legacy  paid  by  each  tes-  make  a  joint  will  is  upheld. 


1045  REVOCABILITY  §  1173 

"  As  to  wills  of  the  third  type  —  those  by  which  the  testators 
jointly  devise  their  joint  interests  to  third  persons,  or  treat  their 
separate  property  as  a  common  fund  out  of  which  they  provide 
for  third  persons  —  there  has  been  more  diversity  of  opinion. 
The  great  weight  of  authority  is  that  tlie  will  of  this  type  is  to 
be  probated  on  the  death  oi  each  testator  as  the  separate  will  of 
decedent/^  and  that,  as  said  before,  if  this  can  not  be  done,  the 
instrument  should  be  refused  probate  as  a  will  altogether.  This 
last  rule  seems  to  rest  upon  sound  policy.  The  funeral  expenses 
and  debts  of  the  decedent  should  be  paid  as  soon  as  is  prac- 
ticable, and  the  estate  settled.  To  delay  such  payment  until 
the  death  of  some  one  other  than  testator  —  an  event  which  may 
not  occur  for  years  —  would  make  the  prompt  and  orderly  set- 
tlement of  decedent's  estate  impossible. 

"  It  must,  however,  be  admitted  that  there  are  some  early 
cases  which  recognize  the  validity  of  the  joint  will,  in  which  it 
is  intimated  that  such  will  could  not  be  probated  until  the  death 
of  both  testators."  ^^ 

§  1173.     Revocability  of  joint  and  mutual  wills. 

We  have  seen  m  a  previous  aiscussion  upon  the  subject  of 
wills  that  one  of  the  distinguishing  features  between  a  will  and 
a  contract  was  the  fact  of  its  revocability,^*  and  it  would  neces- 
sarily seem  to  follow  that  the  rule  should  be  applied  to  joint 
and  mutual  wills.  Confusion  arises  in  this  matter  from  the  fact 
that  the  contract  is  enforced,  even  though  the  will  has  been  re- 
voked. In  this  sense  it  may  be  stated  to  have  been  held  that  the 
will  can  be  revoked.  But  the  rights  remain  fixed,  not  by 
virtue  of  the  will,  but  by  virtue  of  the  contract.^^ 

12  In  re  Davis  Will.  120  N.  Car.  9;       L.  R.  A.  239,  the  reporter  says,  "  A 
Beits  vs.  Harper,  39  O,  S.  639.  review  of  the  authorities  shows  it  to 

13  Page  on  Wills,  §§  G8,  74.  to   be   well   established   now  that   a 

14  §   1014.  single  instrument   may   include  the 
isAlberry    vs.    Session,    2    N.    P.       wills  of  several  persons  if  its  pro- 

237;   3  Dec.  330;   Reformed  Church  visions  are  such  as  to  coastitute  or 

vs.  Wise,  17  C.  C.  659;  6  C,  D.  703;  include  a  separate  will  for  each  of 

Cawley's  Estate,  162  Pa.  St.  520.  them.     As  to  instruments  which  at- 

Tn    an    extended    note   where   the  tempt   to   make  a   joint   disposition 

case  of  in  re  Davis  is  reported  in  38  of  property  there  is  more  diffieulty. 


§  1173  JOINT  WILLS  1046 

As  to  certain  kinds  of  wills,  a  recent  author  recognizes  the 
unsettled  condition  when  he  says  of  the  law :  "  The  difficulties 
presented  by  the  joint  will  of  the  type  that  treats  the  property 
of  both  testators  as  a  common  fund  are  great,  and  the  adjudi- 
cated cases  give  but  little  indication  as  to  their  solution.  We 
may  ignore  the  point  made,  that  the  statute  of  Avills  refers  en- 
tirely to  a  will  executed  by  one  only ;  for,  as  has  been  well  said, 
the  statute  of  conveyances  refers  entirely  to  conveyances  by  one 
only,  but  no  doubt  has  ever  been  entertained  of  the  validity  of 
a  joint  deed.  The  difficulties  are  deeper  than  this.  One  of 
the  greatest  of  them  is  the  method  of  settling  the  estate  of  the 
first  decedent.  Inasmuch  as  the  will  disposes  of  the  property 
of  both  testators,  the  legacies  and  devises  can  not  be  paid  en- 
tirely out  of  the  estate  of  the  decedent ;  but  what  proportion  of 
them  to  pay,  what  distinction,  if  any,  between  specific  and  pe- 
cuniary legacies,  and  what  effect  the  possible  ultimate  insol- 
vency of  the  estate  of  the  surviving  testator  should  have,  are 
questions  which  will  sooner  or  later  be  presented  for  judicial 
consideration  whenever  such  type  of  will  is  treated  as  valid."  " 

But  a  majority  of  the  cases  seems  Tlie  statute  of  limitations  does  not 

to  agree  in  holding  that  a  will  can-  begin  to  run  until  the  death  of  the 

not  be  made  by  two  or  more  persons  survivor.      The    agreement    is    irre- 

unless  it  can  be  regarded  as  the  scp-  vocable    after    the    death    of    either 

arate  will  of  each  of  them  so  that  party.      The   will    may   be    revoked, 

it   may  be   probated    separately   for  but  the  compact  or  agreement  will 

each  without  regard  to  the  fact  that  be  enforced.     It  is  not  annulled  be- 

another  maker   is   still   living.  cause  the  will  of  the  survivor  can- 

i<5  Page  on  Wills^   §  69,   p.   77.  not  be  found  after  his  death,  where 

A  recent  nisi  prius  case  has  held  the   execution   of    such    wills,    their 

that   mutual   wills   are    valid.      One  contents  and  a  sufficient  considera- 

is  a  good  consideration  for  the  other.  tion   therefor   is   conclusively   shown 

An  oral  agreement  to  that  effect  is  by  oral  evidence.     ]Minor  vs.  Minor, 

not    within    the    statute    of    frauds.  2   K    P.    (N.S.)    439:    15   Dec.   264. 


1047 


CODICILS 


§1174 


CHAPTER  LXIIL 

CODICILS. 


§  1174  Definition. 

§  1175  Execution.       Revocation,  etc. 
1176  Construction  of  will  and  cod- 
icil. 


§  1177  Republication    of    will   by  a 

codicil. 
§  1178  Probate  of  codicil. 
§  1179  Form  of  codicil. 


§  1174.     Definition.  " 

The  term  ''  codicil "  in  the  sense  in  which  it  19  now  uni- 
Tersally  used  in  the  English  and  American  law,  may  be  defined 
to  be  some  addition  to  or  qualification  of  one's  last  will  and 
testament.  It  may  add  to  or  subtract  from,  alter,  explain,  con- 
finn,  revive,  or  republish  any  will  with  which  it  can  be  incorpo- 
rated. There  may  be  many  codicils,  but  there  can  be  but  one 
will.^ 

One  of  our  Courts  has  said  that  "  the  word  codicil  has  a 
-definite  legal  signification.  Its  signification  is  '  a  supplement 
to  a  will.'  The  province  of  a  codicil  is  not  to  revoke  a  will,  but 
to  change,  add  to,  or  subtract  from  a  v.-ill."  " 

Our  statute  says,  in  the  title  relating  to  wills,  the  term 
"  will "  shall  be  construed  to  include  codicils.^  The  codicil  is 
prima  facie  dependent  upon  the  will.  The  destniction  or  muti- 
lation of  the  will  is  an  implied  revocation  of  the  codicil.* 


13  Am.  &  Eng.  Ency.  ofLaw  291. 

Codicils  owe  their  origin  to  the 
following  circumstances:  Lucius 
Lentulus,  dying  in  Africa,  left  codi- 
cils, confirmed  by  anticipation  in  a 
•will  of  former  date,  and  in  these 
codicils,  requested  the  Emperor 
Augustus,  by  way  of  fidei  commis- 
sum  or  trust,  to  do  something  therein 
expressed.  The  emperor  carried  this 
will  into  effect,  and  the  daughter  of 
Lentulus  paid  legacies  which  she 
would  not  otherwise  have  been 
legally  bound  to  pay.  Other  persona 
made  similar  fidei  commissa,  and 
then  the  emperor,  by  the  advice  of 
learned  men.  sanctioned  the  making 


of  codicils,  and  thus  they  became 
clothed  with  legal  author  it  v.  Inst. 
225;   Bouv.  L.  Diet.  tit.  Codicil. 

sGifTen  vs.  Brooks,  3  C.  C.  118; 
2  C.  D.  64. 

3  §§10215-10502    G.   C,    §1033. 

•i§  1052. 

Woerner  on  Admin.  86,  87. 

Where  a  suit  to  contest  a  will 
was  brought  to  which  there  were 
three  codicils  and  in  the  petition 
only  the  first  and  second  codicils 
were  referred  to,  it  was  held  that 
on  trial  the  issue  is  made  up  by 
the  court,  and  the  will  with  all  the 
codicils  will  he  submitted  to  the 
jury — Clark,   Common   Pleas 


§  1175  CODICILS  1048 

§  1175.     Execution.     Revocation,  etc. 

A  codicil,  in  order  to  be  effective,  must  be  executed  with,  the 
same  formality,  and  the  testator  must  exercise  the  same  powers 
and  capacities  as  is  requisite  in  the  execution  of  a  valid  will. 
Likewise  a  codicil  can  be  revoked  only  in  the  same  method  that 
a  will  is  revoked.  Of  course,  if  the  will  is  revoked,  the  codicil 
being  a  supplement  to  the  will,  the  revocation  of  the  will  would 
work  a  revocation  of  the  codicil.  In  order  to  enable  what  pur- 
ports to  be  a  codicil  to  be  effective  when  the  will  is  destroyed, 
the  codicil  must  be  of  such  a  character  as  to  constitute  a  new  or 
independent  will.  It  is  common  practice  to  attach  the  codicil 
to  the  original  will,  but  this  is  not  essential.  The  same  effect 
can  be  accomplished  by  reference  as  by  attachment  or  writing 
upon  the  same  sheet  of  paper.  If  it  is  not  annexed  to  the  will, 
the  codicil,  where  no  expressed  date  is  mentioned,  refers  to  the 
will  latest  in  date.^ 

§  1176.     Construction  of  will  and  codicil. 

It  is  a  well  settled  rule  of  construction  that  a  will  and  codicil 
are  to  be  taken  and  construed  together  as  parts  of  one  and  the 
same  instrument,  and  the  intent  of  the  testator  gathered  from 
the  whole ;  and  that  a  codicil  will  not  be  held  to  revoke  the  dif 
position  of  the  will  further  than  is  clearly  expressed  or  neces' 
sarily  to  be  inferred  from  it." 

If  the  will  gives  an  estate,  in  order  to  revoke  the  samie  by 
codicil,  the  terms  used  must  be  equally  clear  and  a  later  codicil 
will  not  revoke  an  earlier  codicil,  unless  such  result  is  absolutely 
necessary  to  give  effect  to  the  later  codicil.  "  Where  a  second 
instrument  is  a  will  as  distinguished  from  a  codicil,"  says  Page,^ 
"  the  Courts  do  not  make  so  great  an  effort  to  reconcile  it  with 
the  former  will  as  they  do  in  the  case  of  a  codicil.  .  The  reason 
for  this  distinction  lies  in  the  fact  that  a  codicil  is  ordinarily  in- 
tended merely  to  effect  some  alteration  in  the  will,  leaving  tlie 
rest  of  it  in  force;  while  a  later  will  may  quite  as  well  be  in- 

5  See  §  1052.  Revocation  of  codicil.  7  Page  on  Will?.  §§  269.  300. 

«  Collier  vs.  Collier,  3  0.  S.  369. 


1049  PKOBATE  OF  §  117''' 

tended  to  dispose  of  testator's  property  in  disregard  of  the  for- 
mer will."  ^ 

§  1177.     Republication  of  will  by  a  codicil. 

From  the  fact  that  a  codicil  is  a  part  of  the  will  to  which  it  is 
attached  or  made  part  by  reference,  the  execution  of  the  codicil 
'per  se  operates  as  a  republication  of  the  will,  and  the  two  are 
to  be  regarded  as  but  one  instrument,  speaking  from  the  date 
of  the  codicil,^  And  therefore  it  may  operate  to  establish  a 
will  which  would  be  void  for  want  of  oorapliano  with  the  law 
regulating  its  execution  and  attestation,  because  the  codicil, 
speaking  and  operating  from  the  time  of  its  execution,  brings 
the  will  to  it  and  makes  it  a  will  from  the  date  of  the  codicil.^*' 

§  1178.     Probate  of  codicil. 

Ordinarily  a  codicil  is  so  connected  with  the  will  to  which  it 
refers  that  it  cannot  be  probated  apart  from  such  will.  If  it  can 
be  probated  apart  from  the  will,  it  would  lose  its  character  of  a 
codicil,  and  would  become  an  independent  will.  In  reference 
to  the  fonnalities  surrounding  the  probating  of  a  codicil,  the 
same  law  applies  as  to  the  probating  of  a  will,  and  for  all  such 

8  W..  on  February  17th,  1886,  second  of  my  said  will  as  would  in- 
made  his  will,  by  the  second  item  of  elude  said  Emma,  and  I  hereby  give 
which  he  gave  all  the  property  to  his  and  devise  to  my  daughter,  Margaret 
daughter,  Margaret,  and  all  his  Jackson,  and  all  my  other  grand- 
grandchildren,  share  and  share  children,  not  including  said  Emma, 
alike;  and  also,  by  it  provided  that  all  my  estate  of  every  kind,  share 
"  if   at   the   time   of   my   death,   my  and  alike." 

daughter    Margaret   or    any    of    my  "  With  the  change  above  made,  I 

grandchildren    shall    have    deceased,  hereby  approve  and  confirm  all  will 

;hen  my  estate  shall  go  to  the  sur-  and  codicil  as  my  last  will."    Decid- 

'/ivors,  their  heirs  and  assigns,  share  ed  that  the  second  codicil  abrogated 

ind     share    alike."       January     3rd,  the    provision    of    survivorship    con- 

1890,  W.  made  st  second  codicil  to  his  tained  in  the  second  item  of  the  will, 

will,  in  which  he  recites  that,  since  Jackson  vs.  Shinnick.  3  N.  P.  211; 

the  making  of  his  will,  he  had  given  6  Dec.  37.     See  §  1184  et  seq.,  Con- 

his    grand-daughter,    Emma    Camp-  struction  of  wills, 

bell,  certain  real  estate  which  he  con-  »  3  Am.  &  Eng.  Ency.  of  Law,  301 ; 

sidered  fully  equal  to  her  full  pro-  Page  on  Wills,  §§  307,  347. 

portion  of  his  estate  and  then  says:  lo  Woerner  on  Admin.  87. 
"  I  hereby  revoke  so  much  of  item 


§  1179  CODICILS  1050 

purposes  a  codicil  is  a  will.*  It  may  oe  contested  in  the  same 
manner  as  a  will,  and  the  same  right  exists  for  error  and  appeal 
and  a  repropounding.  While  a  codicil  can  not  be  probated 
without  the  will,  yet  the  will  may  be  probated  even  though  the 
codicil  can  not  be  found.^^ 

§  1179.     Form  of  codicil. 

I,  A.  B.,  make  this  codicil  to  my  last  will  and  testament  which  was 
dated  Sept.  1,  1894.  I  cancel  and  revoke  the  legacy  of  one  thousand  dollars 
given  to  G.  H. 

I  give  to  my  son,  C.  D.,  executor  of  my  will,  in  addition  to  the  portion 
given  him  under  my  will,  one  thousand  dollars. 

In  all  other  respects  I  confirm  my  will. 

Witness  my  hand  this  first  day  of  October,  in  the  year  one  thousand 
eight  hundred  and  ninety-four.  A.  B. 

Signed,  published  and  declared  by  the  above  named  A.  B.  as  and  for  a 
codicil  to  his  last  will  and  testament  in  presence  of  us  who  in  his  presence 
(and  in  the  presence  of  each  other)  and  at  his  request  have  hereto  sub- 
scribed our  names  as  witnesses. 

L.  B. 
G.  F. 

This  form  of  attestation  is  more  full  than  the  law  requires. 
Under  our  statute  the  witnesses  need  not  sign  in  each  others 
presence.     See  infra}^ 

II  Page  on  Wills,  §§  314,  359.  12  Whittaker's  Code  Forms,  181. 


1051 


CONSTRUCTION  OF  WILLS 


§1180 


CHAPTER  LXIV. 

CONSTRUCTION  OF  WILLS. 


§  IISO  Definition,  etc.  §  1200 

§  llSl  General  rules  of  construction.       §  1201 
§  1182  Rules  as  to  intention.  §  1202 

§  1183  Rules  as  to  repugnancy.  §  1203 

§  1184  Rules  for  supplying  words. 
§  1185  When  extrinsic  evidence  ad-       §  1204 

missible.  §  1205 

§  1 186  Parol  evidence.  §  1206 

§  1187  Declarations  of  the  testator. 
§  1188  Devise  for  life,  remainder  to 

heir  in  fee.  §  1207 

§  1189  Rule  in  Shelley's  case. 
§  1190  Vesting  of  estates. 
§1191  Property  acquired  subsequent       §1208 

to  making  of  will  passes. 
§  1192  When  whole  estate  of  devisor       §  1209 

in  land  to  pass  by  the  devise. 
§  1193  Life    estate    with    power    of       §  1210 

disposal. 
§  1194  Devise  or  bequest  not  to  lapse 

by    the    death    of    devisee   or 

legatee.  §  1211 

§  1195  Lapsed  bequest. 
§  1 196  "  Heirs,"  how  construed. 
§  1197  "Issue"  construed.  §  1212 

§  1198  "Children"    construed.  §1213 

§  1199  "Next  of  kin"  construed. 


"  Relation  "  construed. 
"  Descendants  "  construed. 
Disinheriting  heirs. 
Provisions     against    contest^ 
ing. 

Restraints  of  alienation. 
Restraint  of  marriage. 
When   real   estate   undevised 
shall  be  applied  to  pay  debts 
instead  of  personalty. 
Contribution  when  devised  or 
bequeathed  property  taken  to 
pay  debts. 

Except   when   will    otherwise 
provides. 

But    whole    estate    liable    for 
debts. 

Portion    of    child    born    after 
execution  of  will  or  supposed 
tj  be  dead,  or  of  witness  sub- 
ject to  contribution. 
If    any    liable    to    contribute 
are  insolvent,  etc.,  how  other  a 
to  make  up   deficiency. 
How  contribution  enforced. 
Order    to    sell    land    to    pay 
debts.    Not  affected,  etc.i 


§  1180.     Definition,  etc. 

Construction  in  the  law  of  wills  is  the  ascertaining  and  deter- 
mining of  testator's  intention  as  expressed  in  his  will,  and  its 
application  to  existing  facts  and  circumstances  with  which  such 

guity  exists  in  such  provisions;  the 
mere  fact  that  we  cannot  understand 
why  testator  so  provided,  or  such 
provision  is  contrary  to  what  we 
might  exi>ect,  does  not  justify  put- 
ting a  construction  on  said  will  dif- 
ferent from  its  plain  words.  Rob- 
bins  vs.  Smith,  5  C.  C.  (N.S.)  545; 
27  0.  C.  C.  91 ;  afiirmed  72  O.  S.  1. 

A  Court  of  Equity  will  not  reform 
a  will.  Younce  vs.  Flory,  77  0.  S. 
71. 

Where  the  provisions  of  a  will  are 
clear  and  unambiguous  there  is  noth- 
ing for  tlic  court  to  construe.     Rein- 


1  See  §  1031  as  to  perpetuities. 

§  907  et  seq.,  Descent  and  distri- 
bution. 

§  804,  Devise  to  sell. 

§  674  et  scq.,  As  to  payment  of 
legacies. 

Where  the  parties  agree  on  a 
construction  in  good  faith  it  will 
bo  upheld,  although  it  is  not  the 
construction  that  the  court  would 
have  placed  on  the  will.  Poland  vs. 
St.  Joseph,  9  C.  C.  (N.S.)  5.35;  29 
O.  C.   C.   649. 

A  will  is  to  be  interpreted  by  its 
express    provisions    when    no    ambi- 


§  1180  CONSTRUCTION   OF   WILLS  1052 

intention  deals.  ^  Rules  of  construction  are  used  to  aid  in 
ascertaining  the  intention,  but  are  not  adhered  to  against  an  ob- 
vious intent ;  hence  one  case  may  not  be  the  standard  for  an- 
other, as  no  two  wills  are  apt  to  be  exactly  alike.^  And  where 
a  will  is  open  to  two  constructions,  one  of  which  gives  effect  to 
the  whole  instrument,  while  the  other  destroys  a  part,  the  former 
construction  must  be  adopted.*  And  the  rule  is  well  settled  that 
all  parts  of  a  will  are  to  be  construed  in  relation  to  each  other, 
so  as,  if  possible  to  form  one  consistent  whole,  and  thus  uphold 
and  give  effect  to  all  the  provisions  of  tlie  will.**  And  if  two 
clauses  of  the  will  are  irreconcilable,  the  last  controls  the  first.^ 

Words  in  a  will  are  to  be  construed  in  their  common  and  or- 
dinary sense,  and  nO'  word  can  be  rejected  and  another  substi- 
tuted in  its  place  without  the  clearest  certainty  that  such  was 
the  intention  of  the  testator.*' 

In  treating  of  this  matter  in  a  work  of  this  kind  a  difficulty 
is  experienced  in  what  to  omit  as  w^ell  as  that  which  should  be 
inserted.  The  subject  of  construction  is  a  very  extensive  one, 
and  can  only  be  properly  treated  in  a  treatise  on  the  subject  of 
wills.  It  is  thought,  however,  that  some  service  may  be  ren- 
dered by  the  insertion  at  least  of  rules  laid  do^\m  by  recognized 
authors.  The  following  several  sections  are  largely  taken  from 
a  valuable  w^ork  on  the  probate  law  of  our  sister  State,^  which, 
in  turn,  says  that  they  are  taken  from  the  treatises  of  Redfield, 
Jarman,   Williams  and  Wigrams.® 

hard  vs.  Reinhard,  3  X.  P.    (N.S.)  Townsend,  25  0.  S.  477;  Linton  vs. 

280;    15  Dec.  741.  Laycock,   33  O.  S.   128. 

When   executors   are   to   sell  real  3  Brasher  vs.  Marsh,  15  0.  S.  103; 

estate   after   the  death   of  the  wife  Williams  vs.  Veach,  17  0.   171. 

of  the  testator,  and  divide  the  pro-  *  Pruden  vs.  Pruden,  14  O.  S.  251. 

ceeds  among  certain  children,  a  quit  4*  Worman  vs.  Teagarden,  2  0.  S. 

claim  deed  made  by  one  of  the  chil-  380;    Parker   v.s.    Parker,    13   0.    S. 

dren    during    tlie    life   of   the   wife,  95;  Baxter  vs.  Bowyer,  19  0.  S.490. 

conveys     no     estate.       Knisely     vs.  ^  Coonrod  vs.  Coonrod,  6  0.   114; 

Young,  33  0.  C.  C.  439.  Young    vs.     Mclntire,     3    O.     498; 

2  Page  on  Wills,   §§457,  533.  Parker   vs.   Parker,    13   0.   S.   95. 

The  sole  object  in  view  in  giving  Sch.   on   Wills,  474. 

a  construction  to  a  will  is  the  ascer-  ^  gee  Page  on  Wills,  §§  462,  539. 

tainment  of  the  intention  of  the  tes-  7  Henry  Pro.  Law.    (Ind.)    677. 

tator   and    give   the   will    sucli   con-  8  See  §§  10213  G.  C,  10502,  G.  C, 

struction   as  will   carry   this    inten-  §  1033,    for    statutory    construction, 

tion  into  effect.     See  §§  1181,  1182.  Parties  interested  may  file  a  peti- 

Decker  vs.  Decker,  3  0.   157;   King  tion   and  have   a   judicial   construc- 

vs.    Beck,    15    O.    559;    Brasher   vs.  tion,   §§10857-8   G.  C,    §33. 
Marsh,  15  0.  S.  103;   Townsend  vs. 


1053  GENERAL    RULES  §1181 

§  1181.     General  rules  of  construction. 

The  following  general  rules  are  given : " 

1.  A  will  of  real  estate,  wherever  made,  and  in  whatever  lan- 
guage written,  is  construed  according  to  the  law  of  the  place  or 
country  in  which  the  property  is  situate,  but  a  will  of  personalty 
is  governed  by  the  law  of  the  domicile. 

2.  Technical  words  are  not  necessary  „to  give  effect  to  any 
species  of  disposition  in  a  will.^° 

3.  The  construction  of  a  will  is  the  same  at  law  as  in  equity, 
the  jurisdiction  of  each  being  governed  by  the  nature  of  the  sub- 
ject, though  consequences  may   differ. 

4.  A  will  speaks  for  some  purposes,  from  the  period  of  its  ex- 
ecution, and  for  others,  from  the  death  of  the  testator,  but  never 
operates  until  tlie  latter  period.^^ 

5.  The  heir  is  not  to  be  disinherited  without  an  express  de- 
vise, or  necessary  implication,  such  implication  importing  not 
natural  necessity,  but  so  strong  a  probability  that  an  intention 
to  the  contrary  can  not  be  supposed.^" 

6.  Merely  negative  words  are  not  sujfficient  to  exclude  the 
title  of  the  heir  or  next  of  kin.  There  must  be  an  actual  gift  to 
some  other  definite  object,^^ 

7.  All  parts  of  a  will  are  to  be  construed  in  relation  to  each 


»  Jarman's  24  Rules ;  Jennings  vs, 
Jennings,  21  0.  S.  56;  McCune  vs 
House,  8  0.  144;  Brewster  vs.  Ben 
edict,  14  0.  S.  368;  Hartshorne  vs 
Ross,  2  Disney,  444 ;  Craighead  vs 
Pike,  4  Ree.  199;  Seh.  on  Wills,  491 

See  §  1016,  §  1118  G.  C,  Law  gov 


Woerner  on  Admin.  §419;  Cinton 
vs.  Boyd,  19  O.  S.  30;  Farrar  vs. 
Fallestine,  4  C.  C.  235;  2  C.  D.  519; 
]\IcCall  vs.  Jones,  4  W.  L.  M.  627. 

12  See  §  1202. 

Crane  vs.  Doty,  1  0.  S.  279; 
Smith  vs.  Jones,  4  0.  115;   Bane  vs. 


erning.  Wick,   19  0.  328. 

10  The  rule  for  construing  the  Ian-  The  statute  of  descents  operates 
guage  of  the  will  is  less  rigid  than  upon  all  intestate  property,  and  the 
it  is  in  regard  to  any  other  instru-  course  which  it  indicates  can  be 
ment.  It  is  not,  necessarily,  to  be  changed  only  by  a  testamentary  dis- 
viewed  technicallj',  and  with  strict  position.  Mathews  vs.  Krisher,  59 
grammatical  accuracy,  but  sensibly  0.  S.  562;  Page  on  Wills,  §§467, 
and  liberally,  in  order  to  give  effect  548. 

to  intention.     15  0.  S.  103;  Brasher  1 3  Woerner  on  Admin.  §418. 

vs.   Marsh ;    Sch.   on   Wills   470.  Words   of   survivorship   in   a  will 

11  Smith  vs.  Block,  29  0.  S.  488;  refer  to  the  time  of  the  testator's 
Ilosmer  vs.  Sturges,  31  0.  S.  657;  death.  Renner  vs.  Williams,  71  0. 
Baker   vs.   McGrew,   41    0.   S.    113;  S.  340. 


§  1181  CONSTRUCTION   OF   WILLS  1054 

other,  and  so  as,  if  possible,  to  form  one  consistent  whole ;  but 
where  several  parts  are  absolutely  irreconcilable,  the  latter  must 
prevail.^* 

8.  Extrinsic  evidence  is  not  admissible  to  alter,  detract  from, 
or  add  to  the  terms  of  a  will.^^ 

9.  Nor  is  it  admissible  to  vary  the  meaning  of  words,  and 
therefore  to  attach  a  strained  and  extraordinary  sense  to  a  par- 
ticular word,  in  an  instrument  executed  by  the  testator,  in  which 
the  same  word  occurs  in  that  sense. ^® 

10.  But  the  Court  will  look  at  the  circumstances  under  which 
the  devisor  made  his  will,  as  the  state  of  his  property,  his  family, 
and  the  like.^" 

11.  In  general,  implication  is  admissible  only  in  the  absence 
of,  and  not  to  control,  an  express  disposition.^^ 

12.  An  express  and  positive  devise  can  not  be  controlled  by 
the  reason  assigned,  or  by  subsequent  ambiguous  words,  or  by 
inference  and  argument  from  other  parts  of  the  will.^® 

13.  The  inconvenience  or  absurdity  of  a  devise  is  no  ground 
for  vaiwing  the  construction,  where  the  terms  of  it  are  unam- 
biguous, nor  is  the  fact  that  the  testator  did  not  foresee  all 
the  consequences  of  his  disposition  a  reason  for  vaiwing  it.  But 
where  the  intention  is  obscured  by  conflicting  expressions,  it  is 
to  be  sought  rather  in  a  rational  and  consistent,  than  an  irra- 
tional and  insistent  purpose. 

14.  The  rules  of  construction  can  not  be  strained  to  bring  a 
devise  within  the  rules  of  law,  but  it  seems  that  where  the  will 

1*  Parker    vs.    Parker,    13    O.    S.  It  must  appear,  however,  that  the 

105;   Decker  vs.  Decker,   3  0.    157;  testator    knew     the     circumstances. 

Williams    vs.    Veach.     17    0.    171;  Jones  vs.  Lloyd.  33  0.   S.   572. 

'Starlin<^    vs.    Price,    IG    0.    S.    20;  is  Parker  vs.  Parker,  13  0.  S.  105. 

Edwards  vs.  Ranier,   17  0.  S.  597;  1 9  Parker  vs.  Parker,  13  0.  S.  105, 

Townsend   vs.    Townsend,   25    O.    S.  109. 

477  ;  Carter  vs.  Reddish,  32  0.  S.  1 ;  See    Reinhard    vs.    Reinhard,    15 

Sell,  on  Wills,  473.  Dec.  741. 

15  Collins  vs.  Hope,  20  0.  492;  A  will  must  be  construed  as  an 
Townsend  vs.  Townsend,  25  0.  S.  entirety,  and  the  intention  of  the 
All;  Wornian  vs.  Teagarden,  2  0.  S.  testator  ascertained  and  carried  into 
380;  Charch  vs.  Charch,  57  0.  S.  efl'ect.  Huber  vs.  Carew.  7  C.  C. 
561  (^^-S.)    609;   2  X.  P.    (X.S.)    81;    14 

16  Thompson  vs.  Thompson,  4  O.  Dec.  656;  affirmed  26  O.  C.  C.  389. 
S.  333;  Edwards  vs.  Ranier,  17  O.  Evidence  tending  to  show  circum- 
S.  597.  stances    of    the    testator,    his    char- 

17  Sch.  on  Wills  469;  .Jones  vs.  acter,  objects  of  his  bounty,  his  ties 
Lloyd,  33  O.  S.  572;  Parker  vs.  of  affection  and  his  instructions  to 
Parker,  13  0.  S.  105;  Charch  vs.  the  scrivener  who  drew  the  will, 
Charch  57  0  S*".  561 :  Townsend  vs.  rightfullv  reiected.  Foster  V3. 
Townsend,  25  0.  S.  490.  Clifford, '87  0.  S.  306. 


1055  GENERAL  RULES  §  1181 

admits  of  two  constructions,  that  is  to  be  preferred  which  will 
render  it  valid."'' 

15.  Favor  or  disfavor  to  the  object  ought  not  to  influence 
the  construction. 

16.  Words  in  general  are  to  be  taken  in  their  ordinaiy  and 
grammatical  sense,  unless  a  clear  intention  to  use  tliem  in  an- 
other sense  can  be  collected,  and  that  other  can  be  ascertained ; 
and  they  are  in  all  cases  to  receive  a  construction  which  will  give 
to  every  expression  some  effect,  rather  than  one  that  wdll  render 
any  of  the  expressions  inoperative  ;  and  of  two  modes  of  construc- 
tion that  is  to  be  preferred  which  will  prevent  a  total  or  even 
partial  intestacy'."^ 

17.  Where  a  testator  uses  technical  w^ords,  he  is  presumed  to 
employ  them  in  their  legal  sense,  unless  the  context  clearly  indi- 
cates the  contrarj^ 

More  recent  decisions  have  so  relaxed  this  rule  that  technical 
language  is  now  given  a  more  reasonable  construction,  and  will 
receive  either  a  technical  or  popular  construction,  according  to 
circumstances."' 

18.  Words  occurring  more  than  once  in  a  will  shall  be  pre- 
sumed to  be  used  always  in  the  same  sense,  unless  a  contrary  in- 
tention appear  from  the  context,  or  unless  the  words  be  applied 
to  a  different  subject.'^ 

19.  Words  and  limitations  may  be  transposed,  supplied  or 
rejected  where  warranted  by  tlie  immediate  context,  or  the  gen- 
eral scheme  of  the  will,  but  not  merely  on  a  conjectural  hypothe- 
sis of  the  testator's  intention,  however  reasonable,  in  opposition 


20  Pruden  vs.  Piuden,  14  0.  S.  288 ;  Tliorapson  vs.  Thompson,  4  O. 
251.  S.  33. 

21  Carter  vs.  Reddish,  32  O.  IS.  1 ;  Strict  technical  meaning  may  be 
Bowen  vs.  Bowen,  34  O.  S.  164;  given  to  such  words  as  "  heirs "  un- 
Zanesville  vs.  Zanesville,  20  O.  483;  less  it  appears  that  they  were  used 
Collier  vs.  Collier,  3  0.  S.  369;  in  the  will  as  meaning  something 
Page  on  Wills,  §§471,  536;  Colston  else.  Weston  vs.  Weston,  38  0.  S. 
vs.  Bishop,  1  C.  C.  486;  Sch.  on  473 ;  Jamicson  vs.  Knights  Templar, 
Wills  472.  12  Bull.  272;  Y.  M.  L.  Ass'n  vs.  Pol- 

22To\vnsend  vs.  Townsend,   25  0.  lard,  3  C.  C.  577;  2  C.  D.  333. 

S.  477;  Richey  vs.  Johnson.  30  O.  S.  23  Sch.  on  Wills  471. 


§  1182  CONSTRUCTION  OF  WILLS  1056 

to  the  plain  and  obvious  sense  of  the  language  of  the  instru- 
ment."* 

20.  Words  which  it  is  obvious  are  niiswritten  may  be  cor- 
rected."''* 

21.  The  construction  is  not  to  be  varied  by  events  subsequent 
to  the  execution,  but  the  Court,  in  determining  the  meaning  of 
particular  expressions,  will  look  to  possible  circumstances  in 
which  they  might  have  been  called  upon  to  affix  a  signification 
to  them. 

22.  Several  independent  devises,  not  grammatically  con- 
nected or  united  by  the  expression  of  a  common  purpose,  must 
be  construed  separately  and  without  relation,  to  each  other. 
There  must  be  an  apparent  design  to  connect  them. 

23.  Where  a  testator's  intention  can  not  operate  to  its  full  ex- 
tent, it  shall  take  effect  as  far  as  possible. 

24.  A  testator  is  rather  to  be  presumed  to  calculate  on  the 
disposition  of  his  will  taking  effect  than  the  contrary,  and  ac- 
cordingly a  provision  for  the  death  of  devisee  will  not  be  con- 
sidered as  intended  to  provide  exclusively  for  lapse,  if  it  admits 
of  any  other  construction. "° 

§  1182.     Rules  as  to  intention. 

It  may  be  remarked  that  the  rules  for  construction  of  wills  are 
less  rigid  than  those  in  regard  to  other  instruments,  the  prin- 
ciple being  to  ascertain  the  most  obvious  intent  of  the  testator. 
The  intention  of  the  testator  is  the  object  of  all  construction, 
but  this  general  proposition  is  subject  to  the  following  qualifica- 
tions :  ^* 

1.  The  intention  must  be  expressed  in  the  words  of  the  will.-^ 

24Woerner  on  Admin.  SSO;   Page  Woodruff    vs.    Woodruff,    23    C.    C. 

on  Wills,   §§  462,  539.  40S. 

■  24*  Merrick  vs.  Merrick,  37  0.  S.  Swerer  vs.  University,  27  0.  C.  C. 

126.  144. 

25  Henry   Pro.   Law  678.  27  Collins   vs.    Hope.    20    O.    492; 
See  Redf.  Rur.  Prac.  234;  Alexan-  Tnwnsend   vs.    Townsend,    25    0.    S. 

der  vs.   Mendenhall,   32  Bull.    IISI;  477:  Shaw  vs.  Hoard.  IS  O.  S.  227. 

Gilpin  vs.  Williams,  17  0.   S.   396;  ^Miere  there  are  doubtful  clauses 

25  0.  S.  283;  Pendleton  vs.  Bowler,  in  a  will  the  court  determining  the 

27  Bull.  313.  meaning  the  testator  intended   they 

26  All  rules  of  construction  must  should  have  will  not  be  controlled 
bend  to  and  conform  to  the  rule  that  by  general  rules  or  judicial  deci- 
nothing  shall  stand  in  the  way  of  sions  in  cases  apparently  similar 
the  expressed  intention  of  the  testa-  but  will  interpret  them  reasonably 
tor   unless    it   be   contrary   to   law.  in     particular     cases.       Moon     va. 

Stewart.  87  0.  S.  349. 


1057 


RULES  OF  INTENTION 


1182 


2.  The  general  intent,  if  clear,  will  control  particular  terras,^® 

3.  Words  are  to  have  that  force  which  authority  gives  them, 
unless  the  contrary  is  clear. ^'^ 

4.  Clearly  expresses]  intention  controls  doubtful  construc- 
tion'" 

5.  Punctuation  is  laot  authoritative  in  fixing  constiniction.'^ 

6.  The  will  shoulc)  be  upheld  and  made  reasonable  as  far  as 
practicable. 

7.  Courts  will  fiive  some  meaning  to  a  will,  unless  absolutely 
impossible. 

The  rule  i.-  unwersal  in  American  Courts  that  the  plain  and 
unambigyjua  words  of  the  will  must  prevail,  and  are  not  to  be 
controlled  ot  qualified  by  any  conjectural  or  doubtful  construc- 


It  is,  tiierefore,  a  cardinal  prin- 
ciple in  expounding  wills,  announced 
by  so  many  authorities  that  it  would 
be  tedious,  and  is  unnecessary  to 
attempt  to  mention  them,  that  the 
intention  of  the  testator  must  be 
found  in  his  expressed  words.  The 
grammatical  and  ordinary  popular 
sense  of  the  words  should  be  ad- 
hered to,  unless  it  would  lead  to 
some  absurdity,  or  repugnance,  or 
inconsistency  with  the  rest  of  the 
instrument.  Woerner  on  Admin. 
870;  Worman  vs.  Teagerden,  2  O.  S. 
380. 

But  that  which  is  plainly  implied 
in  the  language  of  a  statute  is  as 
much  a  part  of  it  as  that  which 
is  expressed.  Doyle  vs.  Doyle,  50 
O.  S.  330;  Gates  vs.  Pond,  12  C.  C. 
59;  5  C.  D.  297. 

28  Prudcn  vs.  Pruden,  14  O.  S. 
259;  Davis  vs.  Davis,  62  O.  S.  411; 
Page  on  Wills,    §§  4G3,   541. 

29  Moore  vs.  Moore  12  B.  Mon. 
651,  656. 

"  The  testator's  understanding  of 
the  meaning  of  the  words  used  in  the 
will,  will  be  adopted  without  re- 
sorting to  lexicographers,  to  deter- 
mine what  the  same  may  mean  in 
the  abstract."  Tleinders  vs.  Koppel- 
man,  94  Mo.  338,  343;  Garth  vs. 
Garth,  139  IMo.  45G;  Woerner  on 
Admin.    F'O. 


so  To  this  endj  the  will  as  a  whole 
must  be  considered. 

In  construing  a  will,  the  great  ob- 
ject is  to  ascertain  the  intention  of 
the  testator,  and  this  is  to  be  gath- 
ered from  the  phraseology  of  the 
will  itself  and  in  order  to  arrive  at 
this  intention,  it  is  necessary  to  look 
at  the  whole  instrument.  It  will 
not  do  to  seize  upon  an  isolated 
passage  and  ^ive  it  a  controlling 
effect.  Williams  vs.  Veach,  17  0. 
171;  Townsend  vs.  Townsend,  25  0. 
S.  477;  Carter  vs.  Reddish,  32  O, 
.S.  1;  Charch  vs.  Charch,  57  0.  S. 
5G1. 

31  Jackson  vs.  Shinnick,  3  N.  P. 
211;  6  Dec.  37. 

If,  in  so  considering  the  language 
of  the  testator,  an  intelligible  inten- 
tion may  be  elicited  therefrom, 
neither  technical  informality,  nor 
grammatical  or  orthographical  er- 
rors, nor  confusion  in  the  arrange- 
ment of  words  arising  from  unskil- 
fulness,  ccin  be  permitted  to  defeat 
it.     Woerner  on  Admin.  870. 

Words  deliberately  used  are  pre- 
sumed to  have  been  placed  there  for 
a  specific  purpose,  and  cannot  be  ar- 
bitrarily ignored ;  and  they  must  be 
given  the  meaning  to  effect  the  in- 
tention of  the  testator,  if  such  inten- 
tion can  be  ascertained  and  no  rule 
of  law  is  violated.  McDaniel  vs. 
Hayes,  6  N.  P.  (N.S.)  435;  15  Dec. 
661;  affirmed  74  0.  S.  515. 


^  1183  .  CONSTRUCTION  OF  WILLS  1058 

tions  growing  out  of  the  situation,  incumbrances  ot  condition  of 
the  testator,  his  property  or  family.  Extraneous  facts  may  aid 
but  can  not  control  the  construction  of  words. 

Children  and  their  issue  should  not  be  disinherited  on  any 
doubtful  construction. 

All  the  papers  constituting  the  testamentary  act  are  to  be  con- 
sidered ;  and  the  technical  meaning  of  words  are  to  be  followed 
only  where  it  reaches  the  intent.^^ 

§  1183.     Rules  as  to  repugnancy. 

The  following  rules  in  reference  to  repugnancy  in  wills  are 
fully  established  :^^ 

1.  Directing  a  legacy  to  be  made  a  charge  on  land  is  not 
repugnant  to  a  subsequent  direction  for  the  sale  of  the  same 
land ;  but  a  devise  in  fee  with  a  provision  never  to  sell  is  repug- 
nant. 

2.  No  portion  of  a  will  is  to  be  rejected  for  repugnancy  ex- 
cept from  necessity ;  but  every  portion  will  be  upheld,  if  possi- 
ble ;  and  to  effect  this,  the  order  of  the  bequests  will  be  reversed. 

3.  General  words  are  controlled  by  those  more  specific,  and 
words  are  not  to  be  rejected  for  repugnancy  except  from  neces- 
sity. But  if  there  are  repugnant  words  contravening  tiie  gen- 
eral sense  or  intent  of  the  will,  such  words  must  be  rejected. 


32  When  a  devise  was  made  of  208  he  has  attempted  to  make,  it  should 
acres  "  and  also"  83  acres,  the  same  be  held  void  for  uncertainty,  and  the 
words  of  limitation  applied  to  both  property  left  to  descend  and  be  dis- 
tracts. Noble  vs.  Ayers,  61  O.  S.  tributed  according  to  law.  Cope  vs. 
491.  Cope,  45  O.  S.  464. 

Henry  Pro.  Law  682.  33  Repugnancy  must  arise  on  the 

See  Page  on  Wills,  §§  475,  563.  face  of  the  will  to  justify  rejection 

Where  the  provisions  of  a  will  in  of  a  word  or  clause,  and  can  not  be 

each  and  all  of  its  items  are.  when  created    by    extraneous    proof.     But 

considered  as  an  entirety,  so  obscure  the   repugnancy    need    not   be   with 

that,  with  the  aid  of  all  the  light  some  other  distinct  word  or  clause 

that  can  be  shed  on  it  by  the  extra-  but  may  be  a  conflict  with  the  gen- 

neous  circumstances,  no  definite  idea  eral  tenor  or  scope  of  the  will  and 

can  be  formed  of  the  intention  of  the  its    implications.     Davis    vs.    Boggs. 

testator    in   any  of  the  dispositions  20  O.  S.  550. 


1059  RULES    FOB   SUPPLYING    WORDS  §  1184 

4.  In  case  of  irreconcilable  repugnancy,  the  latest  portion  of 
the  will  must  stand.^* 

§  1184.     Rules  for  supplying  words. 

The  following  general  rules  are  applicable  for  supplying 
words : 

1.  Words  omitted  may  be  supplied  by  intendment;  but  this 
is  not  done  where  there  is  ground  for  doubt  in  regard  to  the 
words.  ^^ 

2.  Words  omitted  may  be  supplied  by  reference  to  the  cor- 
relative part  of  the  will. 

3.  The  name  of  a  devisee  may  be  supplied  by  clear  intend- 
ment.    Even  the  name  and  the  devise  itseK  may  be  so  supplied. 

4.  The  terms  of  one  devise  can  not  be  drawn  into  the  con- 
struction of  another  wholly  distinct.  The  correspondence  must 
amount  to  identity.  The  Court  will  not  cut  down  a  devise  in  a 
codicil  by  a  resort  to  the  will.^® 

5.  When  the  sections  of  a  will  are  numerically  arranged,  each 
section  is  distinct. 

6.  In  our  Courts  almost  any  latitude  of  construction  is  al- 
lowed to  meet  the  clear  intent  of  the  will.     "  Die  without  is- 

34  If  an  instrument  is  open  to  two  36  See  §  1177. 

constructions,  one  consistent  with  Where  a  will  gives  the  wife  the 
and  the  other  repugnant  to  law,  or  personalty  absolutely,  and  the  real- 
one  which  will  effectuate  the  whole  ty  during  life  and  widowhood,  and 
instruntent  and  the  other  will  de-  a  codicil  gives  her  all  realty  and 
stroy  part,  the  former  is  always  personalty  "  to  be  disposed  of  by  her 
adopted.  Pruden  vs.  Pruden,  14  0.  as  seems  best,"  the  intent  is  to  give 
S.  251;  Page  on  Wills,  §§  503,  589;  her  a  fee  in  both  and  her  mortgage 
Schoui.  on  Wills  478.  of  the  realty  is  valid.     MacClement 

35  Boggs  vs.  Taylor,  26  0.  S.  604.  vs.    MacClement,     1    Dayton    Term 
Where  property  is  devised  by  two  Reps.  101. 

descriptions,  either  of  which  is  suf-  A  testator  having  left  to  his  wife 

ficient  in  form,  but  it  is  shown  that  several  items  for  life,  left  to  her  a 

one  of   them   is   erroneous   and   the  farm   without  words   of   limitation, 

other  correct,  the  former  should  be  but  in  another  clause  required  that 

rejected,  and  the  property  will  pass  after  her  death  all  the  remainder  of 

by  the  latter  description,  according  his    estate   be    equally    divided,    etc. 

to   the   maxim,    Falsa   demonstratio  Held,  she  took  a  life  estate  only  in 

non  nocet.     Merrick  vs.  Merrick,  37  the  farm.     Hull  vs.  Hull,  9  Cir.  D. 

0.   S.   126.  19;  16  C.  C.  688. 


§1185 


CONSTRUCTION    OF    WILLS 


1060 


sue  "  has  been  construed  to  mean  ''  without  issue  living,"  and 
what  seems  a  life  estate  in  terais  may  be  construed  a  remainder 
in  fee.^' 

§  1185.     When  extrinsic  evidence  admissible. 

The  rules  heretofore  given  show  that  the  intention  of  the 
testator  is  the  object  to  be  striven  for.  But  this  intention  must 
be  shown  in  some  way  by  the  will  itself,  and  not  by  facts  out- 
side.^^  Extrinsic  evidence  is  not  admitted  in  any  case  with  a 
view  of  reforming  or  adding  anything  to  the  will,  but  for  the 
purpose  of  arriving  at  the  real  intent  of  the  testator,  by  identi- 
fying the  person  or  thing  generally  described,  and  to  remove 
the  ambiguity  resulting  from  the  erroneous  particular  descrip- 
tion.'^ 

No  evidence  is  necessary  where  there  is  no  ambiguity,  as  then 
the  will  must  speak  entirely  for  itself.*" 

The  following  propositions  on  the  subject  of  the  admissibility 
of  extrinsic  evidence  to  aid  in  the  construction  of  wills  are 
taken  from  Wigram's  work  on  "  Extrinsic  Evidence,"  and  ar* 
of  great  value  and  importance: 


37  Words  of  a  will  may  be  trans- 
posed when  such  transposition  will 
render  the  will  clear  without  chang- 
ing its  natural  import ;  and  the 
Court  may  reach  the  obvious  intent 
of  the  testator  by  transposition. 
Words  of  local  description  applying 
to  one  devise  may  be  referred  to  an- 
other, and  vice  versa;  but  no  liberty 
of  transposition  or  supplying  of 
words  is  allowed,  unless  in  further- 
ance of  the  most  unquestionable  pur- 
pose of  the  testator. 

3S§1186,    Parol    evidence. 

§  1187,   Declaration  of  testator. 

S9  Page  on  Wills,  §§816.  972. 

Extrinsic  and  parol  evidence  seem 
to  be  almost  synonymous  words 
when  used  in  reference  to  the  con- 
struction of  a  will.  The  one  liter- 
ally meaning  any  evidence  outside  of 
the  will  itself,  and  the  other  mean- 
ing evidence  not  in  writino;. 

«jPage  on  Wills,   §§818,   074. 

A  distinction  is  drawn  between  a 
patent  and  latent  ambiguity.  A 
patent  ambiguity  is  defined  as  one 
which  is  apparent  upon  the  face  of 
the    instrument,    as   where    in    wills 


the  same  tract  is  disnosed  of  in  dif- 
ferent clauses  to  different  individ- 
uals. A  latent  ambiguity  is  defined 
as  one  which  is  not  discoverable  un- 
til extrinsic  evidence  is  introduced 
to  identify  the  beneficiaries  or  the 
property  disposed  of  by  will.  The 
general  rule  being  that  extrinsic  evi- 
dence is  only  admissible  to  explain 
a  latent  ambiguity.  This  doctrine 
is  criticised  in  Page  on  Wills  as  not 
being  founded  upon  sound  principle, 
and  thr.t  extrinsic  or  parol  evidence 
is  admissible  to  explain  a  patent 
ambiguity. 

The  intention  of  the  testator  can- 
not be  shown  ^ by  parol  when  he  is 
silent  on  the  subject.  Reinhard  vs. 
Reinhard.  3  N.  P.  (N.S.)  280;  15 
Dee.    741. 

The  rule  of  extrinsic  evidence  is 
admissible  in  aid  of  the  construction 
of  a  will  permits  of  introduction  of 
evidence,  as  to  blood  relationship 
existing  between  devisees,  and  also 
of  a  previous  will  after  which  the 
one  in  hand  was  copied.  Taylor  vs. 
Taylor,  19  Dec.  829. 

Testimony    of    the    scrivener   who 


1061  EXTKINSIC  EVIDENCE  §  1185 

1.  A  testator  is  always  presumed  to  use  the  words  in  which, 
he  expresses  himself  according  to  their  strict  and  primary  ac- 
ceptation, unless  from  the  context  of  the  will  it  appears  that  he 
has  used  them  in  a  different  sense,  in  which  case  the  sense  in 
which  he  thus  appears  to  use  them  will  be  the  sense  in  which 
they  are  to  be  construed. 

2.  Where  there  is  nothing  in  the  context  of  a  will  from  which 
it  is  apparent  that  a  testator  has  used  the  words  in  which  he  has 
expressed  himself  in  any  other  than  their  strict  and  primary 
sense,  and  where  his  words  so  interpreted  are  sensible  with 
reference  to  extrinsic  circumstances,  it  is  an  inflexible  rule  of 
construction  that  the  words  of  the  will  shall  be  interpreted  in 
their  strict  and  primary  sense  and  in,  no  other,  although  they 
may  be  capable  of  some  popular  or  secondary  interpretation, 
and  although  the  most  conclusive  evidence  of  intention  to  use 
them  in  such  popular  or  secondary  sense  be  tendered. 

3.  Where  there  is  nothing  in  the  context  of  a  will  from  which 
it  is  apparent  that  a  testator  has  used  the  words  in  which  he 
has  expressed  himself  in  any  other  than  their  strict  and  primary 
sense,  but  his  words  so  interpreted  are  insensible  with  reference 
to  extrinsic  circumstances,  a  Court  of  law  may  look  into  the  ex- 
trinsic circumstances  of  the  case  to  see  whether  the  meaning 
of  the  words  be  sensible  in  any  popular  or  secondary  sense  of 
which,  with  reference  to  these  circumstances,  they  are  capable. 

4.  Where  the  characters  in  which  the  will  is  written  are  diffi- 
cult to  be  deciphered,  or  the  language  of  the  will  is  not  under- 
stood by  the  Court,  the  evidence  o.f  persons  skilled  in  decipher- 
ing writing,  or  who  understand  the  language  in  which  the  will 
is  written,  is  admissible  to  declare  what  the  characters  are,  to 
inform  the  Court  of  the  proper  meaning  of  the  words. 

5.  For  the  purpose  of  determining  the  object  of  a  testator's 

bounty,  or  the  subject  of  disposition,  or  the  quantity  of  interest 

intended  to  be  given  by  his  will,  a  Court  may  inquire  into  every 

material  fact  relating  to  the  person  who  claims  to  be  interested 

Tinder  the  will,  and  to  the  property  claimed  as  the  subject  of 

disposition,  and  to  the  circumstances  of  the  testator  and  of  the 

family  and  affairs,  for  the  purpose  of  enabling  the  Court  to  iden- 

drew    the    will    as    to    instructions      Zaskman  vs.  Dick,  34  O.  C.  C.  4.50; 
given  liim  by  testator  incompetent.       1  O.  App.  36. 


I  1186  CONSTRUCTION  OF  WILLS  1062 

tify  the  person  or  thing  intended  by  the  testator,  or  to  determine 
the  quantity  of  interest  he  has  given  by  his  will. 

6.  Where  the  words  of  the  will,  aided  by  evidence  of  the  ma- 
terial facts  of  the  case,  are  insufficient  to  determine  the  testa- 
tor's meaning,  no  evidence  will  be  admissible  to  prove  what  the 
testator  intended,  and  the  ^vill  will  be  void  for  uncertainty. 

7.  Notwithstanding  the  above  rule  of  law  which  makes  a  will 
void  for  uncertainty.  Courts  of  law  in  certain  special  cases  ad- 
mit extrinsic  evidence  of  intention  to  make  certain  the  person 
or  thing  intended,  where  the  description  in  the  will  is  insuffi- 
cient for  the  purpose.*^ 

§  1186.     Parol  evidence. 

Parol  evidence  is  not  admissible  to  alter,  detract  from  or  add 
to  the  terms  of  a  will,  nor  to  correct  supposed  mistakes  therein. 
It  is  admissible,  in  order  to  place  the  Court  in  the  position  of 
the  testator,  but  not  to  render  any  extrinsic  fact  part  of  the 
will.  Such  evidence  can  not  supply  any  defect,  or  accident,  oi 
omission,  but  it  may  be  sho^vri  that  part  of  the  instrument  is  not 
the  testator's  will.*^ 

The  following  are  instances  in  which  parol  evidence  is  not 
admissible  in  construing  wills  :*' 

1.  Filling  up  a  total  blank  in  a  will. 

2.  Inserting  a  devise  omitted  by  mistake. 

3.  Proving  what  was  intended  by  an  unintelligible  word. 

4.  Proving  that  a  thing  in  substance  different  from  that  de- 
scribed in  the  will  was  intended. 

5.  Changing  the  person  described. 

41  Henry  Pro.   Law   687.  vs.  Taylor,  26  O.  S.  604:   Black  vs. 

42  Painter  vs.  Painter,  18  0.  247;       Hill,  32  O.  S.  313. 

Thompson    vs.    Thompson,    4    O.    S.  Parol    evidence    may    be    received 

333 ;  Worman  vs.  Teagarden,  2  0.  S.  for    the    purpose    of    counteracting 

380.  fraud   in   the   devisee,   and    in    some 

43  Taken  from  Henry  Probate  Law  peculiar  cases  to  attach  a  trust  to 
and  Prac.  the    estate    devised.      But    in    such 

Where  words  in  a  will  are  fairly  cases    the    court    will    act    with    the 

and    legitimatelv    applicable    to    one  extreniest  caution.     Collins  vs.  Hope, 

thing  as   its  name,  and   are  equally  20  O.  402^,  Vance  vs.  Park,  15  C.  C. 

applicable     to     another      thing     as  713:    7    X.    P.    138. 

words  of  description,  parol  evidence  The   evidence   must    be   clear    and 

is   admissible    to   show   in   which   of  convincing.      Boughman    vs.    Bough- 

the  two  senses   the  testator   was  in  man,   69   O.    S.  — . 
the  habit  of  using  the  words.    Boggs 


1063  '     PAROL  EVIDENCE  §  1186 

6.  Reconciling  conflicting  clauses  in  a  will. 

7.  Proving  to  which  of  two  antecedents  a  given  relative  wae 
intended  to  refer. 

8.  Explaining  or  altering  the  estate. 

9.  Proving  which  of  several  testamentary  guardians  was  in- 
tended to  have  the  actual  care  of  tlie  children. 

10.  Proving  what  was  to  be  done  with  the  interest  of  a  legacy 
until  the  time  of  payment. 

11.  Proving  that  by  a  bequest  of  the  residue  a  particular  sum 
was  intended. 

12.  Constniing  a  will  with  reference  to  the  instructions  given 
for  preparing  it. 

13.  Proving  that  an  executor  was  to  be  a  trustee  of  the  resi- 
due for  the  next  of  kin. 

14.  Proving  that  an  executor  was  intended  to  take  beneficially 
where,  on  the  face  of  the  will,  it  was  conclusively  apparent  that 
he  was  intended  to  be  a  trustee. 

15.  Controlling  a  technical  rule  of  verbal  construction. 

16.  Explaining  the  sense  in  which  the  word  "  relations  "  waS 
intended  to  be  used. 

17.  What  a  testator  intended  to  give  by  the  word  "  plate." 

18.  What  a  testator  intended  to  devise  by  the  words  "  lands 
out  of  settlement." 

19.  Proving  that  a  portion  was  intended  to  be  a  satisfaction 
of  a  bequest  of  the  residue. 

20.  That  a  legacy  in  a  codicil  was  intended  to  be  a  substitu- 
tion for  a  legacy  in  the  will. 

21.  Proving  that  a  devise  to  a  wife  was  intended  to  be  in 
bar  of  dower. 

22.  Supplying  a  use  or  trust. 

23.  Ascertaining  whether  the  real  estate  was  charged  with  the 
payment  of  debts  in  aid  only,  or  in  exoneration  of  the  personal 
estate. 

24.  That  the  intention  in  appointing  a  debtor  to  be  executor 
was  a  release  of  the  debt. 

25.  Pebutting  a  presumption  which  arises  from  the  con- 
struction of  words  simply  qua  words. 

26.  Raising  a  presumption. 


§  1187  CONSTRUCTION  OF  WILLS  1064 

27.  Increasing  a  legacj. 

28.  Increasing  that  which  is  defective. 

29.  Adding  a  legacy  to  a  will. 

30.  Proving  what  interest  a  legatee  was  intended  to  take  in 
a  legacy. 

31.  Ascertaining  an  intention  which,  on  the  face  of  the  will 
was  indeterminate. 

32.  Proving  that  words  of  limitation  were  intended  to  be 
construed  as  words  of  purchase. 

33.  Proving  that  executors,  who  had  acted  in  part  and  then 
renounced,  Avere  intended  by  the  testator  to  act  only  to  that 
extent  to  which  they  acted. 

34.  Proving  that  the  testator  meant  to  use  general  words  in 
this  or  that  particular  sense. 

Parol  evidence  is  always  admissible  to  show  fraud,  deception, 
or  undue  influence  in  obtaining  a  will,  and  cases  allow  a  very 
extensive  range  of  testimony  in  support  of,  and  in  reply  to,  evi- 
dence tending  to  show  fraud,  undue  influence  and  wealmess  of 
mind  as  the  moving  and  proximate  causes  of  a  will.** 

^  1187.    Declarations  of  the  testator. 

A  testator's  declarations  are  not  admissible  to  effect  the  con- 
struction of  a  will.  They  are  admissible  on  question  of  fraud 
and  undue  influence.**''  They  are  admissible  to  show  the  state 
of  a  testator's  mind.*^ 

Where  a  testator  devised  all  of  his  "home   farm"   to  his 

44  Henry  Pro.  Law  690.  regarcled  as  part  of  the  transaction, 
Our  courts  hold  that  they  are  not      should  be  received  upon  the  princi- 

admissible,   Chaney   vs.    Coulter,   29  pie  of  evidence,   as  part  of  the  res 

O.  C.  A.   ISS,   quoting:    The  law  is  gestae.     On    the   other   hand,   mere 

that    declarations    of    the    testatrix  naked  declarations  of   the  testator, 

made  before  or  after  the  making  of  made   so   remote   from   the  time  of 

the  will  if  near  such  time  are  ad-  execution  as  not  to  form  part  of  the 

missible  to  prove   state  of  mind  of  res  (jestaem,   to   the   effect  that   at- 

the   testatrix,    but    are   not    admis-  tempts  at  fraud  or  undue  influence 

sible  to  prove  the  fact  of  undue  in-  had   been   made,    or   had    compelled 

fluence.      If    the    declarations    tend  him  to  make  a  will  contrary  to  his 

to    prove    both    the    fact    of    undue  real  purpose  and  intent,  seem  wholly 

influence  and  the  state  of  mind  of  inadmissible   upon   recognized    prin- 

the  testatrix,  then   the.  court  must  ciples  of  evidence.    See  46  Bull.  161. 

■admit    the    testimony    and    instruct  As  to  presumption  of  having  de- 

the   jurv   that   it   can   consider   the  stroved  will,  see  Gurley  vs.  Armen- 

declarations    only    so    far    as    they  trout,  6  C.  C.   (N.S.)    156;  27  C.  C. 

tend  to  prove  the  state  of  mind  of  199    (1905). 

testatrix.      Boepple   vs.   Mellert,   24  Plaintiff   in    a   will   contest   is   a 

O.  C.  C.   (IST.S. )   410.  competent  witness   to   testify   as  to 

45  Eedf.  on  Wills  553,  after  a  acts  of  the  testator  and  the  manner 
careful  consideration  of  the  numer-  in  which  these  acts  were  performed, 
ous  authorities,  states  that  the  dec-  although  he  is  a  devisee  and  son  of 
larations  of  a  testator  near  the  decedent.  Wilson  vs.  Wilson,  19 
time  of  making  a  will,  so  as  to  be  Dec.  18S. 


1065  DECLARATIONS  OP  TESTATOR  §  1187 

widow  in  an  action  by  a  residuary  devisee  to  recover  land 
wliieli  the  defendant  claimed  under  the  devise,  as  part  of  the 
home  farm,  declarations  of  tlie  testator  that  he  had  received 
a  large  part  of  his  means  from  the  iancestor  of  the  plaintiff, 
and  that,  in  consequence  of  such  aid,  he  intended  to  will  the 
premises  in  question  to  them,  cannot  he  given  in  evidence  as 
showing  the  extent  or  boundaries  of  the  farm.*® 

In  another  Ohio  case  it  is  said  "  Ti-ue,  the  tnistee  alleges  in 
his  answer  that  he  knows  from  conversations  held  with  the 
deceased  that  he  contemplated  a  remote  period  as  the  time  of 
listribution,  but  we  are  not  to  regard  any  such  averment.  We 
ire  to  find  the  intention  of  the  testator  in  the  will  itself,  and  are 
tot  at  liberty  to  allow  its  terras  to  be  varied  or  contradicted  by 
^»nversation  or  parol  statements  made  either  before  or  after 
<ts  execution.*^ 

The  declarations  by  a  testator  to  the  scrivener  of  the  will,  with 
proof  of  the  provisions  of  a  will  of  the  testator,  from  which  the 
will  in  question  was  copied,  are  not  admissible  to  explain  con- 
■flicting  provisions  of  the  will  itself.*®  While  declarations  of  a 
testator  are  not  admissible  generally  to  aid  in  construing  the 
will,  yet  they  are  admissible  to  shoAv  the  condition  of  his  mind 
at  the  time  he  made  his  will  when  the  question  of  his  mental 
capacity  is  at  issue,*^  Likewise  declarations  may  be  sometimes 
admitted  to  show  undue  influence  and  show  the  motive  which 
actuated  him  in  the  disposition  of  his  property.^" 

46  Taylor  vs.  Boggs,  20  0.  S.  516.  merely   of   the   mental   condition   of 

*7  Hamilton  vs.  Rodgers,  38  O.  S.  the  testator.     In  the  former  case  it 

257;  Banning  vs.  Banning,  12  0.  S.  is   mere  hearsay,   and   liable   to   all 

437.  the    objections    to    which    the   mere 

48  Clark  vs.  Trustees,  3  C.  C.  152;  declarations    of    third    persons    are 

2  C.  D.  87;   Page  on  Wills,   §§820,  subject;  while,  in  the  latter,  it  is  the 

983.  most  direct  and  appropriate  species 

43  Page  on  Wills,   §§400,  474.  of   evidence."      Questions   of   mental 

50  Page  on  Wills,   §§423,  500.  competency  and   of  undue  influence 

Thus  in  the  case  of  Waterman  vs.  belong,  in  this  respect,  to  the  same 

Whitney,   UN.  Y.   157,  which  pre-  class ;  because,  as  is  said  by  Jarman, 

Bents  a  careful  analysis  of  this  mat-  in     his     work     on     Wills:     "The 

ter,  Mr.  Justice  Seldon  says :     "The  amount    of    undue    influence    which 

difference  is  certainly  very  obvious  will  be  sufficient  to  invalidate  a  will 

between    receiving    the    declarations  must,     of    course,     vary    with    the 

of  the  testator  to  prove  a   distinct  strength   of  weakness   of  the   testa- 

■  external    fact,    such    as    duress    or  tor."     1   Jarm.   36.     So   the  mental 

fraud,  for  instance,  and  as  evidence  strength   or  weakness   of   the  testa- 


<§1189  CONSTRUCTION  OF  WILLS  1066 

§  1188.  Devise  for  life,  remainder  to  heirs  in  fee.  "When 
lands,  tenements,  or  hereditaments  are  given  by  will  to  a  person 
for  his  life,  and  after  his  death  to  his  heirs  in  fee,  or  by  words 
to  that  effect,  the  conveyance  shall  vest  an  estate  for  life  only 
in  sucli  first  taker,  and  a  remainder  in  fee  simple  in  his  heirs." 
[R.  S.  §5968.]'^ 

§  1189.    Rule  in  Shelley's  case. 

The  above  statute  is  the  section  which  abolishes  what  is  known 
as  the  rule  in  Shelley's  case.  This  rule  means  that  "  When  a 
person  talces  an  estate  of  freehold,  legal  or  equitable,  under  a 
deed,  will,  or  other  writing,  and  afterwards,  in  the  same 
deed,  will,  or  writing,  there  i&  a  limitation,  by  way  of  re- 
mainder, with  or  without  the  interposition  of  any  other  estate, 
of  an  interest  of  the  same  quality,  as  legal  or  equitable,  to  his 
heirs  generally,  or  the  heirs  of  his  body,  by  that  name  in  deeds  of 
writing  or  conveyance,  and  by  that  or  some  such  name  in  wills, 
and  as  a  class  or  denomination  of  persons  to  take  in  succession 
from  generation  to  generation,  the  limitation  to  the  heirs  will 
entitle  the  person  or  ancestor  himself  to  the  estate  or  interest 
imported  by  the  limitation."  ^- 

Before  the  act  of  1840,  the  mle  was  in  force  in  this  State."* 
But  the  Court  would  never  strain  a  point  to  bring  a  case  with- 
in this  rule,  which  is  at  least  a  mere  artificial  technicality.^' 
And  it  is  said  that  it  is  not  a  rule  of  construction  but  a  rule  of 
property  not  designed  to  give  meaning  to  words,  but  to  fix  the 
nature  and  quantity  of  an  estate,  and  an  express  intent  controls 
it"     The  rule  in  Shelley's  case  is  forbidden  to  apply  to  wills 

tor  is  directly  in  issue  in  every  case  estate  tail.     Pollock  vs.  Speidel,  17 

of  alleged  undue  influence,  and  the  O.  S.  439. 

same  evidence  is  admissible  in  everv  ^^  ^^   ^™-   ^  ^"e-   Ency.   of  Law 

<unh  ^aa.   oo  ;     .  ,         •         •/  493;  Page  on  Wills,  §  564,  p.  606. 

such  case,  as  m  cases  where  insanity  52*  McFellv  vs.  Moore,  5  O.  464. 

or  absolute  incompetency  is  alleged.  And    it    still    applies    to    deeds. 

Rice  Pro.  Law  and  Prac.  1G3.  Mack  vs.  Champion.  26  Bull.  113. 
51  §  10578    G.    C.  ^^  I^ing  '^'s-  Beck,  15  0.  S.  562. 

Wlior,  loTi^ia  «,.«  „„    J       J  i^      n     ■•  54  King   vs.    Beck,    15   0.    S.   562; 

\\nen  lands  are  conVeved  by  deed       tr-^  *     j  c      ii      o    x-     d     otq 

„.,,,.         ,  ,  .        *         •'  Kiertsed   vs.    Smith,   8   ^N.   P.   3<8; 

to  the  heirs   of  his  body   and   as-       Kepler  vs.  Reeves.  1  Bull.  58. 
signs  forever"  the  grantee  takes  an  See  Williams  vs.  Haller,  27  Dec. 

343,  for  holding  when  rule  does  not 
apply  and  construction  given. 


1067  Shelley's  case  §  1190 

only  when  such  application  would  defeat  the  manifest  in- 
tention.^° 

This  section  is  not  intended  to  prevent  the  creation  of  a  fee 
tail,  that  is,  an  estate  of  inheritance,  descending  on  the  death  of 
the  owner  to  the  heirs  of  his  body  and  not  to  his  heirs  generally. 
Thus  a  devise  to  A,  his  heirs  and  assigns,  provided  that  if  he 
should  die  leaving  no  heirs  it  should  go  to  another,  is  held  to 
create  an  estate  tail.  A  devise  to  A  and  her  issue  and  their 
heirs,  passes  an  estate  tail  to  A.°^ 

The  law,  however,  prefers  to  construe  a  will  so  as  to  create 
an  estate  in  fee  instead  of  an  estate  in  fee  tail  where  the  lan- 
guage in  the  will  is  ambiguous. ^^ 

§  1190.     Vesting  of  estates. 

The  law  favors  the  vesting  of  estates,  and  in  the  construction 
of  devises  of  real  estate,  the  estate  will  be  held  to  be  vested  in 
the  devisee  at  the  death  of  the  testator,  unless  a  condition  pre- 
cedent to  such  vesting  is  so  clearly  expressed  that  the  estate 
can  not  be  regarded  as  so  vested,  without  directly  opposing  the 
terms  of  the  will.  To  this  end,  words  of  seeming  condition 
will,  if  they  can  bear  that  construction,  be  held  to  have  the 
effect  of  postponing  the  right  of  possession  only,  and  not  the 
present  right  to  the  estate. 

55  Carter  vs.  Reddish,  32  0.  S.  1.       equally    divided   between   them    and 
Before    abolition    of    the    rule    in       their  heirs  at  their  death  convoys  a 

Shelley's   case   a   devise   to   sons   in  fee.     Halley  vs.  Hengster,  23  C.  C. 

fee,  but  with  a  later  clause  stating  504. 

that  the  devise  was  for  life  only  so  It  may  vest,  although  it  is  in  the 

that  they  could  only  sell  a  life  es-  control    of    a    trustee.      Swerer    vs. 

tate,  and  after  their  deaths,  to  their  University,  6  C.  C.    (KS.)    105;   27 

respective  heirs  at  law  in  fee,  gives  C.  C.  144. 

the  sons  a  life  estate  only.  The  in-  Words  of  survivorship  in  a  will 
tent  governs  and  prevents  applica-  prima  facie  refer  to  the  time  of  the 
tion  of  the  rule  in  Shelley's  case,  death  of  the  testator,  because  that 
Archer  vs.  Brockschmidt,  5  D.  348 ;  is  the  time  at  which  the  property 
5  N.  P.  349.  to  be  divided  usually  comes  into  en- 
Words  of  perpetuity  are  not  nee-  jo.yment,  but  it  may  be  a  later  period 
essary  in  a  will  to  carry  a  fee —  if  the  words  of  survivorship  relate 
"I  devise  my  lands"  is  sufficient.  to  such  later  period.  Renner  vs. 
Smith  vs.  Berr.y,  8  0.  365.  Williams,  71  O.  S.  340. 

See  Page  on  Wills,  §§  565,  658.  Where  a  testator  devises  his  resid- 

56  Harkness  vs.  Horning,  24  O.  S.  uary  estate  to  his  lawful  heirs,  share 
416.  and  share  alike,  all  persons  who  at 

57  Collins  vs.  Collins,  40  0.  S.  353;  the  time  of  testator's  death  answer 
Kepler  vs.  Reeves,   1   Bull.  58.  the  description  of  his  lawful   heirs, 

A  will  bequeathing  an  estate  to  k.  are  entitled  to  share  in  distribution 

and   his   heirs   forever,   in   trust  for  per  capita   regardless  of  the  degree 

B.,   a   feme   covert,   for   life    and    to  of    their    relationship.      Mooney    vs. 

such  uses  as  she  shall  appoint,  is  an  Purpre,  70  0.  S.  57. 
equitable    fee    simple    in    B.      Arm-  If    real    estate    is    devised    to    A. 

strong  vs.  Zane,   12  0.  287.  generally    without    qualification    or 

A    devise    to    two    devisees    to    be  condition,   but   with   a    proviso   that 


§1190 


CONSTRUCTION    OF    WILLS 


1068 


A  devise  to  one  when  he  arrives  at  a  given  age  —  the  inter- 
mediate estate  being  devised  to  another  —  vests  on  the  death  of 
the  testator,  and  is  not  defeated  by  the  death  of  the  devisee 
before  the  specified  age.  The  words  of  futurity  importing  con- 
tingency, ai*e  not  necessarily  inconsistent  with  the  immediate 
vesting  of  the  estate,  but  may  be  regarded  as  merely  postpon- 
ing the  possession, ^^ 

Equitable  estates  vest  and  descend  as  legal  estates.  A  devise 
of  real  estate  to  trustees  in  trust  to  collect  the  rents  and  pay  a 
definite  sum  annually  to  the  widow  of  the  testator  during  her 
life,  and  to  divide  the  residue  equally  among  his  children  "  or 
their  heirs,"  and  at  the  death  of  his  widow,  to  convey  an  equal 
part  of  his  lands  to  each  of  his  children  "  or  their  heirs,"  vests 
an  equitable  estate  in  each  of  his  children  at  the  death  of  the 
testator,  in  the  absence  of  a  clear  intention  to  postpone  the  vestr 
ing  to  some  later  time.^** 

A  rule  of  construction  favoring  vesting  of  estate  at  the  time 
of  testator's  death,  like  all  other  rules  of  construction  will  be 


in  case  of  his  death  without  will  tlie 
prcperty  shall  go  to  B.,  the  limita- 
tion over  is  void,  and  A.  takes  the 
entire  estate.  Findlav  Brewing  Co. 
vs.  Dick,  1  N.  P.  (is\S.)  592;  13 
,De3.  58 1;  affirming  0.  C.  C. 

58  Linton  vs.,  Laycock,  33  0.  S. 
128. 

A  devise,  though  not  otherwise  ex- 
pressed, is  implied  in  a  direction  in 
t!ie  will  to  (.ivic^e  an  estate  among 
devisees;  and  the  rule  vesting  lega- 
cies— bequeathed  only  by  a  direction 
to  pny  or  divide — at  the  time  fixed 
for  the  payment  or  division,  does 
not  apply  to  devises  of  real  estate. 
Id. 

A  construction  of  a  will  that  ties 
up  an  estate  is  not  favored.  Pen- 
dleton vs.  Pendleton,  27  Bull.  313. 
Pee  Williams  vs.  First  Presbyte- 
rian Soc  etc.,  1  0.  S.  479,  where  a 
trust  is  held  to  be  a  fee,  etc. 

lis*  Bolton  vs.  Bank.  '50  0.  S.  290. 
A  devise  to  the  widow  for  life 
without  disposing  of  the  remainder, 
leaves  the  remainder  to  descend  at 
once  as  a  vested  interest.  Grop- 
pengeister  vs.  Walter,  19  C.  C.  579- 
10  C.  D.  673. 

A  devise  of  a  farm  for  twelve 
years,     afterwards     the     executors 


should  sell  and  divide  the  proceeds 
among  children  equally,  gives  the 
executor  but  a  mere  naked  power 
and  vests  the  fee  in  the  children  at 
once.  Barkman  vs.  Hain,  5  N.  P. 
508;  5  Dec.  474;  Wevmouth  vs.  Ir- 
win, 5  N.  P.  248;  7  Dec.  91;  Law- 
ton  vs.  Lawton,  5  N.  P.  441;  7  Dec. 
493. 

A  devise  of  real  estate  to  execu- 
tors to  sell  within  fifteen  years  and 
divide  the  proceeds  when  sold  among 
children,  but  if  one  died  without  is- 
sue, his  interest  to  go  to  the  sur- 
vivors, does  not  vest  in  such  child's 
estate  any  interest  in  proceeds  of 
sales  made  after  such  child's  death. 
Union  Sav.  Co.  vs.  Darr,  19  C.  C. 
497;  10  C.  D.  554;  Faulkner  vs. 
Clevenger,  35  Bull.   125. 

A  devise  to  A.  generally,  with  no 
power  expressed  but  followed  by  a 
devise  to  B.  of  what  shall  remain 
undisposed  of,  or  A's  death  creates  a 
fee  in  A.  Steiver  vs.  Steiver,  8  C.  C. 
(N.S.)    71;   28   0.  C.  C.   145. 

Personalty  will  vest  in  devisee  if 
condition  precedent  made  impossible 
by  testator  before  death.  IVIosley  vs. 
f'alhoun,  7  C.  C.  (N.S.)  285,  28 
0.  C.  C.  163. 


1069  SUBSEQUENT  PROPERTY  §  1191 

controlled  by  the  intention  as  gathered  from  the  whole  will.^' 
If  the  only  words  of  gift  in  a  devise  are  in  the  direction  to 
distribute  at  a  future  period,  the  interests  of  the  distributees  do 
not  vest  until  then,  if  the  distributees  cannot  be  ascertained 
until  then,*"'  A  devise  of  one-half  of  all  testator's  real  estate  is 
a  devise  of  a  fee,  but  may  be  limited  by  other  provisions  of  the 
will." 

§  1191.  Property  acquired  subsequent  to  makiiig  of  will 
passes.  "Any  estate,  right  or  interest,  in  lands  or  personal 
estate  or  other  property  acquired  by  the  testator  after  making 
his  will,  shall  pass  thereby,  as  if  held  or  possessed  at  the  time 
it  was  made,  if  such  manifestly  appears  by  the  will  to  have 
been  his  intention."     [R.  S.  §  5969.]*^- 

The  only  question  involved  under  the  above  section  of  the 
General  Code  is  one  of  construction,  as  to  whether  the  testa- 
tor manifests  his  intention  to  dispose  of  after-acquired  real 
estate  with  sufficient  clearness.  At  common  law  the  testator  had 
no  power  to  devise  land,  acquired  after  the  making  of  the  will.*'^ 

This  sectoin  was  construed  in  Pruden  vs.  Pruden,®*  and  it  is 
there  said  that  this  matter  should  be  construed  liberally.  It 
very  seldom  happens  that  a  man  who  goes  to  the  trouble  of  mak- 
ing a  will,  intends  to  die  intestate,  as  to  any  of  the  property  that 
he  may  own  at  the  time  of  his  death.  And  when  it  clearly  ap- 
pears that  the  testator  intends  all  the  property  he  owns  at  his 
death  to  be  used  and  applied  for  specified  purposes,  and  the 
changes  between  the  will  and  his  death,  have  simply  con- 
sisted in  converting  it  from  one  description  of  property  into 
another,  there  can  be  no  danger  of  interfering  with  his  inten- 
tions, by  holding  it  all  subservient  to  the  accomplishment  of 

The  words  "are  deceased"  as  used  62  §  10579    G.    C.      After-acquired 

in  an  item  of  a  will  reading  "if  my  real  estate  passes  under  a  residuary 

wife  should  marry  or  at  her  natural  clause.     Strock  vs.  Strock,  38  C.  C. 

death    I    devise    and    bequeath    my  147;   Newton  vs.  McKinstry,  38  C. 

property  to  be  equally  divided  among  C.  536. 

my  children,  except  those   children  63  Page  on  Wills,  §  142,  p.  163. 
who  are  deceased"  limit  the  devise  ^i  14  O.  S.  251. 
to  the  children  living  at  the  time  of  The  words   "clearly"   and   "mani- 
the  death  of  the  M'idow,  she  not  hav-  festly"  should  receive  but  little  con- 
ing remarried.     Burdsell  vs.   Burd-  sideration  in  construing  a  will,  and 
sell,  33  C.  C.  434.  where   it   reasonably   appears    from 

59  Hamilton  vs.  Eogers,  38  0.  S.  the  will  that  testator  intended  to 
242;  Kierstel  vs.  Smith,  8  N.  P.  devise  after-acquired  property  the 
378.  See  Hudson  vs.  Kellerman,  12  intention  should  be  given  effect,  not- 
0.  App.  424.  withstanding  these  intensives.     Car- 

60  Pvichey   vs.    Johnson,    30    0.    S.       roll  vs.  Carroll,  24  O.  C.  C.  416. 
2S8 ;  Hamilton  vs.  Rodgcrs,  38  0.  S.  See    Wright    vs.    McMastcrs,    81 
255;  Page  on  Wills,  §§658,  760.             O.   S.   304,  where  property  did  not 

As  to  vesting  fee  in  executor,  see  pass. 
§  804.      Cited    and    followed.      Barr  Where    the    proposed    benefit,    re- 
vs. Denny,  79  0.  S.  36.  jectcd  by   a   refractory  donee,   is   a 

61  Howe  vs.  Fuller,  19  O.  51.  devise  of  land  by  operation  of  law. 
As  to  what  will  constitute  an  iii-  the  land  n^ay  pass  to  a  disappointed 

terest  that  may  he  sold.  Jeffers  vs.  donee.  Bebout  vs.  Quick,  81  O.  S'. 
Lampson,  10  0.  S.  102.  196. 


I§  1192  coNSTBUC^ip,]sr  of  wills  lOTO 

such  purposes.  Indeed  every  line  of  Ms  will  looks  to  his  death 
and  tlie  situation  of  his  property  at  that  time,  as  the  starting 
point  in  his  disposition.  It  is  then  that  his  debts  are  to  be 
paid,  and  it  is  then  that  his.  wife  is  to  take  the  property.  This 
would  be  held  to  include  property,  although  the  clause  by  which 
he  devised  the  residuum  of  the  lands  contains  a  definite  de- 
'Scription  of  the  residuum  of  the  land  which  he  owns  at  the  time 
of  his  making  his  will.*"' 

While  the  statute  provides  that  only  after-acquired  property 
shall  pass  if  such  shall  clearly  and  manifestly  appear  by  the 
will  to  be  the  intention  of  the  testator,  from  the  fact  that  the 
law  presumes  that  a  person  who  makes  a  will  means  to  dispose  of 
all  his  property,  the  presumption  is,  that  all  the  property  will 
pass  by  a  will.  However,  if  there  is  such  a  condition  of  affairs 
and  it  is  shown  that,  the  testator  did  not  realize  that  he  would 
have  such  property  for  disposition  it  may  be  held  otherwise. 
Thus  where  a  vvif e  made  a  will  five  years  before  the  death  of  her 
husband,  but  her  husband  by  his  will  made  shortly  before  his 
death  devised  to  her  all  his  property  to  be  disposed  of  by  her 
as  she  sees  fit.  In  such  a  case  it  was  held  that  the  former 
will  could  not  act  on  the  property  received  from  her  husband."' 

§  11C2.  When  whole  estate  of  devisor  in  land  to  pass  by 
the  devise.  "Every  devise  in  a  will  of  lands,  tenements,  or 
liereditaments,  shall  convey  all  the  estate  of  the  devisor  therein, 
which  he  conld  lawfully  devise,  unless  it  clearly  appears  by  the 
will  that  the  devisor  intended  to  eonvev  a  less' estate. "  [R.  S. 
§5970.]«^ 

fisParrar  vs.  Fallestine,  4  C.  C.  manifested   in   the   opinion    in   tTiis 

2,3.5;   2   C.  p.  519;    Page  on  Wills,  ease,  it  seems  that  the  construction 

§  489,  p.  577.  given  by  the  learned  judge  is  nar- 

66  Lepley  vs.  Smitli,  13  C.  C.  189;  row. 
7  C.  D.  264.  Includes   real   estate   acquired   bv 

This  case   rather  turns  upon  the  descent,  after  execution  of  will,  but 

question  of  the  exercise  of  a  power  before  testator's  death.     SIcCIaskey 

and  not  the  question  whether  such  vs.   Barr,   7   O.   F.   D.   556;    54  Fed. 

after-acquired   real    estate   could   be  781. 
disopsed  of  by  will.     If  in  this  case  67  §  10580  G.  C. 

the  testator  had   devised  the  prop-  A   testator   who   devises   "all   the 

erty  to  his  wife  without  a  limitation  remainder   of   mv   estate   shall   pass 

requiring  her  to  dispose  of  it  as  she  and   descend   according  to   the  laws 

saw    fit,    it    no    doubt    would    have  of  Ohio,  intends  that  the  residue  of 

passed  by  the  will  previously  made.  his    estate   shall   be   distributed    the 

The  Common  Pleas  Court  has  held  same  as  the  property  of  an  intestate, 

that   a   gift   of   '-all    my   property"  Elliott  vs.  Shaw.  23  Dec.  662. 
was  held   insufficient  to  pass  after-  Devise  of  all  mv  property  carries 

acquired  realtv.     MeCall  vs.  Jones,  proceeds    of    life  '  insurance    policy. 

„.;  .','•      •       .\      ,,  Tupen  vs.  Schlachter,  28  Dec.  545." 

Wh'lc     considerable     learning    is 


1071  whoijE  estate  to  pass  §  1192 

It  is  a  rule  of  eominon  law,  resulting  perhaps  froui  the  man- 
ner in  which  real  estate  was  held  in  feudal  times,  that  where 
property  was  devised  only  a  life  estate  passed,  unless  the  will 
expressly  otherwise  provided.''''  This  common  law  rule  acted 
very  unjustly,  for  as  our  Supreme  Court  has  said  it  is  the  pre- 
sumption when  a  man  makes  a  will  that  he  intends  to  dispose 
of  his  entire  estate'"'® 

The  purpose  of  the  above  section  of  the  General  Code  is  to 
do  away  with  this  common  law  rule  and  carry  into  effect  that 
which  is  usually  the  intention,  of  the  testator,  and  therefore  the 
rule  now  is,  that  when  a  devise  is  made  it  will  carry  a  fee  to  the 
estate,  although  no  expressed  words  to  that  effect  are  contained 
in  the  will/''  Where  an  estate  is  given  for  life  only,  the  dev- 
isee takes  only  an  estate  for  life  even,  though  a  power  of  dis- 
position be  given.'^^ 

Where  a  testator  used  this  language  "  I  give  and  bequeath 
to  my  youngest  daughter,  Margaret  Harper,  the  remaining  part 
of  my  real  property,"  it  was  held  that  a  fee  simple  was  devised 
to  Margaret/^  And  where  a  devise  was  made  of  a  "  plantation 
upon  whicli  I  now  live,"  it  was  held  that  a  fee  passed,  as  no 
words  of  inheritance  or  perpetuity  are  essential  in  a  will  to 
pass  an  estate  in  fee.^^ 

68  Schoul.  on  Wills,  §  483,  p.  549.  mere   power."     Denson   vs.   Mitchel, 

60  Collier  vs.  Collier,  3  O.  S.  373.  26  Ala.  360;   Henry  Pro.  Prac.  699. 

70  Pao-e    on    Wills,    §  562,    p.    653,  "-  Niles  vs.  Gray,  12  0.  S.  320. 
§570,  p.  662;    Sch.   on  Wills,  §594.  73  Thompson    vs.    Hoop,    6    0.    S. 

71  See      §  804,      Construction      of  481. 

power.  Where  there  is  a  devise  to  a  son, 
In  4  Kent.  Com.  319,  it  says:  "A  and  if  he  dies  without  lineal  de- 
devise  of  an  estate  generally,  or  in-  scendants,  living  at  the  time  of  his 
definitely,  with  a  power  of  disposi-  decease  then  over  these,  words  are 
tion  over  it,  carries  a  fee.  But  not,  by  themselves  without  assist- 
where  the  estate  is  given  for  life  ance  from  other  parts  of  the  will, 
only,  the  devisee  takes  only  on  es-  sufficient  to  create  an  estate  by  im- 
tate  for  life,  though  a  power  of  di^-  plication  in  the  lineal  descendants, 
position,  or  to  appoint  the  fee  l)y  but  tlie  son  takes  in  fee  simple  de- 
deed  or  will,  be  annexed;  unless  feasible  upon  his  death,  with<iut 
there  should  be  some  manifest  gen-  linei!  descendants,  living  at  the  time 
eral  intent  of  the  testator,  wliich  of  his  death;  and  in  case  there  are 
would  be  defeated  by  adhering  to  no  lineal  descendants  living  at  his 
this  particular  intent."  "The  au-  death,  his  fee  becomes  absolute,  and 
thorities,  both  English  and  Ameri-  if  he  has  disposed  of  his  estate  dur- 
can,  seem  generally  agreed  in  the  ing  his  lifetime  his  grantee  has  a 
position  that  an  express  estate  for  good  title.  Andeison  vs.  Realty,  79 
life,  given  by  will,  negatives  the  in-  O.  S.  23. 

tentioii    to   give    the   absolute    prop-  Statutoj-y  rule  of  construction  un- 

erty,  and  converts  words  confening  der    this    section    is    not    a    rule   of 

a  right  of  disposition  into  words  of  property.     Gilles  vs.  Ix)ng,   19   Dec. 

252. 


g  11<)3  CONSTKUCTION    OF    WILLS  1072 

Where  a  testator  devised  all  of  his  property  of  every  de- 
scription, whether  real  or  personal  or  mixed,  after  paying  all 
his  just  debts,  it  was  held  that  a  fee  passed  without  aid  of  a 
statute  declaring  such  to  be  the  effect  of  the  devise.'^* 

§  1193.     Life  estate  with  power  of  disposal. 

If  testator  devises  an  estate  which  is  clearly  a  life  estate, 
and  adds  to  such  devise  limited  powers  of  disposition  and  alien- 
ation, the  authorities  are  nearly  unanimous  in  holding  that 
such  a  power  of  disposition  does  not  enlarge  the  life  estate  into  a 
fee,  but  that  the  estate  created  is  exactly  what  it  purports  to 
be ;  that  k  to  say,  a  life  interest  with  power  to  devisee  under  cer- 
tain conditions  and  in  certain  methods  to  dispose  of  the  fee. '^ 

A  very  common  method  of  giving  a  life  estate  with  power  of 
disposal  is  a  provision  made  in  a.  will  for  the  wife  that  sho 
may  have  the  property  during  her  natural  life  Avith  power  to 
dispose  of  the  same  for  her  use  and  support.  The  phraseology 
of  wills  in  this  respect  sometimes  makes  it  very  difficult  to 
ascertain  whether  the  estate  conveyed  is  a  life  estate  or  a  fee. 
Where  a  testator,  after  providing  for  the  payment  of  his  debts, 
used  the  following  language  in  his  will  "  Second  —  I  give  and 
devise  unto  my  beloved  wufe  and  her  assigns  all  of  the  remain- 
der of  my  property,  both  real  and  personal,  however  the  same 
may  be  known,  or  wheresoever  the  same  may  be  situate,  with 
full  power  to  bargain,  sell,  convey,  exchange  or  dispose  of  the 
same  as  she  may  think  proper ;  but,  if  at  the  time  of  her  decease, 
and  if  my  said  property  shall  remain  unconsumed,  my  will 
is  that  the  same  be  equally  divided  between  my  brothers  and 

■*  Piatt  vs.  Sinton,  37  O.  S.  353;  the    testator's    disposition.      White 

Oilpin  v.s.  Williams,   17    0.  S.  397;  vs.   Brokaw,    14   0.   S.  339. 

9  C.  D.   19.  75  Page  on  Wills,  §  576,  p.  669. 

See  Hull  vs.  Hull,   16  €.  C.  688.  Where  the  will  gives   the  widow 

A  devisee  of  all   the   proceeds  of  power  to  sell  for  her  support,,  etc., 

certain    real    estate    carries    the    fee  she    is    not    bound    to    exhaust    her 

to  tlie  real  estate  itself.     Islierwood  separate    estate    before    seiling    the 

ys    islierwood,  16  C.  C.  279;  8  C.  D.  property.     jMoore  vs.  Idlon,  6  C.  C. 

409;  .0/   0.  S.  600.  (N.S.)  'l9;    26  0.  C.  C.   502. 

It  does  not  follow  from  the  use  of  Bee  Widows'   Home  vs.   Lippardt, 

the  woi-d  -'receive"  that  the  devisees  70  O.  S.  —    as  to  iwwer  of  widow 

receive  the  entire  estate.     Kreisted  to  sell 

vs.  Smith,  8  N.  P.  378.  "To  her,  her,  lifetime  and  to  her 

Jso  one  IS  permitted  to  claim  un-  heirs    forever     or    whomsoever    she 

der  and   adverse  to  a   will.     If  the  pleases  to  will  it  at  her  death,  held 

testator  assume,  to  dispose  of  prop-  to  give  a   life   estate.      Kimball   vs. 

crty    l^longing   to    the    devisee,    the  Kimball,  13  Dec.  555;  affirmed  C.  C. 

latter    accepting,    must    make    good  If  the  will  gives  the  estate  to  his 


1073  POWER  OF  DISPOSAL  ,  §3193 

sisters,  and  their  children,  if  deceased,  the  children  to  have  the 
same  amount  the  parent  would  be  qntitled  to  if  living."  It  was 
held  that  under  this  will  the  widow  took  only  a  life  estate  in  the 
property,  both  real  and  personal,  with  power  to  bargain,  sell, 
convey,  exchange  or  dispose  of  the  same  as  she  might  think 
proper  for  consumption  in  her  life  support,  and  that  what  re- 
mained at  the  time  of  her  death,  unconsumed  in  supporting  her, 
belongs  to  the  remaindermen  designated  in  the  will. 

The  widow  under  this  will  was,  by  implication,  a  quasi  trus- 
tee for  those  in  remainder,  and  the  interest  of  the  brotlier  and 
sisters  of  the  testator,  in  the  unconsumed  property,  was  a 
vested  right  which  could  not  be  destroyed  by  the  act  of  the  widow 
in  disposing  of  the  property  by  gift  to  a  third  party,  or  other- 
wise than  for  her  support  or  tlie  benefit  of  the  estate. 

A  third  party  acquiring  said  estate  from  her  by  gift  or 
fraud,  or  by  collusion  with  her,  to  the  injury  of  the  vested  rights 
of  those  in  remainder,  and  with  knowledge  of  the  will,  holds  the 
same,  and  the  finiits  thereof,  as  a  trustee  for  the  remaindermen, 
and  liable  as  such  trustee,  to  account  to  them  in  equity.'^^* 

Upon  the  authority  of  Johnson  vs.  Johnson,'"  it  was  held, 
that  a  devise  to  a  woman  of  all  the  property,  both  real  and  per- 
sonal, with  power  to  sell  and  enjoy  and  sell  or  dispose  of  it,  but 
if  she  dies  before  her  husband,  then  the  property  remaining 
undisposed  of  shall  go  to  certain  named  persons ;  that  the 
wvDman's  husband  was  not  entitled  to  dower  therein.'^ 

wife,  etc.,  as  long  as  she  remains  his  '''■  Enyart  vs.  Koever,  32  Bull.  401. 

widow,  and  she  elects  to  take  under  A  will  gave  to  the  wife  of  the  tea- 

the    will    and    then    remarries,    the  tator  all  his  proi>erty,  real  and  per- 

children   get  all  the  property.     Mc-  sonal,  to  use,  sell  and  dispose  of  as 

Cartney  vs.  Mason,   18  Dec.  G29.  she  might  see  fit,  "for  her  own  com- 

Where  the  will  gave  to  the  wife  fort  and  convenience,"  with  power 
all  testator's  projierty  "I'or  the  term  to  convey  tlie  reil  estate  in  fee  sim- 
of  her  natural  life,  and  with  full  pie  if  her  necessities  or  comfort  re- 
power  to  hold  and  dispose  of  part  (juire  it.  A  suLsoruent  clause  di- 
or  all  of  same  for  her  u.-e  and  benefit  rected  that  the  residue  of  his  "prop- 
as  she  may  see  (It.  Upon  the  death  erly  or  moneys,  if  any  should  be  left 
of  my  said  wife,  if  there  should  be  after  her  death  and  full  payment  of 
any  residue  of  said  estate  it  is  my  her  funeral  expenses,  be  equally  di- 
will  that  the  same  be  divided  vided  between"  his  children,  of 
equally  between  my  four  children,"  whom,  there  we"c  tvo  only,  the  fruit 
the  widow  is  a  qti/isi  trustee,  and  of  a  former  r  ar^i^ge.  It  wns  held 
if  she  wastes  or  dissipates  the  funds  that  any  of  the  property  undisposed 
will  he  compelled  to  give  bond.  Hob-  of  and  mt  consumed  by  the  wife 
stm  vs.  Lower,  30  O.^C.  C.  22.5;  fol-  went,  at  her  death,  to  the  children, 
lowing  Johnson  vs.  Johnson,  51  0-.  S.  save  enough  to  eischar</e  her  funeral 
446.  expenses,  and  t'ipt  she  could  not  dis- 

■^2*  Johnson  vs.  Johnson,  51  0.  S.  -pose  cf  the  property  by  will.     John 

446.  vs.  Bradbury,  17  Ind.  263. 

"«  51  0.  S.  446.  A  testator  devised  all  his  property 


§1193 


CONSTRUCTION    OF    WILLS 


1074 


Tlie  power  of  sale  intended  to  be  exercised  for  the  support 
of  the  widow  and  children  does  not  authorize  the  donee  of  a 
po^ve^  to  transfer  the  property  to  some  of  the  children  to  the 
exclusion  of  the  others.^®  Where  the  testator  devises  land  for 
life,  and  confers  upon  the  life  tenant  an  absolute  and  unlimited 
power  of  disposition  of  the  property  thus  devised,  there  is 
very  serious  conflict  of  authorities,  says  Page,"^  caused  in 
part  hy  peculiarities  of  statute  law  in  some  States,  as  to  whether 
such  a  devise  gives  a  life  estate  with  power  of  disposition,  or  a 
fee  simple.  There  can  be  no  question  that  the  real  intent  of 
testator  in  such  cases  is  merely  to  give  a  life  interest,  power 
of  disposition  being  added,  generally,  to  provide  for  the  mainte- 
nance of  life  tenant,  but  no  restriction  of  any  sort  being  imposed 
upon  the  method  of  disposition.  The  weight  of  authority  upon 
this  point  is  that  such  a  devise  gives  only  a  life  estate  ^" 


to  his  wife,  the  interest  given  being 
described  as  follows:  "All  my  real 
estate  and  personal  property,  to  set- 
tle all  debts,  and  expenses  and 
claims,  collect  all  debts ;  to  have  and 
to  hold  for  her  life,  and  to  dispose 
of  at  her  death  at  her  pleasure." 
It  was  held  that  the  will  gave  to 
the  devisee  an  estate  for  life  only, 
with  power  of  disposition  of  the  fee. 
Whether  such  power  of  disposition 
could  be  executed  by  deed,  or  wheth- 
er it  must  be  bj'  will,  not  decided; 
but  it  was  held  that  an  ordinary 
warranty  deed,  in  fee-simple,  exe- 
cuted by  the  devisee,  which  made  no 
reference  to  the  will  by  which  the 
power  of  disposition  was  given,  and 
contained  no  evidence  of  an  inten- 
tion to  execute  the  power,  conveyed 
only  the  life-estate  of  the  devisee. 
Dunning  vs.  Vandusen,  47  Ind.  423. 

See  Stapleton  vs.  Ellison,  21  O.  S. 
527,  where  widow  was  'given  a  lim- 
ited power  to  dispose  by  will. 

78  Huston  vs.  Craighead,  23  0.  S. 
198;  Cassidy  vs.  Hynton,  44  0.  S. 
530. 

A  provision  in  a  will,  by  which 
the  testator  gives  to  his  wife,  her 


heirs  and  assigns,  his  whole  estate, 
to  use,  enjoy  and  dispose  of  as  she 
shall  deem  best,  any  remainder 
thereof  at  her  death  to  be  divided 
between  the  children,  share  and 
share  alike,  gives  a  life  estate  to 
the  widow  only,  without  the  power 
of  testamentary  disposition  of  the 
estate  on  her  death.  Greene  vs. 
Greene,  38  Bull.  205. 

T9  Page  on  Wills,  §  576,  p.  670. 

80  A  devise  to  a  wife  of  all  my 
property  "  to  do  with  as  she  pleases 
and  at  her  death  Avhat  remains  shall 
go  to  my  niece,"  gives  the  wife  a 
fee-simple.  Will  in  re  5  Dec.  584; 
7  N.  P.  574. 

If  there  is  no  remainder  or  de- 
vise over,  a  power  of  disposition 
given  to  the  life  tenant  converts  her 
life  estate  into  a  fee.  Lepley  vs. 
Smith,  13  C.  C.  189;  7  C.  D.  264, 

Where  one  B.  devised  all  his  prop- 
erty to  his  wife,  with  full  power  of 
disposition,  and  in  another  clause 
makes  devises  in  remainder,  the  wife 
takes  only  a  life  estate  and  the  re- 
mainders are  valid.  Baxter  vs. 
Bowyer,  19  O.  S.  490. 

See  Fetter  vs.  Rettig,  98  0.  S. 
428. 

Devise  to  widow  during  widow- 
hood, how  long  continued.  Hummel 
vs.  Gould,  37  O.  C.  C.  70. 


1075  LAPSED  BEQUESTS  §  1194 

Where  authority  is  given  to  use  the  principal  for  the  support 
of  the  beneficiaiy,  if  the  income  is  insufficient,  the  power  may 
be  exercised  after  the  support  is  furnished  as  well  as  before. 
So  where  the  life  tenant,  in  pursuance  of  a  power  of  sale  of  the 
principal  for  her  maintenance,  had  directed  such  and  died 
before  completing  it,  it  was  held  that  one  who  had  furnished 
her  with  support,  upon  credit  had  a  right  to  have  such  property 
sold  for  the  payment  of  his  claim.  But  where  the  donee  of  the 
power  has  not  ordered  such  sale  in  her  lifetime  a  sale  can  not 
be  had  at  the  instance  of  her  creditors,  the  power  being  purely  a 
personal  one.*^ 

§  1194.  Devise  or  bequest  not  to  lapse  by  the  death  of 
devisee  or  legatee.  ' '  When  a  devise  of  real  or  personal  estate 
is  made  to  a  child  or  other  relative  of  the  testator,  if  such  child 
or  other  relative  was  dead  at  the  time  the  will  was  made,  or 
dies  thereafter,  leaving  issue  surviving  the  testator,  in  either 
case  such  issue  shall  take  the  estate  devised  as  the  devisee  would 
have  done,  if  he  had  survived  the  testator.  If  such  devisee 
leaves  no  such  issue,  and  the  devise  be  of  a  residuary  estate  to 
him  or  her,  and  other  child  or  relative  of  the  testator,  the  estate 
devised  shall  pass  to,  and  vest  in  such  residuary  devisee  sur- 
viving the  testator,  unless  a  different  disposition  be  made  or 
required  by  the  will."     [R.  S.  §  5971.] ^^ 

§  1195.     Lapsed  bequest. 

At  common  law,  if  the  beneficiary  died  before  the  testator  the 
gift  lapsed.     It  is  for  the  purpose  of  changing  this  common  law 

81  rage  on  Wills,  §  697,  p.  837.  'See    Shumaker    vs.    Pearson,    48 

Where    a   will    gives    to    the    wife  Bull.  147. 

property  for  use  during  life  remain-  A   husband   is   not   a   relation   of 

der  to  children,  she  has  only  a  life  the  wife  within   §  10581  G.   C,  and 

estate  in  property  purchased  by  her  property  devised  by  her  to  him  does 

with  rents,  etc.     Esman  vs.  Esman,  not,  in  the  event  of  his  death  prior 

18    C.    C.    603;    10    C.    C.    257;    all".  to    her's,    go    to    his    cliildrcn    by    a 

9  L.  New.  36.  former  marriage,  but  to  her  children 

The    will    in    this    case    was    con-  by  blood.     Bernliardt  vs.  Bernhardt, 

strucd  to  mean  that  the  widow  only  28  O.  C.  C.  686;   afrirming  76  O.  S. 

had  a  right  to  use  what  she  needed,  448. 

etc.,   for   support.  Under  this  section,  if  the  deceased 

"I    give,    devise    and    bequeath    to  person  was  indebted  to  the  testator 

mv  wife  the  use  of  all  mv  real  and  the  debt  must  be  deducted  from  his 

personal  property  which  I  may  own,  share.     Baker  vs.  Carpenter,  69  0. 

to  be  used  by   her   during  her   life-  S.  15. 

time,"  is  a  life  estate  and  the  wife  Child  or  relative  does  not  include 

mav      devise      the      accumulations.  children    of    an     illegitimate    cliild. 

Schwartz  v<.   Celiring,  7  C  C.  420;  Owens  vs.  Hunter,  37  0.  C.  C.  307. 

4  C.  D.  662.  ^ce    8  1081,    Bequests   to   charitable 

.S^-e  §  804  ct  seq.,  Devise  to  sell.  institutions. 

82  §  ]()r,8i  a.  C. 


§  1105 


CONSTKUCTION    OF    WILLS 


1076 


rule  to  one  which  would  more  nearly  accord,  generally,  to  the 
intention  of  tlie  testator  that  tlie  above  statute  was  passed.*^ 

The  statute  is  limited  to  the  fact  that  the  devise  must  be 
made  to  any  child  or  other  relative  of  the  testator.  This  would 
not  include  legal  representatives.** 

An  adopted  child  is  neither  a  child  nor  the  issue  of  a  de- 
ceased legatee,  and  hence  not  within  the  statute.*^  A  devise 
to  one  whom  the  testator's  daughter  had  adopted  under  sec 
8030  G.  C.  (§  1898),  and  also  had  designated  as  heir  under  sec. 
8598  G.  C.  (§  1902),  does  not  lapse  by  the  death,  leaving  issue, 
of  such  person  before  testator.^^  If  the  child  was  dead  before 
the  will  was  made,  yet  the  devise  would  not  lapse.®*'*     The  sur- 


83  See   §  G83,  Lapsed  legacies. 

The  rule  as  to  the  lapsing  of  de- 
vises and  legacies  that  prevailed  be- 
fore the  statute,  defeated,  in  mo<t 
cases,  the  intention  of  the  testator. 
He  generally  made  his  will  Avith  ref- 
erence to  the  objects  of  his  bounty 
as  they  existed  at  the  time  and  as 
though  his  will  took  effect  at  the 
date  of  its  execution — not  appre- 
hending that  a  lapse  would  occur 
in  case  an}'  of  them  should  die  be- 
fore himself,  unless  some  express 
disposition  should  be  made  in  antic- 
ipation of  such  event.  The  statute 
was  passed  to  remedy  such  disap- 
pointments, and  should  receive  a  lib- 
eral construction,  so  as  to  advance 
the  remedy  and  suppress  the  mis- 
chief. It,  among  other  things,  pro- 
vides that  where  a  devisee  is  made 
to  a  child  or  other  relative  of  the 
testator,  who  dies  before  the  testa- 
tor, the  issue  of  such  object  of  his 
bounty  shall  take  the  portion  de- 
vised to  such  child  or  relative. 
Nothing  is  more  just  and  conform- 
able to  the  probate  intention  of 
the  testator  in  every  instance.  The 
fact  that  the  child  or  relative  is  not 
mentioned  by  name  should  not  de- 
feat the  application  of  the  statute, 
wliere  the  language  applied  to  the 
facts,  as  they  were  at  the  execution 


of  the  will,  designates  a  child  or  rel- 
ative as  an  object  of  the  testator's 
bounty,  with  as  much  certainty  as 
if  it  were  mentioned  by  name. 
Wooley  vs.  Paxson,  46  0.  S.  307. 

84  Norwood  vs.  Wills,  1  N.  P.  314; 
3  Dec.  356. 

83  Phillips  vs.  McConica,  59  0.  S.  1, 

86  White  vs.  Agnew,  38  B.  47. 

86*  C  devised  the  residue  of  his 
real  and  personal  estate  to  be 
equally  divided  among  the  children 
of  his  brothers  and  sisters.  Eleven 
of  the  children  were  dead  at  the 
time  of  the  making  of  the  will,  but 
each  left  issue  surviving  the  testa- 
tor. Held:  That  the  devise  included 
all  the  children  living  and  dead,  of 
testator's  brothers  and  sisters,  and 
that  under  the  provisions  of  §  5971 
Rev.  Stat.,  the  surviving  issue  (legal 
representatives)  of  each  of  the  eleven 
dead  children  take  the  share  of 
the  devise  to  the  children  of  testa- 
tor's brothers  and  sisters,  which  the 
deceased  child  would  have  taken  if 
alive  and  tliat  such  was  the  inten- 
tion of  the  testator,  blather  vs. 
Copeland,  5  X.  P.  151;  7  Dec.  257; 
See  Stamp  vs.  Cooper,  34  Bull.  318. 

Legacy  to  pay  a  debt  does  not 
lapse  by  death  of  legatee  before 
testator.  McXeal  vs.  Pierce,  73  O. 
S.  13. 

An  adopted  child  would  take  as 
an  heir  at  law  if  a  benefioiary  for 
life  even  though  not  adopted  when 
the  will  was  executed.  Smith  vs. 
Hunter,  86  0.  S.  106. 


1077 


HEIRS HOW    CONSTRUED 


§1196 


viving  husband   is  not  a   relative   within   tlie  meaning  of  this 
section,  although  he  may  be  next  of  kin.^^ 

A  bequest  of  a  fund  in  trust  to  pay  the  income  to  S  for  life 
and  at  her  death  to  divide  the  principal  among  her  surviving 
children,  S  died  leavmg  children,  and  also  children  of  a 
deceased  child.  It  was  held  that  even  uuder  the  statute  the 
latter  could  not  take.*"" 

§  1196.     "Heirs"  how  construed. 

The  original  common  law  meaning  of  "  heir  "  is,  that  it  is  he 
who  is  born  or  begotten  in  lawful  wedlock,  and  upon  whom 
the  law  casts  the  estate  in  lands,  tenements,  or  hereditaments 
immediately  upon  the  death,  of  his  ancestor. ^^ 

In  the  civil  law  it  had  a  wider  meaning  and  was  applied  to  all 
persons  who  are  called  to  the  succession,  whether  by  the  act  of 
the  party  or  by  operation  of  law.  The  word  "  heirs  "  is  a 
flexible  one  and  when  used  in  the  will  should  be  so  cqpstrued 
as  to  give  effect  to  the  manifest  intention  of  the  testator  and  the 
sense  in  which  it  is  used  is  always  open  to  inquiry.""  The  term 
is  used  tO'  indicate  various  persons  under  a  will.  It  may  mean 
adopted  children,  next  of  kin,  heirs  of  a  particular  class,  heirs 
presumptive,  heirs  apparent,  heirs  at  the  date  of  the  will, 
heirs  at  the  decease  of  the  testator,  or  heirs  at  even  a  later 
date." 


87  Norwood  vs.  Mills,  1  N.  P.  314; 
3  Dee.  356. 

88  Stamp  vs.  Cooper,  34  Bull.  318. 
See  Page  on  Wills,  §§  550,  551,  p. 

638. 

See  Woerner  on  Admin.  895. 
§683. 

89  Eouv.  Law  Die. 

See  §  008,  as  to  Ancestors. 
See  §  012,  as  to  Legal  repi-esenta- 
tive. 

S'ee  §  913,  as  to  Xext  of  kin. 

90  Jones  vs.  Lloyd,  33  0.  S-.  572. 
Tlie  word  "heir"  may  be  construed 

to  mean  legatee  and  devisee.  Todd 
vs.  Todd,  27  O.  C.  224. 

It  may  mean  children ;  ordinarily 
used,  is  a  word  of  limitation,  but 
may  be  used  as  a  word  of  purchase. 
McDaniel  vs.  Hays,  6  K.  P.  (N/S.) 
435;  15  Dec.  661. 

"LefTal  heirs"  mean  those  upon 
whom  the  law  would  east  tlie  estate 
if      the      testator      died      intestate. 


Youngblood  vs.  Youngblood,  30  O. 
C.  C.  482. 

Heirs  at  law  in  will  include  an 
adopted  child.  Smith  vs.  Hunter, 
86  0.  «.   107. 

•Step-brother  may  be  included  in 
the  term  brother.  Griffith  vs, 
Wetzel,  17  X.  P.  4'J. 

91  "It  is  well  known  that  persons 
unskilled  in  tlie  law  use  the  word 
'heirs'  as  descriptive  of  a  class  of 
persons  who  can  not,  in  fact,  take  as 
heirs.  In  recognition  of  this  doc- 
trine, the  w'ords  'heirs  at  law'  have 
been  construed  to  mean  adopted  chil- 
dren; next  of  kin,  heirs  of  a  par- 
ticular class  or  description,  heirs 
presumptive,  heirs  apparent,  heirs 
at  the  date  of  the  will,  heirs  at  tlie 
decease  of  the  testator,  or  heirs  at 
even  a  later  date,  the  construction 
resting  in  each  jiartieular  case  upon 
an  ascertainment  of  the  testator's 
intention  from  the  words  used,  from 
the  context  of   the   instrument  and 


^  11  IK!  CONSTRUCTION    OF    WILLS  1078 

The  common  law  definition  would  largely  exclude  the  idea 
that  it  could  be  applied  to  personal  property.  But  where  per- 
sonal property  is  devised  and  the  word  "  heirs  "  is  used,  it 
means  distributees  under  the  statutes  of  descent  and  distribu- 
tion."" Likewise  the  common  law  definition  of  "  heir  "  would 
defeat  a  wife  or  husband,  yet  there  may  be  cases  when  the  term 
would  include  them."^  And  there  might  be  other  cases  which 
would  exclude  the  husband  or  wife."*  Then  the  term  might  be 
used  to  include  those  who  might  have  been  ^'  heirs."  "^  The 
teiTii  may  mean  legatees  if  the  intention  is  manifest."®  And  a 
devise  to  "  tlie  heirs  of  C,  my  brother-in-law  "  C  having  survived 
the  testator,  means  C's  children."^  The  word  "  heirs  "  may  be 
so  used  as  to  show  an  intention  to  restrict  its  meaning  to  "  heirs 
of  the  body,"  or  lineal  descendants  or  issue  living  at  his  de- 
cease."^ 

The  word  may  also  include  grandchildren.""  The  primary 
meaniag  of  the  word  ''heir "  excludes  illegitimate  children. 
But  where  the  statute  authorizes,  parents  to  afterwards  marry 
and  legitimatize  the  child,  then  the  child  would  be  included,  and 
the  rule  now  adopted  is  that  the  word  "  heirs  "  includes  such 
illegitimate  descendants  as  would  inherit  from  the  ancestor  un- 
der the  statute  of  descent  and  distriliution.^"° 

from      the      surrounding      circura-  96  Collier  vs.  Collier,  3  O.  S.  360. 

stances."   Furenes  vs.  Severtson,  102  97  Cosbey  vs.  Lee,  3  Gaz.   173;   2 

la.  322.  Dis.  460. 

"Heirs  of  her  body,"  held  to  mean  See  Hoagland  vs.  ]Marsh,  4  C.  C. 

children.    Moore  vs.  Lewis,  4  C.   C.  31;  2  C.  D.  402. 

284;  2  C.  D.  548.  98  Page  on  Wills,  §518,  p.  605 

See  Holly  vs.  Hengsler,  23  C.  C.  99  Page  on  Wills,  §  159,  p.  606. 

504.  100  Ives  vs.  McNicoll,  59  O.  S.  402 ; 

92  Life  Asso.  vs.  Pollard,  3  C.  C.  Page  on  Wills,  §  520,  p.  607 ;  SWioul. 
577;  2  C.  D.  333;  In  re  Estate  of  on  Wills,  §542,  p.  547;  Woerner  on 
Andrcss,  5  N,  P.  253;  6  Dec.  174.  Admin.    902. 

93  Weston  vs.  Weston,  38  0.  S.  Where  testator  devises  real  estate 
'*'^3-  to  his  son  for  life  with  remainder  to 

94  Stewart  vs.  Powers,  9  C.  C.  liis  lawful  heirs,  and  the  son  marries 
143;   6  C.  D.   101.  after  the  death  of  the  ancestor,  upon 

A  devise  of  land  to  two  and  "if  his  son's  death  the  wife  would  take 
either  die  without  heirs  capable  of  as  to  the  son's  heir.  Miller  vs.  Mil- 
inheriting"  gives  the,  survivor,  on  ler,  9  C.  C.  (N.'S.)  242;  29  O.  C. 
death  of  one  without  cliiklrm  a  fee  C.  451;  affirmed  77  O.  S.  643.  * 
by  executory  devise  to  the  exclusion  When  heirs  mav  mean  children, 
of  a  surviving  husband.    Durfee  vs.  see  Lodge  vs.  Darrow,  16  Dec.   P^O 

o'.^t'1>  '1^  ^-  ^-  ?-?4.  ^^e  Miller  vs.  ]Miller,  29  O.  C.  C. 

95McKelvey  vs.  McKelvey,  43  0.  457.     See  Cultice  vs.  Mills,  97  0.  S. 

"•  "'•^-  112. 


1079 


ISSUE   CONSTRUED 


§  1197 


A  testator  may  use  the  word  "  heir  "  witliout  its  usual  legal 
sense  if  the  plain  legal  intention  shows  that  it  was  not  so  era- 
ployed/"^ 

§  1197.     "Issue"  construed. 

The  primaiy  meaning  of  the  word  issue  is  that  of  legitimate 
lineal  descendants  indefinitely.^"^  The  rule  therefore  is,  that 
the  word  "issue  "  in  its  general  sense,  in  the  absence  of  any 
indication  of  intention  to  the  contrary,  includes  in  its  mean- 
ing descendants  generally.  But  this  general  sense  may  be 
modified  by  surrounding  circumstances.  It  is  conceded  that 
"  issue  "  is  an  ambiguous  term.^°^  The  term  issue  may  be  used 
as  either  a  word  of  purchase  or  of  limitation,  but  it  is  generally 
used  by  the  testator  as  synonymous  with  "  child  "  or  "  chil- 
dren." ^*'*     It  includes  descendants  as  generally  understood.^"' 


101  Kreisted  vs.  Smith,  8  N.  P. 
378. 

Where  the  heirs  apparent  of  a 
testator  consisted  of  several  children 
and  their  grandchildren  by  a  de- 
ceased daughter  and  he  gave  to  each 
by  name  a  specific  amount,  and  by  a 
residuary  clause  directed  that  cer- 
tain other  property  should  "  be  di- 
vided equally  share  and  share  alike 
bet^i^een  all  my  aforesaid  heirs,"  it 
was  held  that  each  grandchild  took 
equally  with  the  children.  Huston 
vs.  Crook,  38  O.  S.  328. 

102  The  general  meaning  appli- 
cable to  the  word  "  issue  "  is  that  it 
includes  grandchildren  —  that  it  is 
as  broad  as  "  heirs  of  the  body,"  in- 
cluding lineal  descendants  indefinite- 
ly. 2  Jarman  on  Wills  636;  Hol- 
land vs.  Adams,  3  Gray,  193;  Hall 
vs.  Hall,  140  Mass.  267-269;  2 
Williams'  Exrs.  1198  and  note;  2 
Wigram  on  Wills  307.  Adjudged 
Words  and  Phrases  324 ;  1 1  Ency. 
869  an  notes.  Moon  vs.  Hepford,  2 
N.  P.  365. 

103  Judge  Earl,   in   expressing  the 


opinion  of  the  Court,  says :  "  The 
word  '  issue '  is  an  ambiguous  term. 
It  may  mean  descendants  general- 
ly, or  merely  children,  and  whether 
in  a  will  it  should  be  held  to  mean 
the  one  or  the  other  depends  on  the 
intention  of  the  testator,  as  de- 
rived from  the  context  or  the  en- 
tire will,  or  such  extrinsic  circum- 
stances as  can  be  considered.  In 
the  latter  ease  there  is  a  strong 
tendency,  unless  restrained  by  the 
context,  to  hold  that  it  has  the 
meaning  of  children."  See  also 
Kent's  Com.  278,  note.  Rice  Pro. 
Law  195. 

1013  Kent's  Com.  278;  Palmer  vs. 
Horn,  84  N.  Y.  516,  519;  Taft  vs. 
Taft,  3  Dem.  86 ;  Ralpli  vs.  Carrick, 
L.  R.  11  Ch.  Div.  873;  Palmer  vs. 
Dunham,  125  K  Y.  68;  Murray  vs. 
Bronson,  1  Dem.  217. 

105  In  Leigh  vs.  Norbury,  13  Ves. 
340,  the  Court  said:  "It  is  clear- 
ly settled  that  the  word  '  issue,'  un- 
confined  by  any  indication  of  con- 
trary intention,  includes  all  descend- 
ants.    Intention  is  required  for  the 


§1198 


CONSTRUCTION    OF    WILLS 


1080 


Generally  it  may  be  said  that  prima  facie  it  means  the  same 
as  heirs  of  the  body,  lineal  descendants  indefinitely/"*  In  our 
State  illegitimate  children  are  excluded  even  though  the  devise 
is  to  their  mother  from  whom  they  could  inlierit  under  our 
statute."^  Likewise  an  adopted  illegitimate  child  is  not  issue 
of  the  adopting  parent.  The  rule  might  be  different  if  the  per- 
son was  designated  as  heir  under  sec.  8598,  G.  C.  (§1903). 
''Offspring"  is  said  to  be  synonymous  with  issue.  It  includes 
lineal  descendants,  however  remote  in  dcgree.^°^  Distribution 
to  the  issue  is  made  per  capita  unless  otherwise  directed  by  the 
testator."^ 

§  1198.     "  Children  "    construed. 

The  primary  meaning  of  child  is  the  immediate  legitimate 
offspring  of  a  person  indicated  as  parent,^^**  and  a  bequest 
to  a  child  includes  children  when  there  is  more  than  one.  A 
child  en  ventre  sa  mere  is  considered  in.  law  as  a  child  in  esse, 
and  is  included  in  a  devise  to  the  "  children  "  of  its  parents  gen- 
erally."^ 


purpose  of  limiting  the  sense  of  that 
word,  and  restraining  it  to  chil- 
dren." 

106  The  word  "  issue "  in  a  will, 
prima  facie,  means  the  same  as 
lieirs  of  the  body,  lineal  descendants 
indefinitely,  and  is  to  be  construed 
as  a  word  of  limitation;  but  the 
priw.a  facie  construction  gives  way 
if  there  is  anything  on  the  face  of 
the  will  to  show  that  the  word  was 
intended  to  have  a  less  extended 
meaning,  and  to  be  applied  to  chil- 
dren only,  or,  as  in  this  ease,  to 
lineal  descendants  of  a  particular 
class  in  being  at  a  specified  time. 
Slater  vs.  Dangerfield,  15  M.  &  W. 
263. 

10- Gibson  vs.  McNelly,  11  0.  S. 
J31. 

108  Page  on  Wills,    §526,   p.   613. 

109  See  §  925. 

See  §  928,  Advancements. 
Woerner  on  Admin.  G03. 


Where  a  will  points  to  a  period  of 
distribution  of  the  estate  the  words 
"  die  without  issue "  are  to  be  re- 
stricted to  death  without  issue  prior 
to  the  period  of  distribution.  Pen- 
dleton vs.   Bowler,   27    Bull.    313. 

110  Page  on  Wills,  §  522,  p.  608. 

111  Starling  vs.  Price,  16  O.  S. 
29. 

In  Jarm.  on  Wills,  690,  it  is  said: 
"  The  legal  construction  of  the  word 
"  children  "  accords  with  its  proper 
signification ;  namely,  as  designating 
the  immediate  oiTspring;  for,  in  all 
the  eases  in  which  it  has  been  ex- 
tended to  a  wider  range  of  objects, 
it  was  used  synonymously  with  a 
word  of  larger  import,  as  "  issue." 
It  has  sometimes  been  asserted,  how- 
ever, that  a  gift  to  children  extends 
to  grandchildren,  where  there  is  no 
child."  And  in  2  Redf.  on  Wills 
{2d  ed.)  15,  it  is  said:  "The  word 
*  children,'  as  well  as  all  other  sim- 


1081 


CHILDREN  AND  NEXT  OF  KIN 


§1199 


I 


The  term  does  not  ordinarily  include  stepchildren,  nor  does 
it  include  illegitimate  children."^  Neither  does  it  include 
grandchildren  unless  it  appears  from  tlie  will  that  the  testator 
so  intended."^  But  these  restricted  meanings  of  the  term 
"  child  "  or  "  children  "  may  be  extended  to  include  grand- 
children or  illegitimate  children,  or  even  adopted  children  pro- 
vided the  context  of  the  will  clearly  indicates  that  such  was  the 
intention  of  the  testator. ^^* 


§1199.     "Next  of  Kin"  construed.* 

The  words  "next  of  kin"  in  a  will  mean  the  nearest  blood 
relations,  and  not  all  those  who  would  take  under  the  Statute 
of  Distribution.  Thus  "next  of  kin"  means  a  brother  in  pref- 
erence to  nephews,  sons  of  a  deceased  brother,  and  nieces,  in 
preference  to  grandnieces.^^^  The  words  "next  of  kin"  do  not 
legally  include  a  widow ;  it  means  relatives  in  blood. ^^^     The 


ilar  descriptive  terms  of  classes  or 
relations,  it  will  be  borne  in  mind, 
must  always  be  understood  in  wills 
in  its  primary  and  simple  significa- 
tion, where  that  can  be  done;  in 
short,  where  there  are  any  persons 
in  existence  at  the  date  of  the  will, 
or  before  the  devise  or  legacy  takes 
effect,  answering  the  meaning  of  the 
term.  And  where  the  term  'chil- 
dren' has  received  a  larger  and 
more  extended  construction,  as 
synonymous  with  issue,  it  has  gener- 
ally been  based  upon  something  in 
the  will,  unless  it  resulted  as  al- 
ready intimated,  from  the  fact  that 
there  were  no  children  in  existence." 
Rice.  Pro.  Law  192. 

112  Page  on  \\  iils,  §  522,  p.  608. 

113  Cliildren,  it  is  said,  do  not  in- 
clude grandchildren,  unless  from  the 
context  of  the  will  it  appears  that 
the  testator  so  intended,  or  unless 
such  meaning  is  necessary  to  carry 
out  his  manifest  intent.  2  Jarman 
on  Wills,  5th  ed.,  147 ;  Low  vs.  Har- 
mon}', 72  N.  Y.  408;  Castner's  Ap- 
peal, 88  Penn.  St.  478;  Feit  vs.  Va- 
natta,  21  N.  J.  Eq.  84;  Stokes  vs. 
Stokes,  12  Bull.   135. 

114  Page  on  Wills,  §§  523,  524,  525. 


Woerner  on  Admin.  896,  897. 

113  See    §  913,   §  121,  Next  of  kin. 

Page  on  Wills,   §  521,   p.   607. 

*The  words  "next  cf  kin"  will  not 
be  taken  in  their  technical  sense  in 
construing  a  will,  where  it  clearly 
appears  from  the  context  that  a  dif- 
ferent meaning  was  intended.  (Did 
not  include  second  husband.)  Mc- 
Cormick  vs.  Dunker,  3  C.  C.  (N.S.) 
303;  24  0.  C.  C.  553;  affirmed  70 
0.  S.  490. 

110  Bouv.  Die.  on  Xext  of  kin; 
Redf.  on  Wills,  77,  §13;  2  Kent's 
Comm.    136. 

In  Nichols  vs.  Savage  (cited  in  1 
Yes.  53),  it  was  held  that  a  gift  to 
next  of  kin  or  relations  did  not  in- 
clude a  husband  or  a  wife.  In 
Davies  vs.  Eailey,  1  Yes.  Sr.  84,  the 
testator  gave  the  residuaiy  personal 
estate  to  his  wife  for  life,  and  the 
capital  at  her  death  to  "such  of  his 
relations"  as  would  be  entitled  to  it 
by  the  statute  of  distributions;  and 
it  was  held  by  Lord  Ilardwicke  that 
tlie  executor  of  the  wife  M'as  not  en- 
titled to  any  share  of  the  principal 
residue. 

It  is  equally  well  established  that 
the  words   "next  of  kin,"  in  their 


§  1200  CONSTRUCTION   OP   WILLS  1082 

natural  meaning  of  "next  of  kin"  points  to  such,  at  tlie  death 
of  the  person  whose  next  of  kin  is  spoken  of,  unless  the  context 
demonstrated  that  the  person  to  take  is  to  be  ascertained  at  a 
future  period/" 

§1200.    "Relation"  construed. 

The  popular  meaning  of  the  words  "relatives  or  relation" 
is  that  of  all  persons  within  any  degree  whatever  of  consan- 
guinity or  affinity."^  Its  primary  signification  means  such  per- 
son as  would  take  under  the  statute  of  descent  and  distribution 
if  testator  died  intestate  and  generally  the  term  would  include 
legitimate  persons.  "Nearest  relations"  will  exclude  nephews 
and  nieces  when  there  are  surviving  brothers  and  sisters,  and 
applies  properly  only  to  those  who  are  of  kin  by  blood ;  hence, 
relations  by  marriage  are  not  included  in  a  bequest  to  "rela- 
tions" generally.^  ^^ 

Sometimes  it  would  not  include  the  wife.^^" 

§1201.     "Descendants"  construea. 

The  term  "descendants"  comprises  every  individual  proceed- 
ing from  the  stock  of  family  referred  to,  and  does  not,  without 

strict  and  primary  sense,  do  not  in-  K.  780;  Slosson  vs.  Lynch,  43  Barb, 

elude  the  widow,  and  it  has  accord-  147;    Garrick   vs.   Camden,    14  Ves. 

ingly  been  held  that  where  a  residue  372-7. 

of  personal  property  is  directed  to  The  phrase  "nearest  of  kin"  when 
be  divided  among  the  testator's  employed  in  a  last  will  and  testa- 
"next  of  kin"  or  among  his  "next  ment  in  the  absence  of  language  in 
of  kin  according  to  the  statute,"  or  the  will  manifesting  a  different  in- 
among  his  "next  of  kin,  as  if  he  had  tention,  is  to  be  so  construed  as  to 
died  intestate,"  or  where  a  trust  was  embrace  within  its  meaning  such  as 
created  for  the  benefit  of  those,  who,  would  inherit  under  the  statutes  of 
at  the  decease  of  a  party,  should  be  descent  and  distribution,  and  in  the 
entitled  to  his  personal  estate,  as  his  order  and  proportion  therein  pro- 
next  of  kin,  according  to  the  statutes  vided.  Godfrey  et  al.  vs.  Epple 
for  the  distribution  of  personal  es-  et  al.,  100  Ohio  State  447. 
tate  of  persons  dying  intestate,  the  H^Woerner  on  Admin.  905. 
widow  takes  no  part.  Garrick  vs.  us  Page  on  Wills,  §  529,  p.  616. 
Lord  Camden,  14  Ves.  372;  Choi-  119  Woerner  on  Admin.  904. 
mondeley  vs.  Lord  Ashburton,  6  120  See  note  to  previous  section. 
Beav.  86;  Kamlin  vs.  Osgood,  5  N.  But  it  is  held  that  where  A's  will 
Y.  Surr.  (1  Redf.  409)  409-417;  gave  property  to  B  for  life,  remain- 
Slosson  vs.  Lynch,  43  Barb.  147;  der  to  B's  children  if  she  leaves  any, 
Murdock  vs.  Ward,  67  N.  Y.  387  and  otherwise  to  B's  brothers  and  sisters 
cases  cited.  or  their  families  and  at  the  time 
Adjudged  cases  in  courts  of  high  the  will  took  effect  B  had  three 
repute  have  held  that  the  words  brothers  and  sisters,  one  brother  had 
next  of  kin"  would  include  the  died  leaving  no  children  but  a 
widow  if  the  general  scope  of  the  widow,  that  the  icidoio  was  not  in- 
will  indicated  the  intention  of  the  eluded  in  the  term  family.  Lemon 
testator  to  include  her.  Withy  vs.  vs.  McElroy.  101  S.  E.  Rep.  ('S.  C.) 
Mangles,  4  Beav.  358;  10  CI.  &  F.  852.  r  v  / 
215;   Elmsley  vs.  Young,  2  Myl.  & 


1083  DISINHERITING   IIEIKS  §  1202 

very  clear  indications  of  the  testator's  intent  by  the  context,  in- 
clude collateral  heirs,  or  heirs  generally,  or  next  of  kin,  but  only 
the  issue  of  tlie  body  of  the  person  named.  A  devise  or  legacy 
to  descendants,  not  otherwise  qualified,  is  distributable  between 
them  per  capila;  but  the  ascertained  intention  of  the  testator 
will  govern  in  this  respect  also.^"^ 

But  there  is  a  plain  and  broad  distinction  between  the  terms 
children  and  descendants.  The  one  indicates  only  lineal  de- 
scendants, while  the  other  includes  both  lineal  and  collateral 
relations,  all  in  short  that  would  then  take  the  estate  under  the 
statute  of  descent.  All  persons  may  not  be  in  fact,  but  they  are 
in  law  the  descendants  of  the  person  from  whom  they  receive  the 
estate.  Upon  the  same  principle,  it  has  repeatedly  been  held  in 
our  State,  that  the  term  "  ancestor,"  as  used  in  the  statute  of 
descents  and  distribution,  means  him  from  whom  the  estate 
was  inherited.^" 

§  1202.     Disinheriting  heirs. 

It  is  a  maxim  of  the  law  that  no  one  can  be  heir  to  tlie  liv- 
ing.^"^  And  it  is  equally  axiomatic  that  a  person  has  a  right  to 
dispose  of  his  property  in  such  manner  as  he  may  think  fit.^^* 

121  Woerner  on  Admin.  903.  at  all  while  he  is  living    if  we  are 

A  descendant  is  "  one  who  de-  to  be  technical  about  the  word  heir 
scends  as  offspring,  however  remote-  as  used.  An  heir  at  common  law  is 
ly;  correlative  to  ancestor  or  as-  one  who,  after  his  ancestor's  death, 
oendant."  The  term  includes  the  has  a  right  to  inherit  all  the  intes- 
most  remote  lineal  offspring,  and  is  tate  estate ;  by  descent,  he  inherits, 
practically  synonymous  with  "  is-  But  while  living,  a  man  strictly  has 
sue  "  in  its  legal  meaning.  Hence  it  no  heir.  So  that  the  word  heir,  as 
excludes  collateral  relations;  nor  here  used,  is  not  used  in  its  strict- 
does  it  include  relatives  in  the  as-  est  sense,  but  in  common  parlance 
cending  line.  it  is  used  to  denote  children.     Ober 

Page  on  Wills,  §  527,  p.  013.  vs.   Hickox.    19   C.   C.  45;    10   C.   D. 

i22Turley    vs.    Turley,    11    O.    S.  128. 

181.  1--*  In    I.amb   vs.   Lamb,    105   Ind. 

As  to  the  meaning  of  the  terms  456,  tlic  Court  approves  the  follow- 

family,    brothers,    sisters,    nephews,  ing   instruction:      "A   person   com- 

nieces,  cousins,  representatives,  serv-  petent   to   make   a   will   may   disin- 

ants,    legatees    and     survivors,    see  herit  all  of  his  children,  and  bestow 

Page  on  Wills,  §§  527,  530,  531,  532,  all  his  property  upon  strangers,  or 

633,  534,  535,  536.  he  may  give  his  property  to  one  or 

i«3  Strictly  no  man  has  any  heir  more  of  his  children  and  disinherit 


§1202 


CONSTRUCTION    OP   WILLS 


1084 


Whatever  interest  an  heir  has  in  the  estate  of  his  ancestor  de- 
pends purely  on  statutory  provisions.  There  is  an  idea  prevail- 
ing among-  those  who  are  not  versed  in  the  law  that  unless  the 
testator  makes  some  mention  or  provision  in  his  will  for  each 
one  of  his  children,  that  the  child  not  so  mentioned  or  provided 
for  will  be  entitled  to  the  share  given  to  him  by  the  statute  of 
descent  and  distribution,  or  that  the  will  is  entirely  invalid. 
This  idea  comes  from  the  civil  law  and  not  from  the  common 
law.^-'' 

If  the  testator  makes  no  mention  of  one  of  his  children  in 
his  will  and  by  such  will  disposes  of  all  of  his  property,  such 
child  is  as  completely  disinherited  as  if  the  testator  had  spe- 
cifically so  provided.  But  if  the  child  is  not  mentioned  in  the 
will,  then  as  to  property  undisposed  of  by  the  will,  the  child 
will  be  entitled  to  the  provision  given  by  the  statute  of  descent 
and  distribution;  and  our  Supreme  Court  has  held  that  a  testa- 
tor can  not  by  any  words  of  exclusion  used  in  his  will,  disinherit 
one  of  his  lawful  heirs  in  respect  to  property  not  disposed  of  by 
his  will,  and  that  such  words  can  not  be  used  to  control  the  course 
of  descent  so  as  to  carry  the  property  to  his  other  heirs.^-^  It 
is  a  rule  of  law  that  the  heir  is  not  to  be  disinherited  without 
an  expressed  devise  or  necessary  implication.^^^ 


the  others,  or  he  may  bequeath  more 
of  his  property  to  some  than  to 
others  of  his  children,  and  the  mo- 
tive for  so  doing  can  not  be  ques- 
tioned, and  the  hardship  of  the  case 
can  have  no  other  weight  further 
than  a  circumstance,  tending,  with 
other  testimony,  to  show  the  in- 
sanity of  the  testator." 

125  Under  the  civil  law  a  will 
whereby  the  testator  without  just 
cause  excluded  from  his  estate  those 
who  were  near  to  him  in  blood,  as 
where  a  parent  disinlierited  a  child, 
or  a  child  excluded  a  parent,  was 
known  as  an  inofficious  will,  and 
might  be  set  aside  by  a  form  of 
contest  known  as  querela  ino-fficiosi 
testamenti.  Page  on  Wills,  §  385, 
p.  454. 

In  Fisher  vs.  Fisher,  60  Bull.  41, 
the  will  was  as  follows: 

"I,  John  Fisher,  make  my  will 
and  testament,  and  in  case  of  death 
or  accident  I  bequeath  to  Louisa 
Fisher  my  house  and  lot  as  long  as 
she  stays  unmarried,  and  her  share 
in  the  chattels  and  money  that  I 
may  leave.  To  Fred  Fisher  I  give 
$5.00,  because  he  is  unworthy  of 
anything." 

In  addition  to  these  two  children 
there   were   grandchildren,   children 


of  a  deceased  son  and  five  other 
children. 

The  house  was  sold  by  testator 
during  his  lifetime.  There  was 
$4,671.06  personalty  to  distribute. 
Louisa  was  given  $1,094.15;  Fred 
$515.27;  the  rest  of  the  children 
(6)    were  given  $510.27. 

The  clause  in  the  will  did  not 
disinherit  Fred,  in  fact,  gave  him 
$5.00  more  than  he  would  have  re- 
ceived, had  he  not  been  mentioned. 

126  Crane  vs.  Doty,  1  O.  S.  270. 
The  provision  in  this  case  was  "to 
his  grandson,  Albert  Jewel,  fifty 
acres  of  land  and  no  more  of  my 
estate." 

A  man  can  not  provide  for  the 
division  which  shall  be  made  of  his 
property  after  his  death  by  execu- 
tory contracts  with  his  children  in- 
stead of  last  will  and  testament. 
Needles  vs.  Xeedles,  7  0.  S.  432. 

127  See  §1181. 

Gibson  vs.  Neeley,  11  O..  S.  152; 
Gano  vs.  Fisk,  43  O.  S.  462;  Math- 
ews vs.  Krischer,  59  O.  S.  562. 

"The  heir  is  not  to  be  disin- 
herited without  an  express  devise  or 
necessary  implication;  such  impli- 
cation importing,  not  natural  neces- 
sity,  but   so    strong   a   probability, 


1085  PROVISION  AGAINST  CONTEST  §  1203 

Neither  can  a  testator  prevent  his  heirs  from  inheriting  by 
a  doubtful  v/ord  of  exclusion.  Thus  where  the  deceased  had 
devised  land  to  his  wife  and  ''  her  heirs  forever  except  the  heirs 
of  my  deceased  son  William  Robson,  and  the  heirs  of  my  de- 
ceased daughter  Alma,"  it  was  held  that  the  heirs  of  testator's 
deceased  son  and  daughter  were  entitled  to  the  share  of  their 
parents  in  the  land  per  stirpes.  And  if  a  will  is  capable  of 
two  constructions,  one  of  which  will  exclude  the  issue  of  a 
deceased  child  and  the  other  permit  such  issue  to  participate  in 
a  remainder,  the  latter  will  be  adopted/^^  But  if  the  intention 
of  the  testator  is  plain  from  the  context  of  the  will  that  a 
certain  heir  is  to  be  excluded,  the  Court  will  follow  such 
intention/^^  Of  course  a  testator  cannot  by  will  deprive  his 
wife  of  her  dower  interest  in  his  real  estate,  nor  can  he  prevent 
his  children  and  wife  from  having  a  year's  allowance  set  apart, 
in  his  estate/^" 

§  1203.     Provision  against  contesting. 

Sometimes  testators  in  order  to  prevent  a  contest  of  their 
will,  make  a  provision  in  such  will  that  if  any  devisee  shall  con- 
test the  same,  that  he  shall  forfeit  his  right  in  the  testator's  es- 
tate, both  under  the  will  and  statute  of  descent  and  distribution. 
Such  a  provision  has  been  expressly  upheld  by  our  Supreme 
Court."' 

The  exact  language  in  this  case  being  "  now  if  any  of  my 
heirs  is  dissatisfied  and  goes  to  law  to  break  this  will,  then  my 
will  is  and  I  direct  that  they  shall  have  no  part  of  my  estate 
and  I  debar  them  from  any  part  of  my  estate  whatever." 

While  this  decision  settles  the  law  at  least  in  Ohio,  some 
authors  are  inclined  to  doubt  the  wisdom  of  its  strict  enforce- 
that  an  intention  to  the  contrary  129  Ober  vs.  Hickox,  19  C.  C.  42; 
can  not  be  supposed.     Merely  nega-       10  C.  D.  128. 

tive  words  are  not  sufiicient  to  ex-  i^o  Page  on   Wills,   §  467,   p.  547. 

elude  the  title  of  the  heir  or  next  131  Bradford   vs.   Bradford,    19  O. 

of   kin.     There   must   be   an    actual       S.  546. 

gift  to  some  other  definite  object."  See  In  re  Kirckhold's  Estate,  149 

3   .Jarm.   704;    Wade   vs.   Loach,   42       N.   Y.   Supp.  87;   80  Cen.  L.  J.  15, 
Bull.  255.  with  note  as  to  what  may  be  con- 

ies Wade  vs.  Loach,  42  Bull.  254.       sidered  a  contest. 


g  l-20-i:  CONSTRUCTION    OF    WILLS  1086 

ment.  "  To  exclude  all  contest,"  says  Schouler/^^  "  of  the 
probate  on  reasonable  gi'ound  that  the  testator  was  insane  or 
undnlj  influenced  when  he  made  it,  is  to  intrench  fraud  and 
coercion  more  securely ;  and  public  policy  should  not  concede 
that  a  legatee,  no  matter  what  ground  of  litigation  existed, 
must  forfeit  his  legacy  if  the  will  is  finally  admitted."  And 
concludes  that  all  clauses  or  provisions  of  this  character  should 
at  least  be  construed  as  strictly  as  possible,  being  penal  in 
their  operation.  But  a  recent  case  has  held  that  where  an 
action  was  brought  to  ascertain  the  true  constniction  of  the  will 
on  proper  points,  without  thwarting  the  designs  of  the  testa- 
tor, that  such  action  would  not  cause  the  forfeiture  under  a 
will  which  provided  that  if  any  devisee  should  sue  or  disturb 
the  provisions  made  by  the  will  he  should  forfeit  his  right  un- 
der the  wilV^^ 

A  condition  against  presenting  a  claim  against  the  estate  has 
likewise  been  upheld. ^^*  However,  a  beneficiary  under  such  a 
condition,  who  procures  and  obtains  another  heir  to  institute 
proceedings  to  contest  a  will,  forfeits  his  interest  therein.^^^ 

§  1204.     Restraints  of  alienation. 

It  is  a  unifonu  rule  that  where  an  estate  is  devised  in  fee 
simple  that  no  condition  can  be  made  which  will  limit  the  dis- 
position of  such  estate.  Such  a  limitation  would  be  in  direct 
opposition  to  the  idea  of  an  estate  in  fee  simple.  There  has 
been  some  controversy  among  various  courts  as  to  whether  a 
partial  limitation  might  be  made.  But  in  our  State  even  such 
partial  limitations  have  been  denied.^^® 

132  Schoul.  on  Wills  605.  ity     to    sell    when     that    age    was 

133  Smithsonian  Inst.  vs.  Meech,  reached.  Pendleton  vs.  Bowler,  27 
169   U.   S.   398;   Black  vs.  Herring,       Bull.   313. 

79  Md.  146.  Anderson  vs.  Gary,  36  0.  S.  506; 

134  Page  on  Wills,  §  680,  p.  803.  Myers     vs.     Moore,     12     Bull.     90; 

135  Page  on  Wills,  §  '683,  pp.  807,       Hicks  vs.  Stone,  11  Bull.  67. 

808.  But  the  case  before  us,  is  the  de- 

i3«  A  restriction  upon  the  author-  vise    of    an    absolute    fee,    with    a 

ity  of  the  youngest  child  until  he  clause     restraining     the     alienation 

shall    arrive    at    the    age    of    forty  and  incumbering  of  the  estate  for  a 

years  necessarily  implies  an  author-  limited   period,    intended,   no   doubt, 


1087  KESTRAINTS  OF  ALIENATION  §  1204: 

Our  Courts  have  likewise  held  that  where  a  fee  is  devised 
of  an  estate  for  ninety-nine  years  that  a  condition  that  the 
same  should  not  be  taken  for  execution  for  the  pajTuent  of  dev- 
isee's debts  ^vas  invalid/^^ 

And  so  where  a  testator  bequeathed  all  the  net  income  of 
his  estate  to  a  trustee  in  trust  for  the  education  and  support  of  a 
certain  person  for  life,  without  other  limitation,  it  was  held 
that  the  bequest  so  made  is  an  absolute  one,  and  is  subject  to 
the  claim  of  creditors/^^  But  it  seems  that  where  a  provision 
is  made  in  a  will  that  a  devisee  shall  have  a  mere  life  estate  in 
the  property,  which  life  estate  shall  terminate  upon  his  attempt 
to  alienate,  charge  or  incumber  the  property,  such  a  provision  is 
valid.  But  even  this  is  strictly  construed,  and  permitting  the 
same  to  be  sold  on  execution  is  not  a  forfeiture  under  the 
will/^" 

Where  a  will  provided  that  tJae  devisee  should  have  all  the 
rents  and  have  full  and  complete  control  and  possession  of  the 
property  it  was  held  that  such  rents  were  liable  to  be  applied 
on  an  execution  againot  such  devisee/*'* 

A  provision  in  a  will,  however,  by  a  testator,  that  no  part  of 
his  estate  given  to  any  of  his  children,  should  by  any  process 
of  law  be  seized  or  appropriated  by  a  creditor  before  payment 
to  such  child,  but  should  only  be  paid  to  such  cbild  personally. 


for   the   protection   of   the   devisees,  tempt  either  to  review  or  reconcile 

who  alone  are  interested  in  the  es-  the  cases,  being  content  to  rest  the 

tate  devised.     In  holding  that  such  decision  upon  what  we  conceive  to 

restraint  is  repugnant  to  the  nature  be   sound   principle   and   sound   pol- 

of   the   estate   devised,   and   is   void  icy.     The  owner  of  property  cannot 

as   against  public  policy,   which   in  transfer    it    absolutely    to    another, 

this   State  in  the  interest  of  trade  and  at  the  same  time  keep  it  him- 

and  commerce,  gives  to  every  abso-  self.     Anderson  vs.   Gary,   36   O.   S. 

lute  owner  of  property  who  is  sui  517. 

juris,  the  power  to  control  and  dis-  i37   Hobbs  vs.  Smith,  15  O.  S.  419. 

pose  of  such  property,  and  subject  iss  Thornton    vs.    Stanley,    55    O. 

the    same    to    the    payment    of    his  S.   199. 

debts,    we   are   fully    aware    of    the  i^o  Paris  vs.  Winterburn,  6  C.  C. 

fact  that  many  authorities  may  and  635 ;  3  C.  D.  622. 

have    been    cited    to    the    contrary.  ko  Merchants'  Bank  vs.   Rieck,  4 

Others,   hoAvever,    support   the   view  N.  P.  219;   6  Dec.  331. 

we  have  taken^  but  I   shall  not  at- 


§  120o  CONSTRUCTION    OF    WILLS  1088 

is  valid ;  a  creditor  of  any  of  such  children  could  not,  by  any 
process,  obtain  the  application  of  money  so  devised  in  the 
hands  of  tlie  administrator/*^ 

A  provision  in  a  will  that  there  should  be  no  partition  of 
the  estate  until  ten  years  after  testator's  death  has  been  held 
to  be  valid/*^  In  the  absence  of  restraining  statutes,  says 
Page,^*^  the  great  weight  of  American  authority  is,  that  if 
testator  expresses  his  intention  in  apt  and  suitable  language, 
it  is  possible  to  create  such  an  estate  in  equity  as  to  exclude  the 
creditors  of  the  beneficiary  from  reaching  such  estate  and  sub- 
jecting it  to  their  claims.  It  seems,  however,  that  it  could  only 
be  done  in  Ohio  by  a  will  in  which  there  was  a  gift  over  to 
some  other  person  if  the  condition  was  broken."* 

§  1205.     Restraint  of  marriage. 

It  is  well  established  that  a  condition  in  a  will,  restraining 
the  devisee  from  marriage,  is  a  condition  contrary  to  public 
policy  and  void.^*^  A  condition  against  a  remarriage,  how- 
ever, is  held  to  be  valid."*'  And  this  rule  as  to  remarriage  is 
not  confined  to  tlie  surviving  spouse  of  the  testator."^  Ee- 
straints  against  marrying  persons  belonging  to  specified  classes 
have  been  upheld,  and  so  have  resti*aints  against  marrying  a 
specified  individual,"^ 

1*1  Skillmait  vs.  Symmes,  14  C.  C.  In   this   case  the  testator  by   his 

547;  7  C.  D.  39.  will  gave  to  his  wife  all  his  prop- 

The  same  kind  of  a  provision  in  erty   during   her   life,   provided   she 

a   deed    has   been    upheld.      Frazier  so    long   remained   his   widow;    and 

vs.  Wilkinson,   18  C.  C.  303;    10  C.  directed,    that  in   case   she  married 

^-  106.  again,  or  at  her  death,  the  property 

1*2  7,1  re  Reynolds,  7   N.   P.   626;  should    be    equally    divided    among 

5   Dee.   570.  his  children.     Tlie  widow  elected  to 

See   Page  on  Wills,   §§   634,   684,  take  the  provision  made  for  her  in 

pp.  738,  808.  the    will,    and    afterwards    married 

143  Page  on  Wills,  §  68.5,  p.  814.  again.     The   Court  in   disposing  of 

1*4  Stanley  vs.  Thornton,  7  C.  C.  the  case,  said,  "  and  as  she  took  un- 

455;    4    C.    D.    677;    Thornton    vs.  der  the  will,  she  lost  all  of  it  by 

Stanley^   55   0.   S.    i99;,Schoul.   on  her   subsequent  marriage." 

^"''IS'  601.  147  Herd  vs.  Catron,  97  Tenn.  662. 

1*5  Page  on  Wills,  §  681,  p.  803;  i*8  Greene  vs.  Kirkwood,   1  Jr.  K. 

Schoul.  on  Wills,  603.  (1895)  Ch.  130  (a  condition  against 

i*6Luigart   vs.   Ripley,    19    0.    S.  devisee    marrying    a    man    "below 

*^*  her   social   station");    Hodgson   vs. 


1089  RESTRAINT   OP    MARRIAGE  §  1206 

A  condition  in  a  will  by  which  an  inducement  is  offered  to  a 
married  person  to  obtain  a  divorce,  or  to  live  separate  and 
apart  from  the  other  spouse,  is  contrary  to  public  policv,  and 
void."» 

§  1206.  When  real  estate  undevised  shall  be  applied  to  pay- 
debts  instead  of  personalty.  "When  part  of  the  real  estate 
of  a  testator  descends  to  his  heirs  because  of  its  not  being  dis- 
posed of  by  his  will,  and  his  personal  estate  is  insufficient  to 
pay  his  debts,  the  undevised  real  estate  first  shall  be  charge- 
able with  the  debts,  in  exoneration,  as  far  as  it  will  go,  of  the 
real  estate  that  is  devised,  unless  it  appears  from  the  will  that  a 
different  arrangement  of  assets,  for  the  payment  of  his  debts, 
was  made  by  the  testator ;  in  which  case  they  shall  be  applied 
for  that  purpose  in  conformity  with  its  provisions."  [R.  S. 
§5972.]!^'' 

§  1207.  Contribution,  when  devised  or  bequeathed  property 
taken  to  pay  debts.  "When  any  estate,  real  or  personal,  de- 
vised, is  taken  from  the  devisee  for  the  payment  of  the  testator's 
debts,  the  other  devisees  and  legatees  must  contribute  their 
respective  proportions  of  the  loss  to  the  person  from  whom  it 
was  taken,  so  as  to  make  the  loss  fall  equally  on  all  the  devisees 
and  legatees,  according  to  the  value  of  the  property  received 
by  each  of  them  excepting  as  provided  in  the  next  following 
section.     [R.  S.  §5973.]i5i 

§  1208.  Except  when  will  otherwise  provides.  "If,  in  such 
case,  by  making  a  specific  devise  or  bequest,  the  testator  has 
virtually  exempted  a  devisee  or  legatee  from  his  liability  to 
contribute,  with  the  others,  for  the  payment  of  the  debts,  or 
if,  by  other  provision  in  the  will,  he  has  prescribed  or  required 


Halford,  11  Ch.  Div.  959;  Finlay  vs.  Whether    bequest    is    a    personal 

King,  3  Pet.    (U.S.)    346;   Graydon  charge  depends  on  the  construction; 

vs.   Graydon,   23  N.   .J.   Eq.   220.  it  cannot  be  inferred  unless  the  will 

149  See  Woerner  on  Admin.  OfiO.  secures    the    devisee    the    advantage 

150  §  10,582   G.   C.  vvliieli   is  the   consideration  of   such 
Ramsdall  vs.  Craighill,  9  0.   197;  charge.      Where,    after   a    devise    of 

Muskingum    vs.    Carpenter's,    7    0.  land  there  is  direction  to  pay  debts, 

(1   pt.)    21;    Stiver  vs.  Stiver,  8  0.  a  pajnnent  of  debts  is  a  charge  upon 

217,   248;    Piatt  vs.   St.   Clair,  6   O.  the   devisee.      Becker   vs.   Decker,   3 

227;  Bustard  vs.  Dabney,  4  0.  68.  0.   157;   Qyde  vs.   Simpson,  4  O.  S. 

S€e    §7/57,    Distribution    of    real  445;   Nellons  vs.  Truax,  6  0.  S.  97; 

and   personal   estate;    §674   et  seq.,  Moore  vs.   Beckwitli,   14   0.  S.   129; 

Payment  of  legacies.  Huey  vs.  Thomas,  23  0.  S.  645. 

ini  §  10583  G.  C. 


js  1209  CONSTRUCTION   OJP   WILLS  1090 

an  appropriation  of  his  estate,  for  the  payment  of  his  debts, 
different  from  that  prescribed  in  the  next  preceding  section, 
the  estate  must  be  appropriated  and  applied  in  conformity 
therewitli."     [R.  S.  §5974.]^^^ 

§  1209.  But  whole  estate  liable  for  debts.  '  *  Nothing  con- 
tained in  the  next  two  preceding  sections  shall  affect  the  lia- 
bility of  the  whole  estate  of  the  testator,  for  the  payment  of 
his  debts.  The  provisions  of  such  sections  shall  apply  only  to 
the  marshaling  of  the  assets  as  between  those  who  hold  or  claim 
under  the  will."     [K.  S.  §  5975.] ^^^ 

§  1210.  Portion  of  child  born  after  execution  of  will,  or 
supposed  to  be  dead,  or  of  witness  subject  to  contribution. 

"When  a  part  of  the  estate  of  the  testator  descends  to  a  child 
born  after  the  execution  of  the  will,  or  to  a  child  absent  and 
reported  to  be  dead,  or  to  a  witness  to  a  will  who  is  a  devisee 
or  legatee,  such  estate  and  the  advancement  made  to  such  child 
or  witness  for  all  the  purposes  mentioned  in  the  next  three  pre- 
ceding sections,  shall  be  considered  as  if  it  had  been  devised  to 
such  child  or  witness ;  and  he  shall  be  bound  to  contribute  with 
the  devisees  and  legatees,  as  before  provided,  and  be  entitled  to 
claim  contribution  from  them  accordingly."     [R.  S.  §5976.]"* 

§  1211.  If  any  liable  to  contribute  are  insolvent,  etc.,  how 
others  to  make  up  deficiency.  "When  any  of  the  persons 
liable  to  contribute  toward  the  discharge  of  such  debt,  accord- 
ing to  the  provisions  of  the  next  four  preceding  sections,  is 
insolvent,  or  unable  to  pay  his  just  proportion  thereof,  the 
others  severally  shall  be  liable  to  each  other,  for  the  loss  occa- 
sioned by  such  insolvency,  each  one  in  proportion  to  the  value 
of  the  property  received  by  him,   from  the   estate  of  the  de- 

152  §  10584  G.   C.  subject  to   ancestor's  debts.     Stiver 

Express  words   are  not  necessary  vs.  Stiver.  8  0.  217. 
to   charge   pecuniary   legacies    upon  Ramsdall  vs.   Craighill,  9  0.   197. 

the  real  estate;    an  intention  to  do  Purchaser  takes  land  charged  with 

so   may  be   derived   by    implication.  ancestor's  debts.     Piatt  vs.  St.  Clair, 

Clyde  vs.  Simpson,  4  0.   S.  445.  G   0.   227. 

When  the  trust  or  charge  is  de-  Creditors  must  first  exhaust  their 
fined  and  limited,  the  purchaser  remedy  against  the  personal  repre- 
must  see  to  the  application  of  the  sentatives  before  they  can  have  re- 
purchase money;  otherwise  when  it  course  to  lands  in  the  hands  of  pur- 
is  general  and  unlimited.  Id.  chasers  from  the  heirs.  Stiver  vs. 
^_ Allen   vs.   Tressenrider,   72   O.   S.  Stiver,  8  0.  217. 

"153  §  10585  G.  C.  ^^*  §  ^^^^^   ^-   C-     S*'e   §§  10563-4 

Heirs  and  devisees  hold  the  land      ^-  ^•>  §  ^^^^- 


1091  CONTRIBUTION    OF    HEIRS  §  1212 

ceased.  If  any  one  of  the  persons  so  liable  dies  without  paying 
his  proportion  of  such  debt,  his  executors  and  administrators 
shall  be  liable  therefor,  in  like  manner  as  if  it  had  been  his 
proper  debt  to  the  extent  to  which  he  would  have  been  liable 
if  living."     [R.  S.  §5977.]!^^ 

§1212.  How  contribution  enforced.  "All  cases  arising 
under  this  chapter,  in  which  devisees  or  legatees  are  required  to 
contribute  to  make  up  the  share  of  a  child  born  after  the  execu- 
tion of  the  will,  or  of  a  child  absent  and  reported  to  be  dead, 
or  of  a  witness  to  the  will,  or  in  which  contribution  is  to  be  made 
among  devisees,  legatees,  and  heirs,  or  any  of  them,  may  be 
heard  and  determined  in  a  single  action."     [R.  S.  §5978.]^^" 

§  1213.  Order  to  sell  land  to  pay  debts.  ''When  a  sale  of 
lands  aliened  or  unaliened,  by  a  devisee  or  heir  is  ordered  for 
the  payment  of  the  debts  of  the  estate,  nothing  in  the  foregoing 
sections  shall  prevent  the  court  from  making  such  order  and 
decree  for  the  sale  of  any  portion  of  the  aliened  or  unaliened 
land,  as  may  be  equitable  between  the  several  parties,  and  also 
to  make  such  order  of  contribution,  and  further  order  and 
decree  as  mil  settle  and  adjust  the  various  rights  and  liabilities 
of  the  parties,  which  arise  by  reason  of  the  alienation,  the  order 
of  sale,  or  otherwise."     [R.  S.  §  5979.] ^^ 

155  §  10587  G.  C.  157  §  10589  G.  C. 

158  §  10588  G.  C. 


§1214 


ELECTION   UNDER  WILL 


1092 


CHAPTER  LXV. 

ELECTION  OF  WIDOW  OR  WIDOWER  UNDER  A  WILL. 


§  1214     Introductory. 

§  1215  Citation  to  widow  _  or 
widower   to  make   election. 

§  1215a  Construction. 

§  1215b  Election — time  extended. 

§  1215c  Dower  and  gift. 

§  1216     When  citation  should  issue. 

§  1217     To  whom  issued. 

§  1218  Form  of  citation  and  re- 
turn to  widow  to  make 
election. 

§  1219  Time  within  which  election 
may  be  made. 

§  1220  When  entitled  to  both 
dower  and  the  provisions 
made  in  the  will. 

§  1221  Election  or  non-election. 
EfTect. 

§  1221a  Election  noted. 

§  1221b  Elects  to  take  under  will. 

§  1222     Election  made  in  person. 

§  1223     Judge  to  explain  wills,  etc. 

§  1224  Election  to  be  made  by  rec- 
ord. 

§  1225     Election.     Entry,  etc. 

§  1226  Election  made  by  acts  of 
parties. 


:  1227  Eflfect  of  election  to  take. 

1228  Effect  of  election  not  to  take. 
I  1229  How  election  set  aside. 
I  1230  Rights   of   devisee.     How   af- 
fected. 

1231  If    person   unable   to   appear 

or    non-resident    of    county, 
how  election  taken. 

1232  Application    for    commission, 

etc. 

1233  Commission     to     take     such 

election. 

1234  Form  of  entry,  etc. 

1235  How    election    made    for    in- 

sane or  imbecile  widow,  etc. 
1235a  Entry,  etc. 

1236  Application,   etc. 

1237  Form    of    commission    as    to 

insane   or   imbecile   widow's 
election. 

1238  Duty   of   Commissioner. 

1239  Duty  of  the  Court.i 


§  1214.     Introductory. 

An  election  means  the  exercise  of  a  choice,  and  the  provi- 
sions of  the  statnte  in  relation  to  an  election  to  accept  or  reject 
the  provisions  of  the  will  of  a  deceased  consort,  recognizes  the 
fact  that  under  onr  laws,  the  surviving  consort  has  some  rights 
in  the  property  of  the  deceased  consort,  which  it  was  not 
within  the  power  of  the  deceased  consort  to  take  away  from 
the  sur^'iving  one.     These  rights  which  cannot  be  taken  away 


1  See  §  943  et  seq.,  o-n  Dower.  See 
§319  et  seq.,  on  Widow  and  chil- 
dren's allowance.  §  907  et  seq.,  De- 
scent and  distribution.  §  674  et 
seq.,  Payment  of  legacies.  §  1180 
et  seq..  Construction  of  Wills. 


There  is  no  provision  of  law  for  a 
widow  to  take  vmder  the  law.  In  re 
Bullock,  3  X.  P.  (X.S.)  390;  15 
Dec.  785;  affirmed  75  0.  S.  574. 


1093  CITATION    OF    WIDOW  §  1215 

from  the  surviving  consort  are,  first  a  right  of  dower ;  second 
the  right  to  a  distributive  portion  of  the  personal  property; 
and  third,  the  right  of  a  widow's  or  children's  year's  mainte- 
nance. The  rights  of  widows  and  widowers  are  the  same  ex- 
cept possibly  to  a  year's  maintenance.  It  has  been  held  that 
the  release  of  dower  by  election  to  take  under  the  will  is  in- 
tended to  be  the  release  of  the  dower  interest  to  the  heirs  at 
law  of  those  entitled  to  inherit  and  not  as  a  means  of  convey- 
ance to  strangers.^ 

While  the  statutory  provisions  aim  to  fully  advise  the  parties 
as  to  what  should  be  done,  yet  the  want  of  some  particular 
provisions  have  presented  perplexing  questions.^  Only  the 
Court  admitting  the  will  to  original  probate  has  power  to  take 
the  election  of  the  surviving  consort.  The  act  does  not  apply  to 
foreign  wills.* 

§  1215.     Citation  of  widow  or  widower  to  make  election. 

"If  provision  be  made  for  a  widow  or  mdower  in  the  will  of 
the  deceased  consort,  after  the  probate  of  such  will,  the  probate 
court  forthwith  shall  issue  a  citation  to  such  widow  or  widower 
to  appear  and  elect  whether  to  take  such  provision  or  to  be 
endowed  of  the  lands  of  the  deceased  consort  and  take  the  dis- 
tributive share  of  the  personal  estate."     [R.  S.  §  5963.]^ 

§  1215a.  Construction.  ' '  Such  election  must  he  made  within 
one  year  from  the  date  of  the  service  of  such  citation;  except 
that  such  widow  or  widower,  at  any  time  before  the  period  of 
such  election  has  expired  may  file  a  petition  in  the  common  nleas 

2  Hessenmueller  vs.  Mulrooney,   4  Court     held,     did     not    release     the 

N.  P.  50;  G  Dec.  123.  premise.^  before  sold  from  her  dower 

In    this    case   the   widow   was   ex-  right.     Bowen  vs.   Bowen,   34   0.   S. 

ecutrix,  and  as  such  filed  a  petition  164. 

to    sell    the   real    estate    of   her   de-  3  The   reader   is   referred   for   dis- 

ceased   husband.      In   such   proceed-  cussion  of  this  subject  generally,  to 

ings  she  filed  no  waiver  of  her  dow-  Woerner   on   Admin.   269 ;    Page   on 

er   right,   neither  had  she  made  an  Wills,    §    710,    p.    848;    2    Redf.    on 

election    to    take    under    the    will.  Wills,  3d  ed.  352;   Jarm.  on  Wills, 

After  the  proceedings  were  had  and  443. 

the  premi-ses  sold  at  the  solicitation  *  Jennings   vs.   Jenning,   21    0.    S. 

of   the    purchaser,    she   appeared    in  56,   77. 

Probate   Court  and   elected   to   take  See    §    939,    Amount    of    personal 

under    the    will.     This    election    at  property    to    which    widow    is    enti- 

the  solicitation  of  the  purchaser,  the  tied.    §  947,  How  dower  barred. 

e  §  10566  G.  C. 


S  r2l5b  ELECTION  UNDER  WILL  1094 

court  for  the  proper  county,  making  all  persons  interested  in 
the  will  defendants  thereto,  asking  a  construction  of  its  provi- 
sions in  her  or  his  favor,  and  for  the  advice  of  the  court,  or  the 
proper  appellate  court  on  appeal  thereon."     [R.  S.  §  5963.]^* 

§  1215b.  Election  time  extended.  "When  proceedings  for 
advice,  or  to  contest  the  validity  of  a  Avill,  are  begun  within 
such  year,  if  the  will  is  not  set  aside,  the  election  may  be  made 
within  three  months  after  they  finally  are  disposed  of."  [R.  S. 
§5963.]-^t 

§  1215c.     Dower  and  gift.    "No  wido-w  or  widower  shall  be 

entitled  both  to  dower  and  the  provisions  of  the  will  in  her  or  his 

favor,  unless  it  plainly  shows  that  such  provision  was  intended 

to  be  in  addition  to  dower  and  a  distributive  share  of  the  estate. ' ' 

FR.  S.  §5963.]''^$ 

§  1216.     When  citation  should  issue. 

The  language  of  the  statute  is,  that  if  any  provision  be  made 
for  a  widow,  etc.,  the  Probate  Court  shall  forthwith  after  the 
probate  of  such  will  issue  a  citation.  If  there  is  no  provision 
whatever  in  the  will  of  the  deceased  consort  made  in  favor  of 
the  surviving  consort,  then  as  a  matter  of  course  there  is  nothing 
done  for  which  a  choice  can  be  exercised  and  no  citation  for 
election  is  necessary.  If  there  be  any  provisions  whatever,  then 
it  is  necessary  to  issue  the  citation  required  by  statute ;  for 
until  the  citation  is  issued  and  served,  no  rights  can  be  ac- 
quired adversely  to  the  right  of  the  living  consort  to  make 
an  election.  It  is  the  practice  sometimes  not  to  issue  this 
citation  at  once  as  the  statute  requires,  but,  relying  upon  a 
promise  of  some  one  to  wait  for  some  time  for  the  widow  or 
widower  to  voluntarily  appear  and  make  his  or  her  election. 
This  is  a  practice  not  to  be  commended.  The  Court  should  in 
all  instances  require  the  surviving  consort  to  appear  at  once 
and  make  her  election  or  issue  a  citation  as  the  statute  requires. 
The  object  and  purpose  of  the  statute  requiring  this  citation 
to  be  issued  at  once,  is,  that  the  estate  may  be  expeditiously 
settled.^ 

5*  §  10.567  G.  C.        ^  Prty   to   his    wife,    and    the   will    is 

•■'i  §  10.568  G.  C  duly    and    promptly    presented    for 

^t  §  10569  G.  C.  probate,    and    the    widow    dies,    her 

CA    divorced    wife    need    not    be  heirs,  and  not  those  of  testator,  ac- 

cited.     Charlton  vs.  Miller,  27  O.  S.  quire    the    property.      Hawkins    vs. 

298.  Barrow,   8   C.  D.   251 :    15    O.   C.   C. 

Where  a  husband  devises  his  prop-  142. 


1095  CITATION   ISSUED  §  1217 

§  1217.     To  whom  issued. 

This  citation  may  be  issued  to  the  sheriff  or  any  other  person 
who  is  willing  to  make  service  of  the  same  upon  the  widow  or 
widower.  The  usual  practice  is  to  require  the  executor  to 
make  service  of  the  citation.  This  citation  should  be  imme- 
diately served  upon  the  widow  or  widower,  and  a  memorandum 
made  upon  the  back  of  the  original  writ  mentioning  the  time 
at  which  the  service  was  made.  For  the  right  to  exercise  the 
power  of  election,  is  one  year  from  the  date  of  the  service* 
The  original  writ  of  citation  should  be  returned  to  the  Probate 
Court  and  by  the  Court  filed  with  the  proceedings  in  the  case; 
and  the  safe  way  would  be  when  the  election  is  not  immediately 
made  to  make  a  docket  or  journal  entry  of  the  fact  of  issue 
and  return  of  such  citation.  The  docket  or  journal  entry 
should  show  the  date  at  which  senace  was  made. 

§  1218.     Form  of  citation  and  return  to  widow.  To  make  election. 

The    State    of    Ohio, 

County,  ss. 

In  Piobate  Court. 
To ,    widow ...  of ,    deceased. 

You  are  hereby  notified  that  the  last  will  and  testament  of 

,  deceased,  was  on  the day  of A.  D.  190.  ., 

duly  admitted  to  probate  by  the  Probate  Court  of  said  county. 

You  are  hereby  cited  to  appear  in  person  before  said  Probate  Court 
within  one  year  from  the  date  of  the  service  of  this  citation,  and  make 
your  election,  whether  you  will  take  the  provision  made  for  you  in  said 
will,  or  be  endowed  of  the  lands  of  your  deceased  consort,  and  take  your 
distributive  share  of  h.  .  .  .personal  estate,  pursuant  to  the  statute  in  such 
cases  provided. 

In  testimony  wherof,  I  have  hereunto  set  my  hand  and  af.'.xed  the  seal 

of  said  Probate  Court,  at ,  Ohio,  this day  of 

190... 

,  Probate  Judge. 


The  State  of  Ohio County,  ss. 

I, do  make  solemn  oath  and  say,  that  on  the 

day    of 190.  .,    I    served    the   within   citation    upon   the 

within   named by  delivering   to   h .  .  .  .personally   a   true 

copy  thereof. 

Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of 190... 


I    hereby    acknowledge    service    of    the    within    citation,    this day 

of ,    190.... 


Bowon  vs.  Bowen,  34  0.  S.  164. 


§  1219  ELECTION  UNDER  WILL  1096 

§  1219.     Time  within  which  election  may  be  made. 

An  election  must  be  made  within  one  year  from  the  date  of 
the  service  of  the  citation,  not  one  year  from  the  date  that  the 
will  is  probated,  or  any  action  taken  therein.  The  only  in- 
stance in  which  a  \vidow  or  widower  can  Lave  this  right  pro- 
longed more  than  one  year  from  the  date  of  the  service  of  ci- 
tation, is  when  such  person  has  filed  a  petition  in  the  Court  of 
Coimnon  Pleas  asking  for  a  construction  of  the  provisions  of 
the  will.  In  such  cases  the  right  of  election  is  prolonged  to  a 
period  of  three  months  after  such  proceedings  shall  have  been 
finally  disposed  of.  There  can  be  no  implied  waiver  of  the 
issue  and  service  of  citation  so  as  to  bind  the  widow  or  widow- 
er; nothing  short  of  an  expressed  waiver  will  be  sufficient. 
Thus  where  a  widow  came  into  open  Court  and  upon  being 
asked  declined  to  make  an  election  at  that  time,  it  was  held 
tkat  she  thereby  did  not  waive  the  issue  and  service  of  a  cita- 
tion.'' 

§  1220.     When  entitled  to  both  dower  and  the  provisions  made 
in  the  will. 

Under  the  laws  of  Ohio,  as  set  forth  in  sees.  10566,  10567, 
10568,  10569,  G.  C.,**  the  widow  or  widower  is  not  entitled  to 
both  dower  and  the  provisions  of  the  will  in  her  or  his  favor, 
unless  it  plainly  appears  by  the  will  to  have  been  the  intention 
that  the  widow  or  widower  should  have  such  provision  in  addi- 
tion to  the  dower  and  distributive  share.  This  provision  is 
contrary  to  the  common  law  doctrine.  At  the  common  law 
where  it  was  not  apparent  from  the  will  it  was  held  that  the 
devise  would  be  presumed  to  be  in  addition  to  the  dower,  and 
now  the  presumption  is,  that  the  provision  made  in  the  will  is 
made  in  lieu  of  the  wife's  or  husband's  dower  rights;  and  if 

7  Bowen  vs.  Bowen,  34  0.  S.   181;  an  election  after  the  time  limit  ha3 

Ward   vs.   Ward,   5   W. ,  L.   J.   503 ;  expired.     Ward  vs.  Ward,  5  W.  L. 

Page  on  Wills,  §  729,  p.  868 ;   Cam-  J.  503. 
eron   vs.   Cameron,   Goebel,    157.  s  §  1215. 

A   Court   of  Chancery  may  allow 


1097  EFFECT   OF  §  1221 

the  surviving  consort  makes  no  election,  such  consort  will  only 
be  entitled  to  tlie  share  i)rovided  by  law;  and  in  such  cases 
may  be  held  to  have  declined  to  take  under  the  will. 

There  may  be  cases  where,  even  if  the  testator  expressly 
so  states  in  his  -vdll,  that  it  will  be  held  that  the  widow  is  not 
entitled  to  both  dower  and  the  provisions  of  the  will.  Thus 
where  a  testator  by  clear  and  express  language,  in  a  former 
clause  of  his  will  divided  all  his  property  both  real  and  per- 
sonal between  his  wife  and  children,  giving  to  the  widow  and 
her  heirs  forever,  one-third  of  his  real  estate^  and  more  than 
one-third  cf  his  personal  estate,  even  though  in  a  subsequent 
clause  it  was  provided  that  the  bequest  and  devise  to  his  -wife 
were  not  intended  to  be  in  lieu  of  dower,  yet,  having  disposed 
of  all  of  his  estate  and  having  made  provision  for  his  wife,  it 
was  held,  that  the  widow  would  not  be  entitled  to  dower,  and 
it  was  further  held  that  she  was  not  entitled  to  a  distributive 
share  of  the  estate.®* 

§1221.  Election  or  non-election,  eflfect.  ''The  election  of 
the  widow  or  widower  to  take  under  the  will  shall  be  made  in 
person,  in  the  probate  court  of  the  proper  county,  except  as 
hereinafter  provided.  On  the  application  by  a  wddow  or 
widower  to  take  under  the  will,  the  court  shall  explain  its 
provisions,  the  rights  under  it,  and  bv  law  in  the  event  of  a 
refusal  to  take  under  the  will."     [K  S.  §  5964.]  ^ 

§  1221a.  Election  to  be  noted.  "The  election  of  the  widow 
or  widower  to  take  under  the  mil  shall  be  entered  upon  the 
minutes  of  the  'court.  If  the  widow  or  ^^adower  fails  to  make 
such  election,  she  or  he  shall  retain  the  dower,  and  such  share 
of  the  personal  estate  of  the  deceasd  consort  as  she  or  he  re- 
spectively would  be  entitled  to  by  law  in  case  the  deceased  con- 
sort had  died  intestate,  leaving  children."     [R.  S.  §5964]^* 

§  1221b.  Elects  to  take  under  will.  ' '  If  the  widow  or 
widower  elects  to  take  under  the  will,  she  or  he  shall  be  thereby 
'barred  of  dower  and  suich  share  of  personalty,  and  shall  take 
under  the  will  alone,  unless  as  provided  in  section  ten  thousand 
five  hundred  and  sixty-nine.  But  an  election  to  take  under  the 
will  does  not  bar  the  right  to  remain  in  the  mansion  of  the 
deceased  consort,  or  the  widow  to  receive  one  year's  allowance 

«•  Parker  vs.  Parker,  13  0.  S.  9.5;  9  §  10570  G.  C.     See  §  8502  G.  C, 

Wilson  vs.  Hall,  6   C.  C.   570,  576;  §938,  as  to  Distribution  of  personal 

3  C.  D.  589;  Hall  vs.  Wilson,  53  O.  property.    See  §  8600-7  G.  C,  §  944, 

S.  679.  as  to  Dower. 

See   §  327,  Widow's   allowance.  9*  §  10571  G.  C. 


§  1222  ELECTION   UNDER   WILL  1098 

for  the  support  of  herself  and  children,  as  provided  by  law, 
unless  the  will  expressly  otherwise  directs."  [R.  S.  §5964' 
103  V.  58.]^! 

§  1222.    Election  made  in  person. 

The  right  of  election  is  by  statute  made  purely  a  personal 
right  and  can  only  be  exercised  by  the  party  entitled  thereto 
in  i)erson,  Qxcept  as  especially  provided  by  statute.^" 

If  tke  surviving  consort  dies  without  having  made  an  elec- 
tion, her  heirs  or  those  claiming  under  her  cannot  make  an 
election  ;^^  neither  can  her  administrator ;  neither  can  a  cred- 
itor of  the  husband  or  wife  elect  for  them  as  by  levying  exe- 
cution and  selling  the  property/^ 

Some  difficulty  is  encoimtered  in  a  case  where  the  widow 
is  properly  ser\^ed  with  citation  but  dies  before  the  expiration 
of  the  year,  in  determining  whether  the  widow  or  her  heirs 
should  be  entitled  merely  to  the  provisions  of  law  or  to  those 
made  for  her  in  the  will.  In  such  cases  some  of  the  courts 
have  come  to  the  conclusion  that  as  persons  usually  select  that 
which  is  most  to  their  benefit,  that  it  will  be  presumed  that  the 
widow  or  widower  would  have  elected  to  accept  the  more  val- 
uable right,  and  that  if  the  provisions  of  the  will  w^ere  of 
more  value  than  the  provisions  of  the  law,  it  will  be  presumed 
that  the  person  would  have  selected  the  most  valuable. ^^ 

Where  the  will  was  not  probated  until  after  the  death  of 
the  widow,  thus  having  given  to  her  no  opportunity  to  make 
her  election,  it  was  held  that  where  the  provisions  of  the  will 
were  more  valuable  than  that  provided  by  law,  that  she  or  her 
estate  was  entitled  to  the  provisions  of  the  will.^* 

9t  §  10572  G.  C.  it  on  the  record.    But  the  executor 

Where  it  does  not  plainly  appear  is   not   the  proper   person   to  bring 

by  the  will  to  have  been  the  inten-  the   action.      Zollinger   vs.   Thomas, 

tion    that   the   widow    should    have  24  Dec.  119. 

both    the    allowance    made    for    her  lo  See     §§10573,      10574     G.     C, 

and   dower,   and   she  elects  to  take  §§  1231,  1235. 

under  the   will,   she  will  be  barred  uMiilikin  vs.  Welliver,  37  O.  S. 

of  her  dower.     Luigart  vs.   Ripley,  460;  Woerner  on  Admin.  270. 

19  0.  S.  24.  12  Cunningham     vs.     Simpson,     1 

Where    the    widow    appeared    in  Bull.  173;  Fletcher  vs.  Huntington, 

court  and  did  actually  elect  to  take  S  N,  P.  333. 

under  the  will  and  the  judge  failed  is  Page  on  Wills,  §  719,  p.  S60. 

to  make  it  a  matter  of  record,  it  See  Millikin  vs.  Welliver,  37  0.  S. 

13  held  that  an  action  in  mandamus  460,  contra. 

will  lie  to  compel  the  judge  to  enter  14  Hawkins  vs.  Barrow,  15  C.  C. 

141;  8  C.  D.  251. 


1099 


JUDGE   TO   EXPLAIN 


§1223 


§  1223.    Judge  to  explain  wills,  etc. 

Upon  application  by  the  widow  or  widower  to  take  under 
the  will,  it  shall  be  the  duty  of  the  Court  to  explain  the  provi- 
sions of  the  will  and  their  rights  under  it,  and  by  law  in  tlie 
event  of  a  refusal  to  take  under  the  will/^*  This  is  the  statu- 
tory provision  and  it  would  seem  to  place  a  most  important 
and  responsible  duty  upon  tlie  judge  of  the  Court.  The  only 
time  that  our  Supreme  Court  had  this  question  under  consid- 
eration, it  was  held  that  the  judge  is  not  bound  nor  is  he  au- 
thorized to  direct  her  with  regard  to  the  validity  of  the  will  or 
her  riffhts  as  heir  in  the  case  the  will  should  be  set  aside  or 
its  devises  declared  to  be  void;  and  that  where  the  judge  ad- 
vised the  widow  that  if  she  should  refuse  to  take  the  provisions 
made  for  her  in  the  will,  she  would  be  entitled  to  her  dower 
right  in  all  the  real  estate  of  which  her  husband  died  seized, 
and  to  one-half  of  the  first  four  hundred  dollars  of  his  per- 
sonal estate,  and  one-third  of  the  residue;  but  if  she  elected  to 

take  under  the  will  she  would  be  entitled  to  the  provision  made 
The    question    most    discussed    in       after    probate    and    citation    she    is 
this  case  is,  whether,  where  a  hus-       prevented  by  some  reason  from  dO' 


band,  as  in  this  case,  gives  the 
whole  of  his  estate,  after  the  pay- 
ment of  his  debts,  absolutely  to  his 
widow,  and  she  dies,  shortly  there- 
after, before  the  probate  of  the  will, 
and  without  negligence  on  her  part 
(for  the  will  had  been  promptly  of- 
fered for  probate,  and  continued  for 
hearing),  or  even  after  the  probate 
of  the  will  and  being  cited,  fails  to 
elect  within  the  year  given  to  her, 
she  loses  all  the  benefit  of  the  pro- 
vision made  for  her  thereby,  and  is 
remitted  to  her  statutory  rights  as 
his  widow.  The  question  is  certain- 
ly one  of  great  importance,  and  it 
must  be  conceded,  that  on  the  lan- 
guage of  the  statute,  it  is  a  doubt- 
ful one.  If  a  husband  or  wife,  rel- 
ict of  a  deceased  consort,  under 
whose  will  he  or  she  would  be  enti- 
tled to  the  whole  of  the  estate,  and 
which  provision  is  of  far  more  value 
than  would  i>e  the  right  imder  the 
statute,  is  to  lose  the  benefit  of  the 
testamentary  provision  made  for  her 
thereby,  without  any  fault  or  neg- 
ligence on  his  or  her  part,  sim- 
ply because  the  will  not  being  pro- 
bated before  her  death,  she  can  not 
elect    to    take    such    provision ;     or 


ing  so,  great  injustice  may  be  done 
to  her.  It  would  seem,  therefore, 
that  the  courts  should  not  so  hold 
unless  it  is  manifest  that  such  is 
the  clear  law.    Id.  145. 

This  decision  is  hardly  in  accord 
with  the  syllabus  of  ilillikin  vs'. 
Welliver,  37  0.  S.  460. 

14*  A  deputy  to  the  judge  can  not 
take  this  election.  Mellinger  vs. 
Mellinger,  26  C.  C.  683. 

A  widow  who  has  not  elected  to 
take  under  the  will  is  entitled  to 
dower  in  all  the  land  of  which  her 
husband  died  seized,  and  a  distribu- 
tive share  in  the  proceeds  of  the 
land  which  the  testator  has  directed 
to  be  sold.  In  re  Bullock,  15  Dec. 
783;  affirmed  75  0.  S.  574. 

She  is,  however,  not  entitled  to 
dower  in  the  land,  and  a  distribu- 
tive share  in  proceeds  of  sale  of 
same  land.  Geiger  vs.  Bitzer,  80 
O.  S.  65;  overruling  Hutchins  vs. 
Davis,  68  0.  S.  160. 

If  the  judge  does  not  explain  it 
the  widow  is  not  bound.  Ward  vs. 
Sack,  27  Dec.  239;  14  N.  P.  401. 
See  Allen  vs.  Trcssenrieder,  72  O. 
S.  77,  Widow  may  bring  action  to 
construe. 


§  1224  ELECTION  UNDER  WILL  1100 

for  her  therein,  and  would  be  deprived  of  her  dower  in  the 
real  estate,  and  of  her  said  distributive  share  of  the  personal 
estate,  it  was  held  to  be  a  sufficient  explanation.^^ 

While  in  tlie  abstract  this  may  have  been  a  sufficient  ex- 
planation, yet  it  certainly  would  not  answer  in  all  cases. 
The  object  and  purpose  of  the  statute  is,  that  the  Court  should 
not  only  inform  the  widow  as  to  the  portion  she  would  receive 
if  she  refused  to  take  under  the  will.  But  she  should  likewise 
be  informed  of  what  she  is  to  receive  under  the  will.  For 
without  full  knowledge  of  the  provisions  of  the  will,  as  well  as 
of  her  rights  at  law.  she  will  not  be  in  a  position  to  make  an 
intelligent  choice.  In  this  view  of  the  case  it  places  upon  the 
judge  one  of  the  most  important  duties  pertaining  to  his  of- 
fice,^^  and  where  the  judge  has  doubt  as  to  the  effect  of  the 
provisions  made  for  the  surviving  consort  in  the  will,  he  should 
advise  the  person  making  the  election  to  consult  a  competent 
lawyer ;  and  if  the  surviving  consort  is  then  unable  to  determine 
what  the  provisions  of  the  will  are,  he  or  she  should  file  a  suit 
in  the  Court  of  Common  Pleas  for  a  construction  of  the  will." 

§  1224.     Election  to  be  made— Record. 

A  widow  or  widower  may  make  an  election  in  two  ways. 
One,  by  following  the  strict  language  of  the  statute,  which  re- 
quires that  when  the  election  to  take  is  made,  it  shall  be  en- 
tered upon  the  minutes  of  the  Court.  The  other,  by  actions. 
If  the  widow  does  not  desire  to  take  under  the  will,  she  need 
not  make  any  election  at  all.  But  very  often  for  the  purpose 
of  assisting  in  a  complete  and  earlier  administration  of  tlie 
estate,  the  widow  or  widower  makes  an  election  before  the  year 
has  expired,  not  to  take  under  the  will.  This  will  have  the 
same  effect  as  if  no  election  at  all  was  made  and  will  definitely 
determine  that  the  surviving  consort  wishes  to  retain  the  rights 

15  Carder  vs.  Comm'rs  of  Fayette  MelHnger,  5  C.  C.    (KS.)    435;    26 

County,  16  0.  S.  353.      ,  O.  C.  C.  683;  affirmed  73  O.  S.  221. 

10  Davis  vs.  Davis,   11   0.  S.  386.  A  widow  consulting  the  judge  as 

IT  §§  10S57-S  G.  C,  §  133.  to   her    right    and    again    apjiearing 

Error  may  be  prosecuted  from  a  in   court   announcing   her   intention 

construction   given   to   a  will   on   a  to    take    under    the    will,    and    the 

widow's    petition,    etc.      Davis    vs.  Probate   Judge   announced   that   he 

Coffman,  55  0.  S.  556.  so  understood  her,   this   is   ^n   elcc- 

A    deputy    clerk    in    the    Probate  tion  and  a  judicial  determination  of 

Judge's  office  has  no  power  or  right  the    fact    though    no    written    entry 

to  explain  the  will;  the  jud^ge  must  was  filed  or  made.    State  vs.  Sloane, 

do    this    personally.      Mellinger   vs.  24  Dec.  119. 


1101  ENTRY   OF  §  1225 

allowed  by  law ;  and  it  has  been  held  that  the  entry  of  an  elec- 
tion by  the  widow  to  take  under  the  will  of  her  husband  need 
not  show  aflfirmatively  that  the  judge  had  explained  to  her  the 
provisions  of  the  will  and  in  the  absence  of  averment  or  proof  to 
the  contrary,  such  explanation  will  be  presumed.^^ 

It  seems  that  the  only  duty  that  the  judge  is  obliged  to  per- 
form in  order  to  make  a  perfect  record  is  to  enter  upon  the 
minutes  of  his  court,  the  fact  that  the  surviving  consort  has 
elected  to  take  or  not  to  take  under  the  will  and  that  when  the 
entry  is  once  made  in  conformity  with  the  statute,  his  author- 
ity with  regard  to  it  is  ended.^^ 

The  general  practice  is  to  require  the  widow  or  widower 
to  make  the  election  in  writing,  although  such  is  not  required 
by  the  statutes,  but  it  prevents  dispute  and  is  a  safe  practice. 

§  1225.    Election.    Entry,  etc. 

Wliile  as  before  stated  the  statute  does  not  require  that  the 
election  of  the  widow  or  widower  be  taken  in  writing,  yet  it  is 
a  commendable  practice  to  require  it  to  be  done  in  that  man- 
ner ;  and  then  let  the  election  become  a  matter  of  record.  The 
following  will  serve  as  a  form  for  such  writing  and  election  as 
well  as  a  proper  entry  to  be  made  in  such  cases. 

WIDOW. .  .  .'S  ELECTION. 

In   the  Probate  Court  of County,   Ohio. 

Election  under  the  Last  Will  and  Testament  of ,  Deceased. 

I,   the   undersigned,   widow.  .  .  .of ,   late   of 

township county,  Ohio,  deceased,  having  had  ex- 
plained to  me  by  the  Probate  Court  of  said  county,  the  provisions  of  said 
will,  my  rights  under  it,  and  by  law  in  the  event  of  my  refu.sal  to  take 

under  the  will,  do  hereby  elect to  take  imder  the  will;  my  election 

so  made  to  be  entered  of  record. 


Whereupon,  the  Court  ordered  the  said  election  of  said 

to  be  entered  upon  its  minutes,  in  the  words  and  figures  following,  to- wit: 
,    190.... 

In  the  Matter  of  the  Will  of  ,  „,      . 

,  ,     }•  Election. 
,  deceased. 


This  day  personallj'  came  into  open  Court ,  widow.  .  . 

of  said ,  deceased,  and  applied  to  make  h  .  . .  .  election 

whether  to  take  or  not  to  take  under  the  will  of  said , 

18  Davis  vs.  Davis,  11  O.  S.  386.  The    Probate    Court    would    have 

19  Davis  vs.  Davis,  11  O.  S.  392.  no  jurisdiction  on  application  where 
Declarations,     acts     and     conduct  a  widow  did  not  elect  to  hear  the 

recognizing  the  will  and   accepting  case  upon  the  question  as  to  whether 

benefits   do   not  necessarily   amount  by   her   acts   she  would   be   held   to 

to   an   election   nor  estop  her   from  have  elected,  etc.,  luiless  possibly  in 

attacking  an  election  made  without  an    action    to    sell   real    estate,   etc. 

knowledge      of     her      proportionate  Such    a   matter   is   for    a    court   of 

share  of  the  estate.    Ward  vs.  Sack,  equity. 
19  N.  P.  401;  27  Dec.  239. 


^  12l'G  ELECTION    UNDER    WILL  1102 

deceased.  Whereupon  the  Court  explained  to  h .  .  . .  the  provisions  of  said 
will  and  h.  .  .  .rights  under  it,  and  also  h.  .  .  .rights  under  the  law  in  the 
event  of  h.... refusal  to  take   under  the  will;    and  he   declared  h....self 

satistied  with  the  provisions  of  said  will,  and  elected 

to  take  under  it,  and  asked  that  h .  .  .  .election  so to  take  might 

be  entered  upon  the  journal  of  the  Court,  which  is  accordingly  done. 

§  1226.     Election  made  by  acts  of  parties. 

Generally  little  difficulty  is  experienced  in  determining 
whether  an  election  has  been  made  or  not  when  the  election  has 
been  made  in  the  Court  as  contemplated  by  the  statute.  But 
matters  of  no  little  difficulty  arise  in  determining  when  the 
acts  of  the  widow  or  widower  in  relation  thereto  are  such  that 
an  election  will  be  presumed. 

In  order  that  acts  of  a  widow  shall  be  regarded  as  equivalent 
to  an  election  to  waive  dower,  it  is  essential  that  she  act  with 
full  knowledge  of  all  the  circumstances  and  of  her  rights,  and 
it  must  appear  that  she  intended,  by  her  acts,  to  elect  to  take 
the  provision  which  the  will  gave  her.  These  acts  must  be 
plain  and  unequivocal,  and  be  done  with  a  full  knowledge  of 
her  rights  and  the  condition  of  the  estate.  A  mere  acquies- 
cence, mthout  a  deliberate  and  intelligent  choice,  will  not  be 
an  election. ""^ 

It  is  believed  no  case  can  be  found  where  the  facts  are  held 
sufficient  to  amount  to  an  election  to  waive  the  ^vidow's  rights 
under  the  law,  unless  they  are  of  such  a  marked  character  and 
of  such  long  duration  as  will  clearly  and  distinctly  evince  a 
purpose  to  take  the  provisions  of  the  will,  and  to  operate  as  an 
effectual  equitable  bar  to  dower.  Thus,  where  real  estate  was 
devised  to  a  widow  for  life,  remainder  in  fee  to  her  sons,  and 
she  in  fact  took  under  the  will  and  occupied  the  premises  for 
more  than  sixteen  years,  she  was  estopped  to  deny  her  elec- 
tion.*^ 

soMillikin  vs.  Welliver,  37  0.  S.  21  Thompson    vs.   Hoop,    6   O.    S. 

466,  citing,   1   Lead   Eq.   Cas.,  title  4S0. 

"Election";    Anderson's    Appeal,   36  In  the  absence  of  a  formal  elec- 

Penn.    St.    476,    496;    Bradford   vs..  tion  acts  and  conduct  to  amount  to 

Kent,  43  Penn.  St.  474;  English  vs.  such  election  must  be  so  unequivo- 

English,  2  Green  Ch.  ,'504;   Driscoll  cal  as   clearly   and   distinctly   show 

vs.  Koger,  2  Desaus,  295;  Wake  vs.  a   purpose   to   take   under   the   will 

Wake,    1    Vesey   Jr.    335;    Reynard  and   operate  as   an  equitable  estop- 

ys.  Spence,  4  Beav.  103;   Tooke  vs.  pel.      Industrial    School    vs.    Bates, 

Hardeman,  7  Ga.  20;  Dixon  vs.  Mc-  15  0.  C.  C.    (X.S.)    433;   2  O.  App. 

Cue,  14  Gratt,  540.  59.   14  n.  P.  81;  affirmed    90  O.  S. 

288. 


1108  BY  ACTIONS  §  1227 

Where  an  estate  is  devised  to  a  widow  for  life  with  the  re- 
mainder in  fee  to  testator's  heirs,  and  the  widow,  without  fol- 
lowing tlie  form  prescribed  by  statute  for  making  her  election 
to  take  under  the  will,  set  up  no  claim  for  dower,  but,  with  the 
knowledge  and  acquiescence  of  the  heirs,  in  fact  took  under  the 
will,  and  had  the  use  and  occupancy  of  the  premises  for  more 
than  eleven  years  after  the  probate  of  the  will,  it  was  held  that 
the  parties  were  estopped  to  deny  the  election  of  the  widow  to 
take  under  the  will.""  And  Avhere  the  widow  did  not  make  her 
election,  but  set  up  no  claim  for  dower,  and  actually  in  fact  took 
under  the  will  and  had  possession  of  the  lands  for  sixteen  years, 
it  was  held  that  she  was  barred  of  her  dower,  and  estopped  to 
deny  her  election  to  take  under  the  will."^ 

The  mere  fact  of  qualifying  as  an  executor  could  not  be  held 
to  be  an  election  under  our  statute.  I  have  no  doubt  that  the 
acceptance  of  money  by  the  widow  or  widower,  given  to  them 
under  the  will,  would  act  as  an  election  to  take  under  the  will. 
But  it  has  been  held  if  the  widow  accepts  from  the  executor 
his  promissory  note  for  the  payment  of  the  legacy,  and  such 
note  was  not  paid,  that  she  would  not  be  barred  from  claiming 
under  the  law.^* 

§  1227.     Effect  of  election  to  take. 

The  election  of  a  widow  to  take  under  the  will  does  not  estop 
her  from  contesting  the  will,  denying  the  validity  of  its  devises, 
or  setting  up  her  claims  as  heir.  She  can  do  all  or  either  of 
these  without  having  her  election  set  aside.  Her  right  to  elect 
is  the  creature  of  statutory  law,  and  we  must  look  to  the  statute 
creating  it,  alone,  for  the  estoppel  it  is  to  work.  If  there  is  no 
valid  will,  there  is  no  valid  election,  and  of  course  no  estoppel 
or  bar.^^     However,  if  a  widow  or  widower  elects  to  take  under 


22  Stockton  vs.  Wooley,  20  0.  S.  25  Carder  vs.  Coram'rs  Fayette 
184.  County,   16  0.  S.   367. 

23  Thompson  vs.  Hoop,  6  0.  S.  A  widow's  election  is  evinced 
486;  Nimmons  vs.  Westfall,  33  O.  with  necessary  clearness  where  she 
S.  213;  Spreen  vs.  Sandman,  2  C.  €.  and  her  husband  executed  their  wills 
441;  1  C.  D.  577;  Pape  on  Wills,  to  carrv  out  a  deliberately  planned 
§§720,   723,   pp.   860,   862.  mutual' arrangement  for  the  agreed 

24  Page  on  Wills,  §§724,  864;  disposition  of  their  estates.  Ewalt 
Alexander  vs.  Mendenhall,  32  Bull.  vs.  Ames,  27  0.  C.  A.  465. 

175. 


^  1-227  ET-ECTION    UNDER    WILL  1101 

the  will,  he  or  she  bars  himself  or  herself  from  all  rights  of 
dower  arid  distributive  share  of  the  personal  property ;  and  this 
extends  to  all  real  estate  of  which  the  deceased  consort  may 
have  Ixx-n  seized  as  an  estate  of  inheritance  at  any  time  during 
coverture."®  But  the  widow  or  widower,  by  reason  of  his  or 
her  election,  is  not  barred  of  dower  in  lands  which  are  not  dis- 
posed of  by  the  will  in  the  absence  of  a  provision  that  the  por- 
tion given  to  the  widow  or  widower  is  in  lieu  of  his  or  her 
dower  right  in  such  undevised  lands. ^^ 

It  is  also  held  that  the  release  of  dower  by  election  only  re- 
leases the  dower  interest  to  the  heirs  at  law  or  those  entitled  to 
inherit,  and  can  not  be  used  as  means  of  conveyance  to 
strangers,  ^^ 

The  Courts  have  also  upheld  cases  where  a  testator  confers 
a  benefit  out  of  his  own  estate  upon  another,  whose  estate  he 
also  attempts  to  dispose  of  by  sucli  will,  and  the  acceptance  of 
the  benefit  by  the  devisee  is  a  ratification  of  the  attempted  dis- 
position of  his  o^vn  estate.^® 

An  election  to  take  under  the  will  bars  the  right  to  dower  and 
the  right  to  a  distributive  share  of  the  personal  property,  unless 
the  will  expressly  otherwise  provides.  But  such  election  shall 
not  bar  the  right  to  remain  in  the  mansion  house  or  the  widow 
to  receive  one  year's  allowance  unless  tlie  will  expressly  other- 
\vise  direct.'^" 


2G  Corry  vs.  Lamb,  4.5  0.  S.  203.  vestment  of  such  sum  is  greatly  de- 

27 /n  re  McDonald,  2  N.  P,  232;  preciated,   she  is   not  entitled  after 

4  Dec.  396.  the  estate   is  distributed  to   require 

Til  is  case  is,  for  reasons  therein  other  legatees  to  contribute  to  make 

stated,   in  direct  opposition   to   the  her  loss  good.     Such  income  is  not 

holding    of    the    Circuit    Court    in  an  annuity,  which  is  a  fixed  period- 

Pwihart  vs.  Swihart,  7  C.  C.  338;  4  ical  sum.  '  Krigbaum  vs.  Irvine,  10 

C.  D.  624.  Dec,  226. 

Text    approved.      Bonds    vs.    Mc-  Pee  ITutchings  vs.  Davis,  68  0.  S. 

Gill,  22  Dec.  400.     See  Dymond  vs.  160   (1903). 

Dymond,  22  Dec.  .563,  and  Foster  vs.  It   always   seemed   to   the   author 

Clifford,  S7  0.  S.  204,  as  to  portions  that      this      decision      was      Avrong 

to  which  the  widow  is  entitled.  {since   the   above   was   written    the 

2s  TTcssenmueller  vs.  ]Mulrooney,  4  Supreme    Court    has    overruled    it. 

X.  P.  .50;  6  Dec.  123.       '  Geiger  vs.    Betzer,    SO    0.    S.    160), 

29  White  vs.  Brocaw,  14  O.  S.  330;  and,  of  course,  must  be  strictlv  lira- 

Tde  vs.  Clark,  5  C.  C.  239;  3  C.  D.  ited  to  the  facts  of  that  particular 

120.  case.     And  it  has  been  held  that  if 

See  §  1102.  the  widow  declines  to  take,  she  can 

3f>  Where  the  widow  elects  to  take  not  share  in  the  real  estates  other 

under  the  will  by  which  in  lieu  of  than  have  her  dower  therein.     In  re 

dower   and   of  antenuptial   contract  Bullock,  .50  Bull.  100.    This  decision 

she   is   to   receive  the   income   of   a  is  certainly  right, 

certain  sum,  and  afterwards  the  in-  Where   a   testator   makes   a   pro- 


1105  EFFECT  NOT  TO  TAKE  §  1228 

If  a  widower  (or  widow)  elects  to  take  under  a  will  which 
disposes  of  his  property,  he  will  be  bound,  and  the  will  will  be 
effective  and  control  the  title  to  such  property.^^ 

Taking  under  a  will  does  not  affect  the  right  to  claim  home- 
stead, where  a  petition  is  filed  to  sell  to  pay  debts.^^ 

§  1228.     Effect  of  election  not  to  take. 

If  the  widow  or  widower  shall  fail  to  make  such  election,  the 
widow  or  widower  shall  retain  the  dower,  and  such  share  of  the 
personal  estate  of  the  deceased  consort  as  the  widow  or  widower 
would  be  entitled  to  by  law  in  case  the  deceased  consort  had 
died  intestate  leaving  children,^^  And  the  portion  of  his  wife's 
estate,  to  which  a  surviving  husband  is  entitled  under  the  law, 
should  in  such  case  be  allowed  to  him,  insofar  as  the  same  is 
insufficient  therefor  and  applicable  thereto,  out  of  the  provision 
made  for  him  in  said  will,  and  the  balance,  if  any,  applied  to 
the  compensation  of  disappointed  legatees  and  devisees,  if  there 
are  any.^* 

The  widow  refusing  or  neglecting  to  take  under  her  hus- 
band's will  is  entitled  to  the  same  portion  of  his  personal  estate 
as  if  he  had  died  intestate.^^ 

If  a  widow  refuses  to  take  under  the  Avill  her  rights  are  in 
no  way  affected  by  it.  Hence  where  the  will  provides  for  a  con- 
version of  realty  into  personalty,  and  the  widow  refuses  to  take 
under  the  will,  she  takes  her  dower  in  realty  as  realty,  and  not 
as  personalty.^® 

§  1229.     How  election  set  aside. 

There  seems  to  be  no  provision  of  the  statute  which  authorizes 
an  appeal  or  proceeding  in  error  from  the  action  of  the  Court 

vision    that    the    bequests    in    favor  Where    the    widow    elects    not    to 

of   his  wife   are   in    lieu   of   dower,  take  under  the  will  she  is  entitled 

etc.,  and  she  accepts  the  same,  she  to    only    so    much    of    the    personal 

is  then   a  legatee  or  devisee  under  property    as  would   have   passed   to 

his  will.     And  that  if  there  was  a  her  had  her  husband  died  intestate. 

contrilMition  required  from  the  lega-  Harbeson  vs.  Mellinger,  35  0.  C.  C. 

tecs  she  would  have  to  bear  her  por-  195;    IS  0.  C.  C.    (N.S.)    524;   2  0. 

tion.    Allen  vs.  Tressenrieder,  72  O.  App.  75. 

S.  77.  ^•'  Hartshorne  vs.  Ross.  2  Diz.  444. 

siHibbs    vs.    Ins.    Co.,    40    0.    S.  so  Page  on  Wills,  §737,  p.  876. 

543;  Huston  vs.  Cone,  24  O.  S.  11.  If  a  widow  elects  not  to  take,  she 

32Wanzer  vs.  Smitt,  2  W.  L.  M.  can   take    nothing    in   virtue   of   be- 

426.  quests  made  to  her   in  the  will,  in 

33  §  10572  G.  C,  §  1221.  lieu  of  dower.     Jones  vs.  Lloyd,  33 

34  Wilson  vs.  Hall,  6  C.  C.  570  3  0.  S.  572. 
C.  D.  589;  Hall  vs.  Wilson,  53  O.  S. 

479. 


§  1230  ELECTION  UNDEE  WILL  1106 

in  the  matter  of  a  widow  or  widower's  election  to  take  under 
the  will  of  his  or  her  deceased  consort.  The  fact  is  that  the  act 
t)f  tlie  Court  seems  to  be  more  in  tlie  nature  of  a  ministerial 
act  than  a  judicial  decision.  When  the  judge  has  explained 
to  the  widow  or  widower  tlie  provisions  of  the  will,  etc.,  as 
required  by  the  statute,  nothing  remains  to  be  done  but  to  make 
an  entry  of  such  fact  on  his  journal.  Should  the  judge  refuse 
to  perform  such  an  act  I  have  no  doubt  he  could  be  compelled  to 
do  so  by  a  proceeding  in  maudamus.^^  And  whatever  may  be 
the  decision  elsewhere,  our  Supreme  Court  has  decided  that 
the  Probate  Judge  has  no  right  to  set  aside  such  an  entry  once 
made,  even  though  he  is  satisfied  that  it  was  made  through  a 
mistake  or  fraud,^^ 

If  the  election  was  procured  by  fraud  or  imposition,  or  en- 
tered under  such  a  mistake  as  would  justify  its  rescission,  resort 
may  be  had  to  the  chancery  powers  of  the  Court  of  Common 
Pleas,  which  are  ample  to  meet  the  exigency,  by  inquiring  into 
the  fraud,  imposition  or  mistake,  and  if  true,  directing  a  can- 
cellation of  tlie  entry  of  election ;  and  this  may  be  done  even 
after  the  expiration  of  one  year  from  the  probate  of  the  will, 
if  other  and  new  interests  have  not  intervened.^® 

This  holding  of  our  Supreme  Court  gives  an  additional  rea- 
son for  the  judge  to  exercise  great  care  in  his  instruction  and 
advice  to  widowers  or  widows  in  reference  to  electing  under 
the  will  of  their  deceased  consort,  for  if  once  made  and  entered, 
his  power  ceases ;  and  tlien  if  a  mistake  or  error  was  made,  pro- 
ceedings must  be  had  in  another  court.'"' 

§  1230.    Rights  of  devisee.    How  affected. 

Where  a  widow  elects  to  be  endowed  of  the  lands  of  her  hus- 
band, the  devisees  who  are  prejudiced  by  such   election,   are 

A  w^T  ^\f  '^^^™^^  Carter's  Estate,  election  by  her  be  cancelled  and  set 

■*      •  ^^^'  aside,  where  the  Probate  Judge  did 

38  Davis  vs.  Davis,  11   0.  S.   386.  not  at  the  time  of  said  election  ex- 

T    M   49R        ^™^*'^^^-  Smith,  2  W.  plain   to   her   the   provisions   of  the 

L.  M.  426.  ^yiU  find  her  rights  both  thereunder 

40  Davis  VS.  Coffman,  55  0.  S.  536.  and  by  law  in  the  event  of  her  elec- 

o^^fiol       u^^^    ^*'    ^^e^li"ger,    26  tion    or    refusal    to    elect.      The   re- 

UL   683,  where  a  Court  of  Equity  ported  case  does  not  disclose  in  what 

set  the  order  aside  and  gave  as  one  manner    the    question    was    raised. 

1  •    ^/?^""^    that   the   will   was  See  Ward  vs.  Sack.  27  Dec.  239;  14 

explained  by  the  deputy,  etc.,  instead  N.  P.  401.     If  the   judge  takes  the 

of  the  judge.     73  0.  S.  226.  election,   he  mav   be  bv   mandamus 

I  he  widow  IS  not  estopped  from  compelled  to  enter  the  "same  on  the 

denying  her  election  to  take  under  records.     State  vs.   Sloane,  24'  Dec. 

the  will,  or  asking  that  an  alleged  119 


1107  BIGHTS  OF  DEVISEE,  ETC.  §  1230 

equitably  entitled  to  compensation  out  of  the  rejected  provision 
made  for  her  in  the  will.*^  If  such  disappointed  beneficiaries 
can  not  be  compensated  out  of  the  property  devised,  which  has 
been  rejected  by  the  widow  or  widower,  such  beneficiary  is  then 
entitled  to  be  compensated  out  of  the  residuary  estate.  If 
there  is  no  property  out  of  which  to  compensate  the  disap- 
pointed beneficiaries,  they  are  entitled  to  take  the  property  de- 
vised, subject  to  dower  rights  thus  asserted.*^ 

On  the  other  hand,  the  election  of  the  widow  to  take  under 
the  law  can  not  increase  the  estate  given  to  others  by  the  will. 
Thus  where  a  devise  of  one-half  was  given  to  the  widow  for  life, 
the  residue  to  be  equally  divided  between  the  heirs  and  a  speci- 
fied church,  it  was  held  that  upon  the  widow's  election  to  take 
under  the  law,  the  church  could,  in  no  case  get  more  than  one- 
fourth  of  the  estate  given  by  the  will,** 

If  the  renounced  share  is  insufficient  to  compensate  the  dis- 
appointed beneficiary,  the  other  devisees  or  legatees,  at  least 
such  as  are  in  the  same  class  with  him  so  far  as  priority  of  pay- 
ment is  concerned,  must  contribute  pro  rata  to  make  up  the  de- 
ficiency.** And  in  order  that  other  devisees  and  legatees  may 
be  affected  as  little  as  possible,  the  Court  will  order  that  the 
dower   be   assigned   out  of  the   portion   which  was   rejected. 


*i  Jennings  vs.  Jennings,  21  O.  S.  testacy;    and  that  the  principle  of 

56.  compensation  is  applied  in  the  case 

A  widow  has  a   perfect   right   to  of  an  election  against  the  will  by  a 
insist  that  dower,  which  the  policy  widow,  equally  with  that  of  a  sim- 
of  the  law  awards  to  her,  shall  not  ilar   election   by  any   other   devisee. 
be  taken  from  her  by  the  will  of  a  Timberlake  vs.  Parish^  5  Dana,  345; 
deceased  husband.     But  she  has  no  McCallister  vs.   Brand,   11   B.  Mon- 
equitable  right,  as  widow,  to  insist  roe,    370;    Kainnaird    vs.    Williams, 
that  the  benefit  intended  by  the  tes-  8  Leigh,  300-409;  Dixon  vs.  McCue, 
tator,    as    a    compensation    for    her  14  Grattan,  540;  Id.  81. 
dower,    shall    be    treated,    upon   her  *-  Page  on  Wills,   §  737,  p.  875. 
rejection  of   it,   as   a   lapsed   legacj'  *3  Lilly  vs.  INIenke,   12G  Mo.   190; 
or  devise,  and  go  to  the  heir  as  in-  Maskell  vs.  Preston,  2  W.  L.  G.  65. 
testate    property.      And    her   rights,  **  Woerner   on   Admin.   273. 
as   widow,   are   not   affected   by   the  In  the  case  of  Hutchings  vs.  Da- 
facts   that   she  may   be,    as   in   this  vis,   68    0.    S.    160,   the   doctrine   of 
case,  herself  the  heir.     The  author-  conversion   was    carried   to   a   great 
ities  cited  by  counsel  for  defendants  extent.      The    case    was    afterwards 
clearly  show  that  the  rule  in  cases  overruled.     Geiger  vs.  Betzer,  80  0. 
of  testamentary  election,  is  compen-  S.  65. 
sation    or    forfeiture,    and    not    in- 


§  1231  ELECTION   UNDER  WILL  1108 

And  if  the  remainder  is  not  specifically  disposed  of,  it  will  be 
applied  to  the  compensation  of  disappointed  legatees  or  devi- 
sees, and  if  not  required  for  that  purpose  it  will  descend  as 
intestate  property/" 

§  1231.  If  person  unable  to  appear  or  non-resident  of 
county,  how  election  taken.  "If  the  widow  or  widower  of 
the  testator  be  unable  to  appear  in  court  by  reason  of  ill  health, 
or  is  not  a  resident  of  the  county  in  which  such  election  is  re- 
quired to  be  made,  en  an  application  in  behalf  of  such  person, 
the  probate  court  shall  issue  a  commission,  with  a  copy  of  the 
will  annexed,  directed  to  any  suitable  person,  to  take  the  election 
of  such  widow  or  widower,  to  accept  the  provisions  of  such  will 
in  lieu  of  the  provisions  made  by  law.  In  such  commission  the 
court  shall  direct  such  person  to  explain  the  rights  of  such 
widow  or  widower  under  the  will,  and  by  law."  [R.  S. 
§5965.]" 

§  1232.     Application  for  commission,  etc. 

The  Court  might  issue  a  commission  to  take  the  testimony  of  a 
widow  or  widower,  who  is  a  non-resident  or  in  ill  health,  without 
any  formal  application  for  that  purpose.  Yet  it  is  not  pre- 
sumed to  be  within  the  knowledge  of  the  Court  whether  a  person 
entitled  to  an  election  is  a  non-resident  or  in  ill  health ;  and 
therefore  it  would  be  proper  to  bring  the  matter  to  the  attention 
of  the  Court  by  a  formal  application  stating  the  facts.  This 
application  may  be  in  the  following  form : 

Probate    Court County,    Ohio. 

In  the  Matter  of  1  No 

The  Will  of  [  Election  cf  Widow 

,   d'^ceased.  J  Application   for   Commission. 


To  the  Probate  Court  of  said  County: 

The  undersigned  respectfully  represents  that ,  late  of 

said  county,  deceased,  died  testate  on  or  about  the day  of 

A.  D.  190. .,  leaving h.  .  .  .widow for 

■whom  provision  was  made  in  the  will  of said  deceased  consort.     That 

said  will  was  duly  admitted  to  probate  and  record  by  said  Court  on  the 

day  of 100.  .. 

That   said   widow ....  is   "  unable   to   appear   ia   Court   by   reason   of  ill 

*--5  Wilson  vs.  Hill,  6  C.  C.  570;  3  46  §  10573  G.  C. 

D.  C.  589.     AiT.  34  Bull.  298. 


1109  COMMISSION    TO   TAKE  §  1233 

health,"  "  not  a  resident  of  this  county  "  and  that.  .  .he  resides  in 

county,    

The  undersigned  therefore  makes  application  in  behalf  of  said  widow.  .  .  ; 
that  said  Probate  Court  issue  a  commission,  with  a  copy  of  said  will 
annexed,  directed  to  some  suitable  person,  to  take  the  election  of  said 
widow.  .  .  .,  to  accept  the  provisions  of  said  will  in  lieu  of  the  provisions 
made  by  law. 

Dated   this day  of ,    190 .. . 

Respectfully,   

The  State  of  Ohio, county,  ss. 

,   being  duly   sworn   says  that  the  statements  in 

the  foregoing  application  are  true  as.  .  .he  verily  believes. 


Sworn  to  before  me  and  signed   in  my  presence  this day  of 

,   190... 

Probate  Judge. 

By ,  Deputy  Clerk. 

JOURNAL  ENTRY. 

ORDER    FOR   COMMISSION    TO    TAKE   ELECTION    OF    WIDOW .... 

Probate  Court, County,  Ohio. 

In  the  Matter  of  )  190 .  . 

the  Will  of  C  Election  of  Widow.... 
deceased.     )          Order  for  Commission. 


This  day appeared  in  open  Court  and  made  applica- 
tion for  a  commission  to  issue  to  some  suitable  person  to  take  ihe  election 
of ,  widow ....  of ,  deceased,  to  ac- 
cept the  provisions  of  the  will  of  said  decedent  in  lieu  of  the  provisions  made 
by  law.  And  it  appearing  to  the  Court  that  said  widow.... is  "unable 
to  appear  in  Court  by  reason  of  ill  health,"  "  not  a  resident  of  this  county," 
and  resides  in county,    

It  is  therefore  ordered  that;  such  commission  issue,  with  a  copy  of  said 

will   annexed,   to ,   to   be  returned   with   all   convenient 

speed,  and  this  cause  is  continued. 

,   Probate  Judge. 

§  1233.     Commission  to  take  such  election. 

The  usual  practice  is  to  issue  the  commission  to  a  justice  of 

the   peace   or  notary   public,    or  some   one   of  that   character. 

But  this  is  not  necessary.     All  that  the  statute  requires  is  that 

the  judge  should  direct  the  commission  to  any  suitable  person. 

A  practice  to  be  commended  is  that  it  be  sent  to  a  person  of 

both  ability  and  standing  in  the  community,  and  one  who  has 

the  confidence  of  the  widow  or  widower.      The  form  of  such 

commission  may  be  as  follows: 

COMMISSION  TO  TAKE  ELECTION  OF  WIDOW 

Probate  Court, County,  Ohio. 

In  the  Matter  of  )  No 

the  Will  of  [  Election  of  Widow .... 

,    deceased.    )  Commission. 

To ,  Greeting  : 

Know  ye,  that  having  confidence  in  your  prudence  and  fidelity,  you  have 
been  appointed  by  the  Probate  Court  of  said  county,  and  by  these  present?) 
you  are  commissioned  with   full  power  and  authority  to  take  the  election 


§  1234  ELECTION  UNDER  WILL  1110 

of ,    widow ....  of ,    deceased,    under 

the  last  will  and  testament  of  h .  .  . .  late  consort.     A  copy  of  said  will  is 
hereto  attached,  marked  "  A." 

You  are,  therefore,  directed  to  proceed  forthwith  to  the  place  of  residence 
of  said and  then  and  there  read  to the  will  here- 
to annexed,  and  explain  to  h ....  h ...  .  rights  under  it,  and  by  law  in  the 
event  of  a  refusal  to  take  under  the  will.  After  which  you  will  take  h. .  . . 
election  as  to  whether  or  not.. he  will  accept  the  provisions  of  such  will 
in  lieu  of  the  provisions  made  by  law. 

You  will  thereupon  reduce  your  report  of  such  election  to  writing,  and 
return  the  same  (together  with  this  commission  and  the  copy  of  the  will 
hereto  annexed)  closed  up,  under  seal,  into  our  Probate  Court,  with  all  con- 
venient speed. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal 

of  said  Probate  Court  at ,  Ohio,  this day  of 

,   190.... 

,   Probate  Judge. 

COMMISSIONER'S  REPORT. 

Probate  Court, County,  Ohio. 

In  the  Matter  of  )  No 

the  Will  of  i 

deceased.    )  Election  of  Widow.... 

I, ,  duly  appointed  and  commissioned  by  the  judge  of 

the  Probate  Court  of  said  county  to  take  the  election  of 

under  the  will  of late  consort, ,   deceased    ( which 

commission  and  copy  of  the  will  are  hereto  annexed) ,  do  hereby  certify  that, 

in  pursuance  of  said  commission,  I  did,  on  the day  of 

A.  D.  190. .,  go  to  the  residence  of ,  widow. .  .of 

,  deceased,  and  then  and  there  read  to  h .  .  .  .  the  will 

hereto  annexed  and  explained  to  h .  .  .  .  the  provisions  of  the  same,  h .  .  . . 
rights  under  it,  and  by  law  in  the  event  of  a  refusal  to  take  under  the  will. 

Whereupon ..  he  made  h ....  election .,..to  accept  the  provisions  of 

such  will  in  lieu  of  the  provisions  made  by  law. 

In  testimony   whereof  I   have  hereunto   set  my   hand   this day   of 

A.  D.   190... 

Commissioner. 

Probate  Court, County,  Ohio. 

In  the  Matter  of  )  j^q 
the  Will  of                           ( 
,   deceased.    )            Election  of  Widow.  ... 

,  commissioner  appointed  by  the  Probate  Court  of 

said  county  to  take  my  election  as  widow.  .  .  .under  the  last  will  and  testa- 
ment  of ,    deceased,    having   first  explained   to   me   my 

rights  under  the  will,  and  by  law,  I  hereby  elect to  take  the  provision 

made  for  me  in  said  will  in  lieu  of  being  endowed  of  the  lands   of  my 
deceased  consort  and  taking  the  distributive  share  of  h .  .  .  .  personal  estate. 

Dated  this day  of A.  D.   190 .. . 


§  1234.     Form  of  entry,  etc. 

When  such  commissioner  has  made  his  report,  the  same 
should  be  made  a  matter  of  record,  and  the  Court  should  make 
a  journal  entry,  which  may  be  in  the  following  form : 

(Title.) 

This  day  there  was  filed  in  this  Court  a  report  of  A.  B.,  who  has  been 
heretofore  appointed  as  a  commissioner  to  take  the  election  of  C.  D.  under 


1111  IMBECILE,  ETC.  §  1235 

the  will  of  G.  H.  And  it  appearing  to  the  Court  that  said  commissioner 
has  properly  discharged  his  duty  under  the  law  and  that  all  the  proceedings 
therein  are  regular,  and  that  having  explained  to  the  said  C.  D.  her  rights 
under  the  provisions  of  the  will  of  the  said  E.  F.  and  her  rights  under  the 
law,  and  she  having  declared  herself  as  satisfied  with  the  provisions  of 
said  will,  and  elected  to  take  under  it,  and  asked  that  her  election  so  to  take 
might  be  entered  upon  the.  journal  of  this  Court,  which  is  now  and  here 
accordingly  done. 

§  1235.    How  election  made  for  insane  or  imbecile  widow, 

etc.  "When,  because  of  unsound  mind,  the  widow  or  widower 
of  a  testator  is  unable  to  make  an  election,  as  soon  as  the  facts 
come  to  the  knowledge  of  the  probate  court,  at  any  time  within 
one  year  after  the  testator's  death,  it  shall  appoint  some  suit- 
able person  to  ascertain  the  value  of  the  provision  made  for  such 
widow  or  widower  in  lieu  of  the  provisions  made  by  law,  and 
the  value  of  the  ria-hts  by  law  in  the  estate  of  the  deceased 
consort."     [E.  S.  §  5966.]^^ 

§  1235a.  Entry.  "If,  on  the  return  of  the  report  of  the 
person  appointed  to  make  such  investigation,  the  court  is  satis- 
fied that  the  provision  made  by  the  testator  for  the  widow  or 
widower,  in  the  will,  is  more  valuable  and  better  than  the  pro- 
vision by  law,  it  shall  record  upon  its  minute  book  an  entry 
that  such  insane  or  imbecile  widow  or  widower,  by  virtue  of 
the  proceeding  herein  provided,  elects  to  take  under  the  will 
which  election,  when  so  entered,  shall  have  the  same  force  and 
effect  as  an  election  made  by  one  not  under  such  disability." 
[R.  S.  §5966.]*^* 

§  1236.     Application,  etc. 

As  was  said  in  a  previous  section,  the  Court  will  not  be  pre- 
sumed to  know  that  a  widow  is  insane  or  unable  for  that  reason 
to  make  an  election,  therefore  it  is  a  practice  desired,  and  in 
fact  should  be  required,  that  some  person  who  has  knowledge 
of  the  facts  appear  in  Court  and  make  a  formal  application  that 
some  suitable  person  be  appointed  to  make  an  election  for  such 
imbecile  or  insane  widow  or  widower.  When  such  application 
is  filed,  the  Court  should  enter  a  finding  and  order  some  suit- 
able person  to  ascertain  the  value  of  the  provision  made  by  the 
testator  for  such  widow  or  widower  in  lieu  of  the  provisions 
made  by  law,  etc.  The  form  of  application  used  where  a  com- 
missioner is  appointed  to  take  the  testimony  of  a  widow  in  ill 

47  §  10574  G.  C.  90   0.   S.   297.      Can   only   elect   to 

47*  I  10575  G.  C.  take    when    will     is    better    provi- 

Sce  Industrial    School  vs.   Bates,      sion  than  the  law  gives. 


§  1237  ELECTION  UNDER  WILL  1112 

healtJi,  and  the  entry  ordering  the  same  can  easily  be  changed 
to  suit  tlie  ])rovisions  of  the  above  section. 

§  1237.     Form  of  commission  as  to  insane  or  imbecile  widow's 
election. 

In  the  Probate  Court  of County,  Ohio. 

,  Deceased. 

To 

It  having  come  to  the  knowledge  of  the  Probate  Court  of  said  county, 

that    by    reason    of    insanity  —  imbecility    of    mind  — 

widow  of late  of  said county,  de- 
ceased, is  unable  to  make  her  election  as  to  the  provision  made  for  her  by 
the  will  of  her  said  husband,  heretofore  admitted  to  probate  and  filed  in 
said  Court.  This  is  therefore  to  authorize  and  direct  you  "  to  ascertain 
the  value  of  the  provision  made  by  the  testator  for  her  in  his  will,  in  lieu 
of  the  provisions  made  by  law,  and  the  value  of  her  rights  by  law  in  the 
estate  of  her  husband."  You  will  make  due  return  of  this  order,  with  your 
findings  endorsed  thereon,  to  this  Court  without  delay. 

Given  under  mv  hand  and  the  seal  of  said  Court  this day  of 

A.  £).   190... 

,   Probate  Judge. 

RKfURN  OF  FINDINGS. 

Pursuant  to  the  command  of  the  foregoing  order  I  have  made  diligent 
investigation  and  find  —  1st,  as  to  the  value  of  the  provision  made  by  the 

testator  for ,  his  widow,  in  lieu  of  the  provisions  made 

by  law.  That 

2d,  as  to  the  value  of  her  rights  by  law  in  the  estate  of  her  husband,  That 


§  1238.     Duty  of  commissioner. 

Similar  to  the  section  providing  for  a  commissioner  to  take 
the  election  of  a  widow  in  ill  health,  sec.  10574  G.  C.  (§  1235), "« 
requires  that  the  person  appointed  to  ascertain  the  value,  etc., 
where  the  widow  is  insane,  the  appointment  should  be  of  a 
suitable  person.  The  law  contemplates  and  requires  of  this 
person  that  he  shall  find  out  the  value  of  the  provisions  made 
in  the  will  for  the  widow,  and  then  he  should  make  a  calcula- 
tion of  what  the  dower  interest  of  the  widow  or  widower  in 
the  real  estate  of  the  testator  is  worth,  as  v.-ell  as  the  probable 
distributire  share  of  the  personal  property.  These  matters  can 
very  often  be  ascertained  from  the  will  and  the  inventory  and 
sale  bills  of  the  executor.  Annuity  tables  may  be  used  for 
ascertaining  the  probable  value  of  the  dower  interest." 

"«  §  1235.  49  See  chapter  next  index. 


1113  DUTY  OF  COURT  §  1239 

The  person  appointed  to  ascertain  such  values  should  consult 
the  Court,  and  if  the  Court  deemed  it  advisable,  appraisers 
might  be  appointed,  but  such  would  rarely  be  required. 

§  1239.     Duty  of  the  Court. 

The  commissioner  having  ascertained  the  value  of  the  provi- 
sions made  by  the  testator  for  such  widow  or  widower,  and  also 
having  ascertained  the  value  of  the  rights  of  such  widow  or 
widower  by  law  in  the  estate  of  the  deceased  consort,  then  the 
duty  devolves  upon  the  Court  to  make  an  election  for  such  in- 
sane or  imbecile  widow  or  widower;  and  if  the  Court  is  satis- 
fied that  the  provisions  made  by  the  testator  for  the  widow  or 
widower  in  tlie  will  are  more  valuable  and  better  than  tlie  pro- 
vision by  law,  then  he  should  make  an  entry  that  such  insane 
or  imbecile  widow  or  widower,  by  virtue  of  such  proceeding, 
elects  to  take  under  the  will  of  such  deceased  consort ;  and  then 
such  election  shall  have  the  same  force  and  effect  as  if  made 
by  a  person  of  sound  mind  and  in  open  Court.  While  the  stat- 
ute does  not  so  provide,  yet  it  would  be  proper  if  the  Court 
found  that  the  provisions  of  tlie  law  were  more  valuable  and 
better  for  the  widow  than  those  of  the  will,  to  make  finding  of 
that  fact  and  likewise  make  an  election  not  to_  take  under  the 
will.      The  entry  might  be  in  the  following  form: 

(Title.) 

This  day  came  A.  B.,  a  suitable  person,  who  was  heretofore  appointed  by 
this  Court  to  ascertain  the  value  of  the  provisions  made  in  the  will  of  G.  H. 
for  his  widow,  who  is  now  imbecile  or  insane,  and  the  value  of  the  lights  of 
such  insane  or  imbecile  widow  in  the  estate  of  her  deceased  consort,  and  filed 
his  report  herein;  and  the  Court  finding  from  said  report  and  being  satisfied 
from  said  report  that  the  provision  made  by  said  testator  for  his  widow  in 
his  will  is  more  valuable,  and  better  than  the  provision  by  law,  it  is  now 
ordered  that  the  said  C.  D.,  widow  of  the  said  G.  H.,  elect  to  take  under 
the  will  of  the  said  G.  H.,  her  deceased  consort.  And  it  is  ordered  that  the 
said  election  be  entered  upon  the  journal  in  this  Court  and  be  made  a 
part  of  the  proceedings  of  this  case. 

See   Industrial   School  vs.   Bates,  00  0.  S.  297. 


§  1240  GIFTS    CAUSA    MOKTIS  1114 


CHAPTER  LXYI. 

GIFTS  CAUSA  MORTIS. 

8  1240  Definition,  etc.  §  1245  Delivery  of   subject  of   gift. 

§  1241  What  kind  of  property  may  §  1246  Gift  should  be  absolute. 

be  given.  §  1247  Revocation  of  gift. 

§  1242  Requisites  of  gift.  §  1248  Evidence  of  gift. 

§  1243  In   view   of   death.  §  1249  Rights  of  creditors  and  fam- 
§  1244  Death  of  donor.  ily. 

§  1240.     Definition,  etc. 

Following  the  right  to  dispose  of  one's  property  in  whatever- 
manner  he  may  choose  is  the  disposition  of  his  property  by  way 
of  gift.  So  long  as  suificient  property  is  retained  to  pay  all  his 
legal  obligations/  and  the  donor  acts  free  from  undue  influence 
and  with  sufficient  capacity  to  understand  the  nature  of  his 
acts,  a  gift  may  be  as  an  effectual  a  mode  of  transferring  prop- 
erty as  any  other.  The  one  distinguishing  characteristic  of 
gifts  in  order  to  make  them  effectual  is  that  the  subject  of  the 
gift  must  have  been  delivered.  The  subject  of  gifts  is  usually 
treated  under  two  divisions,  i.  e.,  inter  vivos  and  causa  mortis. 
There  may  be  occasions  when,  an  executor  or  administrator  will 
be  required  to  ascertain  whether  a  gift  is  legal  notwithstanding 
the  class  to  which  it  may  belong.  But  his  attention  will  more 
frequently  be  called  to  that  class  of  gifts  coming  under  the  des- 
ignation of  gifts  causa  mortis.  Such  a  gift  has  been  defined  as 
"  a  gift  of  personal  proi^erty  made  by  a  person  in  peril  of  death 
and  in  expectation  of  an  early  demise,  consimimated  by  a  man- 
ual delivery  of  the  subject  of  the  gift  or  of  the  means  of  ol> 
taining  possession  of  the  same  by  the  donor,  or  by  another  per- 
son in  his  presence  and  by  his  direction,  to  the  donee,  or  to  a 
third  person  for  the  donee,  and  acceptance  on  the  part  of  the 

-  n^^^-9n^'^'  ^^°°^^'  ^  '^-  P-  220;  fore  delivering  them,  and  with  the 

^  v\n^'  •  orders  in  her  possession,  the  gift  was 

Where  one   intending  to  make  a  incomplete,    and    the    administrator 

gift    of    money    purchased    United  was    entitled    to    tlie    monev.      Mc- 

Mates  money  orders  in  the  name  of  Kelvey   vs.   McKelvev,   33   O     CO 

tlio  prospective  donee,  but  died  be-  117 


1115  WHAT  MAY  BE  GIVEN  §  1241 

donee,  followed  by  the  death,  of  the  donor  before  the  donee,  and 
defeasible  by  reclamation,  the  contingency  of  survivorship,  or 
delivery  from  the  peril."  ^ 

It  will  be  observed  that  such  a  gift  in  some  respects  resem- 
bles a  testamentary  disposition,  the  only  essential  difference 
between  such  a  gift  and  a  nuncupative  will  is  that  of  delivery 
of  the  property  disposed  of,  and  it  differs  chiefly  from  a  gift 
inter  vivos  in  that  it  is  to  a  certain  extent  incomplete,  and  al- 
ways revocable  should  tlie  donor  survive  his  present  illness. 
The  law  having  provided  a  method  of  disposing  of  property  to 
take  effect  after  one's  death  by  way  of  testamentary  disposi- 
tion, gifts  causa  mortis  are  not  favored.' 

§  1241.     What  kind  of  property  may  be  given. 

It  is  laid  down  as  a  general  proposition  of  law  that  only  per- 
sonal property  capable  of  delivery  is  subject  of  a  gift  causa 
mortis^  and  that  it  may  embrace  all  the  testator's  estate,  how- 
ever large  the  amount  and  value.*  The  reason  for  confining 
such  gifts  to  personal  property  is  that  real  estate  is  incapable 
of  manual  delivery.^ 

There  also  seems  to  be  some  doubt  upon  the  proposition 
whether  or  not  a  person  may  give  all  of  his  property.*  It  is 
well  settled,  however,  that  a  delivery  of  the  donor's  own  promis- 
sory note,  without  any  other  contract,  by  which  he  undertakes 
to  pay  money  either  during  his  lifetime  or  out  of  his  estate 
after  his  decease,  will  not  constitute  a  valid  gift  causa  mortis.'' 
Of  course,  if  the  note  was  founded  on  a  consideration,  a  differ- 
ent rule  might  apply.*     Checks  or  drafts  may  be  g-iven,  but  if 

2  Woerner  on  Admin.  117.  Y.)    165,  it  was  held,  that  real  es- 

3  Gano  vs.   Fisk,   4.3  O.   S.   402.  tate  might  pass  by  such  a  gift. 
See  Ambler  vs.  Admr.  Boon,  3  0.  6  8    Am.    &    Eng.    Ency.    of   Law, 

App.  87;    19  O.   C.   C.    (N.S.)    281;  subject,  Gifts. 

24  O.  C.  C.  512,  where  a  note  was  The  only  limit  in  Ohio  would  be 

given  and  not  to  be  collected  except  that  sufficient  remains  to  pay  debts. 
on  demand  of  payee,  and   put  in  a  "^  Starr  vs.  Starr,  9  0.  S.  75. 

bond  box  and  the  key  delivered,  etc.  8  Ilamor  vs.  Moore,  8  0.  S.  239. 

It  was   held   it  was   neither   a  gift  The   gift   of   a  maker's   own  note 

inter  inroa  nor  causa  mortis  and  it  is   the   delivery   of   a   promise   only 

was  an  asset  of  the  estate.  and  not  of  the  thing  promised,  and 

4  Redf.  Sur.  Prac.  471,  citing  the  gift  therefore  fails.  Kent's 
Meach  vs.  Meach,  24  Vt.  591;  White  Comm.  438. 

vs.  Wagner,  32  Barb.  250.  The  defendants'  intestate  executed 

vs.  Wager,  32  Barb.  250.  the  following  paper: 

In  Curtis  vs.  Barrus,  38  Ilun  (N. 


§  1242  GIFTS    CAUSA    MORTIS  1116 

thev  are  unpaid  at  the  death  of  the  donor,  the  gift  fails.®  Cer- 
tificates of  deposit  payable  to  the  bearer/"  or  when  made  pay- 
able to  order  and  indorsed  by  the  payee,^^  and  notes  secured 
by  mortgage  on  real  estate,  may  pass  by  gifts  causa  mortis.^^ 

§  1242.     Reguisites  of  gift. 

It  "will  be  well  to  remember  that  in  order  to  constitute  a 
valid  gift  causa  mortis  it  must  appear,  first,  that  the  gift  was 
made  in  view  of  the  donor's  death  from  his  present  illness,  or 
from  external  and  apprehended  peril;  second,  the  donor  must 
die  of  that  ailment  or  peril;  third,  there  must  be  a  delivery 
of  the  subject  of  the  gift;  fourth,  the  gift  must  be  absolute.^^ 

These  essentials  will  be  treated  in  their  order. 

§  1243.     In  view  of  death. 

It  is  not  necessary,  in  order  to  constitute  a  valid  gift  causa 
mortis,  that  the  person  must  be  in  extremis,  or  that  he  should 
die  from  the  very  disease  in  apprehending  of  which  the  gift 
was  made;  it  is  only  necessary  that  he  shall  not  recover  from 
the  disease  that  he  then  apprehended  would  cause  death.^*     It 

"For    value    received,    I    promise  Prior  vs.  Reynolds,  8  W.  L.  J.  325. 

to  pay  to  Mrs.  Hamor,  wife  of  John  lo  Brooks  vs.  Brool<s,  12  S.  C.  422. 

Hamor,  the  sum  of  $300,  as  a  small  n  Basket  vs.   Hassell,    107   U.   S. 

recompense   for  tJie  kindness  shown  602. 

to  me  by  her.     The  executors  of  my  12 'Woerner  on  Admin.  119. 

last  will   and   testament  are  hereby  See    subsequent    section    on    deliv- 

directed   to  pay   the   above  to   Mrs.  ery  and  evidence  of  gift.     §§  1245, 

H.,   or   her   sons,   Moses   and   John,  1248. 

after  my  decease.  Promissory    notes    for    a    specific 

"John  R.  Moore."  sum  of  money  payable  one  day  after 

"Attest:        Philip  Giggs,   February  date  but   understood  to  be   payable 

28,  1850."  at    death    of    giver,    executed    and 

And  delivered  the  same  to  the  given  to  his  housekeeper  to  re- 
subscribing  witness,  with  injunc-  munerate  her  for  a  deficiency  in  her 
tions  to  deliver  it  to  Mrs.  Hamor  compensation,  are  supported  by  good 
after  his  death;  which  was  done.  consideration  and  are  valid  against 
It  was  held  that  this  was  not  a  gift  his  estate.  In  re  Jenny  Est.,  22 
inter  vivos,  nor  a  gift  causa  mortis,  Dec.  348. 

nor  was  it  good  as  a  testamentary  13  Redf.  Sur.  Prac.  472;   Woerner 

disposition.     Hamor  vs.  Moore,  8  O.  on  Admin    118. 

S.  230.                                  ,  14  Ridden    vs.    Thrall,    125   N.    Y. 

See    §  1014,   Distinguishing   char-  572. 

acters  of  wills.  A  delivery  of  bonds  by  the  donor 

^  9  Simmons  vs.  Savings  Soc,  31  0.  in  anticipation  of  death"  within  one 

S.  457.  year,  possession  taken  by  the  donee, 

A  note  executed  by  the  donor,  and  death  by  the  owner  without  recover- 

given  to  the  donee,  in  consideration  ing  from   illness   and  without  revo- 

of  love  and  afTcction,  to  take  effect  cation   thereof,   constitutes   a   valid 

at  the  death  of  the  donor,  can  not  be  gift.     Galbraith  vs.  Sutton,  ^0  O.  C. 

enforced  against  the  donor's  estate.  C.  653. 


1117  DELIVERY  OF  §  1244 

is  said  that  if  a  gift  is  made  with  the  view  that  it  take  effect 
upon  the  donor's  death,  but  while  in  ordinary  health,  and  not 
in  immediate  apprehension  of  death,  it  may  be  a  valid  gift 
inter  vivos,  but  it  cannot  be  causa  mortis.^^ 

Where  it  appears  that  the  gift  was  made  during  the  testator's 
illness,  and  only  a  few  weeks  before  his  death,  the  law  pre- 
sumes that  the  gift  was  made  in  contemplation  of  death. ^® 

§  1244.     Death  of  donor. 

It  is  essential  to  the  validity  of  the  gift  that  the  donor  must 
have  died,  for  as  the  gift  is  conditioned  to  take  effect  upon  the 
donor's  death  by  the  then  existing  disfease  or  impending  peril, 
it  is  obvious  that  it  can  not  take  effect  until  his  death,  and  that 
until  such  death  occurs,  it  is  revocable  at  his  pleasure.  If  it  is 
not  revocable,  the  gift  becomes  a  gift  inter  vivos  and  not  causa 
mortis. 

§  1245.    Delivery  of  subject  of  gift. 

The  one  essential  of  gifts  causa  mortis  which  seems  to  have 
given  the  most  litigation  is  that  of  delivery  of  the  subject  of  the 
gift.^"^  In  order  to  give  effect  to  the  gift,  the  donor  must  at  the 
time  of  the  delivery  part  with  the  possession  of  the  subject  of 
the  gift.  It  must  not  remain  incomplete  or  rest  in  mere  inten- 
tion; and  this  is  so  whether  the  gift  is  by  delivery  only,  or  by 
the  creation  of  a  trust  in  a  third  person  or  in  the  donor." 

15  Woerner  on  Admin.   120.  bonds  returned  in  event  she  needed 

iG  Merchant      vs.      Merchant,      2  them,   is  valid,   although  her   death 

Bradf.  432.  did  not  occur   for   six  months,   she 

Old  age  and  feeble  health  is  not  dying  of  the  same  malady.     Sutton 

sufficient  foundation  of  a  gift  causa  vs.  Galbraith,  IS  Dec.  864. 

mortis,  the  apprehension  must  be  of  G.   was   a  man   of   advanced   age, 

immediate    death    and    not    of    the  having  a  wife,   and   daughter  by  a 

death  as  a  possible  result.     Eobson  first  wife,  and  by  the  present  wife 

V3.  Jones,  3  Del.  Ch.  51;   2  Kent's  a  son,  with  whom  he  boarded;    his 

Com.  444.'  property  consisted  partly  of  a  farm 

ica  The  gift  must  be  absolute.  The  and    stock    thereon,    but    mostly    of 

mere   delivering  of   a   certificate   of  promissory        notes        of       various 

deposit  will  not  be  sufficient;  unless  amounts;  before  his  last  sickness  he 

the  owner  surrenders  the  control  of  had    expressed    a    desire    "that    his 

it,    otherwise    the    holder    will    be  children  should  have  his  notes  and 

deemed    the    agent    of    the    owner.  his  son   should  have  his  farm;"  on 

Merchant  vs.   Building  &  Loan,   34  the    morning    on    the    day    of    his 

O.  C.  C.  34S.  death,    and    in    the    presence    of    a 

17  Martin  vs.  Funk,  75  N.  Y.  134,  daughter's    husband,    herself   and    a 

cited    in    Gano   vs.    Fisk,    43    0.    S.  sister,   G.    called   the  daughter  and 

472.  siiid   to   her:      "My   notes   are  in   a 

WTiere   bonds   were   given    by    an  liille   box   on    the   bureau   there;    I 

invalid  sister,  in  expectation  of  her  wnnt  you   to  take  them   and  divide 

death,  but  conditioned  that  tbe  in-  them  equally  among  you  children." 
terest  should  be  paid  her,  and  the 


§  1245  GIFTS    CAUSA    MORTIS  1118 

Where  a  person  enclosed  a  note  in  an  envelope  and  directed 
the  same  to  be  given  after  his  death,  it  was  held  not  to  be  a  suffi- 
cient delivery/^ 

Where  a  husband  and  -wife  brought  an  action  in  their  joint 
names  to  recover  the  amount  due  on  a  note,  the  wife  told  the 
husband  that  he  should  collect  the  note,  that  she  ''  wished  the 
business  settled  up,  and  wanted  him  to  have  the  money,"  it 
was  held  that  this  did  not  constitute  a  gift  causa  mortis.^^ 

Where  a  father,  having  bonds,  endorsed  upon  each  of  them 
these  words,  "  This  bond  I  give  and  set  over  to  my  daughter 
M.  W.,  this  20th  December,  1878,"  which  daughter  was  an 
infant,  and  the  mother  kept  the  bonds  until  the  death,  it  was 
held  sufficient  deliver;}'."** 

Where  among  a  testator's  writing  there  was  found  a  mort- 
gage with  the  following  endorsement,  ''  This  mortgage  is  trans- 
ferred to  my  wife  in  case  of  my  death,"  it  was  held  that  tliere 
was  no  delivery.*^ 

A  delivery  to  the  donee  of  a  deposit  book  issued  by  a  savings 
bank,  accompanied  with  appropriate  words,  with  the  intention 
to  give  the  donee  the  deposits  represented  by  the  book,  is  a  suffi- 
cient delivery.  ^^ 

The  best  deliveiy  must  be  made  that  the  nature  of  the  article 
will  permit,  where  the  subject  of  the  gift  is  not  such  that  it  can 
be  actually  delivered,  there  may  be  a  constructive  delivery. 
There  is  some  question  whether  there  can  be  a  symbolical  de- 
He  told  her  to  get  the  key  to  the  and  their  proceeds  are  assets  of  the 
box,  and  she  got  the  key  and.  tried  estate,  and  the  widow  is  entitled  to 
it  in  the  box,  and  gave  the  key  to  her  proper  part  thereof.  Id.  462. 
her  husband  for  safekeeping.     After  is  Phipps  vs.  Hope,   16  0.  S.  586. 

the    death    of    intestate,    she    took  i9  Carter  vs.  Buckingham,  1  Han- 

the  box  and  did  not  uivide  the  notes,       dy,  395. 

but   returned  them   to   the   adminis-  See   In   re   Est.    of    Scheiberg,    51 

trator,  and  they  were  appraised  and       Bull.  252. 

held  as  part  of  the  estate.     In  an  20  Rote  vs.  Warner,  17  C.  C.  350; 

action    by    the    daughters,    claiming       9    C.   D.   540. 

for    themselves    and    the    son,    the  21  Hadlow    vs.    Beavis,    Supr.    Ct. 

notes  and  their  proceeds,  as  against       unreported,  42  Bull.  250. 
the    administrator    and    the    wadow.  22  PoUey  vs.  Hicks,  58  0.  S.  218; 

It  was  held,  these  facts  do  not  show  Ridden  vs.  Thrall,  125  X.  Y.  572; 
such  a  delivery  as  constitutes  a  Pierce  vs.  Savings  Bank,  129  Mass. 
valid  gift  causa  mortis.    These  notes       425. 


1119  ABSOLUTE REVOCATION  §1246 

livery."^     There  is  no  doubt  of  the  fact,  however,  that  delivery 
may  be  made  to  a  third  person. 

§  1246.     Gift  should  be  absolute. 

In  order  to  constitute  a  valid  gift,  the  o^vner  must  renounce 
all  interest  in  and  title  to  the  gift.  Our  Supreme  Court  has 
said  the  donor  must  not  only  part  with  the  possession,  but  with 
the  dominion  and  control  of  the  property.  An  intention  to 
give  is  not  a  gift.**  And  it  is  said  one  can.  not,  without  a  writ- 
ten transfer  or  declaration  of  trust,  make  a  valid  gift  of  an  in- 
strument securing  the  payment  of  money,  reserving  to  himself 
the  accruing  interest  during  life,  unless  there  is  an  absolute  de- 
livery of  the  security  to  the  donee,  vesting  the  entire  legal  title 
and  possession  in  him."^ 

§  1247.    Revocation  of  gift. 

One  of  the  essential  features  of  a  gift  causa  mortis  is  that  it 
is  revocable.  It  may  l>e  revoked  by  acts  of  the  party  himself 
or  by  a  changed  condition.  If  the  party  gives  it  tO'  another, 
this  would  be  a  revocation,^®  although  it  has  been  held  that  a 
gift  causa  mortis  can  not  be  revoked  by  a  last  will  and  testa- 
ment because  the  will  speaks  as  of  the  moment  of  the  testator's 
death,  while  the  gift  had  previously  vested  in  the  donee.  But 
the  gift  of  a  legacy  to  one  who  has  received  a  gift  causa  mortis 
may  raise  the  presumption  that  the  former  is  a  substitution  for 
the  latter,  and  sometimes  the  donee  may  be^  compelled  to  choose 
between  them.*^ 

If  the  done©  dies  before  the  donor,  this  will  be  a  revocation ; 
and  if  a  check  is  given  and  the  donor  dies  before  the  check  has 
been  accepted  or  paid,  this  will  be  a  revocation.'*  Likewise 
such  a  gift  may  be  revoked  by  a  demand  of  the  donor,  although 

23  8   Am.   &   Eng.   Ency.    of   Lnw,  See    §  624    et    seq.,    Payment    of 

subject,  Cifts.     Woerner  on  Admin.  legacies. 

123.  28  Simmons   vs.    Savings   Soc,    31 

21  Flanders  vs.   Blandv,   45   O.   S.  0.  S.  4i57. 

108.                                        '  See    Delfs    vs.    Yeager,    16    C.    C. 

25Eedf.     Sur.     Prac.    475,    citing  (X.S.)  436,  Delivery  of  savings  bank 

Young  vs.  Young,  80  X.  Y.  422.  book;   Anderson  vs.  Allen,   19  C.   (". 

20  Parker  vs.  Marston,  27  Me.  196.  (N.S.)    51,  Delivery  of  horse. 

27  Woerner  on  Admin.  126. 


§  1248  GIFTS    CAUSA    MORTIS  1120 

the  donee  refused  to  surrender  the  article.  "**  So  it  has  been 
held  tliat  a  subsequent  birth  of  a  child  which  operates  to  revoke 
a  will,  would  have  the  same  effect  on  a  gift  causa  mortis.^^ 

§  1248.     Evidence  of  gift. 

Gifts  causa  mortis,  like  gifts  inter  vivos,  are  watched  with 
caution,  and  to  support  them,  clear  and  convincing  evidence  is 
required. ^^  In  another  case  it  is  said  the  proof  of  a  gift  must 
be  clear  and  positive.^^  Thus  where  the  evidence  shows  that  a 
father  advanced  money  to  his  daughter  to  build  her  a  home, 
with  tlie  intent  that  the  interest  should  be  paid  to  him  during 
his  life,  and  that  the  principal  should  be  paivl  the  daughter  at 
his  death,  it  was  not  sufficient  to  establish  either  an  advance- 
ment or  a  gift  inter  vivos  or  causa  mortis.^^ 

Oral  statements  or  declarations  of  an  alleged  donor  are  not 
competent  as  against  innocent  third  persons,  to  prove  a  gift  of 
real  estate.^* 

It  is  not  necessary  that  the  donee  be  required  to  prove  af- 
firmatively and  with  minuteness  the  circumstances  under  which 
the  alleged  gift  was  made,  nor  is  he  required  to  effectually 
show  that  the  donor  was  of  sound  mind  when  he  made  the  gift. 
He  makes  a  prima  facie  case  when  he  shows  that  the  gift  has 
been  made  according  to  the  requirements  of  law."^ 

§  1249.    Rights  of  creditors  and  family. 

It  is  so  well  settled  as  to  need  nothing  more  than  mentioning 
that  a  person  can  not  give  away  his  property  and  defeat  claims 
of  his  creditors.     There  has  been  some  question  in  our  State 

29  Merchant  vs.  Mercliant,  2  in  favor  of  his  mother  and  paid  in- 
Bradf.  4C2.  terest  thereon,  there  is   a  presump- 

30  Bloomer  vs.  Bloomer,  2  Bradf.  tion  raised  that  the  money  evidenced 
^^"*  bv  the  note  was   a  loan   and  not  a 

See  §  1062.  Revocation  of  will  by  gift.      Admissions    bv    the    mother 

birth  of  child.  that   it  was   a  gift   are   admissible. 

31  Flanders  vs.  Blandy,  45  0.  S.  Hicks  vs.  Hicks,  9  C.  C.  (N.S.)  dl3; 
113.  2f)  0.  C.  C.   628;   affirmed  76  O.   S. 

32  Meyer  vs.   Shaney,  2  W.   L.  J.  575. 

l^^-  A   stipulation    in   a   mortgage   to 

iT^    i  n   j7^'  1^**^^^^^^^^'   1^  ^-  C.  pay  a  certain   amount,   after  death 

*'tt  11    ^'  },^^-  of  another  person,  is  valid.     Prindle 

34  Hall  vs.  Geyer,  14  C.  C.  229;  7  vs.  Wood,  3  C.  C.  (KS.)  641;  24  O. 

C.  D.  4.36.  C.  C.  74 

35B(.df.   Sur.  Prac.  477.  'See  Laws  vs.   INToslev.  where  evi- 

Where   the   son   executed    a   note  dence  held  insufficient,  "37  C.  C.  209. 


1121  RIGHTS  OF  CREDITORS  AND  FAMILY  §  1249 

whether  a  person  might  by  gift  causa  mortis  deprive  his  family 
of  such  portions  of  his  estate  as  they  would  be  entitled  to  under 
the  law  of  distribution,  etc.  It  has  recently  been  held  by  the 
Supreme  Court  that  a  man  can  not  convey  or  give  away  his  real 
estate  and  defraud  his  wife  of  her  marital  rights.^^  But  gifts 
causa  mortis,  as  a  rule,  do  not  apply  to  real  estate,  and  as  there 
are  no  legal  impediments  to  a  person's  right  to  dispose  of  his 
personal  property  in  such  a  manner  as  he  sees  fit  regardless  of 
the  interest  of  his  wife,  it  has  been  held  that  a  wife  may  make 
a  gift  causa  mortis  of  all  her  personal  property  to  the  exclusion 
of  her  husband,^^  and  also  that  a  husband  may  by  gift  inter 
vivos  deprive  his  widow  of  any  share  that  she  may  have  in  his 
property.^® 

If  the  husband  could  make  a  valid  gift  inter  vivos,  there 
seems  to  be  no  reason  why  he  could  not  make  the  same  kind  of  a 
gift  causa  mortis.^^ 

36  Ward  vs.  Ward,  63  0.  S.  125.  39  See  Discussion,  Woerner  on  Ad- 

37  South  vs.  Fair,  41  Bull.  343.  min.  128. 
38Brodt  vs.  Rannells,  7  N.  P.  79;        .  „„^       ^    „„ 

9  Dec.  r.Or  §  ^•^^'  "°*^  ^^- 


§  1250 


TESTAMENTARY  TRUSTEES 


1122 


CHAPTER  LXYII. 

TESTAMENTARY  TRUSTEES. 


S  1250 
S  1251 

§  1252 
§  1253 

§1254 
$1255 

§1256 

§1257 
§1258 

§1259 
§  1260 
§  1261 

§1262 


Definition,  etc,  §  1263 

Distinction  between  executor       §  1264 
and  testamentary  trustee. 

Who  may  be  a  trustee.  §  1265 

Jurisdiction        of        Probate 
Court,  etc.  §  1266 

Application,  etc. 

Form  of  application  for  ap- 
pointment of  trustee.  §  1267 

Trustees    appointed    by    will 
to  give  bond,  unless,  etc.  §  1268 

Comments. 

Removed  on   failure  to   give       §  1269 
bond. 

Form  of  trustee's  bond. 

Appointment  of  trustee.  §  1270 

Entry    for    appointment    of       §  12V 1 
trustee. 

Form   of   letters    of   trustee- 
ship. §  1272 


Inventory  of  estate. 

Separate  bond  from  each 
trustee,  or  joint  bond. 

Surviving  trustee  may  exe- 
cute trust. 

When  Probate  Judge  may 
appoint  person'  to  execute  a 
trust. 

Trusts  created  by  foreign 
will. 

Id.  Trustee  named  in  for- 
eign will  to  give  bond. 

How  trustee  appointed  by 
foreign  Court  may  execute 
a  trust. 

Comments. 

Probate  Court  may  appoint 
a  trustee  under  a  foreign 
will. 

Comments, 


§  1250.     Definition,  etc. 

A  trust  is  defined  to  be  an  equitable  obligation,  either  ex- 
press or  implied,  resting  upon  a  person  by  reason  of  a  con- 
fidence reposed  in  him,  to  apply  or  deal  with  property  for  the 
benefit  of  some  other  person,  or  for  the  benefit  of  himself  and 
another  or  others,  according  to  such  confidence.^  Generally 
speaking,  a  trust  is  an  equitable  right,  title  or  interest  in  prop- 
erty, real  or  personal,  distinct  from  the  legal  ownership 
thereof.^ 


1  27  Am.  &  Eng.  Encv.  of  Law  3. 

2  2  Story's  Eq.  Jur.,  §964.  Sub- 
stantially the  same  definition  is 
given  by  Mr.  Spence  and  Mr.  Snell. 
See  2  Spence  Eq.  .Jur.- 875;  Snell's 
Princ.  of  Eq.  (Lawson's  Am.  Ed.) 
59. 

See  §  1361,  Guardians. 
The  rules  goverrnng  testamentary 
trustees  ^nd  trustees  are  the  same 


as  those  governing  guardians  and 
administrators  of  estates.  Boals  vs. 
Clingan.  6  X.  P.  (N.S.)  609;  16 
Dec.   207. 

See  §  13S7  for  form  investment  of 
funds,  etc. 

See  Eidelitv  &  Deposit  Co.  vs. 
Wolfe,  100  0.'  S.  332,  as  to  general 
powers  of  Probate  Court,  etc. 


1123  DISTINCTION  BETWEEN  EXECUTOR  §  1251 

The  person  in  whom  the  confidence  is  reposed,  and  whose 
duty  it  is  to  manage  the  trust,  is  called  a  trustee.  When  the 
trust  is  created  by  a  last  will  and  testament,  it  is  called  a  testa- 
mentary trust,  and  the  person,  whether  designated  by  the  will 
or  appointed  by  the  Court,  whose  duty  it  is  to  execute  the  trust, 
is  called  a  testamentary  ti-ustec.  Such  trustee  receiving  his 
tmst  by  virtue  of  the  last  will  and  testament,  must  execute  such 
trust  in  accordance  with  the  creating  power,  unless  the  same  is 
contrary  to  some  positive  law.  Where  the  last  will  and  testa- 
ment does  not  provide  in  detail  the  manner  in  which  the  trust 
should  be  executed,  then  the  law  applicable  to  trusts  generally 
applies.^  In  its  enlarged  sense,  e»\ecutors,  administrators, 
guardians,  assignees,  etc.,  are  trustees,  but  it  will  be  the 
province  of  this  and  succeeding  chapters  to  deal  with  trustees 
occupying  other  relations.  The  principle  that  every  trustee 
must  act  honestly  and  for  the  best  interest  of  his  trust,  is  alike 
applicable  to  all  persons  who  hold  a  trust  position/ 

§  1251.     Distinction  between  executor  and  testamentary  trustee. 

Where'  the  will  creates  a  trust  and  directs,  that  some  person 
other  than  the  executor  shall  execute  the  tnist,  little  difficulty  is 

3  As  used  in  the  New  York  code,  examination  of  the  trust  instrument 

a   "  testamentary   trustee,"    includes  to    ascertain    its    particular    provi- 

every  person  except  an  executor  and  sions  and  what  his  duties  and  liabil- 

administrator     with     the     will     an-  ities    will    be.      He    should    also    ex- 

nexed,  or  a  guardian,  who  is  desig-  amine  the  property  to  see  that  his 

nated  by  a  will,  or  by  any  competent  personal    interests   will   not   conflict 

authority,    to    execute   a    trust   ere-  with  his  duties  as  trustee.     The  du- 

ated    by    a    will.     It    also    includes  ties  of   a   trustee  to  his  beneficiary 

such   an   executor  or  administrator,  require    not   only    the   highest    good 

where  he  is  acting  in  the  execution  faith    in    their    execution,    but    also 

of  a  trust  created  by  the  will,  which  the   absence   of    conflicting   personal 

is   separable   from   his   functions   as  interests,  and  often  the  sacrifice  of 

executor  or  administrator    (Co.  Civ.  personal   convenience  and  chance  of 

Proc,   §  2514,  subd.  6).  profit.     An  individual  may  be  will- 

♦  Trusteeship  is  not  mere  contract  ing  to  trust  the  whole  or  some  part 

to  manage  property  for  another,  but  of  the  management  of  his  personal 

it  is  a  relationship,  involving  many  afi'airs  to  others;  but  a  trustee  must 

duties  and  liabilities.     It  is  not  al-  manage    the    trust    affairs    himself, 

ways  desirable  to  be  a  trustee,  and  Loring  Trustees'  Handbook,    1.     Al- 

before    undertaking    any    trust    the  len  vs.  Insurance  Co..   19  Bull.   198. 

individual    should    make    a    careful  See  §   13G1,  Guardians. 


L 


§  1251  TESTAMENTARY  TRUSTEES  1124 

experienced  in  separating  the  duty  of  each.  But  where  the 
same  person  is  mentioned  as  both  executor  and  trustee  under  a 
will,  it  is  a  matter  of  extreme  difficulty  vei-y  often  to  determine 
when  a  certain  act,  is  done  as  executor  or  as  trustee.  Generally 
speaking,  it  is  the  duty  of  an  executor  to  pay  the  debts  of  the 
decedent  and  distribute  the  estate.  It  is  not  the  province  of  an 
executor  to  hold  and  manage  the  estate.  This  ordinarily  would 
be  the  duty  of  a  trustee.  Where  such  duties  are  placed  by  will 
upon  one  person,  he  may  accept  the  one  and  decline  the  other, 
but  if  he  accept  the  execution  of  the  trust  by  qualifying  as  ex- 
ecutor, he  will  be  deemed  to  accept  the  trust,  and  he  might  be 
held  to  account  in  each  capacity.  In  such  cases  it  is  not  re- 
quired that  he  take  an  additional  oath  of  office,  nor  is  it  neces- 
sary that  letters  testamentary  directed  to  him  should  designate 
his  function  as  trustee  from  that  as  executor.  Wherever  the 
trust  is  separate  and  distinct,  for  instance,  if  the  will  provided 
that  the  executor  should  collect  the  assets  and  distribute  all  the 
funds  except  a  certain  portion,  which  he  was  to  hold  for  one 
person  for  a  number  of  years,  and  then  pay  the  remainder  over 
to  the  heirs  of  such  person,  in  such  a  case  the  executor  should 
unquestionably  settle  his  accounts  as  executor  and  make  appli- 
cation and  give  a  new  bond  and  be  appointed  as  a  trustee.** 
This  would  save  all  trouble  asi  to  liabilities  of  sureties  in  refer- 
ence to  the  fund  for  which  they  might  be  held  responsible.  In 
some  States  the  sureties  on  an  executor's  bond  will  not  be  held 
liable  for  his  acts  as  trustee.^  But  the  rule  is  otherwise  in 
other  States.^* 

The  Courts  in  Ohio  would  probably  follow  the  decision  of 
the  Massachusetts  Courts,  as  much  of  our  probate  law  is  taken 
from  the  laws  of  tliat  State.®  Where  the  same  person  is  ap- 
pointed trustee  and  executor  under  a  will,  he  holds  the  property 
as  executor  until  he  has  settled  his  account  in  the  Probate  Court 

<•  P.  C.  &  St.  L.  Ry.  vs.  Schmidt,  5*  White    vs.    Ditson,     140    Mass. 

8  C.  C.  355;  4  C.  D.  5'35.  351;    Groton    vs.    Ruggles.     17    Me. 

See  Wilson  vs.   Wilson,   17   0.   S.  137;  Hall  vs.  Gushing,  9  Pick.  395; 

150,    as    to    transferring    of    funds,  Perkins  vs.  Moore,  16  Ala.  9. 
(vhere  one  person  held  two  positions.  e  But  see  P.  C.  &  St.  L.  Ry.  vs. 

B  Drake  vs.  Price,  5  N.  Y.  430.  Schmidt,  4  G.  D.  535 ;  8  C.  G.  360. 


1125 


DISTINCTION  BETWEEN  EXECUTOR 


§1251 


as  executor,  crediting  himself  with  the  funds  he  holds  as  trus- 
tee, or  done  some  other  notorious  act  of  transfer.'' 

Where  a  general  power  of  appointment  is  exercised  by  will, 
the  executors  of  the  will,  not  the  tmstees,  will  carry  out  the 
trust,  and  where  the  power  is  special,  the  same  rule  should  pre- 
vail, unless  the  appointment  is  directly  to  the  objects  of  the 
bounty,  and  was  not  meant  to  pass  through  the  executor's 
hands.^  Our  Circuit  Court  has  held,  where  under  a  will  there 
is  doubt,  whether  the  executor  is  to  act  as  such  or  as  a  trustee, 
the  rule  is  that  the  duty  or  trust  devolves  upon  the  executor 
or  upon  the  trustee  as  executor  by  virtue  of  his  office  as  ex- 
ecutor.® 


^Gandolfo  vs.  Walker,  15  0.  S. 
273;  hi  re  Higgins  Est.,  15  Mont. 
474;  28  L.  R.  A.  116;  Crocker  vs. 
Dillon,  133  Mass.  91,  98. 

When  a  trust  fund  is  to  be  cre- 
ated by  an  executor  out  of  the  as- 
sets of  an  estate,  something  more 
must  be  done  by  the  executor,  in 
order  to  impress  the  trust  on  par- 
ticular property,  than  to  hold  the 
property  with  the  intention  that  it 
shall  constitute  the  trust  fund. 
There  must  be  some  act  of  appro- 
priation which  transfers  it  to  the 
trust  fun  1  and  gives  the  beneficia- 
ries right  to  have  it  held  for  them. 
Sheffield  vs.  Parker,  158  Mass.  330. 

8  Sargent  vs.  Sargent,  168  Mass. 
420. 

9  In  re  Crawford,  21  C.  C.  554. 
The  general  rule  that  where  there 

is  a  devise  or  bequest  to  an  executor 
in  trust,  the  executor  receives  the 
property  or  fund  at  once  and  the 
same  never  becomes  assets,  must 
be  subject  to  the  qualifications,  that 
if  needed  assets,  the  title  of  the  ex- 
ecutor is  superior  to  that  of  trustee, 
80  that  the  former  may  take,  use 
and  account  for  the  same  as  assets; 
and  also  that  if  the  property  is  not 
reduced    to    the    form    or    condition 


in  which  it  is  to  be  distributed  as 
trust  property,  the  duty  of  thus 
transforming  it  may  devolve  upon 
and  be  exercised  by  the  executor 
as  such,  and  that  this  will  be  the 
case  unless  the  will  distinctly  pro- 
vides that  this  duty  shall  devolve 
upon  the  trustee  as  such.  In  such 
cases  the  same  person  being  both 
executor  and  trustee,  he  will  not 
take  in  the  latter  capacity,  until  he 
has  fully  discharged  his  duties  in 
the  former  capacity,  and  not  until 
the  fund  or  property  has  been  dis- 
tinctly set  apart  as  trust  property. 
The  title  to  money  and  personal 
property  devised  by  will  does  not 
devolve  upon  the  legatees  until  the 
probate  of  the  will  and  administra- 
tion of  the  estate.  Under  a  will 
devising  certain  sums  of  money  to 
executors  in  trust  for  certain  pur- 
poses, and  devising  to  such  execu- 
tors all  real  and  personal  property, 
in  trust  for  the  execution  of  the 
will  with  full  power  to  sell  or  mort- 
gage and  convey  any  property,  with- 
out being  required  to  obtain  orders 
of  Court  therefor,  the  executors  will 
take  as  executors,  and  their  rela- 
tions to  the  estate  as  trustees  can- 
not arise  until  the  estate  has  been 


^  1252  TESTAMENTARY  TRUSTEES  1126 

As  a  general  rule,  tiic  powers  of  an  executor  are  co-extensive 
with  all  tlie  trusts  devolved  upon  him  by  the  will,  and  all  acts 
done  by  him  in  executing  such  trusts  will  be  regarded  as  done 
in  his  capacity  as  executor,  unless  it  plainly  appears,  from  the 
whole  Avill,  that  the  testator  intended  to  create  a  special  trust  to 
be  managed  by  the  person  named  as  executor  in  the  capacity  of 
special  trustee.^*^ 

Where  a  testator  directed  in  his  will  that  the  executors  should 
carry  on  his  brewery  business  for  seven  years,  "  for  the  benefit 
of  the  estate,"  and  at  the  end  of  that  time  should  deliver  the 
brewery  and  its  "  proceeds  "  to  residuary  legatees  named  in  the 
will,  the  executors  carried  on  tlie  business  accordingly,  using 
and  employing  the  funds  of  the  estate  for  that  purpose.  It 
was  held  that  the  moneys  and  profits  arising  from  the  business 
were  assets  in  the  hands  of  the  executors,  for  the  administration 
of  which  their  sureties  are  liable/^ 

§  1252.     Who  may  be  a  trustee. 

In  absence  of  any  statutory  provision,  any  person  that  has 
the  capacity  to  hold  the  title  to  the  property  and  the  right  to  ex- 
ercise the  power  may  be  a  trustee. 

A  corporation  having  such  capacity  and  rights  among  its 
charter  powers  is  such  a  person,  and  may  be  a  trustee.^' 

The  sovereign  may  be  trustee,  but  the  beneficiary  can  not  en- 
force the  trust  except  by  petition/^  until  the  property  is  con- 
veyed to  some  one  amenable  to  the  jurisdiction  of  the  Court." 

The  trust  estate  may  vest  in  a  lunatic  or  infant,  but  they  will 
be  removable.^" 

An  infant  may  be  compelled  to  convey  by  statute,^®  and  so 

reduced  to  money   and   nothing   re-  for  foreign  trustees.     Bank  vs.  B.  & 

mains    but    to    distribute    or    invest  0.   R.   R.    53   Bull.    181. 

the  funds  as  provided  by  the  will.  i3  Briggs   vs.   Light  Boat.   11   Al- 

^^-  len,    157. 

10  Mathews  vs.  Meek,  23  0.  :\'.  272.  i*  Winona    Co.    vs.    St.    Paul    Co., 

11  Gandolfo   vs.   Walker,    15   0.   S.  26  Minn.   179. 

15  Irvine  vs.  Irvine,  9  Wall.  617; 

12  Atty.    Gen.    vs.    Landerfield,    9       Swartwout  vs.  Burr,  1  Barb.  495. 
Mod.   286;    Dublin   Case,   38   N.   H.  lo  Brightly 's  Dig.   Pa.    (1894),  p. 
'^^^-                                                                2033,  §  46;  Gen.  Laws  R.  L   (1896) 

A  foreign  trust  company  may  act       ch.    208,    §     16;    Gen.    Stat.    N.    J. 

ns95),  p.  3683,  §§  2,  3. 


251. 


1127  WHO   MAY   BE  §  1252 

long  as  infants  or  lunatics  hold  the  property  the  trust  will  be 
administered  by  the  Court  through  them  or  their  guardians.^^ 
Having  no  discretion,  they  can  not  act  in  trust  affairs  any  more 
than  they  can  in  their  own  affairs,^^  and  if  one  of  three  trus- 
tees is  an  infant  or  lunatic,  action  by  the  other  two  is  barred.^® 

At  common  law  a  wife  could  not  be  a  tiTistee  for  her  hus- 
band, but  she  may  be  now  in  most  jurisdictions  under  the  stat- 
utory rules.  ^° 

A  trustee  should  be  "  capable  " —  that  is  to  say,  a  person  hav- 
ing tlie  legal  and  actual  capacity  to  hold  the  title  to  the  trust 
property  and  exercise  the  powers.  Thus  the  trustee  should  be 
a  person  of  full  age  and  sound  discretion.  He  should  be  "  fit," 
that  is  to  say,  a  person  in  whose  hands  the  property  will  be 
safe,^^  and  who  will  be  impartial  in  the  administration  of  his 
trust.  Thus  a  bankrupt  is  not  a  "  fit "  person,  as  being  un- 
successful in  his  own  affairs,  he  is  not  likely  to  be  successful 
in  those  of  otliers,  and  a.  diimkard  or  person  of  dishonest  or  of 
bad  character  is  unfit,  since  the  property  would  not  be  s-afe  in 
his  hands.  So  too  a  beneficiary  is  an  unfit  person,  whether  he 
be  a  life  tenant  or  remainderman,  since  he  will  naturally  be 
partial  to  his  o^vn  interests,"  aaid  for  similar  reasons  a  near 
relation  is  objectionable,  although  in  this  country  they  are  more 
often  appointed  than  strangers.  The  fact  of  near  relationship 
makes  the  trustee  less  able  to  witlistand  the  importunities  of 
their  beneficiaries,^^  and  moreover  such  a  connection,  especially 
where  a  parent  or  older  relation  is  trusrtee  for  a  child,  is  too 
often  made  an  excus©  for  lax  maniagement,  and  thfe  knowledge 
that  a  breach  of  trust  is  likely  fo  be  condoned  not  infrequently 
leads  to  disregard  of  strictly  legal  management,  which  is  the 
only  safeguard  of  trust  estates.  Deviation  from  the  rules  of 
strict  accountability  only  too  often  leads  to  speculation  and  the 
loss  of  the  property.-* 

i' Eoc  parte  Sergison,   4   Ves.  Jr.  ^^  Ex    parte    Conybearc's    Sottle- 

147  raent,  1  Weekly  Rep.  458. 

18  Person    vs.    Warren,    14    Barb.  23  Wilding    vs.    Bolder,    21    Beav. 
4S8  222;  Parker  vs.  Moore,  23  X.  .1.  Kq. 

19  King  vs.  Bellord,  1  Hem.  &  M.  228,  240. 

343  24  Loring  on  Trustees,  13. 

20  Sehluter  vs.  Bowery  Sav.  Bank,  See  §  1332,  Who  should  be  ap- 
117  N.  Y.  125.                                                 pointed     guardian;      §§74-83,     Who 

21 /n  re  Backer's  Trusts,  1  Ch.  D.  should  be  appointed  executor; 
43  §§  115-123,  Who  should  be  ai)i)ointed 


§  1253  TESTAMENTARY   TRUSTEES  1128 

§  1253.     Jurisdiction  of  Probate  Court,  etc. 

The  enforcement  and  management  of  trusts  from  the  pe- 
culiar nature  and  character  of  the  interests  involved,  fall  within 
the  ordinary  powers  of  a  Court  of  chancery  jurisdiction;  and 
where  not  otherwise  provided,  it  still  will  come  within  the 
power  of  the  equity  side  of  our  Court  of  Common  Pleas. 
The  Prohate  Court  being  a  Court  of  limited  jurisdiction,  it 
only  has  power  over  a  trust  when  such  power  is  given  by  some 
'positive  provision  of  our  statute  law ;  and  an  examination  of  the 
General  Code  will  show  that  no  exclusive  jurisdiction  is 
given  to  the  Probate  Court  in  its  control  over  trusts  and  trus- 
tees like  there  is  over  guardians  or  administrators  and  execu- 
tors.'"^ 

Sees.  10591,  G.  C,  to  10600,  G.  C.,^^*  confer  power  upon  the 
Probate  Court  where  the  trustee  is  appointed  in  a  will  or  where 
the  trust  is  created  by  a  will,  and  sec.  llOli,  G.  C.,"*'  relates  to 
non-resident  minors,  idiots,  lunatics  or  imbeciles.  It  seems 
therefore  that  unless  a  trust  comes  within  one  of  these  statutory 
provisions  that  the  Probate  Court  has  no  authority  in  the  mat- 
ter, unless  possibly  there  might  be  some  matter  pending  in  the 
Probate  Court  in  which  it  would  be  necessary  to  appoint  a  trus- 
tee to  care  for  such  fund  as  is  provided  in  sec.  11031,  G.  C.^'^* 
If  another  Court  appoint  a  trustee,  such  trustee  will  remain 
under  the  jurisdiction  of  the  Court  that  makes  the  appointment. 
It  would  hardly  be  within  the  power  of  the  Chancery  Court  to 
appoint  a  trustee  and  direct  such  trustee  to  account  in  the  Pro- 
administrator;  §  1548,  Who  should  has  jurisdiction  to  appoint  a  trus- 
be  a|  ])ointed  agsigiiee.  tee.     Where  no  trustee  has  been  ap- 

25  §  10492  G.  C,  §  27.  pointed  by  the  Probate  Court,  where 
Where  a  will  rests  a  discretion  in      the  will  is  probated,  then  the  Pro- 

a     trustee,     such     trustee     becomes  bate  Court  of  any  county  in  which 

under   the    original    jurisdiction    of  the  will  has  been  recorded,  and  in 

tlie   Probate   Court,   and   the   Court  which   the  beneficiary   resides,   may 

of   Common  pleas   is  without  juris-  make  such  ajipo'ntment.     Boals  vs. 

diction     in    an    original     action    to  Clingan,    6    N.    P.     (N.S.)     609;     IG 

determine  whether  or  not  tlie   wel-  Dec.     267 ;     and    such    court    could 

fare  of  the  ward  requires  the  sale  order  a  sale  of  real  estate, 

of    the    property,    etc.      Stasel    vs.  An  annuity  may  be  assigned,  and 

Rieter,  24  Dec.  288.  where   an   estate  "has    all    its    legal 

25*  §  1256.                '  debts  paid,  and  parties  holding  an 

26  §  1274.  annuity  agreeing  thereto,  the  estate 
2«*§1286.  may  be  finally 'settled.  Trust  Co. 
Section    10591    et    seq.,    are    not  vs.'Kirby,  17  Dec.  196;   4  0.  L.  R. 

mandatory  in  their  provisions,  but      304. 
simply  directory  as  to  what  court 


1129  JURISDICTION,  ETC.  §  1254 

bate  Court  for  the  funds  in  his  hands.  A  testamentary  trustee, 
unless  the  will  is  a  foreign  will,  is  under  the  control  and  within 
the  jurisdiction  of  the  Court  of  the  county  in  which  the  will  is 
admitted  to  record.^^ 

If  it  be  a  foreign  will,  such  trustee  must  give  bond  and 
therefor  be  accountable  to  the  Probate  Court  of  the  county  in 
which  any  lands  are  situate  that  are  effected  by  the  trust,^^* 
and  trustees  of  non-resident  minors,  etc.,  are  only  appointed 
by  the  Probate  Court  of  a  county  in  which  there  is  situated 
some  real  estate,  goods,  chattels,  rights,  credits,  moneys  or  ef- 
fects belonging  to  such  non-resident  minors,  etc.^^ 

The  Probate  Court  has  no  power,  however,  to  construe  a 
trust.  If  a  trustee  is  in  doubt  about  any  of  the  provisions  of 
the  instrument  creating  the  trust,  he  may  file  a  petition  in  the 
Court  of  Common  Pleas  and  get  a  construction  of  such  in- 
strument.^^ 

It  would  seem  from  the  provisions  of  sec.  11029,  G.  C.,^" 
which  requires  a  trustee  who  has  received  his  appointment  by 

virtue  of  a  deed,  to  account  in  the  Probate  Court,  that  the  Pro- 
bate Court  would  have  jurisdiction  of  a  trust  of  that  kind, 
except  when  the  deed  or  will  creating  the  trust,  designates  some 
other  tribunal  as  a  proper  one  in  which  to  make  a  settlement, 
or  where  some  other  tribunal  has  in  some  method  acquired 
jurisdiction.^^ 

§  1254.     Application,  etc. 

There  is  no  statutory  requirement  that  an  application  should 
be  filed  for  the  appointment  of  a  trustee  as  there  is  in  the  State 
of  Massachusetts.  There  it  is  required  that  the  appointment 
shall  be  made  by  petition,  and  it  is  said  that  the  petition  should 
state  in  general  terms  the  nature  of  the  trust,  the  manner  in 
which  it  was  created  and  the  willingness  of  the  petitioner  to  ac- 
cept the  trust  and  give  the  bond  required. 

If  the  appointment  is  necessary  in  consequence  of  a  vacancy 
in  the  office  of  trustee,  the  petition  should  set  forth  the  fact, 
and  state  in  what  way  the  vacancy  was  occasioned,  whether  by 

27  §  10591  G.  C,  §  1256.  29  §§  10857-8  G.  C.,  §  33. 
27*  §  10598  G.  C.,  §  1268.  3o  §  I2fl3. 

28  §  11014  G.  C.,  §  1274.     Schouler  3i  See  §  11301  G.  C,  §  1295,  Power 
on  Exrs.  472.                                              over  execution  of  trust. 


§  1255  TESTAMENTARY  TRUSTEES  1130 

tlio  omission  of  the  testator  to  make  an  appointment,  or  by  the 
resignation  or  death  of  a  former  trustee,  or  otherwise. 

Any  person  interested  in  a  trust  estate  may  petition  for  the 
appointment  of  a  trustee.  A  citation  to  parties  interested  will 
be  ordered  before  an  appointment  is  made,  unless  their  written 
assent  is  given  to  the  prayer  of  the  petition.^' 

The  above  taken  from  a  leading  work  on  the  probate  law  of 
Massachusetts,  is  very  applicable  to  what  should  be  done  in  the 
way  of  making  a  formal  application  for  letters  for  a  testamen- 
tary ti-ustee.  In  our  State  the  Court  might  make  an  appoint- 
ment without  such  a  formal  application,  but  in  order  that  tlie 
proceedings  may  show  on  their  face  their  exact  nature  and 
character,  and  the  Court  may  be  informed  of  the  nature  and 
character  of  the  estate,  a  written  application  should  in  all  in- 
stances be  required. 

§  1255.     Form  of  application  for  appointment  of  trustee. 

Of  and  for ,  beneficiary  under  will  of 

,  deceasea. 

In  the  Probate  Court  of County,  Ohio. 

The  undersigned ,  a  resident  of  the  county  of 

and  State  of  Ohio,  and  whose  postoffice  address  is 

county,  Ohio,  hereby  makes  application  to  be  appointed  trustee  of 

and  for ,  a  beneficiary  under  the  last  will  and 

testament  of ,   late  of county, 

Ohio,  deceased. 

Said ,    being   sworn    says.    That   the   property    and 

estate  of  said  beneficiary that  will  come  into  h.  .  .  .hands  as  such 

trustee,  or  of  which.. he  will  have  the  care  and  management,  according  to 
the  terms  and  requirements  of  said  trust,  will  be,  as  nearly  as  can  now 
be  stated,  as  follows: 

Real  estate,  subject  to  sale  by  said  trustee,  estimated  value,     $ 

Probable  annual  rents  of  real  estate $ 

Personal  estate, $ 

Probable  annual  income  from  moneys  invested  or  to  be  in- 
vested,          $ 


The  State  of  Ohio, County,  ss. 

,  being  first  duly say . .  the  fore- 
going statement  is  true  as.  .he  verily  believes. 


Sworn  to  and  subscribed  before  me  this day  of 190.  . 

Probate  Judge. 

§  1256.    Trustees  appointed  by  will  to  give  bond,  unless,  etc, 
"Every  trustee  appointed  in  a  will,  before  entering  upon  his 

32  Smith   Pro.   Law    136. 


1131  '     MUST    GIVE   BOND  §  1257 

duty  as  such,  must  execute  a  bond  with  freehold  sureties,  pay- 
able to  the  state,  in  the  probate  court  of  the  county  in  which 
such  will  is  admitted  to  probate,  to  the  satisfaction  of  the 
court,  conditioned  for  the  faithful  discharge  of  his  duties  as- 
trustee;  except  that,  when  by  the  terms  of  a  will,  the  testator 
expresses  a  wish  that  his  trustee  m^ay  execute  the  trust  without 
giving  bond,  the  court  admitting  the  will  to  probate,  may  grant 
permission  to  the  trustee  to  execute  the  trust  with  or  without 
bond.  When  granted  without  bond,  at  any  subsequent  period, 
upon  the  application  of  a  party  interested,  the  court  may  re- 
quire bond  to  be  given;  and,  upon  tlie  application  of  an  inter- 
ested party,  if  deemed  necessary,  require  a  new  or  additional 
bond  at  any  time  before  the  completion  of  the  trust."  [R.  S. 
§5981.]^^ 

§  1257.     Comments. 

By  the  provisions  of  the  above  section  it  is  made  mandatory 
upon  every  trustee  appointed  in  a  will,  before  entering  upon 
his  duty,  to  execute  a  bond  with  freehold  sureties  to  the  satisfac- 
tion of  the  Court,  unless  the  Avill  expressly  otherwise  provides, 
and  even  then  it  is  left  in  the  discretion  of  the  Court  whether 
to  obey  the  requests  of  the  will  or  not.  If  the  Court  is  advised  by 
a  petition  or  otherwise  that  a  certain  person  has  been  selected  by 
the  testator  for  a  trustee,  the  Court  should  cite  such  person  to 
appear  and  accept  the  trust  or  decline,  in  the  same  manner 
persons  entitled  to  the  administration  of  an  estate  are  cited, 
and  if  the  person  neglects  tO'  appear  and  refuses  to  give  a  bond, 
the  Court  should  declare  the  trusteeship  vacant  and  proceed  to 
appoint  some  suitable  person.  It  is  no  doubt  the  intention  of 
these  statutory  provisions  that  no  person  should  be  qualified  as 
a  trustee  or  entitled  to  act  as  such,  until  he  has  complied  with 
the  requirements  of  giving  a  proper  bond.  The  statute  spe- 
cifically provides  that  if  he  fails  to  give  a  bond  he  shall  be  re- 
moved.    This  statute  is  as  follows:^* 

33  §  10591  G.  C.  Boals  vs.  Clingman,  6  N.  P.   (N.S.) 
The  sureties  on  the  bond  must  be       C09;   16  Dec.  207. 

inhabitants    of   the    State.      §  lOGll  Where   a   party   is   both   c>:ecutor 

O.  C.  and   trustee,    separate  bonds   should 

34  §  101,  as  to  new  or  additional  be  given.     P.  C.  &  St.  L.  R.  R.  vs. 
oonds.      §243   et  seq.  Srlimidt,   4  C.   D.   535;    8   0.   C.  C. 

This   section    is   merely    directory       355. 
as  to  wliat  court  should  appoint. 


§  1258  TESTAMENTARY   TRUSTEES  1132 

§  1258.  Removed  on  failure  to  give  bond.  ' '  If  such  trustee 
fails  to  frive  bond  within  the  time  ordered  by  the  court,  he  shall 
be  reiiKnod  from  his  trust,  or  be  considered  to  have  declined  it ; 
and  another  person  may  be  appointed  in  his  stead,  upon  giving 
the  required  bond."    [R.  S.  §  5983.]=^^ 

§  1259.     Form  of  trustee's  bond. 

Know  all  Men  by  these  Presents: 

That  we, as  principal  and 

and as  sureties,  are  held  and  firmly  bound  unto  the 

State  of  Ohio,  in  the  just  and  full  sum  of dollars,  for  the 

payment  of  which  sum  well  and  truly  to  be  made  we  jointly  and  severally 
bind  ourselves,  our  heirs,  executors  and  administrators,  and  each  of  them 

firmly  by  these  presents.     Signed  by  us  this day  of 

A.  D.  190.  .,  at ,  Ohio. 

The  condition  of  this  obligation  is  such,  that  whereas,  on  the day 

of ,  190.  .,  the  Probate  Court  of  the  county  of 

in  the  said  State  of  Ohio,  appointed  the  said 

as  trustee  for  and  of  certain  estate  of 

The  object  and  purpose  of  said  appointment  and  trust  being:     That  by  the 

last  will  and  testament  of ,  late  of  said  county  of 

,  deceased-,  which  said  last  will  and  testament  has  been  duly 

admitted  to  probate  and  record  in  said  Court,  it  was  among  other  things 
provided 

Now  if  the  said as  such  trustee  of  said 

shall  well  and  truly  do,  perform  and  discharge  with  fidelity,  all  and 

singular  the  duties  which  he  as  such  trustee  ought  to  do.  perform  and  dis- 
charge, and  act  in  all  things  as  required  by  law,  and  faithfully  account  for 
all  money  and  funds  that  may  come  into  his  hands  as  such  trustee,  then  this 
obligation  shall  be  void,  otherwise  the  same  shall  be  and  remain  in  full 
force  and  virtue. 

This  bond  approved  in  open  Court,  this day  of 190.  . 

Probate  Judge. 


The  State  of  Ohio, County,  ss. 

I, ,  trustee  of ,  do  solemnly  swear 

that  I  will  faithfully  and  honestly  discharge  the  duties  devolving  upon  me 
as  such  trustee,  as  I  will  answer  to  God. 

Sworn  to  before  me  and  signed  in  my  presence,  this day  of 

190... 

,  Probate  Judge. 

§  1260.     Appointment  of  trustee. 

While  the  testator  may  designate  a  person  as  trustee,  it  is 
undoubtedly  the  purpose  of  our  statute  that  no  one  shall  be 
qualified  to  act  in  that  capacity  until  he  has  given  the  required 
bond.^« 

A  testator  may  select  any  one  that  he  chooses  and  may  ap- 
point a  person  actually  unable  or  unfit  as  his  appointee,  and 

35  §  10593  G.  C.  ''  P-    ^-    &    St.    L.    Ry    Co.    vs. 

Schmidt,  8  C.  C.  355;   4  C.  D.  535. 


1133  API^OINTMENT  OF  §  1261 

such,  person  will  be  entitled  to  act,  and  could  only  be  removed 
for  cause,^^ 

Before  the  passage  of  the  statute  requiring  bonds  to  be  given 
by  testamentary  trustees,  it  was  probably  the  law  that  no  issue 
of  letters  testamentary  was  necessary,  and  such  seems  yet  to  be 
the  law  in  the  State  of  New  York,^^  and  there  does  not  appear 
to  be  any  express  statutory  provision  authorizing  or  directing 
the  Probate  Court  to  issue  letters  testamentary.  But  as  no 
person  is  entitled  to  act  as  trustee  unless  he  has  given  bond,  it 
follows  as  a  very  proper,  if  not  necessary,  practice  that  letters 
for  testamentary  trustees  should  be  issued  as  evidence  of  the 
fact  that  a  proper  bond  has  been  given.  If  the  will  author- 
izes some  person  to  designate  who  the  trustee  should  be,  the 
person  so  designated  will  be  entitled  to  make  the  appointment 
in  the  same  manner  as  if  he  was  designated  in  the  will.  Where 
the  Court  is  called  upon  to  appoint  a  trustee,  it  will  only  ap^ 
point  a.  person  who  is  actually  and  legally  capable  and  fit,  and  it 
will  have  due  regard  to  the  wishes  of  the  maker  of  the  trust  if 
they  can  be  discovered.^® 

Generally,  Courts  will  not  appoint  a  non-resident  as  trustee, 
but  statutes  providing  that  no  non-resident  should  be  appointed 
have  been  held  unconstitutional.**'  If  the  beneficiaries  all 
agree  on  a  person,  the  Court  will  nearly  always  appoint  him, 
even  though  he  be  a  beneficiary  or  otherwise  unfit.*^ 

§  1261.     Entry  for  appointment  of  trustee. 

This  day  this  matter  came  on  to  be  heard  upon  an  application  by  a 
petition  filed  herein  by  A.  B.  for  the  appointment  of  a  trustee  (here  state 
how  the  trust  was  created  and  should  usually  be  designated,  by  giving 
items  of  the  will  of  the  deceased).  And  it  appearing  to  the  Court  that 
(here  recite  facts;  that  is,  that  the  will  was  duly  probated  and  such  facta 
as  will  show  that  it  is  proper  that  a  trustee  should  be  appointed).  And 
it  appearing  to  the  Court  that  a  trustee  is  necessary  and  that  C.  D.  is  a 
suitable  person  to  be  appointed,  and  he  having  filed  in  this  ofiice  a  state- 
ment, duly  verified  by  his  affidavit  of  the  whole  estate,  and  the  probable 

37Wetmore  vs.  Truslow,  51  N.  Y.  ^o  Ghirk  vs.  La  Fayette,  52   Fed. 

338.  Rep.  857. 

See  §§  79-81,  Legally  competent.  ■*!  Young  vs.  Young,  4  Cranch  C. 

38  Redf.  Sur.  Prac.  272.  C.  499. 

39  Perry  on  Trust,  §  ;3G;  Story,  §  110,  Residence  of  administra- 
Eq.  11th  ed.,  vol.  2,  §  1289;  Under-  tor;  §  1.3.32,  Who  should  be  appoint- 
hill  on  Trust,  408.  ed  guardians. 


§  1262  TESTAMENTARY  TRUSTEES  1134 

value  thereof,  and  also  the  probable  rents  of  the  real  estate.  It  is  ordered 
that  said  C.  D.  be  appointed  such  trustee  upon  giving  bonds  with  sureties, 

as  required  by  law.  in  the  sum  of dollars.      (The  general 

practice  is  that  the  bond  is  filed  at  the  same  time.  If  this  be  done,  the 
entry  may  continue  as  follows:) 

And  thereupon   came  the  said  A.   B.   and  accepted  the  appointment  as 

trustee  of and  filed  herein  his  bond  in  the  sum  of 

dollars,  conditioned  according  to  law,  with 

and ,  freeholders,  as  sureties  thereon,  which  bond  is 

approved  by  the  Court. 

It  is  therefore  ordered  that  letters  of  trusteeship  issue  to  said  A.  B.  and 
that  this  proceeding  be  recorded,  and  that  said  trustee  pay  the  costs  herein 
taxed  at dollars. 

§  1262.     Form  of  letters  of  trusteeship. 

Of  and  for ,  beneficiary  under  will  of 

,  deceased. 

The   State   of   Ohio, County,    ss. 

Be  it  known.  That  heretofore,  to-wit,  on  the day   of 

.....  .A.  D.   190.  .  ., was  by  the  Probate  Court  oi 

-. county,  Ohio,  appointed  trustee  of  and  for 

,  beneficiary  under  tKe  last  will  and  testament  of 

,  late  of county,  Ohio,  deceased,  to  whom  is 

hereby  granted  all  and  singular,  the  powers  necessary,  and  by  law  required 

to    enable,  .h. ..  .the    said to    faithfully    execute    said 

trust  and  perform  all  and  singular  the  duties  of  such  trustee,  according 
to  the  statute  in  such  case  made  and  provided. 

In  testimony  whereof,  I  have  hereunto  set  my  hand,  and  aflixed  the  seal 

of  the  said  Probate  Court  at in  said  county,  this 

day  of 190.. 

Probate  Judge.. 

And  ex-officio  Clerk  of  the  Probate  Court. 

§   1263.  Inventory  of  estate. 

The  statutes  nowhere  require  that  a  testamentary  trustee 
should  file  an  inventoiy.  It  is  the  practice  of  some  Courts  to 
require  inventories  to  be  filed  in  the  same  maimer  as  guardians 
are  required  by  statute.  This  is  to  be  commended  and  should 
be  followed  in  all  cases  except  where  the  exact  amount  of  funds 
coming  in  the  hands  of  the  trustee  is  shown  in  an  account  of 
an  executor  or  a  preceding  trustee.  It  is  exceedingly  impor- 
tant to  beneficiaries,  as  well  as  to  the  trustee  himself,  that  it  be 
definitely  known  what  the  exact  amount  of  the  funds  or  prop- 
erty was  which  came  into  his  hands.  If  no  inventory  is  filed, 
the  property  with  which  the  trustee  is  charged  may  depend 
upon  a  number  of  extraneous  circumstances,  and  result  in  mis- 
understanding and  faulty  accounts  in  the  future.*^ 

*2  §  1,367,  Guardian's  inventory. 


1135  BONDS,   ETC.  §  1264 

§  1264.     Separate  bond  from   each  trustee   or   joint  bond. 

''When  two  or  more  persons  are  appointed  trustees  by  a  will, 
the  probate  court  may  take  a  separate  bond  from  each,  with 
sureties,  or  a  joint  bond  from  all,  with  sureties."  [R.  S. 
§5984.]^=^ 

§1265.  Surviving  trustee  may  execute  trust.  "When  two 
or  more  trustees  are  appointed  l)y  will,  to  execute  a  trust,  and 
one  or  more  of  them  dies,  declines,  resigns,  or  are  removed,  the 
survivors  or  remaining  trustees  or  trustee  may  execute  the 
trust,  unless  the  terms  of  the  will  express  a  contrary  intention." 
[R.  S.  §5985.]^* 

§  1266.  When  Probate  Judge  may  appoint  person  to  ex- 
ecute a  trust.  "If  a  testamentary  trustee  dies,  declines  to 
accept,  resigns,  becomes  incapacitated,  or  is  removed,  and  such 
will  has  not  provided  for  the  contingency  of  the  death,  in- 
capacity or  refusal  of  such  trustee  or  trustees  to  accept  or 
execute  the  trust,  or  such  will  names  no  trustees,  the  court 
having  probate  of  the  will  may  appoint  some  suitable  person  or 
persons  to  execute  the  trust,,  according  to  the  will,  who  must 
give  bond  with  security  as  provided  herein."     [R.  S.  §  5986.]*^ 

§  1267.  Trusts  created  by  foreign  will.  ' '  Trusts  created 
by  a  will  made  out  of  this  state,  and  relating  to  lands  situated 
herein,  after  the  will  is  duly  admitted  to  record  in  this  state, 
may  be  executed  as  hereinafter  provided."      [R.   S.   §5987.]*" 

43  §  10504  G.  C.  This  section  is  The  above  section  would  author- 
very  much  similar  to  §  10611  G.  C.  i^c  the  Court  to  appoint  a  trustee, 
(§86),  where  separate  bond  may  be  although  there  was  one  trustee  liv- 
taken  from  executors.  ing-  provided  the  will  did  not  show 

See  §§86  and  201  et  scq.,  for  law  that    the    power    given    to    the    first 

as  to  separate  bond,  etc.  trustee    was    a    personal    trust    and 

4*  §  10595  G.  C.  confidence   that   could   not  be   exer- 

45  §  10506  G.  C.  cised  by  others.     Sowers  vs.  Cyren- 

This  section  carries  into  eflfect  the  ius,  39  0.   S.  29. 
principle   of   law,    that  a   trust    will  See  §§  11035-6-7  C.  C,   §  1300. 
never  be  allowed  to  fail  for  reason  ^o  §  10597  G.  C. 
of  the  want  of  a  trustee,  and  it  es-  As    to    how   foreign    will    may    be 
pecially    confers    jurisdicticn    upon  admitted,   §  1118  et  seq. 
the  Probate  Court  to  designate  and  One  trustee  died    and  another  re- 
appoint   a    proper    trustee    in    the  moved   to   place  unknown,  the  Pro- 
emergencies   provided   by   the   above  bate  Court  had  power  to  fill  vacan- 
section.     Taylor  vs.  Galloway,   1   0.  cies,  although  there  was  a  surviving 
232;   Hunt  vs.   Freeman,   1   O.   400;  trustee.     SoM-ers  vs.  Cyrenius,  39  O. 
Steele   vs.   Worthington.    2    O.    182;  S.  29. 
Dabney  vs.   Manning,   3   0.   3f!l. 


§  1268  TESTAMENTAEY   TRUSTEES  1136 

§  1268.  Id.  Trustee  named  in  foreign  will  to  give  bond. 
"If  a  trustee  is  named  in  such  foreign  will,  he  may  execute  the 
trust,  upon  giving  bond  to  the  state  in  such  sum  and  with  such 
sureties  ;is  the  probate  court,  of  the  county  in  which  such  lands 
or  a  part  thereof  are  situated,  approves,  conditioned  to  dis- 
charge with  fidelity  the  trust  reposed  in  him ;  except  that,  if 
the  testator  in  the  will  naming  the  trustee  orders  or  requests 
that  bond  be  not  given  by  him,  bond  shall  not  be  required, 
unless  from  a  change  in  the  situation  or  circumstances  of  the 
trustee,  or  for  other  sufficient  cause,  the  court  of  probate  thinks 
proper  to  require  it."     [R.  S.  §  5988.]*^ 

§  1269.  How  trustee  appointed  by  foreign  court  may  ex- 
ecute a  trust.  "If  a  trustee  has  been  appointed  by  a  foreign 
court  according  to  the  laws  of  the  foreign  jurisdiction,  he  may 
execute  the  trust  upon  giving  bond  as  provided  in  the  next 
preceding  section,  and  satisfying  the  probate  court  of  the  county 
in  which  such  lands,  or  a  part  of  them,  are  situated,  by  an  au- 
thenticated record  of  his  appointment,  that  he  has  been  duly 
appointed  trustee  to  execute  the  trust."     [R.  S.  §  5989.]*^ 


§  1270.     Comments. 

The  above  section  places  it  within  the  power  of  a  person  who 
has  been  appointed  by  a  foreign  Court  to  execute  the  trust  in 
reference  to  lands  situate  in  our  State.  Wliere  such  foreign 
trustee  wishes  to  act  here,  he  should  apply  to  the  Probate  Court 
of  the  county  in  which  the  lands  are  situate  or  some  part  of 
them;  and  he  should  file  an  application  setting  forth  the  fact 
of  his  appointment  in  some  foreign  Court,  giving  the  name  of 
the  Court  and,  should  describe  the  character  and  nature  of 
the  trust,  and  with  his  application  he  should  file  an  authenti- 
cated record  of  his  appointment.  Having  made  the  proper 
application,  it  would  seem  that  the  Probate  Court  must  allow 

47  §  10598  G.  C.  application    was    made    to    have    a 

When  a  trustee  is  to  be  appointed  trustee  appointed;    and   the   statute 

under    a    foreign    will,    an   applica-  gives  a  discretion  in  the  requirement 

tion    should    be   filed    setting   forth  of  a  bond  being  filed  where  the  testa- 

the   facts   that   such   will   has   been  tor  dispenses  with  such  bond, 

filed    and    admitted   to    probate,    or  *»  §  10599  G.  C. 
record   in  the  countv  in  which  the 


1137  COURT    MAY    APPOINT  §  1271 

him  to  execute  the  trust.  But  before  such  foreign  trustee  can 
enter  upon  the  discharge  of  his  duties,  he  must  file  a  bond  in 
the  same  manner  as  a  home  trustee  would  be  required.  And 
having  filed  the  bond  it  would  follow  that  the  Court  should 
issue  to  him  letters  evidencing  his  appointment  as  trustee. 

§  1271.  Probate  Court  may  appoint  a  trustee  under  a  for- 
eign will.  "When  necessary,  the  probate  court  of  the  county 
where  the  property  affected  by  the  trust  is  situated,  on  appli- 
cation by  petition  of  the  party  or  parties  interested,  may  ap- 
point a  trustee  to  carry  into  effect  a  trust  created  by  a  foreign 
will;  which  trustee,  before  entering  upon  his  trust,  must  give 
bond,  with  such  security,  and  in  such  amount,  as  the  court 
directs."     [R.  S.  §  590O.>« 

§  1272.     Comments. 

It  would  seem  that  before  a  trustee  could  be  appointed 
under  the  above  section,  it  would  be  necessary  that  the  foreign 
will  should  have  been  admitted  to  record.  This  being  done,  it 
would  likewise  be  necessary  that  there  is  some  property  within 
the  county  in  which  the  application  was  made.  Then  if  it  is 
necessary  to  carry  out  the  trust,  some  party  in  interest  must 
file  an  application.  This  application  may  be  very  much  similar 
to  the  one  asking  the  appointment  of  a  home  trustee,*it  should 
set  out  the  fact  of  the  existence  of  the  foreign  will,  and  the 
fact  that  such  will  has  been  admitted  to  record  and  such  other 
facts  as  will  show  the  necessity  of  tlie  appointment  of  the 
trustee.  This  being  shown  and  bond  being  given  in  an  amount 
which  the  Court  shall  think  proper,  letters  of  trusteeship  should 
issue.  In  all  cases  it  is  advisable  that  the  trustee  appointed, 
be  a  resident  of  the  county  in  which  the  estate  is  located,  for 
then  jurisdiction  over  such  trustee  can  easily  be  exercised. 
There  may  be  cases,  however,  especially  under  a  foreign  will,  in 
which  it  would  be  much  better  for  the  trust  if  some  person  were 
appointed  who  is  familiar  with  matters  surrounding  the  testa- 
tor's domicile. 

49  §  10600  G.  C.  *  §  1255. 


^  1273  TRUSTEES   FOR  NON-EESIDENT  1138 


CHAPTER  LXVIIL 

TEUSTEES  FOR  NON-RESIDENT. 

§  1273  Introductory.  §  1280  When  and  to   whom   trustee 

§  1274  How   trustees   are  appointed  shall  pay  over  money, 

for  non-residents.  §  1281  Conmients. 

§  1275  When     appointment     to     be  §  1282  How    foreign   guardian,    etc., 
made.  may  collect  money. 

§  1276  Jurisdiction.  §  1283  Petition,  etc. 

§  1277   Bond  and  duties.  §  1284  Entry  and  notice. 

§  1278  Trustee    may    lease    or    sell  §  1285  Hearing,  etc. 

real   estate   as   guardian   of  §  1286  Trustee  may   loan  money  in 
minor.  certain  ease. 

§  1279  How  long  trustee  to  hold  of- 
fice. 

§  1273.     Introductory. 

In  addition  to  the  appointment  of  trustees  provided  for  by  a 
will  or  deed,^  the  statute  further  provides  that  trustees  may 
be  appointed  to  take  care  of  the  estate  of  a  non-resident.  Sees. 
11022  to  11024  of  the  General  Code  provide  for  the  ap- 
pointment of  tiTistees  of  non-residents  by  courts  of  record, 
when  it  is  shown  that  there  is  a  fund  in  a  proceeding  pending 
therein  which  belongs  to  such  non-resident  person.  These  sec- 
tions further  provide  that  tlie  trustee  shall  hold  such  funds  for 
five  years,  then  the  prosecuting  attorney  shall  collect  the  same 
and  turn  it  into  the  county  treasury.  A  trustee  of  such  a 
non-resident  could  not  very  often  be  appointed  by  the  Probate 
Court,  for  the  statute  makes  special  provision  for  direct  pay- 
ment into  the  county  treasury  by  an  administrator  or  executor 
when  an  amount  in  his  hands  remains  unclaimed." 

The  only  case  in .  which  a  Probate  Court  could  appoint  a 
trustee  of  a  non-resident  adult  not  an  imbecile,  would  be  in  a 

1  §  11035-7   n.   C.  heard  of  for  such  length  of  time  as 

2  See    §  10843    G.    C.  to  cause  the  heirs  at  law  to  believe 
Section  11028  G.  C.  provides  that       he  is  dead,  such  person  to  act  until 

the    probate    court    may    appoint    a       an  administrator  or  executor  of  his 
trustee  to  collect  and  preserve  prop-        heirs   is   appointed, 
erty  of  a   person   who  has  not  been 


1139  HOW  APPOINTED  §  1274 

proceeding  to  sell  real  estate.  The  subsequent  provisions  of 
this  chapter  relate  to  the  appointment  of  a  trustee  for  non- 
resident minors,  idiots,  imbeciles  and  lunatics,  and  the  laws 
generally  applicable  to  resident  minors  and  lunatics,  etc.,  may 
be  applied  in  carrying  into  execution  these  statutory  provi- 
sions.^ 

§  1274.  How  trustees  are  appointed  for  non-residents. 
"When  a  minor,  idiot,  lunatic  or  imbecile,  residing  out  of  this 
state,  has  real  estate,  goods,  chattels,  rights,  credits,  moneys,  or 
effects  in  this  state,  the  probate  court  of  the  county  where  such 
property  or  a  part  of  it  is  situated,  if  it  considers  this  neces- 
sary, may  appoint  a  trustee  of  such  minor,  idiot,  lunatic,  or 
imbecile,  to  manage,  collect,  lease,  and  take  care  of  his  prop- 
erty."    [R.  S.  §6320.]* 

§  1275.     When  appointment  to  be  made. 

The  first  necessary  condition  for  an  appointment  to  be  made 
for  a  non-resident  minor,  etc.,  is  the  fact  that  there  is  property 
within  the  county  where  the  Probate  Court  is  located  in  which 
it  is  sought  to  have  an  appointment  made.  Before  the  Court 
should  make  an  appointment,  an  application  should  be  filed ;  if 
the  person  be  a  minor,  reciting  the  same  facts  as  is  required  in 
the  appointment  of  a  resident  minor.  If  the  person  be  a  luna- 
tic or  imbecile,  the  same  proceeding  should  be  had  as  if  the 
imbecile  or  lunatic  was  a  resident  of  the  county.  Perhaps  if 
there  were  no  next  of  kin  within  the  county  upon  whom  service 
could  be  made,  the  Court  might  proceed  to  make  the  appoint- 
ment without  having  the  hearing,  provided  for  in  the  case  of 
resident  lunatics,  etc.  But  the  safe  and  better  course  to  pur- 
sue would  be  to  proceed  in  the  same  manner  as  if  the  lunatic 
was  a  resident,  and  have  a  proceeding  first  to  find  the  fact 
of  lunacy  and  tlien  proceed  with  the  appointment.  The  forms 
and  entries  used  in  cases  of  appointment  of  resident  minors, 
etc.,  may  be  used  imder  this  section.^ 

3  See   §  1218,   Ancillary  guardian.  s  §  1319  et  seq.     See  §  1322,  Eesi- 

See  §5  1319   to    1500   as  to  gclns.,  dent  of  county, 

for  minors,  etc.  Equity  will  not  let  a  trust  fail  for 

See    §  147.5   as   to   foreign   gdns.  want  of  technical  words  in  its  crea- 

Sce   §§  1351,   1480.  tion,  or  for  want  of  a  trustee.     Rob- 

*§  11014  G.  C.  bins  vs.  Smith,  27  0.  C.  C.  91;    12 

Lon.   D.    164. 


§  1276  TRUSTEES   FOR   NON-RESIDENT  1140 

§1276.  Jurisdiction.  "The  appointment  of  a  trustee,  first 
made,  shall  extend  to  all  the  property,  and  effects  of  the  minor, 
idiot,  lunatic,  or  imbecile  in  this  state,  and  exclude  the  jurisdic- 
tion of  the  probate  court  of  any  other  county."     [R.  S.  §  6321.]^ 

§1277.  Bond  and  duties,  "The  trustee  shall  give  bond, 
payable  to  the  state,  with  such  sureties,  and  in  such  sum,  not 
less  than  double  the  value  of  all  the  property  that  will  prob- 
ably come  into  his  hands,  as  the  court  approves,  and  take  upon 
himself  the  care  and  management  of  tlie  property  of  such  minor, 
idiot,  lunatic,  or  imbecile,  situated  in  this  state,  the  collection 
of  debts  and  other  demands  due  such  mJnor,  idiot,  lunatic,  or 
imbecile,  from  persons  residing  or  being  in  this  state.  He  shall 
settle  AA^ith  the  court,  and  be  liable  to  suit  or  removal  for  neg- 
lect or  misconduct  in  the  perfomiance  of  his  duties,  as  provided 
by  law  in  respect  to  guardians  of  minors,  and  for  the  settlement 
of  the  accounts  of  trustees.  Such  surety  or  sureties  may  be 
discharged  in  the  manner  provided  by  law  for  the  release  of 
sureties  of  guardians."     [R.  S.  §6322.]^ 

§  1278.  Trustee  may  lease  or  sell  real  estate  the  same  as 
guardian  of  minor.  "Tlie  trustee  may  lease  or  sell  the  real 
estate  of  such  minor,  idiot,  lunatic,  or  imbecile,  under  the  rules 
and  limitations  provided  by  law  for  the  sale  of  real  estate  by 
guardians  of  minors  in  this  state."     [R.  S.  §  6323.] » 

§1279.  How  long  trustee  to  hold  office.  "Unless  removed 
by  the  court,  the  trustee  shall  hold  his  appointment  until  such 
minor  arrives  at  the  age  of  majority,  whether  or  not  such  minor 
be  under  twelve 'or  over  fourteen  years  of  age  at  the  time  of 
appointment,  or  until  the  disability  of  such  idiot,  lunatic  or 
imbecile  is  removed,  or  the  minor,  idiot,  imbecile,  or  lunatic 
dies."     [R.  S.  §  6324.]^ 

6  §  11015  G.  C.  C,  §  1300,  in  the  next  chapter,  pro- 

This  section  seems  to  be  a  matter  vides  for  the  removal  of  such  trus- 

of   surplusage  for   a  general   pro%i-  tee. 

sion  of  the  R.  S.  makes  a  like  provi-  «  §  iioi7     G.     C.       See     §§  10961, 

sion.     §  10498  G.  C,  §  27.  11017  G.  C.,  §  1432,  Power  to  lease; 

7§  IIOIG  G.  C.  §§  10994-5-6   G.   C.,'  §  1522,   Sale  by 

The  bond  and  letters  used  in  the  guardian;   §  10946  G.  C.,  §  1410,  for 

previous  chapter   can   easily   be   ap-  lease  and   sale  of  real   estate. 

plied  to  suit  an  appointment  under  9  §  11018  G.  C. 

the  above   section.      §§  11035-G-7   G. 


1141  MONEY   PAID    TO    WHOM  §  1280 

§  1280.  When  and  to  whom  trustee  shall  pay  over  money. 
"All  moneys  due  to  such  minor,  idiot,  lunatic,  or  imbecile,  in 
the  hands  of  such  trustee,  during  the  minority  of  such  minor, 
or  the  disability  of  such  idiot,  lunatic  or  imbecile,  shall  be  paid 
over  to  his  foreign  guardian,  so  far  as  necessary  or  proper  for 
his  support  and  maintenance,  or  in  case  of  his  decease,  to  his 
administrator  or  other  legal  representative ;  if  the  court  which 
appointed  such  trustee  has  satisfactory  proof,  as  hereinafter 
provided,  of  the  authority  of  such  guardian,  administrator,  or 
other  legal  representative,  to  receive  the  moneys  or  estates  of 
such  minor,  idiot,  lunatic  or  imbecile,  and  that  the  security 
given  by  such  guardian,  administrator,  or  other  legal  representa- 
tive, is  sufficient  to  protect  his  interest  or  estate,  and  deems  it 
best  for  him,  or  his  estate."     [R.  S.  §  6325.] ^^ 

§  1281.     Comments. 

The  provisions  of  this  section  when  read  with  the  previous 
one  would  seem  to  indicate  a  purpose  on  the  part  of  the  Legis- 
lature not  to  permit  a  trusteei  when  once  appointed  to  pay 
over  the  entire  fund  to  a  foreign  trustee^,  but  only  so  much 
thereof  as  might  be  necessary  for  the  maintenance  and  support 
of  the  non-resident  minor,  etc.,  and  even  in  such  eases,  the 
Court  which  appointed  the  trustee  must  have  satisfactory  proof 
that  such  foreign  guardian,  etc.,  or  where  the  non-resident 
minor,  etc.,  has  died,  his  administrator,  is  entitled  to  receive  the 
money  and  the  Court  must  be  further  satisfied  that  the  foreign 
guardian  or  administrator  has  given  sufficient  bond  in  such 
jurisdiction  to  protect  the  interest  of  such  minor.  Before  such 
local  trustee  pays  over  any  money  to  a  foreign  representative, 
an  application  therefor  should  be  made  as  provided  in  the  next 
section. 


Notwithstanding  the  provisions  of  or  until  the  disability  of  such  idiot, 

the    subsequent    sections,    it    is   evi-  etc.,    is   removed, 

dently  the  intention  of  the  legisla-  lo  §  11019  G.  C. 

ture  that  having  once  appointed   a  See     kindred     section,      §§  11940, 

trustee,    that    such    trustee    should  11944  G.  C,  §  1480,  §  1476. 
hold  until  the  minor  becomes  of  age 


§  1282  TRUSTEES  FOR  NON-RESIDENT  1142 

§  1282.     How   foreign   guardian,    etc.,   may   collect   money. 

"When  a  foreign  guardian,  administrator,  or  other  legal  rep- 
resentative of  such  minor,  idiot,  lunatic,  or  imbecile,  applies  to 
have  nil  or  any  of  the  moneys  or  property  in  the  hands  of  such 
trustee  paid  or  delivered  to  him,  he  must  file  his  petition,  or 
motion,  to  that  effect,  in  the  court  by  which  such  trustee  was 
appointed,  giving  such  trustee  thirty  days'  notice  of  the  time 
of  hearing  thereon,  and  also  produce  an  exemplification  from 
under  the  seal  of  the  office,  if  there  be  a  seal,  of  the  proper 
court  of  the  state  of  his  residence,  containing  all  the  entries  on 
record  in  relation  to  his  appointment  and  qualification,  au- 
thenticated as  required  by  the  act  of  Congress  in  such  cases. 
Upon  the  hearing  thereof,  the  court  shall  make  such  order,  as, 
under  the  circumstances  it  deems  for  the  best  interests  of  such 
minor,  idiot,  lunatic,  or  imbecile,  or  his  estate."  [R.  S. 
§6326.]^^ 


§  1^83.     Petition,  etc. 

It  is  necessaiy  that  the  foreign  guardian  or  administrator 
file  his  petition  and  this  must  be  done  in  the  Court  in  which 
the  local  trustee  was  appointed.  This  petition  may  be  in  the 
f olloAving  form : 

(Title.) 

Now  comes  A.  B.  and  represents  to  the  Court  that  on  the day  of 

he  was  duly  appointed  by  a  Court  having  proper  juris- 
diction of  the  same,  situate  at in  the  State  of 

,  as  guardian  of  E.  F.,  an  alleged  imbecile,  and  that  he  is  still 

acting  in  that  capacity.     He  further  represents  to  the  Court  that  on  the 

day  of ,  one  G.  H.  was  appointed  by  this  Probate 

Court  as  a  trustee  under  the  provisions  of  the  General  Code  for  property 
belonging  to  the  said  E.  F.,  situate  in  this  county. 

He  further  represents  to  the  Court  that  it  is  necessary  for  the  support 
and  maintenance  of  the  said  E.  F.,  that  the  property  now  in  the  hands 
of  the  said  G.  H.  be  paid  over  to  him.  He  further  represents  to  the  Court 
that  he  has  attached  hereto  and  marked  "exhibit  A,"  an  exemplification 
under  the  seal  of  the  office  of  the  Court,  wherein  he  received  his  appoint- 
ment, containing  all  the  entries  on  record  in  relation  to  his  appointment, 

which  shows  that  he  has  given  bond  in  the   sum  of   

dollars,  which  facts  are  authenticated,  as  required  by  the  Act  of  Congress 
in  such  cases. 

He    further  _  represents  that  the  laws  of  the  State  of    ,   in 

which  he  received  his  appointment,  have  made  a  similar   provision  to  the 
laws  of  Ohio,  aa  to  the  payment  of  funds  to  a  foreign  guardian  or  trustee. 

11  §  11020  G.  C. 


1143  NOTICE,  ETC.  §  1284 

Wherefore  he  asks  that  notice  of  the  filing  of  this  petition  be  given  to 
G.  H.,  at  least  thirty  days  before  the  time  of  hearing  the  same,  and  upon  the 
hearing  of  this  application,  it  may  be  ordered  that  the  said  G.  H.  shall 
deliver  to  the  undersigned  the  funds  in  his  possession  belonging  to  the 
said  E.  F.,  an  alleged  imbecile. 


Sworn    to    before    me    and    subscribed    in    my    presence    this day 

of ,  190.. 

§  1284.     Entry  and  notice. 

Upon  the  above  application  being  filed  in  the  Probate  Court, 
the  Court  should  make  an  entiy  setting  the  matter  dowm  for 
hearing  and  ordering  that  at  least  thirty  days'  notice  thereof 
be  given  to  tlie  local  trustee.  The  entry  may  be  in  the  fol- 
lowing form: 

{Title.) 

This  day  came  A.  B.  and  filed  herein  his  petition  that  G.  H.,  trustee  of 
E.  F.,  an  alleged  imbecile  and  a  non-resident  of  this  State,  be  required  to 
transfer  to  the  said  A.  B.  as  guardian  of  said  E.  F.,  appointed  within  the 
jurisdiction  of  the  domicile  of  E.  F.,  the  funds  now  in  the  possession  of  the 
said  G.  H. 

Whereupon  it  is  ordered  that  the  said  cause  be  set  down  for  hearing  on 

the day  of ,  190.  .,  at  least  thirty  days'  notice  of  the 

filing  of  the  said  petition,  and  the  time  of  hearing  thereof  be  given  to  said 
G.  H. 

The  following  may  be  used  as  form  of  notice'  to  the  trus- 
tee  (guardian),   etc.: 

(Title.) 

To  G.  H.,  Trustee  (guardian)  of  E.  F.: 

You  are  hereby  notified  that  on  the day  of ,  A. 

B.,  guardian  of  said  E.  F.,.  appointed  within  the  jurisdiction  of  the  domicile 
of  said  E.  F.,  has  made  application  to  this  Court  to  have  the  funds  now  in 
your  hands  turned  over  to  him  as  such  guardian.     Said  cause  has  been  set 

for  hearing  on  the day  of ,  at  which  time  you  are 

ordered  to  be  present  and  answer  concerning  said  application  and  whether 
the  interest  of  your  said  ward  will  justify  the  removal  of  the  funds  now 
in  your  possession. 

§  1285.     Hearing,  etc. 

The  Court  being  satisfied  that  the  local  tnistee  has  due  and 
proper  notice,  a  careful  investigation  should  be  made  of  the 
allegation  of  the  petition  in  reference  to  the  fact  whether  it 
would  be  for  the  best  interest  of  the  non-resident  imbecile  to 


§  1286  TRUSTEES  FOR  NON-RESIDENT  1144 

have  the  fund  transferred  beyond  the  jurisdiction  of  this  Court. 
The  Court  should  be  exceedingly  careful  to  ascertain  that  the 
proceedings  show  that  the  foreign  guardian  has  given  ample 
bond,  and  the  Court  should  further  investigate  whether  such 
foreigni  representative  is  a  proper  and  suitable  person  to  have 
charge  of  the  fund.  If  the  Court  is  not  satisfied  that  the 
best  interests  of  the  non-resident  imbecile,  minor,  etc.,  will  be 
better  subserved  by  the  transferring  of  the  fund  than  its 
remaining,  the  application  should  be  refused.^^ 

FORIVI  OF  JOURNAL  ENTRY. 
{Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B., 
a  guardian  of  E.  F.,  residing  within  the  jurisdiction  of  the  residence  of  the 
said  E.  F.,  for  an  order  of  this  court,  requiring  G.  H.,  the  trustee  (or 
guardian)  of  said  E.  F.  appointed  by  this  Court;  and  was  submitted  to 
this  Court  upon  the  pleadings  and  testimony.  Whereupon  the  Court  finds, 
after  due  consideration,  that  G.  H.  has  had  due  and  legal  notice  of  the 
pendency  of  this  proceedings  and  the  prayer  thereof  as  required  by  law  and 
the  former  orders  of  this  Court.  That  the  allegations  of  the  petition  are 
true  and  that  the  said  A.  B.  has  filed  in  this  Court  an  exemplification  from 
under  the  seal  of  the  office  of  the  Probate  Court  of  the  State  of  his  residence, 
containing  all  the  entries  recorded  in  relation  to  his  appointment. 

The  Court  further  finds  that  the  bond  given  in  the  Court  which  made 
the  appointment  of  said  A.  B.  is  ample  to  cover  the  fund  to  be  received  in 
this  proceeding,  and  that  the  laws  of  the  State  in  which  said  A.  B.  received 
his  appointment  contain  similar  provisions  to  the  law  of  this  State  referring 
to  the  transfer  of  such  fund;  and  the  Court  being  further  satisfied  that 
under  all  the  circumstances  it  will  be  for  the  best  interest  of  said  ward  and 

of  his  estate,   it  is  hereby   ordered  that  G.   H.,   within days   file  his 

account  in  this  Coiirt  and  that  upon  the  final  hearing  of  said  account  he 
transfer  the  fund  in  his  hands  to  the  said  A.  B. 

§  1286.  Trustee  may  loan  money  in  certain  case.  ' '  "When 
money  of  such  minor,  idiot,  lunatic,  or  imbecile  is  in  the  hands 
of  such  trustee,  and  not  likely  to  be  needed  for  the  support  and 
education  of  such  minor,  idiot,  lunatic,  or  imbecile,  such  trustee 
shall  loan  it  in  the  manner  guardians  by  the  laws  of  this  state 
are  required  to  loan  the  moneys  of  their  wards."  [R.  S. 
§6327.]" 

12  §§10941-2   G.   C,    §1477.  i3§11021G.  C. 

A  foreign  guardian  ineligible  to  See  §  10933  G.  C,  as  to  the  man- 
appointment  in  Ohio  will  not  be  per-  ner  guardians  should  loan  money, 
mittfd  to  collect  money  due  a  ward  §  1367,  §  574,  and  §  11214  G.  C.  as  to 
in  this  State.                        '  how  trustee  should  loan  money. 


114:5  TRUSTEE DUTIES  §1287 


CHAPTER   LXIX. 

TRUSTEE.    DUTIES.     ACCOUNTING,  ETC. 

§  1287  Duties  of  trustee.  §  1297  Appeal    from     determination 

§  1288  Principal  and  income.  of   Probate  Court. 

§  1289  Dividends  §  ^^^^  Force  and  effect  of  determin- 

§  1290  Gain   and   loss.  g  1299  Allowance  of  compensation. 

§  1291  Alteration  and  repairs.  §  1300  Wlien  Court  may  accept  res- 

6  1292  Expenses.        Taxes.        Insur-  ignation    of    trustee    or    re- 

ance  *  ™°^'^   '''™- 

„  ,^  „  1,       ,  ,        ,  .  §  1300a  When   trustee   under  a   will 

§  1293  Trustees    must    render    bien-  jj^.^y  jjg  removed. 

nial   account.  §  1300b  Trustee  to  be  removed  when 
§  1294  Citations  and  notices.  guardian    appointed. 

§  1295  Probate   Coun.  to   determine  §  J^Ol  Removal  of  trustee,  etc. 

.  §  1302  Causes   for   removal. 

as  to  execution  of  trust.  §  13Q3  distribution   of   fund. 

§  1296  Comments.  §  1304  Termination  of   trust. 

§  1287.     Duties  of  trustee. 

As  executors,  administrators,  and  guardians  are  trustees  in 
the  general  sense  of  the  tenu,  various  duties  and  liabilities 
of  testamentarv  trustees  and  trustees  for  non-residents  are 
discussed  in  this  work  when  treating  of  administrators,  execu- 
tors, and  guardians.  A  testamentary  trustee  must  be  controlled 
largely  by  the  instrument  creating  the  trust,  and  in  this  re- 
spect is  very  much  similar  to  an  executor,^  except  that  it  is 
the  duty  of  an  executor,  strictly  speaking,  not  to  hold  and 
manage  the  estate,  but  to  convert  it  into  money  and  make  dis- 
tribution, where  an  executor  or  a  trustee  is  to  hold  and  manage 
the  estate,  the  general  rules  and  liabilities  applicable  to  guard- 
ians would  be  applicable  to  them,  and  such  matters  will  be 
discussed  when  treating  of  the  subject  of  guardians.^ 

1  See  §  516,  as  to  discussion  of  executor  and  administrator.  §  1378, 
care  and    management   of   assets  by       as   to   guardian. 

2  See    §  1378. 


§  1287        TRUSTEE DUTIES  ACCOUNTING  1146 

It  might  not  be  amiss  here  to  state  a  few  general  principles 
applicable  to  trustees  in  the  performance  of  their  duties.  The 
trustee  is  liable  for  his  errors  in  judgment  (unless  expressly 
exempted)  in  the  performance  of  his  duties,  but  not  in  the 
exercise  of  his  discretionary  powers.^  He  is  held  to  perform 
his  duties  with  reasonable  discretion,  that  is  to  say,  with  the 
same  intelligence  that  a  reasonable  man  would  use  in  the 
transaction  of  his  own  affairs;  the  fact  that  he  is  incompetent 
is  no  excuse.     He  must  be  at  the  pains  to  learn  his  duties.* 

For  instance,  it  being  the  duty  of  the  trustee  to  invest  the 
trust  funds,  if  he  invests  too  large  a  proportion  in  certain 
securities  or  if  he  uses  poor  judgment  in  investing,  he  will  be 
liable  for  the  loss,  irrespective  of  his  honesty.  But  he  is  not 
supposed  to  be  infallible,  and  where  he  has  acted  with  that 
amount  of  discretion  which  sax  ordinarily  prudent  man  uses 
in  his  own  affairs,^  and  honestly,  he  will  be  protected ;  and 
even  where  he  has  acted  in  good  faith  only  the  Court  will 
treat  him  leniently,  and  give  him  the  benefit  of  the  doubt,^ 
especially  if  he  is  acting  under  advice  of  counsel,^  since  this 
fact  shows  that  he  used  due  diligence,  though  it  is  not  in  itself 
an  excuse.^ 

And  some  other  matters  are  equally  well  settled,  that  he 
can  not  do.  He  cannot  deal  "with  the  estate  for  his  own  profit, 
or  for  any  purpose  unconnected  with  the  trust.  All  his  skill 
and  labor  must  be  directed  to  the  advancements  of  the  interests 
of  his  beneficiaries.**  He  may  take  no  benefit  directly  or  in- 
directly from  the  estate  or  his  office,  except  the  regular  compen- 
sation allowed  b}^  law,  and  if  he  take  a  present  or  be  paid  a 

3  Miller  va  Proctor,  20  0.  S.  442.  >  Perrine   vs.    Vreeland,    33    N.    J. 

4  Hun  vs.  Gary,  82  N.  Y.  65.     In       Eq.  102. 

Pierce  vs.  Prescott,  128  Mass.  140,  a  s  Gilbert  vs.  Sutliff,  3  0.  S.   129; 

guardian    was    held    liable    for    not  Stott  vs.  Milne,  25  Ch.  D.  710;  Boul- 

knowing    the    law    of    distribution.  ton  vs.  Beard,  3  De  G.,  M.  &  G.  608 ; 

C.  J.  Graj'  cites  many  other  cases  in  in  re  Westerfield,  32  App.  Div.    (N. 

the  opinion.  Y.)     324.      Loring   Trustee's    Hand- 

s/n  re  Cousin's  Estate,   111   Cal.  book,  126. 
*^1-  9  Arnold  vs.   Brown,   24   Pick,   89, 

Wells  vs.  Brancher,  79  0.  S.  289.  m. 

8  Crabb  vs.  Young,  92  N.  Y.  56. 


1147 


PRINCIPAL  AND  INCOME 


§1288 


bonus  or  commission  of  any  kind  in  a  trust  transaction  by  a 
stranger,  he  must  account  to  the  trust  for  it.^" 

He  cannot  set  off  his  own  debts  in  equity  against  one  who 
sues  him  as  trustee.  He  cannot  use  the  real  estate  or  chattels, 
or  pledge  any  of  the  property,  as  security  for  his  debts.  Nor 
can  he  purchase  them  directly  or  indirectly  at  public  or  private 
sale,^^  except  by  arrangement  with  all  the  beneficiaries,  or 
under  leave  of  Court,^^  or  at  a  judicial  sale  which  he  does  not 
control  in  any  manner.^^  It  is  immaterial  tliat  the  price  paid 
is  a  fair  one.  The  transaction  is  a  breach  of  trust,  and  may  be 
set  aside  by  the  beneficiary,^^*  but  no  stranger  to  the  estate  can 
question  the  transaction.^* 

§  1288.     Principal  and  income. 

The  duties  of  an  ordinary  trustee  are  different  from  either 
an  administrator  or  guardian  in  this,  that  the  trustee  holds  the 
property,  the  income  of  which  usually  is  to  go  to  one  person, 
and  the  principal  to  another ;  it  therefore  becomes  very  impor- 
tant for  the  trustee  not  to  intrench  upon  either  fund  for  the 
benefit  of  the  other.  If  he  wrongfully  pays  principal  to  the 
life  tenant,  and  the  life  tenant  would  l)ecome  insolvent,  the 
trustee  would  be  sure  to  suffer  a  loss,  for  he  must  account  to 
the  remaindermen  for  the  entire  principal  notwithstanding  he 


10  "  This  principle  has  been  pushed 
to  a  vigorous  extent  in  our  own 
Courts."  Chief  Justice  Lane,  in 
Dunlap  vs.  Mitchell,  10  O.  117,  120 

Welsh  vs.  Perkins,  8  0.  52;  Arm 
strong  vs.    Nuston,    8    O.    552,    554 
Glass    vs.    Greathouse,    20    0.    503 
Sheldon   vs.   Newton,    3   0.    S.   494 
Barrington    vs.    Alexander,    6   O.    S 
189;   Kiddle  vs.  Koll,  24  O.  S.  572 
Piatt  vs.  Longworth,  27  0.  S.   159 
Rammelsberg  vs.  Mitchell,  29  0.  S 
22;  Beard  vs.  Westerman,  32  0.  S 
29      See  also   Perry  on   Trusts,    §§ 
602v,   602w,    194-210,    787;    3   Redf. 
on  Wills,  534;  2  Kent's  Com.  433,  n 
(c)  ;  Tyler  on  Inf.  and  Cov.  §  175. 


11  Hoyt  vs.  Latham,  143  U.  S.  553; 
Morse  vs.  Hill,  136  Mass.  60;  Amer. 
&  Eng.  Ency.  Law,  vol  27,  p.  197. 

See  §  492,  Purchase  by  adminis- 
trator. 

12  Morse  vs.  Hill,  136  Mass.  60, 
67. 

13  Allen  vs.  Gillette.  127  U.  S.  589. 
13*  Denholm  vs.  McKay,  148  Mass. 

434 ;  Davoue  vs.  Fanning,  2  Johns 
Ch.  (N.  Y.)  252;  Quirk  vs.  Liebert, 
12  App.  D.  C.  394. 

1*  Harrington  vs.  Brown,  5  Pick. 
519.  See  §  515,  Administrator's  care 
of  estate;  3  1361,  Guardian's  rela- 
tion to  his  trust;  §  1603,  Diligence 
required  of  assignee. 


§  1.288  TRUSTEE DUTIES  ACCOUNTING,  ETC.  1148 

may  have  innocently  paid  some  of  it  to  the  wrong  person.  In 
general,  at  the  time  the  estate  comes  into  the  trustee's  hands,  it 
is  all  principal  in  whatever  condition  it  may  happen  to  be, 
and  all  the  yearly  increase  thereafter  is  income.  This  would 
ahv:iys  be  true  where  the  property  comes  into  the  trustee's 
hands  without  delay  and  invested  in  proper  securities,  but  if 
there  is  a  deferred  receipt  of  the  principal,  the  rule  might  be 
different.  Thus  where  for  any  reason  the  property  does  not 
come  into  the  hands  of  the  trustee  for  some  time  after  the 
beginning  of  the  trust,  and  in  the  meanwhile  the  life  tenant 
has  no  benefit  from  it,  the  fund  when  realized  must  be  so  appor- 
tioned that  the  life  tenant  will  get  the  usual  rate  of  interest 
from  the  beginning  of  the  trust,  and  the  remainder  will  be  the 
principal  fund.^^ 

Thi*  may  be  the  case  where  the  amount  of  a  legacy  or  other 
fund  is  not  immediately  received  or  not  received  in  full,^" 
or  where  the  property  being  an  unsuitable  investment  is  sold  for 
conversion  at  an  interval  after  the  trust  went  into  effect. 

The  rule  is  the  same  whether  the  property  is  to  be  converted 
because  it  is  unproductive  or  because  the  earnings  are  greatly 
in  excess  of  interest,  as  in  the  case  of  a  business  or  partner- 
ship, or  on  a  wasting  investment  such  as  a  land  stock  where  the 
dividends  will  ultimately  exhaust  the  security.  In  either  case 
the  rule  is  the  same,  namely,  that  sum  is  to  be  found  which 
at  the  current  rate  of  interest  for  the  period  from  the  begin- 
ning of  the  trust  to  the  time  of  conversion  will  yield  the  amount 
realized.  The  sum  so  ascertained  is  the  principal,  and  the 
interest  is  the  income  payable  to  the  immediate  beneficiary.^^ 

15  Kinmonth  vs.  Brighani,  5  Allen  tate  was  $30,000,  and  the  whole 
270;  Hagan  vs.  Piatt,  48  N.  J.  Eq.  amount  recovered  after  one  year  and 
206;  Westcott  vs.  Nickerson,  120  two  months  was  $26,000.  The  ten- 
Mass.  410.     See  §  943,  Dower.  ant  for  life  got  $1,742.50,  which  is 

If  Cox  vs.  Cox,  L.  R.,  8  Eq.  343.  the  interest  at  six  per  cent,  on  $24,- 

17  Ix)ring's     Trustee's     Handbook,  257.50,  the  new  capital  for  one  year 

105.  and  two  months.    Parsons  vs.  Wins- 

For   instance,   in  a  case  where  a  low,    16    Mass.    361;    Maclaren    vs. 

trustee  who  had  wasted  the  estate  Stainton,  L.  R.,  11  Eq.  382;  Meldon 

was  removed  and  only  part  of  the  vs.   Devlin,    31    App.   Div.    146    (N. 

estate  was  recovered  by  his  succes-  Y.)  ;  Greene  vs.  Greene,  19  R.  I.  619, 
sor,  the  amount  of  the  original  es- 


1149  DIVIDENDS  §  1289 

Where  the  amount  recovered  is  damages  for  an  injury  it  ^ 
need  not  be  apportioned,  as  the  fund  invested  will  yield  an 
income.'^* 

§  1289.     Dividends. 

The  fluctuating  character  and  the  various  methods  pursued 
in  declaring  dividends  makes  it  often  a  difficult,  question  to 
determine  whether  they  belong  to  the  principal  or  are  income. 
All  ordinary  dividends  declared  during  the  life  tenancy  as  a 
general  rule  may  be  considered  as  income  and  not  as  principal, 
and  this  is  irrespective  of  the  time  when  the  funds  were  earned 
out  of  which  the  dividends  are  declared.^® 

No  part  of  the  company's  property  belongs  to  a  stockholder 
until  it  is  separated  and  declared  as  a  dividend ;  hence  a  divi- 
dend is  an  independent  debt  payable  to  the  stockholders  of  a 
certain  day,  and  remains  principal  until  separated  from  the 
other  funds  and  declared  payable  to  the  stockholders,^"  and 
therefore  is  never  apportionable,  and  is  always  payable,  no 
matter  when  paid,  to  the  person  entitled  to  the  same  at  the 
time  ^^  specified  in  the  vote.  As  to  extra  dividends,  the  law 
is  not  uniform  in  all  jurisdictions  as  to  whom  they  belong.^^ 
The  early  English  rule  was  that  the  extra  dividends  or  additions 
to  the  usual  annual  dividend,  whether  paid  in  cash  or  in  capital 
stock  went  to  the  principal.^' 

But  it  seems  to  be  now  generally  held  that  cash  dividends, 
extra  dividends,  or  bonuses  declared  from  the  earnings  of 
corporations  are  income  and  not  principal.^*     But  the  enhanced 

18  Heard  vs.  Eldredee,,  109  Mass.  Co.,  14  Gray  274;  Kite's  Devises 
-_„  ^  vs.  Kite's  Exrs.,  93  Ky.  257.  See 
^^^-                                     ^             ^    ,,        Lang   vs.   Lang   Ex.,   57    N.   J.    Eq. 

18*  See  Fritter  vs.  Withoff,  47  Bull.       325^    where    dividends    are    appor- 

787,  where  annuity  was  held  to  bear       tioned  like  interest. 

^^g  logg  22Underhill  on  Trust,  226;  Perry 

„     „         T-i  f    T on  Trust,  §  545'. 

19  5   Am.   &   Eng.    Ency.   of   Law,  ^3  ^  ^^  ^  ^^^  ^^^^  ^^  Law,  736. 

736.  24  See  authorities  cited  in  5  Am. 

20  Granger  vs.  Bassett,  98  Mass.  &  Eng.  Ency.  of  Law,  737.  The 
462-    Bates  vs.  McKinley,  31   Beav.       article  thereon  being  a  contribution 

by  the  author. 
280.  See  Barbour  vs.  Gallagher,  23  O. 

21  Clive  vs.  Olive,  Kay,  600.  Con-  q  c.  (N.S.)  490;  2  O.  App.  205. 
tra,   Johnson   vs.   Bridgewater   Mfg.       Distribution   of   accumulations. 


I 


§'1290  TRUSTEE DUTIES ACCOUNTING  1150 

pric^-  for  which  stock  sells  by  reason  of  dividends  earned  but  not 
declared  belong  to  the  principal." 

§  1290.     Gain  and  loss. 

It  is  likewise  important  for  a  trustee  to  know  where  there 
are  gains  and  losses  whether  the  same  should  be  paid  by  the 
life  tenant  or  the  remainderman.  The  general  rule  is  that,  any 
gain  other  than  the  usual  yearly  income,  and  any  loss  other 
than  the  usual  yearly  charges,  fall  to  the  principal  of  the 
ixmdr" 

Gain  or  loss  in  continuing  a  business  temporarily  until  it  is 
converted  is  to  be  apportioned,^'  but  where  the  business  is 
conducted  under  direction  of  the  trust  instrument,  ordinarily 
all  tlie  income  will  go  to  the  life  beneficiary.  When  a  trust 
estate  consists  of  country  real  estate,  timber  cut  for  thinning 
will  be  income,  other  timber,  principal,  and  it  has  been  held 
that  gravel  sold  will  be  income,  but  probably  not  to  such  an 
extent  as  to  be  waste.  If  the  property  in  trust  consists  of 
chattels,  which  are  intended  to  be  used  and  not  converted  into 
cash  and  invested,  the  life  tenant  may  wear  them  out  in  ordi- 
nary use,  and  need  not  replace  them."® 

If  the  property  consists  of  farming  stock,  it  should  be 
converted,  unless  intended  to  be  used  by  the  life  tenant.  The 
life  tenant  cannot  sell  it  and  replace  it  by  other  kinds  of 
?tock,  but  he  may  use  it  up,  and  need  not  replace  it,  when  it 
dies.  The  natural  increase  of  the  stock  will  belong  to  the 
life  tenant.^®  Where,  however,  the  stock  is  left  with  a  farm, 
and  there  is  an  intention  expressed  or  implied  that  the  farm 
shall  be  kept  up,  so  much  of  the  increase  as  is  necessary  to  keep 
up  the  herd  will  belong  to  the  principal,  and  only  the  excess 
to  income.^" 

25  See  §  374,  Annuities  and  divi-  29  Saunders  a-s.  Haughton,  8  Ired. 
dends;  §  1378,  Management  of  estate  Eq.  217;  Lewis  vs.  Davis,  3  Mo.  133; 
by  guardian.                                                  Major    vs.    Herndon.    78    Ky.    123; 

26  Loring  Trustee's  Handbook,  106.  Hunt      vs.      Watkins,      1      Humph. 
See  47  Bull.  787.  (Tenn.)   498. 

27  Underbill  on  Trust,  250.  3o  Calhoun  vs.   Furgeson,   3   Rich. 
28Wootten  vs.  Burch,  2  Md.  Cb.  Eq.    160;    Robertson    vs.    Collier,    1 

190;   Woods  vs.   Sullivan,  1   Swan's       Hill  Eq.  370  (S.  C).    But  see  Plow- 
^^^-  ers  vs.  Franklin.  5  Watts  (Pa.)  265. 


1151  ALTERATIONS  AND  KEPAIRS  §  1291 

§  1291.     Alterations  and  repairs. 

Alterations  and  additions  to  real  estate  whereby  usefulness 
or  rental  value  is  increased  are  chargeable  to  principal,^^  but 
the  repairs  or  expenditures  which  are  necessary  to  maintain  the 
property  in  proper  condition  are  chargeable  to  income.^'^  It  is 
often  a  difficult  question  of  fact  tO'  decide  whether  a  specified 
expenditure  is  an  addition  tO'  the  property  or  a  current  repair ; 
but  the  rule  may  be  stated  that,  where  repairs  improve  the 
property  to  tlie  extent  of  their  cost,  they  are'  chargeable  to 
principal,  and  are  a  judicious  investment  of  the  trust  funds.^^ 

For  instance,  the  addition  of  an  elevator  to  a  building  which 
previously  had  none  will  be  charged  to  principal,  while  putting 
in  a  new  elevator  in  the  place  of  an  old  one  will  be  a  repair 
chargeable  to  income,  but  generally  such  an  addition  could 
only  be  made  by  permission  of  Court^^*  So  also  an  expendi- 
ture may  be  in  the  nature  of  both  an  addition  and  a  repair,  and 
is  then  chargeable  to  principal  only  to  the  extent  to  which  it 
benefits  the  property ;  and  in  some  States  ^^  there  are  statutes 
allowing  an  apportionment  in  such  cases.  And  in  any  case  of 
doubt,  it  is  well  to  get  the  instructions  of  the  Court  before 
undertaking  an  expensive  job,  which,  if  charged  wholly  to  the 
income,  might  be  very  burdensome.^'' 

All  expenditures  on  newly  acquired  property  which  are  nec- 
essary to  put  it  in  condition  to  let  or  to  hold,  whether  they  are 
in  the  nature  of  repairs  oj*  additions  are  chargeable  to  prin- 
cipal.. For  instance,  fencing  in  land  or  repairing  a  house  to 
obtain  a  tenant.  These  expenses,  although  chargeable  to  in- 
come at  other  times,  on  the  acquisition  of  a  new  estate  will  be 
considered  as  so  much  additional  purchase  money,  and  charge- 
able to  principal.^^  All  ordinaiy  current  expenses  are  charged 
to  income.     Shaw,  C.  J.,  says  income  means  net  income  after 

Life  tenant  was   to  keep  up   farm;  33  Sophier  vs.  Eldredge,  103  Mass. 

increase   held    to   go   to   remainder-  345. 

man.  3<  Little  vs.  Little,  161  Mass.  188. 

31  Sophier  vs.  Eldredge,  103  Mass.  35  Penn. 

345 ;    Caldecott   vs.   Brown,    2   Hare  36  Caldecott    vs.    Brown,    2    Hare 

144.  144. 

82  Underbill  on  Trust,  250.  37  Parsons  vs.  Winslow,   16  Mass. 


§  1292        TRUSTEE DUTIES ACCOUNTING  1152 

deducting  taxes,  repairs,  and  ordinary  current  expenses,^®  and 
in  some  jurisdictions  the  premiums  paid  for  securities.^" 

§  1292.     Expenses.     Taxes.     Insurance. 

As  a  general  rule  all  expenses  for  managing  the  trust  prop- 
erty are  charged  to  income.  Extra  charges  which  are  beneficial 
to  the  principal  fund  should  be  charged  to  the  principal  or  it 
may  be  apportioned  equitably.*" 

Legal  expenses  of  settling  the  interpretation  of  the  trust  in- 
strument are  to  be  borne  by  the  principal.  But  the  reappoint- 
ment of  trustee  should  be  charged  1x)  the  income.  All  annual 
taxes  are  charged  to  the  income.*^  An  exception  to  this  rule  is 
made  in  some  cases  where  the  property  is  vacant  land.*' 

In  case  of  special  assessments,  our  statute  provides  that 
they  may  be  apportioned  between  the  life  tenant  and  remain- 
derman.*^ Carefully  drawn  trust  instruments  usually  provide 
that  property  should  be  insured  and  chargeable  to  income. 
Where  no  expressed  provision  is  made  in  the  instrument  the  gen- 
eral practice  is  to  charge  them  to  the  income.** 

In  case  of  a  partial  loss,  the  funds  recovered  would  be 
used  in  repairing.*^  In  case  of  a  total  loss,  the  fund  should  be 
invested,*^  and  could  be  used  in  rebuilding  if  such  an  invest- 

361;    N.   Eng.   Trust  Co.  vs.   Eaton,  tliere   is   singularly   little   authority 

140  Mass.  532.  on  this  question,  probably  because  in 

38  Watts  vs.  Howard,  7  Met.  478.  early    times    in    England    insurance 

39  Loring  Trustee's  Handbook,  114,  was  not  considered  a  necessarj'  pre- 
115.  caution  of  an  ordinary  cautious  man, 

40  Gordon  vs.  West,  8  N.  H.  444.  and  because  failure  to  insure  by  a 
But  see  Spangler's  Estate,  21  Pa.  St.  life  tenant  is  not  permissive  waste. 
335,  where   such  charges  were  held  Loring  Trustee's  Handbook,  116. 

to  be  the  ordinary  charges  of  pro-  It  would  certainly  seem  to  be  the 

tecting  the  property,  and  so  charged  law  now  that  such  insurance  should 

to  income.     Underbill  on  Trusts,  p.  be  charged  to  the  income  as  it  is  re- 

246,   n.  garded  as  within  the  scope  of  action 

41  See  §§  511,  517,  as  to  taxes  and  of  a  reasonably  prudent  man. 
insurance.  45  Brough    vs.    Higgins,    2    Gratt. 

42  Heard  vs.  Eldredge,   109  Mass.  408. 

258;  Howland  vs.  Green,  108  Mass.  46  Lerow    vs.   Wilmarth,    9   Allen, 

283.  382. 

43  §  3895  G.  C.  Where   the   owner   of   real    estate 

44  Loring  in  his  valuable  little  died  testate  on  the  day  on  which 
handbook    on    Trustees,    says    that  the    taxes    became    a    lien    for    the 


1153  EXPENSES,   ETC.  §1293 

ment  is  authorized,  and  will  retain  its  character  as  real  estate, 
although  it  may  be  otherwise  where  the  insurance  existed  at  the 
time  of  the  will,  as  in  such  case  the  policy  was  a  personal  asset 
at  the  outset.*^ 

If  the  life  tenant  insures  the  property,  the  remainderman 
has  no  claim  on  the  fund  recovered,  the  contract  of  insurance 
bein^  merely  to  indemnify  the  individual  for  his  loss.  The 
fund  recovered  does  not  represent  or  stand  in  the  place  of  the 
building  destroyed.*^  But  where  a  trustee  insures  the  build- 
ing, he  will  insure  all  his  interest  which  is  subject  to  the 
claim  of  both  life  tenant  and  remaindennan,  and  in  such  case 
the  fund  recovered  would  stand  in  the  place  of  the  property 
destroyed  as  the  property  of  the  remainderman  of  which  the 
life  tenant  has  the  use.*® 


§1293.     Trustees     must     render    biennial     account.       *'A 

trustee  of  a  non-resident  idiot,  imbecile,  or  lunatic  so 
appointed,  and  a  trustee  created  by  last  will  or  deed,  at  least 
once  in  each  two  years,  must  render  an  account  of  the  execution 
of  his  trust,  to  the  probate  court  of  the  county  in  which  he  was 
appointed,  or  in  which  such  last  will  or  deed  is  recorded,  in 
the  manner  provided  by  law  for  the  settlement  of  the  accounts 
of  executors  and  administrators.  This  section  shall  not  apply 
in  any  case  in  which  the  "wall  or  deed  creating  such  trust  desig- 
nates a  tribunal  for  the  settlement  of  the  trust,  or  in  which  any 
other  tribunal  has  acquired  jurisdiction."     [R.  S.  §  6328.]^° 

ensuing  year,  but  they  were  not  yet  ^9  Graham  vs.  Roberts^  8  Ired.  Eq. 

ascertained,  a  trustee  under  the  will  90;    Haxall's  Exrs.  vs.   Shippen,   10 

having  become  the  owner  must  pay  Leigh,  536 ;  In  re  Housman,  4  Dem. 

such   taxes,    and    not    the   executor.  404;     Loring    Trustee's    Handbook, 

In  re  Est.  of  O'Brien,  2  N.  P.  (N.S.)  IIG,   117.     See  Fleming  vs.  Jordan, 

421;   14  Dec.  319.  28  Bull.  332,   §950. 

47HaxaIl's  Exrs.  vs.    Shippen,   10  so  §  ii029  G.  C. 

Leigh,   536.     In   that   case   the   life  The  account   required   to  be   ren- 

tenant  gave  bond   to   invest   money  dered    by    a    trustee,    will    be    very 

and  pay  over  on  death  of  life  ten-  much  similar  to  that  required  of  a 

ant,  hence  had  no  right  to  convert.  guardian,  and  will  be  discussed  un- 

48  Harrison  vs.  Pepper,  166  Mass.  der  that  head.     §  1378. 

288.  As  for  the  discussion  of  adminis- 

This   -would    be    true    where    only  trator's  accounting,  see  §  702  ct  scq. 

the  life  tenant's  interest  is  insured.  The  account  must  contain  a  full 


§  1294  trustee's  accounting  1154 

J5 1294.  Citation  and  notices.  "The  probate  court  shall 
issue  and  have  served  in  the  manner  provided  by  law,  in  the 
case  of  settlements  by  executors  and  administrators,  the  neces- 
sary citations  and  notices  by  publication  or  otherwise,  requiring 
all  persons  interested,  to  attend  such  settlement  and  make  ob- 
jections thereto,  if  any  they  have."     [R.  S.  §  6329.]^^ 

§  1295.  Probate  Court  to  determine  as  to  execution  of  trust. 
"Such  court  may  hear  and  determine  all  matters  relative  to  the 
manner  in  which  the  trustee  has  executed  his  trust,  and  as  to 
the  correctness  of  his  accounts,  and  also  require  any  trustee  so 
created  within  such  county,  on  the  determination  of  his  trust, 
or  removal,  resignation,  or  on  his  death,  his  executor  or  ad- 
ministrator, to  render  a  final  account  of  the  manner  in  which 
he  executed  his  trust;  and  such  court  may  hear  and  determine 
all  matters  relating  thereto,  in  the  manner  that  the  accounts 
of  executors  and  administrators  are  required  by  law  to  be  set- 
tled."    [R.  S.  §6330.]=^- 

§  1296.     Comments. 

It  is  obviously  the  intention  of  the  above  section  to  confer 
upon  the  Probate  Court  like  jurisdiction  to  examine  and  pass 
upon  the  accounts  of  a  trustee  as  it  has  to  pass  upon  the  ac- 
counts of  executors,  administrators  and  guardians.  It  is  not 
the  purpose  of  the  above  section  to  give  the  Probate  Court 
jurisdiction  to  construe  a  trust,  other  than  to  pass  upon  the 
account,  and  perhaps  in  that  manner,  construe  the  trust  in 
giving  a  judgment  whether  or  not  the  trustee  has  properly  dis- 
charged his  duties.  If  it  is  desirable  to  construe  the  trust, 
such  an  action  must  be  had  in  the  Court  of  Common  Pleas.^^ 
As  the  section  particularly  gives  the  same  jurisdiction  as  the 
Court  has  in  passing  upon  the  accounts  of  executors  and  ad- 
itemized  statement  of  all  funds,  the  52  §  11031  G.  C. 
nature  of  their  investment,  security  53  c;ee  §§  108.57-8  G.  C  §  33. 
and  rate  of  interest,  §§  10820-1  G.  Hollister  vs.  Howe,  6  Dec.  157:  4 
C,  §  703;    §  10933  G.  C,    §1367.              K  P.  168;  Win?  vs.  Hibbert.  8  Dec. 

'.See   19  Cyc.  864.  6.5:    7   X.   P.    124:    ^MacClement  vs. 

51  §  11030  G.  C.  MacClement.     1     Davton     31.       See 

See  §  702,  as  to  the  law  applicable      Pike  vs.  White,  22  C.  C.    (X.S.)    61 
to    executors     and     administrators.       as  to  supervising  power  of  Probate 
The  court  has  no  jurisdiction  unless       Court, 
notice  be  given.     Ballard  vs.  ]\Iack, 
3  L.  R.  249;   17  C.  D.  839. 


1155 


APPEAL,    ETC. 


1297 


ministrators,  reference  will  be  made  to  accounts  of  adminis- 
trators.'^* Section  11031,  G.  C,  has  been  held  to  apply  to  guard- 
ians.^^ 

§1297.  Appeal  from  determination  of  Probate  Court.  "The 
determination  of  the  probate  court  on  such  settlement,  whether 
final  or  intermediate,  may  be  appealed  from  in  the  manner 
provided  for  an  appeal  from  such  court  on  the  settlement  of 
the  accounts  of  executors  and  administrators,  and  like  pro- 
ceedings shall  be  had  on  such  appeal,  and  the  result  of  such 
proceedings  certified  back  to  such  court."     [R.  S.  §  6331.]^^ 

§  1298.  Force  and  effect  of  determination.  ' '  The  deter- 
mination of  the  probate  court  en  such  settlement,  shall  have  the 
same  force  and  effect  as  a  like  determination  respecting  the 
account  of  an  administrator  or  executor.  When  an  account  is 
settled  in  the  absence  of  a  person  adversely  interested,  and 
without  actual  notice  to  him,  the  account  may  be  opened  on  his 
filing  exceptions  to  it  witliin  eight  months  thereafter.  Upon 
any  settlement  of  an  account  by  a  trustee,  all  his  former  ac- 
counts may  be  so  far  opened  as  to  dbrrect  a  mistake  or  error 
therein,  except  that  a  matter  of  dispute  between  two  parties, 
which  had  been  previously  determined  by  the  court,  shall  not 
be  again  brought  in  question  by  either  of  the  same  parties 
without  leave  of  the  court."     [R.  S.  §  6332.]" 

§1299.  Allowance  of  compensation.  "The  probate  court 
may  make  such  allowance  as  compensation  to  trustees  for  their 
services  and  expenses  in  executing  their  trusts,  as  it  deems  just 
and  equitable,  not  exceeding  that  allowed  to  guardians  for  like 
services;  and  the  judge  of  such  court  shall  have  the  same  fees 
as  in  the  settlements  of  administrators  and  executors."  [R.  S. 
8  6333.P« 


54  §  702  ct  seq.  See  §  10957  G.  C, 
§  1499,  as  to  how  executor  and 
guardians  are  required  to  settle  a 
trust.  See  §  10822  G.  C,  §  707,  as 
when  executors  have   died. 

55  Melting  vs.  Strickland,  18  C.  C. 
140;  8  C.  D.  841,  for  service  on  non- 
resident.    See  §  10850  G.  C,   §  770. 


56  §  11032  G.  C. 

See    §  11206    G.    C,    §747. 

57  §  11033  G.  C. 

This  section  is  almost  a  verbatim 
copy  of  §§  10S34-5-6  G.  C,  and  ref- 
erence will  be  made  to  the  discussion 
of  that  section,  §  743. 

58  §  11034  G.  C,  §654. 


§  1300  TRUSTEE — RESIGNATION  1156 

§  1300.  When  Court  may  accept  resignation  of  trustee  or 
remove  him.  "The  probate  court  may  accept  the  resignation 
of  any  trustee  accounting  therein,  or  who  has  been  appointed 
by  it,  and  shall  remove  such  trustee,  he  having  ten  days'  notice 
thereof,  for  habitual  drunkenness,  neglect  of  his  duties,  incom- 
petency, fraudulent  conduct,  or  because  the  interest  of  the 
trust  requires  it,  cr  upon  the  written  application  of  more  than 
one-half  of  the  heirs,  or  next  of  kin,  or  legatees  having  an 
interest  in  the  estate  controlled  by  such  trustee.  The  trustee 
himself  is  not  to  be  considered  an  heir,  next  of  kin,  or  legatee 
under  such  proceedings."     [R.  S.  §  6334.]^® 

§  1300a.    When  trustee  under  a  will  may  be  removed.    *'No 

trustee  appointed  under  a  will,  shall  be  removed  on  the  written 
application  of  more  than  one-half  the  heirs,  next  of  kin,  or 
legatees,  as  provided  in  the  next  preceding  section,  unless  for 
good  cause."     [R.  S.  §  6334.]^^* 

§  1300b.     Trustee  to  be  removed  when  guardian  appointed. 

"When  a  minor  for  whom  the  trustee  was  appointed,  has,  since 
the  appointment,  become  a  resident  of  the  state,  and  a  resident 
guardian  has  been  appointed  for  him  or  her,  such  court  shall 
remove  such  trustee  and  require  an  immediate  settlement  of 
his  account.  Upon  the  resignation,  removal  or  death  of  such 
trustee  accounting  under  this  and  the  next  two  preceding  sec- 
tions, the  probate  court  shall  cause  such  estate  to  be  settled  up 
and  administered  upon  according  to  law."     [R.  S.  §  6334.]^^t 


§  1301.    Removal  of  trustee,  etc. 

The  above  section  confers  jurisdiction  upon  the  Probate 
Court  over  every  trustee  accounting  in  such  Court.  It  gives  to 
such  Probate  Court  the  power  of  accepting  the  resignation  of 
any  such  trustee  and  removing  any  trustee  whenever  the  Court 
is  of  the  opinion  that  the  interests  of  the  estate  demand  such 
removal.  In  the  absence  of  special  statute,  giving  the  power 
to  appoint,  it  would  likewise  have  the  power  to  appoint  a 
successor.®*^ 

See  §§  10837-8  G.  C,  as  to  the  dis-  59t  §  11037  G.  C. 

cussion  of  compensation  of  adminis-  See  §  1558,  Removal  of  assignee. 

.      .            c       fi  inn-Q   n     n      ci^nn  60  But  Special   power   is  given  to 

trators.     See  §  lOOoS  G.  C,  §  1490,  ^„  vacancies  occurring  in   a  testa- 

as  to  compensation   allowed  guard-  mentary  trusteeship.     §  10596  G.  C., 

ians.  §  1266.                                ^ 

59  §  11035  G.  c.  'See  Siowers  vs.  Cysenius,  39  O.  S. 


58»  §  11036  G.  0. 


29. 


1157  REMOVAL  §  1301 

The  above  section  seems  to  make  two  kinds  of  proceedings 
for  the  removal  of  trustees.  First  the  Court  may  remove  the 
trustee  on  its  own,  motion,  or  it  may  remove  the  trustee  on  a 
written  application  of  more  than  one-half  of  the  heirs  or  next 
of  kin  exclusive  of  the  trustee  himself.  If  the  trustee  is  act- 
ing for  a  non-resident  minor,  and  such  minor  becomes  a  resi- 
dent of  this  State,  then  the  trustee  must  settle  at  once  and 
account  to  the  resident  guardian.  If  the  Court  removes  the 
trustee  on  its  own  motion  for  either  of  the  reasons  mentioned 
in  the  above  section,  the  decision  of  such  Court  is  final  and 
cannot  be  reviewed  on  appeal  or  error.®^ 

If  the  Court  acts  by  virtue  of  a  written  application  of  more 
than  one-half  of  the  heirs  where  the  trustee  is  appointed 
under  a  will,  then  it  seems  the  Court  does  not  have  absolute  dis- 
cretion, but  must  only  remove  for  good  cause,  and  it  is  probable 
that  the  proceedings  might  be  reviewed  on  error.''^  The  forms 
and  entries  provided  in  the  chapter  on  removal  of  executors 
and  administrators  could  easily  be  adopted  for  proceedings  un- 
der the  above. ''^ 

The  question  has  sometimes  been  made  whether  the  Court 
has  any  power  to  compel  the  trustee  to  account  after  an  order 
has  been  made  to  remove  such  trustee.  It  seems,  in  order  to 
properly  protect  the  trust,  that  the  Court  ought  to  have  such 
power  and  such  is  the  holding  of  the  Courts.®*  Where  one 
of  the  trustees  named  in  the  will  died,  and  another  removed 
to  a  place  unknown,  the  Court  has  power  to  fill  such  vacancy, 
although  there  was  a  surviving  trustee  capable  of  executing 

61  Stafford  vs.  Am.  xvlissionary  pointed  in  Illinois,  to  account  and 
Assn.,  22  C.  C.  399.  liad  power   to  issue  a  citation  and 

Tliis   is  now  changed  by   statute,  have  it  served  by  publication. 

§12241   G.  C,   §52;    §11206  G.  C,  In   Gilbert   vs.   Gilbert,    13    C.   C. 

§39,  29;  7  C.  D.  58,  it  was  held  that  no 

62  Stafford  vs.  Am.  Missionary  accounting  could  be  required,  be- 
Assn.,  22  C.  C.  399.  cause  of  great   lapse  of  time. 

63  §  208  et  seq.  Schwab  vs.  Rappold,  12  Bull.  197, 

64  In  Netting  vs.  Strickland,  18  holds  that  jurisdiction  is  maintained 
C.  C.  130;  9  C.  D.  841,  where  a  and  notice  may  be  given  in  such 
guardian  removed  from  the  State,  manner  as  the  Probate  Court  may 
which  ipso  facto  removed  him,  it  direct  under  §  11205  G.  C.  See 
was  held,  that  tlie  Court  could  com-  James  vs.  West,  47  Bull.  750. 

pel  the  guardian's  administrator  ap- 


§  1302  TRUSTEE  REMOVAL  1158 

tho  trust. "'^     A  resignation  may  be  made  even  if  the  trustee  is 
in  default.'^" 

^  1302.     Causes  for  removal. 

The  statute  specifically  provides  that  trustees  may  be  re- 
moved for  habitual  drunls:eniLess,*'^  neglect  of  duties/*  incom- 
petency/'* fraudulent  conduct/"  or  because  the  interest  of  the 
trust  requires  it.  This  law  is  very  broad  and  under  its 
provision  it  has  been  held  that  a  trustee  will  be  removed  who 
denies  the  trust  or  is  unfriendly  to  it/^  who  unreasonably  .or  cor- 
ruptly disagrees  with  his  co-trustee,  or  who,  having  a  discre- 
tionary power  over  payments  to  his  beneficiaries,  has  an  un- 
reasonable prejudice  or  dislike  to  him  which  is  likely  to  defeat 
the  purposes  of  the  settlement,^^  or  favors  on©  beneficiary 
to  the  prejudice  of  the  others,^^  or  whose  relations  with  his 
co-trustee  or  the  beneficiaries  are  such  as  to  interfere  with 
the  proper  management  of  the  estate.'* 

The  Court  will  remove  sometimes,  though  not  necessarily,  a 
trustee  who  becomes  a  banknipt,^^  or  goes  to  reside  permanently 
without  its  jurisdiction;'^®  but  it  will  not  remove  a  trustee 
simply  because  he  is  poor,'^^  or  to  satisfy  the  caprice  of  a 
beneficiary/*  or  because  he  is  prejudiced  against  or  dislikes  a 
beneficiary  where  he  has  no  discretionary  power  over  the  pay- 
ments to  him.^^     ISTor  will  a  trustee  be  removed  for  the  non- 

65  Sowers  a's.  Cyrenius,  39  0.  S.  75  Paddock  vs.  Palmer,  6  How.  Pr. 
29.                                                                       215. 

66  Withers  vs.  Ewing,  40  O.  S.  400.  '6  This  is  by  statute  made  a  cause 
®^  §  221.  of  removal  of  an  administrator, 
««§   222.                                                     §10629  G.  C,  §213. 

69  §   224.  Gulp's  Est.,   5  Pa.  C.   C.  R.   582; 

70  §  225.  Brightly's  Dig.   Pa.,  p.   2037,   §   70; 

71  Irvine  vs.  Dunham,  111  U.  S.  Hughes  vs.  Chicago,  etc.,  R.  R.  Co., 
327;  Quackenboss  vs.  Southwick,  41  47  N.  Y.  Sup.  Ct.  531. 

N.  Y.  117.  77  Jones    vs.    McPhillips,    77    Ala. 

72McPherson   vs.    Cox,    96    U.    S.  314. 

404;   Wilson  vs.  Wilson,   145  Mass.  78  McPherson    vs.    Cox,    96    U.    S. 

490.  404. 

73  Scott  vs.  Rand,   118  Mass.  215.  79  Fran tz  vs.  Frantz,  4  St.  P.  278; 

74  7n  re  Nathans'  Estate,  191  Pa.  6  Dec.  555;  Nickels  vs.  Phillips,  18 
St.   404.  Fla.  732;  Forster  vs.  Davies,  4  DeG., 

F.  &  J.  133. 


1159  DISTRIBUTION  OF  FUND  §  1303 

exercise  of,  or  the  manner  in  which  he  exercised,  a  discretion- 
ary power,  provided  he  is  honest  and  reasonable  in  the  use  or 
non-use  of  his  discretion.  Nor  will  a  trustee  be  removed 
for  a  technical  breach  of  trust,  or  one  made  unintentionally  or 
through  mistake.^" 

§  1303.     Distribution  of  fund. 

It  is  a  well  settled  principle  of  law  that  the  trustee  must 
distribute  the  fund  properly  at  his  peril,  and  if  he  distributes 
the  wrong  amount  or  pays  it  to  tlie  wrong  person,  he  must 
bear  the  loss.  The  fact  that  he  has  been  diligent  or  has  taken 
advice,  will  not  protect  him,  and  his  only  protection  is  to  obtain 
a  decree  of  distribution  from  a  proper  Court.®^ 

As  the  sections  of  the  General  Code  providing  for  the  ac- 
counting of  trustees  provide  that  the  court  shall  have  the  same 
power  as  in  the  case  of  executors  or  administrators,  it  is  probably 
the  law  that  the  court  could  make  no  specific  order  of  distribu- 
tion, but  should  provide  that  the  fund  should  be  distributed 
according  to  law.  The  trustee  might  then  refuse  to  pay  over 
the  fund  for  thirty  days  and  then  the  person  claiming  .such 
fund  could  bring  his  action  as  provided  in  sec.  10448  of  the 
General  Code.^^ 

The  fact  that  he  pays  on  a  forged  order,  or  an  invalid 
assignment,^^  or  on  a  power  of  attorney  which  he  supposes  to 
be  good,  but  which  has  in  fact  been  revoked,  will  not  protect 
him.  He  must  not  pay  a  minor's  share  to  himself  or  his  parent 
or  guardian  without  an  order  of  Court.  The  fact,  that  the 
trustee  files  his  account  in  Court,  which  account  shows  that  a 
payment  has  been  made  to  a  wrong  person,  the  passing  upon 
such  account  by  the  Probate  Court  will  not  relieve  the  trustee.^* 

The  trustee  might  likewise  after  his  account  has  been  passed 
upon,  bring  an  action  in  the  Court  of  Common  Pleas,  making 

80  Perry  on  Trusts,  §§  27.5  to  287,  «2  §    751. 

and  Underbill  on  Trust,  393  n.,  for  «•'*  Palmer  vs.  Whitney,   166  Mass. 

other    instances.      Loring    Trustee's  306. 

Handbook,  20,  21;  §  13o0.  84  Banning  vs.   Gotshall,  62  O.  S, 

81  Banning  vs.  Gotshall,  62  O.  S.  210;  Swearingen  vs.  Morris,  14  0.  S. 
211.  424. 


§  1304        TRUSTEE DUTIES ACCOUNTING  1160 

all  tlie  parties  having  an  interest  in  the  fund  parties  defendant, 
and  require  the  Court  to  determine  to  whom  the  fund  should 
be  paid." 

§  1304.     Termination  of  trust. 

The  trust  may  he  teraiinated  in  several  ways.  It  may  be 
terminated  by  virtue  of  the  expiration  of  a  time  limited,  as 
provided  in  the  tnist  instrument  or  it  may  be  terminated  by 
virtue  of  an  agreement  of  all  the  parties  in  interest.^®  And 
where  a  state  of  things  have  arisen  which  the  testator  had  not 
anticipated,  and  there  is  no  object  in  continuing  the  trust,  our 
Supreme  Court  has  held  that  the  beneficiary  could  maintain  a 
bill  in  equity  to  terminate  such  tiTist.^^ 

Where  a  will  requires  the  executors  to  hold  the  property  in 
trust  for  all  the  children,  including  themselves,  and  to  divide 
it  whenever  a  majority  should  consent,  and  after  all  debts  have 
been  paid,  the  children  by  contract,  though  without  deeds,  set 
off  to  one  of  the  trustees  his  share  in  severalty,  and  the  residue 
to  the  other  children  jointly,  each  agreeing  to  execute  any  nec- 
essary papers,  this  contract  must  be  deemed  as  distributing  the 
property  and  terminating  the  trust.** 


85  An. attorney  acting  as  a  trustee  Gloyd  vs.  Roff,  2  C.  C.  253;   1  C.  D. 
will  not  be  excused  when   be   erro-  472. 

neously  settles  up  an  estate  in  ignor-  But  a  trust  created  by  will,  the 

ance   of   well    settled   rules   of   law.  provisions  of  which  are  not  repug- 

Nyce  vs.  Hornitz,  20  Bull.  27G.  nant   to   law  or  contrary   to   public 

86  Soteldo   vs.    Clement,    29    Bull.  policy,    will    not   be   decreed    termi- 
384.  nated  where  the  objects  of  the  trust 

87  Taylor  vs.  Huber,  13  0.  S.  288.  have    not    been    accomplished,    and 
Where  a  testator,  by  his  will,  di-  their  accomplishment   has  not  been 

rected  his  executors  to  invest  a  spe-  made  impossible.     Robbin  vs.  Smith, 

cific   fund,   the   interest   to   be   paid  72  O.  S.  1. 

annually   to    the   widow   during  her  And  parties  in  interest  cannot  by 

life  and  widowhood,  at  the  death  of  agreement  terminate  a  trust,  unless 

the  widow  the   principal   thereof   to  the    trust    has    been    fully    accom- 

be   paid  to  her   two   sons;    and   the  plished.    Jones  vs.  Creamer,  32  O.  C. 

sons   on   both   arriving   at   the    age  C.    1910— Fayette    Co. 

of    maturity,    executed   under   their  See   Lohrer   vs.   Citizens,    14   Dec. 

hands   and   seals  to   the   widow,   an  289,  as  to  when  a  Court  of  Equity 

assignment  of  all  their  interest  and  will  terminate  a  trust. 

right    in   such   fund.      It   was    held  ss  Culver  vs.  Culver,  58  0.  S.  172. 

that  the  trust  should  be  terminated 


1161 


TERMINATION  OF  TRUST 


§1304 


Of  course  if  the  beneficiary  becomes  the  owner  of  the  entire 
interest,  the  trust  would  be  terminated.^^  A  question  might 
arise  whether  the  Probate  Court  would  have  jurisdiction  to  ter- 
minate a  trust.  I  apprehend  that  no  action  could  be  brought 
in  the  Probate  Court  to  have  a  trust  declared  terminated.  But 
if  a  trustee  should  file  an  account  of  his  trust  and  make  a  dis- 
tribution of  the  fund  which  account  would  be  approved  by  all 
the  parties  in  interest,  providing  such  parties  in  interest  were 
of  full  age  and  not  under  any  disability,  that  the  approval  of 
such  account  by  the  Probate  Court  would  terminate  the  trust, 
and  all  parties  in  interest  having  approved  such  action  of  the 
trustee  they  would  be  estopped  and  not  permitted  to  question 
the  same,  but  such  action  could  only  be  done  where  all  parties 
consent.  I  doubt  whether  the  Probate  Court  could  compel  the 
trustee  to  terminate  the  trust  and  pay  over  to  the  beneficiaries, 
the  amount  to  which  they  might  be  entitled,  although  petitioned 
so  to  do  by  all  the  beneficiaries.  Where  the  trustee  refuses,  it 
would  seem  that  an  action  to  terminate  the  trust  must  be  filed 
in  the  Court,  of  Common  Pleas.^" 


89  Taylor  vs.  Huber,  13  0.  S.  288. 

90  A  trustee  under  a  will  has  no 
right  to  terminate  the  trust,  with 
the  consent  of  the  cestui  que  trunt, 
if  the  rights  of  third  parties  under 
the  will  are  impaired.  Kreisted  vs. 
Smith,  8  N.  P.  378;  nor,  it  might 
be  added,  if  it  is  not  in  accord 
with  the  wishes  of  the  testator  ex- 


pressed in  the  will  creating  the 
trust,  but  it  will  not  be  continued 
merely  for  the  benefit  of  the  trustee. 
Lohrer  vs.  Citizens  Trust  Co.,  14 
Dec.  289. 

This  case  discusses  the  matter 
fully.  See  Robbins  vs.  Smith,  5  C. 
C.    (N.S.)    545;   27  0.  C.  C.  91. 


§1305  GUAKDIANS KINDS  1162 


CHAPTER  LXX. 

GUARDIANS,  KINDS,  ETC. 

§  1305  Definition.  §  1311  Guardian  of  the  person  and 

§  1306  Natural  guardians.  the  estate. 

§  1307  Testamentary  guardian.  §  1312  Guardian  of  the  person. 

§  1308  How   testamentary   guardian  §  1313  Duties  of  guardian  of  the  per- 

to  be  designated.  son,  etc. 

§  1309  Testamentary     guardian     to  §  1314  Bond  of  guardian  of  person. 

have  preference.     His  duties,  §  1315  Guardian   of  the   estate. 

powers  and  liabilities.  §  1316  Duties  of  guardian  of  estate 
§  1310  When  testamentary  guardian  only. 

shall  give  bond.  §  1317.  Other  kinds  of  guardians. 

§  1318  Ancillary  guardians. 

§  1305.     Definition. 

The  textbooks  say  tliat  tKe  law  relating  to  the  rights  and 
duties  of  guardian  and  ward  are  very  much  similar  to  those  of 
parent  and  child. ^  The  term  guardian  is  defined  by  a  learned 
author  as  follows:  "  Guardian,  in  the  popular  sense,  one  who 
guards,  preserves,  or  secures,  is  the  generic  term  applied,  in 
legal  usage,  to  a  person  whose  right  and  duty  it  is  to  protect 
the  rights,  whether  of  the  person  or  property,  of  some  othex  per- 
son, his  ward,  who,  as  in  the  case  of  minors,  is  conclusively 
presumed,  or  as  in  the  case  of  idiots,  lunatics,  spendthrifts,  etc., 
is  adjudged  to  be,  incompetent  to  manage  his  affairs.  In  re- 
s'pect  to  minors,  the  guardian  of  the  person  stands  in  loco  far- 
entis,  thus  giving  rise  to  the  designatioii,  sometimes  applied 
to  them,  of  '  temporary'  parents.'  "  " 

While  there  were  nmnerous  kinds  of  guardians  spoken  of 
and  recognized  by. the  common  law,  yet  with  lis  the  term  is 
generally  used  as  applicable  only  to  that  kind  of  guardianship 
that  is  provided  for  by  statute.     The  kinds  of  guardians  for 

1  1  Bl.  Comm.  459;  2  Rents  220.  2  Woerner   on   Guardians,   39. 


1163  NATURAL  GUARDLiNS  §  1306 

which  provision  is  made  in  our  statute  are  three.  First,  guard- 
ians of  minors;  second,  guardians  of  lunatics,  idiots  and  im- 
beciles; third,  guardians  of  habitual  drunkards.^''  These  again 
are  divided  into  guardians  of  the  person  and  the  estate.  These 
various  kinds  of  guardians  are  provided  for  by  separate  pro- 
visions of  the  General  Code  and  will  be  considered  in  their 
order.^ 

§  1306.     Natural  guardians. 

The  natural  gi;ardian  of  a  child*  is  the  father  if  he  be  alive 
and  the  mother  if  the  father  is  dead.  In  the  case  of  illegiti- 
mate children,  tlie  mother  is  the  natural  guardian.*  While  at 
common  law  it  was  the  duty  of  the  natural  guardian  to  take 
charge'  of  the  child's  property  and  account  for  profits,^  yet  such 
is  not  recognized  to  be  the  law  of  this  State.  The  only  manner 
in  which  our  law  recognizes  natural  guardianship  of  father 
or  mother  is  that  nO'  person  can  be  appointed  a  guardian  of 
the  person  of  a  child  unless  the  Court  first  finds  that  the 
father  or  mother  is  an  unsuitable  person  to  have  the  control 
and  custody  of  the  person  of  such  child.  In  no  case  is  tho 
father  or  mother  entitled  to  the  custody  of  the  'pro-perty  of  his 
or  her  child,®  unless  he  or  she  is  appointed  by  the  Probate 
Court  as  guardian  of  the  estate  of  such  child,  and  then  he  or 
she  must  give  a  bond  in  tlie  same  manner  as  any  other  person 
would  be  required  to  do  if  he  were  appointed  guardian,^  Usu- 
ally if  there  is  no  estate,  the  natural  guardian,  the  father  or 
mother,  ^vill  not  be  interfered  with. 

3  See  §  1534.  er  marriage,  after  the  death  of  her 
3a  The     statute     now     adds      in-      husband.      Bounell   vs.    Berryhill,    2 

competency,  etc.  t„.i    cio 

4  buch   children,    though,   at   com-  i  tii    n 

mon  law  were  regarded  as  having  no  ^  ^  "^-  *^o™d^-  4o1. 

natural    guardian.      Schouler    Dom.  ^  The     personal     earnings     of     a 

Rei;  §  278.     Tlie  father  of  a  bastard  minor  is  not  the  property   of  such 

is   entitled    to    the   custody    of    sucli  Elinor 

child,  as  against  all  but  its  mother,  ^       ,  ^  ,,„  t    ,    ,^o 

and   for  such    reason    is   tlie   proper  ^  Brooke  vs.  Logan,  112  Ind.  183; 

person    to    be    appointed    statutory  Perry  vs.    Carmichael,    95    111.    519; 

guardian    for    such    child.      Pote's  Kendall  vs.  Miller,  9  Cal.  592;  Fon- 

App     106  Pa    St.  574      But  a  step-  ^j^   ^^     yan   Horn,    15   Wend.   631 ; 

mother  is  not  the  natural  guardian  .,,  .,,         „       .,       ,^        . 

of  her  husband's  children  by  a  form-  ^^'^^on   vs.   Alston,   34   Ala.    15.     A 

parent  as   the  natural    guardian   of 


§  1307  GUARDIANS — KINDS.  1164 


§  1307.     Testamentary  guardian. 

Following  somewhat  in  the  line  of  the  right  of  guardianship 
by  nature  is  the  statutory  provision,  that  in  certain  instances  a 
testator  may  provide  who  shall  be  guardian  of  his  children. 
The  section  of  the  General  Code  providing  therefor  is  as 
follows : 

"A  sur\dving  parent  by  last  will  in  writing,  may  appoint  a 
guardian  or  guardians,  for  any  of  his  or  her  children,  whether 
born  at  the  time  of  making  the  will,  or  afterward,  to  continue 
during  the  minority  of  the  child,  or  for  a  less  time."  [103 
v.  905.]  « 

This  section  as  now  amended  limits  the  right  to  designate 
a  guardian  by  will  to  surviving  parents.  It  still  leaves  open 
the  question  whether  or  not  a  parent  could  not,  although  not 
a  surviving  parent,  designate  a  person  as  guardian  to  hold 
certain  property,  devised  to  a  child  in  the  will.  It  is  the  opinion 
of  the  author  that  this  section  only  limits  the  right  to  appoint 
a  guardian  of  the  person  of  the  child,  not  of  his  estate  received 
under  the  will.  It  places  husband  and  wife  in  regard  to  their 
children  on  the  same  plane ;  under  the  former  statute,  a  father 
had  the  right  to  designate  a  guardian,  even  though  the  mother 
be  living,  and  the  mother  had  no  such  right  unless  the  father 
be  dead  or  gone  to  parts  unknown. 

This  amended  section  recognizes  the  absolute  right  of  a  sur- 
viving parent  to  the  care  and  custody  cf  his  child,  unless  by  his 
own  conduct  he  has  forfeited  the  right. 

The  right  to  appoint  a  testamentary  guardian  resides  only  in 

the  child  cannot  bond  such  child  by  such  child.  Genet  vs.  Tallmadge,  1 
any  contract  made  for  him,  in  the  Johns.  Ch.  3;  Miles  vs.  Eoyden,  3 
absence  of  statutory  authority,  Jones  Pick.  213.  Nor  can  such  natural 
vs.  Jones,  46  Iowa  466.  A  natural  guardian  make  any  compromise  in 
guardian  has  no  authority  to  lease  behalf  of  the  child,  ivhich  will  be 
an  infant's  lands.  Magruder  vs.  binding  upon  the  child.  Houston, 
Peter,  4  Gill  &  J.  323;  Eoss  vs.  Cobb,  etc.,  R.  R.  Co.  vs.  Bradley,  45  Tex. 
9  Yerg.  463.  Xor  to  receive  the  171. 
rents  and  profits  from  such  land.  «  §  10930  G.  C. 
Jackson  vs.  Combs,  7  Cowen  36.  Nor  But  an  executor  cannot  be  guard- 
can  he  receive  legacies  belonging  to  ian  of  the  estate,  etc.,  §  1331. 


1165  TESTAMENTARY  §  1308 

the  parent  of  the  child.^  A  grandfather  has  no  right  to  ap- 
point for  his  grandchild/"  A  father  cannot  appoint  for  his 
illegitimate  child/^  but  he  may  for  an  adopted  child/^  If 
the  testator  appoint  his  widow  so  long  as  she  remains  unmar- 
ried, an  appointment  by  the  Court  is  necessary  on  her  re- 
marriage." If  a  mother  has  been  divorced  from  her  husband 
and  awarded  the  custody  of  her  child,  she  may,  during  the 
life-time  of  the  father,  appoint  by  will  a  guardian  for  her 
child. '^     This  is  denied  in  our  State.^"*  * 

§  1308.    How  testamentary  guardian  to  be  designated. 

It  is  not  necessary  that  a  testamentary  guardian  should  be 
expressly  so  designated  in  the  will."  Thus,  if  a  testa- 
tor direct  his  son  to  maintain  his  infant  brother  in  the 
same  manner  as  a  father  or  guardian  and  the  infant  to  render 
him  due  subjection  as  a  child  by  labor  and  obedience,  he  is 
thereby  designated  as  a  testamentary  guardian.^*'  And  if  a 
testator  direct  his  wife  to  have  the  care  and  custody  of  his  chil- 
dren until  they  become  of  age  or  until  she  remarries,  it  will 
be   a   sufficient   designation.^^      The   designation   is   a   personal 

9  Brigham  vs.  Wheeler,  8  Met.  guardian  by  any  other  court.  In  re 
127;    Camp   vs.   Pittman,   90   N.   C.       Crist,  89  0.  S.  33. 

615.  If  a  father  appoints   a  guardian 

10  Fullerton  vs.  Jackson,  5  Johns  by  will  for  his  children,  other  than 
Ch.  276;  Ex  parte  Bell,  2  Tenn.  Ch.  the  mother,  she,  if  a  competent  per- 
327;  Hoyt  vs.  Hilton,  2  Edw.  Ch.  son,  is  entitled  to  the  custody  of 
202.  such     cliildren,    against    the    testa- 

11  Slecman  vs,  Wilson,  L.  R.,  13  mentarv  guardian.  Lord  vs.  Haugh, 
Eq.  3G.  37  Cal.*657.     For  while  a  father  has 

12  In  re  Upton,   16  La.  Ann.   175.  authority  to  appoint  a  guardian  by 

13  Corrigan  vs.  Kiernan,  1  Bradf.  will,  he  can  not  by  contract  with 
(N.  Y. )  208;  Holmes  vs.  Field,  12  some  third  person  bargain  away  the 
111.  424.  mother's  right  in  the  child.     Moore 

14  Wilkinson    vs.    Deming,    80   111.  vs.  Christian,  56  Miss.  408. 
342.      Contra,   McKinnev    vs.   Noble,  ^i*  In  re  Coons.  20  C.  C.  479, 

37  Tex.  731.     In  re  Coons,  20  C.  C.  15  Miller  vs.  Harris,  14  Sim.'540; 

479.  "Mcndes  vs.  Mendes,   1   Ves.   Sr.  80; 

When    husband   and   wife   are  di-  Johnston  vs.  Beattie,  10  CI.  &  Fin. 

vorced    and    the    Court    of    Common  42;  Marton  vs.  Tally,  72  Ala.  23. 
Pleas   in  granting  the   divorce  also  i^Balch  vs.  Smith',  12  N.  H.  437. 

awards  tlie  children  to  either  parent  17  Corrigan  vs.  Kiernan,  1  Bradf. 

or  some  other  person,  such  children  (N.  Y. )   208;  Macknet  vs.  Macknet, 

beeonie  the  wards  of  the  court  and  9  C.  E.  Or.  449. 

the   jurisdiction    of   the    courl    is    a  A  direction  in  a  will  that  the  ex- 
continuing    one     and     can     not    be  ccutor  shall  hold  the  estate  in  trust 
affected    by    the    appointment    of    a  until    the   youngest   child    shall    be- 
come of  age,  and   that  he   pay   out 


I 


§  mod  GUARDIANS KINDS  1166 

trust  and  cannot  be  assigned."  Probably  the  same  rule  should 
be  applied  as  to  what  would  constitute  a  designation  in  a  will 
of  a  person  as  testamentary  guardian,  as  is  applied  to  consti- 
tute an  executor.^" 

§  1309.  Testamentary  guardian  to  have  preference.  His 
duties,  powers  and  liabilities.  "When  a  guardian  has  been 
appointed  by  will,  by  the  father  or  mother  of  a  child,  he  shall 
be  entitled  to  preference  in  appointment  over  all  others,  without 
reference  to  his  place  of  residence,  or  the  choice  of  such  minor. 
Tlis  appointment,  duties,  powers,  and  liabilities  in  all  other  re- 
spects shall  be  governed  by  the  law  regulating  guardians  not 
appointed  by  will,  except  as  otherwise  specially  provided." 
[R.  S.  §  6267.]-° 

By  the  above  provision  a  testamentary  guardian  is  entitled  to 
preference  over  all  others  without  reference  to  his  place  of 
residence  or  the  choice  of  such  minor.  But  otherwise  he  is 
under  the  same  law  as  if  not  designated  by  any  last  will  and 
testament.  While  the  above  section  seems  to  warrant  the  ap- 
pointment of  a  guardian  designated  by  a  parent  in  his  Avill  over 
both'  the  person  and  estate  of  the  minor,  yet  other  sections 
seem  to  limit  the  rights  of  such  guardian  to  the  guardianship  of 
an  estate,  where  there  is  a  competent  surviving  parent;  "^  for 
it  is  provided  that  the  guardian  of  the  person  and  estate  shall 
not  have  the  custody  of  the  person  and  the  control  of  the  educa- 
tion of  such  minor  if  there  be  a  father  or  mother  who  is  a 
suitable  person."" 

of  the  estate  annually  a  sum  suffi-  custody  of  the  child  to  one  of  the 
cicnt  to  clothe,  educate  and  sup-  parents  does  not  clothe  the  parent 
port  the  minor  children  until  they  with  authority  to  appoint  a  testa- 
become  of  age,  makes  him  a  trustee  mentary  guardian  for  the  child,  as 
of  the  estate,  and,  in  effect,  a  testa-  between  sucli  testamentarj^  guardian 
mentary  guardian  of  the  minors,  and  the  surviving  parent  tiie  court 
and  the  court  has  no  rightful  power  will  consider  the  best  interests  of 
to  require  the  executor  to  pay  over  the  child  in  choosing  a  guardian, 
any  money  to  the  statutory  guar-  In  re  Geibig,  57  Bull.  77  j  11  N.  P. 
dian  of  such  minors  for  their  sup-  509. 

port  and  education.     Caps  vs.  Hick-  In  such  cases  the  court  granting 

man,  97   111.  429.  the  decree  has  continuing   iurisdic- 

18  In  re  Goods  of  Parnell,  L.  R.,  tion.     In  re  Crist,  89  O.  8.  33. 
2  P.  D.   379 ;    Eyre  vs.  Countess  of  21  Stee  note  §  1307. 
Shaftbury,  2  P.  Wms.  ,121;   Matter  22  §  10928  G.  C,  §  13G6. 

of  Peynolds,  11   Hun.  41;   Balch  vs.  One  who  has  a  right  to  appoint- 

iSmith,  12  X.  II.  437.  ment  and  waives  the  same  bv  con- 

19  See  nm,  81.  senting  to   the   appointment   of   an- 

20  §  10931  G.  C.  otlier   will    not   thereafter   be   heard 
But  even  a  testamentai-y  guardian       to  have  himself  appointed.    Woerner 

will  not  be  appointed  without  notice  on  Gdns.  99. 

to    the    surviving    parent.      7n    re  A  testamentary  guardian  is  with- 

Geibig,  57  Bull.  77;   11  N.  P.  529.  out    authority    until    appointed    by 

A    decree    of    divorce    giving    the  tlie  court.     3  O.  App.  444. 


1167  PERSON  AND  ESTATE  §  1310 

While  this  section  would  seem  to  direct  the  appointment  of  a 
person  who  might  be  a  non-resident  of  the  State,  yet  from  the 
fact  that  the  statute  provides  that  a  removal  from  the  State 
shall  terminate  the  guardianship,  it  would  necessarily  follow 
that  a  non-resident  ought  not  to  be  appointed.'^  Whether  or 
not  when  a  person  designated,  is  evidently  unsuitable  the 
Court  must  make  the  appointment,  is  not  clear.  In  reference  to 
executors  it  is  held  that  the  executor  is  entitled  to  the  appoint- 
ment, but  the  Court  may  proceed  to  remove  him  for  cause. ^* 

A  testamentary  guardian  will  serve  until  his  ward  becomes 
of  age,  unless  removed  by  the  Court.  The  ward  can  not  ask  his 
removal  when  he  arrives  at  the  age  of  fourteen.^' 

§  1310.  When  testamentary  guardian  shall  give  bond,  etc. 
''Each  such  testamentary  guardian  must  give  bond,  in  the  man- 
ner and  with  the  conditions  required  of  a  guardian  appointed 
by  the  probate  court;  except  that,  when  in  the  will  appointing 
the  guardian,  the  testator  orders  or  requests  such  bond  not  to  be 
given,  it  shall  not  be  required,  unless,  from  a  change  in  the 
situation  or  circumstances  of  the  guardian,  or  for  other  suffi- 
cient cause,  the  probate  court  thinks  proper  to  require  it." 
[E.  S.  §6268.1-« 

§  1311.     Guardian  of  the  person  and  the  estate. 

Our  law  clearly  recognizes  that  there  may  be  separate  per- 
sons who  are  guardians  for  the  same  person,  one  being  guardian 
of  the  person  of  the  ward  and  the  other  of  the  ward's  estate, 
and  that  where  no  order  is  made  providing  for  the  separation 
of  guardianship,  it  will  be  presumed  that  the  person  appointed 
is  guardian  of  both  the  person  and  the  estate  of  the  ward.  The 
statute  providing  therefor  is  as  follows : 

"A  guardian  may  be  appointed  to  take  charge  only  of  the 
estate  of  a  minor.  At  the  time  of,  or  after  the  appointment  of 
such  guardian  to  a  minor  having  neither  father  nor  mother,  or 
whose   father  and  mother  are  unsuitable  persons   to  have  the 

23  §  1093G  G.   C,   §  1358.  The   discretion   about  requiring  a 

24  See    §81.  bond  is  very  much  similar  to  that 

25  Woerner   on   Guardians,  94.             in  reference  to  executors.     See  §  85. 
28  §  10932   G.    C.  §  1256,  Testamentary  trustees. 


§  1312  GUARDIANS KINDS  1168 

custody  and  tuition  of  such  minor,  or  whose  interests  for  any- 
other  cause,  in  the  opinion  of  the  court,  will  be  promoted 
thereby,  it  inny  also  appoint  a  guardian  to  have  the  custody  and 
provide  for  the  maintenance  and  education  of  such  minor.  If 
the  powers  of  the  person  appointed  guardian  be  not  limited  by 
the  order  of  appointment,  he  shall  be  guardian  both  of  the 
person  and  estate  of  the  ward.  In  every  instance  the  court  shall 
appoint  a  guardian  both  of  the  person  and  estate  of  the  ward, 
unless  in  its  opinion  the  interests  of  the  minor  will  be  promoted 
by  the  appointment  of  separate  guardians."     [R.  S.  §6255.]^^ 


§  1312.     Guardian  of  the  person. 

If  the  Court  is  of  the  opinion  that  the  interests  of  the  ward 
will  be  best  subserved  by  appointing  a  person  to  act  only  for  the 
tuition,  maintenance  and  control  of  the  ward,  a  guardian  for 
the  person  may  be  appointed.  "Where  the  father  or  mother  be 
living,  no  such  guardian  can  be  appointed  unless  they  be  noti- 
fied and  the  Court  find  that  they  are  not  suitable  persons  to  have 
the  custody  and  tuition  of  such  minor. -^ 

The  powers  and  duties  generally  of  a  guardian  of  the  person 
of  the  M'ard  will  be  discussed  in  this  volume  when  treating  of 
the  subject  of  guardians,  generally,  adopting  the  rule  that 
the  same  person  is  usually  the  guardian  of  both  person  and 
estate.  The  statute  specifically  provides  that  certain  duties 
shall  devolve  upon  the  guardian  of  the  person  which  are  as 
follows : 

§  1313.  Duties  of  guardian  of  the  person,  etc.  ' '  When  a 
guardian  is  appointed  to  have  the  custody,  maintenance,  and 
education  of  a  minor,  his  duties  are: 

"1.    To  protect  and  control  the  person  of  his  ward; 

"2.  To  provide  a  suitable  maintenance  for  his  ward,  when 
necessary,  which  must  be  paid  out  of  the  estate  of  such  ward,  in 
the  hands  of  the  guardian  thereof,  upon  the  order  of  the  guard- 
ian of  the  person  of  such  ward; 


27  8  10016  G.  C.  must  show  that  the  father  consents 

28  Bopscher  vs.  Boescher,  7  N.  P.  thereto  or  is  an  unsuitable  person. 
418;  5  Dec.  184.                ^  Cited  Hare  vs.  Sears,  4  N.  P.  (N.S.) 

Before  a  stranger  can  be  appointed  566;    17  Dec.  590. 
guardian    for    a    child,    the    record 


1169  PERSON  AND  ESTATE.  §  1314 

"3.  When  such  ward  has  no  father,  or  mother,  or  having  a 
father  or  mother,  such  parent  is  unable  or  fails  to  maintain 
or  educate  the  ward,  the  guardian  so  appointed  shall  provide 
for  him  such  maintenance  and  education  as  the  amount  of  his 
estate  justifies,  which  shall  be  paid  out  of  his  estate  in  the  hands 
of  the  guardian  thereof,  upon  the  order  of  the  guardian  of  the 
person  of  such  ward; 

"4.  To  obey  all  the  orders  and  judgments  of  the  court  touch- 
ing the  guardianship."     [R.  S.  §  6271.] -» 

§  1314.     Bond  of  guardian  of  person. 

A  guardian  of  the  person  of  a  minor  must  give  bond  in  the 
same  manner  as  if  he  were  guardian  of  the  estate.  The  amount 
of  the  bond  must  be  double  the  probable  expenses  of  maintaining 
and  educating  such  minor  during  one  year.  Likewise  the 
guardian  must  take  an  oath  that  he  will  faithfully  discharge 
his  duties.    The  statute  providing  therefor  is  as  follows : 

"Before  a  person  is  appointed  guardian  to  have  the  custody, 
maintenance,  and  tuition  of  a  minor,  without  the  right  to  take 
charge  of  the  minor's  estate,  he  must  give  bond  in  double  the 
probable  expenses  of  maintaining  and  educating  the  minor  dur- 
ing one  year.  In  all  other  respects  the  bond  shall  be  the  same 
as  if  he  had  charge  of  the  estate  of  his  ward.  He  also  must 
take  the  oath  prescribed  in  the  next  preceding  section."  [R.  S. 
§6260.]  3° 

§  1315.     Guardian  of  the  estate. 

If  the  ward  has  property  and  the  Court  is  of  the  opinion  that 
the  person  who  is  entitled  to  the  control  and  custody  of  the 
ward  is  a  suitable  person  to  keep  such  control  and  custody, 
but  not  a  suitable  person  to  manage  the  estate  of  the  ward, 
then  a  guardian  for  the  estate  only  should  be  appointed;  and 
where  the  entry  of  appointment  provides  that  a  person  is  ap- 
pointed guardian  of  both  the  estate  and  person  of  the  ward,  yet 
if  the  ward  have  a  father  or  mother  who  is  a  suitable  person 
to  have  the  custody  of  such  ward  and  the  control  of  its  educa- 

29  §  10935  G.  C.  30  §  10923  G.  €. 


§1310  GUARDIANS KINDS  1170 

tion,  then  the  guardian  is  practically  a  guardian  of  the  estate 
only.  Thie  statute  providing  for  the  duties  of  such  guardian 
is  as  follows: 

^  1316.  Duties  of  guardian  of  estate  only.  "When  a  guard- 
ian is  appointed  to  take  charge  only  of  the  estate  of  a  minor, 
his  duties  shall  be  the  same  as  those  specified  in  the  next 
preceding  section,  except  that  he  shall  not  be  required  to  per- 
form the  sixth  duty  therein  mentioned  when  a  guardian  of  the 
minor's  person  has  been  appointed."     [R.  S.  §  6270.]^^ 

§  1317.     Other  kinds  of  guardians. 

In  addition  to  the  kinds  of  guardians  specifically  referred  to 
in  the  previous  sections  of  this  chapter,  there  is  recognized  by 
the  statutes  of  our  State  what  is  known  as  a  guardian  ad  litem: 
This  kind  of  a  guardian  is  also  known  as  a  special  guardian, 
being  appointed  by  tlie  Court  to  look  after  the  interests  of  a 
minor  when  his  property  is  involved  in  litigation. ^^ 

And  a  person  occupying  a  similar  position  who  brings  a 
suit  for  a  minor  is  known  as  prochein  ami,  or  the  minor's  next 
friend.  The  power  to  appoint  a  next  friend  like  the  power  to 
appoint  a  guardian  ad  litem,,  is  inherent  in  every  Court  when 
the  interests  of  minors  require  it.*^ 

At  common  law  there  were  otlier  guardians  known  as  chan- 
cei*y  guardians  and  ecclesiastical  guardians,  but  these  are  mere- 
ly the  memory  of  a  past  method  of  judicial  procedure.  Our 
statute  makes  specific  provision  for  the  appointment  of  guar- 
dians of  idiots,  imbeciles  and  lunatics  and  also  for  habitual 
drunkards  "*  and  incompetents  and  improvidents. 

See  Heckman  vs.  Adams,  50  0.  S.  and  a  prochein  ami  usually  devolves 

305;  In  re  Baier,  8  N.  P.  107;   11  upon  the  Court  of  Common  Pleas, 

Dec.  47.  in  the  litigation  of  general  matters 

30*  Previous  section  is  §  10933  G.  and  not  in  the  Probate  Court.     A 

C,  which  gives  various  duties.     See  guardian  ad  litem  may  be  appointed 

§  1367.  by   the   Probate    Court,    notably    in 

31  §  10934  G.  C.  proceedings  brought  for  the  sale  of 
The   same  rule   is   adopted   as   to  real   estate.      See    §§  838,    1384,   for 

bond  in  the  case  of  a  guardian  for  discussion  of  the  duties  of  a  guar- 

the  estate  only  as  is  required  of  a  dian  ad  litem. 

guardian   for  both   the  person   and  34  See    §  1501    et  scq.,   for   idiots, 

estate  of  a  ward.  incompetents,    etc. ;    §  1534    et   seq., 

32  Wocrner  on  Guardians,  63.  for    habitual    drunkards,    improvi- 

33  Woerner  on  Guardians,  64.  dents. 
An  apnointmont  of  a  next  friend 


1171  ANCILT.AKY  §  1318 

Some  States  also  have  made  provision  for  the  appointment  of 
guardians  of  spendthrifts,  but  no  such  power  is  given  by  any 
provision  of  our  statutory  law.  With  us  if  a  person  is  not  an 
idiot,  an  imbecile,  lunatic  or  habitual  drunkard,  unable  to  man- 
age his  own  affairs,  he  may  spend  his  money  in  as  needless  a 
way  as  he  can  design,  and  there  is  no  power  of  the  Court 
to  prevent  him.  Statute  now  seems  to  provide  for  improvi- 
dence, see  §  1535,  and  incompetents,  §  1501. 

§  1318.     Ancillary  guardians. 

Our  statutes  do  not  recognize  what  might  be  termed  an  an- 
cillary guardian,  but  provide  that  where  it  might  be  proper  to 
appoint,  an  ancillary  guardian,  a  trustee  for  a  non-resident  be 
appointed.^^  Our  statutes  also  provide  that  foreign  guardians 
may,  by  complying  with  the  statutory  provisions,  be  recognized 
in  our  Courts,  and  in  that  manner  acquire  jurisdiction  over 
the  property  of  a  non-resident  ward.^® 

The  general  principles  relating  to  ancillary  guardians  might 
be  applied  to  a  trustee  of  a  non-resident.  That  is,  a  guardian 
of  the  domicile  of  an  infant  might  be  advantageously  ap- 
pointed as  an  ancillary  guardian.^^  A  domiciliary  guardian 
must  account  for  all  property  received  from  an  ancillary  guard- 
ian.^« 

A  receipt  given  to  a  guardian  appointed  in  one  State  by  a 
guardian  subsequently  appointed  in  another  State  for  specific 
personal  property  of  the  ward,  transferred  by  the  former  to  the 
latter,  does  not  discharge  the  fonner  from  responsibility  to  ac- 
count for  previous  loss  by  his  mismanagement  of  the  ward's 
property.^"  The  fact  that  the  letters  granted  in  this  State  are 
prior  in  point  of  time  to  letters  granted  in  the  domiciliary 
State  does  no^  prevent  the  letters  here  being  regarded  as  an- 
cillary.''' 

Unless  provision  is  made  by  statute,  a  guardian  appointed  in 
one  State,  has  no  authority  in  another  State,  and  it  would  be 

*5  §  11014   G.  C,    §1274.  38  Secchi's   Estate,    Myrick,    Prob. 

36  §  1475  et  seq.,  on  foreigTi  guar-       (Cal.)   225. 

dians.  39  Lainar  vs.  Micou.  112  U.  S.  452. 

37  Hoyt  vs.  Spra^e,  103  U.  S.  *<>  Metealf  vs.  Lowther,  56  Ala. 
613.                                                                   312. 


§1318 


GUARDIANS — KINDS 


1172 


necessary  to  have  a  guardian  appointed  in  such  State  if  there 
was  any  property  of  the  ward  in  such  State.  But  an  appoint- 
ment is  void,  if  the  infant  is  neither  domiciled  nor  resident  in 
the  State  in  which  it  is  made  and  has  no  property  there.*^ 


<i  Woerner  on  Grdns.,  87,  88, 
citing  Barnsback  vs.  Dewey,  13  111. 
App.  581;  Clark  vs.  Cordis,  4  Allen 
4GC. 

§  11020  G.  C,  §  1282,  provides, 
how  a  foreign  guardian  may  procure 
moneys   in   the   hand   of   a   resident 


trustee,  and  §  10953-6  G.  C,  §  1481. 
provides  how  foreign  guardians  may 
sell  lands,  etc.,  in  this  State. 

lC€  §  165  et  seq.y  Ancillary  admin- 
istration. 

See  §  1273. 


1173  GUARDIAN  APPOINTMENT  §  1319 


CHAPTER  LXXI. 

GUARDIAN.    APPOINTMENT  AND  BOND. 

$  1319  Court  having  jurisdiction.  §  1330  Court's  choice. 

§  1320  When  necessary.  §  1331  Who  ineligible  by  law. 

§  1321  Minors.  §  1332  Who  should  not  be  appoint- 

§  1322  Resident  of  county.  ed. 

{  1323  Statement    of    ward's    estate  §  1333  Must  give  bond. 

to  be   filed  and  bond   given  §  1334  Form  of  guardian's  bond. 

—  mortgage  in  lieu  of  free-  §  1335  Mortgage  in  lieu  of  freehold 

hold  surety  —  oath.  sureties. 

§  1323a  Surety   in   lieu   of   freehold.  §  1336  Oath. 

!  J''!^!^*^^^^     .       .  §  1337  Bond  not  void  on  account  of 
8  1324  Application  for  appointment.  .    ,  ,., 

§  1325  Form   of   application   for  ap-  informality. 

pointment  of  guardian.  §  1338  One    bond    for    two   or    more 
§  1326  Notice  to  parties.  wards,  etc.,  fees. 

§  1327  W:hen     minor     may     choose  §  1339  Order  of  appointment. 

guardians;     or    Court    may  k  lo^n  r^  «       i. 

appoint.  §  1=^^^  ^o™  °f  ^"^''y- 

§  1328  How   made,  etc.  §  1341  Letters   of  guardianship. 

§  1329  Parents'   choice,  §  1342  Appeal  and  error, 

§  1319.     Court  having  jurisdiction. 

By  a  general  provision  of  our  statutes  "  the  Probate  Court 
shall  have  exclusive  jurisdiction  to  appoint  and  remove  guard- 
ians, to  direct  and  control  their  conduct,  and  to  settle  their  ac- 
counts." ^  And,  furthermore,  it  is  declared  that  the  jurisdic- 
tion of  a  Probate  Court,  once  having  jurisdiction,  over  a  matter 
or  proceeding,  is  exclusive  of  that  of  any  other  Probate  Court*^ 
In  construing  this  jurisdiction,  our  Supreme  Court  has  held 
that  "  Plenary  and  exclusive  original  jurisdiction  is  given  by 
law  to  the  Probate  Courts  of  this  State,  in  the  matter  of  the 
appointment  of  giiardians,  and  that  jurisdiction  attaches  in  any 
given  case,  whenever  application  is  duly  made  for  its  exercise 

1  §  10402  G.  C,  §  27.     Wegncr  vs.  he   alTeetod   by  the   appointment  of 
Wiltsio,  23  C.   C.  302.  a   guardian    in    the    Probate    Court, 

2  §  10498  G.  C,  §  29.  Newton  vs.  unless  sanctioned  by  the  court 
Hammond,  38  0.  S.  430.  granting  the   divorce.     In   re  Crist, 

Where,    in   a   divorce   proceedings,  89    O.    S.    ."3;    and    t'lis    applies    to 

the  custody  and  control   of   a  child  Juvenile     Courts.       Cleveland,     etc, 

is   awarded    to   one   of   the    parents,  vs.    fibule,   36   O.    C.    C.    135;    24   O, 

such    custody   and    control    can   not  C.  C.    (N.S.)    153. 


§  1320  GUAKDIAN  APPOINTMENT  1174 

therein.  Such  proceedings  are  not  inter  partes  or  adversary 
in  their  character.  They  are  properly  proceedings  in  rem;  and 
the  order  of  appointment,  made  in  the  exercise  of  jurisdiction, 
binds  all  the  world.  The  actual  presence  of  the  ward  is  not 
essential  to  the  jurisdiction,  unless,  by  reason  of  his  right  to 
choose  a  gTiardian,  or  for  other  cause,  the  statute  so  require."  ^ 
The  section  of  the  General  Code  particularly  relating  to 
the  appointment  of  guardians  by  the  Probate  Court  is  as 
follows : 

"When  necessary  the  probate  court  in  each  county  shall 
appoint  guardians  of  minors  resident  in  such  county."  [R.  S. 
§9254.]^ 

§  1320.    When  necessary. 

Sec.  10915,  G.  C,  above  quoted,  gives  power  to  the  Probate 
Court  to  appoint  ivlien  necessary.  This  certainly  confers  upon 
the  Probate  Court  a  veiy  wide  discretion  as  to  when  or  under 
what  circumstances  it  will  act  and  make  the  appointment,  ye."" 
it  is  a  judicial  discretion  which  must  be  exercised,  if  the  facts 
show  that  there  is  some  necessity  for  the  appointment  of  a 
guardian,  either  to  take  care  of  the  minor's  estate  or  to  have 
the  custody  and  control  of  his  person.  Thus  it  has  been  held 
that  a  Probate  Judge  has  no  authority  to  appoint  a  guardian 
for  the  avowed  purpose  of  sending  the  ward  to  a  foreign  coun- 
try.^ Also,  if  a  minor  has  either  a  father  or  mother  who  is  a 
suitable  person  to  have  charge  of  the  minor's  custody  and  educa- 
tion, and  the  minor  has  no  estate,  there  is  no  necessity  for  the 
appointment  of  a  guardian ;  and  an  appointment  made  under 
such  existing  state  of  facts  would  probably  be  held  void;  and 
even  if  a  minor  is  entitled  to  property,  but  is  not  entitled  to 
the  possession  and  control  of  it,  a  necessity  may  not  exist  for 
the  appointment  of  a  guardian.  Thus,  if  property  is  in  the 
hands  of  a  testamentary  trustee,   no   appointment   should  be 

3  Shroyer  vs.  Richmond,  16  0.  S.  See  §  1275,  Trustee  nonresident. 

455.  §  1534^  Drunkards. 

*  §  10915  G.  C.  5  Describes    vs.    Wilmer.    69    Ala. 

25;    44    Am.    Rep.   501. 


1175  WHEN    NECESSAKY  §  1321 

made.®  Of  course,  if  a  guardian  has  already  been  appointed  by 
another  jurisdiction,  no  necessity  would  exist  ordinarily  for  a 
new  appointment  until  the  fonner  guardian  has  been  in  some 
manner  superseded.  Where  the  infant  has  no  estate,  and  its 
father  or  mother  be  living,  and  are  suitable,  the  Court  is  with- 
out power  to  appoint  a  guardian  to  have  the  care  and  custody 
of  such  infant.^ 

In  the  exercise  of  this  discretionary  power  a  distinguished 
author  says :  "  In  the  appointment  of  guardians  for  minors, 
the  power  of  the  Courts  of  Probate  is  as  undefined  by  statute, 
and  as  discretionary,  as  that  of  a  Court  of  chancery.  Having 
jurisdiction  of  the  subject-matter  by  the  residence  of  the  minor, 
and  in  an  application  for  the  exercise  of  the  jurisdiction,  it  is 
as  broad  as  that  of  any  Court  of  equity."  ^ 

The  Court  ought  never  to  make  an  appointment,  unless  it 
affirmatively  appear  that  there  is  some  good  reason  for  so  doing. 
Too  often,  I  fear,  appointments  are  made  merely  because  an 
application  is  made  for  that  purpose.  It  has  been  held  that  no 
appointment  of  a  guardian  could  be  made  if  the  ward  has  no 
estate.^ 

§  1321.     Minors. 

The  second  requisite  for  the  appointment  of  guardians  other 
than  for  imbeciles,  etc.,  and  drunkards,  is  that  the  person  for 
whom  application  is  made  is  a  minor.  Our  statute  provides 
that  all  male  persons  of  the  age  of  twenty-one  years  and  up- 
ward, and  all  female  persons  of  the  age  of  eighteen  years  and 

6  Vaccaro    vs.    Cicalla,    5    Pickle,  ute  applies  to  vagrants,  etc.    I  have 

63    fTenn  )  known    cases    where    it    was    highly 

^        ,.  „„  important    for    a    child    to    have    a 

T  Woerner  on  Guardians,  88.  guardian,   who   had   no   estate.      Of 

8  Gray's  Pro.  Law,  §§  766,  767.  course,  in  no  case  can  a  guardian 
Rice's  Pro.  Law  and  Prac,  476.  be   appointed    for    the   person    of   a 

9  7n   re   Baler,    8   N.   P.    107;    11  minor,    where    a    Pfrent    is    living 

without   a   finding   that   the   parent 

i^^c-  47.  ...  is  unsuitable,   and   before  a  finding 

I  very  much  doubt  this  decision.       to  that  effect  can   legally   be   made 

One   reason   of  the  Court's   opinion       the  parent  must  be  notified.     Boes- 

is  based  on  the  fact  that  there  is  a      ^lier  ys    Boescher,   7   N.   P.   418;    5 

Dec.  184. 
special  provision.  ^^^^^    .^    ^^^j    ^^^^^       jj^^^   ^^^ 

§8031  G.  C,  which  provides  how      g^^^j.^^  ^7  j)^^    5^0;  4  N.  P.   (N.S.) 

children   without   means,   etc.,   shall       567. 

be    taken    care    of — but    this    stat- 


§  1322  GUARDIAN  APPOINTMENT  1176 

upward,  are  considered  to  be  of  full  age,  any  law  and  custom 
to  tlie  contrary  notwithstanding/" 

Formerly  it  was  held  that  females  were  not  of  full  age  until 
they  were  twenty-one  years  of  age,^^  and  such  is  yet  the  law  in 
some  other  States/^  It  is  generally  held  that  a  person  becomes 
of  age  the  day  preceding  his  twenty-first  birthday,  if  a  male,  or 
her  eighteenth  birthday,  if  a  female." 

The  fact  that  a  minor  was  married  would  not  prevent  the  ap- 
pointment of  a  guardian  for  his  or  her  estate,  but  would  prevent 
such  appointment  of  the  person  of  a  female  if  she  were  mar- 
ried/'' 

The  fact  that  the  person  for  whom  a  guardian  is  appointed 
is  a  minor  is  a  jurisdictional  fact,  and  a  finding  to  that  effect 
must  be  made  or  the  proceeding  will  be  invalid." 

§  1322.    Resident  of  county. 

The  second  jurisdictional  fact  that  must  appear  before  the 
court  can  make  an  appointment  is  that  the  minor  must  be  a 
resident  of  the  county  in  which  it  is  sought  to  have  the  guard- 
ian appointed,  -This  residence  must  be  either  actual  or  con- 
structive, and  if  neither  exists,  the  appointment  is  void.^"  The 
statutes  of  many  of  the  States  provide  that  the  appointment 
may  be  made  if  the  minor  is  a  resident  or  has  property  within 
the  county.  A  property  qualification  does  not  exist  in  our 
State  except  as  to  the  appointment  of  non-resident  minors.^'' 

The  residence  of  the  minor  within  the  meaning  of  this  statute 

10  §  8023  G.  C,  §  1020.  Temporary      absence      frorxi      tlie 

11  McClintock  vs.  Chamberlin,  county  does  not  affect  the  appoint- 
Wright  547.  nient.      Sprague  vs.    Letherberry,   4 

12  See  Indiana,  etc.,  §  1028.  McLean,  442;  Fed,  Cases.  No.  13251. 

13  Hamlin  vs.   Stevenson,  4  Dana  i"?  §  1275. 

(Ky. ),  597;   Herbert  vs.  Turball,   1  So  long  as  both  parents  are  living 

Keble,   58!);    Fitzhugh   vs.   Denning-  the    residence   of   the   child    is    that 

ton,  6  Mod.  259;   Ross.  vs.  Morrow,  of  the  father,  if  he  be  dead,  tliat  of 

85  Tex.   172;    S,  C.   19   S.   W,  Rep.  the  mother,   if  both   are   dead  then 

1090-  of   the  grandparents,  etc.;    where  a 

14  §10929  G.   C.,    §1356.  father,    before    his    death,    gave    his 

15  Where  real  estate  is  devised  the  child  to  the  maternal  grandparents 
law  of  the  place  where  the  real  es-  in  another  state,  who  kept  the  minor 
tate  is  located  controls  as  to  when  continiiouslv  until  long  after  the 
a  minor  becomes  of  age.  Craig-  father's  death,  the  dornicile  of  the 
head  vs.  Pike,  4  Rec.  199.  chikl  becomes  that  of  the  grand- 
See  §  1891.  parents    and    a    Probate    Court    in 

16  CoiTimercial  Gazette  Co.  vs.  Ohio  has  no  jurisdiction.  In  re 
Dean.  25  Bull.  250;  Maxon  vs.  Saw-  John  Cleighton'   61   Bull.  355. 

yer,  12  0.  195, 


1177 


RESIDENT    OF    COUNTY 


1322 


means  domicile  or  home,  as  distinguished  from  residence,  which 
may  be  temporary  or  for  a  special  purpose.  The  residence  of 
an  infant  is  that  of  his  father,  if  legitimate,  or  of  his  mother, 
if  illegitimate.  After  the  death  of  the  parents  it  may  be  that 
of  a  grand-parent,  or  of  some  other  person  who  stands  in  the 
relation  of  a  parent.^^ 

In  law  the  residence  of  the  husband  is  the  residence  of  the 
wife.  But  if  the  wife  should  desert  the  husband,  and  take  with 
her  a  minor  child,  the  Court  of  the  county  in  which  the  mother 
actually  resided  might  legally  appoint  a  guardian. ^^ 

While  the  residence  of  the  father  is  the  residence  of  the 
minor,  yet,  after  the  father's  death,  the  mother  may  change  the 
domicile  of  her  infant  children  by  changing  her  own.  Doubts 
have  been  expressed,  however,  says  Woerner,^*'  as  to  her  power 
to  retain  for  her  children  their  domicile  while  changing  her 
own.  On  her  remarriage  she  ceases  to  be  the  head  of  the  fam- 
ily, and  necessarily  takes  the  residence  of  her  husband.     Then 


18  Woerner  on  Guardians,  80; 
Commercial  Gazette  Co.  vs.  Dean, 
25  Bull.  252. 

19  Maxon  vs.  Sawyer,  12  0.  195. 
The  facts  in  this  case  were,  that 

Mrs.  ]\Iaxon  was  the  mother  of  a 
child  by  a  former  marriage,  she 
married  aj^ain  and  deserted  her  sec- 
ond husband  and  took  with  her,  her 
minor  son.  She  afterwards  appren- 
ticed this  son  to  a  person  in  Penn- 
sylvania, and  the  son  went  there  to 
live.  The  Court  appointed  a  guard- 
ian at  the  residence  of  the  mother 
and  it  was  held  that  this  was  the 
residence  of  her  minor  child,  al- 
though her  husband  was  living  in 
another  county  and  the  child  itself 
was  living  in  another  State,  llie 
Court  says,  "the  father  is  the  nat- 
ural guardian  of  his  natural  chil- 
dren. On  his  death  the  mother  is, 
by  nature,  guardian  of  those  of  ten- 
der years,  and  entitled  to  their  cus- 
tody and  control.  If  she  marry,  un- 
less the  cliildren  reside  at  home, 
the  stepfather,  as  distinct  from  the 
mother,  has  no  authority  over  them. 


Her  actual  was  his  constructive  resi- 
dence; and  he  was,  therefore,  when 
the  guardian  was  appointed,  con- 
structively, with  his  mother,  in  the 
county  of  Ashtabula.  It  will  hardly 
be  contended  that  an  actual  resi- 
dence is  necessary  to  give  the  Court 
jurisdiction  of  the  appointment. 
Such  appointment  would  scarcely  be 
questioned,  when  the  actual  resi- 
dence of  the  minor  was  in  ihe 
county,  but  at  the  moment  of  the 
appointment,  he  was  over  the  county 
line,  for  a  temporary  purpose,  mere- 
ly. He  would  be  considered  as,  con- 
structively, within  the  county,  and 
the  appointment  would  be  valid." 
Jlaxon  vs.  Sawyer,  12  0.  208. 

20  Woerner  on  Guardians,  81. 

The  residence  of  a  child  is  the 
last  had  by  the  parent.  And  if 
the  father  is  domiciled  at  the  home 
of  his  father  at  the  time  of  his 
death,  then  the  residence  of  the  child 
is  that  of  the  grand  parents.  In  re 
Murray,  8  C.  C.  (N.S.)  498;  28 
0.  C.  C.  652  4  N.  P.  (N.S.)  233; 
16  Dec.  612. 


§  V^22  GUARDIAN — APPOINTMENT  1178 

lier  children  may  retain  the  residence  which  they  had  during 
the  mother's  widowhood." 

If  the  minor  is  within  the  county  for  a  temporary  purpose 
only,  and  has  an  established  residence  in  some  other  county 
in  the  State,  of  course,  no  appointment  could  be  there  made. 
But  there  might  be  circumstances  where,  if  a  minor  domiciled  in 
another  State,  was  actually  residing  in  this  State,  and  there 
was  necessity  for  a  guardian,  such  appointment  might  be  made, 
the  appointment  holding  good  only  until  set  aside  by  the  court. 
But  an  appointment  can  not  be  secured  where  an  infant  is 
brought  into  the  State  by  strategy."- 

Wliile  it  is  admitted  that  a  father,  or,  in  case  of  his  death,  the 
mother,  may  change  the  residence  or  domicile  of  the  infant  chil- 
dren, yet  there  has  been  some  question  whether  the  guardian  can 
legally  change  the  residence  of  his  ward.  In  an  early  Ohio 
case,  the  Court  makes  use  of  this  language :  "  He  may  re- 
move from  the  State  where  he  was  originally  appointed,  to  any 
other,  and,  although  it  was  once  a  greatly  controverted  ques- 
tion, yet  it  is  now  settled,  that  he  has  even  a  right  to  change  the 
domicile  of  his  ward.'^  The  reason  of  the  doubt  was  that  the 
exercise  of  the  right  would  put  it  in  the  jDOwer  of  a  guardian  to 
change  the  succession  to  the  personal  property  of  his  ward  —  a 
reason  which,  although  it  seems  to  have  bad  great  weight  with 
some  of  tlie  civil  law  la^vyers,  has  never  entitled  itself  to  much 
witb  English  or  American  jurists."  "* 

21  Lamar  vs.  Micou,  112  U.  S.  452;  may  extract  from  the  American 
Freetown  vs.  Taunton,  16  Mass.  51;  cases  may  be  thus  stated.  (1) 
Johnson  vs.  Copeland,  35  Ala.  521 ;  That  a  guardian  has  the  power  to 
Mears  vs.  Sinclair,  1  W.  Va.  185.  change  the  municipal  domicil  of  his 

22  Woerner  on  Guardians,  82 ;  cit-  ward.  (2)  That  the  domicil  of 
ing  In  re  Hubbard,  82  N.  Y.  90.  the  ward  is  not  necessarily  that  of 

23  Potinger  vs.  Wightman,  3  Meri-  his  guardian.  ( 3 )  That  the  nat- 
vale,  67.  ural  guardian  certainly,  and  the  tes- 

2-t  Pedan  vs.  Robb,  8  Ohio,   §  227.  tamentary    guardian    probably,    has 

In  this  case  the  guardian  was  the  the  power  to  change  the  national  or 

father.  gwasi-national  domicile  of  his  ward, 

Jacobs,   in   his  valuable  work   on  unless    expressly    prohibited    by    a 

Domicil,   §   260,  gives  the '  following  competent     Court.      (4)      That     the 

as  the  general  results  of  the  Ameri-  power  of  an  appointed  guardian  to 

can  cases.     "  Tlie  doctrine  which  we  change    the    national    or    quasi-nn- 


1179  DOMICILE  §  1322 

Woemer,  after  reviewing  the  authorities,  comes  to  the  con- 
clusion that  the  authority  conferred  upon  a  guardian  by  virtue 
of  his  appointment,  does  not  include  the  power  to  change  the 
ward's  national  or  State  domicile,  and  that  guardians  have  the 
power  to  change  the  municipal  domicile  to  the  extent  only  in 
which  it  is  granted  by  statute.  And  further,  that  the  right  of 
a  natural  or  testamentary  guardian  to  change  either  the  na- 
tional or  municipal  domicile  of  their  wards  does  not  rest  upon 
their  being  appointed  guardians,  but  upon  the  fact  that  they 
stand  in  relation  of  a  parent  to  the  child,  and  that  therefore 
even  a  testamentary  guardian  could  not  change  the  domicile 
unless  he  in  fact  occuijied  the  position  of  a  parent  or  the  will 
gave  him  power  to  so  change  the  domicile."^ 

Our  statutes  contain  no  express  provision  conferring  such 
power  on  the  guardians.  No  doubt,  if  the  guardian  is  ap- 
pointed for  the  estate  of  his  ward  only,  or  if  the  ward  have  a 
father  or  mother  living,  the  guardian  could  not  change  the 
residence  of  the  ward ;  where  the  guardian  is  guardian  of  both 
the  person  and  the  estate,  he  may  perhaps  change  the  residence 
of  the  ward  to  another  place  in  the  State,  the  Court  making  the 
appointment,  however,  retaining  jurisdiction  of  such  guardian. 
If  a  ward  move  to  another  State,  then  the  statute  provides  that 
the  local  guardian  shall  be  removed.^®  But  this  seems  to  be 
discretionary.  If  the  guardian  moves  from  the  State,  this  of 
itself  terminates  the  guardianship.  While  the  matter  is  not 
free  from  doubt,  the  rule  in  Ohio  probably  is  that  where  a 
guardian,  being  guardian  of  the  person,  or  person  and  estate, 
of  such  ward,  furnishes  a  home  in  his  own  family  for  the  ward, 
and  thus  stands  in  the  relation  of  a  parent,  in  the  absence  of 
fraud,  he  may  change  the  domicile  of  his  ward,  othei-wise  not. 

The  domicile  or  residence  of  the  parent  at  the  time  of  his 
death  is  the  domicile  of  the  minor,  and  remains  such  until  he 
legally  acquires  another;  and,  as  the  law  conclusively  presumes 
that  an  infant  cannot,  acting  for  himself,  change  the  same  dur- 
ing minority,  it  cannot  be  changed  by  the  infant's  act  until  he 

tional  domicil  of  his  ward  is,  to  say  25  Woerner   on   Guardians,   85. 

the  least,  very  doubtful."     5  Am.  &  26  §  10940    G.    C. 

Eng.  Ency.  of  Law,  867. 


§  1323  GUARDIAN APPOINTMENT  1180 

becomes  of  aj^e.  The  law  being  that  the  domicile  of  the  hus- 
band is  ahva3^s  the  domicile  of  the  wife,  it  would  follow  that 
if  a  female  marry  before  she  arrive  at  the  age  of  majority,  her 
domicile  might  by  this  act  be  changed  to  that  of  her  husband's. 
The  Court,  however,  making  the  original  appointment,  would 
retain  jurisdiction  of  her  estate  until  she  arrived  at  the  age  of 
majority.  If  a  guardian  were  to  be  appointed  after  her  mar- 
riage, he  must  be  appointed  in  the  county  of  the  domicile  of  her 
husband." 


i5 1323.  Statement  of  ward's  estate  to  be  filed  and  bond 
given.  Mortgage  in  lieu  of  freehold  surety.  Oath.  "Before 
a  person  is  appointed  guardian  of  the  person  and  estate,  or  of 
the  estate  only,  of  a  minor,  he  shall  file  in  the  office  of  the  court 
having  such  appointment  to  make,  a  statement  of  the  whole 
estate  of  the  minor,  its  probable  value,  and  also  the  probable 
annual  rents  of  the  minor's  real  estate,  verify  it  by  affidavit, 
and  give  bond,  with  freehold  sureties,  resident  of  the  state,  one 
of  whom  shall  reside  in  the  county  where  such  guardian  is  to 
be  appointed,  payable  to  the  state,  in  double  the  amount  of  the 
personal  estate,  belonp-ing  to  th6  minor,  and  of  the  gross  amount 
of  rents  that  probably  will  be  received  from  such  real  estate 
during  his  or  her  minority."     [R.  S.  §  6259.]-^ 

§  1323a.  Surety  in  lieu  of  freehold.  "Instead  of  the  free- 
hold surety,  so  required  on  his  bond,  such  person  may  execute 
to  such  minor  a  mortgage  upon  unencumbered  real  estate.  But 
first  an  abstract  of  his  title  thereto  must  be  furnished  to  the 
court  and  it  must  be  shown  by  affida-sdts  to  its  satisfaction,  that, 
exclusive  of  improvements  thereon,  such  real  estate  is  in  value 
sufficient  to  secure  the  bond.  The  mortgage  also  shall  be  duly 
recorded  in  the  county  where  the  propertv  is  situated,  and  filed 
with  such  court"     [R.  S.  §  6259.] ^s* 

n323b.  Oath.  "Such  bond  shall  be  conditioned  for  the 
faithful  discharge  of  the  duties  of  the  person,  as  such  guardian, 
and  be  approved  by  the  court  making  the  appointment.  Such 
person  also  shall  take  an  oath  that  he  will  faithfully  and  hon- 
estly discharge  the  duties  devolving  upon  him  as  such  guard- 
ian."    [R.  S.  §  6259.1^81 

27Woerner   on   Guardians,    81;    6  See  §  1360,  Custody  of  ward. 

Am.  &  Eng.  Ency.  of  Law,  Sub.  Dom-  28  §  10920  G.  €. 

idle.  28*  §  lOQQi  G.  C. 

See  §  1502,  Lunatic,  etc.  28-j-  10922  G.  C. 


1181  APPLICATION  §  1324 

§  1324.     Application  for  appointment. 

By  the  provisions  of  our  law,  as  set  forth  in  the  previous  sec- 
tions, no  appointment  can  properly  he  made  unless  a  proper  ap- 
plication is  made  in  writing  for  that  purpose,  and  this  applica- 
tion must  give  a  statement  of  the  whole  estate  of  the  minor, 
the  probable  value  thereof,  and  the  annual  probable  value  of 
the  rent  of  real  estate,  and  must  be  verified  by  affidavit.  These 
are  the  statutory  requirements,  but  there  are  other  matters 
which  it  is  equally  important  that  the  application  should  con-, 
tain.  It  ought  to  show,  first,  that  the  person  for  whom  the 
application  is  made  is  a  minor ;  second,  it  should  show  that  the 
minor  is  a  resident  of  the  county  in  which  the  application  is 
made;  third,  it  ought  to  show  whether  the  ward  has  a  parent 
living,  and,  if  the  father  be  alive,  his  name  should  be  given ;  if 
dead,  the  name  of  the  mother  should  be  given;  and  if  it  is 
sought  to  have  a  person  other  than  the  father  or  mother  ap- 
pointed guardian  of  the  person  of  the  ward,  a  statement  should 
be  made  as  to  the  unsuitableness  of  such  parent  to  be  guardian. 
It  is  sometimes  the  practice  in  such  an  application  to  make  a 
suggestion  as  to  certain  persons  for  sureties  on  the  bond.  The 
omission  to  file  a  statement  as  required  by  statute  has  been  held 
not  to  avoid  the  appointment."^ 

The  statute  contemplates  that  the  application  shall  be  made 
by  the  person  who  expects  to  be  appointed  guardian,  but  I  ap- 
prehend it  would  be  sufficient  if  made  by  any  person  interested, 
if  it  contain  the  necessaiy  or  proper  statements.  The  object 
of  the  statement  is  to  acquaint  the  Court  with  all  the  facts,  and 
particularly  the  value  of  the  property,  so  that  the  Court  may 
fix  the  penalty  of  the  bond.  The  following  may  be  used  as  a 
form: 

§  1325.     Form  of  application  for  appointment  of  guardian. 

The  State  of  Ohio, 

County,  ss. 

In  the  Probate  Court. 

The  undersigned ,  a  resident  of  the  State  of  Ohio,  and 

whose    postoffice    address    is ,    in .  . 

29  Lee  vs.   Ice,   22  Ind.   384.  tory.     But    if    not    then    filed,    the 

In  this  case  a  statement  was  filed       guardian  might  be  removed, 
afterwards  in  the  form  of  an  inven- 


§  132G  GUARDIAN APPOINTMENT  1182 

county.  Ohio,  hereby  makes  application  for  guardianship  of 

a'^ed   j'ears,  ,  190.  .  .  .,  minor.  .   and  heir.  . 

of    ,  deceased ;   and  being  duly  sworn,   say  that  said 

minor    resident .  .    of    county,  aforesaid,  and  that 

the   condition,    situation   and    amount   of   all    the    property    of    said    minor 

as  I  verily  believe,  is  as  follows,  to-wit:      Personal  estate,  con- 

sistin"  of   ,  amounting  to   dollars,  and  real 

estate situate  in ,  valued  at   

dollars,  the  annual  rents  of  which  amount  to dollars. 

The  following  freeholder.s  are  offered  as  sureties:    


The  State  of  Ohio,   County,  ss. 

: being  first  duly  sworn,  says  the  foregoing  statement 

-is   true  as    ..he   verilv   believes. 


Sworn  to  before  me  and  signed  in  mv  presence,  this day  of , 

A.   D.    19... 

,  Probate  Judge. 

§  1326.     Notice  to  parties. 

The  statute  nowhere  provides  that  notice  must  be  given  to 
any  person  when  an  application  is  made  for  the  appointment  of 
a  guardian.  Our  Supreme  Court  has  said  that  "  proceedings 
for  the  appointment  of  guardians  are  not  inter  partes  or  ad- 
versary in  their  character,  that  they  are  properly  proceedings 
in  rem,  and  are  instituted  ordinarily  by  application  made  on  be- 
half of  the  ward  for  his  benefit.^"  And  it  is  further  held  that 
it  was  not  essential  to  the  jurisdiction  of  the  Court  that  the 
ward  be  actually  before  the  Court  unless  by  reason  of  his  right 
to  choose  a  guardian.  It  has,  however,  been  held,  and  right- 
fully so,  that  if  it  is  sought  to  have  a  guardian  appointed  for 
the  care  and  custody,  or  as  commonly  said,  of  the  person  of  the 
ward,  or  for  both  the  person  and  estate,  then  it  is  necessary  to 
notify  the  parent,  if  living;  and  that  an  appointment  made 
without  such  notice  would  be  void.^^ 

The  Court  ought  to  be  satisfied,  before  an  appointment  is 
made,  that  such  persons  as  have  the  welfare  of  the  minor  at 

30  Shroyer  vs.  Richmond,  16  0.  S.  property    is    concerned.      Appeal   of 

466.  Gibson,' 154  Mass.  378;   S.  C.  28  N. 

3iBoescher  vs.  Boescher.  7   N.  P.  E.    Rep.    296;    Kurtz    vs.    St.    Paul, 

184;  5  Dec.  184;  Fisher  vs.  Madden,  etc.,  Ry.  Co..  48  Minn.  339;  S.  C,  51 

12_Dec.  83;  Woerner  on  Guardians,  X.  W.'Rep.  221. 

1^^-   .  If    tlie     minor     is     the    child    of 

It  IS  supposed  that  the  court  will  divorced  parents,  or  where  under 
look  after  the  interests  of  the  in-  Juvenile  Court,  etc.,  it  may  be 
fant;  and  no  one  else  can  have  any  necessarv  to  notify  the  court  grant- 
interest    in    him    in    so   far   as    his  ing  the  divorce 


1183  CHOICE   OF  §1327 

heart  have  knowledge  of  the  proceedings.  A  valid  appoint- 
ment could  be  made  for  the  estate  of  a  minor  without  notice  to 
any  one.  But  the  better  practice  is  in  all  cases  where  the 
parents  are  living,  that  the  father,  if  living,  or  the  mother, 
where  the  father  is  dead,  be  notified  and  assent  in  writing  to 
the  appointment. 


§  1327.  When  minor  may  choose  guardian ;  or  court  may 
appoint.  "A  male  infant  overe  the  age  of  sixteen  years,  or  a 
female  infant  over  the  age  of  fourteen  years,  may  select  a  guard- 
ian, who,  if  a  suitable  person,  must  be  appointed.  If  such 
minor  fails  to  select  a  suitable  person,  an  appointment  may  be 
made  without  reference  to  his  or  her  wishes.  A  minor  shall 
not  select  one  person  to  be  the  guardian  of  his  or  her  estate 
only,  and  another  to  be  guardian  of  the  person  only,  unless 
the  court  which  ftppoints  is  of  the  opinion  that  the  interests 
of  such  minor  will  thereb}^  be  promoted."     [103  v.  264.]  '*- 


§  1328.    How  made,  etc. 

A  previous  section  provides  the  ages  at  which  a  minor  may 
make  a  choice  of  a  guardian.  If  the  minor  is  of  the  age  at 
which  he  can  exercise  a  choice,  and  he  neglects  to  make  such 
choice,  it  would  be  proper  for  the  Court  to  cite  him  to  appear 
for  that  purpose,  and  if  he  fail  to  appear,  then  proceed  to  make 
an  appointment.^^ 

A  minor  shall  not  have  the  right  to  choose  one  person  as 
guardian  of  his  estate  and  another  as  guardian  of  his  person, 
unless  the  Court  is  of  the  opinion  that  such  separate  guardians 
would  be  for  the  best  interest  of  the  ward.  The  Court  is  not 
obliged  to  appoint  the  person  selected  by  the  ward  unless  he  be 
a  suitable  person.  But,  if  the  person  is  a  suitable  one,  the 
Court  must  make  the  appointment.^*     If  the  ward  has  once  ex- 

32  §  10918  G.  C.  to  appear.     §§  101,  10.3. 

33  The   forms   and   entries   provid-  34  Adams'  Appeal,   38  Conn.   304 ; 
ing  for  the  citation  of  an   executor  Estate    of    Lewry,    12    Phila.    120; 
to  take  or  renounce  administration,  Kelley  vs.  Smith,  1.5  Ala.  687. 
might  be  used  for  requiring  a  ward 


§  1328  GUARDIAN  APPOINTMENT  1184 

ercised  a  clioice,  and  the  Court  has  confirmed  the  same,  the  ward 
cannot  choose  again  at  pleasure.^^ 

If  a  guardian  has  been  appointed  for  a  minor  before  he 
reaches  the  age  of  choice,  he  has  a  right  tlien  to  exercise  a 
choice  similarly  as  if  he  were  of  the  required  age  when  the 
guardian  was  first  appointed.  The  guardianship  of  a  former 
guardian,  however,  does  not  terminate  until  the  choice  is  act- 
ually made  and  confirmed  by  the  Court.  Then  it  is  the  duty  of 
the  fonner  guardian  to  file  his  account  and  settle  with  his  suc- 
cessor. The  right  to  choose  another  guardian,  upon  reaching 
the  required  age,  does  not  extend  to  testamentary  guardians.^® 
If  the  minor's  father  or  mother  be  living,  he  has  no  right  to 
choose  some  other  person  to  be  guardian  of  his  person  if  such 
father  or  mother  be  a  suitable  person  to  have  the  care  and  cus- 
tody  of  such  ward.  Then  he  can  only  make  choice  of  some  one 
to  be  guardian  of  his  estate.  The  right  of  choice  should,  for 
obvious  reasons,  says  Woerner,  be  exercised  in  open  Court,  and 
in  the  presence  of  the  judge  who  is  to  make  the  appointment.^^ 
He  further  states  that  some  Courts  apply  this  rule  stringently.^* 

Some  States  have  statutes  to  this  effect;  ours  does  not  pro- 
vide that  the  ward  must  make  the  choice  in  open  Court  —  yet 
the  Court  ought  to  know  in  some  satisfactory  manner  that  the 
person  sought  to  be  appointed  is  the  actual  choice  of  the  ward. 
The  judge  should  consider  the  interests  of  the  ward  generally 
rather  than  his  wishes.^^* 


In  the  Matter  of 

the  Guardianship  of 


FORM  OF  CHOICE  OF  GUARDIAN. 

Probate  Court, County,  Ohio. 

No 

Choice  of  Guardian. 


The  undersigned  hereby  make,  .choice  of  A.  D.,  a  resident  of 

in  thio  county,  as  guardian  of  the  person  and  estate  of  the  persons 

hereafter  designated,   all  of  whom   are  residents   of  this   county,   and   re- 

35  Lee's   Appeal,    27    Pa.    St.    229.  37  Woernor  on  Guardians,  94. 

In  case  of  death  or  resignation  of  38  Burrows    vs.    Bailey,    34    Mich, 

guardian     the     ward     might     again  64. 

choose.  38»  Compton  vs.  Compton,  2  Gill. 

38  Woerner  on  Guardians,  94.  241. 


1185  parent's  choice  §  1329 

spectfully  petition  the  Court  to  appoint  h as  such  guardian.     And  the 

undersigned   parent of  said  minors  join  in  said   choice 

and  petition. 

In  witness  whereof hereunto  subscribe name.  .,  this 

day  of A.  D.  190.  .. 

,  Parent,  or  child  beyond  age  of  choice. 

Witness : 


§  1329.    Parent's  choice.* 

The  right  of  guardianship  by  nature  gives  to  the  father,  if 
living,  and  if  dead,  the  mother,  the  right  to  the  care  and  cus- 
tody of  the  minor,  and,  if  suitable,  no  one  can  therefore  be 
appointed  for  the  person  of  the  minor.  The  statute  gives  the 
right  to  a  father,  or,  in  case  of  his  death,  the  mother,  to  ap- 
point a  guardian  of  both  the  person  and  estate  of  his 
minor  children  by  last  will  and  testament.  But  in  no  other  way 
has  the  parent  the  absolute  right  to  make  a  choice  of  a  guard- 
ian for  his  children.  If  the  parent  is  a  suitable  person,  as 
the  law  provides  that  no  one  else  can  be  appointed  guardian  of 
the  person^  and  recognizes  that  it  is  usually  for  the  interest  of 
the  ward  that  one  person  be  both  guardian  of  the  person  and 
the  estate  of  the  ward.  Courts  are  inclined  in  such  cases  to  al- 
ways give  the  appointment  of  the  estate  to  such  parent.  Recog- 
nizing also  the  fact  that  the  parent's  interest  in  the  welfare  of 
the  child  is  usually  superior  to  that  of  any  one  else,  Courts  are 
inclined  to  appoint  the  person,  if  otherwise  suitable,  who  is 
recommended  by  the  parent.  Our  Courts  have  held  that  a 
choice  made  by  an  ante-nuptial  contract  as  to  religious  teach- 
ings of  the  children  should  be  respected,  and  a  guardian  ap- 
pointed that  would  carry  them  into  effeet.*"  Dyi^ig  requests 
of  a  parent,  for  the  very  strong  reason  that  a  person  in  that 
condition  would  only  have  the  welfare  of  the  child  in  view,  are 
usually  followed,  other  things  being  equal." 

39  This    form    should    always    be  ^i  Watson    va.    Warnock,    31    Ga. 

used  where  there  is  a  living  parent  71G;  Bennett  vs.  Byrne,  2  Barb.  Ch. 

or    child   under    the    age    of    choice.  (N.  Y.)     216;    Cozine    vs.    Horn,    1 

And  children  over  twelve  if  female  Bradf.    (N.  Y.)     143;    Underbill    vs. 

and  fourteen  years  of  age   if  male.  Dennis,  9  Paige   (N.  Y.)   202;  In  re 

*Cited,   Hare   vs.   Scars,   4  N.   P.  Turner,  4  C.  E.  Green   (N.J.)   433; 

(N.  S.)  506;  17  Dec.  503.  Badenhoof  vs.  Johnson,  11  Nev.  87; 

<o  In  re  Minors  of  Luck,  7  N.  P. 
49;  10  Dec.  1. 


§  1330  GUARDIAN  APPOINTMENT  1186 

The  riglit  of  the  parent  to  exercise  the  guardianship  himself, 
or  select  some  one  else  for  that  purpose,  should  not,  for  the 
reason  that  it  is  made  by  the  parent,  escape  the  scrutiny  of  the 
Court.  Unnatural  as  it  is,  the  fact  sometimes  becomes  de- 
veloped after  an  appointment  has  been  made,  that  the  parent 
did  not  have  the  welfare  of  the  child  as  the  sole  object  in  view. 

§  1330.     Court's   choice. 

jSTo  power  that  the  Probate  Court  possesses  is  equal  in  deli- 
cacy and  importance  to  the  power  given  over  the  appointment 
and  control  of  guardians.  The  march  of  civilization  has  com- 
pletely demolished  the  rule  that  a  parent,  or  any  one  else,  has 
any  right  to  either  the  custody  of  the  minor's  person  or  the 
control  and  management  of  his  estate  which  will  conflict  with 
the  sole  and  best  interests  of  the  child's  welfare.  Society  de- 
mands that  every  other  consideration  shall  be  subservient  to  the 
child's  interest.  Our  Supreme  Court  has  recognized  this  rule 
in  its  full  force  when  it  has  decided  that  a  parent  has  no  right 
to  even  the  custody  of  the  child  unless  such  custody  is  in  accord 
with  the  interest  and  welfare  of  the  child.*"  Defenseless  by 
want  of  strength  of  body,  as  well  as  of  mind,  to  properly  care 
for  its  physical  wants,  forbidden  by  law  to  assume  a  con- 
tractual relation  for  the  care  for  its  estate,  the  child  appeals  to 
the  Court  in  this  hapless  state  that  some  one  be  appointed  who 
will  assume  the  discharge  of  these  duties  in  such  a  manner  as 
will  best  protect  it  in  all  its  rights.  Not  even  able  to  discern 
who  would  be  a  proper  person  for  this  important  trust,  the  ap- 
peal comes  with  great  force.  The  Court  should  in  all  cases 
recognize  the  responsibility  that  is  placed  upon  it  and  select  the 
very  best  person  that  can  be  procured  for  this  important  duty. 
In  no  case  should  a  guardian  who  is  not  of  high  moral  character, 
and  of  sufficient  mental  acumen  to  recognize  the  duties  that 
might  be  incumbent  upon  him,  be  appointed  for  the  custody 

Knott   vs.    Cotte,    2    Phillips,    192;  vs.  Smith,  2  Dem.  (N.  Y.)  43;  9  Am. 

Kaye's  Case,  L.  R.  1  Ch.  387;  Mat-  &  Eng.  Ency.  of  Law,  93;  Tyler  on 

ter  of  de  Marcellin,  31  N.  Y.  Supr.  infancy,  251. 

207  and  4  Redf.   (N.  Y.)  299;  Smith  «  Clark  vs.  Bayer.   32  0.   S.   299. 


1187  WHO   INELIGIBLE  §  1331 

and  control  of  the  person  of  a  minor.  The  guardian 
ought  to  be  a  person  who  is  in  accord  with  the  civilization  in 
which  we  live,  and  would  endeavor  to  inculcate  such  moral 
principles  into  the  child  as  will  make  him  a  good,  useful  citizen. 
If  he  is  also  the  guardian  of  the  estate,  his  business  capability, 
as  well  as  his  financial  responsibility,  should  be  taken  into  con- 
sideration. The  Court  should  inquire  into  these  matters,  and 
if  the  applicant  has  been  successful  in  his  own  private  affairs 
this  fact  will  not  be  in  his  disfavor.  In  all  cases  the  Court 
should  further  fully  satisfy  itself  that  the  guardian  has  no 
sinister  motive  in  being  appointed.^^  It  may  be  difficult  to  al- 
ways find  persons  that  will  fill  these  ideals,  but  it  should  be  a 
sincere  object  to  approach  them  as  near  as  possible  in  every 
case. 

§  1331.  Who  ineligible  by  law.  "No  person  who  is  or  has 
been  an  administrator,  or  executor  of  a  last  will,  shall,  prior  to 
the  approval  of  his  final  account  as  such  executor  or  administra- 
tor, be  appointed  a  guardian  of  the  person  and  estate  or  of  the 
estate  only  of  a  minor  who  is  interested  in  the  estate  administered 
upon  or  entitled  to  an  interest  under  or  by  virtue  of  such  will. 
But  an  executor  or  administrator  may  be  appointed  a  guard- 
ian of  the  person  only  of  a  minor."     [108  v.  1162.]** 

In  addition  to  the  prohibition  contained  in  the  above  section 
of  the  General  Code,  may  be  added  that  a  Probate  Judge  could 
not  be  appointed  as  guardian  during  his  incumbency  of  the 
office.*^  And  while  the  statute  does  not  in  direct  terms  say  that 
an  appointment  of  a  non-resident  of  the  State  is  void,  yet  the 
conclusion  is  irresistible  that  such  is  the  fact  resulting  from 
the  statutory  provision.'?  that  a  removal  of  a  guardian,  already 
appointed,  from  the  State  terminates  the  guardianship.*" 

The  statute  also  provides  that  a  removal  from  the  country  is 
a  good  cause  for  a  guardian  to  be  removed  from  his  trust.     Of 

43  The  guardian's  standing  in  the  See   §  1512,  Lunatics, 

commnnitv,  his  oliaracter  as  to  so-  See  §  1896,  Adoption, 

briety  ancL  morality,  his  disposition  44  §  10917  G.  C. 

and  "habits,   and    his   love   of   home  «§§  1589-90  G.  C,  §9. 

life    and    children    should    not    be  46  §  109.36  G.   C,   §  1.358. 

overlooked.  'See  Scobey  vs.  Gano,  35  O.  S.  550. 


§  1332  GUARDIAN  APPOINTMENT  1188 

course,  a  minor,  an  idiot,  lunatic,  or  imbecile;  should  not  be 
appointed.  If  an  appointment  is  made  of  a  person  ineligible 
bv  the  statute  to  be  the  guardian,  such  appointment  is  void,  and 
can  bo  attacked  in  a  collateral  proceeding.*^ 

It  was  formerly  the  law  that  a  married  woman  could  not  be 
a  guardian.  Later,  this  was  a  subject  of  considerable  contro- 
versy, but  now  the  law  is  settled  that  a  married  woman  occu- 
pies the  same  relation  as  a  single  woman,  and  therefore  there 
is  no  legal  impediment  to  her  appointment.'*^ 

§  1332.     Who  should  not  be  appointed. 

In  addition  to  the  statements  made  in  the  previous  sections, 
no  one  should  at  any  time  be  appointed  for  either  guardian  of 
the  person  or  estate  of  the  minor  v>^ho  has  not  the  interest  and 
welfare  of  such  minor  at  heart.  No  person  ought  to  be  ap- 
pointed who  is  of  such  a  character  that  if  he  were  appointed  a 
good  cause  for  his  removal  would  exist.  That  is,  he  ought  not 
to  be  an  habitual  drunkard  ;  he  ought  not  to  be  a  man  who  would 
neglect  his  duties,  or  be  incompetent,  or  a  non-resident,  or  guilty 
of  any  fraudulent  conduct.*^  He  ought  not  to  be  a  person 
whom  the  Court  would  refuse  to  appoint  if  such  or  similar  rea- 
sons exist  which  would  warrant  the  Court  in  not  appointing  an 
administrator  or  trustee  of  an  estate.^" 

In  addition  to  these  matters,  the  guardian  ought  to  be  a  per- 
son who  has  the  confidence  of  the  child  and  who  can  place  him- 
self in  loco  parentis.  Therefore,  other  things  being  equal,  the 
child's  own  wishes  should  be  consulted,  even  though  it  has  not 
arrived  at  the  age  of  choice,  and  so  ought  the  wishes  of  friends 
and  relatives.  In  any  case,  the  Court  will  be  very  derelict  of 
its  duties  if  it  appoints  a  person  of  irresponsible  character  to 
have  either  the  control  of  the  estate  or  person  of  the  ward. 

*7  Scobpy  vs.  Gano,  35  0.  S.  550.  *s  See  §  10936  G.  C.,  §  1358. 

<8See   §1307,  Testamentary  Gdn.  so  As  to  who  are  proper   persons 

See  Wilson  vs.  Wilson,   17    0.   S.  to  be   appointed   administrator,   see 

151,  as  to  settlement  where  a  person  §  115,   and   Trustees,   see   §  1252. 
occupied  the  position  of  administra- 
tor and  guardian. 


1189  MUST    GIVE    BOND  §  1333 

The  very  best  person  that  can  be  secured  to  accept  the  trust 
should  always  be  obtained.'^^ 

§  1333.     Must  give  bond. 

At  common  law,  the  natural  guardian  had  a  right  to  receive 
property  without  giving  a  bond,  but  by  the  law  of  our  State  no 
guardian  can  be  appointed  or  perform  an}^  legal  act  as  a  guard- 
ian without  having  given  a  bond.  With  us  the  giving  of  a  bond 
is  a  condition  precedent  to  his  right  to  act,  and  although  letters 
of  guardianship  were  issued,  he  would  still  have  no  more  power 
or  authority  than  before,  which  was  none  at  all.^^  An  excep- 
tion is  made  in  the  case  of  a  testamentary  guardian  where  the 
matter  is  left  in  the  discretion  of  the  Court,^^  and  the  rightful 
tendency  of  the  Courts  is  to  require  a  guardian  in  every  case 
to  give  a  bond.  This  bond  must  be  secured  by  freehold  sureties 
resident  of  the  State,  one  of  whom  shall  b©  a  resident  of  the 
county.^* 

The  general  statute  provides  that  sureties  must  reside  in 
this  State  and  worth  in  the  aggregate  double  the  sum  to  be  se- 
cured beyond  the  amount  of  their  debts.^^  The  language  of 
sec.  10920,  G.  C,  gives  ground  for  the  practice  that  two  sure- 
ties should  be  required  on  each  bond,  but  it  is  held  that  one 
is  sufficient.^''  Even  a  guardian  of  the  person  only  must  give  a 
bond.^''  The  amount  of  the  penalty  of  the  bond  in  the  ease  of 
a  guardian  for  the  estate  shall  be  double  the  amount  of  the 
personal  estate  belonging  to  said  minor,  and  also  the  gross 
amount  of  rents  that  will  be  received  by  the  guardian  from  the 

51  "The  Court  upon   which   it   de-  See  Red.  Sur.  Prac,  481. 

volves    to    determine    the   guardian-  ^2  Ranncy,  Judge,  in  Carpenter  vs. 

ship  will  pronounce  upon  that  qucs-  Sloane,  20  0.  327. 

tion    in   accordance   with    what   ap-  53  §  85. 

pears  to  be  for  the  best  interests  of  s*  §§  10920-1-2   G.    C,   §  1323. 

the    minor,    talking    into    view    not  r.r,  §  10219    G.    C,    §11248    G.    C, 

merely  his    temporary   welfare,   but  §  241. 

the   state   of   his   affections,   attach-  ''S  Arrowsmith  vs.  Glcason,  129  U. 

ments,   his   training,   education   and  S.  86;   Slagle  vs.  Enterkin,  44  0.  S. 

morals."     Bradford,  Sur.,  in  Foster  637. 

vs.  Mott,  3  Bradf.  Sur.,  409.  "  §  10923   G.   C,   §  1314. 


i^  1334  GUARDIAN APPOINTMENT  1190 

real  estate  during  the  ward's  minority/^  And  in  the  case  of 
a  guardian  of  the  person,  it  shall  be  double  the  probable  expense 
in  maintaining  and  educating  such  minor  during  one  year.^® 

An  exceedingly  responsible  duty  rests  upon  the  Probate 
Judge  in  the  acceptance  of  sureties  on  guardian's  bond.  ISTot 
only  for  the  reason  that  it  is  difficult  sometimes  to  ascertain  the 
true  financial  standing  of  persons,  but  also  from  the  fact  that 
a  guardianship  usually  runs  a  period  of  years.  For  these 
reasons  the  acceptance  of  trust  companies  for  sureties  is  meet- 
ing with  considerable  favor.®"  What  was  said  about  bonds 
generally,  in  previous  chapters,  may  be  applicable  here.®^  As 
a  rule  of  precaution,  it  would  l>e  w^ell  to  have  the  sureties  qualify 
as  to  their  financial  standing  and  sign  in  open  Court®^ 

§  1334.     Form  of  guardian's  bond. 

Know  all  Men  hy  these  Presents: 

That  we, ,  are  held  and  firmly  bound  unto  the  State 

of  Ohio,  in  the  sura  of dollars,  for  the  payment  of  which 

we  hereby  jointly  and   severally  bind  ourselves,   our  heirs,   executors  and 

administrators.     Signed    by    us,    and "  dated    at ,    Ohio, 

this day   of A.   D.    190... 

The  condition  of  the  above  obligation  is  such,  that  whereas,  the  above 

bound has  been  appointed  by  the  Probate  Court  of 

county,  Ohio,  guardian  of  the  person  and  estate  of 

,  minor  child.  .  .  .of ,  deceased,  late  of 

,  which  appointment  the  said has  accepted. 

Now,  if  the  said shall  faithfully  discharge  all  h.  .  .  . 

duties  as  such  guardian,  as  is  required  by  law,  then  this  obligation  to  be 
void,  otherwise  to  remain  in  full  force. 
Executed  in  presence  of 


This  bond  approved  in  open  Court,  this day  of 

A.  D.   190. .. 

,  Probate  Judge. 

The  State  of  Ohio, county,  ss. 

I, ,   guardian   of ,   minor .  . ,   do 

ijoeinnn-  ^'  z^''   o  ioT.  lie   sufficient   to   secure  all   amounts 

60  §710-150  et  seq.  See  chapter  '^''"^^'  ™^'^'  ^°™^  i^*°  *'^^  guardians 
1.3a  on  administration  by  trust  possession  during  such  guardianship, 
companies.  '        '  Potter  vs.   State.  23  Ind.  550,  607; 

Will'  ^^^^l^ff^^*^.^''^^  •     ^  West    vs.    xorsythe,    34    Ind.    418; 

62Tlie  amount  of  the  bond  is  de-  .„  „,  ,    "'.     '    ,   „^o     ,,  ,^ 

termincd  by  that  statement  required  ^^^^^  ^^-  ^^^^'  61  Ind.  268;  Matter 

of  the  guardian;  but  if  a  statement  of  Hedges,   1   Edw.  Ch.    (N.  Y.)    57. 
is  not  filed,  then  the  amount  should 


1191  MORTGAGE     SECURITY  §  1335 

solemnly  swear  and  affirm  that  I  will  faithfully  and  honestly  discharge  the 
duties  devolviug  upon  me  as  such  guardian,  as  I  will  answer  to  God. 


Sworn  to  before  me,  and  signed  in  my  presence,  this day  of 

A.  D.   190... 

,  Probate  Judge. 

PROPERTY    STATEMENT    OF    SURETIES. 

The  State  of  Ohio, county,  ss. 

,  one  of  the  sureties  on  the  bond  of 

as  guardian   of ,   being   duly   sworn,    says   that  he   is   a 

resident  of county,   Ohio ;   that  he   is  worth   beyond  the 

amount  of   all  his   debts  at  least  double  the  penalty   of  the  within   bond 

and  that  he  has  real  estate  liable  to  execution  in  the 

State  of  Ohio  amounting  in  actual  value  at  least  to  the  sum  of 

dollars,  beyond  the  amount  of  all  his  debts,  legal  exemptions  and 

liabilities   as   surety   or   otherwise. 


Sworn  to  and  subscribed  before  me  this day  of . 

A.  D.  190... 


The  State  of  Ohio, County,  ss. 

,  one  of  the  sureties  on  the  bond  of 

as  guardian  of ,   being  duly  sworn   says  that  he   is  a 

resident  of county,  Ohio;  that  he  is  worth  beyond  the 

amount  of  all   his   debts  at  least   double  the   penalty  of  the  within   bond 

and    that   he   has   real   estate   liable   to   execution   in    the 

State  of  Ohio  amounting  in  actual  value,  at  least  to  the  sum  of 

dollars,  beyond  the  amount  of  all  his  debts,  legal  exemptions  and 

liabilities   as   surety  or   otherwise. 


Sworn  to  and  subscribed  before  me  this day  of. 

A.  D.  190... 


§  1335.     Mortgage  in  lieu  of  freehold  sureties. 

The  statute  further  provides  that  instead  of  giving  freehold 
surety  on  the  bond,  the  giiardian  may  execute  a  mortgage  upon 
good  and  unincumbered  real  estate.  First  satisfying  the  Pro- 
bate Court  by  furnishing  an  abstract  of  title  to  the  property, 
and  also  showing  by  affidavits  that  the  property  is  of  sufficient 
value  exclusive  of  all  improvements  thereon  to  secure  the  bond. 
The  inconvenience  of  this  proceeding  detracts  from  its  popu- 
larity, and  yet  it  is  one  of  the  best  kind  of  surety  that  can  be 
taken.  After  the  mortgage  is  properly  executed,  it  must  be 
recorded  in  the  county  in  which  the  real  estate  is  situate,  and 
thereafter  filed  with  .the  papers  in  the  Probate  Court.*'^  The 
following  is  given  as  a  proper  form  for  a  mortgage  in  such 
cases : 

«3  §  10920   G.  C,    §  132.3. 


§  1336  GUARDIAN  APPOINTMENT  1192 

Know  all  Men  by  these  Presents: 

That  whereas,  A.  B.,  of county,  Ohio,  having  applied 

for  appointment  as  guardian  of  the  person  and  estate  (or,  estate  only,  if 
so)  of  C.  D.  (and  if  more  than  one  minor  is  named  in  the  bond,  here  name 
them  all),  child  (or  children)  of  E.  F.,  deceased.  Now  therefore  the  said 
A.  B.,  in  lieu  of  freehold  surety  and  in  pursuance  of  the  statute  in  such 
case  made  and  provided,  and  in  consideration  of  the  trust  to  be  imposed 
upon  said  A.  B.,  by  reason  of  said  appointment,  does  hereby  grant,  bargain, 
sell  and  convey  to  the  said  (here  name  the  said  minor  or  minors)  his  (or, 
her,  or  their)  heirs  and  assigns  forever,  the  following  described  real  estate, 

situate  in  the   (city,  or  village,  or  township,  as  may  be)   of , 

in  the  county  of ,  and  State  of  Ohio,  to-wit:  (Here  de- 
scribe the  property  by  metes  and  bounds,  or  in  other  suitable  way.)  And 
all  the  estate,  title  and  interest  of  the  said  A.  B.,  either  in  law  or  in 
equity  of,  in  and  to  the  said  premises;  together  with  all  the  privileges  and 
appurtenances  to  the  same  belonging,  and  all  the  rents,  issues  and  profits 
thereof;  to  have  and  to  hold  the  same  to  the  only  proper  use  of  the  said 
(here  name  the  said  minor  or  minors)  his  (or  her,  or  their)  heirs  and 
assigns  forever.  And  the  said  A.  B.  for  himself  and  for  his  heirs,  execu- 
tors and  administrators,  does  hereby  covenant  with  the  said  (herS  again 
name  said  minor  or  minors)  his  (or  her,  or  their)  heirs  and  assigns,  that 
he  is  the  true  and  lawful  owner  of  the  said  premises,  and  has  full  power 
to  convey  the  same;  and  that  the  title,  so  conveyed,  is  clear,  free,  and  un- 
incumbered ;  and  further,  that  he  will  warrant  and  defend  the  same  against 
all  claim  or  claims  of  all  persons  whomsoever.  Provided,  nevertheless, 
that  if  the  said  A.  B.  shall  faithfully  discharge  all  of  his  (or  her)  duties 
as  said  guardian,  then  these  pres«its  shall  be  void. 

In  witness  whereof,  the  said  A.  B.  (and  if  he  has  a  wife,  here  add,  and 
W.  B.,  his  wife,  the  latter  of  whom  hereby  releases  her  right  and  expectancy 
of  dower  in  the  said  premises)    has  hereunto  set  his  hand  and  seal    (or, 

have  hereunto  set  their  hands  and  seals)  this day  of , 

in  the  year  of  our  Lord,  one  thousand  nine  hundred  and 

Signed,  sealed  and  acknowledged  in  the  presence  of  us. 

A.   B.    (seal) 

W.  B.   (if  so)    (seal) 64 

§  1336.     Oath. 

The  statute  is  equally  explicit  that  in  all  cases  a  guardian 
shall,  before  entering  upon  the  discharge  of  his  duties,  take  an 
oath  that  he  will  faithfully  and  honestly  discharge  the  duties 
devolved  upon  him  as  such  guardian,®^  and  this  same  oath  must 
be  administered  whether  the  person  be  guardian  of  the  person 
or  estate  of  the  ward."^ 

The  form  of  such  oath  will  be  found  upon  the  form  of  bond 
previously  given.  It  is  usually  the  practice  for  the  Probate 
Judge  to  administer  this  oath,  but  I  apprehend  it  may  be  ad- 
ministered by  any  person  who  is  qualified  to  administer  oaths 
generally. 

«4  Giauque  Manual  for  Guardians  «5  §  is^^s. 

and  Trustees,   37.     It   must   be   ac-  86  §  10923  G.   C,   §  1314. 

knowledged  the  same  as  any  other 
mortgage. 


1193  ORDER  §  1337 

§  1337.      Bond  not  void  on  account  of  informality.     "No 

bond  executed  by  a  guardian  shall  be  void,  or  held  invalid  on 
account  of  any  informality  in  it,  or  of  informality  or  illegality 
in  the  appointment  of  such  guardian.  Such  bond  shall  have 
the  same  force  and  effect  as  if  the  appointment  had  been  le- 
gallv  made  and  the  bond  executed  in  proper  form."  [R.  S. 
§6262.]" 

8 1338.     One  bond   for  two   or  more  wards,    etc.     Pees. 

"When  a  person  is  appointed  o-uardian  of  several  minors,  chil- 
dren of  the  same  narentap'c  and  inhpritin"-  from  the  same  estate, 
separate  bonds  shall  not  be  rfmn'rpd.  In  such  fases  only  one 
application  is  necessarv.  and  the  letters  of  fniardianshin  issued 
to  such  guardian  shall  be  in  one  codv.  and  not  one  for  each 
minor.  The  court  annroviner  and  recnrdino-  sur-h  bond,  and 
issuing  such  letters,  shall  ohart^p  the  fees  allowed  by  law  for 
such  services,  to  be  cbarcred  but  once  and  not  once  for  each 
ward."     [R.  S.  §  6263.]«8 

§  1339.     Order  of  Appointment. 

The  Court  having  ascertained  that  the  person  for  whom  appli- 
cation is  made  is  a  minor,  and  that  he  is  a  resident  of  the 
county  in  which  the  application  is  made,  and  that  it  is  proper 
and  necessary  that  a  guardian  should  be  appointed,  and  that 
the  applicant  is  a  proper  and  suitable  person,  and  has  filed  a 
statement  of  the  property  of  the  ward,  and  given  a  bond  of 
sufficient  amount  with  good  freehold  sureties,  should  proceed 
and  enter  upon  his  journal  the  order  of  appointment.  The 
Probate  Court  being  a  Court  of  record,  this  order  imports  ab- 
solute verity,  and  cannot  be  impeached  in  a  collateral  pro- 
ceeding,*'^   and  this  would  be  true  although   the   record  might 

67  §  10026  G    C.  profits    arising    and    accruing    from 
See  Discussion  of  bonds,   S  23.3.  real  and  personal  estate  of  his  said 
,      .,,              ....            ,  ,,  ward  and  snail  deliver  up  the  same 
A  bond  with  a  condition  as  follows  ^^    ^^^^    ^^^^^    ^,^p^    thereunto    re- 
is  sufficient:  quired."     Eichelberger  vs.  Gross,  42 

"If   the   said   guardian   shall    dis-  O.  S.  549. 

charge  with  fidelity  the  trust  afore-  One  free-holder  surety,  if  hehas 

.,   .      ,.         ,           •  T      ,    ,,          1  enough  property,  may  be  sufhcient. 

said  m  him  aforesaid,  shall   render  ^rrowsmith  vs.  Gleason,   129  U.  S. 

an  accurate  settlement  of  his  trans-  g(}_ 

actions,  with  a  just  account  of  the  68  §  10927  G.  C. 

69  Schroyer   vs.   Richmond,   16  O. 
S.  456. 


§  1340  GUARDIAN  APPOINTMENT  1194 

be  silent  as  to  the  particular  ground  upon  which  the  appoint- 
ment was  rnade.^"  It  is,  however,  proper  in  order  to  prevent  a 
collatrral  attack,  that  the  entry  appointing  should  show  the 
jurisdictional  facts/'  But  the  guardian  himself  will  not  be 
allowed  to  deny  the  legality  of  his  appointment,  although  it 
might  otherwise  be  void.''  And  even  where  such  entry  does 
not  show  jurisdiction,  it  has  been  held  that  after  a  great  lapse 
of  time,  proof  will  not  be  allowed  to  show  that  the  minor,  at 
the  time  of  the  guardian's  appointment,  was  not  a  resident  of 
the  county.'^ 

§  1340.    Form  of  Entry. 

The  form  of  entry  will  vary,  depending  somewhat  upon  the 
fact  whether  the  parents  are  living,  or  the  minor  is  of  the  age 
of  choice.     The  following  may  be  used  as  general  form : 

lu  the  Matter  of  the  Guardianship  of  C.  D. 

This  day  came  A.  B.  and  made  application  to  be  appointed  guardian  of 
C.  D.,  and  filed  a  written  statement  duly  verified  by  his  affidavit  of  the 
whole  estate  of  said  C.  D.  and  the  probable  value  thereof,  and  the  probable 
annual  rents  of  the  real  estate  of  said  C.  D. ;  and  also  made  an  affidavit  as 
to  the  age  and  the  residence  of  said  C.  D. ;  and  also  filed  with  his  said  appli- 
cation a  written  consent  of  said  minor  (or  if  the  minor  is  under  the  age 
of  choice,  of  E.  F.,  the  parent  of  said  C.  D. ). 

Whereupon  the  Court  being  satisfied  that  said  C.  D.  is  a  minor  of  the 

age   of and   is    a    resident   of   this    county,    and    that   it    is 

necessary  that  a  guardian  be  appointed  for  said  C.  D.,  and  that  said  A.  B. 
is  a  proper  and  suitable  person  to  receive  said  appointment,  it  is  ordered 
that  said  A.  B.  -file  herein  his  bond  conditioned  according  to  law  in  the 

sum  of dollars,  with  surety  thereto  as  required  by  law; 

and  thereupon  came  the  said  A.  B.  and  filed  in  Court  his  bond  and  accepted 
said  trust,  and  the  Court  finding  that  said  bond  is  executed  and  conditioned 
according  to  law  and  in  an  amount  equal  to  double  the  amount  of  the 
personal  estate  of  said  minor  and  the  probable  amount  of  the  rents  of  the 
real  estate  of  said  ward  during  his  minority,  and  that  the' sureties  thereon 
are  freeholders  and  sufficient.  The  said  bond  is  approved  and  said  A.  B. 
is  hereby  appointed  guardian  of  the  person  and  estate  of  said  C.  D.,  and 
it  is  ordered  that  letters  of  guardianship  be  issued  to  him. 

§  1341.    Letters  of  Guardianship. 

The  statute  nowhere  expressly  directs  that  letters  of  guard- 
ianship shall  be  issued,  yet  it  is  a  practice  to  do  so,  and  it  may 
be  inferred  from  the  provision  of  one  section  of  the  General 

70  King  vs.  Bell,  36  O.  'S.  460.  §  90. 

71  Commercial  vs.  Dean,  25  Bull.  If  the  minor  has  a  living  parent, 
250;    Scoby  vs.  Gano,  35  0.  S.  550.  this    entry    should    show   that    such 

72  Woomer  on  Guardians,  111.  parent    has    given    his    consent — or 

73  Sprague  vs.  Litherberry,  4  Mc-  tliat  he  has  been  notified  and  is  evi- 
Lean    (Ohio)    442.  dcntly  unsuitable,  etc. 


1195  LETTERS  §  1341 

Code  that  the  law  contemplates  that  letters  be  issued^* 
However,  the  order  making  the  appointment  is  the  one  that  au- 
thorizes the  person  to  act,  and  if  letters  of  guardianship  be  is- 
sued before  such  order  is  made,  or  before  a  bond  is  given,  they 
confer  no  power  and  have  no  legal  effect  whatever/^  And  ii 
a  proper  order  be  made  by  the  Court,  the  person  empowered 
by  such  order  to  act  may  do  so,  although  no  letters  have  in  fact 
been  issued.^® 

Woerner  says :  '^  The  letters  of  guardianship  may  be  looked 
on  as  an  instrument  in  the  nature  of  a  certificate  or  commission, 
and  is  prima  facie  good  and  admissible  to  prove  the  authority 
of  the  appointment,  although  it  does  not  recite  the  fact  of  nomi- 
nation by  tlie  minor.  ^^  So  the  appointment  may  be  entered  of 
record  nunc  pro  tunc  at  a  subsequent  term,  if  the  clerk  has 
omitted  to  make  the  entry  at  the  proper  time."^^  But  the  ap- 
pointment cannot  relate  back,  so  as  to  validate  his  prior  act  in 
respect  to  the  property  and  estate  of  the  ward;  nor  is  parol 
evidence  admissible  to  show  an  oral  appointment  and  approve- 
ment of  his  bond  prior  to  the  date  of  the  appointment  as  shown 
by  the  record. ^^ 

The  following  is  a  common  form : 

Form  of  Letters  of  Guardianship. 

The  State  of  Ohio, County,  ss. 

To  All  to  ^Yhom  these  Presents  may  Come,  Greeting: 

Know  ye,  that  the  Honorable,  the  Judge  of  the  Probate  Court  of  the 

county   of and    State   of   Ohio,    has   appointed,    and    by 

these  presents  does  appoint guardian  to  the  person  and 

estate  of ,  child of ,  deceased ; 

hereby  granting  to  said  guardian  all  and  singular  the  power  necessary,  and 

by   law   required,  to  enable fully   to   do,   act  and  perform   all   and 

singular  the  duties  of  guardian  for  the  aforesaid  minor.,  according  to  the 
statute  in  such  case  made  and  provided. 

In  testimony  whereof  I  have  hereunto  affixed  my  signature  and  the  seal 

of  said  Probate  Court,  at ,  this day  of 

Anno  Domini  one  thousand  nine  hundred  and 

Probate   Judge. 

74  See  §  10685  G.  C,  §  1338.  ^8  Sprague  vs.    Literberry,   4   Me- 

75  Carpenter  vs.  Sloane,  20  0.  327.       I-ean,  442. 

76Maxon  vs.  Sawyer,  12  0.  105.  "^  Woerner  on  Guar.,  110;  Holden 

77  The  statute  not  requiring  such       vs.  Curry,  85  Wis.  504. 

recital.       Burrows    vs.     Bailey,     34 

Mich.  66. 


§  1342  GUAKDIAI^  APPOINTMENT  1196 

The  State  of  Ohio, County,  ss. 

1, ,  Judge  and  Clerk  ex-ofiicio  of  the  Probate  Court  in 

and  for  said  county,  do  hereby  certify  that  the  foregoing  is  a  full  and  true 

copy  of  the  original  letters  of  guardianship  issued  by  said  Court  to 

as    guardian    of    said    minor .  .therein    named.     And    that    said 

on    the day    of 190..,    in    said 

Court,  accepted  of  said  appointment,  and  gave  bond  according  to  the  laws 

of  the  State  of  Ohio,  and  that is  now  the  lawful  guardian 

of  said  minor.  .. 

In  witness  whereof  I  have  hereunto  subscribed  my  name  and  afifixed  the 

seal  of  said  Court,  at ,  Ohio,  this day  of 

190... 


Probate  Judge  and  Clerk  ex-officio  of  the  Probate  Court. 

§  1342.    Appeal  and  Error. 

The  statute  now  gives  a  right  of  appeal  from  an  order  making 
an  appointment  of  a  guardian  for  imbeciles,  lunatics,  idiots  and 
drunkards,  but  does  not  cover  minors,  etc.  Sec.  11206,  G.  C. 
(§39),  The  order  can  be  set  aside  by  a  proceeding  in  error 
prosecuted  from  the  court  which  made  the  appointment.  A  very- 
wide  discretion  is  conferred  upon  the  judge  in  the  exercise  of  a 
choice  of  a  person  to  serve  as  guardian,  and  a  reviewing  court 
will  very  rarely,  perhaps  never,  interfere  with  the  same.  Like- 
wise a  wide  discretion  exists  in  the  Probate  Court  in  determining 
whether  it  is  necessary  that  a  guardian  be  appointed.  For  either 
one  of  these  causes  a  reviewing  court  would  only,  if  at  all,  set 
the  appointment  aside  when  there  was  a  manifest  abuse  of  the 
court's  discretion,  or  where  there  had  been  a  fraud  practiced 
in  making  the  appointment  or  a  positive  rule  of  law  disre- 
garded.^°'' 

See    §11206    G.    C,    §39,    giving  the  Common  Pleas  Court  may  make 

right  of  appeal.  the  appointment. 

An  uncle  of  a  child  may  make  a  Order  making  the  appointment  is 

motion   to   remove  a   guardian   and  reviewable  on  error.   Hare  vs.  Sears, 

may   appeal    from    an    order   of   the  17  Dec.  590. 

court  dismissing  the  motion.    In  re  80a  Since  the  text  was  written  1 

Murray,  28  0.  C.  C.  652.  find   the   following    in   21    Cyc.    44: 

The  Circuit  Court  may  review  the  The  selection  of  a  guardian  is  within 
order  of  Common  Pleas  Court  made  the  discretion  of  the  court  appoint- 
on  appeal  from  the  Probate  Court,  ing  and  unless  there  is  a  clear 
removing  a  gviardian  for  cause.  abuse  of  their  discretion  the  Ap- 
North  vs.  Smith,  73  0.   S.  247.  pellate     Court    will     not     interfere. 

There  must  be  an  actual  appoint-  Citing  In  re  Van^Ieter,   115   N.   Y. 

ment  made  before  any  one  can  ap-  666;  [Lunt  vs.  Autens,  39  Me.  392; 

peal.    In  re  Brutenstein,  17  Dec.  71.  Adams  vs.     <Sprecht,  40  Kans.  387; 

This    decision    was    made    before  In  re  Johnson.   87   Ta.   130;    In  re 

In  re  Oliver,  77  0.  S.  474,  and  here  Lewis,     137    Cal.    682;    Ohrms    vs. 

the  court  holds  that  a  case  can  be  Woodward,  134  Mich.  596;   106  Pa. 

taken    up    on    appeal    even    if    no  St.     574;     Pates    appeal;     and    six 

appointment    has    been    made,    and  other  states. 


3197  ADDITIONAL  BONDS  §1343 


CHAPTER  LXXII. 

BOND.     NEW.     ADDITIONAL.     SURETY. 

i 

§  1343  Additional  bonds,  §  1349  Application,  etc. 

§  1344  Who  may  file  exceptions,  etc.  §  1350  Notice,   etc. 

§  1345  Entry  ordering  notice,   etc.  §  1351  Entry    ordering    release. 

§  1346  Notice  and  form.  §  1352  When        action        may        be 

§  1347    Entry     ordering     additional  brought. 

bond.  §  1353  Liabilities   of   sureties,  etc. 

§  1348    New     bond.       Kelease     of  * " 

surety. 

§   1343.     Additional  Bonds. 

There  may  exist  during  a  guardianship  four  different  kinds 
of  bonds,  differing  not  as  to  the  liabilities  of  the  principal 
thereon,  but  as  to  the  sureties  and  given  on  the  occurrence  of 
various  conditions.  First  there  is  the  bond  given,  before  an  ap- 
pointment can  be  made  ;^  second,  the  additional  bond  given 
when  the  former  becomes  insufficient;^  third,  the  bond  required 
when  a  surety  is  released  f  and  fourth,  the  bond  given  when 
real  estate  of  the  ward  is  sold.*  In  examining  the  question  of 
liabilities  on  bonds,  the  treatment  of  the  same  in  previous  chap- 
ters may  be  referred  to  with  profit.^ 

It  will  be  the  province  of  this  chapter  to  discuss  particularly 
the  giving  of  new  and  additional  bonds,  and  the  rights  of  the 
parties  thereunder.  The  statute  referring  to  additional  bonds 
is  as  follows : 

"Exceptions  may  be  filed  in  the  proper  court,  by  any  person 
on  behalf  of  a  minor  for  whom  a  guardian  has  been  appointed, 
to  the  bond  of  such  guardian,  as  to  the  sufficiency  of  the  amount 

1  §  10920  G.  C,  §  1323.  *  §  10050  G.  C,  §  1423. 

2  §  10924  G.  C,  §  1343.  »  §  233  et  seq.   and  §  243  et  seq. 
8  §  10027  G.  C,  §  1338. 


§  1344  GUAKDIA2J  BOND EXCJIPTIONS  11£3 

of  its  penalt}''  or  the  sureties  therein.  Thereupon  notice  shall 
be  given  to  such  guardian  to  appear  before  such  court  within  a 
reasonable  time,  not  exceeding  ten  days,  and  show  cause  against 
the  allowance  of  the  exceptions.  Upon  the  hearing  of  such 
excPi)tions,  the  court  may  dismiss  them  or  require  the  guardian 
to  find  additional  sureties  or  security  in  a  larger  amount,  or 
make  such  other  order  as  the  case  requires."     [R.  S.  §  6261.]® 

Additional  bond.  "The  court  by  w-hich  a  guardian  is  ap- 
pointed, of  its  own  motion  shall  require  him  to  give  additional 
bond  whenever,  in  its  opinion,  the  interests  of  the  ward  of 
such  guardian  demand  it."      [R.   S.   §6261.]«'^ 


1  6* 


§  1344.     Who  May  File  Exceptions,  Etc. 

By  the  provisions  of  the  above  section  of  the  General  Code 
it  becomes  the  special  duty  of  the  Court  on  its  own  motion, 
whenever  it  is  of  the  opinion  that  the  bond  originally  given 
by  the  ward  is  insufficient,  to  require  an  additional  bond.  This 
duty  ought  to  be  closely  attended  to,  and  any  rumors  that 
come  to  the  ears  of  the  Court  ought  to  receive  investigation. 
If  the  Court  has  not  sufficient  information,  then  any  person 
may  file  an  application  for  a  new  and  additional  bond.  This 
application  is  temied  in  the  statute  to  be  exceptions  to  the  bond. 
The  exceptions  may  be  taken  to  either  the  sufficiency  of  the 
penalty  of  the  bond  or  of  the  qualification  of  the  sureties.  The 
following  may  serve  as  a  form  of  exception : 

{Title) 

Now  comes  A.  B.,  on  behalf  of  said  minor,  and  excepts  to  the  bond  of 
said  guardian  because,  first,  the  amount  of  the  penalty  is  not  sufficient; 
second,  the  sureties  are  not  sufficient,  and  asks  that  the  Court  may  requira 
that  the  guardian  give  an  additional  bond,  as  required  by  statute. 

(Sign.) 

§  1345.     Entry  ordering  notice,  etc. 

Either  when  the  Court  of  its  own  motion  requires  an  addi- 
tional bond  or  when  application  is  made  for  that  purpose,  the 
guardian  is  entitled  to  notice,  and  it  has  been  held  that  if  no 
notice  be  given  the  'proceedings  are  at  least  irregular.''     Yet  I 

6§  10924  G.  C.  See  King  vs.   Bell,  36   0.  S.  460; 

8*  §  10025  G.  C.  Pummell'vs.  Baumgarden,  4  Dec.  89; 

See  §  1.534,  Gdn.  of  drunkard.  3  X.  P.  40. 
TDupor  vs.  ]\rayo,  56  Ga.  304. 


1199  BOND  NOTICE,    ETC.  §1340 

doubt  very  much  whether  they  would  be  void.  The  law  re- 
quires that  the  notice  should  be  reasonable,  but  not  exceed  ten 
days  from  the  time  that  the  application  is  made.  The  regu- 
larity of  the  proceedings  would  suggest  that  when  the  appli- 
cation is  filed  an  entry  be  made  reciting  such  fact  and  fixing  a 
day  for  hearing  and  ordering  a  proper  notice  to  be  given,  which 
entry  may  be  as  follows: 

{Title) 

On  this  day  came  A.  B.  and  filed  herein  his  exception  to  the  bond  hereto- 
fore given  in  this  Court  by  C.  D.  as  guardian  of  E.  F. ;  and  prays  that  an 
additional  bond  may  be  ordered  given,  and  the  same  is  set  for  hearing  on 

the day  of ;  and  it  is  ordered  that  notice  thereof 

be  given  to  said  guardian  at  least  five  days  before  said  day  of  hearing. 

§    1346.     Notice   and  form. 

The  notice  should  be  served  a  reasonable  time  before  the  day 
set  for  hearing,  which  day  of  hearing  must  not  be  more  than 
ten  days  from  the  time  that  the  exceptions  are  filed.  Affidavit 
as  to  the  service  of  notice  ought  to  be  made  on  the  original 
notice  and  filed  with  the  Court.  This  notice  may  be  served  by 
any  one,  and  may  be  in  the  following  form : 

To ,  guardian  of 

You  are  hereby  notified  that  on  the day  of 190.  ., 

or  behalf  of  said  ward, ,  filed  in  the  Probate  Court  of 

county,    Ohio,    exceptions    to    your    bond    as    guardian    of 

and    prayed   that   an    additional   bond    be    required. 

You  are  therefore  notified  to  appear  before  said  Court  on  the day  of 

190 .. ,   at o'clock  and  show  cause,  if  any 

you  have,  why  said  exceptions  should  not  be  allowed  by  the  Court,  and  you 
be  required  to  give  further  sureties. 

Witness  my  hand  and  seal  of  this  Court  this day  of 

190... 

,    Probate    Judge.s 

§   1347.     Entry  ordering  additional  bond. 

If  on  the  day  set  for  hearing  the  Court  is  of  the  opinion  that 
there  exist  good  reasons  for  granting  the  prayer  of  the  appli- 
cation, it  should  be  done  without  delay.  The  entry  may  be  as 
follows : 

(Title) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  hereto- 
fore filed,  excepting  to  the  bond  of  the  guardian  of ,  and 

was  heard  upon  the  testimony.  Whereupon  tlie  Court  finds  that  the  alle- 
gations of  said  application  excepting  to  said  bond  are  true  and  that  the 

8  See  §  1.3,50. 


§  1348  GUARDIAN  BOND NEW  1200 

same  is  insuflkient  in  penalty  and  that  the  sureties  thereon  are  not 
qualified   to   serve    in    that    capacity. 

Wherefore  it  is  ordered  that  the  said  guardian  within days  from 

this  date,  file  in  this  Court  an  additional  bond  as  guardian  of  his  said  ward, 

conditioned   according  to  law  in  the  amount  of dollars 

and  with  surety  thereon  as  provided  by  statute.  And  it  is  further  ordered 
that  if  said  guardian  sliall  fail  or  refuse  within  the  required  time  to  give 
said  additional  bond,  then  his  appointment  as  such  guardian  shall  be  and 
stand  absolutely  revoked,  and  his  power  and  authority  as  such  guardian 
shall  thenceforward  cease  and  determine.  Except  that  said  guardian  shall 
be  required  to  file  forthwith  in  this  Court  his  account  administering 
said  estate. 

It  is  further  ordered  that  the  costs  taxed  at dollars, 

be  paid  by  (here  insert  the  estate  or  the  guardian,  as  the  Court  may 
think  proper). 

§  1348.    New  Bond.    Release  of  surety. 

The  other  instance  in  which  an  additional  bond  can  be  given, 
or  is  required  by  statute,  is  where  real  estate  is  sold,  and  will 
be  more  particularly  referred  to  when  treating  of  the  sale  of 
real  estate.  It  may  be  said,  however,  that  the  bond  given  in 
the  s^le  of  real  estate  differs  from  others  required  of  guardians 
in  this,  that  the  condition  limits  the  liabilities  of  sureties  to 
the  proceeds  arising  from  the  sale  of  real  estate.  The  only 
bond  which  the  statute  recognizes  as  relieving  the  previous 
sureties  is  one  which  provides  the  method  of  releasing  such 
surety,  which  is  as  follows : 

How  surety  of  guardian  released.  Sec.  10937.  A  surety  of 
a  guardian,  or  the  executor  or  administrator  of  a  surety,  at  any 
time  may  make  application  to  the  proper  probate  court  to  be 
released  from  the  bond  of  such  guardian,  by  filing  his  written 
request  therefor  with  the  judge  of  such  court,  and  giving  at  least 
five  days'  notice,  in  writing,  to  such  guardian.  If,  upon  the 
hearing,  the  court  is  of  opinion  that  there  is  good  reason  there- 
for, it  shall  release  such  surety.  The  death  of  a  surety  always 
shall  be  good  cause.     [107  v.  356.] 

Application  by  guardian  for  release  of  surety;  hearing.  Sec. 
10937-1.  A  guardian  at  any  time  may  make  application  to  the 
proper  probate  court  for  the  release  of  his  sureties,  by  filing  his 
written  request  therefor  with  the  judge  of  such  court,  and  giving 
at  least  five  days'  notice,  in  writing,  to  such  sureties.  If,  upon 
the  hearing,  the  court  is  of  opinion  that  there  is  good  reason  to 
release  said  sureties  it  shall  order  said  guardian  to  file  an  account, 
as  provided  by  law,  and  said  sureties  shall  be  released  upon  said 
guardian  filing  a  new  bond  and  its  approval  by  the  court. 
[107  V.  356.] 

Removal  on  failure  to  give  new  bond.  Sec.  10937-2.  If  such 
guardian  fails  to  give  new  bond,  as  by  such  court  directed,  he 
must  be  removed  and  his  letters  superseded.  Such  original 
surety  or  .sureties  shall  not  be  released  until  the  guardian  so 
gives  bond,_but  the  original  surety  or  sureties  shall  be  liable  for 
said  guardian's  acts  only  from  the  time  of  executing  the  orig- 


1201  APPLICATION  §  1349 

inal  bond  to  the  filing,  and  approval  by  tbe  court  of  the  new 
bond.     [107  V.  356.] « 

The  question  sometimes  arises  whether  the  court  has  a  right 
to  release  one  surety  on  the  bond  and  not  release  the  other. 
While  the  above  statute  refers  to  surely  in  the  singular  number, 
yet  considering  the  contractual  nature  of  the  bond  and  the  sure- 
ties thereon,  several  of  our  inferior  courts  have  held  that  one 
surety  could  not  be  released  without  the  other.^° 

"Woerner  ^°*  gives  authority  for  holding  the  contrary,  and 
that  where  the  court  orders  one  surety  to  be  released,  a  differ- 
ent rule  should  be  applied  than  where  a  surety  is  released  by 
act  of  the  parties.  But  it  seems  that  the  rule  adopted  by  the 
Ohio  courts  is  the  better  one,  and  that  the  practice  to  ba  fol- 
lowed is  that  where  an  order  is  made  requiring  a  new  bond 
that  such  order  releases  all  the  sureties  on  the  old  bond. 

§  1349.    Application,  etc. 

The  above  section  recognizes  only  the  right  of  a  surety  to 
make  an  application  thereunder,  and  it  is  not  for  the  purpose 
of  giving  additional  security,  but  for  the  purpose  of  releasing 
the  surety.  It  seems  that  no  reason  need  to  be  assigned  other 
than  a  mere  request  or  desire  upon  the  part  of  the  surety.  Dif- 
fering in  this  somewhat  from  the  section  relating  to  administra- 
tor's bond,^^  the  statute  seems  to  give  no  discretion  to  the  court. 
Therefore  no  cause  need  to  be  assigned  ia  the  application,  and 
the  following  would  answer  as  a  form  of  such  application : 
[Title) 

The  undersigned  as  surety  on  the  bond  of  A.  B.  as  guardian  of  E.  F., 
requests  to  be  released  from  said  bond  and  that  action  may  be  taken  by 
the  court  to  that  effect.  (Sign.) 

^  1350.    Notice,  etc. 

No  order  releasing  a  surety  and  requiring  a  new  bond  to  be 
given  can  be  made  unless  ten  days'  notice  has  been  given  to  such 
guardian.  The  form  of  notice  provided  in  a  previous  section  in 
this  chapter  "  can  easily  be  adopted  for  a  notice  required  to  be 
given  for  the  release  of  a  surety,  and  the  entry  there  given  can 
also  be  used  in  ordering  such  notice,  and  the  time  when  the 
matter  will  be  heard.^^ 

9  §  10937   G.   C.  executor    of    deceased    surety,    and 
Presumed   that  new   bond   is   not      the  guardian  himself.     The  statute 

an   additional    bond.      Pummell    vs.  also  gives  the  court  a  dbcretion — • 

Baumgarden,  4  Dec.  69;  3  N.  P.  40.  except  where  the  surety  is  deceased. 

10  Pummill  vs.  Baumgardner,  3  N.  n  §§  10861-2-3  G.  C.,  §  243. 
P.  40;  4  Dec.  60;  Dowell  vs.  Guion,  12  §  1346. 

3  Bull.  735;  7  Rec.  273.  13  Tlie    giving    of    this    notice    i3 

io*Woerner    on    Guardians,    145.       jurisdictional    and    an    order    made 
Statute  now  gives  right  to  surety,      without  is  void. 


§  1851  GUARDIAN — BOND — ACTION   ON  1202 

§1351.  Entry  ordering'  release. 
If  tlie  court  is  satisfied  that  the  guardian  has  had  ten  days' 
notice  previous  to  the  time  the  request  is  made,  the  entry  order- 
ing a  new  bond  might  be  made  at  that  time.  The  better  plan, 
however,  is  iirst  to  file  the  request  and  then  give  the  notice,  and 
after  that  is  done,  there  seems  to  be  nothing  for  the  Court  to 
do  but  to  order  a  release  of  the  surety  and  order  a  new  bond, 
which  entry  may  be  as  follows : 

(Title) 

This  day  this  matter  came  on  to  be  lieard  upon  the  request  of  A.  B.  as 
surety  on  the  bond  of  C.  D.,  guardians  of  E.  F.,  and  the  Court  being 
satisfied  that  said  guardian  has  had  at  least  ten  days'  notice  of  this 
request,  it  is  ordered  that  said  guardians  shall  give  a  new  bond  in  the  sum 

of dollars,  as  guardian  aforesaid,  conditioned  according 

to  law  and  with  surety  thereon  to  be  approved  by  the  Court  within 

days ;  and  on  failure  to  so  do,  it  is  ordered  that  the  appointment 

heretofore  made  shall  stand  revoked,  and  said  guardian  be  removed  from 
said  trust,  except  that  said  guardian  shall  forthwith  file  his  final  account 
unto  this  Court.  It  is  further  ordered  that  the  sureties  on  said  original 
bond  shall  be  relieved  from  all  further  liability  thereon  as  provided  by 
statute  when  said  new  bond  is  filed  and  approved  by  the  Court,  and  the 
amount  in  the  guardian's  possession  turned  over  to  the  persons  entitled 
thereto. 1* 

§  1352.    When  action  may  be  brought. 

It  was  formerly  held  by  the  Courts  in  our  State  that  any 
breach  of  the  conditions  of  the  bond  would  be  sufficient  to  sus- 
tain an  action  thereon.^"  But  the  law  is  now  settled  that 
where  an  accounting  in  the  Probate  Court  can  be  obtained  such 
accounting  must  first  be  had  before  an  action  can  be  maintained 
on  the  bond.^*^. 

The  fact  that  the  guardianship  has  expired  by  reason  of  the 
ward  becoming  of  age,  does  not  fix  the  time  for  the  accrual 
of  the  right  to  begin  an  action  on  the  bond."  And  if  the  ward 
neglects  to  compel  the  filing  of  a  final  account  for  several  years, 
during  which  time  the  principal  becomes  insolvent,  it  will  not 
affect  the  matter,^^     If  the  guardian  is  beyond  the  jurisdiction 

1*  The  bondsmen  are  released  when  le  Newton  vs.  Hammond,  38  O.  S. 

new  bond  is  given  without  an  order  430;    Braiden  vs.   Mercer,  44   0.   S. 

to  that  eflfect.     Pummill  vs.  Baum-  339;    Gorman   vs.   Taylor,   43   0.    S. 

gardner,  3  N.  P.  40;  4  Dec.  69.  86;  Gilbert  vs.  Gilbert,  13  C.  C.  29; 

A   release  of  one  surety   releases  7  C.  D.  58;  Netting  vs.  Strickland, 

all.     Id.     Dowell  vs.  Guion,  3  Bull.  18  C.  C.  136;  9  C.  D.  841;  Shwab  vs. 

735;  7  Rec.  273.  Rappold,  12  Bull.  197. 

This    is    denied    in    Woerner    on  it  Newton  vs.  Hammond,  38  O.  S. 

Gdns.   145.  430. 

"Ca.se  vs.  State,  10  W.  L.  .J.  163;  is  Where  a  ward  neglected  for  22 

State  vs.  Humphreys,  7  Ohio  (1  pt.)  years  to  bring  an  action  irrespective 

"3.  of  the  statute  of  limitations  she  was 


1203  LIABILITIES   OF   SURETIES  §  1353 

of  the  Court,  the  Probate  Court  should  proceed  and  compel  an 
accounting,  making  service  upon  the  absent  giiardian  by  publi- 
cation." But  a  final  account  does  not  so  fix  the  sureties'  lia- 
bility that  they  cannot  be  affected  by  a  correction  of  the  ac- 
count made  during  the  ward's  minority  by  striking  out  credits.*" 
A  finding  of  the  Probate  Judge  of  the  amount  due  from  the 
guardian  is  conclusive,  as  a  general  rule,  upon  the  sureties  on 
the  bond.^^  If  the  finding  is  wrong,  the  account  should  be  cor- 
rected in  the  Probate  Court.  If  for  any  reason  an  accounting 
could  not  be  had  in  the  Probate  Court,  and.  a  basis  thus  ascer- 
tained for  bringing  the  suit,  a  Court  of  equity  would  interfere 
and  compel  an  accounting  that  might  likewise  sustain  an  action 
on  the  bond.  But  even  in  such  cases  it  should  be  shown  by  the 
petition  that  the  Probate  Court  is  unable  to  give  proper  relief. 
The  general  statute  of  limitations  applies,  and  an  action  cannot 
be  maintained  unless  it  be  brought  within  ten  years  from  the 
time  that  the  Probate  Court  passes  upon  the  account.^^ 

§  1353.     Liabilities  of  sureties,  etc. 

The  liabilities  of  sureties  on  new  or  additional  bonds  has 
been  considered  in  a  previous  chapter  in  discussing  administra- 
tor's bonds. "^  As  a  general  proposition  of  law,  it  may  be  stated 
that  the  guardian  is  liable  on  his  bond  for  all  property  belong- 
ing to  the  ward  that  comes  into  his  possession,  and  for  the 
amount  which  is  found  to  be  due  by  the  judgment  of  the  Pro- 
bate Court,  limited,  however,  to  the  penalt^^  in  the  bond.^* 

Our  Courts  having  established  the  rule  that  an  accounting- 
must  first  be  had  in  the  Probate  Court,  and  that  a  finding  of  the 
Probate  Court  on  such  account  is  the  basis  for  the  bringing  of 
the  suit  on  the  bond,  it  therefore  follows  that  whether  or  not  a 

held  to  be  barred.     Brandes  vs.  Car-  22  See  Gilbert  vs.  Gilbert,  13  C.  C. 

penter,  71  N.  W.  Rep.  402;  2  Prob.  29;   7  C.  D.  58. 

Rep.  An.  233.  Where  jurisdiction  was  denied  be- 

19  Netting  vs.  Strickland,  IS  C.  C.  cause  of  laches  of  the  ward. 

144;  9  C.  D.  841;   Schwab  vs.  Rap-  See    §1486,   Account  —  barred   by 

pold,  12  Bull.   197.  time. 

20  Scoeby  vs.  Gano,  35  0.  S.  550.  23  §§  250,  258. 

21  Braiden    vs.    Mercer,    44    0.    S.  24  Woerner  on  Guardian,  129. 
339. 


§  1353  GUARDIAN  BOND  1204 

certain  act  was  one  for  which  the  guardian  is  liable  cannot  be 
raised  in  a  suit  on  the  bond.  All  questions  as  to  the  guardian's 
wrongful  or  negligent  acts  must  be  raised  in  the  Probate  Court 
and  there  adjudicated.  Whether  a  certain  act  is  a  breach  of 
the  bond  cannot  be  a  subject  of  adjudication  in  an  action  on  the 
bond.  In  a  suit  on  the  bond  the  amount  is  limited  to  the  find- 
ing of  the  Probate  Court.  With  us,  therefore,  the  questions 
most  likely  to  arise  are  as  to  the  liability  sureties  generally 
incur  where  there  is  more  than  one  bond  given.  Where  the  new 
bond  given  is  an  additional  bond,  then  all  the  sureties  are  bound 
for  whatever  default  there  may  have  been  in  thje  principal.^^ 
And  in  our  State  it  has  been  held,  in  the  case  of  administrator's 
bond,  that  even  where  a  new  bond  was  given  and  a  default  had 
occurred  before  such  bond  was  given,  that  the  new  bondsmen 
would  be  liable  for  such  defalcation,  but  that  they  might  recover 
from  the  persons  who  were  sureties  at  the  time  the  defalcation 
actually  occurred.'^  But  the  Courts  say  that  this  matter  al- 
ways depends  upon  the  conditions  mentioned  in  the  bond.  In 
such  a  case  the  ward  might  sue  either  the  sureties  on  the  first 
bond,"^  or  those  on  the  second  bond.^'^*  Where  there  has  been 
a  new  bond  given  and  a  defalcation  occurs,  which  is  discov- 
ered first  when  the  final  account  is  filed,  and  there  is  nothing 
showing  that  the  defalcation  occurred  during  the  period  that 
the  first  bond  is  given,  it  will  be  presumed  that  the  defalcation 
occurred  under  the  last  bond.^^ 

The  liabilities  of  the  sureties  of  a  guardian  upon  an  addi- 
tional bond  given  to  sell  real  estate,  which  is  conditioned  to  ac- 
count for  the  proceeds  of  the  sale  of  real  estate,  cannot  be  ex- 
tended beyond  its  terms,  although  the  guardian  commingles 
such  proceeds  with  money  of  his  ward  derived  from  other 
sources;  and  although  the  proceeds  of  the  real  estate  are  ex- 
ceeded by  general  payments  made  by  the  guardian  from  such 
commingled  fund,  his  sureties  are  liable  in  an  action  by  the 

25  Woerner   on   Guardians,    147.  27  Eichelbers^er  vs.  Gross,  42  O.  S. 
See    §§2.50-258.                                           549. 

26  Corrigan   vs.    Foster,    51    0.    S.  21*  Foster  vs.  Wise,  46  O.  S.  20. 

•  28  Pummill  vs.  Baunigardner,  3  N. 

P.  40;  4  Dec.  69. 


1205  LIABILITIES  OF  SURETIES  §  1353 

ward  after  majority  for  all  the  proceeds  that  came  into  the 
hands  of  the  guardian.^^ 

Where  a  new  bond  is  given,  the  sureties  on  such  bond  will  be 
held  liable,  although  a  defalcation  may  be  for  assets  that  were 
received  from  the  sale  of  real  estate  for  which  special  bond  had 
been  given. ^^ 

No  doubt  the  sureties  on  the  special  bond  given  for  the  sale 
of  real  estate  would  also  be  liable.  As  to  which  set  of  sureties 
is  ultimately  responsible,  there  may  be  some  question.  Of 
course,  where  a  surety  asks  to  be  released,  and  such  release  is 
granted  and  a  new  bond  given,  the  surety  on  the  original  bond 
can  never  be  held  responsible  for  a  defalcation  that  did  not 
occur  prior  to  the  time  of  his  release.  But  a  surety  on  a 
former  bond  is  never  released  until  a  valid  new  bond  is  given,^^ 
even  where  the  same  is  approved  by  the  Court.^^ 

Considerable  difficulty  is  always  experienced  in  determining 
the  primary  liability  of  sureties  on  various  bonds  where  a  de- 
falcation has  occurred  at  different  times.  In  order  to  sim- 
plify these  questions  as  much  as  possible  the  Probate  Court 
ought  never  to  release  a.  surety  and  require  a  new  bond  without 
compelling  the  guardian  to  file  an  account ;  and  likewise  where 
an  additional  bond  is  ordered  it  would  not  be  a  bad  rule  to  en- 
force. A  receipt  by  the  ward  on  becoming  of  age  to  the 
guardian  for  the  balance  due  filed  in  Court,  but  not  seen  by  or 
influencing  the  sureties  is  held  to  be  no  defense  for  them  if  it 
was  without  consideration  or  payment.^^ 

The  fact  that  the  guardian  moved  to  another  State,  resigned 
his  trust  and  was  reappointed  there,  upon  the  application  of 
the  ward,  will  not  release  the  sureties  on  the  first  bond  with  re- 
spect to  money  which  was  unlawfully  converted  w^hile  he  was 
guardian  in  this  State.^* 

29McWhinney  vs.   Swisher,   58   0.  239;  7  C.  D.  498. 

S.  378.  33  Meier   a's.   Hcrancourt,    8    Bull. 

aoTuttle   vs.    Northrop,   44   O.    S.  29. 

178.  34Penn  vs.  MeBride,  1  C.  C.  285; 

31  Woerner   on   Guardians,    145.  1  C.  D.  157. 

32  Howenstine  vs.  Sweet,  13  C.  C.  See  §  1424,  Requirement  of  bond. 


§  1354  DURATION  OF  GUAEDIANSIIIP  1206 


CHAPTER  LXXIII. 

DURATION  OF  GUARDIANSHIP.     REMOVAL,  ETC. 

§  1354  How    long    powers    of    guar-       §  1357  Resignation. 

dian   to   continue — his   set-       §  1358  Eemoval  of  guardian  by  the 

tiement.  Court. 

§  1355  Termination  of  trust.  §  1359  Jurisdiction  and  procedure. 

§  1356  Marriage  of  ward.  §  1360  Causes,  etc. 

§  1360a  Appeal   and  error. 

§  1354.  How  long  powers  of  guardian  to  continue.  His  set- 
tlement. "When  a  guardian  has  been  appointed  for  a  minor 
before  he  or  she  attains  the  age  for  making  a  selection,  his 
powers  shall  continue  until  the  ward  arrives  at  the  age  of  ma- 
jority, unless  sooner  removed  for  good  cause,  or  such  ward 
selects  another  suitable  guardian.  After  such  selection  is  made 
and  approved  by  the  court,  and  the  person  so  selected  is  duly 
appointed  and  qualified,  the  powers  of  the  former  guardian  shall 
cease.  Thereupon  his  final  account  as  guardian  shall  be  filed 
and  settled  in  the  proper  court."     [R.  S.  §  6258.]^ 

§  1355.     Termination  of  trust. 

The  above  section  was  probably  enacted  for  the  reason  that 
previously  the  Courts  held  that  when  a  minor  arrived  at  the  age 
of  choice  that  then,  without  further  action  on  the  part  of  the 
minor  or  of  the  Court,  the  guardianship  terminated.-  By  the 
provisions  of  the  above  section  the  powers  of  the  guardian  do 
not  terminate  until  the  minor  has  arrived  at  the  age  of  ma- 
jority, or  when  the  guardian  has  been  removed  either  for  cause 
or  by  reason  of  choice  of  the  minor,  when  the  succeeding  guard- 

1  §  10019   G.   C.      The   minor   can  §  1534,  Gdn's  of  Drunkards, 

not    make    choice    where    the    ap-  2  English    vs.    Campbell,    Wright, 

pointment  is  made  by  direction   of  119;  'Lessee,  etc.,  vs.  Brainard,  11  O. 

a  ^yill.                                '  442;   Favorite  vs.  Booher,   17  O.  S. 

See  §  10928  G.  C,   §§  1366,   1534.  548;   Sch.  Dom.  Rel.  311. 

See  §  1309,  as  to  removal  of  tes- 
tamentary guardian. 


1207  TERMINATION  OF  TEUST 


1355 


ian  has  been  duly  appointed  and  qualified.  One  cause  of  ter- 
mination of  the  trust  exists  which  is  not  mentioned  in  the 
above  section,  and  that  is  the  death  of  the  ward  or  the  death  of 
the  guardian.  In  ease  of  the  death  of  the  ward,  the  trust  would 
be  terminated  in  the  same  manner  as  if  the  ward  had  arrived  at 
the  age  of  majority.  In  such  a  case  it  would  be  the  duty  of  the 
STiardian  to  make  his  settlement  with  the  Court,  and  if  there 
are  any  funds  in  his  hands,  pay  them  over  to  the  administrator 
of  the  estate  of  the  deceased  ward."*  If  the  guardian  dies, 
then  it  would  be  the  duty  of  the  executor  or  administrator  of 
his  estate  to  file  an  account  as  soon  as  the  same  could  reasonably 
be  done.^ 

Although  a  guardian  may  have  time  and  be  required  to  file 
his  account  after  the  guardianship  terminates,  yet  his  power  as 
guardian  ceases  at  the  date  of  the  death  of  the  ward,  or  when 
the  ward  became  of  age,  or  when  a  succeeding  guardian  had 
filed  his  bond  and  qualified. 

In  a  recent  case  it  was  said:  "  The  guardianship  terminates 
upon  the  death  of  the  ward  and  thereafter  the  guardian  was 
without  any  authority  to  do  any  act  which  could  affect  or  be 
binding  upon  the  estate*.  He  no  longer  held  the  property  as  a 
guardian,  but  as  a  custodian  meirely ;  quoting  from  a  previous 
case,*  '  That  a  guardian  or  man  that  has  been  guardian  after  his 
guardianship  expires  has  no  more  power  than  if  he  had  never 
been  appointed.'  "  ^ 

If  a  suit  be  pending,  it  is  not  abated  by  the  termination  of 


2*  15  A.   &  E.   Ency.,   2d  Ed.   73.  Likewise    it    has    been    held    that 

3  See  §  6175a  R.  S.,  §  707.  the  guardianship  could  not  continue 

§  6291   R.  S.,  §  1499.  even  by  agreement  after  the  age  of 

*  English    vs.    Campbll;,    Wright,  majority.     Matter    of   Kincaid,    120 

116.  Cal.  203. 

5  Sommers  vs.  Boyd,  48  0.  S.  659.  As    to     termination     bj^     minor's 

Under    a    similar    statute    it   was  choice,  see  §   6357  R.  S.,  §  1327. 

held  that  the  guardian's  power  did  See   §  1484  et  seq.   on  guardian's 

not  extend   in   any  case  beyond  the  accounting. 

ward's  majority.     Curtis  vs.  Devoe,  Worirner  on  Guardians,  334. 

121  Cal.  468. 


§  1356  DUEATIpN  OF  GUARDIANSHIP  1208 

the  giiardiansbip/  and  he  may  generally  reduce  to  possession 
choses  in  action  standing  in  his  name/ 

The  guardian  is  not  discharged  from  liability  until  he  has 
paid  over  the  balance  found,  either  in  cash  or  securities,  to  the 
ward  or  his  legal  agent.^ 

§  1356.     Marriage  of  ward. 

It  is  said  tliat  in  England,  the  Court  of  chancery  never  ap- 
points a  guardian  to  a  female  after  her  marriage,  nor  dis- 
charges an  order  of  a  guardian  because  of  marriage.®  The  rule 
at  common  law,  however,  was  that  upon  the  marriage  of  a  fe- 
male infant  the  guardianship  of  both  her  person  and  estate 
ceased.  Of  her  estate,  for  the  reason  that  the  husband  was 
entitled  to  the  possession  of  the  same ;  of  her  person,  for  the 
reason  that  the  husband  was  likewise  entitled  to  the  care  and 
custody  of  his  wife  and  the  guardianship  would  be  incompatible 
with  the  marriage  relation.  Our  statute  has  definitely  settled 
the  question  in  this  State  by  the  following  provision: 

"The  marriage  of  a  ward,  if  a  female,  shall  determine  the 
guardianship  as  to  the  person,  but  not  as  to  the  estate  of  such 
ward."     [R.  S.  §  6265.] ^^ 

It  is  laid  down  as  a  general  rule  of  law  that  the  marriage  of  a 
male  ward  terminates  the  guardianship  over  his  person, ^^  but 
not  over  his  estate. ^^ 

§  1357.     Resignation. 

Guardians  of  minors  were  not  in  England  allowed  to  resign 
their  offices.^^  But  by  statute  this  rule  is  not  in  force  in  our 
Plate.    The  provisions  relating  thereto  are  as  follows : 

6  Gard  vs.  Neff,  39  O.  S.  607.  "  The  marriage  of  a  woman  will 

7  1.5  A.  &  E.  Ency.,  2fl  Ed.  73.  not  disqualify  her  to  act  as  a  guar- 

8  15  A.  &  E.  Ency.,  2d  Ed.  113.  dian  whether  such  marriage  occurred 
§  1500,  By  Extrs.  of  Gdn.  before  or  after  her  appointment  and 
§  1485,  Accounting.  qualification,  and  all  acts  in  such 
»  Woerner  on  Gdn.,  336j  capacity   shall   have  the  same   vali- 

10  §  10929  G.  C.  dity    as    if    she    were    unmarried." 

11  Reeves    on    Domestic    relations,      §  1095S  G.  C. 

328;  2  Kent.  Comm.  226.  1 3  Woerner   on   Guardians,    117. 

12  Woerner  on  Guardians,  337. 


1209  RESIGNATION    AND   REMOVAL  §  1358 

"The  court  by  which  a  guardian  is  appointed,  for  reasons 
satisfactory  to  it,  may  accept  his  resignation,  and  appoint  an- 
other in  his  stead."     [R.  S.  §  6274.]^* 

While  the  above  section  confers  ample  authority  upon  the 
Probate  Court  to  accept  the  resignation  of  a  guardian  at  any 
time,  yet  the  Court  should  never  accept  the  resignation  of  a 
guardian  unless  he  has  filed  his  account.  Even  if  a  resignation 
was  accepted,  the  guardian  should  not  be  relieved  of  the  re- 
sponsibility until  an  account  was  filed  and  passed  upon  as  pro- 
vided by  law.^° 

§1358.  Removal  of  guardian  by  the  court.  "The  probate 
court  may  remove  any  guardian,  he  having  not  less  than  five 
days'  notice  thereof,  for  habitual  drunkenness,  neglect  of  his 
duties,  incompetency,  fraudulent  conduct,  removal  from  the 
county,  or  other  cause  which,  in  the  opinion  of  the  court,  renders 
it  for  the  interest  of  the  ward  that  he  be  removed.  Removal 
from  the  state  of  a  person,  appointed  guardian,  of  itself  shall 
determine  the  guardianship  of  such  person."  [R.  S.  §6272; 
102  V.  97.]  i«  . 

§  1359.     Jurisdiction  and  procedure. 

Clause  4  of  sec.  1049,  G.  C,"  provides  that  the  Probate 
Court  shall  have  exclusive  jurisdiction  to  appoint  and  remove 
guardians,  to  direct  and  control  their  conduct,  and  to  settle  their 
accounts.  This  provision  fixes  exclusively  the  power  to  re- 
move a  guardian  in  the  Probate  Court,  and  from  the  provisions 
of  a  subsequent  section,^^  which  gives  the  Probate  Court  ex- 
clusive jurisdiction  over  a  matter  that  is  once  brought  within 
its  jurisdiction,  the  removal  can  cnly  be  made  by  a  Court  that 
made  the  appointment.  The  causes  for  removal  are  very  much 
similar,   and   the  power  of  the   Court  is  very  much  like  that 

u  §  10938  G.  C.  IS  §  •'^^7.  §  20. 

15  See  §10627  G.  C,  8  210,  as  to  fife  Collirs  vs.  Collins,  22  Dec. 
resignation  of  administrators.                   34.5,   where  the  suhiect  of  habitual 

§§  10991-2    G.    C,    8  1300,    as    to  drunkenness  in  divorce  cases  is  dis- 

resignation  of  administrators.  cuss'^d. 

16  §  1093G  G.  C.  Power  ceases  when  removal  from 
See   §  1.5.58,   Removal  of  assignee.  stat«  occurs.     Pank  vs.  Shick,  5  O. 

17  §27.  C.  C.  136;  9  C.  D.  125. 


§  1360  DURATION  OF  GUARDIANSHIP  1210 

ffiveii  in  the  removal  of  administrators  or  executors,  and  there- 
fore  the  procedure  for  the  removal  of  administrators  or  execu- 
tors can  be  applied  with  very  little  change  or  alteration  to.  the 
removal  of  a  guardian ;  and  the  discussion  of  the  subject  of 
removal  of  administrators  and  executors  is  applicable  largely 
to  the  removal  of  guardians.  It  therefore  seems  to  be  un- 
necessary to  give  forms  and  directions  as  to  such  procedure 
here.  The  reader  is  referred  to  the  chapter  on  revocation  of 
letters  of  administrators  and  executors.^® 

In  addition  to  the  general  provisions  given,  the  Probate 
Court,  in  reference  to  the  appointment  and  removal  of  guard- 
ians, another  section  ^"  makes  it  the  duty  of  the  Court  to  en- 
force the  return  of  inventories  and  accounts  and  the  perform- 
ance of  any  other  duty  that  may  devolve  upon  the  guardian 
either  with  or  without  complaint,  and  it  would  necessarily  fol- 
low that  if  the  Court  has  the  power  to  compel  the  performance 
of  a  duty,  it  would  have  the  power  to  remove  the  guardian 
if  he  failed  to  perform  any  order  of  the  Court  made  in  the 
requirement  of  the  performance  of  any  such  duty.^^ 

§  1360.     Causes,  etc. 

The  statute  gives  certain  gi-ounds  for  removal  which  are  very 
similar  to  those  providing  for  the  removal  of  executors  and  ad- 
ministrators,^^ and  for  the  removal  of  trustees.^^ 

Thus  habitual  drunkenness,  incompetency  and  fraudulent 
conduct  are  mentioned  alike  in  all  the  statutes.  While  a 
"  gross  neglect  of  duty  "  is  required  for  the  removal  of  execu- 
tors or  administrators,  a  "  neglect  of  duty  "  is  sufficient  for 
the  removal  of  a  guardian  or  trustee.  The  removal  from  the 
State  of  an  executor  or  administrator  may  be  sufficient  cause 
to  remove  him  from  a  trust,  but  a  removal  of  a  guardian  from 
the  State  is  a  cause  for  which  a  guardian  must  be  removed  from 
his  trust.     Another  ground  for  removal  is  a  removal  from  the 

19  §  208  et  seq.  22  §§  10629-30  G.  C,  §  213. 

20  §  10939  G.  C.,  §  1362.  23  §§  11035-6-7  G.  C,  §  1300. 

21  See    §  1514,   Proceeding  for   re- 
moval of  assignee. 


1211  PROCEDURE  AND  CAUSES  §  1360 

county  of  the  guardian.  The  general  clause  that  the  guardian 
may  be  removed  for  "  any  other  cause  which  in  the  opinion  of 
such  Court  renders  it  for  the  interest  of  the  estate  that  the 
guardianship  be  terminated,"  is  exactly  similar  to  that  provid- 
ing for  the  removal  of  an  executor.  This  last  clause  is  very 
broad  and  gives  the  Court  absolute  discretion  in  determining 
the  fact  whether  a  guardian  should  be  removed  or  not,  and  the 
reviewing  Court  will  not  set  the  same  aside.  As  a  general 
rule  it  may  be  said  that  whenever  the  interests  of  the  estate  of 
the  ward,  or  of  the  ward  himself,  in  any  manner  are  not  prop- 
erly attended  to  by  the  guardian,  then  he  ought  to  be  removed. 
The  causes  for  a  removal  of  a  trustee  generally,  are  causes  suffi- 
cient to  remove  a  guardian.^*  In  addition,  there  may  be  some 
which  are  particularly  applicable  to  guardianship.  A  gaiard- 
ian  might  be  removed  for  a  failure  to  give  such  religious 
teachings  as  the  parent  of  the  child  would  have  demanded  if 
living.  Or,  if  by  harsh  or  unfair  means  he  attempts  to  erase 
the  impressions  made  by  the  parents  on  the  mind  of  the  child, 
or  puts  its  conscience  to  any  kind  of  torture,^^  thus  ill  treat- 
ment of  the  ward,^*'  taking  the  ward  from  school  at  the  age  of 
nine  and  marrying  her  to  a  guardian's  son,  who  had  no  prop- 
erty,"^ and  fraud  on  the  ward  by  corrupt  and  conclusive  acts,'* 
and  trying  to  alienate  the  affections  of  the  ward  from  her 
mother,  who  was  a  good  character,"^  have  been  held  sufficient 
causes  for  removal. 

In  addition  to  causes  above  set  "forth,  the  statute  specifically 
declares  that  a  guardian  shall  be  removed  if  he  fail  to  give  a 
new  bond,^°  or  fail  to  file  an  inventoi-y.^^  As  the  statute  makes 
it  the  duty  of  the  Court  ^"  to  enforce  all  orders  that  may  be 
necessary  for  the  welfare  of  the  minor,  it  therefore  follows  that 
it  is  the  duty  of  tlie  Court  to  likewise  remove  any  guardian  who 

24  §  1302.  28  Marks    vs.    Witkouski,    16    La. 

25Woerner  on   Gr.   114.  Ann.  341. 

26  Rouhs  vs.  Backer,  6  Heisk  29  Perkins  vs.  Finnegan,  105  Mass. 
(Tenn.)   395;   19  Am.  Rep.  598;  Le-  501;  Tyler  on  Infancy,  252. 

fever  vs.  Lefever,  G  Md.  472.  ««  §  10837   G.    C,   §  1384. 

27  Goodall  vs.  Harris,  2  P.  Wms.  3i  §  10889  G.  C,  §  984. 
561.  32  §  10939  G.  C,  §  13(;2. 


\ 


§  1360a  DURATION  OF  GUARDIANSHIP  1212 

does  not  perform  his  duty  so  as  to  result  td  the  best  interests 
of  the  ward.  A  guardian  is  under  the  statutory  duty  of  obey- 
ing and  performing  all  orders  and  judgments  touching  the 
guardianship.^^  Therefore,  if  he  disobeys  the  court,  he  should 
be  removed.  Of  course,  a  guardian  should  never  be  removed 
merely  to  satisfy  the  whimsical  idea  of  the  ward  or  any  one 
else,  but  it  always  rests  upon  the  sole  question  whether  the  best 
interests  of  the  ward  demand  the  removal  or  not.  And  no 
removal  should  be  made  without  a  cause  shown.^* 


§  1360a.    Appeal  and  Error. 

The  statute  expressly  gives  the  right  of  appeal  from  the  order 
removing  a  guardian,^^  However,  the  statute  places  a  very 
large  discretion  in  the  Probate  Court,  and  there  ought  to  be 
strong  reasons  before  the  order  made  by  the  Probate  Court 
should  be  disturbed.^®  After  the  termination  of  the  guardian- 
ship, by  confirmation  of  his  account,  the  relation  of  the  guardian 
and  ward  is  that  of  debtor  and  creditor.^^  The  guardian  him- 
self may  in  the  interest  of  the  trust  take  an  appeal  ^^  or  any  one 
affected  thereby.^^ 

33  §§10933-10935   G.   C,   §§1367,  37  Lambkin   vs.   Kobinson,    10  N. 

1313.  P.  1;  1.1  Dec.  13. 

34Sch.  on  Dom.  Rep.  316.  38/^  re  Keanen,  8  N.  P.   (N.S.)] 

Removal    from    state    ipso    facto  217;  19  Dec.  444. 

terminates  authority.    Merchants  &  39  See  In  re  Oliver,  9  N.  P.  (N.-S.)" 

Clerks  Sav.  Bank  Vs.  Schirk,  5  C.  C.  178,     for     extended     discussion     of 

(N.S.)   569;  27  0.  C.  C.  138.  matters  pertaining  to  exceptions  to 

35  §  11206  G.  C,  §  39.  inventory  and  account  and  removal, 

36  §  10936  G.  C,  §  1358.  etc. 


1213  guardian's  powers  and  duties  §  13C1 


CHAPTER  LXXIV. 

POWERS  AND  DUTIES  OF  GUARDIANS  GENERALLY. 

§  1361  Guardian's    relation    to    his  §  1369  Duties  as  to  custody  of  ward. 

trust.  §  1370  Wards    may    be    bound    out 
§  1362  Guardian's  duties  enforced.  upon    approval    of    Probate 

§  1363  Power   of  Court  over  guard-  Court. 

ians    in    the    execution    of  §  1371  Form    of   indenture   to    bind 

their  trust.  out  a  ward. 

§  1364  Procedure    when    Court    di-  §  1372  Rights     to     services     of    his 

rects  the  manner  of  execu-  ward. 

tion  of  the  trust.  §  1373  Duties  as  to  maintenance. 

§  1365  Application  of  guardian  for  §  1374  When     parent    may     receive 

direction  as  to  the  manage-  compensation     for     mainte- 

ment  of  his  trust.  nance  and  education. 

§  1366  Powers   of  guardian   of   per-  §  1375  Duties  as  to  education. 

son   and   estate  —  rights   of  §1376  Religious  instruction. 

parents.  §  1377  Fixed  allowance  made  by  the 
§  1367  Duties  prescribed  by  statute.  Court    for    ward's    mainte- 

§  1368  Inventory.  nance,  etc. 

§  1361.     Guardian's  relation  to  his  trust. 

The  relation  that  a  guardian  sustains  to  his  ward  is  one  pecu- 
liar to  itself.  In  some  respects  in  the  holding  of  title  of  prop- 
erty the  guardian's  relation  is  very  much  similar  to  an  admin- 
istrator, unless  he  should  be  a  testamentary  guardian,  then 
his  powers  are  more  nearly  allied  to  an  executor  or  testamen- 
tary trustee.  He  must  then  look  to  the  will  of  the  deceased  for 
the  construction  of  many  of  his  powers.  While  in  the  strictest 
sense  of  the  term  it  has  been  doubted  whether  he  is  a  trustee,^ 
yet  it  is  now  generally  conceded  that  in  the  ordinary  sense  of 
the  term  he  is  a  trustee,  and  the  law  applicable  to  trustees  is 
generally  applied  in  the  determination  of  a  guardian's  proper 
relations  to  his  trust.^ 

iSch.  Dom.  Rel.  321.  Lewin  on   Trust  279;    Woerner   on 

2Redf.  on  Wills,  440  note;  Bouv.       Gdns.  172,  197. 
Law  Die.  616;   Hill  on  Trusts  49;  Judge  Owen  in  Mannix  Assignee 


g  loOl  guardian's  powers  and  duties  1211- 

Assuming  that  the  guardian  occupies  the  relation  of  a  trustee 
Vhnt  has  been  heretofore  said  in  the  discussion  of  the  rights 
and  duties  of  trustees  in  the  management  of  an  estate,  etc.,  will 
be  applicable  here.^  Likewise  the  discussion  of  the  care  and 
management  of  an  estate  by  an  administrator  will  throw  some 
light  upon  the  general  duties  of  a  person  occupying  a  fiduciary 
relation.* 

But  these  chapters  discuss  more  particularly  the  powers  and 
duties  of  trustees  where  there  is  an  estate.  But  in  the  case  of 
guardians,  we  have  the  additional  matter,  which  attaches  to 
the  guardianship  of  the  person,  to-wit,  maintenance,  education 
and  protection  of  the  ward.  In  the  discharge  of  their  duties, 
provided  they  are  honestly  made,  guardians,  are  regarded  with 
great  liberality  by  the  Courts.  Common  skill,  common  pru- 
dence and  common  caution  is  all  that  is  required  of  them  in  the 
administration  of  their  trust.  Ordinary  men  are  to  be  com- 
pared with  and  adjudged  by  the  standard  of  ordinary  men.^ 

By  reason  of  the  helpless  condition  of  infants,  the  king  and 
through  him  the  Chancery  Court  was  regarded  as  the  universal 
guardian  of  all  the  infants  in  the  English  kingdom,  and  this 
matter  was  carried  out  with  great  strictness,  and  the  guardian 
occupied  a  position  more  as  agent  of  the  Court  than  as  one 
occupying  a  position  where  he  could  exercise  his  own  discre- 
tion.^ 

Bearing  in  mind  that  a  ward  in  chancery  was  in  all  cases 
under  the  special  protection  of  the  Court  and  that  no  act  could 
be  done  affecting  the  minor's  personal  property  or  estate,  unless 

vs.  Puicell.  46  0.  S.  102,  says:      "A  does   not   acknowledge   a   trust  over 

trust  is  where  property  is  conferred  the   exercise   of   which    it   will   not, 

upon  and  accepted  by  one  person  on  through   its   tribunals,   assume   con- 

the  terms  of  holding,  using  or  dis-  trol,    to   avert   its   destruction,   per- 

posing  of  it  for  the  benefit  of  an-  version  or  abuse.     Morice  vs.  Bish- 

other.     Wherever    such    a    trust    is  op  of  Durham,  9  Ves.  400." 

shown,  it  is  cognizable  by  a  Court  of  3  See  §  1250  et  seq.;  §  1273  et  seq.; 

Equity.     The    law    knows    no    trust  §  1287  et  seq. 

which   simply   binds   the   t-onscience.  4  §  506  et  seq. 

An    alleged    trust   which    is   cogniz-  r,  Blk.  Comm.  Shaswood's  Ed.  463. 

able  only  in  the  Court  of  morals  or  Woerner  on  Gdns.  197-205. 

the  forum  of  conscience,  is  no  trust  6  Sch.  Dom.  Rel.  323. 

at  all ;  it  is  an  absurdity.     The  law 


1215 


ENFORCEMENT  OF 


§1362 


by  its  express  or  implicit  direction,"  and  the  helpless  condition 
of  infancy,  our  Legislature  has  ia  addition  to  the  authority 
confen-ed  by  the  general  statute,®  given  a  special  supervision 
over  guardians  by  the  following  provision.® 


§  1362.  Guardian's  duties  enforced.  "The  court  by  which 
a  guardian  is  appointed,  shall  enforce  the  return,  at  the  pre- 
scribed times,  of  all  inventories  and  accounts  required  to  be  filed 
therein  by  him,  and  enforce  the  performance  of  all  other  duties 
devolving  upon  guardians  appointed  by  it,  either  with  or  with- 
out complaint  first  made ;  and  thereupon  make  and  enter  such 
judgments  and  orders  as  are  requisite  in  any  case  to  promote 
the  faithful  and  correct  discharge  of  such  duties,  or  to  preserve 
the  estate  of  minors  for  whom  guardians  were  appointed." 
[R.  S.  §6275.]^° 


7  Blk.  Com.  Shaswood's  Ed.  n.  462. 

8  §  10492  G.  C,   §  27. 

9  Guardianship  imposes  purely  a 
personal  trust,  under  no  circum- 
stances are  its  peculiar  functions  to 
be  delegated  to  another.  Rice  Pro. 
Law,  489,  citing  Lynch  vs.  Eotan,  39 
111.  14;  Dorman  vs.  Ogbourne,  16 
Ala.  759;  Berry  vs.  Johnson,  53  Me. 
401;  2  Kent.  Com.  224;  2  Story's 
Eq.   §  1333. 

Where  the  guardian  of  the  person 
and  estate  of  a  minor,  a  female 
just  entering  w^omanhood,  ignorant, 
chaste,  of  weak  mind  and  without 
living  parents,  took  control  of  her 
person  and  placed  her  in  his  family 
as  a  servant,  and,  knowing  her  <o 
be  such  a  person,  took  indecent  lib- 
erties with  her  person,  thereby  ex- 
citing her  passion,  telling  her  that 
it  was  not  improper  for  her  to  per- 
mit him  to  do  so,  and  that  the  act 
of  sexual  intercoTirse  would  not  in- 


jure her,  and  thereafter,  while  she 
still  so  remained  in  his  family,  he, 
knowing  her  to  be  still  ignorant  and 
weak-minded,  negligently  suffered 
and  permitted  his  son,  a  well-grown 
lad,  to  sleep  with  her  and  to  have 
sexual  intercourse  with  her,  whereby 
she  became  pregnant,  the  guardian 
is  liable  to  the  ward  for  the  injury 
so  suffered  by  her.  Brattain  vs. 
Cannady,  96  Ind.  266. 

See  §  1022,  Power  ward  to  make 
will. 

§  1378,  Management  of  estate. 

§  1489,  Credits  entitled  to. 

§  1484,  Duty  to  account. 

§  1534,  Gdns.  of  drunkards. 

10  §  10939  G.  C. 

The  Court  may  enforce  orders 
other  than  for  the  payment  of  money 
by  proceedings  in  contempt.  §§  1958 
and   1910   G.   C. 

See  White  vs.  Gates,  42  0.  S.  109; 
/n  re  Rowekamp,  27  Bull.  289. 


§  1363  guardian's  powees  and  duties  1216 

§  1363.     Powers   of  court  over  guardians  in  the   execution  of 
their  trust. 

The  above  section  is  sui  generis  and  has  had  but  very  little 
adjudication.  The  question  naturally  presents  itself,  to  what 
extent  may  the  Court  after  having  appointed  a  guardian,  direct 
the  guardian  as  to  the  manner  in  which  he  shall  execute  his 
trust.  It  unquestionably  means  that  the  Court  shall  enforce 
with  or  without  application,  the  performance  of  the  ordinary 
duties  devolving  upon  the  guardian  as  set  forth  in  the  statu- 
tory law.  Such  as  the  filing  of  inventories/^  filing  accounts,  in- 
vestment of  money  and  any  other  duty  which  plainly  devolves 
upon  the  guardian.  But  can  it  control  the  discretion  of  the 
guardian  as  to  the  education  of  the  ward,  or  the  persons  with 
whom  the  ward  shall  live  or  what  church  the  ward  shall  attend, 
or  what  kind  of  clothes  the  ward  shall  wear,  or  as  to  the  man- 
ner in  which  the  ward's  farm  is  to  be  tilled  or  to  whom  the 
ward's  real  estate  shall  be  rented  and  things  of  that  character 
present  a  matter  not  free  from  difficulty. ^^  If  it  is  once  shown 
that  it  was  the  intention  of  the  Legislature  to  maintain  in  the 
Probate  Court  a  supervision  in  all  cases  over  the  guardian's 
powers  in  reference  to  the  ward's  person,  or  estate,  then  the 
question  whether  or  not  the  power  shall  be  exercised  would 
rest  in  the  discretion  of  the  Court,  and  the  Court  could  require 
the  guardian  to  act  in  a  certain  manner  whenever  it  was  of  the 
opinion  that  such  action  was  necessary  or  proper  to  promote  a 
faithful  and  correct  discharge  of  the  duties  of  the  guardian,  or 
to  preserve  the  ward's  estate.  The  only  case  reported  in  our 
Supreme  Court,^^  was  where  the  Probate  Court  had  made  an 
order  directing  a  ward  to  pay  a  preferred  claim  for  the 
support  of  the  guardian  and  his  family,  and  the  amoimt  was 
undisputed.  The  Court  held  that  the  Probate  Court  had  juris- 
diction to  make  such  an  order. 

11  §  10033  G.  C,  §  1367.  or  difficulty  in  this  regard,  he  must 

12  The   guardian   must   exercise   a      apply    to    the    court    for    direction. 
,    ,.  °    ,.        •     ,,       T     1  f      Tyler  on  Inf.  2o7. 

sound  discretion  m  the  discharge  of        •'^3  t^^^^^^  ^,g_  Patterson,  41  0.  S. 

his  duties  in  the  support  and  educa-      2O6. 

tion  of  his  ward;   in  cases  of  doubt  22  Cyc.  1177. 


1217  POWER  OF  COURT  OVER  §  1363 

It  would  seem  that  the  above  section  is  broad  enough  in 
its  provisions  to  authorize  the  Court  to  make  any  order  that  it 
deems  proper  in  reference  to  the  action  of  the  guardian  in  the 
management  of  his  trust,  whenever  the  Court  is  of  the  opinion 
that  such  is  proper  to  promote  the  correct  discharge  of  the 
duties  of  the  guardian  or  preserve  the  estate  of  the  minor. 
This  leaves  the  Court  certainly  with  very  extensive  jurisdiction 
in  such  matter,  and  perhaps  a  jurisdiction  that  is  not  subject 
to  review  by  a  superior  Court,  for  the  only  way  in  which  the 
Court  could  enforce  its  order  would  be  by  removal  of  the 
guardian;  and  a  removal  of  a  guardian  rests  in  the  sole  dis- 
cretion of  the  Court  and  is  not  subject  to  review  by  a  higher 
Court.*  It  would,  therefore,  seem  that  the  power  to  direct  the 
guardian  as  to  the  management  of  his  trust  rests  in  the  sole 
discretion  of  the  Probate  Court  and  would  never  be  reviewed 
except  for  a  manifest  abuse  of  such  discretion.  The  Probate 
Court  should  not  assume  to  direct  the  guardian  in  the  manage- 
ment of  the  matters  pertaining  to  the  guardianship,  unless  there 
is  a  manifest  cause  for  so  doing.  The  guardian  has  given  bond 
for  his  faithful  performance,  and  if  he  fails  to  properly  dis- 
charge his  duties,  there  is  a  remedy  provided  in  ihat  way. 
If  the  Court  has  power  on  its  own  motion  or  application  of 
some  interested  party  to  direct  the  guardian  to  perform  certain 
acts,  it  would  likewise  have  the  power  to  authorize  and 
direct  a  guardian  to  perform  certain  duties  pertaining 
to  his  trust  upon  the  application  of  the  guardian,  and 
such  is  the  practice.  During  the  term  of  guardianship, 
many  questions  arise  where  the  guardian  does  not  feel  that  he 
wishes  to  assume  the  responsibility  of  giving  a  final  answer. 
In  such  cases  it  is  proper  for  him  to  file  an  application  in  the 
Probate  Court,  setting  out  all  the  facts  and  have  the  Court 
pass  upon  them  and  make  an  order  accordingly.  Whether  the 
guardian's  actions  in  conformity  with  an  order  of  the  Court 
could  be  reviewed  when  passing  upon  his  account,  is  a  more 
serious  question.  Conceding  that  it  can,  it  would  not  be  of  any 
pra<?tical  benefit,  for  if  the  Court  made  an  order  upon  a  fair 
presentation  of  the  facts,   and  the  guardian  honestly  obeyed 

*Soe     §  39    as    to    appeal.       Also       is   now   an   appeal    from    a   removal, 
§  1342.      The      statute      has      been       etc. 
changed  since  first  edition  and  there 


§  1364 


GUARDIAN  S  POWERS  AND  DUTIES 


1218 


siieli  order,  the  Court  would  certainly  refuse  to  hold  him  to 
any  further  responsibility. 

Of  course  no  order  should  be  made  by  the  Court  on  its  own 
motion  or  on  the  application  of  some  one  unless  the  guardian 
had  full  notice,  and  if  the  application  is  made  by  the  guardian, 
notice  should  be  given  to  the  ward,  or  some  one  interested  in  his 
behalf,  so  that  the  Court  may  be  fully  advised." 

§  1364.     Procedure  when  court  directs  the  manner  of  execution 
of  the  trust. 

Wliile  sec.  10857-8  G.  C.  allows  the  bringing  of  an  action  in 
the  Court  of  Common  Pleas,  asking  the  direction  of  the  Court  in 
the  management  of  a  trust,  it  is  doubtful  whether  that  section 
could  be  applied  exckisively  if  at  all,  to  cases  where  the  power  is 
clear,  but  the  manner  in  which  it  is  to  be  executed  is  the  matter 
upon  which  information  is  desired.  The  previous  section  is 
important  ^^  to  the  Probate  Court,  from  the  fact  that  it  makes 
it  the  duty  of  the  Court  without  application  to  look  after  the 


1*  In  a  case  recently  decided  in  the 
Circuit  Court,  (Jones  vs.  Green,  21 
C.  C.  96;  11  C.  D.  548),  in  which  it 
was  sought  to  have  an  order  of  the 
Probate  Court,  directing  an  adminis- 
trator to  cancel  a  mortgage,  it  was 
held  that  the  Probate  Court  did  not 
have  such  jurisdiction  over  art  ad- 
ministrator or  executor.  But  it  was 
so  held,  not  for  the  reason  that 
the  Probate  Court  could  not  have 
such  power  conferred  upon  it,  but 
that  it  did  not  have  such  power. 
The  reason  that  it  did  not  have 
such  power,  was  founded  upon  the 
fact  that  the  statutes  gave  to  an  ad- 
ministrator or  executor,  the  right 
to  reject  claims  against  an  estate 
and  compel  a  suit  at  law,  in  order 
to  recover  thereon.  There  are  no 
such  statutes  in  relation  to  guard- 
ians, and  there  seems  to  be  no  bar- 
rier in  the  statutory  law  to  prevent 
the  Probate  Court  from  ordering  the 


guardian  to  pay  any  debt  which  is 
justly  due,  and  which  the  interests 
of  the  estate  demand  should  be  paid. 

The  view  heretofore  adv-anced, 
that  the  Probate  Court  retains  a 
supervision  over  a  guardian  in  the 
management  of  his  trust,  is  further 
enforced  from  the  fact  that  two 
different  sections  of  the  General 
Code.  §10033  G.  C.  (§1367),  and 
§  10816  G.  C.  (§  1313),  make  it  the 
duty  of  the  guardian  to  obey  and 
perform  all  the  orders  and  judg- 
ments of  the  Court  touching  the 
guardianship. 

It  has  been  assumed  that  the 
guardian  can  ask  the  Common  Pleas 
Court  for  directions  as  to  the  pay- 
ment of  a  claim  under  §  G202  R.  S. 
Wing  vs.  Hibbert,  7  X.  P.  124;  8 
Dec.  65. 

The  Court  can  now  review  an  or- 
der removing  a  guardian.     See  §  52. 

IS  §  10939  G.  C.   §  1362. 


1219  APPLICATION  FOR  DIRECTION  §  1365 

management  of  the  trust  and  enforce  the  guardian  to  do  that 
which  is  to  the  best  interests  of  the  estate.  Where  the  Court 
of  its  own  motion  makes  an  order,  it  should  be  by  an  entry  which 
may  be  in  the  following  form : 

(Title) 

It  appearing  to  the  Court  that  A.  B.,  guardian  of  C.  D.,  has  failed  and 
neglected  to  file  his  account  (or  inventory,  or  has  failed  to  invest  funds  in 
his  hands,  or  is  not  properly  maintaining  his  said  ward,  etc.,)  in  this 
Court  as  required  by  law,  it  is  ordered  that  a  citation  be  issued  notifying 

said  A.   B.  to  appear  forthwith,  or  on  the day  of 

in  this  Court  and  show  cause  why  he  has  not  filed  said  account  as  provided 
by  law,  and  show  cause  why  he  should  not  be  removed  from  his  guardian- 
ship, for  the  failure  to  comply  with  the  law. 

The  following  may  be  used  as  a  form  of  citation : 

The  State  of  Ohio, county,  ss.      Probate  Court. 

To ,   guardian  of : 

You  are  hereby  notified  to   appear   forthwith    (or   on   the day  of 

,    190..,   at o'clock   A.   M. )    at   the   office   of 

the  Probate  Court  of  said  county,  to  answer  why  you  have  not  filed  your 
accounts  as  guardian  as  aforesaid,  according  to  law  (or  according  to  the 
order  of  said  Court  heretofore  made,  if  such  order  has  been  made  and  not 
complied  with,  or  why  you  have  not  loaned  the  money  of  your  said  ward, 
according  to  law,  or  state  any  other  failure  of  duty),  and  to  show  cause 
why  you  should  not  be  removed  from  such  guardianship. 

Witness  my  hand  and  the  seal  of  said  Court,  this day  of 

190... 


(L.  s.) 


Probate  Judge  of  said  Court.ie 


§  1365.     Application  of  guardian  for  direction  as  to  the  manage- 
ment of  his  trust. 

Guardians  should  not  for  trifling  matters  go  to  the  Court  for 
instruction,  for  the  guardian  is  presumed  when  the  appointment 
is  made,  to  have  sufficient  judgment  and  discretion  to  pass  upon 
all  ordinary  matters.  But  a  guardian  should  rather  be  encour- 
aged than  discouraged  to  make  application  to  the  Court  and  se- 
cure its  direction.  In  making  an  application,  a  disposition  is 
manifested  to  do  that  which  is  for  the  best  interests  of  the  ward. 
No  particular  form  can  be  given  for  applications  of  this  charac- 

i«  Whittaker's  Prob.  Code.  him.     If  he  appears  and  files  his  ac- 

If   the   guardian   fails   to   answer  count,  or  obeys  the  law  or  order  of 

the  citation,   or   other   order  of  the  the  Court,  no  further  action  under 

Court,   it  should  immediately  order  the  citation  is  necessary. 
him  to  file  his  account  and  remove 


§  1366  guardian's  powers  and  duties  1220 

ter.  The  application  should,  however,  set  out  fully,  all  the 
facts  surrounding  the  matter  upon  which  the  judgment  of  the 
Court  is  asked.  If  it  is  a  matter  upon  which  the  facts  are  in 
doubt,  the  Court  ought  not  to  make  an  order,  unless  notice  is 
given  to  the  ward,  or  to  some  one  who  sustains  sucli  relations 
to  the  ward  as  would  incline  him  not  to  favor  the  guardian 
as  against  the  ward.  The  Court  should  he  cautious  in  making 
the  order  and  only  do  so  when  satisfied  that  in  the  language 
of  the  statute,  the  order  is  "  requisite  to  promote  the  faithful 
and  correct  discharge  of  the  duties  of  the  guardian  or  to  preserve 
the  estate  of  a  minor."  In  such  cases  it  would  be  advisable  to 
have  the  application  filed,  a  day  set  for  hearing  and  after  the 
same  is  heard,  a  journal  entry  made  containing  the  finding  of 
the  Court  in  full.^«^ 

§  1366.  Powers  of  guardian  of  person  and  estate.  Rights  of 
parents.  "Each  person  appointed  guardian  oi  the  perooii  and 
estate  of  a  minor,  shall  have  the  custody  and  tuition  of  his  ward, 
and  the  management  of  such  ward's  estate  during  minority, 
unless  removed  or  discharged  from  such  trust,  or  the  guardian- 
ship sooner  determines  from  any  of  the  causes  specified  in  this 
chapter.  But  the  father  of  the  miner,  or  if  there  be  no  father, 
the  mother,  if  a  suitable  person,  respectively,  shall  have  the 
custody  of  the  person  and  the  control  of  the  education  of  such 
minor."     [R.  S.  §6264.]^^ 

The  necessity  of  the  above  section  of  the  General  Code  is 
not  very  obvious.  A  previous  section,^^  provides  for  the  dura- 
tion of  the  powers  of  a  guardian,  and  another  section,^^  provides 
that  no  one  shall  be  appointed  as  guardian  of  the  person  of  a 
minor  if  they  have  a  living  parent,  who  is  suitable  to  have 
the  custody  and  tuition  of  the  minor.  The  only  purpose,  there- 
fore of  this  section  would  be,  that  if  a  person  were  appointed 
the  guardian  of  both  the  person  and  estate  of  the  ward,  yet  if 

Kia  Court  orders  in  such  cases  are  paid    to    ward     (a    drunkard)     for 
only    advisory.      Error    can    not    be  life,     afterwards     the    guardianship 
predicated   on  them.      If  the   power  was  lifted,  and  the  ward  sought  to 
vests   in  the  guardian,   independent  have    the    order    set    aside    in    the 
of   the   order   of   the   court,   and   is  Probate  Court,  which  the  court  re- 
wrongful,  the  ward  must  raise  the  fused   to   do.     The   case  was   taken 
question    in   exception   to   accounts,  to  the  Court  of  Common  Pleas  and 
or    possibly,    in    case    of    fraud    or  there  the  court  held,  that  the  proper 
mistake,    in    a    separate    suit   in    a  remedy  would  be  in  an  action  in  a 
Court  of  Equity.     In  an  unreported  Court  of  Equity. 
case    where    the    guardian    compro-  i'  8  10928  G.  C. 
mised  a  doubtful  claim  by  accepting  18  §  10919  G.   C,   §  1354. 
a  certain  amount,  the  income  to  be  19  §  10916  G.  C,   §  1311. 


1221  PRESCRIBED  BY  STATUTE  §  1367 

the  father  or  mother  were  suitable  persons,  he  would  in  effect 
be  only  guardian  of  the  estate.  It  would  prevent  a  testamentary 
guardian  from  having  the  custody,  etc.,  in  preference  to  the 
surviving  parent. 

§  1367.  Duties  prescribed  by  statute.  ' '  The  following  are 
the  duties  of  every  guardian  appointed  to  have  the  custody  and 
take  charge  of  the  estate  of  a  minor . 

"1.  Within  three  months  after  his  appointment  to  make  and 
file  a  full  inventory,  verified  by  oath,  of  the  real  and  personal 
estate  of  his  v^ards, -with  its  value  and  the  value  of  the  yearly 
rent  of  the  real  estate.  Failing  so  to  do  for  thirty  days  after 
he  has  been  notified  of  the  expiration  of  the  time  by  the  probate 
judge,  the  judge  shall  remove  him  and  appoint  a  successor ; 

"2.    To  manage  the  estate  for  the  best  interest  of  his  ward; 

"3.  On  oath,  to  render  to  the  proper  court  an  account  of 
his  receipts  and  expenditures,  verified  by  vouchers  or  proof, 
and  as  part  of  the  account,  a  full,  itemized  statement  of  the 
funds  of  his  ward's  estate,  the  date  and  nature  of  their  invest- 
ment, the  security  thereof,  and  the  rate  of  interest  or  income 
accruing  thereon,  once  in  every  two  years,  or  oftener,  upon  the 
order  of  the  court,  made  on  motion  of  any  person  interested  in 
such  ward  or  his  or  her  property,  for  good  cause  shown  by 
affidavit.  Failing  so  to  do  for  thirty  days  after  he  has  been 
notified  of  the  expiration  of  the  time  by  the  probate  judge,  no 
allowance  shall  be  made  for  his  services,  unless  the  court  enters 
upon  its  journal  that  such  delay  was  necessary  and  reasonable. 
But  when  the  whole  estate  of  such  ward,  or  of  several  wards 
jointly,  under  the  same  guardianship,  does  not  exceed  two 
hundred  dollars,  in  value,  the  guardian  shall  only  be  required 
to  render  such  account  upon  the  termination  of  his  guardian- 
ship, or  upon  the  order  of  the  court  made  upon  its  own  motion, 
or  the  motion  of  a  person  interested  in  the  ward  or  wards,  or 
in  his,  her  or  their  property,  for  good  cause  shown,  and  set 
forth  upon  the  journal  of  the  court ; 

"4.  At  the  expiration  of  his  trust,  fully  to  account  for  and 
pay  over  to  the  proper  person  all  of  the  estate  of  his  ward  in 
his  hands ; 

"5.  To  pay  all  just  debts  due  from  such  ward  out  of  the 
estate  in  his  hands,  and  collect  all  debts  due  to  the  ward;  in 
case  of  doubtful  debts,  to  compound  them,  to  appear  for  and 
defend,  or  cause  to  be  defended,  all  suits  against  his  ward ; 


§1367  guardian's  powers  and  duties  1222 

"6.  When  a  ward  has  no  father,  or  has  one  who  is  unable 
or  fails  to  educate  the  ward,  his  guardian  shall  provide  such 
education  for  him  as  the  amount  of  his  estate  justifies; 

"7.  Within  a  reasonable  time  after  he  receives  it,  to  loan 
or  invest  the  money  of  his  ward,  in  notes  or  bonds,  secured  by 
first  mortgage  on  real  estate  of  at  least  double  the  value  of  the 
money  loaned  or  invested.  The  buildings  thereon,  if  any,  must 
be  well  insured  against  loss  by  fire  and  so  kept  by  the  mort- 
gagor for  the  benefit  of  the  mortgagee,  until  the  debt  is  paid. 
On  failure  so  to  do,  the  mortgagee  shall  insure  them  and  the 
expense  to  him  be  repaid  by  the  mortgagor  and  be  a  lien  on  the 
property  concurrent  with  the  mortgage.  Or  he  may  invest  such 
money  in  bonds  of  the  United  States,  or  of  a  state  on  which 
default  has  never  been  made  in  the  payment  of  interest,  or 
bonds  of  a  county  or  city  in  this  state,  issued  in  conformity  to 
law;  or  with  the  approval  of  the  probate  court,  in  productive 
real  estate  within  this  state,  the  title  to  which  must  be  taken  in 
the  name  of  the  ward.  He  also  shall  manage  such  investments 
and  when  deemed  proper,  change  them  into  other  investments 
of  the  above  classes.  No  real  estate  so  purchased  shall  be  sold 
by  the  guardian,  except  with  the  approval  of  the  probate  court. 
If  the  guardian  fails  to  loan  or  invest  money  of  his  ward  within 
such  reasonable  time,  he  must  account  on  settlement  for  such 
money  and  interest  thereon,  calculated  with  annual  rests ; 

"8.  To  settle  and  adjust,  when  necessary  or  desirable,  the 
assets  which  he  may  receive,  in  kind,  from  an  executor  or  ad- 
ministrator, as  may  be  most  advantageous  to  his  wards.  Before 
such  settlement  and  adjustment  shall  be  valid  and  binding,  it 
must  be  approved  by  the  probate  court,  and  such  approval 
entered  on  its  journal.  With  like  approval,  to  hold  the  assets 
as  received  from  the  executor  or  administrator,  or  what  may  be 
received  in  the  settlement  and  adjustment  of  such  assets.  Where 
personal  injury  is  caused  to  a  minor  by  wrongful  act,  neglect 
or  default,  such  as  would  entitle  the  minor  to  maintain  an  action 
and  recover  damages  therefor,  the  guardian  of  such  minor  is 
authorized  to  adjust  and  settle  said  claim  with  the  advice,  ap- 
proval and  consent  of  the  probate  court,  and  in  such  settlement, 
parents  may  waive  all  claim  for  damages  on  account  of  loss  of 
service  of  said  minor,  and  such  claim  may  be  included  in  such 
settlement ; 

"9.  To  obey  all  orders  and  judgments  of  the  proper  courts 
touching  the  guardianship.  The  filing  of  the  statements  of  the 
investment  of  the  trust  funds  mentioned  in  this  section  shall 
not  entitle  the  court  to  any  fees  in  addition  to  those  allowed 
by  law  for  filing  and  recording  accounts  without  such  state- 
ments."    [R.  S.  §  6269;  108  v.  366.]  =« 

20  §  10033  G.  C.  quired  by  tlie  section.     In  re  Strick- 

it  18  the  duty  of  the  court  either  land,  7  iST.  P.  233 ;   1  Dec.  702. 
■vrith  or  Avir.iout  complaint  to  enforce  The  first  six  clauses  of  the  above 

.the   performance   of   the   duties   re-  section    are    almost    identical    with 


1223  INVENTORY  §  1368 

§  1368.     Inventory. 

What  has  been  heretofore  said,^^  as  to  the  importance  of  an 
administrator  or  executor  in  filing  an  inventory  is  fully  appli- 
cable to  a  guardian.  The  statute  recognizes  its  importance 
when  it  presc'ribes  as  a  penalty  for  failure  to  file  —  the  re- 
moval of  the  guardian.  It  must  be  a  full  inventory ;  what  is 
meant  by  this  is,  that  it  must  contain  in  detail  a  full  and  com- 
plete statement  of  the  assets  of  every  nature  and  character, 
which  will  come  into  the  guardian's  possession.  It  has  been 
held  that  it  must  include  the  distributive  share  of  a  ward  in  an 
estate."" 

But  where  the  management  and  control  of  property  is  given 
to  the  executor  during  the  minority  of  the  ward,  the  guardian 
should  not  include  it  in  his  inventory. ^^  If  he  fails  to  file  an 
inventory,  the  statute  is  imperative  that  he  shall  be  removed.'* 
Before  a  removal  can  be  had,  however,  the  guardian  must  be  no- 
tified, and  thirty  days  must  have  expired  from  the  time  of  the 
notification,  until  the  order  of  removal  could  be  made. 

The  inventory  is  only  prima  facie  proof,  that  the  guardian 
has  received  the  property  therein  described,  and  may  be  given 
in  evidence  against  him  and  the  sureties  on  his  bond,  but  neither 


the    statutes    of    Indiana,     (R.     S.  See  §  515,  Investments  by  admin- 

1894,   §2685),  and  the  decisions  of  istrators. 

the  Court  of  that  State  will  there-  21  §  280  et  seq. 

fore  be  pecularly  applicable  to  our  22  Tapley   vs.   McGee,    6    Ind.    56; 

statute.     The  first  and  sixth  claBses  Burtch  vs.  Thorn,  7  Ind.  508. 

will   be   considered    further    in    this  23  Branch    vs.    Holeeroft,    14   Ind. 

chapter.     The      second,      fifth      and  237. 

,11                 -11    V,              -11  In  Indiana,  the  failure  to  report 

seventh    clauses    will    be    considered  ...                ,         ,  •       111*4. 

in  time,   renders   him   liable   to  ten 

when  treating  of  the  rights  of  guar-  pgj.    cent,    penalty.       (Eiceman    vs. 

dians  as  to  personal  property;   and  State,   75   Ind.    46.)      But   with   us 

the  third  and  fourth  will  be  under  the   only   penalty   seems   to   be  the 

fnn.fo^^o    -'^  ^f?7^^"^-  ,^"'^'°"  "T^Wood   vs.    Black,   84   Ind.  279; 
10933  G.  C.  IS  not  intended  to  cover  Johnson  vs.  Metzger,  95  Ind.  307. 
all    the    duties   of   a    guardian,    but  The  order  might  probably  be  en- 
contains     the     essentials     of     such  forced  l)y  contempt.     §  543  R.  iS. 
various    duties.  „  The   case   of   In   re   Oliver,   9   K 

P.    (N.S.)     178,    the    court    reviews 
an  inventory  on  exceptions. 


§  1369  guardian's  powers  and  duties  1224 

himself  nor  any  one  liable  to  the  estate  of  the  ward  i?  pre- 
cluded from  showing  that  the  inventory  was  not  correct.^^ 

The  inventoi-y  must  be  under  oath.  Where  the  estate  is 
very  large  it  may  be  advisable  to  Have  two  or  three  disinterested 
persons  make  an  appraisement.  Othem'ise,  the  guardian  fixes 
the  value  himself  in  his  return.  A  guardian  appointed  to  take 
the  place  of  a  guardian  that  has  been  removed  or  resigned,  need 
not  file  an  inventory,  unless  such  former  guardian  did  not  file 
one,  and  even  then,  it  might  not  be  necessary  if  the  former 
gruardian  has  filed  an  aecount.-^^  In  order  that  the  inventory 
may  show  the  exact  condition  of  the  estate,  if  there  are  judg- 
ments, mortgages,  or  other  liens  on  the  real  estate,  the  inventory 
should  contain  a  statement  of  such  fact.  The  following  may  be 
used  as  a  general  form : 

GUARDIAN'S  INVENTORY, 

Inventory  of  the  real  and  personal  estate,  with  the  value  of  the  same, 

and  the  value  of  the  yearly  rent  of  the  real  estate  belonging  to 

,    minor    child of ,    deceased. 

Description  of  personal  estate  and  value  thereof 

Value $ 

Description  of  real  estate 

Value $ 

Yearly   rents    $ 

RECAPITULATION. 

Total  value  of  personal  estate $ 

Total  value  of  real  estate $ 

Yearly  rent  of  real  estate $ 

The  State  of  Ohio, County,  ss. 

,  guardian  of being  duly   sworn, 

says  that  the  foregoing  is  a  full  inventory  of  the  real  and  personal  estate 
of  said  ward.  .,  with  the  value  of  the  same,  and  the  value  of  the  yearly  rent 
of  said  real  estate,  according  to  the  best  of knowledge. 


Sworn  to  before  me,  and  signed  in  my  presence,  this day  of 

A.  D.   190... 

,  Probate  Judge. 

By ,  Deputy  Clerk. 

§  1369.     Duties  as  to  custody  of  ward. 

In  no  case  in  our  State  can  a  guardian  whether  testamentary, 
or  otherwise,  have  the  custody  of  the  minor  unless  the  parents 
of  such  minor  are  unsuitable.  If  either  the  father  or  mother  is 
unsuitable,  then  a  guardian  is  entitled  to  the  custody  of  the  ward 

25  Woerner    on     Gr.     319,     citing       Sanders  vs.  Forgasson,  3  Baxt.  249. 
State    vs.    Stewart,    36    Miss.    652;  25a  This    is    the    method    followed 

Green  vs.  .Johnson,  3  Gill  &  J.  389;        in  administrations  of  estates. 


1225  CUSTODY   OF    WARD  §  1370 

as  a  general  rule.  But  even  then  as  to  the  guardian,  the  right 
is  not  absolute,  and  if  the  best  interests  of  the  child,  which  is 
the  sole  question  to  be  considered,  demands  that  some  other  per- 
son should  have  the  custody,  the  Court  will  so  order.  The 
gnardian  may  enforce  his  right  by  habeas  corpus,  or  by  action 
of  trespass,  for  taking  away  the  ward,  and  the  prevailing  doc- 
trine seems  to  be,  that  he  may  maintain  an  action  for  the  seduc- 
tion of  his  female  ward.^" 

The  custody  of  a  ward's  person  is  never  regarded  as  illegal 
and  his  refusing  to  surrender  such  guardianship,  even  to  the 
parents,  does  not  constitute  unlawful  imprisonment  or  re- 
straint.^^ The  right  of  the  guardian  to  change  the  domicile  of 
his  ward  has  been  spoken  of  heretofore.'^  Our  statutes  provide 
that  the  guardian  may  apprentice  his  ward. 

§  1370,  Wards  may  be  bound  out  upon  approval  of  Probate 
Court.  "If  it  be  necessary,  the  guardian  of  a  female  under 
twelve,  or  a  male  under  fourteen  years  of  age,  may  bind  such 
minor  to  a  suitable  person,  until  such  minor  reaches  the  age  of 
twenty-one  if  a  male  or  eighteen  if  a  female,  or  for  a  shorter 
period.  No  identure  shall  be  executed  unless  the  probate  court 
appointing  the  guardian  first  approves  such  binding  and  the 
terras  and  conditions  of  the  indenture,  and  evidences  that  ap- 
proval by  a  certificate  under  the  seal  of  the  court  indorsed 
thereon.''     [R.  S.  §  6293.]29 

It  will  be  observed  that  no  indenture  of  apprenticeship  shall 
be  executed,  unless  the  Probate  Court  appointing  the  guardian 
shall  first  approve  such  binding  and  the  terms  and  conditions 
of  the  indenture.  After  the  indenture  is  made,  which  should 
be  executed  in  accordance  with  sees.  8007  to  8012,  G.  C,  the 
guardian  does  not  relinquish  all  his  duties  by  an  apprenticeship, 

26  15  Am.  &  Eng.  Ency.  of  Law,  2  controlled  in  their  rights  by  expres- 
Ed.  51.  sions,  in  other  parts  of  the  will  ap- 

27  Woerner  on  Gr.  159,  citing  pointing  them,  which  amount  to  a 
TowTisend  vs.  Kendall,  4  Minn.  412;  mere  recommendation.  Sch.  Dom. 
People  vs.   Wilcox,  22   Barb.   178.  Rel.  §333,  p.  465;  Knott  vs.  Cotter, 

28  §  1322.  2  Ph.  192. 
Testamentary  guardians  cannot  be  20  §  10959  G.  C. 


§  1371  guardian's  powers  and  duties  1226 

but  still  inquires  iuto  the  usage  of  the  minor,^°  If  the  minor  is 
being  ill-treated,  he  shall  complain  before  a  justice  of  the 
peace.^^  If  the  apprentice  becomes  immoral  and  dissolute,  and 
fails  to  obey  his  master  or  mistress,  proceedings  may  be  had  to 
annul  the  apprenticeship.^^ 


§  1371.     Form  of  indenture  to  bind  out  a  ward. 


Articles  of  agreement  made   this day  of ,   A.   D., 

190 .. ,   by   and   between ,   as  guardian   of ,   a 

male   (or  female)  minor  of  the  age  of years,  on  the day  of 

,  A.  D.   190..,    (the  age  should  be  specified  as  near  as 

can  be,  because,  as  to  the  time  of  service,  the  age  here  named  will  govern 

as  being  the  true  age,  whether  it  is  so  or  not) .  and witness- 

eth,  that  the  said ,  as  guardian  as  aforesaid,  hereby  binds 

the  said unto  the  said ,  until  the  said 

shall  arrive  at  the  age  of  twenty-one  years    (or  eighteen 

years,  as  the  case  may  be;  or  if  for  any  shorter  period,  name  either  the 
number  of  years  that  is  agreed  upon  or  the  age  up  to  which  the  minor  is 
agreed  to  be  bound),  to  learn  the  art  of  a  stone  cutter  (or  whatever  art  or 

business  is  agreed  upon)  ;   and  the  said ,  as  guardian  as 

aforesaid  (or  if  it  be  agreed  that  he  is  to  be  individually  liable,  say, 
instead  of  "  as  guardian  as  aforesaid,"  individually)   hereby  covenants  and 

agrees   with    said ,    that   the    said shall 

faithfully  serve  the  said ,  and  work  under  his  direction 

at  the  employment  aforesaid,  during  the  term  aforesaid,  and  conduct 
himself  in  a  proper,  becoming  and  respectful  manner  towards  the  said 
,  and  obey  all  his  reasonable  requests  and  demands. 

And  the  said hereby  covenants  and  agrees  with  the  said 

as  guardian  as  aforesaid,  that  he  will  this  day   (or  if 

another  day  be  fi.xed,  when  the  minor  is  to  commence  the  service,  say,  on  the 

■ day  of . ,  A.  D.  190. . )   receive  the  said 

into  his  service  for  the  term  and  for  the  purposes  aforesaid,  and  that  he 
will,  faithfully  and  in  good  faith,  teach  or  cause  him  to  be  taught  the  art 
and  mysteries  of  the  trade  of  stone  cutting  (or  such  other  business  or  art 

as   is  agreed   upon) .   .so  that  said shall   be   as   thoroughly 

instructed  and  learned  therein  as  his  capacity  will  permit;   and  will  send 

said to  a  common  school   for  at  least  twelve  weeks  in 

each  school  year  during  his  apprenticeship  after  the  said 

is  eight  years  of  age  and  at  the  expiration  of  the  said  term  of  service,  will 

furnish    said with    a    new   Bible   and   two    good    suits    of 

wearing  apparel;    (and  if  any  money  or  property  agreed  to  be  paid  to  the 

minor,  say,  and  will  pay  the'said.  .  .' the  sum  of 

dollars,  or  will  give  the  said a  set  of  good  tools  of  said 

trade,  etc.,  at  the  expiration  of  the  term  aforesaid,  or  add  any  other  agree- 
ment between  the  parties). 

In  witness  whereof,  we  have  hereto  set  our  hands. 

(Signed.)  , 

Guardian  of 


80  §  8012  G.  C.  32  §  8016  G.  C. 

31  §  801.3  G.  C. 


I25i7  SERVICES  OF  WARD  §  1.372 

FORM  OF  JUDGE'S  CERTIFICATE. 

The  State  of  Ohio, County,  ss. 

I, ,  Probate  Judge  of county,  Ohio, 

hereby  certify,  that  on  the day  of ,  A.  D.  190.  .   the. 

Probate  Court  of  said  county  examined  the  indenture,  hereto  attached,  and 

approve  the  terms  and  covenants  therein,  as  also ,   as   a 

suitable  person  to  whom  to  bind  the  said ,  as  will  fully 

appear   by   the   records   of   said   Court. 

Witness  my  hand  and  the  seal  of  said  Court,  this day  of 

,  A.  D.   190... 

(L.  S. )  ,  Probate  Judge,  etc. 

ENTRY  OF  APPROVAL  OF  COUJIT. 
{Title) 

This  day  came  the  said ,  guardian  of , 

and  produced  to  the  Court  articles  of  indenture  duly  made  and  executed  on 

the day  of ,  A.  D.  190.  .,  by  the  said , 

as  guardian  as  aforesaid,  and  the  said ,  whereby  the  said 

is  bound  unto   the  said ,   and   upon  the 

terms  and  covenants  in  said  indenture  named,  and  the  Court  being  satisfied 

that  said is  a   proper  person  for   the  purposes  aforesaid, 

and  that  the  terms  and  covenants  of  said  indenture  are  legal,  proper  and 
just,  the  person,  and  terms  and  covenants  aforesaid  are,  by  the  Court,  here- 
by approved. 33 

§  1372.     Right  of  services  of  his  ward. 

Although  a  guardian  may  occupy  the  position  of  a  parent  to 
his  ward,  yet  he  is  not  entitled  to  the  ward's  personal  services. 
Whatever  wages  may  be  earned  for  Vv'ork  done  either  to  the 
guardian  or  for  another  person,  constitute  a  trust  fund,  for 
which  the  guardian  is  bound  to  account.  If  the  ward  lives  with 
the  guardian  and  occupies  the  position  of  a  member  of  his 
family,  the  guardian  would  have  the  right  to  offset  the  board 
and  services  rendered  for  the  benefit  of  the  ward  as  against  the 
services  .that  the  ward  had  rendered  for  him.^* 

And  the  general  rule  of  parent  and  child  has  been  applied  to 
cases  of  guardian  and  ward,  where  the  ward  is  a  member  of 
the  guardian's  family.  That  is,  that  the  guardian  cannot  re- 
cover from,  the  ward  for  services  rendered  to  the  ward,  neither 
can  the  ward  recover  for  services  rendered  to  the  guardian.^'* 
This  rule  could  only  be  applied  where  from  all  the  circum- 
stances surrounding  the  case,  the  ward  actually  occupies  the 
position  and  relation  of  a  child  to  his  parent.     A  guardian 

33  Wliit.  Pro.  Code.  relation,  one  can  not  recover   from 

34  Woerner  on  Gr.  160;  Scli.  Doiii.  the  other  on  account  of  services 
Rel.,  §  3.3.5.  except  on  proof  of  contract  to  make 

35  Woerner  on  Gr.  161,  citing  compensation  therefore,  docs  not 
Starling  vs.  Ualkum,  47  Ahi.  314;  apply  to  a  claim  by  a  guardian  for 
Mover  vs.  Fletchei-,  .56  Mich.  50.S.  services   rendered   an   imbecile   ward. 

The  doctrine  that  where  two  per-  Rcattergood  vs.  Ingraim,  86  O.  S. 
sons  sustain  to  each  other  a  family      76. 


§  1373  guardian's  powers  and  duties  1228 

pbould  not  rear  his  ward  in  idleness,  but  should  in  some  manner 
keep  him  engaged  in  services,  either  in  making  earnings,  or 
fitting  himself  for  the  duties  of  life  which  may  afterwards 
devolvs  upon  him.^^ 

§  1373.     Duties  as  to  maintenance. 

If  the  guardian  is  guardian  of  the  person,  or  the  person  and 
estate  of  his  ward,^^  it  is  his  duty  to  maintain  the  ward,  and 
if  he  should  be  guardian  of  the  estate,  and  there  is  no  guardian 
of  the  person,  and  there  is  no  other  person  who  would  attend  to 
the  matter,  it  would  likewise  be  his  duty  to  look  after  the 
maintenance  of  the  ward.^^ 

Two  matters  are  to  be  taken  into  consideration  in  determin- 
ing the  amount  to  be  expended.  First,  the  value  of  the  ward's 
estate,  and  second  the  position  in  society  that  the  ward's  parents 
or  friends  have  occupied.  That  method  of  expenditure  should 
be  adopted  which  taking  into  consideration  all  the  surround- 
ings of  the  ward,  will  result  to  the  best  possible  advantage  of  the 
ward.^** 

No  rigid  rule  can  be  adopted.  In  some  cases  it  would  be 
better  to  expend  all  the  income  and  principal  in  the  mainte- 
nance of  the  ward,  where  in  other  cases,  such  expenditure  might 
not  be  considered  for  the  ward's  best  interest.  Whatever  may 
be  considered  such  necessaries  for  which  the  ward  would  be 
personally  held  liable,  are  assuredly  such  things  as  the  guardian 
ought  to  provide.  But  he  should  not  be  limited  to  this  rule,  as 
the  ward's  welfare  may  demand  that  which  is  not  a  necessity. 
The  guardian  cannot  be  held  personally  liable  for  even  neces- 
saries that  have  been  furnished  to  his  ward,  unless  he  contract 
for  the  sarne.     But  in  such  cases  the  creditor  might  procure  an 

36  If  a  guardian  has  knowledge  of  38  §  6270  R.  S.,   §  1316. 
an    agreement    between    his    minor           39  Woerner  on  Gr.  169. 
ward  and   her  mother   and  a  third           A  stepfather  is  oblised  to  main- 
person   that   such   ward   shall   serve  tain     his     minor     stepchildren     but 
such  person  at  a  certain  price  to  be  upon  necessity  being  shown,  may  be 
paid  to  the  minor,  and  allows  such  allowed  for  same.     In   re  Lediff',  21 
agreement  to  be  executed,  and   the  Dec.  712.     See  under  next  section, 
amount   to    be    paid    to    the   minor  Where  the   child's   estate  exceeds 
without    objection,    he    is    estopped  that  of  the  parent  it  should  be  sup- 
from     collecting     the     amount     as  ported  out  of  its  own  estate.     Wing 
guardian.      Boulton    vs.    Black,    68  vs.  Hibbert.  20  C.  C.  404;   11  C    D. 
Ind.  269.  192 

3T  §§  10933,  10935  G.  C,  §§  1367 
1313. 


1229    •  AS    TO    MAINTENANCE  §  1373 

order  of  the  Probate  Court  and  in  that  mannner  compel  the 
guardian  to  pay  the  debt.*" 

If  the  guardian  contracts  for  an  article  for  the  use  of  the 
ward,  he  will  be  liable  although  he  may  not  have  sufficient 
funds  in  his  hands,  for  it  is  his  duty  to  know  the  condition  of 
the  estate."* 

The  English  rule  was,  that  tlie  expenditures  of  a  guardian 
should  be  limited  to  the  income,*^  unless  the  Court  specifically 
allowed  the  principal  to  be  used.  While  a  guardian  should 
practice  a  reasonable  degree  of  economy,  yet  in  our  State,  the 
law  does  not  recognize  this  English  rule,  and  if  the  welfare 
of  the  ward  demands  an  expenditure,  it  may  be  made  by  the 
guardian  without  direct  authority,  from  the  Court,  although 
in  this  way  the  entire  estate  may  be  expended.  In  questions 
of  doubt,  the  guardian  should  go  to  the  Court  for  instructions.*^ 

Where  the  guardian  is  guardian  of  the  person,  or  person 
and  estate  of  the  ward,  he  may  not  be  liable  financially  beyond 
the  estate  in  his  hands,  yet  as  he  stands  somewhat  in  the  rela- 
tion of  a.  parent,  he  cannot  desert  the  ward  entirely,  he  should 
either  look  after  the  interest  of  the  ward  or  resign.*^ 

40  Louden  vs.  Patterson,  41   O.  S.       minor  had  an  estate  of  the  value  of 
206.  $200,000,  the  Court  approved  an  ex- 

40*  Woerner  on  Gr.  168.  penditure   of   $5,000   a   year,   to   be 

41  As    to    what   is    income,    see    §  applied  towards  education  and  main- 
1288,  Trustees.  tenance  of  the  ward. 

42  Woerner  on  Gr.  167;  In  re  M.  J.  In  another  case  where  a  boy  had 
Hough,  2  N.  P.  382;  1  Dec.  699.  an    estate    of    $500,    was    eighteen 

The   Probate  Court  of  Clark   Co.  years  of  age,  the  guardian  was  au- 

approved    expenditures   which    were  thorized   to   purchase   him   a   watch 

not  absolutely  necessary,  as  follows:  not  to  exceed  $30  in  value.     See  15 

Where  a  boy  eighteen  years  of  age  Am.   &   Eng.   Ency.   of  Law,   2   Ed. 

was  the  owner  of  one  hundred  acres  105. 

of  land,  his  guardian  was  authorized  43  gch.  Dom.  Rel.  337. 
to  purchase  him  a  horse  and  buggy,  A  guardian  should  be  permitted 
at  a  cost  not  to  exceed  $250,  it  be-  to  exercise  some  discretion  in  allow- 
ing made  to  appear,  others  boys  in  ing  small  sums  of  money  to  his 
the  community  had  such  articles.  ward  for  personal  expenses.  Brown 
Another  case  where  a  girl  fourteen  vs.  Mullin,  24  Miss.  204;  Speor  vs. 
years  of  age  had  an  estate  of  $3,000,  Tinsley,  55  Ga.  89.  Thus  where  the 
the  guardian  was  authorized  to  pur-  guardian  of  a  girl,  whose  whole  es- 
chasc  a  piano  at  a  cost  not  to  ex-  tate  was  in  his  hands,  amounted  to 
ceed  $250.     In  another  case  where  a  $170,    advanced    to   her    during   the 


§  1374  guardian's  powers  and  duties  1230 

§  1374.     When  parent  may  receive  compensation  for  maintenance 
and  education. 

If  the  guardian  be  also  the  ward's  father,  he  will  not  ordi- 
narily be  allowed  to  charge  for  the  expenditures  made  for  tlie 
support  or  education  of  the  ward,  since  it  is  his  duty,  himself, 
to  support  his  minor  child.**  And  the  same  rule  would  prevent 
a  guardian  from  allowing  the  ward's  father  for  expenditures 
made  for  maintenance  and  education.'^  An  exception  to  this 
rule  is,  when  the  father  is  poor,  or  comparatively  poor,  when 
compared  with  the  estate  of  the  ward.  This  exception  has  been 
stated  as  follows :  *^ 

"  Where  the  estate  of  children  is  abundant  for  tlieir  support 
and  education  in  a  reasonable  manner,  and  that  of  the  parent  is 
limited,  and  his  income  much  less  than  that  of  the  children, 
it  would  be  unreasonable  to  require  him  to  maintain  his  children 
out  of  his  own  comparatively  limited  means.  Under  such  cir- 
cumstances, where  he  has  not  the  pecuniary  ability  to  support 
and  educate  his  children  in  a  manner  suited  to  their  fortunes 
and  expectations,  and  the  children  have  an  income  or  estate 
ample  for  this  purpose,  the  parent  would  be  allowed,  by  a  Court 
having  jurisdiction  of  such  matters,  the  expenses  incurred  by 
him  for  these  purposes,  out  of  the  estate  of  such  children."  *' 


period  of  about  six  years  and  a  half  vs.  Turner,   85  N.   Cas.  600 ;    2  Am. 

while   she   was   between   eleven   and  Prob.  R.  489. 

eighteen  years  of  age,  the  whole  of  45  15  Am.  &  Eng.  Ency.  of  Law,  2 

the  amount  in  sums  of  $5  at  a  time,  Ed.   102. 

it  was  held  that  there  was  no  abuse  Does    not    include    a    stepfather, 

of    discretion    on    the    part    of    the  Wing  vs.  Hibbert,   7   N.   P.    124;    8 

guardian,  though  during  that  period  Dec.  65. 

the  ward  was  gratuitously  fur-  46  In  re  Gould,  2  Dec.  398. 
nished  by  her  relatives  with  the  ac-  47  In  this  case  the  ward  had  a 
tual  necessaries  of  life  in  the  matter  piano,  about  $375  in  money  and  a 
of  boarding,  clothing  and  schooling.  gold  watch,  which  she  received  from 
Karney  vs.  Vale,  56  Ind.  542.  her  mother's  estate.  Her  father  had 
The  guardian  may  be  allowed  for  about  an  equal  estate  and  he  was  en- 
expenditures  for  necessaries  fur-  gaged  in  an  occupation  that  earned 
nished  before  the  guardianship  be-  a  moderate  livelihood  and  had  no 
gun.  In  re  Miller,  34  Hun.  267;  other  persons  dependent  upon  him 
Rocker  vs.  Rooker,  60  Ind.  550.  for  support  except  this  minor.  He 
.     **  In  re  Gould,  2  Dec.  398 ;   Burk  made  a  charge  for  board  paid  to  the 


1231  AS    TO   EDUCATION  §  1375 

But  a  mother  is  usually  allowed  for  support  of  her  child. 
Even  though  she  has  an  estate  of  her  own,  for  it  is  not  the  duty 
of  the  mother  like  that  of  a  father  to  furnish  means  for  main- 
taining and  educating  a  child/''  The  courts  have  also  refused 
to  sanccion  the  payment  of  board,  etc.,  to  other  persons  who  have 
sustained  the  relation  of  a  parent  to  a  ward.^**  A.s  a  general  rule 
a  stepfather  may  be  allowed  maintenance  furnished  to  his  step- 
children.*^^ 

The  guardian  will  not  be  allowed  to  pay  a  claim  to  a  person 
who  is  occupying  the  relation  of  a  parent  to  a  child,  unless 
such  person  makes  a  claim  to  be  reimbursed,  and  that  it  further 
appears,  that  it  was  the  intention  of  the  parties  to  charge  for 
the.  board,  etc.,  at  the  time  it  was  furnished.^" 

§  1375.     Duties  as  to  education. 

The  guardian  is  under  the  same  duty  to  educate  his  ward,  as 
he  is  to  furnish  maintenance.  The  statute  provides  that  when 
any  ward  has  no  father,  and  having  a  father  who  is  unable 
or  fails  to  educate  his  ward,  it  shall  be  the  duty  of  his  guardian 
to  provide  for  him,  such  education  as  the  amount  of  his  estate 
may  justify.^^  From  this  it  appears  that  it  may  be  the  duty 
of  the  guardian  to  furnish  education  for  the  ward,  although  he 

ward's  brother  of  .$122.50  and  made  Eiicy.  of  Law,  2  Ed.  104;   Ilorton's 

some  further   charges  of   $50.60  for  Appeal,  94  Pa.  St.  62;  2  Am.  Prob. 

clothing.     The  court   refused  to  al-  R.  151. 

low  him  for  the  expenditures  made,  ^9*  However,      there      liave      been 

holding    tliat    it    was    his    duty    to  cases    where    it    was    not    allowed. 

furnish  his  daughter  with  the  means  In  re  Ledig,  21  Dec.  712. 

of  support  and  education.  But   there  seems   no  good   reason 

48  Tlie  following  cases  are  cited  iii  why  a  stepfather  should  support 
the  encyclopedia  of  law  to  sustain  the  child  of  his  wife  by  a  former 
this  proposition:  Stewart  vs.  husband  if  such  child  has  an  estate 
Lewis,  16  Ala.  734;  Englehardt  vs.  and  such  we  believe  to  be  the  law. 
Yung,  76  Ala.  534;  Matter  of  Beisel,  See  Gay  vs.  Ballow,  4  Wend.  406; 
110  Cal.  267;  Osborne  vs.  Van  Horn,  'Sharp  vs.  Cropsey,  11  Barb.  227; 
2  Fla.  360;  INIowbry  vs.  Mowbrv,  64  Garber  vs.  Bauerline,  17  Or.  115; 
111.  383;  Chapline  vs.  Moore,  I'^T.  &  19  Pac.   849. 

B.   Mon.    (Ky. )    150;    Tutorship   of  At  common  law  a  stepfather  was 

Crane,  47  La.  Ann.  896;  Whipple  vs.  under  no  obligation  to  supjiort  his 

Dow,  2  Mass.  415;   Dawes  vs.  How-  stepchild. 

ard,     4     Mass.     97 ;     Melanefy     vs.  50  Folger  vs.  Heidel,  60  Mo.  285 ; 

O'Driscoll,  164  IMass.  422;  Gladding  Davis   vs.    Roberts,    Sled   Smed.   M. 

vs.  Follctt,  2  Dem.  (N.  Y.)  58;  Mat-  Ch.    Miss.    543;    Lafferty's    Estate, 

ter  of  Winsor,  5  Dem.   (N.  Y.)   340;  147  Pa.   283;    Wocrner  on  Gr.   170; 

Wilkes  vs.  Rogers,  6  Johns   (N.  Y.)  see  also  162. 

567;    Bellas'   Estate,   6  Kulp    (Pa.)  51  §§  10932,   10935  G.  C.,   §§  i310, 

189.  1313;   1  Bl.  Com.  446. 

49  In  re  M.  J.  Hough.  2  X.  P.  382;  See  2  Kent's  Com.  196;  Sch.  Dom. 
1  Dec.  699.  Rel.  235;  §§  7767,  12976  G.  C,  §  308, 

See   cases   cited.    14    Am.    &    Eng.       Compulsory  education. 


§  1376  guardian's  powers  and  duties  1232 

does  not  stand  in  the  relation  of  a  parent.  As  a  general  rule  -^ 
may  be  said,  tliat  the  guardian  is  the  proper  judge  as  to  the 
scliool  or  university  at  which  his  ward  shall  be  educated,  and 
the  Court  will  compel  the  obedience  of  the  ward  to  the  selection, 
unless  some  reasonable  objection  is  shown.^^  In  this  matter,  the 
guardian  must  exercise  a  sound  discretion  and  in  case  of  doubt  or 
difficulty,  he  may  apply  to  the  Court  for  instructions.^^ 

Parole  evidence  of  a  deceased  father's  wishes  has  been  admit- 
ted, and  an  order  made  accordingly.^*  Whether  the  guardiaA 
should  give  the  ward  a  collegiate  education  or  not  will  depend 
upon  the  estate  and  inclinations  of  the  ward,  if  so  inclined 
and  the  estate  warrants  it,  such  education  should  be  given;  if 
not,  then  an  ordinary  good  education  will  suffice.  If  the  estate 
warrants  and  the  ward  has  an  inclination,  a  special  education 
may  be  given  in  music  or  any  particular  branch  which  will 
result  to  the  best  interest  of  the  ward. 

§  1376.     Religious  instruction. 

Chancery  Courts  in  England  have  recognized  the  rights  and 
duties  of  guardians  in  respect  to  the  religious  education  of  their 
ward,  but  there  is  no  religious  test  for  qualification  of  guardians 
in  our  State.  It  is  said  that  it  has  been  laid  down  as  a  rule, 
that  where  one  has  left  in  his  will  no  direction  as  to  the  religion 
in  which  his  children  are  to  be  educated,  it  will  be  presumed 
that  his  wishes  were  that  they  should  be  educated  in  his  own  re- 
ligion, and  that  a  child's  preference  will  not  be  consulted  on  the 
subject  who  is  only  ten  years  of  age.^^ 

In  another  case,  it  was  said,  the  guardian  can  only  be  re- 
moved from  his  management  for  misconduct,  and  certainly 
man's  religions  opinions  are  neither  the  one  nor  the  other.  But 
if  he  should  attempt  by  any  harsh  or  unfair  means,  to  erase 
the  impressions  made  by  the  parents  on  the  mind  of  the  child, 

f'^Tremain's  case,   1   Stl-.   R.    lOS;  54  Sch.  Dom.  Rel.  340. 

Hall  vs.  Ilall,  3  Atk.  721.  ss  White.  J.,  in  re  Luck,  7  N.  P. 

'•^Harris   vs.    Richardson,    4   Dev.       49;    10  Dec.    1. 
R.  279 ;  P.ybce  vs.  Thorp,  4  B.  Mon. 
R.  313;  Tyler  on  Infancy,  256. 


1233  RELIGIOUS     INSTRUCTION  §  1377 

and  much  more,  if  he  should  put  its  conscience  to  any  kind  of 
torture,  the  law  would  not  only  justify,  but  demand  his  re- 
moval.'^*' In  such  cases,  the  welfare  of  the  child  is  again,  the 
sole  question  to  be  considered.  That  kind  of  religious  teachings 
should  be  given  to  the  child,  which  accords  with  that  of  its 
relatives  and  friends,  where  no  particular  reason  exists  to  the 
contrary/^ 

§  1377.     Fixed  allowance  made  by  the  court  for  ward's  main- 
tenance, etc. 

It  was  common  in  English  chancery  practice,  for  the  Court 
to  fix  an  amount  which  might  be  applied  towards  the  main- 
tenance and  education  of  the  child.  This  rule  is  not  general  in 
our  Courts, "^^  yet  it  is  a  commendable  and  safe  practice,  especial- 
ly where  the  ward  is  a  member  of  the  guardian's  family,  or  a 
membei*  of  the  parents'  family,  for  the  guardian  to  make  an 
application  to  the  Probate  Court  as  to  the  amount  which  can 
be  allowed  for  the  maintenance  and  education  of  the  child. 
This  practice  is  also  one  of  convenience,  as  by  this  method,  a 
necessity  for  vouchers  and  receipts  for  a  large  number  of  the 
incidental  expenditures  is  avoided.  This  allowance  can  be 
changed  from  time  to  time  as  the  necessities  of  the  ward  require. 
The  authority  for  such  order  of  the  Court  is  found  in  sec. 
10939,  G.  C.^^  The  application  should  be  made  in  writing  and 
the  Court  should  put  its  finding  in  an  entry  properly  placed 
upon  the  journal  so  that  no  misunderstanding  could  arise  in 
the  future. 

66  Nicholson's  Appeal,  20  Pa.  St.  ss  Sch.  Dom.  Rel.  461. 

50.  59  §  1362. 

57  Woerner  on  Gr.  170;  Sch.  Dom. 
Rep.  340. 


^  loTS 


OUAKDIAN  S  POWER  IN  RELATION  TO  ESTATE 


1234 


CHAPTER  LXXV. 

POWERS  AND  DUTIES  IN  RELATION  TO  ESTATE. 


§  1378  Management  of  estate. 

§  1379  Carrying  on  business  of  the 
ward. 

§  1380  Must  pay  debts  of  the  ward. 

§  1381  Collection  of  debts,  etc. 

§  1382  Arbitration  and  compromise 
of  claims. 

5  1383  Actions  tor  the  ward. 

§  1384  Actions  against  the  ward. 

§  1385  Investment  of  funds. 

§  1386  Investment  of  funds  in  land. 

§  1387  Form  of  Application,  Entry, 
etc. 

§  1388  Interest  on  funds. 

§  1389  Deposit  of  funds. 

§  1390  Personalty  received  from  ad- 
ministrator, etc.,  in  kind. 

§  1391  Sale  of  personal  estate. 

§  1392  Management  of  real  estate, 
etc. 


§  1393     Rents. 

§  1394     Repairs. 

§  1395     Release  of  ward's  tax  title 

by     guardian.       Effect     of 

tender  of  deed. 
§  1306     Partition  and  dower. 
§  1397     Easement.     Appropriation. 
§  1398.     Completion    of    real    estate 

contract.     Additional  bond. 
§  1399     Contracts      between      ward 

and  guardian. 
§  1400     Ward's      right      of      action 

against  the  guardian. 
§  1401     Guardian's    right    of   action 

against  the  ward. 
§  1402     Employment    of    attorneys, 

agents,  etc. 
§  1403     Guardian  can  not  purchase 

property  of  the  ward,  etc. 
§  1403a  Discovery  of  assets. 
§  1403b  Imprisonment    for    disobey- 
ing citation. 
§  1403c  Examination      reduced      to 

writing. 
§  1403d  Costs. 


§  1378.     Management  of  estate. 

It  is  made  the  statutory  duty  of  the  guardian  to  manage  the 
estate  for  the  best  interest  of  the  ward.'  This  statutory  provi- 
sion places  no  additional  duty  on  the  g-uardian  other  than  that 
which  he  already  had.  It  makes  the  guardian  a  trustee  of  the 
estate  of  his  ward  and  as  such  trustee,  the  ordinary  rights  and 
liabilities  attach,  and  he  is  liable  for  such  degree  of  negligence 
as  a  trustee  ordinarily  is."     There  has  been  a  great  deal  of  dis- 


1  §  10933  G.  C,  §  1367 

2  See    §1301.    Gdns.    relation    to 
trust;  §  1289,  Dividends,  etc. 

See  §  506  et  seq.,  as  to  care  and 


management  of  estate  by  administra- 
tors and  executors;  Sch.  Doni.  Rel. 
342. 


1235  MANAGEMENT  §  13T8 

cussion  whether  the  legal  title  vests  in  the  guardian  or  whether 
he  merely  has  a  naked  power  not  coupled  with  an  interest.^ 

But  this  is  not  a  very  practical  question,  for  it  is  now  general- 
ly agreed  that  the  guardian  has  a'bsolute  control  and  entitled  to 
reduce  to  possession  all  the  personal  property  and  choses  in 
action  belonging  to  his  ward,  and  that  he  has  no  power  over 
the  real  estate  except  to  collect  the  rents,  make  ordinary  repairs, 
pay  taxes  and  insurance,  etc.,  unless  where  special  authority  is 
given  for  that  purpose.*  Carrying  with  it,  the  right  to  manage 
the  estate,  follows  the  principle  that  all  acts  done  in  that  respect 
redound  to  the  benefit  of  the  estate,  and  that  the  guardian  can- 
not act  in  any  capacity  which  is  beneficial  to  himself,  or  which 
will  result  injuriously  to  the  estate.  While  ignorance  will  some 
times  excuse  a  guardian,  dishonesty  never  will.^ 

•  If  a  guardian  exceeds  his  authority,  the  ward  may,  after  he 
becomes  of  age,  justify  the  act  by  enjoying  the  fruits  of  such 
unlawful  or  illegal  acts  of  the  guardian.*^  Various  particular 
matters  in  the  management  of  the  estate  of  a  ward  will  be  the 
subject  of  the  remaining  sections  of  this  chapter.^ 

3  Woerner  on  Gr.  172.  J.,  in  Nicholson's  Appeal  (20  Pa.  St. 

15  A.  &  E..Eney.  of  Law,  2  Ed.  54.  50,  54),  "  whether  his  interests  are 

*  State  vs.  Commissioner,  39  O.  S.  sacrificed  and  his  prospects  blighted 
58.  by    well-meaning    ignorance    or    by 

5  Seh.  Dom.  Rel.  348.  wilful  malice.     Either  is  within  the 

The  case  of  Miller  vs.  Procter,  (20  definition    of    misconduct,    a    word 

0.  S.  442),  is  important,  as  exempli-  which  applies  not  to  motive,  but  to 

fying  the  law,  that  where  a  trustee  the  act."     "  Mere  good  faith,  while 

acts  honestly  but  through  ignorance,  requisite   and   commendable,    is   not 

the  estate  suffers  a  loss  for  which  all  that  is  required  of  such  a  fidu- 

the  trustee  is  not  held  responsible.  ciary.     He  must  be  competent  also." 

Advice   of   counsel    will    not   always  Woerner  on  Guardians,  199. 

protect.     Cogbill  vs.  Boyd,   10  Bull.  e  Woerner  on  Gr.  175;   15  A.  &  E. 

285.  Ency.  of  Law,  2  Ed.  75. 

The   following   is    from    Woerner.  ^  gee   §838,   Service  of  summons; 

"  Since  a  fiduciary  relation  requires  §  1287,  Duties  of  trustees, 

vigilance  as  well  as  honesty,  indif-  §  1488,  Accounting  of  Gdn. 

ference  and  carelessness  is  culpable  §  1489,   Credits  entitled  to. 

in  a  guardian  and  renders  him  liable  §  1534,  Gdn.  of  drimkards. 

for  losses  incurred  in  respect  to  his  If  a  guardian  lease  his  ward's  es- 

ward's  money."     "  It  matters  little  tate  for  saloon  purposes  he  is  liable 

to  an  orphan  child,"  says  Black,  C.  for  certain  fines,  etc.     §§6200,  1011 

G.  C. 


§  1379       guardian's  power  in  relation  to  estate  1236 

§  1379.     Carrying  on  business  of  the  ward. 

It  is  difficult  to  imagine  a  case  where  a  minor  ward  would 
have  anj  trade  or  business  to  be  carried  on  by  a  guardian,  as 
tlie  minor  never  having  been  able  to  conduct  a  business  of  his 
own,  there  is  none  such  in  existence  at  the  time  of  the  appoint- 
ment of  the  guardian,  and  there  is  no  provision  of  law  anywhere, 
that  justifies  a  guardian  in  establishing  a  business  for  an  infant. 
In  reference  to  guardians  for  imbeciles,  lunatics,  drunkards, 
etc.,  it  is  somewhat  different.  There  the  guardian  may  come 
into  possession  of  a  running  business  at  the  time  of  his  appoint- 
ment, and  it  may  be  to  the  interest  of  the  estate  that  such  busi- 
ness be  continued,  at  least  a  reasonable  length  of  time.  But  if  it 
is  continued  by  the  guardian,  he  does  so  on  his  own  responsibili- 
ty. If  the  business  is  successful  he  must  account  for  the 
profits,  if  unsuccessful,  he  must  individually  bear  the  loss.  The 
only  exception  to  this  rule  might  be,  where  the  business  is  con- 
ducted under  an  order  of  the  Court,  and  there  has  been  some 
discussion  whether  the  Court  which  makes  the  appointment  can 
also  make  an  order  to  continue  the  business.* 

The  author  is  of  the  opinion,  that  under  and  by  virtue  of  the 
provisions  of  sec.  10939  G.  C.  (§  1362),  and  the  general  statutory 
laws  of  our  State  that  the  Probate  Court  has  authority  to  direct 
the  continuation  of  the  business.  There  is  a  wide  difference  be- 
tween the  duties  of  an  administrator  and  those  of  a  guardian  in 
reference  to  the  estate  of  their  beneficiaries.  It  is  an  adminis- 
trator's duty  to  convert  the  personal  property  into  money  and 
distribute  the  estate  as  rapidly  as  possible.  It  may  be  the 
duty  of  a  guardian  to  preserve  the  property  in  the  condition  he 
finds  it,  or  convert  it  into  money,  which  ever  will  result  most 
beneficially  to  his  ward.  The  Court,  should  be  extremely  cau- 
tious about  granting  the  order,  and  should  require  frequent  re- 
ports from  the  guardian,  and  maintain  such  supervision  over  the 
trust  as  will  unquestionably  prevent  the  estate  from  being 
squandered.  In  an,  Ohio  case  it  was  said  that  the  griardian 
could  continue  the  business  if  in  his  judgment  it  was  desirable 

8  Woerner  on  Gr.  472. 


1237  DETBTS  AND  BUSINESS  §  1380 

and  tliat  it  was  error  for  the  Cburt  to  order  the  business  contin 
ued  by  some  other  person.® 

§  1380.     Must  pay  debts  of  the  ward. 

It  is  the  duty  of  the  guardian  to  pay  all  just  debta  tiue  from 
such  ward  out  of  the  estate  in  his  hands/"  and  this  duty  may  be 
enforced  by  an  application  to  the  Probate  Court  for  an  order 
to  that  effect.^^  Considerable  discretion  in  this  matter,  how- 
ever, must  be  allowed  to  the  guardian.  If  he  admits  that  the 
debt  is  due,  the  Probate  Court  may  well  make  the  order,  but 
if  the  guardian  denies  the  validity  of  the  debt,  then  the  Pro- 
bate Court  should  not  interfere,  unless  the  guardian  is  mani- 
festly wrong,  but  should  permit  the  debt  to  be  collected  as  pro- 
vided by  law.  If  a  guardian  paid  a  debt  which  was  manifestly 
wrong,  he  could  not  be  allowed  for  the  same  in  his  settlement. 
Our  law  does  not  provide  for  any  such  thing  as  the  filing  of  a 
claim  against  the  estate  of  the  ward.^^ 

The  estate  and  not  the  guardian  personally  is  liable  for  all 
debts  which  exist  at  the  time  the  guardianship  begins  or  for 
necessaries  which  may  be  contracted  for  by  the  ward.^^  The 
guardian  is  liable  for  debts  not  contracted  by  him  only  to  the 
extent  of  the  amount  of  property  he  has  in  his  possession  belong- 

9  Hagneny  vs.  Cohen,  1  Bull.  104;  See  §518,  as  to  carrying  on  busi- 

Sch.    Dom.    Rel.    349 ;    Woerner    on  ness  of  deceased. 

Gr.  472,  473.  §  11125  G.  C. 

If  the  guardian  advance  money  to  See   §  1519,   Duty   as    to   existing 

his  ward  to  go  into  business,  he,  on  contracts.     The  form  might  be  simi- 

final   settlement,   is   not  entitled  to  lar  to  an  application  for  an  assignee 

credit    for    the    amounts    thus    ad-  to   continue   business,   etc.      S§  1589 

vanced,   unless   it  can  be  shown  to  and  1590. 

have  been  beneficial  to  the  ward.     In  lo  §  10933  G.  C,  §  13G7. 

re  Mells,  64  la.  391;   Eichelberger's  n  Loudon  vs.  Patterson,  41  0.  S. 

Appeal,  4  Watts,  84;   Shaw  vs.  Co-  200. 

ble,  63  N.  C.  377.  i^IMcNabb  vs.  Clips,  5  Ind.  App. 

But   if   a   guardian   carries   on   a  204. 

business  for  his  ward,  and  after  the  is  Bi'own  vs.  Chase,  4  Mass.  436 

termination  of  the  guardianship  the  Willard   vs.   Fairbanks,   8    R.   I.    1 

ward  accepts  the  benefit  of  the  in-  Raymond  vs.   Sawyer,   37   Me.   400 

vestment,  he  cannot  hold  the  guard-  Bentlcy    vs.    Torbert,    08    la.    122 

ian   liable.     Hoyt  vs.    Sprague,    103  Coombs  vs.  Janvier,  31  N.  J.  L.  240. 
U.  S.  613. 


§  1381        guardian's  power  in  relation  to  estate  1238 

ing  to  the  estate.^*  An  infant  is  not  personally  liable  for  neces- 
saries when  they  have  been  furnished  him  with  the  permission 
of  his  guardian  and  charged  to  him/^  The  promise  of  a  guard- 
ian to  pay  the  debts  of  a  ward  is  not  collateral  within  the  mean- 
ing of  the  statute  of  frauds,  and  need  not  be  in  writing/^ 

§  1381.     Collection  of  debts,  etc. 

The  guardian  should  collect  all  debts  due  such  ward/^ 
*'  Among  the  most  obvious  powers  and  duties  of  guardians  in 
respect  of  the  estates  of  their  wards,  is  the  collection  of  legacies, 
distributive  shares,  and  other  dues  coming  to  them;  as  well  as 
to  take  and  hold  property  settled  upon  the  wards  without  the 
interposition  of  trustees,  and  collect  dividends,  interest,  and 
income  generally,  and  moneys  due  on  iDonds  or  mortgages."  ^* 

In  this  matter  he  must  act  with  that  degree  of  diligence 
which  all  things  considered,  will  result  to  the  best  interest  of  the 
ward.  He  may  follow  his  ward's  money  wherever  he  can  find 
it  and  recover  it  from  any  one  who  had  obtained  it  from  any 

i*Stumph    vs.    Goepper,    76    Ind.  See    §    440   et   seq.,   Collection   of 

323;    Wainright    vs.    Burroughs,    1  assets  by  Admr. 

Ind.  App.  393.  is  Woerner  on  Gr.,  180,  citing  Sch. 

15  Simms  vs.  Norris,  5  Ala.  42.  Dom.  Rel.  352. 

16  Our  statute  provides  otherwise  If  he  permit  the  administrator 
as  to  executors  and  administrators.  of  the  ward's  ancestor  to  retain  the 
§  8621  G.  C.  Roach  vs.  Chaplin,  1  ward's  estate  he  does  it  at  his  peril, 
Bailey  L.    (S.  C.)    419.  and  will  be  liable  for  any  loss  to  the 

An  action   cannot   be   maintained  estate  inflicted  by  such  administra- 

against  a  ward  after  the  guardian-  tor.     Well's  Appeal,  22  Pa.  St.  325; 

ship  has  ended  and  he  has  received  Clark   vs.   Tompkins,    1   S.   C.    119; 

his  property  on  an  implied  promise  Covington  vs.  Leak,  65  N.  C.  594. 

to   pay    the   debts    of   his   guardian  He  is  entitled  to  his  ward's  dis- 

contracted  in  his  behalf  during  the  tributive  share  in  an  estate  (Tapley 

guardianship,      even      though      tlie  vs.    McGee,    6    Ind.    56;    Burtch   vs. 

guardian  has  not  kept  l)ack  out  of  Thorn,    7    Ind.    508;    Warwick    vs. 

the  property  enough  to  pay  the  debt.  State,  5  Ind.   350;   In  re  Moody,  2 

Westmoreland  vs.  Davis,  1  Ala.  299.  Dem.    (N.   Y.)    624,   unless   by  will 

See  §  1520,  Insolvency  of  lunatics.  the   executor   is   to   have  possession 

17  §  10933  G.   C,   §  1307.  until  the  ward  arrives  at  full  age. 

Branch  vs.  Holcraft,  14  Ind.  237. 


1239  COLLECTION  OF  DEBTS  §  1382 

former  guardian.^'  And  he  is  entitled  to  the  possession  of  a 
note  payable  to  a  third  person  for  the  ward's  benefit."'' 

A  guardian  is  not  bound  to  sue  in  all  directions  at  once,  he 
must  use  a  proper  discretion.  An  extraordinary  effort  is  not 
required  where  in  the  general  opinion,  the  money  is  in  safe 
hands."^  A  guardian  is  liable  not  only  for  what  he  does  re- 
ceive, but  for  what  he  ought  to  receive ;  and  if  he  ought  to  re- 
ceive a  certain  amount  in  money,  and  does  not,  but  takes  some- 
thing else  in  the  place  of  money,  he  is  liable.^^ 

A  guardian  who  receives  in  payment  of  a  solvent  debt  due 
to  his  ward  the  note  of  a  third  person  instead  of  money,  receives 
the  same  at  his  peril.^^  If  he  takes  a  note  in  payment,  and  it  is 
afterwards  paid,  that  will  be  a  sufficient  satisfaction  of  the  orig- 
inal debt  and  relieve  the  guardian  from  liability.^*  But  if  the 
guardian  cannot  secure  money  in  payment,  he  may  accept  prop- 
erty, acting  in  good  faith.  "^  It  has  been  held  that  a  guardian 
must  collect  debts,  although  the  debtor  lives  in  another  State. ^® 
The  guardian  has  no  right  to  pay  debt  barred  by  the  statute  of 
limitations." 

§  1382.     Arbitration  and  compromise  of  claims. 

In  case  of  doubtful  debts,  it  is  the  duty  of  the  guardian 
to  compound  the  same."^  Unlike  the  statute  relating  to  the  set- 
tlement of  an  estate  of  deceased  persons,  the  law  applying  to 
guardians  does  not  give  any  general  direction  as  to  the  manner 
in  which  a  claim  that  is  doubtful  may  be  compounded  or  com- 
promised. It  would  seem,  therefore,  that  the  guardian  may 
make  such  a  settlement  of  a  claim  against  the  estate  as  in  his 
judgment  appears  to  be  for  the  best  interests  of  the  estate.     In 

i»Fox   vs.    Kerper,    51    Ind.    148;  vs.  Walker,  1  Ind.  193;  Brenham  vs. 

Boaz  vs.  Milliken,   16  Bull.  109;  22  Davidson,  51  Cal.  352. 

The  Reporter  43.  24  Jones  vs.  Jones,  20  la.  388. 

20  Carrillo  vs.  MePhillips,  55  Cal.  25  Mason    vs.    Buchanan,    62    Ala. 
130.  110. 

21  Woemer   on  Gr.    182.  26  Potter    vs.    Hiscock,    30    Conn. 

22  State  vs.  Womack,  72  N.  C.  397.  508. 

23  Lane  vs.  MicKel,  46  Ala.  600;  27  Woerner  on  Cdn.  173. 
Bescher  vs.  State.  63  Ind.  302;  State  28  §  10933  G.  C,  S  1307. 
vs.   Greensdale.    106    Ind.   304;    Huff 


§  1383        guardian's  power  in  relation  to  estate  1240 

this  matter  he  will  be  held  responsible  for  the  exercise  of  that 
discretion  which  a  reasonably  prudent  man  would  exercise  un- 
der like  circumstances.  "  Guardians  may  submit  controversies," 
says  Woerner/*  "  respecting  the  property  and  interests  of  their 
words  to  arbitration  and  awards  made  in  pursuance  thereof  are 
held  binding  on  all  the  parties  thereto,  leaving  open  the  ques- 
tion of  liability  to  their  wards,  if  these  should  subsequently 
repudiate  the  awards,  which  it  seems,  they  have  a  clear  right  to 
do." 

It  would,  therefore,  seem  that  the  only  safe  way  in  which  a 
guardian  can  compound  or  arbitrate  a  claim  is  to  do  so  under  an 
order  of  the  Probate  Court.  In  all  matters  of  compromise,  the 
guardian  must  act  not  in  his  own  interest,  but  in  the  interest  of 
his  ward.      If  he  acts  otherwise,  he  will  be  held  responsible^^" 

§  1383.     Actions  for  the  ward. 

To  appear  for  and  defend  or  cause  to  be  defended,  all  suits 
against  such  ward,^^  is  another  statutory  duty  of  the  guardian. 
This  right  follows  from  the  right  of  the  guardian  to  collect  the 
debts  due  his  ward  or  liability  to  pay  claims  against  his  ward. 
One  section  of  our  General  Code  provides  that,^-  ''The  ac- 
tion cf  an  insane  person  must  be  brought  by  his  guardian.  The 
action  of  an  infant  must  be  brought  by  his  guardian,  or  next 
friend;  and  when  the  action  is  brought  by  his  next  friend,  the 
court  may  dismiss  it,  if  it  is  not  for  the  benefit  of  the  infant, 
or  substitute  the  guardian,  or  any  person,  as  the  next  friend." 

And  another  section  provides  that  "An  executor,  administra- 

29  Woerner  on  Gr.  185.  Thomas,    26    Ga.    537;     Darbv    vs. 

30  Sell.  Dora.  Rel.  343.  Stribling,  22  S.  C.  243. 

It  IS  said,  however,  that  he  can  See  §  450  et  seq.,  for  Admin,  com- 

not  bind  his  ward  by  a  consent  de-  pounding  claim, 

cree  (Bearinger  vs.  Pelton,  78  Mich.  3i  §  ioD33  G.  C.,  §  1367 

109;  S.  C.  43  N.  W.  Rep.  1042),  or  32  §  4993  R.  S. 

submit  an  a-^reed  case.     Robbins  vs.  A  guardian  can  not  bring  an  ae- 

bwa.n,   7    Ind.   App.   486;    Coughlin  tion  of  divorce  for  his  ward.     Bird- 

vs.  Fay,  63  Hun  521;  S.  C, 22  X.  Y.  sell    vs.    Birdsell,    20    Civ.    Law    J., 

'-"PP-  J"^^-^- .     .  348.      In    this    case    the   ward    was 

Un  t.ie  principle  of  compromise  a  insane, 

guardian   ir.ay    release    a    claim    or  He   may  now  settle   a  claim   for 

cause  of  action  for  damages   (Torey  wrongful     death.       §  10933     G.     C., 

vs.   ^lac;k,  .58  N.  Y.   185;    Blue  vs.  §1367.      In    such    cases    the    same 

Marshall,  3  RJ\ms.  381),  if  made  method  of  procedure  should  be  fol- 

in  good  failh.   Underwood  vs.  Brock-  lowed      as      where      administrators 

man,     4     Dana,    309 ;     Lunday    vs.  compromise  such  claims.     See  §  538. 


1241  ACTIONS    OF    WARD  §  1384 

tor,  or  guardian,  a  trustee  of  an  express  trust,  a  person  with 
whom,  or  in  whose  name,  a  contract  is  made  for  the  benefit  of 
another,  or  a  person  expressly  authorized  by  statute,  may  bring 
an  action  without  joining  with  him  the  person  for  whose  benefit 
it  is  prosecuted ;  and  officers  may  sue  and  be  sued  in  such  name 
as  is  authorized  by  law."^^ 

It,  therefore,  appears  that  a  giiardian  in  all  cases  when  he 
brings  an  action  for  the  benefit  of  his  ward  may  bring  it  in  his 
own  name.  In  the  absence  of  statutory  provision,  certain  ac- 
tions, such  as  actions  in  ejectment,  for  waste  or  trespass  on  the 
ward's  land,  or  for  partition,^^*  must  be  brought  in  the  name 
of  the  ward.^*  The  general  principle  being  that  the  guardian 
must  sue  in  his  own  name  for  any  injury  to  the  possession,  but 
in  the  name  of  his  ward  for  any  right  of  the  ward  lyinp"  in  ac- 
tion.'' 

The  suit  of  an  insane  person  must  be  brought  by  his  guardian. 
It  cannot  be  brought  by  a  next  friend ;  if  the  guardian  fails  to 
act,  the  Court  should  remove  him.'®  Possibly  an  action  might 
be  permitted  by  a  next  friend  where  the  guardian  was  acting 
adversely.'^  If  a  guardian  commences  a  suit  of  his  ward  upon  a 
note  made  payable  to  him  as  such  guardian  and  the  ward  be- 
comes of  age  while  the  suit  is  pending,  the  action  does  not 
abate.'^  A  guardian  may  act  in  all  matters  in  a  partition  pro- 
ceeding the  same  as  if  the  ward  was  not  under  a  disability.'* 

§  1384.     Actions  against  the  ward. 

Our  statute  provides,  that  the  defense  of  an  infant  must  he 
by   a  guardian   for  the   suit,   who   may  be   appointed   by   the 

33  §  11244  G.  C.  If  a"  action  be  brought  by  a  next 
33*  §  12U44  G.  C.  friend,   tae   petition  niiist  siiow   tiio 

34  WoJi-n.r  on  Gr.  188.                            niinonty    of    tae    person    for    whom 
SoWoern.r  on  Gr.  173.                          suit  is  brought.     Hanly  vs.  Levin,  5 

36  Row  vs.  Kow,  53  O.  S.  249.  0.  2-^:^. 

37  Johnson  vs.  Mfcver,  2  (  leve.  L.  39  §  12044  G.  C.  See  §  1879,  Peti- 
R,   81;    Long  vs.   Milford,    17    0.   S.       tion,  etc. 

^gg  Vv  hen  the  guardian  contracts  for 

38  Card  vs.  Ncff,  39  0.  S.  617.  services  to  be  renuered  in  belialf  of 
'See  §§  10;)88-9  G.  C.   (§  1521),  as       his  ward,  he  can  not  be  sued  in  his 

to  actions  pending  where  guardian       representative  capaci^ty.     Payne  vs. 
of  an  idiot  is  removed  or  resigns.  Resht,  33  0.  C.  C.  2o8. 


§1384  OUARDTAX'S   POWER   IN    RELATION    TO    ESTATE  1242 

Court  in  which  the  action  is  prosecuted,  cr  by  a  judge  thereof, 
or  by  a  Probate  Judge/"  This  statutory  provision  is  general 
and  must  be  followed  in  every  case  where  the  statute  does  not 
make  other  provisions.  It  is  somewhat  in  conflict  with  clause 
five  of  sec.  10933  G.  C.  (§  1367),  where  it  makes  it  the  duty  of  a 
guardian  to  defend  or  cause  to  be  defended,  all  actions  against  his 
ward.  If  it  is  the  duty  of  the  guardian  to  defend  the  action,  it 
would  seem  that  therfr  is  no  reason  for  appointing  a  guardian  ad 
litem  where  there  is  an  acting  guardian,  or  where  the  guardian 
has  no  adverse  interest  to  the  ward ;  and  it  has  been  held  under 
the  provisions  of  sec.  10933  G.  C,  that  where  a  guardian  appears 
for  an  infant  and  answers,  and  his  answer  is  received  and  acted 
on  by  the  Court,  the  effect  is  the  same  as  though  he  had  been 
expressly  appointed  guardian  ad  litcni.^'^ 

But  more  recently  it  has  been  held,  that  in  actions  affecting  the 
ward's  interest,  a  guardian  can  not  waive  the  issue  and  service  of 
summons,  nor  dispense  with  the  appointment  of  guardian  ad 
litem'^-  unless  autJiorized  hy  statute.  It  follows,  therefore,  that 
the  only  safe  rule  for  bringing  a  civil  action  against  an  infant  is  to 
have  a  guardian  ad  litem  appointed  to  make  the  defense.  'Whether 
the  appointment  of  such  guardian  ad  litem  releases  the  general 
guardian  of  the  duty  of  defending  the  suit  is  questionable. 
The  better  way  in  such  cases  is  to  appoint  the  general  guardian 
as  guardian  ad  litem.  In  reference  to  the  defense  of  an  insane 
person,  the  statute  is  more  consistent  when  it  provides  that  such 
defense  must  be  by  his  legally  appointed  guardian  or  if  there  is 
no  guardian  or  the  guardian  has  an  adverse  interest,  by  a  trustee, 
etc.  It  has  also  been  held  that  a  judgment  cannot  be  collater- 
ally impeached  because  minor  defendants  had  had  no  guardian 
ad  litem  appointed  for  them.'*^  A  guardian  cannot  sue  in  his 
capacity  as  guardian,  so  as  to  render  the  estate  of  his  ward 
liable,**     The  defense  of  an  insane  person  must  be  made  by  his 

40  §11252  G.  C.  the  county  in  which  the  ward  had 

Judgment  cannot  be   rendered  by  his  residence  at  the  time  he  became 

default— It     must    be     uimn     proof.  insane,  is  the  proi^er  place  to  bring 

Ala.-isies   Heirs  vs.    Donaldson,    8    0.  the  action,  the  insane  person  himself 

3u;   Randall   vs.   Turner,    17   0.   S.  should  also  be  served.     Steward  vs. 

262;  Sturgcs  vs.  Longworth,  1  0.  S.  Porter,  79  0.  S.  1. 

.:  -D     ,              ^^  ^^  iVforgan  vs.  Burnet,   18  0.  535. 

"Ranken  vs.  Kemp,  21  0.  S.  651.  44  Weigand    vs.    Kylius.    8    A.    L. 

4-  Roberts  vs.  Roberts,  61  0.  S.  96.  Rec.  lOoT  15  A.  &  e!  Ency.  of  Law, 

In  a  suit   in   tort   against  an   in-  2d  ed    56 

sane   person    it   is   proper   to   make  A   guardian   ad  litem  cannot   ac 
the  guardian  a  party  defendant,  and 


1243  INVESTMENT  OF  EUNDS  §  1385 

legally  appointed  guardian,  or  if  there  is  no  guardian  or  the 
guardian's  interest    are  adverse,  by  a  trustee  for  the  suit.*^ 

§  1385.     Investment  of  funds. 

The  investment  of  the  funds  of  the  ward  is  one  of  the  most 
important  duties  that  a  guardian  has  to  perform,  it  requires 
not  only  the  most  perfect  good  faith  and  diligence,  but  also 
great  circumspection  and  prudence  on  the  part  of  the  guardian, 
both  for  his  own  safety  and  for  the  interest  of  the  ward!  The 
object  to  be  accomplished  is  to  so  invest  that  the  fund  shall  be 
safe,  and  yield  a  reasonable  rate  of  income  to  the  ward.*® 

Testamentary  guardians  should  follow  the  direction  of  the  tes- 
tator in  making  investments,  for  losses  arising  from  such  a 
course  they  are  not  responsible,  but  where  the  will  is  silent  or 
the  directions  are  in  general  terms,  the  statutory  rules  of  in- 
vestment must  prevail.*^ 

Our  statute  provides  that  he  must  loan  or  invest  the  money 
vnthin  a  reasonable  time  after  he  receives  it  and  provides  three 
kinds  of  securities  that  may  be  taken.  First,  it  may  be  loaned 
on  notes  or  bonds  secured  by  first  mortgage  on  real  estate  of 
double  the  amount  of  money  invested,  and  that  buildings  thereon 
shall  be  kept  insured.** 

The  second  kind  of  investment  pennitted  is  in  bonds  of  the 
United  States,  or  of  any  State  in  which  a  default  of  interest 

quire   the  ward's   property,   pending  The  current  of  authority,  however, 

litigation — and  a  decree  can  be  im-  is  decidedly  to  the  effect,  that  in  the 

peached.     Massie   vs.   Matthews,    12  absence    of    statutory    provision    on 

O.  351.  the   subject,   the   appointment   of   a 

An  action  for  tort  committed  by  guardian  ad  litem  is  improper  wliere 

a  lunatic  must  be  brought  against  the  infant  has  a  general  guardian, 

the   lunatic,    it   will   not  be   apainst  Woerner  on  Gr.  256. 

the    guardian    alone.      Stackers    vs.  See  §  1417  as  to  sale  of  lands  by 

Keiper,  35  O.  C.  C.  4.  gdn.,  and  §  844,  as  to  sale  of  lands 

It  is  not  within  the  authority  of  by  admin,  and  gdn.  ad  litem,  etc. 
a  guardian  to  avoid  a  beneficial  con-  ^5  §  11249  G.  C. 
tract  made  by  his  ward,  or  to  waive  This    applies   to   divorce   proceed- 
any    benefit    to   which    his    ward    is  ings.      Wolcott    vs.    Wolcott,    32    O. 
entitled,  or  to  release  any  security  C.   C.   .587;    Kerlish  vs.  Kerlish,  30 
belonging  to  the  ward,  or  to  revive  O.   C.   C.   274;    24   0.   C.   C.    (N.S.) 
a   debt   against  the   ward   which   is  492.     See  §  1522b,  note  64. 
prescribed   or  barred  by  limitation,  46  Woerner  on  Gr.  207;  'Sch.  Dom. 
or  to  confess  judgment  against  the  Rel.  353. 
ward,  unless  thereto   authorized   by  '*''  Sch.  Dom.  T^el.  353. 
statute.      Woerner  on   Gr.   173,    174.  48  §  10933  G.  C.    (§1367). 


§  1385       guardian's  power  in  relation  to  estate  1244 

has  never  been  made  or  bonds  of  any  county  or  city  in  this 
State,  issued  according  to  law.  Third,  with  the  consent  and  ap- 
probation of  the  Probate  Court,  investment  in  productive  real 
estate  may  be  made.  If  the  guardian  invested  the  funds  of  the 
ward  in  eitlier  of  these  ways  as  provided  by  statute,  he  would  not 
be  held  liable  for  injury  or  losses  accruing,  provided  he  acted 
with  diligence  and  prudence.*^ 

But  if  lie  makes  loans  in  disregard  of  the  statute,  he  does  so 
at  his  peril ;  and  he  cannot  excuse  himself  by  showing  that  he 
acted  in  good  faith  or  that  the  security  was  good  when  taken.^'' 

Another  section  of  our  General  Code,^^  provides,  that 
guardians,  administrators,  etc.,  may  invest  funds  in  bonds  of 
United  States  government  or  in  such  other  security  as  may 
be  approved  by  the  Court  having  control  of  the  administration 
of  the  trust;  and  therefore,  if  the  guardian  wishes  to  escape 
responsibility  for  an  investment  made,  he  must  either  make 
investments  in  the  way  provided  by  the  statute  or  must  secure 
an  order  of  the  Court  for  that  purpose.  The  guardian  should 
never  make  application  to  the  Probate  Court  for  authority  to 
invest  the  funds  unless  there  is  no  reasonable  opportunity  to 
invest  them  in  such  security  as  the  statute  provides.  When 
convinced  that  they  cannot  be  so  invested,  then  he  should  file  his 
application  in  writing  setting  out  in  detail  the  kind  of  securities 
that  it  is  proposed  to  invest  the  funds  in  and  such  other  matters 
surrounding  the  securities  as  will  give  the  Court  full  informa- 
tion. If  the  smn  to  be  invested  is  a  very  large  one,  the  Court 
might  very  well  require  that  the  matter  be  set  down  for  hearing 
and  some  one  who  is  interested  in  the  ward's  welfare  be  notified 
to  appear  and  give  testimony  as  to  the  advisability  of  making 
the  investment.  It  has  beeen  held  that  in  order  to  be  binding, 
the  assent  of  the  Court  must  be  entered  upon  its  journal  and  a 
mere  assent  given  by  parol  is  not  sufficient.^^ 

«Woerner     on     Gr.     218,     citing      496;   Watson  vs.  Holton,   115  N.  C. 


Newman  vs.  Reed,  50  Ala.  297 
Brown  v.s.  Wright,  39  Ga.  96,  101 
Nelms  vs.  Summers,  54  Ga.  605 
Ashley    vs.    Martin,    50    Ala.    537 


36. 

50  Woerner  on  Gr.  218. 

51  §  11214  G.   C.    (§514). 

52  Newman  vs.  Reed,  50  Ala.  297; 


Haddock  vs.  Planters'  Bank,  66  Ga.       Sch.  Dom.  Rel.  354 ;  Carlisle  vs.  Car- 


X 


1245  INVESTMENT  IN  LAND  §  1380 

If  an  order  to  invest  funds  is  obtained  bj  fraud,  it  has  been 
held  that  it  may  be  impeached  collaterally.^^  Where  an  order 
of  the  Court  is  procured,  it  might  be  well  for  the  guardian  after 
the  investment  is  made  to  report  to  the  Court  that  fact,  espe- 
cially is  this  true  where  the  investment  is  a  large  one/* 

§  1386.     Investment  of  funds  in  land. 

It  is  a  principle  well  established  that  a  guardian  has  no  right 
to  change  the  character  of  the  property  in  his  hands,  unless  he 
does  so  by  order  of  the  Court.  That  is,  he  has  no  right  to 
convert  personal  property  into  realty,  or  realty  into  personalty.^^ 

The  statutory  law,^®  provides,  that  with  the  consent  and  appro- 
bation of  the  Probate  Court,  funds  may  be  invested  in  productive 
real  estate  within  this  State,  the  title  of  which  shall  be  taken 
in  the  name  of  the  guardian  as  such;  and  furthermore,  that 
the  guardian  may  manage  such  investments  and  when  deemed 
proper,  change  the  same  into  other  investments  of  the  classes 
provided  by  statute.  But  no  real  estate  purchased  shall  be  sold 
by  the  guardian,  except  with  the  consent  and  approbation  of 
the  Probate  Court.  The  only  limitation  as  to  the  kind  of  real 
estate  in  which  investments  may  be  made  is,  that  it  be  produc-; 
live  real  estate  situate  in  this  state.  In  procuring  such  an  order 
of  the  Court,  the  guardian  should  file  an  application  for  that 
purpose  which  should  give  a  full  statement,  showing  first,  that 
the  guardian  has  the  funds  on  hands.  Second,  that  the  property 
is  situate  in  this  State.  Third,  that  it  is  productive  real  estate. 
Fourth,  its  value  and  annual  rents.     Fifth,  that  tlie  title  is  good 

lisle,   10  Md.  440;   Woerner  on  Gr.  guilty  of  embezzlement.     Meyers  vs. 

219.  State,  4  C.  C.  570;  2  C.  D.  712. 

63  Woerner  on  Gr.  219,  citing  Skel-  See  §  1488,  With  guardian  should 
ton  vs.  Ordinary,  32  Ga.  266.  be  charged. 

64  Where  a  guardian  used  the  ss  in  re  Spencer's  Appeal,  3  W.  L. 
money  of  his  ward,  in  his  business  M.  408;  Woerner  on  Gr.  175,  citing 
with  the  honest  intention  to  account  2  Kent,  §230;  2  Sto.  Eq.  Juris.  § 
for  the  same  with  proper  interest,  1357;  Attridge  vs.  Billings,  57  111. 
and  &uch  money  is  lost  without  any  489;  2  Perry  on  Trusts,  §§  606,  605; 
fault  or  fraud  on  his  part,  he  is  not  ex  parte  Crutchfield,  3  Yerg.  336. 

B6§  10933  G.  C.    (§  1367). 


§  1387       guardian's  power  in  relation  to  estate  1246 

and  mercantile.     This  application  should  be  sworn  to  and  it 
may  be  as  follows : 

§  1387.     Form  of  application,  entry,  etc. 

APPLICATION  TO  INVEST  FUNDS  IN  REAL  ESTATE. 

(Title) 

Now  conies  A.  B.,  guardian  of  C.  D.,  and  respectfully  represents  that  he 

has  in  his  possession  as  such  guardian,  and  uninvested,  the  sum  of 

dollars,  which  he  desires  to  invest  in  productive  real  estate,  and  asks 

that  the  Court  may  give  its  consent  and  approbation  to  the  same.    Said  real 

estate  is  situate  in  the  county  of ,  State  of  .• ,  and 

city  of ,  and  bounded  and  described  as  follows   (here  give 

description).     That  said  real  estate  is  listed  on  the  tax  duplicate  at 

dollars   and   tliat   it  is   reasonably   worth   in   the  market  the 

sum  of dollars.     That  the  title  thereto  is   safe  and  mer- 
cantile, and  that  the  annual  income  of  said  property  will  be  about 

dollars,  and  deducting  therefrom  the  reasonable  repairs  and  taxes 

will  leave  a  net  income  of dollars.      (And  insert  any  other 

reason  that  may  exist  for  the  order.) 

Said  guardian   further  represents  to  the  Court  that  said  property  can 

be  purchased  for  the  sum  of dollars  and  he  believes  that  it 

would  be  for  the  best  in-terest  of  said  ward  to  invest  the  sum  of 

dollars  in  the  purchase  of  said  real   estate. 

(Sign.) 
The  State  of  Ohio, County,  ss. 

A.  B.,  being  first  duly  sworn,  says  that  the  above  statements  are  true  as 
he  verily  believes. 


Sworn   to   before  me   and    subscribed   in   my    presence   this day   of 

,  A.  D.  190... 


The  ^ardian  having  filed  the  above  application,  and  the 
Court  being  fully  advised  in  the  premises  and  being  satisfied 
that  it  would  be  for  the  best  interest  of  the  estate  to  make  such 
investment,  it  should  do  so  by  making  a  journal  entry,  which 
may  be  in  the  following  forai: 

(Title) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B., 
guardian  of  C.  D.,  for  an  order  of  this  Court,  giving  its  consent  and  appro- 
bation to  said  guardian,  to  invest  certain  funds  in  productive  real  estate, 
described  in  said  application ;  and  it  appearing  to  the  Court  that  it  would  be 
for  the  best  interest  of  said  ward  to  so  invest  said  funds,  the  tonsent  and 
approbation  of  the  Court  is  hereby  given  to  said  A.  B.  to  purchase  the  real 

estate  described  in  his  said  application  for  the  sum   of 

dollars  and  take  the  title  to  said  real  estate  in  the  name  of  the  ward.* 

If  the  guardian  wishe-s  to  sell  the  real  estate  so  purchased 
by  him,  he  need  not  file  an  application  similar  to  that  required 
for  the  sale  of  real  estate  belonging  to  his  ward.  But  he  should 
file  an  application  setting  out  the  fact  of  his  ownership  of  the 
property,  when  purchased  and  that  the  same  was  purchased  by 
an  order  of  the  court,  the  reason  for  the  sale,  and  how  the  pro- 

•§  10933  G.  C,  §  1367. 


1247  INTEREST    ON   FUNDS  §  1388 

ceeds  are  to  be  invested,  so  that  the  Court  may  be  fully  advised. 
This  form  of  application  may  be  as  follows : 

(Title) 

Now  comes  A.  B.,  guardian  of  C.  D.,  and  respectfully  represents  to  the 

Court  that  on  the day  of by  an  order  of  said  Court, 

he  was  authorized  and  directed  to  invest  certain  funds  belonging  to  said 
ward  in  the  following  described  real  estate  (here  describe),  and  that  there- 
after on  the day  of ,   he  did  so  invest  said   funds, 

amounting  to dollars  in   said  real   estate  and  placed  the 

title  thereto  in  his  own  name  as  guardian. 

He  further  represents  that  said  guardian  is  now  in  need  of  said  funds 
for  the  purpose  of  maintaining  and  educating  said  ward  (or  state  such 
other  reasons  as  may  exist  for  the  desirability  of  changing  the  investment), 

and  further  represents  to  the  Court  that  he  has  an  offer  of  $ 

for  said  real  estate. 

Wherefore  he  asks  that  the  Court  may  give  its  consent  and  approbation 

to  the  sale  of  said  real  estate  for  the  sum  of dollars. 

(Sign.) 
The  State  of  Ohio, County,  ss. 

A.  B.,  being  first  duly  sworn,  says  that  the  within  statements  are  true 
as  he  verily  believes. 


Sworn   to   before   me   and    subscribed    in   my   presence   this day   of 

,  A.  D.   190... 


The  Court  being  fully  advised  that  it  is  necessary  to  sell  the 
real  estate  or  for  the  benefit  of  the  ward  so  to  do,  should  make 
a  journal  entry,  which  may  be  in  the  following  form: 

(Title) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B., 
guardian  of  C.  D.,  for  an  order  of  this  Court,  giving  to  him  its  consent  and 
approbation  that  the  real  estate  described  in  said  application  may  be  sold 
to for  the  sum  of dollars ;  and  it  appear- 
ing to  the  Court  that  it  is  for  the  best  interest  of  the  estate  of  said  ward 
that  said  sale  be  made,  said  guardian  is  hereby  authorized  and  directed  to 

convey  the  premises  in  his  application  described  to  said 

by  a  proper  deed,  upon  receipt  of  payment  to  him  of  the  purchase  price 
of dollars. 56* 

§  1388.    Interest  on  funds. 

The  guardian  must  invest  the  money  within  a  reasonable  time 
after  he  receives  it,  and  if  he  fails  to  loan  or  invest  the  money 

56*  These  entries  should  be  drawn  guardian,  sucli  guardian   ought,  be- 

with    some    care,    and    tlie    statute  fore  liis  account  is  tliially  approved, 

should  be  strictly  complied  witli,  as  be   required   to  convey   the   same  to 

failure  so  to  do  may  seriously  affect  the  ward.     If  tlie  guardian  fails  to 

the  title  to  real  estate.  do    this,    the    court    should    provide 

A  query  lias  been  made  as  to  what  in  the  entry  that  the  guardian  make 

the    guardian    should    do    with    the  such    conveyance,    within    a    certain 

property    if   it   remains   on   hand   at  time,   that   this   order   should   stand 

the  time  the  Avard  becomes  of   age.  as    and    for    a    conveyance    of    the 

In  such  cases  if  the  guardian  makes  same,    and   that   the    legal    title    be, 

a   satisfactory   final    settlement   the  and  the  same   is,  thereafter   in   the 

real   estate   no   doubt   becomes   tliat  said  ward. 

of  the  ward,  and  tlien   is  vested   in  If  tlie  title  is  taken  in  the  name 
the   ward    both    the    legal    title    and  of  the  ward  as  the  statute  now  re- 
equitable    title.       However,    as    the  (juiros,  this  would  be  obviated, 
property  appears  in  tlie  name  of  the 


§  1388       guardian's  power  in  relation  to  estate  1248 

of  his  said  ward,  within  said  reasonable  time,  he  must  account 
on  settlement  with  interest  thereon  calculated  with  annual 
rests." 

Authors  have  considerable  discussion  about  the  rate  of  inter- 
est that  should  be  charged  against  a  guardian,  but  the  above 
statutory  provisions,  state  the  method  for  calculation  in  our 
State.  As  to  the  time  within  which  investments  should  be  made, 
the  guardian  is  only  responsible  like,  in  other  matters  con- 
nected with  the  trust,  with  a  reasonable  degree  of  diligence 
on  his  part  to  secure  interest,  he  must  not  make  unauthorized 
investments.  "  This  liability,"  says  Woerner,^^  "  does  not,  of 
course,  attach  if  it  be  shown  that  the  guardian  could  not,  with 
reasonable  diligence,  loan  out  his  ward's  money  with  safety, 
and  that  he  in  no  wise  himself  used  or  obtained  any  profit  from 
the  same."  ^® 

Where  a  guardian  has  had  opportunity  to  show  by  his  own 
oath  or  otherwise  his  inability  to  invest  the  money  of  his  ward, 
but  omits  to  do  so,  the  Court  %vill  not  presume  him  unable  to 
invest  it,  and  excuse  him  from  accounting  for  interest;  it  will 
take  judicial  notice  of  the  fact  that  money  could  be  readily 
loaned  at  six  per  cent.^° 

But  if  a  guardian  carelessly  suffers  cash  balances  to  remain 
idle  in  his  hands,  or  mingles  the  ward's  money  with  his  own,  he 
is  chargeable  with  interest.  Schouler  says  ^^  that  it  remains 
a  disputed  question  whether  the  guardian  should  be  charged 
with  compound  interest  for  mere  delinquency,  but  it  seems  that 
he  should  not."  The  general  practice  in  our  State  is,  that  if  a 
guardian  does  not  invest  the  funds,  that  he  will  be  charged  with 
the  legal  rate  of  interest  provided  he  does  not  show  "that  he  had 
po  opportunity  to  invest  the  same.     If  he  uses  the  funds  him- 

57  §  10933  G.  C.  (§1367).  the  guardian  will  not  be  liable  if  he 

Where   not   specified    in   contract  acted  in  good  faith  and  with  ordi- 

the  legal  rate  is  6  per  cent.  nary  prudence.     Spencer's  Appeal,  3 

osWoerner  on  Gr,  220.  W.  L.  M.  408. 

50  If  he  fail  to  invest'  the  funds  so  Armstrong  vs.   Miller,   Wright, 

productive,  when  he  could  do  so,  he  562. 

is   chargeable  with   interest.     Rich-  See  McCrea  vs.  Martien,  32  O.  S. 

ardson  vs.  Richardson,  6  O.  125.  38. 

If  a  loss  accrue  to  the  trust  fund,  ei  Sch.  Dom.  Rel.  354. 


1249  DEPOSIT    OF   FUNDS  §  1389 

self,  he  will  be  charged  with  the  same  rate  of  interest.  While 
Courts  do  not  approve  of  guardians  using  the  funds,  yet  it  is 
not  such  a  misapplication  of  the  funds  as  will  of  itself  cause 
the  guardian  to  be  removed,  especially  so  long  as  the  sureties 
on  his  bond  are  good  and  make  no  application  for  release 
from  liability.®^  The  guardian  is  also  justified  in  keeping 
enough  funds  on  hands  to  meet  ordinary  expenditures  which 
are  necessary  in  behalf  of  his  ward. 

The  ward  is  entitled  to  simple  interest  on  the  amount  due 
him  from  the  time  he  is  entitled  to  receive  the  fund  on  final 
settlement  or  until  its  actual  receipt.^^  It  is  sometimes  held 
that  where  the  guardian  invests  the  fund  in  his  o^vn  business, 
that  the  ward  has  a  right  to  elect  whether  he  will  take  the 
profits  or  the  interest  but  he  cannot  take  both.®* 

§  1389.     Deposit  of  funds. 

The  same  rule  would  apply  to  a  guardian,  as  to  the  custody 
or  disposition  of  funds  while  in  his  possession,  as  is  applied  to 
an  executor  or  administrator;  and  reference  is  had  to  the  dis- 
cussion of  that  subject  when  treating  of  the  care  and  manage- 
ment of  estates  by  executors  and  administrators.®^ 

§  1390.     Personalty  received  from  Admr.,  etc.,  in  kind. 

When  treating  of  the  subject  of  administrators  and  executors 
in  the  settlement  of  estates,  we  have  heretofore  seen  that  cer- 
tain assets  may  be  distributed  in  kind.®® 

A  part  of  clause  eight  of  sec.  10933  G.  C.,®''  authorizes  a 
guardian  to  receive  assets  in  kind  from  an  executor  or  adminis- 
trator. But  before  such  settlement  shall  be  valid  and  binding 
it  shall  be  approved  by  the  Probate  Judge,  and  such  approval 

82  For  a  guardian  to  convert  the  63  Olson    vs.    Thompson,    77    Wis. 

money  of  his  ward  to  his  own  use,  666. 

is  of  itself  not  breach  of  the  bond.  «*  Seguin's    Appeal,    103    Pa.    St. 

Case  vs.  State  of  Ohio,  10  W.  L.  J.  139. 

163.  65  See  §§  512,  513. 

See  §  1488,  With  what  charged.  ee  §  750  et  seq. 

See  James  vs.  West,  47  Bull.  750.  67  §  1367. 


§  lo'Jl        guardian's  power  jn  relation  to  estate  1250 

shall  be  entered  on  its  journal;  and  it  is  also  further  provided 
that  by  like  approval  of  the  Probate  Court,  the  guardian  may 
hold  such  assets  in  kind.  By  this  I  presume  it  is  meant  that  if 
the  guardian  desires  to  retain  the  property  in  the  same  kind  as 
it  was  when  delivered  to  him  by  the  executor  or  administrator, 
he  may  do  so  by  receiving  the  approval  of  the  Court.  But  that 
if  he  does  not  receive  such  approval,  it  would  be  his  duty  to 
convert  such  assets  into  money  the  same  as  any  other  prop- 
erty belonging  to  his  said  ward.*'^ 

§  1391.     Sale  of  personal  estate. 

The  statute  gives  to  a  guardian,  full  and  exclusive  power  to 
sell  the  personal  estate  of  his  ward  at  any  time  that  he  may 
deem  proper.""  For  that  purpose  he  needs  no  order  of  the 
Court.'" 

It  seems  to  be  the  policy  of  our  law  to  allow  the  guardian 
full  control  over  the  disposition  of  his  ward's  personal  prop- 
erty, holding  him  responsible  on  his  official  bond  for  a  wrong- 
ful act.  He  may  sell  either  at  public  or  private  sale,  for  cash 
or  on  time.  If  he  sells  on  time,  he  would  be  held  personally 
responsible  if  the  notes  were  for  any  reason  uncollected.  Where 
there  is  a  large  amount  of  personal  property  that  comes  into 
the  hands  of  the  guardian  it  would  be  advisable  to  sell  the 
same  promptly  and  make  a  report  to  the  Probate  Court  in  the 
same  manner  as  executors  and  administrators  are  required  to 
do.  If  a  guardian  sells  such  property  to  a  purchaser  who  deals 
fairly,  the  purchaser  has  a  right  to  presume  that  he  acts  for 

88  A    distinction    exists     between  Ala.    198;    Wallace    vs.    Holmes,    9 

loans    made    by    the    guardian    of  Blatch.  65;   Humphrey  vs.  Buisson, 

funds  in  his  hands,  and  simply  re-  19   Minn.   221 ;    State  vs.   Morrison, 

taining  investments  previously  made  68  N.  C.  162. 

by  a  former  custodian  or  owner  of  It  is  said,  however,  that  it  is  not 

them,    the    rule    of    liability    being  prudent  for   the  guardian   to  make 

more  stringent  in  the  fornier  than  in  any  important  change  in  the  char- 

the    latter    case.     Woerner    on    Gr.  acter  of  the  ward's  estate,  without 

209.  first  obtaining  for  his  protection  an 

69  §  10945  G.C.  (§1405).  order   of   the   Court,   permitting  or 

70  Field  vs.  Schieffelin,  7  Johns  directing  him  to  do  so.  Giauques 
Ch.  150;  Woodward  vs.  Donally,  27  Manual  for  Gr.  &  Trustee,  94. 


1251  MANAGEMENT    OF   REAL   ESTATE  §  1392 

the  benefit  of  his  ward  and  he  is  not  bound  to  inquire  into  the 
state  of  the  trust,  nor  is  he  responsible  for  the  faithful  appli- 
cation of  the  money  unless  he  knew  or  had  sufficient  informa- 
tion at  the  time  that  the  guardian  contemplated  a  breach  of 
trust/' 

Where,  however  a  guardian  sold  a  note  that  was  made  pay- 
able to  him  as  guardian  of  A.  K.  and  C.  K,  and  E.  K.,  it  v/as 
held  that  one  who  buys  such  notes  bearing  on  their  face  the 
marks  of  a  tinist  fund  is  put  upon  inquiry ;  and  if  he  buys 
them  from  the  guardian,  under  circumstances  fairly  indicating 
that  they  were  sold  against  the  interest  of  his  ward,  he  gets  no 
title  from  the  guardian/^ 

It  is  not  usual  to  sell  family  pictures,  plates,  watches,  orna- 
ments, etc.,  but  to  keep  them  (as  they  are  not  of  a  perishable 
nature)  by  which  to  remember  their  former  proprietors.^^  The 
power  to  sell  personal  property,  however,  does  not  permit  a 
guardian  to  pledge  the  ward's  property  for  his  own  debt,^* 
neither  can  he  pledge  his  ward's  notes  so  as  to  prevent  his  suc- 
cessor from  maintaining  a  suit  against  the  pledgee  to  recover 
them." 

§  1392.     Management  of  real  estate,  etc. 

The  title  to  the  ward's  real  estate  is  never  vested  in  the 
guardian.  But  the  guardian  is  entitled  to  the  possession  of 
the  real  estate  and  may  expel  therefrom  objectionable  persons 
whose  influence  over  the  ward  is  unfavorable.'^®  He  may  enter 
into  his  ward's  premises  even  against  the  latter's  wishes.^^ 

While  the  guardian's  right  to  the  possession  of  the  prem- 
ises is  supreme,  yet  he  cannot  convey  title  to  the  same  without 
an  order  of  the  Court, ^^  neither  can  he  lease  it  for  a  period  be- 

71  Strong  vs.  Hope,  4  Bull.  1034 ;  two  innocciit  persons  must  sufTer 
Engle  vs.  Ortman,  .3  Dec.    (re)    237.  from   the  wrongful   acts  of   a   third 

72  Strong  vs.  Strauss,  40  0.  S.  87.  person,   the   one   who   put   it   in   the 

73  Rice  Pro.  Law,  497;  Tyler  on  power  of  such  l)arty  to  commit  the 
Infancy,    261.  wrong   must    sud'er    the    loss    rather 

74  Villalonga  vs.  Hicks,  13  S.  C.  than  the  other  innocent  party,  can- 
163.  not  he  invoked  to  the  prejudice  of 
■  75  Hardy  vs.  Citizens'  Bank,  61  N.  guardian's  waids  in  a  matter  in 
H.  34.  wliich    their    guardian    was     acting 

7 c  Wood   vs.    Gale^    10   N.    H.    247.  without    warrant    or    authoritv  of 

77  State   vs.    Hvde,    20   'Conn.    564.  law.       Bank     vs.     Schirk,     5    C.  C. 

78See  §  1404  ei  spf/.  (N.S.)    569;    17   Cir.   D.    125;    27  O. 

The   principle   tliat   where   one   of  C.    C.    125. 


^  1393        guardian's  power  in  relation  to  estate  1252 

yond  fifteen  years,"*  nor  can  he  subject  it  to  a  mortgage,  even 
though  it  be  for  the  benefit  of  the  ward.'" 

As  incidental  to  the  right  of  possession  of  real  estate,  the 
guardian  is  obliged  to  insure  the  property  and  see  that  the 
taxes  are  paid.^° 

Chief  among  the  duties  of  a  guardian  as  to  real  estate,  are 
those  of  rents  and  repairs,^^ 

§  1393.     Rents. 

As  a  matter  of  course,  it  is  the  duty  of  a  guardian  to  collect 
all  the  rents  of  the  ward's  real  estate,*^  and  if  it  is  the  custom 
he  may  employ  an  agent  for  that  purpose.^^  If  the  guardian 
occupies  the  ward's  lands,  he  is  liable  for  the  rents.^*  If  the 
guardian  cultivate  the  land  of  his  ward  himself,  he  must  care 
for  it  prudently  and  will  be  liable  for  any  depreciation  or  any 
losses  occurring  to  it  through  his  bad  management.®^  If  he 
negligently  permit  his  agent  to  retain  rents  collected,  any 
loss  arising  therefrom  must  be  borne  by  him,  the  ward  is  held 
harmless,®*^  and  it  is  said  that  he  is  liable  for  the  difference 
caused  by  his  negligence  between  the  amount  of  rents  received 


T8*'  See  §  1432  et  seq.  reasonable  and  proper  for  the  pre* 

''0  §  1446  et  seq.  ervation  and  use  of  the  real  estate- 

sovVoerner  on  Gr.  202.  This  includes  all  duties  relating  to 

See  §§  2845,  2851,  2848  R.  S.  as  listing   and    payment    of    taxes,    as 

to  listing  personal  property.     See  §  well  as  renting  and  keeping  the  reai 

511-  estate   in  proper   condition.     Camp 

81  These  statutes  show  that  the  in-  bell  vs.  Park,  32  O.  S.  544. 
tention  was  to  invest  the  guardian  82  Will's  Appeal,  22  Pa.  St.  325; 

with  the  control  of  the  estate  of  his  Chark  vs.  Burnside,  15  111.  62;  Spel- 

wards,  for  purposes  of  taxation;  and  ^^Y'^-  ^^rry,  74  N.  Y    448;  Bond 

+^  T,„i^  u-  -ui    X     ,_•  ,  VS.  Lockwood,  33  111.  212;   Hughes' 

to  hold  him  responsible  to  his  ward  Appeal,  53  pL  St.  500. 
for  an  abuse  of  that  power.     They  S3  in  re  Flinn,  31  N.  J.  Eq.  640. 

show  further,  that  it  was  not  intend-  ^*  ^n   re  Kopp's   Estate,  2   N.   Y. 

ed  to  impose  any  responsibility  on  ^^PPg^*^^'  ^°y^*°"  ^^-  Koyston,  29 
minors,   nor   clothe   them   with   any  Text'  quoted  in  In  re  McCray,  22 

authority   over  their   own   lands  in  Dec.  699.     See  also  56  Bull.   142. 
relation   to   taxation.     In  the  man-  85  Willis   vs.    Fox,   25    Wis.    646; 

.gen,™t   Of    the   wart-,   land.,    the  ^^.  ^?-X■,  Appeal!  22  Pa.  St.  329. 
guardian  has  power  to  do  all   acta 


1253  KENTS  AND  KEPAIRS  §  1394 

and  the  amount  which  might  have  been  obtained  by  proper 
diligence.^' 

A  guardian  may  authorize  others  to  cut  timber  and  carry  it 
away,*^  so  long  as  it  is  not  a  waste  of  the  ward's  estate.*® 

§  1394.    Repairs.* 

It  is  the  duty  of  the  guardian  to  keep  the  ward's  real  estate 
in  good  repair  and  a  tenantable  condition,  if  the  means  in  his 
hands  are  sufficient,  and  if  in  consequence  of  his  neglect  in 
this  respect,  the  premises  are  not  rented,  he  is  liable  for  the 
loss.^° 

But  this  duty  to  keep  the  ward's  premises  in  repair  does  not 
extend  to  the  right  or  duty  to  make  expensive  improvements  or 
the  erection  of  new  buildings  on  their  lands.®^ 

It  seems  that  the  law  does  not  contemplate  that  a  guardian 
of  a  minor  should  erect  expensive  improvements  on  real  estate, 
if  it  did  so,  there  would  probably  be  a  statute  relating  thereto. 
This  is  so,  perhaps  for  the  reason  that  the  duration  of  a  guar- 
dian's authority  over  a  minor  must  necessarily  terminate  in  a 
great  many  instances  in  a  few  years.  While  the  giiardian 
might  have  authority  to  make  proper  improvements  not  very 
expensive  without  an  order  of  the  Court,  yet  it  would  be  ad- 
visable in  all  cases  to  make  an  application  to  the  Court  for  that 
purpose.  If  made  without  an  order,  the  guardian  might  be 
in  some  risk  of  not  having  the  expenditure  allowed  in  his  ac- 
count.     Of  course,  the  mechanic  furnishing  the  material  could 

87  Knothe  vs.  Kaiser,  5  Thonip.  &  046;  Irvine  vs.  McDowell,  4  Dana, 
C.  4 ;  Thackray's  Appeal,  75.  Pa.  St.       629. 

132,    137;    Shurtleff    vs.    Rile,    140  !>' Woerner  on  Gr.  176. 

Mass.  213,  214;  Woerner  on  Gr.  202.  There  is  a  special  statute  provid- 

Sch.  Dom.  Rel.  350.  ^"8   ^^^^^  ^  guardian   may    improve 

„„  _,                         T.       J             1   T7-*.  the    real    estate    of    imbeciles,    but 

88  Thompson  vs.  Boardman,  1  \  t.  ^^^^^^  ^^^^  .^  reference  to  minors. 
367;  Bond  vs.  Lockwood.  33  111.  212.  §11004   G.   C.    (§1530)    R.   S.     Ex- 

89Torry  vs.  Black,  58  N.  Y.  485;  cept  where  it  may  be  found  neces- 

Truss  vs.  Old,  6  Rand.  556.  «^7  ^o^"  <-l'e  ward's  interest  to  make 

_       oDo-«    O.T,     o^n  i  I.  ^    ^'^^^^    foi"    hfteen    years.      §10962 

See  §§370,   371,  372,  as  to  rents  q    (j    ^g  1433). 

generally.  *  Cited,   In   re    Connell,    56    Bull. 

90  Green  vs.  Winter,   1   .Johns  Ch.  143.     Order  of  court  required  to  use 

26;  Cornell  vs.  Vanartsdalen,  4  Pa.  principal   for   repairs   where  income 

„  '  r     .  ,  ^  „<^  XT  1^   insulhoent.     Jd.     12  N.   P.  311; 

St.  364;   Smith  vs.  Gummere,  39  N.  22    Dec.    690,      If    insufficient   order 

J.  Eq.  271;  Willis  vs.  Fox,  25  Wis.  of  court  may  have.     Jd. 


§  1395       guardian's  power  in  relation  to  estate  1254 

not  have  a  lieu  on  the  premises,  but  must  look  to  the  guardian 
personally  for  his  recompense."" 

A  guardian  has  no  right  to  remove  valuable  improvements 
even  if  done  so  for  the  purpose  of  improving  the  premises.*^ 


§  1395.  Release  of  ward's  tax  title  by  guardian.  Effect  of 
tender  of  deed.  "When  a  minor  has  title  to  real  estate  by 
tax  title  only,  if  he  deems  it  advisable,  the  guardian,  by  deed  of 
release  and  quit  claim  may  convey  such  minor's  interest  or  title 
to  the  person  entitled  to  redeem  such  real  estate,  upon  receiving 
from  him  the  amount  paid  for  such  tax  title  with  the  penalty 
and  interest  allowed  by  law  in  that  behalf.  If  the  guardian 
tenders  such  deed  to  the  person  entitled  to  redeem  such  real 
estate  and  he  refuses  to  accept  it  and  so  pay,  he  shall  not  re- 
cover costs  in  any  proceeding  thereafter  instituted  to  redeem  or 
recover  such  real  estate."     [R.  S.  §  6294.] »^ 

§  1396.    Partition  and  dower. 

In  proceedings  for  partition,  the  guardian  of  a  minor,  idiot, 
imbecile  or  insane  person  may  act  on  behalf  of  his  ward,  and 
may  do  and  perform  any  act  the  same  as  the  ward  could  if  not 
under  disability.®^ 

The  guardian  of  an  heir  may  assign  dower  in  real  estate ;  ^® 
the  ward,  however,  is  not  bound  where  an  assignment  is  made 
by  fraud  or  collusion,""  and  in  actions  of  partition,  the  guard- 
ian may  act  for  a  widow  or  widower  who  has  been  adjudged 
insane  and  may  answer  and  appear  for  such  insane  person.®^ 

!>2Sch.  Dom.   Rel.  351.  95  §12044    G.    C.     (§1383).      See 

93  Johnson  vs.  Meyer,  2  Cleve.  L  Art.    in   Vol.    XIX,   O.   L.   R.;    Vol. 

R.  81.  !LXVI,     Bull.,     Function     of     legal 

The  making  of  improvements  mav  guardian  in  partition  suits. 

be  authorized  by  the  Probate  Court';  ^^  §  V^fP^  ?i£n- !!  ^n^'  ^^'^^' 

and   if   that  Court   orders    improve-  q^s  lomV-'  n    n     /so--; 

ments  to  a  certain  limit,  the  limit  gg  §  j.^ggO  G.  C:   Woerner  on  Gr. 

fixes    the   extent   of   the   guardian  s  203.     See   §  1879  et  seq..  Partition, 

authority,    but   is   not    an    absolute  it  is  the  dutv  of  a  guardian  ad 

prohibition  to  go  beyond  it,   and  if  litem    to    investigate    tlie    appraisc- 

the  guardian  exceeds  the  limit^  and  nient  of  tlie  property  before  one  of 

the   Court  finds  the   excess  to  have  the    petitioners    will    be    allowed    to 

been  necessary  and  useful,  it  will  lie  take  it  at  tlie  appraisement,  and  if 

allowed.     May     vs.      Skinner,      1 19  "°t  tlie  sale  may  be  held  to  be  con- 

Mase.  37.5;    152  Mass    328-    15  Am  structively  fraudulent,  and  the  per- 

&  Eng.  Encv.  of  Law  106  (2  Ed  )      "  !°"  taking  the  same  held  to  account 

9*  §  10960   G.   C.  1^  *^'^  """°r--  T^^""-^^-  ^^""■'  ^  0- 

L.  R.,  123 ;   1 1   Dec.  /  /3. 


1255  PARTITION  DOWER. EASEMENT  §1397 

§  1397.     Easement.     Appropriation. 

A  guardian  has  no  right  to  dedicate  his  ward's  real  estate 
to  a  public  nse  or  make  a  deed  conveying  the  right  of  way  over 
it,  for  the  purpose  of  establishing  a  public  road  except  as  the 
same  may  be  provided  by  statute.^" 

The  statute  authorizes  a  guardian,  with  consent  of  the  Pro- 
bat©  Court,  to  sell  land  to  a  corporation  where  the  same  might 
be  condemned.^""  In  certain  road  proceedings,  the  guardian 
may  act  for  the  ward.^°^ 

§  1398.     Completion    of   real    estate    contract.      Additional 

bond.  "The  guardian  of  an  idiot,  imbecile,  or  lunatic,  or  an 
incompetant  by  rea.son  of  advanced  age  or  mental  or  physical 
disability  or  infirmity,  appointed  by  a  court  in  this  state  or  else- 
where, may  complete  the  real  contracts  of  his  ward,  or  any 
authorized  contract  of  a  guardian  who  has. died  or  been  removed, 
in  like  manner  and  by  like  proceedings  as  the  real  contract  of  a 
decedent,  under  an  order  of  court,  may  be  specifically  per- 
formed by  his  executor  or  administrator.  When  by  virtue  of 
such  contract  or  the  completion  of  it,  the  guardian  shall  receive 
or  be  entitled  to  receive  moneys  not  amply  covered  by  his  bond, 
the  court  shall  require  of  him  an  additional  bond  with  sureties, 
in  respect  of  such  moneys."     [R.  S.  §  6313;  109  v.  74. j^^- 

§  1399.     Contracts  between  ward  and  guardian. 

The  guardian  can  make  no  valid  contract  with  his  ward. 
This  results  from  two  reasons.  First,  the  minority  of  the 
ward,  and  second,  the  fiduciary  relation  that  exists  between 
them ;  and  even  after  the  ward  has  arrived  of  age,  and  the 
guardianship  has  been  terminated,  contracts  between  a  ward 

99  Woerner  on  Gr.  178.  from    them    it   is   rather   that   such 

100  §  11040   G.    C.    (§1677).  power,  which  would  necessarily  in- 

101  §§  7259,  7330,  7334  G.  C.  elude    most    of    the    special    powers 
The    numerous    statutes    in    this  granted  by  legislation,  does  not  ex- 
State,  conferring  special  powers  upon  tend.     The  State  vs.  Commissioners, 
guardians    in   special    cases,   do   not  39  0.  S.  61. 

authorize   a    sale   or   conveyance    of  i"-  §  11003  G.  C. 

the   realty,  or   a   dedication   of   any  This  section  specifically  refers  to 

part  of  it  to  a  public  use,  either  ex-  like  proceedings  had  by  an  adminis- 

pressly  or  by  necessary  implication.  trator.     See  §  523. 

Indeed,    if    any    implication    arises 


^  1400       guardian's  power  in  relation  to  estate  1256 

and  the  guardian  are  subject  to  the  strictest  scrutiny.  In  a 
case  before  our  Supreme  Court"^  it  was  said,  "  One  standing 
in  the  relation  of  a  parent  and  guardian  —  in  fact,  of  a  minor, 
having  the  custody  and  control  of  such  minor  and  of  his  prop- 
erty during  such  minority,  is  bound  to  the  most  scrupulous 
good  faith  in  the  management  of  the  estate,  and  where,  on  such 
minor's  coming  of  age,  he  attempts  to  malce  a  settlement  of  his 
trust  witli  him,  a  court  of  equity  will  examine  the  transaction 
with  extreme  jealousy,  to  see  that  no  undue  influence  has  been 
exercised ;  that  the  parties  have  been  put  on  an  equal  footing 
by  full  disclosures,  and  that  no  advantage  has  been  taken."^°* 
And  this  same  principle  applies  to  a  will  or  a  gift  made  by  the 
ward  in  favor  of  the  guardian  during  or  soon  after  the  trust  re- 
lation.^°^  In  such  cases  it  devolves  upon  the  guardian  to  show 
that  the  contract  is  entirely  free  from  any  doubt  or  undue  ad- 
vantage, and  he  must  also  show  that  the  ward  had  full  and 
complete  knowledge  of  the  affair  and  the  result  that  would 
follow  to  himself  and  his  guardian, ^''^ 

§  1400.     Ward's  right  of  action  against  the  guardian. 

During  the  guardianship,  the  ward  has  no  right  of  action 
against  the  guardian.  Whatever  rights  he  may  then  have 
must  be  worked  out  through  the  Probate  Court.  If  the  guar- 
dian has  mismanaged  his  trust,  he  should  be  removed,  and  then 
the  ward's  rights  might  be  enforced.^*^^ 

§  1401.     Guardian's  right  of  action  against  the  ward. 

During  the  guardianship,  no  action  can  be  maintained  by  the 
guardian  against  the  ward,  either  at  law  or  in  equity.  The 
sole  remedy  that  he  then  has,  is  in  the  Probate  Court,^"^  and  it 

103  Berkmeyer  vs.  Kellerman,  32  484;  Berkmeyer  vs.  Kellerman,  32 
0.  S.  239  O.  S.  240;  Tj'ler  on  Infancy,  §  178. 

104  In  re  Strickland,  7  R.  P.  2:53 ;  See  §  1497,  as  to  settlement  with 
Perry   on  Trust,    §200';    Sch.   Dom.  ward. 

Rel.  387,  512.  io7  15  Am.  &  Eng.  Ency.  of  Law, 

105  15  Am.  &  Eng.  Ency  of  Law,  2  ed.  80;  Woerner  on  Gr.  152,  330, 
(2  Ed.)   87.  331,  478. 

108  Long    vs.    Mulford,    17    O.    S.  los  Davis  vs.  Ford,  7  O.  pt.  2  104. 


1257  CANNOT    PURCHASE    PROPERTY    OF    WARD  §  1402 

is  said,  that  then  after  a  settlement  of  the  account  and  the  fix- 
ing of  the  halance  due  to  the  guardian,  no  right  of  action  could 
be  maintained,  since  the  ward  had  no  right  to  make  an  ex- 
penditure in  excess  of  the  funds  in  his  hands,^"''  but  it  has  been 
held  different,  where  an  expenditure  was  made  for  necessaries. 
In  such  cases  an  implied  promise  results  on  the  part  of  the 
ward  to  pay  for  the  same. 

§  1402.    Employment  of  attorneys,  agents,  etc.^°^* 

The  guardian  has  the  same  right  to  employ  an  attorney  in 
the  management  of  an  estate  as  an  administrator  or  executor.^^" 
The  question  whether  the  employment  of  counsel  was  a  reason- 
able and  proper  exercise  of  the  'guardiaii's  discretion,  is  not  de- 
termined by  the  test  of  success  or  failure ;  but  whether  a  pru- 
dent man  would,  under  all  the  circumstances,  have  judged  the 
expenditure  a  proper  and  necessary  one  in  the  interest  of  the 
ward,"^  and  the  same  rule  would  be  applied  as  to  costs  in  liti- 
gation, which  might  be  rendered  against  the  guardian  or  ward. 
The  guardian,  likewise,  has  a  right  to  employ  agents  wherever 
necessary,  but  allowance  for  these  matters,  rests  largely  if  not 
entirely  in  the  discretion  of  the  Probate  Court.  No  action  will 
lie  against  the  guardian  in  his  representative  capacity.* 

§  1403.     Guardian  can  not  purchase  property  of  the  ward,  etc. 

It  is  a  general  rule  applicable  to  all  trustees  that  in  all  mat- 
ters, they  must  act  for  the  best  interest  of  the  estate.  In  the 
application  of  this  principle  it  is  always  held  that  a  guardian 
cannot  make  a  purchase  of  his  ward's  property  to  his  own  profit. 
If  he  does  make  such  purchase,  the  entire  profits  must  be  ac- 
counted for  to  the  ward's  estate  and  what  he  cannot  do  directly 
he  is  not  permitted  to  do  through  an  agent  or  attorney."^ 

Purchases  made  by  a  guardian  of  his  ward's  property  are 

109  15  A.  &  E.   Ency.  of  Law,  85       guardianship  he  avouM  be  liable  in 

(o  pA  \  a  settlomcrt  for  the  balance  due. 

^T.,..     •     ■  X     J  J  X  xu  X  109a  Cited,  Payne  vs.  Recht,  38  O. 

This  13  intended  to  mean  that  no       q    ^    253 

right  of  action  could  bo  maintained  110  See   §§  500,  510. 

resting  on  a  promise  of  the  ward,  if  m  Woerner  on   Gr.  351. 

the  ward   had   property   during  the  "^  Cox  vs.  John,  32  O.  S.  532. 


^  1403a  GUARDIAN 'S   POWER    IN    RELATION    TO   ESTATE  1258 

not  absolutely  void,  but  voidable  at  the  election  of  the  ward 
Avithin  a  reasonable  time/"  but  it  has  been  held  that  a  guar- 
dian may  lawfully  become  the  purchaser  of  his  ward's  real  es- 
tate, sold  by  a  sheriff  under  a  judgment  against  the  personal 
representative  of  the  ward's  ancestor.^^*  The  rule  generally 
applicable  to  executors  and  administrators  in  this  respect  would 
be  applicable  to  guardians/" 

§  1403a.  Discovery  of  assets  belonging  to  estate  of  ward, 
etc.  Upon  complaint  made  to  the  probate  court  or  to  the  court 
of  common  pleas  by  a  guardian  or  trustee  of  the  estate  of  a 
minor,  idiot,  imbecile,  lunatic,  drunkard  or  of  an  incompetent 
by  reason  of  advanced  age  or  mental  or  ph3^sical  disability  or 
infirmity,  or  by  any  person  interested  in  any  such  estate  as  a 
creditor  thereof  or  otherwise,  against  any  person  suspected  of 
being  or  having  been  in  the  possession  of  any  moneys,  goods, 
chattels,  things  in  action,  or  efiPects  of  such  estate,  the  said  court 
shall  cite  the  person  so  suspected  forthwith  to  appear  before  it 
and  to  be  examined  on  oath  or  affirmation  touching  the  matter 
of  said  complaint.     [109  v.  80.] "« 

§  1403b.  Imprisonment  for  disobeying  citation.  If  any  per- 
son so  as  aforesaid  cited  shall  refuse  or  neglect  to  appear  and 
submit  to  an  examination  as  aforesaid,  or  shall  refuse  to  answer 
such  interrogatories  as  may  be  lawfully  propounded,  the  court 
shall  commit  such  person  to  the  jail  of  the  county,  there  to 
remain  in  close  custody  until  he  or  she  shall  submit  to  the 
order  and  direction  of  the  court  in  that  behalf.     [109  v.  80.]^" 

§  1403c.  Examination  reduced  to  writing.  All  such  exami- 
nations, including  as  vrell  questions  as  answers,  shall  be  reduced 
to  Avriting,  signed  by  the  party  examined,  and  filed  in  the  court 
before  which  the  same  was  taken.     [109  v.  80.]^^^ 

§  1403d.  Costs,  etc.  All  costs  of  such  proceedings  shall  be 
assessed  against  and  paid  by  the  party  making  the  complaint. 
[109  V.  81.]^" 

113  Woerner  on  Gr.   197.  the     Probate     Court     or     Court    of 

114  Woerner  on  Gr.  197,  citing  Common  Pleas,  and  answer  concern- 
Cliorpenning's  Appeal,  32  Pa.  St.  ing  the  same.  Forms  given  in  §  395 
315.  to   §  407   can  be   adopted   and   com- 

But  even  in  such  matter,  the  ac-  ments    there    made    will    be    found 

tion  of  the  guardian  must  be  free  useful    in   an   action   brought   by   a 

from  any  adverse  action  to  the  in-  guardian,    etc.       §  1403b    G.     C.     is 

terest  of  his  ward.  similar   to    §10675    G.    C.     (§402), 

115  See  §492;  15  A.  &  E.  Ency.  and  §  1403c  G.  C.  to  §10670  G.  C. 
of  Law   (2  ed.),  6G.  (§405). 

Comments. — §  1403a  C.  C,  is  very  The  act  does  not  go  as  far  as  the 

much     similar     to     §  10673     G.     C.  one  relating  to  administrators,  and 

(§395),  providing   for  discovery  of  permit  a  recovery,  or  judgment.     If 

assets    by    an    administrator,    etc.,  any  propertv   is   discovered,   it  will 

and  confers  the  right  upon  a  guard-  he    the    duty    of    the    guardian    or 

ian  or  trustee  of  an  estate,  or  any  trustee  to  proceed  and   recover  the 

person    interested   in   tlie   estatn   as  same    by    a    separate    appropriate 

a     creditor,     to     file     a     complaint  action, 

against    any     person     suspected     of  ne  §  109S3-3   G.   C. 

having  property  in  their  possession  ht  §  109S!)-4   G.   C. 

belonging   to    the    estate,    and    have  ^'^  §  109S9-5   G.   C. 

the    person    cited    to    appear    before  "*•  §  109S9-6   G.   C. 


1259 


guaedian's  sale  of  keal  estate 


§1404 


CHAPTER  LXXVI. 

GUARDIAN'S  SALE  OF  REAL  ESTATE. 


§  1404 
§1405 


§140G 

§1407 
§  1408 
§  1400 
§1410 

§1411 
§1412 
§1413 
§  1414 
§  1415 
§1416 

§1417 


Nature  of  action,  etc.  §  1418 

Sale  of  personal  and  real  es- 
tate of  minors.     One  appli- 
cation     for     sale     of     real       §  1410 
estate     of     two     or     more 
wards.  Two  or  more  guard-        §  1420 
ians    may   join.  §  1421 

In   what   Court   action   to   be       §  1422 

brought. 
When  action  may  be  brought.       §  142,3 
Parties  to  action.  §  1424 

What   may   be   sold. 
Petition   for   sale   of   real   es-       §  1425 

tate. 
Essentials  of   petition. 
Form  of  petition.  §  1426 

Notice  of  filing  petition,  etc.       §  1427 
Ordering  notice,  etc.  §  1428 

Service  of  notice.  §  1429 

Form     of     notice.       Publica- 
tion, etc.  §  1430 
Guardian  aid  litem.                         §  1431 


Hearing  of  petition.  Ap- 
praisers. Survey  into  town 
lots. 

When  order  should  be 
granted. 

Order    to    appraise. 

Oath  of  appraisers. 

Guardian  to  execute  addi- 
tional bond  before   sale. 

Form    of   Guardian's   Bond. 

Requirement  of  bond,  sure- 
ties, etc. 

Order  of  sale  of  real  estate, 
private  sale  when,  laying 
out    in    town    lots. 

Entry    ordering    sale. 

Public   sale. 

Private   sale. 

Report  of  sale,  confirmation 
and  deed. 

Form   of   Guardian's   Deed. 

Appeal   and    Error. 


§  1404.     Nature  of  action,  etc. 


It  was  against  the  policy  of  the  common  law  to  permit,  even 
under  an  order  of  Court,  a  change  of  a  minor's  real  estate,  into 
personalty,^  and  it  has  always  been  the  policy  of  both  the  com- 
mon and  statute  law,  not  to.  permit  a  sale  of  an  infant's  real 
estate  without  an  order  of  Court  for  that  purpose.  The  right 
to  sell  such  property  is  derogatory  to  the  common  law,  and  must 
be  strictly  construed.  The  guardian  has  no  power  to  make 
such  a  sale  except  as  is  provided  by  statute.^ 

1  Woerner  on  Gr.  225.  Personal    property    may    be    sold 

2  State   vs.   Commissioners,  39  0.       without  order  of  the  court. 
S.  61. 


§  1405  guakdian's  sale  of  real  estate  1260 

The  statute  must  be  followed  substantially  in  all  matters  in 
order  to  permit  a  guardian  to  validly  exercise  the  power.^ 

The  action  provided  for  by  our  statute  is  peculiar  and  is  no 
doubt  to  be  classed  as  a  special  proceeding,  and  not  a  civil  ac- 
tion within  the  meaning  of  the  Code.  Like  the  action  brought 
by  executors  and  administrators  for  the  sale  of  real  estate  with 
which  it  was  formerly  classed,  it  was  under  the  former  laws  of 
our  State  a  proceeding  in  rem  and  purely  ex  parte.     It  is  still 

an  action  in  rem,  but  by  reason  of  a  requirement  that  notice 
be  given  to  the  ward  and  others,*  it  has  assumed  some  of  the 
characteristics  of  an  adversary  proceeding.  But  the  mere  fact 
that  notice  is  required  does  not  make  it  adversary.^  These  mat- 
ters will  be  adverted  to  again  in  subsequent  sections  of  this 
chapter.  Suffice  to  say  here  that  sales  of  this  character  should 
only  be  made  when  the  law  has  been  strictly  complied  with. 

?  1405.  Sale  of  personal  and  real  estate  of  minors.  One 
application  for  sale  of  real  estate  of  two  or  more  wards.  Two 
or  more  guardians  may  join.  "The  guardian  of  the  person 
and  estate,  or  estate  only,  when  for  the  interest  of  the  ward, 
may  sell  all  or  any  part  of  the  personal  estate  of  the  ward. 
"Wlienever  necessary  for  the  education,  support,  or  payment  of. 
just  debts,  or  the  discharge  of  liens  on  the  real  estate  of  such 
minor,  or  if  the  real  estate  of  the  minor  is  suffering  unavoidable 
waste,  or  a  better  investment  of  its  value  can  be  made,  and  if 
satisfied  that  a  sale  of  it  will  be  for  the  benefit  of  the  minor,  the 
probate  court  by  which  a  guardian  of  the  person  and  estate, 
or  of -the  estate  only,  was  appointed,  on  his  application  may 
order  the  real  estate  of  such  minor,  or  a  part  thereof,  situated 
in  this  state,  to  be  sold.  Wlien  a  person  is  such  guardian  for 
two  or  more  minors  whose  real  estate  is  owned  by  them  jointly, 
or  in  common,  in  one  application  he  may  ask  for  the  sale  of  the 
interest  of  all  or  any  number  of  his  wards  in  such  real  estate; 
and  if  different  persons  are  guardians  of  minors  so  interested 
jointly,  or  in  common,  in  the  same  real  estate,  they  may  join 
in  one  application.     On  the  hearing,  in  either  case,  the  court 

3Woerner  on  Gr.  233.  See   §10945   G.   C,    §§1392,    1404, 

4  §10947  G.  C.   (§1413).  1530,   1522,   1534,   1678. 

5  Barr    vs.    Closterman,    3    C.    C. 
441;  2  C.  D.  251. 


1261  WHERE   ACTION    BROUGHT  §  1406 

may  authorize  the  sale  of  the  interest  of  one  or  more  of  such 
wards,  as,  in  its  discretion,  seems  right.      [R.  S.  §  6280.]'^ 

§  1406.     In  what  court  action  to  be  brought. 

The  above  section  is  specific  in  its  provisions  that  the  action 
for  the  sale  of  the  real  estate  of  any  minor  must  be  brought 
in  the  Probate  Court  in  which  the  guardian  for  the  person  and 
estate,  or  for  the  estate  only  received  his  appointment.  No 
other  Probate  Court  has  jurisdiction.'' 

By  a  general  provision,®  it  is  provided  that  the  Probate 
Court  has  concurrent  jurisdiction  with  the  Court  of  Common 
Pleas  in  the  sale  of  real  estate  by  executors,  administrators  or 
guardians.  This  general  provision  would  seem  to  retain  juris- 
diction of  the  Court  of  Common  Pleas  in  such  actions.  The 
question  tlien  suggests  itself,  has  any  other  Court  of  Common 
Pleas  than  that  which  exists  in  the  county  in  which  the  guard- 
ian received  his  appointment,  jurisdiction?  This  question  is 
answered  in  the  negative  by  the  Supreme  Court  in  the  case  of 
Foreman  v.  Haag."  Here  it  is  said,  "As  therefore,  in  our 
opinion,  the  Court  of  Common  Pleas  of  Cuyahoga  county,  at 
the  time  of  the  creation  of  the  Probate  Court,  was  not'  author- 
ized to  order  the  sale  of  lands  on  the  application  of  a  guardian 
appointed  in  anotlier  county,  no  such  authority  was  vested  in 
the  Probate  Court  of  said  county  by  the  act  conferring  juris- 
diction on  that  Court." 

In  practice,  where  there  are  no  questions  arising  as  to  prior- 
ity of  liens  and  matters  requiring  the  exercise  of  equity  juris- 
diction, it  would  be  better  to  bring  the  action  in  the  Probate 
Court.  But  where  the  title  is  imperfect  or  there  exist  con- 
flicting claims  and  liens  which  require  an  exercise  of  equity 

e  §  10945  G.  C.  ^  Forosman    vs.    Ilaag,    3G    0.    S. 

If  real  estate  is  sold  and  the  waiJ  102. 

die,   it  is  to  be  distributed   as   real  s  §  505   R.   S.    (§28). 

estate,   but   if   it   is   again   invested  9  36  0.  S.  106. 

in  real  estate  it  loses  its  former  an-  Guardians     of     different     minors 

crstral  character,   and   is  to  be   dis-  jointly   interested,  can  only  join   in 

tributed  as  real   estate  acquired  by  an   application,   where   they   are   all 

purchase.      McCammon    vs.    Cooper,  apjjointcd  by  the  same  court,  other- 

12  Dec.  677;   69  0.  S.  368.  wise  each   guardian   must  bring  an 

See  §§  8578,  8579  G.  C.  (§921).  action  in  the  court  where  appointed. 


§  1407  gtjakdian's  sale  of  keal  estate  1262 

power,  it  would  be  much  safer  to  bring  the  action  in  the  Court 
of  Common  Pleas  in  the  county  in  which  the  guardian  was 
appointed. 

The  action  not  being  a  civil  action  within  the  meaning  of 
the  Code,  and  no  express  power  being  given  to  the  Probate 
Court  to  determine  a  question  affecting  the  title  to  the  land,  it 
is  seriously  doubted  whether  the  Probate  Court  has  such  ju- 
risdiction/" 

§  1407.     When  action  may  be  brought. 

The  action  can  only  be  brought  during  the  existence  of  the 
guardianship.  An  action  brought  after  the  ward  is  of  age,  or 
the  guardianship  temiinated,  is  absolutely  void." 

The  action  can  be  brought  by  no  other  person  than  the  legal 
appointed  guardian.^" 

The  statute  specifically  provides  that  the  action  may  be 
brought,  first,  when  it  is  necessary  for  the  education,  support 
or  payment  of  just  debts.  Second,  whenever  it  is  necessary  for 
the  discharge  of  any  liens  on  the  real  estate  of  such  minor. 
Third,  whenever  the  real  estate  of  such  minor  is  suffering  un- 
avoidable waste.  Fourth,  when  a  better  investment  of  the 
value  of  the  real  estate  can  be  made  and  the  Court  is  satisfied 
that  a  sale  will  be  for  the  benefit  of  the  minor.  These  are  the 
only  instances  in  which  an  action  can  be  brought.  The  Court 
in  all  cases  must  be  satisfied  before  the  order  is  granted  that 
the  change  ^vill  be  for  the  interest  of  the  ward.  To  much  cau- 
tion cannot  be  exercised  in  this  direction  by  the  Court.  Care- 
less or  designing  guardians  frequently  endeavor  to  get  control 
of  funds  of  the  ward  in  order  to  subserve  there  own  purpose 
and  before  the  ward  arrives  of  age  the  estate  has  vanished. 

10  A  foreign  guardian  may  bring  the   court   full    power    to    determine 

the  action   in   any  county  in  which  all  the  equities  of  lienholders. 

the  land  is  situated — and  in  either  n  Perry  vs.  Brainard,  11  O.  442; 

the  Probate  Court  or  Court  of  Com-  Dengenhart   vs.    Cracraft,   36   O.    S. 

mon  Pleas.  §10055  G.  C.    (§1481).  549." 

However,    there    is    a    section—  12  Woerner  on  Gr.  234,  239. 

§  10783  G.   C.    (§814),  which  gives  See  next  section. 


1263  PARTIES  TO  ACTION.  §  1408 

§  1408.     Parties  to  action. 

The  statute  certainly  confers  power  on  no  one  to  bring  the 
action,  except  a  person  who  is  legally  appointed,  and  acting  as 
guardian  of  the  minor.^^ 

Where  different  persons  are  guardians  of  minors  who  are  in- 
terested jointly  or  in  connuon,  such  guardians  may  join  in  the 
application.^*    This  much  for  parties  plaintiff. 

As  to  parties  defendant,  the  statute  provides  that  notice 
be  given,  and  states  ^^  "that  the  ward  or  the  husband  or  wife  of 
such  ward,  and  all  persons  entitled  to  the  next  estate  of  inher- 
itance in  the  real  estate  to  be  sold  shall  be  defendants."  In 
the  former  statute  it  was  provided  that  only  when  the  estate 
came  by  inlieritance,  devise  or  deed  of  gift  from  an  ancestor 
need  the  notice  be  given  to  all  persons  entitled  to  the  next  in- 
heritance, etc.  There  is  now  no  such  distinction,  and  all  persons 
entitled  to  the  next  estate  of  inheritance  must  be  notified,  no 
matter  whether  the  estate  comes  by  purchase  or  descent.  The 
purpose  of  making  the  ward  defendant  is  that  his  friends  or 
those  who  are  interested  may  know  of  the  pendency  of  such  a 
proceeding.  It  is  hardly  expected  that  the  w^ard  himself  will  be 
in  a  position  to  know  much  about  the  advisability  of  granting 
the  guardian's  application.  Formerly  such  applications  were 
granted  without  notice  even  to  the  ward.  "Theoretically," 
says  Woerner,^"  "he  has  no  capacity  at  all  to  judge  of  what  is 
best  for  him  or  for  his  estate,  and  to  summon  him  into  Court 
is  therefore  an  idle  ceremony;  practically,  however,  especially 
when  he  is  of  an  age  approximating  majority,  he  may  suggest 
facts  and  views  of  policy  worthy  of  consideration  by  the  Court 
in  exercising  its  discretion,  and  he  may  appoint  an  attorney  to 
represent  him."  The  object  of  making  a  husband  or  wife  a 
party  is  that  their  dower  right  may  be  provided  for  and  re- 
leased. The  persons  entitled  to  the  next  estate  of  inheritance 
are  made  parties  for  the  reason  that  being  next  of  kin  if  the 
ward  should  die  during  the  minority  they   would  inherit  the 

"Dengcnhart  vs.   Cracraft.  .36  0.  i^  §  10047  C.  C.   (§  1413). 

S.  572.  16  Woerncr  on  Cr.  241. 

14  §  10945  G.  C.   (§  1405). 


§  1409  guardian's  sale  of  real  estate  1264 

estate;  and  although  they  would  inherit  the  proceeds,^^  yet  it 
might  be  injudiciously  invested  or  squandered,  and  that  if  the 
order  is  made  they  may  know  of  such  conversion  and  protect 
tlieir  interest  in  the  fund.  There  is  no  provision  for  any  other 
person  to  be  made  defendant ;  and  considering  the  nature  of  the 
action,  I  very  much  doubt  if  any  other  person  can  be  a  proper 
party  defendant.  If  there  are  others  interested  in  the  real 
estate  whose  rights  demand  adjudication  in  order  that  the  best 
price  may  be  realized,  the  action  had  better  be  brought  in  the 
Court  of  Common  Pleas,  a  court  of  general  jurisdiction.  The 
case  of  Doan  vs.  Bitely,^*  in  which  it  was  held  that  it  was 

proper  for  the  Probate  Court  to  bring  in  all  parties  and 
adjudicate  all  matters  pertaining  to  the  title  of  real  estate 
in  a  case  where  an  administrator  sought  to  sell  real  estate, 
was  founded  upon  tlie  fact  that  the  statute  relating  to  sales 
by  administrators  made  the  action  a  civil  action  and  further 
particularly  provided  that  any  person  might  be  made  a  de- 
fendant who  has  and  claims  an  interest  in  the  controversy, 
adverse  to  the  plaintiff  or  who  is  a  necessary  party  to  a  com- 
plete determination  or  settlement  of  questions  involved. 
Where  there  is  a  lien  on  the  real  estate  which  is  uncontested, 
it  would  be  well  to  give  such  party  notice  so  that  the  purchaser 
might  loiow  that  the  money  is  applied  to  such  lien.  Otherwise 
the  rule  of  caveat  emptor  applies. 

§  1409.    What  may  be  sold. 

"The  real  estate  of  such  minor  or  any  part  thereof,  situate 
in  this  State  may  be  sold,"  is  the  language  cf  the  statute.^^ 

In  a  case  in  New  York  it  was  held  that  "the  term  real  estate 
includes  every  freehold  estate  and  interest  in  lands,  and  that 
a  right  of  present  enjoyment  of  an  estate,  or  an  actual  posses- 
sion, either  by  a  termor  or  otherwise,  is  not  necessary  to  a 
seizin  when  there  is  a  fixed  vested  right  of  future  enjo}Tnent, 
that  is,  when  there  is  a  vested  remainder  or  reversion. ' ' "°    And 

17  See  §1405;  Armstrong  vs.  Mil-  Tlie  guardian  can  not  give  the 
ler,  6  O.  118;  7>?.  re  McCJabe,  16  Bull.  property  awav,  even  for  a  public 
271;  51  11.  I.  330.  use.     State  vs.  Hamilton,  39  O.   S. 

18  49  0.  S.  588.  102. 

19  §  10:}45  G.  C.    (§  1403).  Personal  property  may  be  sold  by 
\et  tliere  is  a  statute  which  gives      the     guardian     without     an     order 

the  Probate  Court  full  power  to  de-  from  the  court,  aitliough  there  may 

termine    all    the    equities    of    lien-  be    times    when    it    is    advisable    to 

holders,  and  order  pavment  to  par-  make     formal     application     to     the 

ties    entitled.      See    §10783    G.    C.  court.    Strong  vs.  Hope,  4  Bull.  1034. 

f§814).  20Woerner     on     Gr.     24S,     citing 


1265  PETITION    FOR  §  1410 

in  another  case  it  was  held,  that  the  Court  might  order  the  sale 
of  an  infant's  real  estate  where  it  existed  in  the  form  of  a  con- 
tingent remainder."^ 

The  term  "  real  estate  "  is  generally  meant  to  include  every 
estate,  interest  and  right,  either  legal  or  equitable  in  lands  of 
which  the  person  is  seized  or  possessed  or  in  any  manner  en- 
titled." 

These  general  definitions  of  real  estate,  seem  to  he  broad 
enough  to  include  every  interest  that  a  minor  may  hold  in -such 
property,  and  there  seems  to  be  no  substantial  reason  why  such 
interest  of  the  minor  could  not  be  sold,  if  the  Court  finds  that 
the  sale  is  necessary  within  the  meaning  of  the  statute.  But 
it  might  be  unwise  to  sell  or  attempt  to  sell  real  estate  where 
there  was  a  question  as  to  the  title  without  having  such  ques- 
tion first  settled.^^ 


§  1410.  Petition  for  sale  of  real  estate.  ' '  Such  application 
for  sale  of  real  estate  shall  be  by  petition,  which  shall  set  forth, 
specifically : 

*'l.  The  value  and  character  of  all  personal  estate  belonging 
to  such  ward  that  has  come  to  the  knowledge  or  possession  of 
such  guardian ; 

' '  2.    The  disposition  made  of  such  personal  estate ; 

"3.  The  amount  and  condition  of  such  ward's  personal 
estate,  if  any,  dependent  upon  the  settlement  of  a  decedent's 
estate,  or  the  execution  of  a  trust ; 

"4.  The  annual  value  of  the  real  estate  cf  the  ward,  with  a 
pertinent  description  thereof; 

"5.    The  amount  of  rent  received,  and  its  application; 

"6.  The  proposed  manner  of  re-investing  the  proceeds  of  a 
sale,  if  asked  for  that  purpose; 

"7.  Each  item  of  indebtedness,  or  the  amount  and  character 
of  the  lien,  if  the  sale  is  prayed  for  the  discharge  thereof; 

Jenkins    vs.    Fahey,    73   N.   Y.    355,  lands,  etc.,  the  date  of  the  termina- 

362.     To    sarae    effect:     Cooper    vs.  tion  of  which  is  not  determined  by 

Hepburn,    15    Gratt.    551;    Bell    vs.  or  ascertained  from  or  at  the  date 

Clark,  2  Mete  (Ky.)  573,  575;  Thaw  of  the  act  which  creates  it,  is  real 

vs.  Richie,  136  U.  S.  519,  545.  estate.     Century   Die. 

21  Dodge   vs.    Stevens     105    N.   Y.  See  §  820. 

585,  588.  ^'  Woerner  on  Gr.  250. 

22  At  common   law   any   estate  in 


§1411  guardian's  SALE  OF  REAL  ESTATE  1266 

"8.  Tlio  ago  of  the  ward,  and  where  and  with  whom  re- 
siding ; 

"9.  If  there  be  no  personal  estate  of  such  ward,  in  posses- 
sion or  expectancy,  and  none  has  come  into  the  hands  of  the 
guardinn,  and  no  rents  have  been  received,  the  fact  shall  he 
stated  in  the  petition.  If  it  is  desired  that  the  land  sought  to 
be  sold,  or  any  part  of  it,  be  laid  out  in  town  lots,  that  fact  must 
be  stated  with  the  reasons  therefor,  and  the  manner  in  which 
it  is  to  be  laid  out."     [R.  S.  §  6281.]-" 

§  1411.    Essentials  of  petition. 

The  petition  ought  to  contain  all  the  facts  required  to  be  set 
forth  by  the  above  section.  It  may  be  presumed  vrhere  the  peti- 
tion does  not  state  otherwise,  that  it  contains  a  description  of 
all  the  real  estate  of  the  rainor.-'^ 

In  addition  to  the  facts  required  by  the  above  section,  the 
petition  must  state  facts  sufficient  to  give  the  Court  jurisdic- 
tion. That  is,  that  the  person  making  the  application  is  the 
acting  guardian  of  the  minor,  and  second,  that  the  appointment 
was  made  in  the  Probate  Court  of  the  county  in  which  the  peti- 
tion is  filed.  It  ought  also  to  state  whether  or  not  the  ward 
has  a  wife  or  husband  living  entitled  to  dower  therein,  and  if 
it  is  desired  to  plat  the  land  this  fact  should  be  stated.  The 
petition  should  be  titled  like  an  ordinary  adversary  proceeding. 
It  should  also  allege  the  reason  for  the  necessity  of  the  sale 
as  provided  in  sec.  10945,  G.  C.,-"**  and  generally  all  facts 
necessary  for  the  Court's  knowledge  in  order  to  properly  pass 
upon  the  question  whether  or  not  the  sale  should  be  ordered. 
It  should  be  verified,  the  statute  so  requires.  If  there  are  any 
liens  on  the  real  estate,  this  matter  should  be  alleged.  TThile 
the  court  might  not  in  a  collateral  proceeding  set  aside  an 
action  founded  upon  a  petition  in  which  some  of  the  facts  re- 
quired by  sec.  10946,  G.  C.-''  were  omitted,  yet  it  would  be 
exceedingly  dangerous  to  file  a  petition  in  any  case  and  omit 
any  of  the  matters  required  by  that  section. 

24  §  10946  G.  C.  include  it  in  the  petition,  although 

See  §  1482,  Foreign  Gdn.  its    sale    would    have    to    he    made 

25Mauarr   vs.    Parrish,    26    0.    S.  under  the  order  of  the  court  in  such 

636.     ]\Iust  describe  all  of^  the  lands.  state,    and    according    to    the    laws 

See  3.3  L.  R.  A.  363.  there  governing.     The  petition  must 

25*  §  1405.  give   all   the  property   of  the  ward, 

26  §  1410.  although  only  a  part  is  desired  to 

If    some    of    the    real    estate    is  he  sold.     Maurer  vs.  Parish,  26  O. 

located  in  another  state,  which  it  is  S.  636. 

desired  to  sell,  it  might  be  well  to 


1267  FORM    OF   PETITION  §  1412 

§  1412.     Form  of  petition. 
( Title. ) 

Your  petitioner, ,  represents  that  he  is  the  duly  ap- 
pointed and  qualified  guardian  of ,  now  of  the  age  of 

years,  and  residing  with at .  .  ;   that  he 

was  appointed  as  such  guardian  by  the  Probate  Court  of 

county,  Ohio,  and  that  it  is  necessary  to  sell  the  real  estate  for  the  reason 
(here  give  one  of  the  causes  set  forth  in  §  6280  K.  S.)    (§   1405). 

(If  there  never  was  any  personal  property,  say:)  That  no  personal  es- 
tate of  any  kind,  belonging  to  said  ward,  ever  came  to  the  possession  or 
knowledge  of  the  petitioner.  (But  if  there  ever  Avas  any  personal  estate, 
then  say,  instead  of  the  above: )  That  all  of  the  personal  estate  belonging 
to  said  ward,  that  ever  came  to  the  possession  or  knowledge  of  the  petition- 
er, consisted  of  (here  describe  it  generally;  as,  farming  implements,  horses, 
cattle,  notes,  moneys,  bonds  and  mortgages,  state  stocks,  bank  stock,  etc., 

etc.),  and  was  of  the  value  of dollars.     That  the  petitioner 

has  disposed  of  said  estate  in  full    (or  if  in  part  only,  say,  to  the  amount 

of dollars) ,  as  follows,  to-wit:      Expended  for  said  ward, 

in  clothing, dollars ;    boarding, dollars ; 

tuition,  books,  etc., dollars;  in  payment  of  a  certain  mort- 
gage held  by ,  upon  lot  No ,  in  Cincinnati,  Ohio, 

dollars ;  for  taxes  on  same  lot, dollars ;  paying 

mechanics'  lien  thereon, dollars  (and  so  of  any  other  gen- 
eral expenditure). 

That  there  is  no  personal  estate  of  said  ward  dependent  upon  the  settle- 
ment of  any  decedent's  estate  or  the  execution  of  any  trust,  nor  in  expectan- 
cy  (or  if  the  fact  be  otherwise,  instead  of  the  above  say.     That  there  will 

be  the  amount  of dollars,  or  an  amount  not  yet  ascertained, 

supposed  to  be  about dollars,  coming  to  said  ward  from  the 

estate  of ,  not  yet  finally  settled ;  or  such  an  amount  will 

be  due  tQ  said  ward  from  the  trust  estate  in  the  hands  of , 

who  was  made  trustee  by ) . 

That  said  ward  is  the  owner  of  the  fee  simple  (or  life  estate  or  leasehold, 

as  the  case  may  be)   of  the  following  described  real  estate,  situate  in 

county,  Ohio,  and  described  as  follows,  to-wit:  (Here  de- 
scribe it  by  metes  and  bounds),  which  real  estate  is  worth,  annually, 

dollars  (or  if  wild  land,  say,  which  is  wild  land,  and  yields  no 

income) . 

That  the  petitioner  has  received dollars,  in  rents,  from 

all  the  real  estate  of  his  ward,  and  has  expended  the  same  as  follows:  In 
repairs, dollars ;  taxes  on  real  estate, dol- 
lars (etc.,  etc.,  as  the  facts  are,  and  if  any  money  is  remaining  on  hand,  so 
state,  and  the  amount;  or  if  all  the  lands  yield  no  income  at  all,  say, 
instead  of  the  above.  That  the  petitioner  has  received  no  rents  whatever 
from  any  of  said  ward's  real  estate). 

That  the  sale  of  said  real  estate  is  necessary  for  the  maintenance  and 
education  of  said  ward  [or  if  it  is  proposed  to  reinvest  the  money  arising 
from  the  sale,  say  or  add.  That  the  petitioner  believes  it  will  be  for  the 
interest  of  said  ward  to  sell  said  real  estate  and  reinvest  the  money  arising 
therefrom  in    (state  stocks,  loans  upon  mortgage,  or  otherwise)]. 

That  said  ward  is  indebted  to  ( for  necessaries  in  cloth- 
ing, in  the  sum  of dollars;   to for  boarding, 

dollars ;  to for  tuition, dollars, 

etc.)  ;   (or  if  the  fact  be  so,  say.    There  is  no  indebtedness  of  the  said  ward). 

That has  a  lien  on  said  real  estate,  by  way  of  mortgage, 

to  secure  the  sum  of dollars  now  due  (or  not  yet  due,  as  the 

case  may  be) ,  and has  a  mechanics'  lien  for 

dollars,  which  accrued  in  the  lifetime  of father  of  said  ward 

(or  if  no  liens  exist,  say.  There  are  no  lions  upon  said  real  estate  to  the 
knowledge  of  the  petitioner). 


§  1413  guardian's  sale  of  keal  estate  1268 

(If  there  be  a  widow's  dower  in  the  land,  say : )      That. 

widow  of ,  lias  a  dower  estate  in  said  lands. 

That         residing  at and 

rcsidin<r   at    ,   are   all   the   persons    entitled   to   the   next 

estate  of  inheritance  in  such  real  estate.  ,   ..  ., 

Your  petitioner  therefore  prays  that  said (and  it  tliere 

be  a  widow,  or  persons  holding  liens,  add  their  names)  may  be  made  defend- 
ant (or  defendants,  as  the  case  may  be)  to  this  petition.  (If  there  be  a 
widow  and  lienholders,  add,  That  dower  may  be  set  off  to  said  widow  and 
the  ri"-hts  and  liens  of  said  lienholders  may  be  adjusted),  and  that  your 
petitiolier  may  be  ordered  to  sell  said  real  estate  (and  if  it  is  proposed  to 
reinvest  the  money,  add,  and  to  reinvest  the  money  arising  therefrom  as 
hereinbefore  proposed,  and  for  all  other  proper  relief,  etc.) 

,  Guardian  etc.26* 

[Verification] 


§  1413.  Notice  of  filing  petition,  etc.  "Upon  such  petition 
being  filed,  verified  by  the  oath  of  the  guardian,  the  court  shall 
order  the  petitioner  to  give  notice  to  his  ward,  to  the  husband 
or  wife  of  svich  ward,  and  to  all  persons  entitled  to  the  next 
estate  of  inheritance  in  such  real  estate,  who  also  shall  be  de- 
fendants to  the  petition,  of  the  filing  and  demand  thereof,  and 
the  time  when  it  will  be  heard,  in  such  manner  as  to  the  court 
seems  proper.  In  such  proceeding,  the  right  and  expectancy 
of  dower  of  the  husband  or  \nfe  of  such  Avard  in  the  premises, 
may  be  released  in  the  manner  and  otherwise  treated  and  dealt 
with  as  is  provided  by  law  in  section  ten  thousand  nine  hundred 
and  ninety-six."     [R.  S.  §  6282;  101  v.  40.]" 


§  1414.     Ordering  notice,  etc. 

The  statute  gives  the  Court  full  discretion  as  to  the  time 
when  the  petition  shall  be  heard  and  the  manner  in  which  the 
notice  should  be  given.  It  should  not  be  within  such  a  brief 
time,  that  the  parties  defendant. may  not  have  an  opportunity 
to  appear  and  properly  present  their  case.  Some  Courts  follow 
the  rule  in  civil  actions  and  make  the  answer  day  the  fifth  Sat- 
urday after  the  issue  of  summons.^^ 

When  the  petition  is  filed,  the  Court  should  make  a  journal 
entr}^,  fixing  the  date  of  hearing  and  the  manner  of  service  of 
such  notice.     The  entry  may  be  in  the  following  form : 

(Title.) 

This  day  came  said    ,  as    guardian    of    ,    and 

filed  his  petition,  duly  verified,  asking  for  the  sale  of  the  real  estate  of  his 
said  ward.  Whereupon  it  is  by  said  Court  ordered,  that  said  cause  shall  be 

26*  \Miitt.  Probate  Code.  27  §  10947  G.  C. 

See  §  1466,  Mort.  of  lands.  28  §  1134G  G.  C. 


1269  NOTICE  §  1415 

set  for  hearing  on  the.  .  .  .day  of ,  and  that  notice  thereof 

shall  be  given  to  (here  mention  the  name  of  the  ward,  the  ward's  wife  or 
husband  or  next  of  kin,  as  may  be  required,  under  the  previous  section). 
It  is  further  ordered  that  the  above  notice  shall  be  in  writing  and  de- 
livered to  each  of  said  parties  personally.  Or  if  that  cannot  be  done,  then 
by  leaving  a  copy  at  their  usual  place  of  residence.     Such  notice  to  be  served 

days  before  the  day  that  said  application  is  set  for  hearing.      (If  any 

of  said  parties  are  not  within  the  county  or  State,  it  would  be  proper  for 
the  Court  to  order  them  to  be  served  by  publication,  and  this  notice  by 
publication,  should  be  made  in  such  a  manner  as  the  Court  directs. )  29 

§  1415.     Service   of  notice. 

It  is  an  elementary  proposition  of  law,  that  no  one  can  be 
deprived  of  his  property  without  his  day  in  Court,  and  where 
the  statute  provides  that  certain  parties  must  receive  notice, 
before  the  Court  hears  a  question,  such  notice  is  jurisdictional, 
and  if  not  made,  the  Court's  acts  are  void.  It  therefore  be- 
comes veiy  important  that  the  notice  be  served  in  exact  com- 
pliance with  the  statute  and  the  order  of  the  Court,^°  but  where 
notice  has  been  given,  its  sufficiency  cannot  be  attacked  in  a 
collateral  proceeding.^^ 

As  tliis  notice  shall  be  given  in  such  a  manner  as  the  Court 
directs,  the  person  making  the  service  should  be  very  careful 
to  comply  with  such  order.  If  made  by  publication,  proof  of 
such  service  should  be  filed.  If  made  by  the  plaintiff  or  any 
otlier  person,  an  affidavit  should  be  filed  stating  how  the  serv- 
ice was  made.  A  general  provision  of  the  statute  provides 
that  when  defendant  is  a  minor  the  service  of  summons  must 
be  upon  him  and  also  upon  his  guardian,  or  father;  or,  if 
neither  can  be  found,  upon  his  mother,  or  person  having  the 
care  of  such  infant,  or  with  whom  he  lives.  The  manner  of 
service  shall  be  the  same  as  in  case  of  adults,  and  shall  be 
made  on  such  persons,  in  the  order  named.^^  It  is  questionable 
whether  this  statute,  to-wit,  11291,  G.  C,  applies,  but  it  would 

29  See  §  1437,  Lease  of  real  estate.       Stamplcy   vs.   King,   51   Miss.   728; 

30  Knickerbocker      vs.       Knicker-        Hamiel  vs.  Donnelly,  75  Iowa,  93. 
bocker,  .58  ill. '390;  Haws  vs.  Clark,  32  §  11291  G.  C.  '(§839). 

37    Iowa,    355;    Lyon    vs.    Vanatta,  Care     should     be     taken     where 

35  Iowa,  521.  wards  are  inmates  of  public  institu- 

31  Cooper  vs.  Sunderland,  3  Iowa,  tions,  tliat  the  notice  be  served  as 
114;  Slieldon  vs.  Wriglit,  5  N.  Y.  tiie  statute  directs.  In  some  insti- 
497;  Borden  vs.  State,  11  Ark.  519;  tutions  service  can  only  be  made 
De.xter  vs.  Cranston,  41  Midi.  448;  bv  the  officers  in  cliarge.  Lima 
Bunce  vs.  Bunce,  59  Iowa,  533;  Hospital.  See  §  2001  G.  C. 
Howhert    vs.    Heyle,    47    Kans.    58; 


§1416  guardian's  sale  of  real  estate  1270 

be  -well  that  the  Court  making  the  order  of  notice  follow  its 
provisions."' 

§  1416.     Form  of  notice.     Publication,  etc. 

The  following  form  may  be  used  where  the  notice  is  made 
personally  or  where  it  is  made  by  publication.  As  before 
stated,  care  should  be  exercised  that  the  parties  are  served  and 
notified  in  accordance  with  the  order  of  the  Court,  as  this  is  the 
amide  as  to  the  manner  in  which  the  service  is  to  be  made : 

o 

To ,    ,   aJid '• 

You  are  herebj^  notified  that  on  the day  of ,  190 . . , 

^  as  guardian  of ,  filed  in  the  Probate  Court 

of county,  Ohio,  a  petition,  the  object  and  prayer  of  which 

is,  to  procure  said  Court  to  order  the  sale  of  the  real  estate  of  the  said 
,  situate  in  the  county  of ,  Ohio,  and  de- 
scribed as  follows,  to-wit:  [Here  describe  it  as  in  the  petition;  and  if  the 
prayer  is,  to  reinvest  the  money,  add,  and  to  authorize  the  said  guardian 
to  reinvest  the  funds  in   (here  state  the  manner  named  in  the  petition.)] 

The  application  therefor,  will  be  for  a  hearing  by  said  Court,  on  the 

day  of ,  190.  .,  at o'clock  A.  M.,  at  which  time, 

unless  you  show  cause  to  the  contrary,  an  order  will  be  asked  as  prayed  for 
in   said   ijetition. 

( Signed )      ,  Guardian  of 

Dated  this day  of ,  190.  ..s* 

§  1417.     Guardian  ad  litem. 

It  is  provided  by  a  general  provision  of  the  General  Code,^° 
"that  the  defense  of  an  infant,  must  be  by  the  guardian 
for  the  suit,  eljc."  Whether  or  not  this  provision  applies  to 
proceedings  brought  by  a  guardian  against  his  ward,  is  a 
mooted  question.  Before  the  law  was  amended  in  its  present 
form,  requiring  notice  to  be  given  to  the  infant,  and  when  it 
was  purely  a  proceeding  in  rem  and  ex  parte,  there  was  no 
doubt  that  a  guardian  ad  litem  was  not  necessary.^® 

But  since  the  Court  has  required  that  the  ward  be  notified 
and  the  action  has  assumed  more  of  the  characteristics  of  an 
adversary  proceedings,  the  question  is  one  of  considerable  dif- 

33  See  §  838,  Service  of  summons.  §  1437,  Lease  of  land. 

That  is,  make  service  pn  the  ward  34  Whittaker's  Pro.  Code, 

and  the  persons  in  the  order  named,  33  §  11252  G.  C;   see  §  1384. 

after    thoir    guardian,    that    is,    the  "6  Woerner    on    Gr.    S  256,    citiag 

father,  etc.  Smith  vs.  Race,  27  111.  387 ;  Robb  vs. 

§839,  Actual   service.  Irwin,   15  0.  689:    Shelton  vs.  New- 

§  841,  Constructive  service.  ton,  3  0.  S.  494. 

See   §  1467,  Mortgage  of  land. 


1271  GUARDIAN    AD    LITEM  §  1417 

ficulty.  While  conceding  that  there  is  a  certain  degree  of 
propriety  in  making  such  an  appointment,  the  author  is  of  the 
opinion  that  it  is  not  necessaiy  to  have  a  guardian  ad  litem 
appointed.  This  conclusion  is  reached  for  the  following  rea- 
sons: First,  the  action  is  a  special  proceeding,  not  adversary 
in  the  general  sense  of  the  tei*m,^°*  and  no  provision  is  made  in 
the  law  relating  thereto,  for  the  appointment  of  a  guardian 
ad  litem.  The  object  of  notifying  the  infant  is  not  so  much 
for  purpose  of  defense  as  for  information  of  the  Court.^^ 

Second,  the  general  statute  requiring  a  defense  to  be  made 
by  a  guardian  ad  litem^^  has  reference  to  a  suit,  where  the  ward 
is  notified  by  summons.  This  follows  from  the  provisions  of 
sec.  11253  G.  C,  which  provides  that  the  appointment  may  be 
made,  etc.,  after  return  of  sum,m,ons  or  service  by  publication. 
If  a  guardian  ad  litem  is  required  in  this  kind  of  a  proceed- 
ing, I  would  ask  when  must  the  appointment  be  made  ?  Must 
it  be  made  before  service  of  notice  or  after  ?  Upon  whose  ap- 
plication is  the  appointment  to  be  made  ?  Where  the  inter- 
est of  the  guardian  appears  to  be  adverse  to  the  ward,  there 
would  be  no  impropriety  in  the  Court  making  such  an  appoint- 
ment. But  it  is  the  general  duty  of  the  Probate  Court  to  look 
after  the  interest  of  the  ward  and  see  that  no  unjust  advantage 
is  taken.  The  Court  must  fully  inform  itself  upon  the  rights 
of  the  ward  and  not  grant  tlie  order  unless  the  welfare  of  the 
ward  demands  it.  The  Supreme  Court  has  never  passed  upon 
this  question,  and  if  a  person  bringing  the  proceedings  is  in 
doubt,  he  may  satisfy  himself  by  having  the  appointment 
made.^^ 


36*Barr  vs.   Closterman,   3   C.   C.  collateral   attack.     7   N.    P.   232;    8 

444;    2    C.   D.    636.  Dec.  705. 

37  It  is  held  by  a  number  of  Courts  A  proceeding  under  §  3140a  for 
that  no  guardian  ad  litem  is  ever  the  committal  of  a  child  to  a  home 
necessary,  unless  the  statute  special-  or  benevolent  institution  being 
ly  so  provides.     Woerner  o«  Gr.  257.  strictly    statutory,    a    guardian    arl 

38  §  11252  G.C.   (§1384).  litem    is    not    necessary.     Stine    vs. 

39  See  Walter  vs.  Drapp.  When  Anderson,  1  Dayton  Term  Rep.  18. 
failure  to  appoint  is  not  subject  of  See  §  1383,  Actions  for  the  ward. 


§  1418  gu^vrdian's  sale  op  real  estate  1272 

§  1418.  Hearing  of  petition.  Appraisers.  Survey  into 
town  lots.  "At  the  time  appointed  for  the  hearing  of  such 
petition,  if  satisfied  that  the  notice  named  in  the  next  preceding 
section  -was  given,  and  that  such  real  estate  ought  to  be  sold,  the 
court  shall  appoint  three  freeholders  of  the  county  in  which  it 
is  situated,  who  are  not  of  kin  to  the  petitioner,  to  appraise 
it.  If  such  petition  seeks  to  have  the  land  or  any  part  of  it 
laid  out  into  town  lots,  and  the  court  finds  that  it  will  be  to 
the  advantage  of  the  ward  to  have  this  done,  it  also  shall  au- 
thorize the  survey  and  platting  of  the  land  for  that  purpose." 
[R.  S.  §62S3.]^° 


§  1419.    When  order  should  be  granted. 

An  order  of  sale  should  not  be  granted  upon  the  hearing  of 
the  petition.  The  order  that  is  made  at  this  time,  is  one  to 
appraise.  The  Court  should  find  that  it  is  necessary  to  sell  the 
real  estate.  If  the  property  is  to  be  sold  in  parts  or  town  lots, 
the  Court  should  make  an  order  accordingly.  If  there  is  any 
dower  interest  in  the  real  estate,  this  matter  should  be  pro- 
vided for  in  the  order  to  appraise.  Before  this  order  is  made, 
the  Court  should  be  satisfied,  first,  that  it  is  necessary  to  sell 
the  real  estate  for  some  of  the  reasons  set  out  in  sec.  10945, 
G.  C.*°*  Second,  the  Court  should  be  satisfied  that  the  petition 
contains  all  the  facts  required  by  sec.  10946,  G.  C."  Third, 
the  Court  should  find  that  the  guardian  was  appointed  in  the 
county  in  which  the  Court  is  located.  The  peculiar  duty  of 
looking  after  the  ward's  interest  devolving  upon  the  Probate 
Court,  great  care  should  be  exercised  in  granting  the  order,  and 
the  Court  should  never  do  so,  unless  fully  and  completely  sat- 
isfied that  the  interest  of  the  ward  demand  that  the  same  be 
done.  While  real  estate  may  not  yield  as  much  of  an  income  as 
personalty,  yet  it  cannot  suffer  complete  or  great  loss,  if  al- 
lowed to  remain  in  the  hands  of  the  guardian.*^* 

§  10048  G.  C.  of  real  estate  made  by  a  guardian 

b  1405.  "  Avitliout      appraisement     and      such 

^1  §  1410.  action  is  available  on  the  guardian's 

<!•  Wocrncr  on  Gr.   235.  bond.    McBride  vs.  Bell,  35  0.  C.  C. 

An  action  lies  to  set  aside  a  sale  403;  affirmed,  91  O.  S.  — . 


1273  ORDER  TO  APPRAISE  §  1420 

§  1420.     Order  to  appraise. 

The  general  practice  of  the  Probate  Court  is,  to  use  the 
forms  made  for  sale  of  real  estate  by  administrators.  The 
Court  having  satisfied  itself  that  it  is  necessary  to  sell  the  real 
estate  for  one  of  the  causes  set  out  in  sec.  10945,  G.  C./^  and 
being  satisfied  that  the  petition  sets  forth  the  facts  required  by 
sec.  10946,  G.  C.,''^  and  being  further  satisfied  that  Court  has 
jurisdiction,  and  that  all  the  parties  required  by  law  and 
former  orders  of  the  Court  have  been  notified  in  the  manner 
specified  by  law  and  such  former  orders  of  the  Court,  should 
make  on  its  journal  an  entry  ordering  the  property  to  be  ap- 
praised.     This  entry  may  be  in  the  following  form : 

(Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  petition  of  A.  B., 
guardian  of  C.  D.,  for  an  order  of  this  Court,  authorizing  said  guardian  to 
sell  the  premises  in  his  petition  described;  and  the  same  was  submitted 
to  the  Court  upon  the  evidence  and  the  pleadings  in  the  case. 

Whereupon,  after  due  consideration,  the  Court  finds  that  all  the  parties 
defendant,  have  been  served  with  notice  as  required  by  law,  and  the  former 
order  of  the  Cotirt;  that  said  guardian  received  his  appointment  in  the 
Probate  Court  of  this  county;  that  it  is  necessary  to  sell  the  premises  in 
the  petition  described  as  alleged  in  said  petition  ;  that  the  allegations  of 
said  petition  are  true.  (Here  insert  according  to  facts  whether  there  is  a 
dower  estate  to  be  assigned  and  what  has  been  done  in  reference  thereto 
and  whether  it  is  desired  to  subdivide  the  property.) 

It  is  therefore  ordered  that  E.  F.,  G.  H.  and  I.  J.,  three  judicious  free- 
holders of  the  county  in  which  said  real  estate  is  situate  who  are  not  of 
kin  to  the  guardian,  appraise  said  real  estate  at  its  fair  cash  value,  and 
return  the  same  to  the  Court  for  confirmation. 4* 

§1421.  Oath  of  appraisers.  "The  appraisers  shall  take  an 
oath  truly  and  impartially  to  appraise  such  real  estate  at  the 
fair  cash  value,  which  oath  shall  be  indorsed  on  the  certificate 
of  their  appointment,  or  order  of  sale  issued  by  the  court." 
[R.  S.  §6284.]« 

What  was  said  in  a  previous  chapter  in  reference  to  ap- 
praisement of  real  estate  in  the  srJe  of  lands  by  adn:inistrators 
is  applicable  to  a  large  extent  in  the  appraisement  of  property 
under  a  petition  filed  by  a  guardian.  Reference  is,  therefore, 
had  to  such  previous  chapter.''''  There  is  no  statute  however 
authorizing  the  guardian  to  administer  the  oath  to  appraisers. 
This  must  be  done  by  someone  authorized  to  administer  oaths. 

42  §  140,5.  ^5  §  85.5  ct  scq. 

43  §  1410.  The  statute  nowhere  fixes  the  fees 

44  §  858,  Appraisement  by  Admin.  of    the    appraisers.      I    assume    the 
'See  §  143!),  Lease,  etc.  same    wouhl    be  paid    the    same    as 

45  §  10949  G.  C.  where  an  administrator  sells,  etc. 


§  1422  guardian's  sale  of  real  estate  1274 

The  appraisers  having  fully  discharged  their  duties  as  pre- 
scribed by  the  order  of  the  Court,  will  make  a  return  of  the 
same."  The  Court  should  then  place  an  entry  on  its  journal, 
ordering  the  bond  to  be  given  as  provided  in  the  following 
section.      The  entry  may  be  in  the  following  form: 

( Title. ) 

This  day  came  A.  B.,  guardian  of  C.  D.,  and  filed  herein  a  report  of  the 
appraisement  of  the  property  in  the  petition  described,  and  the  same  was 
submitted  to  the  Court.  Whereupon  the  Court  finds  that  the  said  appraise- 
ment is  regular  and  correct  and  made  in  accordance  with  law  and  the  former 
orders  of  this  Court,  and  the  same  is  herein  confirmed. 

It  is  further  ordered  by  the  Court  that  said  A.  B.  giA^e  an  additional  bond 

in  the  sum  of dollars,  conditioned  and  sureties  thereon  as 

provided  bj'  law. 

§  1422.     Guardian  to  execute  additional  bond  before  sale. 

"Upon  filing  the  appraisement  of  such  real  estate,  signed  by 
the  appraisers,  the  court  shall  require  such  guardian  to  execute 
a  bond,  with  sufficient  freehold  sureties,  at  least  two  in  number, 
payable  to  the  state  in  double  the  appraised  value  of  such  real 
estate,  conditioned  for  the  faithful  discharge  of  his  duties  and 
the  payment  of  and  accounting  for,  all  moneys  arising  from 
such  sale  according  to  law,  which  bond  shall  he  additional  to 
that  given  by  the  guardian  at  the  time  of  his  appointment.  No 
court  shall  tvaive  the  giving  of  such  additional  bond,  nor  have 
jurisdiction  to  order  the  sale  of  such  real  estate  until  it  is 
given."     [R.  S.  §6285.]" 

§  1423.     Form  of  guardian's  bond 

IN  PROCEEDINGS  TO  SELL  REAL  ESTATE. 

Knov-  all  Men  by  these  Presents: 

That  we ,   of  the   county  of and 

the  State  of  Ohio,  arc  held  and  firmly  bound  unto  said  State  of  Ohio,  in 

the  just  sum  of dollars,  for  the  payment  whereof,  well  and 

truly  to  be  made,  we  bind  ourselves  and  each  of  us,  our  heirs,  executors 
and  administrators,  and  each  of  them,  firmly  by  these  presents. 

Signed  by  us,  and  dated  at ,  this day  of 

,    190... 

The  condition  of  the  above  obligation  is  such,  that  whereas,  on  the 

day  of ,  190.  .,   as  guardian  of 

•  •_ ,  filed  a  petition  in  the  Probate  Court  of  said  county  against 

said  ward for  the  sale  of  the  real  estate  of  said  ward 

described   in   said   petition. 

And  whereas,  by  a  decree  of  said  Court  made  in  said  cause  on  the 

day  of J  190.  .,  it  was  considered  by  said  Court  that  said 

*^  §  10950  G.  C.  See  previous  section. 


1275  BOND SURETIES  §  1424 

real  estate  ought  to  be  sold  as  prayed  for  in  said  petition,  and  the  same 

appointed ,    and ,   three 

freeholders  of  said  county,  and  not  of  kin  to  the  petitioner,  to  appraise  said 
real  estate  according  to  law. 

And    whereas,    afterward,    to-wit :     on    the day    of , 

190..,  said  appraisers  filed  in  said  Court  their  appraisement  of  said  real 
estate  in  writing,  signed  by  them,  from  which  it  appears  that  they  ap- 
praised the  same  at  the  sum  of dollars. 

And  whereas,  said  Court  upon  said  appraisement  being  filed  as  afore- 
said, made  an  order  requiring  said ,  as  guardian  as  afore- 
said, to  execute  a  bond  in  the  sum  of dollars,  with  suffi- 
cient  freehold   securities   payable   to   the   State   of   Ohio,   and   conditioned 

according   to   law.     Now   if   the    said as   guardian   as 

aforesaid,    shall   well  and  faithfully  discharge duties 

as  such  guardian,  and  well  and  faithfully  pay  over  to  the  proper  per- 
son or  persons,  and  account  for  all  money  arising  from  the  sa,le  of 
said  real  estate  according  to  law,  then  these  presents  to  be  void,  otherwise 
to  be  and  remain  in  full  force  and  virtue  in  law. 

Signed  and  delivered  in  presence  of 


§  1424.     Requirement  of  bond.     Sureties,  etc. 

That  part  of  see.  10950,  G.  C,  which  is  in  italics,  is  an  addi- 
tion to  the  statute  as  it  formerly  existed.  Under  this  former 
statute,  it  was  held,  that  an  order  of  the  Probate  Court  for  the 
sale  by  a  guardian  of  the  real  estate  of  his  ward  w^here  the  bond 
is  not  given,  although  it  may  be  erroneous,  is  not  void.*'^*  That 
is,  that  it  cannot  be  attacked  in  a  collateral  proceeding.  This 
decision  was  founded  on  a  previous  one,*®  but  whatever  the 
law  may  have  been  under  the  former  statute  there  can  be  no 
doubt  but  what,  under  the  present  statute,  the  fact  of  giving 
such  additional  bond  is  jurisdictional,  and  without  such  bond 
being  given  the  Court  has  no  riglit  or  power  to  grant  an  order 
of  sale.  The  matter  as  to  the  liabilities  of  the  sureties  on  the 
various  bonds  has  given  rise  to  considerable  discussion,  and 
various  decisions  by  our  Supreme  Court.  This  matter  was  dis- 
cussed in  previous  chapters  when  considering  the  subject  in  re. 
lation  to  executors  and  administrators  as  well  as  guardians.*^ 

^  1425.  Order  of  sale  of  real  estate.  Private  sale  when. 
Laying  out  in  town  lots.     ''AVhen  such  bond  is  filed,  and  ap- 

■t'*  Arrowsmith  vs.  Harmoning,  42  ^s  IMauarr   vs.    Parrish,    26    0.    S. 

0.  S.  254;  Arrowsmith  vs.  Gleason,     636. 
120  U.  S.  86.  49  See   §§250,  251,    1353. 


§  1426  guardian's  sale  of  real  estate  1276 

proved  by  the  court,  it  shall  order  the  saV  of  sneh  r^al  estate, 
at  mietion.  for  not  less  than  two-thirds  of  the  appraised  value 
thereof,  providing  in  the  order  for  reasonable  notice  and  the 
place  of  sueli  sale  in  the  county  in  which  the  property  lies,  and 
the  credit  to  be  given  for  payment  of  the  purchase  money.  The 
deferred  payments  must  be  secured  by  a  mortgage  executed  by 
the  purchaser  on  the  real  estate  sold,  and  bear  interest  at  the 
legal  rate  per  annum  from  the  day  of  sale,  payable  annually. 
But,  if  it  is  made  to  appear  to  such  court  that  it  will  be  more 
for  the  interest  of  the  Avard  to  sell  such  real  estate  at  private 
sale,  it  may  authorize  the  guardian  so  to  sell  it,  either  in  whole 
or  in  parcels,  and  on  such  terms  of  payment  as  the  court  pre- 
scribes. In  no  case  shall  such  real  estate  be  sold  at  private  sale 
for  less  than  its  appraised  value.  If  the  petition  includes  an 
application  for  laying  out  the  land  to  be  sold,  or  part  thereof, 
into  town  lots,  and  the  court  approves  the  survey  and  plat  made 
for  that  purpose,  it  also  shall  authorize  the  guardian,  on  behalf 
of  his  ward,  to  sign,  seal,  and  acknoAvledge  the  plat  in  that 
behalf  for  record  according  to  law.     [R.  S.  §  6286.]^° 


§  1426.     Entry  ordering  sale. 

It  will  be  observed  that  the  above  section  gives  to  the  Probate 
Court,  the  power  of  ordering  either  a  public  or  a  private  sale. 
Providing  only  by  statute  that  the  public  sale  must  be  given 
on  reasonable  notice,  and  the  deferred  payments  must  be  se- 
cured by  mortgage,  and  if  made  at  private  sale,  it  cannot  be 
made  for  less  than  the  appraised  value.  There  is  no  limitation 
to  the  price  for  which  it  may  be  sold  at  public  auction,  "except 
that  it  must  bring  two-thirds  of  appraised  value."  It  would 
be  well  in  this  respect  to  follow  the  law  as  applied  to  executors 
and  administrators.^^ 

The  entry  may  be  somewhat  in  the  following  form : 

(Title.) 
This  day  came  A.  B.,  guardian  of  C.  D.,  and  filed  his  additional  bond 

herein    in   the    sum    of    dollars,    with    E.    F.    and    G.    H.    as 

sureties  thereon;  and  it  appearing  to  the  Court  that  said  bond  is  sufficient 
in  law  and  in  conformity  to  the  former  orders  of  this  Court,  the  same  is 
approved  and  confirmed. 

50  §109.51  G.  C,  ,  51  §877  et  seq. 


1277  PUBLIC  AND  PRIVATE  §  1427 

It  is  therefore  ordered  by  the  Court  that  the  petitioner  proceed  to  sell 
the  lands  in  the  petition  described  at  public  sale  at  not  less  than  two- 
thirds  of  the  appraised  value.     That  said  petitioner  shall  give  notice 

weeks  or  days,  of  the  time  and  place  of  sale  prior  thereto,  by  advertisement 
in  some  newspaper  of  general  circulation  in county;  (be- 
ing the  county  in  which  the  land  is  situate),  and  that  he  give  notice  thereof 
by  bills  posted  up  in  public  places  that  said  sale  shall  be  at  public  auction, 
at  the  door  of  the  Court  House  of county  (or  on  the  prem- 
ises, etc.).  That  said  sale  shall  be  for  one-third  cash  in  hand,  and  one- 
third  in  one,  and  one-third  in  two  years  from  the  day  of  sale  (or  such 
other  terms  as  the  Court  may  think  proper).  The  deferred  payments  to 
be  secured  by  mortgage  and  executed  by  the  purchaser  to  the  said  A.  B., 
guardian,  on  the  premises  sold  and  to  bear  interest  at  the  rate  of  six  per 
cent,  per  annum  from  the  day  of  sale. 

If  an  auctioneer  be  employed,  it  would  be  well  to  make  a  note 
in  the  journal  entry,  and  such  other  matters  as  the  guardian 
may  desire.  It  will  be  observed  that  the  statute  allows  the 
guardian  to  acknowledge  a  plat  o£  lots  in  a  sub-division  in  a 
town,  etc.  If  it  is  desired  to  make  an  order  at  private  sale  after 
having  recited  so  much  as  is  included  in  the  above  entry  for  a 
public  sale,  the  following  journal  entry  might  be  made  in  tlie 
former  entry : 

It  is  therefore  ordered  that  the  petitioner  sell  the  lands  in  the  petition 
described  and,  it  being  made  to  appear  to  the  court  that  it  will  be  more 
to  the  interest  of  the  ward  to  sell  such  property  at  private  sale  it  is 
ordered  that  same  be  sold  at  private  sale  for  not  less  than  the  appraised 
value  thereof.     (Then  make  the  entry  to  suit  the  order  as  to  terms,  etc.) 

§  1427.     Public  sale. 

The  statute  does  not  contain  any  direct  instiniction  as  to  the 
manner  in  which  a  public  sale  of  the  lands  should  be  conducted 
and  as  to  what  person  may  become  a  bidder.  No  better  rule  to 
guide  the  guardian  in  such  sale  could  be  adopted  than  that 
which  is  applied  to  sales  made  by  executors  and  administrators ; 
and  as  this  matter  has  been  fully  heretofore  discussed  in  this 
volume,  reference  is  made  to  such  former  discussion.^^ 

§  1428.     Private  sale. 

The  only  limitation  placed  upon  a  private  sale  is  that  it  be 
not  less  than  the  appraised  value.  It  should  be  borne  in  mind 
that  no  private  sale  can  be  made  unless  there  is  an  affidavit 
accompanying  the  return  that  the  sale  has  been  made  for  the 
highest  price  and  after  diligent  endeavor,  etc.^^ 

52  §877  et  seq.  53  §  11213  G.  C.    (§882). 


§1429  guardian's  sale  of  real  estate  1278 

blatters  relating  to  private  sales  have  likewise  been  discussed 
in  a  previous  chapter."^ 

§  1429.  Report  of  sale,  confirmation  and  deed.  ■ '  Upon  the 
return  of  such  order  of  sale,  such  guardian  shall  make  report 
of  the  sale  made  bj'^  him;  whereupon,  on  being  satisfied  that  it 
was  fairly  and  legally  made,  the  court  shall  confirm  it  and  order 
the  petitioner  to  execute  a  deed  of  conveyance  for  the  real 
estate  so  sold,  upon  the  purchaser  securing  the  deferred  pay- 
ments of  the  purchase  money  in  the  manner  prescribed  in  the 
next  preceding  section."     [R.  S.  §  6287.]" 

§  1430.     Form  of  guardian's  deed. 

Know  all  Men  hy  these  Presents: 

That,  whereas,  on  the day  of 190 ... 

was  duly  appointed  as  guardian  of by  the  Probata  Court  of 

county,   Ohio,  and  afterwards,  to-wit :    on  the day   of 

190. .,  said  guardian  filed,  .h.  .  .  .certain  petition  and  then 

and  thereby  commenced  an  action  in  the  Probate  Court  of 

county,  Ohio,  against and  numbered  on  the  docket  of 

said  Court  as  Case  No. ,  praying,  among  other  things,  for  an  order 

of  sale  of  certain  real  estate  therein  mentioned  and  hereinafter  den-cribed. 

And,  whereas,  such  proceedings  were  had  in  said  action,  that  on  the 

day  of 190. .,  said  Court  finding  the  allegations  oT  the  pe- 
tition true,  and  that  said  real  estate  ought  to  be  sold  as  prayed  for  in  said 

petition,  ordered  that  the  same  be  appraised  and  on  the day  of 

190 .. ,  said  Court  further  ordered  that  said 

proceed  according  to  law  to  sell  the  said  real  estate  at  public  sale  for  not 
less  than  two-thirds  the  appraised  value  thereof. 

And  on  the  same  day,  in  pursuance  of  said  order  and  judgment,  an  order 
of   sale    with    said   real    estate   therein   described,   was    issued   out   of    said 

Court,  under  the  seal  thereof,  to  the  said as 

as  aforesaid,  directed,  commanding,  .h.  .  .  .to  execute  the  said  order,  and  of 

•■''*  §  877   et  seq.  sons  loaning  the  monev.    INIcFarland 

5=  §  1095-2  G.  C.  vs.   Harper,  33  Bull.   87. 

In  the  previous  chapter  relating  to  Where,  in  a  guardian's  proceeding 
sale  by  executors  and  administra-  to  sell,  a  mistake  occurs  in  his  re- 
tors,  the  matter  of  return  of  sale  turn  of  sale  by  leaving  out  the  name 
and  confirmation  has  been  gone  into,  of  the  subdivision,  the  description 
to  a  considerable  extent,  and  refer-  being  correct  in  all  prior  parts  of 
ence  is  made  to  that  chapter  for  dis-  the  proceedings,  it  is  sufficient  to 
cussion  for  these  various  matters.  divest  the  wards  of  their  title  and 
As  to  entry  confirming  sale,  etc.,  vest  in  the  buyer,  and  the  mistake 
see  §  895.  can  be  reformed  by  an  independent 

Where  a  guardian  withheld  a  deed  suit.    Cook  vs.  Prosser,  7  C.  D.  610; 

from  record  until  a  third  party  who  14  C.   C.    137. 

made   a  loan  to  the   purchaser   put  The  court  in  which  the  action  is 

his^  mortgage  on  record,'  the  guard-  pending  mav  determine  all  the  equi- 

lan  3  mortgage  was  held  to  be  sub-  ties    and    priorities    of    lienholders, 

sequent    in    priority    to    third    per-  etc.     See  §  814. 


1279  FOEM  OF  DEED  §  1430 

the  same,  togethei-  with.  .h.  .  .  .proceedings  thereon,  to  make  due  return; 

And,  whereas,  said having  caused  said  premises  to  be  ap- 
praised, and  th3  report  of  such  appraisement  to  be  filed  in  said  Probate 

Court,    and    having   on    the day    of 190.  .,    returned 

said  order  of  sale  to  said  Court  as  commanded,  with.  .h.  ..  .proceedings 
thereon,  stating  in  substance  that  in  obedience  to  said  order ..  he ....  duly 

advertised  the  real  estate  therein  described  for  sale  for consecutive 

weeks  before  the  day  of  sale,  in  the a  newspaper  primed 

and  of  general   circulation   in  said county,  Ohio,   stating  in 

said  notice  the  time,  place,  and  terms  of  said  sale,  and  on  the day  of 

190, .  . ,     .  .  he .  .  .  .  attended ....  the and 

at  the  hour  of o'clock. .  .  .M., .  .he.  .  .  .offered  said  real  estate  (here- 
inafter described)   for  sale,  when bid  to  pay  for  the  same  the 

sum  of dollars,  which  being  the  highest  and  best  bid  that 

was  offered,  and  being two-thirds  the  appraised  value  of  said 

premises,  .he. .  .  .then  and  there   sold   the  same  to   said 

for  that  sum. 

And   whereas,   on   the day   of 190. .,   the   said   Court 

having  examined  the  proceeding  of  the  said aforesaid,  under 

said  order  of  sale,  and  it  appearing  to  the  Court  that  said  sale  was  in  all 
respects  legally  made,  ordered  that  the  same  be  approved  and  confirmed, 

and  that  said should  execute  and   deliver  a  proper   deed 

to  the  purchaser,  of  the  real  estate  so  sold. 

All  of  which  will  more  fully  appear  by  the  records  of  said  Court,  to 
which  reference  is  here  made. 

Now,    therefore   I,    the    said ,    guardian    of 

aforesaid,  by  virtue  of  said  judgment,  order  of  sale,  sale  and  confirmation 
and  of  the  statute  in  such  cases  made  and  provided,  and  of  the  powers 

vested   in and  for   and   in  consideration   of   the  premises,   and  the 

sum  of dollars    ($ )    paid,  or  secured  to  be  paid  to 

by  said the  receipt  whereof  is  hereby  acknowledged, 

do  hereby  grant,  bargain,  sell  and  convey  to  the  said ,  .  .  h . . . 

heirs  and  assigns  forever,  the  following  real  estate,  situate  in  tlie  county  of 

in  the  State  of and  in  the 

and  bounded  and  described  as  follows: 

To  have  and  to  hold  said  premises  with  all  the  privileges  and  appurten- 
ances thereto  belonging,  to  the  said ,  .  .h.  .  .  .heirs  and  as- 
signs forever,  as  fully  and  completely  as  I,  the  said ,  as 

such  guardian  by  virtue  of  said  judgment,  order  of  sale,  sale  and  confirma- 
tion, and  of  the  statute  made  and  provided  for  such  cases,  might  or  should 
sell  and  convey  the  same. 

In  witness  whereof,  the  said as  such ha.  . . 

hereunto  set .  .  h .  .  .  .  hand .  . ,  this day  of A.  D.  190 . . . 

Signed  and  acknowledged  in  pres- 
ence of 


The  State  of  Ohio, County,  ss. 

Be  it  re.nembered,  that  on  this day  of 190 .. ,  before 

me,  the  subscriber,  a in  and  for  said  county,  personally 

came  the  above  named as of 

the  grantor .  .  in  the  foregoing  deed,  and  acknowledged  the  signing  of  the 

same  to  be .  .h . .  .  .voluntary  act  and  deed  as  such 

for  the  uses  and  purposes  therein  mentioned. 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name  and  affixed 
my  official  seal  on  the  day  and  year  last  aforesaid. 


§  1431  GUARDIAN^'s  SALE  OF  REAL  ESTATE  1280 

§  1431.     Appeal  and  error. 

It  is  a  well  settled  principle  of  law  that  no  right  of  appeal 
exists  unless  given  hj  statute.  There  is  no  express  statutory 
provision  giving  this  right  to  actions  by  guardians  to  sell  the 
real  estate  of  their  wards.  The  general  section  providing  for 
appeals^"  seems  to  limit  the  right  of  appeal  in  proceedings  for 
the  sale  of  real  estate  for  the  payment  of  debts.  This  evidently 
applies  to  actions  brought  by  administrators  or  executors. 
While  a  guardian  may  sell  for  the  purpose  of  paying  debts, 
yet  a  sale  may  be  had  for  a  number  of  other  reasons.  It  is 
possible  that  this  section  gives  the  right  to  appeal,  but  it  is  very 
questionable.  It  is  also  a  general  proposition  of  law  that  a  re- 
viewing Court  will  not  entertain  proceedings  in  error  where 
the  matter  sought  to  be  reviewed  was  one  which  rested  in  the 
discretion  of  the  Court,  making  the  order.  It  is  very  doubtful 
if  proceedings  in  error  will  lie  from  an  order  of  the  Court  in 
reference  to  the  sale  of  an  infant's  real  estate  on  application 
of  his  guardian.  Yet  in  Ewing  v.  Hollister"  it  was  held, 
before  the  law  was  passed  making  the  action  a  civil  action,  that 
a  proceedings  by  an  administrator  or  executor  to  sell  land  might 
be  reviewed  in  error.  It  would  seem  at  least  so  far  as  the  de- 
fendants are  concerned  that  the  order  of  the  Court  is  upon  a 
substantial  right  and  a  proceedings  in  error  ought  to  lie. 

56  §  11206  G.  C.  (§  39.)  57  7  0.  pt.  2,  138. 


1281  LEASE  OF  WARD^S  KEAL  ESTATE  §  1432 


CHAPTER  LXXYII. 

LEASE  OF  "WARD'S  REAL  ESTATE. 

§  1432  Power  to  lease.  §  1439  Appointment    of    appraisers. 

§  1433  Power    to    lease    for    fifteen       „        ^  ^^^^^^J  ^*^- 

§  1440  Order   to    view,    etc. 
J^^^^-  §  1441  Hearing   and   orders   thereon. 

§  1434  Petition  for  lease.  §  1442  Order   authorizing   lease,  etc. 

§  1435  Application  for   lease,  etc.  §  1443  How    improvements    may    be 

§  1436  Form    of    petition    to    lease      „,_        made. 

,    .  ,       ^   ,  §  1444  Eeport  of  guardian,  etc. 

and   improve   real   estate.  g  j^^^  ^yj^^^^     ^^^^^     extending     be- 

§  1437  Notice.     Entry,  etc.  yond    minority    determines. 

§  1438  Who   may   unite   in   applica-  §  1445a  Lien  of  tenant  for  improve- 

tion  and  proceedings  there  ments. 

on. 

§  1432.     Power  to  lease.  =;s 

It  is  the  duty  of  the  guardian  to  keep  tlie  ward's  real  estate 
in  such  a  condition  that  it  will  yield  a  reasonable  income,  and 
in  order  that  this  object  may  be  accomplished,  he  is  empowered 
to  lease  the  same.  In  making  such  a  lease,  he  is  responsible  for 
a  proper  exercise  of  prudence  and  diligence,  the  same  as  in 
the  discharge  of  any  other  duty  pertaining  to  the  guardianship. 
He  has  no  right  to  make  a  lease  which  will  permanently  injure 
or  in  any  way  injuriously  affect  the  real  estate.  That  is,  un- 
less specially  permitted  by  statute,  and  by  order  of  the  Court, 
he  has  no  right  to  allow  growing  timber  to  be  cut,  where  the 
same  is  not  necessary  in  a  proper  use  of  the  real  estate,  nor 
has  he  a  right  to  allow  minerals,  etc.,  to  be  taken  away. 
Neither  has  he  a  right  to  lease  the  real  estate  for  an  illegal  pur- 
pose.^ 

The  guardian  should  exercise  care  in  leasing  the  real  estate 
and  have  the  property  used  for  a  good  purpose  and  with  the 

1  Woerncr  on  Gr.  202;   Sch.  Dom.  *Cited,  Tn  re  Connell,  56  Bull,  143. 

Eel.  350. 


§]433  LEASE   OF    ward's   REAL   ESTATE  1282 

least  wear  and  tear  that  a  proper  use  will  require.  By  a  statu- 
tory provision  the  guardian  is  not  permitted  in  any  case  unless 
under  some  specific  statute,  to  lease  real  estate  for  more  than 
three  years,  as  will  be  seen  from  the  following: 

''A  guardian  of  the  person  and  estate,  or  of  the  estate  only, 
of  a  minor  may  lease  the  real  estate  of  his  ward  for  a  term  not 
exceeding  three  vears  and  not  extending  beyond  the  minority." 
[R.  S.  §6295.]^  ■ 

^  1433.     Power  to  lease  for  fifteen  years,  etc. 

If  the  real  estate  is  in  such  a  condition  that  it  needs  to  be 
improved  in  order  to  increase  its  rents  and  that  such  increase 
of  rents  is  needed  for  the  education  or  support  of  the  ward  or 
to  pay  any  of  his  debts,  or  any  liens  or  claims  against  the 
estate,  then  a  lease  may  be  made,  providing  for  such  improve- 
ments and  for  a  period  not  beyond  fifteen  years,  or  beyond  the 
minority  of  the  ward.    The  statute  relating  thereto  is  as  follows : 

"Such  guardian  also  may  lease  the  real  estate  of  his  ward 
for  a  term  not  exceeding  fifteen  years,  although  it  extends 
beyond  the  minority,  if,  on  his  application,  the  court  appoint- 
ing him,  finds  that  such  lease  will  be  to  the  advantage  of  the 
ward,  and  is  necessary  to  secure  the  improvement  of  the 
real  estate,  and  to  increase  its  rents,  and  that  such  increase  is 
needed  for  the  support  and  education  of  his  ward  or  to  pay 
his  liabilities  or  any  liens  on,  or  claims  against  his  estate,  and 
that  by  such  lease  a  sale  of  real  estate  for  these  purposes  may 
be  prevented."     [R.  S.  §  6296.]=^ 

§  1434.  Petition  for  lease.  "Such  application  shall  be  by 
petition,  which  shall  contain  a  description  of  the  real  estate 
and  a  particular  statement  of  its  value  and  the  value  of  all 
other  property  or  effects  of  the  ward,  and  his  income  and  ex- 
penses, a  detailed  statement  of  the  improvements  proposed  and 
the  liabilities  or  expense  of  support  and  education  to  be  pro- 

2  §  10961  G.  C.  3  §  10962  G.  C. 

See  §  1463,  Mortgage,  etc.  Covenant  at  end  of  lease  for  op- 

§  1534,  Gdn.  of  drunkfj,rds.  tion  of  three  years'  renewal,  is  void. 

If  a  guardian  lease  real  estate  for  Globe  Soap  Co.  vs.  Railway,  6  C.  C. 

saloon  purposes,  etc.,  he  will  be  lia-  (N.S.)    496;    27   O.   C.   C.    759;    af- 

ble    for    fine,    etc.       §§  6209,    6210,  firmed  76  0.  S.  577. 
6211   G.  C. 


1283  APPLICATION  §  1435 

yided  for,  the  rent  of  the  real  estate  as  it  is,  and  the  probable 
increase  of  rent  if  the  improvements  are  made,  the  means  in- 
tended to  be  used  in  making  the  improvements  and  the  proposed 
terms  and  time  of  the  lease;  and  such  other  facts  as  will  be 
pertinent  to  the  question  whether  the  authority  for  making  the 
lease  should  be  granted."     [R.  S.  §  6297.]* 

§  1435.     Application  for  lease,   etc. 

Bj  the  previous  section  it  will  be  seen  that  several  matters 
must  be  stated  in  the  application.  First,  a  description  of  the 
real  estate.  Second,  its  value.  Third,  the  value  of  all  other 
property  of  the  ward.  Fourth,  his  income  and  expenses. 
Fifth,  a.  detailed  statement  of  the  proposed  improvements. 
Sixth,  the  debts  of  the  ward,  or  expenses  of  support  and  edu- 
tion  which  is  to  be  provided  for.  Seventh,  the  rent  of  the  real 
estate  as  it  is.  Eighth,  the  probable  increase  of  rent  if  the  im- 
provements are  made.  Ninth,  the  means  intended  to  be  used 
in  making  the  improvements.  Tenth,  the  proposed  terms  and 
time  of  the  lease ;  and  lastly,  all  other  facts  as  are  pertinent  to 
the  question  whether  the  authority  for  making  the  lease  should 
be  granted.  It  should  further  state,  that  the  person  making 
the  application  is  the  acting  guardian  of  the  ward,  and  that 
he  was  appointed  guardian  by  the  Probate  Court  of  the  county 
in  which  the  application  is  made.  The  age  of  the  ward  ought 
also  to  be  stated.  The  application  to  lease  is  in  its  nature  and 
character,  very  much  like  the  application  to  sell,  and  what  was 
said  in  the  previous  chapter  in  relation  thereto  will  be  appli- 
cable generally  to  this  chapter.  It  will  be  obser^^ed  that  a 
lease  for  fifteen  years  is  not  to  be  mxade  unless  necessary  under 
the  provisions  of  sec.  10962  G.  C.^ 

§  1436.     Form  of  petition  to  lease  and  improve  real  estate. 

(Title.) 
A.  B.,  plaintiff,  represents  that  he  is    the    duly    appointed,    qualified    and 

acting  guardian  of   of  the    age    of    :    that    on    the 

day  of  he  was  appointed  as  such  guardian  by  the  Pro- 
bate C'our{  of county.    That    his    said    ward     

4  §  1096.3  G.  C.  determine  matters  affecting  the  title, 

5  §  143.3.  etc. 

Tlie  Probate  Court  can  not  assign  See  Globe  Soap  Co.  vs.  Louisville 

dower,  in  a  proceeding  to  lease — or       R,  R.  Co.,  6  O.  C.  C.    (N.S.)    496; 

27  0.  C.  C.  7.59;  76  O.  S.  359. 


§  1437  LEASE  OF  ward's  REAL  ESTATE  1284 

is  the  owner  in  fee  simple  of  the  following  described  real  estate  (here  de- 
scribe) ;  that  said  real  estate  is  of  the  reasonable  value  of 

dollars;  that  the  value  of  all  other  property  and  effects  of  his  said  ward, 

amount  to dollars;  that  the  present  income  of  his  said  ward 

is dollars,  and  his  ordinary  and  usual  expenses  amount  to 

dollars ;     ( if   there   be   any    liens   on   the   real   estate,    here 

state)  that  the  following  is  a  detail  statement  of  the  proposed  improve- 
ments to  be  made  on  said  real  estate.  (Here  set  out  in  detail  what  im- 
provements to  be  made  on  said  real  estate.)      That  the  said  ward  is  now 

indebted   in  the  sum   of dollars;    that dollars 

will  be  necessary  for  the  support  and  education  of  said  ward;   that  said 

real  estate  would  now  rent  for dollars ;  that  the  increase  of 

rent   if   improvements   are   made,   will   be dollars;    that  the 

following  means  are  intended  to  be  used  in  making  the  proposed  improve- 
ments (here  insert  how  the  money  is  to  be  raised  with  which  the  improve- 
ments are  to  be  made  and  matter  relating  thereto)  ;  that  it  is  proposed  to 

lease  said  premises  for years  upon  the  following  terms    (here  insert 

terms  of  proposed  lease). 

Said  plaintiff,  guardian  further  represents  that  it  is  necessary  to  make 
such  lease  to  secure  the  improvements  of  the  real  estate  and  to  increase  its 
rents  and  profits  which  are  needed  for  the  support  and  education  of  his  ward. 
Wherefore  he  asks  that  the  said  ward  and may  be  made  par- 
ties defendant  to  this  application  and  be  notified  of  the  pendency  and  the 
prayer  hereof  according  to  law  and  that  upon  final  hearing,  he  may  be 
authorized  to  make  such  lease  upon  such  terms  and  such  manner  as  the 
Court  may  think  proper. 


Sworn   to  before   me   and   subscribed   in  my   presence   this day  of 

A.  D.   190... 


§  1437.     Notice.     Entry,  etc. 

From  the  provisions  of  the  next  section,  it  will  be  seen  that 
the  law  applicable  to  the  sale  of  the  lands  of  a  minor  are  made 
applicable  here,  in  this,  that  the  application  may  be  made  by 
two  or  more  guardians  or  one  guardian  on  behalf  of  two  or 
more  wards ;  and  that  the  notice  shall  be  given  the  same  as  in 
the  sale  of  real  estate.^  ^ 

When  the  petition  is  filed,  the  Court  should  make  an  entry, 
fixing  the  method  of  service  and  the  time  of  hearing.  The 
same  persons  must  be  made  defendants  as  in  the  sale  of  real 
estate.     The  following  will  serve  as  a  general  form  of  entry : 

{Title.) 

This  day  came  A.  B.,  guardian  of  C.  D.,  and  filed  in  this  Court  his  petition, 
duly  verified,  praying  for  authority  to  lease  and  improve  the  real  estate 
therein  described  belonging  to  said  ward. 

It  is  therefore  ordered  that  the  time  of  hearing  of  said  petition  be  on  the 

day  of ,  at o'clock.     It  is  further  ordered 

that  said  guardian  cause  notice  thereof  and  of  the  time  of  hearing  of  said 

«§  10947    G.    C.     (§§1413,    1414, 
1415). 


1285  APPOINTMENT    OF    APPRAISEK3  §  1438 

petition   to  be  given   to and ,   defendants, 

in  writing,  to  be  served  upon  them  personally  at  least days  before 

the  time  set  for  hearing  of  said  application;   and  if  the  same  cannot  be 
served  personally,  then  by  leaving  a  copy  at  their  usual  place  of  residence^ 

§  1438.  Who  may  unite  in  application  and  proceedings 
thereon.  "In  such  application  the  guardian  may  act  for  two 
or  more  wards,  and  two  or  more  guardians  of  different  wards 
may  unite,  when  all  the  wards  are  jointly  or  in  common  inter- 
ested in  the  real  estate.  The  same  rules  shall  apply  as  to  par- 
ties and  notice  as  in  applications  for  the  sale  of  real  estate. 
On  the  hearing,  the  court  shall  appoint  three  disinterested  free- 
holders of  the  county  in  which  the  real  estate  is  situated,  who 
are  not  of  kin  to  the  petitioner,  to  view  the  premises  and  report 
under  oath  their  opinion  of  the  probable  cost  of  the  improve- 
ments proposed,  whether  the  improvements  and  the  proposed 
lease  would  be  for  the  best  interest  of  the  ward  or  wards,  and 
if  so,  upon  what  terms  the  lease  should  be  made.  The  report 
must  be  returned  on  or  before  a  day  named  in  the  order  for  the 
final  hearing  of  the  case."     [R.  S.  §  6298. ]» 

§  1439.     Appointment  of  appraisers.     Entry,  etc. 

At  the  time  set  for  hearing,  the  Court,  being  satisfied  that 
the  petition  makes  a  p^ima  facie  cause  for  action,  and  that 
all  parties  have  been  notified  as  required  by  law,  and  the  former 
orders  of  the  Court,  should  make  an  order  for  appraisers.^  The 
entry  may  be  in  the  following  form : 

(Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  papers,  evidence  and 
testimony,  and  was  submitted  to  the  Court.  Whereupon  after  due  consid- 
eration, the  Court  finds  that  all  parties  defendant  herein  have  been  duly 
and  legally  notified  of  the  pendency  of  this  action,  and  the  time  of  hearing 
thereof  as  required  by  law  and  the  former  orders  of  this  Court;  and  that 
the  statements  and  allegations  of  said  petition  are  true  and  that  it  is  neces- 
sary to  lease  and  improve  the  real  estate  of  the  plaintiiT  as  in  said  petition 
set  forth. 

It  is  therefore  ordered  that  E.  F.,  G.  H.  and  I.  J.,  three  disinterested 
freeholders  of  the  county  in  which  the  real  e'state  is  situate  and  who  are 
not  of  kin  to  the  petitioner,  be,  and  they  are  hereby  appointed  to  view  the 
premises  under  oath,  and  report  their  opinion  of  the  probable  cost  of  the 
improvements  proposed,  whether  the  same  and  the  proposed  lease  will  be  for 
the  best  interest  of  the  ward,  and  if  so,  upon  what  terms  the  lease  should 
be  made;  and  it  is  ordered  that  they  make  due  return  of  their  proceedings 

in  writing  to  this  Court  on  the day  of at 

o'clock,  which  time  is  set  for  the  final  hearing  of  this  cause.io 

1  As  to  form  of  notice,  see  §  1416,  s  §  10964  G.  C. 

which  can  be  easily  changed  to  suit  »  §§  1420,  1421. 

this  kind   of  a  proceeding.  ^o  See  §  14G8. 


§  1440  LEASE   OF    ward's   REAL   ESTATE  1286 

§  1440.     Order  to  view,  etc. 

After  the  Court  has  made  the  entry  on  its  journal  it  is  a 
general  practice  to  issue  a  formal  order  to  the  guardian  to  have 
the  appraisement  made.     This  may  be  in  the  following  form : 

{Title.) 

Probate  Court, County,  Ohio. 

To ,  Guardian  of 

You  are  hereby  notified  that  in  the  case  in  which  you,  as  guardian,  are 

plaintiff,  and  your  said  ward ,  and  others  were  defendants,  an 

order  was  this  day  made  that  E.  F.,  G.  H.  and  I.  J.,  three  disinterested 
freehoklers  of  the  county  in  which  the  real  estate  is  situate  and  who  are 
not  of  kin  to  the  petitioner,  were  appointed  to  view  the  premises  in  the 
petition  described,  and  report  under  oath  their  opinion  of  the  probable  cost 
of  the  proposed  improvements,  and  whether  the  same  would  be  for  the  best 
interest  of  said  ward,  and  if  so  upon  what  terms  the  lease  should  be  made. 

You  will  therefore  notify  said  freeholders  of  the  duty  devolving  upon 
them  and  present  them  with  a  copy  of  your  petition  filed  in  this  case;  and 
as  soon  as  they  have  discharged  their  duties  forthwith,  make  a  report  to 
this  Court. 

Witness  the  seal  and  signature  of  this  Probate  Court,  this day  of 

190... 

,  Probate  Judge. 

The  appraisers  must  have  an  oath  administered  to  them,  which  may  be 
as  follows : 
State  of  Ohio, County. 

We,  the  undersigned  disinterested  freeholders,  being  not  of  kin  to  said 
guardian,  do  make  solemn  oath  that  we  will  truly  and  impartially  perform 
the  duties  devolving  upon  us  in  pursuance  of  the  order  of  the  Probate 
Court   of county,   Ohio. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this dav  of 

190. . . 


These  appraisers  or  freeholders  should  carefully  attend  to 
the  duties  devolving  upon  them  and  should  examine  the  peti- 
tion and  see  that  their  report  covers  the  premises  described. 
They  should  also  fully  inform  themselves  as  to  whether  or  not 
the  best  interest  of  said  ward  will  be  subserved  by  making  the 
proposed  improvements.  In  this  respect  they  act  in  an  ad- 
visory manner  to  the  Court.  The  report  may  be  in  the  fol- 
lowing form : 
{ Title.) 

In  obedience  to  the  order  of  the  Probate  Court  of county, 

we,.. ,   after   first  being   duly   sworn,   viewed   the   premises 

described  in  the  petition,  and  we  respectfully  report  that  in  our  opinion  the 

probable  costs  of  the  proposed  improvements  will  be dollars. 

That  the  same  and  the  proposed  lease  will be  for  the  best  interest 

of  the  ward  and  that  said  lease  should  be  made  upon  the  following  terms. 
(Here  insert  the  terms  of  the  proposed  lease.) 


1287  REPORT  OF  APPRAISERS,  ETC.  §  1441 

§1441.  Hearing-  and  orders  thereon.  "If  the  report  of 
the  freeholders  be  in  favor  of  the  lease,  and  on  the  final  hearing 
the  court  is  of  opinion  that  it  will  be  to  the  advantage  of  the 
ward  or  wards  to  improve  and  lease  the  real  estate,  that  such 
lease  is  necessary  to  secure  the  improvements  and  increase  the 
rents,  that  such  increase  is  needed  for  the  support  and  educa- 
tion of  the  ward  or  wards,  or  to  pay  his  or  their  liabilities  or 
liens  or  other  claims  against  his  or  their  estate  and  that  by  such 
lease  a  sale  of  real  estate  for  any  of  these  purposes  may  be 
prevented,  the  court  shall  make  an  order  authorizing  the  lease 
to  be  made  on  such  terms  and  in  such  manner  as  it  thinks 
proper."      [R.  S.   §6299.]/^ 


§  1442.     Order  authorizing  lease,  etc. 

(Title.) 

This  day  this  cause  came  on  for  final  hearing  in  pursuance  to  the  former 
orders  of  this  Court:  and  the  freeholders  heretofore  appointed  herein 
having  reported  in  favor  of  the  lease,  and  the  Court  being  of  the  opinion 
that  it  will  be  to  tlie  advantage  of  the  ward  to  improve  and  lease  the  real 
estate  in  said  petition  described,  and  that  such  lease  is  necessary  to  secure 
the  improvements  and  increase  the  rents,  and  that  the  same  is  indebted  for 
the  support  and  education  of  the  said  ward  (or  to  pay  his  liabilities  or  lien 
or  other  claims  against  the  estate). 

It  is  therefore  ordered  that  said  guardian  be  and  is  hereby  authorized 
to  make  said  lease  on  the  following  terms:      (Here  insert  terms  of  lease). 

§1443.  How  improvements  may  be  made.  "In  the  lease 
made  in  pursuance  of  such  order,  it  may  be  provided  that  the 
improvements  shall  be  made  by  the  tenant  as  part  of  the  rent, 
or  by  the  guardian,  either  out  of  the  rent  or  other  means  of  the 
ward  or  wards,  as  the  court  directs."     [R.  S.  §  6300.]^^ 


1444.     Report  of  guardian,  etc. 


The  guardian  having  made  the  lease,  should  report  his  pro- 
ceeding to  Court  and  have  the  same  confirmed.  The  following 
may  serve  as  a  report : 

( Title. ) 

In  conformity  to  the  former  order  of  this  Court,  I  beg  leave  to  report 
that  I  have  complied  with  its  order  and  have  made  lease  of  the  real  estate 

to    ,  on  the  terms  following,  to-wit:       (Here   insert  terms  of 

lease.)      I  have  also  improved    said  property  at  a  cost  of   

dollars  in  the  following  manner:      (Here  insert  the  manner  in  which  the 

11  §  109G5   G.  C.  lease    is    made   and    have   the    same 
While  the  statute  does  not  so  re-  confirmed  by  the  Court  and  the  en- 
quire, it  would  be  good  practice  to  try  may  so  provide, 
have  the  guardian  report  when  the  12  §  10966  G.  C. 


§  1445  LEASE  OF  ward's  REAL  ESTATE  1288 

improvements  have  been  made,  and  if  such  improvements  are  to  be  made  hy 
the  tenant  as  a  part  of  the  rent,  so  state.) 

Sign 

It  would  be  proper  after  the  report  was  filed  and  the  same 
was  examined  by  the  Court  for  the  Court  to  make  an  entry 
which  may  be  in  tlie  following  form: 

(Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  report  of  the  guardian, 
plaintiff  in  the  above  proceeding  of  the  lease  of  the  real  estate  in  his  appli- 
cation described;  and  the  terms  of  the  same,  and  also  the  manner  in  which 
the  real  estate  was  improved,  and  costs  of  the  same. 

Whereupon,  after  due  consideration  and  examination  of  the  same  the 
Court  approves  and  confirms  said  lease.  (And  might  be  added  that  the 
costs  of  this  proceeding  be  paid  by  the  guardian.) 

§  1445.    When  lease  extending  beyond  minority  determines. 

"A  lease  made  by  a  guardian  to  extend  beyond  the  minority 
shall  determine  when  the  -ward,  if  there  be  but  one,  arrives  at 
full  age,  or  if  more  than  one,  when  all  of  them  arrive  at  full 
age,  unless  such  ward  or  wards  then  confirm  it.  In  case  of 
the  death  of  the  ward,  if  there  is  but  one,  or  of  all  of  them,  if 
more  than  one,  the  lease  shall  also  determine,  unless  the  legal 
representatives  of  such  ward  or  wards  confirm  it.  If  there  is 
more  than  one  ward,  and  some  but  not  all  die,  the  lease  will 
continue  until  the  survivor  or  survivors  reach  full  age."  [R. 
S.  §6301.1^3 

§  1445a.  Lien  of  tenant  for  improvements.  "When  such 
lease  is  determined  by  reason  of  the  death  or  majority  of  the 
ward  or  wards,  the  tenant  shall  have  a  lien  on  the  premises  for 
any  sum  expended  by  him  in  pursuance  of  the  lease  in  making 
improvements  and  for  which  compensation  has  not  been  made, 
either  by  the  rent  or  otherwise."     [R.  S.  §  6301.]^^* 

"  §  10967  G.  C.  13*  §  10968  G.  C. 


1289  PETROLEUM,  GAS,  ETC.  §  1446 


CHAPTER  LXXVIII. 

POWER  TO  LEASE  REAL  ESTATE  FOR    PETROLEUM,    GAS 
AND  MINING  PURPOSES. 

§  1446  Lease  for  petroleum  or  nat-       §  1452  Power  to  lease  real  estate  for 

ural  gas  purpos.es.  ten   years   for   mining   pur- 

§  1447  Power    to    lease    real    estate  poses. 

for  petroleum  oil  or  natural       §  1453  Petition;  time  for  hearing. 

gas  purposes.  §  1454  Land  to  be  viewed  by  disin- 

§  1448  Petition  tlierefor.  terested  freeholders. 

§  1449  Notice  of  hearing.  §  1455  Probate  Court  to  order  lease. 

§1450  Court     to     prescribe     terms,       §1456  Royalty;   report  of  by  guar- 

etc.  dian ;  bond  to  recover. 

§  1451  Lease  for  mining  purposes.  §  1457  Change  in  terms  of  leasing. 

§  1458  Lands  owned  in  common  by 
minors. 

§  1446.     Lease  for  petroleum  or  natural  gas  purposes. 

This  chapter  will  include  the  sections  of  the  General  Code, 
passed  at  different  times  and  providing  for  two  different 
circumstances  under  which  land  may  be  leased.  The  first 
four  sections  relating  to  when  the  guardian  of  a  minor  or  luna- 
tic, etc.,  may  lease  real  estate  for  the  purpose  of  procuring 
petroleum  oil  or  natural  gas;  and  the  remaining  sections  pro- 
viding when  the  lands  of  a  minor  only,  may  be  leased  for  min- 
ing purposes.  In  reference  to  the  sections  relating  to  leas- 
ing for  petroleum  or  gas  purposes,  it  will  be  observed  that  no 
provision  is  made,  like  in  the  statutes  generally,  for  the  ap- 
pointment of  appraisers  or  persons  to  view  the  premises  and 
report  upon  the  advisability  of  making  the  lease.  While  it 
is  not  required  that  this  be  done,  good  practice  in  this  respect 
would  follow  the  method  of  proceedings  set  forth  in  the  pre- 
vious chapter.  The  petition  should  set  forth  the  matters  re- 
quired by  10977,  G.  C,  (§  1453).  Then  notice  should  be  given 
and  after  notice  is  given,  viewers  appointed,  and  then  a  final 
hearing,  and  the  forms  in  the  preceding  chapter  may  very  easily 


I 


§  1447  LEASE    OF   ward's    REAL   ESTATE  1290 

be  changed  to  suit  a  proceedings   for   the   purpose   of  leasing 
lands  of  an  imbecile,  minor,  etc.,  for  petroleum  or  gas.^ 

§  1447.  Power  to  lease  real  estate  for  petroleum  oil  or  nat- 
ural gas  purposes.  "A  guardian  of  the  person  and  estate,  or 
of  the  estate  only,  of  a  minor,  or  of  a  lunatic,  idiot,  or  imbecile, 
or  an  incompetent  by  reason  of  advanced  age  or  mental  or 
physical  disability  or  infirmity,  .may  lease  the  real  estate  of 
his  ward,  or  of  such  lunatic,  idiot  or  imbecile,  or  an  incompetent 
by  reason  of  advanced  age  or  mental  or  physical  disability  or 
infirmity,  for  petroleum  oil  or  natural  gas  purposes,  or  either, 
or  for  the  removal  of  gravel,  stone  or  other  mineral  substances 
for  such  period  of  time  not  exceeding  ten  years,  as  may  be 
authorized  bv  the  probate  court  appointing  such  guardian." 
[87  V.  162,  §1;  101  V.  95;  109  v.  72.]- 

§1448.  Petition  therefor.  "Before  executing  such  lease, 
the  guardian  shall  file  his  petition  for  authority  to  make  it, 
in  the  probate  court  appointing  him,  which  petition  must  con- 
tain a  description  of  the  real  estate  sought  to  be  so  leased,  a 
detailed  statement  of  the  terms,  time  and  conditions  of  the 
proposed  lease,  and,  as  near  as  may  be,  its  net  annual  value  to 
the  ward."     [87  v.  162,  §2.]=' 

What  to  contain.  ''In  cases  when  it  is  sought  to  lease  the 
real  estate  of  a  lunatic,  idiot  or  imbecile,  or  incompetent  by 
reason  of  advanced  age  or  mental  or  physical  disability  or 
infirmity,  for  such  purposes,  the  guardian  also  shall  set  forth 
in  his  petition  the  number,  names,  ages  and  residences  of  those 
who  have  the  next  estate  of  inheritance  from  the  ward,  all  of 
whom,  as  well  as  the  ward,  shall  be  made  defendants."  [87 
V.  162,  §.3;  109  V.  72.]^' 

§1449.  Notice  of  hearing.  "On  filing  the  petition,  notice 
thereof,  and  its  object  and  purport,  and  of  the  tirae  of  hearing 
of  it  in  such  court,  shall  be  given  the  ward  and  all  other 
defendants,  as  in  proceedings  therein  to  sell  the  real  estate 
of  a  minor."     [87  v.  162,  §  4.]* 

§1450.  Court  to  prescribe  terms,  etc.  "Upon  the  final 
hearing,  if  satisfied  from  the  evidence  that  it  will  be  for  the  best 
interests  of  the  ward,  that  the  prayer  of  the  petition  be  granted, 
the  court  may  prescribe  the  terms,  covenants,  conditions  and 
stipulations  of  the  lease,  either  in  accordance  with  those  set 
forth  in  the  petition  or  otherwise.  Such  lease,  when  so  made 
by  the  guardian,  shall  be  by  him  reported  to  the  court  and  not 

ISee    §1392;    see    §§1530,    1534.  3  §§  109S4,  10985  G,  C. 

2  §  10983  G.  C.  4  §  10986  G.  C. 


1291  MINING   PURPOSES  §  1451 

take  effect  until  it  is  approved  and  confirmed  by  the  court." 
[87  V.  162,  §5.] 5 

§  1451.     Lease  for  mining  purposes. 

The  remaining  sections  of  this  chapter  provide  for  the  lease 
of  the  lands  of  a  minora  and  not  those  of  a  lunatic,  imbecile  or 
drunkard,  for  the  purpose  of  mining.  It  seems  to  he  that  in 
the  case  of  managing  coal  lands,  or  mining  lands,  of  an  imbecile 
or  lunatic  that  the  statute  contemplates  that  such  lands  shall 
not  be  leased,  but  may  be  sold.®  A  peculiarity  of  the  follow- 
ing section  is  that  unlike  the  other  special  acts  relating  to  leas- 
ing of  the  lands  of  a  ward,  it  does  not  specify  what  the  petition 
shall  contain.  In  this  respect  it  would  be  safe  to  set  out  in  the 
petition  the  facts  required  when  filing  an  application  for  the 
purpose  of  improving  and  leasing  the  lands  of  a  minor.^  Other- 
wise the  act  substantially  follows  the  law  relating  to  the  leasing 
of  lands  of  a  minor  for  improvement,  etc.*  The  forms  and 
practice  therein  suggested  may  easily  be  adopted  for  an  appli- 
cation under  the  following  sections.  In  all  cases  the  statute 
itself  should  be  strictly  followed. 

§  1452.  Power  to  lease  real  estate  for  ten  years  for  mining 
purposes.  "The  guardian  of  the  jierson  and  estate,  or  estate 
only,  of  a  minor,  may  be  authorized  by  the  probate  court  of 
the  county  in  which  the  lands  are  situated,  to  lease  upon  such 
terms  and  for  a  time  not  exceeding  ten  years,  any  lands  in  such 
county  belonging  to  his  ward,  supposed  to  contain  coal  or 
gypsum  for  the  purpose  of  mining  for  and  removing  these  min- 
erals. If  the  period  of  ten  years  extends  beyond  the  minority 
of  the  ward,  it  shall  then  terminate  as  to  him,  unless  he  con- 
firms it.  "^  [R.  S.  §6301-1.]  9 

§1453.  Petition;  time  for  hearing.  ''Upon  the  filing  of  a 
petition,  under  either  of  the  next  two  preceding  sections,  the 
court  shall  fix  a  time,  not  less  than  five  nor  more  than  fifteen 
days  from  its  filing,  for  hearing  it,  and  order  the  petitioner  to 
give   notice   in   writing   to  his   ward,   who   shall   be   defendant 

■'■§10087  G.  C.  8  See  previous  chapter. 

8  §  10994  G.  C.    (§  1522).  »  §  10975  G.  C. 

7  §  10997  G.  C.   (§  1434). 


§  1454  LEASE  OF  ward's  REAL  ESTATE  1292 

thereto,  of  its  filing  and  prayer,  and  the  time  it  will  be  heard, 
which  notice  must  be  served  not  less  than  five  days  before  the 
hearing.  He  shall  return  to  the  court  a  copy  of  such  notice, 
stating  tlie  time  and  manner  of  its  service."     [87  v.  223,  §  2.]^° 


§  1454.    Land  to  be  viewed  by  disinterested  freeholders. 

"At  the  time  appointed  for  hearing  the  petition,  if  the  court 
finds  that  it  \nll  be  to  the  advantage  of  the  ward  to  lease  the 
lands,  as  prayed  for  therein,  it  shall  appoint  three  disinterested 
freeholders  of  the  vicinity  who  are  not  of  kin  to  the  petitioner, 
to  view  such  lands,  and  report  in  writing  to  the  court  their 
opinion  as  to  the  probability  of  the  lands  containing  coal  or 
gypsum,  in  what  quantity,  and  the  terms  upon  which  it  would 
be  advantageous  to  the  ward  to  lease  the  lands  for  mining  such 
minerals.  Before  entering  upon  the  discharge  of  their  duties, 
such  freeholders  must  take  an  oath  faithfully  and  impartially 
to  discharge  them."     [R.  S.  §  6301-3.]^^ 


§1455.  Probate  Court  to  order  lease.  ""When  the  report 
of  such  freeholders  is  filed  vnth  such  court,  if  satisfied  that  it 
will  be  to  the  advantage  of  the  ward  to  lease  the  lands  for  such 
mining  purposes,  the  court  shall  order  the  guardian  to  lease 
them,  upon  such  terms  as  it  directs,  which  shall  not  be  less 
favorable  to  the  ward  than  those  reported  by  the  freeholders." 
[87  V.  223,  §4.]  12 


§  1456.     Royalty ;  report  of  by  gnardian ;  bond  to  recover. 

Within  six  months  after  the  receipt  of  the  first  royalty  under 
such  lease,  the  guardian  shall  report  to  the  court  the  amount 
thereof,  and  the  court  shall  then  fix  a  bond  which  will  cover  the 
royalty  therefrom.  At  any  time  the  court  deems  the  bond 
insuflScient  to  secure  the  royalty,  it  may  increase  it,  or  require  a 
new  one."     [87  v.  223,  §5.]i=^ 


§  1457.  Change  in  terms  of  leasing.  If  the  guardian  is 
unable  to  lease  the  lands  upon  the  terms  ordered,  he  may  report 
the  fact  to  the  court,  and  it  may  change  the  terras  of  leasing, 
but  not  below  the  customary  royalty  in  the  vicinity  of  such 
lands."     [87  v.  223,  §6.]" 


10  §  10077  G.  C.     '  13  §s  10080  G.  C. 

11  §  10978  G.  C.  14  §  10981  G.  C. 

12  §  10979  G.  C. 


1293  CHANGE  m  TERMS  §  1458 

§1458.  Lands  owned  in  common  by  minors.  "When  the 
same  person  is  guardian  of  two  or  more  minors  owning  lands 
in  common,  such  minors  may  be  joined  as  defendants  in  the 
same  petition,  or  if  the  minors  have  different  guardians,  such 
guardians  may  unite  in  one  petition."     [87  v.  223,  §  7.]^^ 

15  §  10982  G.  C. 


§  145i)  MORTGAGE  OF   WAKD's   LAJSTDS  1294. 


CHAPTER  LXXIX. 

MORTGAGE  OF  WARD'S  LANDS. 

§  1459  Statute    must    be    followed,  §  1468  Viewers,     when     to     be     ap- 

etc.  pointed. 

§  1460  Where  action  to  be  brought.  §  1469  Amount  to  be  borrowed,  etc. 

§  1461  Guardian  may  mortgage  real  §  1470  Entry   ordering  guardian   to 

estate    of   ward    in    certain  ^.^p^^.^      ^yj^^^  ^.^^^  j^^^  ^^ 

cases.  ,  J 

,  be  made. 

§  1462  For    whom    action    may    be  ci.^ir^^  j  ,.      c 

brought.  ^    ^     Order    and    report    of    guar- 

§  1463  When     application     may     be  '^*^"- 

filed.  §  1472  Acceptance  and  confirmation 

§  1464  Petition    therefor ;    what  to                      of  report  and  terms. 

contain.  §  1473  Entry  confirming  report  and 

§  1464a  Investigation   and   report.  making  distribution. 

§  1465  Essentials  of  petition.  §  1474  Report  of  execution  of  mort- 

§  1466  Form  of  petition.  gage,  etc. 

§  1467  Proceedings     upon     filing  of       §  1474a  Form    of    guardian's    mort- 

petition.  ^^^^ 

§  1459.     Statute  must  be  followed,  etc. 

The  object  and  purpose  of  the  statute  in  providing  for  mort- 
gaging the  ward's  lands  is  that  money  may  be  secured  for  the 
benefit  of  the  ward  or  his  estate  and  make  the  real  estate  a 
security  for  its  payment.  It  therefore  follows  that  it  may  as 
effectually  deprive  the  ward  of  the  title  of  its  real  estate  as  if 
sold  by  the  guardian  under  a  proceeding  brought  for  that  pur- 
pose; and  the  Courts  have  held  that  in  order  to  make  a  valid 
mortgage,  so  that  it  cannot  be  attacked  or  defeated  by  the  ward, 
the  statute  must  be  strictly  complied  with. 

In  one  case  it  was  held  that  where  the  statute  provided  that 
the  order  of  the  Court  shall  specify  the  amount  to  be  secured 
by  such  mortgage,  the  rate  of  interest  to  be  paid,  and  the  length 

In  an  action  on  a  lease  the  guard-  expiration.       Globe     Soap     Co.     vs. 

lan   must   show   by   what   authority  Louisville,   6   C.   C.    (N.S.)    496-    27 

he  acted      Guardian  cannot  give  an  O.  C.  C.  759;  affirmed  76  0.  S.  577. 
option    to    extend    lease    after    the 


1295  WHERE   ACTION    BROUGHT.  §  1460 

of  time  for  which  such  mortgage  shall  be  given,  and  the  Court 
failed  to  pass  upon  these  questions,  the  mortgage  was  abso- 
lutely void,  and  under  foreclosure  the  purchaser  obtained  no 
title.^  And  in  another  case,  where  the  statute  required  a  re- 
port to  be  made  to  the  Court  of  the  sale,  leasing,  or  other  dis- 
position of  the  property,  and  the  guardian  failed  to  report  as  to 
his  agreement  in  reference  to  the  mortgage  and  the  terms  of  the 
mortgage,  that  it  was  void.- 

In  a  proceeding  brought  for  the  purpose  of  sale,  the  Court 
has  no  jurisdiction  to  make  an  order  to  mortgage  or  vice 
versa.^  Likewise  the  order  of  the  Court  is  invalid  if  the  mort- 
gage is  authorized  for  a  reason  not  permitted  or  granted  by 
statute.  In  the  foreclosure  of  a  mortgage,  it  has  been  held 
that  the  ward  had  a  right  to  question  its  validity,  although  its 
execution  had  been  approved  by  the  Probate  Court.^*  It  will 
therefore  be  seen  that  it  is  important  to  the  holder  of  the  mort- 
gage, as  well  as  to  the  guardian,  to  see  that  the  statute  is  strictly 
complied  with  in  all  respects.* 


§  1460.    Where  action  to  be  brought. 

The  statutes  relating  to  mortgaging  and  leasing  the  real  es- 
tate of  a  ward  do  not  contain  a  specific  direction  as  to  the 
Court  having  jurisdiction  to  grant  such  an  order.  It  therefore 
follows  that  it  is  under  the  general  statute  which  gives  the 
Court  making  the  appointment  of  the  guardian  the  right  to 
control  his  conduct,  and  therefore  neither  the  Court  of  Com- 
mon Pleas  of  the  county  in  which  the  appointment  was  made, 
nor  of  any  other  county,  nor  the  Probate  Court  of  any  other 
county,  would  have  the  right  to  entertain  jurisdiction  in  this 
kind  of  a  proceeding. 

§  1461.  Guardian  may  mortgage  real  estate  of  ward  in  cer- 
tain cases.  "In  any  case  when  at  the  time  a  person  i^  ad- 
judged an  idiot,  imbecile,  lunatic,  drunkard,  insane  or  an  in- 
competent by  reason  of  advanced  age  or  mental  or  physical 
disability  or  infirmity  there  exists  one  or  more  mortgages  or 
judgments  that  are  a  lien  on  his  real  estate,  or  when  valid  debts 
are  due,  which  may  be  a  claim  against  the  estate  of  such  person, 

1  Edwards  vs.  Taliafero,  34  Mich.  3*  Woerner  on  Gr.  284. 

13,  15.  4  'See    §  1404    et   seq.,   as   to   sale 

2  Battell  vs.  Torrey,  65  N.  Y.  294.       made  by  guardian. 

3  Woerner  on  Gr.  282.  See  §  1534. 


§1462  MORTGAGE   OP   WARD'S   LANDS  1296 

and  would  require  the  sale  of  his  real  estate  to  pay  it,  or  when 
repairs  or  improvements  may  be  for  the  benefit  of  such  estate, 
or  when  real  estate  descends  or  is  devised  to  a  minor  or 
minors,  or  to  a  person  adjudged  an  idiot,  imbecile,  lunatic, 
drunkard,  insane  or  an  incompetent  by  reason  of  advanced  age 
or  mental  or  physical  disability  or  infirmity,  which  is  liable 
for  the  payment  of  debts,  or  legacies  or  on  which  one  or  more 
mortgages'  or  judgment  liens  exist,  or  when  it  is  necessary  to 
borro^Av  money  for  maintenance  of  such  ward,  the  guardian  of 
such  person  may  borrow  money  and  mortgage  the  real  estate  of 
his  ward  or  a  part  thereof  to  pay  such  mortgage,  debts,  legacies 
and  judgments,  and  such  additional  sum  as  by  tl  e  court  is 
deemed  necessary,  to  make  needed  repairs  and  improvements 
thereon,  or  for  the  maintenance  of  ward."  [R.  S.  §  6301a;  109 
V.  72.]  = 


§  1462.     For  whom  action  may  be  brought. 

Sec.  10969,  G.  C,  seems  to  provide  for  two  different  condi- 
tions of  an  estate  for  which  an  application  to  mortgage  may  be 
filed.  The  first  seems  to  limit  the  application  to  a  guardian  of 
an  idiot,  imbecile  or  insane  person,  and  the  second  allows  it  to 
be  filed  for  a  minor,  idiot,  imbecile,  lunatic  or  drunkard.  Un- 
questionably, it  cannot  be  filed  by  a  guardian  of  a  minor  under 
the  first  part  of  sec.  10969,  G.  C.  There  may  be  some  question 
whether  it  can  be  filed  by  the  guardian  of  a  drunkard.  A  gen- 
eral provision  relating  to  drunkards  ^  provides  that  all  laws 
relating  to  guardians  for  lunatics,  idiots,  imbeciles,  etc.,  shall 
be  application  to  guardians  for  drunkards.  This  makes  the 
question  whether  a  guardian  of  a  drunkard  may  file  the  appli- 
cation for  any  of  the  causes  set  forth  in  the  first  part  of  sec. 
10969,  G.  C.,'^  a  very  uncertain  question.  From  the  fact  that 
sec.  10969,  G.  C,  was  enacted  into  law  after  sec.  11011,  G.  C, 
and  specifically  fails  to  include  a  drunkard,  the  author  is  in- 
clined to  the  opinion  that  the  application  cannot  be  made  for 
either  a  drunkard  or  a  minor  for  causes  set  forth  in  the  first 
part  of  sec.  10969,  G.  C. 

In  the  section  as  now  amended  the  incongruities  above  re- 
ferred to  are  taken  out  and  in  addition  a  mortgage  may  be 
executed  for  maintenance. 

MlOOfinO.  C.  7  s  1460 

"§11011   O.  C.    (§1.535). 


1297  "WHEN   APPLICATION    FILED  §  1463 

§  1463.     When  application  may  be  filed. 

The  application  may  be  filed  by  a  guardian  of  an  idiot,  etc., 
where  there  exists,  first,  a  mortgage  or  judgment  —  that  is,  a 
lien  on  the  real  estate  of  such  ward;  second,  when  there  are 
valid  debts  due  from  such  ward  which  are  a  claim  against  the 
estate  of  such  person ;  and  ihird,  when  the  condition  of  the 
personal  estate  of  the  ward  is  such  that  the  real  estate  must  be 
sold  to  pay  the  debt;  fourth,  when  repairs  or  improvements  are 
needed  or  necessary  for  the  benefit  of  the  estate.  In  this  latter 
respect  it  seems  to  confer  upon  the  guardian  of  a  lunatic,  im- 
becile or  idiot  the  right  to  borrow  money  for  making  repairs 
which  is  given  to  the  guardian  of  a  minor  by  other  sections." 
The  second  part  of  sec.  1C969,  G.  C,  provides  that  the  applica- 
tion may  be  made  only,  first,  when  an  estate  is  inherited  or 
received  by  devise,  which  estate  is  liable  for  the  payment  of 
any  debts  cr  legacies  which  may  be  due  from  the  ancestor  in 
the  settlement  of  the  estate,  or  when  there  are  valid  mortgages 
or  judgment  liens  that  may  exist  against  said  real  estate.  It 
does  not  permit  a  guardian  of  a  minor  or  drunkard  to  borrow 
money  for  the  payment  of  debts  that  have  been  incurred  by  the 
guardian.  It  seems  that  when  the  Court  makes  the  order  au- 
thorizing the  jnortgage,  that  it  may  also  include  an  order  for  a 
certain  amount  cf  money  to  be  borrowed  to  make  needed  re- 
pairs and  improvements.  Sec.  109G9,  G.  C,  is  a  piece  of  not 
very  clear  legislation.  Recent  amendments  have  clarified  the 
statute  considerably. 

§1464.  Petition  therefor;  what  to  contain.  "The  guard- 
ian proposing  so  to  borrow  money  must  file  in  the  probate  court 
which  appointed  him,  a  petition  describing  the  real  estate  so 
encumbered,  and  also  all  the  real  estate  of  such  ward,  and 
stating  the  nature  and  amount  of  the  encumbrances  thereon, 
when  they  became  or  will  become  due,  and  the  rate  of  interest 
thereon ;  the  amount  and  character  of  all  valid  debts  due  from 
such  ward,  to  whom  due,  when  they  will  become  or  became 
due  and  the  rate  of  interest  thereon;  the  necessity  for  and 
character  of  any  repairs  and  improvements,  and  the  amount 
required  therefor,  together  with  a  statement  of  the  ward's  per- 

8  See  §  1432. 


§  1461:a  MORTGAGE   OF    WARD's    LANDS.  1298 

sonal  property  and  the  income  therefrom  and  from  his  real 
estate ;  the  amount  probably  necessary  to  maintain  the  ward 
and  his  family,  and  the  names,  ages  and  residence  of  the  ward 
and  next  of  kin  residing  in  the  state,  including  the  wife  or 
husband  of  such  ward,  and  all  persons  holding  liens  on  such 
real  estate,  all  of  whom  must  he  made  defendants,  and  be 
notified  of  the  jjendencj'  and  prayer  of  the  petition  in  such 
manner  as  the  court  directs ;  also  a  statement  of  the  nature  of 
the  imbecility  or  insanity  of  such  ward,  whether  temporary 
or  confirmed,  its  duration,  and  such  other  facts  as  may  be 
pertinent  to  the  question  whether  such  money  should  be  bor- 
rowed, and  a  prayer  that  he  be  authorized  to  mortgage  so 
much  of  the  ward's  lands  as  may  be  necessary  to  secure  such 
loans."     [R.  S.  §  6301b. ]« 

§  1464a.  Investigation  and  report.  "Before  the  court  makes 
an  order  authorizing  the  guardian  to  mortgage  real  estate  for 
the  purpose  of  borrowing  money  to  make  repairs  or  improve- 
ments as  provided  in  section  ten  thousand  nine  hundred  and 
sixty-nine,*  it  shall  appoint  three  disinterested  freeholders, 
whose  duty  it  shall  be  fully  to  investigate  the  question  as  to 
the  necessity  for,  and  the  advisability  of  making  such  repairs 
or  improvements,  and  their  probable  cost,  and  report  this  to 
the  court  under  oath."     [R.  S.  §  6301b. ]^* 

§  1465.    Essentials  of  petition. 

The  following  may  be  classed  as  the  essentials  to  be  set 
forth  in  the  application :  First,  it  should  state  the  fact  that 
the  person  filing  the  application  is  the  acting  guardian,  and 
that  he  was  appointed  in  the  county  in  which  the  applica- 
tion is  made ;  second,  it  should  describe  the  real  estate 
upon  which  it  is  sought  to  execute  a  mortgage;  third, 
it  should  describe  all  other  real  estate  of  the  ward ; 
fourth,  it  should  state  the  nature  and  amount  of  the  in- 
cumbrance on  all  the  real  estate ;  fifth,  it  should  state  when 
said  incumbrance  will  be  due,  and  the  rate  of  interest 
thereon;  sixth,  it  should  state  the  amount  and  character 
of  all  valid  debts  due  from  such  ward,  to  whom  due,  and  when 
the  same  will  become  due,  what  rate  of  interest  thereon : 
seventh,  if  it  is  sought  to  make  repairs  or  improvements,  the 

3  §  10970  G.  C.  *  §  1461, 

9*  §  10971  G.  C.  See  In  re  Connell,  12  X.  P.  311. 


1299  FORM  OF  PETITION  §  1466 

kind  of  repairs  and  amount  required  to  make  such  repairs 
should  he  stated ;  eighth,  a  full  statement  of  all  the  ward's  per- 
sonal property ;  ninth,  the  income  from  such  personal  property 
and  from  the  ward's  real  estate ;  tenth,  the  probable  amount 
necessary  to  maintain  the  ward;  eleventh,  names,  ages  and 
residence  of  such  ward,  including  the  next  of  kin  residing  in 
this  State,  and  the  wife  or  husband  of  such  ward  and  all  per- 
sons holding  liens  on  said  real  estate ;  twelfth,  if  the  application 
is  made  for  one  of  the  reasons  authorized  by  the  latter  part  of 
sec.  10969,  G.  C,  (§  1461),  it  should  state  that  the  real  estate 
in  the  petition  described  has  been  acquired  by  the  ward  Dy 
descent  or  devise;  thirteenth,  the  character  of  the  imbecility 
or  insanity  of  such  ward,  whether  temporary  or  confirmed, 
and  its  duration ;  lastly,  such  other  matter  as  the  petitioner 
may  believe  is  pertinent  to  the  question  whether  the  order 
should  be  granted  or  not,  closing  with  the  prayer  that  the 
guardian  may  be  authorized  to  mortgage  so  much  of  said 
ward's  lands  as  may  be  necessary  to  secure  the  loan. 

§  1466.     Form   of  petition. 

The  form  of  petition  given  under  the  section  relating  to  the 
sale  of  real  estate  by  a  guardian  may  be  easily  adopted  for  a 
petition  to  mortgage,  being  careful  that  the  petition  sets  forth 
the  facts  stated  in  the  previous  section.^''  It  should  be  ob- 
served that  the  w^ard  and  next  of  kin  of  such  ward  residing 
in  the  State,  including  the  wife  or  husband  and  all  persons 
holding  liens,  must  be  made  defendants. 

§  1467.  Proceedings  upon  filing  of  petition.  ' '  Upon  the 
filing  of  such  petition,  like  proceedings  shall  be  had  as  to 
pleadings  and  proof  as  on  petition  by  a  guardian  to  sell  the 
real  estate  of  a  minor."     [R.  S.  §  6301c. ]^^ 

As  the  above  section  specifically  states,  that  the  same  pro- 
ceedings shall  be  had,  etc.,  as  in  the  sale  of  real  estate,  it  will 
be  proper  to  refer  to  that  chapter  as  to  the  entry  which  should 

10  §  1412,    for    form    for    the    sale        n  §  10972  G.  C. 
of   real   estate. 


§  1468  MORTGAGE  OF  WAKD's  LANDS  1300 

be  made  upon  the  filing  of  the  petition ;  and  the  forms  of  notice 
and  manner  of  service  there  stated  will  be  applicable/^ 

§  1468.     Viewers,  when  to  be  appointod. 

Unless  the  guardian  seeks  in  his  petition  for  authority  to 
mortgage  the  property  for  the  purpose  of  making  repairs  and 
improvements  on  the  property,  it  seems  that  no  viewers  need  be 
appointed,  and  that  on  the  day  of  hearing,  the  Court  may  make 
an  order  either  granting  the  application  or  refusing.  If,  how- 
ever, it  is  sought  to  borrow  money  for  the  purpose  of  repairing 
and  improving,  then  it  would  be  necessary  to  make  an  order 
at  the  time  set  for  hearing,  appointing  viewers,  whose  duty  it 
shall  be  to  investigate  the  question  as  to  the  necessity  for  and 
the  advisability  of  making  said  repairs  or  improvements,  and 
the  probable  cost  thereon,  and  report  the  same  to  the  Court. 
When  this  is  acquired,  the  entry  in  a  previous  chapter  in  refer- 
ence to  a  lease  of  ward's  real  estate  may  be  used.^^ 

§  1469.  Amount  to  be  borrowed,  etc.  "If  on  the  final  hear- 
ing it  appears  to  be  for  the  best  interests  of  the  estate  of  the 
ward  that  the  prayer  of  the  petition  be  granted,  the  court  shall 
fix  the  amount  necessary  to  be  borrowed,  direct  what  lands 
shall  be  encumbered  by  mortgage  to  secure  it,  and  issue  an 
order  to  such  guardian  directing  him  to  ascertain  and  report 
to  the  court  the  rate  of  interest  and  time  for  which  he  can 
borrow  such  amount."     [R.  S.  §  6301d.]^* 

§  1470.    Entry  ordering  guardian  to  report.    What  rate  loan 
to  be  made. 

If  no  viewers  need  be  appointed,  then  the  Court  may  make 
the  following  entry  on  the  day  when  the  case  is  set  for  hearing : 

(Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B., 
guardian  of  C.  D.,  for  authority  to  mortErage  certain  real  estate  therein 
described;  and  the  same  was  submitted  to  the  Court  upon  the  pleadings  and 
testimony. 

Whereupon  after  due  consideration,  the  Court  finds,  that  all  the  partiea 

12  ?§  1415.  1421.  14  §  10973  G.  C. 

13  §  1439. 


1301  REPORT  OF  RATE,  ETC.  §  1471 

defendant,  have  been  duly  notified,  as  required  by  law  and  the  former 
orders  of  this  Court  of  the  pendency  of  said  application,  its  prayer  and  the 
time  of  hearing. 

That  the  allegations  of  said  petition  are  true;   that  it  is  necessary  to 

mortgage  the  real  estate  as  therein  alleged  for  the  sum  of 

dollars.  (If  it  is  desired  to  use  the  money  for  repairs  or  improvements, 
the  following  should  be  included  in  the  entry.)  (The  Court  further  finds 
that  said  matter  was  further  submitted  to  the  Court  upon  the  report  of  the 
viewers  heretofore  appointed,  to  investigate  the  question  as  to  the  necessity 
for  and  the  advisibility  of  making  repairs  or  improvements  on  said  premises 
as  set  forth  in  said  petition  and  the  probable  cost  thereof.  The  Court 
approves  and  confirms  said  report.) 

Wherefore  it  is  ordered  that  said  guardian  shall  ascertain  and  report  to 
this  Court  the  rate  of  interest  and  the  time  for  which  he  can  borrow  said 
amount  so  found  necessary. 

§  1471.     Order  and  report  of  guardian. 

The  following  may  be  used  as  the  order  of  the  guardian : 

State  of  Ohio, 

County,  ss. 

Probate  Court. 
To ,  Guardian  of 

You  are  hereby  notified  that  an  order  has  this  day  been  made  in  this 
Court  in  a  certain  case  wherein,  you  as  guardian  have  made  application 

to  mortgage  certain  real  estate  belonging  to ,   your   ward; 

and  that  you  were  therein  directed  to  ascertain  the  rate  of  interest  and  the 
time  for  which  you  can  borrow  the  sum  of dollars  by  mort- 
gaging the  real  estate  therein  described,  to  secure  the  same. 

V/itnesseth  my  signature  and  the  seal  of  the  Probate  Court,  this 

day  of 190... 

,  Probate  Judge. 

The  following  may  be  used  as  a  report : 

(Title.) 

In  obedience  to  the  order  of  the  Probate  Court  in  the  above  case,  I  have 
made  a  full  and  diligent  inquiry,  and  beg  leave  to  report  that  the  best 
terms  obtained  in  making  the  loan  in  behalf  of  my  said  ward  is  as  follows: 
(Here    state   terms.) 

Sworn   to   before   me   and   subscribed   in   my    presence   this day   of 

A.  D.   190... 

§  1472.     Acceptance  and  confirmation  of  report  and  terms. 

"If  such  report  and  the  terms  proposed  be  satisfactory  to  the 
court,  they  may  be  accepted  and  confirmed,  and  the  guardian 
ordered,  as  such,  to  execute  a  note  or  notes  for  such  amount, 
and  a  mortgage  on  the  lands  so  designated,  which  shall  be  a 
valid  lien  thereon.  The  guardian  in  no  way  shall  be  personally 
liable  for  the  payment  of  the  sum  so  borrowed,  or  any  part 
of  it,  but  such  lands  solely  shall  be  held  and  bound  therefor. 
Such  court  shall  direct  the  distribution  of  the  fund,  and  the 
guardian  shall  report  to  the  court,  for  its  approval,  the  execu- 


§  1473  MORTGAGE   OP    WARD's   LANDS  1302 

tion  of   such   notes  and   mortgage  and  his   distribution  of  the 
fund."     IR.  S.  §6301e.]^^ 


§  1473.     Entry  confirming  report  and  making  distribution. 

(Title.) 

Tins  day  this  matter  came  on  to  be  further  heard  upon  the  report  of 
plaintiff  therein,  as  to  the  rate  of  inteiest  and  time  for  which  he  could 
borrow  said  amount  of dollars ;  and  the  same  was  sub- 
mitted to  the  Court;  and  the  same  is  found  satisfactory  to  the  Court  and 
is  accepted  and  confirmed ;  and  the  said  guardian  is  authorized  and  ordered 
as  such  guardian  to  execute  a  note  (or  notes)  for  that  amount  and  execute 
a  mortgage  on  lands  so  designated  (or  such  part  as  the  Court  may  find 
necessary),  and  the  matter  coming  on  to  be  heard  further  as  to  the  distri- 
bution of  the  money  procured  by  said  mortgage.  It  is  ordered  (here  set  out 
how  the  money  is  to  be  applied  and  designate  what  portion  thereof  is  to  be 
used  in  repairs  and  improvements). 

§  1474.     Report  of  execution  of  mortgage,  etc. 

After  the  guardian  has  executed  a  mortgage,  procured  the 
money  and  made  distribution,  it  is  his  duty  to  report  that  fact 
to  the  Probate  Court  for  its  approval.  The  forms  for  this  pur- 
pose are  very  simple  and  space  will  not  be  taken  up  for  the 
same  in  this  work.  The  Court,  after  the  report  is  made,  should 
make  an  entry  confirming  the  same. 

§  1474a.     Form  of  guardian's  mortgage. 

Know  all  Men  by  these  Presents: 

That,  whereas,  on  the day  of 190.  .,  C.  C.  was  duly 

appointed  and  qualified  as  guardian  of  the  persons  and  estate  of  R.  C.  and 

O.  C,  the  minor  children  of  H.  C,  deceased,  late  of county, 

Ohio,  by  the  Probate  Court  of  said  county;  and  afterwards,  to-wit:  on  the 

day  of ,  190.  .,  sad  C.  C,  as  guardian,  filed  his  certain 

application  and   then    and   thereby    commenced    an    action    in   the    Probate 

Court  of coimty,   Ohio,   against  said   R.   C.   and   O.   C.   and 

numbered  on  the  docket  of  said  Court  as  Case  No ,  praying  for  an 

order  authorizing  him  to  borrow  sufficient  money  to  pay  off  the  existing  lien 
upon  the  real  estate  of  his  said  wards,  and  execute  notes  and  mortgages 
securing  the  same,  for  the  purpose  of  obtaining  said  money. 

And  whereas,  such  proceedings  were  had  in  said  action,  that  on  the 

day  of ,  190. .,  sail  Court,  finding  the  allegations  of  said  pe- 
tition true  and  that  it  was  necessary  to  mortgage  the  real  estate  described 
in  said  application  for  the  sum  of "  .  .dollars,  ordered  said  guar- 
dian to  ascertain  and  report  to  the  Court  the  rate  of  interest,  and  the 
time  for  which  he  could  borrow  said  sum  of  money. 

Thereupon   said   guaVdian.    after   diligent   inquiry,   made   report  to    said 

Court  that  he  could  obtain  said  money  at interest,  payable  annually 

for  a  period  of years;  and  said  Court  having  examined  said  report 

1'  §  10974  G.  C. 


1303  FOKM    OF    MORTGAGE 


1474a 


and  being  satisfied  that  the  same  is  true,  and  that  the  terms  therein  re- 
ported were  the  best  that  said  applicant  had  been  able  to  obtain,  thereupon 
authorized  and  ordered  said  guardian  to  execute  a  note  and  mortgage  to 

one for  the  sum  of  money  above  referred  to  and  upon  the 

terms  so  reported  to  said  Court. 

Now,  therefore,  the  said  C.  C,  guardian  of  said  R.  C.  and  0.  C,  in  con- 
sideration of  said  finding  and  order  of  said  Court,  and  of  the  premises,  and 
of  the  powers  vested  in  him  as  such  guardian  by  law,  and  in  consideration 

of  the  sum   of dollars,   to  him   paid  by  the  said 

,  the  receipt  whereof  is  hereby  acknowledged,  do  hereby  grant,  bar- 
gain, sell  and  convey  to  the  said ,  his  heirs  and  assigns  for- 
ever, the  following  described  real  estate 

To  have  and  to  hold  said  premises  with  all  the  privileges  and  appurtenances 

thereunto  belonging  to  the  said ,  his  heirs  and  assigns  forever. 

as  fully  and  completely  as  the  said  C.  C,  guardian  as  aforesaid,  by  virtue 
of  said  order  and  of  the  statute  made  and  provided  for  such  cases,  might  or 
should  execute  said  conveyances. 

Provided,    nevertheless,    that 

then  these  premises  shall  be  void. 

In  witness  whereof  the  said  C.  C,  as  guardian  of  R.  C.  and  O.  C.  does 

hereunto  set  his  hand  this day  of ,  190 .. . 

Signed    and    acknowledged    in    the 
presence  of  us: 


State  of  Ohio,  County  of ,  ss. 

Be  it  remembered  that  on  the day  of ,   190.  .,  before 

me,    the   subscriber,    a in   and    for    said    county    and    State, 

personally  came  the  above  named  C.  C.  as  guardian  of  R.  C.  and  O.  C,  the 
grantors  of  the  foregoing  mortgage,  and  acknowledged  the  execution  of  the 
same  to  be  his  voluntary  act  and  deed  as  such  guardian  and  also  in  person 
for  the  iises  and  purposes  therein  mentioned. 

In  testimony  whereof  I  have  hereunto  subscribed  my  name  and  affixed  my 
seal,  this  day  and  year  last  aforesaid. 


§  1475  FOKEIUN  GUARDIANS  1804 


CHAPTER  LXXX. 

FOREIGN  GUARDIANS. 

§  1475     Rights,    duties,    etc.  §  1480    When    foreign    guardian    of 

§  1476     Effect   of   removal    of   ward  foreign  ward  may  demand 

from    State    and    appoint-  or  receive   property  of  his 

ment  of   foreign   guardian.  ward    in    this    State. 

§  1477     When   and  under  what   cir-  §  1481     Foreign  guardian  of  minors 

cumstances     the    guardian  may   sue    and   be   sued   in. 

here   may   be   removed.  this    State    and    sell    real 

§  1477a  Foreign     State    must    have  estate. 

similar  laws.  §  1481a  Sale   of  their  lands. 

§  1478     Comments.  §  1482     Comments. 

§  1479    What  to  be  done  if  guardian  §  1483  Foreign   guardian    of   foreign 

here  removed.  idiot,    imbecile    or    lunatic 

may    dispose    of    property 
belonging  to  his  ward. 

§  1475.     Rights,  duties,  etc. 

It  is  an  elementary  principle  of  law  that  no  guardian  has  any 
authority  beyond  the  State  in  which  he  receives  his  appoint- 
ment, unless  by  virtue  of  the  laws  of  the  State  in  which  he 
wishes  to  act.  Our  statute  makes  ample  provision  for  a  foreign 
guardian  to  secure  the  funds  of  his  ward  situate  in  this  State. 
But  before  he  can  do  so,  he  must  comply  with  our  law,  and 
then  it  rests  in  the  discretion  of  the  Court  whether  or  not  the 
fund  shall  be  turned  over  to  such  foreign  guardian.^  In  a 
previous  chapter  we  have  seen  ^  that  full  provision  is  given  for 
the  appointment  of  what  is  termed  a  trustee  to  take  possession 
of  any  property  which  may  be  situated  in  this  State  and  be- 
longing to  a  person  who  is  under  a  disability  of  minority, 
idiocy,  lunacy  or  imbecility,  residing  in  such  foreign  State. 
The  one  condition  which  our  laws  require  before  such  guardian 
may  act  in  this  State  is  that  the  laws  of  the  State  of  the  resi- 
dence of  the  guardian  make  similar  provision  for  guardians 

1  Banning  vs.   Gotshall,  62   0.   S.  The  court  may  under  certain  con- 
\      _                                                           ditions   compel   a  nonresident  guar- 

2  §  1273  et  seq.  dian  to  file  an  account.     Schwab  vs. 

Kappold,  12  Bull.  197. 


1305  REMOVAL  OP  LOCAL  GUARDIAN  §  1476 

residing  in  this  State.  These  rights  being  statutory,  and  in 
derogation  of  the  common  law,  should  be  strictly  construed  and 
literally  complied  with.^ 

§  1476.  Effect  of  removal  of  ward  from  state,  and  appoint- 
ment of  foreign  guardian.  '  *  When  a  minor,  for  whom  a  guard- 
ian has  been  appointed  in  this  state,  removes  to  another  state  or 
territory,  and  a  guardian  of  such  infant  is  there  appointed,  the 
guardian  in  this  state  may  be  removed,  and  required  to  settle 
his  account  as  hereinafter  provided."      [R.  S.   §6276.]* 

§  1477.  When  and  under  what  circumstances  the  guardian 
here  may  be  removed.  "Such  removal  shall  not  be  made 
unless  the  guardian  appointed  in  another  state  or  territory 
applies  to  the  probate  court  in  this  state  which  made  the  former 
appointment,  and  files  therein  an  exemplification  from  the  rec- 
ord of  the  court  making  the  foreign  appointment,  containing  all 
the  entries  and  proceedings  relating  to  his  appointment,  his 
giving  bond,  with  a  copy  thereof,  and  of  the  letters  of  guard- 
ianship, all  authenticated  as  required  by  the  act  of  congress  in 
that  behalf.  Before  such  application  is  heard,  or  action  taken 
therein  by  the  court,  at  least  thirty  days'  written  notice  must 
be  served  on  the  guardian  appointed  in  this  state,  specifying 
the  object  of  the  application  and  the  time  it  is  to  be  heard." 
[R.  S.  §6277.]^ 

§  1477a.  Foreign  state  must  have  similar  laws.  ' '  No  such 
removal  shall  be  made  in  favor  of  a  foreign  guardian,  unless 
at  the  time  of  the  hearing  the  state  or  territory  in  which  he 
was  appointed  has  a  similar  provision  as  to  wards  removing 
therefrom.  In  any  case,  the  court  may  deny  the  application 
unless  satisfied  that  the  removal  of  the  guardian  appointed  in 
this  state  would  be  to  the  interest  of  the  ward."  [R.  S. 
§6277.]=* 

§  1478.    Comments. 
Of  course,  the  application  for  such  removal  can  only  be  filed 
in  the   court  mailing  the  appointment.     The  above  section  is 

3  See  §  1318,  Ancillary  Gdn.  Where  a  foreign  guardian  is  with- 
A  suit  for  partition  may  be  main-       out  authority  to  dispose  of  property 

tained    in    the    proper   court   by    an  belonging  to  liis  ward,  a  sale  of  se- 

assignor    for    benefit    of    creditors.  curities    is    void   even    in   the   hands 

Horstman  vs.  Ritter,  6  N.  P.  470;  of  an  innocent  purchaser.    Bank  vs. 

9  Dec.  413.  Kchirk,  5  C.  C.   (N.S.)   509;   17  Cir. 

See  §  763,  Parties,  etc.  D.  12.5;  27  0.  C.  C.  125. 

See    §  1273,    Trustee   for   nonresi-  Action  for  personal  injury  may  be 

dent.  maintained   by   guardian    appointed 

See  §  1318,  Ancillary  Gdns.  in  Pennsylvania.     Pennsylvania  Co. 

4  §  10940  G.  C.  vs.  Haul)',   11   0.  C.  C.    (N.S.)    157; 

5  §  10941  G.  C.  30  O.  C.  C.  542;  affirmed  no  op.,  79 
5*  §  10942  G.  C.  O.  S.  454:  not  following  Smith  vs. 
See  §  1482,iSell  real  estate.  Madden   (U.  S.  C.  C.),  37  Bull.  — . 


§  1479  FOREIGN    GUARDIANS  1306 

very  similar  to  sec.  11020  G.  C.,*'  and  the  forms  adopted  for  that 
section,  and  the  suggestions  there  made,  will  answer  for  an  ap- 
plication under  the  above  section.  The  Court  should  fully 
inform  itself  that  the  foreign  guardian  is  a  proper  and  suitable 
person  —  one  who,  if  he  lived  in  this  State,  would  be  a  proper 
and  competent  person.^ 

Likewise  the  Court  should  be  assured  that  the  bond  given  in 
the  foreign  jurisdiction  is  ample  and  sufficient  to  cover  all 
funds. 

^1479.     What  to  do  done  if  guardian  here  removed.     "If 

on  such  hearing,  the  court  removes  the  guardian,  it  may  make 
all  suitable  orders  for  discharging  the  resident  guardian,  and 
autliorizing  the  paying  over  and  delivery  to  the  foreign  guard- 
ian of  all  moneys  and  other  property  in  the  hands  of  the  resi- 
dent guardian  after  his  settlement."      [R.  S.  §  6278.] « 

§  1480.  When  foreign  guardian  of  foreign  ward  may  de- 
mand or  receive  property  of  his  ward  in  this  State.    "In  any 

case  in  which  a  guardian  not  appointed  in  this  state  and  his 
ward  are  both  non-residents  of  the  state,  and  the  ward  is  enti- 
tled to  money  or  other  property  in  the  lawful  custody  of  an 
executor,  administrator,  or  other  person  in  this  state,  by  order 
of  the  probate  court  of  the  proper  county,  upon  filing  therein 
the  proofs  named  in  sections  ten  thousand  nine  hundred  and 
forty-one  and  ten  thousand  nine  hundred  and  forty-two  and 
giving  notice  to  such  custodian  as  therein  prescribed,  such  guard- 
ian may  be  permitted  to  demand,  receive,  or  recover,  by  suit, 
such  money  or  other  property,  and  remove  it,  unless  the  terms 
of  limitation  attending  the  right  by  which  the  ward  owns  it 
conflict  with  such  removal."     [R.  s!  §  6279.]'' 

§  1481.  Foreign  guardian  of  minors  may  sue  and  be  sued  in 
this  State,  and  sell  real  estate.  "Minors  living  out  of  this 
state  and  owning  lands  within  it,  are  entitled  to  the  benefit  of 

«  §  1282.  complies  with  §  10944  G.  C,  by  filing 

7  Habighurst    vs.  Stephenson,    19      an  exemplification  of  the  record,  etc.. 

Bull    106  ^"'^   ^^'^   Probate   Court  may   refuse 

RRion^o  n    n  *°  order  the  payment  of  the  money 

§  10J4.1  G.  L.  jf   detrimental   to   the   ward.     Pay- 

9  §  10944  G.  C.  ment   without   such    order    is   unau- 
See  §  1273  et  seq.,  as  to  trustees      thorized    and    Avill    not    protect   the 

for  nonresidents.                   -  Pf""^?"  '"^''c,»  jf     ^^""^"8  ^s-  ^o*" 

.    ,       .                 ,.        .         ,       .  shall,  62  0.  8.  210. 

A  toreign  guardian  is  not  entitled  gee     §  10041     G.     C.      (§  1477); 

to  receive  or  receipt  for  money  due  §  10942  G.  C.   (§  1779). 
the  ward  from  an  executor  until  he 


1307  MAY    SUE    AND    BE    SUED  §  1481a 

this  chapter.  Guardians  of  minors  residing  out  of  this  state, 
appointed  according  to  the  laws  of  the  state  or  territory  where 
they  reside,  may  bring  and  maintain  actions  and  enforce  the 
collection  of  judgments,  rendered  in  such  cases  in  their  favor, 
in  the  manner  and  to  the  extent  that  they  could  do  if  appointed 
under  the  laws  of  this  state,  upon  giving  security  for  the  costs 
which  may  accrue  therein  in  the  manner  other  non-residents 
are  obliged  to  do."      [R.   S.  §6290.]" 

§  1481a.  Sale  of  their  lands.  "Applications  for  the  sale  of 
real  estate  by  guardians  of  minors  who  live  out  of  this  state 
shall  be  made  in  the  county  in  which  the  land  is  situated,  or, 
if  situated  in  two  or  more  counties,  then  in  one  of  the  counties 
in  which  a  part  of  it  is  situated.  Additional  security  shall  be 
required  from  such  guardian  or  guardians,  when  deemed  neces- 
sary, and  such  as  may  be  approved  by  the  probate  court  of  the 
county  in  which  the  application  is  made."      [R.  S.   §6290.]"* 


§  1482.     Comments,     Same. 

The  above  section  confers  an  absolute  right  on  foreign  guard- 
ians to  sue  the  same  as  local  guardians,  except  that  they  must 
give  security  for  costs  the  same  as  other  non-residents.  But 
before  a  local  Court  would  order  a  fund  to  be  turned  over  to  a 
foreign  guardian,  it  would  require  proof,  as  set  forth  in  sec. 
10941,  G.  C,  that  such  person  was  acting  in  the  capacity  he 
represented  himself  to  be,  and  that  the  bond  he  had  given  was 
ample  and  sufficient  to  secure  v;hatever  might  be  received.^^ 

A  foreign  guardian  may  bring  an  action  for  the  sale  of  real 
estate.  The  petition  for  such  sale,  in  addition  to  that  required 
by  a  local  guardian,^-  must  set  forth  the  fact  of  such  foreign 
appointment,  and  should  file  as  an  exhibit  with  the  petition  the 
matters  required  by  sec.  10941,  G.  C.^^ 

§  1483.  Foreign  guardian  of  foreign  idiot,  imbecile  or  lu- 
natic may  dispose  of  property  belonging  to  his  ward.     "The 

foreign  guardian,  conservator,  trustee,  or  other  pei'son  having 
power  similar  to  those  of  guardians  in  this  state,  of  a  foreign 
idiot,  imbecile,  or  lunatic,  or  an  incompetent  by  reason  of 
advanced  age  or  mental  or  physical  disability  or  infirmity,  ap- 

10  §  10055  G.  C.  12  §§  1410,   1412. 

10*  §  10!)5G  G.  C.  13  Previous  section  §  1477. 

11  Previous  section,  §  1477. 


^  1483  FOREIGN   GUARDIANS  1308 

pointed  in  any  other  state  of  the  United  States,  or  any  territory 
thereof,  may  possess,  manage,  or  dispose  of  the  real  and  per- 
sonal estate  of  his  ward,  situate  in  this  state,  in  like  manner  and 
with  like  authority  as  guardians  of  idiots,  imbeciles  or  lunatics, 
or  an  incompetent  by  reason  of  advanced  age  or  mental  or 
physical  disability  or  infirmity  appointed  by  the  courts  of  this 
state,  after  complying  with  the  following  requirements: 

"1.  An  authenticated  copy  of  the  foreign  commission  of 
idiocy  or  lunacy  or  incompetency  proved,  allowed,  and  re- 
corded in  the  probate  court  of  the  county  or  one  of  the  counties 
in  which  such  estate  is  situated,  in  like  manner  as  is  provided 
by  law  for  the  admission  to  record  of  an  authenticated  copy 
of  a  will  made  in  any  other  of  the  United  States ; 

"2.  Evidence  satisfactory  to  the  court  here,  before  which 
such  foreign  commission  is  approved,  that  such  idiocy  or  lun- 
acy or  incompetency  still  continues ; 

"8.  The  foreign  guardian,  conservator,  trustee,  or  other  per- 
son, having  powers  similar  to  those  of  guardians  in  this  state, 
shall  file  his  bond,  with  sureties,  residing  in  this  state  or  else- 
where, to  the  acceptance  of  the  court,  conditioned  for  the  faith- 
ful administration  of  his  guardianship."  [R.  S,  §  6315;  109 
V.  75.]^* 

"§11009  G.  C.  idiots,  etc.;   §1535,  aa  to  Guardians 

See    §  1501,  as    to   Guardians   for      for  drunkards,  etc. 


1309  guardian's  accounting  §  1484 


CHAPTER  LXXXI. 

GUARDIAN'S    ACCOUNTING. 

§  1484  Duty  tc  account.  §  1493  Effect  of  his  settlement  with 

§  1485  When  and  where  to  lie  filed.  Court  —  review  of  such  set- 

§  1486  When    barred    by    lapse    of  tlement. 

time.  §  1494  When  account  may  be  opened 

§  1487  What  it  should  contain.  up. 

§  1488  With   Avhat  guardian  should  §  1495  Appeal  and  error. 

be  charged.  §  1496  Settlement    with    succeeding 

§  1489  Entitled  to  what  credits.  guardian. 

§  1490  Guardian's  compensation.  §  1497  Settlement  with  word. 

§1491  Preparation   of   the   account,  §1498  How  finding  of  Probate  Court 

etc.  enforced. 

§  1492  Notice,     hearing,     exception,  §  1499  Settlement  by  executors,  ad- 

etc.  ministrators,   etc.,   of   guar- 
dians.    How    enforced. 
§  1500  Comments. 

§  1484.     Duty  to  account. 

Our  la^vTnaldng  power  has  fully  recognized  the  importance  of 
requiring  the  guardian  to  file  a  proper  account ;  for  in  one  sec- 
tion ^  it  is  provided  that  a  guardian  must  render,  on  oath,  a 
proper  account  of  the  receipts  and  expenditures  of  such  guard- 
ian, verified  hy  vouchers  of  proof,  etc. ;  and  in  another  section 
it  is  made  the  special  duty  of  the  Court  to  enforce  the  return 
at  the  prescribed  times  of  all  accounts  required  to  be  filed. ^ 

This  matter  of  filing  accounts  cannot  be  too  carefully  attend- 
ed to  by  the  guardian  or  enforced  by  the  Court.  The  guardian 
who  does  not  properly  file  his  account  at  the  time  required  by 
statute  should  not  only  suifer  the  penalty  which  the  law  pre- 
scribes, but  should  be  promptly  removed  by  the  Court  if,  after 
notice,  he  neglects  to  act.  Probate  Judges  are  sometimes  un- 
mindful of  this  statutory  duty  placed  upon  them,  and  by  negli- 

i  §  10933  G.  C,  g  1307.  »  §  10939  G.  C,  §  1362. 


§  1485  guardian's  accounting  1310 

gence  or  liimsj'  excuse  permit  guardians  to  serve  year  after 
year  witliout  accounting  as  the  law  prescribes.  If  a  defalca- 
tion occurs,  which  is  likely  if  accounts  are  not  required  to  be 
filed,  the  Court  may  not  be  financially  responsible,  but  certainly 
is  morally  so.  What  was  said  in  previous  chapters  as  to  the 
accounting  by  administrators  and  executors,^  and  accounting 
by  trustees  *  is  applicable  to  guardians." 

The  object  of  the  statute  in  requiring  reports  is  to  provide, 
in  permanent  and  reliable  form,  from  tim.e  to  time,  statements 
of  the  condition  of  the  titists  placed  in  their  management  for 
the  information  of  the  Court  and  the  protection  of  the  ward.® 

§  1485.     When  and  where  to  be  filed. 

Of  course,  the  account  must  be  filed  in  the  Court  that  made 
the  appointment.^  During  the  existence  of  the  guardianship 
it  must  be  filed  at  least  once  in  every  two  years,  or  as  often  as 
the  Court  may  order  or  the  guardian  desires.  Where  the  fund 
does  not  exceed  two  hundred  dollars,  the  account  need  only  be 
filed  when  the  guardianship  terminates.  In  all  cases,  when 
the  guardianship  is  at  an  end,  whether  it  comes  by  reason  of  a 
removal  by  the  Court,*  or  death  of  the  ward,  resignation  of 
the  guardian,  or  the  ward's  arrival  at  the  age  of  majority,  the 
account  must  be  filed  at  the  time  such  event  occurs,  or  within 
a  reasonable  short  period  thereafter.  Although  the  guardian- 
ship may  have  terminated,  the  Court  does  not  lose  jurisdiction 
over  the  guardian  until  he  files  his  account,  and  the  same  is 
passed  upon  by  the  Court,  and  he  is  in  this  manner  discharged 
of  his  duties ;  and  it  has  been  held  that  if  a  guardian  removes 

3  §  702  et  seq.  6  Eiceman  vs.   State,   75   Ind.  46; 

*  §  1361  et  seq.  Baldridge  vs.  State,  69  Ind.  166. 

5  The  duty  of  a  ^ardian  to  make  See   §1355;    see    §§1488,    1534. 

biennial   reports   is   imperative  and  The  Probate  Court  may  examine 

not     discretionary.     Baldridge     vs.  into  all  the  various  acts  of  the  guar- 

State,    69    Ind.    166;     Colburn    vs.  dian  to  the  end  that  a  complete  ac- 

State,    47    Ind.    310;    Eiceman    vs.  count  shall  be  made.     In  re  Strick- 

State,    75   Ind.    46;    Bernhamer   vs.  land,  7  N.  P.  233;   1  Dec.  702. 
Steeg,    (Ind.   App.)    37   N.   E.   Rep.  7  §  11029  G.  C,  §1293. 

420.  8  §  1355. 


1311  WHAT    TO    CONTAIN  §  I486 

to  a  foreign  State,  although  such  fact  of  removal  from  the 
State  terminates  his  guardianship,  yet  the  Court  has  jurisdic- 
tion to  compel  such  guardian  to  account,  and  may  procure 
service  on  him  under  the  provisions  of  sec.  11205,  G.  C,  (§  37).^ 

§  1486.     When  barred  by  lapse  of  time. 

As  a  general  rule,  it  may  be  said  that  lapse  of  time  will  not 
bar  the  right  to  compel  a  guardian  to  file  an  account.^"  But 
long  lapse  of  time,  without  showing  some  reason,  will  be  con- 
sidered to  be  such  laches  on  the  part  of  the  ward  that  Courts 
have  frequently  refused  to  compel  an  accounting.  Thus,  where 
a  period  of  twenty  years  had  lapsed,  it  was  held  to  be  such  a 
want  of  diligence  on  the  part  of  the  ward  that  the  Circuit  Court 
held  that  an  accounting  required  by  the  Probate  Court  with- 
out actual  notice  to  the  former  guardian  was  erroneous."  And 
it  has  been  elsewhere  held  that  twenty  years  was  such  a  bar,^^ 
and  so  nineteen  years  where  the  parties  resided  in  the  same 
neighborhood,^^  and  so  eight  years.^* 

§  1487.     What  it  should  contain. 

The  account  should  contain  a  statement,  made  in  an  orderly 
manner,  of  all  the  receipts  and  expenditures  of  the  guardian. 
In  addition,  it  is  now  required  that  a  full  itemized  statement  of 
the  investments  made  by  the  guardian  of  the  ward's  fund  must 
be  filed  with  the  account.     The  statement  of  an   investment 

9  Netting  vs.  Strickland,  18  C.  C.  till,  34  111.  112;  Woodbury  vs.  Ham- 
136;   9  C.  D.  841.  mend,  54  Me.  332. 

The  Probate  Court  has   e.Kclusive  n  Gilbert   vs.    Gilbert,    13    C.    C. 

jurisdiction.      In   an   action   on   the  29;  7  C.  D.  58. 

bond  the  Common  Tleas  can  compel  12  Heath    vs.   Elliot,    83    la.    357; 

an  accounting.     Wegner  vs.  Wiltsee,  S.  C,  49  N.  W.  Rep.  984. 
23  C.   C,   302.  isMaulfair's  Appeal,   110  Pa.  St. 

10  Woerner  on  Gr.  337,  367;  Wall's  402;  S.  C,  2  Atl.  Rep.  530. 
Appeal,  104  Pa.  St.  14;  Marr's  Ap-  ^*  In  're    Bauer's    Estate,    12    Pa. 
peal,  78  Pa.  St.  66;   Wade  vs.  Lob-  Rep.   77;    Hart  vs.   Stibling    (Fla.) 
dell,    4    Cush.     510;     Hiestand    vs.  6  So.  Rep.  4.55. 

Kuns,  8  Blackf .  345 ;  Stark  vs.  Gam-  See   §  742,  When  may  compel  fil- 

ble,  43  N.  H.  465;  Gilbert  vs.  Gup-       ing,  etc. 

See  §  1352,  Action  on  bond,  etc. 


§  1488  guardian's  accounting  1312 

must  show  its  amount,  its  kind,  its  date,  its  security,  and  its 
rate  of  interest. ^'^ 

The  account  should  include  only  such  matters  as  constitute 
transactions  between  guardian  and  the  estate  of  the  ward,  and 
close  with  the  termination  of  the  guardianhsip.  A  transaction 
occurring  after  the  termination  of  the  guardian,  as  a  general 
rule,  is  one  of  which  the  Probate  Court  has  no  jurisdiction.  In 
some  instances,  however,  the  Court  has  sanctioned  acts  of  the 
guardian  which  were  done  after  his  trust  had  ceased,  if  made 
for  the  benefit  of  the  ward  or  by  the  ward's  consent.  Thus  it 
was  held  that  a  credit  should  not  be  refused  for  moneys  paid 
the  ward's  mother  for  boarding  after  thp  ward's  majority,  to 
which  the  ward  did  not  object.^"  So  our  Supreme  Court  has 
held  that  where  a  guardian  commences  a  suit  on  a  note  which 
he  holds  as  such  tnistee,  that  such  suit  does  not  abate  by  reason 
of  the  ward  arriving  at  majority,  but  it  may  be  prosecuted  to 
final  termination  by  the  guardian.^^  In  addition,  there  should 
be  filed  with  the  account,  vouchers  for  each  item  of  expenditure. 
The  statute  allows  items  to  be  proved  Avithout  voufhers,^*  but 
it  is  to  the  guardian's  interest  in  all  cases  to  have  a  proper 
voucher.  The  statute  relating  to  insane  persons,  etc.,  does  not 
allow  credence  to  be  given  to  a  voucher  signed  by  such  insane 
ward.^®  But  there  is  no  prohibitory  law  against  the  guardiai^ 
accepting  the  voucher  of  a  minor,  but  from  the  fact  that  *ht 
minor  has  no  contractual  ability,  the  voucher  is  not  entitled  to 
the  same  weight  that  is  given  the  voucher  of  an  adult. ^° 

§  1488.    With  what  guardian  should  be  charged. 

The  guardian  should  be  charged  with  all  the  property  that 
comes  into  his  hands  and  with  interest  on  investments,  as  the 
law  provides.^^  If  there  are  any  investments  or  claims  that 
have  become  worthless,  such  fact  should  be  stated  in  the  ac- 
count, and  the  Court  should  pass  upon  the  fact  whether  the 

15  §  lonoi  G.  C,  §  136V.  20  Millen  vs.  Young,  IS  C.  C.  576; 

i«  Wocrncr  on  Gr.  339,  340.  8  C.  D.  395. 

17  Card  vs.  Xeff,  39  0.  S.  607.  §  702,  Accounting  of  admir. 

18  §  1C933  G.  C,  §  1367.  §  721,  Voucher,  etc. 
"  §§  10991,  10992  G.  C,  §  1516.  22  §§  1385,  1388. 


13]  3  ENTITLED  TO  CREDITS  §1489 

guardian  13  responsible  for  the  fact  of  their  being  in  a  worth- 
less condition.  Money  which  a  guardian  had  no  right  to  re- 
ceive, if  received,  must  be  accounted  for  as  assets.^^ 

The  guardian  should  charge  himself  not  only  with  the  fund 
he  has  in  his  hands,  hut  that  which  should  have  come  into  his 
possession  with  the  exercise  of  a  proper  degree  of  diligence. 
With  all  such  property  as  ought  to  be  in  his  possession  by  virtue 
of  a  proper  management  of  the  estate,  he  is  chargeable.^*  He 
should  charge  himself  with  all  the  estate  set  forth  in  his  inven- 
tory in  some  manner."^ 

If  the  guardian  is  indebted  to  the  estate  of  his  ward,  it  is 
probable  that  the  rule  adopted  by  our  Supreme  Court  in  the 
case  of  administrators  and  executors  would  require  him  to  be 
charged  with  such  indebtedness,  although  he  was  insolvent.^* 

§  1489.     Entitled  to  what  credits. 

Whatever  expenditure  the  guardian  has  made  which  was  nec- 
essary and  proper  in  the  discharge  of  his  duty  is  one  for  which 
he  is  entitled  to  credit.  As  a  general  rule,  it  may  be  said  that 
only  such  expenditures  as  are  incurred  during  the  existence  of 
the  guardianship  are  such  as  the  guardian  may  claim  credit  for. 
But  it  has  been  held  that  debts  incurred  before  his  appoint- 
ment, and  even  when  due  to  himself,  might  be  included,  as 
well  as  such  as  were  properly  incurred  after  the  termination 
of  the  guardianship.  But  not  such  as  occurred  after  the  final 
account  was  filed.^^ 

If  the  guardian  advances  money  to  meet  any  payment  for  any 
proper  expenditure,  he  is  entitled  to  charge  interest  on  the  same 
so  advanced  at  the  legal  rate.     We  have  previously  discussed 

23 /n  re  Cloud,  20  Bull.  455;  Goe-  must  account  as   such.     Kaufman'3 

bel,   177.  Estate,  Goebel,  98;  Foster  vs.  Wise, 

A  mother  having  placed  $5,000  in  46  O.  S.  20,  27- 

the  hands  of  her  children's  guardian,  24  §  1373  et  seq.,  as  to  powers  and 

"said  guardian  and  trustee"  to  pay  duties  in  relation  to  estate;   Woer- 

her  the  interest  until  the  youngest  ner  on  Gr.  345. 

child   became   of  age,   and   then   di-  25  See  §  1484  et  seq.,  as  to  succeed- 

vide   the   fund   among  the   children,  ing  Gdn. 

the  guardian   holds   the   interest   as  20  §  300. 

trustee    for    the    mother,    but    holds  27  Woerner  en  Gr.  352,  353. 
the  children's  share  as  guardian  and 


§  1490  guardian's  accounting  1314 

■svliat  are  the  proper  duties  of  a  guardian  and  tile  same  need 
not  be  repeated.-^ 

§1490.  Guardian's  compensation.  "By  the  court  settling 
his  aecount,  every  guardian  shall  be  allowed  the  amount  of  all 
his  reasonable  expenses  incurred  in  the  execution  of  his  trust ; 
and  also  such  compensation  for  his  services  as  the  court  deems 
reasonable."     [R.  S.  §6288.]-"^ 

It  will  be  observed  that  the  matter  of  compensation  to  a 
guardian  for  his  services  is  by  the  above  section  left  entirely 
to  the  discretion  of  the  Probate  Court.  In  the  absence  of  a 
statutory  regulation  on  this  subject,  judges  have  found  in  actual 
experience,  considerable  difficulty  in  determining  what  is  just, 
reasonable  and  proper  compensation.  Sometimes  a  guardian 
is  found  who  errs  for  the  benefit  of  his  ward  in  this  matter; 
but  there  are  some  who  take  the  very  last  cent  that  they  can 
induce  the  Coui-t  to  allow.  It  was  formerly  the  rule  in  En- 
gland that  guardians  were  not  entitled  to  compensation.^"  But 
the  ideas  of  our  people  are  not  in  accord  with  that  doctrine. 
We  believe  that  the  laborer  is  worthy  of  his  liire.^^  The  stat- 
ute provides  that  such  compensation  will  be  forfeited  if  the 
guardian  fails  to  file  his  account  at  the  times  required  by  law, 
unless  the  Court  shall  otherwise  so  state  on  its  joumal,^^  pro- 
viding the  guardian  has  been  notified.  This  seems  to  be  the 
only  forfeiture  provided  by  statute.  We  have  heretofore  seen 
that  ^^  an  administrator  is  entitled  to  his  commission,  although 
he  may  have  been  guilty  of  a  maladministration  of  the  estate, 
and  the  Courts  would  probably  follow  this  rule'  in  reference  to  a 
guardian's  compensation,  at  least  so  far  as  was  proper  to  com- 
pensate him  for  matters  beneficial  to  the  estate,  especially  where 
the  wrong  doing  is  the  result  of  ignorance.^* 

28  §  1361    et  seq.;    §  1378    et  seq.  view  to  making  a  profit  out  of   it. 

Cited  Scattergood  vs.  Ingram,  86  but    still    the    courts    should    allow 

0.  S-  77.  such  reasonable  compensation  as  the 

Tlie  doctrine  that  no  relative  can  circumstances  of  the  particular  trust 

recover,  does  not  apply  to  a  guardian  M'arrant.      Gott  vs.    Culp,   45   ^Mich. 

of  an  imbecile  for  services  rendered.  265. 

the  court  may  allow  such  sum  as  is  32  §  10991  G.  C.,  §   1367. 

proper,   etc.      The  allowance   is   not  33  §  G55. 

a  personal  claim  agains,t  the  ward.  34  Woerner  on  Gr.  357. 

■'^'  The  simple  act  of  receiving  money 

teee  §  1517.  and  giving  a   receipt  therefor,  does 

§  10953  G.   C.  not  entitle  the  sfuardian  to  compen- 

30  Woerner  on  Gr.  363 ;  Sch.  Dom.  sation.      And   where   there   are   two 

Kel.  375.  funds  one  can  not  be  taxed  for  serv- 

31 A    guardian's    duties    are    per-  ices   rendered  to   the   other.     In   re 

sonal    and    honorary    and   the    posi-  Klein,    5    0.    L.    R.    471;    52    Bull, 

tion   is  not  to  be   assumed  with  a  554. 


1315  COMPENSATION  §  1490 

In  determining  the  amount  which  should  be  allowed,  the 
Court  ought  to  take  into  consideration,  fii'st,  the  size  of  the  es- 
tate ;  second,  the  services  required ;  and  third,  the  conduct  of  the 
guardian  as  to  the  management  of  the  estate.  More  might  be 
allowed  where  the  estate  has  been  made  prosperous  by  the  dili- 
gence and  business  thrift  of  the  guardian  than  where  it  was 
suffered  to  diminish  or  barely  maintain  its  own ;  and  then  the 
manner  in  which  the  guardian  looks  after  the  personal  welfare 
of  the  ward  should  be  considered.  That  sum  of  money  which 
will  reasonably  compensate  the  guardian  for  his  time  and  trou- 
ble and  business  capacity  should  be  allowed  him.  In  New 
York,  under  a  statute  which  authorizes  the  Court  to  make  a 
reasonable  allowance  to  guardians,  the  following  rule  was  estab- 
lished :  Five  per  cent,  on  all  sums  received  and  paid  out,  that 
is,  two  and  one-half  per  cent,  for  that  received  and  two  and 
one-half  per  cent,  for  that  paid  out,  on  sums  not  exceeding  one 
thousand  dollars ;  two  and  one-half  per  cent,  on  any  excess,  be- 
tween one  thousand  and  five  thousand,  and  one  per  cent,  for  all 
above  five  thousand  dollars.^^ 

It  was  held  that  this  rule  of  compensation  does  not  cover  the 
entire  field  of  services  and  duties  of  the  guardian,  nor  deny 
him  remuneration  for  his  personal  sendees,^® 

In  Alabama  this  same  rate  is  fixed  by  statute.  In  Maryland 
guardians  of  minors  are  allowed  a  commission  of  not  to  exceed 
ten  per  cent,  of  the  annual  income.^^ 

Another  matter  that  should  be  considered  in  fixing  the  com- 
pensation for  the  guardian  is  the  length  of  time  that  he  has 
served.  Where  the  rate  is  fixed  by  statute  full  compensation 
is  allowed  only  where  tlie  guardian  has  served  the  entire 
time  of  the  guardianship.  Of  course,  the  guardian  cannot  re- 
ceive compensation  in  two  trust  capacities.^^ 

The  statute  relating  to  compensation  for  executors  and  ad- 
ministrators might  serve  as  a  guide  to  a  certain  extent.     Thus, 

35Woeriier  en  Gr.  356;  Matter  of  37  Woerner  on  Gr.  355,  where  the 

Roberts,  3  John,  Ch.  42.  rule  of  various  states  is  given. 

36  Morgan   vs.   Morgan,    39    Barb.  38  15  A.  &  E.  Ency.  of  Law  110; 

20.  Blake   vs.    Pegrani,    101    Mass.   592; 

Redf.  Sur.  Prac.  838. 


§  1491  guardian's  accounting  1316 

if  the  guardianship  was  of  short  duration,  and  the  guardiai 
is  required  to  convert  the  assets  into  money,  there  would  be  nc 
reason  why  he  would  not  be  entitled  to  as  much  as  an  executoi 
or  administrator,  but  it  would  be  wrong  to  allow  a  full  com- 
pensation as  fixed  by  the  statute  relating  to  executors  and  ad- 
ministrators where  there  was  more  than  one  account  filed,  at 
each  time  of  settlement.  In  such  cases  perhaps  the  statutory 
commission  should  be  charged  but  once  upon  the  entire  amount 
of  assets  collected.  Perhaps,  following  the  rule  adopted  bj 
New  York,  allowing  one-half  of  the  per  cent,  on  assets  collected 
and  one-half  on  assets  disbursed  would  be  a  better  rule.  But 
whatever  rule  is  followed,  the  guardian  is  entitled,  as  the  stat- 
ute provides,  to  a  reasoiiable  compensation.  He  is  also  en- 
titled for  extraordinary  services  which  he  may  render  to  the 
estate  either  as  an  attorney  or  othersvise.^" 

§  1491.     Preparation  of  the  account,  etc. 

Much  that  was  said  in  the  chapter  relating  to  the  filing  of  ai 
account  by  the  administrator  or  executor  is  applicable  to  tlu 
preparation  of  the  account."  The  draftsman  should  be  very 
careful  to  see  that  all  matters  contained  in  the  inventory  oi" 
charges  in  a  previous  account  are  in  some  manner  accounted 
for.  The  form  of  an  account  is  very  much  similar  to  that  of 
an  administrator;  it  must  be  sworn  to." 

§  1492.     Notice,  hearing,  exception,  etc. 

The  same  law  is  applicable  to  guardians'  accounts  as  is  ap- 
plicable to  adniiiiistrators'  and  executors'  accounts  in  reference 
to  notice,  time  of  hearing,  exception,  compelling  filing,  etc.,  anc 
need  not  again  be  discussed.*^ 

In  reference  to  the  hearing  of  such  accounts,  Woerner  saysi 

39  Where  the  estate   in  the  hands  §  702  et  seq.,  Accounting  by  adiniB« 

of  the  guardian  is  small   the  Court  istrator. 

can  allow  the  guardian  the  interest  •*-  §§  725,  740. 

upon  the  fund  by  wiy  of  compensa-  The  Probate  Court  may  refer  t 

tion.   Mattox  vs.  Patterson,  60  Iowa  amount    to    a    referee,    but   only   bj 

434.  consent  of  parties.     In  re  Gorman, 

«>§725.  2   X.   P.    (X.S.)    667;    15    Dec.   204j 

41  §  10991  G.  C,  §  1367.  The    decision    wis    made    withouj 

For    further    matters    relating    to  reference    to    §  10833     G.     C,     and 

preparation    of    accounts,    etc.,    see  seems  to  the  aut'ior  to  be  somewhai 

doubtful.     See   §  738. 


1317  EXCEPTIONS  §  1493 

"  While  Courts  cannot  be  too  strict  and  vigilant  in  the  investiga- 
tion of  accounts  in  cases  where  presumption  of  bad  faith  or 
dishonesty  rebut  the  prima  facie  evidence,  by  reason  of  ex- 
travagant charges,  purchase  of  articles  not  needed,  concealment 
of  funds  or  anything  of  the  kind,  yet  guardians  should  not,  in 
the  settlement  of  their  accounts,  be  held  to  the  strictest  rules  of 
evidence.  It  cannot  be  expected  that  they  can  always  have 
witnesses  to  their  various  transactions ;  and  were  they  obliged 
to  prove  the  signature  to  every  receipt  for  debts  paid,  supplies 
purchased,  etc.,  the  expense  of  summoning  witnesses,  taking 
depositions,  etc.,  would  involve  heavy  and  oftentimes  unneces- 
sary expenses."  *^ 

Of  course,  the  guardian  must  show,  as  the  statute  requires,  a 
voucher,  or  by  proper  proof,  that  every  expenditure  set  forth 
in  his  account  has  been  made.  It  will  also  devolve  upon  the 
guardian  to  show  that  he  has  made  proper  investments  of  funds 
in  his  hands,  and  has  in  a  proper  manner  discharged  the  duties 
devolving  upon  him.  While  the  burden  of  proof  as  to  the  cor- 
rectness of  credits  claimed  by  the  giiardian  in  the  settlement  of 
his  account  is  on  the  guardian,  in  the  absence  of  the  showing 
of  bad  faith,  the  presumption  will  be  in  favor  of  the  guardian 
that  he  has  discharged  his  duties  in  a  proper  manner.  The 
statute  differs  from  that  relating  to  administrators  in  reference 
to  vouchers.  The  items  of  an  administrator^  where  the  amount 
exceeds  ten  dollars,  must  be  evidenced  by  a  voucher,  ,or  there 
must  he  a  specific  affidavit  as  to  such  items.** 

All  items  in  a  guardian's  account  may  be  established  by 
proof. 

§  1493.  Effect  of  his  settlement  with  Court.  Eeview  of 
such  settlement.  "The  settlement  in  the  probate  court  of  the 
accounts  of  a  guardian  is  final  between  him  and  his  ward  unless 
an  appeal  be  taken  therefrom  to  the  common  pleas  court  in  the 
manner  provided  by  law.  But  a  subsequent  guardian  during 
the  minority  of  his  ward,  or  a  ward,  within  two  years  after  he 
arrives  at  full  age,  may  open  and  review  such  settlement  for 

«8  Woerner  on  Gr.  343.  **  §  723. 


§  1494  guardian's  accounting  1318 

fraud  or  manifest  mistake  by  civil  action  in  the  common  pleas 
court  o£  the  county  in  which  it  was  made,  or  the  county  where 
the  former  guardian  resides  when  the  petition  is  filed,  as  the 
plaintiff  elects. "     [  R.  S.  §  6289  ]  ^- 

§  1494.     When  account  may  be  opened  up.  '" 

The  effect  of  the  above  section  is  to  make  each  account, 
whether  intermediate  or  final,  a  final  account  between  the  guard- 
ian and  his  ward  as  to  every  fact  contained  in  the  account, 
unless  an  appeal  be  taken  as  provided  by  law.  There  is  only 
one  reservation  to  this  rule,  that  is,  that  the  ward,  within  two 
years  after  arriving  at  the  age  of  majority,  shall  have  the  right 
of  opening  the  account  for  fraud  or  manifest  mistake,  by  ci\dl 
action  in  the  Court  of  Common  Pleas.  As  to  all  matters  con- 
tained in  the  account,  the  settlement  by  the  Court  becomes  an 
adjudication,*"  and  as  such  cannot  be  attacked  in  a  collateral 
proceeding.  In  an  action  upon  a  guardian's  bond  for  the  re- 
covery of  the  amount  found  due  the  ward  upon  the  final  settle- 
ment of  the  guardian's  accounts  in  the  Probate  Court,  the  sure- 
ties are  concluded  by  the  settlement,  and  Avill  not  be  heard  in 
the  absence  of  fraud  and  collusion  to  question  its  correctness  or 
to  demand  a  rehearing  of  the  accounts.*'  And  where  it  is 
claimed  that  the  payment  made  by  the  guardian  Anth  which  he 
credited  himself  in  his  account,  as  approved  by  the  l*robate 
Court,  was  in  fact  wrongfully  made,  the  ward  or  a  subsequently 
appointed  guardian  cannot  bring  an  action  against  the  party 
who  received  payment  for  such  a  claim.**  A  settlement  by  the 
Court,  however,  does  not  include  matters  which  are  not  therein 
contained,  or  which  may  not  by  proper  inference  be  presumed 
to  have  come  Adthin  the  matter  set  forth  in  the  account.*'' 

45  §  10964  G.  C.  and  straightened  out,  the  costs  at- 
This  statute  applies  to  guardians       taching  such  examination  shall  not 

for  idiots,  imbeciles  and  drunkards.  be  taxed  against  the  ward.  In  re 
see  §  10!)81  G.  C.  Gorman,    2    X.    P.    (X.S.)    667;    15 

46  Woodmansie  vs  Woodmansie,  32       Dec.  204. 

O.  S.  18.  Action    to    open    up    an    account 

4  7  Wegner   vs.    Wiltsie,   23    C.    C.  must    be    brought    within    the    two 

302;    Braiden  vs.  Mercer,   44  0.   S.  years' limit  provided  by  statute,  and 

339.  not  within  four  j'ears  after  the  dis- 

48  Lynch  vs.  Cogswell,  18  C.  C.  coverv  of  the  fraud,  under  §11224 
641;  7  C.  D.  12;  Walsh  vs.  IMiller,  G.  C.;  Everett  vs.  Howard,  78  O.  S. 
51  O.  S.  462.  109. 

49  State   vs.   Parish,    1    Ind.   App.  Where  the  finding  is  made  by  the 


441;  Davis  vs.  State,  68  Ind.  104 
Parsons  vs.  Milford,  67  Ind.  489 
Briscoe  vs.  Johnson,  73  Ind.  573 
Naugle  vs.  State,  101  Ind.  284 
Wainwright  vs.  Smith,  106  Ind.  230 
*  Cited.   In   re    Connell.    56    Bull 


Probate  Court,  upon  a  fraudulent 
statement  of  fact,  and  the  law  courts 
give  no  relief,  a  Court  of  Equitv 
will.  Gantz  vs.  Grease,  82  0.  S.  4i. 
A  giiardian's  final  account  is  un- 
impeachable after  two  vears.   Lamb- 

!.•  -     .._       Ti-u: in     XT      r>        /XT  ox 


145;   12  N.  P.    (N.S.)    311.  kin  vs.   Robinson.    10   N.   P.    (X.S.) 

Whore    the    guardian    keeps    such  1 ;  21  Dec.  40:  Woodward  vs.  Curtis, 

loose  and  tangled  accounts  that  it  is  19  C.  C.  15;  10  C.  D.  400. 
necessary    to    have    them    examined 


1319  APPEAL  AND  ERROR  §  1495 

It  is  a  general  practice,  and  one  which  no  doubt  the  Courts 
will  uphold,  that  where,  in  an  intermediate  account  there  is  a 
palpable  error  in  calculation  or  in  omission  to  make  a  proper 
charge  either  for  or  against  the  guardian,  to  permit  such  error 
to  be  corrected  in  a  subsequent  or  final  account.  Having  given 
proper  notice,  the  Court  may  pass  upon  the  account  regardless 
of  the  fact  whether  the  ward  has  had  actual  notice  or  not.^" 

§  1495.     Appeal   and   error. 

The  general  statute  relating  to  appeal  specifically  provides 
that  there  may  be  an  appeal  from  the  decision  of  the  Probate 
Court  upon  an  account  of  the  guardian."  From  the  peculiar 
wording  of  sec.  10959,  Q.  C.,^^*  which  makes  the  account  final 
unless  appeal  is  taken  therefrom  as  provided  by  law,  the  ques- 
tion whether  a  proceeding  in  error  could  be  prosecuted  from  the 
decision  of  the  Probate  Court  upon  an  accounting  is  an  exceed- 
ingly serious  one.  The  probability  is  that  such  jurisdiction 
would  not  be  entertained  and  the  party  would  be  required  to 
follow  the  remedy  of  appeal  particularly  provided  by  statute. 

§  1496.     Settlement  with  succeeding  guardian. 

When  a  guardian  files  his  account  before  his  ward  arrives  at 
the  age  of  majority,  it  is  his  duty  to  pay  to  his  successor  in  the 
trust  the  amount  which  the  Court  may  find  that  is  owing  by  him 
to  his  ward's  estate ;  and  on  failure  so  to  do,  his  successor  may 
sue  him  individually  therefor  or  may  enter  suit  on  his  bond  and 
recover  the  same.  If  there  was  found  anything  due  the  guard- 
ian, it  would  be  the  duty  of  his  successor  to  pay  such  amount 
whenever  he  had  funds  in  his  hands  applicable  for  that  pur- 
pose. As  to  the  succeeding  guardian's  liability  for  investments 
and  assets  delivered  into  his  hands  by  the  former  guardian,  some 
difficulties  have  been  encountered.  Thus  it  is  said  that  a  dis- 
tinction exists  between  loans  made  by  the  guardian  of  funds  in 

50  Scobey  vs.  Gano,  35  O.  S.  550.  just  and  reasonable.  In  re  Gorman, 
See  §743,  How  account  of  admin.       2   N.   P.    (N.S.)    6G7;    15   Dec.    104. 

may  be  opened  up.  A    subsequently   appointed   griard- 

51  §  11206  G.  C,  §  31).  ian  or  the  ward  liiniself  may  have 
^'1*  §  1493.  an  accounting  witliin  two  years  after 
Where  a  case  is  appealed  from  tlie  account  is  filed,  and  if  the  oruardian 

decision    of    the    Probate    Court    re-  moves  from   the  jurisdiction   of   the 

fusing  to  allow  fees  of  a  referee,  the  court,   suit  may  be  brouglit  on   the 

Common  Pleas  may  proceed  and  tax  bond.     Engelcke  vs.  Engeicke,   3  N. 

the   costs   in   the    manner    it   deems  P.   (N.S.)    88;   15  Dec.  529. 


§1496 


GUARDIAN  S  ACCOUNTING 


1320 


his  hands,  and  simply  retaining  investments  previously  made 
by  a  former  custodian,  or  by  the  owner  of  them ;  the  rule  of  lia- 
bility being  much  more  stringent  in  the  former  than  in  the  latter 
case.^" 

The  succeeding  guardian  is  not  bound  to  take  the  securities 
tendered  him  if  they  are  improper  investments,  but  may  insist 
on  having  them  converted  into  cash,  or,  at  any  rate,  he  need 
only  take  the  securities  at  their  actual  value,  and  then  should 
collect  the  balance  from  the  outgoing  trustee.  If  he  takes  the 
securities  at  their  inventory  value,  he  will  be  responsible  for 
them  at  that  price.^'  Especially  would  he  be  responsible,  if  he 
retained  such  security  for  a  considerable  time  uncontroverted. 
He  could  not  then  charge  his  predecessor  with  any  loss.°* 


52  Woerner  on  Gr.  209. 

Thus  where  a  guardian  received 
from  a  former  guardian  three  judg- 
ment bonds,  constituting  liens  upon 
the  property  of  the  obligor  (upon 
which  there  were  prior  liens),  in 
lieu  of  the  money  secured  by  said 
bonds  and  belonging  to  his  ward,  he 
was  held  not  liable  for  loss,  although 
the  obligor  became  insolvent  before 
the  maturity  of  the  third  bond,  and 
the  security  turned  out  to  be  inade- 
quate by  reason  of  the  prior  liens; 
the  Court  considering  that  the  in- 
vestment had  been  made  by  the 
guardian's  predecessor,  with  special 
reference  to  the  interest  of  the  v/ard, 
being  made  payable  when  she  be- 
came of  age,  and  was  such  as  care- 
ful and  prudent  men  would  have 
deemed  safe  at  the  time  the  bonds 
were  assigned  to  him.  Jack's  Ap- 
peal, 94  Pa.  St.  367. 

63  Loring  Trustee's  handbook  83, 
citing  In  re  Salmon,  42  Cli.  Div. 
351;  Thayer  vs.  Kinsej^,  162  M^ss. 
232. 

54  Thayer  vs.  Kinsey,  162  Mass. 
232. 

A  guardian  who  knows  that  his 
predecessor  used  the  ward's  money 


for  his  own  purpose,  but  suffered  his 
accounts  to  be  passed  without  charg- 
ing this  sum  to  him,  Burke  vs.  Tur- 
ner, 85  N.  Car.  500;  or  who  accepts 
from  the  administrator  (Eescher  vs. 
State,  63  Ind.  302)  ;  or  from  his 
predecessor  (State  vs.  Greensdale, 
106  Ind.  364;  55  Am.  Rep.  753)  a 
note,   instead  of  money   is   liable. 

But  the  guardian  is  not  liable  for 
a  note  taken  by  the  executor  which 
came  into  the  guardian's  hands  as 
part  of  the  estate,  except  upon  a 
finding  of  negligence.  Sanders  vs. 
State,  49  Ind.  228. 

Where  the  guardian  negligently 
failed  to  collect  a  note,  but  delivered 
it  to  his  successor,  it  is  no  defense 
that  the  successor  obtained  a  judg- 
ment and  collected  a  pait.  Ames 
vs.   Williams,    74  Miss.   404. 

Compare  Mattax  vs.  Patterson,  60 
Iowa  434;  State  vs.  Bolte,  4  Mo. 
App.  599;   72  Mo.  272. 

Where  the  guardian  received  from 
his  predecessor  a  note,  which  might 
have  been  collected  by  immediate 
action,  but  was  soon  lost  by  the 
debtor's  insolvency,  he  was  held  not 
liable,  the  Court  saying:  "He  is 
not  bound  instantly  to  sue  in  all  di- 


1321  SETTLEMENT  §  1497 

As  a  general  rule,  it  may  be  said  that  it  is  the  duty  of  the 
succeeding  guardian  to  examine  the  account  of  his  predecessor, 
and  to  accept  no  securities  from  him  at  their  face  value  without 
being  satisfied  that  they  are  good  and  that  he  is  willing  to  as- 
sume the  responsibility  of  their  collection ;  and  whatever  he 
agrees  to  accept  in  discharge  of  the  former  guardian's  liability, 
he  will  be  held  accoimtable.  Thus,  where  by  agreement  be- 
tween a  succeeding  and  a  former  guardian,  the  succeeding 
guardian  agreed  to  accept  a  stock  of  goods  in  discharge  of  the 
former  guardian's  indebtedness  to  the  ward,  it  was  held  that 
he  made  himself  chargeable  with  the  amount  of  such  indebted- 
ness.^^ 

Where  a  succeeding  guardian  settled  with  his  predecessor  as 
if  the  amount  he  received  was  in  cash,  although  he  had  accepted 
several  mortgages  in  lieu  of  money,  if  such  mortgages  were  not 
properly  secured  or  invested  in  such  trust  funds  as  required  by 
law,  the  responsibility  of  the  guardian  was  held  to  be  the  same 
as  if  he  invested  the  fund  of  his  ward  himself.^^ 

§  1497.     Settlement  with  ward. 

We  have  heretofore  seen  that  all  contracts  made  by  and  be- 
tween a  guardian  and  his  ward  during  the  guardianship,  and 
its  termination  within  a  short  time  thereafter,  are  always  sub- 
ject to  the  strictest  scrutiny  of  Courts. ^^  In  order  to  make  a 
settlement  binding  between  a  guardian  and  the  ward,  the  guard- 
ian must  show  that  the  ward  had  full  knowledge  of  all  his 
affairs,  and  that  no  undue  advantage  was  taken  in  such  settle- 
ment. For  the  protection  of  the  ward,  a  presumption  of  law 
has  arisen  in  reference  to  all  transactions  between  a  guardian 
and  his  ward,  that  if  such  transaction  results  prejudicially  to 
the  ward's  interest  it  is  construed  to  be  fraudulent.^^ 

rections."     Stem's  Appeal,  5  Whart.  b7  §  1399. 

(Pa.)    472;   34  Am.  Dec.  56!);   15  A.  os  Woerner  on  Gr.  3G0,  3G1. 

&  E.  Ency.  of  Law,  2  ed.  92.  The  relation  of  gun  naan  and  ward 

65  Martin  vs.  Davis,  80  Wis.  37G.  after    settlement    is   that    of    debtn- 

50  ]\ratter    of   Hathoway,    80    Hiin,  and  creditor      Lamkin  vs.  Robinson, 

18G,  188.  10  N.  P.    (N.R.)   1;  21  Dec.  40. 

See   §  708j   Successive  administra-  Six  years  bars  a  claim  for  a  bal- 

tions.  ance    shown    on    a   guardian's    final 

See  State  vs.  Beatty,  33  Bull.  100,  account.    Id. 
for  action  against  former  guardian 
for  failure  to  collect  money. 


§  1497  GUARDIAN ^S  ACCOUNTING  1322 

The  ordinary  conclusive  presumption  tliat  all  men  know  the 
law  does  not  apply  in  such  cases,  and  the  ig^iorance  of  the  legal 
effect  of  the  transaction  is  a  complete  answer  to  the  objection  of 
undue  delay  in  the  assertion  of  his  rights  by  the  ward ;  and  if 
a  guardian  makes  a  final  settlement  with  his  ward,  and  is  dis- 
charged without  having  in  fact  paid  over  the  balance  due  his 
ward,  neither  the  guardian  himself  nor  the  sureties  upon  the 
bond  are  released  from  liability. ^^ 

If  a  settlement  is  honest,  it  discharges  both  the  guardian  and 
his  sureties ;  but  if  it  is  tainted  with  fraud,  or  is  afterwards  set 
aside,  it  is  wholly  void."" 

Where  such  a  settlement  is  fairly  made,  it  can  be  enforced, 
and  if  the  guardian  induces  his  ward  to  sign  a  receipt  for  the 
money,  and  then  does  not  pay  it  to  her,  she  may  sue  him  for  the 
amount  without  in  any  way  opening  or  reviewing  the  account 
which  was  settled  in  the  Probate  Court.®^ 

While  a  guardian  may  make  a  settlement  out  of  Court,  and 
before  his  final  account  has  been  approved  by  the  Court,  yet  he 
always  does  so  with  some  liability  to  himself.  The  better  way 
is  for  the  guardian  to  file  his  account,  let  it  be  passed  upon  by 
the  Court,  and  then  pay  whatever  is  found  due  to  the  ward,  and 
take  the  ward's  receipt  in  full,  having  the  ward's  signature  made 
in  the  presence  of  witnesses  or  in  open  Court,  and  have  such  re- 
ceipt recorded  with  the  final  account.®" 

59Naugle  vs.  State,  JOl  Ind.  284.  settlement    with    the    administrator 

60  Bohart  vs.  Atkinson,  14  O.  228;  and  took  his  receipt  in  full  before 
Douglass  vs.  Ferris,  1.38  N.  Y.  192;  the  account  was  passed  upon  by  the 
34  A.  S.  Eep.  435.  Court.     The    widow    of    the    ward 

61  Lindsay  vs.  Lindsay,  28  O.  S.  claimed  that  she  was  a  party  in  in- 
157.  terest   and   appeared    in   Court   and 

See  Berkmeyer  vs.  Kellerman,  32  filed  exceptions,  the  Court  sustain- 

0.  S.  239,  where  a  conveyance  by  a  ing  her  right  to  do  so.     While  the 

minor  on  the  day  he  became  of  age  exceptions   were   not   sustained   and 

to  his  guardian  was  set  aside.  the  account  was  finally  approved  by 

62  The  following  came  within  the  the  Court,  yet  the  guardian  was  re- 
author's  personal  experience.  The  quired  to  defend  his  account  when 
ward  having  died  and  there  being  an  all  funds  in  his  possession  had  been 
administrator   appointed,   the   guar-  paid  out. 

dian  at  the  time  he  filed  his  final  ac-  See    further    as    to    contracts    be- 

count  in  the  Probate  Court  made  a       tween  guardian  and  ward,  §  1399. 


1323  HOW    FINDING    ENFORCED  §  1498 

§  1498.     How  finding  of  Probate  Court  enforced. 

The  Probate  Court  has  no  power  to  compel  obedience  to  its 
judgment  or  decree,  or  to  enforce  the  payment  of  the  balance 
found  by  execution;®^  there  is  no  statute  specially  applicable 
thereto.  If  such  amount  is  not  paid,  the  succeeding  guardian 
or  ward  must  commence  an  action  in  the  Court  of  Common 
Pleas  to  recover  whatever  may  be  due.''* 

§  1499.  Settlement  by  executors,  administrators,  etc.,  of 
guardians.  How  enforced.  "When  a  guardian  dies  or  by 
reason  of  insanity  or  other  incompetency,  is  placed  under 
guardianship  before  the  settlement  in  court  of  his  or  her  guard- 
ianship account,  the  executor,  administrator  or  guardian  of 
such  deceased  or  incompetent  guardian,  must  settle  such  ac- 
count in  the  manner  the  guardian  should  have  done.  Any  per- 
son having  an  interest  in  the  settlement  of  the  account,  or  the 
court  by  which  such  guardian  was  appointed,  of  its  own  motion, 
by  citation  to  be  issued,  returned  and  proceeded  upon  accord- 
ing to  the  provisions  of  law  then  in  force  for  the  settlement 
of  decedent's  estates,  may  compel  such  settlement  to  be  made 
by  such  administrator,  executor  or  guardian.  The  executor, 
administrator  or  guardian  making  the  settlement  shall  be  al- 
lowed such  compensation  therefor  as  the  court  with  which  it  is 
made  deems  reasonable."     [R.  S.  §  6291.] ^^ 


63  A  failure  to  pay  is  not  a  con-  ward  exists,  and  over  these  the  Pro- 
tempt  of  Court.  Ex  parte  French,  bate  Court  has  sole  jurisdiction. 
4  Gaz.  209 ;  In  re  Rowekamp,  27  B.  Subsequent  dealings  after  the  ward 
289.  has  become  of  age  have  nothing  to  do 

64  The  language  of  §  10848  G.  C.  with  the  guardian's  account.  At 
(§761),  seems  to  permit  an  action  that  time  tne  relation  of  guardian 
to  be  brought  in  the  Probate  Court,  and  ward  has  ceased,  and  that  of 
on  the  settlement  of  a  guardian,  the  debtor  and  creditor  has  begun;  Cro- 
same  as  an  administrator's,  etc  —  well's  Appeal,  2  Watts,  295;  and 
but  in  other  sections,  to-wit.  both  parties  have  passed  beyond  the 
§§  10850  G.  C.  (§  771.J  ;  §10856  G.  control  of  the  Probate  Court,  except 
C.  ( §  783 ) ,  the  codifters  do  not  in-  as  to  matters  which  occurred  while 
elude  guardians,  although  they  are  their  former  relations  subsisted. 
in  the  original  act.     58  V.  202,    ;tc.  IMeier   vs.    Herancourt,    8    Bull.    29; 

The  accounts  of  a  guardian  msan  Woerner  on  Gr.  110. 

his  dealings  on  account  of  his  ward  <">'>  §  10957  G.  C. 

while  the  relation    of  guardian   ;:nd  See  §  707. 


§  1500  guardian's  accounting  1324 

§  1500.     Commeiits. 

LTnder  tlie  statute  relating  to  administrators,  it  is  made  the 
duty  of  the  administrator  of  a  deceased  administrator  to  file  the 
account  within  six  months."" 

The  above  section  gives  no  such  length  of -time,  and  it  is  the 
duty  of  the  administrator  of  a  deceased  guardian  to  forthwith 
file  such  account.*'^ 

The  settlement  hy  the  administrator  of  a  deceased  guardian  is 
the  same  in  effect  as  if  made  by  the  guardian  himself.''^ 

The  administrator  has  no  power  to  manage  the  property  of 
the  estate,  but  only  to  transmit  it  to  the  succeeding  guardian. 
He  cannot  maintain  an  action  on  the  bond  of  a  third  person  to 
recover  a  sum  alleged  to  be  due.®^  He  has  no  authority  to  in- 
vest the  funds,  nor  to  discharge  the  guardian's  general  indebted- 
ness by  setting  aside  a  portion  of  the  guardian's  estate  for  that 
purpose.''" 

The  executor  of  a  deceased  guardian  has  no  right,  it  has  been 
held^  to  draw  from  the  bank,  nor  the  bank  to  pay  out  to  him, 
money  deposited  by  the  deceased  as  guardian.''^ 

66  §  10822  G.  C,  §  707.  69  Davis  vs.  Fox,  69  N.  C.  435. 

67  See  §  1335;   In  re  Est.   Bruek-  7o  Moorelicad  vs.  Orr,  1  S.  C.  304; 

^Trt}  ^a^'  ^^'^J   ^"        ^.    r^  c  Clark  vs.  Tompkins,   1   S.  C.   119. 

esBraiden   vs.   Mercer,    44   0.  S.  ^                -A     ,   \^«  r,  ^    ,o^ 

339,  345 ;  Scobey  vs.  Gano,  35  O.  S.  ''  ^ary  vs.  Bank,  2G  S.  C.  538. 
550. 


1325 


GUARDIANS  OP  LUNATICS,  ETC. 


§  1501 


CHAPTER  LXXXII. 
GUARDIANS  OP  LUNATIC,  IMBECILE  AND  IDIOT. 


§  1501     Guardian   of    idiot,   imbecile      §  1521 
and    lunatic.      Who    is    an 
imbecile. 

§  1501a  Guardian    for    persons    con-       §  1522 
fined  in  State  institutions. 

§  1502     Court  having  jurisdiction. 

§  1503     For       whom       appointment 
made. 

§  1503a  Guardians  for  incompetents  §  1522a 
and  persons  confined  in  in-  §  1522b 
stitutiohs. 

§  1504     Application      for      appoint-       §  1523 
ment. 

§  1505     Form  of  application. 

§  ISOe     Notice,  entry,  etc.  §  1524 

§  1507     Form  of  notice  and  service. 

§  1508     Hearing,   etc.  §  1524a 

§  1509     When      order      should      be 

made.  §  1524b 

§  1510     Entry.     Finding   person   in- 
capacitated. 

§  1510a  Costs.  §  1524c 

§  1511     Effect     of     finding     of     dis-       §  1525 
ability. 

§  1512     Who  may  or  should  be  ap- 
pointed. 

§  1513     When   guardianship   to   ter-       §  1526 
minate. 

§  1514    Procedure   for   removal,   etc. 

§  1515     Appeal   and    error. 

§  1516     Laws    applicable    to    guard- 
ians    of     lunatics,     idiots,      §  1527 
imbeciles    and    their    chil- 
dren. §  1528 

§  1516a  Settlement    of    such    guard- 
ian. §  1520 

§  1517     Exception     as     to     voucher       §  1530 
and    opening    account. 

§  1518     Duties    of    guardian    as    to       §  1531 
welfare  of  ward.  §  1532 

§  1519     Duty  of  guardian  as  to  ex- 
isting  contracts.  §  1533 

§  1520     Insolvency  of  lunatics. 

§  1501  Guardian  for  idiot,  imbecile  and  lunatic.  Who  is 
an  imbecile.  "The  word  'imbecile,'  as  used  in  this  chapter 
means  a  person  who,  not  bom  idiotic,  has  become  so."  [R.  S. 
§  6302.  ]i 

Upon  satisfactory  proof  that  a  person  resident  of  the  county, 
or  having  legal  settlement  in  any  township  thereof,  is  an  idiot 

1  §  10988  G.  C. 


Suit  by  guardian  of  idiot, 
imbecile  or  lunatic,  and 
revivor   of   same. 

Sale  of  real  estate  by 
guardian  of  idiot,  imbe- 
cile or  lunatic.  Petition. 
Private  sale.  Parties  de- 
fendant. 

Petition;    what    to    contain. 

Husband  or  wife  to  be 
made    defendant. 

Dower  of  insane,  idiotic  or 
imbecile  person;  how  as- 
signed or  sold. 

Procedure  in  assignment  of 
dower. 

Application  to  sell  and  re- 
lease  dower,   etc. 

Entry  authorizing  and  or- 
dering release  of  dower 
right,   etc. 

Guardian's  deed. 

Guardian  empowered  to 
lease  and  improve  estate. 
Termination  of  lease. 
Lien  of  tenant. 

Long  lease  by  guardian 
may  be  authorized  by 
court.  Lease  for  three 
years  without  order  of 
court. 

Application  for  authority  to 
make   long   lease. 

Proceedings  on  such  appli- 
cation. 

Final  hearing  and  orders. 

Guardian  may  improve  real 
estate    of    imbecile,    etc. 

Proceedings. 

May  unite  with  owners  of 
adjacent   property. 

Guardian's  report,  etc. 


§  1501a  GUARDIANS   OP   LUNATICS,    ETC.  1326 

or  embecile,  or  lunatic,  or  an  incompetent  by  reason  of  advanced 
age  or  mental  or  physical  disability  or  infirmity,  the  probate 
court  shall  appoint  a  guardian  for  such  person,,  who  by  virtue 
of  such  appointment  shall  be  the  guardian  of  the  minor  chil- 
dren of  his  ward,  unless  the  court  appoints  some  other  person 
as  their  guardian.  No  such  guardian  shall  be  appointed  until 
at  least  three  days  after  the  personal  service  «f  a  written  notice 
setting  forth  the  time  and  place  of  the  hearing  shall  have  been 
served  upon  the  person  for  whom  such  appointment  is  sought ; 
and  also  until  at  least  three  days  after  written  notice  has  been 
served  upon  the  persons  next  of  kin  of  such  person  for  whom 
appointment  is  sought,  resident  in  the  county  in  which  applica- 
tion is  made,  to  attend  such  hearing  at  the  same  time  and  place ; 
which  notice  shall  be  served  by  delivering  a  copy  of  it  to  each 
person  named  therein  or  by  leaving  such  copy  at  his  or  her 
usual  place  of  residence.     [R.  S.  §  6302;  108  v.  387.]  i* 

§  1501a.     Guardian  for  person  confined  in  state  institution. 

Upon  satisfactory  proof  that  a  person  resident  of  the  county,  or 
having  a  legal  residence  therein,  is  confined  in  any  state,  benevo- 
lent or  penal  institution  under  the  order  of  any  court,  the  pro- 
bate court  may  on  its  own  motion,  or  upon  application,  appoint 
a  guardian  for  such  person.  No  guardian  shall  be  so  appointed 
until  at  least  three  days'  written  notice  to  the  person  so  con- 
fined and  the  persons  next  of  kin  resident  in  the  county  of  such 
person  is  given  to  attend  at  the  same  time  and  place,  which  shall 
be  served  by  delivering  a  copy  of  it  to  each  person  named  therein, 
or  by  leaving  a  copy  at  his  usual  place  of  residence.  [103  v. 
471.]  If 

Laws  applicable.  Laws  relating  to  guardians  for  minors, 
idiots,  imbeciles  and  lunatics  or  an  incompetent  by  reason  of 
advanced  age  or  mental  or  physical  disability  or  infirmity,  and 
pointing  out  the  duties,  rights  and  liabilities  of  such  guardians 
and  their  sureties,  shall  be  applicable  to  guardians  appointed 
under  the  provisions  of  section  10989-1  of  the  General  Code. 
[103  V.  471;  109  v.  73.]^$ 

§  1502.     Court  having  jurisdiction. 

The  appointment  must  be  made  by  the  Probate  Court  of  the 
county  in  which  the  alleged  idiot,  imbecile  or  lunatic  resides,  or 
in  which  he  has  a  legal  settlement  in  some   township   of  such 

1*  §  10989  G.  C.  See  §  1317,  Kinds  of  Gdns. 

The    clause    providing   for    notice  it  §  100S9-1  G.  C. 

was  not  in  the  statute  prior  to  Mch.  it  §  10989-2  G.  C. 
1,  1889. 


1327  WHEN    APPOINTMENT    MADE  §  1502 

county.  This  jurisdiction  is  exclusive,  and  no  other  court,  either 
Probate  or  Common  Pleas,  has  a  right  to  make  such  appoint- 
ment. "What  will  constitute  a  resident  of  the  county  has  been 
discussed  in  several  previous  chapters  of  this  work.^ 

"Wliere  a  guardian  is  appointed  for  a  lunatic  or  an  imbecile, 
the  residence  of  such  person  w^ould  be  that  in  which  he  lived  at 
the  time  the  imbecility  or  lunacy  fastened  itself  upon  him.  An 
idiot  himself  can  not  change  his  place  of  residence,  and  in  this 
respect  is  very  much  similar  to  a  minor — that  is,  when  he 
changes  his  residence,  it  must  be  by  virtue  of  the  direction  of 
some  one  having  legal  control  over  him.  The  Probate  Court 
can  not  appoint  a  guardian  unless  the  person  has  resided  con- 
tinuously, for  a  period  of  at  least  twelve  consecutive  months, 
or  has  come  into  such  county  with  his  father,  or  some  one  having 
legal  control  over  him,  with  the  intention  of  making  it  his 
permanent  place  of  abode.^ 

The  second  requirement  of  the  statute  is  that  the  alleged  im- 
becile, idiot  or  lunatic  must  have  a  legal  settlement  in  the  town- 
ship of  the  county  if  he  is  not  a  resident  of  the  county.  "Legal 
settlement"  has  been  defined  to  mean  the  continuous  residence 
within  the  county  for  twelve  months.* 

"Woerner  says:^  "The  subject  of  the  settlement  of  paupers 
has  given  rise  to  considerable  litigation,  and  two  principles  of 
law  are  said  to  be  well  established  which  throw  light  on  the 
question  of  jurisdiction  over  persons  of  unsound  mind:  first, 
that  an  idiot  (or  person  of  unsound  mind)  can  acquire  no  resi- 
dence or  settlement  in  any  place  by  virtue  of  his  own  acts ;  and 
next,  that  a  person  having  acquired  a  legal  settlement  in  one 
place,  that  settlement  continues  until  he  acquires  a  legal  settle- 
ment in  another  place  in  the  State." 

§  1534,  Gdns.  of  drunkards.  where  he  or  she  made  it  his  or  her 
2  §§  116,  1322.  home.     In  most  instances  there  can 
^  In  re  Canady,  4  N.   P.  403;    7  be    no    difficulty    in   applying   these 
Dec.  285.  provisions  of  the  law,  in  .the  light 
In  Payne  vs.  Town,  29  111.  125,  it  of  which  the  statute  must  be  read, 
is   said:    "The  term   residence  men-  in   order    to   give    it    its   legitimate 
tioned  in  this  chapter,  shall  be  taken  office.     One  of  these  is,  that  an  idiot 
and  considered  the  actual  residence  can   acquire  no   residence   or  scttle- 
of  the  party  or  the  place  where  he  ment  in  any  place,  by  virtue  of  his 
or  she  was  employed,  or  in  case  he  or  her  own  acts,  for  an  idiot  is  in- 
or  she  was  in  no  employment,  then  capable  of  exercising  a  will  or  do- 
it shall  be  considered  and  held  to  be  ing  any  act  binding  on  himself  or 


§  1503 


GUARDIANS   OF   LUNATICS,    ETC. 


1328 


§  1503.    For  whom  appointment  made. 

The  person  for  whom  a  guardian  can  be  appointed  under  the 
provisions  of  sec.  10989,  G.  C.,°  must  be  either  an  idiot,  imbecile 
or  a  lunatic."'^  These  various  designations  are  intended  to  in- 
clude persons  who  by  want  of  understanding  are  unable  to 
properly  take  care  of  themselves  or  their  estate.  An  idiot  is 
defined  to  be  one  who  has  had  no  understanding  from  his  na- 
tivity.^ 

When  a  man  can  not  count  or  number  twenty,  nor  tell  his 
father's  nor  mother's  name,  or  his  age,  having  been  frequently 
told,  it  is  fair  presumption  that  he  is  devoid  of  understanding.® 


others.  His  residence  or  settlement 
must  be  derived  from  bis  father,  or 
those  having  the  paramount  right  to 
control  him. 

^  The  object  of  the  law  in  requir- 
ing the  appointment  to  be  made  in 
the  county  in  which  the  person  for 
whom  the  appointment  is  sought,  re- 
sides, or  has  a  legal  settlement,  is 
that  it  be  made  where  it  is  most 
likely  that  persons  having  an  inter- 
est in  such  appointment  or  the  wel- 
fare of  such  unfortunate  person  will 
have  notice  of  such  proceedings,  and 
maj^  take  such  steps  as  will  prevent 
an  injustice  being  done.  It  is  to 
prevent  the  spiriting  away  of  such 
weak-minded  person  from  his  rela- 
tives or  friends,  to  strangers,  and 
there  make  an  application,  which  by 
reason  of  no  one  to  defend,  might 
result  in  a  great  wrong.  This  court 
is,  or  at  least  should  be,  the  special 
protector  of  such  persons.  In  re 
Canady,  4  X.   P.   404;    7   Dec.  283. 

5  Woerner  on  Gr.  39S. 

G  §  1.501  R.  S. 

Ga  See  next  section. 

7  Bouv.  Die, 

In  Owing's  Case,  1  Bland  (Md.) 
370,  it  was  said:  "Idiocy  is  that 
condition  in  which  the  human  crea- 
ture has  never  bad,  from  birth,  any 
the  least  glimmering  of  reason,  and 
is  utterly  destitute  of  all  those  in- 
tellectual faculties  by  which   man, 


in  general,  is  so  eminently  and  pe- 
culiarly distinguished.  It  is  not  the 
condition  of  a  deranged  mind,  but 
that  of  a  total  absence  of  all  mind. 
Hence  this  state  of  faculty  can  rare- 
ly or  ever  be  mistaken  by  any — • 
the  most  superficial,  observer.  The 
medical  profession  seems  to  regard 
it  as  a  natural  defect,  not  as  a  dis- 
ease in  itself,  or  as  the  result  of 
any  disorder.  In  law  it  is  also  con- 
sidered as  a  defect,  and  as  a  per- 
manent and  hopeless  incapacity." 

The  difference  between  an  idiot 
and  a  madman  is,  that  "madmen 
put  wrong  ideas  together,  and  so 
make  wrong  proposition,  but  argue 
and  reason  right  from  them;  but 
idiots  make  very  few  or  no  proposi- 
tions, and  reason  scarcely  at  all." 
Com.  vs.  Haskell,  2  Brews.  (Pa.) 
491;   15  A.  &  E.  Ency.  of  Law  924. 

SBouv.  Law  Die,  Title,  idiot. 

A  person  who  has  attended  school 
for  a  number  of  years  and  is  not 
able  to  tell  how  much  ten  times 
twelve  is,  or  six  times  fifteen  or  sis 
per  cent,  of  $100,  or  ten  per  cent, 
of  $100,  or  how  he  would  invest  $400 
other  than  he  would  put  it  in  the 
bank,  although  in  some  small  deal- 
ings he  is  close  and  careful,  and  is 
generally  regarded  as  stingy,  is  not 
capable  of  taking  care  of  his  own 
property.  Frantz  vs.  Frantz,  6  Dec. 
555;  4  k.  P.  278. 


1329  IDIOCY IMBECILITY  1503 

Our  statute  defines  an  imbecile  to  mean  a  person  wlio  is  not  born 
idiotic,  but  has  become  so.  It  therefore  follows  that  idiocy  and 
imbecility,  within  the  statute  applying  to  guardianship  for  such 
persons,  mean  the  same  thing,^  only  the  one  has  been  such  from 
birth  and  the  other  was  acquired  afterwards.  An  imbecile  is 
defined  as  one  destitute  of  strength,  either  of  body  or  mind; 
one  who  is  weak,  feeble,  impotent  or  decrepit,^" 

A  lunatic  is  one  who  is  insane,  and  insanity  is  defined  to  be 
the  prolonged  departure  without  any  adequate  cause  from  the 
states  of  feeling,  modes  of  thinking,  usual  to  the  individual  in 
health.^^  Another  definition  is  that  a  lunatic  is  one  who  hath 
had  understanding,  but  by  disease,  grief  or  other  accident  has 
lost  the  use  of  his  reasoning.^- 

It  will  be  observed  that  under  this  definition  of  a  lunatic 
might  also  be  included  an  imbecile — the  difference  being  that 
lunacy  results  from  an  acute  derangement  of  the  understand- 
ing, while  imbecility  generally  follows  from  a  decay  of  under- 
standing, resulting  from  old  age,  disease,  etc.  But  the  main 
question  before  the  court  in  this  kind  of  proceed'ng  is  not 
whether  the  person  is  an  idiot  or  an  imbecile  or  a  lunatic  in 
the  general  sense  of  the  term,  but  whether  he  is  possessed  of 
such  understanding  as  will  enable  him  to  make  that  use  of 
himself  or  his  property  as  he  would  do  were  he  possessed  of 
his  right  faculties.  It  was  held  in  one  case  by  our  Supreme 
Court  that  where  a  person  was  appointed  and  qualified  as 
guardian  of  an  infant,  who  was  also  of  unsound  mind,  but  the 
record  was  silent  as  to  the  ground  of  the  appointment,  and  the 
guardian  continued  to  act  as  such  for  seven  years  after  the 
infant  was  of  age,  it  would  be  presumed  that  the  appointment 

9  It  evidently  did  not  mean  that  587,  it  was  said  tliat  "infirmity  of 
a  person  cannot  be  adjudged  an  im-  mind,  termed  imbecility,  as  d'stin- 
becile  unless  he  is  a  complete  idiot  guislied  from  idiocy  or  lunacy,  is 
— that  is,  a  person  without  mind  usually  incident  to  extreme  a^e,  and 
and  capacity.  It  simply  means  that  is  generally  the  result  of  a  gradual 
a  person  must  have  become   infirm  decay  of  the  mental  faculties." 

to  the  extent  that  he  can  not  man-  n  Bouv.  Law  Die, 

age    his   business    and   affairs   with  See  In  re  Shellcg,  II  Dec.  81. 

sufTlcient    capacity    to    preserve    his  12  1  Black.  Com.  304. 

property.      In    re    Emswiler,    Ohio  The     word     "insanity"     will     in- 

Leg.  Xew.  Vol.  8;  8  N.  P.  132.  elude  imbecility.     Eoss  vs.  Todd,  4 

10  In  Messenger  vs.  Bliss,  35  0.  S.  C.  C.  1;  2  C.  D.  385. 


§  1503a  GUARDIANS   OF   LUNATiCS,    ETC.  1329a 

covered  both  grouuds.^^     This  question  will  again  be  referred 
to  in  a  subsequent  section." 


§  1503a.    Guardians  for  incompetents  and  persons  confined  in 
state  institutions. 

Since  the  former  edition  of  this  work  the  legislature  has  added 
three  classes  of  persons  for  whom  a  guardian  may  be  appointed, 
to-wit'. 

1.  An  incompetent  "by  reason  of  advanced  age  or  mental  or 
physical  disability  or  infirmity.    §  10989  G.  C.  (§  1501). 

2.  A  person  confined  in  any  state  benevolent  or  penal  institu- 
tion under  the  order  of  any  court.    §  10989  G,  C.  (§  1501a). 

3.  A  person  who  is  incapable  of  taking  proper  care  of  himself 
or  herself,  or  his  or  her  property,  or  neglects  or  fails  to  provide 
for  his  family,  or  for  other  persons  whom  he  is  chargeable  by 
law  to  provide  for  by  reason  of  improvidence.  §  11011  G.  C. 
(§1537). 

In  the  first  two  the  procedure  is  the  same  as  in  the  appoint- 
ment for  a  lunatic;  in  the  latter  the  same  as  for  a  drunkard. 

The  recent  amendment  affecting  the  appointment  of  a  guard- 
ian for  a  lunatic,  etc.,  now  provides  that  no  appointment  can 
be  made  until  at  least  three  days  after  the  personal  service  of  a 
written  notice  setting  forth  the  time  and  place  of  hearing  shall 
have  been  served  upon  the  person  for  whom  the  appointment 
is  sought.  It  was  the  practice  of  many  courts  before  this  provi- 
sion became  the  law,  to  require  this  to  be  done;  but  it  was  not 
mandatory,  and  further  this  must  be  a  personal  service;  it  can 
not  be  made  by  leaving  a  copy  at  his  usual  place  of  abode.  The 
facts  that  the  order  can  not  be  made  until  after  three  days  from 
date  of  service,  and  that  the  service  must  be  a  personal  one, 
are  jurisdictional  facts,  and  an  order  made  where  the  statute 
has  not  been  complied  with,  would  be  null  and  void.  In  addition 
to  this  the  notice  must  be  given  to  the  next  of  kin  as  formerly 
provided.  The  only  difference  in  procedure  for  appointment  of 
a  guardian  for  a  lunatic,  etc.,  and  a  drunkard,  etc.,  is  in  the 
length  of  time  of  notice  to  be  given,  and  in  the  fact,  where  the 
application  is  for  a  drunkard,  etc.,  only  the  person  for  whom 
the  guardianship  is  sought,  needs  to  be  notified. 

13  King  vs.  Bell,  36  0.  S.  460.  *  This   is   uot  essential,  but  mav 

14  See  §  1509.  be  desirable. 


1329b  IDIOCY IMBECILITY  §  1504 

What  will  constitute  an  incompetent,  remains  yet  to  be  judi- 
cially determined,  but  it  is  now  do  doubt  intended  to  apply  to 
persons  who  may  be  neither  idiots,  lunatics,  nor  imbeciles,  but 
yet  not  strong  enough  mentally  or  physically,  or  both  combined, 
to  properly  take  care  of  themselves,  or  their  property.  The 
same  rule  should  be  given  as  to  want  of  capacity  in  all  cases. 
The  difference  between  guardianship  under  the  statute  relating 
to  lunatics  and  that  relating  to  drunkards,  is,  that  under  the 
latter  the  cause  for  the  existing  facts  which  justify  a  guardian, 
lies  largely  within  the  will  of  the  party  himself;  under  the 
former  this  is  not  the  case. 

The  question  will  sometimes  arise,  upon  what  ground  the 
application  shall  be  based,  as  these  various  causes  which  will 
justify  a  guardian,  run  into  each  other.  The  person  about  to 
make  the  application  should  carefully  consider  which  of  the 
following  the  evidence  will  show:  1,  idiocy;  2,  lunacy;  3,  imbe- 
cility; 4,  incompetency  by  reason  of  advanced  age  or  physical 
disability  or  infirmity ;  5,  confinement  in  any  state  benevolent 
or  penal  institution ;  6,  incapable  of  I,  taking  proper  care  of  him- 
self or  herself;  IT,  of  his  or  her  property;  ///,  or  neglecting  or 
failing  to  provide  for  his  own  family;  or  7F,  other  persons  whom 
he  is  charged  by  law  to  provide  for,  by  reason  of  a,  intemper- 
ance; b,  improvidence;  c,  or  habitual  drunkenness. 

Several  of  these  causes  I  apprehend,  might  be  joined  in  one 
application  if  the  person  was  in  doubt,  only  if  the  application  be 
on  the  first  five  grounds,  notice  must  be  served  on  the  next  of 
kin  and  may  be  heard  in  three  days.  If  on  the  sixth  ground, 
five  days'  notice  must  be  given.  In  all  cases  there  must  be  a 
personal  service  on  the  person  for  whom  the  guardianship  is 
sought. 

§  1504.     Application  for  appointment. 

"Whenever  it  is  sought  to  have  the  court  make  an  appointment 
for  a  person  under  a  disability,  some  interested  party  should 
appear  in  the  Probate  Court  and  file  an  application.  This  ap- 
plication should  set  forth,  first,  facts  showing  that  the  person 
making  the  application  has  some  interest  in  the  alleged  idiot, 
imbecile  or  lunatic  * ;  second,  that  the  alleged  imbecile,  idiot  or 
lunatic  is  a  resident  of  the  county  in  which  the  application  is 
made,  or  has  a  legal  settlement  in  some  township  thereof;  third, 
it  should  state  the  age  of  such  idiot,  etc. ;  fourth,  it  should  con- 
tain an  allegation  that  the  said  person  is  either  an  idiot,  lunatic 


§  1505  GUARDIANS   OF   LUNATICS,   ETC.  1330 

or  imloecile;  fftlh  that  such  person  is  incapable  of  tailing  care 
of  or  prcscrvir.fj  his  property ;  sixth,  it  should  state  the  amount, 
character  and  nature  of  the  alleged  idiot's,  etc.,  property; 
seventh,  it  should  state  the  name,  and,  if  a  minor,  the  age,  and 
the  place  of  residence  of  all  of  his  next  of  kin ;  eighth,  it  should 
contain  a  prayer  for  such  appointment  and  be  verified.  The 
court  should  require  an  application  of  this  kind  to  be  filed  even 
though  it  had  previously  passed  upon  the  party's  insanity  and 
committed  such  person  to  the  asylum.  In  proceedings  to  com- 
mit a  person  to  a  hospital  for  the  insane,  the  statute  does  not 
require  notice  to  be  given  to  the  next  of  kin  or  any  person. 
But  in  proceedings  to  have  a  guardian  appointed,  such  next  of 
kin  is  entitled  to  notice,  and  it  would  now  be  held,  although  the 
Supreme  Court  held  otherwise,^^  under  the  statute  as  it  then 
existed,  that  an  appointment  made  without  such  notice  would 
be  void.^® 

§  1505,     Form  of  application. 

(Title.) 

Now   comes  A.  B.,  a  resident  of ,  and  represents   to  the 

Court  that  one  C.  D.,  age years,  is  a  resident  of  this  county  and  has 

a  legal  settlement  in  the  tosvnship  of in  said  county.     That 

tlie  said  C.  D.  is  an  idot  (lunatic  or  imbecile)  (if  a  lunatic  has  been  com- 
mitted to  an  asylum,  state  such  fact)  and  by  reason  of  such  idiocy  (im- 
becility or  lunacy)  he  is  incapable  of  taking  care  of  (himself)  or  preserving 
his  property. 

Said  A.  B.  further  represents  that  the  following  is  the  whole  estate  of 
said  C.  D.,  to-wit:   personal  property  consisting  of    (here  mention)    of  the 

value  of dollars;    and   real   estate    (here   describe)    of   the 

probable  value  of dollars.  That  the  following  named  per- 
sons are  the  only  next  of  kin  of  the  said  C.  D.  resident  of  this  county 


Wherefore  he  asks  and  prays  that  a  guardian  of  the  person  and  estate 
of  said  C.  D.  be  appointed  and  that  the  Court  may  fix  a  time  for  the 
hearing  of  this  application  and  that  notice  thereof  may  be  given  to  the 
said  C.  D.  and  his  next  of  kin.  resident  in  this  cormty. 


State  of  Ohio. County,  ss. 

A.  B.,  being  first  duly  sworn,  says  that  the  statements  contained  in  the 
above  are  true  as  he  verilv  believes. 


Sworn   to   before  me   and   subscribed    in   mv    presence   this day   of 

,   190.  ..17 


§1506.    Notice,  entry,  etc. 

Prior  to  1889,  the  statute  did  not  require  notice  to  be  given 

to   any   one,   but   now   requires   not   only   notice   but    personal 

notice  in  writing.     "Whether  or  not  the  alleged  imbecile  must 

iSHeckman  vs.  Adams,   50   0.   S.  16  See  §  1536,  Gdns.  of  drunkards. 

305.  17  See  §  1536. 


1331  NOTICE,  ETC.  §  1506 

be  notified,  when  the  statute  does  not  so  direct,  is  somewhat  of  a 
mooted  question.  In  an  early  case,  in  the  Court  of  Common 
Pleas,  decided  by  a  judge  who  was  afterwards  a  member  of  the 
Supreme  Court,  it  was  held  "  that  not  to  give  notice  is  probably 
not  in  accordance  with  approved  practice  anywhere,  and  no 
such  power  could  be  safely  lodged  with  any  Court."  ^® 

It  was  said  afterwards,  by  a  learned  and  distinguished  jurist, 
that  although  the  statute  made  no  provision  for  it,  notice  ought 
to  be  given.^®  This  same  Court,  however,  held  where  the  stat- 
ute did  not  require  notice  to  be  given,  that  such  notice  was  not 
jurisdictional,  and  a  failure  to  give  notice  is  an  irregularity 
which  can  be  complained  of  only  in  a  direct  proceeding  to  set 
aside  the  order  of  appointment.^" 

"  It  may,  however,"  says  Woerner,  ''  be  laid  down  as  a  funda- 
mental principle  of  justice,  essential  to  the  rights  of  every  man, 
that  even  in  the  absence  of  express  statutory  requirement,  he 
shall  have  notice  of  any  judicial  proceeding,  for  the  purpose  of 
divesting  him  of  his  property,  or  of  its  control,  that  he  may 
appear  and  defend  his  right ;  and  that  an  inquisition  which,  if 
the  Court  has  jurisdiction,  is  conclusive,  is  void  and  of  no  ef- 
fect, if  notice  had  not  been  given."  ^^ 

Unquestionably  a  judgment  would  be  void  in  a  direct  or  col- 
lateral proceeding,  were  not  the  statute  followed  in  giving  notice 
to  the  next  of  kin  in  the  county.  When  the  application  is  filed 
an  entry  should  be  made,  which  may  be  in  the  following  form ; 

{Title.) 

This  day  cair.e  A.  B.  and  filed  his  application  for  the  appointment  of  a 
guardian  of  C.  D.,  alleging  that  said  C.  D.  is  an  idiot  (lunatic  or  imbecile) 
and  by  reason  thereof  is  incapable  of  taking  care  of  and  preserving  his 
property. 

It  is  therefore  ordered  that  said  cause  be  set  for  hearing  on  the 

day  of   ,  at   o'clock,  at  the  Probate  Court  room 

of    county,  Ohio;   and  it  is  further  ordered  tliat  at  least 

three  days'  written  notice  personally  served   on  said    of 

the  time  and  place  of  hearing  be  given  to  the  said  C.  D.  and  all  his  next 
of  kin,  residents  of  this  county,  of  tlie  time  and  hearing  of  said  applica- 
tion and  th.at  said  notice  be  served  by  delivering  to  each  person  tliorein 
named  a  copy  thereof,  or  by  leaving  a  copy  at  their  usual  place  of 
residence. 2t. 

18  Cox  vs.  Cox,  1   W.  L.  M.  9(5.  21  Woerner   on    Gr.    303,    citing   a 

19  Jui'.g3  Taft  in  Jordan  vs.  Dick-       number  of  authorities. 

son,  20  Lull.  360.  ^-  If  the  notice  is  to  be  served  by 

20  Id.  any  one  other  than  the  sheriff,  the 


§  1507  GUARDIANS  OF  LUNATICS,  ETC.  1332 

§  1507.     Form  of  notice  and  service. 

State  of  Ohio, County,  ss. 

To of  said  County,  Greeting. 

You  are  hereby  commanded  to  notify   (here  insert  the  names  of  the  next 
of  kin  and  the  alleged  imbecile)  giving  at  least  three  days'  notice,  that  on 

the day  of ,   190.  ..  filed  in  the  Probate  Court  ol 

and  State  of  Ohio,  an  application  for  a  guardian  of  C.  D., 

an  alleged  imbecile   (idiot  or  lunatic)   and  that  he  is  thereby  incapable  of 
taking  care  of  and   preserving  his   property.     That   said   application   has 

been    set    for    hearing   on    the day    of ., ,    at 

o'clock.     At  which  time  and  place  they  are  required  to  answer,  touching 
said  application. 

The  statute  directs  the  manner  of  service,  and  it  should  he 
strictly  complied  with.*  Return  of  service  should  be  made  hy 
affidavit,  if  the  notice  has  been  served  by  a  private  individual, 
or  otherwise  by  an  official  endorsement.^^ 

§  1508.     Hearing,  etc. 

Whatever  the  law  may  be  elsewhere,  it  is  settled  in  Ohio  that 
the  defendant  is  not  entitled  to  a  trial  by  jury.^*  The  Court 
in  one  case  says:  "Under  existing  legislation,  the  Probate 
Courts  of  this  State  have  power  to  appoint  guardians  for  deaf 
and  dumb  persons  of  full  age,  whom  they  find  to  be  incapable 
of  managing  their  affairs,  without  submitting  the  question  of 
incapacity  to  a  jury  of  any  kind."  "^ 

It  was  further  held  that  proceedings  for  the  appointment  of 
guardians  are  not  inter  partes  or  adversary  in  their  character. 
They  are  properly  proceedings  in  rem.^^ 

The  question,  then,  whether  or  not  a  guardian  should  be  ap- 
pointed is  submitted  to  the  Court  upon  evidence,  the  burden  be- 
ing upon  the  persons  making  the  application  to  establish  by 
satisfactory  proof  that  a  guardian  should  be  appointed.     The 

entry  should   designate  who  should  20  Bull.  361,  it  was  held  that  if  the 
make  the  service.  alleged     imbecile     was     present     in 
See  §  1536.  court,   that   such   action   would   dis- 
ci     ,-,    ,                    .J            ,^  ^    r,  pense  with  notice  given  to  him. 
bee  Heckman  vs.  Adams,  50  0.  S.  ^  g^g  s  153(5 

305,  where  it  is  held  that  where  the  24  Hagany  vs.  Cohnen,  29  0.  S.  82. 

Probate  Court  acquires  jurisdiction  ^5  Shroyer  vs.  Richmond,  16  O.  S. 

in  an  inquest  for  lunacy  to  send  to  „:  ^  ,    ,~^ 

,  ..,.,.■.  .  26  Id.  4o6. 

an    asylum,    jurisdiction    is    mam-  •  1501 

tained    until    such    person    is    dis-  Sometimes     the     laws     governing 

charged  —  and  no  additional  finding  particular  state  institutions  require 

is    required    for    appointment    of    a  ^ome  of  the  officers  of  that  institu- 

.                       ^'^  tion  to  serve  all  papers  on  inmates. 

g^a.Tdia.n.  etc.     See   §2001   G.   C,  Lima  state 

23  See  Woerner  on  Gr.  394.  3!)5.  hospital. 

In  the  case  of  Jordan  vs.  Dickson.  ' 


1333  HEARING,   ETC.  §  1509 

jurisdictional  facts  of  residence  and  notice  must  be  fully  estab- 
lished. The  evidence  introduced  in  such  proceeding  is  not  dif- 
ferent from  that  in  proceedings  generally  of  this  character. 
Opinions  of  witnesses  derived  from  observation  are  admissible 
in  evidence  from  the  nature  of  the  subject  when  no  better  evi- 
dence can  be  obtained."'  But  such  witnesses  must  state  the 
facts  upon  which  they  base  their  opinion.  The  acts  and  conduct 
of  a  paity,  from  his  boyhood  up,  are  admissible  to  illustrate 
his  state  of  mind,  even  at  the  time  of  the  trial.  One  thing  that 
the  Court  should  always  look  at,  and  that  is  the  motive  of  the 
person  or  persons  who  are  seeking  the  appointment  of  the  guard- 
ian. It  is  said  the  "  Court  will  guard  with  peculiar  care  the 
alleged  lunatic  from  interference  springing  from  a  hostile  mo- 
tive, and  will  weigh  with  more  precision  the  evidence,  if  the 
person  by  whom  it  is  tendered  appears  to  be  actuated  by  a 
sinister  intent."  ^* 

As  a  general  rule,  it  would  be  well  to  have  the  party  himself 
present  in  Court,  for  there  is  something  about  the  actions  and 
ways  of  a  person  not  possessing  his  ordinary  faculties  that  are 
best  determined  from  observation,  and  the  experience  of  the 
Probate  Judge  derived  from  inquests  of  lunacy  will  give  him 
peculiar  ability  to  determine  the  question  at  issue  from  the  ob- 
servation of  the  person  liimself.^^ 

§  1509.     When  order  should  be  made. 

One  of  the  most  delicate  of  the  many  duties  pertaining  to  the 
office  of  Probate  Judge  is  that  of  making  a  finding  upon  an  ap- 
plication of  guardianship  for  an  alleged  idiot,  imbecile  or  luna- 
tic When  the  person's  incapacity  is  clearly  shown,  no  diffi- 
culty is  encountered,  but  there  are  many  cases,  especially  of 
imbecility,  where  the  line  of  demarkation  between  sufficient  and 
insufficient  understanding  or  capability  is  exceedingly  fine. 
Persons  who  have  once  had  charge  of  their  own  affairs  are  loath 
to  ever  believe  that  they  have  lost  their  ability  to  properly  man- 

27  Hardy  vs.  Merrill,  56  N.  H.  227.  29  Cline  vs.  Lindset,  110  Ind.  337. 

28  Woerner     on     Gr.     409,     citing  See  §  1536. 
Francke  vs.   His   Wife.   29   La.   An. 

302.   303. 


§  1509  GUARDIANS  OF  LUNATICS,  ETC.  1334 

age  their  estate  or  themselves.  Facts  which  will  justify  an 
appointment  of  imbecility  have  recently  been  passed  upon  by 
several  of  our  inferior  Courts.  In  a  case  in  Hamilton  county,^" 
where  it  was  held  that  the  facts  were  not  sufficient,  the  follow- 
ing was  quoted  with  approval :  "  The  infirmity  must  be  such 
as  to  render  her  incompetent  to  have  charge  of  any  affairs,  or 
do  any  business.  If  it  does  not  extend  that  far,  then  she  should 
not  be  found  by  you  incompetent.  If  Mrs.  Storick  is  possessed 
of  ordinary  sagacity,  and  insight  into  affairs,  so  that  she  knows 
how  to  care  for  her  house  and  table  and  clothing ;  to  deliver  and 
transact  ordinary  affairs,  and  is  not  so  insane,  nor  so  foolish  or 
imbecile,  as  to  have  no  mind  or  intelligence  regarding  ordinary 
matters  and  affairs  which  she  is  accustomed  to  know  of,  then 
you  are  not  to  find  her  incompetent." 

In  a  recent  case  in  Scioto  county  an  application  was  again  re- 
fused.^^  In  this  case  it  was  held  a  gaiardian  will  not  be  ap- 
pointed of  a  woman  on  the  ground  that  she  is  an  imbecile  and 
incapable  of  managing  her  affairs  when  it  appears  that  she  is 
seventy-seven  years  of  age,  her  hearing  is  very  much  impaired, 
her  memory  is  defective,  and  that  she  possesses  certain  pecul- 
iarities, when  it  also  appears  that  she  had  managed  her  house- 
hold affairs,  paid  her  taxes,  water  rent  and  insurance  regularly, 
attended  to  market  and  visited  her  friends  and  conversed  in- 
telligently with  them.  The  Court  says  the  action  of  Mrs.  Shel- 
leig,  in  conveying  property  away,  to  most  minds,  and  to  the 
Court,  seems  unwise  in  the  extreme;  but  the  question  is  not 
what  may  seem  wise  or  unwise  to  others,  but  did  Mrs.  Shelleig 
know  what  she  was  doing  when  she  did  it?  ^^ 

30 /w  re  Tempest,  21   Bull.  301.  wasting  his  property,  making  disad- 

31  In  re  Shelleig,  8  N.  P.  399.  vanlageous  contracts,  spending  large 

32  A  person  may  be  an  imbecile,  sums  of  money  on  property  in  which 
though  able  to  govern  himself  so  as  he  had  only  a  life  estate,  and  which 
not  to  need  a  guardian  for  his  per-  was  not  worth,  when  the  money  was 
son.  Therefore,  where  a  person  has  invested,  one-half  the  sum  expended 
become  so  infirm  mentally  that  he  on  it,  is  an  imbecile  within  the 
cannot  manage  his  affairs  with  suf-  meaning  of  the  statute.  In  re  Ems- 
ficient  capacity  to  preserve  his  prop-  wiler,  8  N.  P.  132;  8  Ohio  Legal 
erty,  a  guardian  may  be  appointed.  News. 

One  who  for  some  years  has  been  See  §  1539. 


1335  FINDING EFFECT  OF  §  1510 

A  mere  weakness  of  mind  is  not  sufficient  to  justify  an  order 
of  appointment  when  such  decree  is  not  necessary  for  the  pro- 
tection of  the  party's  property,  or  person  or  of  society.^^ 

The  Court  should  always  be  fully  satisfied  that  the  interests 
of  the  alleged  imbecile  or  idiot,  regardless  of  the  desires  of  any 
one  else,  require  the  appointment  to  be  made  before  a  finding 
to  that  effect  is  entered.  If  it  really  be  to  the  interest  of  the 
person,  no  hesitancy  should  occur  in  promptly  making  the 
order.''* 

§  1510.    Entry,  finding  person  incapacitated. 

{Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  papers  in  the  case, 
and  testimony  of  witnesses  and  was  submitted  to  the  Court.  Whereupon 
the  Court  finds  that  the  said  C.  D.  is  a  resident  of  this  county  and  has  a 

legal  settlement  in  the  townslwp  of county  of 

That  the  said  C.  D.,  E.  F.,  G.  H.  and  I.  J.,  all  of  his  next  of  kin  residing 
in  this  county,  have  had  due  and  legal  notice  of  the  pendency  of  this  appli- 
cation and  its  prayer,  as  provided  by  law,  and  the  fornier  order  of  the  Court. 
That  the  said  C.  D.  is  a  lunatic  (idiot  or  imbecile)  and  that  he  is  thereby 
incapacitated  from  taking  care  of  or  preserving  his  property. 

Wherefore  it  is  ordered  that  some  suitable  person  upon  making  the 
proper  application  in  tliis  Court  and  filing  a  statement  and  a  bond,  as  re- 
quired by  law,  be  appointed  guardian  of  the  person  and  estate  of  the  said 
C.  D.S4 

The  entry  should  contain  a  finding  on  all  jurisdictional  facts, 
and  where  the  facts  actually  were  shown  to  exist,  it  might  be 
entered  by  a  nunc  jnv  tunc  entry.'^ 

§  1510a.     Costs,  etc. 

Sometimes  considerable  costs  are  incurred  in  the  trial  of  the 
question  of  the  person's  incapacity.  Of  course  if  the  court  finds 
that  he  is  incapacited,  etc.,  thea  the  guardian  appointed  is  gen- 
erally taxed  with  such  costs  and  it  comes  from  the  ward's  prop- 
erty. And  generally  if  the  application  is  dismissed,  the  costs 
are  taxed  against  the  party  making  the  application.  This  may, 
however,  not  always  be  just,  and  if  the  court  believes  that  the 
application  was  made  in  good  faith  and  upon  reasonable  grounds, 

33  Woerncr  on  Gr.  414.  In  re  Dickson,  18  Bull.  37. 

33*  See  §  1503.  After  tliis  entry  is  made  then  tlie 

34  It  has  been  made  a  question  in  person  desiring  to  be  appointed 
this  state  whether  the  court  could  sliould  file  an  application,  etc.,  in 
make  an  appointment  of  a  guardian  the  same  manner  as  if  the  guardian- 
of  t!ie  estate  of  a  lunatic  witliout  ap-  ship  was  for  a  minor. 

pointing  a  guardian  of  the  person.  This  entry  of  finding  that  the 
But  the  Supreme  Court  has  an-  I)arty  is  incapacitated  is  not  a  final 
swered  this  question  in  the  alfirma-  order  from  wliicli  appeal  can  be 
tive,  and  a  guardian  may  now  be  j)rosecutcd.  A  guardian  nuist  be  re- 
appointed either  for  the  person  or  fused  or  appointed,  and  such  order 
for  the  estate  of  a  person  under  dis-  will  be  the  final  order.  In  re  Breiten- 
ability.  Heckman  vs.  Adams,  .50  O.  stein,  4  N.  P.  (N.S.)  358;  17  Dec. 
S.  305;  King  vs.  Bell,  36  0.  S.  460.  71.     Tlie  statute   as   it  now  exists, 

35  See  §  1536.  allows   an   appeal   from   the   finding 


§  1511  GUARDIANS    OF   LUNATICS,    ETC.  1336 

the  court  iu  the  discretion  vested  in  it,  might  tax  the  costs 
against  the  person  for  whom  a  guardian  was  applied  for,  or  the 
costs  might  be  divided.^^'' 

§  1511.    Effect  of  finding  of  disability. 

It  was  formerly  provided  by  statute  that  the  finding  that  a 
person  was  under  such  disability,  that  the  guardian  ought  to  be 
appointed,  was  only  prima  facie  evidence  of  his  imbecility;  and 
our  Supreme  Court  then  held  that  the  fact  of  such  imbecility 
might  be  inquired  into  by  an  alleged  imbecile  in  an  action 
brought  by  him  to  enjoin  the  guardian  from  interfering  with 
the  control  and  management  of  his  property.^*' 

The  statute  does  not  now  contain  such  provision,  and  in  a 
very  able  opinion  Judge  Taft  decided  ^'  that  the  due  appoint- 
ment by  the  Probate  Court  of  a  guardian  for  a  person  as  an 
idiot,  imbecile  or  lunatic,  is  conclusive  evidence  of  such  per- 
son's incapacity  to  make  or  to  ratify  contracts,  or  to  do  any  act 
in  derogation  of  his  guardian's  authority  pending  the  guard- 
ianship. As  to  the  ward's  capacity  to  marry,  to  make  a  will, 
or  to  commit  a  crime,  the  appointment  is  only  prima  facie  evi- 
dence of  incompetency.^^ 

While  the  person  under  guardianship  is  generally  incapaci- 
tated to  make  a  contract,  yet  he  may  incur  a  valid  obligation 
for  necessaries."^ 

§  1512.    Who  may  or  should  be  appointed. 

It  is  specially  provided  by  statute  that  the  wife  may  be  ap- 
pointed guardian.**'  This  statute  was  enacted  when  the  wife 
was  under  a  common  law  disability.  Since  this  disability  as  to 
her  property  rights  has  been  removed,  this  statute  is  surplusage. 
Under  early  English  rules,  the  appointment  of  an  heir  at  law, 
or  the  one  next  entitled  to  the  alleged  idiots,  etc.,  property,  was 
not  favored,  I  presume,  upon  the  reason  that  such  person  would 
not  properly  look  after  the  personal  welfare  of  the  person  for 
whom  he  was  appointed  guardian.     But  this  rule  is  not  fol- 

that  a  "Tuardian  should  be  appointed.  Where  an  imbecile  marries,  it  will 

See  §  11206  G.  C,  §  39.  be  annulled  upon  suit  by  the  guard- 

35a  §  11628  G.  C.  ian.     Wavmire  vs.  Jetmore,  22  0.  S. 

36  Messenger   vs.    Bliss,    35    0.    S.  271. 

587.  39Blockway  vs.   Jewell,   52   0.   S. 

37  .Jordan  vs.  Dickson,  19  Bull.  64.  187;  Hosier  vs.  Beard,  54  0.  S.  398. 

38  Jordan  vs.  Dickson,  20  Bull.  Where  a  guardian  never  assumed 
362:  Woerner  on  Gr.  424;  McCleary  control  of  a  will,  the  same  reniain- 
ys.  Barcalow,  6  C.  C.  481;  3  C.  D.  ing  in  the  possession  of  the  ward, 
^^7.  a  contract  of  the  ward  for  repairs 

It  is  held  that  it  was  only  prima  will  be  enforced. 
facie  and  not  conclusive  evidence  of  Kimball  vs.  Bumgardner,  16  C.  C. 

incompetency  to   enter   into  a  legal  587;   9  C.  D.  409. 
marriage.     Millen  vs.  Younsr,   18  C.  Pee  §§  1536,   1538. 

C.  575 ;   8  0.  C.  394.  ^  40  §  10990  G.  C. 

As  to  will,  also  see  8  1024. 


1337  TERMINATION  §  1513 

lowed  in  our  country.  If  no  peculiar  objection  exists,  a  person 
who  is  bound  by  ties  of  kindred  is  better  qualified  and  more 
likely  to  look  after  the  welfare  of  the  person  under  disability 
than  an  entire  stranger.  What  was  said  about  the  Court  ap- 
pointing guardians  for  minors  could  be  followed  in  making 
selections  of  guardians  for  persons  of  adult  age,  but  under  dis- 
ability." 

§  1513.  When  guardianship  to  terminate.  ' '  When  the  pro- 
bate judge  is  satisfied  that  an  idiot,  imbecile,  or  lunatic,  or  an 
incompetent  by  reason  of  advanced  age  or  mental  or  physical 
disability  or  infirmity,  or  a  person  as  to  whom  guardianship 
has  been  granted  as  such,  is  restored  to  reason,  or  that  letters 
of  guardianship  have  been  improperly  issued,  he  shall  make 
an  entry  upon  the  journal  that  such  guardianship  terminate. 
Thereupon  it  shall  cease,  and  the  accounts  of  the  guardian  be 
settled  by  the  court."    [R.  S.  §  6316;  109  v.  76.]^^ 

§  1514.      Procedure  for  removal,  etc. 

Of  course,  the  guardianship  would  terminate  by  death  of  the 
ward  or  the  guardian  in  the  same  manner  as  if  the  ward  were 
a  minor.  The  guardianship  might  also  terminate  by  reason  of 
the  guardian's  removal  from  the  State  or  other  causes,  the  same 
as  if  the  ward  was  a  minor.  The  procedure  for  removal  would 
likewise  be  the  same  as  that  for  the  removal  of  a  guardian  of 
a  minor,  and  the  forms  and  entries  and  suggestions  made  in  the 
chapter  for  the  removal  of  executors  and  administrators  could 
easily  be  adopted  for  the  proceeding  for  the  removal  of  the 
guardian  of  an  imbecile.*^ 

The  matter  of  removal  of  the  guardian  rests  largely  in  the 
discretion  of  the  Court.  But  an  appeal  will  lie  from  an  order 
of  refusal.** 

*i  §  1330.  See  §  1359,  for  removal  of  guard- 

Woerner  on  Gr.  437.  ians    for   minors. 

A    guardian    should   bo    appointed  **  Hiett    vs.    Nebergall,    45    O.    S. 

for  a   person  under    disability,  «ven  702. 

though  he  has  been  admitted  to  sm  See  §  41.  Who  may  prosecute  xp- 

infirmary.     Kissell   vs.   Gram,   4   N.  peal. 

P.  333;    7  Dec.   233.  Only  the  Probate  Court  cm  enter- 
See   §  1517.  tain  a  motion  of  removal.     This  is 

42  §  11010  G.  C.  true  even  where  the  Common   Pleas 
See  §  1541.  Court  made  the  appointment  on  ap- 

43  See    §214,    for    removal    of   ex-       peal.     In  re  Gdn.  Oliver,  Vol.  IX  N. 
ecutor.  P.  (N.S.)  178;  77  0.  S.  474. 


§  1515  GUARDIANS   OF   LUNATICS,   ETC.  1338 

§  1515.    Appeal  and  error. 

The  general  section  relating  to  appeal'*'  provides  that  "ap- 
peal may  be  taken  in  proceedings  to  appoint  guardians  or  trus- 
tees for  lunatics,  imbeciles  or  drunkards,  by  any  person  against 
whom  such  order,  decision  or  decree  shall  be  made,  or  who  may 
be  affected  thereby."  And  in  a  case  before  the  Superior  Court 
of  Cincinnati,  Judge  Taft  said  that  "I  presume  that  a  refusal 
by  the  Probate  Court  to  set  aside  the  appointment  for  irreg- 
ularity in  making  it  may  be  carried  up  on  error,  because  such 
refusal  is  a  final  order  within  the  statutory  definition,  i.  e., 
'An  order  in  a  special  proceeding  afi'ecting  a  substantial  right 
of  a  person  interested.'  "  *° 

As  the  Probate  Court  is  a  court  of  record,  and  its  order 
can  not  be  attacked  in  a  collateral  proceeding,  if  the  action  of 
the  Probate  Court  is  questioned,  it  must  be  done  in  a  direct 
proceeding  in  the  Probate  Court  and  followed  to  higher  courts 
by  proceeding  by  way  of  appeal  or  in  error. 

§  1516.  Laws  applicable  to  guardians  Cx  limatics,  idiots, 
imlaeciles  and  their  children;  settlement  cf  sucli  {jaardi^-ns. 
"Laws  relating  to  guardians  for  minors  and  their  wards  and 
pointing  out  the  duties,  rights  and  liabilities  of  such  guard- 
ians and  their  sureties,  shall  be  applicable  to  guardians,  for 
idiots,  imbeciles,  lunatics  and  incompetents  by  reason  of  ad- 
vanced age  or  mental  or  physical  disability  or  infirmity,  and 
their  children,  except  as  otherwise  specially  provided.  Be  it 
further  provided,  that  all  sales,  leases,  encumbrances,  or  liens 
made  or  created  on  any  real  estate  located  in  Ohio,  by  guard- 
ians for  incompetents  bj^  reason  of  advanced  age  or  mental  or 
phj'sical  disabilitj'-  or  infirmity  since  the  seventeenth  day  of 
August,  1919,  by  order  of  any  court  of  this  state  shall  not  be, 
nor  be  declared  to  be,  invalid  for  the  reason  that  such  guard- 
ians for  incompetents  were  not  vested  with  all  the  statutory 
powers  given  to  guardians  of  idiots,  imbeciles  and  lunatics; 
and  to  the  extent  that  said  acts  of  guardians  for  incompetents 
are  hereby  prohibited  from  being  held  invalid  they  are  de- 
clared to  be  legal  and  effective."    [R.  S.  §  6304;  109  v.  73.]*^ 

Common  Pleas  Court  will  not  inter- 
ns §  11206  G.  C,  §  39.  fere,   if   it   finds   there  should   be  a 
46  Jordan    vs.    Dickson,    20    Bull,  jruardian.     And  it  is  held  that  the 
2S2.  finding  of  tlie  Probate  Court  of  the 
Where  an  appeal  is  taken  to  the  necessity  of  the  guardianship,  is  not 
Common    Pleas    from    the    Probate  a  final  order  that  may  be  appealed 
Court,  the  entire  case  is  taken  up,  from.      The    final   order    is    the   ap- 
and    if    the    Common    Pleas    decides  pointment.     In  re  Preitenstein,  4  N. 
there    should    be    a    guardian    that  P.   (N.S.)    358;    17  Dec.  71. 
court  may  appoint  a  guardian.    And  The   statnte   now  permits   an  ap- 
the  clerk  of  the   Court  of   Common  peal.     See  §11206,  §39. 
Pleas  should  certify  the   ca?e  back  The  guardian  mav  appeal  from  an 
to  the  Probate   Court.     In  re  Gdn.  order  terminating  the  guardianship, 
^^^'^li^;^   Y\^l^'    ^-    ^-     f^'S-)  and   he   need    not   give    bond    if   he 
Tf  /i          •      ,        1  appeals    in    his    fiduciary    capacity. 
Jt  tliere  is  al?-?ady  an  appointment  In  re  Kramer,  8  N.  P     (N.S.)    217- 
made   and    the    appeal    is    from    the  19  Dec.  444.                     •         •   •            . 
order  making  the  appointment,  the  ^7  §  io991  G.  C 


1339  EXCEPTIONS  §  1516a 

§  1516a.  Settlement  of  such  guardian.  '  *  In  the  settlement 
of  the  accounts  of  such  guardians,  no  voucher  shall  be  received 
from  or  allowed  as  a  credit  to  the  guardian  of  an  idiot,  im- 
becile or  lunatic,  or  an  incompetent  by  reason  of  advanced  age 
or  mental  or  physical  disability  or  infirmity,  which  is  signed  or 
purports  to  be  signed  by  such  idiot,  imbecile  or  lunatic,  or  an 
incompetent  by  reason  of  advanced  age  or  mental  or  physical 
disability  or  infirmity."     [R.  S.  §  6304;  109  v.  73.]^'* 

§  1517.    Exception  as  to  voucher  and.  opening  account. 

It  will  be  observed  that  two  matters  are  excepted  in  making 
the  laws  relating  to  minors  applicable  to  imbeciles,  etc.  The 
first  is  that  no  voucher  signed  by  the  ward  shall  be  received 
from  or  allowed  as  a  credit  to  the  guardian.  This  simply 
means  that  the  voucher  itself  shall  not  be  prima  facie  evidence 
that  the  expenditure  has  been  made,  but  that  if  such  a  voucher 
is  taken,  the  guardian  must  establish  by  proof  the  same  as  if 
no  voucher  was  given  that  tlie  expenditure  was  made.  It  prob- 
ably has  about  the  same  effect  as  if  a  voucher  were  given  by  a 
minor.** 

The  second  exception  is  in  reference  to  the  time  in  which  an 
account  may  be  opened  up  or  reviewed.  The  language  of  sec. 
10991,  G.  C.,*®*  is  somewhat  different  from  that  in  sec.  10954, 
G.  C.,*^  which  provides  how  and  when  the  settlement  of  the 
guardian  of  a  minor  may  be  opened  up  and  reviewed ;  and  if 
it  stood  alone,  might  lead  to  the  opinion  that  an  account  might 
be  opened  up  any  time  within  two  years  after  the  guardian- 
ship was  terminated,  even  though  there  was  no  allegation  of 
fraud  or  manifest  mistake.  But  this  matter  was  very  thor- 
oughly considered  by  the  Circuit  Court,^"  and  here  it  Avas  held : 
"  After  an  account  rendered  by  the  guardian  of  an  imbecile  has 
been  passed  upon  in  due  form  by  the  Probate  Court  having 
jurisdiction  exclusively  over  the  matter,  the  Court  has  no  power, 
at  a  subsequent  day,  or  in  a  subsequent  year,  upon  the  mere 
motion,  suggestion,  or  request  of  the  heirs  of  an  imbecile,  or 
of  a  ward,  to  open  up  the  account,  place  the  matter  in  statu  quo, 
and  impose  upon  the  guardian  the  duty  of  going  back  and  es- 
tablishing by  evidence  every  item  of  debt  which  is  contained  in 
his  account.  This  can  only  be  done  where  it  is  shown  by  tlio 
excepting  parties  that  a  mistake  or  fraud  has  entered  into  such 

47*  §  10992  G.  C.  "  §§  1493,  1510. 

48  §  1489.  soMillen  vs.  Young,  18  C.  C.  571; 

48*  §  1510.  8   C.   D.   .391. 


§  1518  GUARDIANS  OF  LUNATICS,  ETC.  1340 

settlements,  and  to  that  extent  only  can  such  settlements  be  re- 
formed and  corrected." 

In  case  of  a  minor,  the  account  can  only  be  opened  up  by  an 
action  in  the  Court  of  Common  Pleas.  But  in  the  case  of  an 
imbecile,  etc.,  it  can  be  opened  up  in  the  Probate  Court  within 
two  years,  where  it  is  shown  that  there  was  a  mistake  or  fraud. 
Otherwise  each  settlement  made  is  a  final  one  between  a  guard- 
ian and  his  ward. 

§  1518.     Duties  of  guardian,  as  to  welfare  of  ward. 

As  to  the  guardian's  general  duties,  both  in  respect  to  the 
ward  and  his  property,  the  law  applicable  to  guardians  of 
minors  is  applicable  to  guardians  of  imbeciles,  etc.  The  stat- 
ute makes  the  guardian  of  the  imbecile  also  the  guardian  of  the 
minor  children  of  his  ward,  unless  some  other  person  be  ap- 
pointed ;  therefore,  the  additional  duty  devolves  upon  the  guard' 
ian  of  looking  after  the  welfare  of  the  family  of  his  ward.  It 
is  one  of  the  principal  duties  of  the  guardian  of  a  ward  to  s« 
manage  the  estate  as  to  preserve  it  to  be  turned  over  to  th6 
ward  upon  the  termination  of  the  guardianship.  The  chiei 
duty  of  the  guardian  of  a  minor  is  to  educate  and  maintain  his 
ward  and  preserve  his  property.  The  chief  duty  of  the  guard- 
ian of  an  imbecile,  or  idiot,  or  lunatic,  is  to  look  after  the  wel- 
fare, comfort  and  security  of  the  ward,  and  not  alone  to  in- 
crease the  estate.^ ^ 

The  maintenance  of  a  lunatic  is  not  limited  as  an  infant's  is. 
It  is  not  limited  except  by  the  fullest  comforts  of  the  lunatic. 
Fancied  enjoyments,  and  even  harmless  caprice,  are  to  be  in- 
dulged up  to  the  limits  of  income,  and  for  solid  enjoyments  and 
substantial  comfort  the  Court  will,  if  necessary,  go  beyond  the 
limits  of  income.^^  And,  in  another  place,  it  is  said  it  is 
not  part  of  the  guardian's  duty  to  diminish  the  reasonable  com- 
forts of  his  ward,  or  to  prevent  him  from  enjoying  such  lux- 
uries, or  indulging  such  tastes  as  would  be  allowable  and  proper 

51  May   vs.   May,    109   Mass.   252.  An   action   for   a   tort   committed 

52  Woerner  on  Gr.  454,  citing  In  by  a  lunatic  must  be  against  the 
re  Pcrsse,  3  Molloy,  441,  quoted  with  lunatic.  It  will  not  lie  against  the 
approval  in  Kendall  vs.  May,  10  guardian  alone.  Stankus  vs.  Keiper, 
Allen,  59,  G7.  35  0.  C.  C.  4. 


1341  WELFARE CONTRACTS,  ETC.  §  1519 

in  the  case  of  a  man  similarly  situated  in  other  respects,  but  in 
the  full  possession  of  his  faculties.  It  is  not,  therefore,  the 
duty  of  the  guardian  to  so  manage  the  property  that  there  may 
be  something  left  for  his  heirs,  but  he  should  so  use  it  that  the 
ward  could  derive  the  greatest  degree  of  comfort  and  happiness 
out  of  it  that  the  circumstances  would  allow.  Of  course, 
the  guardian  should  not  permit  an  unreasonable  expenditure, 
but  he  should,  wherever  he  consistently  can,  favor  the  ward, 
especially  in  the  many  little  things  that  such  persons  usually 
are  very  solicitous  about.  The  gTiardian  is  not  bound  to  apply 
the  pension  from  the  United  States,  payable  to  his  ward,  to  the 
payment  of  pre-existing  debts,  nor  is  he  bound  to  sell  the  fur- 
niture of  his  ward  not  subject  to  execution.^^ 

Where  the  Avard  has,  previous  to  his  derangement,  adjusted 
matters  as  to  his  living  expenses,  and  matters  of  that  character, 
if  the  estate  is  ample,  the  guardian  should  not  interfere  with  the 
same,  but  should  endeavor  to  give  the  ward  the  same  degree  of 
comfort  that  he  bad  before  the  appointment  was  made.^* 

§  1519.     Duty  of  guardian  as  to  existing  contracts.. 

A  giiardian  appointed  for  an  idiot,  imbecile  or  lunatic  should 
be  exceedingly  careful  in  executing  contracts  made  by  his  ward 
before  his  appointment,  or  paying  debts  incurred  by  such  per- 
son. If  the  contract  was  made  or  the  debt  incurred  before  the 
ward  became  an  imbecile,  or  a  lunatic,  it  would  be  an  obliga- 
tion that  the  gaiardian  must  honor.  But  if  the  contract  was 
made,  or  the  debt  incurred,  after  the  ward  became  non  compos 
mentis,  then,  as  a  general  rule,  the  guardian  is  under  no  legal 
obligation  to  honor  the  same.  There  are  two  exceptions  to  this 
rule.  The  first  is,  where  the  debt  was  incurred  for  necessaries, 
or,  second,  where  the  contract  was  founded  upon  an  adequate 
consideration  of  benefit  furnished  to  the  person  making  the 
same,  and  in  good  faith,  without  knowledge  of  his  unsound 
mental  condition.     In  either  one  of  these  two  cases  the  contract 

53  Fuller  vs.  Wing,  17  Me.  222:  Hanibleton's  Appeal,  102  Pa.  St.  50; 
Woerner  on  Gr.  455.  Matter  of  Heeney,  2  Barb.  Ch.  326; 

B-iWoerner     on     Gr.     456,     citing       Shaffer  vs.  List,  114  Pa.  St.  486. 


§  1519  GUARDIANS   OF   LUNATICS,    ETC,  1342 

will  be  enforced  to  the  extent  of  the  value  of  the  consideration 
furnished.^*^  The  validity  of  contracts  of  a  person  iwn  compos 
mentis  has  been  recently  discussed  in  a  very  thorough  and 
learned  opinion  by  Judge  Williams  in  our  Supreme  Court,^^ 
and  there  the  above  rules  were  laid  down ;  and  it  was  further 
held  in  that  case  that  a  note  signed  by  a  person  under  disability, 
though  negotiable  in  form,  is  not  within  that  rule  of  commer- 
cial law  which  protects  negotiable  paper  in  the  hands  of  a  bona 
fide  holder  for  the  value  against  defenses  to  which  it  was  subject 
in  the  hands  of  the  payee.  The  purchaser  takes  it  charged 
with  notice  of  the  maker's  disability,  and  occupies  no  better  posi- 
tion as  against  him  than  the  payee,  and  is  subject  to  the  same 
burden  of  preof  when  the  maker's  incapacity  is  pleaded  in  de- 
fense to  an  action  brought  by  the  holder. 

In  reference  to  obligations  which  were  incurred  by  an  im- 
becile or  lunatic,  near  to  the  time  of  the  guardian's  appoint- 
ment, unless  the  same  be  within  one  of  the  above  exceptions,  the 
guardian  ought  not  to  pay  the  same.  In  such  cases  he  should 
either  disavow  the  obligation  and  compel  the  o^vTier  to  enforce 
the  same  in  an  action  at  law,  or  he  may  make  application  to  the 
Probate  Court  for  authority  to  allow  the  same,  if  he  thinks  it 
ought  to  be  allowed,  or  possibly  he  may  bring  an  action  in  tlie 
Court  of  Common  Pleas  under  the  provisions  of  sec.  10857, 
G.  C.^^*  If  the  guardian  admits  that  the  debt  is  just,  the  cred- 
itor might  compel  the  payment  of  the  same  by  an  application 
in  the  Probate  Court  for  that  purpose  under  sec.  10939,  G.  C.^® 

As  to  carrying  on  the  business  of  such  ward,  this  has  been 
discussed  in  a  previous  section,  and  reference  will  be  made 
thereto." 

It  very  often  happens  that  when  an  application  is  made  for 
the  appointment  of  a  guardian  of  a  person  under  disability  that 
such  person  employs  an  attorney  to  represent  him  at  the  hear- 
ing; and  the  question  arises  whether  the  guardian  should  pay 
the  bill  of  such  attorney.  As  a  general  rule,  it  seems  that  such 
bill  ought  to  be  paid  unless  it  is  clearly  manifested  that  the 

54a  A  husband  is  liable  for  neces-  55  Hosier  vs.  Beard,  54  0.  S.  398. 

saries     furnished    to    his    wife    al-  55*  §  33. 

though  he  may  be  insane  or  incom-  56  §  1362. 

petent  to  transact  ordinary  business.  57  §§  1379^  138O. 
Badger  vs.  Orr,  34  0.  C.  C.  328. 


1343  INSOLVENCY   OF   LUNATICS  §  1520 

employment  of  such  attorney  was  unnecessary,  for  the  party 
charged  with  incompetency  ought  to  be  allowed  the  fullest  privi- 
lege of  defending  his  competency,  and  a  reasonable  attorney  fee 
for  defending  him  is  proper  and  should  be  paid.^^ 

§  1520.  Insolvency  of  lunatics.  "If  the  estate  of  the  idiot, 
imbecile  or  lunatic,  or  an  incompetent  by  reason  of  advanced 
age  or  mental  or  physical  disability  or  infirmity  is  insolvent,  or 
will  probably  be  insolvent,  it  shall  be  settled  by  the  guardian 
in  like  manner,  and  like  proceedings  may  be  had  as  are  re- 
quired by  law  for  the  settlement  of  the  insolvent  estate  of  a 
deceased  person."     [R.  S.  §  6314;  109  v.  75.]  =» 

The  above  section  provides  the  manner  in  which  debts  shall 
be  paid,  provided  the  ward  is  insolvent.  Otherwise  the  same 
rule  applies  to  payment  of  debts  of  irabeciles  as  to  a  minor.®" 
It  has  been  held  that  a  judgment  rendered  during  the  existence 
of  a  guardianship,  against  an  imbecile,  idiot  or  lunatic,  and  his 
legal  guardian,  is  not  a  lien  upon  the  lands  of  such  imbecile,®^ 
and  that  execution  can  not  be  had  against  the  property  of  a  per- 
son under  guardianship  for  disability.®- 

§  1521.  Suit  by  guardian  of  idiot,  imbecile  or  lunatic,  and 
revivor  of  same.  "Such  guardian  may  sue  in  his  own  name, 
describing  himself  as  guardian  of  the  ward  for  whom  he  sues. 
"When  his  guardianship  ceases  by  his  death,  removal  or  other- 
wise, or  by  the  death  of  his  ward,  actions  or  proceedings  then 
pending  shall  not  abate,  if  the  right  survives.  His  successor  as 
guardian,  or  such  idiot,  imbecile,  or  lunatic,  or  an  incompetent 
by  reason  of  advanced  age  or  mental  or  physical  disability  or 
infirmity,  if  he  be  restored  to  his  reason,  or  the  executor  or  ad- 
ministrator of  such  idiot,  imbecile,  or  lunatic,  or  an  incompetent 
by  reason  of  advanced  age  or  mental  or  physical  disability  or  in- 
firmity, as  the  case  may  require,  shall  be  made  party  to  the 
suit  or  other  proceeding,  as  is  provided  by  law  for  making  an 
executor  or  administrator  party  to  a  suit  or  proceeding  of  a 

58  So   where   one   is   restrained   of  "O  §  13S0. 

his  liberty  without  legal  proeess,  as  See  Woerner  on  Gr.  460. 

an  insane  person,  and  employs  covin-  61  Neff  vs.   Cox,  5  N.   P.   413;    5 

sel   to   prosecute   a   writ   of    iiabeas  Dec.  377. 

corpus  in  his  behalf,  for  the  purpose  62  §  13R0. 

of  investigating  the  grounds  and  cir-  See  8  950  et  seq.,  as  to  settlement 

cumstances    of    the    restraint,    such  of   insolvent  estates  by  adniinistra- 

counsel  is  entitled  to  recover  a  rea-  tors. 

sonable   compensation    for    his    serv-  The  remedy  in  such  a  case  would 

ices   rendered    in   good   faitli.   if   the  be  to  apply  to  tlie  Probate  Court  for 

condition  of  the  party  be  such  as  to  an  order  requiring  tiie  guardian  to 

render  investigation  proper.     Woer-  pay  the  same. 

ner  on  Gr.  470.  See  Woerner  on  Gr.  460. 

59  §  11008  G.  C. 


§   1522  GUARDIANS  OF  LUNATICS,  ETC.  1344 

like  kind,  where  the  plaintiff  dies  during  its  pendency."     [R.  S. 
§  G305;  109  V.  73]'^=' 

§  1522.  Sale  of  real  estate  by  guardian  of  idiot,  imbecile  or 
lunatic.  Petition.  Private  sale.  Parties  defendant.  "When 
a  sale  of  the  real  estate,  or  coal  from  under,  or  fire-clay  upon  or 
under,  the  real  estate  of  such  ward  is  necessary  for  the  sup- 
port of  himself  or  his  family,  or  the  payment  of  his  debts,  or 
such  sale  will  be  for  the  interest  of  such  ward  or  his  children, 
the  guardian  may  sell  it  under  like  proceedings  as  are  required 
by  law  to  authorize  the  sale  of  real  estate  by  the  guardian  of  a 
minor.  Or,  if  it  be  more  for  the  interest  of  such  idiot,  imbecile 
or  lunatic,  or  an  incompetent  by  reason  of  advanced  age  or 
mental  or  physical  disability  or  infirmity,  or  his  children,  upon 
petition  of  the  guardian,  the  probate  court  maj'  authorize  him 
to  sell  such  real  estate,  or  coal,  iron-ore,  limestone,  fire-clay  or 
other  minerals  upon,  or  under  the  real  estate,  or  the  right  to 
mine  them,  at  private  sale,  either  in  whole  or  in  parcels  and 
upon  such  terms  of  payment  as  the  court  prescribes."  [R.  S. 
§  6306;  109  V.  74.]'^* 

§  1522a.  Petition,  what  to  contain.  "The  petition  shall 
contain  a  pertinent  description  of  the  real  estate,  coal  or  fire- 
clay proposed  to  be  sold,  a  statement  of  its  value  as  near  as 
can  be  ascertained,  and  the  facts  upon  which  the  application  is 
founded.  If,  upon  the  hearing,  the  court  is  satisfied  that  it 
will  be  more  for  the  interest  of  the  ward  that  such  real  estate, 
coal  or  fire-clay  be  sold  at  private  than  at  public  sale,  it  may 
make  an  order  authorizing  the  sale,  and  prescribing  the  terms 
thereof,  first  taking  from  the  guardian  a  sufficient  bond  for  the 
faithful  performance  of  his  duty  in  the  premises,  and  to  ac- 
count for  the  proceeds  of  all  sales  made  under  such  order.  Rut 
the  guardian  shall  not  be  authorized  to  sell  such  real  estate, 
coal,  or  fire-clay  at  private  sale  for  less  than  its  appraised 
value."     [R.  S.  §  6306.]«-'* 

§  1522b.  Husband  or  wife  to  be  made  defendant.  "The 
ward's  husband  or  wife  shall  be  made  a  defendant  to  the  peti- 
tion, and  if  he  or  she  file  an  answer  consenting  to  the  sale,  free 
and  discharged  of  all  right  and  expectancy  of  dower  therein, 
on  the  sale  being  confirmed,  such  answer  shall  be  a  full  release 
of  his  or  her  expectancy  of  dower.  Unless  in  such  answer  an 
allowance  in  lieu  of  dower  be  waived,  the  court  shall  allow,  out 
of  the  proceeds  of  the  sale,  such  sum  in  money  as  is  the  just  and 
reasonable  value  of  his  or  her  expectancy  of  dower."  [R.  S. 
§6306.]«^t 

63  §  lonns  G.  C.  vs.  Building  Co.,  11  c.  c.  (N.s.y 
See  §§11401,  11407,  11408  G.  C.,       481;   31   0.  C.   C.  519. 

§■627.  Trustee   should   be   appointed   for 

64  §  10004  G.  C.  insane  defendant  in  divorce,  and 
64*  §  1000.')  G.  C.  rialits  of  defendant  can  be  passed  on. 
64t  §  10006  G.  C.  Kerlick  vs.  Kerlick.  10  C.  C.  (N.S.) 
Guardian  of  idiot  mav  enter  ap-  524;   30  0.  C.  C.  274. 

pearance   in   action   against.      Segal  All    the    next    of    kin    should    be 

made  parties,  etc. 


1345  SALE  OF  REAL  ESTATE  §  1523 

The  procedure  for  the  sale  of  real  estate  under  the  above  sec- 
tion is  by  it  made  similar  to  that  of  a  guardian  selling  real 
estate  of  minors.  Suffice  here  to  say  that  the  statute  should 
be  carefully  read,  and  the  forms  and  suggestions  previously 
made  in  the  chapter  relating  to  sales  of  real  estate  by  guardians 
of  minors  can  be  easily  applied  to  an  action  brought  under  the 
above  section.**^ 

§  1523.     Dow^er  of  insane,  idiotic  or  imbecile  person ;  how 

assio-ned  or  sold.  "If  appointed  in  this  state,  the  guardian  of 
an  idiot,  imbecile  or  insane  person,  or  an  incompetent  by  reas- 
on of  advanced  age  or  mental  or  physical  disability  or  infirm- 
ity, w^ho  has  or  is  supposed  to  have  a  right  of  dower,  or  a  con- 
tingent right  to  it,  in  lands  or  tenements,  of  which  the  hus- 
band or  wife  of  such  person  was  seized  as  an  estate  of  inherit- 
ance or  in  land  held  by  bond,  articles  or  other  evidence  of 
claim,  where  the  dower  has  not  been  assigned,  may  sell,  com- 
promise, or  adjust  it  upon  such  terms  as  he  deems  for  the  in- 
terest of  such  person,  and  as  the  probate  court  of  the  county 
in  which  the  guardian  was  appointed  approves,  or  if  appointed 
in  a  foreign  state,  as  the  probate  court  of  the  county  wherein 
the  land  is  situated,  approves.  After  such  approval,  the  guard- 
ian may  execute  and  deliver  all  the  needful  deeds,  releases  and 
agreements  for  the  sale,  compromise,  or  assignment  of  such 
dower,  or  contingent  right  to  it."    [R.  S.  §  6307  ;  109  v.  74.]«° 

Sec.  12021,  G.  C,  provides  that  the  Common  Pleas  Court 
may  authorize  and  direct  the  guardian  of  an  insane  person  to 
sell  such  dower  right,  and  a  guardian  in  any  proceeding  may 
elect  for  his  insane  ward.^" 


§  1524.     Procedure  in  assignment  of  dower. 

In  a  previous  chapter  "^  we  have  seen  that  the  guardian  of  an 
heir  may,  with  the  approval  of  the  Probate  Judge,  assign  to 
the  widow  a  dower  right.  The  above  section  confers  the  right 
upon  the  guardian  to  sell  or  adjust  such  dower  right,  upon  the 
approval    of    the    Probate    Court.      The    guardian,    wishing    to 


65  See  §  1404  et  seq.,  as  to  sale  of  «7  §  12020    G. 
real  estate  of  minors.                                     "^  §  057. 

66  §  10997  G.  C. 


§  1524a  GUARDIANS  OF  lunatIcs,  etc.  1346 

make  sucli  assignment  or  sale  of  the  dower  right  of  his  ward, 
should  file  an  application  in  the  Probate  Court  setting  out  all 
the  facts,  and  have  the  court  to  make  an  order  directing  him 
to  sell  or  release  such  dower  right.*'^ 


§  1524a.    Application  to  sell  and  release  dower  right. 

In  the  matter  of  the  Guardianship  of 

Probate  Couet,  Clabk  County,  OHIO. 

says   that   he    is    the    duly    appointed   and    acting   guardian   of 

,  an  insane  person,  appointed  as  such  by  the  Probate  Court  on , 

19...      That  the  said   is  the  wife  of    ,  and  is    years 

of  age  and  as  such  has  a  contingent  right  of  dower  in  the  following 
described  real  estate :   

That  the   said    [husband]    has   contracted   a   sale   of   said   real 

estate   to    and    for    a   consideration   of    [$10,300]. 

That   there    is    a    mortgage    indebtedness    thereon,    which    said    mortgage 

amounts    to     [54,000],    and    was    executed    by    the    said     

[husband]    and  the   said    [wife],   and   the  money   secured  thereby 

was  applied  on  the  purchase  price  of  said  land  when  purchased  by  said 


That  the  said    [husband]   lias   agreed,   out  of  the  consideration 

so  to  be  received  for  the  sale  of  said   real  estate,  that    [$1,000] 

thereof  may  be  paid  to  this  guardian  in  full  of  the  contingent  dower  right 

of  the  said    in  and  to  said  real  estate,  which  is  the  full  and  fair 

value  of  the  same,  and  it  would  be  to  the  interest  of  his  said  ward  to 
accept  the  same.  That  said  guardian,  if  it  meets  the  approval  of  the 
court,  has  agreed  to  accept  the  same.  Wherefore  he  asks  t!iat  the  court 
may  approve  his  agreement  to  accept  the  same  in  full  of  the  contingent 

dower  right  of  the  said   in   said  real  estate,  and  that  he  may,  as 

said  guardian,  and  as  and  for  said  by  deed  duly  executed,  release, 

quit  claim  and  convey  to  said and the  premises  hereinbefore 

described,  upon  receipt  of  $ 


State  of  Ohio,  Clark  County,  ss. 

,  being  first  duly  sworn  says  that  the  allegations   in  the  above 

application  are  true  as  he  verily  believes. 

Sworn  to  and  subscribed  before  me  in  my  presence  this    day  of 

,19... 

Probate  Judge. 

By    

Deputy  Clerk. 
GSiSee  chapt.  next  to  index,  as  to  calculation  of  dower  right. 


1346a  SALE  OF  REAL  ESTATE  §  1524b 

§  1524b.    Entry  authorizing^  and  ordering  release  of  dower 

right,  etc. 

In  the  matter  of  the  Guardianship  of 

Probate  Coubt,  Clark  County,  Ohio. 

ENTRY. 

This  day  came  ,  guardian  of and  filed  lierein  his  applica- 
tion for  authority  from  this  court,  to  accept  the  sum  of  $ ,  as  the 

reasonable   and   just   value   of   the   contingent   dower   right   of    ,   as 

the  wife  of ,  in  the  premises  in  said  application  described,  and  the 

same  was  submitted  to  the  court;  whereupon  the  court  finds  that  $ 

js  the  full  and  fair  value  of  the  said  dower  right  in  said  premises,  and 

that  it  would  be  to  the  interest  of  the  estate  of  the  said   for  said 

guardian  to  accept  the  same,  and  it  is  therefore  ordered  that  the  said 
guardian  accept  the  same  in  full  of  said  dower  right  and  that  upon  receipt 
of  the  same  the  said  guardian,  as  such,  and  for  the  said ,  is  author- 
ized and  directed  to  make,  execute  and  deliver  to and ,  a  deed 

duly  executed,  releasing  and  quit  claiming  and  conveying  to  them  all  the 

dower  claims  the  said   might  have  in  and  to  the  premises  in  the 

application  described. 


§  1524c.     Guardian's  deed. 

Know  All  Men  by  these  Presents  :    That,  whereas,  on  the  26th  day  of 

July,   1920,   ,  was  duly  appointed  and  qualified  as  guardian  of  the 

person  and  estate  of    ,  an  insane  person,  by  the  Probate  Court  of 

Clark  County,  Ohio,  and 

Whereas,  afterwards,  on  the day  of the  said  guardian  did 

file  his  application  in  said  court  for  authority  to  accept  the  sum  of  $ 

as  the  full  and  fair  value  of  the  contingent  right  of  dower  of  the  said 
,  as  the  wife  of in  the  premises  hereinafter  described,  and 

Whereas,  the  court  did  then  find  the  same  was  the  full  and  fair  value 
of  her  said  dower  interest  therein,  and  did  order  the  guardian  to  accept  the 

same,  and  did  order  this  guardian,  on  the  receipt  of  said  sum  of  $ , 

to  make,  execute  and  deliver  a  deed  conveying  and  quit-claiming  to , 

his  heirs  and  assigns  forever,  relinquishing  to  him  all  the  dower  rights 
and  all  claims  in  said  premises  as  the  wife   of  said    

Now,  therefore,  I, ,  guardian  of ,  aforesaid,  by  order  of  said 

Probate  Court  and  the  powers  vested  in  me  by  the  statute  in  such  case 

made  and  provided,  and  in  consideration  of  the  sum  of  $ paid  me 

by    do   hereby   remise,   release  and  forever  quit  claim  to  the  said 

,  his  heirs  and  assigns,  forever,  releasing  and  relinquishing  to  the 

said   all  rights  and  claims  the  said   has,  or  may  have,  as 

the  wife  of  the  said    ,  in  and  to  the  undivided,  etc.,    [here 

describe  the  real  estate.] 

To  have  and  hold  loith  all  the  privileges  and  appurtenances  thereunto 
belonging  to  the  said   ,  his  heirs  and  assigns,  forever,  as  fully  and 


&  1525  GUARDIANS    OF    LUNATICS,    ETC.  1346b 

completely  as  I,  the  said    ,  as  guardian,  by  virtue  of  said  order  of 

the  court    and  of  the  statute  made  for  such  cases,  might  or  should  sell 
and  convey  the  same. 

In  loitness  wh-ereof  I,  the  said ,  as  such  guardian,  have  hereunto 

set  my  hand  this day  of 

Guardian  of    ,  lunatic. 

Witnesses. 

[Add  acknowledgment  clause  same  as  ordinary  deed.] 

§  1525.  Guardian  empowered  to  lease  and  improve  estate. 
Termination  of  lease.  Lien  of  tenant.  "Such  guardian  also, 
in  like  manner,  as  the  guardian  of  a  minor,  may  be  authorized 
to  lease  and  improve  the  real  estate  of  his  ward.  If  the  lease 
extends  beyond  the  restoration  of  such  ward  to  sound  mind,  or 
his  death,  it  will  determine  on  his  restoration  or  death,  unless 
confirmed  by  such  ward  or  his  legal  representatives.  If  the 
lease  determines  by  the  restoration  of  the  ward  or  his  death, 
the  tenant  shall  have  a  lien  on  the  premises  for  any  sum  or 
sums  expended  by  him  in  pursuance  of  the  lease  in  making 
improvements  and  for  which  compensation  was  not  made  by 
the  rent  or  otherwise."     [R.  S.  §  6308.]^° 

This  section  is  no  doubt  intended  by  the  Legislature  to  confer 
similar  rights  upon  the  guardian  of  an  imbecile,  etc.,  as  sec. 
10967,  G.  C,  confers  upon  a  guardian  of  a  minor, '^^ 

§  1526.  Long  lease  by  guardian  may  be  authorized  by 
Court.  Lease  for  three  years  without  order  of  Court.  "Such 
guardian  also  may  be  authorized  by  the  probate  court  to  lease 
the  real  estate  of  his  ward  or  any  part  of  it  for  a  limited  term 
of  years  or  by  perpetual  lease,  with  or  without  the  privilege  of 
purchase,  when,  on  his  application,  the  court  finds  that  such 
lease  is  necessary  for  the  support  of  his  ward  or  of  his  family, 
or  that  it  will  be  for  the  best  interests  of  him  or  them.  Such 
guardian  may  lease  the  real  estate  of  his  ward  for  not  exceeding 
three  years  without  application  to  the  court."     [R,  S.  §  6309.]"- 

The  above,  and  the  three  following  sections,  are  very  much 
similar  to  sec,  10962,  G.  C.,  and  the  immediate  following  sec- 
tions, and  suggestions  there  made  can  be  adapted  for  procedure 
under  the  above.''^ 

§  1879    ct   seq.,   Partition.  72  §  10999  G.  C, 

70  §10998  G,  C.  73  §  1433, 

71  §  1445. 


1347  LEASE  OF  LANDS  §  1527 

§  1527.  Application  for  authority  to  make  long  lease.  ' '  The 
application  for  authority  to  make  such  long  lease  or  leases,  shall 
be  by  petition,  setting  forth  the  character  of  the  idiocy,  im- 
becility, or  lunacy  of  the  ward,  whether  curable  or  not,  tem- 
porary or  confirmed,  and  its  duration,  the  number,  names,  ages, 
and  residence  of  the  family  of  the  ward  including  the  wife  or 
husband  of  the  ward,  and  of  those  who  have  the  next  estate  of 
inheritance  from  him,  all  of  whom  as  well  as  the  ward  must 
be  made  defendants.  The  petition  also  must  contain  a  descrip- 
tion of  the  real  estate,  its  value,  and  the  amount  for  which  it 
probably  can  be  leased,  the  reasons  for  the  proposed  lease,  and 
the  terms,  covenants,  conditions  and  stipulations  on  which  it  is 
proposed  to  lease  it."      [R.  S.   §6310.]^* 

§  1528,  Proceedings  on  such  application.  "On  filing  the 
petition,  like  proceedings  shall  be  had  as  on  petition  for  sale  of 
the  real  estate  of  a  minor,  except  that  the  appraisers  shall  ap- 
praise not  only  the  value  of  the  real  estate,  but  the  value  of  its 
annual  rent  upon  the  terms,  covenants,  conditions,  and  stipula- 
tions of  the  lease  as  proposed  in  the  petition  .  In  their  report, 
the  appraisers  shall  state  whether  in  their  opinion,  the  proposed 
lease  wall  be  to  the  interests  of  the  ward  and  his  family.  They 
may  also  suggest  any  change  in  the  terms,  covenants,  and 
stipulations  proposed  in  the  petition.  On  the  return  of  the 
appraisement,  the  guardian  shall  not  be  required  to  give  an 
additional  bond,  but,  in  case  of  sale  under  the  terms  of  the 
lease,  he  must  give  such  bond  before  the  confirmation  of  the 
sale."      fR.   S.    §6311.]" 

§  1529.  Final  hearing  and  orders.  "If,  upon  final  hearing, 
the  prayer  of  the  petition  be  granted,  the  court  may  prescribe 
the  terms,  covenants,  and  stipulations  of  the  lease,  in  accord- 
ance with  those  set  forth  in  the  petition  or  otherwise,  and  auth- 
orize the  lease  to  be  made  by  public  or  private  letting,  as  it 
deems  best.  But  in  no  case  shall  the  leasing  be  allowed  for  a 
less  rent  than  that  named  in  the  report  of  the  appraisers,  and 
the  lease  shall  not  take  effect  until  it,  with  the  security  therein, 
is  approved  and  confirmed."     [R.  S.  §  6312.]'" 

§  1530.    Guardian  may  improve  real  estate  of  imbecile,  etc. 

"The  guardian  of  an  imbecile  or  insane  person,  or  an  incom- 
petent by  reason  of  advanced  age  or  mental  or  physical  disa- 
bility or  infirmity  may  use  the  moneys  and  personal  estate  of 
his  w^ard  in  improving  his  ward's  real  estate,  as  follows:    The 

74  §  11000  G.  C.  '«  §  11002  G.  C. 

T5  §  11001  G.  C. 


§  1531  GUARDIANS  OP  LUNATICS,  ETC.  1348 

guardian  proposing  to  make  such  improvement,  shall  file  in  the 
probate  court  in  which  he  was  appointed,  a  petition  describing 
the  premises  to  be  improved,  the  amount  of  rent  the  premises 
yield  at  the  time  the  petition  is  filed,  in  what  manner  it  is  pro- 
posed to  make  such  improvement ;  how  much  it  is  proposed  to 
expend  therefor,  what  rent  the  premises  will  probably  yield 
when  so  improved,  with  a  statement  of  the  value  of  the  ward 's 
personal  estate,  and  such  other  facts  as  are  pertinent  to  the 
question  whether  the  improvement  should  be  made,  and  a 
prayer  that  he  "be  authorized  to  use  so  much  of  his  ward's 
moneys  and  personal  estate  as  may  be  necessary  to  make  it. 
If  the  property  is  so  situated  that,  to  the  best  interests  of 
the  ward's  estate,  it  can  be  advantageously  improved  in  con- 
nection with  the  improvement  of  property  adjoining  and  ad- 
jacent to  it,  the  petition  must  show  this,  and  have  a  prayer  in 
accordance  therewith.  It  also  shall  state  the  character  of  the 
imbecility  or  insanity  or  incompetency  of  the  ward,  whether 
temporary  or  confirmed,  and  its  duration ;  the  names,  ages  and 
residence  of  his  family,  including  the  ward's  wife  or  husband, 
and  of  those  who  have  the  next  estate  of  inheritance  from 
the  ward,  all  of  whom,  as  well  as  the  ward,  must  be  made  de- 
fendants, and  be  notified  of  the  pendency  and  prayer  of  the 
petition  in  such  manner  as  the  court  directs."  [86  v.  81,  §  1 ; 
109  v.  74.]" 

It  will  be  observed  that  the  next  section  provides  that  same 
proceedings  shall  be  had  as  to  pleadings  and  proof  as  are  had 
on  petition  by  a  guardian  to  sell  the  real  estate  of  a  minor,  and 
reference  mil  be  made  to  that  chapter  for  suggestions  and 
forms,  etc.''^ 

§1531.  Proceedings.  "Upon  filing  such  petition,  like  pro- 
ceedings shall  be  had  as  to  pleadings  and  proof  as  on  peti- 
tion by  a  guardian  to  sell  the  real  estate  of  a  minor.  The  court 
shall  appoint  three  disinterested  freeholders  of  the  county  as 
commissioners,  to  examine  the  premises  proposed  to  be  improved, 
the  surroundings,  and  report  to  the  court  their  opinion  whether 
the  improvement  proposed  wall  be  advantageous  to  the  estate  of 
the  ward."     [86  v.  31,  §2.]-« 

§  1532.    May  unite  v/ith  owners  of  adjacent  property.    "On 

the  final  hearing,  if  the  prayer  of  the  petition  is  granted,  the 
court  shall  fix  the  a,mount  of  money  and  personal  estate  that 
may  be  used  in  making  such  improvement.  It  also  may  author- 
ize such  guardian  to  unite  with  the  o\\Tiers  of  adjoinina:  and 
adjacent  property  in  improving  the  premises  of  liis  ward,  and 

"§  11004  G.C.  See    also,    §1446    ct    seq.,    as    to 

78  §  1404  ct  seq.  power   to  lease,  etc. 

79  §  11005  G.  C. 


1349  REroRT,  ETC.  §  1533 

for  the  proper  management  and  repair  of  the  property,  when 
Ro  improved,  upon  such  equitable  terms  and  conditions  as  the 
court  approves."     [86  v.  31,  §3.]«« 

§1533.  Guardian's  report,  etc.  "The  amount  of  money 
and  personal  estate  expended  in  making  such  improvement,  the 
guardian  shall  distinctly  report  under  oath,  to  the  court,  within 
forty  days  after  the  improvement  is  completed.  In  case  of  the 
ward's  death,  without  being  restored  to  reason,  if  there  are 
heirs  who  inherit  real  estate  only  from  him,  then  such  money, 
so  expended,  shall  descend  and  pass  the  same  as  his  other  per- 
sonal estate,  and  be  a  charge  on  the  premises  so  improved  in 
favor  of  the  heirs  who  inherit  the  personal  estate."  [86  v. 
31,  §4.]«i 

80  §  11006  G.  C.  81  §  11007  G.  C. 


U534: 


GUARDIANS   OF    DRUNKARDS 


1350 


CHAPTER  LXXXIII. 
GUARDIANS  OF  DRUNKARDS,  IMPROVIDENTS,  ETC. 


§  1534  Laws  relating  to  guardians 
generally,  applicable. 

§  1535  When  guardian  to  be  ap- 
pointed  for   drunkards. 

§  1535a  Improvidents,     spendthrifts. 

§  1536    Procedure  to  appoint. 


§  1537 


§  153S 
§  1539 

§  1540 

§1541 


be     served     on 
Sale  thereafter 


Notice     to 

party,  etc. 

is   invalid. 
Incapacity   to    contract. 
When  order  of  appointment 

should  be   made. 
When      guardianship      shall 

terminate. 
Procedure   to   terminate. 


§  1534.      Laws  relating  to  guardians  generally,  applicable. 

Sec.  11011,  G.  C.,'  provides  that  all  laws  relating  to  guardians 
for  lunatics,  idiots  and  imbeciles,  etc.,  shall  be  applicable  to 
guardians  of  drunkards ;  and  another  section  ^  provides  that  all 
laws  relating  to  guardians  for  minors  and  their  wards,  etc.,  shall 
be  applicable  to  guardians  for  idiots,  imbeciles  and  idiots.  It 
therefore  follows,  from  these  two  provisions  of  our  statute,  that 
all  laws  relating  to  guardianship  generally  are  applicable  to 
guardians  of  drunkards,  tmless  where  from  the  nature  of  the 
subject  matter,  they  cannot  be  so  applied.  It  is  therefore  need- 
less to  discuss  the  general  duties  and  liabilities  of  guardians  in 
reference  to  drunkards,  as  such  matter  has  been  fully  discussed 
in  previous  parts  of  this  work.^ 

§  1535.    When  guardian  to  be  appointed  for  drunkards,  etc. 

"Upon  satisfactory  proof  that  any  person,  resident  of  the  coun- 
ty wherein  the  application  is  made,  is  incapable  of  taking  prop- 
er care  of  himself  or  herself  or  of  his  or  her  property,  or  neg- 
lects or  fails  to  provide  for  his  family,  or  for  other  persons 
whom  he  is  charged  by  law  to  provide  for,  by  reason  of  intem- 
perance, improvidence  or  habitual  drunkenness,  the  probate 
court  forthwith  shall  appoint  a  guardian  of  the  person  and 
property  of  such  person,  or  either,  which  guardian,  by  virtue 
of   such    appointment,    shall    be    guardian    also   of    the    minor 

1  §  1535. 

2§  10991  G.  C.    (§  1516). 

3  See  §  1305  et  seq.,  a^  to  kind  of 
guardians,  etc.;  §1319,  As  to  ap- 
pointment and  bond  of  guardians  for 
minors;  §  x343,  As  to  bonds;  §  1354, 
As  to  duration  of  guardianship  of 
minors,  etc.;  §  1361,  As  to  powers 
and  duties  of  guardians  of  minors; 
§  1378,  Management  of  estate,  etc.; 


§  1404,  Guardian's  sale  of  real  es- 
tate of  minors;  §  1432,  Lease  of 
minor's  real  estate;  §  1446,  Lease  for 
petroleum,  gas  and  mining  pur- 
poses; §  1459,  Mortgage  of  ward's 
land;  §  1484,  Guardian's  account- 
ing; §  1501,  Powers  and  duties  of 
guardians  of  lunatics,  idiots,  etc. 
See  §  1317. 


1351  PROCEDURE  TO  APPOINT  §  1535a 

child  or  children  of  his  ward,  in  case  no  other  he  appointed. 
All  laws  relating  to  guardians  for  lunatics,  idiots  and  imbeciles, 
and  their  wards,  and  all  laws  pointing  out  the  qualifications, 
duties,  rights  and  liabilities  of  such  guardians,  and  their  sure- 
ties, shall  be  applicable  to  the  guardians  contemplated  by  this 
subdivision  of  this  chapter."     [R.  S.  §  6317;  99  v.  483.]* 

§  1535a.    Improvidents.    Spendthrifts. 

The  above  section  originally  only  applied  to  drunkards,  etc. 
It  has  been  very  much  enlarged  and  now  applies  to  intemper- 
ance, improvidence  and  habitual  drunkenness.  The  guardian- 
ship is  allowed  whenever,  from  the  existence  of  either  cne  of 
three  causes,  the  person  is  (1)  incapable  of  taking  proper  care 
of  himself  or  herself,  or  (2)  is  incapable  of  taking  proper  care 
of  his  or  her  property,  or  (3)  neglects  or  fails  to  provide  for 
his  family,  or  (4)  neglects  or  fails  to  provide  for  other  persons 
who  he  is  charged  by  law  to  provide  for.  Nos.  (1)  and  (2)  seem 
to  rest  upon  the  incapacity  of  the  person;  Nos.  (3)  and  (4)  on 
his  want  of  desire  to  act.  Improvidence  is  defined  as  a  want 
of  care  and  foresight  in  the  management  of  property.^^ 

The  term  improvident  is  probably  used  in  our  statute  as 
synonymous  with  spendthrift,  and  the  latter  is  defined  to  be 
a  person  who  by  excessive  drinking,  gambling,  idleness  or  de- 
bauchery of  any  kind,  shall  spend,  waste,  or  lessen  his  estate  so 
as  to  expose  himself  or  his  family  to  want  or  suffering,  or  expose 
the  town  to  charge  or  expense  for  the  support  of  himself  or  his 

family."'' 

§  1536.    Procedure  to  appoint. 

The  procedure  to  appoint  a  guardian  of  an  alleged  drunkard 
is  very  much  similar  to  that  for  the  appointment  of  a  guardian  of 
an  imbecile  or  lunatic,  the  only  difference  being  in  reference  to 
the  notice  which  is  to  be  served.  In  the  case  of  lunatics,  a 
three  days'  notice  is  required,  and  in  the  case  of  drunkards  a 
five  days'  notice.  In  the  case  of  lunatics,  it  must  be  served 
upon  all  the  next  of  kin  resident  of  the  county ;  in  the  case  of 
drunkards,  it  need  be  served  only  upon  the  alleged  drunkard. 
But  it  would  be  well  to  make  service  upon  some,  at  least,  of  the 
next  of  kin.     The  form  of  application  for  the  appointment  of 

4  §  11011  G.  C.  reference  to  the   care,   management 

4a  22  Cyc.  34.  and  preservation  of  the  j)ro])erty  in 

The  symptoms  of  an   improvident  charge.     Cite  Webster's  Dictionary. 

temperament    would,    evidently,    be  ^^  36    Cyc.    800.      Woerner    Gdn. 

carelessness,    indifference,    prodigal-  §  114. 

ity,    wastefulness    or    negligence    in 


§   1537  GUARDIANS  OF  DRUNKARDS  1352 

a  guardian  of  a  lunatic  can  easily  be  adopted  for  the  appoint- 
ment of  a  guardian  of  a  drunkard.^ 

§  1537.  Notice  to  be  served  on  party,  etc.  Sale  thereafter 
invalid.  "At  least  five,  but  not  more  than  ten  days,  prior  to 
the  time  when  the  application  for  the  appointment  of  the 
guardian  authorized  by  the  next  preceding  section  is  made,  a 
notice,  in  writing,  setting  forth  the  time  and  place  of  its  hear- 
ing, shall  be  served  upon  the  person  for  whom  such  appoint- 
ment is  sought.  From  the  service  of  such  notice  until  the 
hearing,  or  the  day  thereof,  as  to  all  persons  having  notice  of 
such  proceeding,  no  sale,  gift,  conveyance,  or  incumbrance,  of 
the  property  of  such  intemperate  person  or  habitual  drunkard, 
shall  be  valid."     [R.  S.  §6318.]« 

§  1538.    Incapacity  to  contract. 

The  above  section  invalidates  the  contracts  of  an  alleged 
drunkard,  provided  the  court  finds  that  he  is  a  drunkard  or 
improvident,  from  the  time  that  a  person  may  have  notice  of 
proceedings  to  appoint ;  and  any  sale,  gift  or  conveyance  or  in- 
cumbrance of  the  property  of  such  alleged  drunkard  or  improvi- 
dent, made  to  a  person  with  such  knowledge,  is  void.  Such 
alleged  drunkard  or  improvident,  however,  is  not  prohibited  from 
buying  necessaries  after  service  of  such  notice.'^  If  an  alleged 
drunkard  or  improvident  would  make  a  contract  with  a  person 
that  had  notice  of  such  proceedings,  and  no  unjust  advantage 
taken,  the  contract  could  be  enforced.  It  therefore  fellows  that 
if  it  is  desired  that  any  particular  person  be  prevented  from  con- 
tracting, a  notice  should  be  ordered  served  upon  such  person.' 

§  1539.    When  order  of  appointment  should  be  made. 

The  order  is  to  be  made  when  satisfactory  proof  has  been 
presented  that  any  person  resident  of  a  county  is  incapable  of 
taking  care  either  of  himself  or  of  his  property  by  reason  of 
intemperance  or  habitual  drunkenness.  The  questions  then  to 
be  established  are  first,  that  the  party  is  incapable  of  taking 
care  of  his  property  and  second  that  such  incapacity  results  from 
intemperance  or  habitual  drunkenness.  If  a  person  was  unable 
to  take  care  cf  his  property  but  not  by  reason  of  intemperance 
or  habitual  drunkenness,  or  improvident,  the  appointment  could 

5  See   S  1504,  Application   for  ap-  e  §  11012   G.   C. 

pointment;    §1505,   Form   of   appli-  7  Broadway   vs.   Jewell,   52   0.    S. 

cation;  §  1506,  Notice;  §  1507,  Form  187. 

of    Notice;     §1508,    Hearing,    etc.;  s  Woerner  on  Gr.  460,  413. 

§  1510,    Entry    finding    person    inca-  See    §  1511,    Effect    of    finding    of 

pacitated;    §1511,   Effect  oi   finding  disability;     §1024,    As    to    making 

of  disability.  will. 


1353  PROCEDURE  TO  TERMINATE  §  1540 

not  be  made  under  this  section  but  probably  under  §  10989, 
G.  C.  (§  1501)  ;  and  if  a  person  were  intemperate  or  guilty  of 
habitual  drunkenness  and  still  able  to  take  care  of  his  property, 
the  appointment  could  not  be  made  unless  he  should  neglect  his 
family  or  in  danger  of  becoming  a  public  charge.  The  same 
want  of  capacity  to  take  care  of  his  property  should  be  shown  as 
is  required  for  any  other  adult  person** 

§  1540.  When  guardianship  shall  terminate.  "Upon  rea- 
sonable notice  to  such  guardian,  and  to  the  person  or  persons 
on  whose  application  the  appointment  was  made,  and  satisfac- 
tory proof  that  the  necessity  for  the  guardian  no  longer  exists, 
the  court  shall  order  that  the  relation  of  guardian  and  ward 
terminate,  and  that  the  ward  be  restored  to  the  full  control  of 
his  property,  as  before  the  appointment."     [R.  S.  §  6319.]' 

§  1541.     Procedure  to  terminate. 

The  above  section  differs  from  the  statutory  provision,^** 
which  provides  for  terminating  the  guardianship  of  a  lunatic, 
in  this  that  before  such  guardianship  is  terminated,  reasonable 
notice  shall  be  given  to  the  person  on  whose  application  the 
appointment  was  made.  It,  therefore,  follows  that  there  should 
be  filed  an  application  for  removal  and  an  order  requiring  no- 
tice to  be  given  and  the  final  entry  should  show  that  such 
persons  as  the  statute  requires  were  made  parties.^^ 

Whether  an  appeal  will  lie  from  an  order  of  removal,  has 
never  been  settled  by  the  Supreme  Court.  But  it  has  been  held 
that  an  appeal  might  be  prosecuted  from  an  order  refusing  to 
terminate  the  guardianship.^^ 

8*  See    §1509.      See    §220    as    to  tors,    §1359   for  reriToval   of  giiard- 

wliat  constitutes  habitual   drunken-  ians  of  minors, 

ness.  I2  11iett   vs.    Xebergall,   45    O.    S.^ 

As  to  validity  of  contract  made  702. 

by   intoxicated   person,   see   note   to  See  §  39,  Who  may  prosecute  ap- 

Wright   vs.    Walker    (Ala.),    54   L.  peal. 

R.  A.  440.    The  statute  has  recently  While  the  statute  limits  the  right 

had   inserted  therein  as  one  of  the  to  appeal  to  proceeding's  to  appoint 

grounds  for  guardianship,  "ini])rovi-  guardians    for   idiots,    lunatics,   im- 

dence."      This   has    as   yet   received  hcciles  or  drunlcards,  I  am  inclined 

no  judicial  constructions.  to  believe  it  would  include  improvi- 

9  §  11013  G.  C.  dence,  as  this  was  put  in  in  amend- 

10  §  G316  R.  S.   (§  1513).  ing  the  statute  relating  to  appoint- 

11  See  §214  for  removal  of  execu-       ments  for  drunkards. 


§  1542  ASSIGNMENT — ^APPOINTMENT  1354 


CHAPTER  LXXXIY. 

ASSIGNMENT.     JURISDICTION.     APPOINTMENT. 

§  1542  Definition,  etc.  §  1550  How  made. 

§  1543  Effect  of  bankrupt  act.  §  1551  Filing  in  Probate  Court,  etc. 

§  1544  Jurisdiction  of       Probate  §  1552  Filing  deed  in  recorder's  of- 

Court.  fice. 

§  1545  Jurisdiction  of  Court  of  Com-    .    §  1553  Qualification  of  assignee, 

mon  Pleas.  §  1554  Bond,  etc. 

§  1546  Assignee  must  give   bond  in  §  1555  Order  of  appointment. 

Probate  Court.  §  1556  Effect   of  order  and  issue  of 

§  1546a  Assignment;    when   to   take  letters. 

effect.  §  1557  Notice  of  appointment. 

§  1547  Who  may  make. 

§  1548  Who  may  be  assignee. 

§  1549  What    property   may   be   as- 
signed. 

§  1542.     Definition,   etc. 

An  assignment  for  the  benefit  of  creditors  is  defined  to  be  a 
voluntary  transfer  by  the  debtor  of  all  or  a  part  of  his  property 
to  an  assignee  or  assignees  in  trust  to  apply  the  same  or  pro- 
ceeds thereof  to  the  payr:ient  of  some  or  all  of  the  assignor's 
debts,  and  return  the  surplus  if  any,  to  him.^ 

Under  our  statute  as  at  present  constituted,  this  definition 
might  be  varied  a  little  in  this,  our  statute  contemplates  that 
when  a  debtor  makes  an  assignment,  that  all  of  his  property  be 
transfeiTed  to  the  assignee  and  that  all  of  it  is  to  be  sold  if 
needed,  for  the  payment  of  debts,  and  the  surplus  returned  to 
the  assignor.^^  In  many  respects  the  assignee  occupies  a  posi- 
tion in  reference  to  the  property  placed  in  his  charge,  similar  to 
an  administrator  in  the  administration  of  the  estate  of  a  de- 
ceased person.^ 

An  assignee  comes  within  the  general  term  of  trustee  and  he 
is  liable  and  held  responsible  for  negligence  or  failure  to  per- 

'-   \'^\  '^  ^"^-  ^^^^-  °*  ^*^''  ^"^-  i*  '^'"le  owned  and  possessed  bv  the 

^   1    T.u      '^"°^^"*  °*   creditors."  assignor.     Klaustermeyer  vs.   trust 

la  The  assignee  for  the  benefit  of  Co.,  89  O.  S.  742 
creditors    takes     the    property     as-  2  Kilbourne  vs.  Fav,  29  O.  S.  264; 

f.*S"e?'.  charged  with   all  the   liens,  Straman  vs.  Rechtine,  5,S  O.  S.  443. 
liabilities  and  encumbrances  against 


1355 


EFFECT  OF  BANKRUPT  ACT 


§1543 


form  his  duties  in  the  same  manner  as  an  ordinary  trustee.  In 
some  respects  he  occupies  a  position  very  much  analogous  to  a 
receiver,  appointed  by  the  Court  of  Common  Pleas  to  wind  up 
a  partnership  or  business  and  distribute  the  proceeds.' 

§  1543.     Effect  of  bankrupt  act. 


The  effect  of  this  act  is  well  stated  in  a  recent  case,*  where  it 
is  said,  "  When  the  petition  in  bankruptcy  was  filed  by  the  de- 
fendant, all  proceedings  in  the  State  Court  should  stop.  In 
other  words,  in  the  language  of  the  Bankrupt  Act  as  con- 
tained in  sec.  11,  "  The  proceedings  shall  be  stayed."  This  is 
mandatory.  The  State  Court  has  no  right  to  proceed  further  in 
an  action  there  pending  until  the  petition  in  bankruptcy  has 
been  adjudicated.  When  that  has  been  done,  the  same  may  oe 
further  stayed  in  the  State  Court  at  its  discretion.  But  wheth- 
er it  is  stayed  or  not,  the  plaintiff  in  the  State  Court  cannot 
obtain  judgment  against  the  defendant  for  any  costs  made  after 
the  petition  in  bankruptcy  is  filed,  nor  can  he  obtain  judg- 
ment in  the  State  Court  for  any  interest  upon  his  claim  accru- 


3  While  our  statutes  relating  to 
assignments  for  benefit  of  creditors 
are  sometimes  called  insolvency 
laws,  yet  it  should  be  remembered 
that  they  are  not,  strictly  speaking, 
insolvency  laws.  All  insolvency 
laws  are  similar  to  bankruptcy  laws, 
and  generally  provide  that  if  the 
creditor  turns  over  all  his  property, 
that  he  may  be  discharged  from  all 
future  liability  as  against  all  his 
past  creditors.  Our  assignment  laws 
make  no  such  provision  and  future 
property  of  the  assignor  can  be 
reached  by  creditors  who  have  not 
presented  their  claims  or  have  not 
received  pajTnent  in  full.  This  fea- 
ture of  our  assignment  laws,  to- 
gether with  other  features  of  the 
bankrupt  act,  has  taken  almost  all 
of  such  business  to  the  United  States 
Courts,  so  much  sio,  that  in  Cincin- 
nati the  Insolvency  Court  is  almost 
entirely  deprived  of  business  and  it 
is  now  contemplated  to  abolish  the 
same. 

Foreign  assignment  does  not  affect 
real  estate  in  Ohio  (Lesser  vs.  Ked- 
rick,  2  0.  234;  Rogers  vs,  Allen,  3 
O.  488),  but  a  foreign  assignment 
may  be  superior  to  a  subsequent 
foreign    attachment.    Shortwell    v«. 


Jenett,  9  O.  180;  Mt.  Morris  Natl 
Bank  vs.  Werk,   17  Bull.   174. 

It  has  more  recently  been  held 
that  a  foreign  assignment  of  both 
real  estate  may  be  valid,  even  when 
prohibited  by  a  subsequent  foreign 
statute.  Hall  vs.  The  Ohio  &  West- 
ern Co.,  24  Bull.  311. 

4  Carpenter  Bros.  vs.  O'Connor,  10 
C.  C.  526;  0.  C.  D.  201;  affirmed,  41 
Bull.  268. 

See  In  re  Chase,  124  Fed.  Rep., 
— ;  49  Bull.  17,  where  services  of 
the  assignee  were  allowed  when  ben- 
eficial to  the  estate. 

In  a  recent  case  in  the  Circuit 
Court  of  Franklin  County,  where  the 
property  of  a  corporation  was  placed 
in  tlie  hands  of  a  receiver,  and  then 
a  petition  in  bankruptcy  was  filed, 
and  the  directors  of  the  corporation 
employed  an  attorney  to  resist  the 
bankruptcy  proceedings,  the  receiver 
also  having  an  attorney  employed, 
it  was  held  that  tlie  receiver  was 
tho  proper  person  to  employ  suoli 
attorney,  and  the  attorney  of  the 
directors  could  not,  the  l)nnkrupt«y 
proceeding  having  bi^en  dismissed, 
assert  his  claim  apainst  the  asset* 
in  the  hands  of  the  receiver. 


§  1543  ASSIGNMENT APPOINTMENT  1356 

ing  thereafter.  The  running  of  the  claim  and  all  costs  inci- 
dent to  the  procuring  of  a  judgment  against  the  claimant 
are  arrested  at  once  upon  the  filing  of  the  petition  in  bankruptcy, 
and  if  the  de."*^endant  is  declared  a  bankrupt,  the  plaintiff  in 
the  State  Court  is  entitled  to  receive  only  his  claim  with  in- 
terest and  costs  to  that  date.  He  may  pay  the  costs  in  the  State 
Court,  which  he  rightfully  made  in  the  prosecution  of  his  claim 
against  the  bankrupt  in  that  Court,  and  present  them  to  the 
trustee  in  bankruptcy  to  be  allowed  as  a  proper  claim  against 
the  assets  in  the  bankrupt  Court.  His  rights  are  protected 
in  the  same  degree  in  so  far  as  the  exemptions  under  the  home- 
stead and  other  laws  are  concerned.  The  State  laws  govern 
entirely  in  the  bankrupt  Court  in  that  regard."  It  is  also  held 
that  an  assignee  or  receiver  appointed  by  said  Court  should  de- 
liver the  assets  on  demand  to  the  trustee  in  bankruptcy.^ 

And  it  has  also  been  held  that  if  an  assignment  be  made  for 
the  benefit  of  creditors  and  afterwards  the  assignor  is  declared 
a  bankrupt  that  funds  expended  by  the  assignee  in  payment  of 
Court  costs  or  other  costs  attending  the  assignment  for  benefit 
of  creditors,  that  such  costs  can  not  be  recovered,®  and  that  an 
assignee  is  not  entitled  to  any  fees  or  commission.  But  upon 
this  proposition  the  Courts  are  not  in  accord,  and  it  has  also 
been  held,  where  a  voluntary  assignment  for  the  benefit  of  cred- 
■  iters  was  set  aside  only  for  the  reason  that  proceedings  in 
bankruptcy  supersede  it,  the  voluntary  assignee  is  entitl  3d  to  all 
reasonable  expenses  and  compensation  for  his  services.'' 

The  United  States  Supreme  Court  has  not  to  the  writer's 
knowledge  directly  passed  upon  this  question.  It  has,  however, 
recently  held,  that  an  assignee  for  the  benefit  of  creditors,  has 
the  right  to  have  his  claims  for  the  amount  paid  to  counsel  or 
retained  by  him  on  account  of  commissions  as  assignee,  before 
the  bankruptcy  of  his  assignor,  adjudicated  in  the  State  Court 
in  the  customary  mode  of  proceedings;    and   the   bankruptcy 

5  Davis  vs.  Coe    10  C.  C.  G39;   10  ■^  In  re  Kurth,  17  N.  B.  R.,  573; 

C.  D.  2G4.  Fed.  cases,  704S. 

«  Stearns  vs.   Flick,  4  Am.  B.  E.,  If  made  six  months  before  Lank- 

723;   103  Fed.  019;  Wilbur  vs.  Wil-  ruptcy  it  is  valid.     FarrcU  vs.  Il.ir- 

8on,  47  Cull.  90;  7  A.  B.  R.  54;  In  vey,   8   0.   L.    R.   415;    16  0.   F.   D. 

re  McCauley,   44   Bull.   283.  474. 


J357  EFFECT  OF  BANKRUPT  ACT  §  1543 

Court  has  no  jurisdiction  to  finally  adjudicate  the  merits  of  his 
claims,  unless  by  his  consent,  and  then  only  by  a  plenary  suit.' 
It  would  seem,  therefore,  that  the  logical  way  to  proceed  in 
case  bankruptcy  proceedings  were  had  in  the  United  States 
Court  would  be  for  the  assignee  to  cease  administering  upon  the 
estate,  file  his  account  in  the  Probate  Court  and  such  Court  pass 
upon  the  question  of  his  compensation  and  expenses,  etc.,  and 
turn  the  remainder  of  the  property  over  to  the  trustee  in  bank- 
ruptcy.^^ This  logical  conclusion  might  be  drawn  further  from 
the  fact  that  it  has  been  held  by  our  State  Courts,®  as  well  as 
the  United  States  Court,^°  that  the  bankrupt  act  does  not  of 
itself  deprive  the  Probate  Court  of  jurisdiction,  and  therefore 
where  an  assignment  is  pending  or  is  made,  the  Probate  Court 
may  rightfully  exercise  jurisdiction  until  the  jurisdiction  of  the 
United  States  Court  is  invoked.  Por,  if  the  acts  of  the  Probate 
Court  are  valid,  then  it  must  follow  that  all  the  acts  of  the  as- 
signee in  the  lawful  and  proper  performance  of  his  trust,  are 
valid  acts.  This  would  include  his  right  to  do  everything  that 
is  proper  in  the  administration  of  his  trust,  as  well  as  com- 
pensation for  his  services  thus  rendered.  Some  of  the  United 
States  Courts  in  holding  that  he  is  not  entitled  to  com- 
mission, go  on  the  assumption  that  the  act  of  making  the 
assignment  is  per  se  a  fraudulent  interference  with  the 
workings  of  the  bankrupt  law.  This  to  the  writer  seems 
to  be  an  erroneous  view.  It  has  been  held  that  if  creditors  in 
any  way  consent  to  the  assignment  in  the  Probate  Court,  that 
such  creditors  would  be  precluded  from  filing  a  petition  in  the 
United  States  Court.'' 

8  Louisville    Trust    Co.    vs.    Com-  In  Summers  vs.  Abbott,  122  Fed. 
in"-or,  7  Am.  B.  Rep.  421    (1902).           R.  36,  a  fair  compensation  for  the 

'sain   Wolfe   vs.   Union   Stove,   17  assignee   and   his   attorney   was   al- 

N.   P.   213,  this   was   laid   down   as  lowed. 

tlie  proper  way  when  a  receiver  had  If  an  assignment  is  made  in  the 

been  appointed.  Probate  Court,  the  only  way  in  which 

9  Berk  vs.  Ilirsch,  8  X.  P.  459.  proceedings  can  be  conducted   with- 
10 /»  re  Carder,  113  Fed.  130;  In  out  danger  of  being  interfered  with 

re  Romanow,  !)2  Fed.  51.  h.Y  proceedings  in  bankruptcy  in  the 

11  Armour  vs.  Brown,  Minn.  1899;  United  States   Court,  is  for  one  of 

79  N.  W.  Rep.  522.  two  things  to  be  done;   citlier  sufTi- 

See  Randolph  vs.  Scruggs,  100  U.  cient  creditors  must  assent  to  such 

S.    533,    as    to    allowance    of    claim  assignment,  so  that  there  will  not  be 

of    attorney    for    services    rendered  sullicient  remaining  creditors  to  file 

assignee.      The   court   held   that   so  a  petition  in  bankruptcy,  or  a  period 

far    as    the    same    was    beneficial    to  of  fo\ir  months  must  be  permitted  to 

the  estate  the  same  miglit  be  allowed  elapse  between  tlie  date  of  the  mak- 

as    a   preferred    claim   through    the  ing  of  tlie  deed  of  assignment  and 

assif'nee  the  proceedings  in  the  Probate  Court. 


§  15-44  ASSIGNMENT APPOINTMENT  1358 

§  1544.    Jurisdiction  of  Probate  Court. 

It  is  provided  hj  statute,  that  the  Probate  Court  shall  have 
exclusive  jurisdiction  to  qualify  assignees  and  appoint  and 
qualify  trustees  and  commissioners  of  insolvent  debtors,  and 
control  their  conduct  and  settle  their  accounts/^ 

It  is  also  provided  by  another  section,^"  that  the  Probate 
Court  shall  order  payment  of  incumbrances  and  liens  on  any  of 
the  property  sold  or  rights  and  credits  collected.  It  is  further 
provided  that  in  case  of  sale  of  real  estate,  a  civil  action  may  be 
brought  in  either  the  Court  of  Common  Pleas  or  Probate  Court, 
making  all  persons  in  interest  parties,  that  the  Court  may 
determine  the  rights  of  all.  Notwithstanding  these  enactments 
of  our  Legislature  and  the  further  decisions  of  the  Court,  thai 
the  Probate  Court  is  capable  of  receiving  any  jurisdiction  that 
the  Legislature  might  confer  upon  it,  the  proper  rights  of  the 
Probate  Court  in  assignments,  have  only  been  acquired  step  by 
step,  by  contested  cases  in  the  Supreme  and  Inferior  Courts. 
It  is  now  settled  that  the  filing  of  a  deed  of  assignment  and 
the  qualification  of  the  assignee  confer  upon  the  Probate  Court, 
jurisdiction  of  all  the  assigned  property  and  that  the  jurisdic- 


The  better  \>  ay  would  be  to  have  the  Court.      Louisville    Trust    Co.    rs. 

creditors   assent   to  the   proceedings  Comingore,  7  Am.  B.  Rep.  421,  U.  S. 

in  the  Probate  Court.     If  they  file  Sup.  Ct.,  1902. 

answers  or  take  moneys  from  the  as-  In     case     where     proceedings     in 

signee,  they  would  be  precluded  from  bankruptcy  have  been   brought  and 

filing     the     petition.      Armour     vs.  the    assignee    files    his    account    and 

Brown,    79   N.   W.   522.  settles  in  the  Probate  Court,  a  ques- 

Where    the    assignee    claims    the  tion  might  arise  as  to  what  compen- 

property    as    his    own,    the    United  sation   he   should   be   allowed.     The 

States  Court  in  a  bankruptcy  pro-  same  rule  should  here  be  followed  as 

ceeding  cannot  determine  such  ques-  if  the  assignee  had  died  and  a  new 

tion.     The    method    to    be    pursued  one  was  appointed, 

would  be  for  the  trustee  to  bring  ac-  See   Loveland   on   Bankruptcy,   23 

tion  for  whatever  claims  there  are  and  25. 

against  the  assignee  in  a  separate  12  §  524  R.  S.  (§27).  The  as- 
proceeding,  unless  the  assignee  signee  must  qualify  in  the  Probate 
should  by  filing  his  claim  with  the  Court  of  the  county  in  which  the  as- 
trustee  bring  himself  within  the  ju-  signer  resides. 

risdiction  of  such  United  States  is  §§  11026-11052  G  C.  (§1618). 
Court.      Louisville     Trust     Co.     vs. 


1359 


JURISDICTION  OF  PROBATE  COURT 


§1544 


tion  so  conferred  is  exclusive  in  all  respects  in  which  it  ifl 
adequate.^* 

So  the  rule  seems  to  be  now  well  settled  that  in  reference  to 
assignment  matters  in  all  cases  in  which  the  Probate  Court  has 
power  to  grant  proper  relief  to  all  parties  it  then  has  exclu- 
sive jurisdiction  and  where  it  has  not  such  power  then  the 
Court  of  Common  Pleas  may  grant  relief/^ 

The  Probate  Court  cannot  hear  and  determine  an  action 
brought  by  stockholders  of  an  incorporation  to  set  aside  an 
assignment  for  the  benefit  of  creditors,  on  the  ground  that 
such  assignment  was  uncalled  for.^" 


1*  Mercer  vs.  Cunningham,  53  O. 
S.  353,  citing  Sayler  vs.  Simpson,  45 
0.  S.  141;  Havens  vs.  Horton,  53  O. 
S.  342. 

1''  See  next  section.  See  §  18  et 
seq. 

Before  these  decisions  of  the  Su- 
preme Court  were  made,  the  juris- 
diction of  the  Probate  Court  came 
before  the  writer  in  the  case  of 
Wilson  vs.  Swigart,  31  Bull.  353, 
and  it  was  there  held  that  in  all 
matters  of  assignment  when  the  Pro- 
bate Court  has  power  to  grant  com- 
plete relief  to  all  the  parties,  its 
jurisdiction  is  exclusive,  unless  ex- 
pressly taken  therefrom  by  statute; 
and  that  a  mortgagee  cannot  main- 
tain an  action  of  foreclosure  of  his 
mortgage  claim  in  the  Court  of  Com- 
mon Pleas,  after  the  debtor  and 
owner  of  the  lands  has  made  an  as- 
signment for  the  benefit  of  creditors. 
In  this  case  the  assignor  was  a  resi- 
dent of  Clark  county,  owning  real 
estate  in  Richland  county.  After  he 
made  an  assignment,  a  mortgagor 
commenced  proceedings  in  the  Rich- 
land County  Court  and  obtained  a 
decree,  the  assignee  likewise  brought 
a  civil  action  in  the  Probate  Court 
of  Clark  county  and  asked  for  the 
sale  of  all  the  real  estate  of  the  as- 
signor, including  the  land  in  Rich- 
Inn  d    county.      To    this    petition    an 


answer  was  filed  setting  up  the  facts 
of  the  proceedings  brought  in  Rich- 
land county.  This  Court  held  that 
the  Richland  County  Court  of  Com- 
mon Pleas  had  no  jurisdiction.  This 
decision  was  affirmed  by  the  Com- 
mon Pleas  and  Circuit  Courts.  It 
received  considerable  comment  in 
the  Bulletin,  but  was  sustained  by 
the  case  of  Havens  vs.  Horton,  53 
0.  S.  342. 

16  Jones  vs.  Standard,  etc.,  18  C. 
C.  189;  10  C.  D.  41;  aff".  64  O.  S. 
147. 

See  Farwell  vs.  Findlay  Dry 
Goods  Co.,  11  C.  C.  100;  5  C.  D. 
303,  where  it  was  held  that  a  suit 
to  avoid  an  assignment  as  being  a 
fraud  of  creditors  will  not  lie  in  the 
Common  Pleas. 

The  Probate  Court  has  jurisdic- 
tion to  act  under  the  deed  of  assign- 
ment, not  in  opposition  to  it.  Home 
Ass'n  vs.  Jones,  64  O.  S.  147. 

An  assignee  for  creditors  bringing 
suit  to  sell  real  estate,  a  mortgagee 
may,  by  cross-petition,  obtain  refor- 
mation of  the  mortgage,  which  de- 
scribed the  lot  as  No.  328  instead  of 
338.  The  Probate  Court  has  juris- 
diction to  grant  the  relief.  Adlard 
vs.  Stockst.h,  5  N.  P.  487;  5  Dec 
493. 

See  Harrison  vs.  Ellis,  15  Dec.  501 
(1905). 


§  1545  ASSIGNMENTS JURISDICTION  1360 

§  1545.     Jurisdiction  of  Court  of  Common  Pleas. 

As  stated  in  the  above  section  where  the  Probate  Court  has 
power  to  grant  relief  its  jurisdiction  is  exclusive ;  where  for 
any  reason  it  has  not  such  power,  the  Court  of  Common  Pleas 
may  exercise  jurisdiction.  Thus  where  the  assignment  did  not 
include  all  the  property  covered  by  a  mortgage,  and  where  the 
mortgagor  after  making  the  mortgage  platted  the  land  into 
lots  and  made  an  addition  to  the  city,  and  without  the  consent 
of  the  mortgagee  disposed  of  some  of  the  lots,  it  was  held  that 
a  suit  might  be  brought  in  the  Court  of  Common  Pleas  to  fore- 
close the  mortgage  and  that  in  such  case,  the  Probate  Court 
could  not  grant  adequate  relief/^ 

It  was  held  that  the  jurisdiction  of  the  Court  of  Common 
Pleas  of  an  action  in  the  nature  of  a  creditor's  bill  brought 
under  the  authority  of  sec.  11760  G.  C,  is  not  ousted  because  of 
the  pendency  in  the  Probate  Court  of  a  petition  for  an  order  to 
sell  lands  for  the  benefit  of  creditors.  The  reason  being  that  the 
wife  of  the  assignor  was  liable  and  that  over  her  property  the 
assignee  had  no  jurisdiction.^^ 

And  where  the  owner  of  an  estate  for  life  and  the  owner  of 
an  estate  in  remainder  in  the  same  land,  joined  in  a  mortgage 
upon  both  estates  and  the  remainderman  afterward  made  an 
assignment  of  his  estate  for  the  benefit  of  creditors,  it  was  held 
that  the  Probate  Court  had  no  jurisdiction  to  order  a  sale  of  the 
life  estate  upon  the  petition  of  the  assignee.^® 

There  seems  to  be  some-  controversy  whether  proceedings  to 
set  aside  an  assignment  may  be  brought  in  the  Probate  Court  or 
should  be  brought  in  the  Common  Pleas,  In  Jones  v.  Standard, 
etc,  Co.,^''  it  was  held  that  the  Probate  Court  had  no  such 
jurisdiction  and  the  law  does  not  permit  the  Court  to  adjudicate 
upon  its  legality  or  its  execution,  or  whether  the  party  had  the 
right  to  make  the  assignment  or  not.  No  inquiiy  is  to  be  made 
by  the  Probate  Judge  in  regard  to  it  whatever.     What  further 

IT  Robinson    vs.    Williams,    62  O.  i9  Brock  vs.  Gregg,  G3  0.  S.  289. 

S.  401.  20  18  C.  C.  189;   10  C.  D.  41;  af 

18  Vandenbark    vs.    Mattingly,  62       firmed  64  O.  S.  147, 
O.  S.  25. 


1361  WHEN    TAKES   EFFECT  §  1546 

duties  he  has  to  perform  is  in  regard  to  directing  the  assignee  in 
the  disposition  of  the  property,  and  in  the  management  of  the 
trust.  The  above  decision  seems  to  be  contrary  to  that  of 
Fairwell  vs.  Findley,  etc.^^ 

The  insolvency  Court  in  Cincinnati  has  held  that  it  has  no 
jurisdiction  to  hear  an  attack  upon  the  validity  of  an  assign- 
ment based  upon  facts  occurring  prior  to  the  filing  of  the 
deed,"  and,  therefore,  such  an  action  would  be  required  to  be 
brought  in  the  Court  of  Common  Pleas.  But  such  insolvency 
Court  may  pass  upon  the  question  whether  the  deed  has  been 
properly  executed.  ^^ 


§  1546.  Assignee  must  give  bond  in  Probate  Court.  Addi- 
tional bond.  "When  a  person,  partnership,  association,  or 
corporation,  makes  an  assignment  to  a  trustee  of  property, 
money,  rights  or  credits,  in  trust  for  the  benefit  of  creditors, 
within  ten  days  after  the  delivery  of  the  assignment  to  him  and 
before  disposing  of  any  property  so  assigned,  such  assignee  shall 
appear  before  the  probate  judge  of  the  county  in  which  the 
assignor  rpsided  at  the  time  of  executinQf  the  assignment,  pro- 
duce the  original  assignment,  or  a  copy  of  it,  cause  it  to  be  filed 
in  the  probate  court,  and  enter  into  a  bond,  payable  to  the 
state,  in  such  sum  and  wnth  such  sureties  as  the  court  approves, 
conditioned  frv  the  faithful  performance  of  his  duties  accord- 
ing to  law.  The  court  may  require  the  assignee,  or  any  trustee 
subsequently  appointed,  to  execute  an  additional  bond  whenever 
the  interests  of  the  creditors  of  the  assignor  demand  it."  [R.  S. 
§6335.]  2* 

§  1546a.  Assignment;  when  to  take  effect.  "Such  assign- 
ment shall  take  effect  only  from  the  time  of  its  delivery  to  the 
probate  judge,  and  the  exact  time  of  such  delivery  shall  be 
indorsed  thereon  by  the  judge,  who  immediately  shall  note  the 
filing  on  the  journal  of  the  court.  It  may  be  delivered  by  the 
assignor  to  the  judge  either  before  or  after  its  delivery  to  the 
a>ssignee."     [R.  S.  §6335.]-** 

21  11  C.  C.  100;  5  C.  D.  303.  ,    sion  of  a  court  of  final  resort  to  the 
See  Paddock  vs.  Uaggett,  6  N.  P.       contrary,  it  will  be  safe  to  say  that 

385;    9   Dec.   371.  the    power    and    jurisdiction    of    tlio 

22  Assignment  of  Consumers'  Ice  Probate  Court  will  be  upheld  in  all 
Co.,  4  N.  P.  172;  6  Dec.  132.  matters  pertaining  to  the  settlement 

23 /n,  re  Roherg,  7   N.   P.   446;   5  of  the  assio;nment. 
Dec.  5S.5.  24  §11002  G.  C. 

iSee  §  1620,  Sale  of  real  estate.  24*  §11003  G.  C. 

The  tendency  of  the  courts  now  is  As  to  form  of  deed,  etc.,  see  In  re 

to  hold  that  sill  matters  relating  to  Jo'^es,  5  N.  P.   102;  7  Dec.  172. 
the  property  of  an  assignee  may  be  It    only    applies    to    residents    of 

worked    out    through     the    Probate  Ohio,   Wright  vs.  Youtsey,  5  N.  P. 

Court,   and  unless  there  bo  a  deci-  57. 


§  1547  ASSIGNMENT APPOINTMENT  1362 

§  1547.    Who  may  make. 

The  statute  evidently  contemplates  that  assignments  shall 
not  only  be  confined  to  individual  persons,  but  that  partner- 
ships, associations  or  corporations  may  make  an  assignment. 
When  confined  to  a  person  it  may  be  said  that  any  person  who 
is  capable  of  making  other  legal  contract  may  make  a  valid 
assignment  for  the  benefit  of  his  creditors.  The  right  to  make 
such  assignment  results  from  the  right  of  absolute  ownership 
which  every  man  claims  over  that  which  is  his  own."^ 

In  some  States  it  seems  that  the  person  making  the  assign- 
ment must  be  in  embarrassed  or  failing  circumstances.  Under 
our  statute  an  assignment  would  be  valid  even  though  the 
assignor  was  not  in  an  embarrassed  condition.^* 

While  it  is  recognized  that  a  partnership  may  make  an  as- 
signment, some  question  has  arisen  about  the  rights  of  individ- 
ual partners.  In  this  respect  our  Supreme  Court  has  held  ^^ 
"  That  one  of  the  members  of  an  insolvent  firm  can  not,  either 
before  or  after  dissolution  of  the  partnership,  make  a  valid  as- 
signment of  all  its  effects  for  the  benefit  of  creditors,  against 
the  will  of  a  copartner,  or  without  his  assent  when  he  is  present 
or  accessiiale." 

In  another  case  it  was  held,^®  "  That  a  managing  partner 
entrusted  with  the  sole  charge  of  the  business  and  effects  of  the 
firm,  may  in  case  of  its  insolvency,  make  a  valid  assignment  of 
his  property  for  the  benefit  of  creditors  without  having  obtained 
the  consent  of  a  copartner  who  is  a  non-resident  of  the  State 
and  absent  therefrom.  In  such  a  case,  the  assent  of  the  absent 
partner  will  be  presumed."-* 

It  is  probable  that  a  surviving  partner  could  make  an  as- 
signment.^" 

25  It  is  said  "every  debtor  has  a  2"  Holland  vs.  Drake,  29  O.  S.  441, 

legal   right   to   assign    property   for  ^s  Clafflin  vs.  Evans,  55  0.  S.  183. 

the  security  of  the  debts  due  by  him,  29  See    ]\IcAlpin    Co.    vs.    Finster- 

and  so  far  from  such  ,an  act  being  wald,  57  0.  S.  524. 

reprehended  by  the  law,  it  is  justi-  30  Of   course   an  assignment   of   a 

fied  and  approved."  partner     of     partnership     property 

Story,  J.,  in  Brown  vs.  Minturn,  An     insolvent     corporation     may 

2    Gall.   557.  make   an  assignment  by  a  de  facto 

28Wambaugh    vs.    Insurance    Co,  Board   of    Directors.      Harrison    va 

59  0.   S.  228.  Ellis,    15    Dec.    501. 


1363  WHO  MAY  MAKE ASSIGNEE  §  1548 

While  it  is  recognized  that  a  corporation  may  make  a  valid 
assignment,  yet  it  is  held  that  after  it  has  become  insolvent, 
and  ceases  to  prosecute  the  objects  for  which  it  was  created, 
that  while  it  might  make  an  assignment,  it  could  not  when  in 
that  condition  give  preference  otherwise  to  any  of  its  credi- 
tors.'' 

It  is  said  that  such  an  assignment  may  be  made  by  the 
board  of  directors  without  the  express  authority  or  consent 
of  the  stockholders.'^  But  directors  cannot  make  an  assig-nment 
after  they  have  ceased  to  act  in  that  capacity,  and  a  deed  so 
executed  by  them  would  be  set  aside  in  an  action  brought  in  the 
Court  of  Common  Pleas."' 

The  proper  method  for  a  corporation  to  make  an  assignment 
would  be  for  the  board  of  directors  to  pass  a  resolution  to  that 
effect  authorizing  some  member  of  their  body  to  execute  such 
power.  If  an  unincorporated  association  desires  to  make  an 
assignment,  it  could  probably  do  so,  through  its  board  of  trus- 
tees, although  the  liability  of  its  members  might  be  the  same  as 
partners.  Corporations  and  partnerships  are  very  often  when 
in  failing  circumstances  wound  up  by  receivership  in  the 
Court  of  Common  Pleas. 

§  1548.     Who  may  be  assignee. 

]^o  restriction  is  placed  by  the  statute  upon  the  assignor's 
choice  of  an  asssignee;  the  person  selected,  however,  should  in 
all  cases  be  a  fit  or  suitable  one.  He  may  be  a  creditor  of  the 
assignor  or  a  relative.'*     Of  course  he  should  be  a  person  ca- 

could   not   carry   with    it   the   indi-  32  Henry    Pro.    Law,    586,    citing 

vidual  property  of  the  partners.  Dana  vs.  Bank,  etc.,  5  W.  &  S.  223 ; 

An  assignment  for  creditors  of  all  De  Camp  vs.  Alward,  52  Ind.  468. 

"  property  belonging  to  us,"  signed  sa  Home,  etc.,  vs.  Jones,  64  0.  S. 

by  persons  individually,  conveys  the  147. 

individual  property  of  each,  includ-  s*  Henry    Pro.    Law,    588,    citing 

ing  a  life  estate,  as  well  as  the  firm  Jennings  vs.  Prentice,  39  Mich.  421 ; 

property.       Perins'     Assignment,     6  Guerin  vs.  Hunt,  6  Minn,  375  ;  Cald- 

Dec.  347-  4  N.  P.  262.  well  vs.  Williams,  1  Ind.  405;  Dun- 
Paddock  vs.  Daggett,  9  Dec.  371;  lap  vs.  Bournonville,  26  Pa.  St.  72; 

6  N.  P.  385.  Caldwell    vs.    Rose    (Ind.),    Smith, 

31  Rouse  vs.  Merchants'  Bank,  46  190;  Frink  vs.  Buss,  45  N.  H.  .'525; 

O.  S.  493.  Schultz  vs.  Hoagland,  85  N.  Y.  464. 


§  1549  ASSIGNMENT — appoin'tment  1364 

pable  of  contracting.  The  Court  may  at  any  time  remove  an 
unsuitable  person,  and  the  statute  gives  to  creditors  a  right  to 
select  an  assignee  or  tnistee.^^  No  one  is  qualified  to  act  until 
he  accepts  the  appointment  and  gives  bond  as  required  by 
statute.^" 


§  1549.     What  property  may  be  assigned. 

The  statute  says  that  "  any  property,  money  rights  or  credits 
may  be  transferred  to  the  assignee  for  the  benefit  of  creditors. 
These  terms  are  broad  enough  to  include  almost  every  kind  of 
projjerty.  The  statute  expressly  reserves  or  excepts  the  debt- 
or's homestead  rights,  etc.^^ 

It  would  not  include  subsequent  services  of  the  assignoir 
and  likewise  goods  in  transitu  might  be  stopped  before  coming 
into  possession  of  the  assignee.  Claims  arising  out  of  personal 
torts  which  do  not  survive  the  death  of  a  person  injured, 
would  not  pass.  So  goods  sold  upon  condition  might  be  retaken 
if  the  condition  was  broken.  Property  incumbered  by  liens 
would  pass  to  the  assignee  and  be  sold,  the  lienor's  interest  being 
transferred  to  the  fund.^* 

There  can  be  no  question,  but  that  as  a  general  rule,  the 
statute  means  that  every  kind  of  property  no  matter  of  what  na- 
ture or  description  which  is  then  in  a  vested  form,  may  be 
transferred  to  the  assignee.  The  statutceven  contemplates  that 
property  situate  in  otlier  States  shall  pass.  Whatever  woul^i  be 
assets  in  the  hands  of  an  administrator,  would  be  such  in  the 
hands  of  an  assignee.^^ 

33  §§11096      and      11098      G.      C.  ally  liable  on  the  covenants  of  the 

(§§1564,  15G2).  lessee.     Nor   is  he  bound   to   accept 

36  §  1251  as  to  who  niaj-  be  trus-  the  assignment  of  the  lease  if,  in  his 
t*6.  opinion,  it  would  be  unprofitable  to 

37  §11111   G.   C.    (§1598).  the  creditors  to  do   so.     Wilder  vs. 

38  It  has  recently  been  held  that  McDonald,  63  0.  S.  383. 

an  assignee  for  the  benefit  of  cred-  39  §  s&S   et  seq.      Articles  bought 

itors  by  accepting  the  trust  does  not  on    the     installment    plan    without 

become   the   assignee   of  a   lease  be-  making  any  payment  are  not  assets, 

longing  to  his  assignor,  nor  person-  Siebern's  Assignment,  7  Dec.  280. 


1365  HOW    MADE  §  1550 

§  1550.    How  made. 

Assignments  are  usually  made  by  deed.  If  it  is  intended  to 
transfer  real  estate,  the  deed  must  be  executed  according  to 
the  law  for  transferring  real  estate.  If  only  personal  -property 
it  would  not  need  to  be  executed  with  such  formalities.*"  It  is 
immaterial  as  to  the  form  of  such  deed.*^ 

The  following  may  serve  as  a  general  form  for  a  deed  of 
assignment : 

Deed  of  assignment. 

Know  all  Men  by  these  Presents: 

That,  whereas, ,  of county,  Ohio,  being 

unable  at  this  time  to  make  payment  of  his  debts  in  full,  and  being  desirous 
that  none  of  his  just  creditors  should  have  preference  over  others  of  said 
creditors  in  payment  of  their  several  claims:     Now,  in  consideration  of  the 

premises  and  of  one  dollar  to in  hand  paid  by 

,  of ,  the  receipt  whereof  is  hereby  acknowledged,  the 

said do.  .  .  .hereby  grant,  bargain,  sell  and  convey,  transfer 

and  assign  unto  the  said ,   .  .li.  .  .  .heirs  and  assigns  forever, 

all property  and  estate  of  every  kind,  character  and  de- 
scription whatsoever  and  wheresoever  situate,  be  the  same  real,  personal  or 

mixed :     This  conveyance,  assignment  and  delivery  to  the  said 

being  made  in  trust  nevertheless  for  the  benefit  of creditors, 

to  be  by.  .h.  .  .  .administered  under  and  according  to  the  requirements  and 
provisions  of  the  assignment  and  insolvent  laws  of  the  State  of  Ohio,  in 

such  case  made  and  provided,  reserving  unto hosvever  all 

exemptions,  homesteads  and  other  rights  secured  to in  any  way 

or   manner   whatsoever,    under   the   said   laws :     To   have   and   to   hold   the 

above  granted  property   (subject  to  said  exemptions)  to  the  said 

,    .  .h.  ..  .heirs,    executors,   administrators   and   successors   in   this 

trust  forever,   for  the  uses  and  purposes  aforesaid. 

It  witness   whereof ha.  .hereunto   set hand   this 

day  of A.  D.  190... 

Executed  in  the  presence  of  us: 


The  State  of  Ohio, County,  ss. 

Before  the  undersigned in  and  for  said  county,  personal- 
ly appeared ,  the  grantor .  .  in  the  foregoing  conveyance,  and 

acknowledged  the  signing  and   sealing  thereof  to  be.  .h voluntary  act 

and  deed  for  the  uses  and  purposes  therein  mentioned. 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name  and  affixed 
my  official  seal  this day  of A.  D.  190.  .. 


hereby  accept  the  foregoing  trust,  and  undertake,  .the 

discharge  of  the  duties  hereof,  this day  of A.  D.  190.  .. 


*o  Kingman   vs.    Loyer,    40    0.    S.  *i  Lee  vs.  Hennick,  52  O.  S.   177} 

109;  Pfieflfer  vs.  Cook,  11  Bull.  320;       Wambaugh  vs.  Insurance  Co.,  59  O. 
12  Bull.  53.  S.  242. 


§  1551  ASSIGNMENT FILING   DEED  1366 

§  1551.     Filing  in  Probate  Court,  etc. 

The  deed  must  be  filed  in  the  Probate  Court  in  which  the 
assignor  resides  and  a  delivery  of  the  same  to  the  Probate  Judge 
is  such  .a  delivery  as  will  immediately  pass  the  title  to  the 
property  to  the  assignee,  although  the  assignee  may  not  acquire 
actual  possession  until  some  time  thereafter.  Such  assignment 
takes  effect  from  the  time  that  it  is  delivered  to  the  Probate 
Judge,  and  it  is  the  duty  of  the  Probate  Judge  to  endorse  on 
such  deed  the  exact  time  of  its  delivery,  and  he  shall  also  note 
the  filing  on  the  journal  of  his  Court.*^ 

In  one  case  it  was  held  that  where  a  person  resided  in  another 
State,  when  he  made  out  a  deed  of  assignment  and  mailed 
it  to  the  assignee  in  this  State,  the  assignment  was  com- 
plete and  passed  the  title  to  the  assignee  from  the  time  the  deed 
was  placed  in  the  postoffice.'*^ 

§  1552.     Filing  deed  in  recorder's  office. 

As  a  general  rule,  it  may  be  said  that  it  is  not  necessary  to 
file  the  deed  of  assignment  in  the  recorder's  office.  Yet  our 
Supreme  Court  has  held  that  if  the  deed  of  assignment  em- 
braces land  situate  in  a  county  other  than  that  of  the  assignor's 
residence,  in  order  to  be  effective  as  against  bona  fide  pur- 
chasers, it  must  be  recorded  in  the  county  in  which  the  land 
is  situate ;  and  if  a  bona  fide  purchaser  duly  enters  his  deed  for 
record  in  the  office  of  the  county  in  which  the  land  is  situate, 
as  against  the  assignee,  he  mil  take  a  good  title.**  It  therefore 
becomes  highly  important  that  the  deed  of  assignment  should 
be  filed  in  the  office  of  the  recorder  in  the  county  in  which  the 
land  is  situate  where  the  assignor  does  not  reside  in  such  county. 
In  order  to  show  a  complete  chain  of  title,  the  deed  ought  also 
to  be  filed  in  the  county  of  the  residence  of  the  assignor,  pro- 
vided he  has  any  real  estate  therein. 


"Clafflin    Ck).    vs.    Evans,    55    O.  « Johnson  vs.  Sharp.  31  0.  S.  611. 

S.    193;    Betz  vs.   Snyder,   48  O.   S.  **  Eggleston  vs.  Harrison,  61  O.  S. 

492.  397. 


1367  QUALIFICATION  OF  ASSIGNEE  .  §  1553 

§  1553.     Qualification  of  assignee. 

Within  ten  days  after  the  delivery  of  the  deed  of  assignment 
to  the  Probate  Judge,  and  before  the  assignee  disposes  of  any 
property,  it  is  the  duty  of  the  assignee  to  appear  in  Court  and 
give  bond.  No  doubt  the  assignee  may  and  should  take  pos- 
session of  the  property  iimnediately  upon  the  filing  of  the  deed ; 
and  for  various  reasons,  he  ought  at  as  early  a  date  as  can  con- 
veniently be  done,  appear  in  Court  and  qualify  as  the  statute 
requires.  It  is  common  practice  in  such  cases  for  the  assignee 
to  appear  and  file  an  application  for  appointment.  This  may 
be  in  the  following  form :  *^ 

Application  and  statement  for  appointment  of  assignee. 

Probate  Court, County,  Ohio. 

In  the  matter  of 

The  Assignment  of 


in  trust  for  the  benefit  of .  .h .  .  . . 
creditors. 

No 

of county,  Ohio,  having  accepted  the 

trust   as   assignee..,    submit,  .the   following   statement   of    the    estate   and 
property,  of  said so  assigned. 

The  amount  of  personal  estate  will  be  about       -       -     $ 

And  the  real  estate  about $ 

offer  in  bond  the  sum  of $ 

with ,   and ,  all  free- 
holders of  this  county,  as  sureties. 


The  State  of  Ohio, County,  ss. 

,   being  duly  sworn,   says  that  the   statements   in   the 

foregoing  application  are  true  as  he  verily  believes. 


Sworn  to  before  me  and  signed  in  my  presence  this day  of 

A.  D.    190... 

,  Probate  Judge. 


APPLICATION  FOR  APPOINTMENT  OF  APPRAISERS. 

To  the  Probate  Court  of County,  Ohio: 

The   undersigned  make .  .  application   for  the  appointment  of  appraisers 

of  the  property  and  assets  of ,  assignor.  .,  and  suggest,  .the 

names  of and as  suit- 
able, disinterested  persons  for  such  appraisers. 


*5  Acceptance  by   assignee  is  pre-  Renounced  after  acceptance  must 

sumed.     Fleming  vs.  Stiefel,  9  Bull.       be  by  order  of  Court.     Gaylord  V8. 
350.  Cramer  &  Watson,  1  H.  .369. 


§  1554  ASSIGNMENT BOND  1308 

§  1554.     Bond,  etc. 

The  bond  must  be  payable  to  the  State,  and  in  such  a  sum 
and  with  such  sureties  as  shall  be  approved  by  the  Court.  What 
has  been  heretofore  said  in  reference  to  the  bonds  of  adminis- 
trators and  executors  would  apply  as  to  the  bond  of  an  as- 
signee." 

The  statute  gives  the  sureties  a  right  to  be  released  on  such 
bond,"  and  the  practice  in  cases  of  release  of  sureties  on  ad- 
ministrator's bond  might  be  followed.**  And  the  statute  gives 
to  the  Probate  Court  a  right  to  require  an  additional  bond 
whenever  the  interest  of  the  estate  demand  the  same.*^  The 
assigiiee  might  give  a  bond  of  indemnity  if  the  sureties  so  re- 
quire.^"    The  following  may  serve  as  a  form  for  bond: 

Assignee's  bond. 

Enoio  all  Men  hy  these  Presents : 

That  we, 

are  held  and  firmly  bound  unto  the  State  of  Ohio  in  the  sum  of 

dollars,  for  the  payment  of  which  well  and  truly  to  be  made,  we  hereby 
jointly  and  severally  bind  ourselves,  our  heirs,  executors  and  administrators. 

Signed  by  us  and  dated  at ,  Ohio,  this day  of 

A.  D.  190... 

The  condition  of  the  above  obligation  is  such,  that  whereas  the  above 

bound has  been  appointed  assignee  in  trust  for  the  benefit 

of  the  creditors  of of county,   State  of 

Ohio,  and  has  accepted  said  trust,  and approved  as  such  as- 
signee., by  the  Probate  Court  of  said  county. 

Now,  if  the  said shall  faithfully  perform,  .h.  .  .  .diities 

as  such  assignee,  .according  to  law,  then  this  obligation  to  be  void,  other- 
wise to  remain  in  full  force. 

Executed  in  presence  of 


This  bond  approved  in  open  Court,  this day  of 190.  . 

,  Probate  Judge. 

The  assignee  having  appeared  in  Court  and  filed  the  proper 
application  and  the  proper  bond,  the  Court  should  make  an  en- 
try of  such  fact.  There  may  be  several  entries  required  in  the 
Probate  Court  previous  to  this.     When  the  deed  is  filed  in  the 

*'''  See  §  2.33  et  seq.  as  to  execution  *9  See  §  250  et  seq.  as  to  liability 

and  form  of  bond.  of  sureties. 

47  §11098   G.  C,   §1562.  so  See    §253. 

48  See  §  243  et  seq. 


1369  ORDER  AND  LETTERS  §  1555 

Probate  Court,  an  entry  should  be  made  of  such  fact,  which 
may  be  as  follows : 

§  1555.     Order  of  appointment. 

{ Title. ) 

On   this day    of ,    190 .  . ,    at o'clock 

.  .  .M.,  came and  filed  in  this  Court  a  deed  of  assignment 

to  him  from  one  A.  B.  in  trust  for  the  benefit  of  his  creditors    (if  at  the 
same  time  the  assignee  files  his  application  and  his  bond,  the  entry  may 

proceed  in  the  following  manner) ,  and  the  said ,  having 

filed  his  application  herein  and  accepted  said  trust  and  filed  his  bond  in 

the   sum   of dollars,    conditioned    according   to   law,    with 

and sureties,  which  bond  is  approved  by  the 

Court.     It  is  therefore  by  the  Court  ordered  that   said 

be  and  is  hereby  qualified  as  assignee  in  trust  for  the  benefit  of  creditors 

for  the  said  A.  B. ;  and and and , 

three  suitable  disinterested  persons,  are  appointed  appraisers  of  the  proper- 
ty assigned. 51 

§  1556.     Effect  of  order  and  issue  of  letters. 

The  order  of  the  Probate  Court  qualifying  the  assignee  and 
accepting  bond,  like  every  other  order  made  by  the  Probate 
Court  coming  properly  within  its  jurisdiction,  cannot  be  at- 
tacked or  set  aside  in  a  collateral  proceeding.  The  following 
may  be  used  for  a  form  of  letters:^' 

Letters  of  Authority  to  assignee. 

The  state  of  Ohio, 

County,  ss. 

Probate   Court. 
To  all  Whom  these  Presents  shall  Come,  Greeting: 

Know  ye,      That  whereas, ,   of county, 

Ohio,   ha made   an   assignment   of .  .h. .  .  .real   and   personal   estate,    in 

trust   for   the   benefit   of .  .h. ..  .creditors. 

And,    whereas ha.... been   duly    appointed   assignee.. of 

said and   ha.  ..  .accepted   said   trust   and   given   bond    as 

required  by  law,  in  said  Probate  Court,  and  in  all  things  complied  with 
the  provisions  of  the  statute  in  that  behalf. 

Now,  therefore,  the  said hereby  authorized  and  em- 
powered as  such  assignee .  .  to  administer  said  trust  according  to  law,  and 
to  do  and  perform  all  things  necessary  and  proper  in  the  premises,  to  the 
just  and  faithful  administration  thereof. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal 
of   the   said   Probate   Court    at Ohio,    this day   of 


.A.   D.    190... 


. ,  Probate  Judge. 


61  If  the  bond  is  not  filed  at  the       entry  in  accordance  with  the  facta, 
time    the    deed    of    assignment,    the  ^2  §  90. 

above  should  be  made  in  a  separate 


§  1557  ASSIGNMENT APPOINTMENT  1370 

The  State  of  Ohio, County,  ss. 

J ,  Judge  and  ex-officio  Clerk  of  the  Probate  Court 

within  and  for  said  county,  do  hereby  certify  that  the  foregoing  is  a  true 
and  correct  copy  of  the  original  letters  of  authority,  granted  in  the  premises 
by  said  Court,  and  remaining  on  file  in  my  office. 

In  witness  whereof,  I  have  hereunto  subscribed  my  name  and  affixed  the 

seal  of  said  Court,  at ,  Ohio,  this day  of 

A.  D.   190... 


Judge  and  ex-officio  Clerk  of  the  Probate  Court. 

§  1557.     Notice  of  appointment. 

Immediately  upon  the  issuance  of  letters,  the  statute  makes 
it  the  duty  of  the  assignee  to  give  notice  of  such  appointment. 
As  was  said  when  speaking  of  this  matter  of  giving  notice  in 
the  administration  of  estates  of  deceased  persons,^^  the  object 
and  purpose  of  this  notice  is  probably  not  only  to  give  notice 
to  creditors,  but  to  serve  as  a  proclamation  or  notice  generally 
which  will  give  the  Court  jurisdiction  to  proceed  in  the  assign- 
ment. The  statute  and  form  of  notice'  relating  thereto  is  as 
follows : 

"Each  assignee,  or  trustee  appointed  on  the  failure  of  the 
assignee  to  qualify  within  thirty  days  after  giving  bond,  must 
give  notice  of  his  appointment  in  some  newspaper  of  general  cir- 
culation in  the  county,  for  three  successive  weeks."  [R.  S. 
§6346.]^* 

Notice  is  hereby  given  tliat  the  undersigned  has  been  duly  appointed  and 
qualified  as  assignee  in  trust  (or  trustee)    for  the  benefit  of  tlie  creditors 

of  A.  B.,  of   county,  Ohio,  by  the  Probate  Court  of 

county,  Ohio. 

A.  B..  Assignee  (or  trustee),  etc. 

Office,    

53§534efseg.  s*  §  11108  G.C. 


1371 


REMOVAL  OF  ASSIGNEE 


§1558 


CHAPTER  LXXXV. 

EESIGNATION.     REMOVAL  OF  ASSIGNEE,  ETC. 


1558 
1559 


1560 


Introductory. 

On    failure    to    file    assifjn- 
ment  or  give  bond,  Court 
to   appoint   a   trustee. 
Comments.     Removal  of  as- 
signee. 

§  1561  Resignation  of  assignee. 
Appointment  of  trustee. 
Filling  vacancy.  Addi- 
tional  trustees. 

§  1562  Removal  of  assignee,  etc., 
by  the  Court.  Effect  of 
new  bond. 

§  1562a  Application  for  release  of 
surety,   etc. 

§  1562b  Application  by  trustee  for 
release   of  surety. 

§  1562c  Removal  for  failure  to  give 
new   bond. 

§  1563     Procedure,  etc. 

§  1564  Election  of  trustee  or  trus- 
tees by  creditors. 

§  1564a  Proceedings. 


§  1565  Application  for  election  of 
trustee. 

§  1566  Foi-m  of  petition  for  elec- 
tion   of   trustee. 

§  1567     Entry  ordering  citation,  etc. 

§  1568  Form  of  citation,  service, 
etc. 

§  156!)     Hearing,    etc. 

§  1570     Election  by  creditors,  etc. 

§  1571     Entry.     Form,   etc. 

§  1572  Trustee  appointed  to  give 
bond.  His  rights  on  giv- 
ing bond. 

§  1573  Settlement  on  resignation, 
removal  or  death.  How 
enforced. 

§  1574  Appointment  and  qualifica- 
tion of  trustee  to  operate 
as   a   conveyance. 

§  1575     Appeal   and   Error. 

§  1576  Unsettled  assignments  here- 
tofore made.  Citation  of 
assignee   to   give   bail. 

§  1577     Raising    an    assignment. 


§  1558.     Introductory. 

When  the  person  designated  in  the  deed  of  assignment  is  re- 
moved and  a  successor  is  appointed,  such  successor  is  desig- 
nated as  a  trustee  instead  of  retaining  the  name  of  assignee. 
The  statute  relating  to  resignation  and  removal  of  assignees,  ex- 
cepting the  section  which  permits  creditors  to  petition  the  Court 
for  a  removal,  are  very  analogous  to  those  providing  for  re- 
moval and  resignation  of  administrators  and  executors.^^  For 
a  full  discussion  of  the  povsrers  of  the  Court,  etc.,  reference  is 
made  thereto.  It  will  be  observed  in  the  subsequent  sections 
that  a  trustee  may  be  appointed,  first,  where  the  assignee  fails 
to  give  bond  within  ten  days;  second,  where  the  assignee  re- 
signs or  dies ;  third,  where  the  assignee  is  removed  for  cause ; 

55  §  208  et  seq. 

See  §  1.300  for  removal  of  trustee 
and  §  1358  for  removal  of  guardian. 


§  1559  REMOVAL    OP    ASSIGNEE  1372 

fourth,  wliere  he  is  ordered  to  give  a  new  bond  and  fails  so  to 
do;  fifth,  where  the  creditors  petition  for  his  removal;  and 
sixth,  where  the  creditors  are  paid  in  full.  These  will  be  con- 
sidered in  their  order. 

§  1559.  On  failure  to  file  assignment  or  give  bond,  Court  to 
appoint  a  trustee.  "If,  for  ten  days  after  the  execution  of 
the  assignment,  the  original  or  a  copy  of  it,  be  not  filed  in  the 
probate  court,  or  if  the  assignee  named  thereon  fails  for  that 
time  to  give  bond,  on  application  of  the  assignor,  or  any  of 
his  creditors,  the  court  shall  make  an  order  removing  such 
assignee  and  appoint  a  trustee  in  his  place ;  but  if  more  than 
one  assignee  be  named  in  the  assignment,  and  some  so  fail  to 
give  bond,  the  court  may  permit  the  assignee  or  assignees  com- 
plying with  the  two  next  preceding  sectioUvS  to  qualify  and  enter 
upon  the  discharge  of  the  duties  of  the  trust."     [R.  S.  §  6336.]^* 

§  1560.     Comments.     Removal  of  assignee. 

An  inference  might  be  gathered  from  the  above  section,  that 
the  court  is  not  to  act  thereon  except  upon  application  of  the 
assignor  or  of  one  of  his  creditors.  But  I  have  no  doubt  that 
the  court  may  act  of  its  own  motion.  While  the  assignee 
may  be  removed  if  he  does  not  qualify  within  ten  days,  yet  he 
may  legally  qualify  and  give  bond  at  any  time  even  though  it 
be  after  the  ten  days'  limit,  "While  an  assignee  can  not  dis- 
pose of  property  until  he  has  given  bond,  yet  the  title  vests  in 
him  to  the  property  from  the  time  that  the  deed  is  delivered  to 
the  Probate  Court,  and  for  that  reason  it  requires  an  order  of 
the  court  to  remove  him,  even  though  he  has  not  accepted  or 
has  failed  to  file  the  required  bond;  and  the  usual  practice  in 
such  cases  is  for  the  assignor,  or  some  creditor,  to  make  an  ap- 
plication for  that  purpose.  This  application  need  be  very  brief 
and  simply  set  up  the  fact  that  ten  days  has  elapsed  and  the 
assignee  has  not  given  the  required  bond.  The  statute  does 
not  require  any  notice  to  be  given,  but  it  seems  that  it  would 
be  proper  to  give  notice  and  thus  afford  the  assignee  an  op- 
portunity to  give  the  required  bond.  If  he  does  not  give  the 
bond  the  entry  given  in  a  subsequent  section  for  removal  of  an 
assignee  upon  election  of  creditors  might  easily  be  adopted." 

§1561.  Resignation  of  assignee.  Appointment  of  trustee. 
Filling  vacancy.  Additional  trustees.  "An  assignee,  or  trus- 
tee appointed  by  the  court,  who  has  qualified,  with  its  consent, 
may  resign  his  trust.  In  case  of  the  death,  removal,  or  resigna- 
tion of  a  sole  assignee  or  trustee,  the  court  shall  appoint  one 
or  more  trustees   in  his   place;   but   if   there   be   one   or  more 

56  §11094  G.  C.  57  See  §1571. 


1373  APPOINTMENT   OF   TRUSTEE  §    1562 

assignees  or  trustees  who  have  not  died,  resigned,  or  been  re- 
moved, the  court  either  may  fill  the  vacancy  thus  caused,  or 
allow  the  remaining  assignee  or  assignees,  trustee  or  trustees, 
to  execute  the  trust,  as  it  deems  best  for  the  trust.  At  any 
time,  on  application  of  a  majority  of  the  creditors  in  amount, 
the  court  may  appoint  an  additional  trustee."  [R.  S.  §  6337.]^* 
§  1562.  Removal  of  assignee,  etc.,  by  the  Court.  Effect  of 
new  bond.  "The  court  may  remove  an  assignee  or  trustee, 
specifying  in  the  order  the  cause  of  removal.  [R.  S.  §  6339; 
107  V.  421.]^^ 

§  1562a.  Application  for  release  of  surety,  etc.  A  surety  of 
an  assignee  or  trustee,  or  the  executor  or  an  administrator  of  a 
surety,  at  any  time  may  make  application  to  the  proper  probate 
court  to  be  released  from  the  bond  of  such  assignee  or  trustee, 
by  filing  his  written  request  therefor  with  the  judge  of  such 
court,  and  giving  at  least  five  days  notice,  in  writing,  to  such 
assignee  or  trustee.  If,  upon  the  hearing,  the  court  is  of  opin- 
ion that  there  is  good  reason  therefor,  it  shall  release  such 
surety.  The  death  of  a  surety  always  shall  be  good  cause.  [107 
v.  421.]^^* 

§  1562b.  Application  by  trustee  for  release  of  surety.  An 
assignee  or  trustee  at  any  time  may  make  application  to  the 
proper  probate  court  for  the  release  of  his  sureties,  by  filing 
his  written  request  therefor  w4th  the  judge  of  such  court,  and 
giving  at  least  five  days  notice,  in  writing,  to  such  sureties.  If, 
upon  the  hearing,  the  court  is  of  opinion  that  there  is  good 
reason  to  release  said  sureties,  it  shall  order  said  assignee  or 
trustee  to  file  an  account,  as  provided  by  law,  and  said  sureties 
shall  be  released  upon  said  assignee  or  trustee  filing  a  new  bond 
and  its  approval  by  the  court.     [107  v.  421.]  ^^t 

§  1562c.  Removal  for  failure  to  give  new  bond.  If  such 
assignee  or  trustee  fails  to  give  new  bond,  as  by  the  court 
directed,  he  must  be  removed  and  his  letters  superceded.  Such 
original  surety  or  sureties  shall  not  be  released  until  the  as- 
signee or  trustee  so  give  bond  but  the  original  surety  or  sure- 
ties shall  be  liable  for  said  assignee  or  trustee's  acts  only  from 
the  time  of  executing  the  original  bond  to  the  filing  and  approv- 
al by  the  court  of  the  new  bond.     [107  v.  421.] '^^t 

§  1563.    Procedure,  etc. 
The  above  section  does  not  state  for  what  cause  the  Court 
may  remove  an  assignee,  but  I  have  no  doubt  any  of  the  causes 
which  would  be  sufficient  to  remove  an  administrator  would  be 
sufficient  to  remove  an  assignee,*"*  or  trustee,"^  or  guardian."- 

58  §  lion.5  G.   C.  ""t  §  11098-2  G.  C. 
The   above   section   is   very   much  ^'H  §  1100S-.3  G.  C. 

Bimilar  to  §  10627  G.  C.   (§210)   and  «"  See  §220  et  seq. 

§10020  G.  C.    (§21.3)    and   reference  ei  §  12.56. 

will  be  had  to  previous  chapters  for  02  §  1354  et  seq. 

the  method  of  procedure,  etc.  A   trustee   who  is   not  free   from 

59  §11008  G.  C.  bias,   etc.,   will   be   removed.     Com- 
es* §  11098-1  G.  C. 


^  1504  KEMOVAL  OF  ASSIGNEE  1374 

As  to  the  requirement  of  a  new  bond,  the  same  procedure  could 
be  followed  as  is  required  when  giving  a  new  bond  for  execu- 
tors and  administrators.^^  Before  the  Court  should  for  any 
cause  appoint  a  successor  to  an  assignee  or  trustee,  there  should 
be  filed  by  some  interested  person  an  application  for  such  re- 
moval. This  application  should  set  forth  the  cause,  and  the 
form  of  procedure  used  in  removing  an  administrator  can  easily 
be  adopted  and  followed  for  the  removal  of  an  assignee.*** 

§1564.  Election  of  trustee  or  trustees  by  creditors.  "When 
a  creditor  or  creditors  of  the  assignor  file  a  complaint  allegmg 
that  the  assignee  or  assignees  named  in  the  deed  of  assignment, 
or  the  trustee  or  trustees  appointed  by  the  court  are  not  suitable 
persons  to  administer  the  trust,  or  that  their  administration 
thereof  will  not  be  for  the  best  interests  of  the  creditors  and 
assignor,  the  court  thereupon  shall  issue  a  citation  to  such 
assignee  or  assignees,  or  trustee  or  trustees,  and  to  the  assignor 
if  resident  within  the  state,  to  appear  before  it  at  a  time  to  be 
named  therein.  If,  on  the  hearing,  it  be  made  to  appear  to  the 
court  that  such  complaint  is  true,  and  a  petition  is  filed  ^^nth 
the  court,  signed  by  creditors  of  the  assignor,  who  own  not  less 
than  one  thousand  dollars  of  debts  against  him,  and  their  va- 
lidity is  shown  by  the  schedule  of  debts  on  file  or  othervtdse 
established  to  its  satisfaction,  pra3'ing  for  permission  to  elect  a 
trustee  or  trustees,  the  court  by  its  order  shall  fix  a  time  for 
such  election  and  cause  notices  to  be  sent  by  mail  or  otherwise 
to  each  creditor  of  the  assignor,  specifying  a  time  when  the 
creditors  shall  meet  at  the  court  room  for  the  election  of  a 
trustee  or  trustees."     [R.  S.  §  6338. ]«» 

§  1564a.  Proceedings.  "At  the  time  named  in  such  order, 
if  creditors  representing  fifty  per  cent  or  more  of  the  debts  of 
the  assignor  are  present  or  represented  by  attorney,  they  may 
proceed  to  the  election  of  a  trustee  or  trustees,  a  majority  in 
value  of  all  the  debts  so  represented  at  such  meeting  being 
necessary  to  a  choice.  The  proceedings  of  the  meeting  sho^A-ing 
what  creditors  were  present,  the  amount  of  the  debts  held  by 
them  respectively,  and  who  cast  their  several  votes,  must  be 
made  out  and  signed  by  the  president  and  secretary  of  the 
meeting  and  filed  with  the  court.     If  the  court  approves  the 

^ercial  Bank  /n  re,  4  N.  p.   (N.S.)  See    Phillips    vs.    Ross,    36    0.    S. 

99;  6  Dec.  105.  458;    /„,   .-e   Jones,   5   N.   P.    (X.S.) 

Assignee  has  no  such  title  as  will  112;   8  Dec.  123;   State  vs.  Millard, 

entitle   him   to   litigate  question   of  15  O.  C.  C.  460;   8  C.  D    612. 

his  removal.     Campbell  vs.  Minor,  3  63  See  §  243  et  sea. 

^.  P.   (X.S.)    138;  4  Dec.  96.  64  See  §  214  et  seq. 


1375  ELECTION  OF  TRUSTEE  §  1565 

choice,  and  the  trustee  or  trustees  so  elected  appear  within  ten 
days  thereafter  and  give  bond,  it  shall  appoint  him  or  them  as 
such  trustee  or  trustees,  and  remove  the  preceding  assignee  or 
trustee.  The  summary  determination  of  the  court  as  to  who 
are  creditors  and  the  amount  of  their  claims  in  the  next  pre- 
ceding section  provided,  shall  have  no  effect  as  to  the  validity 
of  such  claims,  except  for  the  purpose  of  such  election."  [R.  S. 
§6338.]«2* 

§  1565;     Application  for  election  of  trustee. 

There  may  be  some  question  under  the  above  section  as  to 
whether  it  confers  an  absolute  right  on  the  creditors  to  have  an 
assignee  removed,  or  whether  the  matter  rests  in  the  discretion 
of  the  Court.  Several  things  unquestionably  rest  in  the  discre- 
tion of  the  Court.  In  the  first  place,  the  Court  must  be  satis- 
fied that  the  assignee  is  an  unsuitable  person  or  that  his  admin- 
istration of  the  trust  will  not  result  to  the  best  interest  of  the 
estate ;  and  secondly,  the  Court  must  be  satisfied  that  the  choice 
made  by  the  creditors  is  a  proper  one.  Undoubtedly  the  Court 
must  entertain  the  application,  and  usually,  if  -made  and  pro- 
ceeded with  as  the  law  requires,  the  Court  will  obey  the  request 
of  the  creditors.  The  application  must  set  out  several  facts. 
First,  it  must  be  shown  that  the  assignee  is  not  a  suitable  person 
to  administer  the  tnist;  or,  if  suitable,  that  his  administra- 
tion will  not  be  to  the  best  interest  of  the  creditors  and  the 
assignor.  The  petition  must  also  show  that  the  creditors  filing 
the  same  own  at  least  one  thousand  dollars  of  debts  against  the 
assignor.  The  petition  ought  to  be  sworn  to,  as  upon  its  state- 
ments the  Court  will  proceed  and  issue  a  citation  for  the  as- 
signor and  assignee,  etc.  The  application  may  be  in  the  fol- 
lowing form : 

§   1566.     Form  of  petition  for  election  of  trustee. 

{Title.) 

The  undersigned  respectfully  represent  that  tJiey  are  creditors  of  A.  B. 
who  has  made  an  assignment  in  trust  for  the  benefit  of  his  creditors  to  C. 
D.,  which  deed  of  assignment  was  filed  in  this  C<iurt.  They  further  allege 
that  the  saia  C.  D.  is  not  a  suitable  person  to  administer  said  trust  in  this, 
to-wit:      (Here  set  out  facts)    and  that  the  administration  thereon  by  the 

c"'  §  11096  G.  C.  Petition  :9  used  in  sense  of  motion, 

on*  §  11097  G.   C.  Rahe  In  re,  12  Dec.  594. 


§  1567  EMOVAL  OF  ASSIGfNEE  1376 

said  C.  D.  will  not  be  for  the  best  interest  of  the  creditors  of  the  said  A.  B., 
for  the  reason  following,  to-wit:      (Here  insert  reason.) 

The  said  undersigned  further  allege  that  they  are  the  owners  of  not 
less  than  one  thousand  dollars  of  debts  against  said  assignor  as  will  ap- 
pear in  the  schedule  of  the  debts  in  said  assignment.  Wherefore  the  under- 
signed pray  that  their  'said  petition  be  set  for  hearing  and  that  a  citation 
thereof  shall  issue  to  tlie  assignee  and  to  the  assignor  to  appear  before 
this  Court  at  a  time  to  be  designated  by  the  Court. 

And  they  further  pray  for  permission  to  elect  a  trustee  at  such  a  time 
as  the  Court  may  indicate,  and  as  is  provided  by  law. 


The  State  of  Ohio, Cotinty,  ss. 

,   being  first  duly   sworn,   saj'^s  that  he   is   one  of  the 

creditors  joining  in  the  petition,  and  that  the  allegations  therein  are  true, 
as  he  verily  believes. 

Sworn  to   before  me  and   subscribed   in   my   presence   this day   of 

A.  D.   190... 

§  1567.     Entry  ordering  citation,  etc. 

Upon  the  filing  of  siicli  petition,  the  Court  should  fix  the  time 
for  hearing  the  same  and  order  a  citation  to  be  issued  to  the  as- 
signor and  the  assignee,  which  entry  may  be  in  the  following 
form : 

{Title.) 

This  day  came  E.  F.  and  other  creditors  of  A.  B.,  representing  one  thou- 
sand dollars  of  debts  against  such  assignor  as  appears  in  the  schedule  of 
indebtedness  on  file  in  this  office,  and  filed  their  petition  herein  alleging 
that  the  said  C.  D.  is  not  a  suitable  person  to  administer  said  trust,  and 
that  his  administration  thereof  will  not  be  for  the  best  interest  of  said 
estate,  and  praying  for  permission  to  elect  a  trustee  to  execute  said  trust 
instead  of  said  C.  D.,  assignee. 

It  is  therefore  ordered  that  said  cause  be  set  for  hearing  on  the 

day  of ,  at o'clock,  100. .,  and  that  a  citation  be 

issued  to  A.  B.,  assignor,  and  C.  D.,  assignee,  ordering  them  to  appear  in 
Court  at  said  time  and  show  cause  why  said  permission  should  not  be 
granted. 

§  1568.     Form   of   citation,   service,   etc. 

There  is  no  particular  time  stated  in  the  statute  within 
which  this  citation  should  be  served  or  how  long  before  the  time 
of  hearing.  A  reasonable  time  under  all  the  circumstances 
should  be  given.  The  form  of  notice  providing  for  the  removal 
of  administrators  might  be  used,®^ 


fc>^ 


1569.     Hearing',  etc. 


Upon  the  day  set  for  hearing,  the  Court  being  satisfied  that 
the  petitioners  are  the  owners  of  debts  of  the  amount  of  one 


66  See  §  219.     See  also  §  1003. 


1377  ELECTION  OF  TRUSTEE  §  1570 

thousand  dollars,  as  sbo\vn  bj  the  schedule  or  otherwise,  and 
being  satisfied  that  the  assignee  is  not  a  suitable  person  to  ad- 
minister the  trust  or  that  his  administration  will  not  be  for  the 
best  interest  of  the  creditors,  and  being  further  satisfied  that 
the  assignee  and  assignor  have  both  been  notified  as  required  by 
law,  the  Court  should  make  a  finding  of  that  fact  and  order  and 
fix  a  time  for  election  of  a  trustee.  The  entry  therefor  may 
be  in  the  following  form : 

(Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  petition  of  E.  F.  and 
other  creditors  of  A.  B.,  .asking  for  permission  to  elect  a  trustee  instead 
of  C.  D.,  the  assignee;  and  it  appearing  to  the  Court  that  A.  B.,  the 
assignor,  ajid  C.  D.,  the  assignee,  have  both  been  notified  of  the  time  and 
hearing  of  said  petition,  as  required  by  law ;  and  it  further  appearing  to 
the  Court  that  said  C.  D.  is  an  unsuitable  person  to  administer  said  trust, 
and  that  his  administration  will  not  be  for  the  best  interest  of  the  reditors 
of  the  assignor  and  such  assignees,  it  is  therefore  ordered  by  the  Court  that 
the  creditors  of  said  assignor  shall  be  granted  permission  to  elect  a  trustee 
to  execute  said  trust  instead  of  said  C.  D.,  the  assignee  thereof. 

It  is  therefore  ordered  by  the  Court  that  said  election  be  held  in  this 

court  room  for  the  election  of  a  trustee,  on  the day  of 

190..,    at o'clocK;    and    that   notice   thereof    shall    be    given    by 

(here  insert  person  or  officer  who  is  to  give  notice)  to  all  the  creditors 
of  such  assignor  of  the  time  of  hearing  said  election.  (Here  state  in 
what  manner  notice  shall  be  given.  The  statute  permits  such  notice  to  be 
served  by  mail,  if  the  Court  so  order.) 

FORM  OF  NOTICE. 

To 

You  are  hereby  notified  that  by  order  of  the  Probate  Court  of 

county,  in  the  matter  of  the  assignment  of  A.   B.  to  C.  D.,   in 

trust  for  the  benefit  of  his  creditors,  that  permission  has  been  granted  to 
the  creditors  of  such  assignor  to  elect  a  trustee,  and  that  the  said  creditors 

will    meet   at    this    court    room    in    the    city    of in    said 

county  on  the day  of ,  190 .  . ,  at ojclock,  for 

the  purpose  of  electing  a  trustee  to  execute  said  trust. 

§  1570.     Election  by  creditors,  etc. 

At  the  time  mentioned  in  the  order,  if  creditors  representing 
fifty  per  cent,  or  more  of  the  debts  of  the  assignor  are  present, 
or  represented  by  an  attorney,  they  may  proceed  to  the  election 
of  a  trustee  —  a  majority  in  value  of  all  the  debts  represented 
shall  be  necessary  to  a  choice.  It  would  be  proper  for  such  a 
meeting  to  organize  and  elect  a  chairman  and  secretary  and  pro- 
ceed to  take  a  vote.  Their  minutes  should  show  the  creditors 
present  and  amount  of  the  claims  of  each,  and  by  whom  repre- 


§  1571  REMOVAL  OF  ASSIGNEE 


1378 


sented,  and  should  be  signed  by  the  president  and  secretary 
and  filed  with  the  Court.  Then,  if  the  Court  approves  the 
choice,  an  entry  should  be  made  of  such  fact,  and  if  the  person 
chosen  appears  and  gives  bond  within  ten  days  from  the  time  of 
such  meeting,  then  the  Court  should  remove  the  former  as- 
signee and  appoint  the  person  so  selected.  If  the  person  so 
chosen  files  his  bond  immediately,  this  may  be  in  one  entry, 
otherwise  it  should  be  in  two  entries.  The  first  approving  the 
choice,  and  ordering  the  person  so  chosen  to  be  notified,  and 
the  second  making  the  appointment.  The  following  entry  is 
intended  where  the  person  who  is  chosen  appears  at  once  and 
files  his  bond : 

§  1571.     Entry,  form,  etc. 

(Title.) 

This  day  this  matter  came  on  to  be  further  heard  upon  the  petition 
heretofore  filed  herein,  and  the  order  made  electing  a  trustee,  and  it  appear- 
ing to  the  Court  that  due  and  proper  notice  has  been  given  to  all  the 
creditors  of  the  assignor,  as  required  by  law  and  the  former  order  of  the 
Court,  and  that  in  pursuance  to  said  notice  the  creditors  of  the  assignor 
had  met  in  this  Court  as  required  by  the  former  order,  and  that  there  was 
then  present  creditors  representing  more  than  fifty  per  cent,  of  the  debts 
of  said  assignor,  and  that  at  said  meeting  G.  H.  was  duly  elected  a  trustee 
by  persons  representing  a  majority  in  value  of  all  the  debts  presented  at 
said  meeting;  and  that  the  proceedings  of  said  meeting  show  what  creditors 
were  present  and  the  amount  of  debts  held  by  them  respectively,  which  has 
been  filed  in  this  Court.  And  it  appearing  to  the  Court  that  said  G.  H.  is 
a  suitable  person  to  act  as  trustee  in  said  matter,  the  choice  of  said  cred- 
itors is  hereby  approved  by  the  Court. 

It  is  therefore  ordered  that  C.  D.,  the  assignee,  be  and  is  hereby  removed 
from  his  said  trust,  and  he  is  ordered  to  file  forthwith  in  this  Court,  a  full 
and  complete  account  of  his  proceedings. 

It  is  further  ordered  that  said  G.  H.  be  appointed  trustee  to  execute  said 
trust,  in  place  of  said  assignee,  and  that  he  appear  and  file  bond  in  the 
sum  of dollars. 

Thereupon  came  the  said  G.  H.  in  Court  and  accepted  said  appointment 
and  filed  his  bond  in  the  sum  of dollars,  conditioned  ac- 
cording to  law,  with and sureties  thereon, 

which  bond  is  approved  by  the  Court;  and  it  is  further  ordered  that  letters 
showing  such  appointment  be  issued  to  said  G.  H.^t 

§  1572.  Trustee  appointed,  to  give  bond.  His  rights  on 
giving  bond.  "When  the  probate  court  appoints  a  trustee 
whether  in  place  of  an  assignee,  or  of  a  trustee  before  ap- 
pointed, such  trustee,  within  ten  days  after  his  appointment 
shall  give  bond  as  aforesaid,  or,  failing  so  to  do,  he  may  be 
considered  as  declining  the  appointment,  and  the  place  be  filled. 
"When  a  trustee  has  given  bond,  he  will  succeed  to  all  the  rights, 

67  The  statute  does  not  provide  for 
a  second  election  of  a  trustee.  Bri- 
gel  vs.  Starbuck,  4  Bull.  83. 


1379  SETTLEMENT,   ETC.  §  1573 

powers,  and  prmleges  of  the  preceding  assignee  or  trustee. 
The  court  may  make  and  enforce  all  orders  necessary  to  put 
him  into  possession  of  all  property,  moneys,  books,  papers, 
evidences  of  title,  and  other  effects  covered  by  the  assignment, 
or  in  any  way  belonging  to  the  trust.  By  suit  in  the  court  of 
common  pleas,  or  otherwise,  such  trustee  may  compel  the  de- 
livery to  him  of  all  such  property,  moneys,  books,  papers,  evi- 
dences of  title,  and  other  effects."     [R.  S.  §  6340.] «« 

Wlien  the  Probate  Court  appoints  or  approves  the  choice  of 
the  creditors  for  a  trustee,  then,  if  such  trustee  does  not  qualify 
within  ten  days,  he  is  proceeded  against  the  same  as  the  orig- 
inal assignee  and  removed.  Bond  is  required,  and  in  all  respects 
such  trustee  proceeds  with  the  same  powers  as  an  assignee. 

§  1573.  Settlement  on  resignation,  removal,  or  death.  How 
enforced.  "On  the  resignation  or  removal  of  an  assignee  or 
trustee,  appointed  by  the  court,  he  forthwith  shall  file  and  settle 
his  account,  and  on  the  death  of  such  assignee  or  trustee,  his 
legal  representative  forthwith  must  file  and  settle  such  account. 
Immediately  after  the  settlement,  the  assignee  or  trustee,  or  his 
legal  representative,  shall  pay  over  to  his  successor  all  moneys 
found  due  from  him  to  the  trust.  On  failure  so  to  do,  or  to 
file  and  settle  such  account,  or  deliver  over  to  his  successor  all 
property,  moneys,  books,  evidences  of  title,  papers,  and  other 
effects  belonging  to  the  tnist,  such  successor  may  proceed  against 
such  assignee,  or  trustee,  by  action  in  the  common  pleas  court 
or  otherwise,  on  his  bond  or  his  legal  representative  and  the 
sureties  in  such  bond."     [R.  S.  §6341.]«» 

While  the  assignee  when  removed  at  once  loses  all  power  over 
the  assigned  estate,  yet  the  Court  does  not  lose  jurisdiction 
over  him  until  he  has  filed  his  account  and  the  Court  has  passed 
thereon."^*    It  seems  as  if  no  action  can  be  brought  in  the  Pro- 

68  §  11099  G.  C.  not  so   clear,   possibly   tlie   assignee 

No    doubt   the    Court    mav   make  could  be  proceeded  against  in  corn- 

tempt,      isut  without   exception   the 

whatever  order  it  deems  suflicient  or  trustee  could  institute  an  action  in 

proper   in    reference   to   putting   tlie  replevin  and  recover  such  property. 

trustee  into  possession  of  the  prop-  After  the  account  is  filed,  then  suit 

,,,.,,,  .  r,„.  could   be  brouirht  on   the  bond. 

erty  belonging  to  the  assignee.     But  C9  8  njoo   fj    C 

the   question   as    to   the    manner    in  The  successor  of  an  assignee  takes 

which  such  order  mav  be  enforced  is      his  place  in  a  pending  action.   Greer 

vs.   i Toward,  41   O.   S.  597. 


§  1574  REMOVVIi   OP    ASSIGNEE  1380 

bate  Court  enforcing  the  payment  of  money.  Such  an  action 
must  be  brought  in  a  Court  of  general  jurisdiction.  The  pay- 
ment of  money  cannot  be  enforced  by  contempt  proceedings.^" 

§  1574.  Appointment  and  qualification  of  trustee  to  oper- 
ate as  a  conveyance.  "When  the  court  appoints  a  trustee  to 
act  in  place  of  the  assignee  of  the  debtor,  the  appointment  and 
qualification  of  the  trustee  so  appointed  shall  operate  as  a  con- 
veyance to  him  of  all  the  property  originally  assigned  to  such 
assignee."     [R.  S.  §6342.]^^ 


§  1575     Appeal  and  error. 

In  a  case  passed  upon  by  the  Supreme  Court  some  years  ago, 
it  was  held  that  there  was  no  right  of  appeal  from  an  order 
made  by  the  Probate  Court  in  removing  an  assignee  or  trustee, 
the  Court  holding  that  the  statute  did  not  apply  to  such  an 
order.'^  The  Court  intimated  that  such  order  was  not  defin- 
itive or  final  in  its  character,  and  holding  that  the  same  rule 
should  be  applied  as  is  applied  to  the  removal  of  an  executor, 
administrator  or  guardian.  It  is  now  well  settled  that  an  order 
of  the  Court  removing  an  administrator  is  not  reviewable  in 
proceedings  in  error,"  and  it  was  formerly  held  that  an  order 
of  the  Probate  Court  removing  an  assignee  is  not  a  final  order 
affecting  a  substantial  right  of  an  assignee,  and  error  cannot 
be  predicated  thereon.''^ 

§  1576.  Unsettled  assignments  heretofore  made.  Citation  of 
assig-nee  to  give  bail.  "In  all  cases  of  assignments  heretofore 
made,  where  no  final  settlement  and  distribution  has  been  made, 

69*Garver  vs.  Tissinger,  46  0.  S.  74/^    re    Jones,    5    N.    P.     102; 

56.  Campbell  vs.  Minor,  3  N.  P.  138;  4 

TO/n  re  Rowekamp,  27  Bull.  289;  ^      '   ^ 

Ex  parte  French,  4  Gaz.  209.  ^^^-   ^"• 

71  §  11101  G.  C.  See   Wambaugh    vs.    Ins.    Co.,    59 

Upon   the  assignees  removal   and  O.  S.  228. 
appointment   of    a   trustee    title    to  ^^^^g^  assignee  fails  to   pay,  suit 

all  the  property  rests  in  the  trustee.  ,  ,       ,      -r^  .,i.  t. 

Wambaugh  vs.  Insurance  Co.,  59  O.  ^^^  ^^  °^  ^°^'^-     Phillips  vs.  Ross, 

S.  228.  36   0.    S.   458;    Voss   vs.    Loomis,    1 

72Brigel   vs.    Starbuck,   34  O.   S.  C.  D.   12;    1  0.  C.   C.  21;   State  vs. 

2^1-         ,   .  1         ni        -,  Go€bel,    1    C.    D.    307;    1    0.    C.    C. 

Appeal  is  now  also  allowed.  '  ,   „„   -r.   n     at^     t^-  i  i 

§11205  G.  C.    (§39).  550;   affirmed  22  Bull.   475;    Walsh 

V3§232.    •     •  •  yg   Miller,  51  0.  S.  480. 

Statute  changed  by  legislature  of 

1902,  and  now  allows  error. 
§  11207   G.   C.    (§52). 


1381  KAISING  AN  ASSIGNMENT  §  1577 

the  Probate  Judge  of  the  proper  county  shall  have  the  power, 
on  the  application  of  any  creditor  of  the  assignor,  to  issue  a  ci- 
tation against  such  assignee,  requiring  him  to  appear  before 
such  Probate  Judge,  on  the  day  named  in  such  citation,  to  show 
cause  why  he  should  not  give  bail  for  the  execution  of  his 
trust  according  to  the  provisions  of  this  chapter;  and  such 
Probate  Judge,  on  good  cause  shown,  may  require  such  assignee 
to  give  bail  according  to  the  provisions  of  this  chapter;  and  in 
case  such  assignee  shall  fail  to  appear  as  required  by  such  cita- 
tion, or  shall  fail  to  give  bail  within  the  time  ordered  by  such 
Probate  Judge,  such  Probate  Judge  shall  remove  him  and  ap- 
point another  trustee,  and  after  the  giving  bail  by  any  assignee, 
or  trustee  so  appointed,  as  provided  in  this  section,  the  same 
proceeding  shall  be  had  as  provided  in  this  chapter  in  case  of 
assignments  hereafter  made."     [56  v.  231,  §  21.]''^ 

§  1577.     Raising  an  assignment. 

There. is  another  cause  for  the  removal  of  an  assignee  or  trus- 
tee, and  that  is  where  the  creditors  have  all  been  paid  in  full 
and  an  application  is  made  for  the  termination  of  the  trust.  In 
such  cases,  there  being  no  longer  any  reason  for  the  assignment, 
the  assignee  should  be  removed  and  ordered  to  reconvey  to  the 
assignor  the  property  remaining  in  his  hands.  This  proceed- 
ing is  generally  known  as  "  raising  an  assignment."  In  such 
cases  it  is  usual  for  the  assignor  to  make  an  application  in  the 
Probate  Court  for  that  purpose.  This  application  should  set 
forth  the  fact  that  all  the  creditors  have  been  paid  in  full,  and, 
as  an  evidence  of  such  fact,  there  should  be  an  exhibit  attached 
to  the  application  which  should  contain  a  receipt  from  all  the 
creditors,  or  a  consent  that  the  assignment  be  raised.  This  ex- 
hibit might  also  contain  a  complete  account  of  the  assignee  in 
his  administration  of  the  trust  up  to  such  time.  The  applica- 
tion therefor  may  be  in  the  following  form : 

{Title.) 

Now  comes  C.  D.  and  represents  that  he  is  the  assif^or  herein  and  that 
he  made  an  assignment  to  A.  B.  of  all  his  property  and  effects  for  the 
benefit  of  his  creditors,  that  since  said  assijjnment  all  of  his  creditors  have 
been  paid  in  full  and  there  are  no  claims  nntstandini?  acfainst  him;  and 
he  hereby  attaches    (which  is  marked  Exhibit  A.)    a  complete  statement 

'6  §  6345  R.  S.  This    section    is    marked    executed 

by  the  codiller    (1!)I1). 


§1577 


RAISING  AN  ASSIGNMENT 


1382 


of  said  A  B  his  assignee,  of  the  ddministration  of  his  said  trust,  and 
which  exhibit 'also  shows  that  the  payment  in  full  of  all  claims  presented 
by  his  creditors.  .  ^        ,       j 

Wherefore  he  asks  the  Court  to  raise  said  assignment  and  order  a  re- 
conveyance to  himself.  .,     ,    .  .u  •  At 

Sworn  to   before   me   and   subscribed   m   my   presence  this day   of 

A.  D.   190... 

The  following  may  serve  as  an  entry : 

( Title. ) 

This  day  this  cause  came  on  to  be  heard  upon  the  application  of  C.  D. 
to  raise  the  assignment  herein  upon  the  proofs  and  exhibits.  The  Court 
beinor  satisfied  that  all  creditors  6i  said  C.  D.  have  been  paid  in  full  (or 
have  consented  to  the  raising  of  said  assignment)  and  no  reason  appearing 
why  the  assignment  should  not  be  raised,  it  is  ordered  that  the  personal 
propertv  transferred  to  said  A.  B.  in  said  assignment,  and  yet  undisposed 
of  be  delivered  to  the  said  assignor  and  that  the  real  estate  of  said 
assignor  so  held  by  said  assignee,  yet  undisposed  of.  be  reconveyed  by  said 
assignee  to  said  assignor  by  deed  duly  executed,  and  upon  his  failure  to  do 
so,  this  entry  shall  operate  as  a  conveyance  of  the  same,  and  that  said 
assignor  shall  satisfy  the  assignee  and  pay  to  him  the  sum  of .  .  .  .  ••,.•••  •  • 
dollars  for  his  services,  and  the  sum  of dollars  to  his  at- 
torney for  services  rendered  in  this  assignment;  and  thereupon  said  as- 
signment is  raised  and  said  assignee  is  discharged.^e 


76  Although  there  is  no  special 
provision  made  in  the  statutes  to 
that  effect,  yet  under  the  decision 
of  the  Supreme  Court  in  Garver  vs. 
Tissinger,  46  0.  .S.  56,  it  is  compe- 
tent for  the  creditors  and  for  the 
assignee  and  assignor  all  agreeing, 
in  cases  of  assignment  for  the  beneht 
of  creditors  under  the  statutes,  to 
consent  to  the  discharge  of  the  as- 
signee and  to  the  closing  up  of  the 
affairs  of  the  estate,  and  where  all 
creditors  except  four  consent  that 
the  assignment  be  closed  up,  and  it 
appears  that  these  four  creditors 
have  failed  to  present  their  claims 
for  more  than  six  months  after  due 
publication  of  the  notice  to  creditors 
to  present  their  claims,  the  fact  that 
such  creditors  do  not  appear,  and 
the  want  of  their  consent  to  the 
closing  up  cf  the  assignment,  will 
not  prevent  this  being  done  and  the 
assignee  being  ordered  to  pay  over 


to  the  assignor  the  balance  of  the 
money  in  his  hands  belonging  to 
such  estate.  Backus  &  Sons  Co.  vs. 
Backus,   18  €.  C.  341;   9  C.  D.  789. 

Where  the  Probate  Court  makes 
an  order  discharging  an  assignee  for 
the  benefit  of  creditors,  at  his  own 
request  and  vacating  the  assign- 
ment, such  order  is  binding  on  such 
assignee  and  on  all  parties  having 
notice  of  such  application  until  set 
aside  by  proper  proceeding  or  re- 
versed on  error.  State  vs.  Millard, 
15   C.   C.   460;    8   C.   D.   672. 

See  §  1661,  Report  of  payment. 

The  Probate  Court  has  no  juris- 
diction to  raise  an  assignment  un- 
less all  the  parties  in  interest,  in- 
cluding the  assignor,  assignee  and 
creditors,  consent.  But  a  Court  of 
Equity  may,  when  the  interest  of 
all  parties  are  preserved.  As  where 
a  bond  is  given  to  pay  all  creditors 
in  full.  Harrison  vs.  Ellis,  15  Dec. 
501. 


1383 


ASSIGNMENT  CARE  AND  MANAGEMENT 


§1578 


CHAPTER  LXXXYI. 

MANAGEMENT    OF 


DUTY  OF  ASSIGNEE  AS  TO  CARE  AND 

PROPERTY. 


§  1578    Introductory. 

§  1579  When  transfer  or  assign- 
ment  void. 

§  1579a  To  whom  act  applies. 

§  1579aa  When  purchaser  or  as- 
signee becomes  trustee. 

§  1579b  Receiver;    appointment    of. 

§  1579c  Knowledge  of  fraudulent 
intent  material;  "mortgage, 
provisions    as    to. 

§  1580     How    suit   brought. 

§  1580a  When  creditor  may  bring 
suit. 

§  1581  For  what  cause  action  may 
be  brouglit. 

§  1582  AVhen  sale  conclusively  pre- 
sumed to  be  fraudulent. 

§  1583     Who  may  bring  the  action. 

§  1584     Jurisdiction. 


§  1585     Examination      of     assignor, 
etc.       Orders     to     prevent 
fraudulent   transfer. 
§  1585a  Order  to  prevent  fraudulent 
transfer. 

Procedure,  etc. 

Court,  on  application  of 
tliree-fourths  of  creditors, 
may  order  business  of  as- 
signor carried  on  by  as- 
signee. 

Liability  of  assignee. 

Application. 

Form    of    application,   etc. 

AssigTiee  may  complete  sales 
of  real  estate,  etc. 

Property  taken  possession 
of  by  another  under  lien 
or  execution. 


§  1586 
§  1587 


§1588 
§  1589 
§  1.590 
§  1591 

§1592 


§  1578.     Introductory. 

It  is  the  first  duty  of  an  assignee  to  ascertain  and  get  posses- 
sion of  all  the  property  assigned,  and  to  accomplish  this,  he  is 
possessed  of  whatever  rights  and  remedies  the  law  affords  to 
other  trustees  or  individuals.  In  reference  to  the  care  and 
management  of  the  property,  his  duties  are  very  much  similar 
to  those  of  an  administrator,  except  as  to  real  estate,  and  then 
the  assignee  occupies  a  similar  position  as  an  executor  directed 
to  sell  the  same,  and  reference  will  he  had  to  the  chapter  there- 
on, under  the  administration  of  estates.^  It  is  not  only  the 
duty  of  the  assignee  to  get  possession  of  all  the  property  as- 
signed, hut  may  under  certain  circumstances  he  his  duty  to  re- 
cover property  that  has  heen  conveyed  away,  provided  the  same 
has  been  sold  in  violation  of  the  succeeding  sections. 


1  See  §  506  et  seq. 

The  assignee  is  entitled  to  pos- 
session of  real  estate  in  possession 
of  assignor,  and  held  under  a  secret 
arrangement  that  the  title  is  to  re- 
main in  tlie  seller,  and  in  such  cases 
the  fund  derived  from  the  sale  of 
same  belongs  to  the  assignee  for  the 
benefit  of  general   creditors.     In  re 


Cook,  6  N.  P.    (N.S.)   298;   18  Dec. 
541. 

Where  the  assignee  permitted  the 
assignor  to  retain  possession  of  the 
premises,  it  was  held  that  he  was 
not  chargeable  with  failure  to  col- 
lect rent.  In  re  McCray,  22  Dec. 
697. 


§  1579  ASSIGNMENT — CARE   AND    MANAGEMENT  1384 

§  1579.  When  transfer  or  assignment  void.  Sec.  11102.  The 
sale,  transfer  or  assignment,  in  bulk,  of  any  part  or  the  whole 
of  a  stock  of  merchandise,  or  merchandise  and  the  fixtures  per- 
taining to  the  conducting  of  said  business,  otherwise  than  in  the 
ordinary  course  of  trade  and  in  the  regular  and  usual  prose- 
cution of  the  business  of  the  sellers,  transferrer  or  assignor,  shall 
be  void  as  against  the  creditors  of  the  seller,  transferrer,  assign- 
or, unless  the  purchaser,  transferee  or  assignee  demands  and 
receives  from  the  seller,  transferrer  or  ai£:ignor  a  written  list 
of  names  and  addresses  of  the  creditors  of  the  seller,  transferrer 
and  assignor,  with  the  amount  of  the  indebtedness  due  or  owing 
to  each  and  certified  by  the  seller,  transferrer  and  assignor, 
under  oath,  to  be  a  full,  accurate  and  complete  list  of  his  creditors, 
and  of  his  indebtedness ;  and  unless  the  purchaser,  transferee 
or  assignee  shall,  at  least  five  (5)  days  before  taking  possession 
of  such  merchandise,  or  merchandise  and  fixtures,  or  paying 
therefor,  notify  personally,  or  by  registered  mail,  every  cred- 
itor whose  name  and  address  appears  in  said  list,  or  of  which 
he  has  knowledge,  of  the  proposed  sale  and  of  the  price,  terms 
and  conditions  thereof.     [103  v.  462.]- 

§  157Ca.  To  whom  act  applies.  Sec.  11103,  Sellers,  trans- 
ferrers and  assignors,  purchasers,  transferees  and  assignees, 
under  this  act  shall  include  corporations,  associations,  co-part- 
nerships and  individuals,  but  nothing  contained  in  this  act 
shall  apply  to  sales  by  executors,  administrators,  guardians, 
receivers,  trustees  in  bankruptcy  or  by  any  public  officer  under 
judicial  process.     [103  v.  462.]-* 

§  1579aa.  When  purchaser  or  assignee  becomes  trustee. 
See.  11103-1.  Any  purchaser,  transferee  or  assignee,  who 
shall  not  conform  to  the  provisions  of  this  act,  shall  at  any 
time  within  ninety  days  after  such  sale  upon  application  of 
any  of  the  creditors  of  the  seller,  transferrer,  cr  assignor, 
become  a  trustee  and  be  held  accountable  to  such  creditors 
for  all  the  goods,  wares,  merchandise  and  fixtures  that  have 
come  into  his  pos.session  by  virtue  of  such  sale,  transfer  or 
assignment,  provided,  however,  that  any  purchaser,  transferee, 
or  assignee,  who  shall  conform  to  the  provisions  of  this  act 
shall  not  in  any  way  be  held  accountable  to  any  creditor  of 

2  §11102   G.  C.  Nassif,    26    0.    C.    C.     (X.S.)     542. 

2*  §  11103  G.  C.  Honest     intention     does     not     aid. 

Tliis     statute     is     constitutional.  Gragdon  vs.  Atlantic  Pho.,  17  0.  C. 

Steele,   Hopkins    and    ]\Iereditli,    92  C.    (X.S.)   236.     A  valid  preference. 

0.  S.  115.     It  is  strictly  construed.  Pabst  Brewing  Co.  vs.  Johnson,   17 

Mollen,  Thompson  &  James   Co.  vs.  O.   C.  C.    (X.S.)    1.     See  245  U.  S. 

Klein,    19    X.    P.    415.      Must    be  Gil;   176  Fed.  510;  218  Fed.  733. 
literally  complied  with.     Romeo  vs. 


1385  FRAUDULENT  SALE  §  1579b 

the  seller,  transferrer  or  assignor,  or  to  the  seller,  transferrer 
or  assignor  for  any  of  the  goods,  wares,  merchandise  or  fix- 
tures that  have  come  into  possession  of  said  purchaser,  trans- 
feree or  assignee  by  virtue  of  such  sale,  transfer  or  assignment. 
[103  V.  462.] 

§  1579b.  Receiver,  appointment  of.  "A  sale,  conveyance, 
transfer,  mortgage  or  assignment,  made  in  trust  or  otherwise, 
by  a  debtor  or  debtors,  and  every  judgment  suffered  by  him  or 
them  against  himself  or  themselves  in  contemplation  of  in- 
solvency and  with  a  design  to  prefer  one  or  more  creditors  to 
the  exclusion  in  whole  or  in  part  of  others,  and  a  sale,  con- 
veyance, transfer,  mortgage  or  assignment  made,  or  judgment 
procured  by  him  or  them  to  be  rendered,  in  any  manner,  with 
intent  to  hinder,  delay  or  defraud  creditors,  shall  be  void  as  to 
creditors  of  such  debtor,  or  debtors  at  the  suit  of  any  creditor 
or  creditors.  In  a  suit  brought  by  a  creditor  or  creditors  of 
such  debtor  or  debtors  for  the  purpose  of  declaring  such  sale 
void,  a  receiver  may  be  appointed  who  shall  take  charge  of  all 
the  assets  of  such  debtor  or  debtors,  including  the  property  so 
sold,  conveyed,  transferred,  mortgaged,  or  assigned,  and  also 
administer  all  the  assets  of  the  debtor  or  debtors  for  the  equal 
benefit  of  the  creditors  of  the  debtor  or  debtors  in  proportion 
to  the  amount  of  their  respective  demands,  including  those 
which  are  unmatured."     [R.  S.  §6343.]=^t 

§  1579c.  Know^ledge  of  fraudulent  intent,  material ;  mort- 
gage, provisions  as  to.  "The  provisions  of  the  next  preceding 
section  shall  not  apply  unless  the  person  or  persons  to  wdiom 
such  sale,  conveyance,  transfer,  mortgage  or  assignment  is  made, 
knew  of  such  fraudulent  intent  on  the  part  of  such  debtor  or 
debtors,  nor  shall  anything  in  such  section  contained  vitiate  or 
affect  any  mortgage  made  in  good  faith,  to  secure  any  debt  or 
liability  created  simultaneously  with  such  mortgage,  if  such 
mortgage  be  filed  for  record  in  the  county  wherein  the  property 
is  situated,  or  as  otherwise  provided  by  law,  within  three  days 
after  its  execution,  and  when,  upon  foreclosure  or  taking  pos- 
session of  such  property,  the  mortgagee  fully  accounts  for  the 
proceeds  thereof."      [R.  S.   §6343.]^J 

2t  §  11104  G.  C.  former  statutes  it  was  provided  that 

2t  §  11105  G.  C.  after  the  suit  was  hrouj^ht   in  the 

§§  6C43  R.  S.   and  6344  P..   S.   as  Court  of  Common  Picas  to  set  aside 

now  standing,  while  containing  sub-  a  sale  and  was  sustained,  then  the 

stantially  the  law  as   contained  in  matter   was   taken   to   the   Probate 

the   former   sections,    is   a  complete  Court    and    there    the    trustee   was 

rearrangement  of  tlie  matter  there-  appointed  to  sell  the  property  and 

in.     The  present  sections  make  some  proceed   as   in   assignments.     Under 

additions  and  eliminations.     In  the  the  present  statute  if  an  action  is 


^  1580  ASSIGNMENT — CARE   AND    MANAGEMENT  1386 

§1580.  How  suit  brought.  "Any  creditor  or  creditors,  as 
to  whom  any  of  the  acts  or  things  prohibited  in  the  next  four 
preceding  sections  are  void,  whether  the  claim  of  such  creditor 
or  creditors  has  matured  or  will  thereafter  mature,  may  com- 
mence an  action  in  a  court  of  competent  jurisdiction  to  have 
such  acts  or  things  declared  void.  Such  court  shall  appoint  a 
trustee  or  receiver  according  to  the  provisions  of  this  chapter, 
who,  upon  being  duly  qualified,  must  proceed  by  due  course  of 
law  to  recover  possession  of  all  property  so  sold,  conveyed, 
transferred,  mortgaged  or  assigned,  and  to  administer  it  for  the 
equal  benefit  of  all  creditors,  as  in  other  cases  of  assignments 
to  trustees  for  the  benefit  of  creditors.  And  an  assignee  as  to 
whom  anything  or  act  mentioned  in  the  next  four  preceding 
sections  shall  be  void,  likewise  must  commence  a  suit  in  a  court 
of  competent  jurisdiction  to  recover  possession  of  all  property 
so  sold,  conveyed,  transferred,  mortgaged  or  assigned,  and  if 
recovered,  shall  administer  it  for  the  equal  benefit  of  all  cred- 
itors as  in  other  cases  of  assignments  to  trustees  for  the  benefit 
of  creditors."     [R.  S.  §6344.]- 

§  1580a.  When  creditor  may  bring*  suit.  "If  such  assignee 
fails  or  declines,  upon  notice  by  any  creditor  or  creditors  to 
institute  such  suit,  such  creditors  may  themselves  commence  it 
within  five  days  after  serving  notice  upon  the  assignee  to  com- 
mence suit,  and  the  procedure  and  administration  shall  be  the 
same  as  is  hereinbefore  provided  for  suits  begun  by  any  creditor 
or  creditors."     [R.  S.  §6344.]^* 

§  1581.    For  what  cause  action  may  be  brought. 

In  order  that  the  action  may  be  sustained  several  things  are 
necessary.  In  the  first  place,  there  must  be  a  fraudulent  act  of 
some  kind  done  by  the  assignor.  If  the  sale  is  made  upon  a 
good  consideration,  even  though  it  is  then  contemplated  to  make 
an  assignment,  the  sale  would  be  valid;  and  if  a  transfer  were 
made  in  good  faith  to  a  preferred  creditor,  and  secure  to  him 

brought  and  maintained,  the  Court  Dodge,  19  C.  C.  425;    10  C.  D.   360. 

declaring  the  same  to  be  void,  shall  See    Whitt.    Forms,    p.    252,    and 

appoint     a    trustee.       The    present  Kinkead's  Code  PI.  §  624  et  seq.,  for 

statute  allows  an  assignee  to  bring  proper  forms,  etc. 

such  action  and  if  the  action  is  sus'-  s  §  11106  G.  C 

tained  then  it  is  the  assignee's  duty  3*  §  11107  G.  C 

to  recover  possession.  If  a  conveyance  be  made  to  a  wife, 

Two  causes  of  action,  one  at  law,  it  is  good  so  far  as  she  has  a  valid 

and  one  under  §  6343  R.  S.,  may  be  claim    against    her    husband.      Ger- 

joined  in  one  petition,  but  must  be  man  Bank  vs.  Gunther,  3  N".  P.  311; 

separately   numbered.     Kennedy  vs.  3  Dec.  686. 


1 


1387  ASSIGNMENT CARE    AND    MANAGEMENT  §  1581 

the  payment  of  a  valid  existing  debt,  such  act  would  not  be  suffi- 
cient to  set  the  sale  aside.  It  will  not  be  within  the  scope  of 
this  work  to  go  into  these  matters  in  detail.  Our  Supreme 
Court  has  held  "  that  a  failing  debtor,  knowing  his  insolvency, 
and  in  contemplation  of  making  an  assignment  for  the  benefit 
of  creditors,  may  prefer  one  or  more  creditors  to  others,  pro- 
vided he  does  so  in  good  faith,  and  by  means  calculated  to 
hinder  other  creditors  no  more  than  is  incidental  to  the  prefer- 
ence, and  this  he  may  do  by  a  chattel  mortgage  delivered  to 
the  mortgagee  before  the  deed  of  assignment  is  delivered  to  the 
Probate  Judge.  Such  transaction  is  not  within  the  operation 
of  sec.  11102,  G.  C,  et  seq.,  which  provides  that  'all  assignments 
in  trust  to  a  trustee  or  trustees,  made  in  contemplation  of  in- 
solvency, with  the  intent  to  prefer  one  or  more  creditors,  shall 
inure  to  the  equal  benefit  of  all  creditors  in  proportion  to  the 
amount  of  their  respective  claims. '  "  * 

In  another  case  it  is  said :  "  The  good  faith  of  the  parties 
to  such  a  transaction  must  be  determined  by  its  legal  effect  on 
the  rights  of  others.  If  its  legal  effect  works  a  fraud  on  their 
rights,  the  finding  of  a.  Court  that  the  parties  acted  in  good 
faith  is  simply  an  erroneous  conclusion  of  law  from  the  facts."  ^ 

<  Cross  vs.  Carstens,  49  0.  S.  348.  made  by  an  insolvent  debtor,  there 

5  Bank  vs.  Trebein,  59  O.   S.  316.  are  three  essential  elements  that  the 

Where  a  corporation  for  profit  has  creditor  must  make  appear :      First 

ceased  to  prosecute  the  objects  for  — An  adequate  consideration.     See- 

which  it  was  created,  it  was  held  it  ond  —  Scrupulous  good  faith  on  the 

could   not   give   a   valid   preference.  part    of    Ihe     creditor.     Third  —  A 

Rouse  vs.  Merch.  Nat.  Bank,  46  O.  purpose  single  and  sole  to  the  secu- 

S.  493.  rity   of  his   claim.     Without  either 

The  burden  of  proof  is  upon  the  of  these  the  preference  must  fall, 
person  assailing  the  sale.  Where  an  insolvent  debtor  makes 
A  creditor  of  an  insolvent  debtor  members  of  his  immediate  family 
acting  in  good  faith  and  with  a  pur-  his  preferential  creditors,  the  trans- 
pose, single  to  his  own  interest,  may  action  is  suspicious  and  calls  for  the 
take  from  his  failing  debtor  a  pref-  closest  scrutiny,  and  the  disclosure 
erence  even  though  he  know  that  his  of  an  adequate  consideration  and 
debtor  is  insolvent,  and  knows  also  the  bona  fides  on  the  part  of  the 
that  it  is  the  intent  of  his  debtor  in  creditors.  In  all  this  class  of  cases 
giving  the  preference  to  him  to  bin-  the  bona  fides  of  the  whole  transac- 
der  and  delay  his  other  creditors.  tion  is  assailed  by  the  creditors,  and 
In  order  to  maintain  a  preference  where    so    assailed,    the    burden    of 


§  1582  WHEN   PRESUMED   FRAUDULENT  1388 

§  1582.     When  sale  conclusively  presumed  to  be  fraudulent. 

By  the  act  of  1900,  a  clause  was  inserted  in  sec.  6343,  R.  S., 
providing  that  every  sale,  etc.,  and  every  judgment  suffered, 
etc.,  by  any  debtor  or  debtors,  in  the  event  of  a  deed  of  assign- 
ment being  filed  within  ninety  (00)  days  after  the  giving  or 
doing  of  such  act,  shall  be  conclusively  deemed  and  held  fraud- 
ulent. This  portion  was  stricken  out  in  1902,  and  as  to  the 
fact  of  such  matter  being  conclusively  presumed  to  be  fraud- 
ulent, it  remains  as  it  was  before,  and  the  burden  of  showing 
that  a  sale  or  judgment  suffered  was  fraudulent  would  devolve 
upon  the  party  attacking  the  same.  However,  if  preference 
was  given  by  a  chattel  mortgage,  and  such  mortgage  was  not 
recorded  within  three  days  after  its  execution,  it  would  be  con- 
sidered fraudulent,  and  it  would  devolve  upon  the  party  holding 
the  same  to  show  the  contrary.  The  same  thing  would  result 
if  a  chattel  mortgage  was  taken  on  property  and  possession  al- 
lowed to  remain  in  the  owner,  and  the  owner  allowed  to  sell  the 
same,  unless  such  owner  was  obliged  to  account  for  the  proceeds 
of  such  sale.  It  is  generally  held  that  a  chattel  mortgage  of 
personal  property,  where  the  mortgagor  is  permitted  to  retain 
possession  and  make  sales,  is  invalid  and  conclusively  fraud- 
ulent.** But  if  the  agreement  is  that  the  mortgagor  shall  re- 
tain possession  as  agent  of  the  mortgagee  and  pay  the  mortgagee 
the  proceeds,  it  is  valid.^  Mere  possession  by  sufferance,  and 
selling  without  an  agreement  to  account,  is  not  per  se  fraud- 
ulent.^ 

proof  is  upon  the  creditor  not  only  6  Kleine    vs.    Katzenberger,    20    0. 

to    show    that    the    preference    was  S.  110. 

upon  an  adequate  consi.leration,  but  ^  Brubaker  vs.  Brubaker,  37  Bull, 

that  it  was  done  in  the,  utmost  good  38. 

faith,    and   the    introduction   of   the  8  [."ord    vs.    Miller,    5    N.    P.    -512; 

mere  formal  transfer  raises  no  pre-  5  Dec.  G03. 

sumption    whatever    of    good    faith.  The  understanding  that  the  mort- 

Walker  vs.  Walker,  4  N.  P.  324;   6  gagor  ni.iy  retain  and  dispose  of  the 

Dec.  355.                                  '  goods  for  his  benefit  invalidates  the 

See  Remington  vs.  Cen.  Press  As-  mortgage,     but     must     be     strictly 

soc,  3  N.  P.  258 ;  4  Dec.  337 ;   See  proved.     Canfield  vs.  Lathrop,  Cleve. 

Brinkerhoff  vs.  Tracy,  55  0.  S.  558.  Rec.  67. 


1389  ASSIGNMENT — WHO    MAY    BRING    ACTION  §  1583 

§  1583.     Who  may  bring  action. 

The  actibn  to  set  aside  a  fraudulent  sale  may  be  brought  by 
any  creditor  if  no  assignment  has  been  made.  If  an  assign- 
ment has  been  made,  it  is  the  duty  of  the  assignee  to  bring  the 
action.  But  if  such  assignee  fails  or  declines  upon  notice  to 
institute  such  a  suit,  then  a  creditor  may  bring  the  suit,^ 

§  1584.     Jurisdiction. 

Unquestionably,  the  action  brought  to  set  aside  a  sale  must 
be  brought  in  a  Court  of  general  jurisdiction,  and  not  in  the 
Probate  Court.  If  a  creditor  brings  a  suit  before  an  assign- 
ment is  made,  the  statute  is  clear  that  the  Court  in  which  such 
suit  is  brought,  if  the  sale  is  set  aside,  must  appoint  a  trustee, 
and  such  trustee  shall  administer  the  estate  the  same  as  an  as- 
signee..  But  if  the  action  is  brought  by  an  assignee,  or  by  a 
creditor,  after  an  assignment  is  made,  some  question  may  arise 
whether,  if  the  sale  be  set  aside,  the  Court  should  appoint  a 
trustee  or  merely  direct  that  the  assignee  should  take  possession 
of  such  property  and  convert  it  into  assets  under  and  by  virtue 
of  the  orders  of  the  Probate  Court.  The  language  of  the  stat- 
ute will  bear  a  construction  that  the  assignee,  if  he  recovers, 
may  administer  the  same  in  Lis  capacity  as  assignee,  acting 
under  the  orders  of  the  Probat'^  Court;  and  likewise,  if  the 
same  were  set  aside  by  a  creditor  after  an  assignment  had  been 
made,  in  order  that  the  trust  might  be  administered  by  one 
person,  it  would  be  proper  that  the  assignee  take  possession  of 
the  property  when  the  sale  was  set  aside.  In  such  cases  it 
would  be  well  for  the  creditor  when  bringing  the  suit  to  make 
the  assignee  a  party. 

§1585.  Examination  of  assignor,  etc.  Orders  to  prevent 
fraudulent  transfer.  "On  application  of  the  assignee  or  of  a 
creditor,  or  without  application,  the  probate  judge  at  all  times 

9  As  this  action  miist  be  brought  See    Kinkead's    Code    PI.     §624; 

in   the   Court   of   Common   Picas   it       VVhitt.  Forms,  p.  252. 
does  not  strictly  come   within   Pro- 
bate Practice. 


§  1585a  ASSIGNMENT CARE    AND    MANAGEMENT  1390 

may  require  the  assignor,  upon  reasonable  notice,  to  attend  and 
submit  to  an  examination  on  oath  as  to  the  disposal  of  his  prop- 
erty, his  trade  and  dealings  with  others,  and  his  accounts  con- 
cerning them,  as  to  all  debts  due  or  claimed  from  him,  and  to 
all  other  matters  concerning  his  property  and  estate,  and  the 
due  settlement  thereof,  which  examination,  at  the  request  of 
anv  partv  to  the  proceeding,  may  be  reduced  to  writing."  [R.  S. 
§6349.]i"° 

§  1585a.  Order  to  prevent  fraudulent  transfer.  "The  pro- 
bate judge,  in  like  manner  at  any  time  before  the  final  settle- 
ment of  the  accounts  of  the  assignee,  may  require  his  attendance, 
or  that  of  any  otlier  person  as  a  witness,  and  examine  him  upon 
oath,  as  to  all  matters  appertaining  to  the  estate  of  the  assignor 
or  to  the  administration  of  the  trust,  and,  upon  or  after  such 
examination,  make  and  enforce  any  orders  upon  proper  parties, 
wliich  he  deems  necessary  to  prevent  a  fraudulent  transfer  or 
change  in  the  property  or  effects  of  the  assignor  or  the  allow- 
ance or  payment  of  anv  unjust  or  fraudulent  claim  out  of  his 
estate."     [R.  S.  §  6349.V°* 


§  1586.     Procedure,  etc. 

The  aboA^e  section  is  very  analogous  in  the  provisions  made 
for  the  examination  of  persons  pliarged  with  having  concealed 
assets  belonging  to  the  estate  of  a  deceased  person, ^^  and  the 
method  of  procedure  adopted  therein  can  very  easily  be  fol- 
lowed when  seeking  to  enforce  the  provisions  of  the  above  sec- 
tion. This  would  probably  permit  the  Court  to  imprison  the 
party  failing  to  obey  the  citation,  and  it  would  permit  the  Court 
to  enjoin  any  person  from  making  a  fraudulent  transfer  or 
change  of  property  or  effects  of  the  assignor. 

§  1587.  Court,  on  application  of  three-fourths  of  creditors, 
may  order  business  of  assignor  carried  on  by  assignee.  ' '  When 
satisfied  tliat  it  would  be  for  the  advantage  of  the  creditors  of 
the  assignor,  and  on  Avritten  application  therefor  by  three- 
fourths  in  number  and  amount  of  such  creditors,  the  court  may 
order  any  business  carried  on  by  the  assignor  at  the  time  of  the 
assignment,  to  be  continued  by  the  assignee  or  trustee.  When 
the  court  deems  it  to  the  advantage  of  the  creditors  to  dis- 
continue the  business,  it  shall  order  that  to  be  done,  and  also 

10  §11113    G.    C.  11  See  §  394  ef  se?. 

10*  §  11114  G.  C. 


1391  ASSIGNMENT — LIABILITY   OF  §  1588 

allow  such  compensation  for  conducting  it,  to  the  assignee  or 
trustee,  in  addition  to  the  .fees  now  allowed  by  law,  as  may  be 
just."     fR.  S.  §6350h.]^2 

§  1588.     Liability  of  assignee. 

In  a  previous  part  of  this  work  the  liability  of  an  adminis- 
trator or  executor  carrying  on  the  business  of  a  decedent  has 
been  discussed,  and  as  the  duties  of  an  assignee  are  very 
analogous,  reference  thereto  may  be  made  with  profit.^^  An 
assignee  continuing  the  business  as  to  all  persons  dealing  with 
him  in  the  conduct  of  such  business  is  personally  liable  the 
same  as  an  administrator.^*  There  is  no  doubt,  however,  that 
if  an  assignee  carries  on  the  business  by  order  of  the  Court, 
and  especially,  if  under  the  provisions  of  the  above  section,  that 
the  estate  wall  be  liable  in  the  absence  of  fraud  or  gross  negli- 
gence, to  reimburse  him  for  all  liabilities  incurred ;  and  this 
would  be  true  even  though  the  business  resulted  disastrously  to 
the  creditors.  It  has  been  held  that  where  it  is  •  necessary  to 
preserve  the  property,  the  Court  may  make  an  order  con- 
tinuing the  business  even  though  there  has  been  no  application 
for  that  purpose  by  the  creditors ;  and  that  even  if  conducted  at 
a  loss,  the  assignee  must  be  first  compensated  or  reimbursed  for 
credits  made.^^ 

§  1589.     Application. 

Unless  for  the  preservation  of  the  property  the  Court  should 
not  make  an  order  for  the  continuation  of  the  business  without 
a  written  application  therefor.  This  application  must  be  made 
by  three-fourths  in  number  and  amount  of  the  creditors.  The 
application  need  not  be  granted  unless  the  Court  be  satisfied 
that  it  would  be  to  the  interest  of  the  estate,  and  the  Court 
may  make  an  order  discontinuing  such  business  any  time  it 
thinks  it  would  be  advantageous  to  the  creditors  to  do  so.  It 
has  been  held  that  an  assignee  might  continue  the  business  for 

12  §  1]125  G.  C.  Tn  re  Thompson,  8  N.  P.  373;    11 

13  §  518  et  seq.  Dec.  .30.3. 

14  Cin.  Ice  Co.  vs.   Peat,   5   Bull.  i"'  St.  James  Hotel  Assignment,  3 
710;  Goepper  vs.  Pfau,  6  Bull.  17;  N.  P.  42;  4  Dec.  209.    ^ 


§  1590  ASSIGNMENT — CARE   AND    MANAGEJIENT  1392 

a  reasonable  time  without  an  order  of  the  Court,  hut  this  should 
not  be  done ;  and  rarely  should  an  order  be  granted  without  an 
application  of  the  creditors.  It  may  be  well  to  know  here  that 
there  is  a  distinction  between  power  granted  to  continue  a  busi- 
ness and  an  order  made  to  sell  the  property  at  retail.  "  Con- 
tinuing the  business  "  means  not  only  selling  the  materials  that 
were  assig-ned,  but  buying  new  material  and  replenishing  the 
stock  and  manufacturing  new  articles,  etc.  It  is  frequejitly 
the  practice  to  order  an  assignee  to  close  out  a  business  under 
an  order  of  private  sale,  requiring  the  assignee  to  sell  the  stock 
for  not  less  than  two-thirds  of  its  appraised  value.^® 

§  1590.     Form  of  application,  etc. 

(Title.) 

Now  comes  A.  B.  et  al.,  creditors  of  the  said  C.  D.,  who  has  made  an 
assignment  to  E.  F.,  and  respectfully  represents  that  the  creditors  of  said 
assignor,  three-fourths  in  nvimber,  and  holding  three-fourths  in  amount  of 
the  debts  of  said  assignor,  have  and  do  hereby  petition  that  the  Court  may 
grant  an  order  to  such  assignee  to  continue  and  carry  on  the  business,  to- 
wit:  (here  describe)  of  said  assignor,  for  the  reason  that  the  same  will 
be  for  the  advantage  of  the  creditors  of  said  assignor  in  this,  to- wit: 
(Here  insert  reason.) 

They  further  represent  that  the  entire  number  of  creditors  of  such 
assignor  is and  the  entire  amount  of  claims  presented  is 


The  entry  thereon  may  be  in  the  following  form : 

(Title.) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B. 
et  al.,  creditors  of  said  assignor,  for  an  order  of  this  Court  directing  said 
assignee  to  continue  said  business ;  and  the  same  was  submitted  to  the 
Court.  Whereupon  the  Court  finds  that  three-fourths  in  number  and 
amount  of  said  creditors  have  signed  said  application,  and  that  it  would  be 
for  the  advantage  of  the  creditors  of  said  assignor  to  continue  said  business. 

It  is  therefore  ordered  that  said  assignee  continue  said  business  of 

( here  insert )   until  such  further  order  of  the  Court. 

§  1591.     Assignee  may  complete  sales  of  real  estate,  etc. 

The  statute  provides  ^^  that  the  assignee  may,  with  the  ap- 
proval of  the  Court,  complete  and  enforce  all  sales  of  real  estate 
made  by  the  assignor.     The  provisions  of  this  section  are  some- 

16  See  §  1379,  Gdns  assignee  sihould  endorse  on  such  ap- 

See  §  518,  Adm'rs.  plication  his  consent  to  continue  the 

i'^  The   creditors   signing  this    pe-  business. 

tition  should  state  after  their  names  is  §§  11119,  11120  G.  C.   (§  IGll). 

the  amount* of  their  claims;  and  the 


1393  PROPERTY   TAKEN    POSSESSION    OF    BY    ANOTHER  §  1592 

what  similar  to  that  in  reference  to  an  administrator,  etc,,^®  and 
proceedings  brought  by  an  administrator  can  very  easily;  be  fol- 
lowed by  an  assignee,  and  reference  will  be  made  to  the  discus- 
sion  hereinbefore  had  of  the  same  in  the  administration  of  an 
estate."' 

§  1592.     Property  taken  possession  of  by  another  under  lien  or 
execution. 

It  sometimes  happens  that  shortly  previous  to  an  assignment 
a  levy  to  enforce  an  execution  has  been  made  on  the  property 
of  the  assignor,  or  that  possession  of  property  covered  by  a 
mortgage  has  been  delivered  to  the  mortgagee  to  be  sold,  and 
the  remainder  returned  to  the  assignor.  In  such  cases  the  sur- 
plus, if  any,  being  properly  the  property  of  the  assignee,  it  will 
veiy  often  be  found  to  be  to  the  interest  of  the  creditors  of  the 
assignor  that  the  entire  property  be  turned  over  to  the 
assignee  to  be  by  him  disposed  of.  The  Courts  have  held  that 
this  can  be  done  and  the  rights  of  the  execution  or  lien  creditor 
be  sustained.^^  In  such  cases  it  would  be  proper  for  the  Court 
to  make  an  entry  reciting  the  fact  of  such  prior  levy  and  lien, 
etc.,  and  that  the  same  was  turned  over  to  the  assignee,  reserv- 
ing the  rights  of  the  execution  creditor,  etc.^" 

19  §  11922  G.  C.   (§523).  asked,   when   such   receiver  has  not 

20  §  523  to  §  532.  been    appointed.     Callahan    vs.    Ice 

21  Hughes  vs.  City  Hall  Bank,  61       Co.,  7  C.  D.  349 ;  13  C.  C.  479. 

0.  S.  386,  16  C.  C.  645;  9  C.  D.  270;  See  assignment  of  Winehell,  1  N. 

2  N.  P.  77;   3  Dec.  166.  P.    136;    1   Dec.   310;   vk'here  it  was 

22  An  assignee  for  creditors  may  held  that  liens  could  not  be  de- 
take  possession  of  the  assignor's  termined  when  assignment  was  filed, 
property,  notwithstanding  the  pend-  See  §  1646. 

ency  of  a  suit  in  which  a  receiver  is 


§  1593  ASSIGNMENT — APPRAISEMENT  1394 


CHAPTER  LXXXVII. 

APPRAISEMENT.     EXEMPTION,  ETC. 

§  1593     Introductory.  §  1598     Exempt    property    excepted 

§  1594     Appointment    of    appraisers.  imless     expressly     waived, 

§  1594a  Real     estate     without     the  and  wife's  property.  Home- 

State,  stead    to    be    set-ofF. 

§  1595     Appraisers,    etc.  §  1598a  Homestead. 

§  1596     What  must  be  appraised.  §  1599     ^Vho  entitled  to  exemption. 

§  1597     Return     of     inventory     and      §  1600    Dower. 

schedule.  §  1601     ^Mien      Court      may     order 

property    sold. 
§  1601a  $500   in   lieu   of   exemption. 

§  1593.     Introductory. 

What  was  said  about  the  importance  of  an  inventor)'  when 
treating  of  the  administration  of  estates  of  deceased  persons  is 
equally  applicable  to  the  necessity  of  an  inventory  under  assign- 
ments.^ Likewise  what  was  said  as  to  the  manner  in  which 
such  appraisement  should  be  conducted  will  be  applicable  here. 
'No  notice  is  required  to  be  given  to  any  one,  yet  it  would  be 
well  if  the  assignor  were  notified ;  his  presence  would  be  of 
very  much  assistance,  especially  in  setting  aside  real  estate  or 
personal  property  exempt,  dower,  etc.  The  statute  intends  that 
this  appraisement  should  be  made  at  the  very  earliest  date  after 
the  assignee  files  his  bond,  that  the  same  can  be  conveniently 
done.  It  must  be  filed  within  thirty  days,  unless  longer  time 
is  granted.  Real  estate  in  all  cases  must  be  appraised,  unless 
where  located  in  another  State,  and  the  method  to  be  followed 
is  very  much  similar  to  that  of  the  appraisement  of  real  estate 
by  an  administrator.^  The  statute  relating  thereto  is  as  fol- 
lows : 

§  1594.  Appointment  of  appraisers.  ' '  Immediately  upon 
the  assignee  giving  bond,  or  if  he  fails  to  give  bond,  then  upon 
the  trustee  appointed  giving  bond,  the  court  shall  appoint  three 

J  §  280.  2  See  §  855  et  scq. 


1395  APPRAISERS,  APPOINTMENT  OP  §  1594a 

suitable  disinterested  persons  appraisers  of  the  property  and 
assets  of  the  assignor.  Such  assignee,  or  trustee,  within  thirty- 
days  after  giving  bond,  unless  for  good  cause  the  court  allows 
a  longer  time,  must  make  and  file  therein  an  inventory,  verified 
by  his  oath,  of  all  the  property,  moneys,  rights,  and  credits  of 
the  assignor  included  in  the  assignment,  which  have  come  to  his 
possession  or  knowledge,  together  with  an  appraisement  thereof 
by  such  appraisers  under  oath.  If  any  part  of  the  estate  or 
effects  be  in  any  other  county,  the  assignee  or  trustee  may  have 
appraisers  as  to  such  part  of  the  estate  and  effects  appointed  by 
a  disinterested  justice  of  such  county."     [R.  S.  §  6347.]* 

§  1594a.  Real  estate  without  the  state.  "Tf  the  assignment 
includes  real  estate  situated  without  this  state,  it  shall  not  be 
necessary  to  have  it  appraised,  but  the  assignee,  or  trustee  ap- 
pointed, shall  sell  such  real  estate  at  public  or  private  sale,  and 
the  sale  be  confirmed,  if  the  court  finds  that  it  has  been  made 
in  good  faith  for  a  fair  price.  At  the  time  of  filing  the  inven- 
tory, the  assis-nee  or  trustee  also  must  file  a  schedule  of  all  the 
debts  and  liabilities  of  the  assignor  within  his  knowledge,  which 
shall  be  verified  by  the  oath  of  the  assignee  or  trustee;  and 
contain  the  postoffice  address  of  each  of  such  alleged  creditors 
so  far  as  this  can  be  given."     [R.  R.  §  fi847.]** 

§  1595.     Appraisers,  etc. 

There  is  no  other  requirement  of  the  statute  except  that  the 
appraisers  shall  be  three  suitable,  disinterested  persons.  They 
are  not  required  to  be  of  the  vicinity,  neither  are  they  required 
to  be  freeholders,  although  they  should  be  both,  and  gener- 
ally, it  may  be  said,  that  the  law  applicable  to  appraisers  of 
the  personal  and  real  estate  of  deceased  persons  is  applicable  to 
appraisers  in  assignments  for  the  benefit  of  creditors.^'  The 
appraisers  must  make  an  appraisement  under  oath.'*  Their 
duties  are  similar  to  appraisers  of  real  estate  and  personal  estate 
of  deceased  persons.  The  statute  does  not  fix  any  particular 
sum  to  be  paid  them  as  fees,  and  this  is  usually  determined  by 
the  Court."  The  oath  cannot  be  administered  by  the  assignee 
unless  he  is  a  notary  public  or  other  public  official  authorized  to 
administer  oaths. 

*§  11109  G.  C.  Trustee   must   give   notice   of   his 

4*  §  11110  G.  C.  appointment.     M.Tnsfield  vs.  Post,  12 

5  See  §§860,  284.  Dec.  23!). 

5*  For    form    of   oath,  see    §291;            «  §  301. 
see  also  §  803. 


§  1596  ASSIGNMENT — APPRAISEMENT  .  1396 

§  1596.     What  must  be  appraised. 

All  property  that  comes  into  the  possession  of  the  assignee, 
or  of  which  he  has  any  knowledge,  must  be  appraised.  Prop- 
erty specifically  exempt  to  heads  of  families  and  widows,'  and 
unmarried  women,^  need  not  be  appraised.  Likewise  real  es- 
tate situate  in  another  State  need  not  be  appraised.^  In  ap- 
praising such  real  estate,  the  same  must  be  done  under  actual 
view  of  the  premises.^"  Questions  of  assigning  dower  and 
homestead  exemption  in  real  estate  usually  are  raised  upon  a 
petition  for  the  sale  of  such  real  estate.^^ 

§  1597.     Return  of  inventory  and  schedule. 

The  inventory  must  be  returned  within  thirty  days,  and  at 
the  time  the  inventory  is  filed  there  must  be  returned  a  sched- 
ule of  debts.  This  schedule  of  debts  should  be  a  list  of  the 
creditors,  the  postoffice  address  of  each,  the  kind  of  claim  and 
the  amount  of  the  claim.  Forms  for  schedules  and  inventories 
are  now  kept  by  all  Probate  Judges,  and  they  will  be  omitted 
from  this  work.  The  Court,  should  enforce  prompt  obedience 
to  this  statutory  provision.  Very  seldom  can  there  be  a  suffi- 
cient excuse  to  allow  more  than  thirty  days  in  which  an  inven- 
tory should  be  filed.  If  the  assignee  is  negligent  in  this  re- 
spect, the  Court  should  remove  him,  and  proceedings  might  be 
had  for  that  purpose  similar  to  those  for  removing  an  adminis- 
trator for  failing  to  file  an  inventory.^^ 

§  1598.  Exempt  property  excepted  unless  expressly  waived, 
and  wife's  property;  homestead  to  be  set  off.  "No  assignment 
for  the  benefit  of  creditors  shall  include  or  cover  any  property 
exempt  from  levy  or  sale  on  execution,  or  from  being  by  any 
legal  process  applied  to  the  payment  of  debts,  unless  in  the 

7  §  11726  G.  C.   {§  1598).  12  §  303  et  seq. 

8§  11721  G.  C.  The  assignee  should   soe  that  the 

9§  11100  G.  C.    (§  1594,).  appraisers'  fees  are  taxed  in  the  in- 

10  S  864,    Where    question  is    dis-       ventory.  or  they  niav  be  missed  and 

cussed.  cause  him  son>e  annoyance. 
"See  §  1617  et  seq. 


1397 


ASSIGNMENT — EXEMPTION 


§1598 


assifrnment  tho  exemption  is  expressly  waived,  nor  any  property 
belonging  to  the  wife  of  the  assignor,  nor  require  the  assignor 
to  deliver  up  any  of  such  property."     [R.  S.  §  6348.] ^^ 


13  §  mil  G.  C. 
See  §  868. 

Space  forbids  entering  into  an  ex- 
tended discussion  of  homestead 
rights.  The  following  are  the  sec- 
tions of  the  General  Code  which 
are  applicable  and  are  applied  in 
the  levy  on  execution,  etc.  (Ex- 
emptions to  heads  of  families  and. 
widows.) 

Section  11725.  Every  person,  who 
has  a  family,  and  every  widow,  may 
hold  property  exempt  from  execu- 
tion, attachment  or  sale,  for  debt, 
damage,  fine  or  amercement,  as  fol- 
lows : 

1.  Ibe  wearing  apparel  of  such 
person  or  family,  the  beds,  bedsteads 
and  bedding  '^or  their  use,  one  cook- 
ing stove  and  pipe,  one  stove  and 
pipe  used  for  warming  the  dwelling, 
and  fuel  sufficient  for  a  period  of 
sixty  days,  actually  provided  and 
designed  for  the  use  of  such  per- 
son or  family; 

2.  One  cow,  or  if  the  debtor  owns 
no  cow,  household  furniture  to  be 
selected  by  him  or  her,  not  exceeding 
thirty-five  dollars  in  value,  two 
swine,  or  the  pork  therefrom,  or  if 
the  debtor  owns  no  swine,  household 
furniture  to  be  selected  by  him  or 
her,  not  exceeding  fifteen  dollars  in 
value,  six  sheep,  the  wool  shorn  from 
them,  and  the  cloth  cr  other  articles 
manufactured  therefrom,  or,  in  lieu 
thereof,  household  furniture  to  bo 
selected  by  the  debtor,  not  exceeding 
fifteen  dollars  in  value,  and  sufficient 
food  for  such  animals  for  a  period 
of  sixty  days; 

3.  The  bibles,  liymn  books,  psalm 
books,  testaments  and  school  books 
used  in  the  family,  and  all  family 
pictures ; 


4.  Provisions  actually  provided 
and  designed  for  die  use  of  such 
person,  or  family,  not  exceeding  fifty 
dollars  in  value,  to  be  selected  by  the 
debtor,  and  other  articles  of  house- 
hold and  kitchen  furniture,  or  either, 
necessary  for  such  person  or  family, 
to  be  selected  by  the  debtor,  not  ex- 
ceeding   fifty    dollars    in    value; 

5.  One  sewing  machine,  one  knit- 
ting machine,  and  the  tools  and  im- 
plements of  the  debtor  necessary  for 
carrying  on  his  or  her  trade  or  busi- 
ness, whether  mechanical  or  agricul- 
tural, to  be  selected  by  him  or  her, 
not  exceeding  one  hundred  dollars  in 
value ; 

6.  The  personal  earnings  of  the 
debtor,  and  the  personal  earnings  of 
his  or  her  minor  child  or  children, 
for  three  months,  when  it  is  made 
to  appear  by  affidavit  of  the  debtor, 
or  otherwise,  that  such  earnings  are 
necessary  to  the  support  of  the 
debtor  or  of  his  or  her  family.  Such 
period  of  three  months  shall  date 
from  the  time  of  issuing  an  attach- 
ment or  other  process,  the  rendition 
of  a  judgment,  or  the  making  of  an 
order,  under  which  the  attempt  may 
be  made  to  subject  such  earnings 
to  the  payment  of  a  debt.  If  the 
claim,  debt  or  demand  for  the  pay- 
ment of  which  it  is  sought  to  sub- 
ject personal  earnings,  is  one  for 
necessaries  turnished  to  the  debtor, 
his  wif(;  or  fam.ily,  only  ninety  per 
cent,  of  such  earnings  shall  be  so 
exempt  as  against  such  claim,  debt 
or  demand.  Nothing  herein  con- 
t:iincd  shall  render  the  personal 
earnings  of  such  debtor's  minor  cluld 
or  cliildren,  for  three  months,  sub- 
ject to   its   payment; 


§  1598a 


ASSIGN  MENT EXEMPTION 


1398 


§  1598a.  Homestead.  ' '  The  appraisers  appointed  by  the 
court,  on  making-  tlie  appraisement,  shall  set  ofif  in  the  way 
that  appraisers  of  property  levied  on  or  attached  are  required 
to  do,  homestead  exemption,  and  exempt  property  that  has  to 
be  selected  by  the  debtor  and  his  wife.  If  this  setting  off  is  then 
omitted,  at  any  time  thereafter,  before  sale,  the  court  may 
order  it  to  be  done  by  the  appraisers."     [R.  S.  §  6348.]^^* 


§  1599.  Who  entitled  to  exemption.  ' '  Husband  and  wife 
living  together,  a  widow  or  a  widower  living  with  an  unmarried 
daughter  or  unmarried  minor  son,  may  hold  exempt  from  sale 
on  judgment  or  order,  a  family  homestead  not  exceeding  one 
thousand  dollars  in  value.  The  husband,  or  in  case  of  his 
failure  or  refusal,  the  wife  may  make  the  demand  therefor ;  but 
neither  can  be  allowed  such  demand,  if  the  other  has  a  home- 
stead. In  case  of  assignment,  for  the  benefit  of  creditors,  upon 
filing  the  written  consent  of  husband  and  wife  to  the  sale  of  a 
homestead  property  exempt  by  law,  such  homestead  may  be  sold 
subject  to  the  dower  and  homestead  right  herein  provided." 
[R.  S.  §  5435.]  ^n 


7.  All  articles,  specimens  and 
cabinets  of  natural  history  or 
science,  whether  animal,  vegetable  or 
mineral,  except  such  as  may  be  kept 
or  intended  for  show  or  exhibition 
for  money  or  jiecuniary  gain.  (R. 
S.  §5430!) 

Cases  applicable  to  the  above  sec- 
tions are  as  follows:  Spence  vs. 
Basev,  34  0.  S.  42;  Carpenter  vs. 
Warner,  3S  0.  S.  416;  Rilev  vs. 
Hitzler,  49  0.  S.  651;  Vandal  vs. 
Daiber,  10  C.  C.  355;  6  C.  D.  585; 
Driscoll  vs.  Kelly,  5  N.  P.  243;  4 
Dec.  124;  Kolley  vs.  Barnett.  36 
Bull.  314;  Stump  vs.  Frarv,  13  C.  C. 
619;  6  C.  D.  357;  Beckett' vs.  Wish- 
on,  5  X.  P.  1,55, 

i:'-*  §  11112    G.    C. 

i3t  §  117.30  G.  C. 

An  assignor  not  a  resident  of 
Ohio  on  the  day  of  making  the 
assignment  is  not  entitled  to  the 
exemption,  even  though  he  should 
before  distribution,  become  a  resi- 
dent of  the  state.  In  re  Pennick,  57 
Bull.  21, 

Cases  applicable  to  the  above  sec- 
tion are  as  follows:  'Tavlor  vs. 
Thorn,  29  0.  S.  569;  Dwinnell  vs. 
Edwards,  23  0.  S.  603;  Wehrle  vs. 
Wehrle,  39  0.  S.  365;  Ryan  vs.  Mil- 
ler, 40  0.  8.  232;  Bills  vs.  Bills, 
41  0.  S.  206;  MeComb  vs.  Thomp- 
son,    42    0.    S.    139;     Boettger    vs. 


Fischer,  9  Bull.  337 ;  Curtis  vs.  Sel- 
by,  1  C.  C.  40;  1  C.  D.  25;  Aultman 
vs.  Wilson,  55  0.  S.  145;  Dittey  vs. 
Ellifritz,  8  C.  C.  278;  4  C.  D.  465; 
Weber  vs.  Beier,  14  C.  C.  277;  7  C. 
D.  381. 

A  married  woman  who  has  wrong- 
fully abandoned  her  husband  cannot 
claim  a  homestead  exemption!  Home 
Banking  Co.  vs.  Huffman,  1  N.  P. 
(N..S.)   349;   14  De«.  225. 

See  §  868,  as  to  sale  of  real  estate 
by  administrator. 

Section  11734.  On  application  of 
the  debtor,  his  wife,  agent,  or  at- 
torney, before  sale,  if  such  debtor 
has  a  family,  and  if  the  lands  or 
tenements  about  to  be  levied  upon, 
or  any  part  or  parcel  thereof,  con- 
stitute their  homestead,  the  officer 
executing  a  writ  of  execution  found- 
ed on  a  judgment  or  order,  shall 
cause  the  inquest  of  appraisers,  upon 
their  oaths,  to  set  off  to  such  debtor, 
by  metes  and  bounds,  a  homestead 
not  exceeding  one  thousand  dollars 
in  value.     Such  assignment  of  home- 


1399 


ASSIGNMENT — DOWER 


1600 


§  1600.     Dower. 

If  the  assignor  is  a  married  man,  in  addition  to  his  home- 
stead exemption  and  personal  property  exempt,  his  wife  will  be 
entitled  to  dower  in  the  real  estate.  As  the  statute  now  stands, 
where  an  assignment  is  made,  the  wife  or  husband  of  the  as- 
signor may  come  into  Court  and  ask  that  the  premises  be  sold, 


stead  shall  be  returned  by  the  of- 
ficer with  the  writ,  and  be  copied 
by  the  clerk  in  the  execution  docket. 
If  no  complaint  be  made  by  either 
party,  further  proceedings  shall  not 
be  had  against  the  homestead.  Upon 
complaint  of  either  party,  and  good 
cause  shown,  the  court  out  of  which 
the  writ  issued  may  order  a  reap- 
praisement  and  reassignment  of  the 
homestead,  but  the  remainder  of  the 
debtor's  lands  and  tenements,  if  any 
there  be,  shall  be  liable  to  sale  on 
execution.  If  no  application  is  made 
during  the  life  of  the  debtor  it  may 
be  made  by  his  widow  at  any  time 
before  a  sale.      (R.  S.  §5438.) 

Cases  applicable  to  the  above  sec- 
tions are  as  follows:  Colwell  vs. 
Carper,  15  0.  S.  279;  Frost  vs. 
Shaw,  3  O.  S  270;  Wetz  vs.  Beard, 
12  0.  S.  431;  Daviss  vs.  Dodds,  20 
0.  S.  473;  Cooper  vs.  Cooper,  24 
0.  S.  488;  Wuest  vs.  James,  51  0.  S. 
230;  Nixon  vs.  Vandyke,  2  C.  C. 
63;    1   C.  D.  36. 

Section  11738.  Husband  and  wife 
living  together,  a  widower  living  with 
an  unmarried  daughter  or  minor  son, 
every  widow,  and  every  unmar- 
ried female  having  in  good  faith  the 
care,  maintenance  and  custody  of  a 
minor  child  or  children  of  a  deceased 
relative,  resident  of  this  State,  and 
not  the  owner  of  a  homestead,  in 
lieu  thereof,  may  hold  exempt  from 
levy  and  sale,  real  or  personal  prop- 
erty to  be  selected  by  such  person. 


his  agent  or  attorney,  before  sale, 
not  exceeding  five  hundred  dollars 
in  value,  in  addition  to  the  amount 
of  chattel  property  otherwise  by  law 
exempted.  Such  selection  and  ex- 
emption shall  not  be  made  by  the 
debtor,  his  agent  or  attorney,  or 
allowed  to  him  from  monej',  salary 
or  wages  due  to  him  from  any  per- 
son, partnership  or  corporation  as 
against  a  claim,  debt  or  demand  for 
necessaries  furnished  to  such  debtor, 
except  to  the  extent  of  ninety  per 
cent,  of  such  money,  salary  or  wages. 
Xo  personal  property  shall  be  ex- 
empt from  execution  on  a  judgment 
rendered  for  the  purchase  price  or 
any  part  thereof.      (R.  S.  §  5441.) 

Cases  applicable  to  the  above  sec- 
tion are  as  follows:  Regan  vs. 
Zeeb,  28  0.  S.  483 ;  Mortley  vs.  Flan- 
agan, 38  0.  S.  401 ;  Ryan  vs.  Miller, 
40  0.  S.  232;  Wells  vs.  Bricker,  37 
W.  L.  B.  295;  Kelly  vs.  Duffy,  31  0. 
S.  437;  In  re  Knepfle,  4  N.  P.  213; 
6  Dec.  417;  Lippelraan  vs.  Boning, 
3  Bull.  296;  Johnson  vs.  Ward,  27 
0.  S.  517;  Spence  vs.  Basey,  34  0. 
S.  42;  Carpenter  vs.  Warner,  38  0. 
S.  416;  Bills  vs.  Bill^,  41  0.  S.  206; 
Niehaus  vs.  Faul,  43  0.  S.  63;  Con- 
ley  vs.  Chilcote,  25  0.  S.  320; 
Dwinell  vs.  Edwards,  23  0.  S.  603; 
Kcpner  vs.  Pierce,  5  C.  C.  488;  3  C. 
D.  239.  AIT.  32  Bull.  331;  Gillett 
AS.  Miller,  12  C.  C.  209;  5  C.  D. 
a88. 


§  1601  ASSIGNMENT — APPRAISEMENT,   ETC.  1400 

and  receive  a  reasonable  value  thereof  out  of  the  proceeds.    The 
statute  relating  thereto  is  as  follows: 

"Wlien  real  estate  is  to  be  sold  as  herein  provided,  the  hus- 
band or  wife  of  the  assignor  may  be  made  a  party,  and  file  an 
answer  in  the  court  to  have  such  real  estate  sold  free  of  his  or 
her  continoent  risrht  of  dower  and  to  allow  him  or  her  in  lieu 
thereof,  out  of  the  proceeds  of  the  sale,  such  sum  of  money  as 
the  court  deems  the  jnst  and  reasonable  value  of  t-he  dower 
interest  therein.  Such  answer  shall  have  the  force  and  effect, 
in  all  respects,  of  a  deed  releasing  such  contingent  dower  in- 
terest in  such  real  estate."     [R.  S.  §  63501] ^^ 

§  1601.     When  court  may  order  property  sold. 

If  the  husband  or  wife  has  not  signed  a  mortgage  barring  her 
right  of  dower,  then  there  is  no  way  in  which  the  real  estate 
could  be  sold  free  from  the  contingent  dower  right,  unless  the 
consort  file  an  answer  as  provided  in  a  previous  section.  If 
she  has  joined  in  a  mortgage  upon  the  real  estate,  or  if  the  as- 
signor has  executed  a  mortgage  upon  the  real  estate  for  pur- 
chase money,  then,  whether  the  consort  files  an  answer  or.  not, 
the  Court  will  order  the  sale  of  the  real  estate,  free  from  the 
contingent  right  of  dower.  The  section  relating  thereto  is  as 
follows : 

"When  the  assignor  and  his  ^nfe  jointly  have  executed  a 
mortgage  upon  real  estate  assigned,  or  when  the  assignor  alone 
has  executed  a. mortgage  upon  any  of  such  real  estate  to  secure 
the  payment  of  purchase  money,  or  a  part  thereof,  the  court 
shall  order  its  sale  free  from  the  contingent  right  of  dower  of 
such  wife,  and  find  and  determine  the  just  and  reasonable  value 

14  §  11123  G.  C.  The    matter    of    the    right    to    an 

See  §§  943  and  801),  as  to  sale  of  exemption   is    determined   from    the 

real  estate.  condition  of  the  claimr,nt  at  the  time 

The    provisions    of    this    section,  distribution    is    ordered.      Simmons 

§  1173S  G.  C.,  do  not  apply  to  non-  vs.  Moore,  3   C.   C.    (X.S.)    178;    23 

residents.     Campbell  vs.  Barrington,  0.  C.  C.   11. 

4   C.   C.    (N.S.)    447;      2G   0.   C.   C.  The  mere  fact  that  $500  has  once 

239.  been   exempted,    will    not   permit   a 

A  widow  must  have  in,  good  faith  second    application   to   be   made,    if 

the   care   and   custody   of   a   minoif  the  same  has  been  used  up.     Hart  & 

Brown  vs    Parham,   1  C.  C.    (X.S.)  Co.  vs.  Cole,  73  0.  S.  207. 
602;    25   0.  C.   C.   640;    affirmed  71 
O.   S.  516;   4   C.   C-    (N.S.)    34'.-. 


1401  ASSIGNMENT — EXEMPTION  §  1601a 

of  her  dower  interests  in  the  proceeds  of  sale  remaining  after 
the  payment  of  such  incumbrances  as  preclude  her  right  to 
dower  therein."     [R.  S.  §  6350g.]^^ 

One  matter  should  be  observed  in  the  above  section  of  the 
General  Code.  A  different  rule  is  provided  as  the  basis  for 
the  calculation  of  a  contingent  dower  interest  in  assignments 
from  that  which  prevails  for  the  calculation  of  a  dower  interest 
in  foreclosure,  etc.  In  foreclosure  cases,  where  the  debt  is  not 
the  debt  of  the  wife,  the  dower  is  calculated  on  the  entire  value 
of  the  property  or  proceeds  received  from  the  sale.  In  assign- 
ment cases,  the  contingent  dower  interest  is  calculated  on  the 
balance  of  the  proceeds  after  the  payment  of  incumbrances, 

§  1601a.      $500  in  lieu  of  exemption. 

It  frequently  happens  that  it  would  result  beneficially  to  the 
creditors,  as  well  as  the  assignor,  if  the  $500  allowed  by  law  to 
be  selected  out  of  the  personal  property  be  allowed  out  of  the 
proceeds  of  the  sale.  If  the  real  estate  is  mortgaged  so  that  a 
homestead  cannot  be  set  off,  then  there  is  no  other  way  than  to 
allow  it  out  of  the  proceeds  of  the  sale.  The  following  form 
may  be  used  and  so  changed  as  to  suit  the  circumstances  of  each 
particular  case: 

Form  assignor's  petition  for  allowance  of  money  in  lieu  of  set-off. 

Probate  Court, County,  Ohio. 

In  the  matter  of  the  Assignment  of 


To 

Petition. 
Said    assignor    respectfully    represents,    that.. he   is   married,       husband 
and  wife  living  together— a   widower  living  with  a.  .unmarried  daughter, 
minor   son— a   widow — unmarried   female,   having   in  good   faith   the  care, 

15  §  11124    G.    C  See    §    869   et   seq.   for   discussion 

See  table  in  the  chapter  preceding  in  sales  of  real  estate  by  adm'rs. 

the  index  as  to  method  of  determin-  i"  Compensation  is  to  be  awarded 

ing  contingent  dower.  for     contingent    dower.     Smith     vs. 

See  §943  et  seq.  for  discussion  of  Rothchild,   4   C.   C.    544,   551;    2   C. 

dower  rights.  ^-  6f)8. 

Unger  vs.  Leiter,  32  0.  S.  210. 


§  1601a 


ASSIGNMENT HOMESTEAD 


1402 


maintenance  and  custody  of  a  minor  child of  a  deceased  relative,  is  a 

resident  of  Ohio,  and  not  the  owner  of  a  homestead,  nor  is  the  wife  of  the 
petitioner,  the  owner  of  a  homestead. 

Your  petitioner  hereby  waives  the  setting-off  to  h....by  the  appraisers 
herein,  of  property  to  be  selected  by  h....,  not  exceeding  five  hundred 
dollars  ($500)  in  value,  in  addition  to  the  amovmt  of  chattel  property 
otherwise  by  law  exempted  in  kind,  out  o^  property — real  or  personal — 
herein  assigned,  in  lieu  of  such  homestead,  on  condition  that  the  Court 
orders  an  allowance  to  h.  .  .  .in  money,  in  said  sum  of  five  hundred  dollars, 
out  of  the  proceeds  of  the  assets  so  assigned,  in  lieu  of  such  setting-off  to 

h — Said   petitioner    claiming   not    to   be    the   owner   of   a   homestead, 

alleges  h .  . . .  homestead  to  be  mortgaged  to  its  full  value,  as  evidenced  by 
the  inventory  and  appraisement  filed  herein,  to  which  reference  is  made. 


A.   D.    190. 


WTiere  the  assignor  waived  specific 
property  and  $500,  in  lieu  thereof, 
there  heing  no  homestead,  was  al- 
lowed in  the  inventoiy,  and  this 
was  approved  by  the  Probate  Court, 
and  was  ordered  paid  to  the  as- 
signor. This  was  not  such  a  final 
order  as  would  permit  the  assignee 
to  sue  thereon.  Such  matters  can 
only  be  finally  passed  upon  at  the 
time  of  the  final  account.  Circuit 
Ct.  Clerk  Co.  1910;  Bentzel  vs. 
Goodwin,  14  C.  C.  (X.S.)  65;  32 
0.  C.  C.  — .  Husband  and  wife  are 
living  together  within  the  meaning 
of  §  1173S  G.  C.  notwithstanding 
the  fact  that  the  husband,  following 


an  assignment  for  creditors,  be- 
came unable  to  support  his  wife 
and  even  that  his  present  domicile 
is  unknown  to  her  if  she  expects 
his  return  to  her  as  soon  as  he  is 
able  to  provide  for  her  support. 
The  fact  that  at  the  time  of  the 
assignment  the  assignor  and  his 
wife  were  living  in  the  house  which 
belonged  to  her  and  was  heavily 
incumbered  with  liens  and  from 
which  they  removed  and  she  has 
since  collected  rent  therefor  is  no 
bar  to  an  allowance  in  lieu  of  a 
homestead.  In  re  C.  \V.  Davis,  23 
Dec.  420.  See  Kunkle  vs.  Reesor, 
5  Dec.  422  J  5  X.  P.  401. 


1403 


ASSIGNMENT — COLLECTION   OF   ASSETS 


§1602 


CHAPTER  LXXXVIII. 

COLLECTION  OF  ASSETS  AND  SALE  OF  PERSONAL  PROPERTY. 


§  1602  Shall  convert  assets  into 
money. 

§  1603     Diligence  required,  etc. 

§  1604     When  and  what  to  be  sold. 

§  1605     How  to  be  sold. 

§  1606     Terms   of   sale. 

§  1607  Form  of  application  for 
sale   of    personal  property. 

§  160S     Chattel  mortgage  claim,  etc. 

§  1609  Public  sale  of  personal  prop- 
erty. 

§  1610  Court  may  order  property 
disposed  of  at  private  sale. 

§  1611  Property  to  be  sold  at  auc- 
tion if  not  disposed  of  pri- 
vately. 


§  1611a  Compromise  or  sale  of 
claims. 

§  1612  Order,  etc.,  where  property 
not    sold. 

§  1613  Return  and  confirmation  of 
sales.  Order  as  to  deed, 
acceptance  of  cash,  sale 
of    notes,    etc. 

§  1614  Report  of  public  or  private 
sale. 

§  1615  Compromise  of  sale  of  des- 
perate  claims. 

§  1616    Title   conveyed. 


§  1602,  Shall  convert  assets  into  money.  ' '  The  assignee,  or 
trudree,  shall  proceed  to  convert  the  assets  received  by  hini  into 
money,  and  to  sell  the  real  and  personal  property  assigned,  in- 
eluding  stocks  and  such  bonds,  notes  and  other  claims  as  are 
not  due  and  which  can  not  probably  be  collected  within  a  reason- 
able time,  at  public  auction,  eitlier  for  cash  or  upon  such  other 
terms  as  the  court  orders.''     [R.  S.  §  6350.]^" 

§  1603.     Diligence  required,  etc. 

It  will  be  observed  from  the  above  section  that  it  is  the  duty 
of  the  assignee  to  proceed  at  once  to  convert  the  assets  into 
money.  The  wording  of  the  statute  indicates  that  greater  dili- 
gence is  required  on  the  part  of  an  assignee  than  from  an  ad- 
ministrator, for  within  eight  months  he  is  to  file  his  account 
or  report.  Creditors  are  entitled  to  speedy  action,  and  the 
Court  should  enforce  activity  for  this  purpose  on  the  part  of 
the  assignee.     There  may  lie  instances  when  want  of  diligence 


17  §  11115  G.  C. 

Probate    Court    may    enforce    the 
provisions    of    statute.      Kiefer    v.s. 


Spence,  5  N.  P. 
009. 


;N.S.)   522;   5  Doc. 


^  in04  ASSIGNMENT — COLLECTION    OP    ASSETS  1404 

is  excusable,  but  certainly  no  greater  latitude  in  this  respect 
will  be  allowed  than  is  permitted  to  administrators  or  execu- 
tors.^® The  power  to  collect  assets  would  necessarily  imply  a 
power  to  bring  suit  and  defend  whatever  action  may  be  brought 
against  the  assignee  in  his  official  capacity. 

§  1604.     When  and  What  to  be  sold. 

While  the  statute  contemplates  that  all  assets  should  be  con- 
verted into  money,  it  does  not  direct  that  at  once  all  property 
be  sold.  Promissory  notes  and  other  demands  existing  in  favor 
of  the  estate  which  can  be  collected  by  suit  or  otherwise  within 
a  reasonable  time  are  not  expected  to  be  sold.  But  if  for  some 
reason  even  such  property  cannot  be  converted  into  money  in 
time  to  make  a  distribution  within  eight  months,  then  they 
should  be  sold  as  desperate  claims.  All  other  property  coming 
into  the  hands  of  the  assignee  should  be  sold  at  the  very  earliest 
time  the  same  can  be  done  for  the  benefit  of  creditors.  Circum- 
stances may  arise  which  will  permit  the  sale  of  property  tl>  be 
deferred  beyond  the  eight  months,  but  as  a  general  rule  the 
creditors  will  be  most  benefitted  by  a  prompt  sale  of  the  prop- 
erty, and  an  expeditious  settlement  of  the  estate.  Personal 
property  of  a  perishable  and  tangible  character  certainly  should 
be  disposed  of  quickly.  ^'^ 

18  See  §§  442  and  443  for  diligence  assignment  or   manifest   interest  of 

required  and  negligence  permissible  the    creditors    require    it.     All    that 

on  the  part  of  an  administrator.  is  required  of  a  trustee  is  that  he 

See  §  1287  for  duties  of  trustees.  act  in  good  faith,  exercise  a  fair  dis- 

"  Although    it   is   the    duty    of   a  cretion,  and  do  in  the  premises,  ac- 

Irustee,  under  an  assignmont  for  the  cording  to  his  instructions,  what  a 

benefit  of  creditors,  to  proceed,  with-  man  of  ordinary  prudence  and  care 

out  delay,  and  in  a  proper  manner,  would  do  in  regard  to  his  own  busi- 

to  convert  the  property  into  money  ness.     Hoffman  vs.  Mackall,  5  O.  S. 

and  pay  the  debts,  yet  it  has  never  124,  137. 

been  held  that  he  is  bound  to  proceed  i9  Articles  bought  on  the  install- 
to  make  forced  sales  after  the  man-  ment  plan  without  paying  anything 
ner  of  a  sheriff  holding  property  on  are  not  assets.  Seibern  Assign- 
execution,   unless  the  terms  of  the  ment,  7  Dec.  280. 


1405  ASSIGNMENT — TTOW   TO    BE    SOLD  §  16v05 

§  1605.     How  to  be  sold. 

The  property  may  be  sold  at  either  a  public  or  private  sale. 
It  seems  that  if  it  is  sold  at  public  auction  and  for  cash  that  no 
application  need  be  made  to  the  Court.  But  if  it  is  sold  upon 
other  terms  than  for  cash  or  at  private  sale,  then  an  order  of  the 
Court  must  be  obtained.  It  may  be  stated  as  a  general  rule 
that  real  estate  should  never  be  sold  except  on  an  order  of  the 
Court.  If  there  are  no  liens  on  the  real  estate,  and  no  dower 
or  homestead  right  existing  under  the  statute,  a  valid  title  could 
be  conveyed  without  an  application,  merely  having  the  same 
confirmed  by  the  Court.  The  sale  of  real  estate  will  be  the  sub- 
ject of  the  next  chapter.  While  not  in  the  same  degree  of  im- 
portance as  real  estate,  yet  it  may  be  said  that,  considering  [he 
fact  that  personal  property  can  only  be  sold  at  public  auction 
for  cash  without  an  order  of  the  Court  fixing  other  terms,  as  a 
general  rule  an  application  ought  also  to  be  made  for  the  sale 
of  personal  property.  Especially  is  this  true  where  there  are 
existing  liens  on  such  personal  property.  It  would  then  be 
proper  for  the  assignee  to  file  his  application  for  an  order  of 
sale  and  make  all  lienholders  parties  defendant.  It  would  also 
be  well  in  such  cases  to  make  the  general  creditors  parties  de- 
fendant-  so  that  they  might  defend  if  necessary. 

§  1606.     Terms  of  sale. 

The  property  may  be  sold  for  cash  or  such  other  terms  as  the 
Court  may  order."'  From  the  fact  that  a  final  settlement  is 
contemplated  at  the  expiration  of  eight  months,  unless  whore  it 
manifestly  appears  that  a  longer  time  will  be  required,  the 
Court  will  not  be  justified  in  permitting  property  to  be  sold  on 
payments  exceeding  six  months.  If  deferred  payments  are 
given,  the  law  as  to  security,  etc.,  applicable  to  administration 
of  estates,  time,  etc.,  may  be  followed."^  At  private  sale,  in  no 
instance  can  real  estate  be  sold  for  less  than  tAvo-thirds  of  its 
appraised  value  unless  such  real  estate  be  beyond  this  State. 

80  §11115   G.    C,    §1602.  2i8§483  and  485.     Sccurin<r  pay- 

ments;   §897,  as  to  real  estate. 


g  UiOT  ASSIGNMENT — TERMS   OF   SALE  1406 

For  good  cause  shown,  the  Court  may  permit  personal  property 
to  be  sold  for  less  than  two-thirds  of  its  appraised  value.^" 

§  1607.     Form  of  application  for  sale  of  personal  property. 

(Title.) 

Now  comes  A.  B..  assignee  of  C.  D.,  and  respectfully  represents  to  the 
Court  that  lie  has  heretofore  had  an  appraisement  of  the  property  of  C.  D., 
which  has  heen  returned  to  this  Court  and  been  approved  and  confirmed. 
He  furtlier  represents  that  upon  certain  of  said  personal  property,  E.  F. 
and  G.  11.  claim  to  have  some  lien  or  interest  therein. 

Wherefore  he  prays  that  they  may  be  notified  of  this  application  and 
be  required  to  answer  herein.  He  further  says  that  it  would  be  to  the 
interest  of  said  estate  to  offer  said  property  for  private  sale  at  not  less 
than  two-thirds  of  its  appraised  value,  and  upon  the  following  terms. 
(Here  state  terms.) 

Wherefore  he  asks  that  an  order  of  private  sale  may  be  granted  for  the 
sale  of  said  property  and  upon  distribution  of  said  funds  the  right  of  E.  F. 
and  G.  H.  thereto  be  determined  by  the  Court  for  such  other  and  further 
relief  as  the  nature  of  the  case  may  require,  and  as  the  statute  requires. 


Sworn   to   before   me   and    subscribed   in   my   presence  this day   of 

A.  D.    190... 


It  is  very  seldom  that  either  the  mortgage  creditor  or  any 
general  creditor  would  have  anv  riijht  to  control  the  terms  of  the 
sale,  as  our  Supreme  Court  has  decided  that  their  liens  are 
transferred  to  the  fund,  therefore,  they  would  only  be  interested 
in  the  distribution  of  the  fund.  The  Court  might  therefore 
very  well  hear  the  matter  ex  partem  and  require  a  notice  to  be 
given  to  such  creditors  at  the  time  when  the  matter  of  distribu- 
tion will  be  heard.  The  following  may  be  used  as  a  form  of 
entry : 

( Title. ) 

This  day  this  matter  came  on  to  be  heard  upon  the  application  of  A.  B., 
assignee  of  C.  D.,  to  sell  the  personal  property  of  said  assignor  at  public 
(or  private)  sale.  Wherefore  it  is  ordered  that  said  assignee  proceed  to 
sell  said  property  at  public  (or  private)  sale  upon  the  following  terms 
(here  insert  terms),  and  that  he  make  report  to  this  Court  within  three 
months    from   this   date. 

It  further  appearing  from  said  application  that  E.  F.  and  G.  H.  claim  to 
have  some  lien  or  interest  in  said  property  or  the  funds  arising  therefrom, 
it  is  ordered  that  said  E.  F.  and  G.  H.  be  notified  of  the  pendency  of  said 
application  and  be  required  to  set  up  their  said  claims:  and  it  is  also 
ordered  that  I.  J.  and  K.  L.,  vmsecured  creditors,  be  notified  of  the  claims 
of  E.  F.  and  G.  H. 

•     The  following  may  be  used  as  a  form  of  notice  to  a  lien- 
holder  and  creditors: 

22  §  11121  G.  C,  §  161.3. 


1407  CHATTEL  MORTGAGE  CLAIMS  §  1608 

To  A.  B.,  assignee  of  C.  D. : 

You  are  hereby  required  to  notify  E.  F.  and  G.  H.  and  I.  J.  you  have 
filed  an  application  to  sell  the  personal  property  of  said  C.  D.,  and  that  said 
E.  F.  and  G.  H.  are  hereby  notified  of  such  fact  and  required  to  set  up  in 
said  Court  their  claims  or  liens  thereon;  and  said  I.  J.  and  K.  L.,  all 
general  creditors,  are  hereby  notified  that  E.  F.  and  G.  H.  claim  some  lien 
on  the  funds  arising  from  the  sale  of  said  personal  property. 

,  Probate  Judge.2* 

§  1608.     Chattel  mortgage  claim,  etc. 

There  is  no  doubt  now  but  that  the  Probate  Court  has  full 
and  complete  authority  to  determine  the  priority  of  liens  on 
personal  property  and  to  order  distribution  accordingly.  The 
question  sometimes  arises  when  this  order  of  distribution  should 
be  made,  and  Avithin  what  time  the  mortgagor  must  appear  in 
Court  or  notify  the  assignee  of  the  existence  of  his  claim.  This 
question  is  more  theoretical  than  practical.  These  secured 
claims  are  of  necessity  required  to  be  filed  and  be  of  public 
record.  If  such  a  claim  were  filed,  etc.,  and  the  mortgagor  was 
not  notified  to  set  forth  his  claim  in  an  action  in  the  Probate 
Court,  it  would  not  be  safe  to  make  such  order  of  distribution 
before  at  least  the  time  allowed  for  the  account  to  be  filed,  and 
no  order  of  distribution  should  be  made  until  the  Court  is  fully 
satisfied  that  all  persons  having  a  claitai  on  the  fund  have  been 
notified.  The  following  may  be  used  as  a  form  either  by  way 
of  application  or  cross-petition  of  the  holder  of  a  chattel  mort- 
gage setting  forth  his  claim: 

(Title.) 

Now  comes  the  said  E.  F.  and  represents  that  said  C.  D.,  at  the  time  of 
making  his  assignment  to  A.  B.,  was  indcbtod  to  the  said  E.  F.  in  the  sum 
of dollars  with   interest  thereon  from  the day   of 

,  190 .  . ,  at per  cent,  per  annvim,  on  a  promis- 
sory note  of  which  the  following  is  a  true  copy  (here  describe),  and  in  order 
to  secure  the  payment  of  the  said  note,  the  said  C.  D.  did  on  the day  of 

190. .,   duly   execute   to   the  said   E.   F.   certain  chattel 

mortgage  on  certain  chattels  designated  in  said  mortgage  (here  describe 
same),  on  which  mortgage  was  made  the  aflidavit  required  by  law  stating 
the  amount  of  the  claim  secured  thereby,  and  that  it  is  just  and  unpaid; 
and  which  mortgage  on  the day  of ,■  190. .,  at 

o'clock.  .  .  .M.,  was  duly  filed  with  the  clerk  of 

township  in  which  the  said  C.  D.  then  was  a  resident  (or  if  C.  D.  is 
a  resident  of  the  township  in  which  the  recorder's  office  is  situate,  that  it 
was  filed  in  such  office),  and  that  none  of  said  debt  has  been  paid. 

23  If  it  is  desired  to  make  a  dis-  special  exemption  in  such  property, 

tribution    before    eight    months    all  Jn  re  E.  B.  Thomas,  .'^0  L.  11.  438; 

creditors   should   be   notified.      Moo-  51     Bull.    2!);     and    ])rior    to    later 

ney  vs.  Lindley  Fogg,  19  C.  C.  327;  claims  under  §  S;539  G.  C,  §  1651. 

10  C.  1).  551,  829.  The  mortgagee  should  have  some 

Tlie    claim    secured    by    a    chattel  kind   of  notice.     Lindeman  vs.   Ing- 

mortgage   is   prior   to  the   claim  of  ham,  30  O.  S.  1. 


§  1609       ASSIGNMENT — PUBLIC    SALE   PERSONAL   PROPERTY  1408 

That  said  chattels  so  mortgaged  were  afterwards  assigned  by  said  C.  D. 
to  his  assignee,  A.  B.,  and  have  been  sold  by  order  of  Court.  The  proceeds 
of  said  sale  being  now  in  the  possession  of  said  assignee. 

The  undersijjned  therefore  claims  a  lien  on  said  proceeds  by  virtue  of 
his  said  chattel  mortgage.  Wherefore  he  asks  for  an  order  directing  said 
assignee,  out  of  said  proceeds,  to  pay  him,  the  said  E.  F.,  the  amount, 
including  interest  so  due,  and  secured  to  him  by  virtue  of  said  chattel 
mortgage. 


Sworn  to  before  me   and   subscribed   in   my   presence  this day   of 

,    190... 24 


§  1609.     Public  sale  of  personal  property. 

If  the  property  be  sold  at  public  sale,  the  law  applicable  to 
administrator's  sale  as  to  the  conduct  of  assignee's  sale  would 
be  applicable,  and  reference  to  discussion  of  the  same  is  here 
made." 

The  notice  is  a  little  more  specific  than  sales  by  administra- 
tors. The  principal  thing  to  be  observed  is  that  if  notice  is 
given  by  posters,  they  must  be  put  up  at  least  ten  days  prior  to 
the  day  of  sale  in  fifteen  public  places  in  the  county,  five  of 
which  must  be  in  the  township.  The  form  of  notice  can  be 
taken  from  administrators.^*'  The  following  is  the  statute  re- 
lating to  the  notice : 

"  Notice  of  the  time  and  plac€  of  the  sale  of  the  personal 
property  assigned,  shall  be  given  for  at  least  ten  days  prior  to 
the  day  of  sale,  by  advertisement  in  some  newspaper  of  general 
circulation  within  the  county,  or  by  posting  written  or  printed 
notices  thereof,  in  at  least  fifteen,  public  places  in  the  county, 

2*  See   Sayler  vs.   Simpson,  45  0.  of  this  kind,  no  doubt  the  assignee 

°-  l"*-^-  could  come  into   Court  and   set   up 

The    issue    formed    by    pleadings  the  facts  and  ask  an  order  of  dis- 

setting  forth  the  claim  to  liens  on  tribution.     It   has   been   held,   how- 

the  fund  are  purely  equitable,  and  ever,  that  the  Probate  Court  in  such 

the  party  has  no  right  to  a  trial  by  a  proceeding  has  no  right  to  try  a 

J^^'J-  question  of  title  to  the  property. 

As  before  remarked  where  such  an  Unless   all    creditors    have    actual 

order    may    materially     afTect    the  notice  no  order  of  distribution  can 

rights  of  other  creditors,  such  other  be  legally  made  Mntil  eight  months 

creditors   should   be   notified   of  the  has   elapsed.     Mooney  vs.   Fogg,    19 

pendency  of  the  application  so  that  C.  C.  327;  10  C.  D.  551. 

they  may  defend  if  desired.     If  none  25  §§  479  and  481. 

of  the  lien  holders  make  application  26  §  430. 


1409  ORDER  OP  COURT,  ETC.  §  1610 

not  less  than  five  of  which  must  be  posted  in  the  township  in 
which  the  sale  is  to  be  held."     [R.  S.  §  6350b.] ^^ 

§  1610.  Court  may  order  property  disposed  of  at  private 
sale.  "When  the  court  is  satisfied  that  it  would  be  for  the 
advantage  of  the  creditors  of  the  assignor  to  sell  part,  or  all,  of 
the  real  or  personal  property  in  this  state  assigned  at  private 
sale,  it  may  authorize  the  assignee  or  trustee  thus  to  sell  it 
either  for  cash,  or  upon  such  other  terms  as  the  court  orders. 
No  real  estate  lying  in  this  state  shall  be  sold  for  less  than  two- 
thirds  of  its  appraised  value,  nor  shall  any  personal  property, 
be  sold  for  less  than  two-thirds  of  its  appraisement,  unless  upon 
good  cause  shown,  the  court  orders  the  assignee  or  trustee  to 
sell  it  for  a  less  amount."     [R.  S.  §  6350c.] ^^ 

§  1611.  Property  to  be  sold  at  auction  if  not  disposed  of 
privately.  "Should  any  property,  ordered  to  be  sold  by  the 
court  at  private  sale,  not  be  sold  within  the  time  prescribed, 
then  the  court  shall  order  its  sale  at  public  auction,  as  though  a 
private  sale  had  not  been  ordered."     [R.  S.  §  6350d.]'^ 

§  1611a.  Compromise  or  sale  of  claims.  "With  the  ap- 
proval of  the  court  the  assignee  or  trustee  may  compromise  or 
sell  any  claim  or  demand,  due  or  owing  to  the  assignor,  which 
is  desperate  or  difficult  of  collection,  and  also,  with  like  ap- 
proval, complete  and  enforce  all  sales  of  the  real  estate  made 
by  the  assignor."     [R.  S.  §  6350d.]-''* 


§  1612.     Order,  etc.,  where  property  not  sold. 

If  property  is  not  sold  for  some  reason  within  the  time  granted, 
such  fact  should  be  reported  to  the  Court,  and  the  Court  should 
then  make  a  further  order  in  reference  thereto.  The  report  may 
be  as  follows : 

{Title.) 

This  day  came  A.  B.,  assignee  of  C.  D.,  and  respectfully  represents  to  the 
Court  that  the  following  personal  property  belonging  to  said  estate,  which 
was  ordered  to  be  sold  by  a  former  order  of  this  Court,  at  public  (or 
private)  sale  remains  unsold. 

27  §  11117  G.  C.  29  §  11119  G.  C. 

28  §  11118  G.  C.  29*  §  11120  G.  C. 

See  §  495  as  to  private  sale,  etc.,  See    §  528    as    to    conveyance    of 

for   forms    etc.  real  estate. 


§  1613  ASSIGNMENT REPORT    OF    SALE  1410 

Wherefore  said  assignee  asks  that  the  Court  order  that  said  property 

be  sold  at  public  sale  within days  and  for  cash   (or  such  other  terms 

as  may  be  desired). 

ENTRY. 
(Title.) 

This  day  this  matter  came  on  to  be  heard  upon'  the  report  of  j±.  B., 
assignee  of  C.  D.,  as  to  certain  personal  property  remaining  unsold. 

Wherefore  it  is  ordered  that  said  assignee  proceed  to  sell  the  same  at 
public  auction,  as  required  by  law,  and  for  cash,  and  that  he  make  report 
of  the  same  to  this  Court  within days. 

^  1613.  Return  and  confirmation  of  sales.  Order  as  to  deed, 
acceptance  of  cash,  sale  of  notes,  etc.  ' '  Reports  of  sales  of  real 
estate  and  personal  property,  made  as  herein  provided,  shall  be 
returned  to  the  court  within  the  time  prescribed.  After  ha^ang 
carefully  examined  the  return,  if  satisfied  that  the  sale  has  been 
legally  made,  the  court  shall  confirm  it  and  order  the  assignee 
or  trustee  to  make  a  deed  to  the  purchaser  for  the  estate  sold. 
In  the  order  it  also  may  require  that  before  delivery  of  such 
deed  the  deferred  installments  of  the  purchase  money  be  se- 
cured by  mortgage.  When  the  buyer  offers  to  pay  the  full 
amount  of  the  purchase  money  in  cash,  if  best  for  the  interests 
of  the  creditors  of  the  assisTnor,  the  court  may  order  that  it  be 
accepted,  and  direct  its  distribution."     [R.  S".  §  6350e.l^° 


§  1614.     Report  of  sale. 

The  above  section  of  the  General  Code  requires  that  all  re- 
ports of  sales,  either  personal  or  real  estate,  be  made  to  the 
Court,  and  that  the  Court  shall  approve  the  same  before  they 
shall  be  binding  and  complete.  The  requirement  that  the  same 
shall  not  be  complete  until  confirmed,  evidently  applies  to  the 
sale  of  real  estate  and  private  sale  of  personal  property.  It 
would  be  inconsistent  to  apply  the  same  to  the  public  sale  of  per- 
sonal property.  It  is  no  doubt  intended  to  prevent  an  unjust 
sale  of  real  estate  or  private  sale  of  personal  property.  The 
form  of  return  of  public  sale  of  personal  property  hy  an  ad- 
Rule  of  caveat  emptor  does  not  When  premises  have  been  three 
apply  to  sale  of  chattels.  Ludeman  times  appraised,  court  cannot  direct 
vs.  Ingham,  36  O.  S.  14.  ,  amount  for  which  may  be  sold. 
A  sale  of  goods  on  credit  of  one.  Brown  vs  Insurance,  3  C.  D.  350; 
two    and    three    years    is    improper.       6   0.    C.    C.    62. 

Conkling  vs.  Conrad,  6  0.  S.  611.  Reappraisement    mav   be    sold    on 

■'•o  §  11121  G.  C.  time.     Id. 


1411  SALE  OF  CLAIMS  §  1615 

ministrator  would  be  proper  to  use  in  the  public  sale  by  an 
assignee. ^^  It  should  not  be  forgotten  that  a  return  of  private 
sale  must  have  attached  to  it  the  affidavit  required  by  sec.  11213, 
G.  C.^-  The  following  entry  of  confirmation  of  sale  may  be 
used: 

(Title.) 

On  this  day  came  A.  B.,  assignee  of  C.  D.,  and  filed  in  this  Court  a  report 
of  private  (or  public)  sale  of  personal  property  assigned  him;  and  the 
same  was  submitted  to  tlie  Court.  Whereupon  the  Court  finds  that  said 
sale  is  regular  and  in  conformity  to  law  and  the  former  orders  of  the 
Court,  and  does  hereby  approve  and  confirm  the  same;  and  the  same  came 
on  to  be  heard  upon  the  distribution  of  the  proceeds  of  said  sale.  Where- 
fore the  Court  finds  that  E.  F.  and  G.  H.  have  been  duly  notified  of  the 
pendency  of  the  application  of  the  sale  of  said  property  and  that  I.  J.  and 
K.  L.,  all  the  general  creditors  of  said  estate,  have  also  had  notice  thereof; 
and  the  Court  finds  that  the  mortgage  lien  of  said  E.  F.  is  a  valid  and  sub- 
sisting first  mortgage  lien  upon  the  following  personal  property  sold  by  said 
assignee,  and  the  amount  realized  from  the  sale  of  said  personal  property 
by  said  assignee  is dollars. 

That  the  amount  of  the  lien  of  E.  F.  thereon  is dollars, 

and  Court  further  finds  that  the  mortgage  of  G.  H.  is  a  first  and  valid  lien 
on  the  following  personal  property,  sold  of  said  assignor  (here  set  out) 
and    that    the    amount    received    from    said    property    by    said    assignee    is 

dollars,  and  the  amount  of  the  lien  of  said  G.   H.   is 

dollars. 

Wherefore  it  is  ordered  that  the  same  be  distributed  as  follows: 

First,  the  costs  and  expenses  of  said  administration  and  the  sale  of  said 
property  as  follows:  (Here  insert,  and  the  proportion  of  said  proceeds 
is  to  be  paid  the  assignee,  etc. )  33 

Second,  to  E.  F.  on  his  mortgage  lien  the  sum  of dollars 

Third,  to  G.  H.  on  his  mortgage  lien,  the  sum  of dollars. 

The  remainder  thereof  to  be  distributed  to  said  general  creditors  present- 
ing their  claims  as  required  by  law. 

§  1615.     Compromise  or  sale  of  desperate  claims. 

If  an  assignee  is  unable  to  collect  a  claim  within  a  reasonable 
time,  and  I  will  say  a.  reasonable  time  would  be  six  months, 
then  the  Court  may  authorize  the  assignee  to  compromise  or  sell 
such  desperate  claim.  The  statute  does  not  designate  the  man- 
ner or  the  tenns  of  such  sale.  It  seems  that  the  matter  is 
purely  an  ex  parte  proceeding,  and  that  the  Court  may  make 
the  order  without  notice  to  any  one.  The  form  of  application 
given  in  proceedings  by  an  administrator  to  sell  a  desperate 

31  §  490.  Public  sale,  and  §  497,  distribution  cannot  be  made  before 
Private  sale.  eight  months.     Mooney  vs.   Lindley 

32  See  §  882.    For  form,  see  §  r)00.  Fogg,  19  C.  C.  327;  10  C.  D.  551. 

33  Unless  all  creditors  are  notified 


§  1616  ASSIGNMENT TITLE    CONVEYED  1412 

claim  might  very  well  be  used  here,^*  and  the  form  given  in 
proceedings  by  an  administrator  to  compromise  a  claim  might 
be  used,^'  and  the  entry  used  in  an  application  by  an  adminis- 
trator to  compromise  might  easily  be  adopted.^* 

§  1616.     Title  conveyed. 

It  is  a  v^ell  established  principle  that  no  trustee  can  be  a  pur- 
chaser at  his  own  sale,^^  and  like  administrators'  sales  of  prop- 
erty, assignees  do  not  warrant  the  title  to  the  property  con- 
veyed.^^  The  sale  is  a  judicial  sale  and  the  doctrine  of  caveat 
emptor  applies.^^ 

§  458,  Application  for.  §  464  as  to  order  of  public  sale,  etc. 

34  See  §  558,  Proof  of  claim,  when  37  See  §  492,  Purchase  by  adminis- 
not  required.  trator. 

35  §  452,  Application  for,  38  See  §  493,  Warranty  of  title. 

36  §  454  as  to  order  of  compromise.  39  §  902,  Purchase  right  and  title. 


1413 


ASSIGNMENT — SALE  OP  REAL  ESTATE 


§  1617 


CHAPTER  LXXXTX. 
ASSIGNEE  SALE  OF  REAL  ESTATE. 


1617     Introductory. 

§  1621 

1618     Payment  of  liens,  etc. 

§  1622 

161Sa  Question  of  title. 

§  1623 

161Sb  Sale  of  premises. 

§  1624 

161Sc   Disposition  of  proceeds. 

IBlSd  Application      of      preceding 

§  1625 

section. 

1618e  Homestead  exemptions. 

§  1626 

1618f  Jurisdiction     of     court     in 

action    to    foreclose    mort- 

§1627 

gage,  quiet  title,  etc. 

1619     Nature  of  action. 

1620    Where  action  brought. 

Parties  defendant. 

Porm  of  petition. 

Procedure,  etc. 

Proceedings  to  lay  out  land 
into  town  lots. 

Notice  and  sale  of  real 
estate. 

Return  of  sale,  confirmation, 
etc. 

Form  of  deed  of  assignee 
or  trustee.  Public  or  pri- 
vate sale. 


§  1G17.    Introductory. 

There  is  no  doubt  but  that  under  the  statute  of  our  State  an 
assignee  might  convey  a  good  title  to  real  estate  without  having 
a  special  order  of  the  Court  for  that  purpose.  It  is  therefore 
not  so  essential  to  the  passing  of  a  good  title  to  the  purchaser 
that  the  statute  in  relation  to  obtaining  an  order  of  Court  for 
the  sale  of  real  estate  be  as  strictly  followed  as  it  is  in  the  sale 
of  real  estate  by  administrators  and  guardians.  The  statute, 
however,  makes  it  essential  before  such  a  sale  becomes  binding, 
that  it  be  confirmed  and  approved  by  the  Court.*"  But,  in  order 
that  the  question  of  priority  of  all  liens  may  be  speedily 
and  properly  brought  to  the  attention  of  the  Court,  there  ought 
to  be  no  sale  of  real  estate  by  an  assignee  without  the  filing  of 
a  petition  as  provided  for  in  the  section  following  of  the  General 
Code.  Under  this  provision  the  Probate  Court  has  full  and 
ample  power  conferred  upon  it  to  settle  every  and  any  question 
that  may  affect  the  title  to  the  real  estate  sold. 

§1618.  Payment  of  liens,  etc.  "The  probate  court  shall 
order  the  payment  of  all  incumbranQCS  and  liens  upon  any  of 


<o§  11118  G.  C.  (§  1610). 


§  1618a  ASSIGNMENT — JURISDICTION    OF    COURT.  1414 

the  property  sold,  or  rights  and  credits  collected,  out  of  the  pro- 
ceeds  thereof,  according  to  priority."     [11.  S.  §6351.]-*^ 

§  1618a.  Question  of  title.  "When  the  real  estate  to  be 
sold,  or  "whicJi  has  been  contracted  to  be  sold  by  the  assignor 
prior  to  the  assignment,  is  encumbered  with  liens,  or  when 
questions  in  regard  to  the  title,  or  the  dower  estate  of  the  \\'ife 
or  widow  of  the  assignor,  require  a  decree  to  settle  them,  the 
assignee  may  commence  a  civil  action  therefor  in  the  common 
pleas  or  probate  court  of  the  proper  county,  making  all  persons 
in  interest,  including  the  wife  or  Avidow  of  the  assignor,  par- 
ties."    fR.  S.  §6351.]^^* 

§  1618b.  Sale  of  premises.  "Upon  the  hearing,  the  court 
shall  order  a  sale  of  the  premises,  or  the  completion  of  such 
contracts  of  sale,  the  payment  of  incumbrances  and  the  con- 
tingent dower  interest  of  the  wife  or  Avidow,  subject  to  the  pro- 
vision hereinafter  contained,  and  determine  the  questions 
involved  as  to  title  to  the  property."     [R.  S.  §  6351.]"** 

§  1618c.  Disposition  of  proceeds  of  sale.  ' '  The  proceeds  of 
all  the  real  estate  so  sold,  after  payment  of  liens  and  incum- 
brances, and  the  contingent  dower  rights  and  interest  of  such 
vnfe  or  widow,  as  ordered  as  aforesaid,  must  be  reported  to  the 
probate  court  by  the  assignee,  and  disposed  of  as  provided  in 
this  chapter."     [R.  S.  §6351.1*^1 

§  1618d.  Application  of  preceding  sections.  "The  provi- 
sions of  the  preceding  sections  in  relation  to  the  Avife  of  the 
assignor  as  a  party  to  the  proceedings  tliereunder  and  her  rights 
by  virtue  thereof,  and  also  the  proAdsions  as  to  ordering  prop- 
erty sold  at  priA^ate  sale,  and  upon  terms  of  credit,  shall  apply 
to  proceedings  under  the  next  three  preceding  sections."  [R.  S. 
§6351.]"$- 

§  1618e.  Homestead  exemptions.  ' '  Nothing  relating  to 
sales  of  the  assignor's  property  in  the  preceding  sections  shall 
in  any  AA^ay  impair  the  right  of  homestead  exemptions,  or  the 
right  to  an  alloAA'ance  in  lieu  thereof  or  the  mode  proA'ided  by 
laAv  for  enforcing  such  rights."     [R.  S.  §  6351.] ■'M! 

§  1618f.  Jurisdiction  of  court  in  action  to  foreclose  mort- 
gage, quiet  title,  etc.  "This  chapter  shall  not  take  aAvay  or 
limit  the  jurisdiction  of  any  court  of  record  in  Avhich  an  action 
to  foreclose  a  mortgage,  to  quiet  title  or  in  any  AA-ay  affecting  the 
title  to  or  possession  of  all  or  part  of  the  real  estate  assigned  is 
pending,  at  date  of  the  assignment.     In  sucli  action  the  assignee 

41  §  1112^)  Cx.  C.  4i-|-  §  11129  G.  C. 

41*  §  11127  G.  C.  4it  §  11130  G.  C. 

§  11128  G.  C.  4111  §  11131  G.  C. 


1  *« 


1415  ASSIGNMENT NATURE    OP   ACTION  §  1619 

may  be  made  a  party,  with  ricrlit  to  defend,  and  have  such 
decrees,  orders  or  judgments,  as  are  necessary  for  the  proper 
administration  of  his  trust,  in  any  surplus  after  paying  liens 
thereon,  asserted  in  the  action."      [U.  S.  §6851.]*^°     • 

§  1619.     Nature  of  action. 

The  statute  itself  designates  the  action  to  be  a  civil  action, 
and  it  therefore  follows  that  the  rights  and  power  conferred  by- 
law upon  Courts  in  the  trial  of  civil  actions  would  be  applicable 
to  a  proceeding  commenced  under  the  above  section;  and  it  is 
certainly  the  object  of  the  statute  that  every  possible  right  in  or 
to  any  part  of  the  real  estate  should  be  worked  out  in  such  a 
proceeding  with  at  least  no  less  power  than  is  exercised  in  an 
action  brought  by  an  administrator  to  sell  real  estate.  This 
matter  has  been  fully  discussed  in  treating  of  the  subject  of 
sales  by  administrators.*^  The  suit  is  brought  by  filing  a  peti- 
tion and  having  the  service  of  smnmons,  the  same  as  any  civil 
action.  It  seems  that  in  addition  to  providing  for  a  sale  of 
real  estate,  the  action  might  be  brought  to  have  a  contract  of 
sale  completed,  made  by  the  assignor.  The  dower  rights  of  the 
widow  are  to  be  adjusted,  and  if  she  has  signed  mortgages  which 
prevent  the  same  being  set  apart  in  the  real  estate,  then  the 
Court  may  order  it  sold,  although  she  files  no  answer  consenting 
thereto.  Otherwise  the  real  estate  could  not  be  sold  free  of 
her  dower  without  such  answer  or  consent.*^ 

§  1620.     Where  action  brought. 

The  action  is  to  be  brought  in  the  Common  Pleas  Court  or 
Probate  Court  of  the  proper  county,  is  the  language  of  the  stat- 
ute.*^"^  Beyond  question  the  Probate  Court  of  the  county  in 
which  the  assignment  is  made  is  the  only  Probate  Court  in 
which  the  action  can  be  brought.  The  proceeding  being  a 
proceeding  in  rem,  it  would  seem  that  the  Court  of  Common 
Pleas  would  only  have  jurisdiction  provided  the  land  was  sit- 
uate in  the  county  of  such  Court.     Whether  an  action  could 

41°  §  11132  G.  C.  43  §§11123      and      11124      G.      C. 

42  See  §§  812  and  815.  (§§  1610,  1611). 

43a  §  1544j  Jurisdiction  of  court. 


§  1621  ASSIGNMENT PARTIES   DEFENDANT  1416 

be  brought  in  the  Court  of  Conunon  Pleas  of  the  county  in 
which  the  assignment  was  made,  when  there  is  no  real  estate  lo- 
cated therein,  is  not  clear,  the  probability,  however,  is  that  such 
Common  Pleas  Court  would  have  jurisdiction.  If  for  any 
reason  the  Probate  Court  is  not  clothed  with  full  power  to  ad- 
judicate the  rights  of  all,  then  the  action  should  be  brought  in 
the  Court  of  Common  Pleas.**  As  a  general  rule,  however,  the 
action  should  be  brought  in  the  Probate  Court  having  control  of 
the  other  matters  of  the  assignment. 

§  1621.     Parties  defendant. 

All  parties  in  interest,  including  the  wife  or  widow  of  the 
assignor,  should  be  made  parties  to  such  an  action.  While  a 
failure  to  follow  this  provision  of  the  statute  strictly  would  not 
affect  the  jurisdiction  of  the  Court,  yet  a  neglect  to  do  so  would 
result  in  a  failure  in  that  for  which  the  statute  was  enacted, 
to-wit,  a  determination  and  adjudication  of  the  rights  of  all  in 
or  to  the  property.  The  assignee,  before  filing  a  petition, 
should  make  strict  examination  of  the  records,  and^  err  on  the 
side  of  making  too  many  persons  parties,  rather  than  too  few.*^ 

§  1622.     Form  of  petition. 

A.  B.,  as  assignee  for  benetit  of  the  creditors  of  C.  D.,  plaintiff,  vs.  C.  D., 
E.  D.,  G.  H.  and  I.  J.,  defendants.     Probate  Court, 

County,  Ohio. 

Plaintiff    states   that    on    the day    of ,    190.., 

the  defendant,  C.  D.,  made  an  assignment  to  him  of  all  his  property  for  the 

benefit  of  his  creditors,  which  assignment  was  on  the day  of 

190.  .,  at o'clock,  . .  .M.,  duly  filed  in  the  Probate  Court 

of  said  county  as  assignment  No on  the  assignment  docket  of  said 

Court,  and  thereupon  plaintiff  duly  qualified  and  entered  upon  his  duties 
as  such  assignee.  That  among  the  property  so  assigned  was  the  following 
real  estate.  (Here  describe  real  estate.)  Plaintiff  further  states  that  it 
is  necessary  to  sell  said  premises  to  pay  the  costs  of  said  assignment,  the 
liens  on  said  premises,  the  exemption  in  lieu  of  homestead  allowed  to  said 
assignor  and  the  general  creditors  of  said  assignor,  and  that  there  are  not 
sufficient  assets  to  pay  said   charges  and  the   claims  against  said   estate 

**  §  1545.  Mooney  vs.  Lindley  Fogg,   19  C.  C. 

45  It  is  evidentiy  not  intended  that  327;   10  C.  D.  551. 

general    creditors    should    be    made  See  contra  Reed  vs.  Terhune,   22 

parties,  yet  if  a  distribution  be  or-  C.  C.  544. 

dered  before  eight  months  from  the  The   assignor   should   be   made   a 

assifmee's     appointment,     it     seems  party.     Mannix   vs.   Elder,   1    C.   C. 

general  creditors  should  be  notified.  59;  1  C.  D.  36. 


1417  ASSIGNMENT PROCEDURE,    ETC.  §  1623 

without  the  sale  of  said  premises.  That  said  E.  D.  is  the  wife  of  said 
C.  D.,  and  as  such  has  a  contingent  right  of  dower  in  said  premises.  That 
said  C.  D.  is  interested  in  the  sale  of  said  premises  for  the  exemption  due 
him  in  lieu  of  a  homestead,  and  also  for  the  surplus  if  any  which  may 
remain  from  the  sale  of  said  premises  after  the  payment  of  all  his  debts, 
and  that  G.  H.  and  I.  J.  each  claim  a  lien  on  said  premises  by  way  of 
mortgage.  Wherefore  your  petitioner  prays  that  said  premises  may  be 
ordered  sold  free  and  clear  of  all  claims  of  all  parties  to  this  suit  and  that 
he  may  have  such  other  and  further  relief  as  the  nature  of  his  case  entitles 
him  to. 

,  Attorney  for  plaintiff. 

(Verification.  )*6 

§  1623.     Procedure,  etc. 

When  the  petition  is  filed,  the  same  method  of  procedure  can 
be  followed  as  in  the  sale  of  real  estate  by  administrators.  On 
its  filing  an  entry  should  he  put  on,*^  and  service  should  be  made 
as  in  other  civil  actions.** 

The  fact  that  property  has  been  assigned  is  sufficient  to  au- 
thorize an  order  of  sale,  and  the  journal  entry  in  an  administra- 
tor's sale  of  real  estate  might  be  adopted.*^ 

The  question  as  to  the  manner  of  distribution  of  the  proceeds 
might  be  deferred  until  the  confirmation  of  the  sale.  If  the 
real  estate  has  not  been  appraised,  or  if  for  any  reason  the 
former  appraisement  will  not  answer,  then  it  might  be  ordered 
appraised..®" 

There  is  now  a  special  statute  which  provides  it  may  be  di- 
vided, subdivided  and  platted.®^  If  there  is  any  one  entitled 
to  homestead,  the  same  must  be  set  off.^^  Likewise  dower  must 
be  assigned.®^  The  following  is  the  section  relating  to  the  plat- 
ting of  assigned  property: 

5  1624.  Proceeding's  to  lay  out  lands  into  town  lots.  "When 
an  assicfnee  or  trustee  commences  an  action,  in  the  common  pleas 
or  probate  court  of  the  proper  county,  to  sell  real  estate,  making 
all  persons  in  interest  parties  thereto,  and  at  the  time  fixed  for 
hearing  his  petition  the  court  is  satisfied  that  all  parties  in 

*G  Whitt.    Prob.    Code.  litem,  and  §  846  as  to  pleadings  of 

*~  §  8.37.  widow. 

■18  §  839  as  to  actual  service,  and  ■*»  §  8.52. 

§  840    as    to     constructive    service.  f'"  See  §  858. 

§841    how   publication   made,    §842  ^'^  §  11133   O.   C.    (§1024). 

copy    of    newspaper    mailed,    §843,  -§11125  0.  C    (§1002). 

Waiver,     §  84.5    as    to    guardian    ad  §  ^^''^• 

53  §  809. 


§  U)25  ASSIGNMENT SALE    OF    REAL    ESTATE  1418 

interest  have  been  duly  notified  of  its  pendency,  and  that  such 
land  ought  to  be  sohl,  if  tlie  petition  seeks  to  have  it  or  any  part 
thereof  laid  out  in  town  lots,  and  the  court  finds  it  will  be  to 
the  advantage  of  all  parties  in  interest  to  have  this  done,  it  also 
shall  authorize  the  survey  and  platting  of  the  land,  if  it  ap- 
proves the  survey  and  i)lat  made  for  that  purpose.  The  court 
shall  authorize  the  assignee  or  trustee,  on  behalf  of  all  the 
parties  in  interest,  to  sign,  seal  and  acknowledge  the  plat  in 
that  ])ehalf  for  record  according  to  law."      [R.   S.   §  6351a.] ^* 

§  1625.     Notice  of  sale  of  real  estate. 

If  the  Court  has  ordered  the  real  estate  to  be  sold  at  private 
sale,  there  need  be  no  advertisement,  and  it  could  be  sold  for 
two- thirds  of  its  appraised  value.  If  sold  at  public  sale,  the 
notice  must  be  given  as  provided  for  in  the  following  section  of 
the  General  Code: 

"Notice  of  the  time  and  place  of  the  sale  of  the  real  estate 
assigned,  shall  be  given  by  advertisement  in  some  newspaper 
of  general  circulation,  in  the  county  where  it  is  situated,  for 
four  consecutive  weeks.  The  real  estate  shall  not  be  sold  for 
less  than  two-thirds  of  the  appraised  value  thereof,,  but  shall 
be  subject  to  reappraisement,  as  upon  execution  at  law." 
[R.  S.  §  6350a.  l--^^^ 

The  notice  is  very  much  similar  to  the  notice  required  in  a 
sale  by  administrator,  and  the  sections  relating  thereto  should 
be  considered.  The  recent  law  requiring  the  street  number, 
etc.,  to  be  given  is  applicable. "''"•  But  it  seems  that  it  is  not  re- 
quired to  be  published  in  a  German  neAvspaper,  but  may  be.^^ 
The  terms  of  the  sale  are  cash  unless  the  Court  otherwise 
ordered.^^ 


54§11133G.  C.  r.sSee     §886.     Points    tn    be    ob- 

I  liave  no  doubt  the  court  would  served,  §  887,  Form  of  notice,  §  888, 

have  had  such  power  in  the  absence  ^      ,  \      ,  '            „  „„.     „,, 

of  statute.                          ,  Conduct    of    sale,    §  ?89,    \^  ho    may 

55  §  11116  G.  C.  become   purchaser,   and   §891   as   to 

^^  §  884.  return  of  sale. 

57  §  88o.    Not  now  to  be  published  ^.^en  court  mav   fix  price.     Bell 

in  German  paper.  •           ^ 

^  vs.   Dudreit.   40   0.   S.   330. 


1419  RETURN    OF    SALE,    CONFIRMATION,    ETC.  §  1626 

§  1626.     Return  of  sale,  confirmation,  etc. 

If  there  are  no  bidders,  the  property  should  be  again  offered, 
and  then  it  should  be  reappraised,  and  twice  again  offered,  and 
then,  if  it  remains  unsold,  the  Court  may  fix  the  amount  for 
which  it  may  be  sold.^^  The  statute  nowhere  indicates  at 
what  place  the  sale  should  take  place.  It  is  no  doubt  intended 
to  apply  the  section  relating  to  execution,  which  requires  it 
must  be  sold  at  the  court  house,  or  at  such  other  place  as  the 
Court  may  order."" 

§  1627.    Form  of  deed,  assignee  or  trustee.   Public  or  private  sale. 

Enow  All  Men  by  these  Presents: 

's   deed. 

That,   whereas, as of 

on   the day   of A.   D.    190..,    filed   h petition   in 

the    Probate    Court   within    and    for    the   county    of and 

State  of  Ohio,  praying  said  Court  for  an  order  to  sell  the  following  de- 
scribed real  estate  of  said 

Situate  in  the of ,  county  "of 

,  and  State  of  Ohio,  and  known  as 

And  whereas,  on  the day  of A.  D.   190. .,   such 

proceedings  were  had  by  and  before  said  Court,  that  the  said 

as  aforesaid  was  ordered  by  said  Court  to  sell  said  premises,  at 

sale,   according   to   law,   for   not   less   than the   appraised 

value  thereof, the  dower  estate  therein  of 

of  said  

And  whereas,  the  said as  aforesaid,  sold  said  premises, 

on  the day  of A.  D.  190.  .,  to 

for  the  sum  of dollars   ($ ) ,  said  sum  being 

The  appraised  value  of  said  premises,  and  the  highest  and  best  price  offered 

therefor,    and    the    said having   complied    with    the 

terms  of  said  sale,  and  said  sale  having  been  made  in  all  respects  according 

to  law,  the  same  was    afterwards,   to-wit :    on   the day   of 

,  A.   D.   190. .  . ,  approved  and  confirmed  by  said  Court. 

and  the  said as  aforesaid,  was  ordered 

to  execute  and  deliver  to  said  purchaser  a  proper  deed  for  said  premises, 
according  to  the  statute  in  such  case  made  and  provided;  all  of  which 
will  more  fully  appear  by  the  records  of  said  Court,  to  which  reference  is 
here  made. 

Now,  therefore,  I,  the  said ,  as  aforesaid,  in  considera- 
tion of  the  premises,  and  by  virtue  of  the  powers  in  me  vested  by  law,  and 
under   the  order   of   said   Court,   do   hereby  give,   grant,   bargain,    .sell   and 

convey  unto  the  said the  real  estate  aforesaid, 

the  said   dower   estate,   with   all   and   singular  the  appurtenances 

thereunto  belonging. 

To  have  and  to  hold  the  same  unto  the  said and  iinlo 

heirs   and   assigns   forever. 

no  §  11710  C.  C.  See  §  897,   Securing  payments. 

60§llf,96  G.  C.  See    §S  877-OOG    as    to   sale   gener- 

See  §  8fl.5,  Entry  confirmation.  ally. 
See   §  896,   Resale. 


§1627 


ASSIGNMENT ASSIGNEE  S   DEED 


1420 


In  testimony  whereof,  I,  as as  aforesaid,  hereuncc  set 

my  hand,  at this day  of A.  D.  190. .. 

Signed  and  acknowledged  in  pres-' 
ence  of 


.of. 


The  State  of  Ohio, County,  ss. 

Before  me,  a in  and  for  said  county,  personally  appeared 

the  above  named ,  who  acknowledged  that,  .he  did  sign 

the    foregoing    deed    as aforesaid,    and    that   the    same    ig 

h....free  act  and  deed,  for  the  uses  and  purposes  therein  mentioned. 

In  testimony  whereof,  I  hereunto  set  my  hand  and  official  seal,  at 

in  said  county,  Ohio,  this day  of A.  D.  190. .. 


1421  ASSIGNMENT PRESENTATION    OF    CLAIMS  5  1628 


CHAPTER  XC. 

PRESENTATION  OF  CLAIMS. 

§  1628     Presentation    of    claims.    §  1635  WTien    claim    shall   be    disal- 
Their    allowance    or    rejec-  lowed  on  application  of  as- 

§  162Sa  Keport  of  claims.  "^S""'"  °^  ^'''^'^^^^^^  ^"^  P^°- 

§  1629     When  to  be  presented.  ceedings  m  such  case. 

§  1630     What  to  be  presented.  §  1636  Procedure       under       Section 

§  1631     Claims  secured  by  mortgage.  11136  G    C 

§  1632     How    presented.      Affidavit,  §  i637  When   suit   must   be   entered 

§  1633     Form  of  affidavit,  etc.  «"  rejected  claim. 

§  1634     How   to   be   allowed  or  re-    §  1638  In   what   Court   action  to  be 
jected.  brought. 

§  1639  Eeport   of   claims   filed. 

§  1628.  Presentation  of  claims.  Their  allowance  or  rejec- 
tion, etc.  "Creditors  must  present  their  claims  within  six 
months  after  publication  of  the  notice  hereinbefore  provided 
for,  unless  further  time  be  given  by  the  court  for  their  allow- 
ance. The  assignee  or  trustee  shall  indorse  his  allowance  or 
rejection  thereon.  Persons  whose  claims  are  rejected  are  re- 
quired to  bring  suit  against  such  assignee  or  'trustee  to  enforce 
such  claims  within  thirty  days  after  they  were  rejected.  If  a 
claimant  recovers,  the  judgment  shall  be  against  the  assignee 
or  trustee,  that  he  allow  the  claim  in  settlement  of  his  trusts, 
with  or  without  the  costs,  as  the  court  deems  right."  [R.  S. 
§6352.]^ 

§  1628a.  Report  of  claims.  "Immediately  after  the  expira- 
tion of  such  six  months,  the  assignee  or  trustee  must  file  in 
court  a  report  of  all  claims  presented  to  him  for  allowance, 
their  several  amounts,  the  date  from  which,  and  the  rate  at 
which  they  are  entitled  to  interest,  specifying  claims  allowed 
and  those  rejected,  with  the  date  of  allowance  or  rejection,  what 
claims,  if  any,  are  held  under  advisement,  and  the  postoffice 
address  of  each  creditor  whose  claim  is  allowed  or  rejected." 
[R.  S.  §6352.]^* 

1  §  11134  G.  C.  i*§  11135  G.  C. 

See     §  552     for     presentation     of 
claims  in  administrations  of  estates. 


§  1629  ASSIGNMENT PRESENTATION    OP    CLAIMS  1422 

§  1629.     When  to  be  presented. 

Creditors  are  to  present  their  claims  within  six  months  after 
the  publication  of  the  notice  of  appointment,  unless  further 
time  is  allowed  by  the  Court.  The  object  of  this  requirement 
is  that  the  assignee  may  know  to  whom  the  fund  is  to  be  distrib- 
uted. If  a  creditor  chooses,  he  may  hold  his  claim  and  sue  the 
assignor  thereon,^  and  the  failure  to  present  the  claim  will  not 
prevent  or  defeat  a  recovery  against  a  surety  on  such  claim.^ 

The  mere  fact  that  the  creditor  does  not  present  his  claim 
within  six  months  will  not  bar  him  from  thereafter  presenting 
the  same,  and  having  it  allowed  any  time  before  the  trust  is 
settled.*  But  he  will  only  be  entitled  to^  share,  however,  in  the 
funds  that  are  undisposed  of  at  the  time  of  its  presentation,^ 
and  if  there  are  sufficient  funds  remaining  at  the  time  of  its 
presentation,  the  creditor  is  entitled  to  the  same  per  cent,  that 
was  paid  to  former,  creditors.'^ 

As  an  order  of  distribution  cannot  be  made  until  after  eight 
months  have  elapsed,  it  seems  that  a  creditor  would  he  in  time 
if  his  claim  were  presented  before  the  order  of  distribution  w^as 
made.^  If  a  creditor  delay  beyond  the  six  months,  causing  the 
assignee  additional  work  in  the  way  of  making  out  an  order  of 
distribution,  etc.,  he  should  be  made  to  bear  the  costs. 

§  1630.     What  to  be  presented. 

Every  claim  which  exists  against  the  assignor  is  a  proper  one 
to  present  to  the  assignee  for  payment.  Claims  which  arise  in 
the  administration  of  the  estate  are  not  claims  which  must  be 
presented.  Such  claims  are  primarily  against  the  assignee, 
and  he  is  personally  responsible  therefor.^     Claims  of  a  con- 

2  Haskins  vs.  Alcott  &  Horton,  13  reason  of  a  partial  settlement  of  the 
0.  S.  210.  trust,  he  may  come  in  at  any  time 

3  Dye  vs.  Dye,  21  O.  S.  8C.  for  at   least  his  equitable   share  in 
*  Owen    vs.    Ramsdell,    33    0.    S.       the  assets  unadministered,  and  not 

439;    Bettman    vs.    Hunt,    12    Bull.  properly  disposed  of,  at  the  time  he 

286.  presents  or  prosecutes  his  claim  for 

5  Id.  allowance,    in   the   mode    prescribed 

6  Carpenter  vs.  Dick,  41  O.  S.  295.  by  the  statute.     Owen  vs.  Ramsdell, 

7  Whatever  a  creditor  may  lose  by  33  O.  S.  443. 

not  presenting  his  claim  for  allow-  «  Kittredge   vs.    Miller,    12    C.   C. 

ance  within  the  statutory  period  by       129:  .5  C.  D.  391. 


1423  SECURED    BY    MORTGAGE  §  1631 

tingent  character  should  be  allowed.  The  order  of  their  prior- 
ity being  worked  out  in  the  Probate  Court." 

Where  a  suit  was  commenced  against  the  assignor  for  de- 
bauching L.'s  wife  and  alienating  her  affections,  after  the  be- 
ginning of  the  suit,  the  assignor  made  his  assignment ;  then  L. 
proceeded  with  his  suit  and  recovered  a.  judgment,  it  was  held 
that  this  was  a  claim  that  should  be  presented  to  the  assignor, 
and  the  Probate  Court  might  have  made  an  order  to  defer  dis- 
tribution until  judgment  was  recovered.^** 

A  person  contingently  liable  as  surety,  may  present  his 
claim. ^^  But  in  such  cases  the  dividend  thereon  shall  be  paid 
to  the  party  holding  the  claim.^^ 

If  a  chattel  mortgage  is  void  as  against  creditors,  the  holder 
may  still  present  the  claim  secured  thereby  and  share  as  a  gen- 
eral creditor.  ^^ 

§  1631.     Claims  secured  by  mortgage. 

Whether  a  claim  which  is  secured  by  mortgage  should  be 
presented  for  its  full  amount  and  be  entitled  to  dividends  on 
the  full  amount,  the  same  as  if  it  was  not  secured  by  mortgage, 
etc.,  presents  a  question  upon  which  the  Courts  are  not  in  ac- 
cord. Of  course,  if  the  security  is  sufficient  to  pay  the  claim 
in  full,  then  it  is  conceded  that  the  holder  is  not  entitled  to  any 
dividends  with  general  creditors,  and  the  weight  of  authority 
seems  to  be  that  notwithstanding  the  fact  that  the  claim  may 
be  reduced  by  application  of  the  property  held  as  security,  the 
holder  is  entitled  to  dividends  on  the  entire  amount.  A  re- 
ported case  so  holding  is  that  of  Jelke  vs.  Stallo.^*     Here  it  is 

See  §§553  and  554  as  to  claims  is  Besuden  vs.  Besuden,  57  O.  S. 

against  deceased  estate.  508 ;  7  C.  D.  459 ;  13  C.  C.  183. 

9  Jones  vs.  Ludlow,  6  C.  C.  57 ;  3  i*  1  N.  P.  29 ;   1  Dec.  43. 

C.  D.  348.  I  arn  informed  that  in  the  unre- 

10  Lally  vs.  Farr,  6  N.  P.  73 ;  9  ported  case  of  Lloyd  vs.  Western 
Dec.  119.  Natl.  Bank,  54  O.  S.  681,  the  Supe- 

11  See  Connor  vs.  Stewart,  7  N.  P.  rior  Court  has  aflil-med  such  a  rul- 
167;   2  Dec.  466.  ing- 

12  §  6354  R.  S.    (§   1632). 


§  1631  ASSIGNMENT PRESENTATION    OF    CLAIMS  1424 

held,  "  A  creditor  is  entitled  to  an  allowance  of  his  claim  as  it 
stood  at  the  date  of  the  assignment  of  the  debtor,  and  to  receive 
dividends  on  the  whole  claim,  notwithstanding  the  fact  that  sub- 
sequent to  the  assignment,  and  prior  to  the  presentation  of  the 
claim  for  allowance,  the  creditor  had  subjected  collaterals  held 
by  him,  and  applied  the  proceeds  on  account  of  the  claim ;  pro- 
vided only  that  he  shall  not  receive,  altogether,  more  than  the 
amount  of  his  claim." 

Another  case  holding  the  same  way  is  that  of  Cromwell  vs. 
Herron.^^  In  this  case  it  is  said,  "  When  the  question  was 
first  presented  to  us,  I  believe  all  of  the  members  of  the  Court 
were  of  the  opinion  that  the  latter  was  the  true  and  equitable 
rule,  and  in  the  absence  of  any  decision  by  the  Supreme  Court 
of  this  State,  we  felt  disposed  to  so  hold,  and  Judge  Cox  is  still 
of  the  same  opinion.  A  more  careful  consideration  of  the  many 
authorities  cited  to  us  has  led  Judge  Swing  and  myself  to  the 
conclusion  that  the  great  weight  of  authority  is  to  the  contrary. 
So  far  as  I  am  concerned,  I  come  to  this  conclusion  with  re- 
luctance, for  I  feel  that  it  is  not  the  most  equitable  rule." 

The  view  taken  by  these  eminent  Courts  has  never  appeared 
to  the  author  to  be  the  correct  and  just  rule.^^^  Tvliat  he  con- 
siders to  be  a  just  rule  was  laid  down  in  a  decision  by  him  In 
re  Spence,^^  and  which  was  as  follows :  "  A  preferred  cred- 
itor cannot  participate  in  a  dividend  among  general  creditors 
until  the  security  for  his  claim  has  been  exhausted.  All  such 
creditor  is  entitled  to  is  that  the  assignee  retain  sufficient  assets 
to  enable  him  to  share  yro  rata  with  the  general  creditors  on 
the  amount  of  his  claim  remaining  unpaid  after  the  proceeds 
of  his  security  has  been  applied  thereon."  ^' 

In  addition  to  the  reason  set  out  in  this  opinion,  to  which  the 
author  still  adheres,  are  those  which  may  be  found  in  sec.  11137, 
G,  C,  where  it  is  required  that  the  claimant  must  set  forth  the 
fact  whether  he  holds  any  collateral  or  personal  security.  The 
object  of  this  statutory  provision  would  seem  to  be  that  the 

15  11  C.  C.  448;  5  C.  P.  196.  17  See  Searle  vs.  Brumback,  4  W. 
15a  See  article  in  111.  Law  Tvcview,       L.  M.  SCO. 

Oct.,     1920;     coinciding    by    R.    E.  iSee  Earrett  vs.  Reed,  W.  700. 

Clark,  atitlior  of  Clark  on  Receivers.  See  Lloyd  vs.  Western  Natl.  Bank, 

16  4  N.  P.  439;  7  Dec.  3£6.  30  Bull.  165. 

See  §  1G59,  Exceptions; 


1425  HOW   PRESENTED  §  1632 

general  creditors  have  a  right  to  have  such  security  applied  to 
the  indebtedness  before  the  claimant  could  participate  in  a  gen- 
eral distribution.*  Besides  the  Supreme  Court  has  indicated 
the  rule  to  be  ^^  that  there  should  he  an  equitable  division  of 
the  funds  of  an  assignor;  and  therefore  it  is  held  that  if  a  per- 
son neglects  or  fails  to  present,  his  claim  until  after  a  dividend 
has  been  made  and  declared,  that  he  is  entitled  to  the  same  per 
cent,  as  those  who  were  paid  in  a  distribution  before  made, 
provided  there  be  sufficient  funds  in  his  hands ;  and  the  entire 
policy  of  the  assignment  act  seems  to  be  opposed  to  the  doctrine 
announced  by  the  eminent  authorities  first  above  cited.^^ 

§  1632.     How  presented.    Affidavit,  etc. 

Eveiy  Claim  must  be  presented  m  writing,  and  it  must  have 
an  affidavit  attached  thereto.  It  differs  in  this  respect  from 
the  presentation  of  claims  in  the  administration  of  estates. 
There  the  administrator  may  require  an  affidavit  in  assig-n- 
ments,  the  statute  says  that  an  affidavit  shall  he  filed.  The 
following  is  the  statutory  provision  relating  thereto : 

"Each  person  presenting  and  filing  a  claim  against  the  estate 
of  the  debtor,  before  it  is  allowed  or  any  payments  made 
thereon,  must  make  and  file  an  affidavit  setting  forth  that  the 
claim  is  just  and  lawful,  the  consideration  thereof,  and  what, 
if  any,  set-offs  or  counter-claims  exist  thereto ;  what  collateral  or 
personal  security,  if  any,  the  claimant  holds  for  the  claim,  or 
that  he  has  no  security.  The  assignee,  or  trustee,  or  a  creditor 
may  examine  the  claimant  under  oatli  touching  such  collateral 
or  ether  security,  or  any  other  matter  relating  to  his  claim, 
within  such  time  and  under  such  regulations  as  are  prescribed 
by  the  probate  judge.  A  surety  of,  or  person  jointly  liable  with, 
the  assignor,  may  be  allowed  to  present  and  prove  the  claim  on 
which  he  is  so  bound;  but  the  dividend  thereon  shall  be  payable 
to  the  party  holding  it.  If  the  latter  proves  sucli  claim,  then 
tlie  rllowance  and  dividend  must  be  on  it  as  proved  by  him." 
[R.  S.  §6354.]=<> 

*  This     stTtemcnt     is     quoted     in  In  Ptate  Bank  vs.  Estorly,  48  Bull. 

Rtatn   vs.    Esterly,    GO    0.    R.    15,    as  009,  GO  0.  S.  15.  tlio  Supremo  Court 

showing  an  intention  as  claimed  by  has    finally    settled    this    matter    in 

the  autlior.  accord  with  the  views  of  the  author. 

18  Owen    vs.    Ramsdell,    .33    0.    S.  and    the   court   so    holds    that    there 

443.  should  be  an  cnuitable  distribution. 

10  Pee  §974,  WTicre  same  question  ""§  11137  G.  C. 
is  discussed. 


§  1633  ASSIGNMENT — PRESENTATION    OF    CLAIMS  1426 

§  1633.     Form  of  affidavit,  etc. 

There  is  little  ambiguity  in  the  above  section,  and  it  should 
be  strictly  followed.  If  the  claimant  holds  collateral,  the  affi- 
davit must  so  state,  or  if  he  is  security,  it  should  so  state.  Pro- 
ceedings to  examine  the  claimant  in  reference  to  the  validity 
of  such  claim  might  be  had  similar  to  those  provided  under  sec. 
11113,  G.  C,-^    The  following  is  a  form  generally  used : 

The  State  of  Ohio, County,  ss. 

Before  me  personally  appeared  A.  B.,  who  being  duly  sworn,  says  he  is 
one  of  the  firm  of  A.  B.  &  Co.,  the  owners  of  the  claim  hereto  attached; 
that  said  claim  is  just  and  lawful;  that  the  consideration  therefor  is  gooda 
sold  and  delivered  to  C.  D. ;  that  there  is  now  due  and  unpaid  on  said  claim 

the  sum  of dollars  with  interest  thereon  at  the  rate  of  six 

per  cent,  per  annum  from day  of ,   190 .  .  ;   that  there 

are  no  set-offs,  nor  counterclaims  whatever  against  the  same;  that  said 
owners  have  (here  state  what  collateral  or  personal  security  the  claimants 
hold,  or  if  none  say)  no  security  whatever  for  the  same  to  the  best  of 
aflBant's  knowledge  and   belief. 


Sworn  to  before  me  and   subscribed   in   my   presence   this day  of 

,    190.. .22 


§  1634.     How  to  be  allowed  or  rejected. 

~  The  statute  makes  it  the  duty  of  the  assignee  to  endorse  his 
allowance  or  rejection  on  the  claim.  But  this  is  not  the  only 
way  in  which  a  claim  might  be  allowed  or  rejected.  It  is 
merely  a  conclusive  method  of  establishing  such  a  fact.  If 
there  is  no  endorsement  made  on  the  claim,  the  question  whether 
the  same  has  been  allowed  or  rejected  must  be  determined  from 
all  the  surrounding  circumstances,  and  the  same  rule  might  be 
applied  to  the  determination  of  this  fact  as  in  the  administra- 
tion of  deceased  persons'  estates. ^^  The  assignee  may  be  re- 
quired to  reject  the  claim  as  provided  in  the  following  section : 

§  1635.  When  claim  shall  be  disallowed  on  application  of 
assignor  or  creditor  and  proceedings  in  such  case.  "If  the 
assignor  or  a  creditor  files  in  tlie  court  a  written  requisition  on 
the  assignee  or  trustee   to   disallow  any   claim   or   claims  pre- 

21  §  1585.  §  560,  Rejection  of  claim,  where  this 

22  ^Tiittaker's  Pro.  Code.  matter  is  fully  considered. 

23  See  §  559,   Allowance  of  claim ; 


1427  PROCEDURE  UNDER   §  11136,   G.   c.  §  1636 

sented  wliicli  he  has  not  reported  as  disallowed,  and  enters  into 
bond  to  the  assignee  or  trustee  in  such  amount  and  with  such 
sureties  as  the  court  approves,  conditioned  to  pay  all  the  costs 
and  expenses  of  contesting  them  by  the  order  of  the  court,  they 
shall  be  disallowed,  altliough  theretofore  alloAved  by  the  as- 
signee or  trustee.  The  assignee  or  trustee  must  forthwith  give 
written  notice  thereof  to  the  creditor  or  creditors,  or  his  or  their 
attorneys;  whose  claim  or  claims  are  so  disallowed.  Thereupon 
the  same  proceedings  shall  be  had  as  required  in  other  cases  of 
disallowance  in  the  two  preceding  sections."      [R.  S.  §6353.]-* 

§  1636.     Procedure  under  §  11136  G.  C. 

The  above  section  is  very  much  similar  to  sec.  10724,  G.  C.^ 
in  the  administration  ^f  deceased  persons'  estates,^"  and  the 
comments  and  fonns  suggested  therein  can  easily  be  adopted  to 
a  procedure  under  the  above  section. ^*^  This  section  does  not 
apply  to  the  determination  of  the  priority  of  the  claim.  Such 
a  question  must  be  made  in  the  Probate  Court."^ 

§  1637.     When  suit  must  be  entered  on  rejected  claim. 

If  the  claim  is  rejected,  suit  must  be  brought  within  thirty 
days  after  the  same  has  been  rejected,  is  the  language  of  the 
statute,^®  and  the  Court,  in  the  settlement  of  the  trust,  may  de- 
termine the  matter  of  fixing  the  costs  provided  the  claimant 
recovered.  It  has  been  held  that  thirty  days  is  not  a  period  of 
limitation,  fecit  fixes  a  time  after  which  distribution  of  the  es- 
tate may  properly  be  made  without  regard  to  such  rejected 
claim,  if  suit  is  not  brought  within  the  thirty  days  after  its 
rejection.^^  It  will  therefore  be  seen  that  the  rule  is  different 
from  the  six  months'  limitation  required  in  case  a  claim  is  re- 
jected by  an  administrator  of  an  estate.  The  law  there  being 
that  if  suit  is  not  brought  within  such  time  the  claim  is  forever 
barred.^"     But  the  onlv  effect  of  not  suing  the  claim  within  the 

^*§  in3€  G.  C.  7  N.  P.  391;   5  Dec.  167;   Pettibone 

25  See  §561.  Manuf.  Co.  Assgmt.   3  N.  P.  42;   4 

-•M.562,  Comments;   §563,  Eequi-  Dec.  123. 

sition  to  reject  claim;   §564,  Bone?;  28  §  6352  R.  S.   (§  1628). 

§505,  Entry  ordering  notice;   §566,  29  Kittredge  vs.   Miller,    12   C.  C. 

Form  of  notice.  128;  5  C.  D.  390. 

27  Graham  Lumlior  Co.  vs.  Julien.  •''"  See  §  009  et  seq. 


§  1638  ASSIGNMENT — PRESENTATION    OF    CLAIMS  142S 

required  time  here  is  tliat  the  creditor  may  lose  his  right  to 
participate  in  a  dividend.  An  action  may  he  brought  any  time 
that  there  are  assets  unadministered.^^ 


§  1638.     In  what  Court  action  to  be  brought. 

The  language  of  the  statute  is  that  the  person  "  shall  be  re- 
quired to  bring  suit  against  the  assignee  or  trustee,  etc."  If 
this  statutory  provision  had  been  made  with  the  present  idea 
prevailing,  as  to  the  power  of  the  Probate  Courts,  it  might  very 
well  be  contended  that  a  suit  might  be  brought  in  the  Probate 
Court  compelling  an  assignee  to  allow  anlaim,  but  the  probabil- 
ities are  that  the  Legislature  intended  that  such  action  should 
only  be  brought  in  a  Court  of  general  jurisdiction,  and  such  has 
been  the  holding  of  at  least  one  Circuit  Court,  in  Meader  vs. 
Root,^"  and  has  been  the  general  accepted  idea  of  the  bar  for  a 
number  of  years.  Power  to  hear  such  an  action  could  have 
been  veiy  properly  conferred  on  the  Probate  Court,  as  the  ac- 
tion is  purely  equitable,^^  and  is  not  triable  by  jury.^* 

Suit  is  synonymous  with  action,  and  the  proceeding  is  a  civil 
action  and  not  a  special  proceeding.^^  The  only  question  that 
can  be  determined  in  such  a  proceeding  is  whether  or  not  the 
assignee  should  allow  the  claim. ^®  The  Probate  Court  has  full 
and  complete  jurisdiction  to  settle  the  question  as  to  priority  of 
different  claims.  A  suit  to  prevent  the  allowance  of  a  chattel 
mortgage  must  be  brought  in  the  Probate  Court.^^ 

3iKeIley   &   Son   vs.    Mills,    1    N.  32  n  c.  C.  81;  5  C.  D.  61. 

P.  382 ;   2  Dec.  265.  ss  Gordon  vs.  Walton,  3  C.  C.  433 ; 

Failure  to  sue  within  thirty  days  2  C.  D.  246. 

from   the   rejection   of    claim    by   a  34  Kennedy  vs.  Thompson,  3  C.  C. 

trustee,  or  to  present  the  claim  for  446 ;   2  C.  D.  254. 

allowance   within   six   months   from  35  id.  448. 

publication  of  notice  of  the  appoint-  3g  Clapp  vs.  Banking  Co.,  50  0.  S. 

ment  of  the  trustee,  does  not  bar  the  534. 

creditor   from   contesting  his   claim  See  also  Wrightson  vs.  Bettinger, 

and   having   it   allowed   after   these  Assignee,  2  C.  C.  381 ;   1  C.  D.  543. 

periods     have     elapsed.     Irwin     vs.  37  Graham  Lumber  Co.  vs.  Julien, 

Lloyd,  20  C.  C.  339;    11   C.  D.  212.  7  N.   P.    391:    5   Dec.    167. 


1429  REPORT  OF  CLAIMS  FILED  §  1639 

§  1639.     Report  of  claims  filed. 

The  statute  requires  that  immediately  after  the  expiration 
of  six  months,  the  assignee  shall  file  a  report  of  all  claims  pre- 
sented.^^ It  seems  that  the  assig;nee  is  allowed  two  months  for 
the  purpose  of  paying  preferred  claims  and  filing  his  account 
upon  which  a  general  distribution  is  to  be  allowed.  Although 
if  a  claim  were  presented  before  the  order  of  distribution  was 
made,  even  though  the  six  months  had  expired,  the  holder 
would  be  entitled  to  participate  in  the  general  dividend.  The 
following  form  suggests  what  it  should  contain: 

STATEMENT  OF  CLAIMS  PRESENTED, 

In  the  Probate  Court  of Couuty,  Ohio. 

In  the  Matter  of  the  Assignment 

for  the  benefit  of  the  creditors  of 

Assignor. 

Assignee. 

Statement  of  claims  presented  to ,  assignee  of 

,  assignor  for  the  benefit  of  creditors,  in  the  Probate  Court  of 

county.   Ohio,  within   six  months   from    the   time   of 

the   publication   of    the   notice   of   appointment    of    said   assignor,    to-wit: 

from   the day   of A.   D.    190..,   to   the day   of 

A.   D.   190... 

Claimants   

Postoffiee  address    

Amount  of  claim $ 

Interest  from $ 

Eate  of  interest $ 

Allowed — rejected — held  under  advisement.      (State  which.) 
Date  of  allowance  or  rejection 

RECAPITULATION. 

Total  amount  of  claims  presented .  $ 

Total  amount  of  claims  allowed $ 

Total  amount  of  claims  rejected $ 

Total   amount  under   advisement $ $ 


Assignee  of. 
38  §  11134  G.   C,    $  1628. 


§  1640  ASSIGNMENT PREFERRED    CLAIMS  1430 


CHAPTER  XCI. 

PAYMENT  OF  PREFERRED  CLAIMS. 

§  1640    Introductory.  §  1646    Lien    existing    at    time    of 
§  1641     Costs   of  administration.  assignment. 

§  1642     Commission   of   assignee.  §  1647     Claims  preferred  by  statute. 

§  1642a  Further   allowance;    counsel  §  1647a  Lien  and  security. 

fees.  §  1648     Taxes. 

§  1643     Ordinary   services.  §  1649     Labor    claim    under    §  11138 
§  1644     Extraordinary  services.    At-  G.   C. 

torney   fees.  §  1650     Liens  on  §  8339  G.  C. 

§  1645     Itemized  bill.    Affidavit,  etc.  §  1651     Miscellaneous    matters,     re- 
lating  to  labor  claims. 

§  1640.     Introductory. 

While  the  statute  does  not  require  an  accounting  to  be  made 
until  eight  months  after  the  appointment  and  qualification  of 
the  assignee/  yet  it  is  evidently  contemplated  that  prior  to  such 
accounting  certain  claims  against  the  estate  should  be  paid, 
for  upon  the  confirmation  of  the  report  or  account  a  distribution 
is  to  be  made  to  general  creditors.  These  claims  that  ought 
to  be  paid,  before  an  account  is  filed,  may  be  designated  as  pre- 
ferred claims,  and  may  be  classified  under  three  heads.  First, 
costs  of  administration,  which  would  include  the  costs  of  the 
Court,  the  care  and  management  of  the  estate,  etc.,^  commis- 
sion of  assignee,  etc. ;  second,  liens  either  in  the  form  of  mort- 
gage or  judgment  existing  at  the  time  of  the  assignment ;  third, 
those  given  a  preference  by  statute.^  These  will  be  considered 
in  their  order. 

§  1641.     Costs  of  administration. 

The  costs  of  administering  the  estate  ought  always  to  be  paid 
in  preference  to  any,  other  claim,  but  some  difficultv  has  been 

1  §  11140  G.C.,  §1653.  See    §646,    as    to   order    and    pay- 

2  See  §  506  et  seq.,  as  to  adminis-  ment  of  debts  in  administration  of 
tration  of  estates.  estates. 

3§  11138  G.  C,  §  1647. 


1431  COST    OF    ADMINISTRATION  §  1641 

experienced  by  the  Courts  in  adjusting  costs  between  various 
creditors  of  an  estate  whose  claims  are  entitled  to  a  different 
order  of  priority.  The  fund  receiving  the  benefit  of  an  admin- 
istration should  be  charged  with  the  costs  which  were  neces- 
sary for  its  preservation,  or  reducing  it  into  money  for  the  bene- 
fit of  the  owner.  As  a  general  rule,  it  may  be  said  that  the 
assignor  is  entitled  to  his  exemptions  free  from  the  costs  of  the 
assignment,  the  theory  of  the  law  being  that  exempt  property 
does  not  pass  to  the  assignee.*  A  mortgage  lien  holder  is  not 
to  be  charged  with  the  general  costs  of  administration.  He  is 
only  to  be  charged  with  the  costs  that  are  incident  to  his  par- 
ticular fund.^ 

Where  the  property  is  covered  by  liens,  and  is  not  sufficient 
to  pay  all  of  them,  where  the  liens  have  different  priorities,  a 
doubt  has  been  expressed  as  to  whether  those  which  come  first 
in  order  are  entitled  to  be  first  paid  without  deduction  for  the 
costs  of  the  sale  and  assignee's  commission,  and  the  burden  of 
these  be  placed  on  those  who  are  last  in  priority ;  or  whether 
the  lienholders  shall  contribute  thereto  ratably  without,  respect 
to  priority.^  The  Court  is  inclined  to  the  opinion  that  the  bur- 
den must  be  sustained  by  those  last  in  priority.^* 

It  has  recently  been  held  that  "  the  fees  and  allowances  of  an 
assignee  for  the  benefit  of  creditors,  for  services  rendered  to 
the  general  estate,  and  for  the  benefit  of  the  general  creditors, 
are  not  to  be  paid  from  funds  or  property  subject  to  specific 
liens  which  rest  upon  the  property  at  the  time  the  assignment 
is  made.      In  an  assignment  for  the  benefit  of  creditors,  where 

4  In  re  Marcy,  32  Bull.  6.  each  fund  any  expense  specially  in- 

In  this   case  it  was   said   "  That  cident   to   such   funds.     McLain   vs. 

the  costs  of  administration  shall  be  Simington,  37  0.  S.  660. 

paid   as   a  second   lien  out  of   said  s  Moore  vs.  Feldwisch,  3  Bull.  427. 

fund,   and   to   the  extent   any  costs  «  See  Alma  vs.  Fitton,  9  C.  C.  255; 

may  remain  unpaid  after  the  appli-  6  C.  D.  415. 

cation  of  such  surplus  of  such  fund,  «*  McLain  vs.  Simington,  37  0.  S. 
such  balance  of  costs  shall  be  paid  660;  Harrison  vs.  Chatfield,  12  C.  C. 
•pro  rata  out  of  the  funds  covered  294;  5  C  D.  553. 
by  the  several  m.ortgages  including  In  Strong  vs.  Strong,  42  O.  S.  53, 
this  Crane  mortgage,  in  proportion  it  is  said,  whatever  deficiency  there 
to  the  amount  realized  on  said  mort-  is,  must  fall  on  the  junior  lien  hold- 
gage    liens,    charging,    however,    to  or. 


§  1642  ASSIGNMENT — COMPENSATION   OP    ASSIGNEE  1432 

the  assignee  has  sold  property  encumbered  by  mortgage,  it 
would  be  reasonable  and  perhaps  lawful,  to  allow  to  the  as- 
signee fair  compensation  for  such  services  as  he  might  perform 
of  benefit  to  the  mortgagee  in  bringing  the  property  to  sale  and 
in  bringing  the  proceeds  applicable  to  the  mortgage  debt  unto 
Court/ 

^  1642.  Commissions  cf  assignee.  Further  allowance. 
Counsel  fees,  etc.  "Tefore  a  dividend  is  declared,  the  assignee 
or  trustee  may  be  allowed  the  fcllowing  commission  upon  the 
amount  of  the  personal  estate  collected  and  accounted  for  by 
him,  and  of  the  proceeds  of  the  real  estate  sold  under  an  order 
of  court  for  the  payment  cf  debts,  which  must  be  received  in 
full  compensation  cf  all  his  ordinary  services ;  for  the  first  thou- 
sand dollars,  at  the  rate  cf  six  per  cent ;  for  all  above  that  sum, 
and  not  exceeding  five  thousand  dollars,  at  the  rate  cf  four  per 
cent ;  for  all  above  five  thousand  dollars,  at  the  rate  of  two  per 
cent."     [R.  S.  §6357.]« 

§  1642a.  Further  allowances;  counsel  fees.  "Allowance  also 
shall  be  made  as  the  court  considers  just  for  necessary  expenses, 
and  extraordinary  expenses,  and  extraordinary  services  not  re- 
quired cf  an  assignee  in  the  common  course  of  his  duty,  and 
fiuch  reasonable  counsel  fees  as  were  necessary  for  the  proper 
administration  cf  the  assignment,  whether  performed  by  the 
assignee  cr  trustee  as  attorney,  or  such  other  as  he  employs. 
No  such  further  allowance,  extraordinary  expenses  or  services, 
or  attorney  fees,  shall  be  made  unless  a  bill  of  items  is  filed, 
showing  such  actual  and  necessary  or  extraordinary  expenses 
and  services,  or  attorney  fees,  together  with  the  affidavit  of  the 
person  incurring  such  expenses  or  performing  such  services,  that 
they  were  done  for.  and  were  necessary  to,  the  assignment ;  that 
the  amount  charged  therefor  is  reasonable,  and  not  more  than 
is  usually  paid  for  such  services.  When  such  services  have  been 
performed  by  persons  other  than  the  assignee  or  trustee,  the 
latter  also  must  file  an  affidavit,  stating  tJiat  such  ser\dces  were 
necessary  for  the  proper  administration  of  the  assignment,  that 
they  were  performed  under  his  direction,  that  the  charges  there- 
for are  fair  and  reasonable,  and  that  the  full  amount  thereof 
has  been  paid  to  the  party  performing  such  services."  [R,  S. 
§6357.]'^* 

7  Reed  vs.  Terhune,  22  C.  C.  544.  the   assignee    continues   business   he 

8  §  11143  G.  C.  accepts  the  terms  of  the  lease  made 
8  §  11144  G.  C.  previously  by  the  assignor.  In  re 
Rents  becoming  due  after  assign-  Assign,  of  Frank  W.  Hopkins,  5  0, 

ment    are    preferred    claims,    and    if       L.  R.    178;   52  Bull.  403. 


1433  ASSIGNMENT ORDTN^VRY    SERVICES  §  1643 

§  1643.     Ordinary  services. 

The  statute  divides  the  compensation  of  an  assignee  into  two 
kinds,  ordinary  and  extraordinary.  The  ordinary  sei-vices  are 
fixed  upon  the  same  basis  as  an  administrator  in  the  adminis- 
tration of  estates.®  Under  either  designation,  they  are  prop- 
erly costs  of  administration.  The  percentage  is  calculated 
upon  the  money  that  is  collected  and  accounted  for  and  proceeds 
of  real  estate  sold  imder  an  order  of  Court  But  it  must  be 
money  that  has  been  actually  received  and  accounted  for,  and 
if  the  real  estate  is  bid  off  by  a  mortgage  creditor,  whose  mort- 
gage lien  covers  the  entire  amount  of  the  sale,  the  assignee  is 
not  entitled  to  percentage,  although  he  might  be  entitled  to  ex- 
traordinary services  in  having  the  property  sold.^*'  Money 
not  belonging  to  a  trust  fund  cannot  be  considered  in  determin- 
ing the  commission,^^  nor  can  commission  be  charged  on  the 
same  amounts  by  the  assigTiee  and  his  successor.  If  there  is  a 
maladministration  of  the  estate,  no  compensation  in  any  form 
will  be  allowed.^^ 

§  1644.     Extraordinary  services.     Attorney  fees. 

The  Court  may  make  such  allowance  as  is  just  and  reason- 
able for  necessary  expenses  and  extraordinaiy  expenses,  and 
such  reasonable  attorney  fees  as  may  be  necessary  for  the  proper 
administration  of  the  assignment,  whether  performed  by  the 

9  See  §  654  ct  scq.  per  cent,  upon   the  next  four  thou- 

10  Andrews  vs.  Johns,  59  0.  S.  sand  and  two  per  cent,  upon  the 
65;  Shaw  vs.  5th  Ward  Bldg.  Ass'n,  balance,  and  it  is  not  within  the 
6  C.  C.  41 ;  3  C.  D.  340 ;  Owsley  vs.  jirovinee  of  this  Court  to  increase  or 
Murphy,  37  Bull.  24G.  diminish  it  even  in  the  case  of  mal- 

11  Commercial  Bank  Assignment,  administration.  The  expression  hy 
3  N.  P.  193;  4  Dec.  440.  the    Circuit    Court    in    the    Purcell 

12  7w  re  Purcell,  15  Bull.  311;  S.  matter  has  been  determined  to  be 
C.  Goebel,  40.  mandatory  so  fai  as  as  this  court  is 

The  'Circuit  Court  must  have  hiid  concerned.     Reefer  Assign,   G  N.  P. 

down  a  di.Terent  rule.     For  in  In  re  340;  9  Dec.  326. 

Reefer,  Ferris,  J.,  says,  "an  assignee  This  accords  with  the  law  in  ref- 

is  entitled  to  six  per  cent.,  four  per  erence  to  an  oxecn^^or.     §  055. 

cent,    and    two    per    cent. — six    per  See  §  659,  Extra  compensation  to 

cent,   upon  the  first   thousand,   four  administrator. 


§  1644  ASSIGNMENT EXTRAORDINARY    SERVICES  1434 

assignee  himself  or  by  some  person  employed  by  him.  But 
the  nature  of  sucli  services  shall  be  set  out  in  an  affidavit. ^^ 

Wh.at  is  meant  by  extraordinary  services  are  such  that  it  is 
not  presumed  that  an  assignee  of  ordinary  capability  is  able  to 
perfonn,  and  are  not  within  the  common  duties  of  an  assignee. 
Thus  it  v^as  held  that  the  employment  of  an  auctioneer  was  not 
extraordinary  services.^* 

In  reference  to  such  allowance  it  has  recently  been  said 
"  complaints  are  common  of  objectionable  practice  in  this  re- 
spect in  some  localities,  where  it  is  charged.  The  effect  seems 
to  be  to  conduct  assignments  as  though  they  had  been  provided 
primarily  for  the  benefit  of  assignees  and  their  attorneys.  The 
faith  of  the  people  in  the  impartial  administration  of  the  law 
by  the  Courts  would  be  enhanced  by  a  correction  of  the  abuse, 
if  it  exists,  and  by  the  adoption  of  methods  of  administration 
by  which  the  rights  of  creditors  may  be  fully  protected  and 
enforced,  and  the  trust  estates,  not  depleted  by  extravagant 
charges  and  costs ;  and  no  injustice  to  any  would  result."  ^^ 

Wliere  the  nature  of  the  services  are  such  as  are  beneficial 
to  the  lienholders,  the  allowance  should  be  made.^®  If  an  at- 
torney has  been  employed  and  his  fees  are  reasonable,  the  mere 
fact  that  a  succeeding  trustee  refuses  to  make  payment,  will 
not  justify  the  Probate  Court  in  rejecting  the  claim. ^"  A  co- 
trustee may  legally  employ  an  attorney,  who  will  be  entitled  to 
compensation.^*  As  to  what  are  proper  allowances,  the  same 
rule  would  apply  as  in  the  administration  of  deceased  persons' 
estates.^® 

13  §  11143   G.    C,    §  1642.  Ass'n,  6  C.  C.  41 ;  3  C.  D.  540;  In  re 

The  law  applicable  to  administra-  Baker,    47    Bull.    557 ;    Richter   vs. 

tors  as  to  extra  compensation  might  Schoenfeldt,  1  Bull.  133;  Claflin  vs. 

be  followed.     §  659.  Goebel,  7  C.  C.  384;  4  C.  D.  645. 

14  Ingham  vs.  Lindemann,  37  0.  S.  it  Kittredge  vs.  Miller,  12  C.  C. 
218.  128;   5  C.  D.  391. 

It  seems  to  the  author,   that  the  is  Commercial    Bank    Assignment, 

Court  rather  stretched  the  ordinary  3  N.  P.  193;  4  Dec.  440. 

duties  of  an  assignee,  when  it  held  is  See  §§  508.  509  and  510. 

that  the  duty  of  an  auctioneer  comes  A  fee  of  $1,250  for  ten  days'  of 

within  such  duties.  almost  exclusive   service  by  an  at- 

15  Reed  vs.  Terhune,  22  C.  C.  544.  torney  to  an  assignee  of  a  bank  with 
isSchaw     vs.     5th     Ward     Bldg.  large   assets    and    liabilities    is   not 


1435  ASSIGNMENT — COMPENSATION    OF    ASSIGNEE  §  1645 

§  1645,     Itemized  bill.     Affidavit,  etc. 

Before  an  assignee  can  be  allowed  compensation  for  extraor- 
dinary services,  whether  the  same  be  rendered  by  himself  or 
another,  the  statute  is  mandatory  that  it  shall  not  be  allowed 
by  the  Court,  unless  a  bill  of  items  be  filed  showing  such  ex- 
penditures to  be  actual  and  necessary.  The  statute  is  likewise 
express  that  the  Court  shall  not  allow  such  claims  unless  a  spe- 
cial afhdavit  is  made  thereto,  and  that  the  amount  charged  is 
reasonable  and  not  more  than  is  usually  paid  for  such  services.^" 

It  must  also  show  where  the  sei'vices  were  rendered  by  a 
person  other  than  the  assignee,  that  the  bill  had  actually  been 
paid,  but  such  services  are  deemed  paid  where  the  attorney 
holds  a  check  of  the  assignee  for  the  sum,  even  though  the  check 
has  not  been  presented.^^  The  following  may  be  used  as  a  form 
of  afiidavit: 

Affidavits  as  to  attorney  fees. 

Probate   Court, County,   Ohio. 

In  the  Matter  of  tlie  assignment  of 


No 

Counsel   Fees. 
The  State  of  Ohio, 

County,   ss. 

Affidavit  of  Attorney. 

being  duly  sworn,  says  that  he  is  an  attorney  at  law 

of County,  O. ;   that  he  rendered  valuable  legal  services 

to as  assignee  of as  set  forth  in  the  bill 

of  items  hereto  attached  and  marked  Exhibit  "  A."  That  said  services 
were  performed  for  and  were  necessary  to  the  proper  administration  of 
said  assignment,  and  that  the  amount  charged  therefor  is  reasonable,  and 
not  more  than  is  usually  paid  for  such  services. 


Sworn  to  before  me  and  signed  in  my  presence,  this day  of . 

A.  D.    190.. 


excessive.      Nor   is   $3,750   excessive  allowed.      ( The    C'ommon    Pleas    in- 

for    three    months'    further    service.  creased  this. )     Purcell's  Assignment 

Commercial     Bank     Assignment,     4  ...     Goebel,    1G9. 

Dec.  440;   3   N.  P.   193.  20  Challin  vs.  Goebel,  7  C.  C.  385; 

Three  per  cent,  is  a  proper  allow-  4  C.  D.  G45. 

ance  for  extraordinary  services  irre-  §  11143  G.  C,   §  1642. 

spective  of   the  number  of  trustees.  21  Commercial    Bank    AssignnKiiit, 

e.  g.,  .$2,700    for  collecting  $90,000,  3  N.  P.  193;  4  Dec.  440. 

and  if  the  ascertainment  of  wlio  the  See   §  (J59,  Extra  compensation  to 

creditors  are   is  erroneous,  expenses  administrators, 
of  clerk,  office  and  attorney  will  be 


§  1G46  ASSIGNMENT — COMPENSATION    OF    ASSIGNEE  1436 

i'he  State  of  Ohio, 

County,  ss. 

Affidavit  of  Assignee. 

,  assignee  of ,  being  duly  sworn,   says 

the  services  described  in  the  bill  of  items  attached  to  the  foregoing  affidavit, 
were  necessary  for  the  proper  administration  of  the  said  assignment;  that 
said  services  were  performed  under  the  direction  of  affiant;  that  the 
charges  for  the  same  are  fair  and  reasonable,  and  that  the  full  amount 

thereof  has  been  paid  to  said ,  who  performed  said  services. 

,  assignee. 

Sworn  to  before  me  and  signed  in  mv  presence,  this day  of 

A.   D.    190... 


§  1646.     Lien  existing  at  time  of  assignment. 

The  assignor  can  by  no  act  of  his,  change  the  status  of  his 
property  or  liens  thereon  existing  at  the  time  of  his  assign- 
ment Therefore  valid  liens  existing  at  the  time  of  such  as- 
signment must  be  paid  before  there  can  be  a  distribution  to 
general  creditors ;  and  in  this  sense  such  claims  are  preferred. 
There  seems  to  be  no  doubt  where  an  assignee  brings  an  ac- 
tion to  sell  the  real  estate  and  makes  all  lien  holders  parties 
defendant,  that  the  Court  may  distribute  the  fund  arising  from 
the  sale  of  such  real  estate  before  the  time  has  elapsed  in  which 
a  report  must  be  filed  in  the  Probate  Court.  The  statute  re- 
quires that  the  incumbrances  and  liens  shall  be  paid  out  of  the 
proceeds  according  to  their  priority  and  therefore  general  cred- 
itors have  no  right  in  the  part  required  to  be  applied  on  the 
liens,^^ 

It  might  likewise  be  said,  that  if  the  Court  ordered  a  distri- 
bution to  be  made  upon  a  chattel  mortgage  or  judgment  lien, 
that  the  general  creditors  had  no  interest  therein.  'But  upon 
this  question  there  is  a  difference  of  opinion.  One  Circuit 
Court  having  held  that  no  distribution  can  be  made  until  the 
eight  months  have  elapsed,  even  on  chattel  mortgages,  unless 
notice  has  been  given  to  all  parties  having  an  interest,  in- 
cluding general  creditors. ^^ 

It  seems,  therefore,  that  the  only  safe  way  for  an  assignee 
to  do,  is  to  file  an  application  in  the  Probate  Court  asking  for 
an  order  determining  the  liens  and  in  some  manner  make  the 

22  Eeed  vs.  Terhume,  22  C.  C.  547.  See  Klaustermeyer  vs.  Trust  Co., 

23  Mooney  vs.  Lindley  Fogg,  10  C.  89  O.   S.   142,   as  to  wliat  will  con- 
C.  327;    10  C.  D.  551;   Sylvester  vs.  stitute  an  equitable  lien. 
Hesslein,  5  C.  C.  256;  3  C.  D.  128. 


1437  ASSIGNMENT — PREFERRED    CLAIMS  §  1647 

general  creditors  parties  and  give  them  proper  notice.  The 
assignee  might  pay  the  claim  and  make  a  report  thereof  in  his 
account  and  when  making  payment,  require  the  person  to  whom 
payment  is.  made  to  indemnify  him,  in  case  the  Court  in  passing 
upon  his  report  might  find  that  the  same  was  unlawfully  paid.-* 

§1647.  Claims  preferred  by  statute.  "Taxes  of  every  de- 
scri])tion  assessed  against  the  assignor  upon  personal  property 
held  hy  him  before  his  assignment  must  be  paid  by  the  assignee 
or  trustee  out  of  the  proceeds  of  the  property  assigned  in  pref- 
erence to  any  other  claims  against  the  assignor.  Each  person 
who  has  performed  labor  as  an  operative  in  the  service  of  the 
assignor,  within  twelve  months  preceding  the  assignment,  shall 
be  entitled  to  receive  out  of  the  trust  funds,  before  the  paying 
of  other  creditors,  the  full  amount  of  wages  due  for  such  labor, 
not  exceeding  three  hundred  dollars."     [R.  S.  §  6355.]-^ 

51647a.  Liens  and  securities.  "The  foregoing  provisions 
shall  not  prejudice  or  affect  securities  given,  or  liens  obtained 
in  good  faith,  for  value,  but  judgments  by  confession  on  war- 
rants of  attorney  rendered  within  two  months  prior  to  such 
assignment,  or  securities  given  within  such  time  to  create  a 
preference  among  creditors,  or  to  secure  a  pre-existing  debt 
other  than  upon  real  estate  for  the  purchase  money  thereof, 
shall  be  of  no  force  or  validity  as  against  such  claims  for  labor, 
in  case  of  assignment,  to  the  extent  above  provided."  [R.  S. 
§6355.  J -5* 

§  1648.     Taxes. 

The  statute  prescribes  that  all  taxes  shall  be  paid  in  prefer- 
ence to  any  other  claims  against  the  assignor,^^'^  and  it  has 
been  held  that  taxes  on  personalty,  charged  at  the  time  of  the 
assignment  is  a  claim  superior  to  chattel  mortgages  made  within 
two  months  before  the  assignment  to  secure  a  past  debt  or 
create  a  preference  and  that  labor  claims  are  superior  to  such 
mortgages  and  taxes  are  superior  to  labor  claims.^^ 

Whether  taxes  would  be  superior  to  the  claim  of  costs  of  the 
assignment    may   be   questionable.      But   it   is   a   question    that 

24  See  §  1592,  Troperty  taken  pos-           20  §  11138   G.    C,    §  1G47. 

session  under   lien,   etc'  27  Adair  vs.   Blackburn,   GQ  0.   S. 

23  §  11138  G.  C.  575. 

25*  §11139    G.    C.  See  §043,  taxes.     §511,  taxation. 


§  1649  ASSIGNMENT PREFERRED    CLAIMS  1438 

rarely  occurs,  as  tiie  taxes  are  usually  comparativelv  a  small 
sum ;  an  assignee  is  not  required  to  list  personal  property  in 
his  hands  for  taxation  while  the  estate  is  being  settled  in  the 
Probate  Court,  whether  such  property  be  in  the  form  .of  moneys, 
bills  receivable,  bonds,  certificate  of  stock  or  oth«^ revise, ^®  but  if 
the  assignee  was  conducting  a  business  for  the  benefit  of  the 
creditors,  then  the  projierty  used  in  such  business  would  be  sub- 
ject to  taxation  and  should  be  listed.^^ 

Eeal  estate  in  the  hands  of  an  assignee,  may  be  sold  by  the 
treasurer  for  unpaid  taxes  or  assessments,  and  the  treasurer 
may  include  the  ten  per  cent,  penalty.'^"  But  an  assignee  is 
not  liable  for  taxes  where  he  has  demanded  of  a  county  treas- 
urer the  tax  bills  against  his  assignor  and  pays  all  taxes  required 
of  him  where  such  bills  are  not  presented  until  after  the  estate 
is  settled.^^ 

§  1649.     Labor  claims  under  §  11138  G.  G. 

Two  sections  of  the  General  Code,  give  preference  to 
labor  claims,  to-wit,  sees.  11138  G.  C,  8339  G.  C.     Under  the 

iirst,  in  order  to  be  entitled  to  a  preference,  the  labor  must  be 

performed  by  one  as  an   "  operative  "   in  the  seondoe  of  the 

assignor.     As  to  what  will  constitute  a  person  an  operative, 

h^s  been  the  subject  of  numerous  decisions  in  our  State.     A 

secretary  of  a  manufacturing  company,  though  he  acts  as  an 

overseer   and   perfonns   manual   labor   is   not   an   operative.''^ 

And  where  a  president  was  also  vice-president,  having  control 

of  a  department,  with  power  to  hire  and  discharge,  his  claim 

was  not  entitled  to  preferenoe.^^ 

But  where  a  person  su|3erintends,   oversees   and  manages  a 

contract  to  build  a  private  street,  it  was  held  he  was  entitled  t-o 

28McXeill  vs.   Hagertv,   51   0.  S.  32  Green  vs.  Weller,  6  C.  C.  331; 

259.  3   C.  D.   43S. 

29  In   re   Assignment    of    Jackson  33  Hanner  vs.  The  JMaumee  Brew- 
Brewing   Co.,   5   X.   P.  43S;    6   Dec.  ing  Co.,  6  X.  P.  305;   S  Dec.  399. 
396.                                     •  Operator   does   not   include   a   di- 

30  Baker  vs.  French,  18  C.  C.  420;  rector  in  a  corporation  acting  as 
10   C.   D.   222.  bookkeeper  and  sometimes  as   ship- 

31  In  re  Assign,  of  Ehler,  4  X.  P.  ping  clerk.  In  re  Fairvie\y  Glass 
246;  6  Dec.  309.  Co.,  21  Dec.  822. 


1439  LABOR  CLAIMS  §  1649 

a  preference.^*  Likewise  a  director  of  a  corporation,  tliough 
he  perform  certain  manual  labor  is  not  an  operative.^^  But 
a  bookkeeper  who  was  also  a  traveling  salesman  could  claim 
his  priority.^®  A  salesman  in  a  jeweliy  store,  whose  duty  it  is 
to  take  customers  about  the  store,  etc.,  is  an  operative ;  the 
statute  is  to  be  liberally  construed.^'  The  Supreme  Court  has 
held  that  a  traveling  agent  to  obtain  subscriptions  and  selling 
a  legal  directory  and  collecting  accounts,  is  not  an  operativc.^^ 

"  Operative  "  is  not  to  be  confined  to  skilled  labor  nor  labor 
in  manufacturing,  but  a  common  laborer  may  be  entitled  to 
protection  under  the  statuta^'*  In  one  case  it  was  said  that 
where  a  relation  of  master  and  sen^ant  does  not  exist  between 
employer  and  employed,  the  employe  cannot  be  an  operative.'"' 

Thus  a  blacksmith  following  an  independent  calling,  cannot 
have  a  preference.  Likewise  an  electrician  who  did  repair 
work,  and  furnished  material  by  special  contract,  was  held 
not  to  be  an  operative,  but  could  be  protected  to  a  certain  extent 
under  sec.  8339,  G.  C.*^ 

It  has  also  been  held,  that  a  subcontractor,  who'  furnishes 
labor  to  a  principal  contractor  is  an  operative  and  entitled 
to  preference  where  the  principal  contractor  makes  an  assign- 
ment.*^ A  person  who  is  performing  labor  as  an  operative,  is 
entitled  to  his  claim  not  exceeding  three  hundred  dollars,  where 
the  labor  is  perfoi-med  within  twelve  months  preceding  tlie 
date  of  assignment. 

34 /n  re  Engle,  1  N.  P.  110;  1  Dec.  so  Akron  Iron  Co.  vs.  William  N. 

101.  Whitley,   25   Bull.   203;    Lowry  As- 

35  Williams  vs.  Southard,  40  Bull.  signment,  4  N.  P.  395 ;  7  Dec.  282. 
287.  <o  Lowry     Assignment,    4    N.     P. 

36  Hanner  vs.  Maumee  Brew.  Co.,  395 ;  7  Dec.  282. 

6  N.  P.  305 ;  8  Dec.  399.  ^i  Duhme  Assignment,  6  Dec.  526 ; 

37  In  re  Duhme  Assignment,  4  N.       4  N.  P.  294. 

P.  294;   6  Dec.  448.  ■»2  Whitney  vs.  Gill,  15  C.  C.  648; 

38  Sloan's    Assignment,    60    O.    S.       8  C.  D.  450. 
472;    S.  C.    13   C.   C.   229;    7   C.  D. 

Ill;  10  C.  D.  811. 


§  1650  ASSIGNMENT — PREFERRED  CLAIMS  1440 

§  1650.     Liens  on  under  (3206a,  R.  S.)  8339  G.  C. 

It  is  provided  in  sec.  8339,  "that  in  all  cases  where  prop- 
ertj''  cf  an  employer  is  placed  in  the  hands  of  an  assignee,  re- 
ceiver cr  trustee  claims  due  for  labor  performed  within  the 
period  cf  three  months  prior  to  the  time  such  assignee,  receiver 
or  trustee  is  appointed,  shall  be  first  paid  out  cf  the  trust 
funds  in  preference  to  such  other  clajms  cf  the  assignor  except 
claims  cf  taxes  and  costs  of  administering  the  trust."  This 
section  also  provides,  that  the  person  performing  the  labor, 
may  have  a  lien  upon  the  real  property.  But  in  case  of  as- 
signments, they  are  entitled  to  preference,  although  no  lien  has 
been  perfected.*^ 

Sees.  8339,  G.  C,  and  11138,  G.  C,  are  not  antagonistic,"^ 
and  a  person  may  assert  his  claim  under  either  section."' 
While  failure  to  perfect  the  lien  may  affect  the  claim  as  a  lien 
on  real  estate,  yet  preference  under  the  statute  would  not  be 
interfered  with."*'  It  will  be  observed  that  there  is  no  limit  to 
the  amount  under  8339,  G.  C,  except  that  it  must  be  for 
labor  performed  within  three  months  from  the  time  of  the 
assignment. 

§  1651.    Miscellaneous  matters,  relating  to  labor  claim. 

There  is  some  difference  between  the  wording  of  sees.  11138, 
G.  C,  and  8339,  G.  C,  as  to  the  priority  cf  labor  claims  in  ref- 
erence to  liens,  mortgages,  etc.  They  are  practically,  however, 
the  same,  and  should  be  construed  together.  If  a  lien  is  per- 
fected as  provided  in  sec.  8339,  G.  C,  then  such  lien  would 
be  superior  to  all  claims  for  homestead,  but  if  no  lien  was  per- 
fected, then  the  laborer  could  only  look  for  payment  of  his 
claim  out  of  the  personal  property  where  other  liens  might 
absorb  the  fund  arising  from  the  sale  of  the  real  estate.     A 

43  Trust  vs.  Miami  Oil  Co.,  19  C.  ^s  Whitney  vs.  Gill,  15  C.  C.  655; 
C.  727;   10  C.  D.  372.     '  8   C.   D.   450. 

44  Englc's  Assignment,  1  N.  P.  46  Evans  &  Co.,  Assignment,  2  N. 
110;   1  Dec.  101.  P.   77;    3    Dec.   166. 


1441  MISCELLANEOUS    MATTERS  §  1651 

chattel  mortgage  given  in  good  faitli  is  prior  to  the  claim  under 
sec.  8339,  G.  C.^^ 

In  a  recent  case  it  has  been  held,  that  a  chattel  mortgage  is 
subject  to  labor  claims  under  sec.  8330,  G.  C/^  No  doubt  if  a 
chattel  mortgage  is  made  within  two  months  of  an  assignment  in 
order  to  be  superior  to  labor  claims,  it  must  be  shown  to  have 
been  ho7ia  fide  and  not  to  create  a  preference  nor  for  a  past 
debt/^  "Vvliere  property  of  an  assignor  is  subject  to  a  prior 
levy,  the  labor  claims  do  not  attach,^"  and  so  it  has  been  held, 
that  where  property  was  left  on  contract  and  a  chattel  mort- 
gage was  given  for  the  unpaid  purchase  money,  a  labor 
claim  would  not  be  superior  to  the  chattel  mortgage.^^ 

While  it  is  held,  that  an  operative's  rights  to  a  lien  is  not 
assignable,^"  yet  where  a  superintendent  of  a  concern  which 
was  unable  to  pay  its  hands  advanced  money,  it*  was  held  that 
h©  was  subrogated  to  the  rights  of  such  persons  whom  he  paid,^^ 
and  that  a  merchant  who  fills  orders  for  operatives  given  them 
on  him  in  lieu  of  wages,  is  entitled  to  be  subrogated  to  the 
rights  of  such  operatives.^* 

Leaving  an  employment  in  the  middle  of  the  month  en  being 
informed  that  the  employer  cannot  pay,  does  not  forfeit  the 
lien,^^  nor  will  taking  the  employer's  notes,  waive  the  right  to 
priority.^** 

*7  Hobelman,   Assignment,  Goebel,  5i  Reefer's    Assignment,    6    N.    P. 

90.  338;   9  Dec.  320. 

48  Trust  Co.  vs.  Miami  Oil  Co.,  19  s-  Engle's    Assignment,    1    N.    P. 

C.  C.  727;  10  C.  D.  372.  110;   1  Dec.  101. 

it  rather  occurs  to  the  uTiter  that  ss  Standard  Wagon  Co.,   3   N.   P. 

it  was  not  the  intention  of  the  legis-  168;  4  Dec.  188. 

lature  to  allow  even  labor  claims  to  ^i  Jn  re  Minor   Fire   Clay   Co.,   7 

affect   a   prior   chattel   mortgage   in  N.  P.  .557;  9  Dec.  627. 

good  faith.     In  fact  such  is  the  ex-  ss  Trust    vs.    Miami    Oil    Co.,    19 

press  words  of   §§  11138  and   11139  c.  C.  727;   10  C.  D.  372. 

^'  p-  _.  ,,  ^    ^    ^„o  5c  Minor    Fire    Clay   Co.,    Assign- 

49Morey  vs.  Pierce,  11  C.  C.  563;  ^     _    ^^     „     rr-r      «    t^        po7 

5  C.  D    276  meut,    7    N.    P.    557 ;    9    Dec.    627 ; 

50  Hughes  vs.  Citv  Hall  Bank,  61      Kunkle  vs.  Reeser,  5  N.  P.  401;   5 
O.  S.  386;  S.  C.  Hughes  vs.  Dale,  10      Dec.  442. 
C.  C.  645 ;  9  C.  D.  270 ;  In  re  Evans, 
Assign,  2  N.  P.  77;  3  Dec.  160. 


§1652 


ACCOUNTS    AND   DISTRIBUTION 


1442 


CHAPTER  XCIL 

ASSIGNEE,  ACCOUNT  AND  DISTEIBTJTION. 


§  1652     Introductory. 

§  1656 

Assignee's    account. 

§  1653     Report    and     settlement    of 

§1657 

Filing    and    entry    orderinc 

assignee.       The     declaring 

notice. 

and  payment  of  dividends. 

§1658 

Hearing  account. 

§  1653a  Dividends. 

§1659 

Exceptions. 

§  1653b  Dividends   reserved. 

§1660 

Notice  to  creditors   of  divi- 

§ 1654     When   it  must  be  filed. 

dends. 

§  1655     What   it  sliould   contain. 

§  1661 

Report  of   payment. 

§  1652.     Introductory. 

Within  the  period  of  eight  months,  from  the  qualification  of 
the  assignee,  it  is  his  duty  to  report  to  the  Court  a  detailed 
statement  of  his  doings.  Within  tliis  time,  if  possible,  he 
should  have  converted  all  the  property  into  money.  But  if  this 
has  not  been  within  his  power,  exercising  ordinary  pi-udence, 
he  should,  notwithstanding,  file  his  report  and  make  a  dividend 
to  general  creditors  of  whatever  there  may  be  on  hand.  He 
should  have  paid  and  taken  vouchers  for  all  costs  in- 
cun-ed  in  the  administration  of  the  estate ;  he  should  likewise 
have  paid  all  preferred  claims  where  the  same  are  entitled  to 
preference  beyond  doubt  or  have  been  adjudicated  upon,  by  the 
Court.  If  there  are  any  claims  of  a  preferred  character  which 
are  doubtful  and  have  not  been  adjudicated^ upon,  they  should 
be  reported  in  the  account  as  entitled  to  preference;  and  then 
if  the  account  is  approved,  should  be  paid  before  a  general 
order  of  distribution  is  made.  The  statute  relating  to  such 
reports,  etc.,  is  as  follows:^ 


1  The  Probate  Court  has  povrer  to 
compel  an  assignee  to  account  for 
money  in  his  hands  and  on  his  fail- 
ure so  to  do  suit  may  be  brought  on 


the  bond,  when  there  is  an  order  of 
the  Probate  Court  fixing  his  liabil- 
ity. Voss  vs.  Loomis,  1  C.  C.  20;  1 
C.  D.  12. 


1443  ASSIGNMENT — REPORTS,   ETC.  §  1653 

§  1653.  Reports  and  settlements  of  assignee.  The  declaring 
and  payment  of  dividends.  "At  the  expiration  of  eight 
months  from  his  appointment  and  qualification,  and  as  often 
thereafter  as  the  court  orders,  an  account  must  be  filed  with  it 
by  such  assignee  or  trustee,  containing  a  full  exhibit  of  all  his 
doings  as  such,  up  to  the  time  of  filing,  together  mth  the  amount 
of  all  claims  remaining  uncollected,  and  the  amount  thereof 
which  in  his  opinion  may  thereafter  be  collected.  Exceptions 
may  be  filed  to  the  accounts  by  parties  interested,  in  the  manner 
provided  in  cases  of  accounts  of  administrators,  or  executors. 
Such  accounts  shall  be  examined,  and  the  exceptions  thereto 
heard  by  the  court,  in  the  manner  provided  by  law  for  the  set- 
tlement of  the  estates  of  deceased  persons.  Upon  the  filing  of 
such  accounts,  the  court  shall  fix  a  time  for  the  hearing,  and 
publish  notice  thereof  as  in  the  case  of  the  filing  of  the  account 
of  an  executor  or  administrator."     [R.  S.  §  6356.]^ 

§  1653a.  Dividends.  When,  on  settlement,  a  balance  is 
shown  in  the  hands  of  the  assignee  or  trustee,  subject  to  dis- 
tribution among  the  general  creditors,  a  dividend  shall  be  de- 
clared by  the  probate  judge,  payable  therefrom  equally  among 
all  the  creditors  entitled,  in  proportion  to  the  amount  of  their 
respective  claims  against  the  assignor,  including  those  disallowed, 
which  the  claimant  has  begun  suit  to  establish  as  hereinbefore 
required,  and  claims  held  under  advisement.  Notice  of  the 
making  of  such  dividend,  and  the  time  and  place  of  its  payment, 
shall  be  given  by  advertisement  once,  in  a  newspaper  published 
and  of  general  circulation  in  the  county  in  which  such  trast  is 
administered,  and  in  such  other  way  as  the  court  orders.  A 
report  must  be  made  within  sixty  days  after  the  date  fixed  of 
the  dividends  paid  and  of  tliose  uncalled  for  and  unpaid  at 
that  time.  The  court  then  shall  cause  a  new  notice  to  be  given 
to  the  owners  of  unpaid  dividends,  in  such  way  as  it  directs. 
If  not  demanded  within  twelve  months  thereafter,  they  must  be 
divided  pro  rata  among  the  other  creditors,  until  they  are  paid 
in  full,  and  any  remainder  to  the  assignor  or  his  legal  representa- 
tives."    [R.  S.  §6356.]-^* 

§  1653b.  Dividends  reserved.  "Dividends  reserved  for 
claims  disallowed,  or  held  under  advisement,  when  actions  to 
enforce  their  allowance  have  been  commenced,  shall  be  held  until 
the  actions  terminate,   when  they  shall  be  paid  on  claims  the 

2  §11140  G.  C.  2*  §11141  G.  C. 


§  1654  ASSIGNMENTS — ACCOUNT  1444 

allowance  of  which  has  been  ordered.  OtherATise,  they  must  be 
distril)uted  pro  rata  among  other  creditors  not  paid  in  full,  or 
refunded  to  the  assignor."     [R.  S.  §  6356.]==t 

§  1654.     When  it  nmst  be  filed. 

The  statute  is  positive  in  its  provision,  that  the  report  must 
be  filed  at  the  expiration  of  eight  months  from  the  qualification 
of  the  assignee  and  this  duty  should  be  enforced  by  the  Court. 
Of  course  if  a  delay  of  a  short  time  will  permit  the  assignment 
to  be  closed  in  full,  such  a  delay  might  be  tolerated.  But  if 
it  is  evident  that  such  cannot  be  the  case,  it  is  the  duty  of  the 
assignee  to  file  his  report  and  make  distribution  of  what  he 
has  in  his  hands.  If  he  delays  such  matter,  he  ought  to  be 
charged  with  interest  on  the  fund.  After  the  first  report  is 
filed,  then  another  report  may  be  filed  at  any  time  that  the 
Court  may  require.  The  action  of  the  Court  will  depend  upon 
the  circumstances  attending  each  case.  In  no  case  should  as- 
signees be  permitted  to  continue  a  trust  for  an  indefinite  time. 
Courts  should  require  vigilance  and  activity  on  the  part  of  the 
assignee  without  sacrificing  the  rights  of  creditors,  in  order 
that  the  estate  may  be  distributed  at  the  earliest  possible  time. 
Prolonged  settlements  do  not  usually  result  to  the  benefit  of 
those  interested.  Possibly,  sometimes^  it  may  result  to  the 
interest  of  the  assignee.^ 

§  1655.     What  it  should  contain. 

The  statute  provides  that  the  report  shall  contain  a  full  ex- 
hibit of  all  his  doings  as  such  assignee  up  to  the  time  of  the 
filing  thereof,  together  with  the  amount  of  all  claims  remaining 
uncollected  and  the  amount  tliereof  which  in  his  opinion  may 
thereafter  be  collected.  This  means  that  the  assignee  shall 
set  out  in  detail  all  moneys  collected  and  disbursements  made, 
in  this  respect  it  i§  very  much  similar  to  the  account  of  .an 
administrator  and  the  discussion  made  in  the  chapter  relating 

-t'  11112  G.  C.  cording    to    domicile.      Johnson    vs. 

•i  Distrihution    must  be    made    ac-       Sharp,  31   0.  S.  611. 


1445  assignee's  account  §  1656 

thereto  can  be  read  with  profit  in  reference  to  an  assignee's 
account.* 

The  following  form  will  suggest  many  of  the  requisites  re- 
quired by  the  statute : 

§  1656.     Assignee's  account. 

In   the   matter   of   the   assignment   of in   trust   for   the 

benefit  of  creditors, and  final  account  current 

,  assignee,  .of assignor.  ..     In  account  with 

said  trust  before  the  Probate  Court  of Co.,  0. 

Charge self as  follows: 

To  amount  received  from $ 

To  amount  received  from  collection  of  notes  and  accounts 

(not  above  stated)   as  per  schedule  hereto  attached,  and 

made  part  hereof,  marked  No.  1 $ 

Balance  on  former  acc't  filed 190 .. , $ 


Total  amount  charged $ 

Said  accountant  claims  credits  on  account  of  payments  and  disbursements 
made  on  behalf  of  said  trust,  as  follows,  to-wit: 
1.  On  account  of  costs  of  assignment,  as  follows: 

Paid  to  Probate  Judge as  per  vouchers   1-2     $ 

Assignee's  commission — 

6  per  cent,  on  first  thousand ....      $ 

4  per  cent,  on  next  four  thousand     $ 

2  per  cent,  on  all  above  $5,000.00     $ 


Assignee's  further  allowance,  made  by  Court  on  ac- 
count of  actual  and  necessary  expenses  and  extraor- 
dinary  expenses   and   services 

And  attorney's   fees 

As  per  bill  of  items,  duly  sworn  to  and  filed  herewith 
as    follows :     


SCHEDULE    A. 

Statement  of  claims  upon  which  a  dividend  of per  cent,  can 

be  declared,  as  stated  in  said  assignee's  foregoing  account,  out  of  a  balance 

of  $ remaining  in  his  hands  subject  to  distribution  among 

general  creditors.     Interest  computed  to 190 . . . 

Claimants    $ 

Original    claim    $ 

Interest  from per  cent .$ 

Held    under    advisement $ 

Rejected — Proceedings   commenced    $ 

Allowed   $ 


UECAPITULATION. 

Total    amount    chargeable $  ■ 

Total    amount    credited $ . 

Balance  remaining  in  hands  of  assignee — subject  to   dis- 
tribution  among   general    creditors $ . 


*  See  §  725  in  reference  to  prepar- 
ation of  account. 


j;  1(357  ASSIGNMENTS — ACCOUNT  1446 

— ^A  dividend  of %   can  be  declared,   payable  out 

of  such  balance,  equally  among  all  the  creditors 
entitled,  in  proportion  to  the  amount  of  their  re- 
spective claims  against  the  assignor  of  which 
claims — 

Those  allowed   as  valid,   amount  to $ 

Those  disallowed,  as  to  which  the  claimant  has  begun  pro- 
ceedings   to   establish,    amount    to $ 

And  those  held  under  advisement,  to $ 


Total :     $. 


— As  per  schedule  marked  "  A,"  hereto  attached  and  made 
a  part  of  this  account. 

— Said  dividend  of %   will   be  the   sum  of $ 

Leaving    $ a    balance    to    be    hereafter 

accounted  for. 
— The   claims    remaining   uncollected,    owing   to    the    estate   of    the   said 

assignor — amount  to  $ ,  and  the  amount  thereof,  which  in  the 

opinion   of   the  assignee,  .may  hereafter    be  collected,   will   be  the  sum  of 


AFFIDAVIT. 

The  State  of  Ohio, County,  ss. 

,  assignee,  .above  named,  being  duly  sworn,  say.  .that 

the  foregoing  account,  and  the  vouchers  and  schedules  therein  referred  to, 
present  a  full  and  correct  statement  and  exhibit  of .  .h.  ..  .administration 
of  said  trust  to  the  time  of  the  filing  hereof  (except  as  shown  by  former 
accounts )    as .  .  h .  .  .  .  verily  believe .  . . 

Sworn   to   before   me   and   subscribed    in   my   presence  this day   of 

A.  D.    190.  .. 

,  Probate  Judge. 

,  Deputy  Clerk. 

§  1657.     Filing  and  entry  ordering  notice. 

Upon  the  filing  of  an  account  it  is  the  duty  of  the  Court  to 
fix  a  time  for  hearing  ar)d  publishing  notice  thereof,  the  same  as 
in  the  case  of  filing  an  executor's  or  administrator's  account.^ 

The  form  of  such  notice  can  readily  be  adopted  from  that  re- 
quired in  the  accounting  of  an  administrator.®  The  entry  there- 
fore may  be  in  the  following  form: 

{Title.) 

This  day  came  A.  B.,  assignee  of  C.  D.,  and  filed  in  this  Court  for  settle- 
ment his  first    (second  or  final)    account.     It  is  thereupon  ordered  by  the 

Court,  that  said  account  be  set  for  heaiing  on  the day  of 

A.  D.  190. .,  and  that  due  notice  thereof  be  published,  as  required 

by  law." 

s  See  §  11201  G.  C.    (  §  729) .  ^  This  notice  must  be  not  less  than 

8  §  730.     See  also   §  731  as  to  re-  three   weeks   and   ought  to  be  in  a 

gard  of  publication;   §732  as  to  im-  newspaper  of  general  circulation  in 

portance  of   notice.  the  county.      §11201  G.  C.    (§729). 


1447  HEARING    .ACCOUNT  §  1658 

§  1658.     Hearing  account. 

The  same  rule  applies,  as  to  the  hearing  of  accounts,  as  to  ad- 
ministrators,* and  what  was  there  said  is  applicable. 

§  1659.     Exceptions. 

Exceptions  are  to  be  taken  and  made  in  the  same  manner  as 
exceptions  are  taken  and  made  in  the  accounts  of  administra- 
tors.® Reference  is  therefore  made  to  the  discussion  of  that 
matter  under  the  head  of  administrator's  account.^" 

When  the  account  is  approved  and  tliere  is  a  balance  remain- 
ing on  hand,  then  there  shall  be  made  an  order  of  distribution. 
The  form  of  an  entry  in  such  a  case  may  be  as  follows : 

Probate  Court, County,  Ohio. 

In  the  matter  of  the  assignment 
of  A.  B.  to  C.  D. 

Account   approved,   dividend   or- 
dered, etc. 

It  appearing  to  the  Court  that  notice  of  the  filing  of  the  account  of  C.  D., 
assignee  in  said  matter  for  partial   (or  final  settlement)  Avas  duly  given  by 

publication  in ,  a  newspaper  of  general  circulation  in  said 

county,  and  said  account  coming  on  this  day  to  be  heard,  and  no  exceptions 
having  been  filed,  the  Court  upon  examination  of  the  same,  find  it  to  be 
in  all  respects  true  and  correct. 

The  Court  further  finds  that  the  said  assignee  has  received  the  sum  of 

$ ,  that  he  is  entitled  to  credit  in  the  sum  of  $ , 

and  that  there  remains  a  balance  in  his  hands  of  the  sum  of 

dollars,  for  distribution  among  the  general  creditors.  The  Court  do  further 
find  that  the  claims  that  have  been  presented  to  said  assignee,  including 
those  disallowed  and  in  litigation,  and  those  under  advisement,  amount  in 
all  to  the  sum  of  $ 

Tt  is  therefore  ordered  that  said  account  be  and  the  same  is  hereby 
confirmed.  And  it  is  further  ordered  by  the  Court  that  said  assignee  pay 
upon  the  claims  that  have  been  presented  and  allowed,  and  those  that  maj 

hereafter  be  allowed,  a  dividend  of per  cent,  on  and  after  the 

day  of A.  D.  190 .. ,  at and  that  of  the 

time  and  place  of  said  payment  said  assignee  give  notice  by  (here  state  ho'W 
notice  to  be  given). 

,  Probate  Judge^i 

8  §  11202  G.  C,  §  733.  §  740,  Evidence. 

9  §  11140  G.  C,  §  1C53.  11  It  should   be  remembered   here, 

10  §  734.  When  no  exceptions  are  that  only  such  persons  are  entitled 
filed.  to  participate  in  the  dividends  whose 

§  736    Exceptions.  claims  have  been  presented  and  al- 

§  737,   Form  of  exception.  lowed.     If  there  are  claims,  in  liti- 

§  738,  Court  may  refer  account.  gat  ion    or    held    under    advisement, 

§  739,  Trial.  sufiicient  funds  should  be  retained  to 


1660  ASSIGNMENTS — ACCOUNT 

§  1660.     Notice  to  creditors  of  dividends. 


1448 


When  a  dividend  is  ordered,  a  notice  must  be  given  of  the 
time  and  place  of  payment  of  such  dividend,  which  notice  must 
be  by  advertisement  once  in  a  newspaper  published  and  of  gen- 
eral circulation  in  the  county ;  and  notice  must  be  given  in  such 
other  way  as  the  Court  may  order.  Where  all  persons  entitled 
to  dividends  have  consented,  this  newspaper  notice  might  be 
dispensed  with.  But  the  safer  rule  would  be  to  always  give 
it,  and  a  proper  way  would  be  to  order  the  assignee  to  send  a 
postal  card  to  each  person  entitled  to  a  dividend.  The  form 
of  such  notice  may  be  as  follows : 

NOTICE. 

In  pursuance  of  an  order  of  the  Probate  Court  of 

county,  the  undersigned,  assignee  for  the  benefit  of  creditors  of  A.  B.,  will 

on  the day  of ,  at pay   upon 

the  valid  claims  presented  against  said  assignor,  a  dividend  of 

per  cent. 

,    190.. 

C.  D.,  Assignee. 


pay  the  same  dividend  on  them  as  is 
ordered  to  be  paid  to  the  general 
creditors.  A  question  may  arise 
as  to  a  person  holding  a  claim  se- 
cured by  mortgage  or  as  to  whether 
a  dividend  should  be  paid  on  the 
entire  amount  or  only  on  the 
amount  that  exists  after  the  secu- 
rity has  been  exhausted  and  like- 
wise whether  a  dividend  should  be 
paid  at  all  until  the  security  is  ap- 
plied. These  matters  have  been  pre- 
viously discussed. 

§  1631. 

Where  there  are  joint  and  sepa- 
rate assets  and  joint  and  separate 
debts,  the  joint  assets  must  first  be 
applied  to  the  payment  of  joint 
debts,  and  the  individual  assets  to 
the  payment  of  the  individual  debts. 
If  there  be  any  surplus  assets  in 
either  of  the  funds,  after  the  pay- 
ment of  that  fund,  the  creditors  of 
the  other  will  share  equally  in  the 


distribution  of  the  surplus.  Rogers 
vs.  Meranda,  7  0.  S.  179.  See  Cen- 
tral Law  Journal,  204. 

But  if  one  partner  has  sold  out 
to  another  or  the  firm  is  dissolved, 
then  the  individual  creditors  of  the 
person  to  whom  the  property  is  sold, 
have  the  first  preference  and  the  firm 
creditors  afterwards.  Miller  vs.  Es- 
till,  5  O.  S.   508. 

But  it  has  been  held  where  there 
are  no  co-partnership  and  no  solvent 
partner,  that  the  joint  creditors  may 
come  upon  the  separate  estate  of  the 
partner  pro  rata  with  the  separate 
creditors.     17  Bull.  171. 

Where  two  assignments  have  been 
made,  one  by  the  firm  and  the  other 
by  the  partners  individually  to  the 
same  assignee,  the  Court  may  treat 
it  as  one  trust  after  the  adjustment 
of  conflicting  claims.  Clapp  vs. 
Baking  Co.,  30  Bull.  359;  50  0.  S. 
528. 


1449  REPORT  OF  PAYMENT  §  1661 

§  1661.    Report  of  payment. 

Within  sixty  days  after  the  time  fixed  for  the  payment  of 
dividends,  the  assignee  shall  report  to  the  Court,  and  if  there 
are  any  unpaid  dividends,  a  new  notice  shall  be  given  to  the 
creditors  unpaid  in  such  a  way  as  the  Court  may  direct  and 
if  these  unclaimed  dividends  are  not  demanded  within  twelve 
months,  then  the  same  shall  be  divided  pro  rata  among  the  other 
creditors.  If  there  are  any  claims  held  under  advisement  or 
secured  so  that  a  dividend  cannot  be  paid,  as  soon  as  iJie  ques- 
tion as  to  their  validity  is  settled  and  the  amount  upon  which 
a  dividend  is  to  be  declared  is  determined,  then  the  creditors 
holding  such  claim  shall  be  paid  their  pro  rata  share.  The 
idea  of  the  law  is  to  make  an  equitable  and  just  division  of  the 
assets  of  the  assignor,  and  if  a  person  presents  his  claim  while 
there  are  funds  in  the  hands  of  the  assignee,  the  Court  should 
make  such  order  as  will  do  justice  to  all  parties.  If  all  the 
creditors  are  paid  in  full  and  any  assets  remain  on  hands,  they 
should  be  returned  to  the  assignor.  If  any  real  estate  is  un- 
disposed of,  it  should  be  reconveyed.^^ 

The  Court  should  require  additional  accounts  to  be  filed 
whenever  there  are  assets  in  the  hands  of  the  assignee  sufiicient 
to  justify  the  same  and  reports  filed  of  dividends  paid  until  all 
the  assets  are  accounted  for.  The  report  of  payment  of  divi- 
dends may  be  in  the  following  form : 

ASSIGNEE'S  REPORT  AS  TO   PAYMENT  OF  DIVIDENDS. 


of % 

In  the  matter  of  the  assignment  in  trust,  etc.,  of ,  as- 
signor  to ,   assignee. 

In  the  Probate  Court  of .... , County,  Ohio. 

To  the  judge  of  Said  Court: 

Out  of  a  balance  of  $ ,  a  dividend  of %   having 

been  by  you,  heretofore,  to-wit;  on  the day  of A.  D. 

190..,  declared  payable  equally  among  all  the  creditors  entitled,  in  pro- 
portion to  the  amount  of  their  respective  claims  against  the  assignor  "  of 
the  payment  of  which  dividends  and  those  remaining  uncalled  for  and 
unpaid,"  report  is  made  as  follows,  to-wit: 

12  See    §  577,    Raising   an    assign- 
ment. 


§1661 


ASSIGNMENTS — ACCOUNT 


1450 


ro    WHOM  OiSDERED  PAID. 

PAID. 

VOUCH. 
NO. 

UNCALLED 
FOR 

WHEN. 

AMOUNT. 

AND  UNPAID. 

Total 

$ 

$ 

— "  of  the  making  of  which  dividend,   and  of  the  time  and  place  of  pay- 
ment thereof,"  notice  was  given  by  advertisement  once  in  the 

,  a  newspaper  published  and  of  general  circulation  in  said  county  of 

and  by ,  as   required  by  law  and  the 

order  of  the  Court — a  copy  of  which  advertisement  and  notice  marked  "  B  " 
are  herewith  returned  and  made  a  part  of  this  report. 


Assignee  of. 


AFFIDAVIT. 

The  State  of  Ohio, County,  ss. 

,  assignee . .  aforesaid,  being  duly  sworn,  say . .  that  the 

foregoing  report  is  true  and  correct,  as.  .h. ..  .verily  believes. 


Sworn  to  before  me  and   subscribed   in   my   presence   this day   of 

A.  D.   190... 

,  Probate  Judge. 


When  such  report  is  filed,  the  Court  should  approve  the 
same  by  a  journal  entry,  and  if  it  be  a  final  report,  discharge 
the  assignee.     The  entry  may  be  in  the  following  form : 

( Title. ) 

This  day  came  A.  B.,  assignee  of  C.  D.,  and  filed  in  this  Court  his  report 
of  payment  of  dividends  as  heretofore  ordered  by  the  Court.  On  examina- 
tion, the  same  appearing  regular  and  correct,  is  approved  and  confirmed; 
and  it  further  appearing  to  the  Court  that  all  the  assets  of  said  assignor 
have  been  distributed  and  accounted  for,  it  is  ordered  that  said  A.  B.  be 
discharged  as  assignee  of  said  C.  D.,  and  that  said  trust  be  and  is  hereby 
terminated. 13 


13  This  entry  should  be  changed  to 
suit  the  condition,  if  it  is  not  a 
final  report,  it  should  simply  be  ap- 


proved and  confirmed  and  if  there 
is  any  property  on  hand  it  should 
be  ordered  returned  to  the  assignor. 


1451  APPROPRIATION  §  1662 


CHAPTER  XCIII. 

APPROPRIATION  OF  PRIVATE  PROPERTY. 

§  1662  Introductory.  §  1668  What    and    how    much    may 

§  1663  Power  of  eminent  domain.  be   taken. 

§  1664  Constitutional    provisions.  §  1669  Taking      property      without 

§  1665  Who    may    exercise   power.  right. 

§  1666  How  grant  to  exercise,   con-  §  1670  Additional  servitudes. 

strued.  §  1671  Compensation. 

§  1667  When  may  be  exercised.  §  1672  Benefits. 

§  1673  Evidence,  etc. 

§  1662.     Introductory. 

It  seems  singular,  that  while  a  large  portion  of  the  members 
of  the  constitutional  convention  of  1851,  as  well  as  a  consider- 
able part  of  the  judiciary  of  Ohio,  considered  th-e  Probate 
Court  to  be  incapable  of  dealing  with  difficult  and  in- 
tricate questions  of  law,  that  the  important  proceedings 
of  condemnation  of  private  property  should  soon  thereafter  be 
conferred  almost  exclusively  on  the  Probate  Court.  Yet  such 
is  the  fact^  and  now  in  some  stage  of  such  proceedings  the  Pro- 
bate Court  entertains  jurisdiction  in  every  instance,  except  in 
proceedings  brought  by  municipal  corporations.  In  such  cases 
the  proceeding  may  be  brought  in  either  the  Probate  or  Com- 
mon Pleas  Court.^  In  cases  of  appropriation  by  private  corpo- 
rations, the  action  must  originally  be  commenced  in  the  Pro- 
bate Court.^  In  other  cases,  such  as  roads,^  ditches,  etc.,*  the 
jurisdiction  of  the  Probate  Court  is  appellate.  The  constitu- 
tionality of  the  right  to  have  a  jury  pass  upon  the  value  of  the 

1  §  3681  G.  C,  §  1750.  *  §  6409  G.  C,  §  1833;  §  6025  G. 

2  §  11039  G.  C,  §  1674.  C,  §  1852. 

3  §§7078,  12236  G.  C,  §  1812. 


§  1663  APPROPRIATION  1452 

property  condemned,  being  preserved  by  the  right  to  appeal  to 
the  Probate  Court,  and  there  having  a  jury  pass  upon  the 
question  of  compensation,  etc.  From  the  above  it  will  be  seen 
that  no  work  on  probate  practice  in  Ohio  would  be  complete 
with  this  very  important  subject  omitted.  However,  in  a 
work  of  this  character  it  will  not  be  possible  to  treat  the  subject 
in  a  very  extensive  manner.  In  this  chapter  some  general  prin- 
ciples will  be  discussed,  and  subsequent  chapters  will  take  up 
more  particularly  matters  pertaining  to  practice.^ 

The  power  is  not  like  that  of  taxation,  for  taxation  operates 
upon  the  community,  or  a  class  of  persons  in  a  community,  and 
by  some  rule  of  proportionment.^  Neither  is  it  like  special 
assessments,  which  is  but  another  form  of  taxation ;  neither  is  it 
to  be  confounded  with  the  police  power  of  the  State.^  A  police 
power  is  usually  exercised  as  a  method  of  regulating  and  re- 
stricting the  use  of  property  and  not  its  taking  or  confiscation, 
and  so  it  has  been  held  not  to  include  cases  where  property  is 
taken  to  avert  a  public  calamity,  such  as  demolition  of  buildings 
to  prevent  a  conflagration.*  Somewhat  similar  to  the  last  men- 
tioned is  that  of  the  destruction  of  property  in  the  time  of 
war.^  The  power  of  appropriation  attaches  to  every  kind  of 
property.^° 

§  1663.     Power  of  Eminent  Domain. 

The  power  of  eminent  domain  may  be  defined  to  be  the  right 
of  the  sovereign,  without  the  consent  of  the  owner,  when  neces- 
sary, to  make  private  property  subservdent  to  the  public  wel- 
fare.^^  The  same  definition  is  given  in  Lewis  on  "  Eminent 
Domain,''  ^^  and  Mills  on  "  Eminent  Domain."  " 

5  Giesy  vs.  C.  W.  &  Z.  R.  R.  Co.,  lo  Q.   S.   Ry.   vs.   Hinkle,    1   N.   P. 
4  O.  S.  308.  65;    1  Dec.  682. 

6  Lewis  on  Em.  Dom.,  §  4.  See  §  1811. 

7  See     discussion     of     the     same,  u  Ranney  J.,   Giesy  vs.   C.   W.  & 
Lewis  Em.  Dom.,  §  6,  §  1.56.  Z.  R.  C.  Co.,  4  O.  S.  .324;   Emig  vs. 

8  Lewis  on  Em.  Dom.,   §7.  Clark  Co.,  etc.,  5  N.  P.  471;  5  Dec. 

9  Discussion    of    same,    Lewis    on  459. 
Em.  Dom.,  §  8.  12  §  i.. 

"§2. 


1453  CONSTITUTIONAL,   PROVISIONS  §  1664 

Some  Courts  treat  it  as  a  reserved  right  or  estate  and  others 
as  one  existing  in  all  civilized  governments.^* 

Our  own  Supreme  Court  has  said :  "  It  rests  upon  the  pub- 
lic necessity  —  subordinates  the  rights  of  one  to  the  welfare 
of  all  —  and  is  just  as  broad  as  that  necessity,  and  no  broader. 
If  the  wants  of  the  public  are  attained  by  the  acquisition  of  an 
easement,  nothing  more  can  be  taken;  if  tlie  whole  interest  is 
required,  the  whole  may  be  appropriated.  Whether  this  power 
is  derived  from  an  implied  condition  in  every  grant  by  which 
property  is  held  under  the  government,  and  whether,  where  no 
constitutional  restraint  exists,  it  may  be  exercised  without  mak- 
ing compensation,  are  rather  questions  for  ingenious  specula- 
tion than  of  practical  importance.  It  is^  enough  that  its  ex- 
istence is  everywhere  acknowledged,  and  that  its  exercise  for 
many  important  purposes,  both  in  peace  and  war,  in  the  direct 
form  of  appropriation  and  the  indirect  method  of  taxation,  is 
absolutely  necessary  to  enable  any  government  to  attain  the 
great  ends  for  which  it  is  instituted ;  while  no  enlightened  gov 
emment,  at  this  day,  attempts  to  appropriate  without  com- 
pensation, and  in  this  country  it  is  everywhere  enforced  by 
Constitution  provisions." 

§  1664.     Constitutional  provisions. 

Two  separate  provisions  of  our  Constitution  relate  to  the 
taking  of  property  for  a  public  use.  The  first  is  sec  19,  in 
Art.  1,  of  the  Bill  of  Eights,  which  is  as  follows: 

Of  the  inviolability  of  private  property.  "  Private  property 
shall  ever  be  held  inviolate,  but  subservient  to  the  public  wel- 
faxe.  When  taken  in  time  of  war  or  other  public  exigency, 
imperatively  requiring  its  immediate  seizure  or  for  the  pur- 
pose of  making  or  repairing  roads,  which  shall  be  open  to  the 
public,  without  charge,  a  compensation  shall  be  made  to  the 
owner,  in  money,  and  in  all  other  cases,  where  private  property 
shall  be  taken  for  public  use,  a  compensation  therefor  shall  first 
be  made  in  money,  or  first  secured  by  a  deposit  of  money ;  and 
such  compensation  shall  be  assessed  by  a  jury,  without  dedue- 

1*  Lewis  on  Eminent  Domain,  §  3.  exorcise  sucli  power,  especially  where 

The  ri"-lit  of   eminent  domain  in-  it    is    not    a    part   of    an    intcrstatt 

volves   an   attribute   of   sovereignty,  system.     Ce;i.  Union  Tel.  vs.  Cblum- 

and  is  strictly  construed.    A  foreign  bus   Grove,  S   C.   C.   C.    (N.S.)    81; 

telephone  company  has  no  riglit  to  28  0.  C.  C.  13L 


§  1661 


APPROPRIATION 


1454 


+ion  for  benefits  to  any  property  of  the  owner."      [See  Const, 
1802,  Art.  8,  §  4.]'" 

The  second  provision  is  sec.  5  of  Art.  13,  which  relates  more 
particularly  to  appropriation,  of  rights  of  way  by  corporations, 
and  is  as  follows: 

Right  of  way.  "  'No  right  of  way  shall  be  appropriated  to 
the  use  of  any  coi'poration,  un.til  full  compensation  therefor  b© 
first  made  in  money,  or  first  secured  by  a  deposit  of  money,  to 
the  owner,  irrespective  of  any  benefit  from  any  improvement 
proposed  by  such  corporation ;  which  compensation  shall  be 
ascertained  by  a  jury  of  twelve  men,  in  a  Court  of  record,  as 
shall  be  prescribed  by  law."  ^^ 

These  provisions,  while  worded  differently,  substantially  in 
many  respects  cover  the  same  ground.  This  results  from  the 
fact  that  the  above  provisions  were  reported  by  separate  and 
distinct  committees  of  the  constitutional  convention. ^^ 


15  Art.  I,  §  19. 

16  Art.   XITI,   §5. 

17  It  will  be  remembered  by  those 
who  are  curious  to  trace  its  history, 
that  each  article  of  the  Constitu- 
tion came  from  a  separate  commit- 
tee, and  redundant  provisions  were 
therefore  almost  unavoidable.  In 
this  instance,  however,  the  section 
as  originally  introduced  served  a 
distinct  purpose,  and  differed  from 
that  in  the  bill  of  rights,  in  requir- 
ing the  money,  in  all  cases,  to  be 
paid  before  the  property  was  taken. 
It  was  afterward  made  to  conform 
in  this  particular  by  amendment, 
and  then  retained  by  a  direct  note 
upon  a  motion  to  strike  it  out.  It 
was  quite  impossible  to  arrive  at 
the  motives  of  all  those  who  voted 
to  retain  it,  but  it  is  certain  that 
many  considered  it  expedient  to  do 


so,  for  the  purpose  of  foreclosing,  by 
the  implication  it  afforded,  any 
question  as  to  the  power  to  appro- 
priate property  to  the  uses  of  a  cor- 
poration authorized  to  construct  a 
public  improvement.  We  do  not 
now  say  that  it  may  not,  in  some 
possible  particulars,  differ  from  the 
section  in  the  bill  of  rights;  but 
upon  the  question  now  under  consid- 
eration, the  intention  of  the  conven- 
tion to  make  them  alike  is  placed  be- 
yond all  doubt,  from  the  fact  that 
it  went  to  the  committee  of  revision 
with  positive  instructions  "  to  make 
the  rule  of  compensation  therein  pro- 
vided,"  correspond  with  that  estab- 
lished "  in  the  section  of  the  bill  of 
rights  referred  to.  2  Const.  De- 
bates 850.  Giesy  vs.  C.  W.  &  Z.  R 
R.  Co.,  4  0.  S.  3.S1. 
See  §§1671,  1748. 


1455  WHO    MAY    EXERCISE    POWER  §  1665 

§  1665.     Who  may  exercise  power. 

"  In  this  State  the  power  is  lodged  with  the  General  Assem- 
bly to  be  used  when  necessary  to  the  attainment  of  its  lawful 
purposes,  and  in  my  judgment  can  neither  be  surrendered,  im- 
paired, nor  abridged  by  that  body."  ^® 

The  power  of  eminent  domain  is  rather  a  political  than  judi- 
cial power,  and  by  our  Constitution  its  exercise  is  intrusted  to 
the  General  Assembly  so  far  as  determining  the  necessity  and 
propriety  of  the  appropriation  is  concerned,  while  the  Courts 
are  only  invested  with  authority  to  determine  the  amount  of 
compensation  to  be  paid.  The  power  may  be  exercised  di- 
rectly by  that  body,  or  through  subordinate  agencies.^®  It 
might  be  exercised  by  an  individual  as  well  as  a  corporation  if 
the  Legislature  so  provided."*^  Existence  of  the  right  to  exer- 
cise the  power  of  eminent  domain  can  only  be  derived  from 
legislative  enactment  ^^ 

§  1666.    How  grant  to  exercise,  construed.-^^ 

Grants  of  this  nature,  being  in  derogation  of  a  private  right, 
must  be  strictly  construed.  If,  therefore,  there  is  reasonable 
ground  of  doubt  as  to  whether  the  Legislature  intended  to  grant 
the  continuing  power  claimed  to  be  exercised  here,  the  doubt 
should  be  resolved  against  the  corporation  seeking  to  exercise 
the  same.."     While  such  authority  is  strictly  construed,  it  must 

isRaney,   J.,   Giesy  vs.   C.   W.   &  tion;  and  it  may  be  regarded  as  set- 
Z.  R.  R.  Co.    4  0.  S.  324.  tied  law  that  it  is  solely  for  the  leg- 
is  Id   326    '  islature  to  judge  what  persons,  cor- 
20  Coe  vs.  C.  P.  &  I-  R-  R-  Co.,  10  porations    or    other    agencies    may 
Q    g    3J2  properly  be  clothed  with  this  power. 

Accordingly  it  has  been  held  that  Lewis  on  Em.  Dom.,  §242. 
the  right  may  be  conferred  upon  cor-  See  Emig  vs.  Com.,  5  N.  P.  471; 

porations,    upon    individuals,    upon  5  Dec.  459.  ^,    ,   r^   ry    -n    n 

r      •  ,.„^ro+Jr.Ti«     nr   a    consoll-  21  Atkinson  vs.  M.  &  C  K.  iv.  Co., 

foreign    corporations,    or   a   consou  ^^  ^    ^   ^i;  A.  &  0.  R.  Co.  vs.  S-ul- 

dated  company  composed  in  part  ot  ^^^,g^^^  5  q    t-    276. 
a  foreign  corporation,  and  upon  the  i^^^  §§  1748^  1749. 

tederal  government.     Such  has  been  21a  Cited    Cleveland    &    Pittsburg 

.         .         ,,      T>n-,rr^^  R    R    vs    Dc'Wine,  f)H  Jiull.  4.Jn. 
the  common  practice  since  the  Kevo-         '22  t.  &  W.  R.  W.  Co.  vs.  Daniels, 

lution,  and  the  right  to  do  so  has  jg  q   i.,    gj^Q 
never  been  a  matter  of  serious  ques-  Bartley,  J.,  in  Kramer  vs.  Clevc, 


§  1666 


APPROPRIATION 


1456 


not  be  technically  construed."  It  should  he  held  to  include 
such  matters  as  are  reasonably  exercised  for  the  purpose  for 
•which  the  grant  was  made,  and  therefore  a  grant  to  a  railroad 
company  to  condemn  land  would  include  new  side  tracks,  lead- 
ing from  tho  main  road  to  its  depot,  whenever  they  become 
necessary  in  the  proper  management  and  operation  of  the 
road  ;'■'  and  i^  may  condemn  land  after  the  right  of  way  has 
been  condemntvl  for  the  purpose  of  throwing  waste  dirt.^^ 

In  one  case  it  was  held  that  the  railroad  company  could  not 
condemn  a  wharf  for  its  exclusive  use.^®  Nor  could  a  turnpike 
company  condemn  land  for  a  toll  gate.'^  But  a  railroad  company 
might  condemn  :t'or  terminal  facilities.^®  As  an  incidental 
power  a  railroad  company  may  divert  a  stream  permanently,"® 
and  a  canal  company  might  condemn  land  on  its  margin  for  a 
towpath.^**  But  a  power  to  construct  branch  roads,  appropriate 
for  side  tracks,  woald  not  give  the  company  a  right  to  condemn 
away  from  its  permanent  location.^^ 


etc.,  R.  Pv.  Co.  (5  0.  S.  140),  said: 
"I  insist,  that  if  there  be  any  man- 
ner of  truth  or  value  in  the  settled 
rules  of  judicia.1  interpretation,  the 
constitutional  grant  of  this  power 
must  be  strictly  construed;  and  that 
such  exercise  of  it  by  private  cor- 
porations, which  always  is  upon  oc- 
casion, not  of  public  emergency,  but 
simply  of  public  convenience,  should 
be  well  guarded  against  infringe- 
ments of  the  rights  of  private  prop- 
erty. .See  Piatt  vs.  Penn.  Co.,  43  0. 
S.  228,  and  cases  cited. 

The  General  Assembly  possesses 
the  power  to  confer  upon  a  corpora- 
tion the  power  to  erect  dams  in  non 
navigable  streams  for  purposes  of 
power.  Little  Miami  Co.  vs.  White, 
5  X.  P.  (X.S.)  201;  52' Bull.  354; 
affirmed  77  U.  S.  C33;  and  the  judi- 
ciary will  not  interfere  unless  there 
is  a  manifest  abuse  of  authority  by 
the  legislature.     Id. 


As  to  what  will  constitute  a  pub- 
lie  use,  see  Trumbull  vs.  Shilling,  53 
Bull.   167. 

23  C.  &  C.  vs.  Bridge  Co.,  63  O.  S. 
455. 

24  T.  &  W.  R.  W.  Co.  vs.  Daniels, 
16  O.  S.  390. 

25  0.  S.  R.  R.  vs.  Hinkle,  1  X.  P. 
63;    1  Dec.  682. 

Cited  approvingly,  Cleveland  & 
Pittsburg  R.  R.  vs.  Dewine,  58  Bull. 
441. 

A  traction  railroad  may,  in  order 
to  shorten  its  line  or  avoid  danger- 
ous curves,  condemn  land  and  re- 
locate its  track.  Reush  vs.  Trac- 
tion Co.,  24  0.  C.  C.  540;  affirmed, 
89  O.  S.  — . 

26  Iron  Rv.  Co.  vs.  Citv  of  Iron- 
ton,  19  0.  S.  299. 

27  Kemper  vs.  C.  C.  &  Wooster 
Turnpike   Co.,   11   O.  392. 

28  Gin.  Southern  Ry.  Co.  vs. 
Handy,  9  Bull.  32. 

29  Railwav  Co.  vs.  Bohm,  34  0.  S. 
114. 

30  Carpenter  vs.  State  of  Ohio,  12 
0.  S.  457. 

31  Currier  vs.  Marrietta  &  C.  Rv. 


1457  WHEN    MAY    BE    EXERCISED  §  1667 

§  1667.     When  may  be  exercised. 

While  the  power  to  exercise  the  right  of  condemning  prop- 
erty exists  in  the  Legislature,  or  to  such  person  or  corporajtion 
as  the  Legislature  may  delegate  it,  yet  it  can  only  be  exercised 
where  it  is  for  a  public  use,^^  or,  as  elsewhere  expressed,  public 
welfare.^^  The  question  whether  or  not  a  contemplated  use  is 
a  public  use,  or  one  for  the  public  welfare,  within  the  meaning 
of  the  Constitution,  is  a  question  for  the  Courts.^* 

As  to  what  will  constitute  a  public  use,  it  is  said  that  no 
question  has  ever  been  submitted  to  the  Courts  upon  which 
there  is  a  greater  variety  and  conflict  of  reasoning  and  results 
than  that  presented  as  to  the  meaning  of  the  words  "  public 
use,"  as  found  in  the  different  State  Constitutions  regulating 
the  right  of  eminent  domain."  ^^  Ii;  such  cases  the  inquiry 
must  necessarily  be,  what  are  the  objects  to  be  accomplished  ? 
not,  who, are  the  instruip,ents  for  attaining  them  ?  ^® 

The  use  that  will  justify  the  taking  of  private  property  by 
the  power  of  eminent  domain  is  used  by  or  for  the  government, 
or  some  portion  of  it,  and  not  used  by  or  for  a  particular  indi- 
vidual, or  for  the  benefit  of  certain  estates.  The  draining  of 
marshes  and  ponds  may  be  for  the  promotion  of  the  public 

Co.,    11    0.    S.    228;    Mills    on    Em.  Land   may   be  condemned    for   ap- 

Dom,    §11;    Lewis    on    Em.    Dom.,  proacli  to  a  railroad  brid-e.     Rail- 

§§238,  230  and  240.  way  vs.  Taylor,  50  Bull.  20.     Also 

It  has  recently  been  held  that  In-  terminal  facilities, 

terurban  Railroads  under  §  9000  G.  "  See    §  1724. 

C.  can  not  condemn,  and  that  under  Cooper  vs.  Williams,  5  Ohio  391; 

§  9119   G.   C,  power   is  given   only,  Le  Clerq  vs.  Town  of  Gallipolis,  7  0. 

when  necessary  to  deviate  from  the  pt.   1,  217. 

highway.     Law  is  now  amended  so  33  Giesy  vs.  C.  W.  &  Z.  R.  R.  Oo  , 

as    to    include    Traction    companies.  4  0.  S.  308. 

95  vs.  530.     C.  D.  &  X.  Tr.  Co.  vs.  34  McQuillcn  vs.  Ilatten,  42  0.  S. 

Marriott,  47  Bull.   357.  202. 

See  551008,  1749.  Drainage     is     a     public    purpose. 

When  the  statute  grants  to  rail-  Thomas  vs.   Clark  Co.,  5  Dec.   503; 

roads  a  right  to  condemn  land  for  55  X.  P.  449. 

the   purpose  of   directing  a   stream,  35  Lewis    on     Em.     Dom.,     §159; 

the  power  can  only  bo  exercised  in  Cooloy  Const.  Lim.   §  532. 

the  original  construction  cf  the  road.  ■■''  Willyard  vs.  Hamilton,  7   Ohio 

Railway  vs.  South,  78  0.  S.  10.  pt.  2,   111. 


§  1668  APPROPRIATION  1458 

health  and  so  become  a  public  object;  but  the  draining  of  farms 
to  render  them  more  productive,  is  not  such  an  object.^^ 

However,  in  such  cases  it  was  held  that  if  a  ditch  would  be 
conducive  to  the  public  health,  convenience  and  welfare  of  the 
neighborhood,  a  more  general  public  necessity  is  not  re- 
quired.'* 

In  our  State  it  has  been  held  that  property  may  be  con- 
demned for  a  township  road,^''  for  depot  purposes,*"  for  a 
canal,*^  for  a  toll  bridge,'*^  for  ditch  drains,  etc.,*'  and  one  cor- 
poration may  condemn  the  right  to  use  the  tracks  of  another.** 
Railroads,*^  and  side  tracks.**'  It  would  also  include  trans- 
portation of  natural  gas,  oil  or  water,  and  such  like  matter.*^ 

§  1668.     What  and  how  much  may  be  taken. 

As  a  general  rule  it  may  be  said  tliat  all  kinds  of  property 
and  every  variety  and  degree  of  interest  in  property  may  be 
taken  under  the  power  of  eminent  domain.**  Little  difficulty  is 
experienced  in  thfe  application  of  this  rule  except  where  it  is 
sought  to  appropriate  property  which  has  already  been  ap- 
propriated for  a  certain  purpose.     In  such  cases  Lewis  *^  lays 

37  McQuillen  vs.  Hatton,  42  0.  S.  *i  Willyard  vs.  Hamilton,  7  Ohio 
202.                                                                  pt.  2,  111. 

38  Ry.  Co.  VS.  Commissioner,  G3  0.  42  Young  vs.  Buckingham,  5  Ohio, 
S.  23.                                                               485. 

Lewis  on  Em.  Dom.,   §  1G5,   after  *^  Thomas  vs.  Bd.  of  County  Com- 

giving    various    definitions    for    the  missioners,  5  N.  P.  449 ;  5  Dec.  503 ; 

term  "public  use"  is  inclined  to  the  Sessions   vs.    Crunkilton,    20    O.    S. 

opinion  that  the  matter  is  not  one  349. 

for  the  Courts,  but  for  the  legisla-  **  Toledo  Elec.  St.  Ry.  Co.  vs.  To- 

ture.  ledo  Con.  St.  Ry.  Co.,  26  Bull.  172; 

The  mere  fact  that  a  railroad  has  6   C.   C.   362;    3   C.   D.   493. 

both    of    its    termini    in    the    same  45  Giesy  vs.  C.  W.  &  Z.  R.  R.  Co., 

municipality    will    not    prevent    its  4  0.  S.  308. 

exercise  of   the   power   to   condemn.  46  T.  &  W.  R.  W.  Co.  vs.  Daniels, 

Cin.  Termini  Co.  vs.  Murray,  1  X.  P.  16  0.   S.   390. 

(N.S.)   301;   48  B.  877.  47  Mills  on  Em.  Dom.,   §12. 

The   leasing  of  its   road  will   not  See   §  1726. 

destroy  its  power.    Id.  4S  Lewis  on  Em.  Dom.,   §  262 ;    10 

39  Shaver  vs.  Starrett,  4  0.  S.  594.  Am.    &    Eng.    Ency.   of   Law,    2    ed. 

40  Giesy  vs.  C.  W.  &  Z.  R.  R.  Co,  1088. 

4  0.  S.  308.  49  T^„  is  on  Em.  Dom.,  §  276. 


1459  WHAT    MAY   BE   TAKEN  §  1668 

down  the  following  rules.  First,  all  property  held  for  public 
use  is  still  subject  to  the  eminent  domain  power  of  the  State. 
with  this  exception,  that  it  cannot  be  taken  to  be  used  for  the 
same  purpose  in  the  same  manner;  second,  the  right  to  take 
property  already  devoted  to  public  use  must  be  given  in  express 
terms  or  by  necessary  implication ;  third,  whether  such  author- 
ity has  been  giveii  in  any  case,  either  in  express  terms  or  by 
implication,,  is  necessarily  a  question  for  the  Courts;  fourth, 
whether  the  power  exists  in  any  given  case  is  a  question  of  leg- 
islative intent,  to  be  ascertained  in  the  first  place  from  the 
terms  of  the  statute,  and  in  the  second  place  by  the  application 
of  the  statute  to  the  subject  matter.^" 

One  public  ditch  may  be  constructed  over  another,  as  the  two 
easements  are  not  inconsistent.^^ 

'  In  an  early  case  in  this  State  it  was  held  ^^  that  only  such 
interest  as  will  answer  the  public  wan»ts  can  be  taken,  and  it 
can  be  held  only  so  long  as  it  is  used  by  the  public,  and  cannot 
be  diverted  to  any  other  purpose.  As  a  general  rule,  it  may 
be  said,  that  the  extent  of  what  may  be  taken*  rests  with  the 
Legislature/^  and  this  grant  of  legislative  power,  as  before 
stated,  is  to  be  strictly  construed,^*  and  it  has  been  held  that 
under  authority  to  take  land  for  a  highway,  railroad  or  otlier 


50  See  Mills  on  Em.  Dom.,  §  45  et  It  is  not  necessary  to  show  that 

seq.  the  demands  of  trade  require  a  rail- 
There    is    no    taking    within    the  road   before   the   power   to   eondenm 

meaning   of   the    Constitution   when  can  be  exercised.     Steubenville  Ry. 

there  is  no  direct  or  special  invasion  vs.    Cleveland   Ry.,   2  N.   P.    (N.S.) 

of    property    rights,    and    the    only  45;   49  Bull.  240. 

damages  complained  of   are   remote  Catholic   school   property   may  be 

and  not  different  in  kind,  or  hardly  taken.    Cin.  Inter.  R.  R.  vs.  Murray, 

more    appreciable    in    degree,    than  1  K  P.   (N.S.)   301;  48  Bull.  877. 

what  is  suffered  by  the  public  gen;  See  10  Am.  &  Eng.  Ency.  of  Law, 

erally.     Herzog  vs.   P.   C.   &   St.   l!  2  ed.   1088-1100. 

R.  R.,  6  C.  C.    (N.S.)    527;   15  Cir.  oi  Miller  vs.  Logan,  3  C.  C.  617; 

D.   702;    affirming   2    N.    P.    (N.S.)  2  C.  D.   358;   Marsh  vs.  Clark  Co., 

17;  14  Low  D.  529;  affirmed,  no  re-  26  Bull.  3. 

port,    74    0.    S.    440;  .25    0.    C.    C.  saGiesy  vs.  C.  W.  &  Z.  R.  R.  Co., 

702 ;    affirmed   74  0.   S.   440.  4  O.  S.  309. 

Access  to  a  lot  is  property.    East  53  Lewis  on  Em.  Dom.,   §  277. 

End   Banking   Co.   vs.    Cleveland,    1  54  Previous  section,   §  KiOO. 

N.  P.   (N.S.)    493;   14  Dec.  33. 


§  1668  APPROPRIATION'  1460 

use,  only  an  easement  can  be  acquired.^^  But  if  the  statute 
so  provided,  a  fee  simple  may  be  appropriated.^" 

It  has  also  been  held  that  a  railroad  cannot  appropriate  land 
for  a  limited  period  while  its  main  track  is  being  rebuilt.^^  So 
it  was  held  that  a  turnpike  company  could  not  take  beyond  the 
one  hundred  feet  prescribed  by  law,  even  for  a  tollhouse.^^  But 
"vhere  the  law  prohibited  the  taking  of  more  than  sixty  feet,  a 
donation  of  more  might  be  accepted.^" 

The  term  land,  in  statutes  conferring  power  to  condemn,  in- 
clude both  soil  and  buildings  and  other  structures  thereon  and 
all  interests  therein.  Land  under  water  may  be  taken  as  well 
as  any  other  land.*'" 

Wliere  land  is  condemned  for  a  right  of  way,  tlie  o\Amer  of 
the  fee  retains  the  exclusive  right  of  the  trees,  shrubs  or  herb- 
age for  all  purposes  not  interfering  with  the  right  of  way."^ 
Trees  may  be  cut  down  and  used  for  constructing  a  highway.*'^ 
If  there  is  a  spring  on  the  highway,  this  belongs  to  the  owner 
of  the  fee."' 

If  the  public  ceases  to  use  the  property  appropriated,  the 
right  acquired  ceases  and  reverts  to  the  owner."*  Selling  to 
another  railroad  the  right  to  lay  its  tracts  along  with  the  other 
on  part  of  the  width  of  the  right  of  way  acquired  by  appropria- 
tion is  an  abandomnent."^     A  railroad  cannot  acquire  by  agree^ 


55  McConibs  vs.  Stewart,  40  0.  S.  Vought  vs.   Railroad   Co.,   58   0.   S. 

647;  Corwin  vs.  Cowan,  12  O.  S.  629.  123;  Aff.  Walsh  vs.  Ry.  Co.,  176  U. 

30  Malone  vs.  City  of  Toledo,  28  O.  S.  4G9.     Mills  on  Em.  Dom.,  §  53. 

S.  643;  S.  C.  34  0.  S.  .541.  Park  property  may  be  condemned 

57  Currier  vs.  M.  &  C.  R.  R.  Co.,  for  a  railroad.     Ry.  vs.  Cincinnati, 
11  O.  S.  228.  53    Bull.   224.      So  may   an   unused 

58  Lessee  of  Kemper  vs.   C.   C.   &  street.    Id. 

Wooster  Turnpike  Co.,  11  Ohio  392.  62  Prather    vs.    Ellison,    10    Ohio, 

50  Hays  vs.   Lewis^  28   0.   S.  326;  396. 

Lewis  on  Em.  Dom.,  §  2S0.  *    ^^  Mills    on   Em.   Dom.,    §  56. 

GO  Lewis  on  Em.  Dom.,  §285;  Val-  64  McComb  vs.   Stewart,  40  O.  S. 

ley  Ry.  Co.  vs.  Pouchot,  4  C.  C.  187,  647. 

2  C.  D.  492.  65  Piatt  vs.   Penn.   Co.,  43   0.    S. 

See    §1700    in   next   chapter,    Ne-  ^28;    Penn   Co.   vs.   Piatt,   47    0.    S. 

cessity  for  condemnation.  366- 


«iPhifer  vs.   Cox,  21   0.   S.  248; 


1460a  TAKING    WITHOUT    RIGHT  §  1669 

ment  or  condemnation,  exclusive  right  to  occupy  a  part  of  a 
•  street.  ^^ 

The  consents  of  owners  of  lots  abutting  on  a  street  to  the 
construction  and  operation  of  a  street  railroad  on  such  street, 
are  not  property  rights  that  can  be  appropriated  under  the 
power  of  eminent  domain.  Such  consents  are  not  property 
rights,  but  rights  in  their  nature  personal  to  each  owner  of  an 
abutting  lot^*'* 

§  1669.     Taking  property  without  right. 

Whenever  a  person's  right  to  his  property  —  that  is,  the 
right  to  possess,  use  and  dispose  of  the  same  in  any  manner  not 
inconsistent  with  the  law  of  the  land  —  is  interfered  ^\^th, 
then  to  the  extent  of  such  interference  an  appropriation  has 
been  made  for  which  the  owner  is  entitled  to  compensation. 
If  such  appropriation  has  been  made  by  a  person  or  body  for 
a  use  that  is  not  of  a  public  character,  the  owner  must  seek  his 
remedy  by  an  action  in  damages.  If  the  body  or  person  ap- 
propriating the  same  is  authorized  to  take  the  property  under 
the  power  of  eminent  domain,  then  the  owner  has  his  choice 
of  remedies.  He  may  either  bring  an  ordinary  action  of  dam- 
ages or  he  may  bring  an  action  to  compel  the  offending  person 
or  corporation  to  appropriate  tlie  property.  It  may  be  laid 
down  as  a  general  proposition,  says  Lewis,®^  based  upon  the 
nature  of  the  property  itself,  that,  whenever  the  lawful  rights 
of  an  individual  to  the  possession,  use  or  enjoyment  of  his  land 
are  in  any  degree  abridged  or  destroyed  by  reason  of  the  exer- 
cise of  tlie  power  of  eminent  domain,  his  property  is  jjro  tanto, 
taken,  and  he  is  entitled  to  compensation. 

A  difficulty  is  sometimes  experienced  in  determining  whether 
a  certain  matter  has  been  included  within  the  appropriation 
proceedings  and  the  owner  has  received  compensatory  damages. 
For  this  reason,  it  becomes  highly  necessary  that  in  such  pro- 
ceedings the  petition  should  fully  set  forth  just  what  is  to  be 

66  C,  C,  C.  &  St.  L.  R.  K.  Co.  vs.  eo*  H.  G.  &  C.  T.  Co.  vs.  Parish, 

City  of  Gin.,  Goebel  269.  47   Bull.  831. 

See  §  1749  ''^  Lewis  on  Em.  Dom.,  §  50. 


§  1670  APPROPRIATION  1460b 

taken.  Then  it  might  properly  be  held  that  all  results  that 
reasonably  follow  from  such  appropriation  would  be  held  to  be. 
included,  and  compensation  rendered  in  such  proceedings. 
Whether  or  not  a  certain  matter  would  be  included  is  largely 
one  of  fact,  depending  upon  the  conditions  surrounding  each 
case.  If  the  person  has  no  property  right  or  has  surrendered 
the  same,  then  there  is  no  taking.  Thus  an  abutting  land 
owner  has  no  such  interest  in  the  public  market  in  the  street 
as  to  be  entitled  to  enjoin  a  street  railway  that  will  interfere 
with  the  market."^ 

It  has  recently  been  held  that  the  making  of  a  tile  ditch 
through  a  farm  is  a  taking  without  right,  although  there  is  but 
nominal  damage.*''' 

A  city  running  its  sewage  in  a  natural  watercourse,  may,  if  it 
cause  a  nuisance  and  injuriously  affect  the  riparian  proprietor, 
be  a  wrongful  taking  under  the  Constitution.''" 

§  1670.     Additional  servitudes. 

Questions  frequently  arise  as  to  a  party's  rights  when  the 
property  appropriated  has  been  applied  to  a  new  and  addi- 
tional usa  In  such  cases,  generally  the  person  owning  the 
fee  is  entitled  to  remuneration.  Thus  where  a  railroad  ap- 
propriated a  strip  100  feet  wide,  built  its  track  on  one-half  the 
width,  and  sold  to  another  railroad  the  right  to  lay  its  tracks 
on  the  other  half,  to  the  injury  of  the  original  owner's  land,  it 
was  held  the  original  owner  had  a  right  to  recover.''^  Poles  for 
telephone  or  telegraph  wires  in  a  sidewalk  are  additional  servi- 
tudes.^^ So  poles  for  an  electric  light  company.'^  But  poles 
for  wires  for  an  electric  street  railway  are  not.^*     Pipes  for 


68  Sells   vs.   Col.    St.    Ry.    Co.,    28  ti  piatt    vs.    Penn.    Co.,    43    O.    S. 
Bull.  172.  228;    Penn   Co.   vs.   Piatt,   47   0.   S. 

See  Cincinnati  &  I.  E.  Pt.  Co.  vs.  366. 

Zinn,  18  0.  S.  417;  C.  &  P.  Ry.  Co.  72  Smith  vs.   Cent.   Dist.   Printing 

vs.  Stack-house,  10  0.  S.  567;  Cooper  &  Tel.  Co.,  2  C.  C.  259;   1  C.  D.  473. 

v.s.  Williams,  4  Ohio,  253,  286.  73  McLean  vs.  Brush  Elect.  Light 

69  Railroad  vs.  Commissioners,  63  Co.,  9   Bull.   65. 

0-  S.  29.  See  note  78  below. 

70  Mansfield  vs.   Balliet,   65   0.   S.  V4  Simmons  vs.  City  of  Toledo,  8 
451.  C.  C.  535;  4  C.  D.  69;  Mt.  Adams  & 

As  to  discussion  of  extent  of  pub-  E.  P.  Incl.  Ry.  vs.  Winslow,  3  C.  C. 

lie  easement  in  highway,  see  49  Bull.  425 ;  2  C.  D.  240. 
14. 


1461 


TAKING   WITHOUT    RIGHT 


§1670 


natural  gas  are  an  additional  senatude,"  but  the  making  of 
sewers  in  a  street  is  not."  The  occupation  of  a  highway  by  a 
railroad  is  unlawful/^ 

It  has  recently  been  held  that  telephone  poles  in  a  city  are 
not/®  but  a  different  nile  is  applied  in  a  highway  in  the  coun- 
try/" and  an  electxic  railway  in  the  city  is  not  an  additional 
servitude/"  unless  it  is  on  a  different  grade, *.^ 

Where  the  grade  of  a  street  is  changed  recovery  can  only  be 
had,  first,  where  one  builds  to  an  established  grade,  and  it  is 
changed;  second,  where  he  builds  before  a  grade  is  established 
and  afterwards  a  grade  was  established,  and  the  grade  after 
being  so  established  is  dianged ;  third,  where  one  builds  before 


75  Webb  vs.  Ohio  Gas  Fuel  Co.,  16 
Bull.  121. 

76  City  of  Cinn.  vs.  Penny,  21  0. 
S.  499. 

77  Little  Miami  Ry.  Co.  vs.  Nay- 
lor  2  O.  S.  235 ;  Parrot  vs.  C.  H.  & 
D.  R.  R.  Co.,  10  0.  S.  624;  Ry.  Co. 
vs.  Gardner,  45  0.  S.  309;  C.  I.  St. 
L.  &  C.  Ry.  Co.  vs.  Pfitzer,  Goebel, 
248. 

78  Auerach  vs.  Cuyahoga  Tel.  Cb. 
&  Cleve.  Elec,  etc.,  Co.,  7  N.  P.  633 ; 
9  Dec.  389. 

The  case  of  Callen  vs.  The  Colum- 
bus Ed.  Elec.  Light  Co.,  47  Bull. 
448;  66  0.  S.  166,  limits  the  doc- 
trine to  poles  put  down  for  public 
service.  If  for  private  gain,  the 
owTier   is  entitled   to   compensation. 

79  Denver  vs.  U.  S.  Tel.  Co.,  10 
Dec.  273. 

80  Sanfleet  vs.  City  of  Toledo,  10 
C.  C.  460;   8  C.  D.  711. 

It  has  recently  been  held  that  an 
Interurban  R.  R  laid  on  the  side  of 
a  public  highway  is  an  additional 
burden  and  the  owner  is  entitled  to 
compensation.  Schaff  vs.  C.  M.  & 
S.  P.,  47  Bull.  455;  66  0.  S.  215. 

The  right  of  an  owner  of  a  lot 
abutting  upon  a  street  to  access 
thereto  is  "property"  but  is  subor- 
dinate to  the  right  and  duty  of  the 
municipality  to  grade  and  otherwise 
improve  and  maintain  the  street  ir:  a 
suitable  condition  to  answer  tlie  pur- 
poses of  its  acquisition.  East  End 
Banking  Trust  vs.  Cleveland,  1  N.  P. 
(N.S.)  493;  14  Dec.  33;  49  Bull. 
33. 


The  land  held  by  a  railway  com- 
pany which  is  not  needed  or  used 
for  the  proper  exercise  of  its  fran- 
chise may  be  taken  .«nd  subjected 
to  an  adiiitionaf  use.  C.  C.  C.  &  St. 
L.  R.  R.  vs.  U.  B.  &  N.  U.,  5  C.  C. 
(N.S.)  583;  16  Cir.  D.  180;  af- 
firmed, no  report,  73  0.  S.  364;  26 
0.  C.  C.  180;   affirmed  73  O.  S.  364. 

Land  for  a  sidetrack  may  be 
taken.  State  e<c  rel.  vs.  Toledo,  1  C. 
C.  (N.S.)  513;  14  Cir.  D.  321;  af- 
firmed 69  0.  S  550;  24  0.  C.  C. 
321. 

An  electric  road  in  a  street  or 
highway  is  not  au  airditional  servi- 
tude, when?  Ry.  vs.  Kcsk,  23  0.  C. 
C.   57. 

The  use  of  a  street  by  a  railway 
company  is  not  inconsistent  with  its 
use  by  the  city  for  street  purposes. 
Cin.  vs.  Kirchner  &  Co.,  1  N.  P. 
(N.S.)   93;   13  Dec.  327. 

A  new  and  inconsistent  use  of  a 
street  is  not  necessarily  a  taking  of 
private  property  within  the  consti- 
tution. It  must  be  sudi  use  as  pal- 
pably and  injurrously  alfects  the 
adjacent  property,  and  to  j)lead  or 
prove  merely  the  invasion  of  a  pri- 
vate riglit  does  not  stir  the  con- 
science in  a  Court  of  Equitv.  Burns 
vs.  Telephone  Co.,  3  N.  P.  (N.S.) 
257;  17  Low.  D.  731;  affirmed  10 
C.  C.  (N.S.)  307;  20  Cir.  D.  74; 
affirmed,  no  report,  76  0.  S.  589 ;  30 
O.  C.  C.  74. 

«i  Oviatt  vs.  Akron  St.  Rv.  Co., 
2  N.  P.  84;   3  Dec.  252. 


§  1671  APPROPRIATION  1462 

a  grade  is  established  and  afterwards  an  unreasonable  grade  is 
established.^^ 

The  Ohio  cases  on  this  question  are  all  reviewed  in  Lewis 
on  "  Eminent  Domain."  *^ 

§  1671.     Compensation. 

The  Constitution  provides  **  that  full  compensation  shall  be 
first  made  in  money  iiTespective  of  any  benefit  proposed  by  the 
corporation.  This  means  that  when  property  is  taken,  the 
owner  is  entitled  to  its  fair  marketable  value.®^ 

In  order  to  be  fully  compensated,  it  is  said :  "  It  must  be  a 
remuneration  or  recompense  for  that  detriment  or  loss  to  the 
owner  in  the  value  of  his  property  arising  from  the  taking  of 
his  property  in  connection  with  the  use  for  which  it  is  taken. 
The  compensation  must  be  broad  enough  to  cover  the  full  loss 
in  value  which  the  owner  suffers  in  hffe  property  by  means  of 
the  appropriation."  ®® 

In  appropriation  proceedings  the  terms  "  compensation " 
and  "  damages  "  have  different  and  distinct  meanings ;  "  com- 
pensation "  means  the  sum  of  money  which  will  compensate  the 
owner  for  the  land  actually  taken,  irrespective  of  any  benefits 
to  remaining  lands.  "  Damages  "  is  an  allowance  made  for 
any  injury  that  may  result  to  the  remaining  lands  by  reason 
of  the  construction  of  the  proposed  improvement,  after  making 
all  due  allowance  for  special  benefits  resulting  thereto.®^ 

82  City  of  Akron  vs.  Chamberlain  st  Ohio   Southern  R.  R.  vs.   Raw- 
Co.,  34  0.  S.  328.                                       lins,  29  Bull.  260. 

83  §  98,  See  0.  S.  R.  R.  vs.  Snyder,  5  N. 
See  Mills  on  Em.  Dom.,  §§  32,  33,      P.  461;  5  Dec.  480. 

34   and  35.  The  definition,  or  rather  th'e  divi- 

It    has    recently   been    held    by    a  sion  of  the  question  of  compensation 

Superior    Court    of    Cincinnati   that  as  above  indicated,  results  from  the 

where  a  Telephone   Co.   had   a   per-  nature  of  the  oath  administered  to 

mit  from  the  city  to  plant  poles  in  the  jurors,  and  only  becomes  niate- 

the    sidewalk    there    was    no    addi-  rial  when  considering  the  queati'on  of 

tional    servitude,   unless   special    in-  benefits. 

jury  be   shown.  See  C.  D.  &  M.  E.  Ry.  vs.  Knauss, 

84  Art.  13,   §  5,  previous   §  1664.  47  Bull.  ■607. 
83Giesy  vs.  C.  W.  &  Z.,R.  R.  Co.,  See   §  170<j. 

4  0.  S.  309.  The  damages  must  be  confined  to 

80  C.  &  P.  R.  R.  Co.  vs.  Ball,  5  0.      the  present  use  of  the  lands.     C.  C. 

6.  568.  C.  &   St.   L.   R.   R.   vs.   Cordrav.    10 

C.  C.   (N.S.)   St;  30  0.  C.  C.  630. 


1463  COMPENSATION BENEFITS  §1672 

§  1672.     Benefits. 

Both  sections  of  the  Constitution  provide  that  such  compen- 
sation shall  be  made  without  deduction  for  benefits,  etc.  The 
question  then  arises,  does  this  constitutional  provision  forbid  a 
consideration  of  all  questions  of  benefits  in  appropriation  of 
property?  There  is  no  doubt  but  that  benefits  of  a  general 
nature,  which  are  tliose  that  are  common  to  the  community  at 
large,  can  have  no  effect  upon  tlie  question  of  what  should  be 
allowed  the  owner  as  compensation  or  damages.  But  whether 
special  benefits,  which  are  defined  to  be  such  as  appreciably 
enhance  the  value  of  the  particular  tract  of  land  alleged  to  be 
benefited,^®  can  be  shown  to  affect  the  amount  to  be  allo^ved  the 
o%vner  as  damages,  is  a  matter  about  which  there  is  a  differ- 
ence of  opinion.  Unquestionably  im^der  our  Constitution  they 
cannot  be  shown  to  affect  the  amount  to  which  the  owner  is  en- 
titled for  the  land  actually  takem  But  when  it  comes  to  oonr 
sidering  the  damages  to  the  residue,  it  has  always  been  the 
opinion  of  the  author  that  the  same  could  be  shovm.^^  The 
reasons  for  such  a  holding  are  fully  set  forth  in  the  opinion  of 
the  O.  S'.  R.  R.  vs.  Rawlins.®"  The  same  view  has  been  taken 
by  a  District  Court  in  C.  &  A.  Ry.  Co.  vs.  Williams.®^ 

In  a  recent  case  it  was  said,  in  reference  to  the  case  of  Cleve. 
&  Pitts.  R.  R.  Co.  vs.  Ball,®^  that  local  incidental  peculiar  bene- 
fits, which  will  accrue  to  the  land  owner,  cannot  be  deducted 
from  the  land  taken,  but  may  be  deducted  from  the  incidental 
damages  to  other  lands  which  the  land  owner  will  suffer  by  rea- 
son of  the  appropriation.®*     Admitting  that  special  benefits 

88  10  Am.  &  Eng.  Ency.  of  Law,  2  excavation  of  the  railroad  track  has 
ed.  1176.  the    effect   to   better   drain   and   re- 

89  See  O.  S.  R.  R.  Co.  vs.  Rawlins,  claim  wet  and  swamp  lands,  and 
29  Bull.  260;  O.  S.  R.  R-  Co.  vs.  to  render  them  more  valuable, 
Snyder,  5  N.  P.  461;  5  Dec.  480.  should  be  taken   into   consideration 

90  29  Bull.  260.  by  the  jury  in  determining  how 
02  9  Bull.  253.  mtich  less  valuable  if  any  the  lands 
In  this  case  it  was  held  that  the      not  appropriated  are  by   reason   of 

Probate  Court  erred  when  it  refused  the  appropriation.     Id.  256. 

to     charge     as     follows:     "Special  93  5  O.  S.  575. 

benefits  such  as  accrue  solely  to  the  »*  Lorain  St.  Ry.  Co.  vs.  Sinning, 

owner  of  the  lands  from  which  the  17  C.  C.  658;  6  C.  D.  752. 

right  of  way  is  taken,  as  when  the 


§  1672  APPROPRIATION  1464 

may  be  offset  against  special  injuries,  the  question  yet  remains 
as  to  what  will  constitute' special  benefits.®'' 

In  the  case  of  O.  S.  E.  K.  Co.  vs.  Snyder,  the  Court  charged 
the  jury  as  follows :  "  You  should  not  consider  remote  or  spec- 
ulative benefits  that  may  be  conferred  on  said  lands  by  the 
building  of  said  proposed  railroad.  Such  as  that  some  parts  of 
said  land  may,  at  some  time,  be  needed  for  stock  yards,  eleva- 
tors, etc. ;  neither  are  you  to  consider  benefits  of  a  general 
nature,  such  as  a  supposed  enhancement  of  the  value  of  the  re- 
maining lands  by  increased  facilities  for  travel  or  transporta- 
tion, or  the  growth  of  towns.  But  if  a  new  use  is  conferred 
upon  the  remaining  lands  by  the  building  and  operation  of  the 
proposed  railroad,  specially  applicable  to  such  lands  alone,  be 
it  for  the  purpose  of  stock  yards,  elevators,  manufacturing  es- 
tablishments, a  mill  or  a  stone  quarry,  and  such  new  use  add? 
to  or  increases  the  market  value  of  such  remaining  lands,  suck 
is  a  special  beneficial,  use,  and  should  be  considered  by  you  it 
determining  how  much  less  valuable  such  remaining  lands  are 
worth  by  reason  of  such  appropriation."  ^® 

95  In  Cleve.  &  Pitts  R.  R.  Co.  vs.  ties  supplied  by  the  railroad  for  thv 
Ball,  5  O.  S.  575,  it  was  said  that  transportation  of  the  coal,  the  own- 
where  a  local  benefit  or  advantage  is  er  ought  not  to  be  compensated  for 
blended  with,  or  has  a  direct  or  im-  the  disadvantage  beyond  its  actual 
mediate  connection  with,  or  bearing  value  to  him  in  the  enjoyment  of  his 
upon,  the  local  incidental  injury,  property.  Where,  in  the  construc- 
such  as  appears  in  tliis  case  in  the  tion  of  a  railroad,  a  ditch  or  excava- 
instance  of  the  obstruction  of  the  tion  is  made,  which  drains  a  swamp 
free  and  convenient  communication  and  renders  a  part  of  the  owner's 
between  the  coal-banks  and  river,  land  valuable,  which  had  been  pre- 
which  loss  may  be  either  totally  viously  of  little  or  no  value,  but  the 
or  partially  removed  by  the  facilities  same  dit«h  in  draining  the  swamp, 
for  the  transportation  of  coal  or  destroys  a  valuable  spring  of  water, 
market  afforded  by  the  railroad,  the  injury  and  benefit  may  be  so 
then,  the  local  advantage  or  benefit  blended  that  they  must  necessarily 
may  have  to  be  taken  into  considera-  be  taken  into  consideration  in  esti- 
tion,  in  order  to  estimate  the  extent  mating  the  compensation  to  be  made, 
of  the  loss,  if  any,  in  the  value  of  the  Id.  579. 
property,  caused  by  the  injury  or  96  5  N.  p.  454. 
disadvantage.  For  if  the  river  The  following  is  given  in  10  Am. 
transportation  for  getting  the  coal  &  Eng.  Ency.  of  Law,  2  ed,  1176,  as 
to  market  had  ceased  to  be  of  any  instances  of  special  benefits.  Pro- 
great  value,  by  means  of  the  facili-  viding  access  to  land  by  making  a 


1465  EVIDENCE  §  1673 

§  1673.     Evidence,   etc. 

Our  statute  provides  that  tlie  land  owner  shall  have  the  right 
to  open  and  close  the  case.  From  this  would  follow  that  upon 
the  landholder  rests  the  burden  of  proof.®^  The  ordinary  rules 
of  evidence  apply  in  condemnation  proceedings.  The  ques- 
tion at  issue  in  all  cases  is  the  amount  of  money  to  which  the 
land  owner  is  entitled  by  reason  of  the  appropriation.  The 
determination  of  this  question  being  one  of  value,  is  one  upon 
which  the  witness  may  give  his  opinion."^ 

In  an  early  case,  A.  &  G.  W.  E.  E.  Co.  vs.  Campbell,^*'  the 
Supreme  Court  laid  down  the  rule  that  a  witness  could  not 
answer  tlie  direct  question  as  to  the  amount  of  damages  in- 
curred by  the  land  owner  by  reason  of  the  appropriation,  talcing 
into  consideration  the  injuries  resulting  tliereto,  but  held  that 
a  witness  might  testify  as  to  the  value  of  the  land  before  and 
after  the  location  of  the  railroad.  This  decision  was  the  foun- 
dation in  Ohio  of  what  always  appeared  tO'  the  autlior  as  an 
illogical  rule.      Under  this  decision,  the  proper  question  to  be 

public  road,  Hire  vs.  Kniseley,  130  the  formation  and  maintaining  of  a 

Ind.    295;     Allen    vs.    Cliarlestown,  millpond   by   the   construction   of   a 

109   Mass.   243;    the  widening  of   a  necessary  embankment,  Sullivan  vs. 

street,  thus  rendering  the  remainder  North  Hudson  Co.  K.  Co.,  51  N.  J.  L. 

more  valuable.     Cross  vs.  Plymouth  518;    40  Am.   &  Eng.   R.   Cas.   324; 

County     125   Mass    557;    improving  Washburn    vs.    Milwaukee,    etc.,    R. 

the  land  by  filling  in  a  canal,  Whit-  Co.,  59  Wis.  364;  20  Am.  &  Eng.  R. 

man  vs.  Boston,  etc.,  R.  Co.,  3  Allen  Cas.  225. 

(Mass.)     133;     providing    sewerage.  See    §§1706,    1713,    1748,    1851. 

Lipes  vs.  Hand,  104  Ind.  503;  French  97'See    §1710,   as   to   whether  the 

vs    Lowell,  117  Mass.  363;  the  con-  view  is  evidence, 

struction  of  a  railwav  station  near  0.  S.  Ry.  Co.  vs.  Snyder,  5  N.  P. 

by,  so  as  to  render  shipping  conven-  461;    5    Dec.    4S0;     Lewis    on    Em. 

lent  to  the  remainder,  Shattuck  vs.  Dom.   §  426. 

Stoneliam    Branch    R.    Co.,    6    Allen  In  a   recent  case   it  is  held  that 

(Mass.)      115;     Bookman    vs.     New  in    an    action    to    condemn    private 

York    El     R     Co,    137    N.    Y.    302;  property  by  municipal  corporations 

contra,    Washburn    vs.    Milwaukee,  there  are  no  formal   pleadings    and 

etc.,  R.   Co.,   59   Wis.    364;    tlie   ad-  the  doctrine  of  burden  of  proof  has 

vantage  of  bein,"-  able  to  connect  an  no    application.      Tlie    jury    merely 

industVial    work    with    a    railroad,  acts   as   an   appraising  or  assessing 

Colorado  Cent.  R.  Co.  vs.  Humphrey,  board,  determining  the  fair  market 

16   Colo     34-    Russell    vs.   St.    Paul,  value  of  the  property  from  all  tlie 

etc    R.  Co.,  33  Minn.  210;  Pittsburg.  evidence     submitted.        Martin     vs. 

etc'  R.  Co.  vs.  Robinson,  95  Pa.  St.  Columbus,  101  O.  S.  — . 

420-    1    Am     &    Eng.    R.    Cas.    468;  Query:       Would    the     same    rule 

draining  of  marsh  lands,  Roberts  vs.  apply  to  where  a  private  corporation 

Brown  Co.,  21  Kan.  247;   Washburn  seeks  to  condemn? 

vs    ^lilwaukee,  etc.,  R.  Co.,  59  Wis.  »»  Lewis    on    Em.    Dom.    435. 

364:    20   Am.   &   Eng.   R.   Cas.   225;  '•*»  4  O.  S.  585. 


§  1673  APPROPRIATION  14G6 

propounded  upon  examination  in  chief,  seems  to  be,  how  much 
less  valuable  will  the  remaining  lands  of  the  land  owner  be 
worth,  with  the  proposed  appropriation,  than  the  owner's  lands 
are  now  worth  without  such  appropriation  ?  And  then,  on 
cross-examination,  the  witness  may  be  tested  as  to  his  reasons 
for  the  conclusion  given.  In  order  for  the  witness  to  answer 
the  question  propounded,  he  must  in  his  own  mind  grasp  to- 
gether the  various  matters  and  form  a  conclusion  just  as  much 
as  if  he  were  allowed  to  answer  the  question  directly,  what 
amount  of  damages  do  you  think  would  be  sustained  by  reason 
of  the  location  and  construction  of  the  railroad,  etc.  ? 

In  reference  to  the  Ohio  method,  Lewis  very  justly  says: 
"  Why  a  witness  should  not  be  allowed  to  state  at  once  and  di- 
rectly his  opinion  of  the  amount  of  damages  or  benefits  in 
answer  to  a  single  question,  instead,  of  stating  it  indirectly  in 
answer  to  two  questions,  we  are  unable  to  perceive.  The  dis- 
tinction attempted  to  be  maintained  between  the  two  methods 
is  witliout  any  substantial  difference  and  must  eventually  be 
abandoned."  "° 

Before  a  witness  is  allowed  to  testify,  he  must  in  some  man- 
ner show  that  he  is  competent  to  give  an  opinion ;  this  matter 
is  largely  left  to  the  trial  judge.^"^  Generally,  in  such  mat- 
ter, the  testimony  of  witnesses  offered  is  received  and  the 
weight  to  be  attached  thereto  is  left  with  the  jury. 

In  Powers  vs.  Ey.  Co.,^°"  where  it  was  said  that  the  differ- 
ence in  the  value  of  the  owner's  property  with  the  appropria- 
tion and  that  without  it,  is  the  rule  of  compensation.      That  this 

100  Lewis  on  Em.   Dom.   §  436.  case  in  its  beginning  •would  confine 

Lewis    quotes    extensively     in    a  themselves  to   the   rule  adopted   by 

note  from  the  opinion  of  R.  &  S.  R.  the  Supreme  Court,  before  the  case 

R.  Co.  V.  Budlong,  10  How.  Pr.  289.  was  ended,  it  generally  happened  by 

During  the  author's  experience  as  common   consent,   that   the   witness' 

Probate  Judge,  of  Clark  County,  he  was   allowed    to    answer   the   direct 

presided  over  a  number  of  condem-  question;  yet  generally  the  rule  of 

nation  cases   for  railroads,   ditches,  the    Supreme    Court    Avas    followed. 

etc.,   and  the  rule   adopted   by   our  O.  S.  R.  R.  Co.  vs.  Snyder,  5  N.  P. 

Supreme  Court  was  found  to  be  one  461 ;  5  Dec.  480. 

which   it  was  almost  impossible  to  loi  Lewis  on  Em.  Dom.,  §  437. 

follow  with  any  degree  of  satisfac-  102  33  Q.  S.  429. 

tion:  and  while  the  attorneys  in  the 


1467 


EVIDEJSfCE 


§1673 


difference  must  be  ascertained  with  reference  to  the  value  of 
the  property  in  view  of  its  present  character,  situation  and  sur- 
roundings, and  that  it  cannot  be  enhanced  by  proving  facts  of  a 
contingent  and  prospective  character,  such  as  the  probable  rents 
that  may  be  derived  from  the  property,  or  its  special  value  as 
a  prospective  monopoly  to  the  adjoining  lands  of  other  per- 
sons." It  has  also  been  held  that,  in  condemning  land  for 
water  works  purposes,  the  fact  that  said  lands  are  specially 
adapted  for  reservoir  purposes  is  not  admissible  in  evidence 
and  cannot  be  considered  by  the  jury  in  determining  its  market 
value."^ 

In  finding  the  value  of  land,  the  jury  should  consider  its  ab- 
stract value  and  also  its  relative  value  in  connection  with  the 
rest  of  the  tract,  etc."* 

The  owner  may  show  that  before  any  expectation  of  ap- 
propriation he  had  platted  the  land,  the  jury  are  to  decide 
whether  the  value  in  bulk  or  as  subdivided  shall  be  taken, 
though  there  has  been  no  binding  dedication."^ 

103  Gibson  vs.  City  of  Norwalk,  13       tion  affecting  rent  and   considering 


C.  C.  428;  7  C.  D.  6. 

In  the  case  of  0.  S.  R.  R.  Co.  vs. 
Snyder,  5  N.  P.  4G1;  5  Dec.  480,  a 
number  of  questions  arose  in  refer- 
ence to  the  method  of  proving  the 
value  of  the  lands  appropriated. 
Such  as  its  value  and  the  damages  to 
be  considered  by  several  tracts  of 
land  by  their  connection,  etc. 

104  Lorain  St.  Ry.  Co.  vs.  Sinning, 
17  C.  C.  649;  6  C.  D.  753;  C.  &  P.  R. 
Co.  vs.  Ball,  5  O.  S.  568;  C.  &  S. 
Ry.  Co.  vs.  Longworth,  30  0.  S.  108. 

105  Id.  108. 

In  the  case  Of  Cincinnati  vs.  Neff, 
20  Bull.  8,  the  following  general 
rules  were  laid  down.  The  owner  is 
entitled  to  the  fair  and  reasonable 
but  full  value  ascertained  by  the  evi- 
dence of  experts.  Rental  derived 
with  such  regularity  as  to  make  a 
continuance  probable  is  a  valuable 
test,  taking  into  account  the  prob- 
able life  of  buildings  and  deprecia- 


tiie  rent  of  all,  so  as  to  eliminate 
inequality  by  variance  in  rent 
charges.  Enhancement  in  values 
by  the  prospect  of  the  improvements 
must  be  allowed  to  the  owner. 
Buildings  are  not  to  be  valued  as 
old  materal,  but  as  if  they  were  to 
remain  in  use  on  the  lot.  Lessees 
are  entitled  so  far  as  the  value  or 
rent  for  the  term  exceeds  the  ground 
rent,  keeping  in  mind  the  covenants 
to  repair,  etc.  Movable  fixtures  are 
to  be  valued  by  the  difference  in 
value  where  they  are  and  else- 
where. Probabilities  are  not  to  be 
considered  except  as  affecting  pres- 
ent values.  The  burden  to  estab- 
lish values  is  on  the  owners. 

And  in  Toledo  &  O.  Cen.  Ry.  vs. 
Fostoria,  7  C.  C.  293;  4  C.  D.  602, 
the  following  was  laid  down:  The 
damages  for  appropriating  a  street 
across  railway  lands  are: 

1.     The  land  actually  taken. 


^1673 


APPROPRIATION 


1468 


The  propriety  of  allowing  proof  of  the  sales  of  similar  prop« 
erty  to  that  in  question,  says  Lewis,^°®  made  at  or  about  the 
time  of  the  taking,  is  left  very  much  in  doubt  by  the  authori- 
ties. The  better  rule  seems  to  be  in  favor  of  admitting  such 
testimony  provided  the  land  taken  is  of  similar  quality,  etc.,  as 
that  which  has  been  recently  sold.  It  is  not  competent  to 
give  testimony  as  to  what  the  corporation  had  offered,  etc.,^"^ 
and  what  the  owner  paid  for  the  land  is  generally  held  to  be 
incompetent.  Likewise  it  is  not  competent  to  offer  evidence 
as  to  the  price  for  which  adjoining  lands  may  be  bought.^"^ 

Tax  returns  of  property  have  been  held,  are  competent,  and 
may  be  allowed  to  go  to  the  jury  and  be  considered  by  them."® 

A  witness  may  be  asked  how  much  a  well  situate  on  the  prem- 
ises costs.      Likewise  the  value  of  trees,  eto.^^^ 

Expert  testimony  is  not  necessary.  Persons  living  in  the 
neighborhood  who  have  bought  and  sold  property  end  know  the 
land  are.competent.^^^ 


2.  The  burden  imposed  on  the 
railway  by  statute,  as  for  sidewalks, 
flooring,  cattle  guards,  repair  of 
crossings,  etc.,  not,  however,  include' 
ing  delay  of  trains. 

3.  The  damages  to  the  remainder 
of  the  railroad  yards  by  the  opening 
of  each  street,  without  reference  to 
the  other  streets  opened  at  the  same 
time. 

106  I^ewis  on  Em.  Dom.,  §  443. 

107  C.  &  W.  Turnpike  Co.  vs.  City 
of  Cincinnati,  19  C.  C.  607;  10  C.  D. 
288 

108, See  O.  S.  R.  R.  Co.  vs.  Snyder, 
5  N.   P.  401;    5  Dec.  480. 

109  T.  C.  St.  R.  R.  Co.  vs.  Toledo 
Elect.  St.  R.  R.  Co.,  12  C.  C.  367;  5 
C.  D.  643. 

no  Foote  vs.  The  L.  &  C.  R.  R.  Co., 
21  C.  C.  319. 

Ill  17  Bull.  328;  31,  260  Cin.,  etc., 
vs.  Neff,  20  Bull.  8. 

See  §S  1713,   1748. 

It  is  error  to  exclude  testimony 
as  to  the  general  selling  price  of 
land   in   the   neighborhood,   or   price 


the  defendant  paid  a  little  more 
than  a  year  before  trial.  It  is 
proper  to  show  the  value  of  the  land 
separate  from  the  buildings  thereon, 
and  also  tlie  value  of  the  buildings. 
The  aggregate  of  the  two  is  the 
value  of  the  parcel  taken.  Cleveland 
Terminal  &,  Valley  Ry.  Co.  vs.  Gor- 
such  et  al,  8  C.  C.  (N.S.)  297; 
28  0.  C.  C.  468;  7«  O.  S.  609. 

In  considering  the  fair  market 
value  of  property  sought  to  be  con- 
demned, the  jury  may  resort  not 
only  to  the  evidence  before  them, 
but  may  consider  also  in  connection 
therewith  their  own  good  sound 
judgment  as  to  the  value.  Union 
Grain,  etc.  vs.  Cincinnati,  33  0.  C. 
C.  .509. 

In  determining  the  value  of  real 
estate  a  property  owner  may  offer 
evidence  as  to  the  value  of  improve- 
ments separate  from  the  land  and 
show  the  value  of  the  land  separate 
from  the  improvements.  Linesh  vs. 
Board  of  Ed.,   13  0.  App.  — . 


1469 


CONDEMNATION   BY   PRIVATE   CORPORATIONS 


§1674 


CHAPTER  XCIV. 

CONDEMNATION  PROCEEDINGS  BY  PRIVATE 
CORPORATIONS. 


§  1674     To  what   chapter  applies.  §  1700 

§  1675     To  what  does  not  apply.  §  1701 

§  1676     When  appropriations  can  be 

made.  §  1702 

§  1677     Appropriation    of     property 

of  minors,  idiots,  imbecile       §  1703 
or  insane  person. 

§  1677a  Notice  to  ward. 

§  1678  Proceedings  under  §  11040  §  1704 
G.  C. 

§  1679  Petition  for  appropriation  §  1705 
filed  in   Probate   Court.  §  1706 

§  1680     Where  to  be  filed. 

§  1681  Petition  may  include  one  or  §  1707 
more  parcels.  In  what  §  1708 
county  to  be  filed. 

§  1682     When    probate    judge    inter- 
ested,    proceedings     to     be 
commenced      in      Common       §  1709 
Pleas.     Special  term  of.  §  1710 

§  1682a  Procedure  in  common  pleas.       §  1711 

§  1682b  Wlien    corporation     entitled 
to   possession. 

§  1683     Nature    of    proceedings.  §  1712 

§  1684     Amendments  allowed. 

§  1685  Time  of  trials.  Adjourn-  §  1713 
ment.     Discharge  of  juries. 

§1686     Essentials    of    petition.  §1714 

§  1687     Parties,    etc.  §  1714a 

§  1688     Form  of  petition.  §  1715 

§  1689     Filing    the    petition,    entry, 
etc. 

§  1690     Summons,  its  command  and       §  1715a 
service  thereof.    Alias  sum- 
mons. 

§  1691     Notice.  §  1710 

§  1692     Service  by   publication,  liow 

proved.  §  1717 

§  1693     Affidavit  and  form  of  notice.      §  1718 

§  1694     Court    to    appoint    attorney 

for  party  absent  or  under       §  1719 
disability. 

§  1695     .Jurisdictional  questions.       §  1720 
When  to  be  heard  and  de- 
termined.  Burden  of  proof. 

§  1696     When   to  be   heard. 

§  1697     Existence    of    corporation.  §  1720a 

I  1698     Right    to    make    appropria-       §  1720b 
tion. 

§  1699    Inability  to   agree. 


Necessity  for  appropriation. 
Jurors    to    be    drawn    from 

box   and   venire   issued. 
Finding  and   order   to   draw 

jury. 
How     panel     to     be     filled; 

jurors    to    be    interrogated 

by  Court. 
Challenge  to  jurors  and  how 

vacancies   filled. 
Challenge  of  jury. 
Oath   to  be  administered  to 

jury. 
View    of    premises. 
Judge  must  deliver  to  sheriff 

description      of      property. 

May  appoint  persons  to  be 

present  at  view,   etc. 
Entry  impaneling  a  jury. 
Is   the   view   evidence? 
Separate  owners  entitled  to 

separate  trial.     They  hold 

the    affirmative    on    trial. 
Motion    for    separate    trial, 

entry,  etc. 
Witnesses  may  be  examined 

before    jury. 
Trial,    etc. 
Burden   of   proof. 
When  a  structure  is   partly 

on     land     sought      to     be 

appropriated. 
Verdict.       Motion     for     new 

trial,     etc.        Confirmation 

of  verdict. 
Form   of  entry  and  verdict, 

etc. 
Motion    for    new    trial,    etc. 
New       trial.         Proceedings 

thereon.      Costs. 
Entry     confirming     verdict, 

etc. 
Petition     in    error    may    be 

filed    by    citiier    party     in 

Common   Pleas,  when.    Bill 

of  exceptions. 
Petition   in   error. 
Corj)oration   may   pay  judg- 
ment  and    enter    on    prop- 
erty. 


§1674 


CONDEMNATION   BY   PRIVATE  CORPORATIONS 


1470 


§  1721     When   error   may   be   prose-       §  1733a 
cuted.  §  1733b 

§  1722  Proceedings  in  Common  §  1733c 
Pleas  on  error.     Costs. 

§  1723  When  corporation  may  have  §  1733d 
possession. 

§  1724     Entry    when    deposit    made.       §  1734 

§  1725     "\^lien   an!   how   corporation 

may   abandon   proceedings.       §  1735 

§  1726     What    is    an    abandonment. 

§  1726a  When  action  may  be  brought 
for   costs,  etc. 

§  1727     Entry  of  distribution  where 

there     are     no     conflicting      §  1735a 
claims. 

§  1728     When     Probate     Court     can 
not  order  distribution. 

§  1729     Conflicting   claims   adjudica-       §  1736 
ted      in      Common      Pleas.       §  1737 
Petition    tlierefor.      Dispo- 
sition of  fund.  §  1738 

§  172na  Custody    of    the    funds.  §  1739 

§  1730     Riich  proceedings  a  civil  ac- 
tion. §  1740 

§  1731  When  unfinished  roadbed  of  §  1741 
railray  company  may  be  §  1742 
condemned.  §  1742a 

§  1731a  Construction    of    terms.  §  1743 

§  1732     Judgment  and  costs  in  such       §  1744 
case.     When  jury  to  deter- 
mine amoujit  of  compensa- 
tion. '  §  1745 

§  1733  In  what  Courts  such,  pro-  §  1746 
ceedings  may  be  com-  §  1747 
menced  and  how  conducted. 


Error. 

Statement    of    intention. 

Failure  to  occupy  roadbed 
one    year. 

Interpretation  of  word 
"roadbed." 

When  land  owner  may  com- 
pel  appropriation. 

When  landowners  or  school 
officers  may  notify  corpo- 
ration to  institute  pro- 
ceedings; petition  on  fail- 
ure of  corporation  to  act. 

Demand  of  written  state- 
ment describing  tlie  land 
occupied  without  appro- 
priation. 

Wlio  may  bring  action. 

When  and  where  action 
brouglit. 

Notice    to    corporation. 

Demand  of  description  of 
property. 

Essentials    of    petition. 

Form   of    petition. 

Simimons   in   sucli   case. 

Summons   in   sucli  case. 

Procedure,   etc. 

Wlien  corporation  may  be 
enjoined  from  occupying 
the  land. 

Motion    for    injunction,    etc. 

Tender  made  by  corporation. 

School  lands,  how  appro- 
priated. 


§  1674.     To  what  chapter  applies. 

The  proceedings  in  Court  to  appropriate  private  property 
for  a  public  purpose  under  the  power  of  eminent  domain  are 
known  as  condemnation  proceedings.  The  entire  proceedings 
in  Ohio  is  regulated  by  statute,  and  a  party  seeking  to  enforce 
a  condemnation  of  property  must  strictlj''  comply  with  these  stat- 
utory provisions.^  The  law  under  the  present  Constitution  was 
passed  on  April  30,  1852.- 

The  following  is  the  statutory  pro^asion  in  reference  to  mat- 
ters coming  within  this  chapter : 

"Appropriation  of  private  property  by  corporations  must  be 
made  according  to  the  provisions  of  this  chapter."  [R.  S. 
§6414.1 3 


1  7  Ency.  of  Pleadings  and  Prac. 
468;  Garvin  vs.  City  of  Columbus, 
5  N.  P.  236 ;  5  Dec.  233. 

2  50  Ohio  Laws,  201. 

3  §  11038  G.  C. 

The  final  judgment  of  the  Probate 
CJourt  under  this  section  and  those 


following,  is  res  ad  judicata  as  to  all 
questions  involved.  Dayton  &  M. 
Tr.  Co.  vs.  Dayton  &  U.  Ry.  Co., 
72  O.  S.  429;  affirming  \Aathout  re- 
port, 4  C.  C.  (N.S.)  329;  10  Cir. 
D.  1.     See  72  0.  S.  429. 

Does   not    deprive    Federal    Court 


1471 


TO    WHAT    APPLIES 


§1675 


§1675.  To  what  does  not  apply.  "The  provisions  of  this 
chapter  shall  not  apply  to  proceedings  by  state,  county,  town- 
ship, district,  or  municipal  authorities,  to  appropriate  private 
property  for  public  uses,  or  for  roads  or  ditches.  In  all  such 
cases  it  shall  be  optional  with  such  authorities  to  pay  the  judg- 
ment rendered  against  them,  or  to  pay  the  costs  and  decline  to 
take  the  property  sought  to  be  appropriated."     [R.  S.  §  6453.]* 

§  1676.  When  appropriations  can  be  made.  ' '  Appropria- 
tions can  be  made  only  when  the  corporation  is  unable  to  agree 
with  the  owner,  or  his  guardian  or  trustee,  as  to  the  compensa- 
tion to  be  paid  for  the  property,  or  easement  or  interest  therein, 
sought  to  be  appropriated,  or  when  the  owner  is  incapable  of 
contracting  in  person  or  by  agent,  and  has  no  guardian  or 
trustee,  or  is  unknown,  or  his  residence  is  beyond  the  state,  or 
unknown."     [R.  S.  §  6415.]^ 


of  jurisdiction  in  proper  case. 
Postal  Tel.  Co.  vs.  Railway,  10  0.  F. 
D.  94;    94  Fed.  234. 

The  following  corporations  may 
avail  themselves  of  the  provisions  of 
this  chapter,  by  special  enactment: 
Railroad  companies  (§§8759,  8754, 
8780  G.  C.)  ;  Traction  railroads, 
(§9119  G.  C,  amended  1902)  ;  Tele- 
graph companies  (§§9172,  9177, 
9187,-  9188  G.  C.)  ;  Turnpike  or 
plankroad  companies  ( §  9232  G. 
C.)  ;  Bridge  com^panies  (§§9305, 
9306  G.  C.)  ;  Oaio  River  Bridge 
Ciompany  (§  9311  G.  C.)  ;  Hydraulic 
companies  (§10121  G.  C.)  ;  Avenue 
companies  (executed)  ;  Pipe  line 
companies  (§§3995-3998  G.  C.)  ; 
Owner  of  mine,  for  outlet  (§§10120- 
10132  G.  C-)  ;  Cemetery  Association 
(§§914-917  G.  C);  County  Com- 
missioners for  turnpike  (§§10095- 
10097  G.  C-.). 

See  §§  1748,   1811. 

4  §  11091  G.  C. 

Sec  §  1748  ct  seq.,  as  to  condemna- 
tion by  municipal  corporation. 

§9119  G.  C,  granting  power 
to  street  railways,  including  inter- 
urban    railways — it    has    been    held 


that  it  must  be  strictly  construed 
and  it  must  be  shown  that  it  is 
necessary  to  deviate  from  a  iiighway 
before  a  power  to  condemn  is  con- 
ferred. C.  D.  &  N.  Ry.  vs.  Marriott, 
47  Bull.  357;  Cemetery  Assn.  vs. 
Traction  Co.,  93  O.  S.  164. 

Act  now  (1902)  amended  to  in- 
clude tractions. 

It  has  recently  been  held  that  an 
interurban  electric  line  is  a  railway 
and  that  it  is  not  necessary  for  such 
company  to  go  through  the  ordinary 
course  pursued  bj''  city  lines  to  se- 
cure a  franchise  for  a  loop  over  city 
streets.  Like  a  steam  railway,  all 
that  is  necessary  to  appropriate  tlie 
right  of  way  and  pay  the  owners 
wliat  a  jury  may  allow.  47  Bull. 
755. 

:;§  11039  G.  C. 

This  section  of  the  General  Code 
seems  only  to  relate  to  one  par- 
ticular matter  which  must  exist  be- 
fore an  appropriation  can  be  made, 
to-wit:  the  fact  that  the  corpora- 
tion is  unable  to  agree  with  tlie 
owner,  etc.  The  fact,  however,  is, 
that  an  appropriation  can  only  be 
had  when  all  the  facts  exist  which 
are  to  be  heard  on  preliminary  liear- 


§  1677  CONDEMNATION    BY   PRIVATE    CORPORATIONS  1472 

^  1677.  Appropriation  of  property  of  minor,  idiot,  im- 
becile, or  insane  person.  "Under  this  chapter,  when  the  prop- 
erty of  a  minor,  idiot,  imbecile,  or  insane  person,  or  any  easement 
or  interest  therein,  is  sought  to  be  appropriated  by  a  corporation 
and  there  is  a  legally  appointed  guardian  of  the  person  and 
estate  or  of  the  estates,  or  trustee  of  such  minor,  idiot,  imbecile, 
or  insane  person,  and  the  guardian  has  agreed  with  the  corpora- 
tion upon  the  amount  of  compensation  to  be  paid  for  such 
property,  easement,  or  interest  therein,  he  may  file  with  the 
probate  court  of  the  county  wherein  the  property  is  situated,  a 
written  application  for  authority  to  convey  the  property  or 
interest  to  such  corporation.  The  application  must  fully  de- 
scribe the  property,  right,  easement  or  interest  therein,  sought 
to  be  conveved,  and  set  out  the  price  agreed  to  be  paid  for  it." 
fR.  S.  §  6415a.] « 

§  1677a.  Notice  to  ward.  "The  probate  judge  shall  order 
the  guardian  to  give  such  notice  as  he  deems  reasonable,  to  the 
ward,  of  the  filinsr  of  the  application,  and  of  the  time  set  for 
its  hearing.  At  the  time  for  the  hearing,  if  the  judge  finds  that 
notice  was  given  as  ordered  of  the  time  set  therefor,  that  the 
price  to  be  paid  is  just,  and  that  such  conveyance  will  be  to  the 
best  interest  of  his  ward,  he  shall  order  the  guardian  to  make 
and  execute  a  deed  to  the  corporation  for  the  property  or  in- 
terests upon  the  payment  of  the  price  agreed  upon  by  them." 
[R.  S.  §  6415a.]  «* 

§  1678.     Proceedings  under  §  11040. 

The  above  section  provides  a  very  simple  mode  for  the  trans- 
fer of  property  of  a  minor  to  a  corporation,  yet,  as  it  only  exists 
by  virtue  of  statute,  the  statute  must  be  strictly  followed  in 
order  to  carry  a  good  title ;  and  the  same  rule  in  that  respect 
would  prevail  as  applies  to  the  sale  of  a  minor's  real  estate 
generally."  In  the  succeeding  section  forms  for  execution  the 
provisions  of  sees.  11040,  11041,  G.'C,  will  be  given. 

ing,    that    is,    the    existence    of    the  Toledo,  9  C.  C.    (N.S.)   399;  29  0.  C. 

corporation,  the  right   to   make   the  C.  656;  affirmed  78  0.  S.  429. 

appropriation,  the  inability  to  agree  As  to  abutter's  consents,  see  Hume 

and  the  necessity  for  the  appropria-  vs.  Hamilton,  G.  &  C.  Traction  Co., 

tion.  13  Doc.  70. 

The   Probate   Court  has  no  juris-  "  §  11040  G.  C. 

diction  in  condemnation  proceedings  6*  §  11041   G.   C. 

whether  a  railroad  should  be  built  "  §  1404  et  seq. 
above   or    below   grade.      Toledo    vs. 


1473 


MINOR   BY   CONSENT 


1678 


FORM  OF  APPLICATION. 


In  the  Matter  of  L.  H.  L., 

Guardian  of  J.  W. 


Probate  Court,    

County,  Ohio. 
APPLICATION  TO  SELL  REAL  ES- 
TATE TO  CORPORATION. 

Now  comes  L.  H.  L.  and  represents  that  on day  of , 

190...,  he  was  appointed  and  duly  qualified  by  the  Probate  Court  of 
county,  as  guardian  of  J.  W.,  an  alleged  habitual  drunkard  and  im- 
becile, and  is  still  acting  as  such  guardian. 

He  further  represents  that  the  said  J.  W.  is  the  owner  in  fee  simple  of 
a  tract  of  land  situate   

He  further  represents  to  the  Court  that  the  C,  L.  &  S.  Ry.  Co.,  a  cor- 
poration, is  about  to  construct  an  electric  railway  along  said  National 
Road,  and  desires  to  piirchase  sufficient  land  adjoining  said  National  Road 
from  the  lands  of  the  said  Joseph  Wallingsford  upon  which  to  construct 
their    said    railway. 

He  further  represents  that  the  following  is  a  description  of  the  tract  of 

land  said  corporation  wishes  to  purchase  for  railwaj'  purposes,  to-wit : 

Said  guardian  further  represents  that  it  has  been  agreed  by  the  said 

guardian  and  the  said  corporation  that  the  sum  of  four  hundred  dollars 
would  be  a  reasonable  price  for  said  lands  to  be  used  for  the  purpose  of 
said  corporation.  And  in  addition  to  the  payment  of  said  price  agreed 
upon,  the  said  corporation  has  agreed  to  build  and  maintain  a  good 
woven-wire  fence  between  the  lands  purchased  by  it  and  the  remaining 
lands  of  his  said  ward,  and  to  provide  and  maintain  a  suitable  crossing 
for  each  field  or  lot  upon  said  farm  adjoining  the  lands  of  the  said  corpora- 
tion.    And  to  provide  and  maintain  gates  at  each  one  of  said  crossings. 

Wherefore  he  asks  that  an  order  may  be  made  by  this  Court,  authoriz- 
ing and  directing  the  said  L.  H.  L.,  as  guardian  of  said  J.  W.,  to  make 
and  execute  a  deed  in  fee  simple  to  said  corporation  for  said  property. 
And  that  a  time  be  fixed  for  the  hearing  of  this  application  and  that  notice 

thereof  be  issued  for  said  J.  W.,  directed  to to  be  served 

upon  said  J.  W.  without  delay. 


Sworn   to   before  me   and   subscribed   in   my   presence  this.  ;...  .day   of 
190... 


Entry   ORDERING   NOTICE. 


In  the  Matter  of  L.  H.  L., 

Guardian  of  J.  W. 


Probate  Court, 


.County,   Ohio. 


Entry. 


This  day  came  L.  H.  L.,  guardian  of  J.  W.,  and  filed  in  this  Court  his 
application  for  an  order  autnorizing  and  directing  him  to  convey  a  certain 
tract  of  land  therein  described,  belonging  to  the  said  J.  W.,  to  the  C,  L. 
&  S.  Ry.  Co. 

Whereupon  it  is  ordered  that  said  application  be  set  for  hearing  on  the 

day    of ,.    at o'clock,    and    that days' 

notice  thereof  be  given  to  said  J.  W.  of  the  time  of  hearing  of  said  applica- 
tion, and  that  said  notice  contain  the  price  to  be  received  for  said  tract 
of  land,  and  a  description  of  the  tract  to  be  conveyed.  Which  notice 
shall  be  directed  to to  be  by  him  served. 

FORM  OF  NOTICE. 

To 

You  are  hereby  directed  to  notify  J.  W.  that  an  application  has  been 
filed  in  this  Court,  by  L.  H.  L.,  guardian  of  said  J.  W.,  praying  for  author- 


§  1678  CONDEMNATION    BY   PRIVATE^   CORPOEATIONS  1474 

ity  to  convey  to  the  C,  L.  &  S.  Ry.  Co.,  for  the  consideration  of 

dollars,  and  the  erection  and  maintaining  of  a  woven-wire  fence  along  the 
lands  to  be  conveyed,  the  following  described  real  estate,   situate   in   the 

township  of ,   county  of ,  State  of  Ohio, 

bounded   and   described   as    follows : 

Said  application  has  been  set  for  hearing  on  the day  of 

at o'clock.     The  said  J.  W.  will  take  notice  of  the  prayer  of  said 

application  and  the  time  of  hearing  the  same. 

,   Probate  Judge. 

State  of  Ohio, County,   ss. 

R.  W.,  being  first  duly  sworn,  says  that  on  the  8th  day  of  July  he  served 
upon  the  said  J.  VV.  personally,  a  true  copy  of  the  above  notice. 


Sworn   to   before   me   and   subscribed   in   my   presence  this day   of 

190.  .. 


ENTRY   ORDERING   CONVEYANCE. 
In  the  Matter  of  L.  H.  L.,  1      Probate   Court, 


.County,  Ohio. 
Guardian  of  J.  W.  I  ENTRY. 

This  day  this  cause  came  on  to  be  heard  upon  the  application  and  the 
return  of  service  of  notice,  and  testimony,  and  was  submitted  to  the  Court. 
Whereupon  the  Court  finds  that  said  J.  VV.  has  had  due  and  legal  notice 
of  the  time  set  for  hearing  of  this  application,  and  that  the  price  to 
be  paid  by  tlie  C,  L.  &  S.  Ry.  Co.,  is  reasonable  and  just;  and  that  a 
conveyance  made  of  the  property  described  in  said  application  would  be  to 
the  best  interest  of  said  ward. 

Wherefore  it  is  ordered  that  said  guardian  shall  make,  execute  and 
deliver  to  the  said  C,  L.  &  S.  Ry.  Co.,  upon  the  payment  to  him  of  the 
said  price  agreed  upon,  a  proper  deed  for  the  premises  in  the  application 
described. 

FORM  OF  DEED. 

Knoiv  all  Men  hy  these  Presents: 

That  whereas,  on  the  7th  day  of  October,  1896,  L.  H.  L.  was  duly  appointed 
and  qualified  as  guardian  of  J.  W.     And  whereas,  on  the  8th  day  of  July, 

1901,  he  filed  a  certain  application  in  the  Probate  Court  of 

county,  Ohio,  praying  that  such  proceedings  may  be  had  that  he  may  be 
authorized  by  the  said  Probate  Court  to  convey  the  premises  in  said 
petition  described  to  the  C,  L.  &  S.  Ry.  Co.,  a  corporation.  For  the 
purpose  of  said  corporation  to  construct  an  electric  railway  thereon. 

And  whereas,  on  the  11th  day  of  July,  said  J.  W.  having  had  notice  there- 
of, and  the  Court  finding  that  the  price  to  be  paid  is  reasonable  and  just, 
and  that  said  conveyance  would  be  to  the  best  interest  of  said  ward, 
ordered  that  the  said  L.  H.  L.,  as  guardian  aforesaid,  should  make,  exe- 
cute and  deliver  to  the  said  corporation  for  said  property  a  proper  deed 
upon  the  payment  of  said  price  agreed  upon,  to-wit:  the  sum  of  four 
hundred  dollars  (.$400).  all  of  which  will  more  fully  appear  by  the  records 
of  said  Court,  to  which  reference  is  here  made. 

Now,  therefore,  I,  the  said  L.  H.  L.,  guardian  of  the  said  J.  W.,  by 
virtue  of  said  order  of  Court  and  of  the  statute  in  such  cases  made  and 
provided  and  of  the  powers  vested  in  me,  and  for  and  in  the  consideration 
of  the  premises  and  surh  of  four  hundred  dollars  ($400)  to  me  paid  by 
the  C,  L.  &  S.  Ry.  Co.,  the  receipt  whereof  is  hereby  acknowledged,  do 
hereby  grant,  bargain,  sell  and  convey  to  the  said  C,  L.  &  S.  Ry.  Co.,  its 
successors   and    assigns   forever,   the   following   real   estate,    situate   in   the 

countv  of ,  township  of ,  State  of  Ohio,  and 

bounded  and  described  as  follows : 


1475  JURISDICTION  §  1679 

To  have  and  to  hold  said  premises,  with  all  the  privileges  and  appurte- 
nances thereto  belonging,  to  the  said  C,  L.  &  S.  Ry.  Co.,  its  successors  and 
assigns  forever,  as  tully  and  completely  as  he  the  said  L.  H.  L.  as  such 
guardian  by  virtue  of  said  order  of  Court  and  of  the  statute  made  and 
provided  for  such  cases,  might  or  should  sell  and  convey  the  same. 

The  said  C,  L.  &  S.  Ry.  Co.  agreeing  as  a  part  of  the  consideration  of 
this  deed  to  build  and  maintain  a  good  woven  wire  fence  on  its  south 
line  between  its  lands  and  the  remaining  lands  of  said  J.  W.,  and  provide, 
and  maintain  a  suitable  crossing  for  each  field  or  lot  upon  said  remaining 
lands  adjoining  the  lands  of  the  said  corporation  herein  conveyed.  *  »  * 
The  above  provisions  are  covenants  running  with  the  land  and  shall  be 
binding  on  the  C,  L.  &  S.  Ry.  Co.,  its  successors  and  assigns  forever. 

In  witness  whereof,  the  said ,  as ha .  .  . 

hereunto  set.  .h.  .  .  .hand.  .,  this day  of ,  A.  D.   190. .. 

Signed  and  acknowledged  in 
presence  of 


of. 


State  of  Ohio, County,  ss. 

Be  it  remembered,  that  on  the day  of ,  190 . . ,  before 

me  the  subscriber,  a in  and  for  said  county,  personally  came 

the  above  named ,  as of •. the 

grantor .  .  in  the  foregoing  deed,  and  acknowledged  the  signing  of  the  same 

to  be .  .  h .  .  .  .  voluntary  act  and  deed  as  such ,  for  the  uses 

and  purposes  therein  mentioned. 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name  and  affixed 
my  official  seal  on  the  day  and  year  last  aforesaid. 

§  1679.     Petition  for  appropriation  filed  in  Probate  Conrt. 

"In  such  a  ease  the  corporation  may  file  a  petition  with  the 
probate  .judge,  verified  as  in  a  ci\dl  action,  containing  a  specific 
description  of  each  parcel  of  property,  interest,  or  right,  within 
the  county,  sought  to  be  appropriate-d,  the  work,  if  any,  intended 
to  be  constructed  thereon,  the  use  to  which  the  property  is  to 
be  applied,  the  necessity  for  the  appropriation,  the  name  of  the 
ovv-ner  of  each  parcel,  if  loiown,  or  if  not  Imown,  a  statement 
of  that  fact,  the  names  of  all  persons  having  or  claiming  an 
interest,  legal  or  equitable,  in  the  property,  so  far  as  they  can 
be  ascertained,  and  a  praver  for  its  appropriation."  [R.  S. 
§6416.]** 

§  1680.     Where  to  be  filed. 

The  petition  must  be  filed  in  the  Probate  Court  of  the  county 
Avhere  the  land  is  situate  which  it  is  proposed  to  appropriate.* 

8  §  11042  G.  C.  9Giesy  vs.  C.  W.  &  Z.  R.  R.  Co., 

I„  the  ordinary  se„»  of  t„c  torn,,  ^^,^-^^\^::l  llT^T^'. 

pleadings   arc    not   required    in    con-  ^^^ 

demnation  proceedings.     C.  I.  St.  L.  jf  jt  is  for  tbe  original   rigiit  of 

&  C.  Rv.  Co   vs.  Pfitzer,  Goebel,  248.  way  the  terminal  need  not  be  stated. 

^        '  18  C.  C.   (N.S.)    86. 


§  1681  CONDEMNATION   BY   PRIVATE    CORPORATIONS  1476 

In  cases  coming  within  the  next  section,  a  petition  might  be 
filed  in  either  of  one  of  two  counties  where  the  land  is  located 
in  botli  counties.'" 

§  1681.  Petition  may  include  one  or  more  parcels.  In  what 
county  to  be  filed.  "The  petition  may  include  one  or  more 
of  the  parcels  of  property,  rights,  or  interests  in  the  county  in 
which  it  is  filed.  When  any  such  parcel,  right  or  interest,  is 
situated  in  two  or  more  counties,  the  petition  may  be  filed  in 
either  of  the  counties  in  which  an  owner  is  resident,  and  if  no 
owner  resides  therein,  it  may  be  filed  in  either."  [R.  S. 
§6417.]  11 

§  1682.  When  probate  judge  interested,  proceedings  to  be 
commenced  in  common  pleas.  Special  term  of.  "When  the 
probate  judge  is  interested,  either  as  stockholder,  director  or 
otherwise,  in  a  corporation  seeking  to  appropriate  private  prop- 
erty to  its  use,  or  if  before  filing  the  petition,  it  is  made  to 
appear  to  the  satisfaction  of  a  judge  of  the  common  pleas  court 
of  the  county  wherein  the  action  is  to  be  brought,  that  such 
probate  judge  is  interested  either  as  owner  or  otherwise  in  the 
property  sought  to  be  appropriated,  or  by  reason  of  sickness, 
absence  or  other  incapacity  is  and  will  be  unable  to  preside  at 
the  trial,  the  proceedings  authorized  by  this  chapter  may  be 
commenced  in  the  common  pleas  court  of  the  county."  [R.  S. 
§6440.]!- 

§  1682a.  Procedure  in  common  pleas  court.  ''In  such  case, 
so  far  as  applicable,  the  proceedings  shall  conform  to  the  pro- 
visions of  tliis  chapter,  and  the  powers  conferred  and  duties 
imposed  thereby  upon  the  probate  court  devolve  upon  the  com- 
mon pleas,  which  court  may  make  such  orders  and  direct  such 
proceedings  to  be  had  as  are  necessary  to  do  justice  between 
the  parties  according  to  the  spirit  and  intent  of  this  chapter." 
[R.  S.  §6440.]!=* 

10  Only  limited  and  special  juris-  Pleas.      Kinkade,    J.,    in   unreported 

diction  is  conferred  on  the  Probate  case  Toledo  Com.  Pleas. 

Court.     Dayton  &  W.  Ry.  vs.  Mar-  n  §  11043  G.  C. 

shall,   11   0.   S.  497.  See   Consolidated   St.   Ry.   Co.  vs. 

See  §§  1737,  1749.  Toledo  Elect.   St.  Ry.   Co.,   6   N.   P. 

The   jurisdiction    of    the    Probate  537;  8  Dec.  268;  26  Bull.*172;  3  C. 

Court  is  complete,  and  where  a  pe-  D.  493;   6  C.  C.  362;   50  0.  S.  603. 

tition  is  filed  therein  to  appropriate,  12  §  llOfeS  G.  C. 

the  proceedings  cannot  be  restrained  12*  §  11069  G.  C. 
by  injunction  in  Court  of  Common 


1477  NATURE  OF  PROCEEDINGS  §  1682b 


§  1682b.  When  corporations  entitled  to  possession.  "After 
final  judgment,  on  depositing  the  amount  of  the  judgment  and 
costs  assessed  in  such  court  with  the  clerk  thereof,  the  corpora- 
tion may  be  entitled  to  enter  into  possession  of  the  property 
sought  to  be  appropriated.  In  case  such  court  is  not  in  session 
when  the  proceedings  are  begun  therein,  nor  on  the  day  fixed 
for  the  inquiry  and  assessment  of  compensation,  a  special  term 
thereof  must  he  held  as  provided  by  law."     [R.  S.  §  6440.] ^-f 

§  1683.     Nature  of  proceedings. 

The  entire  proceedings  is  substantially  a  proceeding  in  rem, 
and  jurisdiction  over  the  person  of  the  parties  is  not  absolutely 
essential. ^^  Tk©  jury,  provided  for  in  the  Constitution,  means 
a  tribunal  of  twelve  men,  presided  over  by  a  Court,  and  under 
its  direction  bearing  the  allegations,  evidence  and  argument  of 
the  counsel  and  declaring  the  truth  upon  the  evidence  sub- 
mitted, and  the  law  given  them  by  the  Court." 

The  petition  is  not  an  ordinai-y  petition  under  the  Code,  but 
a  petition  provided  for  by  a  special  section  of  the  siatute.^^ 
The  action  is  not  a  common  law  one,^*'  but  a  special  proceed- 

•  IT 

§  1684.  Amendments  allowed.  "The  court  may  amend  any 
defect  or  informality  in  the  proceedings  authorized  or  required 
))y  this  chapter  or  cause  new  parties  to  be  added,  and  direct  such 
further  notice  to  be  given  to  a  party  in  interest  as  it  deems 
proper."     [R.  S.  §  6423.r« 

§  1685.    Time  of  trials.    Adjournments,  discharge  of  juries. 

"The  court  may  direct  the  order  and  fix  the  time  of  the  several 
trials,  and  adjourn  or  continue  a  trial  for  the  purpose  of 
obtaining  proper  service  upon  a  property  owner;  or,  when 
deemed  necessary  for  the  proper  and  convenient  trial  of  the 
several  cases,  it  may  discharge  a  jury,  and  cause  other  juries 
to  be  impaneled,  as  provided  in  this  chapter."     [R.  S.  §  6424.] i» 

i2f  §  11070  G.  C.  ^^  7  Ency.  of  Plead,  and  Prac.  4G7. 

See  §§9,   10,  for  procedure  where  See  Lewis  on   Em.   Dom.,   §§314, 

judge    is   interested.  31G. 

i3iCupp  vs.   Commissioners,   19  0.  See  §1749. 

S.  173.  ^*§  11049  G.  C. 

1*  Smith  vs.  Atlantic  &  G.  W.  R.  This   section   but   follows   the  or- 

R.   Co.    25  O.   S.  91.  dinary  provisions  applicable  to  code 

1-.  [n  re  George,  5  C.  C.  207;  3  C.  proceedings. 

£).   104.                   '  See  7  Ency.  of  I'l.  &  Prac,  541,  as 

IB  O.  S.  R.  R.  Co.  vs.  Kloeb,  5  N.  to  allowaljlo  amendments. 

P.  4;    5  Dec.  217.  is  §  11050  G.  C. 


§  1686  CONDEJINATION    BY    PRIVATE    r(M{PORATIONS  1478 

§  1686.     Essentials  of  petition. 

The  proceeding  is  a  special  proceeding,  and  while  the  rules 
applicable  to  Code  pleading  should  be  generally  applied,  and 
a  petition  should  be  sustained  if  it  shows  a  substantial  com- 
pliance with  the  law.""  The  essential  thing  to  be  maintained  is 
a  substantial  compliance  with  all  the  requisites  of  the  statute.^^ 
Formal  defects  in  a  petition  may  be  waived,  but  jurisdictional 
defects  cannot,  and  may  be  taken  advantage  of  at  any  stage  of 
the  proceeding. ^^ 

The  subsequent  parts  of  this  section  will  be  devoted  to  the 
.essentials  'of  a  petition,  the  first  of  which  is  that  it  must  be 
verified  as  a  petition  in  other  civil  actions.'^  The  second  essen- 
tial is  that  the  petition  must  contain  a  specific  description  of 
each  parcel  of  property,  interest  or  right  therein  which  is 
sought  to  be  appropriated.^*  It  may  become  very  important  in 
after  years  to  have  this  essential  requirement  definitely  and 
completely  complied  with.  Upon  this  description  may  de- 
volve the  question  whether  a  future  injury  or  taking  has  been 
determined  in  the  original  proceedings  or  provides  a  new  cause 
for  a  separate  remedy;  and  this  is  also  essential  in  enabling 
the  Court  to  determine  whether  the  property  sought  to  be  ap- 
propriated is  necessary,  etc."" 

If  neither  party  appear  on  the  day  But    the    mere    fact   that    it    has 

a  cause  is  set  for  hearing,  the  Court  leased    its    lines    will    not    prevent 

may,   of   its    own    motion,    continue  exercise   of   the    power.      Cincinnati 

such   cause  indefinitely.     Kiefer  vs.  Interterminal  Co.  vs.  Murray,   1  N. 

Board    of    Commissioners,    4    X.    P.  P.    (X.S.)    301;    48   Bull.   877. 

282;   7  Dec.  31.  20  The  Toledo  Consol.  St.  By.  Co. 

The     names     of     the     townships  vs.  The  Toledo  Elec.  St.  By.  Co.,   6 

through  which  the  proposed  road  is  C.  C.  3G2;   3  C.  D.  493. 

to   extend,   are   not   required   to    be  -^  In  re  George,  5  C.  C.  207 ;  3  C. 

set    forth   in   the    articles   of    incor-  T).  104;  Lewis  on  Em.  Dom.„  §§348, 

poration.     Counties     are     only     re-  343. 

quired.     Hayes,  Trustee,  et  al.,  vs.  22  Lewis  on  Em.  Dom.,  §  632. 

Tokdo  By.  &  Ter.  Co.,  6  C.  C.  (X.S.)  ^^  §  \^^^^  ^-  ^• 

281;    IG^Cir.    D.    395;    affirmed,    no  a^The  object  is  to  compel  the  B. 

report,   70  0.   S.   425.     '  R.  to  appropriate  whatever  the  court 

Tavo   distinct   railways  cannot   at  mav   determine  necessary.      By.   vs. 

the  same  time  in  the  same  proceed-  p"^^''"^'    ^'^    ^-    ^-    ^^°'    ^^    ^-    ^• 

ings  maintain  an  action  to  condemn.  "see  §  lfi69 

Traction   Co.   vs.    Guthrie,   48    Bull.  25  Cemetery     Assn.    vs.     Traction 

11.  Co..  93  0.  S.   164;   Railway  Co.  vs. 


1479  ESSENTIALS  OF   PETITION  §  1686 

It  would  be  proper  to  attach  to  the  petition  a  plat  of  the  land 
proposed  to  be  taken,  and  an  ordinance  of  the  city  granting  the 
right  in  certain  cases  might  also  be  attached."" 

The  third  essential  is  that  the  petition  should  contain  a  state- 
ment of  the  work  that  was  intended  to  be  constructed  thereon. 
This  means  that  the  petition  should  contain  an  allegation  as  to 
what  is  to  be  placed  on  the  right  of  way ;  for  instance,  whether 
it  is  to  make  a  public  road,  place  a  railroad,  or  dig  a  trench  for 
gas  pipe,  erect  a  building  for  depot  purposes,  or  a  bridge,  and 
matter  of  that  character. 

The  fowth  essential  is  the  use  to  which  the  land  appropri- 
ated is  to  be  applied.  This  allegation  is  required  for  two  pur- 
poses. First,  that  the  land  owner  may  know  the  nature  and 
character  of  the  use  for  which  tlie  appropriation  is  to  be  made, 
and  second,  that  it  be  shown  that  the  use  is  of  such  character 
that  the  power  of  eminent  domain  will  apply." 

It  is  not  necessary  for  the  petition  to  state  the  length  of  time 
the  use  of  the  property  sought  to  be  appropriated  will  be  re- 
quired by  the  appropriating  company.^^ 

If  land  adjoining  is  sought  for  the  purpose  of  obtaining  ma- 
terial, such  use  must  be  disclosed  in  tlie  petition.*^ 

The  fifth  essential  is  the  necessity  for  the  appropriation.  By 
this  is  meant  that  it  must  be  shown  in  the  petition  that  it  is 
necessary  for  the  use  of  the  corporation  that  this  particular  tract 
of  land  be  appropriated  for  its  use.  If  not  necessary,  then  it 
could  not  be  appropriated.  The  question  of  its  necessity  will 
come  up  on  the  preliminary  hearing,  but  this  does  not  dispense 

Bohm,  34  O.  S.  122;  C.  H.  &  D.  Ry.  27  Railway  Co.  vs.  Bohm,  34  O.  S. 

Co.    vs.   Persons,    7    W.   L.   J.   265;  114;  Lewis  on  Em.  Dom.,  §353. 

Scliaible  vs.  L.  S.  &  M.  S.  Ey.  Co.,  Tlie   particular  manner   in  which 

10  C.  C.  334;  G  C.  D.  505.  the  land  is  to  be  used,  is  to  appear 

See  C.  T.  Ry.  vs.  Prentice,  for  suf-  from    the    plans    and    specifications, 

ficient  description.     13  O.  S.  373  7    Ency.    of    Pleadings   &    Prac,    §§ 

See  A.  &  O.  Ry.  Co.  vs.  Sullivant,  325,  326  and   327. 

5  O.  S.  279.  28  Toledo  Consol.  St.  R  R.  Co.  vs. 

See  Lewis  on  Em.   Dom.,   §§350,  Toledo  Elcc.  St.  R.  R.  Co.,  12  C.  C. 

351,  352,  307.  367;    5   C.   D.   643. 

26  The  Toledo  Consol.  St.  Ry.  Co.  2"  Railway  Co.  vs.  Bohm,  34  O.  S. 

vs.  The  Toledo  Elec.  St.  Ry.  Co.,  6  C.  114. 
C.  362;  5  C.  D.  643. 


§  1687  CONDEMNATION    BY   PRIVATE   CORPORATIONS  1480 

with  the  allegation  of  the  petition  that  it  is  necessary.  The  ap- 
propriation could  only  be  necessary  when  it  comes  within  a 
right  granted  to  the  coi*poration.  Where  the  corporation  has 
power  to  appropriate,  it  usually  detennines  what  lands  are 
necessary  for  the  exercise  of  the  given  power. ^^ 

The  sixth  essential  of  the  petition  is  that  it  contain  the  name 
of  the  owner  of  each  tract,  and  if  not  known,  a  statement  of  that 
fact;  and  also  must  contain  the  names  of  all  persons  having  or 
claiming  an  interest  in  the  property  legal  or  equitable,  so  far  as 
the  same  can  be  ascertained.  In  this  respect  it  is  sufficient  to 
say  that  the  statute  contemplates  that  each  and  every  person,  no 
matter  what  his  interest  may  be,  should  be  made  a  party  and 
his   name  stated.^^ 

The  seventh  essential  of  the  petition  is  that  it  contain  a 
prayer  for  the  appropriation  of  the  property.  Another  essen- 
tial that  is  not  laid  down  by  the  previous  section  is  the  exist- 
ence of  the  corporation.  This  should  be  averred  in  the  petition, 
for  if  the  corporation  has  no  existence,  the  action  cannot  be 
maintained. ^^ 

The  petition  must  also  contain  a  statement  that  the  parties 
are  unable  to  agree.     This  likewise  being  an  essential.^* 

§1687.  Parties,  etc. 
It  has  been  observed  in  the  previous  section  that  the  petition 
should  state  names  of  the  owers,  etc.,  and  it  may  be  further 
stated  that  every  person  having  any  interest  whatever  in  the 
land  sought  to  be  appropriated  should  be  made  a  party.  A 
mortgagee  whose  mortgage  is  duly  recorded  is  an  owner.^*  All 
the  cotenants  should  be  made  parties.  The  acceptance  of  one 
of  the  money  paid  into  the  Court  will  not  bind  the  other.^'    The 

30  Pee  subsequent  section,  §  1700.  in  the  journal  entry;  a  general  find- 
C  L.  &  S  Ry.  vs.  Cole,  47  Bull.  ing,  however,  that  the  allecrations 
547;  C.  D.  & 'N.  Ry.  vs.  Marriott,  of  the  petition  are  true  is  sufficient. 
47  Bull.  357.  Renssh  vs.  Traction  Co.,  24  O.  C.  C. 

31  See  Parties,  §  1687.  541 ;  affirmed  no  op.,  89  O.  S   — -. 

32  A  &  O.  R.  Co.  vs.  Sullivant,  5  34  Harrison  vs.  Incorp.  ViU.  of 
O.  iS.  276:  Powers  vs.  H.  &  L.  Ry.  Sabina,  1  C.  C.  49;  1  C.  D.  30;  Big 
Co.,  33  O.  S.  429 ;  In  re  George,  5  C.  Four  B.  &  L.  Assn.  vs.  Cincinnati, 
C  214;  3  C.  D.  104;  Cemeterv  Assn.  12  Dec.  218. 

vs   Traction  Co.,  93  O.  S.  161.  35  Garvin  vs.  City  of  Columbus,  5 

33  §6415  previous  section,  §§7676,  N.  P.  236;  5  Dec.  333;  Mack  vs. 
1740,  1751.  Degraflf,  57  0.  S.  463. 

Wiien    it    is    sought    to    condemn  This    is    proper,    but_  it    is    said 

land  to   change   or   relocate   a   rail-  not  to  be  necessary.     Pitts.  C.  &  i. 

road,    the    petition    should    contain  Ry.  vs.  Todd.  72  O.  'S.  166. 

the     averments     required     by     the  As  to  what  is  sufficient  petition, 

statute   authorizing   the   same,   and  see     Toledo     Consolidated     Ry-     vs. 

the  court  should,  in  its  finding,  pass  Toledo  Electric  Ry.,  3  C.  D.  o04;  b. 

upon  such  questions  and  place  them  O.  C.  C.  362. 


1481  FORM  OF  PETITION  §  1688 

owner  of  the  fee  must  be  made  a  party. ^®  And  where  the  party 
has  only  an  easement,  the  owners  of  the  easement  and  of  the 
fee  must  both  be  made  parties.^^ 

Where  a  party  has  died,  his  heirs  should  be  made  defendants, 
and  not  the  administrator,  unless  such  administrator  holds  the 
fee.^* 

§  1688.     Form    of   petition. 

In  the  Probate  Court  of County,  Ohio. 

C,  L.  &  S.  Ry.  Co.,  Pltf. 

vs.  I 

W.  S.  T.,  other  names  here  insert-     \  PETITION, 

ed,  Deft.  j 

Plaintiff  says  it  is  a  corporation  duly  incorporated  and  organized  under 
and  in  pursuance  of  the  laws  of  the  State  of  Ohio,  under  the  corporate 
name  of  C,  L.  &  S.  Ry.  Co. ;  that  by  the  terms  of  its  charter  it  is  authorized 
and  empowered  to  locate,  construct,  maintain  and  operate  a  line  of  railway 
to  be  operated  by  electricity  or  some  motive  power  other  than  steam,  with 
a  single  or  double  track,  with  all  necessary  and  convenient  switches, 
branches,  connections,  side-tracks,  turn-outs,  stations,  depots,  and  other 
appurtenances  for  the  transportation  of  passengers,  packages,  express 
matter,  United  States  mail,  baggage  and  freight,  commencing  at  a  point 
in  the  city  of  C,  F.  county,  Ohio;  thence  through  a  portion  of  said  county, 

through  the  county  of in  .said  State,  and  the  city  of 

in  said county,  and  through  a  portion  of  the  county 

of in    said    State,    to    and    into    the    city    of , 

county,    Ohio,    and    there   terminating,    with    the    right   to 

construct  the  same  in  and  upon  the  public  streets  respectively  of  said 
cities,  and  upon  and  along  the  highways  in  each  of  said  counties,  and 
through  and  upon  such  private  property  and  right  of  way  of  said  corpora- 
tion as   it  might  acquire. 

Plaintiff  says  that  a  portion  of  its  said  line  has  been  completed  and 
that  it  is  now  engaged  in  the  construction  of  its  said  line  between  the 
cities  of and 

Plaintiff  further  says  that  it  is  necessary,  in  order  to  carry  out  the  said 
objects  and  purposes  of  its  incorporation,  that  it  shall  appropriate  and  it 
intends  to  appropriate,  as  a  part  of  its  rights  of  way,  for  the  construction, 
maintenance  and  operation  of  its  said  line  of  railway,  and  for  the  purpose 
of  constructing,  maintaining  and  operating  thereon, ;*»  a  single  or  double 
track  of  railway  at  the  option  of  the  plaintiff,  with  the  necessary  side- 
tracks, switches  and  turnouts  and  for  the  construction  of  its  road-bed, 
the  laying  of  its  rails  and  the  erection  of  its  poles  and  other  necessary 
construction   thereon,   the   following  described   real   estate,   situate  in   the 

State  of  Ohio,  county  of and  township  of ,  and 

bounded    and    described    as    follows,    to-wit: 

A  plat  of  said  real  estate,  with  a  profile  of  the  proposed  improvement  and 

36  Gorrill  vs.  Tol.  F.  &  S.  Rv.  Co.,  38  See  Lewis  on  Em.  Dom.,  §§  317 
4  C    C    398;  2  C.  D.  617;   Ohio  Oil  to  330;  Mills  on  Em.  Dom.,  §75. 
Co    vs.  T    F.  &  S.  Ry.  Co.,  4  C.  C.  There  is  no  inchoate  dower  right 
210 •  2  C    D.  SO.}.  to  proj)crty  that  may  be  condemned. 

37  MetropolitaA    St.    Rv.    Co.    vs.  (Long  vs.  Loiig,  !H)  OS.  350. 
Toledo  El.  St.  lly.  Co.,  9  C.  C  (!04:  -See  §8  1086,  1691,  1751. 

6  C    D    733  ^*  ^'^^   recently   been   lield   tho 


§  1689  CONDEMNATION    BY    PEIVAIE   CORPORATIONS  1482 

work  thereon,  is  hereto  attached,  marked  "  Exhibit  A,"  and  made  a  part 
of  this  petition. 

Plaintirt'  says  that  by  the  provisions  of  a  deed  of  trust  executed  by  J.  T. 
to  W.  T.  and  C.  T.  and  by  the  provisions  of  a  written  appointment  executed 
by  ihe  said  J.  T.  and  also  by  tlie  terms  of  the  last  will  and  testament  of 
said  J.  T..  now  deceased,  which  said  la.st  will  and  tistament  has  been  duly 

admitted  to  probate   in  the   Probate   Court  of county,   Ohio, 

the  said  W.  T.  and  C.  T.  were  duly  appointed  trustees,  in  relation  to  the 
above  described  real  estate,  for  the  defendant,  F.  T.,  and  the  defendants, 
VV.  T.,  N.  S.,  M.  T.,  L.  T.,  M.  T.  and  C.  T.,  and  by  the  terms  of  said  trust 
are  vested  as  such  trustees  with  the  legal  title  to  the  above  described  real 
estate  and  are  therefore  the  legal  owners  thereof,  they  having  accepted  said 
trust  and  being  now  engaged  in  the  execution  thereof;  the  terms  of  said 
trust  are  fully  known  to  said  trustees  and  the  defendant  beneficiaries. 
Neither   said    deed   of   trust   or   said   declaration   of   trust   have   ever   been 

filed  for  record  with  the  recorder  of county,  Ohio,  but  the 

same  are  now  in  the  possession  of  said  trustees. 

Tlie  defendants.  F.  B.  T.,  L.  T.,  M.  T.,  and  C.  T.,  who  are  both  minors 
under  the  age  of  fourteen  years,  and  W.  T.,  N.  S.  and  M.  T.,  have  an 
interest  in  said  real  estate  by  virtue  of  the  provisions  of  said  ;:rust. 

The  defendants,  W.  T.  and  C.  T.,  are  the  duly  appointed,  qualified  and 
acting  executors  of  the  last  will  and  testament  of  J.  T.,  deceased. 

The  defendants,  J.  D.  and  S.  C,  have  or  claim  some  interest  in  the  above 
described   real   estate   as   tenants. 

None  of  the  defendants  herein  have  guardians  or  trustees,  except  as 
above  stated,  and  there  are  no  liens  except  the  taxes  for  the  year  1901, 
subsisting  against  the  above  described  real  estate,  and  the  above  defendants 
are  all  the  persons  having  any  interest,  legal  or  equitable,  in  the  above  de- 
scribed real  estate,  so  far  as  same  can  be  ascertained. 

Plaintiff  says  it  is  unable  to  ag"ee  with  the  owners  of  the  above  de- 
scribed real  estate  as  to  the  comper^sation  to  be  paid  therefor. 

Wherefore  the  plaintiff  asks  that  such  steps  may  be  taken  as  are  author- 
ized by  law,  whereby  plaintiff  will  be  enabled  to  appropriate  the  above  de- 
scribed real  estate  for  the  use,  objects  and  purposes  above  stated,  and  for 
such  other  and  further  relief  as  the  nature  of  the  case  may  require. 


State  of  Ohio, County,   ss. 

,  being  first  duly  sworn,  says  he  is  the  first  vice-president 

■of  the  C.,  L.  &  S.  Ry.  Co.,  the  plaintiff  herein,  and  that  the  facts  stated 
in  its  foregoing  petition  are  true  as  he  verily  believes. 

Sworn   to  before  me  and   subscribed   in   my   presence   this day   of 

,    190.  ..*o  ' 

§  1689.     Filing  the  petition,   entry,  etc. 

The  petition  having  been  properly  prepared,  should  he  filed 
in  the  Probate  Court  of  the  conntj  in  which  the  land  is  lo- 
cated,*^ and  an  entiy  should  be  made  of  such  fact.  Several 
things  may  be  included  in  this  entry  according  to  information 

t 

petition  must  allege  the  facts  which  *«  gee  Whit,  on  forms,  586,  for 
show  that  it  is  necessary  to  condemn  form  for  additional  lands  for  ma- 
private  property  for  a  traction  com-  terial,  etc. 

pany.     C.  L.  &  S.  vs.  Cole,  47  Bull.  See  O.  S.  R.  vs.  Hinkle,   1   N.  P. 

547.  63;   1  Dec.  682. 

"Previous  section,   §§1680,  1681. 


1483  SUMMONS  §  1090 

at  this  time  conveyed  to  the  Court.  If  service  is  to  be  made 
by  publication,  as  provided  by  statute,"  this  might  also  be  in- 
cluded in  this  entry/^  The  entry  may  be  in  the  following 
form: 

{Title.) 

This  day  came  the  plaintiff  and  filed  its  petition  for  the  appropriation  of 
certain  property  therein  described  and  named  the  defendants  as  persons 
owning  or  having  an  interest  in  such  property;  and  filed  therewith  its 
precipe  for  summons  for  A.  B.,  C.  D.  and  E.  F.,  certain  defendants. 
Wherefore  it  is  ordered  that  summons  be  issued  directed  to  the  sheriff  of 
county,  for  the  said  defendants,  notifying  said  defend- 
ants to  appear  at  this  office  on  (not  less  than  five  or  more  than  15  days), 
returnable  according  to  law. 

And  it  further  appearing  to  the  Court  that  G.  H.,  one  of  the  parties  de- 
fendant, is  a  non-resident  of  this  State  (or  that  his  residence  is  unknown)  *3* 
it  is  ordered  that  the  said  G.  H.  be  served  by  publication  as  authorized  by 

law;  and  that  saM  cause  be  set  for  hearing  as  to  him  on 

(Notice   must   be   published   at   least   four   consecutive   weeks,)      And   the 

Court  fixes  the day  of for  hearing  the  preliminary 

questions.** 

§  1690.  Summons,  its  command  and  service  thereof.  Alias 
summons.  "Upon  the  filing  of  a  precipe  therefor,  the  pro- 
bate judge  shall  issue  summons  for  the  owners,  and  persons 
named  in  the  petition  as  residents  of  the  state,  having  an  in- 
terest, which  may  be  directed  to  the  sheriff  of  any  county,  and 
shall  command  him  to  notify  the  persons  it  names  of  the  filing 
of  the  petition,  and  to  appear  thereto  at  a  time  to  be  fixed  by 
the  judge,  and  therein  stated,  not  less  tlian  five  nor  more  than 
fifteen  daj'^s  from  the  date  thereof.  It  must  be  served  and  re- 
turned as  in  a  civil  action.  When  returned  'not  summoned,' 
other  writs  may  issue  until  the  parties  are  duly  summoned." 
[R.  S.  §6418.]''^ 

§  1691.     Notice. 

As  said  in  a  previous  section,  every  person  having  any  interest 

should  be  made  a  party,'"'  and  if  not  made  a  party,  he  would 

not  be  bound  by  any  of  the  proceedings  unless  he  in  some  way 

entered  his  appearance.     This  is  well  illustrated  where  it  was 

*2  See    subsequent    section,    §  1G92.       made   on    persons   under   legal    disa- 

43  §  11071    G.    €.,    §  1694,    subsc-      bility. 

quent   section,    §21.  4.-.  §  no44  G.  C. 

43*  See  subsequent  section,  §  11045  4o  §  1GS7. 

G.  C.    §  51.  If  fi  mortgagee  is  not  notified  he 

44  See  §  1096,  Tim.e  to  lie  heard.  is  not  bound.     Harrison  vs.  Sabina, 
An    attorney    could    probably    not  1  C.  D.  301;   1  0.  C.  C.  49. 

be  appointed  until  service  has  been 


§  1692  CONDEMNATION    BY   PRIVATE   CORPORATIONS  1484 

held  that  service  on  one  co-tenant  would  not  bind  tlie  other. "'^ 

It  is  held,  however,  that  the  whole  proceeding  is  substan- 
tially m  rem,  and  the  notice  will  be  sufficient,  although 
it  be  not  personally  served  if  made  as  the  statute  directs/^ 
The  summons  or  notice  must  be  given  as  the  law  directs.  In 
this  respect  the  rule  of  strict  construction  applies.*®  If  the 
owner  is  not  notified  he  may  enjoin  the  proceedings,'*''  or  he 
may  bring  his  action  for  dam  ages.  ^^ 

The  record  of  tlie  proceeding  must  show  that  the  notice  re- 
quired by  the  statute  has  been  given."  The  summons  in  pro- 
ceedings under  this  chapter  must  be  served  as  in  other  civil  ac- 
tions.'^ 

No  provision  is  made  for  any  other  person  making  the  sen-ice 
except  the  sheriff.^*  The  person  making  the  service  should 
mjake  a  return  the  same  as  in  service  of  summons  generally.^'' 

§1692.  Service  by  publication,  how  proved.  "When  a 
person  having  an  interest  is  unknown,  or  his  residence  is  beyond 
the  state  or  unknown,  the  corporation  may  make  service  against 
him  by  publishing  in  a  newspaper  of  general  circulation  in  the 
county  where  the  petition  is  filed,  for  four  consecutive  weeks,  a 
notice  containing  a  summary  statement  of  the  object  and  prayer 
of  the  petition,  so  far  as  it  relates  to  the  property  of  the  person 
thus  to  be  notified,  the  court  in  which  it  is  filed,  and  the  time 
when  such  person  is  to  appear  thereto,  not  less  than  ten  nor 
more  than  twenty  days  after  the  last  publication.  The  fact  of 
publication  may  be  proved  by  the  affidavit  of  any  person  having 
knowledge  thereof."     [-R.  S.  §  6419.]=« 

■*7  Garvin  vs.  City  of  Columbus,  5  A    bill    of    exceptions    upon    ques- 

N.    P.    236;    5    Dec.    333;    Mack   vs.  tions  arising  upon  preliminary  mat- 

Degraff,  57  0.  S.  464.  ters,  must  be  taken  within  the  time 

48  Cupp  vs.  Board  of  Commission-  limited  by   §5301    R.    S.,   §§11564-5 

ers,  19  0.  S.   173;   Harrison  vs.  In-  G.  C.     Davton  Rv.  vs.  Dayton  Trac- 

corporated   Village  of    Sabina,    1    C.  tion   Co.,   26    0.  "c.    C.    1;    72   0.    S. 

C.  49:   1  C.  D.  30.  429;   affirming,  without  report,  4  C. 

49Harback  vs.  City  of  Toledo,   11  C.    (X.S.)    329.      And   this   is  dated 

O.  S.  219.  from  the  time  that   a  motion  for  a 

soTeegarden   vs.   Davis,    36    O.    S.  new  trial  is  overruled,  and  the  mo- 

60il.  tion   is    properly  made   at   the    time 

51  Badgley    vs.    Hamilton    Co.,     1  the  verdict   is   confirmed   or   the  ac- 

Dis.  316;  Lewis  on  Em.  Dom.,  §  371  tion    dismissed.      It    should    not    ba 

^t  s^l-  made   at    the    time    the    preliminarv 

52Harbeck  vs.  City  of  Toledo,   11  question   is  heard,   but  on  the  final 

O.  S.  219;   Fravert  vs.   Finfrock,  43  judgment  in  the  case.     Railroad  vs. 

0-  S.  335.  Todd.    72    0.    S.    165;    Railroad   vs. 

53  See  §  839,  §  6418  R.  S.  Traction  Co.,  72  0.  S.  430;  affirming, 

547   Ency.   of  PI.  and  Prac,  487.  without  report,  4  C.  C.    (N.S.)    329. 

55  See  §  1755.  See  §  1721. 

58  §  11045  G.  C.  These  preliminary  questions  are  all 

See  §  1689.  reviewable   on    error.      Railroad   vs. 

Todd,  72  O.  S.  165. 


1485  ATTORNEY  FOR  ABSENT  PARTY  §  1693 

§  1693.     AflMavit  and  form  of  notice 

The  statute  does  not  direct  in  what  manner  the  Court  should 
be  informed  that  some  person  having  an  interest  is  unknown, 
or  that  if  known,  his  residence  is  beyond  the  State,  It  would 
be  proper  that  an  affidavit  be  filed  for  this  purpose  setting  out 
Buch  facts.  This  could  be  done  when  the  petition  is  filed,  and 
the  Court  make  an  order  at  that  time.**^ 

The  form  of  notice  given  in  a  previous  section  ^^  can  like- 
wise easily  be  adopted.  The  statute  does  not  require  that 
copies  be  mailed,  but  it  would  be  good  practice  to  so  do.'* 

§  1694.  Court  to  appoint  attorney  for  party  absent  or 
under  disability.  "When  a  party  in  interest  is  unknown,  or 
his  residence  is  unknown,  and  service  has  been  made  by  publi- 
cation, and  the  party  has  not  appeared  in  the  proceedings  by 
agent  or  attorney,  or  when  such  party  in  interest  is  under  any 
legal  disability  and  has'  no  legal  guardian,  or  trustee,  within 
the  county  where  the  action  is  brought,  the  court  shall  appoint 
some  competent  attorney  to  attend  upon  the  proceedings,  and 
protect  the  rights  and  interests  of  such  party,  and  also  fix  the 
fees  of  the  attorney  for  such  service,  which  shall  be  payable  out 
of  any  money  paid  on  the  judgment  rendered  in  such  case  for 
property  appropriated."     [R.  S.  §  6441.] «« 

The  above  section  is  somewhat  similar  to  the  provision  re- 
lating to  the  appointment  of  a  guardian  ad  litem  so  far  as  an 
infant  is  concerned.  The  appointment  need  only  be  made  when 
the  conditions  of  the  statute  exist,  but  when  they  do  exist,  it 
is  questionable  whether  a  proceeding  would  be  regular  without 
such  appointment.  It  may  be,  as  the  proceeding  is  in  rem, 
that  a  failure  to  make  such  appointment  would  not  invalidate 
the  proceedings;  especially  so  far  as  an  indirect  attack  might 
be  made.  The  appointment  should  be  made  on  motion  setting 
forth  the  facts.«^ 

§  1695.  Jurisdictional  questions.  When  to  be  heard  and 
determined.  Burden  of  proof.  ' '  On  the  day  named  in  a  sum- 
mons first  served,  or  publication  first  completed,  the  probate 
judge  shall  hear  and  determine  the  questions  of  the  existence 
of   the   corporation,   its   right   to   make   the   appropriation,   its 

STSee  §840  for  form  of  affidavit.  «"  §  11071  G.  C. 

58  §  841.  *^  See  §  845  for  motion,  entry,  etc. 

59  See  §  842,  §  1755.  See  §  1756. 


§    1696  CONDEMNATION    BY    PRIVATE    CORPORATIONS  1486 

inability  to  agree  with  the  o\^^ler,  and  the  necessity  for  the 
appropriation.  Upon  all  these  questions  the  burden  of  proof 
shall  be  upon  the  corporation,  and  any  interested  person  shall 
be  heard."     [R.  S.  §  6420.]«- 

If  the  record  fails  to  disclose  the  existence  of  these  jurisdic- 
tional questions,,  then  the  proceedings  would  be  irregular  and 
void."^  Until  these  questions  are  determined,  the  Probate  Judge 
has  no  right  or  jurisdiction  to  order  a  jury.  ®*  "Whatever  is 
required  by  way  of  preliminaries  must  be  strictly  complied 
with."'^  The  preliminary  hearing  and  the  trial  upon  the  issue 
of  compensation  and  damages  are  independent  trials  upon  sepa- 
rate issues  of  fact.  The  order  of  the  Probate  Court  con- 
firming the  verdict  of  the  jury  is  the  final  order  from  which 
error  is  prosecuted.* 

§  1696.    V/hen  to  be  heard. 

If  all  the  parties  can  be  served  by  summons,  then  no  diffi- 
culty is  experienced  as  to  the  time  that  should  be  fixed  for  the 
hearing  of  preliminary  questions.  It  must  not  be  less  than  five 
nor  more  than  fifteen  days  from  the  date  of  the  summons,®* 
and  if  all  the  defendants  were  to  be  sensed  by  publication,  there 
would  be  no  difficulty,  though  then  it  must  be  not  less  than  ten, 
nor  more  than  twenty,  days  after  the  last  publication." 

Wliere  some  defendants  are  served  by  summons  and  others 
by  publication,  the  case  should  be  set  for  hearing  as  if  all  par- 
ties were  served  by  summons,  and  then  a  continuance  had  until 
the  time  has  expired  for  service  by  publication;  and  such  fur- 
ther continuance  might  be  had  from  time  to  time  until  all  per- 
sons were  properly  served  at  or  previous  to  the  preliminary 
hearing.  An  attorney  should  be  appointed  for  a  person  ab- 
sent,   etc.''^      The    statute    defines    the    preliminary    questions 

62  §  11046  G.  C,  The  court  is  to  65  Lewis  on  Em.  Dom.,  §  310. 
hear  and  determine  the  questions  as  When  proceedings  are  brought  by 
to  the  existence  of  the  corporation,  a  telegrapli  company  under  §  3459, 
its  right  to  make  the  appropriation  the  Probate  Court  must  also  pass 
and  inability  to  agree,  before  pro-  upon,  provided  the  same  be  contro- 
ceeding  to  impanel  the  jury.  Cin-  verted,  wliether  the  erection  of  the 
cinnati  vs.  R.  R.,  S3  6.  "S.  283;  line  at  the  place  designated  will 
Cemetery  Assn.  vs.  Traption  Co.,  93  interfere  in  any  material  degree  with 
0.  S.  166.  the   practical    uses   of   the   railroad. 

63  Zimmerman  vs.  Canfield,  42  O.  C.  C.  C.  &  St.  L.  vs.  O.  Postal  Tel. 
S.  463.  Co.   (1903),  68  0.  S.  306. 

64  7«,  re  George,  5  C.  C.  213;  3  C.  *  Davton  El.  U.  Rv.  Co.  vs.  Trac- 
D.  104;   Toledo  Consol.  St.  Rv.  Co.  tion   Co.,   1   N.  P.    (X.S.)    218;    48 
vs.  Toledo  Elec.  St.  Rv.  Co.,  6'C.  C.  Bull.  9.17;  14  Dec.  22.    See  §  1721. 
363;  3  C.  D.  493;  T.  &  O.  Cent.  Ry.  66  §  11044  G.  C,  §  1690. 

Co.  vs.  Citv  of  Fostoria,  7  C.  C.  293;  67  §  11045  G.  C,  §  1692. 

4  C.  D.  602.  68  §  11071   G.  C,   §  1694. 


1487  PRELIMINARY  QUESTIONS  §  1697 

which  are  to  be  passed  upon,  and  upon  these  questions  the  bur- 
den of  proof  rests  upon  the  corporation.  These  matters  will  be 
considered  in  their  order.'''' 


§  1697.     Existence  of  corporation. 

The  first  to  be  considered  is  the  existence  of  the  corporation. 
Before  a  corporation  cau  exercise  the  right  of  eminent  domain 
it  must  prove  its  corporate  existence,  and  that  it  has  complied 
with  the  law  granting  to  it  power  to  condemn.'^"  The  corpora- 
tion should  give  evidence  of  a  certificate  or  public  record,  and 
of  its  organization  in  accordance  with  the  provisions  of  the 
statute.^'^  Proof  of  the  corporate  existence  of  plaintiff  is  made 
out  by  placing  in  evidence  its  articles  of  incorporation,  its  cer- 
tificate of  subscription  to  the  capital  stock,  and  the  record  book 
of  the  company  showing  the  election  of  the  officers.''^ 

§  1698.     Right  to  make  appropriation. 

The  second  question  to  be  considered  upon  the  preliminary 
hearing  is  as  to  the  right  of  the  corporation  to  make  the  ap- 
propriation. This  means  tliat  the  corporation  must  show  that 
power  to  condemn  the  property  sought  to  be  condemned  has 
been  conferred  upon  it  by  some  valid  legislative  enactment,^' 
It  would  be  incumbent  upon  the  corporation  to  show  that  the  act 
of  the  Legislature  granting  the  power  was  constitutional.  This 
is  shown  by  establishing  the  fact  that  the  appropriation  is  for  a 
public  and  not  merely  a  private  purpose.^* 

CO  See  §  1689    1756  TIio  Probate  Court  lias  full  power 

70  Powers  vs.  Railway  Co.,   33  0.      to  go  into  this  question   an.l   if  tlu) 

,c     „  \    -n,  corporation    is    not   properly   oigaii- 

S.   429;    Atkinson   vs.  M.   &  C.    Ry.  j^ej  to  dismiss  tlie  action.    Cemetery 

Co.,   15  O.   S.  21.  Assn.  vs.  Traction  Co.,  93  0.  S.  1H3. 

71  Atlantic  &  O.  R.  R.  Co.  vs.  Sul-  "  See  Powers  vs.  Haihvay  C'o.  33 
1-  ^  ^  ^  n  ^^„  ^  oi  T>  O.  S.  429;  Harrison  vs.  Incorp.  Vil- 
hvant,  .5  O.  S.  270;  Con.  St.  Ry.  vs.  j^^^  ^^  ,g^,,.^^^  ^  C.  C.  r,2;   1   C  D. 

Ry.,  8  Dec.  268;   In  re  George,  5  C.      39. 

C.  214;  3  C.  D.  104.  74  T.  E.  St.  Ry.  Co.  vs.  T.  C.  St. 

72  T.  E.  St.  Ry.  Co.  vs.  T.  C.  St.      Ry-  Co.,  20  Bull    172. 

As  to  wliat  will  constitute  a  pul)- 
Ry.  Co.,  26  Bull.  172.  jj^   „^,.    ^^^  Trumbull  vs.   Shilling, 

'See  Lewis   on   Em.   Dora.,   §§.390,     53   Bull.   167. 
391. 


§  1699  CONDEMNATION    BY   PRIVATE    CORPORATIONS  1488 

§  1699.    Inability  to  agree. 

The  third  preliminary  question  is  the  establishment  of  the 
fact  that  the  parties  have  been  unable  to  agree  upon  a  consid- 
eration, where  the  ovs^ner  is  capable  of  agreeing,  and  is  not 
unknown  or  has  a  residence  beyond  the  State."^  The  inability 
of  parties  to  agree  as  to  the  compensation  for  the  property 
taken  is  established  by  proof  of  hona  fide  attempts  to  reach  a 
settlement,  and  not  merely  colorable  formal  efforts.  No  spe- 
cial or  set  forms  of  words  is  necessary,  and  acts  showing  a 
desire  and  effort  to  agree  may  be  as  convincing  as  speech  it- 
self.'^® The  inability  to  agree  required  by  statute  does  not 
mean  an  inability  to  buy  at  any  price,  but  only  at  a  price  which 
the  condemning  party  is  willing  to  pay.^^ 

§  1700.    Necessity  for  appropriation. 

A  fourth  matter  to  be  heard  on  preliminary  hearing  is  the 
necessity  for  the  appropriation.  This  means  that  it  is  incumbent 
upon  the  corporation  to  show  that  the  property  sought  to  be 
appropriated  is  reasonably  necessary  to  carry  into  effect  the 
purposes  of  the  corporation.  As  a  general  rule,  the  amount 
of  land  to  be  taken, '^  or  the  route  to  be  pursued,'^  will  rest  in 
the  discretion  of  the  corporation  when  such  discretion  is  not 
abused,*"  and  where  the  corporation  resolves  that  it  is  neces- 
sary to  appropriate  a  certain  described  piece  of  land  and  no 
abuse  be  shown,  it  will  be  presumed  that  it  was  a  necessity; 
and  the  mere  fact  that  it  has  already  condemned  a  strip  for  a 
railway  does  not  show  absence  of  a  necessity  to  take  additional 
land  to  .widen  the  strip.** ^ 

75  §  6415  R.  S.,  §  1676.  142.      In    order    to   sustain    a   pro- 

'G  T.  E.  St.  Ry.  vs.  T.  C.  Ry.  Co.,  ceeding   by   a   railroad   to   condemn 

26  Bull.   172.  an  easement  across  a  public  landing 

'i''  Lewis     on     Em.     Dom.,     §  302.  for  an   elevated   tract,  the  evidence 

The    purpose    of    the    provision    in  must    show    botli    the    necessity   for 

relation  to  agreement  of   parties  is  the  appropriation  and  that  the  tak- 

to  save  expense  and  trouble.     L.  &  ing    will    not    destroy    or    seriously 

N.  Ry.  vs.  Cin.,  56  Bull.  317.  impede  the  use  to  which  the  prop- 

An     agreement     not     reduced     to  erty    is    already    devoted.      Cincin- 

writing     will     not     be    binding     or  nati  vs.  R.  R.,  8S  0.  S.  283. 

sufficient  to  defeat  t.ie  action.   C'leve-  See  T.  E.  &  T.  C.  Rv.  Co.  vs.  T.  C. 

land  &  Pitts.  R.  R.  vs.  Dewine,  58  St.  Ry.  Co.,  26  Bull.  172,  where  one 

Bull.  438.  street  railway  may  appropriate  the 

'''S  Schiable  vs.  Ry.,  10  C.  C.  334;  right  to  use  another  street  railway. 

6  C.  D.  505;  Iron  R.  R.  Co.  vs.  City  There   must   be   a   definite  under- 

of  Ironton,  19  O.  S.  299.  standing  that  the  proposition  is  one 

"9  L.   E.  S.  &  W.   Ry.   Co.  vs.   A.  upon  which  the  parties  can  not  agree. 

&  G.  W.  Ry.  Co.,  2  Bull.  188.  If  there  is  a  misunderstanding  as  to 

80  0.  S.  Ry.  vs.  Ilinkle,  1  N.  P.  the  terms,  there  is  no  disagreement. 
63;  1  Dec."  682.  The  discretion  Steubenville  R.  R.  vs.  Cleveland,  2 
vested  in  a  corporation  is  merely  a  N.  P.  (N.S.)  45;  49  Bull.  240. 
primary  discretion,  the  final  de-  An  averment  of  inability  to  agree 
termination  rests  in  the  court.  Cin-  must  be  in  the  petition.  Railway  vs. 
cinnati  vs.  R.  R.,  88  0.  S.  283.  Diamond  Stone  Co.,  51  Bull.  421. 

81  Trustees   vs.    O'Meara,   2   Bull.  If  there  are  several  joint  owners 


1489  JURORS  DRAWN  §  1701 

If,  upon  hearing,  the  Court  is  satisfied  that  the  corporation 
is  abusing  its  power,  it  should  refuse  the  application  and  dis- 
miss the  proceeding. ^^^  But  it  being  presumed  that  self-interest 
will  dictate  that  it  will  not  abuse  its  powers  and  make  an  im- 
provement where  there  is  no  demand  for  it,  the  exercise  of  this 
discretion  will  generally  not  be  interfered  with  by  the  Court.*^ 

§  1701.     Jurors  to  be  drawn  from  box  and  venire  issued. 

"If,  as  to  any  or  all  of  the  property,  and  persons  interested 
therein,  the  judge  determines  such  questions  for  the  corpora- 
tion, he  shall  issue  an  order  to  the  clerk  and  sheriff  to  draw 
sixteen  names  from  the  jury  wheel,  as  in  other  cases,  and  within 
two  days  after  the  receipt  of  it  they  must  execute  the  order, 
and  the  clerk  forth^ath  return  it  to  the  probate  judge,  with  a 
list  of  the  names  drawn  indorsed  thereon,  who  shall  issue  to 
the  sheriff  a  venire  for  the  jurors  so  drawn  to  attend  at  his 
office  at  a  time  to  be  fixed  by  him,  and  named  in  the  writ,  not 
exceeding  ten  days  from  the  date  thereof.  It  shall  be  served 
and  returned  as  in  other  cases."     [R.  S.  §  6421.]^* 

§  1702.  Finding  and  order  to  draw  jury. 
The  Court  having  determined  all  the  preliminary  questions 
in  favor  of  the  plaintiff,  and  that  all  parties  entitled  to  notice 
have  been  notified  as  the  law  requires,  will  then  order  a  jury  to 
be  drawn.*^  A  distinction  exists  between  a  jury  drawn  under  the 
above  section  for  appropriation  by  private  corporations  and 
that  provided  under  the  section  relating  to  appropriations  by 

an  effort  ought  to  be  made  to  agree  foes  are  not  to  be  taxed  against  the 

\yith  all.     Cin.  Inter.,  etc.,  vs.  Mur-  plaintifT.      Hill    vs.    Durr,    47    Bull, 

ray,   1   N.  P.    (N.S.)    300;    48   Bull.  440. 

877.     See  Trumbull  vs.  Shilling,  53  The     Circuit     Court     of     Darke 

Bull.    167.      As    to    necessity    where  County  has  held  tlie  opposite,  and  as 

one   railroad  condemns   land  of  an-  the  author  thinks  rightfully,   taxed 

other,  see  Steubenville  vs.  Cleveland,  such  costs  against   the   plaintiir. 

2  N.  P.    (N.S.)    4.5;   49   Bull.  240.  The     whole     costs     are     assessed 

82  Lewis  on  Em.  Dom.,  §  .393.  against    the    corporation.      Railroad 
See  T.  C.  St.  Ry.  Co.  vs.  Ry.  Co..  vs.  County,  71  O.  S.  454. 

8    Dec.    268,    whe"n    Probate    Court  sr,  Lamb    vs.    Lane,    4    O.    S.    107, 

will  not  be  reversed.  where  it  is  held,  that  the  word  jury 

83  Mills  on   Em.   Dom.,    §§  61,  62.  means  a  tribunal  of  twelve  men,  prc- 
See  §  1686.  sided  over  by  a  Court,  and  hearing 

Mere  surveying  does  not  give  ex-  ^i^e  allegations,  evidence   and   argu- 

clusive   right.      C.    T.   &   B.   Ry.   vs.  ments   of    the    parties.      Watson    vs. 

Ry.,  .32  Bull.  186;    1  Dec.  627.  Trustees,   21    0.   S.   667;    Smith   vs. 

Necessity    does    not    mean    indis-  ^    &  q    \\t_  Jiy    Co.,  25  0.  S.  91. 

pensible.     Shaver  vs.  Starrett,  4  O.  ry]^^  action  of  the  Court  in  filling 

iS.    499.      Necessity    to    authorize    a  ^]^p   j,„.v    panel    by    selecting    jurors 

railway    to    condemn    private   prop-  ^y^^   flffy    names"  drawn    from    the 

erty    is     reasonable,     not    absolute,  j,,^^  j,qj.'   ^^t,  (.,.ror.     TTosbrock   vs. 

Reusch  vs.  Traction  Co.,  24  O.  C.  C.  Traction  Co.,   5    C.   C.    (N.S.)    209; 

540;  afTirmed  no  op.,  89  0.  S.  456.  27    0    C    C    42;    adirmed   75    0.    S. 

84  §  11047  G.  C.  5R4 
It  has  recently  been  held  that  jury 


§  1703         CONDEMNATION   BY   PRIVATE   CORPORATIONS  1490 

municipal  corporations.  There  the  clerk  must  draw  the  names 
in  the  presence  of  the  Probate  Judge,  and  twelve  instead  of 
sixteen,  men.^® 

If  the  Court  finds  against  tlie  plaintiff,  a  simple  entry  of  dis- 
missal will  be  sufficient.  The  following  may  be  used  as  a  gen- 
eral form  of  entry : 

( Title. ) 

This  cause  having  been  continued  from ,  190. .,  being  the 

day  heretofore  fixed  by  the  Court  for  the  hearing  of  this  cause,  until 

,    190..,    the   date   of   this   entry,    thereupon   this    day   came   the 

plaintiff  by  its  attorneys,  and  the  defendants  having  been  duly  and  legally 
served  with  process  herein  and  appeared  by  their  attorneys,  the  trustees 
and  executors  of  the  estate  of  J.  A.  having  also  filed  their  rnswer  herein, 
whereupon  this  cause  came  on  to  be  heard  upon  the  questions  of  the 
existence  of  the  corporation,  its  rights  to  make  the  appropriation,  its 
inability  to  agree  with  the  owners  of  the  property,  and  the  necessity  for  the 
appropriation,  and  the  Court  having  heard  the  evidence  and  arguments  of 
counsel,  and  being  fully  advised  in  the  premises,  do  find  that  the  plaintiff 
is  a  corporation  and  has  a  legal  right  to  make  the  appropriation  of  the 
property  described  in  the  petition  as  prayed  for;  that  the  plaintiff  i3 
unable  to  agree  with  the  owners  of  the  property  as  to  the  amount  of  com- 
pensation to  be  paid  therefor,  and  that  there  is  a  necessity  for  such  appro- 
priation as  prayed  for  in  the  petition;  and  the  Court  proceeding  as  directed 
by  statute  orders  and  directs  that  a  jury  be  drawn  as  required  by  law. 

returnable  at  a  time  to  be  hereafter  fixed  by  the  Court   (or  on  the 

day  of ,  at o'clock  A.'M.)87 

When  the  clerk  and  sheriff  make  a  return  to  the  Probate 
Judge  showing  that  a  jury  has  been  drawn,  it  would  then  be 
proper  for  the  Court  to  put  an  entry  on,  directing  that  such 
persons  be  summoned  to  appear  as  jurors  on  a  day  fixed.  The 
entry  may  be  as  follows : 

ENTRY  ORDERING  VENIRE  TO   BE  ISSUED. 
(Title.) 

This  day  came  the  sheriff  and  clerk  and  filed  a  list  of  names  <^rawn  by 
them  to  serve  as  jurors  in  the  above  case,  whereupon  it  is  ordered  that  a 
venire  shall  be  issued  to  the  sheriff  for  the  jurors  drawn,  returnable  on  the 

day  of ,   190 .  . ,  at o'clock,  at  which  time 

the  jury  shall  be  impaneled  and  the  trial  of  the  cause  commenced.ss 

§  1703.  How  panel  to  be  filed.  Jurors  to  be  interrogated 
by  Court.  "If,  by  reason  of  non-attendance,  sickness,  or  other 
cause,  any  of  the  sixteen  persons  are  not  present  and  in  condition 

86  S  1700,     New     municipal     code,  87  Whittaker's    Prob.    Code, 

makes  it  the  same  as  civil  actions,  88  See   §§  17C9,  1761   1844. 

in   condemnation  by  municipal   cor-  See    §  409,   for   form   of   order   to 

porations.  draw  jury  and   form   of   venire. 


1491  EMPANELING    JURY  §  1704 

to  serve  as  jurors,  the  judge  shall  order  the  sheriff  to  fill  the 
vacancies  with  talesmen.  When  the  list  of  sixteen  is  full,  the 
judge  shall  call  upon  each  separately,  beginning  with  the  first 
named  on  the  list,  to  take  his  place  in  the  jury  box,  and  per- 
sonally inquire  of  each,  as  called,  whether  he  is  interested  in 
any  way  in  any  of  the  property,  rights,  or  interests  sought  to 
be  appropriated,  or  in  tlie  corporation  which  filed  the  petition, 
either  as  owner,  stockholder,  agent,  attorney,  or  otherwise.  If 
such  person  answers  in  the  affirmative,  or  if  it  be  shown  to 
the  judge,  by  satisfactory  evidence,  that  he  is  so  interested, 
he  shall  be  excused  from  serving  on  the  jury,  and  the  next 
person  on  the  list  be  called,  and  interrogated  in  like  manner. 
If  the  list  of  sixteen  be  exhausted  before  a  proper  jury  of 
tweWe  men  is  taken  and  accepted  therefrom,  the  judge  shall 
order  the  sheriff  to  fill  the  remaining  vacancies  in  the  jury  box 
required  to  make  up  the  number  of  twelve  with  talesmen,  who 
shall  be  interrogated  as  above  provided."     [R.  S.  §  6425.]*® 

§  1704.  Challenge  to  jurors  and  how  vacancies  filled. 
When  a  jury  box  is  filled  with  twelve  disinterested  jurors,  the 
owners  of  the  property  which  is  the  subject  of  the  trial,  jointly, 
and  the  petitioner,  shall  each  have  the  right  to  four  peremptory 
challenges,  and  to  challenge  for  cause.  Vacancies  arising  in 
the  jury  from  challenge,  or  otherwise,  shall  be  filled  with  tales- 
men having  the  qualifications  prescribed  in  the  next  preceding 
section,  to  be  ascertained  as  therein  provided."     [11.  S.  §  6426.]®*' 

§  1705.    'Challenge  of  jury. 

When  the  jury  of  twelve  men  becomes  complete,  then,  as  in 
ordinary  trials,  the  party  should  proceed  to  challenge  for  cause, 
and  any  matter  which  is  sufficient  to  excuse  a  juror  in  the  trial 
of  ordinary  civil  proceedings  would  be  sufficient  in  this  kind  of 

89  §11051  G.  C.  appears  to  be   interested   as  therein 
It  should  be  observed  tliat  when-  provided,     the    judge     shall    excuse 
ever   it   is   discovered   that  tlio   full  him;    and    if    the    sixteen    arc    cx- 
sixteen    are    not    present,    that    the  haustcd   before  the  twelve  men  are 
sherilT    should    fill    tlie    number    of  taken,   ic  should  be   filled  by   tales- 
talesmen  and  when  the  list  is   full  men. 
the   duty    devolves   upon   the   Court-  See  §  17G1. 
of  making  the  inquiry  of  each  one  oo  §  11052  G.  C. 
in  the  order  and  as  provided  for  in  See  §  1701. 
the  previous  section;  and  if  a  juror 


§  1706  CONDEMNATION  BY  PRIVATE  CORPORATIONS  1492 

a  proceeding.^^  As  to  the  right  of  peremptory  challenges,  it 
is  held  that  it  is  limited  to  two  for  the  plaintiff  and  two  for  the 
defendant,  and  the  fact  that  there  are  a  number  of  defendants 
•will  not  change  this  rule.®" 

While  the  parties  may  be  entitled  to  a  separate  hearing  of 
the  case  where  there  are  a  number  of  defendants,  yet  as  to  the 
empanelling  of  the  juiy  they  act  jointly,  and  likewise  as  to  all 
proceedings  prior  to  the  hearing  after  the  view  made  of  the 
premises.®^ 

§1706.  Oath  to  be  administered  to  jury.  "When  a  jury 
is  filled,  the  probate  judge  shall  administer  to  them  the  follow- 
ing oath:  'You,  and  each  of  you,  do  solemnly  swear  that, 
according  to  your  best  judgment,  you  will  justly  and  impar- 
tially assess  the  amount  of  compensation  due  to  the  proper 
owners  in  the  cases  which  will  be  brought  before  you  in  this 
proceeding,  by  reason  of  the  appropriation  of  their  property 
described  in  the  petition,  to  the  use  of  (here  name  the  corpora- 
tion) in  the  proceeding  now  pending,  irrespective  of  any  benefit 
from  any  improvement  proposed  by  such  corporation ;  and  you 
do  further  swear  that  in  assessing  any  damages  that  may  occur 
to  such  property  owners,  by  reason  of  the  appropriation,  other 
than  the  compensation,  you  will  further  ascertain  how  much 
less  valuable  the  remaining  portion  of  such  property  will  be  in 
consequence  of  such  appropriation;  this  you  swear  as  you  shall 
answer  to  God.'  "     [R.  S.  §  6427.] «* 

§  1707.     View  of  premises. 

After  the  jury  is  empaneled,  the  law  places  it  within  the 
power  of  any  of  the  parties  to  demand  that  they  view  the  prem- 

91  See  §§  11437,   11438'  G.  C.  their  consideration.     First,  the  com- 

92  City  of  Cincinnati  vs.  Neff,  19  pensation  to  be  paid  for  the  land 
Bull.  404;  O.  S.  E,.  vs.  Kloeb,  5  N.  actually  taken,  and  second,  for  dam- 
P.  4;  5  Dec.  217,  now  changed  to  ages  that  may  occur  to  the  remain- 
form  — .  ing   lands   by   reason   of   the   appro- 

94  §Tl053^G  ^C  ^^*^'  priation.     It  might  also  be  consid- 

The  wording  of  the  oath,  as  set  ^^^^  "F^^  ^^^^  question  as  to  whether 

forth    in    §  6427,    is    important,    as  or  not  the  matters  brought  to  their 

indicative    of    the    legislative    mind  attention  in  the  view  is  to  be  con- 

upon  the  questions  which  are  to  be  ^j^^^p^    „„    evidence       This    matter 

determined    and    justifies    the    con-  ^^a^red    as   CMdence.      inis    matter 

elusion  that  two  questions  are  for  ^^J'^  ^^  discussed  in  §§  1G72,  1710. 


l-i9^  OATH   AND    VIEW  §  1708 

ises.  This  demand  is  invariably  made  by  some  one  of  the  par- 
ties, and  I  presume  the  Court  might  order  the  view  without 
the  demand.  The  desire  for  such  a  view  may  be  made  by  a 
written  or  verbal  motion.  The  statute  providing  for  the  form 
of  writ  to  the  sheriff  is  as  follows : 

"Upon  motion  of  eitlier  party,  the  probate  judge  may  issue 

the  following  writ  to  the  sheriff,  to-wit:   'To  the  sheriff  of 

county :  You  are  hereby  commanded  to  conduct  the  twelve 

jurors  named  in  the  panel  to  this  writ  annexed,  to  view  the 
property  or  premises  sought  to  be  appropriated  by  (here  state 
the  name  of  the  corporation),   and  o^^^led  by    (here  state   the. 

name  of  each  owner),  on ,  the   day  of 

,  then  and  there  to  view  the  premises  or  property 

aforesaid,  in  the  presence  of  A.  B.  on  the  part  of  the  corporation 
aforesaid  and  C.  D.  on  the  part  of  the  owner,  appointed  by  this 
court,  and  you  shall  make  return  of  the  manner  you  have  ex- 
ecuted this  writ  to  this  court,  on  the day  of 

,  A.  D '      The  writ  shall  be  signed 

by  the  probate  judge,  and  certified  under  his  seal  of  office." 
[R.  S.  §6428. JOS 

§  1708.  Judge  must  deliver  to  sheriff  description  of  prop- 
erty. May  appoint  persons  to  be  present  at  view.  Certificate 
of  sheriff.     Expense   of  view.     No  evidence   given  thereon. 

''The  judge  also  shall  deliver  to  the  sheriff  a  copy  of  that  part 
of  the  petition  containing  a  separate  description  of  each  parcel 
of  property,  and  rights  or  interests  sought  to  be  appropriated 
within  the  county,  which  the  jury  is  required  to  view.  He  may 
appoint,  to  be  present  at  the  view,  the  two  persons  named  in 
the  writ.  The  sheriff  who  is  to  execute  the  writ,  by  a  special 
return  upon  it,  shall  certify  under  his  hand  that  the  view  has 
been  made  according  to  the  command  thereof.  The  expenses 
of  the  view  must  be  taxed  in  the  bill  of  costs.  No  evidence 
shall  be  given  on  either  side  at  its  taking."     [R.  S.  §  6429. ]»« 

9.-,  §  1.1054  G.  C.  demonstrated   to  him  the  advisabil- 

Under  §  11054  G.  C.  the  Court  is  ity  of  charging  thorn  as  to  their  du- 

only  authoiuzed  to  apjjoint  one  per-  ties.     A   cliarge   of   this   kind   in    a 

son  on   the  part  of  the  corporation  d'ltch    proceeding   will   be    found    in 

and  one  person  on  the  part  of  the  Thomas  vs.  Commissioners,  5  N.  P. 

owner  to  be  present  at  the  view.  449;  5  Dec.  510.     The  Court  should 

90  §  11055  G.  C.  Ix!  careful   in   defining  the  duties  of 

Before  the  jury  leaves  to  view  the  the  jury  on   this  view. 

premises  the  author's  experience  has 


§  1709  CONDEMNATION   BY   PRIVATE   COKPOEATIONS  1494 

§  1709.     Entry  empaneling  a  jury. 
(Title.) 

This   day   came   the   plaintifis   and ,   their   attorneys,   and 

the  defendants  and ,  their  attorneys ;  and  also  came  the  f ol- 

lowng  named  persons,  who  were  duly  examined  and  sworn  as  jurors   (here 

set  out  names  of  all  jurors)  ;  and  thereupon,  on  motion  of , 

plaintiff,    (or  one  of  the  defendants)   an  order  was  issued  to  the  sheriff  to 
conduct  the  jury  to  view  the  premises  sought  to  be  appropriated  on  the 

day   of ,    (or   forthwith)    A.   B.,   appointed   on   the 

part   of   the   plaintifi's,    and   C.   D.,   on   part   of   the   defendants,   to   show 

the   jury    said    premises.      Returnable    according   to    law    on    the 

day  of ,   (or  forthwith  upon  the  view  being  completed). 

The  following  part  might  be  added  to  this  entry,  but  it  would 
»  be  better  to  have  it  in  the  entry  making  a  finding,  etc.,  to  draw 


a  jury:" 


ENTRY  APPOINTING  ATTORNEY. 


And  it  appearing  to  the  Court  that  the  defendant, ,  who 

has  an  interest  in  this  proceeding,  and  who  is  a  non-resident  of  this  State 
(or  is  unknown,  or  his  residence  is  unknown,  p'-  he  is  under  some  legal 
disability,  and  has  no  guardian  or  trustee  withni  this  county),  and  that 
service  has  been  made  by  publication  (or  by  service  of  summons,  if  he 
be  a  minor,  lunatic,  or  idiot,  living  in  the  county  and  having  no  guardian 

or  trustee)  ;   it  is  ordered,   that ,  a  competent  attorney,  be 

and  he  is  hereby  appointed  attorney,  to  attend  upon  the  proceedings  and 

protect  the  interest  of  said  

,  Probate  Judge.98 

§  1710.     Is  the  view  evidence? 

Is  the  object  of  the  view  simply  to  enable  the  jury  to  better 

understand  and  apply  the  evidence,  as  is  the  rule  in  ordinary 

civil  actions,  or  may  they  take  into  consideration  all  the  facts 

which  they  learn  upon  such  view  as  so  much  additional  evidence 

upon  which  to  found  their  verdict  ?    This  is  a  matter  upon  which 

the   decisions   are  not   in   accord.     Neither   are  the   textbook 

writers,  Lewis,  on  "  Eminent  Domain,"'  taking  the  view  that 

it  is  only  to  enable  the  jury  better  to  understand  and  apply  the 

evidence."^ 

Where  the  attorneys  and   parties  son  &  Blair  Provision  Co.   vs.   Chi- 

call  the  attention  of  the  jury  to  cer-  cago,  111  Ills.  G51,  055;   other  cases 

tain   facts   on  the  view,   it   is   such  declare   or   support   the   same   rule; 

conduct  as   may  warrant   the  court  Chicago   &   Evanston  R.   R.    Co.   vs. 

in  setting  aside  the  verdict.    Nypano  Jacobs,    110   Ills.   414;    Peoria,   etc., 

R.  R.  vs.  Wadsworth,  9  G.  C.  (N.S.)  Ry.  Co.  vs.  Barnum,   107   Ills.   IGO; 

114;    2.9   0.   C.   C.    110.  Green  vs.  Chicago,  97  Ills.  370;  Chi- 

97  See    §  1702.  cago,   Iowa  R.   R.   Co.  vs.   Hopkins, 

ssGilmore's    Prob.    Prac.    78.  90  Ills.  31G;   Mitchell  vs.  Illinois  & 

See  §§  17G2,  1823,  1850.  St.  L.  R.  R.  &  Coal  Co.,  85  Ills.  5G6; 

99  See  Lewis  on  Em.  Dom.,  §  425,  Peoria,  etc.,  R.  R.  Co.  vs.  Sawyer,  71 

citing  the  following  cases  in  support  Ills.  3G1;  Evansville,  etc.,  R.  R.  Co. 

that  the  view  is   evidence,   Culbert-  vs.  Cochran,  10  Ind.  560;  Parker  vs. 


1495  IS     VIF.W     EVIDENCE  §  1710 

The  Supreme  Court  of  our  State  has  never  directly,  if  at  all, 
passed  upon  this  question.  In  an  early  case,"°  after  defining 
the  word  "  jury,"  as  used  in  the  Constitution,  it  is  said,  "  It  is 
hardly  necessary  to  add  that  they  may  be  sent  to  inspect  the 
premises.  That  may  be  done  in  the  trial  of  even  a  common 
law  action,  when  it  is  expedient,"  While  this  is  a  mere  dic- 
tum, it  shows  the  bent  of  the  judges'  mind  to  be,  that  the  rule 
was  to  be  applied  as  in  ordinaiy  jury  trials.^**^ 

In  Williams  vs.  Lockoman,^°^  in  a  ditch  proceeding,  it  was 
held  that  the  jury  might  consider  in  evidence  facts  made  known 
to  them  personally  from  an  actual  view  of  the  premises.  From 
an  examination  of  this  case  it  appears  that  the  question  of  com- 
pensation upon  which  the  Constitution  guarantees  a  right  to 
trial  by  jury,  was  not  considered,  but  the  facts  upon  which  the 
jury  passed  were  those  relating  to  the  necessity  of  the  proposed 
improvement. 

In  the  recent  case  of  Railroad  Co.  vs.  Commissioners,^**^  an- 
other ditch  case,  in  which  the  question  as-  to  its  necessity  and 
compensation  were  both  before  the  Supreme  Court.  On  the 
question  of  necessity,  etc.,  the  Court  again  confirmed  its  for- 
mer opinion  that  upon  such  a  question  the  jury  are  entitled  to 
consider  as  evidence  facts  brought  to  their  knowledge  from  their 
actual  view  of  the  premises. 

This  matter  was  very  exhaustively  considered  in  a  case  in 

Boston,   15  rick.   198;    City  of  Kan-  015;    7    Ency.  of    Plead,   and    Prac, 

sas    vs.    Butterfield,    89    Mo.    G4G;  583. 

Omaha  &  Rep.  Valley  R.  R.  Co.  vs.  mo  Lamb  vs.  Lane,  4  0.  S.   ISO. 

Walker,  17  Neb.  432;   In  re  Barba-  loi  in  Smith  vs.  A.  &  G.  W.  R.  R. 

does  St.,  8  Phila.  498;   Lehigh  Val-  Co.,   25    0.   S.    102,    in   defining  the 

ley  Coal  Co.  vs.  Chicago,  20  Fed.  R.  word  jury  it  is  said  that  it  lias  uni- 

415,  and  the  following  to  the  contra.  formly   been    construed   to    mean    a 

JelTersonville    etc.,   R.   R.   Co.  vs.  tribunal  of  twelve  men  presided  over 

Bowen,  40  Ind.  545;  Heady  vs.  Turn-  by  a  Court,  and  under  its  direction 

pike    Co.,    52    Ind.    117;    overruling  hearing  the  allegations,  evidence  and 

Evansville,  etc.,  R.  R.  Co.  vs.  Coch-  argument  of  counsel,   and  declaring 

ran,    10  Ind.   500;    Close   vs.   Sainm,  the  truth  upon  the  evidence  submit- 

27  la.  503;   Harrison  vs.  Iowa  Mid-  ted,  and  the  law  given  them  by  the 

land  R.  R.   Co.,  30  la.  323;   Wash-  Court, 

burn  vs.  Milwaukee,  etc.,  R.  R.  Co.,  102  4G  0.  S.  410. 

59  Wis.  3G4.  ^""'03  0.  S.  23. 

See  6  Am.  &  Eng.  Encv.  of  I.aw,  See  note  at  end  of  section. 


§  1710  CONDEMNATION  BY  PRIVATE  CORPORATIONS  1496 

the  Court  of  Common  Pleas,  and  by  a  very  able  judge/®*  and 
there  the  conclusion  is  reached  that  the  facts  made  known  to  the 
jury  upon  the  view  is  evidence.  In  this  case  the  statute  and 
the  decisions  of  our  and  other  States  are  critically  examined. 
While  not  free  from  doubt,  the  author,  in  his  experience  as 
judge,  was  inclined  to  follow  this  case.^"^ 

In  Consolidated  St.  Ry.  Co.  vs.  Toledo  Elec.  St.  Ey.  Co.,'°« 
after  calling  attention  to  the  statute  providing  that  a  jury  shall 
be  dra^vn  and  the  testimony  may  be  given  by  witnesses,^"^  and 
limiting  their  number,  it  is  said  that  "  this  language  of  the 
statute  clearly  indicates  the  purpose  of  the  Legislature  that  the 
examination  which  the  jury  shall  make,  as  it  is  provided  for  in 
the  statute,  shall  furnish  them  with  evidence  which  may  be  con- 
sidered together  with  the  testimony,  which  it  is  provided,  may 
be  given  by  the  swearing  of  the  witnesses,  and  their  examina- 
tion before  the  Court  and  in  the  hearing  of  the  jury."  By 
adopting  the  view  that  what  the  jurors  see  on  their  view  is  evi- 
dence, a  difficulty  is  experienced  in  bringing  the  question  be- 
fore a  reviewing  Court,  it  being  impossible  to  have  tliis  evi- 
dence set  forth  in  a  bill  of  exceptions,  and  therefore  practically 
making  it  impossible  for  a  reviewing  Court  to  set  aside  a  judg- 
ment and  verdict  for  the  reason  that  the  same  is  contrary  to 
law.^''^     But  it  may  be  said  that  upon   this   question  it  was 


104  Sibley,  J.,  afterwards  judge  of  Judge  Gralloway,  Probat*  Judge  of 
Circuit  Court  in  Israel  vs.  Zanes-  Franklin  county,  charged  the  jury 
ville  &  E.  R.  Co.,  19  Bull.  258.  that  the  view  of  the  premises  is  to 

105  111  0.  S.  E..  R.  Co.  vs.  Snyder,  enable  them  to  better  understand 
5  N.  P.  461;  5  Dec.  480,  the  jury  and  apply  the  testimony  of  witnes- 
were  charged :  You  w-ere  ordered  to  ses  and  not  for  the  purpose  of  ascer- 
view  the  land  sought  to  be  appro-  taining  the  value  of  the  proj^erty, 
priated  in  this  case.  This  was  for  and  they  cannot  take  into  consid- 
the  purpose  of  enabling  you  better  to  eration  their  owa  ideas  of  the  value 
determine  the  questions  before  you.  of  the  premises  as  fixed  by  their 
and  to  apply  your  own  judgment  in  OAvn  view  of  them.  C.  D.  &  M.  E. 
regard  to  them,  as  well  as  to  bettei  ^7-    vs.    Knauss,    47    Bull.    807. 


J      ^      1     .1,  -1       '         K    A     -f  106  6  N.  P.  540;   8  Dec.  2G8 

understand    the    evidence.     And    if  u  xi.  a..         , 

t  1  (  ft  107  §  11056  G  C,  §  1713 

any  one  of  you  knows  of  any  fact  ^,  .  x,        . 

of  his  own  knowledge,  not  common  to 


los  This  matter  is  very   distinctly 


all,  bearing  upon  the  case,  he  ought       ^^t  forth  in  Washburn  vs.  Milwau- 

to  disclose  it,   and  testify  to   it   in       ^ee  Ry.  Co.,  59  Wis.  3G4. 

open  Court.     O.  S.  Ry.  vs.  Rawlins,  See  L.  S.  &  M.  S.  vs.  Gaffney,  9  C 


29  Bull.  260. 


C.  32;  6  C.  D.  94. 


1497 


SEPARATE    TRIALS 


§  1711 


the  intention  of  the  Legislature  that  there  should  be  no  re- 


view. 


While  it  is  a  question  of  great  doubt  in  the  author's  mind, 
yet  he  is  inclined  to  the  opinion  that  the  things  which  the  jury 
saw  upon  their  view  and  facts  thus  ascertained,  constitute  evi- 
dence in  the  case  submitted/^" 


§  1711.  Separate  owners  entitled  to  separate  trial.  They 
hold  the  afRrraative  on  trial.  "The  owners  of  each  separate 
parcel,  right,  or  interest,  are  entitled  to  a  separate  trial  by  juiy, 
verdict,  and  judgment.  They  shall  hold  the  affirmative  on  the 
trial,  which  must  be  conducted,  evidence  admitted,  and  bills  of 
exception  allowed  as  provided  in  civil  actions."    [R.  S.  §  G422.] ^^^ 


lof  Reviewing  Courts  are  now  in- 
clined not  to  set  aside  any  verdict 
on  the  mere  ground  that  it  is  con- 
trary   to   the   weight  of   evidence. 

IK'  Our  Supreme  Court  has  re- 
cently held,  "When  upon  the  trial  of 
the  general  issue,  in  an  action  upon 
a  quantum  meruit  for  services  of  a 
domestic  character,  the  plaintiff 
offers  evidence  showing  the  facts 
from  which  the  promise  to  pay  may 
properly  be  inferred,  and  also  show- 
ing the  nature  and  extent  of  the 
services  rendered,  the  case  should  be 
submitted  to  the  jury  although  no 
witness  expresses  an  opinion  as  to 
the  value  of  the  services."  Hossler 
vs.  Trum^,  62  O.  S.   139. 

In  the  case  of  Alarsh  vs.  County 
Commissioners,  27  Bull.  56,  the  Pro- 
bate Court  refused  to  set  aside  the 
verdict  because  it  was  against  the 
weight  of  evidence  for  the  reason 
that  some  jMirts  of  such  evidence 
was  not  before  the  Court  and  rested 
within  the  knowledge  of  the  jurors. 
The  Probate  Court  was  reversed  by 
the  Common  Pleas  Court,  Hustain:;d 
by  the  Circuit  Coiirt  and  bv  the  Su- 
preme Court.  .33  Bull.  121,  131. 
The  Supreme  Court,  however,  did 
not  report  their  decision,  and 
whether  the  view  on  this  particular 
question  of  the  Probate  Court  was 
affirmed  or  not  is  not  known. 

In  City  of  Columbus  vs.  Bidling- 
meier,  7  "C.  C.  1.36;  3  C.  D.  608,  un- 
der the  general  statute,  §§  ,51Sfli  and 
5101,  it  was  held  it  was  not  evi- 
dence followed.  Besuden  vs.  Com- 
missioners, 7  C.  C.  237;  4  C.  D. 
575. 

A  distinction  is  made  bv  the  Su- 
preme Court  in  views  ordered  under 
the  general  statute  and  statutes  in 


si>ecial  proceedings.  Machader  vs. 
Williams,  54  0.  S.  344;  35  Bull. 
182. 

See  Bender  vs.  Buehrer,  8  C.  C. 
244;  4  C.  D.  507. 

See   §§  1706,   1762,   1848. 

HI  §  11048  G.  C. 

In  the  case  of  Railroad  Co.  vs. 
Bolen,  76  O.  S.  376,  the  Supreme 
Court  has  held  that  "The  impres- 
sions made  on  the  minds  of  the 
jurors  in  an  appropriation  case  by  a 
view  of  the  premises  are  not  of 
themselves  evidence  in  the  cause. 
Hence,  a  bill  of  exceptions  which 
contains  all  the  evidence  given  in  a 
court  at  the  trial  is,  with  a  record 
otherwise  complete,  sufRcient  to  pre- 
sent to  a  reviewing  court  the  ques- 
tion of  the  weight  of  tlie  evidence." 
In  the  opinion  this  work  is  cited  and 
a  conclusio  is  reached  that  by  vir- 
tue of  the  provisions  of  the  Constitu- 
tion giving  in  trial  of  condenmation, 
the  riglit  of  what  is  known  as  a  jury 
trial,  that  it  therefore  follows  that 
only  such  can  be  considered  as  evi- 
dence as  is  produced  to  the  jury  in 
the  presence  of  the  court,  and  there- 
fore commends  the  rule  followed 
in  ordinary  trials,  and  tliat  is  that 
"The  view  by  the  jury  of  the  prop- 
erty which  is  the  subject  of  litiga- 
tion ...  is  solely  for  the  pur- 
pose of  enabling  tliem  to  apply  the 
evidence  ofTered  upon  the  triai." 
Tlie  court  is,  however,  careful  to  ex- 
ee!)t,  "that  in  passing  upon  issue 
of  f'ct  the  jurors  may  take  account 
of  Uieir  general  knowledge  of  alTair.s, 
and  likelv  to  be  possessed  bv  all 
intelligent  men  or  general  knowledge 
on  file  subject  of  inquiry."  Whether 
or  not  the  court  might  cltnrge  the 
jury  that  the  things  that  they  saw 


§  1712  CONDEMNATION  BY  PRIVATE  COKPOEATIONS  1498 

§  1712.     Motion  for  separate  trial  and  entry,  etc. 

The  above  section  was  not  in  the  original  act.""  Under  tlie 
original  act,  however,  it  was  said  that  it  does  not  compel  him 
(defendant)  to  proceed  jointly  after  the  jury  have  returned 
from  the  view,  nor  to  encounter  the  jargon,  confusion  and  un- 
certainty of  a  joint  litigation.  He  has,  then,  the  right  to  de- 
mand that  his  rights  and  interests  shall  engage  the  separate  at- 
tention and  examination  of  the  jury,^^^  The  party  desiring  the 
separate  hearing  should  make  a  motion  for  that  purpose,  and 
the  Court  should  grant  the  same  and  make  a  journal  entry  of 
that  fact,  and  if  there  are  a  number  of  defendants,  set  forth 
the  order  in  which  their  cases  should  be  tried ;  and  when  the 
verdict  of  the  jury  in  one  matter  has  been  returned,  an  imme- 
diate trial  should  be  had  of  another  defendant's  interest.  After 
the  view  is  taken,  each  defendant  may  proceed  with  his  own 
case  just  the  same  as  if  they  were  separate  actions.  The  fol- 
lowing may  be  used  as  a  form  of  entry : 

{Title.) 

This  day  this  matter  came  on  to  be  further  heard  upon  the  motion  of 
A.  B.,  a  plaintiff  in  the  above  action,  for  a  separate  trial.  Wherefore  it  is 
ordered  that  said  motion  be  granted  and  that  the  Court  proceed  to  the 
hearing  of  testimony  in  the  above  matter  in  reference  to  the  lands  of  said 

A.   B.,   sought   to   be   appropriated   herein,   and   that   on   the day   of 

testimony  will  be  heard  in  reference  to  the  lands  of  C.  D., 

defendant   of  the  above  action,   etc.n* 


§1713.  Witnesses  may  be  examined  before  jury.  "Wit- 
nesses may  be  examined  before  the  jury  after  its  return  to  the 
court.  If  more  than  three  witnesses  be  examined  by  either  party, 
on  the  same  point  in  the  same  case,  the  judge  may  tax  the 
costs  of  such  additional  witnesses  to  the  party  calling  them." 
[R.  S.  §6430.]"= 

upon   the   view,   miglit   be   taken   in  dence  from  which  they  will  largely 

consideration    by    them,    is    not    di-  draw   to   arrive   at   their    final   con- 

rectly  passed  upon,  but  what  is  dis-  elusion.     See  Evidence,  §  1673. 

tinctly  passed  upon  is  that  the  mere  n-  50  Ohio  Laws,  201. 

fact  that  the  bill  of  exceptions  does  nsRannev,    J.,    Uiesy    vs.    C.    W. 

not  show   (and  by  the  nature  of  the  &  Z.  R  E.  Co.,  4  0.  S.' 322. 

case     could     not     show)     what     the  m  See   §§1704,   1S23,    1851,   18^8. 

jurors    saw,   would   not 'prevent   the  us  §  1105G  G.  C. 

case  from  being  considered  on  error.  See  §  1G73.  Evidence;  and  §§  1760, 

The    fact,     remains,    Jiowever,    that  1G72,  Benefits. 

from    the    nature    of    the    case,    the  As  the  evidence  to  be  produced  to 

matters  tuat  the  jury  gathered  from  the    jury    is    ordinary    opinion    evi- 

observation  on  the   view,   cannot  be  dence,  the  Court  sliould  not  grant  a 

considered    as    otherwise    than    evi-  continuance  bv  reason  of  an  absent 


1498a  TRIAL BURDEN  OF  PROOF  §  1714 

§  1714.    Trial,  etc. 

A  trial  before  the  Court  proceeds  in  the  same  manner  that 
jury  trials  in  civil  cases  are  ordinarily  conducted.  The  statute 
provides  "that  the  land  owners  shall  hold  the  affirmative  on  the 
trial,  which  shall  be  conducted,  and  evidence  shall  be  admitted, 
and  bills  of  exception  may  be  taken,  as  provided  in  civil  ac- 
tions.""*' It  has  therefore  been  held  that  the  burden  of  proof 
rests  upon  them.^^'' 

§  1714a.    Burden  of  proof. 

Recently  the  Supreme  Court  has  held:  An  action  brought  by 
a  municipality  to  condemn  private  property  under  the  consti- 
tution and  laws  of  Ohio,  is  a  proceeding  in  rem.  In  such  pro- 
ceeding,, there  are  no  formal  pleadings  or  definite  issues, 
which  admit  of  affirmation  upon  one  side  and  denial  upon  the 
other :  hence  the  doctrine  of  burden  of  proof  has  no  application. 
The  jury  acts  merely  as  an  appraising  or  assessing  board,  deter- 
mining the  fair  market  value  of  the  property  from  all  the  evi-' 
dence  submitted."^""  "While  this  is  a  case  brought  by  a  munici- 
pality, the  reasoning  would  adopt  the  same  rule  to  a  case  brought 
by  a  private  corporation. 

In  the  Martin  case,  the  Court  below  charged  the  jury : 

''The  burden  of  proving  the  value  of  this  property  rests 
upon  the  defendants,  the  owners  of  the  property,  and  they  are 

witness    when    such    witness    could  Store    Co,    vs.    Cincinnati    Southern 

only   testify   as    to    matters    which  Ry.,  9  C.  C.   (N.'S.)   103;  19  Cir,  D, 

could  easily  be  supplied  by  others,  719;  29  0.  C.  C.  719. 

See  C.  J.  &  M.  Ry.  vs.  Earcelow,  "^  §  11048  G.  C.  (§  1711). 

2  C.  D.  413;   4  C.  C.  49,  as  to  dis-  H^  0.  S.  E.  E.  Co.  vs.  Snyder,  5 

cretion  of  judge.  N.  P.  461;  5  Dec.  480.    Sec  previous 

If  a  property   owner  submits   to  section, 

joint  trial  without  exception,  he  can  Sec  §  11062  G.  C.   (§  1718). 

not  be  heard  in  a  reviewing  court  See  §  1764. 

to  complain  that  he  did  not  have  a  n7a  Martin  vs.  Columbus,  101  O. 

separate     trial.       Cincinnati     Iron  S.  — . 


§  1714a  CONDEMNATION    BY    PRIVATE    CORPORATIONS  1498b 

required  to  prove  its  value  by  a  preponderance;  that  is  the 
greater  weight  of  the  evidence." 

For  giving  this  charge,  the  judgment  of  the  common  pleas 
and  court  of  appeals  was  reversed.  While  the  matter  of  bur- 
den of  proof  in  its  application  to  condemnation  proceedings 
was  always  one  of  perplexity,  I  am  not  sure  that  the  decision 
of  the  supreme  court  has  materially  aided  the  trial  of  such 
eases.  There  is  still  a  burden  somewhere;  the  evidence,  by  its 
greater  weight,  must  still  be  the  rock  upon  which  the  verdict 
must  stand.  Even  if  the  charge  was  technically  incorrect,  it 
is  not  easy  to  conceive  how  the  land  owner  was  prejudiced 
thereby.  "While  Ihere  is  no  price  or  value  of  the  lands  fixed  or 
claimed  in  the  pleadings,  yet  there  is  an  issue,  and  that  issue 
is  the  fair  value  of  the  lands.  The  land  owner  claims  that  it  is 
of  one  value;  the  corporation  of  another. 

This  of  course  does  not  appear  from  the  pleadings,  but  it  is 
a  fact  generally  known  to  the  parties  at  time  of  trial.  On 
this  issue  the  land  owner  holds  the  affirmative — that  is  on  his 
claim — and  of  course  in  order  to  sustain  it,  he  must  produce 
or  have  to  support  it  the  preponderance  of  evidence.  It  is  dif- 
ficult to  understand  why  the  legislature  gave  the  affirmative 
to  land  owner  if  it  did  not  mean  to  put  him  in  the  same  position, 
on  the  trial  of  the  issue  then  at  hand,  as  the  law  generally 
places  on  the  party  that  holds  the  affirmative. 

In  a  former  case  the  court  held  that  the  jury  in  condemnation 
cases,  was  that  known  to  the  common  law,  and  that  the  impres- 
sions made  on  the  minds  of  the  jury,  in  their  view  was  not  evi- 
dence, etc.^^"'* 

The  duties  of  a  common  law  jury,  are  generally  regarded 
differently  from  the  duties  of  an  appraising  or  assessing  board, 
and  some  doubt  might  be  raised  as  to  how  far  a  reviewing  court 
might  go  into  the  matter  of  the  weight  of  evidence  necessary  to 
support  a  verdict. 

117b  Railroad  Co.  vs.  Bolin,  76  O.  S.  376.     See  §  1710. 


1499  FORM    OF   ENTRY   AND   VERDICT,   ETC.  §    1715 

The  result  then  of  this  decision  is  that  the  corporation  has 
the  burden  of  proof  showing  that  the  owner  should  be  divested 
of  his  property,  and  as  to  what  the  corporation  should  pay, 
there  is  no  burden  of  proof  on  either  party. 


§  1715.  When  a  structure  is  partly  on  land  sought  to  be 
appropriated.  "When  a  building  or  other  structure  is  situ- 
ated partly  upon  land  sought  to  be  appropriated,  and  partly 
upon  adjoining  land,  and  such  structure  can  not  be  divided 
upon  the  line  between  such  two  tracts  without  manifest  injury, 
in  assessing  the  compensation  to  any  oM^ner  of  the  lands,  the 
jury  shall  assess  its  value  exclusive  of  the  structure,  and  make 
a  separate  estimate  of  the  value  of  the  structure.  The  owner 
of  the  structure  may  elect  to  retain  its  ownership,  and  to  remove 
it,  or  accept  the  value  estimated  by  the  jury.  If  he  fails  to 
make  such  election  within  ten  days  from  the  date  of  the  jury's 
report,  or  within  ten  days  from,  the  termination  of  the  cause 
in  a  higher  court  to  which  it  is  taken,  he  shall  be  deemed  to 
have  elected  to  retain  and  remove  the  structure.  If  he  elects 
to  accept  the  value  of  the  structure,  the  title  thereto  shall  vest 
in  the  corporation  making  the  appropriation,  with  the  right  to 
enter  upon  the  land  for  the  purpose  of  removing  it  therefrom." 
[R.  S.  §6431.]^i« 


§  1715a.  Verdict.  Motion  for  new  trial.  Confirmation  of 
verdict.  "The  jury  shall  render  its  verdict  in  writing,  signed 
by  the  foreman,  to  the  judge,  who  shall  cause  it  to  be  entered 
of  record.  Unless  for  good  cause  shown,  upon  motion  to  be 
filed  within  ten  days  after  the  verdict  is  rendered,  a  new  trial 
be  granted,  the  judge  shall  enter  a  judgment  confirming  such 
verdict."     [R.  S.  §6432.; 


119 


§1716.    Form  of  entry  and  verdict,  etc. 

When  the  jury  arrives  at  its  conclusion,  it  should  return  a 
verdict  in  writing,   signed  as  above   provided,   and  the   judge 

118  §  11057  G.  C.  C.  &  C.  Bridge  Co.  vs.  Dcvoto,  5  N. 

The   question  Avhether  the  struc-      P.  330;  8  Dec.  C40. 
ture  is  on  the  line  and  whether  or  H^  §  11058  C  C. 

not  it  can  be  divided  is  a  question  See  Central  Ohio  Ey.  vs.  Holler, 

of  fact  to  be  submitted  to  the  jury.       7  0.  S.  220,  whore  verdict  was  held 

not  to  conform  to  law. 


§  1717  CONDEMNATION   BY  PRWATE    CORPORATIONS  1500 

should  immediately  enter  it  upon  his  record.  The  following 
may  be  used  as  a  form  for  a  journal  entry,  the  latter  part  of 
which  contains  the  form  of  a  verdict :, 

(Title.) 

This  day  came  the  parties  (by  their  attorneys),  and  thereupon  came 
again  the  jury,  after  having  made  a  view  of  the  premises  (and  thereupon 
A.  B.  demanded  a,  separate  trial  by  jury,  verdict,  and  judgment,  which  was 
granted;  and  the  jury  having  heard  the  evidence  and  arguments  of  counsel 
and  charge  of  the  Court  in  reference  to  the  rights  and  interest  of  the  said 
A.  B.,  retired  to  their  room  for  deliberation,  and  in  due  time  returned  into 
Court,  and  delivered  the  following  verdict  in  writing,  to-wit:  (Here  copy 
verdict  entire.)  Or  (and  thereupon  A.  B.  and  C.  D.  demanded  separate 
trials  by  jury,  verdict,  and  judgment,  which  was  gi'anted;  and  by  consent, 
said  A.  B.  and  C.  D.  submitted  the  evidence  on  their  respective  claims 
separately,  and  they  were  separately  argued,  with  the  understanding  and 
agreement  that  said  jury  are  to  hear  the  evidence  and  arguments  and 
charge  of  the  Court  in  all  the  cases  before  retiring,  and  render  separate 
verdicts  in  the  cases  of  said  A.  B.  and  C.  D.)  ;  or,  and  thereupon,  neither 
of  the  defendants  demanding  a  separate  trial,  and  the  jury  having  heard 
the  evidence  offered  by  all  the  parties,  and  the  arguments  of  counsel, 
retired  to  their  room,  and  in  due  time  returned  into  Court,  and  delivered 
the  following  verdict,  in  writing,  to-wit:      (Here  copy  verdict  entire.) 

FORM  OF  VERDICT. 

County  Probate  Court. 

Case  stated. 

VEUDICT. 

We,  the  jury,  empaneled  and  sworn  in  this  proceedings,  do  find  and  assess 
compensation  and  damages,  to  be  paid  by  (name  corporation)  plaintiff,  by 
reason  of  the  appropriation  of  said  property  to  its  use,  in  the  several 
cases  submitted  to  us  (or  in  the  case  of  A.  B.,  if  his  case  is  submitted 
separately)  as  follows: 
To ,  the  owner  of  tract  1,  as  described   in 

the  petition,  we  assess,  as  compensation  for  land  taken,     $ 

As  damages  to  residue  of  tract $ 

To, ,  the  owner  of  tract  2,   as  described  in 

the  petition,  we  assess,  as  compensation  for  lands  taken,     $ 

As  damages  to  residue  of  tract $ 

(And  so  on  with  all  who  have  not  demanded  separate  trials).  We  make 
said  assessments,  irrespective  of  any  benefit  of  the  owner  from  any  im- 
provement proposed  by  said  corporation. 

Date 

,   Foremani2o 

§  1717.    Motion  for  new  trial,  etc. 

The  statute  allows  ten  days'  time  from  the  time  that  the  ver- 
dict is  returned  for  the  purpose  of  filing  a  motion  for  a  new 

120  See  §§  1766,  1823.  opinion  formerlv  the  rule  seems  now 

Where  the  attorney  stated  that  the  well    established    that   three-fourths 

property  was  purchased  at  a  certain  of   the   jurv  may   return    a   verdict. 

price,   and   the   court  told   the   jury  Smith  vs.  CraiT,  40  0.  C.  A.  544. 

to   disrc"-ard  the  statement,   it  was  The   order   of   t'.ie   Probate    Court 

not     error     for     which    the     verdict  confirming  the  verdict  of  the  jury, 

should  be  set  aside.  Devon  vs.  Cin.  is  a  final  order  which  may  h'?  re- 
viewed  on  error.      Ftate  vs.  Waite, 

Term.,  etc.,  4  0.   L.  R.   313;   29   O.  2  C.  C.  (N.S.)  40;  a'^rmed,  70  0.  G. 

C.  C.  113.  140;   25  0.  C.  C,  216;   affirmed,  70 

While    there    was    a    diversity    of  0.   S.   149. 


1501  NEW   TRIAL  §  1718 

trial.  The  statute  relating  to  condemnation  proceedings  does 
not  set  forth  the  grounds  for  which  a  new  trial  may  be  asked. 
The  general  statute  relating  to  that  subject  therefore  applies.^-^ 
While  the  finding  of  the  court  upon  the  preliminary  hearing 
might  be  reviewed  on  error,  it  could  not  be  so  reviewed  until 
after  the  verdict  was  returned  and  the  judgment  confirmed."^ 

§1718.    New  trial.    Proceedings  thereon.    Costs."  "A  new 

trial  shall  be  granted  for  cause  only,  shall  take  place  m  the 
court  where  the  first  trial  was  had,  and  be  conducted  in  accord- 
ance with  the  provisions  of  this  chapter  so  far  as  they  are 
applicable.  Upon  granting  the  motion  for  a  new  trial,  if  the 
amount  of  the  first  verdict  has  been  paid  into  court  the  judge 
shall  retain  it  until  the  final  termination  of  the  second  trial. 
On  the  new  trial,  if  the  verdict  of  the  jury  exceeds  the  amount 
of  the  first  verdict,  the  corporation  must  pay  the  amount  of  the 
first  verdict,  together  with  the  excess,  to  the  owner  of  the 
property.  Wlien  the  verdict  upon  the  second  trial  is  less  than 
that  of  the  first,  the  judge  shall  repay  to  the  corporation  the 
difference.  If  a  new  trial  be  granted  at  the  instance  of  the 
owner  of  the  property,  and  the  verdict  of  the  jury  be  the  same 
or  less  in  amount  than  that  first  rendered,  he  must  pay  all  the 
costs  of  the  second  trial.  If  it  be  more  than  that  first  ren- 
dered, the  costs  of  the  second  trial  must  be  paid  by  the  cor- 
poration."    [R.  S.  §6436.]  123 

■  §  1719.     Entry  confirming  verdict,   etc. 

{Title.) 

This    day    came    the    parties    by    their    attorneys,    and    the   jury   having 
assessed  the  total  compensation  to  be  paid  by  the  plaintiff  as  appears  of 

record  herein,  and  the  defendant, ,  havinsf  elected  to  take 

the  valuation  fixed  by  the  jury  for  the  structure,  to-wit:  $..... , 

thereupon    this    cause    came    on    to    be    heard    upon    the    motion    of    the 

defendant, ,  to  set  aside  the  verdict  of  the  jury  and  for  a 

new  trial  herein,  and  was  argued  by  counsel.  On  consideration  wliereof 
the  Court  find  that  said  motion  is  not  well  taken  and  the  same  is  hereby 
overruled,  to  which   decision  of  the  Court  and  overrulin-^  of  said  motion 

the  said.' excepted  and  his  exceptions  are  entered  of  record. 

And  the  Court  having  examined  the  procecdin'jrs  herein  and  the  same  being 
in  all  respects  regular  and  proper,  it  is  ordered  by  the  Court  that  judg- 
ment be  entered   upon  said  verdict  as   required  by   law.     It  is   therefore 

121  §§  11575-6  G.  C.  trial  after  verdict,    lleusch  vs.  Trae- 
See  §  52.                    *  tion  Co.,  24  O.  C.  C.  540;   allirnied 

122  T.  C."  Street  Ry.  Co.  vs.  T.  E.       8!)  O.  S.  283. 

Ry.  Co.,  6  C.  C.  3G2;   3  C.  D.  493.  123  §  11062  G.  C.    Tlic  courts  now 

See,    however,    recent   decision    of  hold  tliat  if  error  is  prosecuted  from 

Supreme  Court,  P  C.  &  St.  L.  H.  K.  the  rrol)atc  Court  and   llien  to  the 

vs.  Todd,  72  O.  S.  156,  which  liolds  Court   of    Appeals    and    the   case    is 

that  the 'final  order  is  tlie  confirma-  there     reversed,     it     sliould    be     re- 

tion  of  the  verdict  of  tlie  jurv,  etc.  manded  back  to  tlie  Probate  Court. 

See   §§  1774,   18:3,   1853,  aiid  tlie  Railway  vs.  Barger,  30  O.  C.  C).  06. 

time    to    present    a    review    of    all  The  same  from  the  Supreme  Court, 

questions,    on    preliminary    hearing  Cemetery  Assn.  vs.  Traction  Co.,  93 

or    otliervvise,    will    date    from    the  O.  S.  182. 
overruling  of  a  motion  for  a  new 


§  1720  CONDEMNATION    BY    PRIVATE    CORPORATIONS  1502 

ordered  and  adjudged  that  said  proceedings  and  the  verdict  be  and  the 
same  are  hereby  approved  and  confirmed  and  that  said  plaintiff  corporation, 
upon  payment  witliin  thirty  days  from  the  entry  hereof  of  the  said  sum  of 

$ ,    the    amount   of    said    verdict,    and    costs    herein    taxed    at 

$ ,  to  the  owners  of  said  property  as  hereinafter  described,  or 

deposit  the  same  with  the  Court  for  the  use  of  said  owners,  shall  be 
entitled  to  take  possession  of  and  hold  and  use  the  property,  rights  and 
interests  of  the  defendants  and  each  of  them  so  appropriated  for  the  uses 
and  purposes  for  which  the  appropriation  was  sought,  as  set  forth  in  the 
petition,  said  property  being  described  as  follows,  namely:  (Describe  it.) 
And  upon  such  j^ayment  or  deposit  an  order  may  issue  to  the  sherifT  of 

county  to  put  the  plaintiff  in  possession  of  said  premises. 

And  it  is  considered  by  the  Court  that  the  plaintiff  pay  the  costs  of  this 

proceeding  taxed   at   $ (or,   if   necessary,   proceed   as    follows: 

It  being  made  to  appear  that and ,  defendants 

herein,  have  each  waived  the  issuing  of  summons  and  entered  their  appear- 
ance  herein   and   filed   their  answer   and   cross-petition  setting  fort.h   their 

mortgage  lien  against  said  premises,  and  the  city  of has  filed 

its  cross-petition  herein  setting  forth  its  lien  for  the  improvement  of  said 

street,    it    is    ordered    tliat    this    cause    be    continued    for 

further  hearing  upon  the  rights  of  the  several  parties  hereto  upon  distribu- 
tion of  the  money  paid  into  Court  as  aforesaid  and  if  desired  refer  the  same 
to  Court  of  Common  Pleas  (§  1727).  To  all  of  which  findings,  orders 
and  judgment  of  the  Court,  the  said excepts,  and  there- 
upon  the   said filed   his   motion  to  vacate   and    set   aside 

the  same  and  to  set  aside  this  entire  order  and  judgment,  which  motion 
was  submitted  to  the  Court,  upon  consideration  whereof  the  Court  over- 
rule said  motion.     To  all  of  which  the  said excepts.)  124 

§  1720.  Petition  in  error  may  be  filed  by  either  party  in 
Common  Pleas,  when.  Bills  of  exceptions.  "Bills  of  excep- 
tions may  be  taken  and  shall  be  allowed,  as  provided  by  law  in 
civil  actions. "     [R.  S.  §  6437.]i2'5 

§  1720a.  Petition  in  error.  "Either  party  may  file  a  peti- 
tion in  error  in  the  court  of  common  pleas  of  the  proper  county 
within  thirty  days  after  the  time  allowed  for  such  signing  of 
bills  of  exceptions,  and  the  proceedings  ir  error  shall  be  con- 
ducted as  in  civil  cases."     [R.  S.  §  6437.]  i-^* 

§  1720b.  Corporation  may  pay  judgment  and  enter  on  prop- 
erty^ "On  the  rendition  of  final  judgment  in  the  probate 
court,  the  corporation  may  pay  into  the  court  the  amount  of  the 
judgment  for  compensation,  and  costs  therein  rendered,  and 
proceed  to  enter  upon  and  appropriate  property  notwithstand- 
ing the  pendency  of  the  proceedings  in  error."  [R.  S. 
§  6437.]  i2,5-|- 

124  The    entry    overruling    motion  125*  §  ii064  G.   C. 

for  a  new  trial  and  confirming  the  i25-}-  110G5  G.  C. 

verdict    is    a    final    judgment    from  In  proceedings  for  the  appropria- 

which  error  may  be  prosecuted.     C.  tion   of   property   by  a   private   cor- 

J.   &  M.   R.   R.   Co.   v.   Barcalow,   4  poration    the    determination    of    the 

C.  C.  49;  2  C.  D.  493.  preliminary  questions  by  the  probate 

123  §  11063  G.  C.  judge,  as  required  by  §  11046  G.  C, 


1503 


PROCEEDINGS   ON    ERROR. 


§1721 


§  1721.     When  error  may  be  prosecuted. 

Error  may  be  prosecuted  from  any  final  order,  but  the  peti- 
tion therefor  can  only  be  filed  within  thirty  days  from  the  time 
that  final  judgment  is  rendered.  This  final  judgment  means 
the  entry  overruling  the  motion  for  a  new  trial  and  confirming 
the  verdict  of  the  jury.^-"  "Wliere  the  statute  provides  a  method 
of  hearing  cases  on  error,  it  must  be  followed. 

§  1722.      Proceedings  in   Common   Pleas   on   error.      Costs. 

"Upon   the   hearing  of   the  cause,   if  the  common  pleas  court 
affirms  the  judgment  of  the  probate  court,  all  the  costs  in  the 


§  1695,  may  be  reviewed  on  error. 

A  motion  for  a  new  trial,  or  re- 
hearing, of  such  preliminary  ques- 
tions is  not  necessary. 

The  time  within  which  a  bill  of 
exceptions  on  such  hearing  should 
be  taken  is  to  be  computed  from  the 
day  on  which  said  questions  are  de- 
termined, if  no  motion  for  a  new 
trial  is  filed,  and  if  a  motion  for  a 
new  trial  is  filed  from  the  day  the 
motion  for  a  new  trial  is  overruled. 

The  time  within  which  a  petition 
in  error  must  be  filed  in  the  Court 
of  Common  Pleas  is  to  be  computed 
from  the  final  judgment  of  the  Pro- 
bate Court  either  dismissing  the  pe- 
tition or  confirming  the  verdict  of 
the  jury. 

If  the  Court  of  Common  Pleas  re- 
verses the  judgment  of  the  Probate 
Court  for  error  in  the  determination 
of  either  of  the  preliminary  ques- 
tions it  should  retain  the  case  and 
hear  and  determine  such  questions 
de  novo.  P.  C.  &.  St.  E.  R.  vs.  Todd, 
72  0.  S.  156;  Ry.  vs.  Traction,  430. 
If  the  Common  Pleas  affirms  the 
Probate  Court  and  the  case  is  taken 
to  the  Court  of  Appeals  or  Supreme 
Court  and  there  reversed  it  is  re- 
manded back  to  the  Probate  Court, 
not  to  the  Court  of  Common  IMcas. 
Railway  vs.  Barger,  30  0.  C.  A.  66; 
10  0.  App.  443;  Cemeterv  Assn.  vs. 
Traction  Co.,  93  0.  iS.   183. 

The  undertaking  or  bond  given  by 
the  corporation  under  §  6718  R.  S., 
on  proceeding  in  error  to  review  the 
verdict  and  order  of  confirmation  of 
the  Probate  Court,  must  secure  the 
costs  and  attorney  fees  accruing  in 
the    Probate    Court    in    case    of    an 


abandonment  of  the  property  bj'  the 
corporation.     48  Bull.  943. 

An  undertaking  under  §  6718  R.  S. 
is  not  sufficient  to  staj'  execution 
but  must  also  be  given  under  §  6725 
R.  S.  State  vs.  Waitc,  25  C.  C.  217; 
70  0.  S.  affirming  2  C.  C.  (N.S.)  49; 
15  Cir.  D.  216. 

In  State  vs.  Waite,  70  0.  S.  151, 
it  is  held  that  "if  the  corporation 
chooses  it  may  prosecute  error  to 
the  Common  Pleas  Court  by  giving 
an  undertaking,  and  if  it  does  not 
take  possession,  it  will  not  be  re- 
quired to  deposit  the  sum  allowed 
as  compensation,  etc.,  and  an  action 
of  mandamus  will  not  lie  to  compel 
the  Probate  Judge  to  collect  the 
same  while  such  proceedings  in  er- 
ror  is   pending." 

Where  the  statute  provides  a 
method  of  hearing  cases  on  error,  it 
must  be  followed.  Wiler  v.  Logan 
Nat.  Gas  &  Fuel  Co.,  27  C.  C.  257; 
6  C.  C.  (N.S.)  20G;  17  Cir.  D.  257; 
reversing  \  N.  P'.  (N.S.)  277;  14 
Low.  D.  164;  affirmed,  nn  report,  72 
O.  S.   628. 

126  C.  &  M.  V.  Ry.  Co.  vs.  Wick, 
35  0.  S.  247;  Little  :\nanii  Ry.  Co. 
vs.  Hopkins,  1!)  0.  S.  270;  Wagner 
vs.  Ry.  Co.,  38  0.  S.  32;  Stcuben- 
ville  &  I.  Rj'.  Co.  vs.  Patrick,  7  0.  S. 
170.  See  authority  under  previous 
note    111. 


§    1723  CONDEMNATION   BY  PRIVATE   CORPORATIONS 


1504 


common  pleas  court  shall  be  paid  by  the  plaintiff  in  error.  If 
it  reverses  such  judgment,  it  shall  retain  the  cause  for  trial 
and  final  judgment,  as  in  other  cases.  The  trial  shall  be  had 
at  the  term  of  reversal,  unless  for  good  cause  shown  by  either 
party  a  continuance  is  granted.  On  the  trial  of  the  cause  in 
the  common  pleas  court  the  same  inquiry  shall  be  made  as  to 
the  interest  of  the  jurors,  and  the  same  oath  administered  to 
the  jury  as  hereinbefore  provided."      [R.   S.   §6438.]^-^ 

§  1723.     When  corporation  may  have  possession. 

Any  time  after  a  judgment  confirming  the  verdict  of  the  jury 
has  been  entered,  the  corporation  may  pay  or  deposit  with  the 


If  the  verdict  of  the  jury  was 
eonfirmed  and  entry  put  on  at  the 
time  it  was  rendered  it  would  date 
from  that  date,  notwithstanding  the 
fact  that  a  motion  for  a  new  trial 
had  been  filed. 

See  Dowty  vs.  Pepple,  58  0.  S. 
395;  Wilder  vs.  McDonald,  9  C.  D. 
259;  18  C.  C.  232;  Collins  vs.  Mans- 
field, 7  C.  D.  445;    13  C.  C.  258. 

National  Union  vs.  Rothert,  39 
Bull.  145;  Selig  vs.  Akron,  etc.,  10 
C.  D.  535;    19  C.  C.  G33. 

Wiler  vs.  Logan  Xat.  Gas  &  Fuel 
Co.,  27  C.  C.  257;  G  C.  C.  (N.S.) 
206;  17  Cir.  D.  257;  reversing  1  N. 
P.  (N.S.)  277;  14  Low.  D.  104;  af- 
firmed,  no   report,   72   0.    S.    G2S. 

127  §  HOGG   G.   C. 

If  the  Court  of  Common  Pleas 
reverses  the  Probate  Court,  then  it 
shall  retain  the  case  and  proceed  in 
the  same  manner  as  if  the  cause  had 
originally  been  brought  in  such 
Court.  C.  &  C.  C-o.  vs.  Magruder, 
63  0.  S.  455.  Where  the  Comm.on 
Pleas  Court  reverses  the  Probate 
Court,  such  order  of  reversal  can- 
not be  reviewed  by  petition  in  error 
in  the  Circuit  Court.  Railway  Co. 
vs.  Bailey,  39  0.  S.  170;  9  Bull.  296. 

Error  could  be  prosecuted  from 
any  order  made  thereafter  the  same 
as  from  the  Probate  Court.     But  a 


reviewing  Court  will  not  reverse  the 
Probate  Court  where  there  is  no  sub- 
stantial errors  to  the  prejudice  of 
the  party  complaining.  Consol.  St. 
Ry.  vs.  Toledo  Elcc.  St.  Ry.  Co., 
6  N.  P.  537;  8  Dec.  2G8;  Banning  vs. 
Trustees  of  Southern  Ry.,  3  Bull. 
905. 

If  reversed  on  preliminary  ques- 
tions the  Common  Pleas  Court  re- 
tains it.  P.  C.  &  St.  V.  Todd,  72 
0.   S.   150. 

The  fact  that  payment  has  been 
made  by  the  corporation  will  not 
prevent  the  corporation  from  prose- 
cuting error.  Trustees  of  Southern 
Ry.   vs.   Banning,    17   Bull.   319. 

The  provision  of  §  6438  R.  S.,  re- 
lating to  error  proceedings  in  ap- 
propriation proceedings,  that  the 
Common  Picas  Court  "shall  retain 
the  cause  for  trial  and  final  judg- 
ment, as  in  other  cases,"  does  not 
authorize  a  judgment  for  costs  other 
or  different  from  that  prescribed 
by  §§  6414  to  6453  R.  S.  Hence, 
the  fees  of  jurors,  in  appropriation 
proceedings,  should  be  taxed  as  part 
of  the  costs  under  §  6414  R.  S.,  et 
scq.,  and  not  under  §  5182  R.  S. 
Hosbrook  vs.  L.  &  C.  Traction  Co.. 
27  0.  C.  C.  42;  5  C.  C.  (N.S.) 
209. 

The  original  defendant  may  pros- 


1505 


CORPORATION  MAY  TAKE  POSSESSION 


§  1723 


Probate  Judge  the  amount  of  the  verdict,  and  the  costs  ^-^  that 
have  accrued  up  to  that  time,  and  the  corporation  shall  then  be 
entitled  to  take  possession  of  the  property/-^  This  deposit  must 
be  made  in  money,  a  certificate  of  indebtedness  will  not  be 
sufficient.^^*' 

Where  a  corporation  makes  a  deposit  and  on  a  new  trial  a 
lower  judgment  is  rendered,  the  corporation  might  maintain 
an  action  to  recover  the  excess.^^^  The  statute  relating  to  such 
deposit  is  as  follows : 

"Upon  payment  to  the  party  entitled  thereto,  or  deposit  with 
the  probate  judge  of  the  amount  of  the  verdict  and  such  costs 
as  lawfully  accrued  in  the  case  up  to  the  time  against  the 
corporation,  it  will  be  entitled  to  take  possession  of,  and  hold, 
the  property,  rights  or  interests  so  appropriated,  for  the  uses 
and  purposes  for  which  the  appropriation  was  sought,  as  set 
forth  in  the  petition.  The  judge  shall  enter  of  record  an  order 
to  that  effect,  and  if  necessary,  proper  process  shall  be  issued 
to  place  the  corporation  in  possession  thereof."  [R.  S.  §  6433.]"^ 


ecute  error  to  protect  officers  of  the 
Court.     Hosbrock   vs.   Traction  Co., 

5  C.  C.  (KS.)  209;  17  Cir.  D.  42; 
affirmed,  no  report,  75  0.  S.  584 ;  27 
0.  C.   C.  42. 

This  applies  to  a  case  taken  up 
from  the  Insolvency  Court.  Cin.  vs. 
Lohman,  10  C.  C.  (KS.)  119;  30 
O.  C.   C.   92. 

If  the  Court  of  Common  Pleas  af- 
firms the  judgment,  it  cannot  ren- 
der a  judgm.cnt  but  should  approve 
the  action  of  the  Probate  Court  and 
remand  the  same  to  that  Court.     C. 

6  M.  Valley  Ry.  Co.  vs.  Wick,  35 
0.    S.   247. 

128  Jury  fees  are  not  costs  to  be 
taxed  to  a  party.  Hill  vs.  Durr, 
47  Bull.   440. 

The  Circuit  Court  of  Darke 
County  has  decided  otherwise,  and 
likcwisG  the  Supreme  Court.  De- 
troit Southern  vs.  Lawrence  Co., 
71   0.  S.  454. 

120  Wagner  vs.  Ry.  Co.,  38  0.  S. 
32, 

130  City  of  Toledo  vs.  Sanwald,  13 
C.   C.   496;    7   C.   D.    110. 


131  Trustees  Cin.  Southern  Ry.  vs. 
Banning,    21    Bull.    9. 

1-2  §11059   G.   C. 

After  such  deposit  the  title  passes 
to  the  corporation.  Hueston  vs.  E. 
&  H.  R.  R.  Co.,  4  0.  S.  G85. 

JIandam.us  will  not  lie  to  compel 
the  corporation  to  pay  in  the  amount 
of  the  verdict,  etc.     48  Bull.  942. 

If  a  proper  undertaking  is  given 
in  proceeding  in  error,  tlie  deposit 
need  not  bo  made,  unl-^ss  the  cor- 
poration takes  possession.  State  vs. 
R.  Waite,  etc.,  70  0.  S.;  affirming 
2  C.  C.  (N.S.)  49;  15  Cir.  D.  21G; 
25   C.   C.   21G. 

If  the  company  pays  the  money 
into  Court,  under  a  stipulation  that 
tlin  money  may  be  withdrawn,  with- 
out prejudice  to  any  other  right, 
the  Court  may,  in  its  discretion, 
proceed  to  a  second  trial  without  a 
rcfundcr  by  the  land  owner.  Cov- 
ington vs.  IMagruder,  8  C.  C.  (N.S.) 
303;  18  Cir.  D.  C07;  28  0.  C.  C. 
G07;  affiirmcd,  no  report,  76  0.  S. 
GIO. 

See  City  of  Cleveland  vs.  Cuya- 
hoga Agricultural  Soc,  41  0.  S,  600. 


I 


§  1724       APPROPRIATION  BY  PRIVATE  CORPORATION        1506 

§  1724.    Entry  when  deposit  made. 
As  a  corporation  is  entitled  to  possession  of  the  property,  the 
Court  should  make  an  entry  of  the  fact  of  deposit,  etc.,  which 
may  be  in  the  following  fonn: 

ENTRY  OF  PAY:MENT   OF  A^^IOUXT  OF  VERDICT,  ETC. 
{Title.) 

This  day  came  the  plaintiff,  the  C,  R.  &.  B.  C\)mpanv,  a  corporation  un- 
der the  laws  of  Ohio  and  Kentucky,  by  its  attorney,  and   pays  into  Court 

and   deposits   with   the   judge   of   this  Court  the  sum  of    

dollars,  the  amount  of  the  verdict  of  the  jury  herein,  and  pays  the  costs 
of  this  action,  and  thereupon,  it  is  considered  ordered  and  adjudged  that 
the  plaintiff,  the  C,  R.  &  B.  Company,  be  entitled  to  the  posse.^sion  of  and 
to  hold,  use  and  enjoy,  the  real  estate,  property,  rights  and  int«rests  of 
the  defendants  and  each  of  them  in  and  to  the  real  estate,  property  and 
rights  appropriated  herein  to  the  uses  of  plaintiff'  as  set  forth  in  the 
petition  and  described  as  folloAvs:     (Descuibe   it.)      And   a   writ   or   order 

may  issue  on  the  application  of  plaintiff  directed  to  the  sheriff  of    

county,  Ohio,  to  put  the  plaintiff  in  possession  of  said  premises.  ( To  all 
of  which  the  defendants ,  excepts.)  isa 

§  1725.  When  and  how  corporation  may  abandon  proceed- 
ing. "The  corporation  may  abandon  any  case  or  proceeding 
after  paj'ing  into  court  the  amount  of  the  defendant's  costs, 
expenses,  and  attorney  fees,  as  found  by  the  court.  If  the  cor- 
poration fails  in  any  case  to  make  payment  or  deposit,  as  pro- 
vided in  the  next  preceding  section,  within  thirty  days  after 
confirmation  of  the  verdict,  on  motion  of  the  party  entitled  to 
such  payment,  to  be  filed  within  ten  days  after  the  expiration 
of  such  thirty  days,  the  judge  sb^all  enter  an  order  directing  the 
corporation  to  make  such  payment  or  deposit  within  thirty  days 
after  the  date  of  the  order.  Unless  such  corporation,  Adthin 
such  time  makes  such  payment  or  deposit,  it  shall  be  held  thereby 
to  have  abandoned  the  property,  rights,  or  interests  so  appro- 
priated, and  all  claims  thereon  under  its  proceeding,  and  the 
judge  shall  issue  an  order  to  that  effect.  He  also  shall  enter  a 
judgment  against  the  corporation,  and  in  favor  of  the  party 
entitled  to  such  payment,  for  such  amount  of  expenses,  including 
time  spent  and  attorney  fees  incurred  by  him  in  the  proceeding, 
as,  upon  the  evidence  offered  in  that  behalf,  the  court  deems  just, 
for  which  execution  may  be  issued  against  the  corporation.  The 
directors  of  the  corporation  shall  be  individually  liable  upon 
such  judgment,  and  may  be  made  parties  thereto  by  action." 
[R.  S.  §  6434.]  1=^* 

133  Whittaker    Prob.   .  Code.  the  property,  or  pay  the  costs  and 
See   §  1667.  decline   to   take   the   property. 

134  See  48  Bull.  942;  §  11060  G.  C.  It  has  been  very  much  doubted  if 
In  all  cases  the   corporation  may  the    Probate    Court    could    try    the 

pay  the  judgment  and  costs  and  take       question  of  attorneys'  fees,  etc.,  and 


1506a 


ABANDONMENT 


§1726 


§  1726.     What  is  an  abandonment. 

It  may  be  generally  said  that  the  corporation  may  discontinue 
the  proceeding  at  any  time,  at  least  before  the  submission  of  the 
inquiry  to  the  jury.^^D  ^  corporation  can  legally  abandon  the 
proceeding  after  a  verdict  is  rendered,  although  the  Court 
makes  no  record  or  journal  entry  of  such  a  fact.  The  land 
owner,  however,  has  a  right  immediately  after  the  verdict,  and 
its  confirmation  by  demand,  to  have  the  plaintiff  corporation 
indicate  whether  it  will  abandon  the  proceedings  or  not.^^*' 

In  appropriation  by  municipal  corporations,  after  the  aban- 
donment has  been  made,  an  action  may  be  brought  to  again 
appropriate  the  property.^"  But  not  if  the  abandonment  has 
been  made  in  bad  faith.^^® 


that  judgment  could  be  rendered  for 
such  amount  as  the  Court  might 
think  fit.  ,  'See  Logan  Natural  Gas 
Co.  vs.  Anna  L.  Wiler,  1  N.  P. 
(N.S.)  277   (1903)  ;  14  Low.  D.  164. 

See,  however,  Wiler  vs.  Gas  Co.,  6 
C.  C.  (KS.)  306;  17  Cir.  D.  257; 
reversing  1  N.  P.  (N.S.)  277;  14 
Low.  D.  164;  affirmed,  no  report, 
72  0.  S.  628;  27  0.  C.  C  257;  6 
C.    C.    (N..S.)    206. 

§  11091  G.  C,  §  1C75. 

135  D.  &  W.  Ry.  Co.  vs.  Marshall, 
11   O.   S.   497. 

The  Probate  Court  may  include 
reasonable  attorney  fees,  and  its 
judgment  will  not  be  disturbed  un- 
less it  appears  to  have  abused  its 
discretion,  and  may  hear  evidence 
on  the  value  of  the  same.  Wiler  vs. 
Gas,  etc.,  27  C.  C.  (N.S.)  257;  6 
C.  C.    (N.S.)   206. 

The  corporation  may  abandon  part 
before  verdict.  Cin.  vs.  Trustees,  14 
Dec.  466. 

If  a   proceeding  in  error   is  pend- 


ing, there  is  no  abandonment  even 
though  there  be  no  deposit  made. 
70  0.  S.;  affirming  2  C.  C.  (N.S.) 
49;   State  vs.  Waite,   25  C.  C.  216. 

If  the  Court  orders  a  deposit  and 
this  is  not  done,  this  will  be  an 
abandonment  even  though  the  case 
be  pending  on  error.     Id. 

If  the  corporation  is  compelled  to 
abandon  proceedings  by  reason  of  a 
decision  of  the  Supreme  Court,  this 
will  not  excuse  it  from  paying  costs. 
Expenses  include  all  reasonable  and 
proper  expenses  incurred  in  defense 
of  suit.  What  is  reasonable  attor- 
ney fee,  see  Railroad  vs.  Farmers 
Co.,   53   Bull.    13;    50   L.   R.  530. 

136  State  of  Ohio,  ex  rel.  Hayes  vs. 
C.  &  I.  R.  R.  Co.,   170  S.  105. 

137  Trustees  of  Cincinnati  S.  Ry. 
vs.  Haas,  42  0.  S.  239. 

See  City  of  Cincinnati  vs.  ITosea, 
19    C.    C.    744;    10    C.    D.    018. 

138  Cin.  vs.  Hott,  5  N.  P.  418; 
8   Dec.  043. 


§  1726a         APrROPRiATioN-  by  private  corporation  1506b 

A  railroad  failed   to   take   advantage   of   a  verdict  for  six 
months;  it  was  held  it  might  bring  a  new  action.^^^ 


§  1726a.  When  action  may  be  brought  for  costs  and  ex- 
penses. "If  such  judgment  is  not  satisfied  within  thirty  days 
after  its  rendition,  or  if  the  party  entitled  thereto  is  not 
satisfied  with  its  amount  he  shall  have  a  right  of  action  against 
the  petitioner  for  such  expenses,  including  time  spent  and 
attorney  fees,  and  also  for  his  expenses,  including  reasonable 
attorney  fees,  incurred  in  prosecuting  such  action.  But  it  must 
be  brought  within  six  months  after  the  rendition  of  the  judgment 
in  the  probate  court."     [R.  S.  §  6435.]  "° 

§  1727.    Entry  of  distribution  where  there  are  no  conflicting 
claims. 

If  there  are  conflicting  claims,  then  the  Probate  Court  has 
no  right  to  adjudicate  upon  such  rights,  but  an  action  thereon 
must  be  brought  in  the  Court  of  Common  Pleas.^^^  Jjy&d. 
though  proceedings  in  error  are  pending,  the  Probate  Judge 
is  not  entitled  to  keep  the  fund,  but  must  turn  it  over  to  the 
persons  entitled  thereto. ^^-  The  entry  therefor  may  be  in  the 
following  form : 

OEDER  OF  DISTRIBUTION. 

{Title.) 

This  proceeding  came  on  this  day  to  be  heard  upon  the  application  of 
for  distribution  on  deposit  of  $ made  by  the 

139  C.    P.    &   V.    Ry.    vs.    Blank,    5  error  has  been  commenced.     48  Bull. 

Dec.    569.  943. 

See   §§  1(567,   17S3.  The   undertaking   in    such   a   case 

1*0  §  11061    G.   C.  being  held,  to  answer  that  purpose. 

"i§§  11072,    11073,    11074,    11075  However,    if    the    corporation    takes 

G.  C,  §§  1728,  1720,  1730.  possession  the  deposit  must  be  made. 

142  Meily  vs.   Zurmehly,   23   0.   S.  If  the  case  is  dismissed  on  motion 

627;  Wagner  vs.  Railway  Co.,  38  0.  of    defendant,    because    there    is    no 

S.  36.  showing  made  of  inability  to  agree, 

Tl:e  corporation  cannot  be  held  to  the     defendant    is    not    entitled    to 

abandon   its    proceeding    even    if    no  costs.      Devon    vs.    Ry.,    4   0.    L.    R. 

deposit  be  made,  if  a  proceeding  in  319;  17  Dec.  134. 


1507  ORDER   OF   DISTRIBUTION  §  1728 

plaintiff,  and  the  Court  being  fully  advised  in  the  premises,  find  that  there 

is    due    to and upon    their    mortgage    described 

in  their  answer  and  cross-petiton,  including  interest  thereon   at  five   per 

cent,  per  annum  from ,  190 . . ,  to ,  190 . . ,  the 

date  of  the  entry  hereof,  the  sum  of  $ ,  which  is  the  first  and 

best  lien  upon  said  premises  and  said  fund,  after  paying  the  assessment 

to  the  city  of ,  and  the  Court  further  finds  that  there  is  due 

to    the    city    of ,    for    the    unpaid    assessment    on    all    the 

premises  fronting  on street,  the  sum  of  $ ,  which 

is  the  first  and  best  lien  upon  said  premises  and  said  fund,  and  the  Court 
find  that  the  residue  of  said  fund,  viz:  $ ,  belongs  to  the  de- 
fendant,         It  is  therefore  considered   and  ordered  by  the 

Court,  that  the  clerk  of  this  Court  pay  out  of  said  fund  of  $ , 

1st.  To  the  city  of ,  or  its  solicitors,  the  sum  of  $ 

2d.  To  the  defendants, and ,  upon  tlieir  can- 
celling the  mortgage  held  by  them,  the  sum  of  $ ,  and  3d.  To 

,   or   his   attorneys  of  record   therein,   the  residue  of   said 

fund,  viz:  $ i*3 

S  1728.     When  Probate  Court  cannot  order  distribution. 


For  some  legislative  reason  which  is  not  very  apparent  to  the 
writer,  the  Probate  Court  cannot  order  a  distribution  of  a  fund 
when  there  are  diverse  or  conflicting  claims,  legal  or  equitable 
to  the  real  estate  appropriated,  or  any  interest  therein.  It 
seems  that  the  Probate  Court  might  as  well,  having  all  the  par- 
ties before  it,  be  authorized  to  adjust  the  equities  existing  be- 
tween them,  and  make  such  distribution  as  the  law  and  equity 
of  the  case  might  require.  The  action  brought  in  the  Court  of 
Common  Pleas,  when  neither  is  in  possession,  is  one  of  an 
equitable  nature,  and  the  parties  are  not  entitled  to  a  jury  trial. 
If  the  issue  is  one  triable  by  jury,  it  must  be  so  tried."*  The 
three  following  sections  provide  for  such  actions  in  the  Court 
of  Common  Pleas : 

When  there  are  diverse  or  conflicting  claims,  legal  or  equitable, 
to  the  real  estate,  or  any  interest  therein,  sought  to  be  appro- 
priated under  the  provisions  of  this  chapter,  the  jury  or  court 
shall  not  pass  upon  them  in  the  proceedings  for  appropriation. 
Such  claims  shall  be  reserved  for  adjudication  as  hereinafter 
provided.     [R.  S.  §G442.]"= 

143  Whittakcr's  Prob.  Code.  into     consideration     tlic     rcasonablo 

Sec    §  1774.  value    of    the    property    condemned, 

m  Skerrett  vs.  Presb.  Soc,  41   0.  And    tlie    decision    of    tlie    Probufo 

S.  COG.  Court  will  not  be  distiirbcil  unless  it 

See  §  11075  G.  C  appears  to  b((  an  abuse  of  discretion 

i'»'>  §  11072    G.   C.  Of  clearly  against  tlio  weiglit  of  the 

For  tlie  purpose  of  proving  value  evidence.     Wiler  vs.  C.as  Co.,  0  C.  C. 

of  attorney  fees  tlie  Court  may  take  (X.S.)   20G;   27  0.  C.  C.  257. 


§  1729  APJ'ROPRIATION    BY    PRIVATE    CORPORATION  1508 

§  1729.  Conflicting  claims  adjudicated  in  Common  Pleas. 
Petition  therefor.  Disposition  of  fund.  "Upon  the  payment 
of  the  money  into  court  by  the  corporation,  a  party  claiming  a 
legal  or  equitable  interest  in  the  property,, or  the  money  arising 
therefrom  by  such  appropriation,  may  file  his  petition  in  the 
common  pleas  court  of  the  proper  county,  making  the  other 
claimants  to  the  property  or  money  parties  thereto,  setting  forth 
the  facts  on  which  the  claim  is  founded,  the  fact  of  the  appro- 
priation of  the  property,  the  amount  of  money  so  paid  in  and 
such  other  facts  as  are  required  to  enable  the  court  to  hear  and 
determine  the  matter  between  the  claimants,"    [R.  S.  §  6443.]  ^*® 

§  1729a.  Custody  of  the  funds.  "The  court  forthwith  shall 
appoint  some  master,  or  otlier  suitable  person  selected  by  the 
parties,  to  hold  such  fund,  or  invest  it  in  the  manner  the  court 
directs,  after  hearing  the  parties.  Such  fund  thenceforth  will 
represent  the  land,  and  the  interests  therein,  and  be  subject  to 
the  control  of  the  court  having  jurisdiction  of  the  case,  by 
orders  entered  in  this  action,  according  to  the  rights  of  the 
parties  to  the  land  or  fund,  as  from  time  to  time  it  determines." 
[R.  S.  §  6443.]  i^*-'* 

§1730.  Such  proceeding  a  civil  action.  "Such  proceeding 
in  the  court  of  common  pleas,  shall  be  a  civil  action;  and  the 
conflicting  claims  of  parties  to  such  fund  shall  be  determined  by 
the  court,  or  by  a  jury  trial,  according  as  the  claim  is  equitable 
or  legal,  as  if  the  land  had  not  been  converted  into  money." 
[R.  S.  §  6444.]  "^ 

§  1731.     When  unfinished  roadbed  of  railway  company  may  be 
condemned. 

The  Legislature  has  authorized  a  railroad  corporation  to  con- 
demn an  unfinished  road  bed  of  any  other  railroad  company,  as 
provided  in  the  three  following  sections : 

A  railroad  corporation  of  this  state  may  condemn  and  appro- 
priate to  its  own  use  the  interest  and  easement  in  and  quiet 
title  to  any  unfinished  road-bed,  or  part  thereof,  lying  within  the 
state,  and  on  the  line  of  its  proposed  road,  owned  or  claimed 
by  another  railroad  company  or  companies,  person  or  persons, 
partnership  or  corporation,  when  such  road-bed,  or  part  thereof 
has  remained  in  an  unfinished  condition,  and  without  having 

A  remainderman's  interest  is  not  and    11074-    G.    C.    do    not    apply   to 

affected  by  life  tenant's  deed.     Gor-  ordinary  appropriations  by  railroads. 

rill  vs.  Pvv.,  2  C.  D.  620 ;  4  0.  C.  C.  Valley  Ry^  Co.  vs.  Pouehot,  2  C.  D. 

398.           '  492;   4  0.  C.  C.  187;  affirmed  51  0. 

146  §  11073  G.  €.  S.  571. 

140*  §11074  G.  C.  §11071    G.    C.    does    not    give    a 

i4r§  11075  G.  C.  jnrv    trial.      Skerrett    vs.    Presbyte- 

It    has    been    held    that    §§  11073  riaii  Soc,  41  O.  S.  630. 


1509  CONSTRUCTION   OF   TERMS  §  1731a 

the  ties  and  iron  placed  and  continued  thereon  for  the  period  of 
five  years  or  more,  immediately  preceding  the  commencement  of 
proceedings  to  condemn  or  appropriate  it  as  herein  authorized. 
Every  such  company,  or  companies,  person  or  pei-sons,  partner- 
ship or  corporation  shall  be  made  a  party  defendant  to  such 
proceedings  to  condemn  or  appropriate  it,  and  be  required  to 
answer  therein,  setting  forth  fully  its  or  their  title  to  or  interest 
in  such  road-bed,  or  part  thereof,  so  sought  to  be  appropriated, 
if  any,  it  or  they  claim,  to  which  answer  the  plaintiff  must 
plead  issuably,  unless  it  admits  the  validity  of  the  defendant's 
claim.  In  such  case,  if  a  party  defendant  be  a  non-resident  of 
this  state,  or  a  foreign  corporation,  service  of  summons  may  be 
made  by  publication,  as  in  other  proceedings  to  appropriate  the 
property  of  foreign  corporations,  or  persons  not  residing  in  Ohio. 
[R.  S.  §  6445.]  "« 

§  1731a.  Construction  of  terms.  ''The  terms  'company  or 
companies'  used  in  this  chapter,  also  embrace  'person  or  persons,' 
'partnership  or  corporation'  as  used  in  the  next  preceding 
section."     [R.  S.  §6445.]  "«* 

§  1732.  Judgment  and  costs  in  such  case.  When  jury  to 
determine  amount  of  compensation.  "When  it  is  determined 
by  the  court,  upon  issue  of  law,  or  by  the  jury  upon  issue  of 
fact,  or  by  the  admission  of  the  pleadings,  or  by  reason  of  failure 
to  plead  that  any  company  asserting  such  ownership  or  claim  is 
not  entitled  thereto,  judgment,  including  costs,  must  be  rendered 
accordingly.  But  when  in  like  manner  it  is  determined  that  such 
a  company  has  an  interest  in  such  road-bed,  or  part  thereof,  so 
sought  to  be  appropriated,  the  jury  shall  determine  and  state 
the  amount  of  compensation  due  to  such  company,  according  to 
law,  on  account  of  the  appropriation  of  such  interest.  [R.  S. 
§  6446.]  ^*9 

§  1733.  In  what  Courts  such  proceedings  may  be  commenced 
and  how  conducted.  Case  may  be  taken  out  of  its  order.  Pro- 
ceedings in  error.  Provisions  as  to  viewers  not  to  apply. 
Sworn  statement  of  president  of  intention  to  complete  road. 
25  per  cent,  of  cost  of  completion  to  be  expended  within  a 
year.  Words  "road-bed"  include  what.  "Such  proceedings 
may  be  commenced  in  the  probate  court,  the  common  pleas  or  the 
superior  court  of  any  county  in  which  such  road-bed,  or  part  so 
sought  to  be  appropriated  or  condemned  i:^  situated.  All  or 
part  only  of  such  road-bed  within  this  state  may  be  included  in 
one  proceeding,  and  when  it  is  begun  in  the  common  pleas  or 
superior  court,  the  same  proceedings  shall  be  had  as  are  pre- 
scribed in  this  chapter  for  its  conduct  in  the  pubate  court,  so 

14S  §  i]07r,  n.  c.  i4»nin7ft  o.  c. 

148*  §  11077   G.  C. 


§  1733a      APPROPRLITION  BY  PRIVATE  CORPORATION       1510 

far  as  applicable  and  not  excepted  in  this  section.  On  motion, 
the  case  shall  be  taken  out  of  its  order  by  the  court  or  by  a 
reviewing  court,  and  determined  without  unnecessary  delay. 
The  provisions  of  this  chapter  as  to  viewers  shall  not  apply  to 
appropriations  of  road-beds  as  herein  authorized.  |R.  S. 
§  6447.] ^^'^ 

§  1733a.  Error.  "Proceedings  in  error  to  such  common 
pleas  or  superior  courts,  may  be  commenced  directly  in  the 
supreme  court. "     [R.  S.  §  6447.]'^°* 

§  1733b,  Statement  of  intention.  "When  a  railroad  cor- 
poration commences  proceedings  under  section  eleven  thousand 
and  seventy-six,  its  president  shall  make,  subscribe  and  file  in 
the  court  where  such  proceeding  is  had  a  statement  under  oath, 
declaring  that  it  is  the  bona  fide  intentian  of  such  corporation 
to  complete  and  operate  a  railroad  on  the  road-bed  so  sought 
to  be  appropriated."     [R.  S.  §  6447.] i''«** 

§  1733c.  Failure  to  occupy  roadbed  for  one  year.  "For  a 
period  of  one  year  after  it  acquired  right  to  occupy  the  road- 
bed, if  such  corporation  fails  to  expend  in  and  about  the  com- 
pletion of  a  railroad  thereon  a  sum  equal  to  twenty-five  per 
cent,  of  the  total  cost  of  completing  it,  to  be  estimated  by  the 
railroad  commission  of  Ohio,  then  such  road-bed  will  be  open 
to  appropriation  and  condemnation  by  any  other  railroad  cor- 
poration."    [R.  S.  §  6447.]i=n 

§  1733d.  Interpretation  of  word  "road-bed."  "The  word 
'road-bed'  used  in  any  of  the  preceding  sections  includes  rights 
of  way,  depot  grounds,  and  other  easements  connected  there- 
with, and  it  will  .be  sufficient  in  the  petition  and  proceedings 
under  this  chapter  to  designate  the  road-bed  as  the  road-bed 
of  the  railroad  corporation  by  which  the  route  of  the  road  was 
located  and  established  with  the  terminal  points  within  which 
appropriation  is  sought."    [R.  S.  §  6447.]^^°$ 

§  1734,     When  land  owner  may  compel  appropriation. 

Wliere  a  corporation  has  taken 'the  property  of  another  with- 
out rendering  compensation  therefor,  provided  the  property 
be  taken  for  a  use  coming  within  the  power  of  eminent  domain, 
the  o\\'ner  may  compel  the  corporation  to  pay  for  the  same  by 
proceedings  to  condemn  the  property  already  appropriated.     If 

IS? J  11079  G.^C.  Right  of  action  under  the  statute 

150*  §  11080  G.  C.  '                            does  not  begin  or  arise  until  a  per- 

i5o*»  §  11081  G.  C.  .son  is  entitled  to  right  of  possession, 

isof  §  11082  G.  C.  and  where  the  hind  is  held  by  a  life 

150 J  §  11083  G.  C.  tenant,  the  right  of  the  remainder- 


1^^^  WHEN  LAND  OWNER  MAY  BRING  §  1735 

the  corporation  has  taken  property  which  it  has  no  right  to  con- 
demn, llien  the  owner  might  recover  his  property  by  an  action 
in  ejectment.  He  might  also  permit  the  corporation  to  keep 
the  properly  and  bring  an  action  for  damages.  The  provisions 
of  our  statute  relating  to  the  action  brought  by  the  land  owner 
to  condemn  the  land  appropriated  will  be  discussed  in  the  fol- 
lowing sections : 

§  1735.  When  land  owners  or  school  officers  may  notify  cor- 
poration to  institute  proceedings;  petition  on  failure  of  cor- 
poration to  act.  "When  a  corporation,  authorized  by  law  to 
make  appropriation  of  private  property  or  lands  reserved  for 
school  purposes,  has  taken  possession  of  and  is  occupying  or 
using  the  land  of  any  person,  or  such  school  lands  for  any  pur- 
pose, and  the  land  so  occupied  or  used  has  not  been  appropriated 
and  paid  for  by  the  corporation,  or  is  not  held  by  an  agree- 
ment in  writing  Avith  the  owner  thereof,  or  the  trustees  or  school 
officers  .having  possession  or  control  of  such  school  lands,  such 
owner  or  owners,  or  either  of  them,  or  such  trustees  or  school 
officers,  may  serve  written  notice  upon  the  corporation  in  the 
manner  provided  for  the  service  of  summons  against  a  corpor- 
ation, to  proceed  under  this  chapter  to  appropriate  the  lands. 
On  the  failure  of  such  corporation  for  ten  days  so  to  proceed, 
the  owner  or  owners,  or  such  trustees  or  school  officers  may  file 
a  petition  m  the  probate  court  of  the  proper  county  setting  forth 
the  fact  of  such  use  or  occupation  by  the  corporation,  that  the 
corporation  has  no  right,  legal  or  equitable,  thereto,  and  in  cases 
of  reserved  sections  sixteen  and  twenty-nine,  or  any  part  of  sec- 
tions granted  by  congress  instead  of  section  sixteen  for  school 
purposes,  no  right,  legal  or  equitable,  derived  from  the  trustees 
and  officers  named  therein,  that  such  notice  has  been  duly  served, 
that  the  time  of  limitation  under  the  notice  has  elapsed,  and 
such  other  facts,  including  a  pertinent  description  of  the  land 
so  used  or  occupied,  as  are  proper  to  a  full  understanding  of 
the  case."     [R.  S.  §6448.]  ^•"■^ 

§  1735a.  Demand  of  written  statement  describing  the  land 
occupied  without  appropriation.  "Such  owner  or  owners,  or 
such  trustees  or  seliool  officers,  intending  to  institute  such  pro- 
ceeding, may  demand,  in  writing,  from  the  president  or  cliief 
officer  of  such  corporation  a  specific  description  of  each  parcel 
of  land  so  used  or  occupied  without  appropriation  hy  it,  of  the 
work,  if  any,  constructed  or  intended  to  })e  constructed  thereon, 

man  dnos  not  begin  until  the  doatli  I'l  §  11084  O.  C. 

of  the  life  tenant.     Webster  vs.  R.  R., 
78  O.  S.  87. 


§  1376  APPROPRIATION   BY   PRIVATE   CORPORATION  1512 

and  the  luse  to  which  it  is  to  be  applied.  Upon  failure  of  the 
corporation  for  ten  days  to  furnish  this  as  fully  as  would  be 
required  of  it  in  a  proceeding  to  appropriate  lands,  the  fact  of 
such  demand  and  failure  may  be  alleged  in  the  petition  in  such 
proceeding.  On  notice  to  the  corporation  and  proof  thereof  to 
the  probate  judge  having  jurisdiction  of  such  appropriation,  he 
shall  restrain  it  from  the  use  and  occupation  of  the  land  until 
such  demand  is  complied  with.  Or,  such  owner  or  owners,  or 
trustees  or  school  officers  may  cause  the  necessary  surveys  to  be 
made  therefor,  and  the  costs  thereof  must  be  taxed  to  the  cor- 
poration in  such  proceeding."     [R.  S.  §  6448.]  ^^^* 

§  1736.     Who  may  bring  action. 

The  action  might  be  brought  by  any  person  who  has  an  in- 
terest in  the  real  estate  ^^^ —  that  is,  any  person  who  should 
rightfully  be  made  a  party  defendant  where  the  action  is 
brought  by  a  corporation  —  it  seems  ought  to  be  a  party  that 
would  have  a  right  to  bring  the  action.  There  might  be  some 
question  whether  a  party  who  is  not  entitled  to  possession  could 
bring  the  action.  It  has  been  held  that  only  the  owner  of  the 
legal  title  could  maintain  such  an  action.^^^  If  an  owner  sells 
his  land  after  the  road  has  wrongfully  taken  the  property,  his 
grantee  is  the  person  who  is  entitled  to  bring  the  action.^^* 

§  1737.    When  and  where  action  brought. 

The  action  should  be  brought  in  the  same  Court,  in  which,  if 
the  corporation  were  condemning  the  land,  it  would  be  required 
to  bring  its  action.^^^  The  action  can  only  be  brought  when 
several  facts  exist.^^®  Such  an  action  is  not  barred  in  less  than 
twenty-one  years  from  the  time  of  the  company's  occupation.^^' 
But  if  an  action  was  brought  for  wrrongful  possession,  it  would 
be  barred  in  six  years.^^^     A  person  merely  standing  by  and 

i8i»  11085  G.  C.  157  Fries  vs.   Railway   Co.,   56   O. 

152  Railroad  vs.   CyHara,  48   0.   S.  S.    135. 
355.  158  Id. 

153  Rapp  vs.  0.  S.  Ry.  Co.,  5  N.  Railroad  Co.  vs.  O'Harra,  48  0.  S. 
P.  407;    5  Dec.   453.  343. 

154  C.  P.  &  V.  R.  R.  Co.  vs.  Davis,  A  railroad  company  cannot  bring 
19  C.  C.  589;   10  C.  D.  745.  proceedings   under  this   section,  nor 

155  Previous    section,    §  1680.  can   any   action   be   brought   against 

156  See   §11084  G.  C.  it,    unless    the   occupation    is   under 
See  subsequent  section,  §  1740,  Es-       an    agreement    in    writing.      Collins 

sentials  of  petition.  vs.  Shipbuilding  Co..  7  C.  C.   (N.S.) 

350;    27    0.   C.    C.    802. 


1513  NOTICE  TO  CORPORATION  §  1738 

seeing  the  occupation  of  tlie  land  by  a  corporation  will  not 
estop  him  from  compelling  an  appropriation.^^'' 

§  1738.  Notice  to  corporation. 
Before  the  owner  can  maintain  his  action  against  the  corpo- 
ration he  must  notify  the  corporation  to  proceed  to  appropri- 
ate. This  notice  should  be  served  in  the  same  manner  as  a 
summons,  and  it  must  have  been  served  at  least  ten  days  before 
the  owner  can  bring  the  action.  This  notice  ought  to  describe 
the  property  that  has  been  appropriated,  and  may  be  in  the 
following  form: 

To Corporation, 

You  have  taken  possession  of  and  are  now  occupying  and  using  the 
following  land  owned  by  me  (here  describe)  without  having  appropriated 
or  paid  for  the  same  and  without  any  agreement  in  writing  with  me 
therefor. 

You  are  hereby  notified  to  proceed  to  appropriate  said  lands  as  provided 
for    in    §§  11038    to    11091    General  Code. 

§  1739.    Demand  of  description  of  property. 

Before  the  owner  institutes  a  proceeding  as  provided  for, 
such  owner  has  a  right  to  demand  of  the  president  or  chief  offi- 
cer of  the  corporation,  a  specific  description  of  each  parcel  of 
land  so  used  or  occupied,  and,  if  occupied  without  a  work  con- 
structed thereon,  shall  have  a  right  to  demand  the  kind  of  work 
that  will  be  put  thereon  and  the  use  to  which  the  same  shall  be 
applied.  This  application  must  be  made  at  least  ten  days  be- 
fore the  filing  of  the  petition.  It  is  probable  that  this  appli- 
cation for  description  could  not  be  made  until  the  expiration  of 
the  ten  days  mentioned  in  the  previous  section.  Such  applica- 
tion may  be  in  the  following  form : 

To Corporation. 

The  undersigned  hereby  makes  application  to  you  to  furnish  him  with  a 
specific  description  of  the  property  now  occupied  by  you.  situate  (here 
describe  in  a  definite  manner)  and  used  by  you  for  the  following  purpose 
(hero  set  forth).  (If  said  property  is  not  in  use,  the  following  should 
be  used.) 

You  will  also  give  to  me  a  description  of  the  work  that  will  be  placed 
thereon  and  the  use  to  which  the  same  will  be  applied,  as  provided  for  in 

159  Railroad  vs.  Perkins,  22  C.  C.  Stat«  vs.  Harrison,  11  C.  C.   (N.S.) 

^g  503;  81  O.  S.  105. 

Owner  standing  by  is  not  estopped.  Owner  lias  lien  superior  to  niort- 

Pitt.  &)  VV.  Ry.  vs.  Perkins,  12  C.  D.  gage   given   by    railway   where    rail- 

676-    22    0    C.   C.   031;    alTirnied  49  way  seiws   land.      Hatry   vs.    Ry.,   1 

0     R     326  <^'-  !>•  238;    1   O.  C.  (".  420. 

Procee'^dings  under  this  section   is  Wliere  owner  dies  right  descenda 

not  to  recover  the  value  of  tlie  land.  to    him.      Lawrence    vs.    O  Hara,   60 

0.    S.    667. 


§  1740    APPKOPEIATION  BY  PRIVATE  COKPOKATION      1514 

§  6448  of  the  Revised  Statutes.  Said  description,  etc.,  to  be  furnished  with- 
in ten  days.  If  not  so  furnished,  the  undersigned  will  make  application  to 
restrain  said  corporation  from  the  use  of  land  as  provided  in  §  6448  of  the 
Revised  Statutes. 

§  1740.     Essentials  of  petition. 

The  petition  ought  to  set  forth  the  facts  required  by  the  stat- 
ute/^°  and  ought  to  contain  the  following  matters: 

First,  that  the  person  bringing  the  action  is  the  owner  of  the 
land  appropriated.^®^ 

Second,  it  should  contain  a  description  of  the  property  in  the 
same  manner  as  if  the  corporation  was  seeking  to  condemn. 

Third,  it  must  allege  that  the  corporation  has  taken  posses- 
sion of  and  is  occupying  or  using  said  land. 

Fourth,  the  same  has  not  been  appropriated  or  paid  for  by 
said  corporation. 

Fifth,  that  it  is  not  held  under  any  agreement  in  writing 
with  the  owner.^*^^ 

Sixth,  tliat  a  written  notice  was  served  on  the  defendant, 
notifying  it  to  proceed  under  the  statute  to  appropriate  said 
lands. 

Seventh,  that  more  than  ten  days  have  elapsed  since  the  ser- 
vice of  said  notice,  and  that  said  corporation  has  failed  to  pro- 
ceed. 

Eighth,  that  said  corporation  has  no  right,  legal  or  equitable, 
to  said  lands."^ 

Ninth,  that  said  corporation  is  authorized  to  make  appropria- 
tion of  private  property. 

Tenth,  that  the  property  appropriated  is  used  for  a  public 
purpose. 

Eleventh,  petition  should  be  verified."* 

§  1741.     Form  of  petition. 
{Title.) 

Plaintiff  says  that  he  is  the  owner  of  the  following  described  real  estate 
(here  describe  as  contained  in  description  furnished  by  the  corporation). 

160  See  previous  section,   §  1686.  i63 /n  re  George,  5  C.  C.  207;  3  C. 

161  Railroad  vs.  O'Hara,  48  O.  S.       D.  104. 

355.  164  See  §  1751. 

162  Railroad  vs.  Perkins,  22  C.  C. 
636. 


1515  PETITION  §  1742 

That  said  defendant  has  taken  possession  of  and  is  occupying  and  using 
said  land  above  described.  That  the  same  has  not  been  appropriated  or 
paid  for  by  said  corporation,  nor  is  the  same  held  by  any  agreement  in 
writing   with   plaintilf. 

Plaintiff  further  says  that  on  the day  of ,  he  caused 

a  written  notice  to  be  served  on  defendant,  notifying  it  to  proceed  under 
the  statute,  to  appropriate  said  land  as  required  by  law.  A  copy  of  said 
notice,  showing  the  manrter  of  service,  is  hereto  attached,  and  made  part 
hereof;  that  more  than  ten  days  have  elapsed  since  the  service  of  said  notice 
and  said  defendant  has  failed  to  proceed,  as  required  thereby. 

(If  the  defendant  refuses  to  give  a  description  of  the  land,  the  plaintiff 
might  state  such  fact  and  that  ten  days  have  elapsed  since  such  demand 
was  made,  and  might  also  state  the  fact,  that  plaintiff  had  the  same  sur- 
veyed as  provided  by  law.  A  better  way,  however,  where  the  defendant 
refused  to  give,  such  description  is  to  have  tlie  defendant  enjoined  from  using 
said  land.)  ics 

Plaintiff  further  says  that  said  corporation  has  no  right,  legal  or 
equitable,  to  said  land  and  that  said  corporation  is  authorized  to  make 
appropriation  for  private  property,  and  that  said  property  is  appropriated 
by  said  corporation  for  a  public  purpose. 

Wherefore  plaintiff  prays  that  such  proceedings  may  be  taken,  as  author- 
ized by  law,  to  appropriate  said  land  to  the  use  of  said  corporation  and 
compensate  the   plaintiff  therefor   as  provided   by   law. 

(If  the  corporation  has  refused  to  give  a  description  of  the  land  the 
following    should    be    followed.) 

And  that  said  corporation  may  be  by  order  of  Court,  restrained  from  the 
use  or  occupation  of  said  land  until  plaintiff's  demand  for  a  description 
thereof  be  complied  with. 

(Petition  should  also  be  verified.) 

§  1742.  Summons  in  such  case.  "A  summons  shall  issue  and 
be  served  upon  the  corporation,  and  thereafter  the  proceedings 
in  such  court  be  conducted  to  final  judgment  as  provided  in 
this  chapter.     [R.  S.  §6449.]i«« 

§  1742a.  Judgment  and  execution.  "If  the  corporation 
fails  to  pay  the  judgment  and  costs  awarded  against  it  in  the 
proceeding,  they  may  be  collected  by  execution  as  in  other  cases. 
This  section  and  the  next  preceding  section  shall  not  impair  or 
lessen  the  right  the  owner  or  o\^^lers  or  the  trustees  or  school 
officers  may  have  to  proceed  against  the  corporation  as  in  other 
cases  of  the  unlawful  entry  upon  lands."     [R.  S.  §  6449.]  ^<"'* 

§  1743.     Procedure,  etc. 

The  above  section  specifically  provides  that  procedure  shall 
be  the  same  as  where  the  corporation  is  plaintiff  and  seeks  to 
appropriate  the  property.     A  question  lins  Ix-cn  mode,  wlietlier 

18')  §§  11084-5    G.    C.  Judgment  is   a  lien.     Stewart  vs. 

186  §  1108G  G.  C.  Ry-,  53  0.  S.  172. 

ICC*  §  n087   G.   C. 


§  1744    APPROPRIATION  BY  PRIVATE  CORPORATION      1516 

npou  the  preliminary  bearing,  the  Court  must  find,  before  a 
jury  can  be  empanelled,  upon  all  the  questions  set  forth  in  the 
petition.  The  Supreme  Court,  however,  has  decided  that  only 
the  same  preliminary  questions  need  be  passed  on  as  is  required 
where  the  corporation  brings  the  suit.  "  The  other  issues  set 
forth  are  triable  by  jury.^^^  If  no  demand  be  made  for  a  jury, 
the  Court  might  hear  all  tlie  questions.^®^ 

§  1744.  When  corporation  may  be  enjoined  from  occupying 
the  land.  "If  execution  issued  as  provided  in  the  next  pre- 
ceding section  be  returned  unsatisfied,  in  whole  or  part,  with 
the  indorsement  that  no  goods,  chattels,  lands  or  tenements,  can 
be  found  whereon  to  levy,  or  if  the  judgment  remains  unsatisfied 
for  more  than  sixty  days  from  its  rendition,  the  court,  by  injunc- 
tion, may  restrain  the  corporation  from  using  or  occupying  the 
lands  until  the  judgment  and  costs  are  paid."     [R.  S.  §  6450.]  ^^ 

§  1745.     Motion  for  injunction,  etc. 

If  an  execution'  is  issued  and  no  goods  can  be  found  upon 
which  to  levy,  or  if  the  judgment  remains  unsatisfied  for  more 
than  sixty  days,  the  Court  may  by  injunction  restrain  the  cor- 
poration from  using  the  property.  Whenever  a  person  brings 
himself  within  the  protection  of  the  statute,  he  is  entitled  to  an 
injunction.^^°  The  following  may  be  used  as  a  form  of  motion 
under  the  preceding  section : 

(Title.) 

Now  comes  the  plaintifT  and  moves  the  Court  for  an  injunction,  restrain- 
ing -the  defendant  from  occupying  the  lands  appropriated  in  this  case  for 
the  following  reasons:  (Here  state  either  that  an  execution  has  been 
issued  and  returned  unsatisfied  and  indorsed,  "  No  goods  or  chattels, 
lands  or  tenements  can  be  found  whereon  to  levy,  or  more  than  sixty  days 
have  elapsed  since  the  judgment  was  rendered  herein,  and  no  part  thereof 
has  been  paid.) 

The  following  may  be  used  as  an  entrj  granting  the  same : 

( Title. ) 
On  motion  of  the  plaintiff,  and  it  appearing  that   (here  state  the  facts 

167  Kramer  vs.  Ey.  Co.,  53  O.  S.  "Ry.  vs.  Perkins,  22  C.  C.  630;  49 
436.  O.  S.  326. 

168  Railroad  Co.  vs.  O'Harra,  48  0.  les  §  11088  G.  C. 

S.  343.  The    court    may    enjoin    although 

The  value  of  the  land  is  to  be  de-  proceedings     in     error     have     been 

termined   at   the   time   the    proceed-  commenced,     hi  re  George,  5  C.  C. 

ings    are    brought,    notwithstanding  207;   3  C.  D.  104. 

the  fact  that  the  railroad  has  been  I'O  Varwig  vs.  Railroad  Co.,  54  O. 
a  trespasser   for    fifteen  years,   etc. 


1517  TENDER  §  1746 

relied  upon  as  stated  in  the  motion)  ;  it  is  ordered  that  the  defendant  be, 
and  it  is  hereby  restrained  from  using  or  occupying  the  land  appropriated 
in  this  proceeding  for  any  purpose,  or  in  any  manner  until  the  judgment 
and   costs  herein,   amounting  to dollars,   be   fully   paid.i^i 

§  1746.     Tender  made  by  corporation. 

If  at  the  time  the  corporation  files  its  petition  it  makes  a 
tender  of  a  certain  amount,  and  no  more  is  recovered,  then  the 
Court  may  apportion  the  costs,  as  provided  in  the  following 
section : 

"A  corporation,  by  its  proper  officer,  agent,  or  attorney,  at 
the  time  of  filing  the  petition  with  the  probate  judge,  may 
deposit  with  him  such  sura  of  money,  for  each  separate  parcel 
of  property  as  it  deems  a  just  compensation  for  the  property, 
rights,  and  interests  described  in  the  petition,  and  sought  to  be 
appropriated.  If  the  final  verdict  of  the  jury  as  to  any  parcel 
of  property  does  not  exceed  the  amount  so  deposited,  and  the 
owner  has  refused,  after  notice  of  such  deposit,  to  accept  it,  the 
whole  costs  of  the  proceeding  as  to  such  parcel  shall  be  eciually 
di\aded  between  the  corporation  and  the  owner  or  o^^•ners  of  the 
property.  Wh^n  the  final  verdict  as  to  any  parcel  or  parcels 
exceeds,  and  as  to  other  parcel  or  parcels  does  not  exceed,  the 
amount  deposited,  the  probate  judge  shall  apportion  the  costs  in 
such  manner  as  he  deems  just."     [R.  S.  §  6452.]  ''- 

S.  455;  Toledo  Bending  Co.  vs.  Rail-  null  and  void.   In  re  George,  5  C.  C. 

way  Co.,  2  N.  P.  317;   3  Dec.  430;  219;   3  C.  D.  104. 

Root  vs.  Railroad  Co.,  7  N.  P.  337;  ^'-  §  HOOO  G.  C. 

5  Dec    315.  §  ^^^^^   ^-   ^-   ^'^^^^^^  entirely   to 

iTiA   copy   of   this   journal   entry  the    fees    of    witnesses,    officers    and 

should  be  served  by  a  corporation  in  probate  judge  and   the   same   is  not 

the    same   manner    as    a    summons.  herein   inserted. 

The  fact  that  the  case  is  taken  up  See   Hill    v.    Durr.    -17    I'.uH.    440, 

on  error  would  probably  not  prevent  where  it  is  held  that  the  jury  fee  is 

the  granting  of  an  injunction.  not  taxable  against  the  corporation 

The  same  rule  being  applied  as  in  but  is  paid  by  the  county  like  other 

a  proceeding  brought  by  a  corpora-  cases.    This  seems  not  to  be  the  law. 

tion    to    appropriate    the    property,  See  Cin.,  M.  &  L.  Traction  Co    vs. 

therefore   the   filing   of   a  bond   for  Felix,  5  C.  C.   (N.P.)  270.  25  O.  C.  C. 

proceedings  in  error  would  be  no  de-  304 ;   Detroit  Southern  Ry.  vs.  Law- 

fense  against  the  injunction.  rence  Co.,  71   0.  S.  454;   Hc^«brook 

A  writ  of  injunction  issued  before  vs.  Traction  Co.,  5  C.  C.   (N.S.)  209, 

sixty    days    had    expired    would    be  27  0.  C.  C.  42. 


§  1747  APPROPRIATION    B\    PRIVATE    CORPORATION  1518 

§  1747.     School  lands,  how  appropriated.    ' '  When  a  railroad 

company,  incorporated  in  this  state,  has  located  its  railroad 
through  a  part  of  reserved  section  twenty-nine  or  sixteen,  or 
through  a  part  of  sections  granted  by  congress  instead  of  section 
sixteen  for  school  purposes,  and  such  lands  remain  unsold,  or 
through  a  town  lot  or  parcels  of  ground  used  for  or  devoted  to 
school  purposes,  it  may  appropriate  so  much  of  such  land  or 
lots  as  is  necessary  for  its  purposes.  Service  of  the  summons 
made  on  such  trustees  or  school  officers,  as  have  possession  or 
control  of  the  lands,  shall  have  the  same  force  and  effect  as 
sendee  in  other  cases  on  owners  of  land  sought  to  be  appro- 
priated. The  money  arising  from  such  appropriation  must  be 
disposed  of  by  such  trustees  or  school  officers  in  accordance  with 
law."     [R.  S.  §  6439.]  ^" 

173  §11067  G.  C.  bank   of   canal.      State   vs.    Ry.,    37 

Board    of    Public    Works    cannot      0.  S.  171. 
grant  right  to  lay  track  along  berme 


1519 


CONDEMNATION    BY    MUNICIPAL    CORPORATION  §  1748 


CHAPTER  XCV. 

CONDEMNATION  BY  MUNICIPAL  CORPORATION. 


§  1748    Introductory.  §  1767a 

§  1740     When  action  can  be  brought. 

§  1750    Application  to  Court,  etc.  §  17G7b 

§  1751     Essentials   of   application. 

§  1752     Form   of   petition   or   appli-      §  1768 
cation.  §  1770 

§  1753     Filing     of     application     or      §  1771 
petition. 

§  1754     Service  of  notice  to  owners       §  1772 
of    property,   etc. 

§  1755     Notice,   etc.  §  1773 

§  1756    When  to  be  heard. 

§  1757     Jurisdictional  questions,  pre-      §  1773a 
liminary   hearing. 

§  1758     Court  to  fix  time  for  assess-      §  1774 
ment   of   compensation  by 
jury.  §  1775 

§  1759     Entry    finding    on    prelimi- 
nary questions  and  order-       §  1776 
ing  jury. 

§  1760    How   jurors   drawn   in   Pro- 
bate  Court.  §  1777 

§  1761     Empaneling  jury,  etc. 

§  1762    View    of    premises    may   be      §  1778 
required. 

§  1763     How  jury  to  return  assess-       §  1779 
ment.     Open  and  close   of 
case,  etc. 

§  1763a  Guardian  md  litem.  §  1780 

§  1763b  Deposit   of   money. 

§  1763c  How   assessment   signed.  §  1781 

§  1763d  When  appropriation  includes 

part  of  building.  §  1782 

§  1764     Trial,   etc. 

§  1765     Verdict  in  -whole  or  in  part. 

§  1766     Form  and  return  of  verdict.      §  1783 

§  1767     Orders    as    to    payment    or 
deposit   of   assessment. 


Effect  of  payment  or  de- 
posit. 

Re-appropriation  to  perfect 
title. 

Distribution   of   funds. 

Costs,  how    paid. 

No  delay  from  doubt  of 
ownersliip. 

Interested  parties  may  give 
bond,   etc. 

Review  of  proceedings  by 
motion. 

Appeal  to  court  of  Common 
Pleas. 

Motion  and  proceedings  on 
new    trial. 

Entry  confirming  verdict, 
etc. 

Proceedings  in  error.  How 
execution  of  order  sus- 
pended. 

Appeal  to  Court  of  Common 
Pleas. 

Notice  of  intention  to  ap- 
peal. 

Appeal  by  guardian,  execu- 
tor, etc.,  and  married 
woman. 

Probate  Court  shall  furnish 
transcript. 

Original  papers  may  be 
used. 

Corporation  not  to  appeal; 
or  prosecute  error  except 
on   leave. 

EITcct  of  failure  to  pay  for 
or  take  possession  of  land 
within  six  months. 


§  1748.    Introductory. 

The  Legislature  has  provided,  by  diilerent  sections  of  the 
General  Code  for  the  condemnation  of  property  by  munic- 
ipal corporations  than  is  provided  for  private  corporations. 
The  rca.son  for  tliese  different  provisions  is  not  very  apparent. 
Especially  is  this  ti-uc  in  that  part  of  the  proceedings  which 
occurs  after  the  empanelling  of  a  jury.  There  is  certainly  no 
reason  why  the  Probate  Court  should  have  exclusive  original 


§     1749  APPROPRIATION    BY    MUNICIPAL    CORPORATION  1520 

jurisdiction  where  the  action  is  brought  by  a  private  corpora- 
tion, and  but  concurrent  jurisdiction  when  brought  by  a  mu- 
nicipal corporation,  and  why  a  municipal  corporation  should 
have  the  right  to  appeal  and  a  private  corporation  should  not. 
The  main  issues  to  be  tried  and  the  constitutional  provisions  re- 
lating thereto  are  the  same  in  both  instances,  although  the  pro- 
cedure is  somewhat  different.^ 

§  1749.     When  action  can  be  brought. 

The  action  can  only  be  brought  by  a  mmiicipal  corporation 
when  authorized  so  to  do  by  the  Legislature,  and  in  this  respect, 
like  in  appropriation  by  private  corporations,  the  law  must  be 
strictly  complied  with.  The  first  three  sections  of  the  new 
municipal  code  provide  when  and  how  the  corporation  must 
proceed  before  its  petition  can  be  filed  in  Court.  These  sec- 
tions are  as  follows : 

Special  powers.  ' '  Municipal  corporations  shall  have  special 
power  to  appropriate,  enter  upon  and  hold  real  estate  within 
their  corporate  limits.  Such  power  shall  be  exercised  for  the 
purposes,  and  in  the  manner  provided  in  this  chapter. 

"1.  For  opening,  widening,  straightening,  changing  the  grade 
of,  and  extending  streets,  and  all  other  public  places,  and  for 
this  purpose  the  corporation  may  appropriate  the  right  of  way 
across  railway  tracks  and  lands  held  by  railway  companies, 
where  such  appropriation  mil  not  unnecessarily  interfere  ^rith 
the  reasonable  use  of  the  property  so  crossed  by  such  improve- 
ment, and  for  obtaining  material  for  the  improvement  of  streets 
and  other  public  places; 

* '  2.  For  parks,  park  entrances,  boulevards,  market  places,  and 
children 's  playgrounds ; 

^'3.  For  public  halls  and  offices,  and  for  all  buildings  and 
stnictures  required  for  the  use  of  any  department; 

"4.  For  prisons,  workhouses,  houses  of  refuge  and  correction, 
and  farm  schools ; 

1  See  §  1664,  Constitutional  provi-  projiriate    land    of    a    railroad    for 

sions.  street   purposes.     Railway  vs.   Alo- 

§1665,  Who  may  exercise  power.  rose,  13  Dec.  411;  affirmed,  25  O.  C. 

§  1672,  Benefits.  C.   739 ;    Cleveland  Terminal  &  Ry. 

§  1673,  Evidence.  Co.  vs.  City  of  Akron,  6  X.  P.  (N.S.) 

§  1674   et  seq.,   Condemnation  by  81,  18  Low.  Div.  231;  74  0.  S.  457; 

private  corporations.  affirming,   without   report,    1    C.    C. 

See  §§  1675,  1811.  (KS.)   174;  4  C.  C.  (N.S.)  632;  16 

A  municipal  corporation  may  ap-  Cir.  D.  525. 


1521  FOR   WHAT   MAY  §  1749 

"5.  For  hospitals,  pesthouses,  reformatories,  crematories  and 
cemeteries ; 

"6.  For  levees,  wharves  and  landings; 

\7o'  S°^  bridges,  aqueducts,  viaducts  and  approaches  thereto; 
8.  t  or  libraries,  university  sites  and  grounds  therefor ; 

''9.  For  constructing,  opening,  excavating,  improving  or  ex- 
tending any  canal,  or  water  course,  located  in  whole  or  in  part 
withm  the  limits  of  the  corporation  or  adjacent  and  contiguous 
thereto,  and  which  is  not  owned  in  whole  or  in  part  by  the 
state,  or  by  a  company  or  individual  authorized  by  law  to  make 
such  improvements; 

''10.  For  sewers,  drains,  ditches,  public  urinals,  bath-houses, 
water-closets  and  sewage  and  garbage  disposal  plants  and  farms ; 

"11.  For  natural  and  artificial  gas,  electric  lighting,  heat- 
ing and  power  plants,  and  for  supplying  the  product  thereof ; 

* '  12.  For  establishing  esplanades,  boulevards,  park  ways,  park 
grounds,  and  public  reservations  in,  around  and  leading  to 
public  buildings,  and  for  the  purpose  of  reselling  such  land  with 
reservations  in  the  deeds  of  such  resale  as  to  the  future  use  of 
such  lands,  so  as  to  protect  public  buildings  and  their  environs, 
and  to  preserve  the  view,  appearance,  light,  air  and  usefulness 
of  public  grounds  occupied  by  public  buildings  and  esplanades 
and  parkways  leading  thereto  ;- 

"13.  For  providing  for  a  supply  of  water  for  itself  and  its 
inhabitants  by  the  construction  of  wells,  pumps,  cisterns,  aque- 
ducts, water  pipes,  dams,  reservoirs,  reservoir  sites  and  water 
works,  and  for  the  protection  thereof;  and  to  provide  for  a 
supply  of  water  for  itself  and  its  inhabitants,  any  municipal 
corporation  may  appropriate  property  within  or  without  the 
limits  of  the  corporation ;  and  for  this  purpose  any  such  munici- 
pal corporation  may  appropriate  in  the  manner  provided  in 
this  chapter,  any  property  or  right  or  interest  therein,  thereto- 
fore acquired  by  any  private  corporation  for  any  purpose  by 
appropriation  proceedings  or  otlierwise.  Either  party  to  such 
appropriation  proceedings  .shall  have  the  same  right  to  a  change 
of  venue  as  is  now  given  by  law  in  the  trial  of  civil  actions ; 

"14.  For  the  construction  or  operation  of  street,  interurban, 
suburban  or  other  railways  or  terminals  and  the  necessary  tracks, 
way  stations,  depots,  terminals,  workshops,  conduits,  elevated 
structures,  subways,  tunnels,  offices,  side-tracks,  turnouts,  ma- 
chine shops,  bridges  and  other  appurtenances  for  the  trans- 
portation of  persons,  packages,  express  matter,  freiglit  and  other 
matter,  in,  from,  into  or  through  the  municipal  corporation ; 
and  for  such  purpose  or  purposes  any  municipal  corporation 
may  appropriate  any  property  within  or  without  its  corporate 
limits;  any  municipal  corporation  may  appropriate  any  property 

2  §  10,  §  3677  G.  C. 


§  1749  APPROPRIATION   BY    MUNICIPAL   CORPORATION  1522 

or  rjght  or  interest  therein  theretofore  acquired  by  any  private 
or  public  utility  corporation  for  any  purpose  by  appropriate 
proceedings,  as  well  as  the  right  to  cross  on,  over  or  under  any 
street,  avenue,  alley,  way  or  public  place  or  part  thereof  of  any 
other  municipality,  township  or  country  [county]."  [103  v. 
496.] 

May  appropriate  outside  of  corporate  limits.    Cemetery,  etc. 

In  the  appropriation  of  property  for  any  of  the  purposes  named 
in  the  preceeding  section,  the  corporation  may,  wdien  reason- 
ably necessary,  acquire  property  outside  the  limits  of  the  cor- 
poration. No  land  shall  be  purchased  for  public  cemeteries 
within  two  hundred  j^ards  of  a  dwelling  house  without  the  con- 
sent, in  writing,  of  the  owner  of  the  tract  of  land  on  which  such 
dwelling  house  is  situated.  But  any  municipal  corporation 
shall  have  the  right  to  appropriate  land  for  the  establishment 
of  a  cemetery  or  the  enlargement  of  any  existing  cemetery, 
within  two  hundred  j^ards  of  any  dwelling  house,  when  such 
consent  in  writing  can  not  be  obtained,  by  making  the  owner 
of  such  dwelling  house  a  party  to  all  proceedings  and  actions 
for  such  appropriation ;  such  appropriation  shall  be  made  in  all 
respects  according  to  the  provisions  of  the  chapter,  and  the 
amount  of  damages  to  which  such  owner  will  be  entitled  by 
reason  of  locating  said  cemetery  within  two  hundred  j^ards  of 
such  dwelling  shall  be  determined  by  such  appropriation  pro- 
ceedings. In  such  appropriation  proceedings  the  damage  to 
the  remainder  of  the  land  of  such  owner  shall  be  determined 
and  included  in  the  amount  of  damages,  provided  how^ever,  that 
for  the  purpose  of  making  a  necessary  enlargement  of  an  ex- 
isting cemetery,  any  municipal  corporation  which  shall  own, 
or  shall  acquire  by  purchase,  any  lands  suitable  for  such  en- 
largement, may  devote  and  use  the  same  for  cemetery  purposes 
as  such  enlargement  of  such  existing  cemetery,  if  the  said  land 
shall  be  distant  from  any  dwelling  house  not  less  than  one 
hundred  feet  or  the  width  of  an  existing  street  or  alley  inter- 
vening. The  addition  of  any  land  across  a  street  or  public  road, 
as  now  located  or  which  shall  be  hereafter  established,  shall 
not  be  considered  an  enlargement  of  an  existing  cemetery  un- 
der the  provisions  of  this  section.     [103  v.  550.]^ 

Resolution  declaring  intention  to  appropriate.  ""WTien  it  is 
deemed  necessary  to  appropriate  property,  council  shall  pass  a 
resolution,   declaring  such  intent,   defining  the  purpose  of  the 

3  §  11,  §  3678  G.  C.  7  0.  C.  C.  298;  affirmed,  5Q  O.  S. 

These  sections  are  the  sole  provi-  726. 

sions   for   appropriation   of   private  Includes   all    incidental   purposes, 

property  by  municipal  corporations.  Want  vs.  Bridge,  6  O.  S.  15. 

Pitts.,  C.,  C.  &  St.  L.  B.J.  vs.  Green-  As  to  cemeteries,  see  ]\Ioslock  vs. 

ville,  69  0.  'S.  492.  Hostman,  12  C.  D.  778;   10  0.  C.  C. 

]\Iust  be  strictly  construed.     T.  &  509:   Cleveland  vs.  Poynter,  6  N.  P.  • 

O.  Cen.  Ey.  vs.  Fostoria,  4  C.  D.  602;  (X.S.)    129:   IS  Dec.  815;  Mansfield 

vs.  Ballest,  65  O.  S.  460. 


1523  ESSENTIALS  OP  APPLICATION  §1749 

appropriation,  setting  forth  a  pertinent  description  of  the  land, 
and  the  estate  or  interest  therein  desired  to  be  appropriated. 
For  water  works  purposes  and  for  the  purpose  cf  creating 
reservoirs  to  provide  for  a  suppiy  of  water,  the  council  may- 
appropriate  such  property  as  it  may  determine  to  be  necessary." 
[99  V.  208,  §12.]* 

Proceedings  on  passage  of  resolution.  "Immediately  upon 
the  passage  of  such  resolution,  declaring  such  intent,  for  which 
but  one  reading  shall  be  necessary,  the  mayor  shall  cause  written 
notice  thereof  to  be  given  to  the  owner,  person  in  possession 
thereof,  or  having  an  interest  of  record  in,  every  piece  of  property 
sought  to  be  appropriated,  or  to  his  authorized  agent,  and  such 
notice  shall  be  served  by  a  person  designated  for  the  purpose, 
and  return  made  in  the  manner  provided  by  law  for  the  service 
and  return  of  summons  in  civil  actions.  If  such  owner,  person, 
or  his  agent  can  not  be  found,  notice  shall  be  given  by  publica- 
tion once  a  week  for  three  consecutive  weeks  in  a  newspaper  of 
general  circulation  in  the  corporation,  and  council  may  there- 
upon pass  an  ordinance  by  the  votes  of  two-thirds  of  all  members 
elected  thereto,  directing  such  appropriation  to  proceed."  [99  v. 
208,  §12.]* 

The  council  of  such  municipality  has  not  power,  by  an  ordi- 
nance passed  while  the  condemnation  suit  is  being  tried,  to 
change  the  terms  of  its  resolution  and  of  its  application  so  as 
to  ask  to  appropriate  more  or  less  than  is  therein  demanded.** 

4  §  12,  §  3679  G.  C.  §§  1807-1809  G.  C,  Benevolent  in- 

*  §  SG80  G.  C.  stitutions. 

The  municipal  corporation  previ-  §  2446  G.  C.,  County  commission- 

ous  to  the  filing  of  its  application  «rs. 

in    the    court    must    have    strictly  §§3441,   3455     G.     C,     Townsliii) 

followed   the   above   provisions.     In  trustees. 

§  3679   G.   C.   above,   it   is   provided  See     §§  1680,    1683,    1665,     1666, 

that   notice   shall    be   given   to   the  1668. 

owners  of  the  property  sought  to  be  4*  Grant  vs.  Hyde  Park,  47  Bull. 

appropriated.     By  §2235  it  is  pro-  831;  Joyce  vs.  Barron,  48  Bull.  114. 

vided  that  owners  must  file  a  claim  Whether  there  must  be  a  certifi- 

in    writing    with    the    clerk    of    the  cate  of  the  clerk  of  the  nuinic'ipal 

corporation  setting  forth  tlic  amount  corporation  filed  showing  tliat  there 

of  damages  claimed  and  the  courts  are  unappropriated  fujids,  etc.,  is  a 

have  held  that  if  the  owner  fails  so  question  upon  which  the  courts  arc 

to  do,  he  waives  his  right.     By.  Co.  not  in  accord. 

vs.  Defiance,  52  0.  S.  262.  Tlie  matter  has  never,  in  written 

Another  matter  that  is  to  be  ob-  opinion,    been    decided    by    the    Su- 

served   is,  that  the  ordinance  must  preme   Court,  and   tlio  last   Circuit 

pass  the  council  bv  a  two-thirds  vote  Court  decision    is  t'.iat  such  certifi- 

of  all  the  members   elected   thereto  cate  must  be  filed  or  the  proceedings 

not  merely  two-thirds  of  the  votes  will   be   enjoined.     Hurst  vs.   Bello 

of  those  present.  Valley,  30  0.  C.  C.  563. 

See    §  1651—2   B.    S.,   Boards   of 
education  (§7624  G.  C). 


§  1750  APPROPRIATION    BY    MUNICIPAL    CORPORATION  1524 

§  1750.  Application  to  Court,  etc.  ' '  Upon  the  passage  of 
such  ordinance,  the  solicitor  shall  make  application  to  the  court 
of  common  pleas  or  to  a  judge  in  vacation,  to  the  probate  court. 
or  to  the  insolvency  court,  in  the  county  in  which  the  land 
sought  to  be  taken  is  located,  which  application  shall  describe  as 
correctly  as  possible  the  land  to  be  appropriated,  the  interest  or 
estate  therein  to  be  taken,  the  object  proposed,  and  the  name  of 
the  owner  of  each  lot  or  parcel  thereof."     [98  v.  164,  §  13.]^ 

§  1751.    Essentials  of  application. 

Whenever,  as  provided  for  in  the  previous  section,  the  mu- 
nicipal corporation  has  in  a  proper  manner  passed  a  resolution 
to  appropriate  the  property,  then  an  application  can  be  filed 
in  the  court  for  that  purpose.  For  all  general  purposes  this 
application  might  as  well  be  called  a  petition,  the  proceedings, 
however,  being  a  special  proceeding  and  not  a  civil  action. 
The  first  essential,  or  allegation,  of  the  application  should  be 
that  the  plaintiff  is  a  corporation  duly  organized  under  the  laws 
of  Ohio;  second,  that  by  the  laws  of  Ohio  it  has  power  to  ap- 
propriate property  for  the  purpose  alleged  in  the  petition; 
third,  that  an  ordinance  has  been  passed  by  the  council,  etc.,  in 
the  manner  provided  by  law,  to  appropriate  the  premises  in  the 
petition  described;  fourth,  an  accurate  description  of  the  prop- 
erty; fifth,  the  purpose  for  which  the  property  sought  to  be 
appropriated  is  to  be  used ;  sixth,  the  name  of  the  owner  of  each 
lot  or  parcel  of  property  to  be  taken ;  and  while  the  law  does 
not  so  state,  it  ought  to  be  verified  as  pleadings  usually  are.'' 

However,  the  case  of  Pansing  vs.  thereafter  that  court  has  exclusive 

Miamisburg  (mills),  31  0.  C.  C.  130,  original  jurisdiction  to  determine  all 

which  was  decided  the  same  year  as  questions    in    the    case.      Cleveland 

the  above  and  was  affirmed  by  the  Terminal   &   Ey.   Co.  vs.  Akron,   25 

Supreme  Court  without  opinion,  79  0.  C.  C.  789;  affirmed,  74  O.  S.  457; 

O.  S.  430,  holds  that  the  certificate  6  N.  P.  (X.S.)  81;  18  Low.  D.  231; 

can  not  be   required  in  advance  of  74    0.    S.    457;    affirming,    without 

any   knowledge   of   the   cost   of   the  report,  1  C.  C.   (X.S.)    174;  4  C.  C. 

property   and   that   proceedings   are  (N.S.)   632;  16  Cir.  D.  525. 

not  invalid  if  such  certificate  is  not  See  Coppock,  Municipal  Code,  322. 

on  file  at  the  time  the  appropriation  There   is   no  provision   for   filing 

proceedings  are  heard.  answer   but   the   court   can    permit 

5  §  13,  §  3681  G.  C.       ,  same.     Cin.,  P.  &  V.  Ry.  vs.  Hyde 

The  above  section  is  very  much  Park,  6  Dec.  327;  4  N.  P.  296. 

similar  to  former  §  2236  R.  S.,  ex-  A  copy  of  the  ordinance  should 

cept  that  it  gives  jurisdiction  to  the  be   attached   to  the   petition   as   an 

insolvency  court.  exhibit. 

Where  the  action  has   once  been  6  See  §§  1686,  1740.    As  who  should 

commenced    in    the    probate    court,  be  made  parties  defendant,  see  §  1687. 


1525  FORM  OF  PETITION  OR  APPLICATION  §  1752 

§  1752.     Form  of  petition  or  application. 

Court   of County,   Ohio. 


Application    to    Assess 
Compensation. 


Tlie  City    (or  Village)    of 

,    Plaintiff. 

vs. 

(Insert  as  defendants  the  names 
of  all  persons  owning,  or  claim- 
ing any  interest  in  the  property 
appropriated),   defendant. 

PlaintiflF   represents   that   it   is    (village,   or   city   of   the 

grade  of  the class)  organized  under  the  laws  of  Ohio,  and  that 

by  virtue  of  the  laws  of  Ohio  it  is  authorized  to  appropriate  property  for 
the  purpose  of  (here  insert  for  what  purpose  property  is  to  be  appropriat- 
ed) and  that  the  council  of  said  city,  by  ordinance,  a  copy  of  which  is 
hereto  attached  and  marked  "exhibit  A,"  declared  its  intention  to  and  did 
appropriate    to    public    use    for    street    purposes    for    opening     (widening, 

straightening,   etc.,   as  the  case  may   be) street,   the   following 

^described  property,  to-wit: 

(Here  describe  as  accurately  as  possible  the  entire  piece  of  property  ap- 
propriated.) 

The  defendants  own,  or  claim  to  own,  or  have  some  interest  in  or  title 
to  said  property,  as  the  same  is  divided  into  lots  or  parcels  and  delineated 
on   the   plat  filed  herewith   and   made   part   hereof. 

The  description  of  said  several  lots  or  parcels,  and  the  names  of  the 
parties  who  own,  or  claim  to  own,  or  have  an  interest  in  the  same  are  as 
follows:  (Here  insert  separate  description  of  each  piece  of  land  taken,  as 
the  same  may  be  divided  by  ownership  or  occupancy.) 

Lot    No.     1.    (Accurate    description)     belonging    to or    in 

which owns  a  leasehold  estate  for  three  years  at  a  monthly 

rental  of  $50.00;   owns  a  life  estate  by  way  of  dower,  as  the 

widow   of ;    and owns   the  remainder   therein 

after  the  expiration  of  the  life  estate  of  the  said ;  and  in 

which claims  an  interest  by  way  of  mortgage  (or  any  other 

interest  that  may  exist). 

Lot  No.  2.  Etc.,  etc. 

Wherefore  plaintilT  asks  the  Court  to  cause  a  jury  to  be  impaneled  to 
make  inquiry  into  and  assess  the  compensation  to  be  paid  by  the  plaintiff 
for  the  property  appropriated  as  above  set  forth,  and  that  upon  the  pay- 
ment to  the  owners  or  deposit  of  the  amount  so  assessed,  as  the  Court 
shall  order,  possession  of  said  property  may  be  awarded  it  according  to  law. 

Solicitor  of  the  city   (or  village)   of 

County,  Ohio. 

(Add  verification.) 

The  City   (or  Village)  of  1 

i  PRECIPE. 

vs.  f 

• et  al.     J 

To  the  Clerk: 

Issue  notice  to  the  defendants  named  in  the  above  application,  that  the 

plaintiff  will  apply  to  the  Honorable ,  Judge  of  the 

Court    of county,    on    the day    of 

100..,   at o'clock... M.,   for  the   impanelling  of  a  jury  to 

make  inquiry  into  and  assess  the  compensation  to  be  paid  by  the  city  (or 
village)  of to  the  owners,  for  the  following  properly,  to-wit: 

(Insert  description  of  the  entire  piece  of  property  appropriated,  aa  first 
above  set  forth.) 

Solicitor  of  the  city    (or  village)   of 


§  1753  APPROPRIATION    BY    MUNICIPAL    CORPORATION  1526 

§  1753.    Filing  of  application  or  petition. 

The  procedure  intended  by  the  Legislature  in  the  acts  relat- 
ing to  the  appropriation  of  property  by  municipal  corporations 
is  not  very  clear,  but  it  seems  to  the  writer  that  the  better 
practice  to  be  followed  would  be  that,  when  the  petition  is 
properly  prepared,  it  be  filed  in  the  Probate  Court,  and  then 
that  notice  be  given  of  the  time  when  said  application  will  be 
for  hearing.  In  this  manner  the  application  would  be  on  file 
and  the  parties  could  inspect  the  same,  so  that  when  the  time 
came  to  determine  the  question  whether  a  jury  should  be  im- 
paneled or  not,  all  the  preliminary  questions  could  be  properly 
made,'^ 

The  practice  of  filing  a  precipe,  as  suggested  in  the  above 
form  ^  commends  itself,  and  therefore  when  a  petition  is  filed 
the  following  entry  might  be  appropriate: 


( Title. ) 

This  day  came  the  plaintiff  and  filed  its  application  or  petition  for  the 
appropriation  of  certain  property  therein  described,  naming  the  defendants 
as  persons  owning  or  having  an  interest  in  such  property  and  filed  therewith 
its  precipe  for  a  notice  for  A.  B.,  C.  D.  and  E.  F. 

Wherefore  it  is  ordered  that  a  notice  be  issued  directed  to  the  sheriff 

of county  to  notify  said  A.  B.,  C.  D.  and  E.  F.  that  on  the 

day    of ,    at o'clock.  .  .M.    an    order    will    be 

asked  to  empanel  a  jury  to  assess  the  compensation  to  be  paid  by  the  city 
of to  the  owner  for  the  property  in  said  petition  described. 

Said  notice  to  contain  an  accurate  description  of  the  entire  piece  of  prop- 
erty to  be  appropriated.  Said  notice  to  be  served  at  least  five  days  before 
the  time  of  said  hearing;  and  it  further  appearing  to  the  Court  that  G.  H., 
one  of  the  parties  defendant,  is  a  non-resident  of  the  State,  it  is  ordered 
that  notice  be  given  to  said  G.  H.  by  publication  as  authorized  by  law,  and 

that  said  application  be  set  for  hearing  on  the day  of , 

for  the  purpose  of  empanelling  a  jury.  (Notice  must  be  published  for 
three  weeks  next  preceding  the  time  of  application.) 

§  1754.  Service  of  notice  to  owners  of  property,  etc.  "No- 
tice of  the  time  and  place  of  such  application  shall  be  given  in 
the  ordinary  manner  of  serving  legal  process,  to  all  owners  or 
agents  of  owners  resident  of  the  state,  whose  place  of  residence 
is  kno-\M3,  and  to  all  others  by  publishing  the  substance  of  the 
application,  with  a  statement  of  the  time  and  place  at  which  it 
is  to  be  made,  once  a  Aveek  for  three  weeks  next  preceding  the 
time  of  the  application  in  some  newspaper  of  general  circulation 
in  the  county."     [96  v.  28  §  14.]'' 

7  For  a  landowner,  it  seems,  must  The  above  section  is  substituted 
take  notice  that  such  appropriation  for  former  §2237  R.  S.  and  is  almost 
will  take  place  from  the  time  that      identically  the  same. 

the    ordinance    passes    the    council.  §  3682  G.  C. 

Toledo   vs.   Bayer,    7   N.   P.   324;    5  i^  Courts    have    power    to    decide 

Dec.  87.  when    service    is    complete   and    the 

8  Taken  from  Coppock's  iNlunicipal  same  can  not  be  collaterally  at- 
Code,  323.  tacked.     Cin.,  S.  &  C.  Ry.  vs.  Belle 

9  §  14,    §  3682    G.    C.  Center,  48  0.  S.  273. 


1527  NOTICE — WHEN  TO  BE  HEARD  §  1755 

§  1755.     Notice,  etc. 

Every  person  to  be  in  any  way  affected  by  the  proceeding 
should  be  notified  in  the  manner  provided  by  law.  These 
notices  should  be  served  the  same  as  ordinary  summons." 

Where  an  owner  is  to  be  served  by  publication,  it  would  be 
well  to  make  an  affidavit  of  the  facts  which  would  permit  the 
service  in  that  manner."  It  should  be  observed  that  this 
notice,  whether  actual  or  constructive,  must  contain  the  sub- 
stance of  the  application,  with  a  statement  of  the  time  and 
place  at  which  it  is  to  be  made.  The  following  is  a  form  of 
notice  by  publication  which  can  be  adopted  for  actual  notice: 

NOTICE  BY  PUBLICATION.     LEGAL  NOTICE. 

A.  B.,  who  resides   in ,   county   of ,   Indiana, 

and  all  other  persons  interested  in  the  propertj^  hereafter  described,  are 
hereby  notified  that  an  application  in  waiting  substantially  as  herein  set 

forth  will  be  made  by  the  city    (or  village)   of to  the  Hon. 

,  judge  of  the  Probate  Court  of county,  Ohio, 

on  the day  of ,  190.  .,  at o'clock.  .  .M.  to  im- 
panel a  jury  to  assess  the  compensation  to  be  paid  by  said  city  (or  village) 
to  the  owners  of  the  following  described  real  estate.  (Describe  entire 
strip,  and  lots  into  which  it  is  divided,  giving  the  names  of  the  owners.) 
Said  property  having  been  condemned  and  appropriated  to  public  use  for 
the  purpose   (state  the  purpose  of  the  appropriation)   by  a  resolution   (or 

ordinance)   passed  by  the  coimcil  of  said  city   (or  village)   on  the day 

of ,  190.  .,  and  plaintiff  asks  that  upon  payment  into  Court 

or  to  the  proper  owners  the  defendants,  of  the  amount  of  compensation 
equal  to  the  sum  so  assessed  as  the  value  of  the  parcels  of  ground  described 
in  said  application,  the  appropriation  of  said  land  may  be  allowed  accord- 
ing to  law  and  that  the  Court  will  divide  the  sum  so  paid  or  order  its 
distribution  among  the  several  claimants  in  respect  to  their  interests  in 
the  property. 

Solicitor   for   said   city    (or   village.)  12 

§  1756.    When  to  be  heard. 

The  first  hearing  to  be  had  in  the  action  is  the  empanelling 
of  the  jury."  It  is  further  provided  that  if  at  the  time  of  the 
application  it  appear  that  any  of  the  owmers  of  the  property 
sought  to  bo  taJ^en  are  infants  or  insane,   and  they  have  no 

Where  defendant  dies  during  suit  '- W'liit.  Prob.  <'(uh\ 

it    is    to    be    continued    in    name    of  It   must  ho.  pulilislicd  mm',  a  week 

heirs.    Valley  Ry.  vs.  Bohni,  29  O.  S.  for   three  weeks   in  a   newspaper  of 

g33  general  circulation,  etc. 

10  See  §1091;   also  §839.  §1754. 

11  §  1693.  "  §  308.^  G.  C. 


§  1757  APPROPRIATION    BY   MUNICIPAL    CORPORATION  1528 

guardians,  a  guardian  ad  litem  skall  be  appointed  in  their  be- 
half/* Not  only  should  a  guardian  ad  litem  be  appointed,  if 
it  appear  at  the  time  of  the  application,  but  if  it  appear  at  any 
time,  such  appointment  should  be  made.  In  no  instance  can 
the  case  be  heard  until  five  days  have  elapsed  from  the  time 
that  notice  is  given  or  when  the  application  is  completed.  Some 
question  may  arise  here,  whether  a  case  can  be  heard  at  the 
time  publication  is  completed,  when  notice  is  given  in  that 
manner,  or  must  five  days  intervene  from  the  time  that  the  pub- 
lication is  completed.  It  seems  that  the  trial  could  be  had 
when  the  publication  is  completed  without  waiting  five  days.^' 
The  Court  would  have  power  to  make  a  continuance  from  time 
to  time  until  all  the  parties  have  been  properly  served. 

§  1757.     Jurisdictional  questions,  preliminary  hearing. 

The  statute  does  not  provide  in  so  many  words  that  certain 
jurisdictional  questions  must  be  determined  as  is  set  fortli 
where  an  appropriation  is  made  by  a  private  corporation.  That 
is,  the  legal  existence  of  the  corporation,  its  right  to  make  the 
appropriation,  and  its  inability  to  agree  with  the  owner,  and 
the  necessity  for  the  appropriation.  One  Court  has  held  that 
all  these  questions  are  left  with  the.  municipal  corporation,  and 
the  Court  has  no  power  over  theiru^^ 

In  another  case  it  was  held  that  at  least  three  jurisdictional 
facts  must  be  heard  and  determined.  First,  that  the  Council 
has  duly  passed  a  resolution;  second,  tliat  the  appropriation 
will  not  necessarily  interfere  with  the  reasonable  use  of  such 
right  of  way  (where  the  same  was  held  by  a  railroad  company), 
and  at  least  five  days'  notice  of  the  time  and  place  of  the  hear- 
ing of  the  application  has  been  duly  ser\'ed.^"     And  in  another 

1*  §  16    New    Code^    §  2243    former  It  seems  the  Probate  Ciourt  has  IjO 

R.  S.                                      '  jurisdiction  over  theni.     P.,  C.  &  C. 

15  See  §  15  Xew  Code,  §  1758.  &  St.  L.  vs.  Greenville,  69  0.  S.  487; 

§  845,  As  to  appointment  of  guard-  Railway    vs.    Youngstown,    5    C.    C. 

Ian  ad  litem.  (X.S.)   332;  '26  C.  C.  697. 

§  1694,    Condemnation   by    private  i7  T.   «&   0.   Cen.    Ry.   Co.  vs.   City 

corporations.  of  Fostoria,  7  C.  C.  293 ;  4  C.  D.  602. 

10  Toledo  vs.  Bayer,  7  N.  P.  324; 
5  Dec.  87. 


1529  ASSESSMENT  OF  COMPENSATION  BY  JURY  §  1758 

case  it  was  held  that  the  necessity  was  a  question  for  the  Pro- 
bate Court  to  determine/^ 

It  is  very  doubtful  whether  the  position  taken  in  the  case  of 
Toledo  vs.  Bayer/'-*  that  the  question  as  to  necessity,  and  a  right 
to  appropriate  and  the  existence  of  the  corporation,  are  abso- 
lutely left  in  the  discretion  of  the  corporation.  It  seems  that 
these  matters  are  jurisdictional,  and  while  it  may  not  be  re- 
quired that  the  court  actually  pass  upon  them  before  a  jury 
is  impaneled,  yet  they  are  questions  which  may  be  taken'  ad- 
vantage of  before  the  jury  is  impaneled,  and  in  order  to  pre- 
vent a  collateral  attack,  it  would  be  well  that  at  the  time  the 
jury  is  ordered  that  the  court  pass  upon  the  following  ques- 
tions: First,  that  the  plaintiff  is  a  corporation  organized  un- 
der the  laws  of  Ohio;  second,  that  it  has  a  right  to  appropriate 
the  property  in  the  petition  described ;  third;  that  it  has  in  the 
manner  provided  by  law,  appropriated  the  property,  and  that 
the  same  is  necessary  for  the  purpose  therein  described;  fourth, 
that  all  the  parties  having  an  interest  in  the  property  have  been 
properly  notified,  as  provided  by  law,  at  least  five  days  before 
the  time  of  hearing.-" 

The  question  of  what  is  to  be  appropriated  is  determined  by 
the  resolution  of  the  council  and  the  application  filed  in  court 
in  conformity  therewith.-*'*  The  Supreme  Court  has  settled  the 
question  that  the  only  preliminary  question  before  the  Probate 
Court  is  whether  the  five  days'  notice  has  been  given,  and  that 
if  the  proceedings  prior  are  illegal  the  complaining  party  must 
go  into  a  court  of  equity  and  have  the  proceedings  enjoined-"^ 

In  the  opinion  of  the  writer  here  is  a  good  opportunity  for 
legislation  that  will  permit  all  these  questions  to  be  raised  and 
heard  in  the  appropriation  proceedings. 

§  1758.  Court  to  fix  time  for  assessment  of  compensation 
by  jury.  "If  it  appears  that  su(-h  notice  has  been  sei'vcd  hve 
days  before  the  time  of  application,  or  has  been  duly  published, 

18  T.  A.  &  K  M.  R.  R.  Co.  vs.  it  seems  it  would  be  hotter  if  jiH 
Toledo,  7  N.  P.  285;   5  Dec.  300.  these  preliminary  questions  could  be 

The  Court  in  this  case  founds  its  raised  in  one  proceeding,  and  in  tlie 

decision   upon   that   of    Ry.   Co.    vs.  court    in    which    the    proceeding    to 

Village  of  Belle  Center,  48  0.  ,S.  273.  appropriate  was  pending.     See  Rail- 

19  7   N.   P.  324;   5  Dec.  87.  way  vs.  Youngstown,  O' C  C.   (N.S.) 

20  See  §  1759  for  entry.  332,  26  C.  C.  67!). 

It  has  recently  been  held  by  the  And  the  necessity  for  the  appro- 
circuit  court,  basing  its  opinion  on  priation  cannot  be  (picstioned  except 
the  decision  of  the  Supreme  Court  for  fraud.  Pausing  vs.  Miamisl)\irg, 
in  P.,  C,  C.  &  St.  L.  R.  R.  vs.  C.ren-  11  C.  C.  (X.S.)  511;  31  ().  C.  C. 
ville,  69  0.  S.  487.  that  the  only  pre-  130;  affirmed  79  O.  S.  430. 
liminary  question  before  the  probate  2"*  Crant  vs.  Hyde  Park,  47  Bull. 
court,  is  whether  the  five  days'  notice  831. 

has  been   given.      That   if   the  other  20a  p.^  C.,  C.  &  St.  L.  R.  v.s.  Green- 
questions  are  souglit  to  be  raised  it  ville,  09  0.  S.  487. 
must  be  in  a  separate  proceeding  in  ^l  §  3683  G.  C. 
a  court  of  equity,  bv  injnncti<m  pro-  The   above   section    is   very    much 
ceedin"-.     This  raav"  be  the  law,  but  similar  to  former   8  2238    |{.  S.  and 
^                      ■  specilically    provides    that   the    jury 

shall  be  drawn  and  the  trial  proceed 


§  1759  APPROPRIATION   BY   MUNI  JEPAL  CORPORATION  1530 

or  that  such  notice  has  been  waived,  the  court  shall  set  a  time 
for  the  assessment  of  compensation  by  a  jury,  but  it  may  be 
made  at  a  special  term  of  court,  and  the  jury  shall  be  drawn 
and  the  trial  proceed  as  in  other  civil  actions."    [96  v.  28  §  15.]  -^ 

§  1759.     Entry  finding  on  preliminary  questions  and  ordering 
jury. 

This  day  came  the  plaintiff  and and ,  de- 
fendants (ueie  mention  all  the  defendants  that  appeal j  and  it  appearing  to 
the  Court  that  the  plaintiff  is  a  corporation,  organized  under  tlie  laws  of 
Ohio,  and  cniiticu  vo  appropriate  the  property  in  the  application  herein 
described  and  that  it  is  necessary  to  appropriate  said  property  for  the  pur- 
poses set  forth  in  the  application  and  that  all  the  preliminary  steps  de- 
scribed by  the  statute  have  been  taken  as  required  by  law,  and  due  and  legal 
notice  has  been  served  on  all  the  defendants,  as  required  by  law. -2 

It  is  ordered  tnat  the  clerk  of  the  Court  of  Common  Pleas  proceed  at  once 
to  draw  from  the  box  the  names  of  twelve  persons  to  serve  as  jurors  in  this 

case,  who  shall  be  summoned  to  appear  in  this  Court  on  the day  of 

,  at o'clock   (and  if  there  is  a  minor  defendant  the 

following  might  be  add«d),  and  it  appearing  that ,  a  de- 
fendant herein,  is  a  minor  and  has  no  guardian, is  appointed 

guardian  ad  litem  for  said This  proceeding  is  adjourned 

until   the day   of ,   at o'clock .  .  .  M.23 

§  1760.     How   jurors  drawn  in  Probate   Court. 

The  statute  now  provides  that  tJie  jury  shall  be  dra\\Ti  and 
the  trial  proceed  as  in  other  civil  actions."*  Fonnerly  the  stat- 
ute provided  that  the  juiT  should  be  drawn  in  the  presence  of 
the  judge,  consisting  of  twelve  names  or  a  less  number  that 
Tuiglit  be  agi-eed  upon  by  the  party,  and  that  if  for  any  cause 
the  panel  is  not  full,  the  Probate  Judge  should  fill  the  same  by 
by-standers."^  The  statute  makes  applicable  the  laAv  relating 
to  tlie  drawing  of  jurors  generally  in  the  Court  of  Common 
Pleas,  and  the  metliod  tliere  obseiwed  should  be  followed  relat- 
ing to  special  venires,  etc.'®  The  clerk  should  proceed  as  di- 
rected in  sec.  11427  G.  C,  and  a  venire  should  be  isued  to  the 
sheriiT,  as  in  other  cases,-^  made  returnable  on  a  day  which  is 
set  for  trial,  and  an  entry  to  this  effect  should  be  put  upon  tlie 
journal.-^ 

as  in  other  civil  actlona.   The  former  §§  2240.  2241  R.  S. 

statute  provided  tlmt  tl'.c  assessment  See  §  17.57. 

and  comiwnsalion  may  be"  made  by  a  24  §  3GS3  G.  C,  §  1758. 

jury  of  twelve  men,  unle-s  the  parties  -'3  Former   §2240  R.  S. 

agree  uiion  n  less  number.  -6  §  11433  G.  C. 

22  §  3(ie3  G.  C.  27  See  §  40!),  For  form  of  order  to 
§§  1758,  17G0.                                             draw  jury  and  form  of  venire. 

23  Former     statute     required     the  28  See  §1702 
clerk  to  draw  the  jury  in  presence  of 

the  judge. 


1531  EMPANELING  JURY  §  1761 

§  1761.     Empaneling  jury. 

In  empaneling  tlio  juiy  the  usua.  niies  should  be  obsen-ed 
as  in  the  trial  of  civil  actions,  the  nature  of  the  proceedings 
being  very  much  similar  to  condemnation  of  property  by  pri- 
vate corporations.  It  would  not  be  inappropriate  for  the  judge 
to  interrogate  the  jurors  as  in  such  cases  required,"*^  and  the 
challenges  to  the  jury  might  be  made  in  much  the  same  way. 
The  statute  requires  the  jury  to  be  sworn,  and  I  have  no  doubt 
that  the  form  of  oath  used  in  administering  the  oath  to  the  jury 
in  condemnation  by  private  corporations  might  be  used.^"  The 
jury  having  been  properly  empaneled  and  oath  administered, 
a  view  of  the  premises  may  be  had,  as  provided  in  the  next 
section.^^ 

§  1762.     View  of  the  premises  may  be  required. 

A  view  of  the  premises  shall  be  ordered  when  desired  by  the 
juiy  or  demanded  by  any  party  to  the  proceedings.^^  The 
statute  does  not  provide  that  a  description  of  the  property 
should  be  given  tO'  the  sheriff,  nor  does  it  say  who  may  accom- 
pany the  sheriff,  but  in  such  matters  it  would  be  well  to  follow 
the  method  provided  for  in  proceedings  by  private  corpora- 
tions.^' 

§  1763.  .  How  jury  to  return  assessment.  Open  and  close 
of  case.  Assessment  when  building  situated  partly  on  ad- 
joining land.  "A  view  of  the  premises  shall  be  ordered  when 
desired  by  the  jury  or  demanded  by  a  party  to  the  proceedings. 
The  owners  shall  have  the  right  to  open  and  close  the  case." 
[96  V.  28,  §16.]"^ 

§  17e3a.  Guardian  ad  litem.  *'If,  at  the  time  of  the  appli- 
cation, it  appears  that  any  of  the  owners  of  the  property  sought 
to  be  taken  are  infants  or  insane,  and  that  they  have  no  guardian, 

29  §  1703.  0.   S.  — .      See    §  1714a,   Burden   of 

30  See  §  1706.  proof. 

31  §  (5423  R.  S.,  §  1684.  Tlie  first  part  of  the  above  section 
§  3689  G.  C,  §  1765.  is  the  same  as  former  §  2242  R.   S. 

32  §§  3684.  36S.3,  3686,  3687,  3688  The  second  part  as  to  infants  is  tlie 
G.  C,  §  1763;  former  statute  §  2242  same  as  §  C2-13  E.  S.;  and  the  third 
R.  S.  part  in   reference  to   delay  and   de- 

33  §§  1707,   1708,  1709,  1710.  posits  of  money,  is  much  similar  to 

34  §  3684  G.  C.  former    §22oO'R.    S.;    and    the   re- 
The   doctrine   of   burden   of   proof       mainder   is   similar  to   §  2245   R.   S. 

does  not  apply  in  such  a  case.     The  There  scenes  to  be,  however,  no  limi- 

jury   acts   merely  as   an    appraising  tation  of  the  number  of  counscd  that 

or  assessing  board,  determining  the  may  be  heard,  etc.,  like  in  the  former 

fair   market  value    of   the    property  section.     T!iat  part  in  reference  to 

from    all     the    evidence    submitted.  buildings     and    structures     is     very 
Martin    vs.    City   of    Columbus,    101 


§  1763b  APPROPRIATION   BY   MUNICIPAL  CORPORATION  1532 

ca  guardian  ad  litem  shall  be  appointed  in  their  behalf."     [96  v. 
28  §  16.]  »••* 

§  1763b.  Deposit  of  money.  ' '  No  delay  in  the  proceedings 
shall  be  oocasioned  by  doubt  as  to  the  ownership  of  any  property, 
or  as  to  the  interst  of  the  respective  owners,  but  in  such  cases  the 
court  shall  require  a  deposit  of  the  money  allowed  as  compensa- 
tion for  the  whole  property  or  the  part  in  dispute.  As  soon  as 
the  corporation  shall  have  paid  the  compensation  assessed,  or 
secured  its  payment  by  a  deposit  of  money  under  the  order  of 
the  court,  possession  of  the  property  may  be  taken."  [96  v. 
28  §  16.]  2*t 

§  1763c.  How  assessment  signed.  "The  assessment  shall 
be  in  writing,  signed  by  the  jury,  and  shall  be  so  made  that  the 
amount  payable  to  the  owners  of  each  lot  or  parcel  of  land  may 
be  ascertained."     [96  v.  28  §  16.]  ^*X 

§  1763d.  When  appropriation  includes  part  of  a  building. 
"When  a  building  or  other  structure  is  situated  partly  upon  the 
land  to  be  appropriated,  and  partly  upon  adjoining  land,  and 
such  structure  can  not  be  divided  upon  the  line  between  such 
lands,  without  manifest  injury,  the  jury  in  assessing  compensa- 
tion to  SiUj  owner  of  the  land,  shall  assess  the  value  thereof, 
exclusive  of  the  structure,  and  make  a  separate  estimate  of  the 
value  of  the  structure.  The  owner  of  the  structure  may  elect 
to  retain  and  remove  it,  or  to  accept  the  value  thereof  as  esti- 
mated by  the  jury.  If  he  fails  to  make  such  election  within  ten 
days  from  the  final  determination  of  the  cause,  he  shall  be  deemed 
to  have  elected  to  accept  the  value  of  the  structure,  as  fixed  by 
the  jury."     [96  v.  28,  §  16.] ^'ff 

In  a  proceeding  brought  by  a  municipality  to  condemn  land 
for  a  street,  the  inquiry  necessarily  embraces  not  only  an  ascer- 
tainment to  the  land  owner  for  the  land  taken,  but  damages  to 
the  residue  of  the  abutting  land  of  such  o^^Tier.^"*** 

§1764.     Trial,  etc. 

There  is  no  provision  that  the  separate  owners  of  different 
tracts  of  land  may  have  separate  trials,  like  in  condemnation 

much  similar  to  §  11057  G.  C.     See  deemed  to  have  accepted  the  value  of 

§  1715.                                  "  the  structure  as  fixed  by  the  jury, 

34*  §  .3685  G.  C.  and  the  former  section  provided  that 

»4t  §  3fi86  G.  C.  in  such  cases  he  is  deemed  to  have 

34j  §  3687  G.  C.  elected    to    retain    and    remove    the 

34tt  §  3688    G.    C.  structure. 

The  present  section,  however,  pro-  34**Grant  vs.  Hyde  Park,  47  Bull. 

vides   that   if  the  owner   should  not  831. 

make  an  election  he  should  have  been 


1533  VERDICT  §  1765 

for  private  corporations."^  But  I  have  no  doubt  that  the  same 
rule  should  be  followed.  After  the  view  has  been  made,  then 
the  party  desiring  a  separate  trial,  should  file  a  motion  for 
that  purpose,  and  the  same  should  be  granted  by  the  Court; 
and  thereafter  each  case  should  be  heard  separately  and  a 
verdict  of  tlie  jur^'^  should  be  returned  separately  and  pro- 
ceedings had  in  each  case  in  error  or  appeal  separately.  The 
land  owner  has  the  right  to  open  and  close  the  introduction  of 
evidence,  and  from  tliis  would  follow  that  the  burden  of  proof 
is  upon  him.^^^  Each  or  all  the  cases  shall  be  heard  in  the  man- 
ner that  civil  actions  are  usually  tried.^" 

§1765.  Verdict  in  whole  or  in  part.  "The  jury  shall  be 
sworn  to  make  the  whole  inquiry  and  assessment,  but  may  return 
a  verdict  as  to  part  and  be  discharged  as  to  the  rest,  in  the 
discretion  of  the  court.  If  a  jury  is  discharged  from  rendering 
a  verdict  in  whole  or  in  part,  another  shall  be  drawn  and 
impaneled  at  the  earliest  convenient  time,  who  shall  make  the 
whole  inquiry  and  assessment,  or  the  part  not  made."  [96  v. 
29,  §17.]" 

§  1766.    Form  and  return  of  verdict. 

The  jury  having  heard  the  evidence  and  arguments  of  coun- 
sel, and  charge  of  the  court,  retire  for  their  deliberation  and 
upon  arriving  at  a  conclusion  should  return  their  verdict  in 
writing,  and  this  verdict  must  be  signed  by  the  jury.^^  This 
being  a  slight  distinction  from  that  in  condemnation  by  pri- 
vate corporations,  where  it  is  required  that  the  verdict  shall  be 
signed  by  the  foreman.  It  seems  here,  that  the  verdict  should 
be  signed  by  all  of  the  jurors  and  when  returned  to  court,  it 
should  be  entered  upon  the  record.    The  entry  provided  for  in 

35  §11048  G.  C,  §1711.  37  §3689  G.  C. 

35a  This    is   denied.     There   is   no  The  above   section   is   very   nuich 

burden  of  proof   in  such  cases,  see  similar  to  former  S  224C,  R.  S. 

§  1714a.  The   right   to   take    property   does 

3c  See   §§1711,    1712,   1713,    1714.  not  accrue   until   compensation   has 

When  property  owners  are  entitled  been  assessed.   Garvin  vs.  Columbus, 

to   sejjarate   trials   it  is   not   meant  5  Dec.  3.33;  5  N.  P.  (i36. 

that  if  one  person  owns  two  or  three  Landowner  is  entitled  to  pay  for 

tracts  that  he  can  have  a  separate  all  the  rights  of  which  he  has  been 

trial  for  each,  nor  does  it  mean  that  deprived.     Dodson  vs.  Cm.,  34  O.  8. 

if  two  or  three  persons  have  interest  276. 

in  one  tract  that  each   can   have  a  38  §§  3GS4,    3688    G.    C,    former 

separate   trial.      City   of   Cincinnati  §  2245  R.  S.,  §  1763. 
vs.  NefT,   19  Bull.  404. 


§  1767  APPROPRIATION   BY    MUNICIPAL    CORPORATION  1534 

a  previous  chapter,^®  can  be  adopted,  and  tlie  following  form 
of  verdict  may  be  used: 

FORM  OF  VERDICT. 
{Title.) 
We,  the  jurors  in  this  cause,  duly  impaneled  and  sworn,  do  assess  as  the 

compensation  to  be  paid  by  the  city    (or  village)    of to  tiie 

owner  or  owners  of  the  several  lots  and  parcels  of  land  described  in  the 
application  herein,  as  follows: 

1.  To  the  owner  or  owners  of  lot  No.  1 — 

A.  Value  of  land,  including  buildings  and  ether  structures  situated 

wholly   or   part  taken, dollars  and 

cents    ($ ). 

B.  Damages   to  residue, dollars   and 

cents   ( $ ) . 

C.  Value  of  buildings  (or  other  structures)  situated  partly  or  part 

taken, dollars   and cents    ( $ ) . 

2.  To  the  owner  or  owners  of  lot  No.  2,  etc.,  etc. 

(Signed  by  all  the  jurors. )*» 

§  1767.  Orders  as  to  payment  or  deposit  of  assessment. 
"The  court  shall  make  such  order  as  to  payment,  deposit  or 
distribution  of*  the  amounts  assessed  as  may  seem  proper,  may 
require  adverse  claimants  to  all  or  a  part  of  the  money  or 
property  to  interplead  and  fully  determine  their  rights  in  the 
sa.me  proceeding,  and  may  direct  the  time  and  manner  in  which 
possession  of  the  property  condemned  shall  be  taken  or  delivered, 
and  may,  if  necessary,  enforce  any  order  giving  possession." 
[98  V.  164  §  18.]  '' 

§  1767a.  Effect  cf  payment  or  deposit.  "Upon  the  payment 
or  deposit,  by  tne  corporation,  of  the  amount  assessed,  as  ordered 
by  the  court,  an  absolute  estate  in  fee  simple  shall  be  vested  in 
such  corporation,  unless  a  lesser  estate  or  interest  is  asked  for  in 
the  application,  in  which  case  such  lesser  estate  or  interest  as 
is  so  asked  for  shall  be  vested."     [98  v.  164  §  18.]  *'^ 

§  i7e7b.  Eeapprcpriation  to  perfect  title.  "A  municipal 
corporation  may  again  appropriate,  in  conformity  with  the  pro- 
visions of  this  chapter,  any  real  estate  which  it  has  previously, 
lawfully  appropriated,  in  order  to  perfect,  in  it,  a  title  in  fee 
simple  absolute  to  such  previously  appropriated  real  estate." 
[98  V.  164  §  18.]  "If 

§  176S.     Distribution  of  funds. 
The    above    section    confers    complete    jurisdiction   upon    the 
court   in  which  the   action   is  brought   to   settle   all   questions 
as  to  the  distribution  of  the  fund  in  its  possession.     In  this 

39  §  1716.  Damage    paid    abutting    property 

40  See  §  1S23.  holders  can  not  be  assessed  back 
Coppock  Municipal  Code,  328.  upon  such  property  for  improve- 
A   verdict   might   be   rendered  by  ments.     Fridman  vs.  Norwood,  1  C. 

three-fourths  of  the  jury.  C.   (N.S.)  97;   15  Cir.  D.  2.')8;  25  0. 

41  §  3690  G.  C.  C.  C.  258;   affirmed,  70  O.  S.  431. 
41*  §  3601  G.  n.  The    above    section    er^bodies    for- 

4it  §  3G02  G.   C.  mer  §  22-17  and  §  2248  R.  S. 


1535  COSTS — DOUBT  OF  OWNERSHIP  §  1770 

respect  it  is  unlike  the  action  brought  by  a  private  corporation, 
for  there  the  Probate  Court  where  there  are  conflicting  claims 
cannot  adjudicate  upon  such  matters.*- 

§1770.  Costs.  How  paid,  etc.  "The  costs  of  the  inquiry 
and  assessment  shall  be  paid  by  the  corporation,  and  all  other 
costs  taxed  as  the  court  directs.  At  or  after  the  time  of  making 
the  application,  the  corporation  may  offer  to  confess  judgment 
for  an  amount  to  be  stated,  and  the  costs  then  made,  in  favor 
of  any  owner,  who  in  any  manner  enters  appearance,  or  upon 
whom  or  whose  agent  personal  service  may  be  made.  If  such 
owner  refuses  to  accept  such  offer,  and  on  the  trial  does  not 
recover  more,  he  shall  pay  all  costs  accruing  after  the  offer,  and 
an  offer  so  made  shall  be  governed  by  the  provisions  of  statute 
for  an  offer  to  confess  judgment."     [96  v.  29  §  19.]  " 

§  1771.     Ko  delay  from  doubt  of  ownership. 

It  was  formerly  provided  by  separate  section  that  no  delay 
in  making  the  assessment  of  compensation  or  taking  possession 
shall  be  occasioned  by  any  doubt  which  may  arise  as  to  the 
ownership  of  the  property."  The  same  is  still  the  law,  but 
is  found  in  a  section  containing  other  provisions.*''  This  pro- 
vision is  intended  to  secure  to  the  owners  whatever  may  be 
assessed  as  the  value  of  their  lands,  but  that  doubts  as  to  owner- 
ship, should  not  delay  the  proceeding,  and  if  the  corporation 
makes  a  deposit  of  the  amount  found  by  the  jury,  it  may  take 
possession  of  the  property  appropriated. 

§  1772.  Interested  parties  may  give  bond,  etc.  ''Before  or 
after  the  passage  of  an  ordinance  for  opening  a  street  or  other 
public  highway,  any  perscn  may  execute  his  bond  payable  to  ilm 
corporation  to  the  acceptance  of  council,  conditioned  for  the 
payment  of  all  damage  which  may  be  assessed  by  the  jury,  and 
such  bond  shall  be  good  in  law,  and  if  such  person  pay  or  deposit 
according  to  the  order  of  court,  then  such  street  or  other  high- 
way shall  be  opened ;  or  the  corporation  may  at  its  discretion 
make  such  payment  or  deposit,  and  collect  by  law  the  amount  of 
such  damages  of  such  person  or  his  sureties."     [9G  v.  29  5$  20. J  ""• 

42  §§  11073,  11074,  11075  G.  C,  piirj^o^e,  tlie  protrption  of  (ho  oor- 
§§  1729,   1730.  j)orati!)u    in   a   eas'^   wliorv>   flio   por- 

43  §  .3693  G.  C.  Iioratinn  cl  ps  not  dosirp  to  inako  the 
It    has    been    held    in    Hamilton     approprintion  excert  whom  some  in- 

county  that  the  juiy  fees  are  to  be  tpiested  pprson  will  become  resiron- 

taxcd   as   in   ordinary   civil   actions,  sible  for  the  costs. 

Hill   vs.   Durr,   47   Bull.   440.      But  All     tlie    costs    n^ay    be   assessed 

this   is  believed  not  to  be  tlic  Ir.w.  ji/^ninst    the    corporation.      Railroad 

44  §  22.'i0  II.  'S.  Co.  vs.  0;.unty,   71   0.  S.  45G. 

45  Sec  §  1(5  Municipal  Code,  §  1703.  ]?„t  the  case  intimates  that  tliero 
40  §  20,  §  3094  G.  C.  niay  be  a  distincfion  as  to  jury  U'vs 
The   al)ove   section    is   very   much  i„  j,jip,-opria1ion  by  a  municip:il  c<ir- 

similar  to  former  §  22,51  II.  S.  jioration. 

This  section  seems  to  have  for  its         p„j.  f(„.jn  of  bond,  bop  j\It.  Adams, 

etc.,  vs.  Cin.,   10  Dpc.   Ik'p.  075);   23 


§    1773  APPROPRIATION   BY   MUNICIPAL   CORPORATION  1536 

§  1773.  Review  of  proceedings.  "The  municipal  corpora- 
tion, or  the  owner  of  property,  the  value  of  which  has  been 
assessed,  as  herein  provided,  may  prosecute  error  as  in  other 
civil  actions,  and  error  shall  lie  to  the  court  of  appeals  from  the 
judgments  of  the  court,  except  that  from  the  judgments  of  the 
probate  court  error  shall  lie  to  the  court  of  common  pleas.  The 
trial  court,  upon  proper  terms,  may  suspend  the  execution  of 
any  order,  but  in  all  cases  where  the  municipal  corporation  pays 
or  deposits  the  compensation  assessed,  and  gives  adequate  se- 
curity for  any  further  compensation  and  costs,  the  right  to 
take  and  use  the  property  condemned  shall  not  be  affected  by 
such  review. "    [103  v.  420.] " 

1 1773a.  Appeal  to  court  of  common  pleas.  "If  the  pro- 
ceeding is  had  in  the  probate  court  a  party  interested  in  the 
inquiry  and  assessment  may  take  an  appeal  to  the  court  of 
common  pleas  and  thereupon  the  same  proceeding  shall  be  had 
as  if  the  application  had  been  originally  made  in  that  court, 
except  that  the  corporation  shall  not  be  required  to  give  notice 
of  its  application,  and  the  inquiry  and  assessment  shall  be 
limited  to  the  case  of  the  party  taking  the  appeal,  and  the  court 
shall  make  such  order  for  the  payment  of  the  costs  accruing 
upon  the  appeal  as  seems  equitable  and  just."  [100  v.  100 
§  21.]  '*^* 

§  1774.     Motion  a«d  proceeding  on  new  trial. 

The  previous  section  specifically  provides  that  error  may  be 
prosecuted,  as  in  other  civil  actions ;  under  the  former  statute 
it  was  somewhat  of  a  question  whether  error  should  be  prose- 
cuted as  provided  by  the  civil  oode  or  as  provided  by  the  law 
relating  to  condemnation  by  private  corporations.  The  new 
municipal  code,  however,  settles  this  matter  and  the  proceed- 
ings now  in  relation  to  new  trials,  are  the  same  as  in  civil  ac- 
tions generally.  The  motion  for  a  new  trial  must  be  made  at 
the  term  the  verdict  is  rendered  and  within  three  days  unless 
the  party  is  unavoidably  prevented  from  filing  the  same.*^ 

The  causes  of  a  new  trial  are  set  out  in  another  section  of 
the   General   Code.^^     If   the    trial    Court   sustains   the   motion 

Bull.  68.     As  to  liability,  T.  &  O.  C.  was   formerly   contained   in    §§2252. 

Ry.    vs.    Fostoria,    4   C."    D.    602;    7  2253,   2254,  *2255,   2256,   2257.   2258 

O.  C.  C.  293.  and  2259   R.   S.     The   provisions   of 

"  §3695  G.  C.  §§  2252,  2253  and  2254  are  substan- 

47*  §  3696  G.  C.  tially  included  in  the  above  section, 

Time  runs  from  the  entry  of  judg-  the  others  only  by  implication.    These 

ment  or  order  directing  assessments  matters  will  be  further  considered  in 

to  be  paid.     Ryan  vs.  Hoffman,  26  subsequent  sections. 

O.   S.    109.  48  §  11578  G.  C. 

The  above  section  embodies  what  49  §  11575-6  G.  C. 


1537  ENTRY   CONFIRMING  VERDICT  '  §  1775 

for  a  new  triai,  then  the  case  would  be  tried  de  novo.  No 
provision  is  made  by  the  statute  as  to  what  shall  be  done  with 
the  case  if  it  is  taken  up  on  error  to  the  Court  of  Common 
Pleas  and  there  reversed.  Whether  the  Court  of  Common 
Pleas  shall  retain  the  case  for  trial  or  shall  remand  the  same 
back  to  the  Probate  Court  is  a  question.  In  condemnation  by 
private  corporation  and  generally  when  a  case  is  taken  up  on 
error  to  the  Court  of  Common  Pleas  and  there  reversed,  such 
Court  retains  the  same  for  trial.'*"  It  has,  however,  been  held 
that  the  case  should  be  remanded  back  to  the  Probate  Court 
for  further  proceedings.*"^ 

§  1775.     Entry   confirming  verdict,   etc. 

When  the  question  oi  a  motion  for  a  new  trial  has  been  set- 
tled or  there  is  none  made,  the  Court  should  make  an  entry 
either  sustaining  the  motion  for  a  new  trial  or  confirming  the 
verdict  and  where  such  can  be  done,  make  a  distribution  of 
the  fund.^^  And  direct  the  time  and  manner  in  which  pos- 
session of  the  property  may  be  taken  and  if  necessaiy  may  give 
an  order  to  deliver  possession.  The  matter  of  costs  may  also 
be  determined.  The  following  may  be  used  as  form  of  such 
entry : 

(Title.) 

This  cause  cominsf  to  be  heard  upon  the  application,  the  evidence  and 
the  verdict  of  the  jury  heretofore  rendered  herein,  assessing  the  compensa- 
tion to  be  paid  to  the  owner  or  owners  of  the  lots  and  parcels  of  land  de- 
scribed in  the  application,  by  reason  of  the  appropriation  of  the  same  to 
public  use  by  the  plaintiff  corporation,  as  follows:  (Copy  award  of 
verdict.)  And  the  Court  proceeding  to  consider  said  cause  upon  the  appli- 
cation, evidence  and  verdict  aforesaid,  doth  find  that  said  lots  and  parcels  of 
land  and  the  several  interests  therein  belong  to  the  persons  whose  names  are 
set  opposite  to  them  herein,  and  that  such  persons  are  entitled  to  receive 
the  proportion  of  said  compensation  as  herein  designated,  viz:  (Set  out 
name  of  owner  of  each  lot,  or  interest,  and  the  amount  to  which  he  is 
entitled. ) 

It  is,  therefore,  adjudged  that  said  verdict  be  confirmed  and  that  said 
plaintiff  corporation,  upon  payment  within  six  months  from  the  entry  here- 
of of  the  amount  of  said  verdict  to  the  owners  of  said  lots  and  parcels  of 
land  as  herein  designated,  or  deposit  of  the  same  with  the  clerk  of  this 
Court  for  the  use  of  said  owners,  shall  be  entitled  to  take  possession  of  and 

See  Kinkead's  Pract.  499.  S<^o  §8  1722  and  172.3. 

50  See  §  110G6  G   C     ?  1722  ^^  ^^  •^«''«'  -^^'"1'  3^''*2  G.  C. 

51  Banning  Trustees   vs.   Trustees.  ' 
etc.,  R.  R.,  3  Bull.  OflO. 


§  1776  APPROPRIATION   BY    MUNICIPAL   CORPORATION  1538 

hold  sflid  premises  with  all  rights  and  interests  thereto  belonging  and  ap- 
portuining,  for  the  uses  and  purposes  of  said  appropriation,  and  upon  such 

payment  or  deposit  an  order  may  issue  to  the  sheriff  of 

county  to  put  the  plaintiff  in  possession  of  said  premises.  And  it  is  con- 
sidered by  the  Court  that  the  plaintiff  pay  the  costs  of  this  proceeding, 
taxed   at dollars.53 

§  1776.     Proceedings  in  error.     How  execution  of  order  suspended. 

Tt  was  provided  by  a  former  section  of  the  Revised  Statutes,^* 
which  section  is  now  embodied  in  sec.  3S95,  G.  C.,^^  that  a  proceed- 
ings in  error  should  not  suspend  the  order  of  execution,  unless  a 
proper  bond  is  given,  but  that  if  the  municipal  corporation  pays 
or  secures  by  a  deposit  of  money  the  compensation  assessed  by 
the  jury  and  gives  adequate  security  for  any  further  compensa- 
tion, then  it  has  the  right  to  use  the  property  condemned,  being 
liable,  of  course,  if  greater  compensation  is  recovered  in  a  new 
trial.^« 

§  1777.     Appeal  to  Court  of  Common  Pleas. 

"Where  tlie  proceedings  is  had  in  the  Probate  Court,  any  party 
interested  in  the  inquiry  and  assessment  may  take  an  appeal 
to  the  Court  cf  Common  Pleas  and  thereupon  the  same  pro- 
ceeding shall  be  had  as  if  the  application  had  been  originally 
made  in  that  Court,  except  that  the  corpcralicn  shall  not  be 
required  to  give  notice  of  its  application,  and  the  inquiry  and 
assessment  shall  be  limited  to  the  case  cf  the  party  taking  the 
appeal.^^ 

§  1778.      Notice  of  intention  to  appeal. 

The  former  statute,^^  specifically  provided  a  method  for 
taking  an  appeal,  the  present  law  contains  no  such  provision. 

53  Coppock's  :\Iunicipal  Code,  329.  take  possession  of  the  property,  not- 

54  §  2253  Pv.  S.  withstanding  the  fact,  that  procecd- 

55  §  1773.  inC^3  iii  error  have  been   instituted. 

56  §  2253  R.  S.  Trustees  vs.  Banning.  21  Bull.  9. 
The  object   of   this   section   is   to  57  A  part  of   §§3605,   3G96   G.   C. 

permit  the  corporation  by  making  a       (§  1773)   is  substanally  the  same  as 
deposit  in  Court  of  the  sum  required      former  §  2254  R.  S. 
and  a  bond  securing  all  the  costs,  to      ^,^8  §  2255    R-    S.      See    Miller    vs. 

Akron,  36  O.  C.  A.   Izb. 


1539  APPEAL  BY  GUARDIAN,  ETC.  &  1779 

From  the  fact  that  the  provisions  of  the  new  code  provide  tliat 
the  procedure  shall  be  the  same  as  tliat  in  civil  actions  and 
from  the  further  fact  that  the  provisions  of  the  law  governing 
civil  proceedings  in  the  Court  of  Common  Pleas,  shall  as  far 
as  applicable,  govern  in  the  Probate  Court,  when  there  is  no 
provision  on  the  subject  f^ 

It  would,  therefore,  seem  to  follow  that  the  law  governing 
an  appeal  from  the  Common  Pleas  to  the  Circuit  Court  would 
be  the  one  to  be  followed  in  an  appeal  of  this  character.*'"  I 
apprehend  that  it  is  a  procedure  very  seldom  brought  into  use, 
for  the  Probate  Court  is  now  considered  to  be  as  well  qualified 
to  tr}"  tliese  questions  as  the  Court  of  Common  Pleas."^ 


§  1779.     Appeal    by    guardian,    executor,    etc.,      and     married 
woman. 

The    former    section    of    the    General    Code    provided    that 
when  the  appeal  is  taken  by  a  person  as  guardian,  executor  or 

administrator,  who  has  given  bond  as  such  in  the  State,  no 

undertaking  shall  be  required  from  such  guardian,  executor  or 

administrator,  etc.*'^     These  matters  are  omitted  from  the  new 

code,  but  they  are  governed  by  general  provisions  of  the  General 

Code.«^ 

59  §  11212  G.  C,  §  36.  name  and  not  by  the  a'-torncy,   in 

80  See  Kinkead's  Pract.  59.3.  the  attorney's  name. 

The   section   of  the   General   Code  For  form   of  bond,   see   §§41,   47 

§  12226  G.  C.,  provides  that  a  party  and  48. 

desiring  to  appeal  his  cause  to  the  There  maj'  be  some  doubt  on  this 
Circuit  Court  shall  within  three  question  as  to  tho  method  of  pro- 
days  after  the  jiu'guent  or  order  is  cedure.  It  is  possible  that  the  method 
entered,  file  with  the  clerk  of  the  should  be  followed  as  provided  gen- 
Common  Pleas  Court  written  notice  orally  for  appeals  from  tlie  Probate 
of  such  intention,  and  within  thirty  Court.  §  36  el  scq. 
days  after  the  entering  of  such  judg-  «i  This  is  evidenced  from  tho  fact 
ment  or  order,  give  an  undertaking  that  in  condemnation  proceedings  by 
with  sufficient  surety,  to  be  ap-  private  corporations  the  Probate 
proved  by  the  clerk  of  the  Court  or  Court  is  made  a  court  of  original 
a  judge  thereof,  as  hereinafter  pro-  jurisdiction, 
vided.  "-  §  225G  P.  S.  former. 

A  circuit  court  has  held  that  the  83  See  §§  12227-12468,  12268  G.  C. 
notice  must  be  signed  by  tiie  party's 


§  1780  APPROPRIATION    BY    MUNICIPAL   CORPORATION  1540 

§  1780.     Probate  Court  shall  furnish  transcript. 

The  previous  statute  provided  ^*  that  the  Probate  Judge 
should  furnish  a  transcript,  etc.,  upon  the  filing  of  the  notice 
of  an  intention  to  appeal.  The  new  code  contains  no  specific 
provision.     The  law  generally  thereto  would  be  applicable.®^ 

§  1781.     Original  papers  may  be  used. 

The  statute  formerly  contained  a  provision  "^  that  the  origi- 
nal papers  pertaining  to  the  proceeding  may  be  used  upon  the 
hearing  or  inquiry  in  the  Court  of  Common  Pleas,  and  shall 
be  transmitted  by  the  Probate  Judge  for  that  purpose.  While 
this  is  not  now  the  present  statute,  yet  it  may  be  considered 
the  law  in  reference  thereto. 

§  1782.      Corporation  not  to  appeal;  or  prosecute  error    except 
on  leave. 

The  previous  statute  ®^  provided  that  the  municipal  corpora- 
tion shall  have  no  right  of  appeal ;  nor  shall  it  prosecute  error, 
except  upon  leave  of  the  reviewing  Court  or  a  judge  thereto. 
This  is  stricken  out  of  the  provisions  of  the  new  code  and 
consequently  in  a  prosecution  of  appeal  or  error  no  leave  is 
required  of  the  reviewing  Court. 

§  1783.  Effect  of  failure  to  pay  for  or  take  possession  of 
land  within  six  months.  "When  a  municipal  corporation 
makes  an  appropriation  of  property,  and  fails  to  pay  or  take 
possession  thereof,  within  six  months  after  the  assessment  of 
compensation  shall  have  been  made,  its  right  to  make  such  appro- 
priation on  the  terms  of  the  assessment  so  made  shall  cease  and 
determine,  and  lands  so  appropriated  shall  be  relieved  from  all 
incumbrance  on  account  of  any  of  the  proceedings  in  such  case, 
and  the  judgment  or  order  of  the  court  directing  such  assess- 
ment to  be  paid  shall  cease  to  be  of  any  effect,  except  as  to  the 
costs  adjudged  against  the  corporation.  Upon  motion  of  any 
defendant,  such  costs  may  be  retaxed,  and  a  reasonable  attorney 's 

64  §  2257  R.  S.  66  §  2258  R.  S. 

«5  See  §§  49.  5f)  and  51.  67  §  2259  R.  S. 


1541  FAILURE  TO  TAKE  POSSESSION  §  1783 

fee  paid  to  the  attorney  of  such  defendant,  which,  together  with 
any  other  proper  expenses  incurred  by  the  defendant,  may  be 
included  in  the  costs."     [96  v.  30  §  22.]  ^^ 

68  §  3697  G.  C.  tion.     Ryan  vs.   HoiTman.   26   0.   S. 

The   above   contains   subslantially  109. 
the    provisions    fonntrly    found     in  But  it  is  not  bound  to  accept  com- 

§  2260  R.  S.  pensation  deposited  after  six  months. 

See  §§  1725,   172.i.  Cin.  v.  Hosea,  10  C.  D.  618;    19  0. 

After  six  months  owner  may  waive  C.  C.  744;  affirmed  66  O.  S.  687. 
his    rights    to    property   and    ratify  Failure  to  take  is  no  bar  to  new 

proceedings   by   accepting  compensa-  proceedings.    >\>uthern  Ry.  vs.  Haas, 

42  0.  S.  -239. 


§  1784 


ROAD  APPEALS 


1542 


CHAPTEE  XCVI 
ROAD  APPEALS. 


§  1784  Appeals  in  road  matters.  §  1808 

§  1785  When  order  to  open  road  to  §  1809 

be   executed.  §  1810 

§  1786  When   may  appeal.  §  1811 

§  1787  Matters    upon    which    appeal  §  1812 

may   be   taken.  §  1813 
§  1788  Matters   upon   which   appeals 

lie.  §  1814 

§  1789  Questions    for    the    jury    and  §  1815 

the    court. 

§  1790  Who    may    appeal.  §  1816 

§  1791  Xotice  of  appeal  and  specili-  §  1817 

cations  sliall  be  in  writing.  §  1818 

§  1792  Xotice  of  intention  to  appeal,  §  1819 

when   to   be  given. 

§  1793  Form    of   notice    of   intention  §  1820 

to  appeal. 
§  1794  Bond,   etc. 

§  1795  Form   of   appeal   bond.  §  1821 
§  1796  Date    when    notice    must    be 

given.  §  1822 
§  1797  Appeal   by    minors. 

§  1798  Commissioners     shall     trans-  §  1823 

mit   papers.  §  1824 
§  1799  Transcript. 
§  1800  Entry   in   probate   court. 

§  1801  Hearing     preliminary      ques-  §  1825 

tions   and   motions.  §  1826 
§  1802  Power    of    court    to    dismiss 

action.  §  1827 
§  1803  Hearing  on  questions. 

§  1804  Granting   appeal.  §  1828 

§  1805  Trial   by   jury,   drawing,    etc.  §  1829 

§  1806  Entry,    preliminary    hearing,  §  1830 

etc. 

§  1807  When  cases  may  be  consoli-  §  1831 

dated.  §  1832 


Challenge    of    jurors. 

Oath  of  jurors,  form. 

Right  to  view   premises,  etc. 

View,    etc. 

Trial. 

Verdict  of  jury ;  what  it 
shall   contain. 

Verdict,   form,   etc. 

Journal  entry  confirming  ver- 
dict,   etc. 

Record    of    proceedings. 

Taxing    costs. 

Enforcement    of   judgment. 

Transcript  and  papers  certi- 
fied,  etc. 

When  orders  for  payment  of 
compensation  and  damages 
shall  be   issued. 

Additional  compensation, 
how. 

Order  as  to  payment  of 
damages. 

Entry   form. 

Procedure  when  proceedings 
for  appropriation  aban- 
doned. 

Abandonment. 

Fees  and  compensation  of 
officers. 

Procedure  after  judgment 
establishing    improvement. 

Reversal,   etc. 

Appeal,    limitation. 

Review  of  judgment  of  Pro- 
bate   Court. 

Proceedings   after   trial. 

Entry,   form. 


§  1784.     Appeals  in  Eoad  Matters. 

Under  the  road  law  as  it  existed  when  the  second  edition  of 
this  work  was  issued,  there  were  at  least  four  different  proceed- 
ings in  road  matters,  each  of  which  might  reach  the  Probate 
Court  by  way  of  appeal. 


1543  APPEALS  IN  ROAD  MATTERS  §  1784 

The  first  was  an  appeal  from  the  order  of  the  County  Com- 
missioners in  granting  a  road.  This  was  considered  in  chapter 
XCVI. 

The  second  was  an  appeal  from  the  order  of  the  Township 
Trustees  granting  a  road.  This  was  considered  in  chapter 
XCVII. 

The  third  was  an  appeal  upon  the  question  of  compensation, 
etc.,  from  the  order  of  the  Countj^  Commissioners  or  Township 
Trustees.    This  was  considered  in  chapter  XCVIII. 

The  fourth  was  an  appeal  on  question  of  compensation  when 
exceptions  were  taken  to  the  action  of  the  Commissioners  or 
Trustees  in  approving  a  report  of  viewers,  etc.  This  was  con- 
sidered in  chapter  XCIX. 

All  these  causes  and  methods  of  appeal  in  road  matters  have 
been  consolidated  and  there  is  now  but  one  method  of  appeal  to 
the  Probate  Court  in  Eoad  Matters. 

There  are  still  a  number  of  different  instances  in  which  there 
may  be  an  appeal.  The  first  is  that  provided  by  §  6891  G.  C, 
et  seq.  This  is  the  general  provision  and  provides  for  appeals 
from  the  order  of  County  Commissioners  in  locating,  establishing, 
altering,  straightening,  widening  or  changing  the  direction  of  a 
public  road.  No  other  body  now  has  authority  to  establish  a 
public  road  but  the  County  Commissioners,  excepting  when  the 
same  might  be  done  hy  virtue  of  the  law  granting  to  the  Town- 
ship Trustees  or  the  State  Highway  Authorities  power  to  recon- 
struct, etc.,  a  public  road,  and  when  any  such  authority  is 
conferred  and  an  appeal  is  granted,  it  is  to  be  done  under  Sec. 
6891,  a  C,  et  seq. 

Thus  where  a  road  is  reconstructed,  etc.,  by  the  Township 
Trustees,  an  appeal  is  granted  for  compensation  under  Sec. 
3298-11,  a  C,  as  provided  in  Sec.  6891-1,  G.  C,  and  a  like 
provision  is  found  when  a  township  road  district  reconstructs  a 
road  under  Sec.  3298-36,  G.  C. 

So  also  when  a  county  highway  superintendent  enters  for  the 
purposes  provided  for  in  Sec.  7207,  G.  C,  and  the  County  Com- 
missioners or  the  Township  Trustees  can  not  agree  on  compensa- 
tion, an  appeal  is  provided  according  to  the  pmvi^inns  of  Sec. 
6891-1,  G.  C. 

Also  when  the  line  of  a  State  highway  deviates,  etc.,  and  it  is 
necessary  to  appropriate  certain  lands,  the  County  Commission- 
ers or  the  Township  Trustees  must  secure  the  land  required, 
Sec.  1201,  G.  C,  and  an  appeal     *     *     *     as  provided  in  Sec. 


§  1785  ROAD   ^VPPEALS  1544 

6891-1,  G,  C,  et  seq.,  from  the  compensation  by  them  allowed. 
The  statute  does  not  seem  in  the  latter  ease  to  provide  an  appeal 
upon  any  question  but  that  of  compensation.  The  order  of  the 
State  authorities  deciding  its  necessity  seems  to  be  final  upon 
the  right  of  taking  the  property  and  the  vesting  of  such  power 
in  the  State  Highway  Commissioner  is  not  unconstitutional  so 
long  as  the  right  to  appeal  to  a  jury  on  the  question  of  com- 
pensation is  provided  for.  Appeal  is  also  provided  for  in  case 
of  the  apportionment  of  assessment  between  the  life  tenant  and 
remainderman.    Sec.  3298-15,  G.  C.,  etc. ;  Sec.  6925  G.  C. 

§  1785.    When  order  to  open  road  shall  be  executed. 

No  order  for  the  County  Commissioners  for  locating,  establish- 
ing, altering,  straightening,  widening  or  changing  the  direction 
of  a  public  road,  shall  be  executed  until  ten  days  have  elapsed 
after  the  County  Commissioners  have  made  their  final  order  in 
the  matter  of  compensation  and  damages,  on  account  of  said 
improvement.  If,  at  the  end  of  ten  days,  any  person,  firm  or 
corporation  interested,  shall  have  effected  an  appeal,  then  said 
order  shall  not  be  executed  until  the  matters  appealed  from  shall 
have  been  disposed  of  in  the  Probate  Court.     [106  v.  583,  §  37.]* 

§  1786.     When  may  appeal. 

The  object  and  purpose  of  this  preceding  section  is  to  give 
the  person  desiring  to  appeal  time  in  which  to  perfect  his  appeal. 
If  his  appeal  is  perfected,  by  giving  the  required  notice  and  filing 
bond,  and  a  transcript  is  filed  in  the  Probate  Court,  then  all 
further  action  on  the  part  of  the  commissioners  is  stayed,  until 
the  matter  of  appeal  is  decided  by  the  courts. 

§  1787.    Matters  upon  which  appeal  may  be  taken. 
Any  person,  firm  or  corporation  interested  therein,  may  appeal 
from  the  final  order  or  judgment  of  the  county  commissioners 
made  in  the  proceeding  and  entered  upon  their  journal  deter- 
mining either  of  the  following  matters: 

1.  The  compensation  for  land  appropriated. 

2.  The  damages  claimed  to  property  aifected  by  the  improve- 
ment. 

3.  The  order  establishing  the  proposed  improvement. 

4.  The  order  dismissing  or  refusing  to  grant  the  prayer  of  the 
petition  for  the  proposed  improvement.     [106  v.  583,  §  38]** 

§  1788.   Matters  upon  which  appeal  lies. 

The  statute  specifies  four  matters  upon  which  an  appeal  may 
be  taken. 

*  §  6890  O.   C.  **  §  osni  G.  C. 


1545  QUESTIONS  FOR  THE  COURT  AND  JURY  §  1789 

The  first  is  that  upon  the  question  of  compensation  for  the 
land  actually  taken  in  the  improvement.  Not  much  question  can 
arise  as  to  what  it  may  include.  If  a  property  right  has  been 
taken,  even  if  the  injury  be  but  nominal,  compensation  must 
be  allowed. 

The  second  is  for  damages  to  property  affected  by  the  im- 
provement. This  means  injury  that  may  result  to  property 
rights  and  not  included  in  the  property  taken,  for  which  com- 
pensation must  be  allowed. 

The  third  is  from  the  order  establishing  the  proposed  road. 
This  would  include  all  the  proceedings  upon  which  this  order 
was  granted.  This  would  seem  to  take  to  the  Probate  Court 
all  questions  that  might  have  been  raised  before  the  Commis- 
sioners that  would  affect  the  legality  of  their  decision  in  making 
the  order.  Upon  all  questions  that  might  be  raised  upon  this 
third  ground,  except  whether  or  not  the  improvement  will  be 
conducive  to  the  public  convenience  and  welfare,  will  be  ques- 
tions for  the  court,  and  not  the  jury. 

The  fourth  is  from  the  order  dismissing  or  refusing  to  grant 
the  prayer  of  the  petition.  This  would  give  the  appellant  the 
right  to  have  the  question  as  to  whether  the  improvement  will 
be  conducive  to  the  public  convenience  and  welfare  submitted 
to  a  jury,  provided  there  were  no  other  legal  reasons  justifying 
the  order  of  dismissal  made  by  the  Commissioners. 


§  1789.    Questions  for  the  Court  and  Jury. 

If  the  party  appeals  on  all  the  grounds  permitted  by  th^ 
statute,  the  effect  would  be  just  the  same  as  if  the  right  of 
appeal  was  granted  by  the  statute  in  general  terms  upon  the 
orders  made  by  the  Commissioners  in  establishing  the  road,  and 
the  rules  generally  applicable  to  appeals  would  apply.  But 
the  statute  permits  or  rather  requires  the  person  appealing  to 
specify  the  grounds  of  appeal,  and  therefore  the  matter  could 
only  be  heard  in  the  Probate  Court  on  the  matters  specified  in 
the  notice  of  appeal.  If  only  the  matter  of  compensation  or 
damages  was  appealed  from,  it  might  be  held  that  the  party 
had  waived  all  irregularities  that  might  have  been  in  the  pro- 
ceedings of  the  Commissioners  and  the  legality  of  the  order  of 
the  Commissioners  granting  the  improvement  could  not  be  gone 
into,  and  the  only  thing  for  the  court  to  do,  provided  the  appeal 
is  properly  perfected,  is  to  submit  to  the  jury  these  questions. 


§  1790  ROAD  APPEALS  1546 

However,  if  the  appeal  is  from  the  order  establishing  the 
improvement,  then  all  matters  pertaining  to  the  legality  of  the 
action  of  the  Commissioners  would  be  before  the  court;  and  if 
this  matter  should  appear  from  the  record  it  would  be  a  matter 
for  the  court  to  decide,  and  on  motion  the  court  might  dismiss 
and  hold  for  naught  the  entire  proceedings.  If  the  matter  was 
appealed  upon  the  question  of  compensation  or  damages,  and 
the  record  likewise  should  show  that  the  person  appealing  had 
not  presented  his  claim  in  writing,  and  within  the  required  time, 
the  proceedings  in  appeal  should  be  dismissed.  These  matters 
which  are  strictly  of  a  legal  character,  are  for  the  court  to 
decide.  The  three  questions  for  the  jury  to  decide,  provided 
they  are  all  raised  by  the  appeal,  are,  first,  the  amount  of  com- 
pensation; second,  the  amount  of  damages;  third,  whether  the 
improvement  will  be  conducive  to  the  public  convenience  and 
welfare. 

§  1790.    Who  may  appeal. 

The  statute  says  any  person,  firm  or  corporation  interested 
therein  may  appeal.  Just  what  the  nature  of  this  interest  must 
be  the  statute  does  not  determine.  It  can  not  be  confined  to 
persons  having  rights  directly  affected  by  the  improvement,  for 
the  statute  permits  one  to  be  a  petitioner  if  he  is  a  free  holder 
and  resides  in  the  vicinity.  And  if  the  Commissioners  refuse 
to  grant  the  petition,  such  petitioner  would  certainly  be  a  party 
interested  therein  even  though  not  directly  affected  in  his  prop- 
erty rights. 

^owever,  if  a  person  is  neither  a  petitioner  or  is  not  in  any 
manner  affected  in  his  property  rights  by  the  proposed  road,  it 
is  not  easy  to  see  how  he  would  have  sufficient  interest  to  con- 
stitute him  a  ''person  interested  therein"  within  the  meaning 
of  the  statute. 

The  former  statute,  however,  provided  an  appeal  might  be 
taken  by  a  person  having  an  estate  in  fee,  for  life,  or  years,  in 
lands  or  tenements,  situated  in  a  township  in  the  county,  in  or 
through  which  such  road  passes. 

A  person  interested^  we  think  would  include  a  petitioner,  all 
persons  whose  property  rights  might  be  affected,  and  possibly 
such  other  persons  owning  land  in  such  close  proximity  to  the 
proposed  road,  that  they  might  be  considered  as  interested  in 
the  question  whether  or  not  the  road  should  be  established. 


1547  NOTICE  OF  INTENTION   TO  APPEAL  §  1791 

§  1791.  Notice  of  appeal  and  specifications  shall  be  in  writing. 

(§6891-1.) 

Any  person,  firm  or  corporation  desiring  to  appeal  to  the  Pro- 
bate Court,  when  the  improvement  is  located  in  two  or  three 
counties,  may  appeal  to  the  Probate  Court  of  either  county  in 
the  manner  hereinafter  provided. 

Any  person,  firm  or  corporation  desiring  to  appeal  from  the 
final  order  or  judgment  of  the  county  commissioners  upon  any 
of  said  questions,  shall  at  the  final  hearing  had  before  them  upon 
such  matters  of  compensation  or  damages,  give  notice  in  writing 
of  an  intention  to  appeal,  specifying  therein  the  matters  to  be 
appealed  from.  The  commissioners  shall  fix  the  amount  of  the 
bond  to  be  given  by  the  appellant,  which  shall  be  reasonable, 
and  cause  an  entry  thereof  to  be  made  upon  the  journal. 

Appeal  bond.  The  appellant  within  ten  days  thereafter  shall 
file,  with  the  auditor,  a  bond  in  the  amount  so  fixed  with  sure- 
ties to  be  approved  by  the  auditor,  and  such  bond  shall  be  con- 
ditioned to  pay  all  costs  made  on  the  appeal,  if  the  appellant 
fails  to  sustain  such  appeal  or  the  same  is  dismissed.  [lU6  v. 
584.  §  39.] 

§  1792.    Notice  of  intention  to  appeal— when  to  be  given. 

The  time  of  the  final  hearing  upon  the  matters  of  compensa- 
tion and  damages  is  the  time  fixed  when  a  notice  in  writing 
must  be  given.  This  is  an  awkward  statutory  provision.  Until 
this  final  hearing  is  completed  and  the  order  is  made,  it  is  pre- 
sumed that  the  parties  have  no  knowledge  what  it  will  be,  and 
are  not  in  a  position  to  determine  whether  it  is  desirable  to 
appeal  or  not.  It  would  have  been  more  consistent  if  a  short 
time  would  have  been  fixed  after  the  final  order  is  made,  within 
which  the  notice  of  appeal  should  be  given,  say  three  days. 

If  any  one  requests,  it  is  suggested  that  after  the  commis- 
sioners have  finally  made  up  their  minds,  that  they  adjourn  the 
matter  for  a  few  days  to  give  the  party  time  to  consider  whether 
he  wishes  to  appeal,  and  upon  what  matters  he  desires  to  appeal. 
Generally,  however,  it  is  known  in  time  that  notice  can  be  filed 

at  once. 

If  a  party  desires  to  appeal  he  .should  take  no  chances,  but 
have  his  notice  ready  and  file  it  as  soon  as  tiie  final  vote  is 
taken.  The  commissioners  shall  fix  the  amount  of  tlic  bond,  and 
the  party  giving  the  notice  has  ten  days  in  which  to  file  his 
bond.     This  notice  should  be  filed  with  the  auditor. 


§  1793  KOAD  APPEALS  1548 

§  1793.    Form  of  notice  of  intention  to  appeal. 

In  the  matter  of  the  road  petitioned  for,  A.  B.  et  al.: 

The  undersigned  hereby  gives  notice  that  he  intends  to  appeal  from  the 
orders  of  the  commissioners  herein,  on  the  following  matters: 

1.  Compensation  for  land  appropriated. 

2.  Damages  claimed  to  property  affected  by  improvement. 

3.  The  order  establishing  the  said  improvement. 

[Or,  if  the  cases  should  be  such.] 

4.  The  order  dismissing  or  refusing  to  grant  the  prayer  of  the  petition 
for  the  proposed  improvement. 


In  order  that  the  record  might  show  the  fact  if  a  minor  or  other  person 
under  a  disability  appeals,  it  would  be  well  if  this  notice  would  show 
the  fact  of  disability. 

BOND,  ETC. 

Within  ten  days  from  the  time  the  order  is  made  the  appellant  must 
file  a  bond  with  the  auditor.  The  commissioners  having  fixed  the  amount, 
the  bond  is  made  subject  to  the  approval  of  the  auditor.  When  filed  the 
auditor  should  mark  his  approval  thereon  and  the  date  of  filing.  Minors 
and  persons  under  disability  need  not  give  bond.  [§6894.]  Their 
property,  however,  is  liable  for  costs,  etc.  At  the  end  of  the  final  order 
this  fact  of  there  being  a  minor,  etc.,  and  his  not  being  required  to  give 
bond  should  be  added  when  there  is  an  appeal  and  a  minor  owns  prop- 
erty afifected. 

FORM  OF  ENTRY— FIXING  AMOUNT  OF  BOND,  ETC. 
[Title.] 

C.  D.  having  given  notice  in  writing  of  his  intention  to  appeal  from 
[here  insert  matter  appealed  from]   it  is  ordered  that  the  amount  of  his 

appeal  bond  be  fixed  at  $ [or,  if  a  minor    (and  it  appearing  that 

C.  D.  is  a  minor)  no  appeal  bond  is  required  of  him]  and  upon  the  filing 
of  such  bond  the  auditor  is  directed  to  make  a  transcript  of  the  procedure 
herein  and  file  the  same  in  the  Probate  Court  of  this  county. 

§  1794.    Bond. 

Within  ten  days  from  the  time  the  order  is  made,  and  notice  of  appeal 
is  filed,  the  appellant  must  file  a  bond  with  the  auditor.  The  commis- 
sioners having  fixed  the  amount  of  the  bond,  it  is  made  subject  to  approval 
by  the  auditor.  When  filed  the  auditor  should  mark  his  approval  thereon, 
and  the  date  of  filing.  Minors  and  persons  under  a  disability  need  not 
give  bond,  but  they  should  give  notice  of  an  intention  to  appeal.  These 
matters  are  all  jurisdictional  so  far  as  the  right  of  appeal  is  concerned, 
and  it  would  be  well  if  appellant  would  personally  see  that  they  are  done. 

§  1795.    Form  of  appeal  bond. 

Kjjow  Alt.  Men  by  these  Presents,  That  we,  A.  S.,  L.  R.  and  M.  S., 

of County,  Ohio,  are  held  and  firmly  bound  unto  the  State  of  Ohio, 

for  the  use  of County,  in  the  sum  of dollars,  to  the  payment 

of  which  we  jointly  and  severally  bind  ourselves,  our  heirs,  executors  and 
administrators,  by  these  presents: 

Signed  by  us  at  ,  on  the day  of ,  19.. . 

The  condition  of  the  above  obligation   is   such  that  whereas,   the  said 

A.   S.   appeals   to  the  Probate  Court  of  said    County,  Ohio,   from 

the  final  order  of  the  commissioners  of  said County,  made  at  their 

session,   ,  19...,  establishing  a  county  road   [or,  altering  or 


1549      COMMISSIONERS  SHALL  TRANSMIT  PAPERS  TO  COURT      §  1796 

vacating  a  state  or  county  road,  or,  changing  the  width  of  a  county  road, 
as  may  be]  from to ,  petitioned  for  by  A.  B.  and  others. 

Now,  if  the  said  A.  S.  shall  pay  all  costs  that  may  be  adjudged  against 
him  in  the  Probate  Court,  or  in  any  other  court  to  "which  the  proceedings 
may  be  removed  by  petition  in  error,  then  this  obligation  shall  be  void; 
otherwise  it  will  be  and  remain  in  full  force  and  effect. 

A,  S.,  L.  R.,  M.  S. 

Filed  and  approved ,  19 . . . 

W.    C,   County   Auditor. 

[Entry  as  to  filing  bond,  mid  form  of.] 

To  keep  the  chain  of  the  road  record  unbroken,  an  entry  of  the  filing 
of  the  bond  should  be  made  in  the  commissioners'  road  record,  which  may 
be  as  follows: 

In  the  matter  of  the road,  >       *     -     ^,-  .  i.     -i 

petitioned  for  by  A.  B.  and  others.   \     ^'  ^  ^^'""^  ^PP^*^  ^o^^- 

A.  S.  appeals  from  the  order  of  the  county  commissioners  of    

County,  Ohio,  made  at  the    session,   19...,  establishing  said  road 

[or,  otherwise,  as  may  be,  see  the  bond]  and  "has  this  day  liled  his  appeal 
bond,  approved  by  the  auditor  of  said  county." 

§  1796.  Date  when  notice  of  appeal  must  be  given.  (§  6892.) 
In  case  the  petition  for  an  improvement  is  dismissed,  or  the 
prayer  thereof  be  not  granted,  then  a  person,  firm  or  corpora- 
tion desiring  to  appeal  therefrom  must  give  the  notice  herein- 
before provided  on  the  date  when  tlie  order  is  made  dismissing 
said  petition,  or  refusing  to  grant  the  prayer  thereof,  and  file 
the  bond  required  within  the  time  prescribed  herein,  [106  v. 
584,  §  4U.J 

§  1797.  Appeal  by  minors,  etc.  (§  6893.)  Minors,  or  other 
persons  under  disability,  or  their  respective  guardians,  may  ap- 
peal to  the  Probate  Court  as  aforesaid,  without  giving  bond  for 
the  payment  of  costs.  The  Probate  Court  shall,  however,  cause 
an  entry  showing  such  disability  to  be  made  on  the  .iournal. 
The  estates  of  such  persons  shall  be  liable  for  all  costs  adjudged 
against  them  or  their  legal  representatives.     [106  v.  584,  §  41.] 

When  the  party  appealing  is  a  minor,  etc.,  this  section  makes 
it  the  duty  of  the  Probate  Court  to  cause  such  matter  to  appear 
on  its  journal.  It  would  have  been  better  had  this  duty  been 
cast  upon  the  commissioners,  and  it  would  be  well  if,  notwith- 
standing this  provision,  the  commissioners  would  make  such 
entry. 

§  1798.    Commissioners    shall    transmit    papers    to    court. 

(§  6894.)  Within  ten  days  after  the  filing  of  such  appeal  bond 
or  the  making  of  the  entry  as  aforesaid,  the  county  commission- 
ers shall  transmit  to  the  Probate  Court  the  original  papers  in 
the  proceedings,  and  a  certified  transcript  of  the  record  of  said 
commissioners  of  all  proceedings  in  connection  therewith.  Upon 
receipt  thereof,  the  probate  judge  shall  forthwith  docket  the 
cause  and  the  appellants  shall  be  designated  as  the  plaint ifl's. 
and  the  county  commissioners  Jind  other  parties  in  interest  shull 
be  designated  as  defendants.      1 106  v.  584,  §  42.] 


§  1799  ROAD   APPEALS  1550 

§  1799.    Transcript. 

This  transcript  means  a  certified  copy  of  the  commissioners' 
journal,  containing  the  record  of  all  the  proceedings  had  in  the 
road  improvement  under  consideration.  It  must  be  transmitted 
within  ten  days  after  the  bond  is  filed.  If  the  auditor  should 
fail  so  to  do  the  right  of  appeal  would  not  be  lost.  [Geddes  vs. 
Rice,  24  0.  S.  60.] 

When  the  transcript  is  filed  with  the  probate  judge,  it  is  his 
duty  to  docket  the  ease  and  put  an  entry  on  the  journal  of  this 
fact.  The  party  appealing  shall  be  the  plaintiff  and  the  county 
commissioner.s  and  the  petitioners  in  the  original  proceedings 
shall  be  the  defendants.  If  several  parties  appeal,  an  entry 
should  be  made  of  each  one  separately,  and  then  the  court 
should  further  order  that  all  the  cases  should  be  consolidated 
and  tried  together. 

The  statute  does  not  seem  to  provide  for  joint  appeal,  and  a 
proper  proceeding  where  several  persons  desire  to  appeal  would 
be  for  them  to  perfect  their  appeals  separately,  and  the  court 
thereafter  might  order  the  cases  to  be  tried  together.  The  court 
must  fix  the  time  for  the  hearing  of  preliminary  motions  and 
examination  of  the  papers  filed.  This  hearing  shall  be  fixed  not 
more  than  five  days  thereafter. 

§1800.    Entry  in  Probate  Court. 

A.  B.  vs.  Board  of  Co.  Com.  of County  and  C  D. 

Pkobate  Court Countt,  Ohio. 

This  day  there  was  filed  in  this  court  a  transcript  of  the  proceedings 
heretofore  had  by  the  commissioners  in  the  matter  of  a  road  petition  for 
by  C.  D.  and  others,  duly  certified  to,  as  showing  all  the  proceedings  had 

County,  Ohio,  made  at  the    session,   19...,  establishing  said  road 

Also  all  the  original  papers  in  said  matter  Were  this  day  received  from  the 
auditor  of  said  county  in  reference  to  the  matter  appealed  from.  It  is 
therefore  ordered  tluit  the  hearing  of  preliminary  motions  and  examina- 
tion of  papers  so  filed  be  fixed  for  the   day  of   ,  19...,  at 

o'clock,   and    it   is   further   ordered   that  tlie   plaintiff   notify   the 

defendants  of  the  time  of  said  hearing. 

If  the  party  appealing  is  a  minor  or  a  person  under  a  disability,  the 
court  must  cause  the  entry  to  show  the  fact. 

§  1801.    Hearing'    of   preliminary    questions    and    motions. 

(§6894-1.)  The  probate  judge  shall  designate  a  day  not  ex- 
ceeding five  days  thereafter  for  the  hearing  of  all  preliminary 
questions  and  motions  on  said  appeal,  and  for  the  examination 
of  the  papers  and  proceedings.  On  the  day  so  fixed  all  pre- 
liminary motions  and  questions  arising  upon  the  appeal  shall 
be  heard  and  determined,  and  if  the  Probate  Court  finds  that 


1551  POWER  OF  COURT  TO  DISMISS  ACTION  §  1802 

tlie  proceedings  are  irregular,  or  that  the  appeal  is  not  perfected 
according  to  law,  he  shall  dismiss  it  at  the  cost  of  the  appellants, 
and  certify  such  dismissal  with  his  proceedings  thereon  to  the 
commissioners.  The  court  may  waive  technical  defects,  errors 
or  omissions  in  such  proceedings.     [106  v.  584,  §  43.] 


§  1802.    Power  of  Court  to  dismiss  action,  etc. 

Sec.  6894-1,  G.  C,  bears  a  close  similarity  to  Sec.  6469,  G.  C, 
formerly  relating  to  appeals  in  county  ditch  cases,^  which  in 
turn  bear  considerable  similarity  to  the  statutes  formerly  re- 
lating to  appeals  in  township  ditch  appeals.- 

In  a  case  in  the  Circuit  Court,^  affirmed  by  the  Supreme  Court 
without  opinion,*  it  was  held  that  in  "The  Probate  Court  on 
appeal  from  the  proceedings  of  township  trustees  in  the  loca- 
tion of  a  ditch,  is  not  made  a  court  of  error  to  review  their  rec- 
ord and  pass  upon  error  and  irregularities  therein;  but  its 
jurisdiction  is  by  statute  limited  to  hearing  and  determining  the 
preliminary  questions  pertaining  to  the  case,  and  the  dismissal 
of  the  appeal,  if  it  is  found  that  the  same  is  not  perfected  ac- 
cording to  law." 

In  this  case  the  error  complained  of  was  that  no  sufficient 
bond  was  filed  by  the  petitioners  with  the  township  trustees, 
etc.  If  this  was  true,  as  a  matter  of  course  the  trustees  had  no 
jurisdiction  to  act,  and  all  proceedings  were  null  and  void. 
Whether  or  not  this  question  was  raised  in  the  Probate  Court 
does  not  appear.  The  only  thing  disclosed  was  that  the  Pro- 
bate Court  found  the  proceedings  relating  to  the  appeal  was 
regular,  and  ordered  the  matter  submitted  to  a  jury.  It  may 
have  been  for  the  reason  that  the  matter  was  not  properly 
raised  in  the  Probate  Court,  that  the  decision  of  the  Circuit 
Court  was  affirmed  by  the  Supreme  Court. 

In  a  subsequent  Circuit  Court  case,^  affirmed  without  opin- 
ion,*^ the  doctrine  that  the  Probate  Court  had  no  authority  to 
review  the  proceedings  of  the  trustees  for  supposed  errors  or 
irregularities,  etc.,  was  applied  evidently,  on  the  authority  of 
the  case  in  the  first  Circuit  Court  report.  The  question  here 
made  was  whether  under  the  petition  presented  to  the  trustees 

1  §  1833  G.  C.     The  law  relating  i  19  Bull.  a.'jO. 

to  ditcli  appeals  has  boon  niatcrlally  5  Board   of  Trustees  vs.  Jackson, 

changed  by  the  act  of  1919.  2  C.  C.  48. 

2  §  1857  G.  C.  c  27  Bull.  187. 

3  Miller  vs.  WcLor,  1  C.  C.  130. 


§  1802  ROAD    APPEALS  1552 

they  had  power  to  extend  the  improvement  290  feet  beyond  the 
terminus  described  in  the  petition.  The  Probate  Court  took  the 
view  that  they  had  no  such  authority,  and  on  trial  limited  the 
matter  at  issue  to  the  route  covered  by  the  petition,  and  the  Cir- 
cuit Court  held  that  the  Probate  Court  had  no  right  to  limit  the 
matter,  but  should  have  heard  the  case  on  the  route  as  ordered 
by  the  trustees. 

In  this  case  two  questions  were  involved,  on  either  one  of 
■which  the  Probate  Court  might  have  been  reversed,  to-wit :  first, 
that  the  Probate  Court  could  not  review  the  order  of  the  trustees ; 
second,  that  even  if  it  had  power  to  review,  there  was  no  error 
made  by  the  trustees.  The  first  was  only  considered  by  the 
Circuit  Court,  but  its  decision  might  have  been  affirmed  by  the 
Supreme  Court  on  the  second  question. 

The  doctrine  that  the  Probate  Court  had  no  authority  to  re- 
view, etc.,  was  followed  in  a  county  ditch  appeal  case,^  which 
was  likewise  affirmed  by  the  Supreme  Court  without  opinion.* 
Here  the  question  involved  was  whether  the  commissioners  could 
locate  a  county  ditch  over  the  route  of  a  township  ditch.  The 
Nisi  Prius  Court  held  that  they  could,  but  even  if  they  could  not, 
this  question  could  not  be  raised  on  appeal.  Thus  it  will  be 
seen  that  the  question  whether  or  not  the  court  could  review  the 
proceedings  of  the  commissioners  and  reverse  for  error,  was  not 
a  vital  one  if  the  order  the  commissioners  made  was  within 
their  jurisdictional  powers.  There  is  much  in  the  course  of  rea- 
soning of  the  judges  delivering  the  opinions  in  these  cases  that 
would  justify  the  holding  that  the  Probate  Court  has  no  power 
to  review  the  orders  of  the  commissioners,  etc.,  but  it  has  never 
been  so  held  by  the  Supreme  Court,  nor  was  such  holding 
necessary  to  justify  the  inferior  courts  in  the  decisions  by  them 
made.  It  must  certainly  be  admitted  that  the  statute  is  not 
clear  or  unequivocal  in  the  language  employed. 

But  we  believe,  while  admitting  that  the  law  relating  to  road 
appeals  is  very  similar  to  that  relating  to  ditch  appeals,  that 
the  proper  and  legal  thing  for  the  Probate  Court  to  do,  especially 
if  the  appeal  is  made  from  the  order  of  the  commissioners  grant- 
ing or  refusing  to  establish  the  improvement,  is  on  the  hearing 
of  preliminary  questions,  especially  on  motion  of  a  party  to 
review  the  proceedings  of  the  commissioners,  and  if  substantial 

-  Marsh    vs.    Clark    Co.    Commis-  «  33  Bull.  121  and  131. 

sioners,  26  Bull.  3. 


1553  HEARING   ON   QUESTIONS  §  1803 

error  has  been  committed,  to  dismiss  the  entire  proceedings  and 
certify  the  action  back  to  the  commissioners,  and  let  the  peti- 
tioners commence  anew  their  proceedings. 

If  the  error  is  not  jurisdictional  and  does  not  materially 
affect  the  rights  of  any  one,  it  should  not  be  considered  vital, 
and  the  court  should  allow  a  correction  by  amendment  when 
that  is  possible  to  be  done. 

We  have  come  to  this  conclusion  principally  for  two  reasons : 
first,  a  fair  and  liberal  construction  of  the  statute  justifies  it; 
second,  it  is  the  proper  and  logical  way  in  which  such  errors 
should  be  reviewed. 

To  the  court's  findings,  exceptions  may  be  reserved,  which 
may  all  be  reviewed  in  proceedings  in  error  in  the  Common 
Pleas  Court,  made  after  the  matter  has  been  submitted  to  a 
jury.  We  think,  however,  that  only  such  questions  as  appear 
from  the  record,  i.  e.,  an  examination  of  the  papers  and  pro- 
ceedings, could  be  considered.  If  the  errors  complained  of  do 
not  appear  on  the  record,  a  suggestion  of  diminution  of  the 
record  should  be  made,  and  the  records  made  to  conform  to  the 
truth. 

To  hold  that  the  Probate  Court  can  not  review  the  proceed- 
ings of  the  commissioners,  is  to  split  up  the  remedies  that  may 
be  pursued  to  prevent  the  injustice  that  may  follow  therefrom. 
If  the  Probate  Court  can  not  review  such  errors,  it  is  difficult 
to  see  how  the  Common  Pleas  Court  could  have  power  to  review 
them,  on  prosecution  of  error  to  that  court  from  the  proceedings 
in  the  Probate  Court — and  if  it  could  not,  the  complaining 
party  would  be  compelled  to  prosecute  error  in  a  separate  action, 
direct  from  the  commissioners  to  the  Common  Pleas  Court,  and 
at  the  same  time  prosecute  his  appeal  in  the  Probate  Court. 
Further,  the  finding  of  the  jury  in  the  Probate  Court,  if  it  was 
in  the  negative  on  any  of  the  questions  submitted  to  them, 
would  nullify  the  action  of  the  commissioners,  whether  such 
action  were  legal  or  illegal,  and  make  unnecessary  any  other 
.action.  Yet  this  could  hardly  occur  before  the  time  limit  for 
filing  a  petition  in  error  to  the  Common  Pleas  Court  direct 
from  the  commissioners  had  expired. 

§  1803.    Hearing  on  questions. 
If  all  the  provisions  of  the  statute  have  been  complied  witli, 
then  the  action  is  properly  pending  in  the  Probate  Court  wIk'm 


§  1804  ROAD   APPEALS       ~  1554 

the  transcript  of  the  proceedings  before  the  commissioners  is 
filed  in  such  court,  and  no  finding  of  the  Probate  Court  could 
affect  their  legality;  however,  as  a  precautionary  matter  that 
a  jury  might  be  called  and  attaching  costs  incurred,  when  there 
is  legally  no  right  to  an  action,  or  to  even  a  pending  action, 
the  statute  wisely  provides  that  the  court  shall  fix  a  day  when 
preliminary  questions  may  ber  heard.  While  every  person  who 
has  received  notice  of  the  proceedings  when  the  same  was  pend- 
ing before  the  commissioners  is  bound  to  take  notice  of  all  future 
proceedings  without  further  notice,  the  court  should  be  satisfied 
before  it  goes  into  the  hearing  on  preliminary  questions,  that 
the  defendants  know  of  the  time  of  this  hearing.  If  no  objec- 
tion is  made  that  could  properly  be  made  to  any  matter,  and 
the  court  should  make  its  finding  that  the  appeal  has  been  prop- 
erly perfected  and  the  proceedings  are  substantially  regular,  the 
finding  of  the  court  would  be  conclusive  and  no  such  question 
could  be  again  raised. 

In  view  of  this  fact  it  becomes  very  important  that  the  parties 
interested  in  contesting  the  action  should  make  their  objections 
in  writing  and  exceptions  be  reserved  that  the  record  may  show 
all  things  fully. 

There  is  no  rea.son  why  a  party  should  sit  idly  by  and  allow 
a  jury  to  be  called  and  all  the  cost  of  a  trial  incurred,  and 
then  if  the  matter  ends  not  to  his  liking,  he  be  permitted  to 
raise  a  question,  and  cause  it  dismissed,  when  it  could  have  been 
done  before  the  jury  was  called. 

§  1804.  Granting  appeal. 
If  no  question  has  been  raised  as  to  the  legality  of  the  pro- 
ceedings before  the  commissioners,  then  the  court  should  con- 
sider the  questions  which  relate  to  the  legality  of  the  proceedings 
relating  to  the  appeal.  That  is,  that  a  proper  transcript  was 
filed  within  the  time  limits  and  that  a  proper  bond  was  filed 
within  the  required  time,  and  that  a  proper  notice  of  intention 
to  appeal  was  given  at  the  time  required,  etc.  If  the  proceed- 
ings in  relation  to  the  appeal  have  been  so  irregular  as  to  mate- 
rially affect  the  legality  of  the  proceedings,  or  if  the  matters 
required  by  the  statute  have  not  been  complied  with,  so  that 
the  appeal  has  not  been  properly  perfected,  the  proceedings  of 
appeal  should  be  dismissed,  and  the  case  should  be  certified  back 

9  Geddes  vs.  Rice,  24  O.  S.  60. 


1555  ENTRY    ON    PRELIMINARY    HEARING  §  1805 

to  the  commissioners,  who  would  then  proceed  with  the  im- 
provement. 

These  matters  relating  to  appeal  are  remedial  and  are  liber- 
ally construed,  and  if  the  court  finds  the  provisions  of  the 
statute  have  been  substantially  complied  with,  the  proceedings 
of  appeal  ought  not  to  be  dismissed.  If  the  appellant  has  done 
whatever  he  was  required  by  law  to  do,  he  should  not  be  denied 
his  remedy.  Thus  if  the  auditor  fails  to  file  the  transcript 
within  the  ten  day  limit,  or,  if  he  filed  an  imperfect  transcript,^ 
this  would  not  defeat  the  appeal.  If  there  are  matters  relating 
to  the  appeal  or  to  the  proceedings  before  the  commissioners 
that  are  not  of  a  substantial  nature,  they  should  be  disregarded 
by  the  court,  and  where  proper,  supplied  by  amendments  so 
that  substantial  justice  should  be  meted  out  to  all. 

§  1805.    Trial  by  jury ;  drawing  and  listinof  of  names ;  venire. 

(§6894-2.)  If  the  probate  judge  finds  that  said  appeal  has 
been  properly  perfected,  and  that  said  proceedings  are  substan- 
tially regular,  he  shall  fix  a  day,  not  more  than  twenty  days 
thereafter,  for  the  trial  of  the  case  by  jury.  He  shall  forth- 
with notify  the  clerk  of  the  court  of  common  pleas,  who  shall 
cause  to  be  drawn  from  the  jury  box  in  the  manner  provided 
by  law,  the  names  of  sixteen  persons  as  jurymen.  The  clerk 
shall  make  a  list  of  such  names  in  the  order  in  which  they  are 
drawn  and  certify  it  to  the  probate  judgf,  and  he  shall  issue  a 
venire  commanding  them  to  appear  on  the  day,  and  at  the  hour 
set  for  trial.  He  shall  deliver  it  to  the  sheriff  who  shall  serve 
it  within  five  days  thereafter,  and  make  return  of  such  service 
before  the  day  set  for  trial.     [106  v.  585,  §  44.  T" 

§  1806.  Entry  on*  preliminary  hearing.  If  the  court  finds 
that  the  appeal  has  not  been  perfected,  or  that  the  proceedings 
are  irregular  and  clearly  illegal,  then  a  simple  entry  of  dis- 
missal might  be  put  on  ordering  the  costs  paid  as  the  court 
might  deem  proper.  If  the  appeal  is  perfected  then  an  entry 
should  be  put  on  containing  a  finding  of  such  fact  and  ordering 
a  jury  to  be  drawn,  which  entry  may  be  in  the  following  form: 

[Title.] 

This  dav  ^avin'?  Tieon  liproto^oro  flvf^fl  for  tlin  lioarini  nf  proliin'mary 
questions  and  irotions,  and  for  an  examination  of  ttio  paiK-rs  and  proceed- 
inps  herein,  the  parties  appeared  \or  failed  to  appear,  as  the  case  may  bel, 
and  this  cause  came  on  to  be  heard  on  tlie  motion  of  defeuilants  to  dismiss 
said  appeal  Fand  was  artrued  bv  eounsell,  and  the  court,  beini;  fullv  advised 
in  the  premises,  do  find  sa'd  motion  not  wcdl  taUcii.  ami  the  same  is  over- 
ruled   rto    whicli    defendants    except   and    their   excejjtions    are    entered   of 

10  This  notice  would  be  similar  to  that  in  appropriation  cases. 


§  1807  KOAD   APPEALS  1556 

record ],  and  the  court  having  examined  the  papers  and  the  proceedings, 
do  lind'that  said  proceedings  are  substantially  regular  and  said  appeal  is 

properly  perfected;  and  thereupon  the  court  fixes  the day  of , 

19..  at  8  o'clock,  a.  ni.,  as  the  time  for  the  trial  of  said  case  to  a 
jury,  and  it  is  ordered  that  a  notice  issue  to  the  clerk  of  the  Court  of  Com- 
mon'Pleas,  and  the  sheriff  of  the  county,  to  draw  sixteen  names  from  the 
jurybox  to  serve  as  a  jury  herein,  as  provided  by  law;  that  said  clerk 
certifv  a  list  of  the  names  so  drawn,  in  the  order  in  which  they  are 
drawn,  to  this  court  fortliwith,  and  that  a  venire  issue  for  said  jurors, 
returnable,  as  required  by  law,  commanding  them  to  appear  at  the  day 
and  hour  above  named,  until  which  time  this  cause  stands  adjourned. 

,  Probate  Judge. 

§1807.  When  cases  shall  be  consolidated.  (§6894-3.)  If 
more  than  one  party  appeal,  the  probate  court  shall  order  the 
cases  to  be  consolidated,  and  tried  together,  but  the  rights  of 
each  person,  firm  or  corporation,  as  to  compensation  or  damages 
shall  be  separately  determined  by  the  jury  in  its  verdict.  [106 
V.  585,  §  45.] 

(Consolidation  of  cases — Entry,  etc.]  The  statute  does  not 
indicate  at  what  time  in  the  proceedings  that  this  order  for 
consolidation  should  be  made,  but  it  ought  to  be  made  as  soon 
as  all  appeals  have  been  made  that  can  be  made.  When  the 
cases  are  ordered  consolidated,  the  questions  presented  on  pre- 
liminary hearing  might  be  tried  at  the  same  time.  If  any  plain- 
tiff has  not  perfected  his  appeal,  then  as  to  him,  the  court 
should  make  .such  order  as  is  proper.  The  idea  of  consolidation 
is,  that  there  shall  be  but  one  jury  selected,  parties,  however, 
having  a  right  to  have  their  cases  separately  heard  after  a 
view  of  the  premises  has  been  made.  The  entry  consolidating 
several  cases  might  be  as  follows : 

CONSOLIDATION  OF  CASES. 

\     County,  Probate  C»urt. 

^'S-  I  Appeal    from  the   decision   of  the 

The    board    of    commissioners  of/  commissioners  as  to  [describe  matter 

County,  and I  appealed  from]. 

/     County,  Probate  Court. 

The    board    of^'^commissioners  of\  Appeal    from    the    commissioners' 

County,  and )    decision  as  to    

[So  state  each  appeal,  then  say:]  /  [State  matter  appealed  from.] 

The  above  stated  cases,  being  all  appeals  from  the  decision  of  the 
county  commissioners  in  reference  to  the  several  matters  noted  in  each, 
in  the  same  proceedings,  to-wit:  [state  the  improvement  by  the  name  or 
description  by  which  it  is  known  in  the  record  of  commissioners'  pro- 
ceedings]. It  is  ordered  that  said  several  causes  be  consolidated,  and  tried 
together,  as  provided  by  law. 

,  Probate  Judge. 

§  1808.  Challenge  of  jurors.  (§  6894-4.)  On  the  trial,  the 
probate  judge  shall  take  the  list  of  jurymen  as  furnished  by 


1557  RIGHT  TO  VIEW  PREMISES  §  1809 

the  clerk  and  call  each  name  in  the  order  in  which  it  appears 
on  the  list,  until  twelve  answer,  when  each  of  them  must  answer 
as  to  his  qualifications  as  a  juror.  If  a  juryman  is  challenged 
for  cause  and  excused  by  the  court,  the  next  on  the  list  shall 
be  called,  until  the  panel  is  full, 

[Filling  of  panel.]  If  the  panel  is  not  filled  from  the  jury- 
men whose  names  appear  on  the  list,  the  sheriff  shall  fill  the 
panel  from  among  the  bystanders  who  have  the  lawful  quali- 
fications, unless  for  good  cause  shown  the  court  order  a  special 
venire  to  issue.  The  appellants  shall  be  considered  as  one  party 
and  the  defendants  as  one  party,  and  each  party  shall  have  the 
number  of  peremptory  challenges  allowed  in  civil  cases  in  the 
common  pleas  court.     [106  v.  585,  §  46.] 

As  the  statute  now  stands"  this  would  give  all  the  plaintiffs 
four  peremtory  challenges  and  all  the  defendants  the  same 
number.^- 

§  1809.  Oath  of  jurors.  (§  6894-5.)  The  probate  court  shall 
administer  to  the  jurors  an  oath  that  they  will  faithfully,  im- 
partially and  to  the  best  of  their  ability,  determine  the  particu- 
lar matters  appealed  from,  and  render  a  true  verdict  according 
to  the  evidence,  under  the  charge  of  the  court.  [106  v.  585, 
§47.] 

FORM  OF  OATH  TO  JURY. 

You  and  each  of  you,  do  solemnly  swear  that  you  will  faithfully,  and 
impartially  and  to  the  best  of  your  ability,  determine  the  matters  nar- 
ticularly  appealed  from,   in  the  cause  now  pending  before  you,   in  which 

are  plaintiffs  and are  defendants,  and  render 

a  true  verdict  according  to  the  evidence  under  the  charge  of  the  court. 
This  you  do  as  you  shall  answer  unto  God. 

§  1810.    Right  to  view  premises  before  testimony  submitted. 

(§6894-6.)  On  motion  of  either  party,  the  jury  under  the 
care  of  an  officer  of  the  court  and  with  such  person  or  per- 
sons as  the  court  may  designate  to  show  them  the  premises, 
and  before  any  testimony  shall  be  submitted,  except  the  plat 
and  a  survey  of  the  improvement  and  the  title  papers  of  the 
claimant,  if  produced,  which  the  jury  may  take  with  them, 
shall  examine  the  route  or  location  of  the  improvement  as  peti- 
tioned for  or  as  ordered,  and  the  property  of  the  sovcrjil  chiim- 
ants  who  have  appealed  on  account  of  property  taken  therefor, 
or  alleged  to  be  damaged  thereby,  and  after  making  sucli  ex- 
amination, the  jury  shall  return  to  the  probate  eoni-t  at  the  time 
appointed  therefor.  After  the  jury  has  returned  to  tlie  probate 
court,  the  parties  shall  offer  their  evidence  to  the  jury  under 
the  direction  of  the  court,  upon  the  matters  appealed    fi-oiii. 

11  §  11439  G.  C.  12  See  §  114:57  G.  C.  for  cauHcs  for 

challenge. 


§  1811  ROAD   APPEALS  1558 

The  rules  of  law  and  procedure  governing  civil  cases  in  the 
common  pleas  court  shall  apply  to  the  trial  of  the  cause  in  the 
probate  court.  [106  v.  585,  §  48.] 

§  1811.  View,  etc.  Either  party  has  a  right  to  demand  a 
view  of  the  premises  along  the  route  of  the  proposed  road; 
invariably  such  right  is  exercised.  The  jury  will  be  under  the 
care  of  an  ofiicer  of  the  court,  and  such  other  persons  as  the 
court  may  designate  may  go  along  to  shoiv  the  jury  the  premises. 
These  persons  should  not  try  to  influence  the  jury,  other  than 
call  the  jury's  attention  to  pertinent  matters  along  the  route 
that  will  enable  the  jury  to  properly  consider  the  questions  for 
them  to  decide.  This  view  shall  be  made  before  any  evidence 
is  heard.  The  court  should  charge  the  jury  before  the  view  as 
to  their  duties  on  such  view.^^  An  entry  should  be  put  on, 
which  may  be  in  the  following: 

FORM  OF  EXTRY— ORDERIXG  VIEW. 
[Title.] 

A    jury    having    been    impaneled    and    sworn    as    provided   by    law,    on 

motion  of    it  is  ordered  that  said  jury  under  the  care  of    , 

an  ofiicer  of  this  court,  shall  examine  the  route  and  location  of  the 
said    proposed    road    improvement,    and    shall    examine    the    property    of 

and    ,   claimants,  who  have  applied  on   account  of  property 

taken   therefor   or   damaged  thereby,   and    and    are   hereby 

designated  as  persons  to  accompany  said  jury  and  show  them  the  premises. 
After   making    such    examination,   the   jury    is    ordered   to   return   to   this 

court  on    day   of    ,    19 ... ,   at   8   o'clock,  a.   m.,  for  further 

hearing,  to  which  time  this  cause  is  adjourned. 


§  1812.  Trial.  At  the  time  to  which  adjournment  has  been 
made,  the  case  shall  come  on  for  trial  under  the  rules  of  law 
and  procedure  governing  civil  cases  in  the  Court  of  Common 
Pleas.  In  such  trial  the  defendants,  petitioners,  shall  be  en- 
titled to  the  opening  and  close,  and  it  might  be  said  the  bur- 
den of  proof  is  on  them.^* 

When  several  persons  "appeal,  they  are  not  entitled  to  separate 
trials,  but  the  rights  of  each  party  appealing  is  entitled  to  have 
his  compensation  and  damages  separately  determined  by   the 

13  See  Thomas  vs.  Commissioners,  the  technical  sense  of  the  term  there 
5  N.  P.  449 ;  5  Doc.  .'503,  where  there  is  no  burden  of  proof.  That  the 
is  given  a  charge  to  a  jury  before  jury  merely  acts  as  an  appraising 
view  in  a  ditch  proceedings,  which  or  assessing  board,  determining  the 
may  aid  in  forming  a  charge  to  be  fair  market  value  of  the  property 
given  in  a  road  appeal.  from    all    the    evidence    submitted. 

14  See  recent  case   of  INIartin   vs.  101  O.  'S.  — . 
Columbus,  where  it  is  held  that  in 


1559  VERDICT  §  1813 

• 

jury,  and  they  must  fiud  separately  the  compensation  of  each 
in  their  verdict. 

The  view  is  not  evidence,  although  if  no  other  evidence  is 
offered  I  apprehend  a  verdict  would  not  be  set  aside  for  want 
of  evidence  to  sustain,  or  because  it  is  not  sustained  by  the 
evidence.  The  statute  is  not  as  broad  as  that  in  ditch  appeals, 
where  it  has  been  held  that  the  view  is  evidence,  and  the  court 
would  probably  hold  that  the  rule  should  be  applied  the  same 
as  in  condemnation  cases.^^ 


§  1813.  Verdict  of  jury;  what  it  shall  contain.  (§  6894-7.) 
At  the  conclusion  of  the  trial,  the  court  shall  charge  the  jury 
and  the  jury  shall  find  and  return  a  verdict  separately  upon 
each  claim  for  compensation  and  damages,  if  a  final  order  or 
judgment  or  the  county  commissioners  in  reference  to  com- 
pensation and  damages  be  appealed  from.  The  jury  shall  also 
determine  in  their  verdict  whether  the  improvement  petitioned 
for  or  granted  will  be  conducive  to  the  public  convenience  and 
welfare,  if  an  order  establishing  the  proposed  improvement  or 
dismissing  or  refusing  to  grant  the  prayer  of  the  petition  be 
appealed  from. 

[Rendition  of  judgment.]  If  a  new  trial  shaU  not  be  granted 
for  cause  shown,  the  probate  court  shall  render  a  judgment  in 
favor  of  the  appellants  for  the  amount  of  the  verdict,  if  any, 
returned  by  the  jury  in  their  favor.  He  shall  also  make  a 
finding  for  or  against  the  improvement,  based  on  the  verdict 
of  the  jury. 

[Error  proceedings.]  In  case  of  error  proceedings  to  the 
common  pleas  court,  a  bill  of  exceptions  shall  be  allowed  as  in 
cases  in  the  common  pleas  court.     [10(3  v.  586,  §  49.] 

§  1814.  Verdict,  etc.  At  the  conclusion  of  the  trial — that 
is,  the  introduction  and  evidence  and  arguments  of  coun.sel — 
the  judge  shall  charge  the  jury,  etc.,  and  the  jury  shall  return 
a  verdict,  etc. 

Particular  attention  of  the  jury  should  be  called  to  the  ques- 
tions they  must  consider. 

There  are  four  things  upon  which  there  may  be  an  appeal; 
only  three  could  be  in  one  appeal,  to-wit:  1.  Compen.sation ; 
2.  Damages,  and  3.  Granting  the  improvement.  Tlie  fourth 
matter  upon  which  there  might  be  an  appeal,  to-wit.  refusing 
to  grant  the  improvement,  would  necessarily  be  in  an  action 
on  that  question  alone. 

15  See  Railroad  Co.  vs.  Bolen,  7G  0.  vS.  376.     §  1710. 


§  1815  ROAD  APPEALS  1560 

• 

On  the  question  of  granting  or  refusing  the  improvement, 
the  statute  requires  that  the  jury  find  whether  the  improve- 
ment granted  as  petitioned  for,  will  be  conducive  to  the  pub- 
lic convenience  and  welfare. 

It  seems,  then,  that  if  the  question  was  alone  on  the  grant- 
ing of  the  improvement  the  following  might  be  used  as  a 

FORM  OF  VERDICT. 
[Title.] 

We,  the  jury,  impaneled  as  such  in  the  above  case,  do  find  that  the 
granting  of  tlie  improvement  as  establislied  by  the  order  of  the  commis- 
sioners herein,  will  [not]  be  conducive  to  the  public  convenience  and 
welfare,  and  that  in  favor  of  or  against  the  establishment  of  the  same 
as  ordered  by  the  commissioners  herein. 


Foreman. 

FORM  OF  VERDICT  WHERE  DA]VIAGES  ARE  CLAIMED,  ETC. 
[Title] 

We,  the  jury,  duly  impaneled  as  such  in  the  above  case,  do  find  that 
the  granting  of  the  improvement  as  established  by  the  order  of  the  com- 
missioners herein,  will  be  conducive  to  the  public  convenience  and  welfare, 
and  we  find  in  favor  of  the  establishment  of  the  same. 

We  further  find  that  John  Jones  is  entitled,  as  compensation,  to  $ 

and   damages,   $ ,   total,   $ ;    and    Sam    Smith    is   entitled,   as 

compensation,  to  $ and  damages,  $ ,  total,  $ 

Foreman. 

Three-fourths  must  agree  on  all  matters  contained  in  the  ver- 
dict/°  and  they  must  find  for  the  entire  route,  not  part;  also 
must  find  on  each  person's  claim  for  both  compensation  and 
damages. 


§  1815.    Journal  entry  confirming  verdict,  etc. 

,  et  al.  \  County, 

vs.  f  Probate  Court. 
The  Board  of  Commissioners  of  C  Appeal  [or  consolidated  appeal] 
County  et  al.  /  from  County  Commissioners. 

This  day  came  the  parties  [by  their  attorneys],  and  the  jurors  whose 
names  are  attached  to  the  verdict  below,  having  been  heretofore  duly 
impaneled  and  sworn,  according  to  law,  and  having  been  sent  to  view  the 
premises,  came  again  into  court,  and  having  heard  the  evidence  and 
argument  of  counsel  [and  charge  of  the  court],  retired  for  deliberation; 
and  in  due  time  returned  into  court,  and  delivered  their  verdict  in  writing, 
which  was  received  by  the  court,  and  which  verdict  is  in  the  words  and 
figures  following,  to-wit: 

[Here   copy   verdict   entire.]      The   said   findings    and    said   verdict   are 

16  The     three-fourths     jury     law      road.     Smith  vs.  Craig,  40  0.  C.  C. 
applies    in    verdicts    assessing    the      544. 
value  of  land  taken  for  a  county 


l^^l  TAXING  COSTS  §  1816 

approved  and  confirmed,  and  the  court  finds  in  favor  of  said  improve- 
ment as  established  by  order  of  the  commissioners  herein;  and  thereupon 
this  cause  came  on  further  to  be  heard,  upon  questions  arising  touching 
the  taxing  ot  costs;  and  the  court,  being  advised  in  the  premises,  proceeded 
to  tax  the  costs  herein  as  follows: 

The  appellants,    ,  having  prevailed   in  all  matters   appealed  from 

by  them,  the  costs  are  taxed   in  their  favor,  and  against  the  defendants 

It   is  therefore   considered   that  the   said    ,    recover 

of  the  board  of  commissioners  of   County,  and   ..'....     their  costs 

herein  taxed  to  $ ' '   ' 

,  Probate  Judge. 

[Motion  for  new  trial,  etc.]  If  any  of  the  interested  par- 
ties desire  to  take  tlie  case  to  a  liigher  tribunal,  they  can  do 
so  on  all  matters  had  in  the  proceeding.  The  method  to  be 
pursiied  is  the  same  as  in  ordinary  jury  trials  had  in  the  Court 
of  Common  Pleas  in  proceedings  in  error. 

This  matter  of  procedure  is  fully  discussed  in  Bates'  Plead- 
ing and  Practice,  Sees.  805  to  842,  to  which  the  reader  is  referred, 

§  1816.  Record  of  proceedings  in  probate  court.  (§  6895.) 
The  probate  judge  shall  make  a  record  of  all  proceedings  be- 
fore him,  and  tax  the  costs  in  favor  of  the  prevailing  party 
and  again.st  the  losing  party.  If  more  than  one  matter  be 
appealed  from,  and  a  party  prevail  as  to  one  matter  and  lose 
as  to  another,  the  court  shall  determine  how  much  of  the  cosis 
each  party  shall  pay.  The  costs  on  motions  or  continuance  and 
the  like  shall  be  taxed  and  paid  as  the  court  directs. 

[Taxing  costs.]  If  there  are  several  persons  upon  the  side 
taxed  with  costs,  the  court  shall  apportion  the  co.sts  equitably 
among  them,  and  in  case  several  persons  are  interested  on  one 
side  of  the  case  and  part  of  them  fail,  the  court  sliall  make  such 
order  as  to  costs  as  he  .shall  deem  jiist  and  equitable.  In  cases 
not  hereinbefore  specifically  provided  for,  the  court  shall  render 
such  judgment  in  respect  to  costs  as  is  equitable,  and  the  county 
commissioners  shall  pay  any  costs  adjudged  against  them  out 
of  the  county  treasury.     [106  v.  586,  §  50.] 

§  1817.  Taxing"  costs.  In  these  matters  of  appeal  the  appel- 
lants are  plaintitfs  and  the  other  parties  in  interest  shall  be 
defendants.  Just  exactly  who  are  meant  by  "the  other  par- 
ties in  interest"  is  not  clear,  but  the  author  is  of  the  opinion 
that  it  Is  intended  to  mean  the  petitioners.  Especially  is  this 
true  if  the  commissioners  had  ordered  them  to  pay  the  com- 
pensation and  damages  assessed  in  favor  of  or  against  the 
appealing  landowners.  If  the  appellants  lose  on  all  proposi- 
tions, then  the  statute  is  clear  tliat  the  cost  must  be  taxed 
against  them;  if  appellants  prevail  on  all  matters,  the  costs 
would   need   to   be   taxed   against   tjie    commissioners   and    the 


§  1818  ROAD   APPEALS  1562 

petitioners.  The  statute  gives  no  rule  for  guidance,  whether 
in  such  cases  it  sliall  all  be  taxed  against  the  commissioners 
or  all  against  the  petitioners.  If  the  road  was  not  of  suffi- 
cient public  importance  to  justify  the  commissioners  in  issu- 
ing an  order  that  the  county  pay  the  costs  of  compensation 
and  damages,  and  the  court  is  of  the  opinion  that  the  com- 
missioners were  right  in  the  order  they  made,  then  the  court 
might  be  justified  in  assessing  all  the  costs  against  the  losing 
petitioners.  How^ever,  no  general  rule  can  be  laid  down;  the 
court  should  tax  the  costs  in  an  equitable  and  just  manner. 
If  the  road  was  of  sufficient  importance  to  justify  the  county 
in  paying  the  assessments  made  for  compensation  and  dam- 
ages, then  there  are  strong  reasons  for  the  court  to  assess  the 
costs  entirely  against  them. 

Then,  too,  as  the  petitioners  defendants  generally  employ 
counsel  and  assume  the  costs  in  that  direction,  there  may  be 
strong  equitable  grounds  for,  in  almost  every  case  where  de- 
fendants lose,  to  assess  a  portion  or  all  the  costs  against  the 
county. 

This  is  equally  true  in  a  case  where  an  appeal  is  made 
from  their  order  against  allowing  the  road.  The  author  re- 
members that  cnce  in  a  hotly  contested  ditch  case  where  the 
petitioners  bore  the  burden  of  the  costs  of  employing  counsel, 
a  considerable  sum,  and  they  lost,  all  the  costs  were  assessed 
against  the  county. 

§1818.  Enfcrcement  of  judgroeTit.  (§6896.)  Any  judg- 
ment rendered  by  the  probate  court  in  favor  of  any  party  in 
such  cause  may  be  enforced  by  execution  issued  out  of  the  pro- 
bate court  on  its  own  motion  or  at  the  instance  cf  the  persons 
entitled  to  said  judgment  or  a  part  thereof,  and  the  money 
when  collected  shall  be  paid  to  the  persons  respectively  entitled 
thereto.     [106  v.  586,  §  51.] 

[Comments.]  If  the  amounts  recovered  on  appeal  do  not 
exceed  the  amounts  that  had  been  allowed — in  the  aggregate 
— this  must  mean  the  aggregate  allowed  each  claimant,  and 
not  the  a-ggregate  to  all  claimants,  for  if  there  is  a  variance 
between  what  any  claimant  was  awarded  by  the  commissioners 
and  the  jury,  then  the  same  must  be  adjusted  by  the  commis- 
sioners, provided  the  county  does  not  pay  all  the  damages  and 
assessments. 


1563  ORDER  AS  TO  PAYMENT  OF  DAMAGES  §  1819 

Where  the  amounts  are  not  all  the  same,  the  auditor  should 
wait  for  action  by  the  commissioners  before  assuming  to  act 
under  this  section. 

§  1819.     Transcript  and  papers  certified  to  county  auditor. 

(§6897.)  The  probate  judge  shall  make  a  record  of  all  pro- 
ceedings had  in  the  probate  court,  and  after  the  termination 
of  such  proceedings,  or  at  the  conclusion  of  error  proceedings, 
if  error  be  prosecuted,  shall  certify  the  same  to  the  county 
auditor,  together  with  all  of  the  original  papers  filed  with  the 
probate  court  on  appeal.    [106  v.  586,  §  52.] 

§  1820.  When  orders  for  payment  of  compensation  and 
damages  shall  be  issued.  (§  6898.)  If  it  appears  1)y  the,  tran- 
script so  transmitted  to  the  county  auditor,  that  the  damages 
allowed  on  appeal  do  not  in  the  aggregate  exceed  the  amount 
assessed,  approved  and  ordered  paid  to  the  claimants  by  the 
county  commissioners,  then  the  auditor  shall  forthwith  make 
a  record  of  the  proceedings  had  on  appeal,  together  with  the 
proceedings  had  before  such  commissioners  prior  to  the  appeal, 
and  the  county  auditor  shall  issue  the  necessary  orders  for  the 
payment  of  compensation  and  damages  in  connection  therewith. 
Such  orders  shall  be  drawn  in  favor  of  claimants  for  the  amounts 
allowed  them  on  appeal  in  all  cases  where  appeal  is  taken  to 
the  probate  court.     [106  v.  587,  §  53.] 

§  1821.  Additional  compensation  and  damages,  how  deter- 
mined and  paid.  (§  6899.)  If  the  compensation  and  damages 
so  assessed  exceed  in  the  aggregate  the  amount  allowed  by  the 
commissioners,  the  county  auditor  shall  lay  the  papers  and  tran- 
script of  the  proceedings  before  the  county  commissioners  at 
their  next  meeting.  Thereupon,  the  county  commissioners  may 
order  said  improvement  established,  and  order  the  ailditioual 
compensation  and  damages  allowed  to  be  paid  out  of  the  county 
treasury,  or  they  may  order  such  additional  compen.«ation  and 
damages  to  be  paid  by  the  petitioners,  or  they  may  order  a 
portion  of  such  additional  compensation  and  damagis  paid  out 
of  the  county  treasury,  and  the  balance  thereof  by  the  peti- 
tioners. In  determining  whether  the  damages  so  allowed  on 
appeal  exceed  the  amount  of  the  aggregate  allowed  by  the  com- 
missioners, the  aggregate  amount  of  such  compensation  and 
damages  allowed  in  the  probate  court  on  appeal  in  favor  of  the 
appellants,  shall  be  added  to  the  compensation  and  damages 
awarded  to  the  claimants  who  did  not  appeal.  [106  v.  587,  §  54.] 

§  1822.  Order  as  to  payment  of  damages,  etc.  When  the 
auditor  receives  the  transcript  and  orders  of  the  court  he 
must,  at  the  next  meeting  of  the  commissioners,  lay  the  mat- 
ter before  them.     Whatever  adjustment  is  necessary  as  to  pay- 


§  1823  ROAD  APPEALS  1564: 

ment  of  the  extra  sums  allowed,  or  vice  versa  (for,  I  assume, 
there  will  be  cases  in  which  the  matter  will  work  the  other  way 
and  appellant  will  receive  less  than  the  commissioners  had 
awarded  him),  the  commissioners  should  take  up  the  matter  and 
make  such  orders  as  are  just  and  equitable.  From  this  order 
of  the  commissioners  there  seems  to  be  no  appeal,  nor  would 
the  order  be  interfered  with  on  proceedings  in  error  unless 
there  was  fraud  or  manifest  abuse  of  discretion. 


§  1823.    Form  of  Entry. 

[Title.} 

This  day  the  auditor  laid  the  papers  and  transcript  of  the  proceedings, 

had  in  the  above  matter,  before  the  Probate  Court  of County,  Ohio, 

before  the  commissioners,  and  it  appearing  that  the  amount  allowed 
appellants  is  greater  in  the  aggregate  than  tiie  sum  allowed  them  as 
compensation   and  damages,   before   the   commissioners,   it  is   ordered  that 

the  said  sum  of  $ which  is  the  sum  so  found  in  the  aggregate  in 

excess  of  that  found  by  the  commissioners,  be  paid  by  the  county  to  the 
extent  of  $ ,  and  the  petitioners   pay  the  balance,  to-wit :    $ 

That   the   sum   of    $ ,    including   that    made    by    former    order   of 

the   commissioners    in   this   action,   to-wit:    $ ,   and   the   above   sum 

of    $ ,    both    be    now    paid    by    tlie   county    and   that   the    petitioners 

pay   into  the   county   treasury   the  sum   of   $ ,   including   that   made 

by  the  former  order  of  the  commissioners  herein,  to-wit:   $ and  the 

above  sum  of  $ ,  within  ten  days  from  this  date. 

That  upon  the  payment  of  the  sum  above  ordered  paid  by  the  pe- 
titioners, the  auditor  is  ordered  to  draw  an  order  on  the  county  treasurj' 

for  the  sum  of  $ ,  compensation  and  damages  awarded  John  Jones, 

and  the  sum  of  $ ,  compensation  and  damages  awarded  Sam  Smith ; 

and  tliat  upon  the  payment  of  said  sums  and  the  issuance  of  such  orders, 
it  is  ordered  and  directed  that  tlie  said  road  petitioned  for  in  this  pro- 
ceeding be,  and  the  same  is  established  and  the  county  highway  superin- 
tendent is  ordered  and  directed  to  open  the  same,  in  such  manner  as  in  his 
judgment  is  wise  and  as  provided  by  law. 

And  it  is  further  ordered  that  the  auditor  make  a  full  and  complete 
record  of  the  proceedings  had  in  this  matter,  including  those  had  before 
the  commissioners  and  the  Probate  Court.  The  same  to  be  made  in  the 
Road  Record  of  this  county. 

§  1824.  Procedure  when  proceedings  for  appropriation  of 
land  abandoned.  (§  6900.)  The  county  commissioners  may 
abandon  the  proceeding  for  the  appropriation  of  lands  for  any 
such  improvements  as  aforesaid,  upon  paying  into  the  pro- 
bate court  the  amount  of  the  appellant's  costs  and  expenses, 
and  attorney  fees  as  fixed  and  determined  by  the  court,  and 
the  court  is  hereby  empowered  to  fix  and  determine  the  same. 
In  case  the  county  commissioners  fail  to  pay  the  compensation 
and  damages  awarded  to  appellants  within  thirty  days  after 
confirmation  of  the  verdict,  on  motion  of  any  party  entitled  to 
such  payment,  the  judge  shall  enter  an  order  directing  the 
county  commissioners  to  make  such  payment,  or  deposit  the 
same  with  the  court  within  ten  days,  and  unless  the  county 
commissioners   within    the   time   fixed   make    such    payment    or 


1565  ABANDONMENT  §  1825 

deposit,  they  shall  be  held  thereby  to  have  abandoned  the  prop- 
erty, rights  or  interests  sought  to  be  appropriated,  and  all  claims 
under  said  proceedings,  and  the  judge  shall  so  order. 

[Judgment  against  commissioners.]  He  shall  also  enter  a 
judgment  against  such  commissioners  and  in  favor  of  the  parties 
entitled  thereto  for  the  amount  of  costs,  expenses,  and  attorney 
fees,  as  the  court  may  deem  just,  for  which  execution  may  be 
issued  as  in  other  cases.  In  case  the  county  commissioners 
abandon  the  improvement  contemplated  by  the  proceedings,  they 
shall  so  order  upon  their  journal;  provided,  however,  that  in 
case  error  is  prosecuted  to  the  proceedings  had  in  the  probate 
court,  the  probate  court  shall  make  no  order  in  respect  to  the 
payment  or  deposit  of  the  amount  allowed  as  compen.sation, 
damages,  costs  or  attorney  fees,  until  such  error  proceedings 
have  been  finally  determined.     [106  v.  587,  §  55.] 

§  1825.  Abandonment,  etc.  The  commissioners,  and  through 
them  the  petitioners  may  abandon  the  proceedings,  even  after 
verdict  is  had  and  judgment  rendered,  provided  they  pay  the 
costs  and  attorneys'  fees  as  jixed  by  the  court;  that  is,  if  the 
commissioners  and  the  other  parties  interested  as  defendants  feel 
that  the  improvement  is  not  worth  the  cost,  which  they  must 
pay,  they  can  drop  the  matter. 

This  is  abandonment  by  positive  action  on  their  part. 

The  other  way  is  when  they  fail  to  pay  the  damages  and 
compensation  awarded,  an  interested  party  may  invoke  the  order 
of  the  court,  and  unless  the  damages,  etc.,  are  paid  within  ten 
days,  the  proceedings  shall  be  held  to  be  abandoned. 

In  ease  error  is  prosecuted  no  order  of  abandonment  can  be 
made  until  the  proceedings  in  error  have  been  finally  terminated. 

§1826.  Fees  and  compensation  of  officers.  (§6001.)  For 
their  .services  required  on  appeal  tlie  officers  and  other  per- 
sons herein  mentioned  shall  be  entitled  to  the  fees  and  com- 
pensation which  they  are  entitled  to  by  law  for  like  services 
in  other  cases.  The  persons  appointed  by  the  court,  if  any, 
to  show  the  premises  to  the  jury,  shall  receive  such  compen- 
sation as  the  court  may  direct,  and  the  same  shall  be  taxed 
with  the  other  costs  in  the  case.     [106  v.  588,  §  56. j 

§  1827.  Procedure  after  judgment  establishing  improve- 
ment. (§  6902.)  If  an  appeal  is  taken  from  the  order  of  the 
commissioners  dismissing  or  refusing  to  grant  the  prayer  of  the 
petition,  and  the  jury  find  in  favor  of  sucli  improvement,  the 
probate  court  shall  render  judgment  establishing  sucli  improve- 
ment, unless  a  new  trial  is  granted  by  the  probate  court,  and 


§  1828  ROAD   APPEALS  1566 

the  said  improvement  shall  henceforth  be  established  unless  the 
judgment  of  said  court  be  reversed  by   proceedings   in  error. 

[jflatted  and  surveyed.]  The  commissioners  shall  there- 
upon take  the  necessary  steps  to  have  said  improvement  plat- 
ted and  surveyed,  and  shall  proceed  in  the  manner  hereinbe- 
fore provided  to  have  the  compensation  and  damages,  on  ac- 
count of  said  improvement  determined. 

[Notice  for  compensation.]  The  commissioners  shall  give 
notice  as  hereinbefore  provided  of  the  time  of  hearing  on  the 
questions  of  compensation  and  damages,  and  all  proceedings 
shall  thereafter  be  had  as  if  no  appeal  had  been  taken.  [106 
V.  588,  §  57.] 

§  1828.  Reversal  of  order  dismissing  proceedings.  This  sec- 
tion is  applicable  when  the  appeal  was  had  from  an  order  of 
the  commissioners  dismissing  the  petition.  If  the  jury  find 
for  the  improvement,  that  is,  that  it  will  be  conducive  to  the 
public  convenience  and  welfare,  and  the  proceedings  are  cer- 
tified back  to'  them,  then  the  commisioners  order  the  sur- 
veyor to  plat  and  survey  the  same  just  the  same  as  they 
would  have  done  had  they  under  §  6  considered  that  said  im- 
provement was  of  sufficient  public  importance  to  justify  the 
same.  In  this  order  they  shall  fix  the  time  and  place  for  hearing 
of  claims  for  compensation  and  damages,  and  shall  give  notice 
as  required  in  Sec.  6871. 

An  appeal  may  be  had  on  the  orders  that  the  commissioners 
make  on  compensation  and  damages,  but  there  having  been  one 
appeal  on  the  question  of  the  granting  of  the  improvement,  no 
further  appeal  on  that  question  is  permitted. 

§1829.  Appeal;  limitation.  (§6903.)  An  appeal  may  be 
taken  from  the  order  of  the  commissioners  upon  the  questions 
of  compensation  and  damages  when  said  improvement  is  estab- 
lished by  the  verdict  of  the  jury  upon  appeal.  But  no  further 
appeal  can  be  taken  upon  the  question  of  whether  the  improve- 
ment will  be  conducive  to  the  public  convenience  and  welfare. 
[106  V.  588.  §  58.] 

§  1830.  Review  of  judgment  of  probate  court.  ( §  6904. )  The 
final  judgment  of  the  probate  court  may  be  reviewed  by  proceed- 
ings in  error  as  in  other  cases.  If  error  is  prosecuted  to  the 
judgment  of  the  probate  court,  the  county  commissioners  may 
enter  upon  the  land  appropriated  by  first  paying  into  the  court 
for  the  use  of  the  appellants,  the  amount  of  the  judgment  in 
their  favor  with  the  proportion  of  the  costs  and  expense  of 
said  proceedings  adjudged  against  the  county,  and  at  the  same 
time,  the  commissioners  shall  pay  to  those  persons  who  did  not 


1567  PROCEEDIXCS  AFTER   TRIAL  §  1831 

appeal,  the  amount  of  compensation  and  damages  allowed  such 
persons;  provided,  however,  if  an  appeal  has  been  taken  to  the 
probate  court  involving  the  question  of  whether  said  improve- 
ment will  promote  the  public  convenience  and  welfare,  such 
commissioners  shall  not  enter  upon  .said  land  until  said  pro- 
ceedings are  finally  disposed  of.      [106  v.  588,  §  59.]  ^^ 

§  1831.  Proceedings  after  trial.  There  is  no  appeal  from 
the  Probate  Court  to  any  higher  court;  if  any  person  desires 
to  litigate  farther  he  must  do  so  by  petition  in  error.  If  the 
county  is  to  pay  all  the  compensation  and  costs,  or  if  the 
petitioners  have  paid  in  the  sum  ordered  to  be  paid  by  them, 
the  commissioners  may  order  that  payment  be  made  to  claim- 
ants, who  are  not  prosecuting  error,  the  sums  found  due  them 
for  compensation  and  damages,  and  paying  into  court  the  sums 
found  due  those  prosecuting  error,  and  then  enter  upon  the 
lands  appropriated  and  order  the  road  opened.  The  following 
might  serve  as  an  entry  for  the  commissioners  "to  make: 

§  1832.     Form  of  Entry. 

[Title.] 

It  appearing  in  the  above  matter  that  C.  D.  and  E.  F.,  claimants  of 
compensation  and  damages,  have  prosecuted  error  from  the  findings  of 
the  Probate  Court  to  tlie  Court  of  Common  Pleas,  and  that  the  money  ia 
now  in  tlie  county  treasury,  tlie  petitioners  liaving  paid  the  sum  ordered 
paid  by  tliem,  and  it  appearing  further  that  said  improvement  sliouM  be 
establislied   and   said   road   opened   to   tlie   public,   it   is   ordered  that  the 

auditor  draw  a  warrant  on  the  county  treasury  for  the  sum  of  $ 

in  favor  of  G.  H.  and  the  sum  of  $ in  favor  of  I.  K.,  the  several 

sums  due  them  as  compensation  and  damages,  they  being  persons  wlio  are 
not   prosecuting   error;    and   that   said    auditor   draw   a   warrant   on   the 

county  treasury  in  favor  of  the  Probate  Judge  for  the  sum  of  $ ,  the 

same  being  the  total  amount  heretofore  awarded  in  this  matter  to  C.  D. 
and  E.  F.,  as  compensation  and  damages  herein,  tliey  being  persons  now 
prosecuting  error  to  the  Court  of  Common  Pleas,  including  therein  all 
costs  and  expenses  herein  adjudged  against  the  commissioners  and  the 
petitioners.  And  it  is  further  ordered  tliat  upon  the  auditor's  compliance 
with  this  order,  tliat  the  county  superintendent  of  highwavs  in  this  county 
enter  upon  the  lands  herein  approi)riated  for  said  road  and  open  the  same 
to  the  public,  and  the  improvement  herein  petitioned  for,  be  and  is  hereby 
established  as  a  road  for  the  uses  and  purposes  prescribed  by  law. 

If  the  only  question  involved  in  the  appeal  to  the  Probate 
Court  was  whether  the  improvement  was  conducive  to  tlie  pub- 
lic convenience  and  welfare,  then  the  commissioners  could  not 
enter  upon  the  lands  until  this  question  was  finally  disposed  of. 

The  same  rule  would  no  doubt  apply  whore  this  question  was 
one  of  the  matters  appealed  from,  if  error  was  prosecuted  on 
this  question. 

17  §  6904. 


§1833 


CONDEMNATION,   ETC.,    FOR   ROAD  BUILDING 


1568 


CHAPTER  XCYII 
CONDEMNATION  OF  MATERIALS  FOR  ROAD  BUILDING. 


§  1833. 


§  1S34. 

§  1835. 
§  1836. 
§  1837. 
§  1838. 


§  1839. 
§  1840. 
§  1841. 


(7214)  Power  to  purchase 
materials  and  appropriate 
land:   application  to  court. 

Condemnation    of    road   ma- 
terial. 
What  may  be  condemned. 
Resolution  to  appropriate. 
Application  to  probate  judge. 

(7215)  Xotice  to  land- 
owner; how  served;  con- 
tents. 

Proceedings  in  probate  court. 
Xotice  to  landowner. 

(7216)  Appointment  of  ap- 
praisers ;  assessment  of 
value  and  damage. 


§  1842. 

§  1843. 
§  1844. 


§  1845. 
§  1846. 
§  1847. 
§  1848. 

§  1849. 


Entry       appointing       ap- 
praisers. 
Report  of  award. 

(7217)  Copies  of  award  to 
commissioners  and  owners; 
summoning  jury. 

Entry  of  return  of  award. 
Form  of  appeal  bond. 
Costs  and  expenses. 

(7218)  Bond  when  jury 
trial  requested. 

(7219)  Date  and  conduct  of 
trial. 


§1833.  Power  to  purchase  materials  and  appropriate  land; 
application  to  court.  (§7214.)  The  county  commissioners  or 
township  trustees  may  contract  for  and  purchase  such  mate- 
rial as  is  necessary  for  the  purpose  of  constructing,  improv- 
ing, maintaining  or  repairing  any  highways,  bridges  or  cul- 
verts within  the  county,  and  also  appropriate  additional  land 
necessary  for  cuts  and  fills  together  with  a  right  of  way  to 
or  from  the  same  for  the  removal  of  material.  If  the  county 
commissioners  or  township  trustees,  and  the  owner  of  such 
material  or  land,  can  not  agree  on  the  price  therefor,  the  county 
commissioners  or  township  trustees  may  apply  to  the  probate 
court  or  common  pleas  court  of  the  county  in  which  the  same  is 
located,  and  on  receipt  of  such  application,  the  court  shall  pro- 
ceed to  assess  the  value  of  the  material  or  right  to  be  appropriated 
in  the  manner  hereinafter  provided.     [106  v.  645,  §  230.] 

§  1834.  Condemnation  of  road  material.  Private  property 
shall  remain  inviolate,  but  ever  subservient  to  public  welfare. 
The  appropriation  of  private  property  to  the  building  and  re- 
pairing of  roads  is  a  public  use;  however,  in  all  such  cases, 
before  the  property  can  be  taken,  compensation  must  be  made 
to  the  owner,  and  unless  the  price  be  agreed  upon,  the  owner 
has  a  right  to  have  a  jury  fix  the  value  of  the  same. 


I 


1569  WHAT  MAY  BE  CONDEMNED  §  1835 

The  commissioners  or  trustees,  as  the  case  may  be,  dependent 
upon  the  fact  which  body  desires  the  material,  etc.,  are  to 
determine  the  necessity  of  condemning  the  same,  and  their  judg- 
ment will  not  be  reviewed  or  disturbed,  in  the  absence  of  fraud 
or  gross  abuse  of  discretion. 

Three  things  should  be  done  before  appropriation  proceedings 
are  begun: 

First.  An  investigation  should  be  made  and  the  advice  of 
the  county  highway  superintendent  acquired  as  to  whether  the 
property  is  suitable  and  proper  for  the  purpose  desired,  and 
how  much  should  be  acquired,  and  its  probable  value. 

Second.  An  attempt  should  be  made  to  buy  it  from  the 
owner  at  an  agreed  price. 

Third.  A  resolution  should  be  passed  determining  to  appro- 
priate the  same.  In  all  these  matters  the  minutes  should  show 
a  call  aye  and  nay  vote. 

§  1835.  What  may  be  condemned.  "Whatever  the  commis- 
sioners or  trustees  determine  is  necessary,  for  the  purpose  of 
constructing,  improving,  maintaining  or  repairing  any  high- 
way, bridge  or  culvert  within  the  county,  may  be  taken ;  also 
when  additional  land  is  required  to  make  a  cut  or  a  fill,  it 
may  be  condemned,  as  well  as  a  right  of  way  from  the  land 
condemned,  to  a  public  highway.  These  statutory  provisions 
seem  to  be  broad  enough  to  cover  everything  that  may  be 
necessary  or  proper  to  be  acquired  for  road  building  or  main- 
tenance purposes.  The  lands  of  neither  a  cemetery  nor  pub- 
lic institution  can  be  condemned.  It  is  probable  although  the 
statute  is  not  very  clear  that  all  that  can  be  appropriated  is  an 
easement  in  the  land,  to  take  from  it  all  such  material  as  the 
trustees  may  need  or  desire  for  road  purposes. 

§  1836.    Resolution  to  appropriate. 

Whereas    in    the   judgment   and   opinion   of   the    commissioners 

of  county  [or  trustees  of  county],  it  is  necessary  to  ac- 
quire [here  describe  land,  material,  etc.,  desired  for  the  purjjose  of  con- 
structinfr,  improving  and  repairing  the  highways  of  this  county  |,  and  tliey 

are  unable   and   can   not  agree  with    the  owner  tlicrcof,   as   to  the 

price  to  be  paid.  Therefore,  be  it  resolved  by  the  commiHsioners  \or 
trustees]  that  it  is  deemed  necessary,  and  that  it  is  intended  by  said 
board  to  condemn  said  property,  and  that  said  board  does  liercl)y  condemn 
and  appropriate  for  the  purpose  of  [here  state  purpose]  the  following 
described  property,  to-wi< :  [here  describe]  and  it  is  ordered  that  an 
application  be  filed  with  the  probate  judge  of  this  county  to  proceed  under 
the  statute  laws  of  this  state  to  have  the  same  appropriated  for  the  uses 
and  purposes  above  declared  and  allowed  by  law. 


§  1837  CONDEMNATION,   ETC.,   FOR   ROAD   BUILDING  1570 

§  1837.    Application  to  probate  judge. 

To  tbe  Hon ,  Probate  Judge  of County,  Ohio ; 

On  the   day  of    ,   19.,.,  a  resolution  was  duly  passed  by 

this  board,  a  copy  of  which  is  as  follows  [here  insert  resolution]  and 
they  hereby  make  application  and  petition  the  court  to  proceed  to  assess 
the  value  of  the  property,  etc.,  sought  to  be  appropriated,  as  provided 
by  law. 


Commissioners  of County,  Ohio. 

§1838.  Notice  to  landowner;  how  served;  contents. 
(§7215.)  Upon  the  filing  of  such  application,  an  order  shall 
be  made  by  the  court,  directing  that  notice  in  writing  be  served 
by  the  county  commissioners  or  township  trustees  upon  the 
person  or  persons  whose  property  is  sought  to  be  appropriated, 
that  at  a  day  fixed  which  shall  not  be  less  than  ten  days  there- 
after, appraisers  will  be  appointed  to  assess  the  value  of  the 
same.  Such  notice  shall  contain  a  description  of  the  property 
or  rights  sought  to  be  appropriated,  state  the  use  to  which  it 
is  to  be  put  and  the  time  when  such  appraisers  will  be  appointed. 
[105  V.  646,  §231.] 

§  1839.  Proceedings  in  probate  court.  "When  the  applica- 
tion is  filed  in  the  Probate  Court,  the  case  should  be  docketed' 
styling  the  case  with  the  commissioners,  etc.,  as  plaintiff,  and 
the  landowner  defendant,  and  an  entry  should  be  put  on  order- 
ing notice  to  be  given  that  on  a  certain  day  appraisers  will  be 
appointed  to  assess  the  value  of  the  property  to  be  appropriated. 
The  time  for  naming  the  appraiser  must  be  within  ten  days  from 
the  time  the  application  is  filed. 

EXTRY  ORDERING  NOTICE. 

Commissioners  of ■\ 

County,  Ohio,  Plaintiff,     /  p^^^^^^  ^^^^^^ bounty,  Ohio. 

,  Defendant.  ) 

This    day   came  the   commissioners   of    county  and   filed  lierein 

their  application  for  the  appointment  of  appraisers  to  assess  the  value 
of  certain  property  in  said  application  described,  and  the  court  fixes  the 

......    day  of    ,   19.  . .,  at   10  a.  m.,  as  the  day  upon  which  three 

disinterested  persons  will  be  appointed  to  assess  the  value  of  the  property 
appropriated,  and  also  assess  the  damage,  if  any,  that  will  accrue  to  the 

owner  by  the  removal  of  said through  his  premises,  and  it  is  ordered 

that  notice  be  given  by,  the  commissioners  to  said the  person  whose 

property  is  sought  to  be  appropriated,  of  the  time  so  fixed  for  the  appoint- 
ment of  said  appraisers,  and  that  said  notice  shall  contain  a  description 
of  the  property  sought  to  be  appropriated,  and  state  the  use  to  which  it 
is  to  be  put. 

Said  notice  shall  be  served  upon  said by  the  commissioners  through 

the  county  auditor,  by  mailing  the  same  in  a  registered  letter  to  bis  last 
known  address,  within  three  days  after  the  order  is  made,  and  this  cause 
is  adjourned  to  said day  of ,  19. . . 


1571  NOTICE  TO  LANDOWNER  §  1840 

§1840.  Notice  to  landowner.  This  notice  must  be  served 
on  the  landowner  by  the  commissioners  or  some  person  author- 
ized by  them. 

The  statute  does  not  fix  how  the  notice  shall  be  given;  it 
is  a  general  rule  where  the  statute  does  not  fix  the  manner 
of  service  that  the  court  may  do  so.  A  very  good  way  is 
to  send  the  same  by  registered  letter,  and  have  the  commis- 
sioners file  a  copy  of  the  notice,  with  the  statement  that  it 
was  mailed  on  a  certain  day,  and  also  the  card  cf  its  receipt, 
signed  by  the  owner.    Of  course,  the  notice  must  be  in  writing. 

FORM  OF  NOTICE. 

To 

Yoii  are  hereby  notified  tliat  on  the   day  of   ,  19...,  tlie 

commissioners  of    county,  did  file  in  the  Probate  Court  of   

County,  Ohio,  tlieir  application  to  appropriate  the  following  described 
property  [here  describe  fully],  the  said  property  to  be  used  for  [here  state 

fully  use  to  wliich  it  is  to  be  put]  and  the  court  has  fixed  the   day 

of  ,  10...,  at  10  a.  m.  as  the  time  when  three  disinterested  free- 
holders of  the  county,  will  be  appointed  to  assess  tlie  value  of  the  property 
appropriated,  and  also  assess  tlie  value  of  the  damages  that  will  accrue 
to  your  property  by  removal  of  same  through  your  lands. 


Commissioners  of County, 

By ,  Auditor. 

§  1841.  Appointment  of  appraisers ;  assessment  of  value  and 
damage.  (§7216.)  Upon  the  day  so  fixed,  the  court  before 
which  such  application  is  filed,  shall  appoint  three  disinterested 
freeholders  cf  the  county,  who,  after  being  duly  sworn  to  im- 
partially assess  the  value  of  the  material  or  right  to  be  appro- 
priated, shall  enter  upon  the  premises  of  the  owner  and  assess 
the  value  thereof.  They  shall  also  assess  the  damages,  if  any, 
that  will  accrue  to  the  owner  by  the  removal  of  the  material 
through  his  premises,  and  within  ten  days  after  their  appoint- 
ment, they  shall  return  their  award  to  the  court.  [IGG  v.  fi4G, 
§  232.] 

§  1842.    Entry  appointing  appraisers. 

[Title.] 

This  day  this  cause  came  on  for  hearing  upon  the  matter  of  appoint- 
ing of  appraisers,  and  the  court  finds  tliat has  been  duly  and  h-galiy 

notified  of  the  day  fixed  by  tlie  court,  for  tlie  appointment  of  three  ap- 
praisers, as  required  by  law  and  the  former  orders  of  the  court. 

After  due  consideration  thereof,  ihe  court  appoints    ,    and 

,  throe  disinterested  freeholders  of  the  county,  to,  after  being  duly 

sworn,  enter  upon  the  premises  of  the  said    and  assess  tlie  value 

of  the  property  appropriated,  and  asseps  the  damages  that  may  nrerue, 
to  the  remaining  property,  and  they  shnll  make  return  to  this  court  within 
ten  days  from  this  date  of  their  proceedings  hereunder. 


§  1843  CONDEMNATION,   ETC.,   FOR   ROAD   BUILDING  1572 

NOTICE  AXD  AWARD  OF  APPRAISERS. 

, and   will  take  notice  that  on  the   day  of 

,   19...,  tliey  were  appointed  to   assess   the   value   of    [here   insert 

description  of  property  appropriated],  by  the  commissioners  of  [or 
trustees]  sought  to  be  appropriated  in  their  application  filed  in  this  court. 
You  will,  after  being  first  duly  sworn,  enter  up  the  premises  of  the  said 
,  owner  thereof,  and  assess  the  true  value  of  the  property  ap- 
propriated, also  damages  that  may  accrue  to  his  remaining  property  by 
use  of  

You  will  make  due  return  of  your  proceedings  hereunder,  within  10 
days  from  this,  the day  of ' ,  19 . . . 

Probate  Judge  of County,  Ohio. 

OATH. 

State  of  Ohio,  County,  ss. : 

,    and    do   hereby  swear  that  they  will  faithfully 

and  impartially  fix  the  value  of  the  property  sought  to  be  appropriated 
by  the  commissioners  [or  trustees]   in  a  proceeding  pending  in  the  Probate 

Court  of   County,  Ohio,  now  belonging  to   and  the  damages 

that  may  accrue  therefrom,  to  the  best  of  their  ability. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this 
day  of ,  19. . . 


§  1843.    Report  of  award. 

The  undersigned  respectfully  report  that  on  the   day  of    , 

19...,  after  being  duly  sworn,  they  did  enter  upon  the  premises  of  the 
said  and  did  view  and  appraise  the  property  sought  to  be  ap- 
propriated herein,  as  directed  in  the  application  of  the  commissioners  of 

county,  filed  in  the  Probate  Court,  and  the  damages  that  might 

result  from  appropriation  to  said : 

And  we  do  find  and  assess  the  value  of  the  property  sought  to  be  ap- 
propriated of   herein  at  $ and  the  damages,  etc.,   at 


Appraisers. 

§  1844.  Copies  of  award  to  commissioners  and  owners ;  sum- 
moning jury.  (§  7217.)  The  court  upon  the  return  of  the 
award  shall  forthwith  furnish  the  county  commissioners  with 
a  copy  thereof,  and  also  furnish  a  copy  to  each  owTier  of  the 
material  or  right  which  it  is  sought  to  appropriate.  There- 
upon, if  either  party  within  three  days  after  such  copy  is 
furnished  requests,  the  court  shall  cause  a  jury  to  be  sum- 
moned in  the  manner  provided  in  the  statutes  relating  to  ap- 
peals in  road  cases.  If  neither  party  requests  the  court  to 
summon  a  jury,  the  court  shall  forthwith  render  judgment 
for  the  amount  of  compensation  and  damages  awarded  by  the 
appraisers  aforesaid,  and  order  that  upon  payment  of  such  sum 
and  costs,  to  be  taxed  by  the  court,  the  county  commissioners] 


1573  FORM  OF  APPEAL  BOND  §  1845 

or  township  trustees  may  enter  upon  such  lauds  and  remove 
such  material  and  enter  into  possession  of  such  rights  or  ease- 
ment as  may  have  been  appropriated.     [106  v.  646,  §  233.] 

§  1845.    Entry  of  return  of  award. 

[Title.] 

This  day  came  the  appraisers  heretofore  appointed  in  this  ease  and 
filed  herein,  their  award  of  the  value  of  the  property  sought  to  be  ap- 
propriated in  this  proceedings,  and  it  is  ordered  that  a  copy  thereof  be 
furnished  to  the  commissioners  [or  township  trustees]  and  a  copy  to 
the  landowner  of  the  land  (or  material]  appropriated. 


ENTRY  OF  JUDG]\IEXT. 
{Title.} 

This  matter  came  on  further  to  be  heard  and  the  court  finds  that  a 
copy    of    the    award    made    by    the    appraisers    heretofore    appointed    and 

filed   in  this  court  was  duly  furnished  to    and   to    on  the 

day  of   ,  19. . .,  and  three  days  having  elapsed,  and  neither 

the  said  nor  the  said  having  requested  a  jury  to  be  sum- 
moned, judgment  is  rendered  against  said for  $ compensation 

and  for  $ damages,  a  total  of  $ ,  and  the  costs,  amounting 

to  $ in  favor  of    ,  and   it   is   further  ordered  upon   payment 

of   the   said   sum   $ ,  the  amount   awarded  to    and  the  costs 

herein  taxed  by  the  court,  the  said  commissioners  [or  trustees]  may  enter 
into  possession  of  the  property  appropriated,  and  enjoy  and  use  the  same 
for  the  purposes  and  uses  as  in  their  application  herein  filed,  set  forth. 


ENTRY  WHERE  REQUEST  FOR  JURY  IS  MADE. 
[Title.] 

This  day  this  matter  came  on  further  to  be  heard  and  the  court  finds 
that  a  copy  of  the  award  made  by  the  appraisers,  heretofore  appointed, 

and  filed  in  this  court,  was  duly  furnished  to   and   ,  (m  the 

day  of    ,   19...,  and  within  three  days  after  the  same  was 

so  furnished  to  the  said ,  he  appeared  in  court  and  requested  that 

a  jury  be  summoned  to  fix  the  value  of  the  property  sought  to  be 
appropriated,  in  the  manner  provided  in  the  statutes  relating  to  appeals 
in  road  cases,  and  it  is  therefore  ordered  that  the  amount  of  the  ajjpeal 

bond   be    fixed   at   $ ,   conditional    that   the   said    shall    pay 

all  the  costs  and  expenses  of  said  trial,  in  case  he  fails  to  recover  more 
at  the  hands  of  such  jury  than  the  amount  fixed  by  the  appraisers. 

§  1846.    Form  of  appeal  bond. 

Know  All  Men  by  thesk  Presents,  That  we,  A.  S.,  L.  R.  and  M.  R.  of 

County,  Ohio,  are  lield  and  firmly  bound  unto  tlie  State  of  Oliio, 

for  the  use  of  county,  in  the  sum  of  dollars,  to  the  pay- 
ment of  which  we  jointly  and  severally  bind  ourselves,  our  heirs,  executors 
and  administrators,  by  these  presents: 

•Signed  bv  us  at ,  on  the day  of ,  19 .  . . 

The  condition  of  the  above  obligation  is  such  that  whereas  the  said 
A.  S.  et  al.,  appeal  from  the  awards  of  the  appraisers  fixing  the  compensa- 
tion of  land  and  materials  taken,  and  damages  thereon  to  him  awarder! 
has  requested  a  jury  trial  of  the  same. 

Now  if  the  said  A.  S.  et  al,  shall  pay  all  the  costs  and  expcnseH  of 
said  trial  in  case  he  fails  to  recover  more  than  tlie  nmnunt  fixed  b,\ 
the  appraisers  in  their  said  award   and  judgment  that  may  l)e  rendcr-rl 


§  1847  CONDEMNATION,   ETC.,   FOR   ROAD  BUILDING  1574 

against  them  for  the  same,  then  the  obligation  shall  be  void;  otherwise 
to  be  and  remain  in  full  force  and  effect. 


§  1847.  Costs  and  expenses.  The  statute  does  not  indicate 
who  shall  pay  the  costs  of  the  proceedings  in  the  Probate  Court 
prior  to  the  jury  trial,  and  the  matter  no  doubt  rests  in  the 
discretion  of  the  Probate  Court.  Generally  in  condemnation 
cases  the  costs  of  the  trial  in  the  first  instance  is  taxed  against 
the  party  condemning,  the  idea  being  that  that  should  be  done 
so  that  the  property  owner  may  get  the  full  value  of  the  prop- 
erty condemned,  and  I  see  no  reason  why  the  rule  should  not 
be  followed  here.  If  either  party  appeals  and  dees  not  succeed 
in  getting  a  better  verdict  than  the  award  of  the  appraisers, 
such  party  is  taxed  the  costs  caused  by  the  appeal.  The  fees 
of  the  appraisers  are  not  fixed  by  statute ;  probably  a  fair  rule 
to  follow  would  be  that  allowed  to  ordinary  appraisers  of  real 
estate,  to-wit,  $2  per  day.  The  court  might  increase  this  if  it 
thinks  proper  so  to  do. 

The  remainder  of  the  proceedings  is  similar  to  that  ill  road 
appeals  and  the  condemnation  of  property. 

§  1848.  Bond  when  jury  trial  requested.  (§  7218.)  In  ease 
an  owner  of  land  or  material  sought  to  be  appropriated,  re- 
quests a  jury  trial,  the  court  shall  fix  the  amount  of  bond 
which  shall  be  given  by  the  party  making  such  request,  and 
such  bond  shall  be  conditioned  that  the  party  requesting  such 
jury  trial  shall  pay  all  costs  and  expenses  of  said  trial  in  case 
he  fails  to  recover  more  at  the  hands  of  the  jury  upon  such 
trial  than  the  amount  fixed  by  the  appraisers  heretofore  pro- 
vided for.     [106  V.  646,  §  234.] 

§1849.  Date  and  conduct  of  trial.  (§7219.)  In  all  cases 
where  a  jury  trial  is  requested  the  court  shall  forthwith  after 
the  drawing  of  such  jury,  fix  a  date  for  such  trial,  which 
shall  not  be  more  than  twenty  days  thereafter,  and  such  trial 
shall  be  conducted  in  all  respects  as  is  provided  in  appeals  in 
road  cases,  and  in  all  matters  not  covered  by  the  practice  re- 
lating thereto  the  ordinary  rules  governing  similar  matters 
shall  apply.     [106  v.  646,  §  235.] 


1575 


DITCH  CONSTRUCTION  AND  APPEAL 


§1850 


CHAPTER  XCYIII 

APPEAL  IN  CONSTRUCTION  OF  DITCHES,  SINKHOLES, 

LEVIES,  ETC. 


§  1850.  Ditcli  construction  and  ap- 
peal. 

§  1851.  What  deemed  final  order 
(§6473). 

§  1852.  Final  order. 

§1853.  Who  may  appeal    (§6474). 

§  1854.  Persons  that  may  appeal. 

§  1855.  Notice  of  appeal. 

§  1856.  Form  of  notice  of  appeal. 

§  1857.  Perfection  of  appeal 
(§6475). 

§  1858.  Bond. 

§  1859.  Statement  to  be  filed  in 
court  of  common  pleas,  etc. 

§  1860.  Form  of  statement. 

§  1861.  Auditor  to  file  transcript 
(§6476). 

§  1862.  Filing  transcript. 

§  1863.  Issue;  how  determined. 

§  1864.  Trial  governed  by  rule  in 
civil  cases  (§  6477). 

§  1865.  Trial  by  the  court. 

§  1866.  Trial  by  jury. 

§  1867.  View  of  location  by  jury 
(§6478). 


§  1868.  Verdict  by  jury  (§6479). 

§  1869.  Matters  pertaining  to  ver- 
dict. 

§  1870.  Judgment;  motion  for  new 
trial   (§6480). 

§  1871.  Xew  trial,  etc. 

§  1872.  Transcript  after  judgment 
(§6481). 

§  1873.  Proceedings  in  erron 
(§6482). 

§  1874.  Proceedings  shall  not  sus- 
pend construction  (§  6483). 

§  1874a.Stay  of  proceedings. 

§  1874b.When  Owner  may  recover 
tax  paid,  etc.   (§6484). 

§  1874c.Claims  from  owner  not 
having  notice. 

§  l874d.Evidence  in  action  to  re- 
cover taxes,  etc.   ( §  6485 ) . 

§  1874e.Action  in  proceedings  to  en- 
join. 

§  1874f.Xot  enjoined  for  error; 
when   (§6486). 

§  1874g.When  injunction  will  not  lie. 


§  1850.  Ditch  construction  and  appeal.  The  first  general 
law  for  the  construction  of  public  ditches  gave  the  jurisdiction 
to  township  trustees.^  Later  this  act  was  repealed  and  juris- 
diction was  given  to  the  county  commissioners.-  And  still  later 
jurisdiction  was  restored  to  the  trustees,^  and  from  the  time  of 
the  last  above  act,  1862,  until  the  present  law  of  1919,  Vol.  108 
V.  926,  both  the  county  commissioners  and  the  trustees  had  juris- 
diction. In  the  meantime  the  laws  were  ;it  various  times 
amended.  The  county  commissioner.s  exercised  jurisdiction  gen- 
erally when  the  ditch  att'ected  two  or  more  townships,  but  the 


151  vs.  351. 
2  58  vs.  49. 


3  59  vs.  93. 


§  1851  APPEAL   IN    CONSTRUCTION    OF    DITCHES,    ETC.  1576 

jurisdiction  of  the  trustees  was  enlarged  so  they  might  act  jointly 
when  two  or  more  townships  were  interested.  This  distinguish- 
ing feature,  however,  finally  was  more  one  of  construction  than 
anything  else.  In  county  ditches  the  work  was  sold  out  to  the 
highest  bidder;  in  township  ditches  the  work  was  apportioned 
among  the  interested  parties,  so  that  they  could  do  themselves, 
or  have  done,  the  work.  If  they  failed  or  refused  it  was  then 
sold. 

Some  of  the  early  laws  did  not  provide  for  appeal  and  jury 
trial  on  the  question  of  the  appropriation  of  property  and  were 
declared  unconstitutional.  These  were  supplanted  by  amend- 
ments providing  for  such  appeal.  This  appeal  was,  so  far  as 
I  am  aware,  always  to  the  Probate  Court,  and  very  properly  so 
as  that  court  had  exclusive  jurisdiction  in  condemnation  by 
private  corporations,  and  concurrent  in  municipal  corporations, 
and  such  was  the  law  when  the  former  editions  of  this  work 
were  issued.  The  present  ditch  law  takes  this  jurisdiction  away 
from  the  Probate  Court  and  puts  it  in  the  Court  of  Common 
Pleas.  Whether  this  was  wise  or  not  remains  to  be  seen.  As 
the  Probate  Court  has  now  no  jurisdiction,  the  matter  might  in 
this  volume  very  properly  be  omitted,  but  as  the  matter  of  appeal 
in  ditch  cases  was  treated  of  in  the  former  editions,  it  has  been 
deemed  proper  not  to  omit  it  in  this.  The  act  itself  is  the 
result  of  a  commission  appointed  a  few  years  ago  to  codify 
the  ditch  laws  of  Ohio.  Experience  no  doubt  will  show  that 
it  will  need  some  amendments.  All  former  laws  relating  to  the 
construction  or  maintenance  of  ditches,  drains,  sinkholes,  levees, 
etc.,  have  been  repealed. 

§  1851.  What  deemed  final  order.  (§  6473.)  The  finding 
of  a  board  of  county  commissioners,  or  the  court,  for  or  against 
any  improvement  petitioned  for  under  this  chapter,  and  the 
decision  or  judgment  of  either  upon  any  claim  for  compensa- 
tion for  property  taken  or  damage  to  property  by  reason  of 
the  construction  of  an  improvement  or  the  confirmation  of  any 
assessment  for  benefit  to  property  shall  be  deemed  to  be  a  final 
order  of  the  date  on  which  such  finding  or  decision  is  made. 
And  the  same  shall  be  entered  as  of  such  date  on  the  journal 
record  of  proceedings  of  said  improvement.     [108  v.  947.] 

§  1852.  Final  order,  etc.  The  present  law  very  wisely  de- 
fines what  is  the  final  order  from  which  an  appeal  may  be  taken. 
This  is  a  matter  of  vital  importance,  and  in  other  instances  con- 
siderable confusion  and  uncertainty  has  been   experienced   in 


1577  WHO  MAY  APPEAL  §  1853 

determiuing  what  constituted  the  final  order  from  which  an 
appeal  could  be  taken.     Notably  in  condemnation  proceedings. 

The  first  matter  that  is  specified  is  the  finding  for  or  against 
the  improvement  petitioned  for.  This  is  the  action  of  the  com- 
missioners under  Sec.  6449,  G.  C,  if  they  find  for  the  improve- 
ment, and  Sec.  6453,  G.  C,  if  they  find  against  the  improve- 
ment. The  matters  that  are  decided  under  these  sections,  are 
the  necessity  of  the  improvement,  whether  it  will  be  conducive 
to  the  public  health,  convenience  and  welfare,  and  whether  the 
cost  will  be  disproportionate  to  the  benefits,  etc. 

When  the  order  is  one  of  dismissal  the  commissioners  shall 
put  a  finding  of  the  facts  on  which  the  order  is  made,  on  their 
journal.  If  they  find  for  thg  improvement  the  papers  in  the 
findings  and  the  record  of  the  commissioners  will  contain  the 
facts  upon  which  the  appeal  may  be  taken. 

The  second  matter  upon  which  an  appeal  may  be  taken  is  the 
judgment  or  decision  of  the  commissioners  upon  the  question  of 
compensation  for  land  taken  or  damage  to  property  by  reason 
of  the  construction.  This  is  provided  for  under  Sec.  6449,  G.  C. 
In  all  cases  the  actual  value  of  the  land  taken  must  be  allowed, 
unless  the  parties  have  waived  the  same  by  not  filing  their  writ- 
ten claim  for  it.  If  a  person  has  not  been  notified  or  is  under 
a  disability,  the  failure  to  file  a  written  claim  would  not  be  a 
waiver. 

The  statute  provides,  that  in  considering  the  question  of  com- 
pensation for  property  taken  or  damages,  no  deduction  shall  be 
made  for  any  benefits  that  the  property  might  receive  from  the 
improvement.     Sec.  6479,  G.  C. 

The  third  question  upon  which  an  appeal  may  be  had  is  that 
upon  the  amount  of  assessments  charged  to  the  various  proper- 
ties to  pay  for  the  construction  of  the  proposed  improvement. 
This  is  the  order  made  under  Sec.  6472,  G.  C.  The  question  of 
granting  or  dismissing  the  improvement  and  confirmation  of 
assessments  shall  be  tried  by  the  court.  The  question  of  com- 
pensation and  damages  are  to  be  submitted  to  a  jury.  Sec. 
6477,  G.  C. 

§  1853.  Who  may  appeal.  (§  6474.)  Any  interested  party 
to  an  improvement  proceeding  under  this  act,  or  any  number 
jointly  interested,  may  appeal  from  any  final  decision  or  order 
made  therein,  by  a  board  of  county  commissioners,  to  the  com- 
mon pleas  court  of  the  county  wherein  the  proceeding  was  in- 
stituted.    And  if  the  county  commissioners  of  any  county  be  a 


§  1854  APPEAL   IN    CONSTRUCTION    OF   DITCHES,   ETC.  1578 

party,  and  the  proceeding  was  commenced  originally  in  the 
common  pleas  court,  then  any  interested  party  may  appeal  from 
any  final  order  or  judgment  of  such  common  pleas  court  grant- 
ing, refusing  or  locating  the  improvement  petitioned  for,  to  the 
superintendent  of  public  works  as  the  drainage  commissioner 
provided  for  in  a  subsequent  section  of  this  act. 

Notice  of.  Notice  of  appeals  herein  provided  for  may  be  given 
at  the  time  the  decision,  order  or  judgment  is  made  or  rendered, 
and  noted  by  the  commissioners  or  court  on  their  minutes  or 
docket;  or  written  notice  of  such  appeal  may  be  filed  in  writing 
within  three  days  from  the  date  of  the  decision,  order  or  judg- 
ment, with  the  county  auditor,  or  clerk  of  court,  as  the  case 
may  be. 

Put  on  journal  in  absence  of  party.  But  if  the  decision  be 
rendered  in  the  absence  of  parties  interested,  notice  of  appeal 
shall  be  entered  for  them  as  a  matter  of  course,  by  the  county 
commissioners  or  court.      [108  v.  947.] 

§  1854.  Persons  that  may  appeal.  Any  interested  party  in 
the  improvement  may  appeal  singly,  or  join  with  others  jointly 
interested.  Persons  interested,  we  apprehend  here,  mean  one 
whose  lands  adjoin,  or  whose  lands  are  assessed  for  the  costs 
of  the  improvement.  And  yet  there  might  be  others ;  for  instance 
if  the  proposed  improvement  should  direct  a  stream  of  water, 
or  cause  an  unusual  flow  of  water  on  his  land.  However,  the 
mere  fact  that  an  assessment  Avas  placed  on  the  county  or  town- 
ship or  municipality,  would  not  give  an  individual  taxpayer  of 
the  county,  township  or  municipality  the  right  of  appeal.  Pos- 
sibly the  township  or  the  municipality  would  be  an  interested 
party  and  have  the  right  of  appeal.  Where  different  persons 
join  in  an  appeal,  all  must  be  interested  in  the  matter  upon 
which  they  jointly  appeal.  This  would  leave  it  an  open  matter 
whether  they  could  join  on  an  appeal  on  the  question  of  com- 
pensation and  damages  or  assessments.  Probably  not  unless 
they  were  tenants  in  common  of  the  land  affected.  The  safer 
way  in  such  cases  would  be  to  file  a  separate  appeal. 

§  1855.  Notice  of  appeal.  It  is  well  settled  that  all  matters 
of  appeal  in  court  proceedings  are  purely  of  a  statutory  nature, 
and  no  appeal  exists  unless  provided  for  by  the  statute,  and  in 
order  to  have  an  appeal  the  statute  must  be  strictly  followed. 

If  the  party  is  present  when  the  decision  is  made,  he  must, 
within  three  days,  file  a  written  notice  of  his  intention  to  appeal. 
If  the  party  is  absent  it  is  the  duty  of  the  commissioners  to 
enter  a  notice  of  appeal  on  their  journal.     The  commissioners 


1579  PERFECTION  OF  APPEAL  §  1856 

may,  no  doubt,  if  they  so  choose,  enter  his  notice  or  appeal  if  he 
is  present,  but  they  are  not  obliged  so  to  do.  When  the  person 
is  present  and  files  his  written  notice,  it  would  be  advisable  for 
the  notice  to  state  upon  what  matter  the  appeal  is  taken.  If 
the  appeal  is  entered  for  him  in  his  absence,  it  would  include 
what  the  record  shows. 


§  1856.    Form  of  notice  of  appeal. 

In  the  matter  of  the  ditch  improvement  No 

To  the  commissioners  of County,  Ohio. 

The  undersigned,  an  interested  party,  hereby  gives  notice  of  his  inten- 
tion  to   appeal    from   the   decision    made   by   you    on   the    day   of 

,  19. .  .,  on  the  question  of  granting  said 'improvement  [or  dismissing 

the  proceedings  for  said  improvement]  [or  upon  the  amount  allowed  me 
for  compensation  and  damages]  [or  upon  the  amount  assessed  against  me 
or  my  lands  for  payment  of  the  costs  of  said  proceedings]. 


§  1857.  Perfection  of  appeal.  (§  6475.)  To  perfect  appeal, 
the  appellant  shall  within  ten  days  from  the  date  of  the  final 
order  appealed  from,  file  with  the  county  auditor,  if  the  appeal 
be  from  the  decision  or  order  of  the  county  commissioners,  and 
with  the  clerk  of  the  common  pleas  court,  if  it  be  from  the  deci- 
sion, order  or  judgment  of  the  court. 

Bond.  An  appeal  bond,  with  surety  to  be  approved  by  the 
auditor  or  clerk,  as  the  case  may  be,  conditioned  to  pay  all  costs 
on  appeal  if  the  decision,  order  or  judgment  appealed  from  be 
sustained  on  the  hearing  or  trial  thereof. 

Time  for  filing".  Within  said  ten  days  the  appellant  shall  also 
file  in  the  court  or  with  the  drainage  commissioners,  to  which- 
ever the  appeal  is  taken  (wherein  it  shall  be  docketed  as  are 
other  civil  cases,  and  entitled  in  the  matter  of  the  improvement 
known  as — giving  by  name  and  number,  if  it  have  one — ), 

Statement  for  appeal.  A  concise  statement  of  the  decision, 
order  or  judgment  appealed  from,  and  the  grounds  of  such  deci- 
sion, order  or  judgment  as  entered  of  record,  and  the  claims  of 
the  appellant  as  to  the  error  or  injustice  thereof;  and  on  default 
of  such  bond  and  pleading  being  filed  within  said  ten  days  said 
appeal  shall  be  without  effect  and  shall  be  dismissed  at  tlie  cost 
of  the  appellant.     [108  v.  947.] 

§  1858.  Bond,  etc.  Within  ten  days  (including  the  three 
days  in  which  notice  of  appeal  is  given)  from  the  date  of  the 
final  order,  appealed  from,  an  appeal  bond  must  be  filed  with 
the  auditor,  with  surety  to  be  approved  by  the  auditor,  con- 
ditioned to  pay  all  costs  on  ap,;ea],  if  the  judgment,  order  or 
decision  appealed  from,  be  not  sustained,  etc.    It  would  be  well 


§  1859  APPEAL   IN    CONSTRUCTION   OP   DITCHES,   ETC.  1580 

if  the  party  appealing  would  see  that  this  bond  is  filed  and  ap- 
proved by  the  auditor  within  the  time  limit. 

The  form  of  bond  used  in  road  appeals,  Sec,  1795,  might 
easily  be  changed  to  use  in  ditch  appeals.  There  are  no  particu- 
lar qualifications  attached,  as  to  who  may  be  accepted  as  surety 
or  their  number,  but  they  must  be  such  as  the  auditor  approves. 
Of  course  it  should  be  signed  by  the  person  appealing  and  the 
surety. 

§  1859.    Statement  to  be  filed  in  court  of  common  pleas,  etc. 

Within  the  same  time  that  a  bond  is  filed  a  statement  must 
be  filed  in  the  Court  of  Common  Pleas.  This  statement  must  be 
a  narration  in  concise  form  of  the  decision,  order  or  judgment, 
as  entered  of  record,  and  the  claim  as  to  the  error  or  injustice 
of  the  same. 

This  statement  will  serve  as  the  petition  in  the  case.  It 
need  not  be  verified.  As  the  case  is  to  be  docketed  and  therein 
entitled  in  the  matter  of  the  name  and  number  of  the  improve- 
ment, it  would  be  advisable  to  so  head  this  statement  to  preserve 
uniformity.  As  a  matter  of  fact  the  person  appealing  occupies 
the  position  of  plaintiff,  and  all  the  other  parties  defendants. 

§  1860.     Form  of  statement. 

In  the  matter  of  the  im-  \  , 

provenicnt  known  as  I 

the ditch  im-  >    C  ourt  of  Common  Pleas, County,  Ohio. 

provement.  \ 

No ; 

STATEMENT  OX  APPEAL  OF   

Now  comes    ,   an   interested   party   in  the  above  proceedings  had 

before  the  commissioners  of    county,  and  says  that  on  the   

day  of   ,  19...,  the  said  commissioners  made  and  entered  a  finding 

on  their  journal  in  favor  of  granting  the  said  improvement;  that  the  said 
improvement  is  necessary  and  will  be  conducive  to  the  public  welfare 
and  convenience,  according  to  the  statements  and  prayer  of  the  petition 
filed  in  said  proceedings  [or,  whatever  the  matter  is  upon  which  an 
appeal  is  taken].  That  said  improvement  is  not  necessary,  that  it  will 
not  be  conducive  to  the  public  convenience;  that  the  costs  of  constructing 
said  improvement  will  exceed  the  benefits  that  would  accrue  therefrom, 
and  the  cost  and  expense  thereof  will  be  greatly  disproportionate  of  the 
benefit  to  the  petitioner,  or  advantage  to  the  public.  Wherefore  the  under- 
signed asks  that  said  proceedings  be  dismissed. 


§1861.  Auditor  to  file  transcript.  (§6476.)  If  said  appeal 
be  perfected,  the  auditor  or  clerk,  as  the  case  may  be,  shall 
within  ten  days  from  the  filing  of  the  appeal  bond  and  state- 


1581  FILING  OP  TRANSCRIPT  §  1862 

ment,  make  and  file  in  the  appellate  court  or  with  the  drainage 
commissioner,  a  full  transcript  of  the  journal  entry  containing 
the  finding  and  decision  appealed  from,  with  the  original  peti- 
tion and  engineer's  report,  assessment  or  such  other  original 
papers  as  are  pertinent  to  the  appealed  issue. 

Issue  made  for  trial.  The  issue  for  hearing  or  trial  shall  be 
deemed  to  be  made  by  the  original  petition,  the  said  statement 
of  the  appellant  and  the  entry  of  the  decision  appealed  from, 
and  all  parties  to  the  proceeding  not  joining  with  the  appellant 
in  the  appeal  shall  be  considered  defendants,  and  prima  facie 
opposed  thereto. 

Answer  not  required.  No  answer  need  be  filed  by  any  de- 
fendant. But  after  appeal  has  been  perfected  by  any  party, 
any  other  interested  party  may  by  motion  made  in  person,  or 
by  counsel,  oral  or  written,  in  se.ssion  or  at  chambers,  be  entered 
on  the  record  and  considered  as  joined  in  interest  with  the 
appellant,  and  in  such  case,  shall,  with  the  appellant,  be  bound 
for  costs,  if  the  decision,  order  or  judgment  appealed  from  be 
sustained.     [108  v.  948.] 

§  1862.  Filing  of  transcript.  Within  the  same  time  limit  of 
filing  bond  and  statement,  the  auditor  must  make  up  a  tran- 
script of  the  proceedings  before  the  commissioners,  and  file  it 
and  the  papers  in  the  ease  in  the  Court  of  Common  Pleas. 
While  the  failure  of  the  auditor  to  file  the  papers  required 
within  the  time  limit  would  not  defeat  the  appeal,  it  is  always 
advisable  for  the  appellant  or  his  attorney  to  see  that  these 
things  are  done  within  the  time  limit.  If  all  papers  are  not 
filed  that  should  be,  the  court  on  motion  will  order  them  filed. 

§1863.  Issue.  Determined  how.  Issue  is  made  up  in  this 
kind  of  a  case  from  the  original  petition,  the  statement  of  the 
appellant  and  the  entry  of  the  decision  appealed  from.  All  per- 
sons in  the  proceeding  other  than  the  appellant,  are  considered 
as  defendants,  and  opposed  to  the  appeal.  No  other  pleadings 
are  required.  These  may  be  made  however.  Motions  may  be 
filed  the  same  as  in  other  civil  cases.  It  is  particularly  pro- 
vided that  on  motion  an  interested  party  may  be  made  a  party 
joined  in  intei-est  with  the  appellant.  No  notice  need  be  given 
as  all  the  parties  who  were  notified  of  the  proceedings  before 
the  commissioners  are  in  court  from  that  time  on,  and  are 
bound  to  take  notice  of  all  future  proceedings  in  the  case. 

When,  however,  there  are  persons  interested  who  are  under 
a  disability,  it  might  be  advisable  to  appoint  a  guai-dian  ad 
litem  for  them. 


§  1864  APPEiVL  IN    CONSTRUCTION   OP  DITCHES,  ETC.  1582 

§1864.  Trial  governed  by  rule  in  civil  cases.  (§6477.) 
Trial  or  hearing  of  said  appeal  on  the  issue  made  shall  be  had 
under  the  rules  of  law  for  civil  eases,  so  far  as  the  same  are 
applicable,  the  appellants  being  considered  as  plaintiffs  having 
the  affirmative,  and  being  required  to  produce  the  predonder- 
ance  of  evidence  to  reverse  or  modify  the  decision,  order  or 
judgment  appealed  from. 

When  heard  by  court.  If  the  appeal  be  from  a  decision  or 
order  for  or  against  the  locatoin  or  construction  of  an  improve- 
ment, or  an  assessment  for  benefits,  the  same  shall  be  heard  by 
the  court  as  a  case  in  equity. 

When  heard  by  jury.  But  if  the  decision,  order  or  judgment 
appealed  from  be  for  the  payment  of,  or  the  refusal  to  pay,  a 
sum  of  money  in  compensation  for  property  taken  for  such  im- 
provement, or  as  to  damages  to  property  affected  thereby,  the 
trial  shall  be  to  a  jury  as  for  a  money  demand. 

If  the  appeal  be  from  a  court  of  common  pleas  to  the  drain- 
age commissioner,  the  same  shall  be  heard  and  decided  by  said 
drainage  commissioner,  or  his  official  board  of  appeal,  if  he 
summon  the  same,  as  in  this  act  provided,  as  are  equity  eases 
in  courts  having  such  jurisdiction. 

Precedence  for  trial.  So  far  as  consistent  with  the  rights  of 
others,  appeal  under  this  act,  shall  by  the  trial  court,  or  drain- 
age commissioner,  be  given  precedence  over  other  matters. 

Jury  may  view  premises.  The  common  pleas  court,  when  the" 
ease  is  triable  by  jury,  may  at  the  request  of  plaintiff.s  or  de- 
fendants, under  rules  as  in  other  civil  cases,  have  the  jury  view 
the  location  of  the  improvement,  and  the  expense  of  such  view 
shall  be  taxed  as  are  other  costs  upon  the  appeal.     [108  v.  948.] 

§  1865.  Trial  by  the  court.  If  the  appeal  is  upon  the  ques- 
tion of  the  granting  of  the  petition  for  the  construction  of  the 
improvement,  or  dismissal  of  the  application,  or  upon  the  ques- 
tion of  the  assessments,  the  matter  is  tried  before  the  court. 
The  court  proceeds  to  try  questions  of  both  law  and  fact.  The 
ordinary  rules  of  civil  cases  apply  and  the  court  sits  as  a  court 
of  equity. 

The  proceedings  before  the  commissioners  are  prima  facie 
correct,  and  the  appellants  are  under  obligation  by  a  preponder- 
ance of  the  evidence  to  show  that  they  are  wrong  before  he  can 
prevail. 

§  1866.  Trial  by  jury.  If  the  matter  appealed  from  is  upon 
the  question  of  compensation  for  property  taken  or  damages 
caused  to  property  by  reason  of  the  improvement,  it  is  to  be 
tried  by  a  jury.     The  appellant  would  have  the  opening  and 


1583  VERDICT  OF  JURY,  ETC.  §  1867 

closing  of  the  case,  and  notwithstanding  the  fact  that  the 
Supreme  Court  has  recently  held  in  condemnation  of  property 
by  a  municipal  corporation,  that  there  is  no  burden  of  proof, 
and  the  jury  acts  merely  as  an  appraising  or  assessing  board, 
determining  the  fair  market  value  of  the  property  from  all 
the  evidence  submitted.*  The  burden  of  showing  by  a  fair 
preponderance  of  the  evidence  on  the  part  of  appellant  would 
be  required  before  the  former  decision  could  be  disturbed. 

The  jury  would  be  selected  in  the  same  manner  as  is  done  in 
civil  cases  in  the  Court  of  Common  Pleas;  the  same  rules  of 
evidence  would  apply.  In  analogy  the  action  would  be  much 
similar  to  condemnation  proceedings.  Upon  request  of  the  ap- 
pellant, the  jury  may  view  the  premises.  Such  view  wouhl 
probably  not  be  considered  as  evidence,  but  merely  to  enable 
the  jury  to  better  apply  the  evidence  produced  in  open  court. 
Three-fourths  of  the  jury  could  return  a  verdict. 

§  1867.  View  of  location  by  jury.  (§  6478.)  The  sheriff,  or 
his  deputy,  and  the  surveyor  or  engineer  who  surveyed,  leveled, 
apportioned,  and  platted  the  improvement,  in  case  a  view  be 
directed,  may  accompany  the  jury,  and  point  out  its  location 
and  route ;  but  no  other  person  shall  give  any  information  to 
the  jurors  in  the  discharge  of  their  duty. 

On  return  of  jury,  etc.  After  the  jury  has  fully  examined 
the  premises,  and  returned  to  court,  either  party  may  be  heard, 
in  person  or  by  counsel,  and  offer  evidence  to  the  jury  under 
the  direction  of  the  court,  upon  any  matter  given  it  specially 
in  charge  as  in  other  civil  trials.     [108  v.  949.] 

§1868.  Verdict  of  jury,  etc.  (§6479.)  The  jury  shall,  upon 
the  case  being  submitted  to  it,  under  the  proper  charge  of  the 
court,  and  upon  a  form  provided  by  the  court,  return  its  ver- 
dict determining  the  matter  in  issue  appealed  from,  upon  which 
judgment  shall  be  rendered  by  the  court  as  in  other  cases. 

How  signed.  The  verdict  shall  be  signed  by  the  jury  as  is 
provided  by  law,  and  by  at  least  nine  of  the  panel  to  make  the 
same  effective.  The  amount  of  the  compensation  or  damage 
to  be  paid,  if  any,  is  the  issue  to  be  determined  by  the  jury, 
and  it  may  sustain  the  award  that  has  been  appealed  from, 
or  if  it  does  not  find  such  amount  to  agree  with  justice  and 
equity  determine  the  amount  which  upon  the  facts  put  in  evi- 
dence does  so  accord. 

Where  differ  from  award.  Tn  case  such  amount  differs  Fi-oin 
the  award  appealed  from,  the  difference  shall  be  pro-rated  by 

i  Martin    vs.    Columbus,    101    0.  S.  — . 


§  1869  APPEAL   IN    CONSTRUCTION   OF   DITCHES,   ETC.  1584 

addition  or  deduction  from  the  assessments,  if  assessments  have 
been  made,  upon  the  property  assessed  for  such  improvement. 

Where  more  than  one  appellant.  If  in  jury  trials  there  are 
more  than  one  appellant,  and  with  separate  claims  and  issues 
as  to  different  properties,  the  court  may  in  its  discretion  submit 
all  the  several  claims  and  issues  to  the  same  jury  together,  or  it 
may  direct  separate  trials  for  the  separate  claims  and  issues  or 
any  number  of  them.  In  case  of  such  joint  submission,  the  jury 
shall  be  approximately  charged,  and  provided  with  a  form  to 
return  the  compensation  or  damage  separately  as  to  each  prop- 
erty and  appellant. 

Where  appeal  on  different  matters.  Also  if  one  appellant 
shall  have  appealed  from  an  award  as  to  each  compensation  for 
property  taken  and  damages  to  property  caused  by  the  improve- 
ment the  verdict  of  the  jury  shall  separately  state  its  findings 
as  to  each  issue  in  controversy.  In  finding  its  verdict  for 
compensation  for  property  taken,  or  for  damages  to  a  property 
by  an  improvement,  the  jury  shall  not  consider,  or  deduct,  the 
value  of  any  benefit  that  it  will  receive  from  the  construction 
of  such  improvement. 

Court  to  hear  court  matters,  others  submitted  to  jury.  If  the 
appeal  be  upon  both  court  issues  and  jury  issues  as  in  this  act 
defined,  the  court  shall  appropriately  separate  the  same  for 
hearing  and  trial,  and  render  its  order  or  decree  upon  the  court 
issues,  and  its  judgment  upon  the  verdict  of  the  jury.  [108 
V.  949.] 

§  1869.  Matters  pertaining"  to  verdict.  The  above  section 
has  several  matters  of  importance  in  the  matter  of  trial  and 
rendition  of  judgment. 

First,  the  verdict  shall  in  form  be  returned  as  usual  in  civil 
cases. 

Second,  the  verdict  may  be  returned  by  nine  of  the  jurors. 
If  the  panel  should  by  agreement  be  less  than  twelve,  at  least 
nine  must  sign. 

Third,  it  seems  that  the  amount  returned  by  the  jury  may  be 
modified  by  the  court  to  agree  with  justice  and  equity. 

Fourth,  if  the  amount  found  by  the  jury  should  be  different 
from  that  allowed  by  the  commissioners,  the  court  shall  change 
the  assessments  to  meet  the  same. 

Fifth,  if  there  are  a  number  of  appellants,  the  court  may 
direct  separate  trials  or  all  may  be  submitted  to  the  same  jury 
at  the  same  time,  the  jury  finding  or  designating  each  appel- 
lant's claim,  etc. 

Sixth,  the  jury  shall  separately  state  its  findings  on  matters 
of  compensation  and  damages. 


1^8^  NEW  TRIAL  §  1870 

Seventh,  no  deduction  shall  be  allowed  for  benefits  on  either 
the  matter  of  land  taken,  or  damages  to  property.  In  condemna- 
tion cases  no  deduction  can  be  allowed  on  the  question  of  com- 
pensation for  land  taken,  but  special  benefits  might  be  deducted 
on  the  question  of  damages. 

Eighth,  if  the  appeal  involves  the  issues  that  are  properly- 
triable  to  the  court,  such  as  the  granting  or  dismissal  of  the  pro- 
ceedings, or  matter  of  assessment,  and  also  those  that  should 
be  tried  by  jury,  the  court  shall  separate  them  and  hear  them 
in  the  proper  way. 

§1870.  Judgment— Motion  for  new  trial.  (§6480.)  The 
court  trying  such  appeal  shall  receive  the  verdict,  and  if  no 
motion  for  new  trial  thereof  be  filed  within  three  days,  which 
motion  may  be  filed  as  in  other  civil  cases  at  law  and  for  like 
causes ;  or  if  such  motion  be  overruled,  it  shall  render  judgment 
according  to  said  verdict,  and  for  or  against  the  plaintiffs  sepa- 
rately, if  there  be  more  than  one. 

Taxation  of  costs.  And  the  court  shall  tax  the  costs  on  ap- 
peal in  favor  of  the  prevailing  party  or  parties.  If  the  plain- 
tiffs prevail,  then  their  costs  shall  be  taxed  against  the  county, 
and  the  county  commissioners  shall  pay  the  same  from  the  gen- 
eral ditch  improvement  fund,  and  add  the  same  to  the  costs  and 
expense  of  the  improvement  to  be  assessed  upon  all  benefited 
property.  If  the  plaintiffs  shall  not  prevail,  then  the  costs  on 
appeal  shall  be  taxed  against  and  collected  from  them  on  their 
bond  as  in  other  civil  cases. 

Where  several  matters  appealed.  If  more  than  one  matter 
is  appealed  from,  and  plaintiff'  prevails  as  to  one,  and  loses  as 
to  another,  then  the  court  shall  determine  how  much  of  the 
costs  each  party  shall  pay  and  tax  the  same  accordingly  against 
and  collected  from  them  or  their  bond  as  in  other  civil  cases, 
plaintiff',  and  casts  be  taxed  against  them,  the  court  sliall  ap- 
portion and  tax  the  costs  to  be  paid  by  the  plaintiffs  equitably 
among  them.     [108  v.  950.] 

§  1871.  New  trial.  If  a  party  wishes  to  prosecute  error  upon 
the  findings  of  the  court  or  verdict  of  the  jury,  witliin  three 
days  from  the  return  of  the  verdict,  a  motion  for  a  new  trial 
must  be  filed  as  in  other  civil  cases,  and  for  like  causes. 

If  no  motion  is  filed  or  if  it  be  overruled,  the  court  shall  render 
judgment  according  to  the  verdict. 

Exceptions  may  be  taken  on  the  motion  for  a  new  trial  and 
also  on  the  judgmnnt  rendered  by  the  court  on  the  questions 
triable  to  the  court  alone. 


§  1872  APPEAL  IN   CONSTRUCTIO]^r  OF  DITCHES,  ETC.  1586 

§1872.  Transcript  after  judgment,  (§6481.)  After  the 
final  judgment,  decree  or  order  upon  an  appeal  is  rendered 
by  the  appellate  court,  the  clerk  thereof  shall  within  ten  daj's 
make  a  transcript  of  the  same,  and  certify  and  transmit  it  with 
all  original  papers  in  the  case  and  the  taxed  bill  of  costs  to  the 
county  auditor,  or  the  court  from  which  it  came  on  appeal. 

Duties  of  auditor  on  receipt.  The  auditor,  or  clerk  of  court, 
receiving  such  transcript  and  papers  shall  forthwith  notify  the 
county  commissioners,  or  court,  of  such  receipt  and  the  judg- 
ment, decree  or  order  shall  be  entered  en  their  journal,  and 
thereupon  such  commissioners  or  court  shall  proceed  with  said 
improvement  proceedings  in  compliance  with  such  final  judg- 
ment, decree  or  order,  from  the  point  at  which  they  were  termi- 
nated by  such  appeal,  as  if  the  same  had  not  been  taken. 

Costs,  etc.  And  if  costs  have  been  taxed  agamst  the  plain- 
tiffs, and  are  not  paid  before  the  assessment  for  the  improve- 
ment is  placed  upon  the  property,  such  costs  may  be  added  to 
the  amount  of  the  assessmrnt  of  such  plaintiffs,  and  certified  to 
the  county  treasurer  for  collection  and  collected  with  the  a.ssess- 
ment  for  benefit,  and  upon  collection  paid  to  the  proper  court  for 
distribution  to  the  persons,  or  fund,  to  which  they  belong.  And 
any  such  costs  belonging  to  the  county  shall  be  paid  into  the 
general  ditch  improvement  fund.     [108  v.  950.] 

§1873.  Proceedings  in  error.  (§6482.)  In  addition  to  the 
right  of  appeal  in  the  preceding  sections  of  this  act  provided 
for,  error  may  be  prosecuted  to  the  court  of  appeals  from  a  final 
order  or  a  judgment  rendered  by  a  court  of  common  pleas  upon 
either  proceeding  in  the  matter  [manner]  of  a  petition  original- 
ly filed  therein,  or  heard  or  tried  therein  on  an  appeal  from  a 
final  order  of  a  board  of  county  commissioners. 

Governed  by  rule  m  civil  cases.  Proceedings  in  error  here- 
under and  the  costs  thereof  shall  be  governed  by  the  provisions 
of  law  now  or  hereafter  in  force  in  civil  cases. 

Who  made  parties.  If  the  plaintiff  or  plaintiffs  in  error  be 
not  a  board  of  county  commissioners,  or  joint  board  of  county 
commissioners,  it  shall  be  .sufficient  to  make  the  board  or  joint 
board  of  county  commissioners  which  originally  rendered  the 
decision  complained  of,  or  is  opposed  in  interest,  defendant  in 
error,  and  such  board  or  joint  board  shall  be  deemed  to  represent 
those  opposed  in  interest  to  the  plaintiff  in  error ;  and  if  the 
plaintiff  or  plaintiffs  in  error  are  a  board  or  joint  board  of 
county  commissioners,  it  shall  be  sufficient  to  make  the  peti- 
tioners for  the  improvement  defendants  in  error. 

Who  deemed  parties.  All  parties  to  said  proceeding  in  the 
court  of  common  pleas  affected  by  said  proceeding  in  error  shall 
be  deemed  to  be  parties  defendant  in  error,  and  opposed  to  the 
contention  of  the  plaintiffs  in  error,  unless  by  motion  therefor 


1587  STAT  OF  PROCEEDINGS  §  1874 

they  be  admitted  and  joined  with  plaintiffs  in  error  or  interest. 
[108  V.  950.J 

§  1874.  Proceedings  shall  not  suspend  construction.  (§  6483.) 

No  appeal,  nor  any  proceeding  in  error  allowed  or  provided  for 
the  parties  to  an  improvement  proceeding  under  this  chapter, 
except  an  appeal  from  a  final  order  granting  a  petition  for  an 
improvement,  shall  operate  to  suspend  or  defer  any  of  the  pro- 
ceedings provided  for  the  surveying  and  estimating  the  cost  of 
any  improvement,  or  the  letting  of  the  contract  for  and  the  con- 
struction of  it,  all  of  which  shall  proceed  as  if  no  appeal  had  been 
taken  or  error  had  been  prosecuted.     [108  v.  951.] 

§  1874a.  Stay  of  proceedings.  The  above  section  only  gives 
one  ground  upon  which  an  appeal  or  error  proceedings  may 
operate  as  a  stay  upon  the  proceedings,  that  is  upon  the  final 
order  granting  the  improvement.  Of  course  there  is  another 
which  necessarily  follows,  from  its  nature  and  character;  that 
is  upon  the  order  dismissing  the  proceedings. 

If  the  question  of  appeal  or  error  is  for  compensation  or 
damages,  or  on  assessments,  the  commissioners  may  go  ahead 
with  the  proceedings,  letting  contract,  etc. 

§  1874b.  When  owner  may  recover  tax,  etc.  (§  6484.)  Any 
owner  of  land  affected  by  an  improvement  as  defined  in  this 
chapter,  who  has  not  received  notice  thereof,  and  had  oppor- 
tunity to  be  heard  as  in  this  act  provided,  may  bring  an  action 
in  the  common  pleas  court  of  the  county  wherein  the  improve- 
ment is  located,  against  the  county  commissioners  in  their  official 
capacity  to  recover  any  tax  or  assessment  therefor,  if  paid,  or 
to  enjoin  any  tax,  assessment  or  levy  therefor  upon  his  lands, 
or  to  recover  for  any  damages  sustained,  or  for  compensation  for 
any  property  taken,  and  his  rights  and  remedies  in  such  action 
shall  be  as  for  any  like  demand  arising  from  any  other  cause. 
But  in  such  action,  it  shall  be  competent  for  the  defendant  to 
plead  and  prove  the  value  of  any  actual  benefit,  or  increase  of 
value  of  the  premises  affected  by  the  improvement  by  reason 
thereof  in  mitigation  of  any  claim  for  damage  or  compensation 
that  may  be  pleaded  by  the  plaintiff.     [108  v.  951.] 

§  1874c.  Claims  from  owner  from  not  having  notice.  It 
sometimes  happens  in  proceedings  for  construction  of  ditches, 
some  one  who  should  have  been  notified,  has  not  been  notified 
as  the  law  provides.  Nothing  is  known  until  it  is  attempted  to 
collect  an  assessment  that  has  been  placed  against  his  property. 
Then  on  the  ground  of  not  having  been  notified,  he  seeks  to  en- 
join the  collection  of  the  assessment.    Of  course  if  he  has  re- 


§  1874d  APPEAL   IN    CONSTRUCTION   OF   DITCHES,   ETC.  1588 

ceived  no  notice,  not  having  had  his  day  in  court,  he  is  entitled 
to  relief.  But  it  often  happens,  yes,  generally  happens,  that  his 
property  has  received  some  benefit  from  the  improvement,  and 
it  is  obvious  from  a  sense  of  justice,  that  he  should  not  reap  a 
benefit  without  paying  his  just  proportion  of  the  cost  of  that 
which  causes  the  benefit.  That  this  may  be  done  is  the  object 
and  purpose  of  the  previous  section,  a  very  commendable  one. 

§  1874d.  Evidence  in  action  to  recover  tax,  etc.  (§  6485.) 
The  court  in  which  a  proceeding  is  brought  to  recover  a  tax 
or  assessment  paid,  or  to  declare  void  the  proceedings  to  locate 
or  construct  an  improvement,  or  to  enjoin  a  tax  or  assessment, 
levied  or  ordered  to  be  levied  to  pay  the  costs  and  expense 
thereof. 

Manifest  error.  If  there  is  manifest  error  in  the  proceedings, 
whether  the  same  be  before  the  court  on  appeal,  or  by  action 
brought  as  in  this  act  provided,  shall  allow  the  plaintiff  in  the 
action  to  show  that  he  has  been  injured  thereby : 

May  order  survey,  etc.  And  the  court  in  its  discretion  upon 
application  of  either  party  may  direct  and  cause  any  necessary 
survey  of  the  premises  affected  to  be  made  by  a  competent  dis- 
interested engineer,  who  shall  upon  oath  report  his  findings  by 
his  survey  upon  the  matters  covered  by  the  court's  order,  and 
such  report  shall  be  received  and  considered  by  court  and  jury 
as  is  other  competent  evidence  upon  the  issue  to  be  determined. 

Oral  testimony  as  substantial  compliance.  And  the  court 
shall  allow  oral  testimony  that  any  acts  required  by  law  for  an 
improvement  hereunder  have  been  substantially  complied  with, 
notwithstanding  the  record  required  to  be  kept,  or  kept  by  any 
board  or  officer. 

Case  if  notice  actual  may  be  shown.  And  in  case  of  claimed 
want  of  notice  as  by  this  act  required,  any  evidence  may  be 
offered  that  the  plaintiff  had  knowledge  of  the  proceedings  for 
said  improvement  and  actual  opportunity  to  appear  therein  and 
be  heard,  which  also  may  be  considered  upon  the  issues. 

When  may  bear  upon  question  of  necessity.  And  if  said 
cause  is  tried  before  the  construction  of  said  improvement  is 
let  by  contract,  then  oral  evidence  may  be  offered  for  and  against 
the  necessity  of  the  same,  and  whether  it  be  conducive  to  public 
health,  convenience  and  welfare  as  defined  in  this  chapter. 

Such  judgment  shall  be  rendered  as  is  equitable.  Upon  such 
trial  to  the  court  or  jury,  the  court  shall  upon  its  findings^  or 
upon  the  verdict  of  the  jury,  render  such  judgment  or  make 
such  order  as  will  be  equitable,  and  may  order  any  tax  or  assess- 
ment to  remain  on  the  duplicate  for  collection,  or  order  it  to  be 
levied,  or  perpetually  enjoin  it  or  any  part  thereof  as  to  the 
plaintiff,  or  if  it  has  been  in  whole  or  part  paid  under  protest 


1589         ACTION  IN  PROCEEDINGS  TO  ENJOIN        §  1874e 

or  without  knowledge,  order  the  whole  or  such  part  as  is  just 
and  equitable  to  be  refunded.  And  if  said  improvement  is  not 
constructed,  and  would  irreparably  injure  the  plaintiff  if  con- 
structed so  that  his  damage  could  not  be  measured  by  money 
recovery,  the  court  may  perpetually  enjoin  such  construction. 
And  upon  a  partial  recovery  by  the  plaintiff  the  court  may  ap- 
portion the  costs  equitably  between  the  parties.     [108  v.  951.] 

§  1874e.  Action  in  proceedings  to  enjoin.  The  above  sec- 
tion is  somewhat  similar  to  former  §  6500,  G.  C,  and  §§  6645 
and  6646.  The  object  and  purpose  is  to  permit  in  such  an 
action  all  matters  to  be  gone  into,  so  that  justice  may  be  done 
all  parties.  It  of  course  is  clearly  a  proceeding  in  equity,  and 
if  the  party  bringing  the  action  has  a  remedy  at  law,  he  must 
fail  in  this  action,  or  if  he  can  have  a  remedy  under  the  previous 
section.     §6484,  G.  C.  (§1861).^ 

The  basis  of  the  above  action  is  that  there  is  manifest  error 
in  the  proceedings.  If  the  proceedings  are  substantially  correct 
the  writ  will  not  be  allowed.  The  court  may  have  a  re-survey 
by  a  disinterested  engineer. 

If  the  plaintiff  alleges  want  of  notice,  a  very  common  com- 
plaint, and  one  which  from  the  nature  of  the  proceedings  is 
likely  to  occur,  the  court  may  hear  evidence  as  to  whether  or 
not  the  plaintiff  had  knowledge  of  the  proceedings  and  had 
actual  opportunity  to  appear  and  be  heard.  If  he  did  and  failed 
to  take  advantage  of  his  knowledge  and  opportunity,  he  shall 
not  now  be  heard,  to  complain.  The  nature  of  the  proceedings 
is  such  that  they  can  hardly  be  carried  on  without  an  aft'ectcd 
landowner  knowing  as  he  ought  to  know,  of  the  proceedings. 
The  law  intends  to  give  every  one  his  day  in  court  in  every 
instance  where  his  individual  or  property  right  will  be  affected, 
but  it  also  expects  him  to  be  diligent  in  asserting  them,  and  if 
he  knows  of  a  matter  that  may  or  will  affect  him,  if  he  lies  still 
when  he  should  have  acted,  he  will  have  sinned  away  his  day 
of  grace. 

If  the  action  is  brought  before  the  contract  for  the  improve- 
ment has  been  let,  the  question  of  the  necessity  of  tlie  improve- 
ment may  be  considered,  and  whether  it  is  justified,  or  will  be 
conducive  to  the  public  health,  convenience  and  welfare.  If  it 
is  past  this  time,  this  matter  can  not  be  considered.  Of  course 
in  no  ease  can  any  of  these  questions  be  considered  on  an  injunc- 

5  See  Commissioners  vs.  Krauss,  Ilicksvillc,  17  Dec.  201;  4  N.  P. 
53  0.  S.  628.    See  Andersonville  vs.      (N.'S.)  545. 


§  1874f  APPEAL   IN    CONSTRUCTION   OP    DITCHES,    ETC.  1590 

tion  proceedings,  if  the  party  had  proper  notice  of  the  pro- 
ceedings. 

If  in  justice  an  assessment  should  be  enjoined,  in  whole  or 
in  part,  the  court  will  do  so.  If  paid  under  protest  or  without 
knowledge,  it  may  in  like  manner  be  in  the  whole  or  in  part 
refunded.  And  if  the  improvement  is  not  constructed,  and 
would  irreparably  injure  the  plaintiff  if  constructed  so  that  his 
damage  could  not  be  measured  by  a  money  recovery,  a  perpetual 
injunction  may  be  granted  against  its  construction. 

The  next  section  provides  when  it  shall  not  be  enjoined. 
This  section  may  cure  irregularities,  but  it  does  not  save  juris- 
diction where  no  jurisdiction  existed  or  where  jurisdiction  had 
been  lost.    Anderson  vs.  Miller,  13  N.  P.  42;  22  Dec.  166. 

§  1874f .  Not  enjoined  for  error,  when.  (§6486.)  Neither 
the  location  or  construction  of  an  improvement,  nor  the  taxes 
or  assessments  levied  or  ordered  to  be  levied  to  provide  for  the 
cost  and  expense  thereof  shall  be  perpetually  enjoined,  nor  the 
proceedings  therefor  declared  void  in  consequence  of  an  error 
committed  by  the  engineer,  the  county  auditor,  county  commis- 
sioners or  other  officer,  in  the  location,  construction  or  record 
thereof ;  nor  shall  such  error  if  not  materially  affecting  the  rights 
of  any  interested  party,  or  causing  actual  damage  to  property, 
be  a  defense  to  the  collection  of  any  tax  or  assessment  therefor 
levied  thereon,  if  such  tax  assessment  or  levy  was  made  or  done 
within  the  jurisdiction  conferred  by  law  on  the  board  or  taxing 
officer  making  or  levying  the  same.     [108  v.  952.] 

§  1874g.  When  injunction  will  not  lie.  First,  an  injunction 
is  a  proceeding  in  equity,  it  will  not  be  granted  when  plaintiff 
has  a  remedy  at  law. 

Second,  it  will  not  be  granted  if  the  plaintiff  was  properly 
notified  of  the  proceedings. 

Third,  it  will  not  be  granted  in  consequence  of  an  error  com- 
mitted by  the  engineer,  the  county  auditor,  the  county  commis- 
sioners or  other  officers  in  the  location,  construction  or  record. 

Fourth,  nor  for  any  error  that  does  not  materially  affect  the 
right  of  an  interested  party. 

Fifth,  neither  shall  such  error  be  a  defense  against  the  col- 
lection of  an  assessment,  if  the  same  was  done  within  the  juris- 
diction conferred  by  law  on  the  board  or  officers  making  it. 


1591 


FRANCHISES  §  181 


CHAPTER  XCIX. 

PRESCRIBING  MODE  OF  USE  OF  STREET  BY  TELEPHONE 
AND  TELEGRAPH  COMPANIES. 

§  1875    Introductory.  §  1876a  Compensation  only  for  dam- 

§  1876    How    right     to    use    public  ages. 

grounds  acquired.  §  1877     Petition.     Form,  etc. 

§  1878     Hearing  and   decree. 

§  1875.     Introductory. 

The  statute^  has  placed  upon  the  Probate  Court,  the  duty 
of  detemiiiiing-  under  certain  contingencies,  tlie  manner  in 
which  a  telephone  or  telegraph,  company  may  use  the  streets 
of  a  municipal  corporation.  It  has  been  seriously  contended, 
that  this  statute  was  unconstitutional  as  conferring  upon  the 
Court,  duties  which  belong  to  the  legislative  department  of  our 
government ;  and  this  view  was  of  such  a  strong  character  that 
at  first  the  Supreme  Court  followed  that  view  and  declared  the 
law  unconstitutional.^  Upon  a  rehearing,  however,  the  Su- 
preme Court  reversed  itself,  and  while  admitting  that  there 
was  some  doubts  upon  the  question,  it  held  that  they  were  not 
of  that  character  that  would  justify  tlie  Court  in  declaring  tlie 
law  unconstitutional.^ 

In  this  latter  case.  Judge  Williams  very  thoroughly  discussed 
the  scope  of  the  statute  and  the  method  in  which  a  proceeding 
should  be  conducted.  It  is  there  declared  that  the  proceeding 
is  practically  a  proceeding  for  appropriation  against  the  mu- 
nicipality, and  that  such  is  necessary  in  order  to  enable  the 
company  to  make  a  necessary  use  of  the  streets  of  the  corpora- 
tion.    Being  a  statute ly  proceeding,  before  the  action  can  be 

1  §§  9178-9  G.  C,  §  1870.  Where,  under  a  decree  of  Probate 

2  Zanesville  vs.  Teie.  &  Telegraph  Court,  right  to  erect  poles  was  ob- 
Co.,  63  O.  S.  442.  tained    siil).jpct    to    riglits    of    other 

s'zanosville  vs.  Tele.  &  Telegraph  coitii)anic.s  to  use  its  poles,  another 

Co.,  64  0.  S.  67.  companv  can  not  do  so,  etc.     Ilausa 

in  action  in  Probate  Court,  com-  Elec,  etc..  vs.  Electric  Co.,  10  Dec. 
pany  must  prove  its  incorporation  709;  26  lUiU.  104. 
and  election  of  directors.  Ccn.  See  Ohio  Light  Co.  vs.  Gertrude, 
Union  Tel.  vs.  Columbus  Grove,  8  ,')9  P.ull.  .3.^4.  for  charge  of  judge 
C.  C.  (N.S.)  81;  28  0.  C.  C.  1.32;  to  jury  in  fixing  method  of  corn- 
Queen  City  Tel.  Co.  vs.  Cin.,  15  pensation  for  casement  of  light 
C.  C.  (N.S.)  411;  27  0.  C.  C.  385;  poles. 
73  0.  S.  64. 


§  1S76  TELEPHONE   FRAljrCHISE  1592 

maintained,  the  plaintiff  must  show  tliat  it  has  complied  with 
all  the  statutory  requirements.  The  proceedings  are  not  very 
frequently  called  into  vogue,  but  a  fonn  of  petition  and  some 
suggestions  may  not  be  inappropriate  in  a  work  of  this  char- 
acter. The  section  of  the  Kevised  Statutes  relating  thereto  is 
as  follows:* 

§  1876.  How  right  to  use  public  ground  acquired.  ' '  When 
lands  authorized  to  be  appropriated  to  the  use  of  such  company 
are  subject  to  the  easement  of  a  street,  alley,  public  way,  or 
other  public  use,  within  the  limits  of  a  city  or  village,  the  mode 
of  use  shall  be  such  as  is  agreed  upon  between  the  municipal 
authorities  of  the  city  or  village  and  the  company.  If  they 
cannot  agree,  or  the  municipal  authorities  unreasonably  delay 
to  enter  into  an  agreement,  in  a  proceeding  instituted  for  the 
purpose,  the  probate  court  of  the  county  shaK,  subject  to  th^ 
provisions  of  section  eleven  thousand  forty-six  of  the  General 
Code,  direct  in  what  mode  the  telegraph  line  shall  be  construct- 
ed along  such  street,  alley,  or  public  way,  so  as  not  to  incom- 
mode the  public  in  the  use  of  it. "    [R.  S.  §  3461 ;  101  v.  289.]  ^ 

§  1876a.  Compensation  only  for  damages.  "Nothing  in  the 
preceding  section  shall  authorize  a  municipal  corporation  to 
demand  or  receive  compensation  for  the  use  of  a  street,  alley, 
or  public  way,  beyond  what  may  be  necessary  to  restore  the 
pavement  to  its  former  state  of  usefulness."     [R.  S.  §  3461.]^* 

§1877.    Petition.    Form,  etc. 

The  petition  must  necessarily  show  that  the  corporation  is 
authorized  to  appropriate  the  property,  and  that  it  is  necessary 
for  its  proper  management  that  it  have  the  use  of  certain 
streets,  alleys,  etc.,  within  the  limits  of  a  municipal  corpora- 
tion, and  that  it  has  been  unable  to  agree  witli  the  corporation 
as  to  tlie  method  of  such  use.  The  following  may  be  used  as  a 
form  of  petition : 

In  the  Probate  Court  of County.  Ohio. 

S.   C.   T.   Co.,   Pltf.,  j 

vs.  i.  Petition. 

City  of  S.,  Deft.  ) 

The  plaintiff  says  that  it  is  a  corporation  duly  created,  organized  and 
existing  under  the  laws  of  the  State  of  Ohio,  and  that  more  than  ten  per 

4  The  Probate  Court  has  full  and  Grant  to  telephone  company  sub- 
complete  jurisdiction  to  determine  jeet  to  abutter's  rights.  Mantell  vs. 
the  terms  upon  which ,  a  telephone  Telephone  Co.,  11  C.  D.  274;  20 
company  may  occupy  the  streets  of  O.  C.  C.  345. 

a    city,    etc.      Fitzsimmons  vs.    Cin-           Grant    to    use    street    for    certain 

cinnati,  47  Bull.  171.  time  cannot  be  extended  beyond  its 

5  §  9178   G.   C.  express   terms.      State   vs.    Tel.    Co., 
5*  §9179  G.  C.  5  C.  D.  311;   11  O.  C.  C.  55. 

The  Court,  however,  cannot  fix  the  City  cannot  stipulate  for  compen- 

.rates    the    telephone    is    to    charge.  sation   beyond   what   may   be   neces- 

State  ex  rel.  Sheets  vs.  Toledo,  etc.,  sarv  to  restore  streets.     Farmer  vs. 

72  0.  S.  526.  Tel".   Co.,   72   0.   S.   526. 


1593  PETITION  §  1878 

cent,  of  it?  capital  stock  has  been  subscribed  and  that  fact  certified  to  the 
Secretary  of  State  of  Ohio,  as  required  by  law. 

The  plaintiff  further  says  that  it  is  and  was  organized  as  aforesaid  for 
the  purpose  of  acquiring  a  franchise  or  franchises  for,  and  constructing, 

acquiring,  maintaining  and  operating  in  the  city  of ,  Ohio, 

and  elsewhere,  telephone  and  signal  lines,  together  with  the  stations,  poles, 
wires  and  conduits,  fixtures  and  appliances  used  in  connection  therewith, 
and  for  carrying  on  the  said  business  and  doing  any  and  all  things  incident 
and  necessary  thereto. 

The  plaintiff  further  says  that  the  said  defendant  is  a  municipal  corpora- 
tion organized  and  existing  under  the  laws  of  said  State  of  Ohio,  and  lo- 
cated in  the  county  of ,  in  the  said  State;  and  is  a 

city  of  the  second  grade,  third  class  A. 

Tne  plaintiff  further  says  that  it  has  endeavored  to  agree  with  the 
muui'^ipal  authorities  of  said  defendant  city  \ipon  the  mode  in  which  the 
telephun.e  ^ines  of  the  complainant  shall  be  constructed  along  and  across  the 
following  stT^ts  and  alleys  of  said  city,  to-wit:    (here  name  them),  and  for 

that  purpose,  more  than  four  weeks  ago  on  the day  of , 

the  plaintiff  p^fiiient^d  to  the  Board  of  Public  Affairs  of  said  city,  an  ordi- 
nance upon  thfe  sahject,  a  copy  of  which  is  hereto  attached,  and  marked 
"Exhibit  A"  aju  made  part  hereof;  and  requested  the  said  board  to  pass 
said  ordinance  or  rfu^i:g,^st  such  reasonable  modifications  thereof  as  to  the 
said  board  should  s^ra  proper;  but  the  said  board  has  wholly  failed  either 
to  adopt  the  said  Orc^ivauce,  or  to  suggest  any  modifications  thereof,  al- 
though a  reasonable  tiue  for  that  purpose  has  long  since  expired. 

On  the  contrary,  said  board  has  notified  the  plaintiff  on  the day  of 

' ,  190.  .,  ill  writing  by  resolution  duly  passed,  that  it  would 

not  consider  said  proposed  .wdinance  nor  attempt  to  agree  with  the  plaintiff 
upon  the  mode  in  which  it  should  use  said  streets;  but  there  being  other 
parties  (some  of  Avhom  are  rot  organized  for  telephone  purposes)  at  present 
requesting  said  board  to  ap.ree  with  them  on  the  same  subject,  said  board 

has  notified  all  of  said  pa/ties,  including  this  plaintiff,  that  on  the 

day  of ,  190. .,  it  would  consider  all  ordinances  on  the  sub- 
ject which  might  be  presented,  and  that  it  would  pass  the  one  of  such 
ordinances  which  contained  the  terms  most  favorable  to  the  city,  and  em- 
braced the  largest  cash  bonus  to  the  city,  and  that  it  would  reject  all 
others. 

Wherefore  the  plaintiff  prays  the  Court  to  direct  in  what  mode  the 
telephone  lines  of  the  plaintiff'  shall  be  constructed  along  and  acro.'^s  the 
following  streets  and  alleys  and  public  ways  of  said  defendant  city,  accord- 
ing to  the  statute  in  such  case  made  and  provided. 


State  of  Ohio County,  ss. 

D    F    S     beinc  first  duly  sworn,  says  he  is  the  treasurer  of  the  phuntitl 
company  and  that  he  believes  the  facts  stated  in  the  foregoing  petition  are 

^  Sworn  to  before  me   and   subscribed   in  my   presence  this day   of 

,   190. . 

§  1878.     Hearing  and  decree. 

While  the  statute  does  not  indicate  the  mode  of  procedure 
and  power  to  issue  summons,  ete.,  yet  the  power  conferred  ix> 
hear  the  matter  includes  the  power  to  do  whatever  is  necessary 
to  consummate  the  purpose  intended."     Wliilc  pertaimnj:r  some- 

6  Zanesville  vs.  Telephone  &  Tele.  Co.,  64  O.  S.  83. 


§1878 


TELEPHONE   FRANCHISE. 


1594 


what  of  the  nature  of  an  appropriation  proceeding,  the  parties 
are  not  entitled  to  a  trial  by  jury/ 

It  should  be  remembered  that  the  property  of  the  adjoining 
land  owners  is  not  tahen  in  this  proceeding,  a  municipal  cor- 
poration does  not  OAvn  the  streets  and  has  no  right  to  place  addi- 
tional burdens  thereon.  Before  the  telephone  company  could 
proceed  to  erect  its  poles,  it  must  in  some  manner  have  pro- 
cured the  right  so  to  do  from  the  adjoining  property  holders. 
Cut  this  is  a  matter  with  which  the  municipality  has  nothing 
to  do.  The  jurisdiction  conferred  on  the  Court  is  to  determine 
the  controversy  between  tlie  disputant  corporations,  arising 
from  their  disagreement  or  failure  to  agi'ee,  hy  an  order  binding 
on  both,  'directing  in  what  mode  the  telephone  lines  shall  be  con- 
structed in  the  streets  and  alleys,  so  as  not  to  incommode  the 
public  in  the  use  of  the  same.®  The  decree  or  order  should 
specify  with  reasonable  certainty  the  mode  of  constmction  of 
the  company's  lines,  so  that  they  will  not  incommode  the  public 
in  the  use  of  the  streets.® 


No  power  to  grant  right  to  put 
wires  under  ground  unless  city  con- 
sents. Queen  City  Tel.  Co.  vs.  Cin., 
5  C.  C.  (X.S.)  411;  17  Cir.  D.  3S5; 
affirming  2  X.  P.  (X.S.)  349;  15 
Low.   D.    43;    afrirmed   73    0.    S.    64. 

Couit  will  remove  line  constructed 
without  consent  of  owner.  Smith 
vs.  Printing  Co.,  1  C.  D.  475;  2 
0.  C.  C.  259. 

Probate  Court  cannot  make  gen- 
eral regulations  as  to  use  of  all 
streets  by  telephone  company.  Queen 
City  Tel.  Co.  vs.  Cin.,  5  C.  C.  (N.S.) 
411;  27  0.  C.  C.  385;  affirmed  73 
0.  S.  G4. 

Company  must  prove  incorpora- 
tion and  election  of  directors.  Cen. 
Union  Tel.  Co.  vs.  Columbus  Grove, 


8  C.  C.  (X.P.)  81;  28  0.  C.  C. 
132. 

Probate  Court  cannot  fix  price  of 
service.  Macklin  vs.  Tel.  Co.,  1  C. 
C.  (X.S.)  373;  24  0.  C.  C.  450; 
affirmed  70  O.  S.  507;  Farmer  vs. 
Tel.  Co.,  72  0.  S.  526. 

■!  Id.  81,  82. 

8  7(Z.   83. 

9  7(Z.  89. 

The  order  can  be  reviewed  on  er- 
ror. But  as  the  Probate  Court  is 
vested  with  a  discretion,  the  order 
will  not  be  set  aside  unless  the  dis- 
cretion has  been  abused.  The  re- 
viewing Court  may  modify  the  order 
of  the  Probate  Court.  Telephone  vs. 
Chagrin  Falls,  1  X.  P.  (X.S  )  534, 
14  Dec.    (1904)    449. 


1595 


INTRODUCTORY  §1879 


CHAPTER  C. 

PARTITION. 

§  1S79  Introductory.  §  1884  Court    shall    order    so    much 

§  1880  Certificate       from       Probate  of  proceeds  to  be  paid  over 

Court  when  proceedings  for  to  him,  provided,  etc. 

partition     commenced     and  §  1885  Proceedings      in      Court      of 

deficiency  of  assets  found.  Common  Pleas. 

§  1881  Application.     Form.  §  1S86  Form    of    motion    and    entry 

§  1882  Hearing  and  order  of  Court.  ordering  money  paid, 
§  1883  Form  of  certificate. 

§  1879.     Introductory. 

Partition  is  tlie  division  wliicli  is  made  of  lands  between  sev- 
eral jDersons  whieli  belong  to  tbem  as  co-heirs.^  This  division 
may  be  made  by  amicable  arrangement  between  the  parties  or 
by  an  action  brought  in  Court  for  that  purpose.  Such  proceed- 
ings generally  occur  between  the  heirs  of  a  deceased  person,  and 
generally  belong  to  a  Court  of  general  jurisdiction,  and  only  a 
small  number  of  Probate  Courts  in  this  State  have  jurisdiction 
of  such  proceedings ;  and  where  they  have  such  jurisdiction,  the 
proceedings  are  conducted  in  the  same  manner  as  in  the  Court 
of  Common  Pleas.  It  will  therefore  not  be  discussed  in  this 
work,  but  reference  made  to  general  works  on  pleadings,  etc.^ 

The  statute  ^  has  recently  been  amended  as  to  the  time  in 
which  an  order  for  partition  might  be  granted,  and  it  has  been 
held  that  under  such  section  a  petition  for  partition  of  real 
estate  will  not  lie  within  one  year  from  the  death  of  the  an- 
cestor from  whom  the  estate  is  derived,  unless  it  is  averred  and 

1  Bouv.  Die.  Parties    in    iiarlition    acquire    no 

See  §  911,  Title  by  purchase.  new   tilh-.      ^Icl'..iin    vs.   I\Icr>ain,    1.") 

§  1524,    Assignment    of    dower  by       O.    S.    IVM. 

Gdn.  ■•?>  12028  G.  C. 

-  Kinkead's     Code    Plead.,     §  95,3,  A    trustee    in    l)aiikruptcy    canuDt 

etc.     Form  of  petition.     §957,  maintain     action.     Lindsay     va, 

Whittaker's   forms,   542.  Kunkle,  82  O.  S.  325. 


§  1879  PARTITION  1596 

proved  (1)  that  there  is  sufficient  personal  property  to  pay  the 
debts  of  such  ancestor's  estate,  (2)  that  the  debts  are  paid,  or 
(3/  that  the  debts  are  secured  as  provided  in  sec.  10785,  G.  C* 
And  it  is  also  held  that  while  the  order  may  not  be  granted  with- 
in one  year,  yet  a  petition  may  be  filed,  and  after  the  end  of 
the  year  an  order  might  be  granted.^ 

The  statute  was  no  doubt  so  amended  that  a  partition  could 
not  be  had  before  one  year,  for  tJie  reason  that  the  statute  gives 
one  year's  time  for  the  presentation  of  claims  against  the  es- 
tate of  a  deceased,  and  that  therefore  the  administrator  ought 
to  know  within  that  length  of  time  whether  it  is  necessary  to 
sell  the  real  estate  to  pay  debts.  No  action  that  the  heir  can 
take  will  at  any  time  defeat  the  right  of  the  administrator  to 
bring  proceedings  to  sell  the  real  estate  to  pay  debts;  and  a 
person  buying  in  partition  proceedings'  does  so  with  the  risk 
that  such  real  estate  may  be  subject  to  the  unpaid  debts  of  the 
deceased  owners,  unless  the  statutory  limit  has  expired.  In 
all  instances  where  partition  proceedings  are  brought  and  an 
administrator  is  still  acting,  such  administrator  ought  to  be 
made  a  party.  A  deceased  pei'son  may,  however,  by  will,  pro- 
vide that  no  partition  shall  be  made  of  his  estate  for  a  certain 
number  of  years  after  his  death.  ^ 

If  a  partition  suit  has  been  brought,  and  it  is  necessary  to 
have  funds  to  pay  debts  of  the  deceased,  the  administrator  may 
elect  to  commence  a  new  proceeding  and  have  the  real  estate 
sold,  or  may  file  a  certificate  in  the  Court  of  Common  Pleas, 
in  which  the  action  is  pending,  as  provided  for  in  the  next 
section.'^ 

4  Smith  vs.  IMontag,  32  Bull.  153;  stead  of  subjecting  the  property,  the 
1  Dec.  224.     See  §  826.  rights  of  a "  bona  fide  buyer  o"f  one 

5  Fryman  vs.  Fryman,  9  C.  C.  of  the  partition  notes  are  paramount 
91 ;   6  C.  D.  377.  to    his.      Rowecamp    vs.    Meyer,    10 

6//!,  re  Reynolds,  7  X.  P.  626;   5  Rec.  566. 

Dec.  570.  I    have    been    asked,    suppose    the 

See    Craighead    vs.    Pike,    4    Rec.  heirs  should  file  a  suit  in  partition 

199.  more  than  one  year  after  the  death 

As  to  advancements,  see  Boyer  vs.  of    the    ancestor,    and    the    adminis- 

Boyer,  7  N.  P.  153:  7  Dec.  525.  trator    not     being    made     a     party, 

7  An  administrator  made  party  to  could    he    then    file    a    suit    to    sell 

a  partition  case  and  needing  a  sale  real   estate,  and  would   the   Probate 

to  pay  debts  may  have  an  order  of  Court  have  jurisdiction;    and   I  an- 

sale  on   his   answer  and   cross  peti-  swered    in    the    affirmative.      It    is 

tion,   and   no  statute   of   limitations  doubtful     if    even    by    making    the 

applies.     Lafferty   vs.    Shinn,    38    O.  administrator   a    party    in    the    par- 

S.  46.  tition    suit    he   can    be    deprived   of 

If   the    administrator   claims   the  his  right  to  an  order  of  sale.     (See 

proceeds    of    the   partition    sale   in-  38    0.    S.    46,    above),    much    less 


1597  APPLICATION — FORM  §   1880 

§  1880.  Certificate  from  Probate  Court  when  proceedings 
'for  partition  commenced  and  deficiency  of  assets  found.    "If 

after  the  institution  of  proceedings  for  partition  of  the  lands 
of  a  deceased  person,  it  is  found  that  the  assets  in  the  hands  of 
liis  executor  or  administrator  are  probably  insufficient  to  pay 
the  debts  of  the  estate  and  expenses  of  administration,  the 
executor  or  administrator  must  make  a  written  statement  to  the 
probate  court  of  such  assets,  indebtedness  and  expenses,  and  it 
forthwith  shall  ascertain  the  amount  necessary  to  pay  such  debts 
and  expenses  in  addition  to  the  assets,  and  give  a  certificate 
thereof  to  the  executor  or  administrator."     [R.  S.  §  (3173.]  ^ 

§  1881.     Application.     Form. 

The  statute  says  that  the  administrator  or  executor  shall 
make  a  written  statement  to  the  Probate  Court-  of  said  assets 
and  indebtedness  and  expenses.  This  means  that  such  a  state- 
ment skall  be  made  to  the  Court  of  the  total  assets  and  the  total 
liabilities  as  Avill  enable  the  Court  to  determine  what  amount 
is  necessary  to  pay  such  indebtedness.  Tlie  form  may  be  as 
follows : 

1     Probate   Court, 
County,    Ohio. 
Statement   of    Assets,    Debts,   etc., 
to    Procure    Certificate    to    File 
in  Partition  Proceedings. 

Now  comes  A.  B.,  adm.inistrator  (or  executor)  of  the  estate  of  C.  D., 
deceased,  and  respectfully  represents  to  the  Court  that  the  assets,  indebted- 
ness and  expenses  of  said  estate  are  respectively  as  follows: 

ASSETS. 

Cash   on   hand dollars.     Promissory   notes   from   which   will 

be    probably    realized dollars  (and    here    state    such    other 

facts  that  will  show  the  entire  amount  to  be  realized  from  all  assets  from 
every  source) . 

if    he    is    not   a    party.      Until    the  as   alwve   stated.     Weis  vs.   Gerdes, 

Court    in    which    partition    proceed-  1    Dayton    Term    Pvcp.    31. 

ings    is    brought    makes    its    order,  Where  an  administrator  had  com- 

he     can   oust     that     Court     of     its  monccd    an   action    to    sell    the    real 

jurisdiction    bv    filing    his    petition  est.ite    for    the    purpose    of    paying 

to    sell    real    estate.      His    right    is  del)ts,   and    the    widow,    in   order    to 

always  sui>erior  to  the  heirs  unless  prevent  the  sale  of  tlio  real  estate, 

he  waives  it  or  is  in  some  manner  gave   a   bond   as   provided    by    stat- 

estopi)ed.       Since     the     above     was  ute     (§10485    G.    C),    conditioned 

written     the     Sapreme     Court     has  to    pay   the    debts    agninst    said    es- 

held    the    same.      Stout    vs.    Stout,  tate,    and    the    administrator,    then 

82  0    S    358.  dismissed    his     i)ctiti<>n    and     aftcr- 

See    Myers    vs.    Myers,    9    C.    C.  wards     the     lands     wlicre     sold     on 

(N.S.)    44!)-    29   0.  C    C.   390.  pirtition    V)otw(cn    the    heirs,    said 

8  S  10818  G    C  willow  was  ciitillcd  to  have  paid  to 

The    creditor    of    a    decedent    can-  her    out    of    the    proceeds    of    such 

not  be  made  a  party  to  tbe  suit  in  partition  sale,  the  amount  of  mom-y 

partition,    he    must    work    out    his  tl.at  she  advanced  to  pay  the   drbts 

claim    through     the     administrat/.r,  of  the  ^oc^l^^^A      Corey   v^s.  ^Ilayea, 

and  the  administrator  must  proceed  13   C.    C.    18j;    7    C.    U.    -/-. 


§  1882  PARTITION  1598 

DEBTS  AND  EXPENSES. 

Expenses  of  last  sickness dollars ;   funeral 

dollars;  Avidovv's  allowance dollars;  accounts  due  G.  H.,  I.  J., 

etc.    (and  here  give  all  other  matters  relating  to  liabilities  against  said 
estate). 

BALANCE    REQUIRED,    $ 

Said  administrator  therefore  respectively  asks  the  Court  that  a  certificate 
may  be  granted  to  him  of  the  amount  which  will  be  necessary  to  pay  said 
indebtedness  and  expenses  in  addition  to  the  assets  which  are  in  his  hands, 

so  that  he  may  present  the  same  to  the  Court  of  Common  Pleas  of 

county,  where  a  proceeding  in  partition  is  pending  of  the  lands 

of  said  deceased. 

(Sign.) 

Sworn  to  before  me  and   subscribed   in   my   presence  this day   of 

,   190. ..3 

§  1882.     Hearing  and  order  of  Court. 

The  action  seems  to  be  purely  ex  parte,  and  no  notice  is  re- 
quired ^"  to  be  given  to  any  one,  and  the  Court  is  to  proceed  as 
soon  as  convenient  to  hear  the  matter  set  forth  in  the  application 
and  find  the  amount  which  will  be  necessary  for  the  adminis- 
trator to  have  in  order  to  liquidate  all  indebtedness  against  the 
estate.  The  amount  which  the  Court  should  find  to  be  neces- 
sary from  the  nature  of  the  case  can  never  be  precisely  deter- 
mined, but  sufficient  should  be  allowed  to  reasonably  cover  all 
liabilities  of  the  estate.  This  order  of  the  Probate  Court  can- 
not be  attacked  in  the  Court  of  Common  Pleas.  When  pre- 
sented in  the  proceedings  in  the  Court  of  Common  Pleas,  the 
amount  therein  certified  must  be  allowed  the  executor.  If  it  is 
sought  to  attack  the  order,  this  must  be  done  in  the  Probate 
Court.     The  entry  granting  such  certificate  may  be  as  follows : 

Suit    in    partition    docs    not    pre-  not  show  that  the  porsoml  property 

vent   sale   by  administrator   to   pay  is  insuflicient  to  pay  the  debts  thereof, 

debts.      Myers    vs.    Myers,    9    C.    C.  A  proceeding  u"der   §§  10818,  10819 

(N.S.)  499;  20  O.  C.  C.  30G.  G.    C,    to    procure    a    certificate    of 

Right    of    administi-ator    is    supe-  indebtedness    to    file    in    a    suit    in 

rior.      Stout    vs.    Stout,    82    0.    S.  partion  is  one  to  sell  lands  to  piy 

3G3.  debts,  and  Avhcre  the  claims  for  the 

9  A  journril  entry,  under  which  a  payment   of   wliich   the   sale   of   the 

certificate  of  indebtedness  is  issued  land    is    required    include    one    due 

by   the   Probate   Court  for   the  pur-  the  executor,  the  heirs  should  have 

pose  of   filing  the   same  in  a  parti-  notice    and    be    allowed    to     defend 

tion  suit  in  the  Common  Pleas  and  against   it   if  sucli   claim   isi  denied, 

obtaining    money    to    pav    debts,    as  In  re  Estate  of  DeSerisv,   8   N.   P. 

authorized    by    §  10818    G.    C,    will  694. 

be    set    aside    where    the    statement  But  it  cannot  be  attacked  ollat- 

of   the   executor   does   not   show   all  erally,  or  in  the  action  pending  for 

the    assets  and   indebtedness    of   his  partition, 

estate,  and  especially  where  it  does  lo  In  re  DeSerisy,  8  N.  P.  G94. 


159D  FORM  OP  CERTIFICATE  §  1883 

{Title.) 

This  day  came  A.  B.  and  filed  herein,  a  written  statement  of  the  assets 
and  indebtedness  and  expenses,  pertaining  to  tlie  administration  of  said 
estate,  praying  that  a  certificate  might  be  granted  to  him  of  the  amount  of 
money  which  will  yet  be  required  to  pay  all  the  indebtedness  of  said  estate 
for  him  to  file  in  a  partition  pioceedings  pending  in  the  Court  of  Common 

Pleas  of county,  of  the  lands  of  said  deceased;    and  the 

same  was  submitted  to  the  Court.     Whereupon  the  Court  ascertains  and 

finds  that  the  amount  of dollars  will  be  necessary  to  pay  the 

indebtedness  of  said  deceased,  and  expenses  of  administration  of  said  estate 
in  addition  to  the  assets  in  the  possession  of  said  administrator.  And  it  is 
therefore  ordered  that  a  certificate  of  such  fact  be  issued  by  the  Probate 
Court  of  this  county  to  said  administrator  (or  executor)  for  him  to  file  in 
said  partition  proceedings  pending  in  said county. 

§  1883.     Form  of  certificate. 

State  of  Ohio, County,  ss. 

In  the  Probate  Court. 
In  the  Matter  of  the  Estate  of 

A.  B.,  deceased. 

I,  H.  F.,  sole  judge  and  ex-officio  clerk  of  the  Probate  Court  within  and 
for  the  county  aforesaid,  do  hereby  certify  that  I  have  ascertained,  from 
a  statement  of  the  assets,  indebtedness  and  expenses  of  the  said  estate, 
made  and  presented  by  said  administrator  to  this  Court,  and  from  other 

sources,  that  the  sum  of dollars,  in  addition  to  said  assets 

will  be  necessary  to  pay  said  indebtedness  and  expenses. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  affixed  the  seal  of 
the  said  Court  at ,  this day  of ,  A.  D.  190 .  . . 

(Seal.)  H.  F.,  Probate  Judge  and  ex-officio  Clerk.n 

§  1884.  Court  shall  order  so  much  of  proceeds  to  be  paid 
over  to  him,  provided,  etc.  "The  executor  or  administrator 
thereupon  shall  present  such  certificate  to  the  court  in  which 
the  proceedings  for  partition  are,  or  have  been  pending,  and  on 
his  motion  that  court  shall  order  the  amount  named  in  the  cer- 
tificate as  necessary,  to  be  paid  over  to  the  executor  or  admin- 
istrator out  of  the  proceeds  of  sale  of  the  premises,  if  thereafter 
they  are  sold,  or  have  already  been  sold.  Nothing-  herein  con- 
tained shall  prohibit  an  executor  or  administrator  from  pro- 
ceeding to  sell  land  which  belonged  to  such  estate,  to  pay  delits, 
although  it  has  been  sold  on  partition  or  otherwise,  or  the 
proceeds  of  such  sale  fully  distributed."     [R.  S.  §  CI 74.]  '- 

n  This     certificate     filed     in     the  Where  the  creditor's   claim   is   in 
Common  Pleas  Court  is  not  conclu-  the  nature  of   a   judgment,    it  need 
sive   to  crcdi'/jrs   as  to  the   amount  not  he  even  y)resented  to  the  admin- 
required,    thus    where    the    adminis-  istrator.     Ambrose  vs.  Byrne,  Gl   O. 
tratf3r     in     making     his     statement  S.   14^5. 
inadvertently     overlooked     a     claim,  '-'§10819  C  C. 
which    had    been    presented,    it    was  Tt  is  not  the  duty  of  the  Prolmfn 
yet    hold,    that    the    creditor    could  Court    to    provide    for    the    ))!iymeiit 
insist    on    having    the    renl     estnte  <  f  claims  no  one  is  asserting.     Co.K 
sold    to    pay    the    clnim    which    wns  vs.   John,  32  0.  S.  532. 
inadvertently   omitted.      In   re   Cav- 
agna,   8   N.  'P.   557. 


§  1885  PARTITION  1600 

§  1885.     Proceedings  in  Court  of  Common  Pleas. 

It  will  be  observed  that  tke  executor  or  administrator  shall 
at  once  present  said  certificate  to  th©  Court  in  which  the  pro- 
ceedings for  partition  are  pending,  and  on  his.  motion  the 
amoimt  of  such  certificate  must  be  paid  over  to  him.  Of 
course,  if  there  is  any  money  remaining  in  the  hands  of  the 
administrator  after  he  has  paid  all  the  debts  and  expenses,  such 
money  must  be  distributed  as  real  estate  among  the  heirs  of 
the  deceased,  the  same  as  if  it  had  not  been  turned  over  to  the 
administrator.  It  will  also  be  observed  that  the  above  section 
reserves  to  the  administrator  or  executor  the  full  right  to  bring 
a  separate  proceeding  if  he  so  desires.  On  the  administra- 
tor's motion,  the  Court  will  set  apart  to  him  such  part  of  the 
proceeds  as  his  certificate  calls  for. 

§  1886.     Form  of  motion  and  entry  ordering  money  paid. 

The  State  of  Ohio County,  ss. 

In  the  Coui't  of  Common  Pleas. 

F.  B.  et  al.  )  No.  Case 

vs.  > 

B.  B.  et  al.  )  Motion  for  portion  of  purchase  money. 

Now  comes  C.  D.,  administrator  of  the  estate   (or  executor  of  the  will) 

of  A.  B.,  deceased,  producing  the  certificate  of  the  Probate  Judge  of 

county,  to  the  effect  that  the  personal  estate  of  said  decedent, 

subject  to  aaministration,  amounts  to dollars,  and  that  the 

valid  debts  of  said  decedent,  with  the  expenses  of  administering  his  estate, 
amount  to dollars,  and  that  the  real  estate  sold  by  proceed- 
ings in  this  case  is  liable  for  the  payment  of  such  deficit;  and  he  therefore 
moves  the  Court  to  make  an  order,  directing  that  out  of  the  first  moneys 
arising  from  said  sale,  an  amount  sufficient  to  pay  the  residue  of  said  debts 
and  expenses  be  paid  to  him  by  the  sheriff  of  said  county. 

C.  D.,  Administrator  (or  Executor)  as  aforesaid. 

JOURNAL  ENTRY  ORDERING  MONEY  TO  BE  SO  PAID. 

(Title   as  next  above.) 

This  cause  coming  on  to  be  heard  on  motion  of  C.  D..  administrator  of  the 
estate  of  A.  B.,  deceased,  and  the  certificate  of  the  Probate  Judge  of  said 

(or  of )   county,  to  the  effect  that  the  personal  estate  of  said 

decedent,  subject  to  administration,  will  be  insufficient  to  pay  the  debts 
of  said  estate  and  the  expenses  of  its  administration,  and  that  the  sum  of 

dollars  from  the  proceeds  of  the  sale  of  the  real  estate  of 

said  decedent,  the  partition  whereof  is  sought  in  this  cause,  may  be  ordered 
paid  to  said   administrator. 

It  is  therefore  ordered  that  the  sheriff  pay  over  to  said  administrator 

the  said  sum  of  $ out  of  the  proceeds  arising  from  the  sale  of 

said  land,  according  to  law,  and  take  his  receipt  therefor.is 

13  Giauque's  Settlements  of  Estates,  806,  807. 


1601 


INTRODUCTORY,   DEFINITION,   ETC. 


§1887 


CHAPTER  CI. 

ADOPTION  AND  DESIGNATING  HEIR. 
VAGRANT  CHILD. 


COMMITTING 


§  1887    Introductory.  Definition,  etc.      §  1901 

§  1888_How  a  child  may  be  adopted. 

§  1889     Who  may  adopt.  ~  §  1901a 

§  1889a  Court     shall     fix     time     of 
hearing. 

§  lS89b  Duties  of  next  friend.  §  1901b 

§  1890     Adoption    of   child   by   step- 
father  or   stepmother. 

§  1890a  Consents    required.  §  1902 

§  1891     Who  may  be  adopted. 

§  1892     Application   and   form.  §  1903 

§  1S93     How  consent  of  wife  ascer-       §  1904 
tained.  §  1905 

§  1894     Consents    of    parents,    child 

or   next   friend,   etc.  §  1906 

§  1895     The  order  of  the  court. 

§  1896     Hearing. 

§  1897     Entry  of  adoption. 

§  1898     Recording  and  efl'ect  of  the      §  1907 
order. 

§  1899     Extra-territorial   effect.  §  1908 

§  1900    Rights   of  inheritance.  §  1909 


Power  to  revoke  order  of 
adoption. 

Child  must  have  resided 
with  adopting  parent  six 
months. 

When  child  develops  cer- 
tain infirmities  order  may 
be   revoked. 

Heir  at  law  how  desig- 
nated,   etc. 

Nature  of  proceedings. 

Form   of   designation. 

Entry  designating  person 
as   heir. 

Parent  of  vagrant  or  in- 
corrigible child  may  be 
summoned  to  appear  be- 
fore  Probate   Court. 

Proceedings  under  Section 
8031   G.   C. 

Entry,  on  filing  of  affidavit. 

Entry,  ordering  child  com- 
mitted. 


§  1887.     Introductory,  definition,  etc. 

Adoption  is  defined  bj  statute  in  ISTew  York  ^  "  to  be  the 
legal  act  wbereby  an  adult  takes  a  minor  into  relation  of  child, 
and  thereby  acquires  the  right  and  incurs  the  responsibility 
of  parent  in  respect  to  such  minor."  This  will  answer  for  a 
general  definition  under  our  statute.  Such  proceedings  were 
not  recognized  by  the  common  law,  but  were  sanctioned  by  the 
civil  law  as  it  existed  in  many  of  the  continental  countries  of 
Europe.^  It  therefore  exists  purely  by  statutory  law  in  our 
country,  and  being  in  derogation  of  the  common  law,  such 
statutes  arte  strictly  construed,  and  in  order  to  constitute  a  legal 
adoption,  must  be  strictly  followed.     In  some  States  the  action 


1  Laws  of   1896,  Chapt.  272.   §  60. 


2  1  Am.  &  E.  Ency.  of  Jjaw,  2  ed. 
726. 


U887 


ADOPTION 


1602 


of  adoption  is  merely  a  ministerial  act,  like  the  signing-  of  a 
deed,  etc.  In  other  States  it_  is  a  judicial  procedure.  The 
several  sections  of  our  General  Code  comprise  both  of  these 
methods.  The  section  ^  providing  generally  for  the  adoption 
of  a  minor  requires  a  judicial  act.  The  other  section,*  which 
provides  how  a  person  may  designate  another  to  be  his  heir,  is 
merely  a  ministerial  act,  and  does  not  require  a  judgment  of 
the  Court  to  make  it  eifectual.^ 

While  the  statute  must  be  strictly  followed  in  order  to  make 
a  legal  adoption,  yet  there  have  been  cases  in  which  persons 
were  held  to  be  entitled  to  inherit  as  heirs  and  be  treated  as 
diildren  when  no  legal  adoption  had  been  made.  But  this  has 
not  been  upon  the  gi'omid  that  the  defective  proceedings  con- 
stituted a  valid  adoption,  but  upon  the  ground  that  there  was 
a  contract  made  by  the  alleged  parents  to  leave  their  property  to 
such  children,  and  that  the  children  having  performed  the  con- 
ditions of  the  contract,  were  entitled  in  equity  to  have  a  specific 
performance.^ 

reared  and  educated  her  in  every  re- 
spect as  if  she  was  their  own  child. 
Yet  the  Court  held^  that  this  was 
not  a  legal  adoption  and  that  the 
facts  were  not  sufficient  to  support 
a  decree  for  specific  performance. 

In  tlie  case  of  Steele  vs.  Swartz, 
a  verbal  contract  was  entered  into 
with  the  mother  to  adopt  and  make 
her  infant  daughter  the  heir  of  the 
person  taking  the  child;  in  pur- 
suance of  the  agreement  the  infant 
two  j^ears  old,  was  delivered  and  the 
contract  faithfully  performed,  ex- 
cept that  the  statutory  requirements 
for  the  adoption  were  delayed  until 
the  daughter  became  twenty  years 
old,  at  which  time  the  formal  re- 
quirements of  the  statute  were  com- 
plied with,  yet  the  Court  held  that 
this  was  neither  a  legal  adoption  nor 
a  sufficient  part  performance  to  take 
the  case  out  of  the  operation  of  the 
statute   of   frauds. 

In  Kendall  vs,  Kendall.  8  Bull.  1, 


3  §§  8024-5   G.   C,   §  1888. 

4  §  8598   G.    C,    §  1902. 

5  Bird  vs.  Young,  56  0.  S.  210. 

6  Vantine  vs.  Vantine,  15  Atl. 
Rep.  249;  Healey  vs.  Simpson,  113 
Mo.  340;  Vandyne  vs.  Vreeland,  11 
N.  J.  Eq.  370;  Godine  vs.  Kidd,  19 
N.  Y.  Supp.  335. 

Two  very  interesting  cases  upon 
this  question  have  come  before  our 
Supreme  Court;  in  both  instances, 
the  Court  of  last  resort  reversing 
the  Circuit  Court.  Swan  vs.  Sha- 
han,  48  O.  S.  25;  Rev.  1  C.  C.  216; 
1  C.  D.  119;  Steele  vs.  Swartz,  55  O. 
S.  685;  Rev.  8  C.  C.  154;  4  C.  D. 
321. 

In  Swan  vs.  Shahan,  the  infant 
was  taken  wften  about  two  years  of 
age  into  the  family  of  another  party 
and  always  thereafter  treated  as 
their  child,  introduced  into  society 
as  such,  given  away  in  marriage  as 
their  davighter,  entered  the  infant's 
name  in   their   Bible  as  their   own, 


1603  WHO    MAY    ADOPT  §  1888 

§  1888.  How  child  may  be  adopted.  (§  8024.)  Any  proper 
person,  or  a  husband  and  wife  jointly,  may  petition  the  probate 
court  of  the  county  in  which  he  or  they  have  a  legal  settlement, 
of  [or]  the  county  in  which  the  child  resides  or  of  the  county 
in  which  the  child  had  a  legal  residence  when  it  became  a  public 
charge,  for  leave  to  adopt  a  child  and  for  a  change  of  the  name 
of  such  child. 

Statements  of  petition.  Such  petition  for  adoption  shall 
specify  the  name,  age,  and  place  of  residence  of  the  petitioner 
and  of  the  child,  and  the  name  by  which  the  child  shall  be  known  ; 
whether  such  child  is  possessed  of  any  property,  and  the  full 
description  of  the  property,  if  any;  whether  the  child  has  one 
or  both  parents  living;  in  case  one  or  both  are  alive,  then  the 
name  or  names  and  place  of  residence  of  such  father  and  mother 
shall  be  given  unless  proven  to  be  unknown  to  the  petitioner. 

When  nam.es  of  parents  may  be  omitted.  Provided  that  if 
such  child  sought  to  be  adopted  is,  by  previous  order  of  a 
juvenile  court,  under  the  legal  guardianship  and  permanent  cus- 
tody of  a  state  board  or  of  an  institution  or  agency  certified  by 
the  board  of  state  charities  for  the  care  of  children,  or  has  been 
legally  surrendered  to  the  guardianship  of  such  institution  or 
agency,  then  the  names  of  parents  shall  be  omitted  from  such 
petition, 

Verification  of  petition.  But  the  court  shall  cause  such  alle- 
gation and  the  petition  to  be  verified.    [109  v.  177.]' 


§  1889.    Who  may  adopt. 

Several  jurisdictional  facts  must  appear,  entitling  a  person 
to  file  his  petition  for  adoption.  In  the  first  place,  he  must 
be  an  inhabitant  of  this  State  and  must  also  show  that  he  is  an 
inhabitant  of  the  county  in  which  the  proceedings  to  adopt  are 

it  was  held  that  the  acts  showing  an  appear  that  the  statutory  coiulitiona 
adoption  of  the  child,  as  treating  it  have  heen  strictly  performed,  othcr- 
as  the  parents'  own,  acknowledging  wise  the  relation  never  existed  and 
that  he  was  her  child  without  statu-  the  right  to  inherit  never  was  ac- 
tory  adoption,  are  not  sufficient  to  quired, 
constitute    the    child    an    heir    as  ^  §  8024  G.  C. 
against    other*    children.      In    this  A   decree  of  adoption  is   not  in- 
case, the  supposed  mother  had  the  valid  because  it  docs  not  recite  nor 
child  baptized  as  her  son  and  gave  the  petition  allege  an  assent  by  the 
him  a  name.  parents  or  facts  excusing  their  as- 
See  Ex  parte  Clark,  2G  Bull.  2S1,  sent.    Taylor  vs.  Bushnell,  20  O.  C. 
where  it  was  held  that  no  matter  A.    407.      See    Snyder    vs.    Phuttle- 
how  persuasive  may  be  t!ie  equities  worth,  37  0.  C.  C,  for  contract  to 
of  the  child's  case,  or  how  clear  the  adopt — how  to  enforce, 
intention  of  all  the  parties,  it  must 


§  1889a  ADOPTION  1604 

brouglit.®  lu  the  second  place,  if  the  party  be  married,  the 
husband  and  wife  must  jointly  file  the  petitions,  except  possibly 
where  an  adoption  is  made  by  a  step-father  of  the  children  of 
his  wife,  or  vice  versa.^  An  unmarried  person  may  adopt  a 
minor.  In  addition,  it  must  be  shown  that  the  parties  seeking 
an  adoption  are  able  to  properly  educate  the  child,  having  ref- 
erence to,  to  the  degree  and  condition  of  the  child's  parents.^* 

Societies  and  corporations  can  not  adopt  children,  although 
in  some  eases  where  children  are  placed  in  their  charge  they 
have  full  and  complete  control  over  them/*^ 

It  has  been  held  that  a  guardian  might  adopt.^"* 

§  1889a.  Court  shall  fix  time  for  hearing.  (§8024-1.)  Upon 
the  presentation  of  such  petition  the  same  shall  be  filed  with 
the  court  and  the  said  court  shall  appoint  a  day  for  the  hearing 
of  said  petition  and  the  examination,  under  oath,  of  the  parties 
in  interest,  not  less  than  ten  nor  more  than  thirty  days  from 
the  filing  of  the  petition.  It  shall  be  at  the  option  of  the  court 
to  adjourn  the  hearing  of  said  petition  or  the  examination  of 
the  parties  in  interest,  from  time  to  time,  as  the  nature  of  the 
case  may  require. 

Appointment  of  next  friend.  If  it  shall  be  necessary,  under 
the  provisions  of  this  act,  that  a  discreet  and  suitable  person 
shall  be  appointed  as  next  friend  to  the  child  sought  to  be 
adopted,  the  court  shall  make  such  appointment  and  shall  there- 
upon assign  a  day  for  the  hearing  of  said  petition  and  examina- 
tion of  the  parties  in  interest,  not  less  than  ten  nor  more  than 
thirty  days  from  the  time  of  appointing  the  next  friend.  In  case 
there  is  in  the  county  an  institution  or  agency  approved  by  the 
board  of  state  charities,  such  institution  or  agency  may  be 
designated  as  next  friend  and  consent  be  given  as  indicated  in 
section  8025.  Or  the  court  may  order  the  board  of  state  chari- 
ties through  an  authorized  representative  to  act  in  such  capacity. 

Report  of  next  friend.  Such  person,  institution,  agency  or 
board  thus  designated  shall  proceed  to  verify  the  allegations 
of  the  petition,  shall  make  appropriate  inquiry  to  determine 
whether  the  proposed  foster  parents  and  their  home  are  suitable 
for  such  child,  and  whether  such  child  is  a  proper  subject  for 
adoption  in  such  home. 

8  Inhabitant  is  synonymous  with  9  §  8026  G.  C. 

permanent    resident.      Wolff's    Ap-  9*  §  8027  G.  C. 

peal,  22  W.  N.  C.  (Pa.)    See  §§  74,  9*  §  8029  G.  C. 

93.  10  §  8031  G.  C. 

8*  Statute   now   permits   applica-  lo*  Bancroft  vs.  Bancroft,  53  Vt. 

tion  to  be  made   in  county  of  the  9;     Sewell    vs.    Robert,    115    Mass. 

residence   of   the   adopters   or   that  262. 
of  the  child.     See  §  1888  G,  C. 


1605  ADOPTION  BY  STEP-FATHER,  ETC.  §  1889b 

When  next  friend  not  to  be  appointed.  If  such  child  is  un- 
der the  legal  guardianship  of  a  state  board  or  of  any  certified 
institution  or  agency,  no  next  friend  shall  be  appointed,  but 
such  board,  institution  or  agency  shall  prepare  the  report  re- 
quired by  this  section.  As  soon  as  practicable,  there  shall  be 
submitted  to  the  court  a  full  report  in  writing,  with  a  recom- 
mendation as  to  the  proposed  adoption  and  any  other  informa- 
tion concerning  such  child  or  the  proposed  home  as  the  court 
may  require. 

Hearing,  etc.  Upon  the  day  so  appointed,  the  court  shall 
proceed  to  a  full  hearing  of  the  petition  and  the  examination 
of  the  parties  in  interest,  under  oath,  with  the  right  of  adjourn- 
ing the  hearing  and  examination  from  time  to  time  as  the  nature 
of  the  case  may  require.  The  board  of  state  charities  shall  pre- 
pare and  furnish  to  the  probate  court  a  suitable  blank  for  use 
by  persons  designated  to  make  the  report  required  by  this  sec- 
tion.    [109  V.  178.] 

§  1889b.  Duties  of  next  friend,  etc.  The  next  friend, 
whether  it  be  a  person  or  an  institution  such  as  the  statute  pro- 
vides, shall  verify  the  allegations  of  the  petition;  that  is,  shall 
satisfy  itself  that  the  allegations  are  true,  and  shall  by  appro- 
priate inquiry  learn  whether  the  persons  filing  the  petition  are 
suitable  and  proper  persons  to  adopt  the  child  and  will  give  it 
a  proper  home.  The  next  friend  shall  also  find  out  whether  the 
child  is  a  proper  subject  for  adoption.  Just  what  the  latter 
includes  is  not  readily  discernible,  but  it  recognizes  that  the 
child  might  be  in  such  condition  that  it  ought  not  to  be  adopted. 
For  instance,  if  it  had  a  good  home  and  good  surroundings, 
which  would  likely  continue,  it  might  not  be  to  its  interests  to 
be  adopted  by  any  one.  It  might  not  be  advisable  to  permit  a 
child  of  Protestants  to  be  adopted  by  Catholics,  or  vice  versa, 
if  the  blood  relatives  objected ;  or  a  child  of  one  race  adopted 
by  those  of  another  race ;  or  if  it  was  delicate  or  diseased,  or  not 
strong  mentally  or  physically,  or  viciously  inclined. 

Vv^hether  or  not  the  "next  friend"  should  file  a  report  such 
as  the  state  board,  etc.,  should  file  where  no  "next  friend"  is 
appointed,  may  be  questionable,  but  it  would  be  advisable  so  to 
do.  The  statute  provides  that  the  state  board  of  charities 
should  prepare  and  furnish  such  a  blank  upon  which  to  make 
a  report. 

When  this  report  is  made,  the  "next  friend"  or  board,  insti- 
tution or  agency  should  file  its  written  consent,  or  refusal  to 
consent. 

§1890.  Adoption  by  step-father  or  step-mother.  "An  in- 
habitant of  this  state,  the  husband  of  a  woman  who  has  a  minor 
child  or  children  by  a  former  husband;  or  an  inhabitant  of  this 
state  the  wife  of  a  man  who  has  a  minor  child  or  children  l)y  a 
former  wife,  may  petition  the  probate  court  of  his  or  her  proper 
county  for  leave  to  adopt  such  minor  child  or  children  and, 
when  the  application  is  made  by  the  husband  alone,  or  jointly 


§  1890a  ADOPTION  1606 

with  liis  wife,  for  a  change  of  the  name  or  names  of  such  child 
or  children.  When  each  have  such  minor  child  or  children,  the 
application  may  be  made  jointly  b}^  the  husband  and  wife.'' 
[R.  S.  §3137a.]'' 

Sec.  8027.  In  any  adoption  in  accordance  with  section  8026 
the  provisions  of  section  8025  shall  apply  in  the  manner  of  con- 
sent, so  far  as  applicable.     [109  v.  179.] 

The  paramount  purposes  of  these  sections  is  to  make  an 
adopted  child  the  equal  to  all  intents  and  purposes  of  a  natural 
child."*^  This  section  does  not  make  an  adopted  child  the  child 
of  the  petitioner  so  that  an  action  for  wrongful  death  of  such 
child  may  be  maintained,  etc.^^*^ 

§  1890a.  Consents  required.  (§8025.)  In  any  adoption  pro- 
ceedings written  consents  must  be  given  to  such  adoption  as 
follows : 

(a)  [Of  child.]  By  the  child  sought  to  be  adopted  if  more 
than  thirteen  years  of  age. 

(b)  [Of  parent.]  By  each  of  the  living  parents  or  by  the 
mother  of  an  illegitimate  child,  except  as  follows : 

(c)  [Of  person  awarded  custody  by  juvenile  court.]  By  the 
parent  or  person  awarded  the  legal  custody  and  guardianship 
by  a  juvenile  court  because  of  dependency,  or  because  of  the 
mental,  moral  or  other  unfitness  of  one  or  both  parents ;  pro- 
vided that  such  juvenile  court  approves  of  such  consent  where- 
upon the  jurisdiction  of  such  court  over  such  child  shall  cease. 

(d)  [Of  divorced  parent.]  By  the  parent  awarded  custody 
of  child  by  divorce  decree,  provided  the  court  which  granted 
such  decree  approves  of  such  consent,  and  because  of  such  ap- 
proval the  jurisdiction  of  such  court  over  such  child  shall 
thereupon  cease. 

(e)  [Of  guardian.]  By  legal  guardian  of  the  person  of 
such  child,  if  parents  are  dead  or  their  residence  has  been 
unknown  for  at  least  one  year,  or  if  the  parents  have,  because 
of  mental,  moral  or  other  unfitness,  been  deprived  of  legal  cus- 
tody and  guardianship  of  such  child  by  juvenile  court ;  but  if 
there  is  no  guardian  and  such  child  is  not  the  ward  of  a  state 
board  or  of  a  certified  institution  or  agency,  a  next  friend  shall 
be  appointed  as  hereinbefore  provided,  to  give  consent. 

(f )  [Of  person  having  custody,  etc.]  If  the  parent  or  parents 
having  the  legal  custody  give  the  custody  of  such  child  for  the 
full  term  of  its  minority  to  any  institution  or  agency  established 

ii§§802G  and  8027  G.  C.  naKroff   vs.    Armhein,    94   O.    S. 

Step-daughter    is   not   a  daughter  282;   27  0.  C.  A.   193. 

within     §11738     G.    C.    Kraft    vs.  nuBoswell  vs.  Railway,  22  C.  C 

Wolfe,  3  K  P.   (N.S.)    105;   19  Dec.  (N.S.)    251;   25  C.  C.  522. 
556. 


1607  WHO   MAY   BE  §  1891 

under  the  laws  of  the  state  to  care  for  children  and  under  the 
approval  of  the  board  of  state  charities,  or  if  such  institution 
or  agency  has  otherwise  legally  acquired  the  custody  and  control 
of  such  child, 

[Certified  copy  of  resolution]  the  president  or  secretary  of 
such  institution  or  agency  shall  file  a  certified  copy  of  the  con- 
sent of  the  board  of  trustees,  or  of  the  proper  officers  authorized 
by  such  institution  or  agency  to  act  in  matters  of  adoption ; 
and  if  such  child  is  a  ward  of  the  board  of  state  charities  or 
other  state  board  the  secretary  of  such  board  shall  file  a  certified 
copy  of  the  consent  given  in  accordance  with  its  rules. 

All  such  consents  to  such  adoptions  shall  be  acknowledged  and 
witnessed.     [109  v.  178.] 

§  1891.  Who  may  be  adopted. 
Only  minors  can  be  adopted,^-  and  if  it  is  sought  to  make  an 
adult  an  heir,  it  must  be  done  under  the  statute  for  designat- 
ing a  person  an  heir,^^  and  where  an  infant  is  placed  in  a 
home  of  a  public  character,  the  trustees  may  sanction  an 
adoption.^* 

§  1892.    Application  and  form. 

The  application  or  petition  should  state  all  the  jurisdictional 
facts.  One  author  says,^^  "Much  unnecessary  confusion  prevails 
in  reference  to  this  topic,  owing  to  the  slovenly  manner  in  which 
these  proceedings  are  many  times  conducted."  The  action  fix- 
ing the  status  of  the  child  often  becomes  of  very  great  importance, 
to  both  the  child  and  adopting  parents,  in  determining  questions 
of  inheritance.  As  the  court  gathers  much  of  its  information 
from  the  petition  filed  in  the  case,  it  will  be  apparent  that  a 
full  statement  of,  not  only  jurisdictional  facts  should  be  given, 
but  such  others  as  will  enable  the  court  to  rightly  determine  the 
matter  before  it.  The  petition  should  state,  first,  the  names  of 
the  petitioners  and  whether  married  or  single;  second,  their 
place  of  residence  and  age;  third,  the  name,  age  and  place  of 
residence  of  the  child,  and  the  name  by  which  it  shall  be  known ; 
fourth,  the  property  which  the  child  has.  and  a  description  of 
the  same;  fifth,  a  statement  that  petitioners  are  possessed  of 
sufficient  means  to  properly  bring  up  and  educate  the  child; 
sixth,  whether  one  or  both  parents  be  living;  if  not  both,  which; 
seventh,  if  living,  the  names  and  residence  of  the  parents  given ; 

12  Steele  vs.  Swartz,  55  0.  S.  !■*  See  when  a  minor  becomes  of 
685;  Rev.  8  C.  C.  154.                               age,  §  1321. 

13  §  8598  G.  C,  §  1902.  15  Rice's  Trob.  Law,  .551. 


§  1892  ADOPTION  1608 

if  not  known  this  fact  should  be  stated ;  eighth,  in  case  the  child 
by  judgment  of  a  juvenile  court,  has  been  placed  under  guard- 
ianship, the  names  of  the  parents,  the  statute  provides,  may  be 
omitted,  but  the  author  thinks  they  should  be  given ;  also  if  such 
child  is  under  such  guardianship  this  fact  should  be  fully  stated ; 
ninth,  that  said  child  has  resided  in  the  home  of  the  petitioners 
since  ,  and  the  application  should  be  veri- 
fied. If  a  change  of  name  is  desired,  this  should  also  be  stated. 
The  following  may  be  used  as  a  general  form : 

PETITIOX  FOR  ADOPTIOX. 
To  the  Honorable  Probate  Judge  of County,  Ohio. 

Your   petitioners,   being  husband   and  wife,   hereby   state  his  name   is 

,  his  age years  and  his  place  of  residence    ,    ; 

that  her  name  is   ,  ber  age years  and  her  place  of  residence 

,    ,  and  he    [they]    hereby  file.,    his    [their]    petition  for  the 

adoption  of  a  child  as  his  [their]  own.     That  the  name  of  the  child  whom 

he   [they]   wish  to  adopt  is    and  that  the  name  by  which  it  will 

hereafter  be  known  is   That  the  said  child's  place  of  residence  is 

, and  that  its  age  is   years. 

That  the  said  child  is  possessed  of  the  following  described  property. 
That  these  petitioners  are  possessed  of  sufficient  means  to  properly  maintain 
and  educate  said  child.     That  the  parernts   of  said  child  are  living  and 

reside  at [or,  if  one  or  the  other  be  dead,  so  state,  or,  if  not  known 

state  all  facts  so  far  as  known  in  full.]  [If  the  child  has  been  under 
control  of  Juvenile  Court  or  has  a  legal  guardian,  state  fact  and  give  place 
of  residence  of  party  now  having  control  of  child.] 

That  said  child  has  resided  in  the  home  of  the  petitioner.,  since  the 
day  of ,19... 

Your  petitioner . .  presents  herewith  the  written  consent  of , 

the  parents  of  said  child,  and  also  that  of  the  child  [if  more  than 
thirteen  years  of  age]. 

Your  petitioner.,  prays  such  pi-oceedings  may  be  had  as  required  by 
law,  and  that  the  court  may  by  its  order  approve  of  such  adoption,  and 

declare  said to  be  the  child  of and ,  your  petitioners, 

and  that  the  name  of  the  child  be  changed  to 


State  of  Ohio,  County  of ,  ss. : 

,  being  first  duly  sworn  says  the  allegations  in  the  above  petition 

are  true  as verilv  believe. 


Sworn    to    and    subscribed   before   me   and    in    mv    presence    this 
day  of   ,19... 


Notary  Public. 


ORDER  FIXING  TIME  OF  HEARIXG  AXD  APPOIXTMEXT  OF 
NEXT  FRIEND,  ETC. 

The  statute  now  requires  when  the  petition  is  filed,  that  the  court 
shall  fix  a  day  for  hearing,  not  less  than  ton  days  nor  more  than  thirty 
days  from  the  time  the  petition  is  filed,  and  the  court  may  continue  the 
case  from  time  to  time,  thereafter.  At  this  time  the  court  appoints  a 
next  friend  to  act  for  the  infant,  and  the  time  of  hearing  will  be  not  less 


1^^^  CONSENTS  OP  PARENTS,  ETC.  §  1893 

than  ten  days  nor  more  than  thirty  days  from  the  time  of  said  appoint- 
hnl^^  f  I.  +  •f''  institution  in  the  county  approved  by  the  state 
board  of  charities  It  may  be  designated  as  the  next  friend.  If  the  child 
IS  a  ready  under  the  legal  guardianship  of  a  state  board,  no  next  friend 
shall  be  appointed;  said  board  shall  act  as  such. 

JOUENAL  ENTRY  ON  FILING  PETITION  ETC 
[Tttle.] 

On  this  day  came  . .  and  filed  their  petition  in  this  court  for  the 

adoption    of     ,    the    child    of     ,    and    the     day    of 

,19...,  at   ...   m.  13  fixed  for  the  time  of  hearing  the  same  and 

;. IS  appointed  to  act  for  child  as  next  friend,  and  make  the  examina- 
tions required  by  statute,  and  report  thereon  at  the  time  of  said  hearin"- 
and  it  is  ordered  that give  notice  to  said as  to  his  appoint- 
ment as  next  friend,  and  the  time  fixed  for  hearing. 

[It  appearing  to  the  court  that  said is  under  the  legal  guardian- 
ship of   ,  a  state  board,  etc.,  no  next  friend  is  appointed,  but  it  is 

ordered  that  notice  hereof  be  given  to  said ,  and  the  time  fixed  for 

hearing  the  same.] 

^  §  1893.  How  consent  of  wife  ascertained.  "When  the  peti- 
tion is  filed  by  a  husband  and  wife,  the  court  shall  examine 
each  separate  and  apart  from  the  other  and  refuse  leave  for 
such  adoption  unless  satisfied  from  the  examination  that  each 
petitioner  of  his  or  her  own  free  will  and  accord  desires  it  " 
[R.  S.  §3138;  109  V.  179.] i« 


§1894.    Consents  of  parents,  child  or  next  friend,  etc. 

The  statute  must  be  strictly  followed  in  reference  to  having 
the  consent  of  the  child,  if  over  13  years  of  age,  and  also  the 
consent  of  both  parents,  except 

First,  when  the  legal  custody  of  the  child  has  been  awarded 
to  some  other  person  by  the  juvenile  court;  then  it  seems  the 
consent  should  be  signed  by  the  person  to  whom  the  child  was 
awarded  and  the  juvenile  judge. 

Second,  when  the  child  was  awarded  to  the  custody  of  one 
of  the  parents  by  decree  in  divorce,  then  such  parent  signs  the 
consent  and  also  a  judge  of  the  court  which  granted  the  divorce. 

Third,  when  there  is  a  legal  guardian  -of  the  child,  and  the 
parents  are  dead,  or  their  residence  has  been  unknown  for  one 
year,  or  if  the  parents  have  been  deprived  of  the  custody  of 
such  child  by  the  juvenile  court,  then  the  guardian  may  give 
such  consent. 

Fourth,  if  there  is  no  legal  guardian  and  such  child  is  not  the 
ward  of  a  state  board  or  of  a  certified  institution  or  agency,  a 
"next  friend"  shall  be  appointed,  and  if  the  parents  are  dead 

16  §  8028  G.  C.  See  note,   8  1888. 


§  1895  ADOPTION-  1610 

or  their  residence  unknown  for  at  least  one  year,  or  if  the  parents 
have  been  deprived  of  the  legal  custody  of  such  child,  etc.,  then 
the  ''next  friend"  gives  such  consent. 

Fifth,  if  the  parents  have  surrendered  the  custody  of  such 
child  for  its  full  term  of  minority,  to  any  institution,  etc., 
established  by  law  to  care  for  children,  etc.,  or  if  such  institu- 
tion, etc.,  has  legally  acquired  the  control  of  such  child,  then 
the  consent  shall  be  given  by  a  copy  of  the  consent  of  the  board 
of  trustees  or  proper  ofncials  being  filed  by  the  president  or 
secretary  of  the  institution. 

The  statute  further  provides  that  all  consents  shall  be  acknowl- 
edged and  witnessed.  This  would  undoubtedly  apply  to  all 
consents  given  by  parent,  guardian  and  "next  friend,"  but 
might  net  apply  where  an  institution  acts  by  resolution  of  its 
governing  body  and  certified  copy  of  resolution  is  filed,  etc. 

CONSENT  OF  PARENTS. 
[Title.] 

The  undersigned  represent  tliat  they  are  the  parents  of  E.  F.,  a  minor 

child  of  the  age  of years.     And  they  hereby  consent  to  the  adoption 

of  said  child  by  A.  B.,  and  C.  B.,  his  -wife,   of    Countj^  and  State 

of  Ohio.     They  also  consent  that  the  name  of  said  child  may  be  changed. 

'[Signed.]  19 

Signed  in  our  presence. 


State  of  Ohio, County,  ss.: 

Be  it  remembered  that  on  the    day  of    ,   19 . .  .    appeared 

before  me  a in.  and  for  said  county,  personally   and   

and  acknowledged  the  signing  of  the  foregoing  consent  to  be  their  volun- 
tary act  and  deed,  and  for  the  uses  and  purposes  therein  expressed. 


§  1895.  The  order  of  the  Coiirt.  (§  8029.)  If  the  court, 
from  the  testimony,  shall  be  of  the  opinion  that  the  facts  stated 
in  the  petition  are  true,  and  that  the  petitioner  or  petitionees 
are  of  good  moral  character  and  of  reputable  standing  in  the 
community,  and  of  ability  to  properly  maintain  and  educate 
the  child  sought  to  be  adopted,  and  that  the  best  interests  of 
the  child  vfould  be  pl-oraoted  by  such  adoption,  and  that  such 
child  is  found  to  be  suitable  for  adoption,  and  is  satisfied  that 
all  the  provisions  relative  to  adoption  have  been  complied  with, 
then  the  court  shall  make  a  decree  reciting  the  facts  at  length, 
and  the  name  by  which  the  child  shall  hereafter  be  known. 
[R.  S.  §3139;  109  V.  179.]^" 

19  Whittaker's  Prob.  Code.  statute   are   complied   with.     Kraft 

20  §8029  G.  C.  vs.  Wolfe,  2  N.  P.    (N.S.)    105;    15 
Adopted   child  is  not  a   child  of      Dec.  556. 

the  petitioner  until  provisions  of  the 


1611  ITEARIXG  §  1896 

§  1896.  Hearing. 
Before  the  court  can  make  the  order,  it  must  affirmatively 
appear  that  the  statutory  provisions  of  sections  8024,  G.  C,  to 
8028,  G.  C.,  have  been  complied  with,  and  in  addition  to  this 
fact,  the  court  must  be  satisfied  of  the  ability  of  the  petitioners 
to  bring  up  and  educate  the  child  in  2  proper  manner,  and 
further  that  such  adoption  is  a  fit  and  proper  thing  and  for 
the  best  interest  and  welfare  of  the  child.  In  all  cases  the 
courts  have  held  that  the  welfare  of  the  child  is  the  highest 
matter  of  consideration  for  the  court.  These  matters  being 
somewhat  of  a  pro  forma  character,  the  Probate  Judge  some- 
times, I  fear,  does  not  consider  the  questions  presented  in 
such  cases  as  fully  as  the  rights  of  the  parties  demand.  The 
court  should  be  satisfied  that  the  adopting  parents  are  not  only 
financiaUrj  ahle  to  properly  take  care  of  the  child,  but  that  they 
are  of  such  a  moral  character  that  the  interest  of  the  child  will 
be  enhanced  by  such  an  adoption.  The  child's  future  social  wel- 
fare should  be  considered,  and  much  the  same  care  should  be 
exercised,  only  in  a  higher  degree,  as  when  the  court  makes 
choice  of  a  guardian.-^ 

§  1897.    Entry  of  adoption. 

The  State  of  Ohio, County,  ss. : 

County  Probate  Court. 

In  the  matter  of  the  adoption  and  change  of  name  of It  appear- 
ing to  the  court,  from  tiie  petition  of  and  ,  his  wife,  resi- 
dents  of   this   county,   tiiat  tiiey   desire   to   adopt    ,   a  minor   child, 

not  theirs  by  birth,  and  that  tiie  name  of  said  child  may  be  changed  to 

,  saidchild  being years  of  age,  on  the day  of , 

A.  D.  19...,  and  said  petitioners  having  produced  the  written  consent  of 

to   such   adoption   and    change   of   name:      And   tiie   court   having 

examined    ,   the   wife   of   said   petitioner   separate   and   apart   from 

her  said  husband,  the  court  is  satisfied  from  such  examination  tliat  said 

of  her  own  free  will  and  accord  desires  such  adoption.     And  the 

court  being  satisfied  of  the  fitness  and  propriety  of  sucli  adoption,  and  of 
the  ability  of  said  petitioners  to  bring  up  and  educate  said  child  ])roperly; 
now,  therefore,  the  court  orders  that  such  adoption  bo  and  is  now  made; 

and  that  from  this  date  tlie  said    ,  minor  child,  to  all   intents  and 

purposes   is  tlie  child  of  the  said    and    And   it  is  further 

ordered  that  the  name  of  said  child  be  and  is  now  changed  from to 

,  as  prayed  for  in  said   petition. 22 

21  §  1330.  the    parents    has    been    ^nvcn.      20 

It   has    therefore   been    held    tliat  Cen.  L.  .1.,  320. 

the    court    \  ould    not    sanction    the  22  Whittaker's  Prob.   Code, 

adoption  of  a  white  boy  by  a  Clii-  If  it  was  necessary  to  appoint  a 

ncse    man    and    wife,    although    in  suitable  and  discreet  person  to  act 

needy  condition,  and  the  consents  of  for  the  child  in  giving  consent,  this 

fact  should   bo  stated  in   tlie  entry. 


§  1898  ADOPTION  1612 

§1898.  Recording  and  effect  of  order.  (§8030.)  The  peti- 
tion, decree  and  proceedings  shall  be  recorded  in  a  book  kept 
for  that  purpose  and  properly  indexed ;  such  book  shall  become 
part  of  the  records  of  the  probate  court  and  all  reports  and 
affidavits  shall  be  properly  filed. 

Natural  parents  divested  of  rights,  etc.  Except  when  such 
child  is  adopted  under  the  provisions  of  sections  8026  and  8027, 
upon  such  decree  of  adoption  the  natural  parents  of  the  child, 
if  living,  shall  be  divested  of  all  legal  rights  and  obligations 
due  from  them  to  the  child  or  from  the  child  to  them ;  and  the 
child  shall  be  free  from  all  legal  obligations  of  obedience  or 
otherwise  to  such  parents ; 

Eights  of  adopting  parents.  And  the  adopting  parent  or 
parents  of  the  child  shall  be  invested  with  every  legal  right  in 
respect  to  obedience  and  maintenance  on  the  part  of  the  child 
as  if  said  child  had  been  born  to  them  in  lawful  wedlock  j 

Eights  of  child.  And  the  child  shall  he  invested  with  every 
legal  right,  privilege,  obligation  and  relation  in  respect  to  edu- 
cation, maintenance  and  the  rights  of  inheritance  to  real  estate, 
or  to  the  distribution  of  personal  estate  on  the  death  of  such 
adopting  parent  or  parents  as  if  born  to  them  in  lawful  wedlock ; 

When  inheritance  limited.  Provided,  such  child  shall  not 
be  capable  of  inheriting  property  expressly  limited  to  the  heirs 
of  the  body  of  the  adopting  parent  or  parents;  and  provided 
also,  on  the  death  of  the  adopting  parent  or  parents  and  the 
subsequent  death  of  the  child  so  adopted,  without  issue,  the 
property  of  such  deceased  parent  or  parents  shall  descend  to 
and  be  distributed  among  the  next  of  kin  of  said  parent  or 
parents  and  not  to  the  next  of  kin  of  the  adopted  child ;  and 
provided,  also,  if  such  adopting  parent  or  parents  shall  have 
other  cliild  or  children,  then  the  children  by  birth  and  adoption 
shall,  respectively,  inherit  fi'om  and  through  each  other  as  if 
all  had  been  children  of  the  same  parents  born  in  lawful  wedlock. 

Inheritance  from  natural  parent.  Nothing  in  this  act  shall 
be  construed  as  debarring  a  legally  adopted  child  from  inherit- 
ing property  of  its  natural  parents  or  other  kin.  [R.  S. 
§3140;  109  V.  179.]-=^ 

The  intent  of  the  statute  is  to  invest  the  child  with  all  the 
rights  and  privileges,  the  same  as  a  child  bom  in  wedlock  and 
begotten  of  the  blood  of  the  adopter,  except  as  to  limitations 
provided  in  the  statute.-^^ 

§  1899.    Extra-territorial  effect. 

The  judgment  or  decree  of  the  court  which  allows  the  adop- 
tion affects  the  legal  status  of  both  the  adopting  parents  and 

23  §  8030  G.  C.  23a  Kroff   vs.   Armliein,   94   0.    S. 

See    statute   as   to   limitation   of      282. 
inheritance. 


1613  RIGHTS    OP    INHERITANCE  §  1900 

the  childr*  aud  it  is  now  settled  that  a  child  adopted  in  one 
State  in  accordance  with  the  laws  of  such  State,  while  the  par- 
ties are  domiciled  there,  will  be  recognized  in  another  State, 
and  such  child  will  be  held  to  be  the  legal  child  of  the  adopt- 
ing parents  in  such  other  State  for  the  purpose  of  inheriting 
the  property  there.-^ 

§  1900.  Rights  of  inheritance. 
While  the  adopted  child  is  the  legal  heir  of  the  person  so 
adopting  him  or  her,  yet  as  to  the  inheritance  of  property  both 
by  and  from  the  child,  there  is  some  difference  between  an 
adopted  child  and  a  child  by  birth.  In  one  case,-*'  where  an 
adopted  child  died  intestate  and  leaving  its  natural  mother  and 
its  adopting  parents  surviving  it,  it  was  held  that  the  property 
of  such  adopted  child  passed  to  the  natural  mother  to  the  ex- 
clusion of  the  adopting  parents  and  their  natural  children.  In 
another  case  it  was  said:  "The  statute  enables  the  adopted 
child  to  inherit  from  its  adopter,  but  not  through  him.  The 
statute  does  not  make  the  adopted  child  the  heir  of  the  ances- 
tors of  its  adopter,  and  the  right  of  the  adopted  child  to  in- 
herit can  not  be  extended  beyond  where  the  statute  has  fixed 
it."  2^ 

Where  a  child  was  adopted  and  the  adopting  mother  died 
without  issue,  and  thereafter  such  adopting  mother's  father 
died,  leaving  real  estate,  it  was  held  that  the  adopted  child 
could  not  inherit  such  property.  The  court  said,  "that  adop- 
tion of  the  child  did  not  make  her  of  the  blood  of  her  adopting 
mother 's  father. ' '  ^* 

The  acts  of  adoption  give  to  the  adopted  heir  the  legal  status 
of  a  child  of  the  adopter,  born  in  lawful  wedlock ;  aud  the  stat- 
s'* Paul   vs.   Davis,    100   Tnd.   422.  Does  not  take  away  right  to   in- 

25  (.'laighead  vs.  Pike,  4  Uec.  l!)fl;  lierit  from  natural  parents.  Knecae 
Keegan  vs.  Geraghty,  101  111.  26;  1  vs.  Hake,  3  0.  L.  R.  GIO;  10  Dec. 
Am.  &  Eng.   Ency.  of  Law,  2(1  ed.,       470. 

733.      The    fact    that    an    adopted  Property  of  such  cliild   passes  to 

child    has    been    absent    from    home  its    natural    mother.      Lathrop    vs. 

and   missing   for   eleven   years   does  Young,  25  0.  S.  457. 

not    extinguish     her    title    to     the  A  cliild  adopted  in  a  foreign  state 

property     left    her     by     her    foster  has    inlieritative    cajiacily    to    lands 

parents.      Oglesby    vs.    Rose,    11    N.  in  the  state.     Simpson  vs.  Simpson, 

P.  188;   21  Dec.  201.  9    C.    C.    (X.S.)     1.37;    29    O.    C.    C. 

26  Upson  vs.  Noble,  35  0.  S.  G55.  503. 

27  Phillips  vs.  ^IcConica,  5!)  0.  S.  1.  A  widow  of  a  deceased  person  can 
See   Spangenbergcr  vs.   Guiney,   3       not    inherit   from    an    ado|)ti'd    child 

Dec.  163;   2  N.  P.    (N.S.)   39,  for  in-  property  received  by  such  eliild  from 

heritance  from   cliild  dying  without  such  deceased  person.    //?  rr  Jlasfold, 

issue.      Adopted    cliild    can    inherit  (I  X.  P.    (\.S.)    172;   IH  Dee.  3!Ui. 

from,    but    not    through,     adnptin-/  28  Quigley   vs.   I^Iitcheli,   41    O.    S. 

parent.      Theobold   vs.    Fugmaii,    64  375. 
O.  S.  473. 


§  1901  ADOPTION  1614 

ute  requires  him  to  be  regarded  as  such  child  in  tracing  descent 
to  or  from  him  in  the  cases  therein  specified.  But  in  cases 
which  do  not  come  within  those  acts,  the  operation  of  the  statute 
of  descents  is  the  same  as  if  such  acts  had  not  been  passed.^'' 
A  grandchild  duly  adopted  by  the  grandparent  becomes  his 
heir,  and  takes  the  share  of  his  lands  like  the  other  children, 
but  is  not  entitled  to  inherit  the  additional  share  of  its  parent.^" 

§  1901.     Power  to  revoke  order  of  adoption. 

The  statute  provides  no  right  of  appeal  in  adoption  proceed- 
ings. No  doubt  exists,  however,  but  that  the  order  made  is  a 
final  order  from  which  a  proceeding  in  error  might  be  prose- 
cuted under  the  statute  relating  thereto.  As  to  the  power  of 
the  court  to  directly  revoke  the  order,  some  little  difficulty  is 
experienced.  There  seems  to  be,  however,  no  good  reason, 
where  the  order  was  made  under  a  misapprehension  of  fact,  or 
where  fraud  was  practiced  upon  the  court,  why  the  court 
should  net  entertain  jurisdiction  and  revoke  such  order.  In  a 
case  in  Massachusetts  it  was  said  there  would  seem  to  be  noth- 
ing in  the  nature  of  a  decree  of  adoption  to  take  away  the 
power  of  the  Probate  Court  to  revoke  and  annul  it  on  the 
-ground  that  it  had  been  procured  by  fraud  practiced  upon  the 
court.^^ 

In  one  reported  ca.se  in  Ohio,^^  where  representation  was 
made  to  the  court  that  the  mother  had  abandoned  the  child,  and 
a  few  days  thereafter  to  revoke  the  order,  the  court  enter- 
tained jurisdiction  and  revoked  its  former  order.  It  would 
seem  to  be  the  law,  however,  in  Ohio  that  if  a  motion  is  filed  to 

29  Latlirop  vs.  Young,  25  0.  S.  451,  proof  that  the  adoption  was  irregu- 
463;  Spangenberger  vs.  Guiney,  2  lar  in  some  essential  particular. 
N.  P.  3LI;  3  Dec.  163.  ^Simpson     vs.     Simpson,     9     C.     C. 

See  §4174  R.  S.,  §936,  as  to  ca-  (N.S.)    137;  29  0.  C.  C.  503. 

pability   of   bastards   as   to   inherit-  It  has   been   held   in  McClure  vs. 

ance.  Williams,  78  So.  Kep.   1918    (Ala.), 

An  adoj^ted  cliild  as  next  of  kin  that  a  court  of  chancery  might,  if 
has  the  riglit  to  administer  the  the  best  interests  of  tlie  chihl  de- 
estate  of  its  deceased  parent.  Woer-  mandcd  it,  restore  an  adopted  child 
ner  on  Admin.  522.  to    its    natural    parents    and    cancel 

30  Smith  vs.  Carvcn,  30  Bull.  189  the  record  of  the  Probate  Court 
(Sup.   Ct.  unreported).  showing    its    adoption.      The    order 

A     liusband     whose     wife     before  was    refused    in    the    case,    however, 

marriage  liad  adopted  a  child  is  en-  beause   it   was   not   shown   that   the 

titled  to  dower   in  the  wife's   prop-  best  interests  of  the  child  demanded 

crty — the  same  as  if  the  child  was  it.     In  Ohio   it  has  been   held   that 

the     wife's     bv     birth.       Clark     vs.  the   order  could   not  be   collaterally 

Harlan,   17  Bull.  320.  attacked.      Taylor   vs.    Bushnell,    29 

Where  the  record  or  deed  of  adop-  0.  C.  A.  497. 
tion  of  a   child   states   that   it  was  31  Tucker  vs.  Fisk,  154  Mass.  574; 

duly  and  legally  done;   in  order  to  Brown  vs.  Brown,  101  Ind.  340. 
invalidate    the    adoption,    it    must  ^^  In   re   Olson,    3    N.    P.    304;    3 

affirmatively     be     shown     by     clear  Dec.  668. 


1615  HEIRS    AT    LAW  §  1901a 

no  notice  was  given  to  the  mother  and  a  motion  was  filed  within 
revoke  an  order  of  adoption,  it  must  be  done  during  the  same 
term  that  the  order  was  made,  and  for  this  purpose  the  Probate 
Court  has  three  terms  in  each  year.^^  If  the  order  is  sought 
to  be  set  aside  after  the  term  at  which  it  is  made,  then  a  pro- 
ceeding must  be  had  as  provided  by  the  general  statute.^* 

One  court,  however,  has  held  that  when  the  Probate  Court 
makes  its  erder  that  is  exclusive  so  far  as  that  court  is  con- 
cerned.^^ Further,  it  may  be  generally  said,  that  as  the  Pro- 
bate Court  is  a  court  of  record,  and  its  orders  and  decrees  im- 
pute absolute  verity,  an  order  of  adoption  can  sot  be  attacked 
in  any  collateral  proceeding. 

§  1901a.  Child  must  have  resided  with  petitioner  six 
months.  (§  8030-1.)  No  decree  of  adoption  shall  be  made 
until  such  child  has  resided  in  the  home  of  the  petitioner  for 
at  least  six  months,  unless  the  court  for  some  special  reason 
which  shall  be  entered  in  the  record  deems  it  best  to  waive  this 
requirement.     [109  v.  180.] 

§  1901b.  When  child  develops  certain  conditions — order 
may  be  revoked.  (§  8030-2.)  If,  after  its  adoption  and  before 
it  becomes  fourteen  years  of  age,  a  child  develop.s  feeble-minded- 
ness,  epilepsy,  insanity,  or  venereal  disease  as  a  result  of  condi- 
tions existing  prior  to  adoption,  and  of  which  the  adopting 
parent  had  no  knowledge  or  information,  a  petition  setting  forth 
such  conditions  may  be  filed  in  the  court  which  entered  the 
decree  of  adoption,  and  if  such  conditions  are  proved  to  the 
satisfaction  of  the  court,  such  adoption  may  be  declared  null 
and  void.  The  court  shall  thereupon  make  proper  disposlHon 
of  such  child  by  a  commitment  to  an  appropriate  state  institu- 
tion as  provided  in  the  laws  of  Ohio  or  refer  such  child  to  the 
juvenile  court.     [109  v.  180,] 

§1902.  Heir  at  law,  how  desi^ated,  etc.  "A  person  of 
sound  mind  and  memory  may  appear  before  the  probate  judge 
of  his  county,  and  in  the  presence  of  such  judge  and  two  dis- 
interested persons  of  his  or  her  acquaintance,  file  a  written 
declaration,  subscribed  by  hira,  which  must  be  attested  by  such 
persons,  declaring  that,  as  his  or  her  free  and  voluntary  act,  he 
or  she  did  designate  and  appoint  another,  naming  and  stating 
the  place  of  residence  of  such  per.son  specifically,  to  stand 
toward  him  in  the  relation  of  an  heir-at-law  in  the  event  of  his 

33  §  5.  fost.or  parents  arisincr  out  of  tln'ir 

34  §§  llfi.3M164.'i  a.  C.  pontraot  nnfl  notnal  oii.'*toflv.  '>nt 
See  Gray  vs.  Fipld.  10  T5ull.  121,  will  look  cliioflv  io  the  host  inter- 
where  it  is  held  that  neitlier  party  ests  of  the  cliiid.  and  if  it  ho  of 
has  a  ripht  of  revocation  on  their  years  of  discretion,  will  cn?isiilt  its 
own  behalf,  but  that  on  a  proper  wishes,  in  determining  its  future 
application,  however,  the  court  will  custody. 

have  a  regard  for  the  natural  riffhts  35  Jn  re  Bush,  47  Kan.  2fi4. 

of    the    parents,   the    riijhts    of    the 


§  1903  ADOPTION.  '  1616 

or  her  death.  If  satisfied  that  such  declarant  is  of  sound  mind 
and  memory,  and  free  from  restraint,  the  judge  thereupon  shall 
enter  that  fact  upon  his  journal,  and  make  a  complete  record 
of  such  proceedings.  Thenceforward  the  person  thus  desig- 
nated will  stand  in  the  same  relation,  for  all  purposes,  to  such 
declarant  as  he  or  she  could,  if  a  child  born  in  lawful  wedlock. 
The  rules  of  inheritance  will  be  the  same,  between  him  and  the 
relations  by  blood  of  the  declarant,  as  if  so  born ;  and  a  certified 
copy  of  such  record  will  be  prima  facie  evidence  of  the  fact 
stated  therein,  and  conclusive  evidence,  unless  impeached  for 
actual  fraud,  or  undue  influence."     [R.  S.  §4182.]^® 

§  1903.     Nature  of  proceeding. 

Tke  proceeding  is  peculiar  to  this  State,  there  not  being,  so 
far  as  we  are  aware,  any  similar  statute  elsewhere,^^  and  it 
has  been  held  in  the  only  reported  case  of  our  State  ^*  that  the 
act  of  the  Probate  Judge  is  rather  of  a  ministerial  character 
and  only  quasi  judicial,  and  that  the  judge  acts  veiy  much  in 
the  same  capacitj^  as  he  would  in  taking  the  acknowledgment 
of  a  deed,  etc. ;  and  that  therefore  it  was  not  necessa.ry  for  the 
person  making  the  designation  to  appear  before  the  Probate 
Judge  in  the  judge's  court  room,  but  that  the  judge  might  go 
to  the  residence  of  the  party,  and  there  ascertain  the  facts  re- 
quired by  the  statute.  That  the  entry  made  by  the  judge,  if 
a  judgment  at  all,  is  only  a  judgment  in  rem,  and  that,  the  pro- 
ceedings bear  some  resemblance  in  their  character  to  the  pro- 
ceedings in  rem,  which  fix  the  status  of  a  person  in  lunacy  or 
insolvency  under  our  statute,  or  bankruptcy  proceedings  under 
the  United  States  statute ;  and  that  the  proceeding  is  ex  parte, 
no  notice  being  required  to  be  given  to  any  one.  Indeed,  the 
character  of  the  act.  is  such  that  it  is  necessarily  presumed  that 
the  Legislature  intended  no  one  should  have  notice.  In  order 
to  accomplish  what  the  statute  permits,  it  must  be  at  least  sub- 
stantially complied  with  —  tliat  is,  the  declaration  must  be 
made  in  the  presence  of  the  judge  and  two  disinterested  per- 
se §  8598  G.  C.  of    the    testator    and    can   not   take 

37  Bird  vs.  Young,  56  0.  S.  218.  advantage    of    bequests    void    under 

38  Bird  vs.  Young,  Id.  %  10514    G.    C.      Theobald    vs.    Fug- 
Authorizes    an   adopter   to   desig-       man,   64   0.    S.   474.      Naming   per- 

nate  who  shall  be  his  heir,  but  not  sons     in    a    will    as    daughters    of 

otherwise  change  the  course  of  de-  testator    will    not    make    them    his 

scent.   Richardson  vs.  Stockyard  Co.  heirs.     In  re  Williamson,   5   N.   P. 

8   N.   P.    (N.S.)    213;    11   Dec.   367.  1,  6  Dec.  505.     However,  they  may 

One  who  is  not  of  the  blood  of  the  be    made   such    by   will.      Moon   vs. 

testator  who  has  been  designated  as  Harness,  15  O.  C.  C.   (N.S.)   139;  23 

heir,  is  not  of  the  issue  of  the  body  O.  C.  C.  337;  affirmed,  87  0.  S.  349. 


^^1^^  FORM   OP   DESIGNATION  §  1904 

sons,  and  it  must  be  made  in  writing,  subscribed  by  the  party 
making  the  same,  and  attested  by  such  disinterested  persons  as 
witnesses.  It  must  name  the  person  designated  as  heir  and 
state  his  place  of  residence.  The  duty  devolving  upon  the 
judge  is  to  satisfy  himself  that  the  declarent  is  of  sound  mind 
and  memory  and  free  from  any  restraint  Evidence  of  tliis 
fact  should  be  the  same  as  would  justify  the  Court  in  ordering 
the  probate  of  a  will.^'^ 

§  1904.    Form  of  designation. 

Enow  all  Men  hy  these  Presents: 

That  I,  J.  Y.,  of  the  township  of  Madison,  in  the  county  of  Fairfield,  and 
State  of  Ohio,  being  of  sound  mind  and  memory,  and  free  from  any  restraint, 
do  hereby  publish  and  declare,  that  as  my  free  and  voluntary  act,  I  have 
designated  and  appointed  and  do  hereby  designate  and  appo'int  J.  L.  Y., 
whose  place  of  residence  is  in  Hardin  County,  in  the  State  of  Iowa,  to  stand 
toward  me  in  the  relation  of  a  son  and  heir-at-law,  in  the  event  of  my  death. 

In  testimony  whereof  I  have,  in  the  presence  of  J.  A.  and  T.  D.,  who  are 

disinterested  persons  of  my  acquaintance,  subscribed  my  name  on  this 

day  of ,  A.  D.  190.  .. 

J.  Y. 

Attested  by  us,  who  are  acquaintances  of  the  said  J.  Y.,  and  are  persons 
disinterested  in  the  above  designated  matter. 

J.  B. 
T.  T)Ao 

§  1905.     Entry  designating  person  at  heir. 

In  the  matter  of  the  designation  of  J.  Y.  and  J.  L.  Y.  as  a  son  and 
heir-at-law. 

This  day,  being  the day  of ,  A.  D.   190.  . ,  appeared 

before  me,  the  undersigned  judge  of  the  Probate  Court  in  and  for  the 
county  of  Fairfield,  Ohio,  J.  Y.,  residing  in  Madison  townshij),  in  said 
county,  and  in  my  presence  and  in  the  presence  of  J.  A.  and  T.  D.,  who  are 
disinterested  persons  and  acquaintances  of  the  said  J.  Y.,  he,  the  said  J.  Y., 
did  file  a  written  declaration  subscribed  by  him  and  attested  to  by  the  said 
J.  A.  and  T.  D.,  declaring  that  he,  as  a  free  and  voluntary  act.  did  desig- 
nate and  appoint  J.  L.  Y.,  of  Hardin  County,  in  the  State  of  Iowa,  to  stand 
toward  him  in  the  relation  of  a  son  and  lieir-at-law,  in  the  event  of  his 
death.  And  I,  the  said  judge,  being  satisfied  that  such  declarant,  the  said 
J.  Y.,  is  of  sound  mind  and  memory,  and  free  from  any  restraint,  do  hereby 
order  that  such  facts  be  entered  upon  the  journal  of  said  Probate  Court, 
and  that  a  complete  record  of  such  proceedings  be  made. 

E.  C.  R.,  Probate  Judge." 

§  1906.  Parent  of  vagrant  or  incorrigible  child  may  be  sum- 
moned to  appear  before  Probate  Court.  "Wluui  through 
vagrancy,  negligence,  or  misconduct,  tJic  parent  or  parents  of 

39  §  1106.  A   person    designated    heir   won  Id 

40  Bird  vs.  Young,  56  0.  S.  212.  be    lial)le    to    inheritance    tax.      See 

41  Bird   vs.   Young,  56  O.    S.  211.  Ilaggerty  vs.  State,  .'i.l  O.  S.  61.S. 
Merely  naming  jiersons   in  a  will  A    person    designated    niidir    tins 

as  daughters  will  not  make  them  section  is  not  i.ssnc  of  the  Ixxly  of 
heirs,  '/n  re  Williams,  5  N.  P.  1;  person  designating,  etc.  'I'lirnlioid 
6  Dec.  507.  vs.  Fugman,  64  0.  S.  47:!. 


§  1907  ADOPTION  1616b 

any  minor  child  or  children  are  unable  to  support  such  child  or 
children,  or,  if  able,  neglect  or  refuse  support  therefor,  or  when 
siicJi  parent  or  parents  unlawfully  beat,  injure,  or  otherwise 
habitually  ill-treat  such  cliild  or  children  or  cause  or  allow  them 
to  engage  in  common  begging,  upon  complaint  by  affidavit  of 
some  reputable  citizen  of  the  county  in  behalf  of  such  child  or 
children,  setting  forth  facts  bringing  the  case  within  this  statute, 
the  probate  court  of  the  proper  county  may  issue  a  summons 
requiring  such  parent,  or  parents,  to  appear  and  answer  such 
complaint.  If,  upon  the  hearing  of  the  matters  complained  of, 
the  court  finds  them  to  be  true,  and  that  it  is  for  the  best  interest 
of  such  child  or  children  to  be  taken  from  such  parent  or  parents, 
it  may  make  an  order  to  that  effect,  and  direct  the  placing  of 
such  child  or  children  in  any  suitable  orphan  asylum  or  chil- 
dren's home  or  with  some  other  benevolent  society,  to  be  taken 
and  cared  for  and  placed  in  homes  found  for  them  by  adoption 
or  otherwise  by  such  asylum,  home  or  society,  upon  the  terms 
and  conditions  required  in  case  of  other  children  given  to  such 
asylum,  home  or  society.  The  proper  officers  of  such  asylum, 
home  or  society  are  authorized  to  give  the  necessary  consent  in 
placing  such  children."     [R.  S.  ^ 3140a.] « 


§  1907.     Proceedings  under  8031,  G.  C. 

The  procedings  are  commenced  by  the  filing  of  an  affidavit 
which  should  allege  the  grounds  of  the  statute,  and  summons 
must  then  be  issued,  and  the  case  heard  as  ordinary  judicial 
proceedings  are  conducted.  The  parents  must  be  notified.  The 
word  "summons"  hereby  probably  does  not  indicate  a  summons 
as  provided  for  in  the  Code,  but  is  rather  used  as  being  sjiiony- 
mous  with  notice.  The  proceedings  should  be  titled  "In  the 
Matter  of  A.  B.,   Child  of  C.  D."     The  affidavit  may  be  as 

follows  : 

42  §8031  G.  C.  Lucas  Co.,  8  N.  P.    (N.S.)    110;   11 

iSee    §§  S032-3-4-5    G.    C,    as    to  Dec.  49. 

rights  of  child,  when  brought  before  See  State  vs.  Mezgar,  59  Bull.  45; 

a    court    of    competent    jurisdiction.  Arfban  Asylum  vs.  Louie,  24  C.  C. 

These    proceedings    are    advisory,  (N.S.)     157;    36    C.    D.    135;    In   re 

the  parent  being  given  the  right  to  Baer,  8  N.  P.  107;  11  Dec.  47. 
appear    and    answer.      Stormer    vs. 


1617  PROCEEDINGS  §  1908 

vagrancy,  negligence  and  misconduct,  in  the  following  manner,  to-wit:  (here 
set  out  facts  (is  unable  or  neglects  and  refuses  to  support  such  child) 
(or  allege  that  said  C.  "D.  has  unlawfully  beaten,  injured  and  ill-treated 
said  child  in  the  following  manner,  to-wit:)  (or  that  said  C.  D.  has 
caused  and  allowed  said  A.  B.  to  engage  in  common  begging  in  the  follow- 
ing places,  to-wit : ) . 

Wherefore  said  E.  F.  asks  that  proceedings  may  be  had  in  the  Probate 

Court  of cour  y,  in  order  to  determine  the  fact,  whether  or 

not  said  child  should  be  placed  in  a  sui'table  orphan  asylum,  chiidrens' 
home,  or  other  benevolent  society',  as  the  statute  in  such  case  makes  and 
provides. 


Sworn   to   before   me   and   subscribed   in   my    presence   this day   of 

,    190.. 


§  1908.     Entry,  on  filing  of  affidavit. 

On  the  filing  of  the  above  affidavit,  the  Court  should  make 
an  entry  of  such  fact  and  set  the  case  for  hearing,  and  order 
the  parents  to  be  notified  *^  of  the  charges  in  said  affi-davit  con- 
tained, and  the  time  when  the  same  will  be  heard.  The  form 
of  entiy  may  be  as  follows : 

(Title.) 

This  day  came  E.  F.  and  filed  herein  an  affidavit,  alleging  (here  set  out 
charge  made  in  the  affidavit).     Wherefore  said  matter  is  set  for  hearing 

on   the day   of ,   at o'clock,   and   it   is   ordered 

that  summons  be  issued  for  C.  D.  and  I.  F.,  the  parents  of  said  child,  to 
appear  and  answer  such  omplaint,  which  summons  shall  be  served  upon 
said  parents,  at  least days  before  the  time  of  said  hearing. 

§  1909.     Entry,  ordering  child  committed. 

(Title.) 

This  day  this  matter  came  on  further  to  be  heard  and  was  submitted  to 
the  Court,  upon  the  testimony  of  witnesses,  and  the  affidavit  and  the  return 
of  summons  herein.  W'hereupon  the  Court  finds  that  C.  D.  and  I.  J.,  parents 
of  A.  B.,  have  been  duly  and  legally  notified  of  the  time  and  hearing  as 
required  by  law;  and  the  charges  ot  said  affidavit  are  true,  and  that  said 
parents  of  said  A.  B.  are  incapable  (here  set  out  in  the  language  of  the 
statute  the  charge  v/hich  is  found  to  be  true)  ;  and  the  Court  further  finds 
that  it  will  be  to  the  best  interest  of  such  child,  that  it  be  taken  from  its 
parents;  and  therefore  an  order  is  hereby  made,  directing  that  said  A.  B. 

be   placed   in a   suitable   orphan   asylum    (or   childrona' 

home)  in  this  county,  to  be  taken,  and  there  cared  for  as  authorized  by 
§   3104a  R.    S. 

43  If   parent  is  non-resident,   etc.,      Some     sufficient     notice,      however, 
service  should  be  made  in  such  man-       should  be  given, 
ner   as  the  Court  might  determine. 


§1910 


AID    OF    EXECUTION 


1618 


CHAPTER  CII. 

PROCEEDINGS  IN  AID  OF  EXECUTION. 


§  1910    Nature    of    proceedings.  §  1933 

§  1911     Examination  of  debtor  after 
return  of  execution. 

§  1912    When    and    where    can    be       §  1934 
brouglit. 

§  1913     Who  can  bring.  §  1935 

§  1914     Application. 

§  1915     Motion.  §  1936 

§  1916    Hearing  for  order  of  exam- 
ination. §  1937 

§  1917     Order. 

§  1918     Notice. 

§  1919     Examination  of  party.  §  1938 

§  1920     Examination   of    debtor   be- 
fore   return    of    execution.       §  1939 

§  1921     Proceedings     under     Section 

11769  G.  C.  §  1940 
§  1922    When   order   of   arrest   may 

issue,       and       proceedings       §  1941 

thereon. 
§  1922a  Examination  of  debtor  and       §  1942 

bond. 
§  1923     Proceedings     under     Section 

11770  G.  C.  §  1943 
§  1924  Warrant  to  arrest.  §  1944 
§  1925  Proceedings  for  arrest.  §  1945 
§  1926     Examination    of    debtor    of 

judgment   debtor,   etc. 
§  1926a  When  the  order  may  issue,      §  1946 

notice. 
§  1927     Proceedings     under     Section 

11772  G.  C.  §  1947 

§  1928    Notice   to  judgment   debtor. 
§  1929     Existence    of    fraud    not    to      §  1948 

excuse   examination. 
§  1930    Reference  by  judge. 
§  1931     Proceedings     may     be     con-       §  1949 

tinned. 
§  1932    How    attendance    of   parties      §  1950 

and   witnesses   compelled. 


Examination  before  referee 
to  be  certified.  Oath  of 
witness. 

How  disobedience  of  order 
punished. 

Power  to  enforce  by  con- 
tempt  proceedings. 

Debtor  may  pay  execution 
against  creditor. 

Judge  may  order  property 
to  be  applied  on  exeoa- 
tion. 

Order  to  apply  property  or 
money   on  judgment. 

Property  that  may  be 
reached. 

Property  that  can  not  be 
reached. 

Order  to  apply  property  or 
money,    on   judgment. 

Judge  may  appoint  receiver, 
and  prohibit  transfer,  etc., 
of  property. 

Appointment   of   receiver. 

Injunction. 

Liability  of  Sheriff  on  offi- 
cial bond;  undertaking  by 
receiver. 

Proceedings  when  indebted- 
ness denied,  or  another 
claims    the    property. 

Proceedings  under  Section 
11784  G.  C. 

Pleadings  to  be  reduced  to 
writing,  and  filed  with 
clerk. 

Dismissal    and    second 


ceedings. 
Appeal  and  review. 


pro- 


§  1910.     Nature  of  proceedings. 

Neither  the  statute  nor  the  Courts  of  our  State  have  defined 
the  nature  and  character  of  proceedings  in  aid  of  execution.     In 


1619  ]S"ATUEE   OF  PROCEEDINGS  §  1910 

one  ease  it  was  said  that  it  is  a  proceeding  simunary  in  its  char- 
acter, in  the  nature  of  a  proceeding  in  rem,  designed  to  ap- 
propriate the  property  of  a  judgment  debtor,  in  the  hands  of  a 
third  person  to  the  payment  of  a  judgment,  where  the  person 
having  possession  of  the  property  asserts  no  claim  to  it  and 
voluntarily  assents  to  such  appropriation/ 

In  an  earlier  case  an  able  judge  of  the  Court  of  Common 
Pleas "  discussed  the  character  of  the  proceeding  and  comes  to 
the  conclusion  that  the  judge  in  such,  a  case  does  not  sit  as  a 
Court,  but  merely  as  a  judge,  having  no  authority  but  what  the 
statute  gives.  Our  statutes  were  framed  as  a  part  of  the  Civil 
Code,  and  remaiu  with  but  veiy  little  change.  As  is  well 
known,  the  Civil  Code  was  taken  from  the  Code  of  Xew  York, 
and  the  proceedings  in  our  State  are  very  much  similar  to  the 
proceedings  in  that  State.  In  InTcw  York  the  proceeding  is 
classed  as  a  special  proceeding,  and  no  doubt  is  such  in  our 
State.^ 

These  proceedings  are  supplementary  to  some  principal 
case.  Before  they  can  be  called  into  action  a  judgment 
must  have  been  obtained.  It  has  been  said  that  their 
purpose  is  to  furnish  a  simple  and  inexpensive  substi- 
tute for  the  old  equity  proceedings  in  discovery  and 
applying  the  property  of  a  debtor,  which  cannot  otherwise 
be  reached,  to  the  pajniient  of  his  debts.  There  seem  to  be 
four  kinds  of  proceedings,  all  very  much  akin  to  each  other, 
provided  by  our  statute.  The  first*  provides  the  method  of 
procedure  where  an  execution  has  been  issued  and  a  return 
made  that  there  are  no  goods,  etc.  The  second  provides  "*  for 
an  examination  after  the  execution  has  been  issued,  but  before 
it  is  returned.  These  two  sections  relate  to  the  examination  of 
the  debtor.     The  third  provides  that  in  certain  cases  tlie  judg- 

1  White  vs.  Gates,  42  0.  S.  100.  matter  is  very  Ihoroujrlily  discussed 

2  Lawrence,  J.,  in  Welch  vs.  Ry.  in  24  Am.  &  Eng.  Ency.  of  Taw, 
Co.,  1  W.  L.  M.  87.  600,  and  will  be  frequently  referred 

3  Under    the    head    of    supplemen-  to  in  this  chapter. 

Ury  proceedings,  for  which  tlio  New  "  §  117G8  C.  C,  §  1911. 

York  Code  is  taken  as  a  basis,  this  ^'  §  117«0  H.  C,  §  1020. 


§  1911  AID    OF    EXECUTION  1620 

ment  debtor  may  be  arrested,  etc.^  The  fourth  provides  ^  for 
an  examination  of  a  debtor  of  the  judgment  debtor  after  execu- 
tion has  been  levied,  etc.  In  addition  to  these,  there  is  another 
section  which  provides  how  an  interest  in  real  estate  may  be  sub- 
jected to  a  judgment,^  But  it  is  generally  conceded  that  if  real 
estate  is  to  be  affected,  it  had  better  be  done  by  a  proceeding 
in  equity.  Recently  the  statutory  law  has  been  amended  so  as 
to  give  a  justice  of  the  peace  jurisdiction  in  proceedings  in  aid 
of  execution  where  the  judgment  has  been  rendered  in  his 
Court." 

It  is  generally  held  that  these  various  proceedings  could  be 
had  at  the  same  time,"  but  no  doubt  if  one  were  carried  to 
termination  it  would  be  res  judicata  as  to  the  property  of  the 
judgment  debtor  at  the  time  the  order  was  granted."  Tlie 
Court,  however,  ought  not  to  entertain  these  several  proceed- 
ings at  the  same  time,  unless  there  is  manifestly  a  good  cause 
for  so  doing.  Some  question  has  arisen  whether  or  not  the 
Court  ought  to  keep  a  record  of  the  proceedings.  The  prac- 
tice in  some  Courts  has  been  to  do  so,  and  it  seems  to  be  a 
commendable  one. 

§  191lT~^I!xamiiiation  of  debtor  after  return  of  execution. 

"When  an  execution  against  the  property  of  a  judgment  debtor, 
or  of  one  of  several  debtors  in  the  same  judgment,  issued  to  the 
sheriff  of  the  county  where  he  resides,  or  if  he  dees  not  reside 
in  the  state,  to  the  sheriff  of  the  county  Avhere  the  judgment 
was  rendered,  or  a  transcript  of  a  justice's  judgment  has  been 
filed,  is  returned  unsatisfied,  in  whole  or  part,  the  judgment 
creditor  shall  be  entitled  to  an  order  from  a  probate  judge,  or  a 
judge  of  the  common  pleas  court  in  the  county  to  which  the 
execution  M'as  issued,  requiring  such  debtor  to  appear  and 
answer  concerning  his  property  before  such  judge,  or  a  referee 
appointed  by  him,  at  a  time  and  place  within  the  county  to  be 
specified  in  the  order."     [R.  S.  §  5472.]  i- 

G  §§  11770-1  G.  C,  §  1922.  Manning,  0  Dec.  Rep.  176;   11  Bull. 

7  §S  11772-3  G.  C,   §  1925.  144. 

8  §  11784  G.  C,  §  1946.  Neither     Superior     nor     Supreme 

9  §  10436  G.  C.  Court  lias  power  to  heir  proceedings 

10  This   is    denied    in   N.    Y.      See       supplemental  to  execution.    Amling- 
§  1949.  meier  vs.  Amlingmeier,  8  Dec.  Rep. 

11  McCullough  va   Clark,   41   Cal.       713;  9  Bull.  241. 

298.  Witness    not    ordered    to    appear 

12  §  117GS  G.  C.  cmnot    be    attacked    for    contempt. 
Witness  other  than  the  defendant       Ilarman    vs.    W:nller,    4    Dec.    Rep. 

may    be    examined.      Manning    vs.       97 ;    1   Clev.   L.   Rep.  26. 

Questions  and  answers  can  be  used 


1621  JURISDICTION  §  1912 

§  1912.     When  and  where  can  be  brought. 

Tlie  statute  relating  to  examination  of  debtors  after  tlie  re- 
turn of  an  execution/^  and  the  one  before  return  of  execution/* 
both  specifically  provide  that  the  action  may  be  maintained  be- 
fore a  Probate  Judge  or  a  judge  of  the  Court  of  Common 
Pleas.  The  section  relating  to  an  examination  of  a  debtor  of 
the  judgment  debtor  ^'^  merely  uses  the  word  judge,  and  there 
might  be  some  question  whether  under  that  section  proceedings 
might  be  maintained  before  any  judge  other  than  that  of  the 
Court  in  which  the  judginient  was  rendered.  In  several  of  the 
succeeding  sections,  however,  the  word  judge  is  used  alone,  and 
must  necessarily  be  applied  to  the  judge  of  either  the  Probate 
or  the  Common  Pleas  Court.  The  proceedings  can  only  be 
brought  when  the  statutory  requirements  are  fulfilled.  The 
first  esseiitial  being  that  a  judgment  has  been  rendered  and  an 
execution  issued  thereon.  In  such  a  proceeding  the  regularity 
of  the  judgment  cannot  be  attacked.^''  It  has  also  been  held 
that  the  judginent  must  be  one  that  is  not  dormant^® 

It  is  also  held  tliat  a  judgment  obtained  in  a  United  States 
Court  cannot  be  the  basis  of  proceeding  in  the  State  Court." 

The  action  must  be  brought  in  the  county  in  which  the  debtor 
resides,  or  if  he  is  a  non-resident  of  the  State,  then  in  the 
county  where  tbe  judgment  was  rendered.  It  is  also  essential 
that  the  execution  has  been  returned,  showing  that  it  has  not 
been  fully  satisfied. 

in  suit  bpt^vccn  same  parties  subse-  is  Simpson  vs.  Hook.  (>  C.  C  27 ; 

quently.      Goode    vs.    Patterson,    40  3  C.  D.  333. 

0.  S.  315.  ^^  I^"^  "°  proceedings  suppi?nien- 

13  §   117G8  G.   C.,    §  1911.  tary  to  execution  can  be  taken  in  a 

"§  117G9   G.  C.,   §  1920.  State  Court  on  the  judgment  of  a 

15  If  brought  in  the  Probate  'Court  Federal  Court,  even  thougli  the 
it  is  an  independent  action,  and  docketing  of  the  judgment  of  the 
should  be  so  titled,  but  if  in  the  Federal  Court  in  the  State  Court  is 
Common  Pleas  it  may  be  a  nart  of  provided  for.  Davis  vs.  Bruns,  11 
the  original   action.  N.   Y.   Wkly.   Dig.  436;   Thompkins 

16  §§  11772-3  G.  C,  §  1926.  vs.  Purcell.  12  Hun  (N.  Y.)  602;  24 

17  It  might,  however,  bo  showTi  to  Am.  &  Eng.  Ency.  of  I^w,  Oil 
be    dormant    or    perhaps    absolutely 

void. 


^  1913  AID   OE   EXECUTION  1622 

§  1913.    Who  can  bring. 

The  judgment  creditor  is  the  person  specified  by  statute  as 
the  one  to  bring  tlie  proceeding.  Therefore  it  has  been  held 
that  an  agent  having  authority  might  bring  such  action,  and  an 
assignee,  or  a  receiver,  or  an  attorney  who  has  authority  to  col- 
lect a  claim."**  This  no  doubt  would  include  an  administrator 
of  a  deceased  person  or  guardian  of  an  infant. 

§  1914.     Application. 

The  proceedings  are  started  in  motion  by  a  formal  applica- 
tion or  motion  for  that  purpose.  This  application  should  set 
forth  all  the  jurisdictional  facts  —  that  is,  it  should  state  that 
a  judgment  was  rendered,  that  the  judgment  is  still  alive,  that 
an  execution  was  issued,  and  has  been  returned  as  unsatisfied 
in  whole  or  in  part.  As  the  Probate  Judge  usually  acts  upon 
the  facts  set  forth  in  this  application,  it  should  be  sworn  to,  the 
amount  of  the  judgment  should  be  stated,  the  time  when  it  was 
rendered,  as  well  as  the  date  of  the  execution  and  its  return.  It 
should  also  state  the  name  of  the  Court,  as  well  as  its  location, 
where  the  judgment  was  rendered. 

§  1915.     Motion. 

In  the  Probate  Court  of County,  Ohio. 

Plaintiff.. 


vs. 

,  Defendant . 

No 

Proceedings  in  Aid  of  Execution. 
Motion. 


And  now  conies  the  said ,  plaintiff,  by 

his  attorney,  and  represents  to  the  Hon ,  Probate  Judge  of 

said  county,  that  the  said did  on  the day  of 

,  190.  . ,  before  i ,  within  and  for  said  county, 

recover  a  judgment  against  the  said for  the  sum   of 

dollars.  2 and dollars,  cost  of  suit, 

and  that  he  caused  s an  execution  to  be  issued  on  said 

judgment  dated  the day  of 190.  .,  and  delivered  to  the 

sheriff  of  said  county ;   * 

Wherefore  the  said .  .  ; moves  the  said  judge  for 


By ,  his  Attorney. 


20  24  Am.  &  Eng.   Ency.  of  Law, 
606. 


1623 


MOTION 


HEARING 


1916 


The  State  of  Ohio, County,  ss. 

,  being  duly  sworn,  says  that  the  facts  stated  in  the 

foregoing  motion  are  true  as  he  verily  believes. 


Sworn    to    before    me    and    signed    in    mv    presence    this day    of 

,   190. . 

,  Probate  Judge. 


1  "  the    Court    of    Common    Pleas,"    or, 

" a  Justice  of  the   Peace." 

2  "  debt,"    or,    "  damages." 

3  "  to  be  filed  in  the  office  of  the  Clerk 

of    the    Court    of    Common    Pleas    of 
said     county,     a     transcript     thereof, 
and  " 
i  §   5472   or  {  5475,  which  execution  was 

on  the day  of ,  190 ... , 

duly  returned  and  filed  in  said  Clerk's 
office,  by  said  Sheriff,  with  the  fol- 
lowing return  endorsed  thereon," 
(copy  return). 

§  5473,  "that  said judg- 
ment debtor,  has  property  which  he 
unjustly  refuses  to  apply  toward  the 
satisfaction  of  the  judgment."  § 
5474,  either  or  both  of  the  foregoing 
statements  may  be  made  as  the  case 
may   be;   also,   "  that   there   is   danger 


of  the  debtor  leaving  the  State,"  oi 
"  concealing  himself,  to  avoid  exam- 
ination concerning  his  property." 

I    5475,    also,    "That has 

property  of  said  judgment  debtor,  to- 
wit:  (describe  it)  or,  "is  indebted  to 
said  judgment   debtor   in   the  sum   of 

dollars." 

5   5472,    5473   or    5475,    "  an   order   re- 
quiring  said to   appear   and 

answer  concerning  the  same,"  or  "  his 
property,"  "  before  said  Judge,"  or 
"  a  referee  appointed  by  said  Judge, 
at  a  time  and  place  within  the  county 
specified  in  the  order." 
§  5474,  "  a  warrant  to  issue  requiring 
the  Sheriff  to  arrest  and  bring  before 
said  Judge,  said for  ex- 
amination." 


1916.    Hearing  for  order  of  examination. 


When  an  application  has  been  filed  and  properly  sworn  to, 
the  Court  should  carefully  examine  the  same  to  see  that  all  the 
jurisdictional  facts  are  set  forth,  and  should  satisfy  itself  that 
the  object  and  purpose  of  the  proceeding  is  within  that  con- 
templated by  the  statute.  If  it  appeai-s  to  the  Court  tliat  the 
proceeding  is  merely  begun  for  the  purpose  of  ascertaining  facts 
that  might  be  used  in  some  other  proceeding,  then  the  order 
should  not  be  allowed.  Such  proceeding  should  be  entitled 
as  a  special  proceeding,  with  tlie  name  of  the  judgment  creditor 
or  of  the  owner  as  plaintiff  and  the  judgment  debtor  as  de- 
fendant.^^ 


21  24  Am.  &  Eng.  Ency.  of  Law, 
621. 

N.  Y.  Code  Civ.  Proc,  §  2436.  In 
3  Rumsey  on  Prac,  p.  412,  it  is 
said:  "These  proceedings  are  rath- 
er in  aid  of  an  execution,  than  sup- 
plementary thereto.  They  enable 
the  plaintiff  to  discover  the  proper- 
ty of  the  judgment  debtor  who  is 
concealing  it.  Where  the  property 
is  beyond  the  reach  of  an  execution. 


or  is,  for  some  reason,  not  subject 
to  le\'y,  it  enables  the  Court  or 
judge  at  once  to  appoint  a  receiver, 
in  order  to  reach  it  l)y  that  remedy. 
The  facts  entitling  the  judgment 
creditor  to  this  remedy,  .'<hould  be 
clear;  and  he  is  required  to  comply 
closely  with  the  requirements  of  the 
section,  and  to  show  to  the  satisfac- 
tion of  the  judge  that  the  judgment 
debtor   not   only   has   property,   but 


§1917 


AID    OF    EXECUTION 


1624 


The  order  is  to  be  served  as  a.  summons. 
§  1917.     Order. 


In  the  Probate  Court  of County,  Ohio. 


A.   D.    190... 


Phiintiff.  . 


No. 


.,  Defendant. 


Proceedings  in  Aid  of  Execution. 
Order. 

And  now   came  the   said by. . ,   his  attorney, 

and  thereupon  his  motion  for  the  i examination  of 

.' .  concerning   2 came   on   to   be  neard ;    and   it 

appearing  that  said did  obtain  judgment,  and  that  an 

execution  duly  issued  against  the  property  of  said  defendant 

3 as  set  forth  in  said  motion ;   and  it  further 

appearing   * to   the   satisfaction   of   the   Probate 

Judge  that  » -.     It  is  hereby  ordered  that  « 

the    said " before 

8 at on    the day    of , 

190.  .,  at o'clock.  .  .M.,  to  answer  under  oath  concerning  » 


And    the   said is   hereby    enjoined    and    restrained    from 

transferring,  or  in  any  way  disposing  of  such  property,  money  or  credits, 
until   further   order   in  the   premises. 

,  Probate  Judge. 


1  §    5474,    "  arrest   and  " 

2  "  his  property,"    ("  and  intentions,")  or 

§    5475,     "  his    indebtedness    to    said 

"   or   "the  property  which 

he    has    belonging    to    the    said 


ination,"    or     (§    5475,)     "said 

lias  in  his  hands  property  of  " 

("  or    is    indebted    to ")     "  the    said 


3  §§ 


5472-5,  "  which  execution  was  re- 
turned  unsatisfied." 

4  §§  5473-4-5,  "  upon  proof  in  writing," 
or  "  from  the  affidavits  filed,"  (or 
otherwise). 

b  §  547.3,  "the  said... has  prop- 
erty which  he  unjustly  refuses  to 
apply  toward  the  satisfaction  of  the 
judpment  in  the  above  entitled  case," 
or    (§  5474,)   "  there  is  danger  of  the 

said leaving    the    State,    or 

"  concealing   himself   to   avoid   exam- 


6  §  5474,  "  a  warrant  issue  requiring  the 

Sheriff  to   arrest." 

7  "  appear,"  or  "  and  bring  him." 

8  "  Probate   Judge,"   or   "  who   is  hereby 

appointed  referee  to  take  the  evi- 
dence herein,  and  report  the  same  to 
said  Judge." 

9  "  his     property,"     or     "  the    same,"    or 

"  and  his  intentions."  §  5475,  "And 
it  is  further  ordered  that  the  plaintiff 

notify    the    said    defendant 

of  the  matters  herein,  so  as  to  give 
him  sufficient  time  to  be  present  at 
such  examination." 


§  1918.     Notice. 

The  State  of  Ohio, 

County,    ss. 

In  Probate  Court. 
To  the  Sheriff  of  said  County,  Greeting: 

You  are  hereby  commanded  to   notify that  the  following 

order  has  been  made  by  me,  to-wit: 


that  he  unjustly  refuses  to  apply  it 
to  the  payment  of  the  judgment. 
Where,  however,  the  affidavit  shows 
such  facts,  the  order  may  be  grant- 
ed, and  the  examination  may  be  as 


complete    as    in    a    case    where    the 
order  is  granted  after  the  return  of 
an     execution."      24     Am.    &    Eng. 
evil. 
32  §  1178.5  G.  C,  §  1984. 


1625  EXAMINATION  OF  PAETY  §  1919 


.,   190.. 


In  the  Probate  Court  of County,  Ohio. 

,  Plaintiff. . 

vs. 

,  Defendant .  . 

No 

Proceedings  in  Aid  of  Execution. 
Order. 

And  now  comes  the  said by ,  his  attorney, 

and  thereupon  his  motion  for  the  examination  of concerning 

1 came  on  to  be  heard;  and  it  appearing  thr.t  said 

did  obtain  judgment,  and  that  an  execution  duly  issued  against  the 

property  of  said  defendant 2 as  set  forth 

in  said  motion  ;  and  it  further  appearing  3 . . to  the  satisfac- 
tion of  the  Probate  Judge,  that  * 

It  is  hereby  ordered  that  the  said appear  before 

5 at on    the day   of .  .  . . 

,  190.  .,  at o'clock. .  .M.,  to  answer  under  oath  concerning 


And  the  said is  hereby  enjoined  and  restrained  from 

transferring,   or   in   any    way   disposing  of  any   such   property,   moneys  or 
credits,   until  further  order   in  the   premises. 

Probate  Judge. 

And  that  the  said in  all  things  observe  and  obey  the  same. 

And  at  said  time  you  will  make  due  return  of  this  writ. 

In  witness  whereof,  I  have  hereimto  set  my  hand  and  caused  the  seal 
of  said   Court  to  be  atlixed   at this day   of 


190. 


.  .  . ,  Probate  Judge. 

1  §§  5472-3,  "his  property."  §  5475,  "his  amination."      §    5475,    "that  said 

indebtedness  to  said "  or  "  the  has  in  his   hands  property  of  " 

property    which    he    has   belonging   to  ("  or    is    indebted    to  ")     "  the    said 

said "  " 

2  §§    5472-5,    "  which    execution    was    re-  5  "  Probate    Judge,"    or   "  who   is   hereby 

turned   unsatisfied."  appointed  referee  to  take  the  evidence 

3  §    5474,    "  upon    proof    in    writing,"    §§  herein,    and   report   the   same    to   said 

5473-5,    "  from    the    affidavits    filed,"  Judge." 

(or  otherwise).  6  "  His      property,"      or      "  the      same," 

4  §    5473,     "that    the    said has  "and"   or   "his  intentions."     Under 

property  which  he  unjustly  refuses  to  §  5475,  may  al.so  add  "  .\nd  it  is  fur- 
apply   toward   the    satisfaction   of   the  thcr  ordered   that  the  plaintiff   notify 

judgment   in   the   above  entitled  case.  the    said    defendant .....of    the 

§  5474,  "  there  is  danger  of  the  said  matters  hereift,  so  as  to  give  him  suf- 

leaving     the     State,"      (or  ficient    time   to    be    present"    at   such 

"  concealing  himself,")   "  to  avoid  ex-  examination. 

§  1919,     Examination  of  party. 

In  such  cases  the  object  of  the  proceeding  should  l)e  home  in 
mind,  and  generally  all  questions  are  competent  which  may  re- 
late to  or  in  any  way  throw  light  upon  the  pro])erty  of  the 
Judgment  debtor;  such  examination  is  conducted  in  the  method 
usually  followed  in  judicial  proceedings.  Witnesses  may  be 
summoned,-^  and  books  and  records  produced  by  a  subprrna 
duces  tecum.  It  has  been  held,  however,  that  the  deposition  of 
a  witness  without  the  State  cannot  be  taken  by  commission  to 

2^  §§  11770-71   G.   C,   §  1932. 


§  1920  AID    OF    EXECUT^ION  1626 

be  used  in  such,  proceedings.^*  Probably  the  testimony  should 
be  reduced  to  writing.  As  to  the  scope  of  examination  in  the 
work  already  before  referred  to,  it  is  said :  "  It  is  impossible 
to  lay  down  any  particular  rules  on  this  subject,  which  shall 
be  universally  applicable,  further  than  this,  that  the  whole  ex- 
amination must  have  for  its  single  object  to  ascertain  whether 
there  is  any  proi>erty  of  the  debtor  which  ought  to  be  applied 
to  the  payment  of  the  plaintiff's  claim ;  and  the  extent  of  the 
inquiry  in  each  particular  case  must  be  left  to  the  good  sense 
of  the  judge  or  referee  under  whose  direction  it  takes  place, 
having  in  view  this  general  object."  ^^ 

The  same  rule  would  apply  as  to  privileged  communication, 
except  as  provided  in  a  subsequent  section.^®  Corporations, 
as  well  as  individuals,  are  bound  to  answer. ^^ 

§  1920.    Examination  of  debtor  before  return  of  execution. 

"After  the  issue  of  an  execution  against  property,  and  on  proof 
by  tlie  aiSdavit  of  the  judgment  creditor,  or  otherwise,  to  the 
satisfaction  of  tlie  court  of  common  pleas,  or  a  judge  thereof, 
or  a  probate  judge,  of  the  county  in  which  the  debtor  is  found, 
that  the  judgment  debtor  has  property  which  he  unjustly  refuses 
to  apply  toward  the  satisfaction  of  the  judgment,  such  court  or 
judge,  by  order,  may  require  the  debtor  to  appear  at  a  time  and 
place,  in  such  county,  to  answer  concerning  it.  Such  pro- 
ceedings thereupon  may  be  had,  for  the  application  of  the  prop- 
erty of  the  debtor  toward  the  satisfaction  of  the  judgment,  as 
herein  are  prescribed."     [R.  S.  §  5473.]  -^ 

§  1921.     Proceedings  under  §  11769,  G.  C. 

Proceedings  under  the  previous  section  are  similar  to  those 
under  previous  sections  of  the  General  Code,  except  that  they 
may  be  commenced  after  the  issue  of  an  execution  and  before 
the  execution  has  been  returned  unsatisfied  for  the  want  of 
goods,  etc.  The  Court  must  be  satisfied  that  the  debtor  has 
property  which  he  unjustly  refuses  to  apply  toward  the  satis- 

2*24   Am.   &  Eng.   Ency.   of  Law,  28  §  11769   G.   C. 

^7.  Judgment  creditor  need  not  make 

25  Id.  638.  previous  demand  or  show  refusal  be- 

28  §11774  G.    C,    §1929.  fore  proceedings  to  subject.     Edgar- 

27  City  of  Newark  vs.  Funk  Bros.,  ton  vs.  Hanna,   11   0.   S.  323. 

15   O.   S.  462. 


1627  EXAMINATION  OF  DEBTOR  §  1922 

faction  of  the  judgmex.t,  and  it  seems  that  the  proceeding  can 
be  brought  in  any  county  in  which  the  debtor  is  found.  Xo 
demand  is  required  of  the  debtor  before  proceedings  may  be 
had.^^  If  the  application  is  sworn  to,  it  would  be  an  affidavit 
upon  wliich  the  Court  might  rest  its  action.  Forms  given  in 
the  previous  sections  may  easily  be  adopted  for  proceedings 
under  the  above  section. 

§  1922.     When  order  of  arrest  may  issue,  and  proceeding's 

thereon.  "Instead  of  the  order  requiring  the  attendance  of 
the  judgment  debtor,  upon  proof  'in  writing  to  his  satisfaction, 
by  affidavit  of  the  judgment  creditor,  or  otherwise,  that  there 
is  danger  of  the  debtor  leaving  the  state,  or  concealing  himself, 
to  avoid  such  examination,  the  judge  may  issue  a  warrant  re- 
quiring the  sheriff  to  arrest  and  bring  such  debtor  before  him. 
Such  warrant  can  be  issued  only  by  a  judge  of  the  court  of 
common  pleas,  or  the  probate  judge,  of  a  county  in  which  the 
debtor  is  found,  and  the  sheriff  can  execute  it  only  within  that 
county.  In  executing  the  warrant  the  sheriff  shall  deliver  to 
the  debtor  a  copv  thereof  and  of  the  testimony  on  which  it 
issued."     [R.  S.  §5474.]  ^° 

§  1922a.  Examination  of  debtor  and  bond.  ' '  When  brought 
before  the  judge,  such  debtor  shall  be  examined  on  oath,  and 
other  witnesses  may  be  examined  on  either  side.  In  the  examina- 
tion if  it  appears  that  there  is  danger  of  the  debtor  leaving  the 
state,  or  that  he  has  property  which  he  unjustly  refuses  to  apply 
to  the  judgment,  he  may  be  ordered  to  enter  into  a  bond,  with 
surety,  in  such  sum  as  the  judge  pres(!ribes  that  he  will  attend 
before  the  judge  or  referee  for  examination,  from  time  to  time, 
as  dircted.  In  default  of  entering  into  such  bond,  he  may  be 
committed  to  the  jail  of  a  county,  by  warrant  of  the  judge,  as 
for  contempt."     [R.  S.  §  5474.]  ■"'* 

§  1923.     Proceedings  under  §  11770,  G.  C, 

The  proceedings  provided  for  ])y  the  previous  section  uro  in- 
tended not  only  to  be  summary  in  its  character,  but  to  prevent 
a  dishonest  debtor  from  taking  such  action  as  might  defeat  the 
claim  of  the  judgment  creditor,  and  therefore,  if  the  Court  is 

29Edgartoii  &  Wilcox  vs.   Hanna,  '«'  §  11770  G.  C. 

etc.,  Co.,  11  0.  S.  323.  •■""  §  11771   G.  C. 


§  1924  AID    OF    EXECUTION  1628 

satisfied  that  there  is  danger  of  the  debtor  leaving  the  State  or 
concealing  himself  to  avoid  the  examination,  a  warrant  of  ar- 
rest may  b©  issued.  This  fact  may  be  brought  to  the  attention 
of  the  Court  by  an  allegation  in  the  original  application  or  by 
a  separate  affidavit.  The  Court  having  an'ived  at  a  satisfac- 
tory conclusion,  an  order  for  arrest  should  be  made,  which  may 
be  in  the  following  forni:^^ 

§  1924.     Warrant  to  arrest. 

The  state  of  Ohio,  • 

County,  ss. 

Probate  Court. 
To  the  Sheriff  of  said  County,  Greeting: 

Whereas,  the  following  order  was  this  day  made  by  me,  to-wit: 

Probate  Court, County,  Ohio. 

,   190.. 

Plaintiff.. 

vs. 

,  Defendant . . 

No 

Proceedings  in  Aid  of  Execution. 
Order. 

And  now  came  the  said by ,   his   attorney, 

and  thereupon  his  motion  for  the  arrest  and  examination  of 

concerning  his  property  and  intentions,  came  on  to  be  heard ;  and  it  appear- 
ing  that  said did   obtain   judgment,    and   that  an   execution 

duly  issued  against  the  property  of  said  defendant, as  set 

forth  in  said  motion ;  and  it  further  appearing  upon  proof  in  writing  to  the 

satisfaction  of  the  Probate  Judge,  that  there  is  danger  of  the  said 

leaving  the  State  or  concealing  himself,  to  avoid  examination.     It 

is  hereby  ordered  that  a  warrant  issue  requiring  the  sheriff  to  arres«  the 

said and  bring  him  before .,  Probate  Judge,  at 

on  the day  of ,  190 .  . ,  at o'clock 

...M.,  to  answer  under  oath,  concerning  his  property  and  his  intentions. 
And  the  said is  hereby  enjoined  and  restrained  from  trans- 
ferring, or  in  anv  way  disposing  of  any  of  such  property,  nioney  or  credits, 
until  further  order  in  the  premises. 

,  Probate  Judge. 

You  are  therefore  commanded  to  take  the  said if  he  may 

be  found  in  your  bailiwick,  and  him  safely  keep,  so  that  you  have  his 
body  before  me  at  the  time  and  place  mentioned  in  said  order;  and  have 
you   then  and   there  this   writ. 

A  copy  of  the  testimony  on  which  this  warrant  is  issued  is  hereto  attached. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal  of 

said  Cpurt,  at this day   of ,   190... 

,  Probate  Judge. 


•ii  It  shall  be  observed  that  when  its  were  filed.     Tlie  entry  made  on 

the  Sheriff  serves  the  order,  he  must  the  Journal   would  be  the  same  as 

deliver  a  copy  of  the  same  and  the  that     contained     in    the     following 

testimony  upon  which  it  is  issued.  form  of  order  to  arrest. 
This  would  usually  mean  a  copy  of  §§  11770-1  G.  C. 

the  application  and  whatever  affidav- 


1629 


ARREST  §  1925 


190 

According  to  the  command  of  the  within  warrant,  I  have  arrested  the 

within  named and  have  him  now  before  the  Hon 

,  Probate  Judge,  to  answer  according  to  law. 

,  Sheriff. 

§  1925.     Proceedings  for  arrest. 

When  the  debtor  is  brought  before  the  Court,  by  the  sheriff, 
then  the  Court  might  proceed  to  at  once  make  a  final  hearing 
of  the  matter,  or  it  might  proceed  to  hear  the  question  whether 
or  not  the  debtor  was  about  to  leave  the  State  or  was  concealing 
himself.  If  the  latter  be  found  to  be  true,  then  the  following 
order  may  be  made : 

ORDER  AFTER  ARREST. 

Probate  Court, County,  Ohio. 

,  190.. 

,  Plaintiff.. 

vs. 

• ,  Defendant. . 

No 

Proceedings  in  Aid  of  Execution. 
Order. 

This  day   came  before ,  Probate  Judge,  the  said 

in  the  custody  of  the  sheriff,  on  the  warrant  of  arrest  heretofore 

issued ;   and  the  said  Judge  being  satisfied  that  there  is  i danger 

that  the  said will  - to  avoid  examination  as 

judgment  debtor  in  this  case  3 

It  is  therefore  hereby  ordered  that  the  said  * from  time 

to  time,   as   directed,   attend   before ^ for   ex- 
amination ;     and    that    s said be    discharged 

from  the  custody  of  the  sheriff  t 

And  the  said is  hereby  enjoined  and  restrained  from  trans- 
ferring, or  in  any  way  disposing  of  any  of  his  property,  money  or  credits, 
until  further  order  in  the  premises. 

Probate  Judge. 


1  "  No  "   (if  such  is  the  case).  the    approval   of   said   Judge,   that   he 

2  "  Leave    the    State,"    or    "  conceal    him-  will." 

self."  5  "  Probate  Judge,"  or  "  Referee.^^ 

3  "and,"  or  "that  he  has  property  which  6  "such  undertaking  being  given." 

he    unjustly    refuses   to   apply    to   the  7   "and   in    default    thereof,    the    said.... 

judgment   herein."  shall   be   committed   to   the  jail 

1  "  enter  into  an  undertaking  in  the  sum  of  the  county,  as   for  contempt." 

of dollars,  with  sureties  to 

§  1926.  Examination  of  debtor  of  judgment  debtor,  etc. ; 
effect  of  such  order.  "After  tlio  return  of  an  execution  ajrainst 
the  property  of  a  jiidg-ment  dehtor,  or  of  one  of  several  (h-htors 
in  tlie  same  judginent,  and  upon  proof  in  writinfr,  by  affidavit 
or  otherwise,  to  the  satisfaction  of  the  .iudfje,  tliat  a  person  w 
corporation  has  property  of  such  .iudgmcnt  dcl)tor,  or  is  in- 
debted to  him,  the  judge,  by  an  order,  may  require  such  i)orsou 
or  corporation,  or  any  officer  or  member  of  the  corporation  to 
■  appear  at  a  specified  time  and  place,  in  the  county  wherein  such 


§  1926a  AID  OF  EXECUl'ION  1630 

person  or  corporation  is  served  with  the  order,  and  answer  con- 
cerning it.  From  the  time  of  its  sen^ice,  property,  money,  or 
credits  in  the  hands,  or  under  the  control  of  the  person  or  cor- 
poration so  served,  belonging  to  the  judgment  debtor,  or  due 
from  him  to  such  person  or  corporation,  shall  be  bound,  and  he 
or  it,  as  the  case  may  be,  thereby  made  liable  to  the  judgment 
creditor  therefor."     [R.  S.  §  5475.]  ^2 

§  1926a.  When  the  order  may  issue,  notice.  "On  the  filing 
of  the  affidavit  of  the  judgment  creditor,  his  agent  or  attorney, 
if  the  judge  is  satisfied  of  the  existence  of  any  of  the  grounds 
upon  which  an  order  of  attachment  may  be  issued,  as  provided 
by  law,  the  order  may  issue  before  the  issuance  and  return  of 
execution.  The  judge  also  may  require  notice  of  such  proceed- 
ing to  be  given  to  any  party  in  the  action,  in  such  manner  as 
seems  to  him  proper."     [R.  S.  §  5475.]  ^-* 

§  1927.     Proceedings  under  §  11772,  G.  C. 

The  proceedings  under  the  previous  section  are  somewhat 
similar  to  those  provided  for  in  the  preceding  sections,  except 
that  it  is  sought  to  examine  a  debtor  of  the  judgment  debtor. 
Forms  previously  given  may  be  easily  adopted.  The  statute 
further  provides  that  from  the  time  that  service  is  made  upon 
the  debtor  of  the  judgment  debtor,  that  such  debtor  will  be 
bound  to  keep  the  property.  Under  this  section  it  has  been 
held  tliat  he  cannot,  by  payment  to  the  execution  debtor,  dis- 
cliarge  himself  from  liability  to  the  judgment  creditor.^^ 

The  statute  provides  that  the  proceedings  may  be  had  gen- 
erally after  the  return  of  an  execution  as  provided  in  a  pre- 
vious section.^*  But,  if  the  Court  is  satisfied  of  the  existence 
of  the  grounds  upon  which  an  order  of  attachment  may  be  is- 
sued, then  the  order  may  be  issued,  even  before  the  issue  and 
return  of  execution.^^ 


32  §  11772  G.  C.  the    corporation.      Ball    vs.    Manuf. 
32*  §11773  G.  C.  Co.,  67  O.  S.  306. 

33  Union  Banlc  vs.  Union  Bank,  6  Payment  to  execution  creditor  af- 
O.  S.  255.  ter  service  will  not  discliarge  debtor, 

34  §  11768  G.  C,  §  1911.  as  it  is  a  lis  pendens.     Union  Bank 

35  Tlie  grounds  of  attachment  will  6  0.  S.  255. 

be  found   in   8  11879  G.  C.  Unless   exceptions   are  taken   the 
Ownership    is   the   test   as    to   the  action   of  the  court  can  not  be   re- 
right    to    subject    propertv.      Kruse  versed.      Welsh    vs.    Ry.,    H    O.    S. 
vs.  Bader,  1  Dec.  383:  31  Bull.  112.  255. 

(Stock   in  a  corporation  is  bound.  The  judgment  creditor  acquires  a 

and  a  lion  thereon  is  acquired  from  lien  from  date  of  service  of  notice, 

the  time  of  service  of  the  order  on  Trust   Co.   vs.    Burkhart,    17   N.    P. 

401;  26  Dec.  505. 


1631 


NOTICE  TO  JUDGMENT  DEBTOR 


§1928 


§  1928.     Notice  to  judgment  debtor. 

The  statute  makes  it  discretionary  whether  or  not  any  other 
party  shall  be  given  notice.  In  this  respect  following  the  New 
York  statutes.^®  And  it  has  also  been  held  that  if  tlie  judgment 
debtor  is  not  notified  of  the  proceeding,  he  has  no  right  to  ap- 
pear by  ooimsel  in  them,  and  his  right  to  move  to  vacate  the 
order  under  such  circumstanoes  is  questionable."  It  seems, 
however,  that  no  such  proceeding  ought  to  be  carried  on  with- 
out notice  to  the  judgment  debtor,  for  if  he  is  not  notified, 
yery  great  injustice  might  be  done.^^ 

§  1929.     Existence  of  fraud  not  to  excuse  examination.    ' '  On 

such  examination  no  person  shall  be  excused  from  answering 
any  question  on  the  ground  that  liis  examination  will  tend  to 
convict  him  of  a  fraud;  but  his  answer  shall  not  be  used  as 
evidence  against  him  in  a  prosecution  for  such  fraud."     [R.  S. 

§  5476.]  39 

§  1930.  Reference  by  judge.  ' '  The  judge  may  order  a  refer- 
ence to  a  referee  agreed  upon,  or  appointed  by  him,  to  report 
the  evidence  or  the  facts."     [R.  S.  §  5477. j  *" 


631. 


24  Am.   &  Eng.  Ency.  of  Law, 


37  Corning  vs.  Tooker,  5  How.  Pr. 
16;  Lingsweiler  vs.  Lingsv/eiler,  57 
N.  Y.  Super.  Ct.  395. 

3S  In  3  Rumsey's  Pr.  414,  it  is 
said:  "To  allow  the  pi-oceedings 
to  be  taken  or  continued  without 
any  notice  to  the  judgment  debtor 
would  often  open  the  door  to  injus- 
tice and  fraud ;  and  notice  should  in 
all  cases  be  given,  unless  by  giving 
notice  there  would  be  a  failure  of 
justice,  as  by  giving  a  dishonest 
debtor  an  opportunity  of  removing 
his  property  from  the  jurisdiction 
of  the  Courts  of  this  State.  But 
sometimes  it  is  impossible  to  give 
notice,  as  in  cases  where  he  has 
left  the  State  or  conceals  himself. 
In  all  cases,  however,  the  matter  of 
giving  notice  is  left  to  the  discre- 
tion of  the  judge;  and  whether  or 
not  a  notice  should  be  given  to  the 
judgment  debtor  should  be  detei-- 
mined  by  the  circumstances  of  each 
case."  24  Am,  &  Eng.  Ency.  of 
Law,  632. 


39  §  11774  G.  C. 

The  latter  part  of  the  above  sec- 
tion, to-wit:  that  his  answer  shall 
not  be  used  as  evidence  against  him 
in  a  prosecution  for  such  frau;!, 
means,  in  a  criminal  action.  In  a 
civil  action  where  the  identical  mat- 
ter was  in  issue,  in  wliich  tht^  jiarty 
was  examined  in  the  Probate  Court, 
his  testimony  might  be  useil.  Coode 
vs.   Patterson,   40   0.   8.   345. 

And  likewise  it  was  held  that  tes- 
timony before  a  referee  might  be 
used.  Zimmerman  vs.  Grotenkom- 
per,  8  Pec.  364. 

40  §  11775   G.   C. 

r)oes  not  apply  to  <'ivll  action 
based  upon  discoveries  m:i<Ie  in  aid 
of  execution.  Goode  vs.  Patterson, 
40  O.  S.  345. 

Action  can  be  referred,  ])nt  where 
referee  finds  that  third  party  has 
money  belonging  to  del)tor,  Court 
cannot  onler  it  paid  into  Court, 
llarman  vs.  Walter.  4  Dec.  Hep.  455; 
2  Clev.  L.   Rep.    1S5. 


§  1931  AID    OF    EXECUTION  1632 

§  1931.  Proceedings  may  be  continvied.  ' '  Such  judge  or 
referee,  may  continue  his  proceedings  from  time  to  time,  until 
they  are  completed."     [R.  S.  §  5478.]  " 

§  1932.  How  attendance  of  parties  and  witnesses  compelled. 
"A  party  or  witness  may  be  coinpelled,  by  an  order  of  the 
judge,  or  by  a  subpoena,  to  attend,  before  a  judge  or  referee, 

to  testify."     [R.  S.  §5479.]  '- 

§  1933.  Examination  before  referee  to  be  certified.  Oath  of, 
v/itness.  "If  before  a  referee,  the  examination  must  be  taker? 
by  the  referee,  and  certified  to  the  judge.  All  examinations  and 
answers  before  a  judge  or  referee  must  be  on  oath.  When  a 
corporation  answers,  the  answer  must  be  on  the  oath  of  an  officer 
thereof."     [R.  S.  §5480.]  « 

§  1934.  How  disobedience  of  order  punished.  "If  a  person, 
party  or  witness,  disobeys  an  order  of  the  judge,  .court,  or 
referee,  duly  served,  he  may  be  punshed  as  for  contempt ;  and 
such  referee  may  report  the  case  to  the  court,  or  judge,  and  such 
court  or  judge  may  punish  for  contempt  as  provided  in  other 
similar  cases.^"     [R.  S.  §  5481.]  " 


§  1935.     Power  to  enforce  by  contempt  proceedings. 

The  power  of  a  judge  to  enforce  a  judgment  debtor  to  deliver 
property  in  his  hands  for  the  purpose  of  having  the  same 
applied  upon  an  execution,  has  been  seriously  doubted.  It  has 
been  claimed  that  this,  in  effect,  provides  an  imprisonment  for 

*^  §  1177G  G.  C.  43  §  11778  G.  C. 

42  §  11777  G.  C.  If  the  testimony  is  taken  before  a 

Under  the  above  section,  it  is  held  referee,  then  the  same  should  be 
that  a  referee  has  no  authority  to  made  in  writing  and  certified  to 
order  a  witness  to  attend  before  him  the  judge,  who  is  to  make  the  order, 
for ;  examination,  the  Court  must  Under  the  New  Yoric  statute,  it  is 
make  such  an  order.  Ilarman  vs.  held  that  the  referee  may  issue  sum- 
Walter,  1   Clevc.  L.  Rep.  26,  27.  m.ons,  administer  an  oath,  and  con 

This  same  rule  was  made  in  an-  duct   the  examination,   but  that  he 

other  Court.    Manning  vs.  Manning,  has  no  control  over  the  proceedings 

11   Bull.   144.  before  the  judge.     24  Am.   &   Eng. 

See     §  2011,    attendance    of    wit-  Ency.   of  Law,   G34. 

nesses.  44  §  11770  G.  C. 


1633  HOW  ORDER  ENFORCED  §  1936 

debt,  which  the  constitution  forbids.  This  matter  was  very 
thoroughly  discussed  in  a  case  arising  in  our  Circuit  Court/* 
and  there  the  conclusion  is  reached,  after  an  exhaustive  ex- 
amination of  the  authorities  in  our  own  and  otlier  States,  that 
a  judgment  debtor  who  fails  to  deliver  property  or  money  to  a 
receiver  according  to  an  order  made  in  proceedings  in  aid  of 
executions,  when  the  judgment  debtor  by  his  o"wn  examination 
discloses  that  he  has  property  or  money  under  his  control  and 
in  his  possession  which  should  be  applied  to  the  satisfaction  of 
the  judgment,  may  be  punished  as  for  a  contempt.  Such  im- 
prisonment is  not  in  violation  of  sec  15,  Art..  1  of  the  Consti- 
1  ution,  which  provides :  "  No  pei*son  shall  be  imprisoned  for 
debt  in  any  civil  action,  on  mesne  or  final  process,  unless  in 
case  of  fraud." 

It  has  also  been  held  that  the  order  may  be  binding  upon  the 
person  if  made  orally.*®  But  a  judgment  debtor  cannot  be  pun- 
ished for  failure  to  deliver  the  property  if  he  claims  that  he 
owns  it.*^  It  has  elsewhere  been  held  that  a  payment  of  money 
can  never  be  enforced  by  contempt  proceedings/^ 

§  1936.  Debtor  may  pay  execution  against  creditor.  *' After 
the  issue  of  execution  against  property,  a  person  indebted  to  the 
judgment  debtor  may  pay  to  the  sheriff  the  amount  of  his  debt, 
or  80  much  as  is  necessary  to  satisfy  the  execution.  The  sheriff's 
receipt  shall  be  a  sufficient  discharge  for  the  amount  so  paid, 
or  directed  to  be  credited  by. the  judgment  creditor  on  the 
execution."     [R.  S.  §5482.]  '' 

^  1937.  Judge  may  order  property  to  be  applied  on  execu- 
tion. "The  judge  may  order  any  property  of  tlie  judgment 
debtor  or  money  due  to  him,  not  exempt  by  law,  in  the  hands 
either  of  himself  or  other  person,  or  of  a  corporation,  to  be 
applied  toward  the  satisfaction  of  the  judgment,  l)ut  the  earn- 

■!"■/«   re  Concklin,  5   C.   C.  78;   3  the   constable    where    the    juil^'iiicnt 

C.  D.  40.  wag    taken    from    a   justice    of    tho 

40  7w  re  Lilliland,  4  Bull.  733;  24  peace's    Court,    the    receipt    of    the 

Am.  &  EnT.  Ency.  of  Law,  GGl.  constable  would  be  sufiicicnt.    Ilall.a- 

4T  White  vs.  Gates,  42  O.  S.  112.  nan  vs.  Crow,  15  0.  S.  I7G. 

*s  In  re  Rowekamp,  27  Bull.  289.  See  24  Am.  &  Eng.  Ency.  of  \mv, 

.See  §  197C  et  seq.,  contempt  pro-  051. 

o.!edin<T3.  '"'c  afTldavit  for  arrest  in  insudi- 

40  §  11780  G.  C.  cicnt    if    sworn    lo    befon^   a    notary 

In  the  above  section,  it  lias  been  public.     Williams  vs.  Roilze,  7  N.  P. 

held,  that  if  a  judgment  debtor  be  (N.R.)    G14;    8   Dec.  G95. 


§  1938  AID    OF    EXECUTION  1634 

ings  of  the  debtor  for  his  personal  services,  within  three  months 
next  preceding  the  order,  cannot  be  applied  when  it  is  made  to 
appear  by  the  affidavit  of  the  debtor  or  otherwise,  that  such  earn- 
ings are  necessary  for  the  use  of  a  family  supported  wholly  or 
partly  by  his  labor;  except  that,  if  the  judgment  is  one  for 
necessaries  furnished  to  the  debtor,  his  wife,  or  family,  an 
amount  equal  to  ten  per  cent,  of  such  earnings  may  be  ordered 
to  be  applied  toward  its  satisfaction."     [R.  S.  §  5483.]  ^^ 

§  1938.     Order  to  apply  property  or  money  on  judgment. 

If  the  judge  is  satisfied  from  the  examination  held,  under 
either  of  the  previous  sections,  that  th.e  debtor  has  property 
either  in  his  own;  possession,  or  in  the  possession  of  some  one 
else,  if  he  has  control  thereof,  then  an  order  should  be  made 
that  sucli  property  be  applied  toward  the  satisfaction  of  the 
judgment.  Only  the  judgment  debtor  bringing  the  proceeding 
is  entitled  to  this  order  —  other  judgment  creditor  are  not  en- 
titled to  participate  —  and  it  is  held  that  the  rights  of  the  cred- 
itors so  acquired  will  not  be  affected  by  an  assignment  of  the 
property  or  subsequent  bankruptcy  of  the  debtor.  But  the 
creditor  must  exercise  due  diligence  in  prosecuting  his  proceed- 
ing.^^ Of  course,  the  death  of  the  judgment  debtor  would  not 
affect  the  judgment  creditor's  rights. 

§  1939.     Property  that  may  be  reached. 

As  a  general  rule,  it  may  be  said  that  every  species  of  prop- 
erty not  exempt  by  law  may  be  reached  and  appropriated  by 
these  proceedings.     The  term  property  includes  money.®^ 

50  §  11781   G.   C.  reversing  2  O.  L.  R.  448;    15  Low. 

Court  not  authorized  to  settle  (lis-  D.  579;   Esuian  vs.  Roller,  27  0.  C. 

putes  between  judgment  debtor  and  C.  712;  JNemit  vs.  Vargo,  28  0.  C.  C. 

third  persons.     Firt  Nat'l  Bank  vs.  578;   8  C.  C.   (N.S.)   97. 

Clauss    2a  0.  C.   C.   107 ;    Edgarton  si  §  24  Am.  &  Eng.  Ency.  of  Law, 

vs.  Hanna,  11  0.  S.  323.  657.                                       ^ 

When  judge  may  order   property  52  Welch   vs.  P.,  F.  W.  &  C.  Ry. 

applied    on    executions.      Duffy    vs.  Co.,   1  W.  L.  M.  47. 

Reardon,  70  0.  S.  334.  Only  reaches  property  in  existence 

May    not    enforce    by     contempt,  at  time  of  service  of  process.    Kouns 

when?   Union  Bank  vs.  Bank,  6  0.  S.  vs.  Reiniger,  '24  C.  C.   116. 

253;    First   Nat'l    Bank   vs.   Clauss,  The  income  of  a  trust  fund  duly 

26  6.  C.  C.   107;   Porrecamp,  In  re,  paid  over  to  the  beneficiary,  and  by 

11    Dec.    Rep.    289;    27    Bull.    289;  him  deposited  in  a  bank  to  his  own 

Ooncklin,  In  re  3  CD.  40;  5  0.  C.  C  credit,   can  be  reached  by  his  cred- 

"j-g^  itors  in  proceedings  in  aid  of  execu- 

When  exempt,  see  Riley  vs.  Hetz-  tion,  though  the  will  provided  that 

ler   49  0.  S.  651;  Esman' vs.  Roller,  such    funds    shall    be    exempt    from 

3   b     L    R.    116;    17    Cir.    D.    712;  liability  for  the  debts  of  the  bene- 


1635  PROPERTY  REACHED  §  1940 

In  a  work  already  cited  from  ^^  tlie  following  varieties  of  per- 
sonal property  have  been  held  subject  to  these  proceedings :  A 
watch  of  the  judgment  debtor,  unless  necessarj^  to  be  used  in 
his  business ;  a  seat  in  the  Board  of  Trade  or  a  Stock  Exchange ; 
an.  interest  in  a  patent;  an  interest  in  a  partnership  in  dis- 
solution ;  money  due  to  a  judgment  debtor,  or  fraudulently 
withheld  by  him ;  alimony  directed  to  be  paid  to  a  woman ; 
money  on  a  life  insurance  policy  received  and  deposited ;  an 
annuity  given  to  a  judgment  debtor  and  wife,  but  belonging 
solely  to  the  judgment  debtor  during  tlieir  joint  lives;  an  equity 
of  redemption  in  chattels  which  are  moi*tgaged ;  an  interest  in  a 
personal  estate  as  next  of  kin ;  a  chose  in  action  on  a  contract 
or  arising  from  a  tort,  which  diminishes  the  debtor's  estate; 
property  held  in  trust  for  the  judgment  debtor's  benefit,  where 
the  trust  proceedings  from  tlie  judgment  debtor  himself,  or 
where  the  trust  proceeds  from  another  and  the  money  is  held 
only  to  be  paid  to  the  judgment  debtor;  money  lost  by  the  judg- 
ment debtor  at  gambling ;  f imds  of  a  private  corporation  in  the 
hands  of  its  stockholders,  when  such  funds  have  not  been  de- 
clared a  dividend.  Also  pension  money  after  it  leaves  the 
government's  possession.^* 

§  1940.     Property  that  cannot  be  reached. 

The  statute  specifically  provides  that  the  earnings  of  the 
debtor  for  his  personal  services,  at  any  time  within  three 
months  next  preceding  the  order,  cannot  so  be  applied,  when  it 
is  made  to  appear,  by  the  affidavit  of  the  debtor,  or  otherwise, 
that  such  earnings  are  necessary  for  the  use  of  a  family  sup- 
ported wholly  or  partly  Ivy  his  labor. '^^ 

It  is  further  held  that  only  money  actually  due  the  judgment 
debtor,  or  property  to  which  he  was  entitled   at  the  time  of 

ficiary,    1894.     Com.  Kruse  v.s.  Bea-       held,  that  where  a  person  engaged  in 

der,  1  Dec.  283;   31  Bull.  112.  an   independent  business,   liis   ronui- 

53  24  Am.  &  Eng.  Ency.  of  Law,       neration    to   be    the   profits    of    tlie 

042.  business     that     such     remuneration 

64Fulwiler  vs.  Infield,  6  C.  C.  36;       could   not  be   held   as   his   personal 

3  C.  D.   838.  earnings,  within  the  meaning  of  the 

65  Under    this    provision,    it    was       statute,     ("lark.   (Common   Pleas. 

Corporate  stock   may  be  reached. 
Ball  vs.  Am.  Ex.,  48  Biill.  12(i. 


§  1941  AID    OF    EXECUTION  1636 

the  order  for  examination,  can  be  reached.  That  moneys  or 
earnings  not  due  at  the  time  of  tlie  service  or  subsequently 
acquired  cannot  be  taJvcn.  It  has  also  been  held  that  property 
outside  of  the  State  cannot  be  reached/®  If  tlie  judgment 
debtor  was  not  the  owner  of  a  homestead  and  the  head  of  a 
family,  he  can  also  claim  as  exempt  any  sum  not  exceeding  five 
hundred  dollars  in  lieu  of  an  homestead  exemption.^^ 

§  1941.     Order  to  apply  property  or  money,  on  judgment. 

Probate  Court, County,  Ohio. 

,   190.. 

,  Plaintiff.. 

vs. 

,  Defendant .  . 

No 

Proceedings  in  Aid  of  Execution. 
Order. 

It  appearing  from  the  examination  of before 

1 ,  that  - ,  whicli  is  not  exempt  from  execution. 

It  is  therefore  hereby  ordered,  that  the  same  be  3 to 

* and  to  apply  the  s 

toward  the  satisfaction  of  the  judgment  rendered  against  the  said 

ill  favor  of  the  said ;   and  that  the  costs  of 

this  proceeding  c taxed  to  $ be  first  paid. 

,  Probate  Judge. 

1  "  Probate  Judge  "  or  "  Referee  who  has  is     appointed,     who     before     entering 

2  i  5475,   "  that  there  is  certain  property  upon    his    duties,    shall    take    an    oath 

belonging  to  the  said in  the  and  give  an  undertaking  to  the  State 

hands    of ,    to-wit:  "     (de-  of    Ohio    in     the    sum     of 

scribe   property)    or,   "that  the dollars,  conditioned  according  to  law, 

filed  the  report  of  his  proceedings."  with   sureties  to  the  approval   of  said 

...  .is  indebted  to  the  said Judge." 

in   the   sum   of... dollars."  5  "Same,"  or  "proceeds  thereof." 

3  "Delivered"    or    "paid."  6  "Including     a     fee     of     $ .  .al- 

4  "  Judgment     creditor;  "     or     "  who     is  lowed  as  a  reasonable  fee  to  said  re- 

hereby     appointed     receiver     herein,"  ceiver  "    (if  such  is  the  case), 

and   (if  other  person  than  the  Sheriff 

§  1942.  Judg-e  may  appoint  receiver,  and  prohibit  transfer, 
etc.,  of  property.  "The  judge  by  order,  may  appoint  the 
sheriff  of  the  proper  county,  or  other  suitable  person,  a  receiver 
of  the  property  of  the  judgment  debtor.  He  also,  by  order, 
may  forbid  a  transfer,  or  other  disposition  of,  or  interference 
with,  the  property  of  the  judgment  debtor  not  exempt  by  law." 
[R.  S.  §  5484.]  "^ 

o6  See   24   Am.   &    Eng.    Ency.   of  vided  the  judgment  debtor  testified 

Law,  646,  647.  that  it   was  within  his   control. 

In  re  Concklin,  5  C.  'C.  7'8;   3  C.  57  Snook  vs.  Snetzer,  25  0.  S.  516. 

D.    40.      It    is    held   that    an    order  See  §§  11725-6  G.  C.  as  to  special 

would    be    enforced,    although    the  exemptions.     §  1598. 

property  was  not  in  the  State,  pro-  ss  §  117S2  G.  C. 


1637  APPOIKTMEI>fT    OF    KECEIVER  §  1943 

§  1943.     Appointment  of  receiver. 

Whenever  there  is  any  controversy  about  the  o\vnership  of 
the  property  which  has  been  disclosed,  then  it  is  necessary  for 
the  Court  to  ajipoint  a  receiver  to  collect  the  same,  who,  if  pay- 
ment is  not  made,  can  resort,  to  the  ordinary  remedies,^®  and 
this  applies  also  to  a  case  where  a  debtor  of  a  judgment  debtor 
claims  the  property  as  his  own.*'' 

If  it  appears  that  a  third  person  has  a  claim  on  the  property, 
then  the  only  order  that  can  be  made  is  for  the  appointment  of 
a  receiver.^^  In  such  cases  it  has  been  held  that  a  receiver  will 
be  appointed  wherv^  it  is  shown  that  the  debtor  has  fraudulently 
or  suspiciously  fraudulently  transferred  his  property  to  others, 
who  hold  and  claim  to  OAvn  the  same,  when  there  is  a  strong  pos- 
sibility that  if  a  reoc\  ver  were  appointed  some  of  tlie  property 
could  be  recovered  aiui  money  realized  therefrom  applied  on 
the  creditor's  judgment."' 

A  receiver  appointed  in  such  a  case  is  an  officer  of  the  Court, 
and  tlie  law  relating  ti<  receivers  generally  is  applicable.  If 
the  receiver  be  a  person  other  thau  the  sheriff,  he  must  give  a 
bond. 

§  >.944.     Injunction. 

The  Court  has  the  power  at  any  time  to  forbid  a  transfer,  dis- 
position of,  or  interference  with  the  property  of  the  judgment 
debtor  not  exempt  by  law.  Sucli  an  injunction  is  usually  made 
where  there  is  any  property  found  belonging  to  the  judonnent 
debtor.  It  may  be  granted  at  any  time  during  the  proceedings, 
and  takes  effect  at  the  time  of  the  seiwice  upon  the  person  to  be 
restrained.  It  continues  in  force  until  the  proceedings  are  dis- 
missed. If  the  original  proceedings  are  void,  the  injunction 
would  be  void.°^ 

egEdcrarton  &  Wilcox  vs.  Ilanna,  "2  Hayes,  Green  &  Co.  vs.  Moore, 

11   0.  S.  323.  •>  ^-  I'-  --^'  ^  "<''^-  ^-^• 

«o  White  vs.  Gate,  42  0.  S.  100.  See  also  24  Am.  &  Eiifr.  Eiicy.  ..f 

01  Stone  vs.  Smith,  4  Dec.    (V.c.) ,       Law,  G87. 
68  Clev.  L.  Rec.  91.  "••'  See   24    An,.    &   Eng.    Ency.    of 

Law,    f>2r,,    §  117-S2    0.    C,    §  1042. 


§  1945  AID   OF   EXECUTION  1638 

§  1945.  Liability  of  sheriff  on  official  bond ;  undertaking  by 
receiver.  "If  the  sheriff  be  appointed  receiver,  he  and  his 
sureties  shall  be  liable  on  his  official  bond  as  such  receiver.  If 
another  pereon  be  appointed,  he  must  take  an  oath  and  give  a 
bond  as  in  other  cases."     [R.  S.  §5485.]'*-* 

§  1946.  Proceedings  when  indebtedness  denied,  or  another 
claims  the  property.  "If  it  appears  that  the  judgment  debtor 
has  an  interest  in  re'al  estate,  in  the  county  in  which  proceed- 
ings are  had,  as  mortgagor,  mortgagee,  or  otherwise,  and  his 
interest  can  be  ascertained  as  betwe'en  himself  and  the  person 
liolding  the  legal  estate,  or  the  person  having  a  lien  on  or  in- 
terest in  the  property,  without  controversy  as  to  the  interest  of 
the  person  holding  such  estate,  or  interest  therein,  or  lien 
thereon,  the  receiver  may  be  ordered  to  s'ell  and  convey  such 
real  estate,  or  the  interest  of  the  debtor  therein.  The  sale  shall 
be  conducted  as  is  provided  for  the  sale  of  real  estate  upon 
execution;  and  the  proceedings  of  sale  before  the  execution  of 
the  deed  shall  be  approved  by  the  court  in  which  the-  judgment 
was  rendered,  or  the  transcript  filed."     [R.  S.  §5486.]^^ 

§  1947.     Proceedings  under  §  11784,  G.  C. 

As  a  general  rule,  it  will  be  a  better  practice  where  an  in- 
terest in  real  estate  is  to  be  sold,  for  tbe  execution  creditor  to 
commence  a  proceeding  in  chancery,  to  subject  the  property  to 
sale  and  apply  it  on  his  judgment.  The  following  interest  in 
real  estate,  it  is  said,  may  be  reached:  A  dowser  right;  rents 
due  to  a  tenant  by  the  curtesy ;  the  interest  of  a  tenant  by  the 
curtesy  initiate  when  the  wife's  property  has  been  sold  in  par- 
tition; an  annuity  charged  by  devise  on  real  estate  for  tlie  judg- 
ment debtor's  benefit ;  an  interest  in  a  contract  for  the  purchase 
of  real  estate ;  the  sui-plus  from  a  sale  in  partition ;  the  income 
of  the  judgment  debtor's  real  estate  during  the  period  allowed 
by  statute  for  redemption  after  a  sale  on  execaition.^®  The  fol- 
lowing may  be  used  as  a  form  for  an  order  to  sell  interest  in 
real  estate: 

Order  to  pay  money  to  a  receiver  trustee   in   bankruptcy.     Ridges  vs. 

is    a    final    order    and    may    be    re-  Forbes,    3    C-.    €.     (N.S.)     525;     23 

versed  on  errar.     First  Nat'l  Bank  0.  C.  C.  438. 

vs.  Clauss,  2G  0.  C.  C.  107.  04  §  ii783  G.  C. 

See  as  to  compensation  of  receiver  <"'"  §  11784  G.  C. 

where  property  goes  into  han'ds  of  a  "c  24   Am.   &  Eng.   E*n'cy.  of  Law, 

642. 


1639  SECOND  PROCEEmNGS  §  1948 

ORDER  TO  SELL  INTEREST  IN  REAL  ESTATE. 

Probate  Court, County,  Ohio. 

,  190.. 

,  Plaintiff.. 

V.S. 

,  Defendant . . 

No 

Proceedings  in  Aid  of  Execution. 
Order  to  Sell  Interest  in  Real  Estate. 

It  appearing  from  the  examination  of before 

1 that  said has  an  interest  as 

* in  the  following  described  real  estate,  to-wit : 


It  is  ordered  that  the  receiver  heretofore  appointed  in  this  case  proceed  to 

sell  and  convey  s such  real  estate,  in  all  respects, 

in  the  same  manner  as  is  provided  for  the  sale  of  real  estate  upon  execution ; 
and  make  return  of  his  proceedings  without  unnecessary  delay. 

1  "  Probate  Judge  "  or  "  Referee  who  has         3  "  The  interest  of  said in  "  (if 

filed  the  report  of  his  proceedings."  such  is  the  case). 

2  "  Mortgagor,"    "  mortgagee  "    or    other- 

wise. 

§  1948.  Pleadings  to  be  reduced  to  writing,  and  filed  with 
clerk.  "The  order  requiring  a  judgment  debtor,  or  anyone 
indebted  to  him",  to  appear  and  submit  to  such  examination,  shall 
be  in  writing,  signed  by  the  judge  who  makes  it,  and  be  served 
as  a  sammons.  The  judge  shall  reduce  all  his  orders  to  Avriting, 
which,  together  with  a  minute  of  his  proceedings,  signed  by 
himself,  shall  be  filed  with  the  clerk  of  the  court  of  the  county 
in  which  the  judgment  is  rendered,  or  the  transcript  of  the 
justice  is  filed,  who  shall  enter  on  his  execution  docket  the  time 
of  filing  it."     [R.  S.  §5487.]'^^ 

§  1949.     Dismissal  and  second  proceedings. 

The  statute  nowhere  has  any  provision  in  reference  to  a  dis- 
missal of  the  proceedings,  bat  as  a  matter  of  course,  if  no  prop- 
erty is  found,  nothing  can  be  done  but  dismiss  the  action,  and 
the  defendant  not  having  any  property,  it  would  be  an  idle 
formality  to  tax  the  costs  agains^t  him ;  and  thcrcfoin^  it  equally 
follows  that  the  costs  should  be  taxed  against  the  plaintiff. 
Neither  is  there  any  statutory  provision  in  reference  to  the 
granting  of  a  second  order.  But  no  doubt,  if  the  first  order 
be  dismissed  by  consent  of  parties,  or  for  some  irregularity, 
without   entering   into   the   merits   of   the   controversy,    then    a 

67  §  11785  G.  C.  the  judge  to  docket  the  cas<'  like  in 

In    an    early    case    it    was    held,  ordinary  proceedings,  and  enter  his 

Welsh   vs.   Ry.   Co.,   1   W.  L.  M.  47,  journal  cnirios  and  orders,  and  then 

that    the    judge    need    not    keep    a  comply   witli    tlio    alnrve   sect  inn    by 

record    of    his    proceedings,    but    it  filing  a   transcript   of   such   journal 

seems  that  the  Ix^tter  way  to  comply  entries  witli  tlie  clerk  of  the  Court, 

with  the  above  statute  and  tlie  one  etc.,  as  above  provided, 
which  will  tend  to  regularity,  is  for 


§  1950  AID    OF    EXECUTION  1640 

second  order  might  be  issued.  But  if  the  matter  is  entered 
into,  then  as  to  such  property  no  second  order  can  be  made,  and 
a  future  order  could  only  reach  property  that  was  not  in  exist- 
ence, or,  if  in  existence,  not  known  when  the  first  order  was 
heard.^^  And  in  E"ew  York  it  is  held  that  two  orders  for  the 
examiination  of  the  judgment  debtor  cannot  exist  and  be  en- 
forced at  the  same  time.^^ 

§  1950.     Appeal  and  review. 

The  statute  nowhere  grants  the  right  of  appeal  in  proceedings 
in  aid  of  execution,  and  therefore  no  such  right  exists ;  and  it 
has  been  veiy  seriously  questioned  in  our  State  whether  such 
proceedings  can  be  reviewed  on  petition  in  error.  In  the  Com- 
mon Pleas  Coui-t,  in  a  decision  heretofore  referred  to,"°  the 
judge  holds  that  it  isi  not  reviewable,  and  when  this  case  was 
before  the  Supreme  Court,"^  the  Court  made  a  query  as  to 
whether  or  not  the  action  could  be  reviewed  on  eiTor.  The  Xew 
York  Code  provides  that  an  order  made  in  the  course  of  the 
proceeding  may  be  vacated  or  modified  by  the  judge  who  made 
it,  and  likemse  gives  the  right  of  appeal.  ISTeither  of  these 
rights  are  provided  for  in  our  State,  and  if  there  is  no  right  to 
.  review  the  proceedings  in  error,  then  the  parties  may  find  them- 
selves at  the  mercy  of  the  Court  hearing  the  action.  It  cer- 
tainly seems  that  the  order  made  in  such  cases  is  a  final  order 
affecting  a  substantial  right  to  review  which  a  petition  in  error 
might  be  prosecuted  in  a  higher  Court.^^ 

6f<  24    Am.    &    Eng.    Ency.    622.       '     shall    enforce    their    collection    from 

See   §  I'JIO.  svich    party   or   parties   as  ought    to 

09(4aylov(I  vs.  Jones,  7   Hun,  480.  pay  them.     ( R.  S.  §5489.) 
TO  Welch    vs.    Ry.    Co.,     1     W.    L.  \Vhen      forced      by      attacliment. 

M.  47.  §  11788.     When  the  judgment  is  not 

71  11  0    S.  569.  for   the   recovery  of   money  or   real 

72  Compensation  of  probate  judge.  projjerty  it  may  be  enforced  by  at- 
§  11786.  "For  his  services  herein  re-  tachment,  by  the  Court  which  ren- 
quired  the  probate  judge  shall  be  dered  it,  upon  motion  made,  or  by 
allowed  the  sum  of  three  dollars  a  rule  of  the  Court  upon  the  defend- 
in  each  case,  and  such  fees  as  are  ant;  but  in  either  case  notice  of 
allowed  by  law  to  clerks  of  the  the  motion,  or  a  service  of  a  copy 
Oommon  Pleas  'Court  for  similar  of  the  rule,  must  be  made  on  the 
services.       (R.    S.    §5488.)  defendant  a  reasonable   time  before 

Costs.     §  11787.     The  judge  shall  making    the    order    of    attachment, 

allow    to    clerks,    sheriffs,    referees.  (R.  S.  §  5490.) 

receivers,   and   witnesses,   such   com-  Now    held    to    be    a    final    order, 

pensation  as  is  allowed  for  like  serv-  First  Nat'l  Bank  vs.  Clauss,  26  0. 

ices  in  other  cases,  to  be  taxed  as  C.    C.    107. 
costs    in    the    case,    and    by    order, 


1641 


HABEAS   COEPUS 


§1951 


CHAPTER  cm. 
HABEAS  CORPUS. 


§1951 

Definition,   etc. 

§  19G:3 

§1952 

Jurisdiction        of        Probate 

Court. 

§  1964 

§  1953 

Who  entitled  to  writ. 

§  1954 

Who  may  make  application. 

§  1965 

§  1955 

Requisites      of      application 

therefor. 

§  1966 

§  1956 

Form  of  application. 

§  1967 

§  1957 

When   the   writ   will    not   be 

allowed. 

§  1968 

§  1958 

When     the     writ     must     be 

§  1969 

granted. 

§  1970 

§  1959 

Entry  ordering  writ. 

§1960 

Who  to  issue  the  writ,  and 

§  1971 

when. 

§  1972 

§  1961 

How  prisoner  may  be  desig- 

nated. 

§1973 

§1962 

Requisites  of  the  writ  in  cer- 

tain case. 

§  1974 
§  1975 

Form  of  writ  when  prisoner 
not  in  custody  of  an  officer. 

Form  of  writ  when  defendant 
is  an  officer. 

How  and  where  writ  may  he 
served. 

How  executed  and  returned. 

What  shall  be  stated  in  the 
return  of  the  writ. 

Form  of  return,  etc. 

Adjournment  of  cause. 

When  prisoner  shall  be  dis- 
charged on  habeas  corpus. 

Hearing,  etc. 

Form  of  entry,  discharging 
person. 

Form  of  entry,  remanding 
prisoner. 

Second   application. 

Appeal  and  errors. 


§  1951.     Definition,  etc. 

Proceedings  in  habeas  corpus  are  of  a  summary  character,  to 
determine  the  question  whether  a  person  is  nnhawfully  re- 
strained of  his  liberty.  It  derives  its  name  from  the  operative 
words  of  the  common  law  Latin  writ,  "  habeas  corpus,"  mean- 
ing "  that  you  may  have  the  body."  It  is  frequently  referred 
to  as  the  most  famous  writ  in  the  law,  and  having  been  for 
many  centuries  employed  to  remove  legal  re.straint  upon  per- 
sonal liberty,  no  matter  by  what  power  imposed,  and  it  is  often 
called  the  "  great  writ  of  liberty."  The  privilege  of  apjx^aling 
to  the  Courts  for  protection  under  this  writ  are  guaranteed  by 


§  1952  HABEAS  COEPUS  1642 

the  Constitution  of  both  the  United  States  ^  and  the  Consti- 
tution of  the  State  of  Ohio." 

The  language  of  both  being  the  same,  "  that  the  privilege  of 
the  writ  of  habeas  corpus  shall  not  be  suspended  unless  in  case 
of  rebellion  or  invasion,  the  public  safety  requiring  it."  It  ia 
defined  as  a  ^vrit  directed  to  the  person  detaining  another,  and 
commanding  him  to  produce  the  body  of  the  prisoner  at  a  cer- 
tain time  and  place,  with  the  date  and  cause  of  his  caption,  and 
detention  to  do,  submit  it,  and  receive  whatsoever  the  Court  or 
judge  warrant  the  writ  shall  consider  in  that  behalf.^ 

The  writ  of  habeas  corpus  is  in  this  State  not  a  common  law 
right,  but  a  statutory  right ;  and  as  a  statutory  right  it  must  be 
strictly  construed  and  strictly  confined  to  the  cases  for  which  it 
is  authorized  by  the  statute.  While  it  is  the  great  writ  of  lib- 
erty, and  will  be,  as  it  ought  to  be,  most  favorably  regarded  by 
the  Courts  of  the  State,  yet  they  must  construe  it  and  award  it 
in  the  strict  light  of  the  statute.*  While  the  proceeding  is  es- 
sentially a  civil  and  not  a  criminal  proceeding,^  it  is  a  special 
proceeding,®  and  not  a  civil  action  within  the  meaning  of  the 
Code.' 

§  1952.     Jurisdiction  of  Probate  Court. 

By  statute  it  is  provided  "  that  the  Probate  Court  shall  have 
concurrent  jurisdiction  in  allowing  and  issuing  writs  of  habeas 
corpus,  and  determining  the  validity  of  the  caption  and  deten- 
tion of  the  person  brought  before  tbem  on  such  writs."  ® 

1  Const.  U.  S.  Art.  9,  §  9,  Clause  a  party  does  not  prosecute  another, 
2.  but  makes  an  original  application  to 

2  Bill  of  rights,   §  8.  a   Court   for   the  enforcement  of   a 

3  Bouv.   Law  Die.  right.     The  only  pleading  provided 
See    Blackstone's    Com..   §  135    et       for   is  a  petition,   although   the  re- 

seq.  turn  of   the   writ   is  treated   as  an 

*  In  matter  of  Curd,  11  Bull.  186.  answer.      The    only    process    is   the 

187.  writ   itself,    no   summons   beirtg   re- 

5  Henderson  vs.  James,  52  O.  S.  quired  under  chapter  eight,  division 
242.  second,  whereas,  "  a  civil  action  must 

6  Missionary  Society  vs.  Ely,  56  be  commenced  by  filing  in  the  office 
O.  S.  405,  407.  of  the  clerk  of  the  proper  Court  a 

7  In  re  Barney  Miller,  19  C.  C.  petition,  and  causing  a  summons  to 
544.  be  issued  thereon." 

To  obtain  a  writ  of  habeas  corpus  s  §  10493  G.   C,   §  28. 


1643  JUEISDICTION-  §  1952 

From  the  reason  that  Probate  Courts  are  open  at  all  times, 
proceedings  in  habeas  corpus  are  perhaps  oftener  brought  in 
such  Courts  than  in  any  otlier  Courts.  It  is  therefore  proper 
that  in  a  work  of  tliis  character  some  little  attention  be  devoted 
to  this  subject.  It  being  sufficient  to  say  that  in  a  proceeding 
of  this  character,  the  jurisdiction  of  the  Probate  Court  is  as 
broad  as  that  of  any  .other  State  Court.  Another  section  of  the 
Revised  Statutes  provides  as  follows: 

•'The  writ  of  hahean  corpus  may  be  granted  by  the  supreme 
court,  the  court  of  appeals,  the  common  pleas  court,  the  probate 
court,  or  by  a  judge  of  either."     [R.  S.  §  5727.] ^ 

The  question  sometimes  arises  as  to  the  location  of  the  Court 
in  which  tlie  application  should  be  filed.  There  is  nothing  so 
far  as  the  author  is  aware,  in  the  statutes  indicating  that  the  ac- 
tion must  be  brought  in  a  certain  county.  A  Common  Pleas 
Court  has  recently  held  that  in  an  action  of  habeas  corpus, 
where  it  appears  tliat  neither  the  relator,  nor  the  defendant,  nor 
the  person  whose  liberty  is  restrained,  are  residents  of  the 
county  wherein  the  application  is  made,  that  the  Court  has  no 
jurisdiction  to  allow  or  grant  the  writ;  and  furtJier  adds  that 
such  a  proceeding  is  a  civil  action  and  must  be  brought  in  the 
county  in  which  the  defendant  resides.^" 

In  another  case  it  was  held  "  that  the  Court  in  which  the 
detention  exists  is  the  one  having  jurisdiction,  and  further  held 
in  this  case  that  if  jurisdiction  was  unjustly  obtained,  that  the 
proceedings  would  be  dismissed.^^ 

9  §  121G2    G.    C.  remains  in  forco,  intt^rfere  with  such 

As   a   general    rule,    the    Supreme  custody.      Hoffman   vs.   lloflinan,    l.> 

Court  will  refer  parties  desiring  tiie  0.  S.  427. 

aid  of  the  writ  of  luiheas  corpus,  to  The  Su;>reme  Court  lias  no  more 

the  inferior  Courts  of  the  State,  and  jurisdiction  than  the  Probate  Court, 

will   take   cognizance   of    such    cases  as  each    are   governed   by  tiie   same 

only  when  special  cijcumstances  ren-  rules.     Bushneil,  Ex  jxirtr,  9  O.  S. 

der  it  necessary   to  settle  some   im-  182. 

portant   ouestion.      Ex  parte   Shaw.  lo  State  v.s.  Speidel,  1  Daytxin,  17. 

7  0   S.  81 ;  Ex  parte  Shean,  25  0.  S.  "  Ex  parte  Everets,  2  l>i/.  33. 

440.      When   a  person   is  an   inmate  '2  In   a  caso   in   another  State,    it 

of  a  benevolent  or  penal  institution.  was  held,  that  tlie  i'robate  Court  or 

the    petition    must    be    filed    in    the  judge     to     whom     the     application 

county    wliere    such    institution    is  should  be  made  is  not  the  one  n.-ar 

located.     §  12103  G.  C.  '>«t   tl>e   residence   of   the    app  i.-ant. 

If    Common    Pleas    Court,    in    di-  but   the  one   nearest   tlie   »I'l>l'<-;'"<- 

vorce  proceedings,  orders  custody  of  Tliompson  vs.  Oglesl>y.  42  Iowa.  .>.!«. 
children   to  one  of  parties.   Probate  In   the  case  of  State   vs.   Sp...del. 

Court    cannot,     while    such    <l(>ca-ee  above  referred  t^,  it  was  held.  Miat 


§1953 


HABEAS  CORPUS 


1644 


§  1953.     Who  entitled  to  a  writ. 

Upon  this  question  the  statutory  provision  is  as  follows : 

"A  person  unlawfully  restrained  of  his  liberty,  or  a  person 
entitled  to  the  custody  of  another,  of  which  custody  he  is  unlaw- 
fully deprived,  may  prosecute  a  writ  of  habeas  corpus,  to  inquire 
into  the  cause  of  such  imprisonment,  restraint,  or  deprivation. ' '  ^^ 

The  writ  of  habeas  corpus,  however,  cannot  be  used  as  a  sum- 
mary process  to  roview  or  revise  errors  and  irregularities  in  the 
sentence  of  a.  Court  of  competent  jurisdiction.  Imprisonment 
under  a  sentence  cannot  be  unlawful,  unless  the  sentence  is  an 
absolute  nullity,  and  if  it  is  clearly  unauthorized  and  void,  tlien 
relief  from  imprisonment  may  be  obtained  by  habeas  corfjus, 
but  if  the  sentence  is  not  void  absolutely,  a  petition  in  error  is 
the  pro]5er  remedy.^* 

In  order  to  make  a  case  for  habeas  corpus  there  must  be  act- 


in  divorce  proceedings,  where  a  fa- 
ther acquires  the  child,  that  juris- 
diction in  such  cases  might  be  ob- 
tained in  the  county  in  Avhich  the 
divorce  proceedings  were  had,  as  be- 
ing somewhat  in  the  nature  of  an 
auxiliary  proceeding  to  the  divorce 
action. 

In  9  Ency.  of  Plead.  &  Prac.  1015, 
the  rule  is  laid  down,  that  the  ap- 
plication should  be  made  to  the  lo- 
cal Court  or  judge  in  the  county  in 
which    the   applicant   is    restrained. 

Citing  in  re  White,  33  Neb.  812; 
in  re  Doll,  47  Minn.  518;  in  re 
Lyon,  19  Tex.  App.  120. 

If  the  local  judge  refuses,  appli- 
cation may  be  made  outside.  Citing 
ex  parte  Ellis,  11  Cal.  223,  and  cases 
above  cited. 

From  the  fact  that  the  Supreme, 
Circuit,  Common  Pleas,  and  the  Pro- 
bate Courts  all  have  jurisdiction, 
there  will  be  little  cause  for  bring- 
ing   an    action    in    a    county    other 


tlian    that    in    which    the    detention 
exists. 

13  §  12161  G.  C. 

14  £x  parte  Shaw,  7  O.  S.  81;  ex 
parte  Van  Hagan,  25  O.  S.  426;  ex 
parte  McGehan,  22  O.  S.  442;  ex 
parte  Virginia,  100  U.  S.  339; 
ex  parte  Siebold,  100  U.  S.  371. 

After  a  person  has  been  arrested 
and  has  waived  examination,  and 
been  bound  over  no  illegality  or  ir- 
regularity in  or  about  his  arrest  or 
the  proceedings  before  commitment 
will  avail  him  on  habeas  corpus. 
Newtirry  vs.  State,  7  C.  D.  622;  15 
C.  C.  208. 

Where  a  prisoner  has  served  his 
time,  and  is  only  held  for  the  fine 
and  costs,  and  the  sentence  is  illegal 
as  to  the  terms  of  such  part  of  the 
imprisonment,  as  reversal  or  error 
can  not  restore  him,  habeas  corpus 
lies.  Moore  in  re,  7  C.  D.  575;  14 
C.  C.  237. 


1645  WnO   MAY   MAKE   APPLICATION  §  1954 

ual  confinement  or  present  means  of  enforcing  it;  mere  moral 
restraint  is  not  enough/^ 

§  1954.     Who  may  make  application. 

If  the  party  himself  is  capable  and  not  under  such  restraint 
that  he  is  unable  to  make  the  application,  he  should  make  his 
own  application.  However,  if  by  want  of  physical  or  mental 
capacity  the  party  is  unable  to  make  the  application  himself, 
then  it  may  be  made  by  some  one  in  his  behalf.  Generally,  if  a 
person  is  unlawfully  imprisoned,  the  Courts  will  consider  that 
he  is  in  such  a  position  that  the  application  may  be  filed  for 
him  by  another.  An  application  may  be  filed  by  one  to  release 
another  from  unla-svful  restraint^  when  by  reason  of  some  par- 
ticular relation  between  the  parties  the  person  making  the  ap- 
plication is  entitled  to  the  society  or  custody  of  the  person 
restrained.  Thus  a  husband  might  file  an  application  to  regain 
the  custody  of  his  wife  where  she  is  kept  in  custody  away  from 
him  and  against  her  will.^*' 

And  so  a  parent  may  file  the  application  for  the  custody  of 
his  infant  child.  ^^ 

Likewise  a  gi'andparent  might  file  such  application,^-^  and 
for  the  same  reason  the  guardian  might  file  an  application  to 
regain  the  custody  of  his  ward.  But  it  is  held  that  a  master 
could  not  file  an  application  to  secure  the  custody  of  an  ap- 
prentice.^^ 

15  Wales  vs.  Whitney,  114  U.  S.  corpus  on  behalf  of  the  husband. 
5g4_  Cobbett  vs.   Hudson,    15   Ad.   &   El., 

16  9  Am.  &  Eng.  Ency.  of  Law,  Q.  B.  988 ;  Matter  of  Ferrens.  3  Ben. 
176,  citing  ex  parte  Newton,  2  (U.  S.)  445.  It  may  also  issue  at 
Smith,  617;  Queen  vs.  Leggatt,  18  the  wife's  instance,  and  against  the 
Ad.  &  El.  Q.  B.  781 ;  ex  parte  Sandi-  husband  when  she  is  improperly  re- 
lands,  12  Eng.  L.  &  Eq.  463;  S.  C,  strained  by  him.  Lister's  Case,  8 
21  L.  J.  Rep.  N.  S.  Q.  B.  342;  Rex.  Mod.  22. 

vs   Clarkson,  1  Stra.  445;  Schouler's  "9   Am.   &   Ency.   of   Law.    177; 

Dom.  Rel.,  3rd  ed.  61 ;  Rex.  vs.  Mead,  Clark  vs.  Bayer,  32  0.  S.  299 ;  Giah- 

1  Butt.  542;  Sanders  vs.  Rodway,  13  wilcr  vs.  Dodez,  4  O.  S.  615;  SUxte 

Eng.  L.  &  Eq.,  463;   S.  C   16  Jur.  ex  rel.  Nilcs  vs.  Niles,  25  Bull.  327. 

1005;  Rex  vs.  Gregory,  4  Burr  1991.  i«  Clark  vs.  Bayer.  32  O.  S.  299 

So  a  wife  may  move  for  a  habeas  i»9  Am.  &  Eng.  Ency.  of  Law.  177. 


§  1955  HABEAS  CORPUS  1646 

§1955.  Requisites  of  application  therefor.  "Application 
for  the  writ  shall  be  by  petition,  signed  and  verified  either  br 
the  party  for  whose  relief  it  is  intended,  or  by  some  person  for 
him,  and  shall  specify: 

"1.  That  the  person  in  whose  behalf  the  application  is  made 
is  imprisoned,  or  restrained  of  his  liberty; 

"2.  The  officer,  or  name  of  the  person  by  whom  he  is  so 
confined  or  restrained.  If  both  are  unknown  or  uncertain,  he 
may  be  described  by  an  assumed  appellation.  The  person  who 
is  served  with  the  writ  shall  be  deemed  tJie  person  intended ; 

"3.  The  place  where  he  is  so  imprisoned  or  restrained,  if 
kno\\Ti ; 

"4.  A  copy  of  the  commitment  or  eausje  of  detention  of  such 
person  shall  be  exhibited,  if  it  can  be  procured  without  impair- 
ing the  efficiency  of  the  remedy;  or,  if  the  imprisonment  or 
detention,  is  without  legal  authority,  such  fact  must  appear.'* 
[R.  S.  §  5728.]  ^^ 

§  1956.     Form  of  application. 

State  of  Ohio,  ex  rel,  ^ 

of C  Probate  Court. 

vs.  ) County, 

C.  D.,  etc. 

Petition  for  Writ  of  Habeas  Corpus. 

Your  petitioner.  A.  B.,  respectfully  represents  that  he  is  unlawfully  re- 
strained of  his  liberty    (imprisoned),  by (state  the  officer 

or  the  name  of  the  person  by  whom)    at (state  the  place 

where).     The  pretended  cause  of  the  imprisonment  is  as  follows: 

A  copy  of  the  commitment   (or  cause  of  detention)    is 

hereto  attached. 

Wherefore  your  petitioner  asks  that  a  writ  of  habeas  corpus  may  be 
granted,  and  that  he  may  be  discharged  from  such  unlawful  imprisonment. 

(Verification.)  A.  B. 

BY    THIRD    PERSON. 

(Title.) 

Your  petitioner  respectfully  represents  that  one  L.  M.  (if  name  is  un- 
known describe  him,  §  5732  R.  S. )  is  unlawfully  restrained  of  his  liberty 
( or  imprisoned ) ,  by at 

The  cause  of  said  imprisonment  is  as  follows 

A  copy  of  the  commitment  is  hereto  attached. 

Wherefore  your  petitioner  asks  that  a  writ  of  habeas  corpus  may  be 
granted,  and  that  said  L.  M.  may  be  discharged  from  such  unlawful  con- 
finement. 

A.  B.  in  behalf  of  L.  M. 

( Verification. )  21 

20  §  12164  G.  C.  '  tinguished    from    controverted    cus- 

21  In  the  petition  in  cases  of  re-  tody,  the  allegation  of  unlawful  re- 
straint  under   R.   S.    §  5726,   as   dis-       straint  of  liberty  is  essential  to  give 


1647 


WHEN  ALLOWED 


§1957 


BY  A  PARENT  FOR  CHILD,  ETC. 
(Title.) 

Your  petitioner  respectfully  represents  that  he  is  the  father  (mother,  or 

guardian  appointed  by  the  Probate  Court  of county  on  the 

day  of ,  a  copy  of  whose  letters  of  appointment 

are  hereto  attached,  marked  "Exhibit  A,")   and  is  entitled  to  the  custody 

of  A.  B.,  an  infant, years  of  age.     That  said  A.   B.  is  unlawfully 

restrained  of  his  liberty  by  E.  F.  at  (here  state  place  where  A.  B.  is  kept 
in  custody)  and  that  the  said  E.  F.  unla\vfully  and  illegally  prevents  the 
undersigned  from  procuring  the  custody  of  said  A.  B. 

Wherefore  your  petitioner  asks  that  a  writ  of  habeas  corpus  may  be 
granted  and  that  the  said  A.  B.  may  be  discharged  from  such  unlawful 
restraint  and  may  be  delivered  from  the  unlawful  custody  of  the  said  E.  F. 

(Verification.)'  G.  H.22 

§  1957.  When  the  writ  will  not  be  allowed.  "If  it  appears 
that  the  person  alleged  to  be  restrained  of  his  liberty  is  in 
custody  of  an  officer  under  process  issued  by  a  court  or  magis- 
trate, or  by  virtue  of  the  judgment  or  order  of  a  court  of  record, 
and  that  the  court  or  magistrate  had  jurisdiction  to  issue  the 
process,  render  the  judgment,  or  make  the  order,  the  writ  shall 
not  be  allowed;  or,  if  the  jurisdiction  appears  after  the  wnt 
is  allowed,  the  person  shall  not  be  discharged  by  reason  of  any 


jurisdiction,  and  its  absence  is  not 
curable  by  amendment,  nor  waived 
by  appearance  and  trial. 

Hence,  in  habeas  corpus  for  a 
child,  if  the  relator  docs  not  claim 
the  right  of  custody,  but  merely  acts 
on  its  behalf,  an  averment  that  it 
is  illegally  restrained  and  possessed 
by  respondent  is  fatally  defective 
even  after  trial,  for  as  a  child  must 
be  in  some  one's  custody;  want  of 
liberty  is  not  necessarily  alleged. 
In  re  Curd,  11  B.  186. 

22  It  has  been  held  that  a  guard- 
ian must  make  his  letters  a  part  of 
his  petition.  Gregg  vs.  Winn,  2.3 
Ind.  373. 

The  first  two  forms  above  given 
are  taken  from  Bates'  Pleadings  and 
Prac.,  and  are  criticised  in  Kin- 
kead's  Pleading  and  Practice  610, 
for  the  reason  that  they  do  not  set 
up  the  facts  upon  which  the  unlaw- 
ful restraint  is  founded.  However, 
in  a  recent  case  in  State  of  Ohio  vs. 
Mullaney,  8  N.  P.    IG.^,  the  Court, 


after  reviewing  the  matter  very 
thoroughly,  holds  that  the  forms  are 
sufficient,  and  that  in  habeas  corpus 
proceedings,  it  is  not  necessary  in 
a  petition  to  set  out  fully  the  facta 
and  circumstances  of  the  imprison- 
ment or  restraint  constituting  the 
giound  for  the  relief  asked. 

If  the  pleader  has  any  doubts 
upon  this  subject,  the  above  forms 
could  very  easily  be  changed,  and 
before  the  prayer  of  the  same,  the 
facts  and  circumstances  of  the  im- 
prisonment might  be  inserted.  Kin- 
kead  on  Code  Proceedings  gives  such 
a  form,  p.  609.  and  also  gives  a 
form  for  a  petition  by  a  father  to 
regain  the  custody  of  a  minor  son  in 
the  United   States  army. 

In  the  United  States  Court  it  is 
required  that  the  facts  be  alleged, 
etc.  Kohl  vs.  L<>hlback,  160  U.  S. 
293;  King  vs.  McLean,  04  Fed.  Rep. 
325.  But  under  the  Ohio  statute, 
it  seems  to  the  author  it  would  be 
sufficient  without  such  allegations. 


§  1958  HABEAS   CORPUS  1648 

informality  or  defect  in  the  process,  judgment,  or  order."    [R.  S. 
§5729.J^'^ 

§  1958.  When  the  writ  must  be  granted.  ' '  When  a  petition 
therefor  is  presented,  if  it  appears  that  the  writ  ought  to  issue, 
a  court  or  judge  authorized  to  grant  the  writ,  must  grant  it 
forthwith."     [R.  S.  §5730.]  -' 

While  sec.  12165,  G.  C,  provides  that  if  certain  things  appear 
then  the  writ  shall  not  be  allowed.  As  a  matter  of  general  prac- 
tice, tlie  general  rule  is  that  if  the  application  shows  a  prima 
facie  case  of  unlawful  detention  or  imprisonment,  then  the 
Court  issues  tlie  writ.  Some  of  our  Courts  have  said  that  it  is 
the  duty  of  the  judge,  upon  a  proper  application  being  filed,  to 
issue  the  writ  and  try  the  rights  of  the  parties  upon  the  issues 
made  by  the  returu,^^ 

It  would  seem  to  be  carrying  out  the  idea  of  this  great  writ 
that  it  ought  not  to  be  left  in  the  discretion  of  the  judge  as  to 
the  question  of  its  issue.  Of  course,  if  the  application  fails  to 
disclose  an  unlawful  detention,  then  there  would  be  n,o  need  for 
issuing  the  writ,  and  it  very  properly  could  be  refused.  But 
usually  the  question  as  to  the  applicant's  discharge  rests  upon  a 
condition  of  facts  which  are  best  determined  from  the  issue 
made  up  by  the  return  to  the  writ;  and  it  has  generally  been 
held  that  if  a  judge  would  refuse  to  grant  the  ^\Tit,  he  might 
be  compelled  to  do  so  by  mandamus.  The  safer  and  better  way 
would  be  for  the  judge  in  all  cases  to  issue  the  writ 

§  1959,     Entry  ordering  writ. 

Should  it  appear  that  the  Avi'it  ought  to  be  issued,  the  judge 
should  make  an  entry  ordering  the  same,  which  may  be  in  the 
following  form: 

On  application  of  A.  B.,  it  is  ordered  that  a  writ  of  habeas  corpus  to 
(S.  S.  of  etc.;  or  describing  the  person  as  in  the  application),  commanding 
him  to  have  the  body  of  the  said  (C.  D. ;  or  describing  the  person  as  in  the 
application,  together  with  the  day  and  cause  of  his  caption  and  deten- 
tion), before  this  Court  on  the day  of instant,  at 

o'clock.  .  .M, 

23  §  121^5  G.C.  .States.      Disinger,    In    re,    12    0.    g. 

24  §  12166  G.  C.  250. 

25  Ex  parte  Earley,  1  W.  L.  M.  Children,  where  a  father  joins  the 
264.  Shakers  and  renounces  the  l)onds  of 

Custody  of  children.     Habeas  cor-  "natural  aflection,"  his  children  will 

pus   will   not   lie   to   recover   posses-  not  be  given  into  their  possession  as 

sion  of  the  minor  who  is  over  eigh-  against  their  maternal  grandmother, 

teen  years  of  age,  wlio  has  enlisted  State    vs.    Hand,    1    Dec.    Rep.    238; 

in  the  military  service  of  the  United  5  W.  L.  J.  301. 


1649  FORM   OF  WRIT  §  I960 

§  1960.  Who  to  issue  the  writ,  and  when.  "Upon  its  allow- 
ance, the  writ  shall  be  issued  forthwith,  by  the  clerk  of  the 
court  whereof  the  person  who  granted  it  is  a  judge,  under  the 
seal  of  such  court.  In  case  of  emergency,  such  judge  may  issue 
the  writ  under  his  own  hand,  and  depute  any  officer  or  person 
to  serve  it."  [R.  S.  §5731.]  ''' 

§  1961,  How  prisoner  may  be  designated.  "The  person  to 
be  produced  shall  be  designated  by  his  name,  if  known  and  if 
not  known,  or  uncertain,  he  may  be  described  in  any  other  way 
so  as  to  make  known  who  is  intended."     [R.  S.  §  5732.]  -' 

§  1962.  Requisites  of  the  writ  in  certain  case.  "In  case  of 
confinement,  imprisonment  or  detention  by  an  officer,  the  writ 
shall  be  directed  to  him,  and  command  bim  to  bave  the  body  of 
such  person  before  the  court  or  judge  designated  in  tbe  writ,  at 
a  time  and  place  therein  specified. "     [R.  S.  §  5733.]  -^ 

§  1963.  Form  of  w^rit  when  prisoner  not  in  custody  of  an 
officer.  "In  case  of  confineuicut,  imprisonment-,  or  detention 
by  a  person  not  an  officer,  the  writ  shall  be  in  tbe  form  following: 

"The  State  of  Ohio, Count^^  ss. : 

"To  the  sheriff  of  our  several  counties,  greeting: 

"We  command  you  that  the  body  of of , 

by ,  of ,  imprisoned  and  restrained  of  has 

lib?rty,  as  it  is  said,  you  take  and  have  before   .  .• ,  a 

judge  of  our court,  or,  in  case  of  his  absence  or  dis- 
ability, before  some  otber  judge  of  the  saane  court,  at  .  ." , 

forthwith  to  do  and  receive  what  our  said  judge  shall  then  and 

there  consider    concerning  him  in  his  behalf;  and 

summon  the  said   then  and  there  to  appear  before 

If  wife  deserts  her  liusband  with-  of  the  Court.     Coons,  E.v  purte.   11 

out  just  cause,    she   is   not  entitled  C.  D.  208;   2.5  0.  C.  C.  47. 
to  custody  of  their  children.     State  When  custody  of  child  is  brought 

vs.  Nisliwltz,  1  Dec.  Kep.  370;  8  W.  about  by  habeas  corpus  i)roceedin','s 

L.    J.    396.  t,he    Court    is    authorized    to    make 

If  the  husband  has  possession  of  ^uch  order  os  the  best   interests  of 

the  child,   although    it   is  of   tender  the    child    demand.      Barnes.    Fn   re, 

years,   if  well   cared  for  his  poss<  ?-  11   Dec.  Rep.  848;   30  Bull.   1(54. 
sion  will  not  be  distTirbcd.     State  vs.  Court  will  not  change  the  custody 

Nishwitz,  1  Dec.  Rep.  370;  8  W.  L.  of  the  child  from  one_  parent  to  an- 

j    39(5  other    except    where    its    neces-ifies 

In      habeas      corpus      proceedings  demand  it,  or  its  possessor  has  been 

acainst      father      for      custody      of  guiUv  of  fraud,  force  or  stratnc:em 

infant,  other  things  being  eqiial,   it  in   obtaining    its    possession.      State 

will     be    awarded     to    the    mother.  vs.    Nishwitz,    1    Dec.    Rep.    370;    8 

State  vs.   Niles,   11   Dec.   Rep.   240;  W.  L.  J.  390. 
25  Bull.  327.  T*'   *^^ip   remedy,   where  a  child    is 

The    mother    is    entitled     to    tlie  committed    to    prison,    is    not    nde- 

custodv  of  children  under  ten  vears  quale,    the    rieht   of   detention    may 

of  ao-e'     Vincent  vs.  Vincent    8  Dec.  l>e    inquired   into  by   h/ibras   ror/ws. 

100-^0  N.  P.  474.  Preseot  vs.  State.  19  0.  S.    1H4,   18!\ 

A    mother's    ri-rht    to   custody   of  2«  5  12707  O.  C. 

child   cannot  be  willed  away  if  the  2^  §  12708  O  €. 

child    is    really    in    the   custody    of  -«  8  12109  G.  C. 


§  1964  HABEAS   CORPUS  1*>50 

our  said  judge,  to  show  the  cause  of  the  taking  and  detention 

of  the  said   

"  (Seal)        Witness ,  at ,  this 

day  of ,  in  the  year "     [R.  S.  §  5734.]  ^» 

§  1964.     Form  of  writ  when  defendant  is  an  officer. 

States  of   Ohio, County,   ss. 

Probate  Court. 
To  C.  D.,  Sheriff  of County,  greeting: 

You  are  hereby  commanded  to  have  the  body  of  A.  B.,  alleged  to  be 
restrained  by  you  of  his  liberty    (stating  the  facts  as  in  the  petition)   in 

the  jail  of  your  county,  before  this  Court  on ,  the 

day  of  190.  .,  at o'clock.  .  .M.,  and  to  show  the  date  and  the  cause 

of  the  taking  and  detention  of  the  said  A.  B.  and  have  you  then  and  there 
this  writ,  with  your  return  of  service  indorsed  thereon. 

Witness  my  hand  and  the  seal  of  said  Court,  at ,  this 

day  of ,  190.  .. 

( Seal. )  ,  Probate  Judge. 

§  1965.  How  and  where  writ  may  be  served.  ' '  The  writ 
may  be  served  in  any  county,  })y  the  sheriff  of  that  or  any  other 
county,  or  bv  a  person  deputed  hy  the  court  or  judge."  [R.  S. 
§  5735.]  ^" 

§  1966.  How  executed  and  returned.  ' '  The  officer  or  person 
to  whom  the  writ  is  directed  shall  convey  the  person  so  im- 
prisoned or  detained,  and  named  in  the  writ,  before  the  judge 
allowing  it  cr,  in  case  of  his  absence  or  disability,  before  some 
other  judge  of  the  same  court,  on  the  day  specified  in  the  writ. 
He  shall  make  due  return  of  the  writ,  together  with  the  day  and 
the  cause  of  the  caption  and  detention  of  such  person,  according 
to  its  command."     [R.  S.  §  5736.]  "^ 

§  1967     What  shall  be  stated  in  the  return  of  the  writ. 

"Wlien  the  person  to  be  produced  is  imprisoned  or  restrained 
by  an  officer,  the  person  who  makes  the  return  shall  state  therein, 
and  in  other  cases  the  person  in  whose  cu.stody  the  prisoner  is 
found  shall  state,  in  writing,  to  the  court  or  judge  before  whom 
the  writ  is  returnable,  plainly  and  unequivocally: 

"1.  Wliether  he  has,  or  has  not,  the  party  in  his  custody  or 
power,  or  under  restraint ; 

"2.  If  he  has  the  party  in  his  custody  or  power,  or  under 
restraint,  he  shall  set  forth,  at  large,  the  authority,  and  the  true 
and  whole  cause,  of  such  imprisonment  and  restraint,  with  a 
copy  of  the  writ,  warrant,  or  other  process,  if  any,  upon  wliich 
the  part}^  is  detained ; 

''3.  If  he  has  had  the  party  in  his  custody  or  power,  or 
under  restraint,  and  has  transferred  such  custody  or  restraint 
to  another,  he  shall  state,  particularly,  to  whom,  at  what  time, 

29  §  12170  G.  C.  make  return  showing  that  the  writ 

30  §  12171  G.  C.  has    been    properly    served    on    the 

31  §  12172  G.  C.  nflicer  delivering  accused,  whereupon 
The     direction    to  a    sheriff,     to       the     latter     officer     should     produce 

whom    is   issued   a   writ,   should   be       prisoner    as    directed    by    the    writ 
not    to    produce    the    body,    but   to       Ex  parte  Chas.  Morris,  21  Dec.  104. 


1651  RETURN 


§1968 


for  what  cause  and  by  what  authority,  such  transfer  was  made." 
[it.  b.  §  57o8.]  ^- 

§  1968.    Form  of  return,  etc. 

The  statute  provides : 

"The  return  or  statement  shall  he  signed  by  the  person  who 
makes  it.  It  shall  also  be  sworn  to  by  him,  unless  he  is  a  sworn 
public  officer,  and  makes  the  return  in  his  official  capacity." 
[R.  S.  §  5739.]  '^ 

It  is  the  object  and  purpose  of  the  statute  in  habeas  corpus 
proceedings  tliat  the  application  shall  perform  tlie  ordinary  of- 
fice of  petition,  and  that  the  return  shall  serve  the  purpose  of 
an  answer,  and  in  this  way  the  issues  are  made  up.  If  the 
petition  does  not  state  facts  sufficient  to  constitute  a  cause  of  ac- 
tion, it  might  be  dismissed  on  motion  or  demurrer.^*  If  the 
return  does  state  sufficient  facts,  it  might  also  be  disposed  of 
by  demurrer.  The  statute  is  specific  as  to  what  this  return 
shall  show.  First,  it  must  state  whether  the  party  has  the  per- 
son for  whom  the  writ  is  sued  out  in  custody ;  second,  if  lie  has 
the  party  in  his  custody,  he  must  allege  by  what  right  or  author- 
ity he  claims  detention  of  such  person;  third,  if  he  has  had  the 
party  in  his  custody  and  transferred  such  custody  to  another,  he 
must  state  particularly  to  whom,  at  what  time,  for  what  cause, 
and  by  what  authority  such,  transfer  was  made.  Wliatever  the 
facts  may  be  which  may  be  considered  as  a  defense  to  the  writ 
should  be  set  forth  in  the  return.  The  general  form  for  which 
may  be  as  follows: 

To  the  Judge  of  the  Court  of (etc.)  : 

I  hereby  return  this  writ  and  respectfully  represent  and   show  to   the 

Court  that  I  have  the  said in  my  custody  and  power ;  that 

he  has  been  in  such  custody  since  on  the day  of upon 

the  following  authority,  fully  stated  as  follows:  (Here  state  the  true  and 
whole   cause  of   the  detention,   with    copy   of   the  writ,    warrant   or   other 

process,  if  any.) 

^  ■^  '  (Signed.) 35 

32  §  12174    G.    C.  heard     nnd     dotcrminod.        (R.     S. 

§  12173.     Wlien  the  writ  is  issued  S  5737.) 

by  a  Court  in  session,  if  the  Court  ■'*■''§  12175  G.  ('. 

has  adjourned  when  the  writ  is  'e-  ^*  It  is  said  it  should  be  done  by 

turned,   it   shall    l>e  returned   before  motion. 

any  judge  of  the  same  Court.  When  ■'•'>  A  return  that  the  defendant  ha.s 
the  writ  is  returned  Ix'fore  one  not  had  custody  or  control  is  equiv- 
judge,  at  a  time  wlien  the  Court  alent  tn  a  denial  of  the  allegation 
is  in  session,  he  may  adjourn  the  of  the  y)etition.  Amnion  vs.  .John- 
case    into    the    Court)    there    to    be  son,  3  <'.  C.  203;  2  C.  1).  14!». 


§  1969  HABEAS  CORPUS  1652 

The  above  form  would  be  sufficient  where  return  is  made  by  a 
public  official  and  need  not  be  sworn  to.  However,  if  the  re- 
turn is  made  bj  a  private  person,  an  affidavit  must  be  attached. 
The  following  is  given  as  a  proper  return  by  a  private  person 
where  a  writ  has  been  granted  for  a  child,  etc. : 

FORM  OF  RETURN  AND  ANSWER  OF  RESPONDENT. 

(Title.) 

This  respondent,  A.  L.  C,  producing  the  body  of  T.  C.  in  obedience  to 
the  writ  of  habeas  corpus  hereinbefore  issued.,  says  that  he  is  the  father 
of  the  said  T.  C,  a  minor  of  the  age  of  ten  years,  and  as  such  father 
entitled  to  the  care  and  custody  thereof.  (Then  given  full  statement  of 
facts. ) 

Respondent  denies  that  the  said  T.  C.  is  unla^^^ully  restrained  of  his 
liberty,  and  therefore  prays  that  this  Court  will  order  his  said  child,  T.  C, 
to  be  remanded  to  his  care,  custody  and  control,  and  that  the  said  writ 
herein  issued  may  be  quashed,  and  that  the  petition  herein  may  be  dis- 
missed and  the  costs  of  this  proceeding  adjudged  against  the  petitioner, 
and  for  such  further  relief  as  is  proper. 


State  of  Ohio, County,  ss. 

A.  B.,  being  first  duly  sworn,  says  that  he  is  the  respondent  in  the  above 
return  and  that  the  facts  therein  stated  are  true. 

Sworn  to  before  me  and  in  my  presence  this day  of 

,    190.. 35* 

§1969.  Adjournment  of  cause.  "The  court  or  judge  to 
whom  the  writ  is  returned,  or  the  court  into  which  it  is  ad- 
journed, for  good  cause  shown,  may  continue  the  cause,  and,  in 
that  event,  shall  make  such  order  for  the  safekeeping  of  the 
person  imprisoned  or  detained  as  the  nature  of  the  case  re- 
quires."    [R.  S.  §5740.]  •"" 

§  1970.  When  prisoner  shall  be  discharged  on  habeas  corpus. 
"When  the  judge  has  examined  into  the  cause  of  caption  and 
detention  of  the  person  so  brought  before  him,  and  is  satisfied 
that  he  is  unlawfully  imprisoned  or  detained,  he  shall  forthwith 
discharge  him  from  confinement.  On  such  examination,  the 
judge  may  disregard  matters  of  form  or  technicalities  in  any 

A  return  to  a  writ  directed  to  the  after    this   application,   will    be   de- 

U.    S.    IMarshal    that   he   holds    the  term-ined  on  the  facts  as  existing  at 

party  by  virtue  of  a  warrant  from  the  hearing  and  not  at  the  applica- 

tlie  U.  S.  Commissioner  is  conclusive  tion.    Hence  the  writ  will  be  refused. 

on  a  State  Court.    Ex  parte  Earley,  Ex  parte  Ilealy,  8  Dec.  C92 ;  38  Bull. 

3  Gaz.  234;    1  W.  L.  M.  -2G4.  250. 

Habeas  corpus  for  a  person   held  3^*  Kinkead   Code  Pleadings,   615. 

by  the  poLcc  and  no  warrant  for  the  "JC  §  12176  G.  C. 
arrest  having  been  sworn  out  imtil 


1653  HEARING  §  1071 

mittimus  or  order  of  comjuitment  by  a  court  or  officer,  authorized 
by  law  to  commit."     [K  S.  §  5741.]  " 

§  1971.     Hearing,  etc. 

Upon  the  return,  or  at  such  time  to  which  the  cause  may  be 
continued,  the  matter  at  issue  is  heard  in  the  usual  manner  that 
trials  before  a  judge  are  conducted.  The  defendant  is  not  en- 
titled to  a  jury  trial.  Tinder  the  general  powers  exercised  by 
a  Probate  Judge,  he  might  refer  the  matter  to  a  jury  to  return 
a  verdict  upon  the  facts.  The  general  practice  in  habeas  cor- 
pus proceedings  is  for  the  judge  to  tiy  the  issues  himself.  The 
question  at  issue  being  whether  the  party  is  unlawfully  re- 
strained of  his  liberty,  or  perhaps,  where  a  parent  seeks  to  re- 
cover possession  of  his  child,  the  additional  question  is  tried, 
determining  whether  or  not  the  parent  is  entitled  to  the  custody 
of  such  ehild,  and  furthermore,  what  is  to  the  best  interest  of 
such  child.^^ 

Subsequent  sections  provide  when  a  person  may  be  committed 
or  let  to  bail,^**  and  when  he  must  be  committed.*'*     And  fur- 

37  §  12177   G.  C.  er  than  that  for  which  he  was  sur- 

38  The  sufficiency  of  an  indictment  rendered  —  habeas  corpus  lies.  This 
can  not  be  questioned  by  habeas  is  not  reviewing  errors  within  the 
corpus.  Ex  parte  Bushnell.  9  O.  S.  sphere  of  authority.  Ex  parte  Mc- 
77,  184.  Knight,  48  0.  S.  588. 

The     fact     that     an     indictment  The  constitutionality  of  a  statute 

charges  no  crime  known  to  the  law  which  is  the  sole  authority  for  an 

is  not  triable  on  habeas  corpus  from  imprisonment  may  be  tested  by  ha- 

the  Circuit  Court,  for  a  demurrer  to  beas  corpus.     In  matter  of  Kline,  6 

the  indictment  would  raise  the  ques-  C.  C.  215;  3  C.  D.  422. 

tion,  and  the  decision  is  reviewable  Habeas  corpus  lies  if  the  order  to 

here.     Hatch  vs.   St.  Clair,  2  C.  C.  commit  was   for   contempt   in   diso- 

163-   1  C.  D.  421.  beying  an  order  which  the  Court  had 

Denial  of  a  jury  on  trial  for  vio-  no  jurisdiction  to  make.  In  re 
lating  a  city  ordinance  does  not  give  Ceorge,  5  C.  C.  207;  li  C.  D.  104. 
a  right  to  habeas  corpus,  for  the  sen-  If  a  city  ordinance  is  wholly  void, 
tence  is  not  void,  but  voidable.  a  conviction  under  it  may  bo  de- 
Madden  vs.  Smeltz,  2  C.  C.  1G8;  1  flared  void,  and  the  prisoner  re- 
C.  D.  424.  leased  on   habeas  corpus.     EsP  parte 

Where  the  Court  had  no  right  to  Clamp,   10   T5.   220. 

try  the  case  —  as  where  it  tries  an  so  §  12178  G.  C. 

extradited  person  for  an  offense  oth-  ■>"  §  12179  G.  C. 


§  1972  HABEAS  CORPUS  1654 

ther,  the  distinction  seems  to  be  drawn  "  as  to  the  manner  in 
which  a  return  shall  be  considered  as  evidence  between  cases  in 
which  the  defendant  is  an  officer  and  a  private  person.  Where 
the  defendant  is  an  officer,  the  return  is  considered  prima  facie 
evidence  of  the  cause  of  detention,  and  therefore  it  would 
seem  that  the  burden  of  proof  would  be  on  the  defendant  to 
show  to  the  contrary.  Yet,  in  anotlier  reported  case  in  the  Su- 
preme Court,*'  it  seems  to  have  been  held  that  the  burden  of 
proof  was  on  the  petitioner,  and  that  he  could  not  compel  a 
sheriff  to  introduce  his  testimony  firsts  Where  a  person  is  re- 
strained of  his  liberty  by  private  authority,  the  return  is  only 
considered  as  a  plea  of  the  facts,  and  the  party  claiming  the  cus- 
tody must  prove  them.*^ 

§  1972.     Form  of  entry.     Discharging  person. 

(No )      In  the  Matter  of  C.  D.  upon  Habeas  Corpus. 

This  day  S.  S.,  to  whom  a  writ  of  habeas  corpus  was  directed  on  the 

day  of upon  the  application  of appeared  in 

open  Court,  having  with  him  the  body  of  said  C.  D.  together  with  said  writ, 
and  the  day  and  cause  of  his,  the  said  C.  D.'s  caption  and  detention,  as  by 
said  writ  is  commanded;  and  thereupon  the  proof  and  allegations  of  the 
parties  being  heard  and  fully  understood,*  and  it  appearing  to  the  Court 
that  the  said  C.  D.  is  illegally  detained  under  the  custody  of  said  S.  S. ; 
therefore  it  is  ordered,  that  the  said  C.  D.  be,  and  he  hereby  is  discharged 
out  of  the  custody  of  the  said  S.  S.,  and  that  he  go  hence  without  day, 
and   (as  to  costs,  see  §  5753  R.  S.)** 

§  1973.     Form  of  entry.     Remanding  prisoner. 

(Follow  previous  form  to  *,  and  say:) 

And  it  appearing  to  the  Court  that  the  said  C.  D.  is  lawfully  detained 
under  the  custody  of  the  said  S.  S.,  therefore  it  is  ordered,  that  the  said 
C.  D.,  be,  and  he  hereby  is  returned  to  the  custody  of  the  said  S.  S.  (etc.), 
to  be  by  him  held  and  detained  until  discharged  by  due  process  of  law. 

(In  cases  of  parents,  guardians,  etc.,  no  specific  directions  are  given  by 
the  Court,  thus : ) 

And  it  appearing  to  the  Court  that  said  C.  D.  is  not  unlawfully  detained 
(or  unlawfully  restrained  of  his  liberty)    under  the  custody  of  the  said 

,  therefore  it  is  ordered  that  the  said go  hence 

thereof  without  day,  and   (as  to  costs  see  §  5753 ).*5 

41  g  12180  G.  C.  If  it  Js  shown,  however,  that  the 

*2  Ex  parte  Larney,   1  unreported  party  has  been  relieved  from  illegal 

eases  Supreme  Ct.,  Ohio,   651.  restrain    there    is    nothing    to    try. 

<3  The    hearing    of    an    action    of  The    writ    must     be     dismissed.     9 

habeas  corpus  is  not  defea:ted  by  the  Ency.  of  Law  and  Prac,  1067,  1042. 

fact  that  the  person  whose  body  is  **  Yaple's  Code  practice,   1026. 

sought  to  be  obtained  is  not  found  ♦»  Yaple's  Code  practice,   1027. 

by  the  sheriff.     Ammon  vs.  Johnson, 

3  C.  C.  263;  3  C.  D.  149. 


1655  SECOND  APPLICATION  §  1974 

§  1974.     Second   application. 

It  is  said  that  by  a  great  preponderance  of  authority,  the 
principle  of  res  ad  judicata,  where  not  other^vise  provided  by 
statute,  has  no  application  to  habeas  covpus  cases,  and  a  deci- 
sion in  one  case  is  no  bar  to  the  issues  and  proceeding  of  a 
subsequent  habeas  corpus;  and  therefore  a  party  refused  a  dis- 
charge on  one  habeas  corpus,  may  proceed  by  this  writ  on  subse- 
quent application,  until  perhaps  he  has  exliausted  the  entire 
judiciary  power  of  the  State,*''  and  such  is  tlie  holding  of  our 
Courts.*^  It  therefore  follows  that  where  the  Court  refuses 
to  discharge  a  prisoner,  he  may  either  prosecute  error  or  bring 
a  new  proceeding.**  But  it  seems  that  this  rule  of  allowing 
a  second  application,  although  the  facts  may  be  the  same,  does 
not  apply  to  cases  determining  the  right  of  tlie  custody  to 
children.*^ 

§  1975.     Appeal   and   error. 

It  is  provided  by  statute  that : 

"The  proceedings  upon  a  writ  oi  habeas  corpus  must  be  re- 

♦•  9  Ency.  of  Law  and  Piac,  1070.  think,  therefore,  upon  consideration 

<7  In  re  Smith  vs.  Perry,  9  C.  D.  of  these  authorities,  that  what  haV 

778;  S.  C.  Leutzler  vs.  Perry,  18  C.  been  set  forth  in  tne  answers  as  res 

C.   826.  judicata  does  not  amount  to  a  good 

It  is  said  "  But,  however,  this  may  plea  in  bar,  and  docs  not  stand  in 

be,  it  does  not  appear  that  the  right  the   way   of    our    proceeding   to    act 

to  review  the  action  of  tlie  judge  in  upon  this  application;   neither  does 

a   case    of    habeas    corpus    upon    re-  it  afford  us  just  ground  for  refusing 

fusal  to  issue  the  writ,  or  upon  is-  to  act. 

sue  joined  after  the  writ  has  been  *»  A  recent  example   of  a   second 

issued,  is  a  full,  complete  and  ade-  application   in  Ohio  Coiu-ts   is  that 

quate  remedy  in  all  cases ;  for,  while  of  In  re  Mullaney,  8  N.  P.  49,  165. 
error  may  be  prosecuted  to  such  or-  o  In  such   cases   if  the  facts   are 

der  in  the  last  instance,  there  is  no  the    same    the    former    adjudication 

provision  of  law  for  the  taking  of  may   be   pleaded.     If    the    facts    are 

a  bill  of  exceptions  upon  a  hearing  difTon-nt  a  second  apj)lication  might 

before  a  judge,  and  therefore  a  party  be    granted.     People    vs.    Cooper.    8 

might  be  unable  to  bring  to  the  at-  How.   Pr.   288 ;    9   Ency.   of   Law   & 

tention   of  the  reviewing  Court  the  Prac,  1071. 
real  facts  upon  which  he  claimed  to 
be    entitled    to    his    discharge.     We 


§ ] 975  HABEAS  CORPUS  1656 

corded  by  the  clerks    respectively,   and  may  be   re^dewed  on 
error  a^  in  other  cases."  [R.  S.  §  5751.1  ^° 

Under  this  statute  it  has  been  held  that  the  way  in  which 
proceedings  shall  be  reviewed  must  be  by  petition  in  error,^^ 
and  that  the  order  discharging  the  prisoner  is  the  one  that  may 
be  reviewed  on  error. ^" 

It  has,  however,  been  held  that  a  refusal  to  issue  the  writ  is 
not  reviewable.^^  This  no  doubt  is  meant  to  apply  only  to  ac- 
tions brought  in  behalf  of  a  prisoner.  If  the  proceeding  was 
one  for  the  custody  of  a  child,  and  there  is  no  right  to  a  second 
application,  as  stated  in  a  previous  section,  then  undoubtedly 
the  Court  would  hold  that  proceedings  in  error  would  lie  from 
a  refusal  to  grant  a  discharge.  The  right  of  appeal  rests  purely 
on  statutory  provisions,  and  there  is  no  statute  providing  for 
appeal  in  habeas  corpus  pixxjeedings.  Therefore  the  action 
cannot  be  appealed.^* 

50  §  12187  G.  C.  the    return    is    evidence,    and    when 

5177a;  parte  Collier,  G  0.  S.  55.  only  a  plea;   §  121S1,  Penalty  upon 

52  Henderson  vs.  James,  52  0.  S.  a  clerk  rcfudng  to  issue  writ; 
242.  §  12182,  Penalty  for  disobeying  the 

53  Zw  re  Smith  vs.  Perry,  9  C.  D.  writ;  §  121C'3,  Persons  discharged 
778;  Leutzler  vs.  Perry,  18  C.  C.  once  are  not  agnin  to  be  impris-oned; 
826.  §  12184,   Person  net  to  be   removed 

54  Jjx  re  Miller,  19  C.  C.  544;  10  from  custody  of  one  ofiicer  to  an- 
C.  D.  760.  other;   §  12185,  Xo  person  to  be  sent 

Other  srctrons  cf  the  General  Code  out  of  the  State  for  crime  commit- 
not  herein  inserted,  are  §12178,  ted;  §  12186,  Person  so  transported 
When  person  may  be  committed  or  may  have  an  action;  §  121S7,  Ac- 
let  to  bail;  §  12179,  When  prisoner  tions  for  penalties,  and  limitations; 
must  be  committed;    §  12180,  When  §  12189,  Fees  and  costs. 


1657 


CONTEMPT 


§  1976 


CHAPTER  CIV. 

CONTEMPT. 


§  1976  Jurisdiction        of        Probate       § 
Court.  § 

§  1977  Kinds  of  contempt,  etc.  § 

§  1978  Proceedings  for  contempt  in 
presence  of  judge,  etc. 

§  1979  Contempts  not  committed  in 
presence   of  judge. 

§  1980  Contempt. 

§  1981  Written  charges,  etc. 

§  19S2  Entry  appointing  attorney  to 
bring  action. 

§  1983  Form  of  charge. 

§  1984  Entry  ordering  summons. 

,§  1985  Form    of    summons    and   at- 
tachment. 

§  1986  Right    of    accused    to    bail. 

§  19S6a  Bail    bond    to    be    given    to 
satisfaction    of    clerk. 


1987 
§  1988 
§  1989 

§  1990 

§1991 


1992 

1993 
1994 
1995 


Trial  by  the  Court. 

Punishment  if  found  guilty. 

Imprisonment  till  order 
obeyed. 

Form  of  commitment  for 
contempt. 

Proceedings  when  party  re- 
leased on  bail  fails  to  ap- 
pear. 

Eight  of  Court  who  commit- 
ted prisoner  to  release  him. 

Judgment  final. 

Appeal  and  error. 

When  the  .provisions  of  this 
chapter  apply.i 


§  1976.     Jurisdiction  of  Probate  Court. 

Contempt  is  defined  as  being  the  use  of  disorderly,  con- 
temptuous or  insolent  language  or  behavior  in  the  presence  of 
a  legislative  or  judicial  body,  tending  to  disturb  its  proceedings 
or  impair  the  respect  due  to  its  authority,  or  a  disobedience  to 
the  rules  or  order  of  sucli  a  body  which  interferes  with  the  due 
administration  of  justice." 

The  power  to  punish  for  contempt  is  inherent  in  Courts  of 
general  jurisdiction  independent  of  legislations,  and  has  al- 
ways existed  in  the  Courts  of  England  and  in  this  country.' 
This  principle  fixes  the  power  of  the  Common  Pleas  Court,  irre- 
spective of  legislation,  but  our  Supreme  Court  has  held  Uiat 


1  See  §  1935,  In  proceedings  in  aid 
of  execution. 

2  3  Am.  &  Eng.  Encv.  of  Law,  777. 

3  Post  vs.  State,  14  C.  C.  Ill;  7 
C.  D.  257. 

The  legislature  has  not  the  pnwor 
to  abridge  the  Court's  right.  Hale 
vs.  State,  55  O.  S.  210. 

And  the  power  cannrrt  be  taken 
away  by  filing  an  affidavit  of  prej- 
udice. State  vs.  Shay,  3  N,  P. 
(N.S.)   557;   16  Dec.  448. 


The  inhererit  power  of  Courts  is 
not  abridged  Iiy  tlic  stnlntory  i)r<)vi- 
sions  in  relation  thereto.  Arbiickle 
vs.  Spricc  (';).,  11  V.  1).  72(1;  21 
0.  C.  C.  3^50. 

The  power  is  both  inlicrciit  .nnd 
necessary.  Hale  vs.  ^late,  55  0.  S. 
210. 

The  statutory  remedy  in  cumula- 
tive. Collin  v^.  Ashley,  5  C.  D.  6; 
11  0.  'C.  C.  47. 


§  1977  CONTEMPT  1658 

this  power  extends  to  all  Courts  created  by  the  Constitution, 
and  tlie  Legislature  has  no  right  to  abridge  it/ 

The  Probate  Court,  being  a  Court  created  by  the  Constitu- 
tion, would  therefore  have  this  power  as  complete  as  any  other 
Court.  But,  possibly  for  fear  that  Courts  of  a  higher  jurisdic- 
tion might  deny  this  power  to  the  Probate  Court,  it  has  been 
especially  conferred  by  statute  as  follows : 

"The  probate  judge  has  power  to  keep  order  in  his  court,  and 
punish  any  contempt  of  his  authority,  in  like  manner  as  such 
contempt  might  be  punished  in   the  court  of  common  pleas." 

[R.  S.  §    538.]^' 

§  1977.     Kinds  of  contempt,  etc. 

It  will  be  observed  in  the  definition  above  given  that  there 
are  two  kinds  of  contempt.  One  is  where  the  misbehavior,  etc., 
occurs  in  the  presence  of  the  judge;  the  other  where  the  party 
refuses  to  perfoi-m  an  order,  etc.,  made  by  the  Court..  These 
distinctions  are  recognized  by  our  statutes  relating  to  con- 
tempts, and  w^hile  the  punishment  may  be  the  same,  the  method 
of  procedure  is  somewhat  different.  Under  tlie  first,  the  Court 
deals  in  a  summary  manner,  no  written  charges  are  required, 
the  proceedings  merely  being  an  order  of  the  Court,  Con- 
tempts of  this  kind  are  those  which  happen  in  the  presence  of  or 
so  near  the  Court  as  to  obstruct  the  administration  of  justice. 
Thus  an  assault  upon  an  attorney  engaged  in  the  proset^ution 
of  a  criminal  case  by  a  witness,  even  though  it  was  not  made 
in  the  actual  presence  of  Court,  is  a  contempt  of 'this  charae 
ter,^  So  likewise  might  be  the  publication  of  a  libelous  article 
in  a  newspaper.^  So  militia  performing  evolutions  with  music 
and  firing  so  near  as  to  suspend  its  business,  and  to  refuse  to 

4  Hale  vs.   State,  55   0.  S.  210.  6  Dec.  10;  Myers  vs.  State?  46  0.  S. 

5  §  10500  G.  C.  473. 

See  also  §543.  See  Racine  Case,  April  24,   1911; 

See   §  25,  Power   to  grant  injime-       Cox,  In  re  ProceeclSngs,  etc..  56  Bull. 

tion,  etc.  125,  for  full  discussion  of  what  con- 

6  Steube  vs.  State,  3  C.  C.  383;  stitutes  contomjjt  of  Court,  etc.,  in 
2   C.  D.  216.  reference    to    publication    of    matter 

7  7n  re  Press  Post,  3  IST.   P.   180;        reflecting  on    Court  or  jury. 


1659  PROCEEDINGS  §  1978 

desist  on  request,  might  be  summarily  punished.^     The  statute 
relating  to  contempts  of  this  character  is  as  follows : 

"A  court,  or  judge  at  chambers,  summarily  may  punish  a  per- 
son guilty  of  misbehavior  in  the  presence  of  or  so  near  the  court 
or  judge  as  to  obstruct  the  administration  of  justice."  [R  S. 
§5639.]' 

§  1978.     Proceedings  for  contempt  in  presence  of  judge,  etc. 

Two  methods  may  bei  pursued  in  proceedings  for  contempt 
where  the  act  is  don©  in  the  presence  of  the  Court,  etc.  One 
is  that  the  Court,  by  an  entry  and  order,  summarily  punish  the 
party,  and  this  is  a  course  which  is  generally  pursued  where  the 
act  is  don©  in  the  actual  presence  of  the  Court,  such  as  an 
assault  in  the  court  room.  The  other  method  pursued  is  to 
appoint  some  one  to  bring  the  proceedings,  and  this  is  the 
course  which  is  recommended  in  all  contempt  proceedings  where 
the  contempt  has  not  come  to  the  observation  of  the  Court  per- 
sonally,^*' although  proceedings  are  not  fatally  irregular  if  no 
written  charges  are  filed.  Where  no  charges  are  filed,  the  fol- 
lowing might  serve  as  an  entry  for  punishing  contempt: 

(Title.)  1-^ 

E.  F.,  having  been  guilty  of  misbehavior  in  tho  presence  of  the  Court, 
in  this  Court  (here  state  matter  charged),  which  the  Court  deems  and 
considers  contempt  of  this  Court,  it  is  considered  that  the  said  E.  F.  be  and 
he  is  hereby  assessed  and  ordered  to  pay  fine  in  the  sum  of . 

dollars  and  in  default  of  the  payment  thereof  that  he  stand  commits 

ted  to  the  jail  of  the  county. 12 

s  State  vs.  Coulter,  State  vs.  OofT,  A  witness'  refusal  to  answer  ques- 

Wright,   421,  78.  tions  is  punishable  witliout  writt^-n 

9  §  12136  G.  C.  cliarges.     G.   C.   §11.510   is   iii(h'])('n- 

10  Post  vs.  State,  14  C.  C.  Ill;  7  dent  of  §  114i)3  and  gives  ((.niplrte 
C.   D.   257.  power. 

11  As  to  proper  title,  see  §§1081,  The  witness  is  not  cntilled  t<t  a 
1982.  jury.     1'he  cont<'in))t  is  not  a  crime. 

i2Kinkead's  Journal  Entries,  (i41.  Ammon  vs.  .Johnson,  .3  ('.  C  2(i:{ :  2 

The  formalitv  of  a  written  charge  C.  1).  140. 

is  not  required' for  summary  verba!  No  pleadings  are  nccessiny  under 

orders  of  arrest  for  misbeliavior  in  this  section.     Stcube  vs.  Stale.  2  ('. 

the  presence  of  the  Court,  or  so  near  I).  2]();   3  O.  C.  ('.  38.-?. 

as  to  obstruct  justice,  nor  to  attiuli-  'i"he  accused   has   a   riglit   to  meet 

ments  for  cxjntempt  in  the  nature  of  the   witness   fnce   tf»    face,    :illi(hivi1« 

mensf:  process   to   bring  the  accused  cannot   be   used.      Kdmger   vs.   Stiitc, 

into  Court  or  to  hohl  him  until  the  5  C.   O.  408;    1 1   O.  C    V.  380;    Post 

j)reliminary    formalities    can   Ik-    in-  vs.  State,  7  C.   I).  2o7 :    14   O.  (  .  (  . 


stituted.      Lowe   vs.   State,   9   0.  S.       Ill 


337. 


The    act    must    In-    dmic     in     (lie 


§  1979  CONTEMPT  1660 

§  1979.     Contempts  not  committed  in  presence  of  judge. 

The  second  kind  of  contempts  for  which  the  law  provides 
punishment  are  tliose  relating  to  a  failure  to  perform  the  orders 
of  the  Court  in  relation  to  a  matter  pending  therein.  The  gen- 
eral statute  relating  thereto  being  as  follows : 

*'A  person  guilty  of  any  of  the  following  acts  may  be  punished 
as  for  a  contempt : 

"1.  Disobedience  of,  or  resistance  to,  a  lawful  writ,  process, 
order,  rule,  judgment,  or  command  of  a  court  or  an  officer; 

"2.  Misbehavior  of  an  officer  of  the  court  in  tlie  performance 
of  his  official  duties,  or  in  his  official  transactions ; 

"3.  A  failure  to  obey  a  subpoena  duly  served,  or  a  refusal 
to  be  sworn,  or  to  answer  as  a  witness,  when  lawfully  required; 

"4.  The  rescue,  or  attempted  rescue,  of  a  person  or  of  prop- 
erty in  the  custody  of  an  officer  by  virtue  of  an  order  or' proc- 
ess of  court  held  by  him ; 

"5.  A  failure  upon  the  part  of  a  person,  recognized  to  ap- 
pear as  a  witness  in  a  court,  to  appear  in  compliance  with  the 
terms  of  his  recognizance."     [R.  S.  §  5640.]^^ 

Under  the  above  section  it  has  been  held  that  procuring  a 
false  return  to  a  subpoena  is  a  contempt,^*  and  that  an  attorney 
who  signs  an  appeal  bend  in  violation  of  the  rule  of  Court 
might  be  punished  ;^^  so  interfereing  with  a  receiver.^"  Wliile 
by  a  special  jDrovision  of  statute  heretofore  referred  to  ^^  the 
provisions  of  the  above  section  of  the  Revised  Statutes  are  ap- 
plicable to  Probate  Courts,  yet  there  is  a  section  specially  ap- 
plicable, which  is  as  follows  : 

§1980.  Contempt.  "If  a  person  neglects  or  refuses  to  per- 
form an  order  or  judgment  of  a  probate  court  other  than  for 
the  payment  of  money,  he  shall  be  g:uilty  of  a  contempt  of  court, 
and  the  judge  shall  issue  a  summons  directing  him  to  appear 
before  the  court,  within  two  days  from  the  service  thereof,  and 

aetxial   or    constructive   presence   of  i'>  Wallace  vs.  Scoles,  6  O.  428. 

the  Court.     "Administration  of  Jus-  i6  Coe  vs.  Ry.  Co  .   10  0.  S.  372. 

tiee,"   "Obstruction  of  .Tustice"  and  it  §  538   R.   S.    (§1976). 

"Dignity   of  Court"  defined.      Stnte  Attaching   property    in    hands    of 

vs.  Post,  4  N.  P.  (N.S.)   157;  6  Dec.  administrator  is.    Sevmour,  In  re.  3 

200.  N.  P.    (N.S.)   81;   4  Dec.  450;  Besu- 

For   object  of   exercise  of   pow^er,  den    vs.    Besuden,    3    N.    P.    (N.S.) 

see   State   vs.   Goff,   Wright,    78.  105;   4  Dec.  144. 

13  §  12137  G.  C.  Probate    Court    mav    enforce    ac- 

14  Baldwin  vs.  State,  '1  0.  S.  counting,  etc.,  by.  Phillips  vs.  State, 
eSl.  5  O.  S.   122. 


1661  WRITTEN    CHAEGES  §  1981 

show  cause  why  he  should  not  be  punished  for  contempt.  If  it 
appears  to  the  judge  that  he  is  secreting  himself  to  avoid  the 
process  of  the  court,  or  is  about  to  leave  the  county  for  that  pur- 
pose, the  judge  may  issue  an  attachment  instead  of  the  summons, 
commanding  the  otheer,  to  whom  it  is  directed,  forth^vith  to  bring 
such  pei-son  before  such  judge  to  answer  for  contempt.  If  no 
sufficient  excuse  is  shown,  he  shall  be  punished  as  provided  for 
contempts  in  the  court  of  common  pleas."     [R.  S.  §  543.]^^ 

The  ahove  section  of  the  General  Code  seems  to  lay  down 
the  doctrine  broadly,  that  whoever  neglects  or  refuses  to  per- 
form any  order  or  judgment  of  the  Court  other  than  for  the 
payment  of  money,  is  gTiilty  of  contempt.  Under  this  provi- 
sion it  has  been  held  that  if  a  sheriff,  or  other  officer,  under  at- 
tachment proceedings  seize  property  in  the  hands  of  an  admin- 
istrator who  has  charge  of  them,  imder  a  special  order  of  the 
Probate  Court,  he  is  guilty  of  conterapt.^^ 

§  1981.      Written  charges,  etc. 

While  the  above  section  relating  to  contempts  in  Probate 
Court  does  not  indicate  that  the  cliarges  must  be  in  writing,  yet 
the  law  relating  to  contempts  in  tlie  Court  of  Common  Pleas 
so  states.     Said  section  is  as  follows: 

"In  cases  under  the  next  preceding  section,  a  charge  in  ^\Tit- 
ing  shall  be  filed  with  the  clerk,  an  entry  thereof  made  upon  the 
journal,  and  an  opportunity  given  to  the  accused  to  be  heard, 
by  himself  or  counsel.  But  this  section  shall  not  prevent  the 
court  from  issuing  process  to  bring  the  accused  party  into  court, 
or  from  holding  him  in  custody,  pending  such  proceedmgs. 
[R.  S.  §5641.]" 

And  it  would  be  wise  in  all  cases  where  the  contempt  charged 
docs  not  happen  in  the  actual  presence  of  the  judge,  that  writ- 
ten  charges  be  filed.     While   no  pleadings   are   required,   this 

i«  §  1598  G    C.  formation   must   be   filed   eprcifying 

19 /n  re  SeVmour.  3  N.  P.  81;   4  the  acts  constituting  the  contempt. 

D^    450.  Post  vs.  State,  7  C.  D.  257:  14  0.  C. 

Sec    §1935,   In  aid   of   execution.  C.  Ill;  Lowe  vs.  ^-'tato,  9  0.  P.  337; 

20  §  12138   G.   C.  Hunt  vs.  Stat.,  5  C  C.   (N.SO   021 ; 

See  §1079.                                        ,  27   0.  C.  C.   17;   amrmcd,   72   0.   S. 

Where   the  acts   are   not  done   in  043. 
the    presence    of   the   Court,   an   in- 


§  1982  CONTEMPT  1662 

written  charge  and  answer  thereto  are  subject  to  the  ordinary 
rules  of  pleadings. ^^ 

The  statute  relating  to  contempts  generally  does  not  provide 
for  the  issue  of  summons  or  process  against  the  defendant  like 
the  statute  relating  to  the  Probate  Court.  These  written 
charges  should  be  styled  and  brought  in  the  name  of  the  State 
of  Ohio.'^  The  general  method  of  procedure  being  that  some 
one  calls  the  attention  of  the  Court  to  the  alleged  contempt, 
and  the  Court  makes  an  order  appointing  some  attorney  to 
formulate  and  prosecute  the  charges.  Forms  for  the  same  may 
be  as  follows: 

§  1982.     Entry  appointing  attorney  to  bring  action. 

State  of  Ohio  ]  Probate  Court, 

I         County,  Ohio. 

[Entry  Appointing  Attorney  to  Bring 
.John  Jones.  1      Action. 

Information  having  been  brought  to  the  Court  of  an  alleged  (here  set  out 
the  order  ot  the  Court  that  has  been  violated,  being  careful  that  some  one  of 
the  violations  should  come  within  the  provisions  of  §  5640)  (if  charges  are 
filed  for  contempt  in  presence  of  Court  the  matter  should  be  set  out).  It 
is  therefore  ordered  that  A.  B.,  an  attorney  of  this  Court,  be  and  he  hereby 
is  appointed  and  instructed  to  prepare  in  writing  proper  charges  of  con- 
tempt of  this  Court,  claimed  to  have  been  committed  by  the  said 

and   file  the   same   in   this   Court   on   or   before   the day   of 


§  1983.     Form  of  charge. 

{Title.) 

In  obedience  to  the  order  of  this  Court,  the  State  of  Ohio,  by  L.  M.,  special- 
ly appointed  by  the  Court  for  that  purpose,  charges  and  states  that  on 
the: day  of ,  A.  D.  190 .  . ,  in  the  presence  of  the  said  Pro- 
bate Court  of  said  county  and  State  of  Ohio,  A.  B..  an  attorney  of  said 
Court,  was  guilty  of  misbehavior  and  contempt  of  said  Court  in  this,  to-wit: 

(here  set  out  acts  or  misbehavior  complained  of),  whereby  said 
A.  B.  is  guilty  of  contempt  in  said  Court  eontraiy  to  law,  and  he  asks  that 
he  may  be  made  to  answer  hereto  and  that  summons  may  be  issued  hereon 
as  provided  by  law. 


(Verification.)  24 


21  Kinkead's   Code  Pleadings,  396.  writing  scurrilous  writing?  in  news- 

--  State  vs.  Clemants,  G  W.  L.  J.  paper,  397. 

538.  -4  Need    not    be   verified.       Steube 

All  power  must  be  exercised  in  the  vs.  State,  2  C.  D.  216;  3  C.  C.  383. 
name  of  the  State  whose  authority  is  See  form  in  this  case  for  assault- 
contemned,  ing   an   officer.      Also   an   answer   is 

23  See     Kinkead's     Pleadings    for  given, 

form  of  charge  of  contempt  for  as-  An  information  should  be  filed  and 

saulting  an  officer,  p.  396 ;   and  also  an  attornej'  appointed,   and  the  ac- 

form    for    charge    of    contempt    for  cused    should    be    j>ermitted    to    file 


1^63  SUMMONS  .  g  1984 

Upon  the  filing  of  the  above  charges,  the  Court  should  make 
a  jounial  entry.  In  this  entry  it  should  be  ordered  that  a  sum- 
mons issue  directing  the  defendant  to  appear  in  Court  within 
two  days,  and  if  it  appear  to  the  judge  tliat  the  defendant  is 
about  to  leave  the  county,  an  attachment  may  be  issued."  The 
journal  entry  may  be  as  follows : 

§  1984.     Entry  ordering  summons. 

(Title.) 

,  having  on  the day  of ,  filed  a 

written  charge  against ,  alleging  that  he,  the  said 

,  is  guilty  of  contempt  in  this,  to-wit:    (here  state  charge  as  in 

the  written  charge).  It  is  ordered  that  summons  issue,  directing  said 
to  apear  before  this  Court  on  (within  two  days  after  ser- 
vice will  be  made  or  forthwith )  to  show  cause  why  he  should  no't  be  punish- 
ed for  contempt. -0 

ENTRY  ORDERING  ATTACHJMENT. 

(Title.) 

,  having  on  the day  of filed  a  writ- 
ten charge  again.st ,  alleging  that  he  the  said . 

is  guilty  of  contempt;  and  it  being  made  to  appear  that  the  said 

is  secreting  himself  (or  is  about  to  leave  the  county)  to  avoid  the  process 
of  this  Court,  it  is  ordered  that  an  attachment  issue  to  the  sheriff"  of  said 

county  commanding  him  to  forthwith  bring  said before  the 

judge  of  said  Court,  to  answer  for  contempt  as  therein  charged. 

§  1985.     Form  of  summons  and  attachment. 
The  following  may  be  used  as  a  general  form  of  summons : 

State  of  Ohio, County,  ss.     Probate  Court. 

To  the  Sheriff  of  said  County,  greeting: 

You  are  hereby  commanded  to  summon to  appear  before 

this  Court  forthwith  (or  name  day)  to  answer  a  charge  (or  charges)  pre- 
ferred against  him  by  the  judge  of  this  Court    (or  by )    in 

writing,  and  filed  in  the  office  of  this  Court,  wherein  it  is  alleged  that  he  is 
guilty  of  contempt,  in  this,  to-wit:  (state  charge  as  in  entry),  and  show 
cause  why  he  should  not  be  punished  for  his  said  contempt.  MaJie  due 
return  of  this  writ  forthwith  upon  its  execution. 

Witness  my  hand,  and  the  seal  of  said  Court,  this.  ....  .day  of 

,   190... 

( Seal. )  Probate  Judge. 

And  the  following  as  a  form  of  attachment: 

State  of  Ohio County,  ss.     Probate  Court 

To  the  Sheriff  of  said  County,  Gfreeting: 

You  are  hereby  commanded  to  take  into  your  custody  and  bring 

before  the  judge  of  this  Court  forthwith,  to  answer  a  charge  pre- 

an  answer.  Post  vs.  State,  7  C.  D.  service  of  process  or  nliou)  to  Icavo 
2.57;    14    O.    C.    C.    111.  the    county,    tlie    eii(ry    shoiiM     ha 

2'' §  1598  (i.  C.    (§1080).  made  ordering  an   attaclimctil. 

26  If  the  party  is  liiding  to  avoid 


§  1986  CONTEMPT  1664 

f erred  against  him  by  said  judge   (or  by ),  in  writing,  and 

filed  in  the  office  of  this  Court,  wherein  it  is  alleged  (state  the  charges  as 
in  the  entry),  and  to  answer  for  failing  to  obey  the  summons  issued  from 

this  Court,  and  personally  served  upon  him  by  the  sheriff  of 

county,  on  the day  of ,  190. .,  and  show  cause  why  he 

should  not  be  punished  for  his  said  contempt  (several  contempts). 

Make  due  return  of  this  writ  forthwitli  upon  its  execution. 

Witness  my  hand,  and  seal  of  said  Court,  this day  of 

,  A.  D.  190... 

(Seal.)  ,  Probate  Judge.zT 

§  1B86.  Right  of  accused  to  bail.  ' '  In  proceedings  under  the 
second  preceding  section,  if  tiie  writ  is  not  returnable  forthwith, 
the  court  may  tix  the  amount  of  a  bond  to  be  given  by  tlie  ac- 
cused, with  surety  to  the  satisfaction  of  the  sheriff.  Upon  the 
return  of  a  writ,  when  it  is  not  convenient  to  hear  the  charge 
without  delay,  the  court  shall  fix  the  amount  of  a  bend  to  be 
given,  with  surety  to  the  satisfaction  of  the  clerk,  for  the  ap- 
pearance of  the  accused  to  answer  the  charge."     [R.  S.  §  5642.]'^ 

§  1986a.  Bail  bond  to  be  given  to  satisfaction  of  clerk. 
On  the  execution  of  such  bond,  with  surety  to  the  satisfaction  of 
the  sheriff  or  clerk,  the  accused  shall  be  released  from  custody." 
[R.S.  §5643.]  -^ 

§  1987.  Trial  by  the  Court.  ''Upon  the  day  fixed  for  the 
trial  the  court  shall  proceed  to  investigate  the  charge,  and  shall 
hear  any  answer  or  testimony  which  the  accused  may  make  or 

offer."     [R.  S.  §5644.]=*« 

Previous  sections  provide  that  an  opportunity  must  be  given 
to  the  accused  to  be  heard  by  himself  of  counsel,  and  generally 
the  hearing  of  charges  of  contempt  are  conducted  in  the  same 
manner  as  ordinary  trials.  The  person  charged,  however,  does 
not  have  the  right  to  a  trial  by  jury.^^  Neither  can  the  trial 
be  had  upon  affidavits.  The  party  charged  has  a  right  to  face 
the  witnesses  and  cross-examine  them.^^ 

27Gilmore's   Prob.   Prac,   262.  unless   the    Court    should    find   that 

28  §  12139  G.  C.  accused   fraudulently   put   it  out   of 

29  §  12140  G.  C.  his  power  to  perform.     Efnnger  vs. 

30  §12141  G.  C.  State,   5   C.   D.   40S;    11    0.    C.   3S9. 

31  Ammon  vs.  Johnson,  3  C.  C.  In  such  prosecution,  the  fullest 
263 ;    2   C.   D.    149.  opportunity  should  be  given  the  ac- 

32  Effinger  vs.  State,  11  C.  C.  3S9;  cused  to  show  cause  why  he  should 
5  C.  D.  408.  not  be  punished  for  contempt,   and 

In  such  proceedings  undpr   §  5044  his  guilt  should  not  be   determined 

R.  S.,  the  Court,  before  imprisoning  before    such    opportunity    is    given 

for  failure  to  perform,   should   find  him.     Post  vs.   State,  7  C.  D.  257; 

the   accused   capable   of   performing,  14  C.  C.   111. 


^^^^  PUNISHMENT  §  1988 

aJel^r^L  wl"  n'^f''*  '^  ^^^^^^  ^^*^*y-  "The  court  shall  then 
?lffT."^  ^  r.w.^''^'^'^  ^-^  ^""'^^y  «f  the  contempt  charged. 
If  It  be  adjudged  that  he  is  guilty,  he  may  be  fined  not  exceeding 

ll^^lT^ltlhT^s'^^^^^^^^       -^  --^  thax.  ten  ciays,  or 
The  following  may  serve  as  an  euitay: 

{Title.) 

This  day  this  cause  came  on  to  be  heard  upon  the  charges  preferred  against 
;•■•:••• V  1  "^1 '  charging  him  as  being  guilty  of  con- 
tempt (here  stete  charges  stated  in  original  application  or  entry)  and  the 
Court  having  heard  evidence  and  arguments  of  counsel,  and  having  fully 
investigated   said  charge,  finds  that  the  said ....  ig  guilty  of 

contempt  as  charged.      (If  not  guilty  so  state.)      It  is  therefore  adjudged 

.       wK        :,: P^'y   ^   fi°«   «f dollars    for    the 

costs  of  this  proceeding,  taxed  at for  which  execu- 
tion IS  awarded;  and  that  the  said be. imprisoned  in  county 

jail  in.  ...  ....  county  for  the  period  of days  and  that  a  war- 
rant issue  for  said  commitment. 

§  1989.  Imprisonment  till  order  obeyed.  ' '  When  the  con- 
tempt consists  in  the  omission  to  do  an  act  which  the  accused 
yet  can  perform,  he  may  be  imprisoned  until  ho  performs  it  " 
[R.  S.  §5646.]"* 

§  1990.     Form  of  commitment  for  contempt. 

The  State  of  Ohio, County,  ss. 

Court. 

To  the  Sheriflf  of  said  County,  Greeting: 

Whereas,   in  the  action   of against in  cause 

No in  said  Court,  a  charge  was  duly  made  against as 

for  contempt  of  Court,   in  this,  to-wit: 

And  the  Court  having  investigated  .said  charge  determined  that  said 
was   guilty   of    the   contempt   charged   and    did   adjudge 

Where  in  a  proceeding  in  contempt  mitted  in  the  presence  of  tlio  Court, 

there  was  no  sworn  testimony  intro-  for  such  offense  the  punishment  ia 

duced,  but  the  Court  heard  the  pro-  within  the  sound  and  rcasomibic  dis- 

fcssional  statements  of  counsel  and  crction    of    the    Court.       Myers    vs. 

acted    upon   them,    sucli    statements  State,  40  0.  S.  4!)(). 

should  appear  as  evidence  and   the  •"■•'  §  12143    G.    C. 

parties  are  entitled  to  a  bill  of  ex-  The  evidence  u.'^ually  admissible  in 

ccptions.     State  vs.  Davis,  10  C.  D.  trials  is  a^ln>i.ssibk>  in  contempt  pro- 

203;    18   C.  C.   479.  ccedings.     KfTrngcr  vs.  State,  5  C.  D. 

ss  §  12142  G.  C.  40S;   11  0.  C.  C.  389-. 

It  has  been  held  that  the  limita-  'I  he  judge  may  take  notice  of  facts 

tion    placed    upon    the    punishment  coming   williin    his   own   knowledge, 

provided  for  in   §  12142  C.   C.   docs  IVIyers  v.s.  State,  40  0.  S.  473. 

not  apply  to  an  offense  that  is  com-  The    Court,    In-fore    imprisonment 


§  1991  CONTEMPT  1666 

a  fine  of dollars  against  him,  for  the  use  of  said 

county;  and  the  costs  taxed  to dollars;  and  did 

f uither  order  and  sentence  him  to  be  imprisoned  for  the  period  of 

days,  or  until  he  complies  with  such  requirement,  or  is  otherwise  legally 
discharged. 

You  are,  therefore  ordered  to  arrest  and  commit  the  body  of  the  said 

to  the  jail  of  the  said  County  of ,  there  to 

remain  for  the  said   period  of days,  or  until  he  shall  perform  said 

judgment,  as  aforesaid,  or  he  is  otherwise  legally  discharged. 

Witness  my  hand  and  the  seal  of  said  Court,  at Ohio,  this 

day  of" ,  190 .  . . 


By Deputy  Clerk. 

The  State  of  Ohio, 

County,  ss. 

Sheriff's  Return. 

Received    this    writ ,    190.  .,    at o'clock.  .  .M., 

and  pursuant  to  its  command 

sheriff's  fees. 

Service $ 

Mileage 

Cop 

Return 


Total 

,  SheriflF.ss 

§  1991.  Proceedings  when  party  released  on  bail  fails  to 
appear,  "If  the  part}'  be  released  on  bail,  and  fails  to  appear 
upon  the  day  named,  the  court  may  issue  another  order  of  arrest, 
or  order  the  bond  for  his  appearanceto  be  prosecuted,  or  both. 
If  the  bond  is  prose\3uted,  the  measure  of  damages,  in  the  action 
shall  be  the  extent  of  loss  or  injury  sustained  by  the  aggrieved 
party  by  reason  of  the  misconduct  for  which  the  contempt  was 
prosecuted,  and  the  costs  of  the  proceeding.  Such  recovery  shall 
be  for  the  benefit  of  the  party  injured."     [R.  S.  §  5647.]^" 

§  1992.  Right  of  Court  who  committed  prisoner  to  release 
him.  "When  a  person  is  committed  to  jail  for  contempt,  the 
court  or  judge  who  made  the  order  may  discharge  him  from 
imprisonment  when  it  appears  that  the  public  interest  will  not 

suffer  thereby."     [R.  S.  §  5648.]" 

for  failure  to  perform,   should  first  A    commitment    lor    contempt    in 
find  that  the  defendant  can  perform.  refusing  to  answer  a  question  must 
Effinger  vs.   State,   5   C.  D.  408;    11  state  facts  sufficient  to  show  the  per- 
0.  C.  C.  389.  tinency  and   relevancy  of  the  ques- 
ts A  mittimus  for  contempt  should  tion.      1893.      Com.    Woodworth    Ex 
contain  a  finding  that  the  witness  is  par,  6  Dec.    19;   29   Bull.   315. 
guilty    of     contempt.       1803     Com.  se  §  12144   G.   C. 
Woodworth   Ex  par,   6    Dec.    19,   29  37  §  12145  G.  C. 
Bull.    315. 


1667  JUDGMENT  §  1993 

JOURNAL  ENTKY,  DISCHARGING  PERSON  FROM  IMPRISONMENT. 

(Title.) 

County,  Probate  Court. 

It  appearing  that  the  public  interest  will  not  suffer  by  the  discharge  of 

,  hereinbefore  committed  to  the  county  jail  for  contempt, 

from  such  imprisonment  (or having  been  hereinbefore  com- 
mitted to  the  county  jail  until  he  should  comply  with  the  order  of  this 
Court  (state  the  order  which  accused  had  refused  to  obey),  and  having 
complied  therewith,  and  theieby  purged  himself  of  said  contempt),  it  is 
ordered,  that  he  be  discharged  from  such  confinement. 

A  copy  of  this  entry,  or  tlie  substance  thereof,  duly  certified, 
will  authiorize  the  sheriff  or  jailer  to  discharge  his  prisoner. 

§1993.  Judgment  final.  "The  judgment  and  orders  of  a 
court  or  officer  made  in  cases  of  contempt  may  be  reviewed  on 
error.  But  proceedings  in  error  therein  shall  not  suspend  exe- 
cution of  the  order  or  judgment  until  the  person  in  contempt 
files  a  bond  in  the  court  rendering  the  judgment,  or  in  the  court 
or  before  the  officer  making  the  order,  payable  to  the  state,  with 
sureties  to  the  acceptance  of  the  clerk  of  that  court,  in  an  amount 
fixed  by  the  reviewing  court,  or  a  judge  thereof,  conditioned 
that  if  judgment  be  given  against  him  he  will  abide  and  perform 
the  order  or  judgment."     [R.  S.  §  5649.] ^^ 

§  1994.     Appeal  and  error. 

The  statute  provides  no  remedy  by  way  of  appeal,  the  only 
manner  in  which  the  decision  of  the  Court  can  be  reviewed  is 
by  a  proceeding  in  error,  and  in  such  proceedings  tlie  question 
can  be  reviewed  whether  the  Court  exercised  reasonable  discre- 
tion in  awarding  punishment,^'^  and  it  has  been  held  that  a 
supersedeas  bond  will  not  be  fixed  as  to  amount  merely  because 
a  petition  in  error  is  pending  to  the  sentence.  Power  to  stay 
execution  is  discretionary,  to  be  exercised  only  on  good  cause 
shown.  If  the  judgment  was  clearly  right,  the  Court  will  de- 
cline to  fix  the  bond.*" 

§  1995.  When  the  provisions  of  this  chapter  apply.  "This 
chapter  is  not  cumulative  to  provisions  of  division  three,  chap- 
ter three  of  title  four,  nor  of  chapter  six,  title  two,  of  this  part, 

38  g  12146  G.  C.  Question  on  review  is  whether  cvi- 

39  Myers  vs.   State,  46  0.  S.   473.       dcnce  sustained  the  judgment.     Iron 
40Steube  vs.   State,  3   C.   C.   383;        Moulders    Union    vs.    Crernwiild,    4 

2c.  D.  216.  ^'-  P-    (^^•^■)    l''l=    ^"   '^'■^'    '•"^- 


U995 


CONTEMPT 


1668 


but   furnishes   a   rernedv   in   eases  not  thereby   provided   for." 
[R.  8.  §5650.]^^  "  " 


And  the  judgment  may  be  re- 
viewed in  the  Supreme  Court,  al- 
though the  sum  involved  is  less  than 
$300.  Bremson  vs.  State,  63  0.  S. 
347. 

41  §  12147  G.  C. 

Chapters  referred  to  in  the  above 
section  relate  to  evidence  in  Courts 
of  record  and  justices  of  the  peace, 
method  of  procuring  witnesses,  etc.. 


and  a  query  has  been  made,  whether 
55  12136-12146  are  applicable  to  a 
contempt  under  the  other  chapters. 
Ammon  vs.  Johnson.  3  C.  C.  263:  2 
C.  D.   149. 

See  §§  11570-11575  G.  C 

See  §§ 10318,  10319  G.  C 

See  §  2011,  Attendance  of  wit- 
nesses. 


1669  OWNER   OF   KILLED  ANIMALS,   ETC.  §  1996 


CHAPTER  OV. 

APPEALS  FROM  ALLOWANCE  ON  SHEEP  CLAIMS  AND 
ORDERS  OF  STATE  FIRE  MARSHAL. 

§  1996  Claims     for     animals    killed  §  2005  Limit   of  amount   allowed. 

by   dogs.  §  2006  Orders  of  state  fire  marshal. 

§  1997  Owner   may    appeal    to   Pro-  §  2007  When    and    how    owner   may 

bate    Court.  have  hearinjr. 

§  1998  Perfecting    appeal.  §  2008  Notice  to  state  fire  marshal. 

§  1999  Essentials    of    petition.  §  2009  Right    of    appeal   to   Probate 
§  2000  Petition  form.  Court. 

§  2001  Journal  entry.  §  2010  Perfection  of  appeal. 

§2002  Number      of     witnesses     al-  §2011  .Journal       entry       approving 

lowed.  bond     and    fi.xing    time     of 

§  2003  Hearing.  hearing. 

§  2004  Entry  finding,  etc.  §  2012  Hearing  and   finding,  etc. 

§  1996.    Claims  for  animals  killed  or  injured  by  dogs. 

The  statute  now  provides  that  if  any  horses,  sheep,  cattle, 
swine,  mules  or  goats  are  injured  by  dogs  not  harbored  by  him, 
the  owner  may  within  six  months  present  his  claim  to  the 
trustees,^  and  the  trustees  shall  hear  the  matter  and  certify  the 
same  to  the  county  commissioners,-  and  the  county  commission- 
ers shall  pass  upon  the  claims,  which  is  the  final  hearing.  If 
any  owner  is  dissatisfied  he  may  appeal  to  the  Probate  Court 
as  provided  in  the  next  section.  It  is  the  duty  of  the  trustees 
to  endorse  on  each  claim  the  amount  allowed,  with  their  findings ; 
it  is  upon  this  that  the  commissioners  make  what  is  considered 
a  final  order  from  which  an  appeal  may  be  taken. 

§  1997.  Owner  of  killed  or  injured  animals  may  appeal  to 
probate  court,  when.  (§5848.)  "An  owner  of  horses,  shoop, 
cattle,  swine,  mules  and  goats  so  killed  or  injured,  not  being 
satisfied  with  a  final  allowance  made  by  the  commissioners,  as 
provided  in  section  fifty-eight  hundred  and  forty-six,  vyilhin 
thirty  days  thereafter  may  take  an  anpeal  from  such  finding  to 
the  probate  court  of  the  county  by  filing,  as  pnrty  plaintiff,  a 
petition  in  such  court  setting  ont  the  facts  in  the  case  as  con- 
tended for  by  the  owner.  Proceedings  shall  be  had  th('roon  as 
provided  by  law  in  civil  cases  and  the  county  commissioners 
shall  be  made  party  defendant."     fl07  v.  539.] 

1  §  5840.  2  §  .5844. 


§  1998  APPEALS  ON  SHEEP  CLAIMS,  ETC.  1670 

§  1998.     Perfecting  appeal. 

The  appeal  is  perfected  by  the  owner,  within  thirty  days  after 
the  order  of  the  commissioners  is  made,  by  filing  a  petition  in 
the  Probate  Court  of  the  county  in  which  the  order  of  the  com- 
missioners is  made,  setting  out  the  facts  as  contended  by  the 
owner.  In  such  a  case  the  party  filing  the  petition  shall  be 
designated  as  plaintiff  and  the  county  commissioners,  defendant. 
No  notice  of  appeal  need  be  given  nor  need  any  bond  be  filed; 
neither  is  any  transcript  of  the  proceedings  before  the  commis- 
sioners necessary  to  be  filed.  The  proceeding  in  the  Probate 
Court  is  practically  a  new  action.  The  matter  before  the 
Probate  Court  rests  practically  upon  the  facts  set  out  in  the 
petition,  and  this  petition  must  contain  all  jurisdictional  facts. 

§  1999.    Essentials  of  petition. 

The  petition  must  show : 

First,  the  name  of  the  parties. 

Second,  that  the  petitioner  was  the  owner  of  certain  stock  as 
provided  in  §  5240,  G.  C. 

Third,  that  such  stock  was  injured  by  dogs  not  harbored  by 
him. 

Fourth,  that  within  six  months  he  presented  a  claim  to  the 
trustees. 

Fifth,  that  the  trustees  passed  on  such  claim  and  transmitted 
their  finding  to  the  county  commissioners. 

Sixth,  that  they  examined  such  claims. 

Seventh,  that  the  commissioners  at  a  certain  date  made  a 
finding  thereon,  including  a  copy  of  such  final  order. 

§  2000.    Petition— Form. 

A.  B.,  Plaintiff,  ) 

vs.  y  Probate  Court, 

County     Commissioners    of     I  County,  Ohio. 

County,  Ohio,  Defendants.  ' 


PETITION. 

Plaintiff  says   that  on  the    day  of    ,    19...    he  was  the 

owner  of  [here  describe  animals  for  which  injury  is  claimed].     That  on 

day  of  said  montli,  said   were  injured   [or  killed]   by  dogs 

not  owned  or  harbored  by  him.  That  within  six  months  thereafter  he 
presented  to  the  trustees  of  the  township  in  which  said  loss  occurred  a 
detailed  statement  of  such  loss  and  injury  with  his  affidavit  thereto  as 
provided  by  law. 

That  on  the    .• day  of    ,  19...   the  said  trustees  heard  the 

testimony  thereon,  and  thereafter,  on  the   day  of   ,  19 ... , 


1671 


HEARING  §  2001 


the  said  trustees  made  their  findings  and  endorsed  the  amount  allowed 
thereon,   and  transmitted  their   findings  and  the  testimony   taken  to  the 

commissioners  of county,  and  thereafter,  at  the  next  regular  mectino- 

of  the  said  county  commissioners,  the  commissioners  examined  the  same 
and  made  the  following  order  in  reference  thereto  [here  put  in  copy  of 
the  final  order  appealed  from].  That  this  plaintiff  claims  that  the  order 
so  made  by  said  commissioners  is  not  in  this,  to-wit:  [here  set  out 
in  what  respect  it  is  unjust]  and  the  petitioner  appeals  therefrom. 
Wherefore  he  prays  that  the  court  may  proceed  to  hear  the  same  and 
take  such  proceedings  in  reference  thereto  as  by  statute  provided. 

State  of  Ohio,   County,  ss. : 

. ._ ,  being  first  duly  sworn,  says  he  is  the  plaintiff  in  the  above  pro- 
ceedings, and  that  the  allegations  in  said  petition  contained  are  true 
as  he  verily  believes. 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this  dav 

of ,19...  ■J 

Notary  rublic. 

§  2001.    Journal  entry. 

[Title.] 
This   day  came  A.   B.  and  filed  his  petition  in  this  court  against  the 

commissioners  of County,  Ohio,  appealing  from  a  decision  and  final 

order  made  by  said  commissioners  on  the   day  of ,  lit. .  .    in 

reference  to  amount  allowed  for  injury  to  animals  belonging  to  plaintiff, 
by  dogs.     Wherefore  it  is  ordered  that  said  cause  be  set  for  hearing  on  the 

day  of    ,   19...,  at   10  a.  m.,  that  being  the  first  day  after 

answer  day  at  which  the  same  can  be  heard,  and  it  is  ordered  that  sum- 
mons be  issued  for  the  defendants  directed  to  the  sheriff  of County, 

returnable  according  to  law. 

§2002.  Number  of  witnesses  allowed.  (§5849.)  The  pro- 
bate court  shall  hear  such  proceedings  as  in  equity  and  deter- 
mine the  value  of  the  horses,  sheep,  cattle,  swine,  mules  and 
goats  killed  or  injured,  but  not  more  than  tliree  witnesses  sliall 
be  called  by  each  party.  The  amount  found  by  such  court  sliall 
be  final  and  the  judge  thereof  shall  certify  it  to  the  county  com- 
mis.sioners  when  like  proceedings  shall  be  had  as  to  payment 
thereof,  as  if  such  amount  had  been  found  by  the  commission- 
ers in  the  first  instance.  If  an  increased  allowance  is  made  by 
such  court,  the  costs  shall  be  paid  equally  by  the  parlies,  and 
if  no  increase  is  made,  the  plaintiff  shall  pay  all  the  costs. 
[107  V.  539.] 

§  2003.     Hearing. 

The  proceedings  are  governed  by  the  law  applicable  to  civil 
cases  generally.  It  would  devolve  upon  the  plaintiff  to  introduce 
testimony  to  support  his  claims.  The  court  sits  as  a  court  of 
equity,  and  not  more  than  three  witnesses  shall  be  heard  for 
each  party,  that  is  the  plaintiff'  and  the  defendant.  Whih'  tlie 
matter  is  heard  dc  novo,  it  is  possible  that  a  presumption  iiriscs 


§  2004  APPEALS  ON  SHEEP  CLAIMS,  ETC.  1672 

that  the  order  made  by  the  commissioners  is  just  and  proper, 
and  the  hurden  would  be  on  the  plaintiff  to  show  that  it  is  not, 
and  that  his  contentions  are  true ;  while  it  would  be  perfectly 
proper  for  the  defendants  to  file  an  answer  or  any  other  plead- 
ings that  they  may  deem  proper,  if  this  is  not  done,  the  court 
will  consider  an  issue  made  the  same  as  if  a  general  denial  had 
been  filed,  and  proceed  to  try  the  issue  thus  made.  The  deci- 
sion of  the  court  is  final,  and  the  court  certifies  its  findings  back 
to  the  commissioners.  If  an  increase  is  made,  the  plaintiff  is 
required  to  pay  one-half  the  costs,  and  the  commissioners  one- 
half.  If  no  increase  is  made  the  plaintiff  must  pay  all  the 
costs.  This  latter  fact  as  to  costs,  together  with  the  fact  that 
the  trustees  and  commissioners  are  usually  a  fair  tribunal,  these 
proceedings  will  be  rare. 

§  2004.    Entry— Finding. 

[Title.} 

This  day  this  cause  came  on  to  be  heard  upon  the  pleadings  in  the  case 
and  the  testimony  submitted.  Wherefore  after  due  consideration  the 
court  finds  that  the  decision  made  by  the  county  commissioners,  defend- 
ants is   [not]  just,  and  the  court  finds  that  the  said  jjlaintiff  was  injured 

and  suflfered  damages  for  his  said   in  the  sum  of  $ and  the 

same  being  not  more  than  was  allowed  by  the  commissioners,  the  costs 
of  this  action  is  assessed  against  the  plaintiff  [or,  if  more]  one-half  is 
assessed  against  the  plaintiff  and  one-half  against  the  defendant  [the 
county  commissioners],  and  it  is  ordered  that  this  finding  be  certified  back 
to  the  defendants  [the  county  commissioners],  for  their  further  proceed- 
ings as  provided  by  law. 


§2005.  Limit  of  amount.  (§5850.)  No  amount  shall  be 
so  allowed  by  the  county  commissioners  or  probate  court  for 
a  head  of  registered  sheep  or  lambs,  eligible  to  registry,  in 
excess  of  thirty  dollars.     [R.  S.,  §  4215.] 

§  2006.     Orders  of  State  Fire  Marshal. 

The  statute  gives  to  the  state  fire  marshal  wide  powers  as  to 
what  may  be  ordered  by  him,  done  to  buildings  or  other  prop- 
erty that  he  may  consider  dangerous;  when  he  thinks  that  the 
buildings  or  structures  are  so  situated  as  to  endanger  other 
buildings  or  property,  he  may  order  such  buildings  to  be  repaired, 
torn  down  or  demolished.  This  power  is  justified  under  the 
general  police  power  existing  in  the  State,  and  as  such  would 
be  held  constitutional,  so  long  as  it  was  properly  exercised.  But 
the  exercise  must  be  just  and  reasonahle.^  Sometimes,  public 
officials,  in  their  zeal  to  discharge  their  official  duties,  disregard 

3  See  Meaxedon  vs.  Rendigs,  9  0.  App.  61. 


1673  OWNER    MAY    HAVE    HEARING  §  2007 

the  proper  rights  of  the  private  citizen,  and  he  is  compelled  to 
invoke  the  organic  law  to  protect  himself.  A  law  that  did  not 
provide  for  a  review  by  a  court  would  be  unconstitutional. 
In  a  recent  case,  H.  V.  Ry,  Co.  vs.  Commission,  92  0.  S.  15, 
involving  the  right  to  review  the  orders  made  by  the  public 
utilities  commission,  it  was  said; 

**In  order  to  give  full  validity  to  the  proceedings  and  orders 
of  the  utilities  commission,  it  was  necessary  that  some  adequate 
provision  for  their  judicial  review  should  be  made ;  because  if 
an  administrative  order  results  in  the  taking  of  property,  such 
as  the  company  claims  results  in  this  case,  the  defendant  must 
not  be  denied  the  right  to  show  that  as  matter  of  law  the  order 
was  so  arbitrary,  unjust  or  unreasonable  as  to  amount  to  a 
deprivation  of  property  in  violation  of  the  constitution.  Chicago, 
M.  &  St.  P.  Ry.  Co.  vs.  Minnesota,  134  U.  S.  418." 

Although  in  a  previous  case.  State  vs.  French,  O.  S.  201,  we 
find  the  following,  quoted  with  approval: 

"And  in  Lawton  vs.  Steele,  119  N.  Y.  226,  237,  Andrews,  J., 
says:  'These  authorities  sufficiently  establish  the  proposition 
that  the  constitutional  guaranty  does  not  take  away  the  common 
law  right  of  abatement  of  nuisances  by  summary  proceedings, 
without  judicial  trial  or  process.'  Again  on  page  238,  he  says: 
'But  as  the  legislature  may  declare  nuisances,  it  may  also,  where 
the  nuisance  is  physical  and  tangible,  direct  its  summary  abate- 
ment by  executive  officers,  without  the  intervention  of  judicial 
proceedings,  in  cases  analogous  to  those  where  the  remedy  by 
summary  abatement  existed  at  common  law.'  " 

And  further  along  in  the  same  case,  we  find  the  further 
quotation : 

"To  justify  the  state  in  thus  interposing  its  authority  in 
behalf  of  the  public,  it  must  appear,  first  that  the  interests  of 
the  public  generally,  as  distinguished  from  those  of  a  particular 
class,  require  such  interference;  and,  second,  that  the  means 
are  reasonably  necessary  for  the  accomplishment^  of  the  pur- 
pose, and  not  unduly  oppressive  upon  individuals." 

The  statute  requires  when  such  order  is  made,  that  the  per- 
son affected  must  be  notified  (§  835,  G.  C),  and  then  provides 
for  a  hearing. 

§  2007.  When  and  how  owner  may  have  hearing.  (§  836.) 
"If  the  owner,  lessee,   agent  or  occupant  dooms  hiirisclf  ng- 


§  2008  APPEALS    ON    SHEEP    CLAIMS,    ETC.  1674 

grieved  by  an  order  of  an  officer  under  the  preceding  section 
and  desires  a  hearing  he  may  complain  or  appeal  in  writing  to 
the  state  fire  marshal  within  three  days  from  the  service  of  the 
order  and  the  state  fire  marshal  shall  at  once  investigate  said 
complaint  and  he  shall  fix  a  time  and  place  not  less  than  five 
days  nor  more  than  ten  days  thereafter,  when  and  where  said 
complaint  will  be  heard  by  the  state  fire  marshal.  The  state 
fire  marshal  at  said  hearing  may  affirm,  modify,  revoke  or 
vacate  said  order,  and  unless  said  order  is  revoked  or  vacated 
by  the  state  fire  marshal  it  shall  remain  in  force,  and  be  com- 
plied with  by  such  owner,  lessee,  agent  or  occupant  and  within 
the  time  fixed  in  said  order  or  within  such  time  as  may  be  fixed 
by  the  state  fire  marshal  at  said  hearing." 

§  2008.    Notice  to  State  Fire  Marshal  for  hearing^. 

Within  three  days  from  the  time  of  service  of  the  order,  if 
the  owner  wishes  a  rehearing,  he  must  file  a  written  complaint 
with  the  state  fire  marshal,  and  the  state  fire  marshal  must  fix 
a  time  and  place  not  less  than  five  nor  more  than  ten  days 
thereafter  when  the  matters  complained  of  will  be  heard,  and 
the  state  fire  marshal  makes  such  further  order,  affirming,  mod- 
ifying, revoking  or  vacating  his  former  order  as  he  deems  proper, 
and  from  this  order  an  appeal  lies  to  the  Probate  Court  as 
provided  in  the  next  section. 

§  2009.  Right  of  appeal  to  probate  court.  (§  836-1.)  "If  a 
person  is  aggrieved  by  the  final  order  of  the  state  fire  marshal 
as  made  at  the  hearing  provided  for  in  the  preceding  section, 
such  person  may  within  five  days  thereafter,  appeal  to  the  pro- 
bate court  of  the  county  in  which  the  property  is  situate,  notify- 
ing the  state  fire  marshal  in  writing  of  such  appeal  within 
three  days  thereafter,  which  notice  shall  be  in  writing  and 
delivered  personally  to  the  state  fire  marshal  or  left  at  his  prin- 
cipal office  in  the  city  of  Columbus.  The  party  so  appealing 
shall  within  two  days  thereafter,  file  with  the  probate  court  in 
which  said  appeal  is  made  a  bond  in  an  amount  to  be  fixed  by 
the  court  but  in  no  case  less  than  one  hundred  dollars  ($100) 
with  at  least  sufficient  sureties,  to  be  approved  by  the  court, 
conditioned  to  pay  all  the  costs  on  the  appeal  in  case  the  appel- 
lant fails  to  sustain  the  same  or  the  appeal  be  dismissed  for 
any  cause.  The  probate  court  shall  hear  and  determine  said 
appeal  within  ten  days  from  the  date  of  the  filing  of  the  same 
and  the  state  fire  marshal  shall  make  a  complete  transcript  of 
the  proceedings  had  before  him  and  certify  the  same  together 
with  all  the  original  papers  filed  in  his  office  and  transmit  them 
to  the  probate  court  at  least  three  days  prior  to  the  date  of 
hearing  as  fixed  by  the   court.     The  decision   of  the  probate 


1675  PERFECTION  OF  APPEAL  §  2010 

court  shall  be  final  and  in  case  the  decision  is  against  the  appel- 
lant or  for  any  cause  the  appeal  be  dismissed  judgment  for  costs 
shall  be  entered  against  the  appellant." 


§  2010.    Perfection  of  appeal. 

In  the  first  place  the  person  desiring  to  appeal  from  the 
order  made  on  the  hearing,  must  within  three  days  from  the 
date  of  such  order  notify  the  state  fire  marshal  in  writing  of 
his  intention  to  appeal.  This  notice  must  be  served  personally 
on  the  marshal,  or  left  at  his  principal  office  in  Columbus,  Ohio. 
Second,  within  two  days  thereafter,  and  within  five  days  from 
the  time  the  order  was  made,  the  party  appealing  must  file  with 
the  Probate  Court  of  the  county  in  which  the  property  is  located 
a  bond  in  an  amount  fixed  by  the  court  in  a  penal  sum  of  not 
less  than  $100,  with  sureties  approved  by  the  court.  When 
these  two  conditions  are  performed,  the  court  has  jurisdiction. 
The  party  appealing  should  also  file  a  copy  of  the  notice  given 
to  the  state  fire  marshal  with  proof  of  service.  The  court  should 
approve  and  file  the  bond  and  set  a  day  for  hearing. 

§  2011.    Journal  entry — Approving  bond  and  fixing  time  of 

hearing. 

Probate  Court,  Clark  County,  Ohio. 
In  the  Matter  of  A.  B.'s  Appeal  from  order  of  State  Fire  Marshal. 

This  day  came  A.  B.  and  filed  in  this  court  proof  of  service  of  notice 
of  his  intention  to  appeal  to  this  court  from  an  order  made  by  the  state 

fire  marshal  on  the   day  of    ,   19...,  and  also  filed   in  this 

court  his  bond  for  such  appeal  in  the  sum  of  $ ,  conditioned  accord- 
ing to  law,  with and  as  sureties  thereon,  and  on  considera- 
tion thereof  the  court  finds  that  notice  of  intention  to  appeal  was  served 
on  the  state  fire  marshal  as  provided  by  law,  and  that  said  bond  is  con- 
ditioned according  to  law  and   is  proper  and   sufficient,  and  the  same  is 

approved  by  the  court.    The  court  further  fixes  the day  of   ....... 

19...  at  1*0  o'clock  a.  m.,  as  tlie  time  for  hearing  said  appeal,  and  it  is 
ordered  that  notice  of  such  time  of  hearing  be  given  to  said  state  fire 
marshal  by  sending  him  by  registered  letter  a  copy  of  this  order. 

§  2012.    Hearing,  etc. 

At  least  three  days  prior  to  the  time  fixed  for  hearing,  the 
state  fire  marshal  must  make  a  complete  tran.script  of  all  the 
proceedings  had  before  him,  and  file  the  same  witli  all  the  papers, 
in  the  Probate  Court. 

The  issue  is  thus  made  up,   and  is,  sliall  the  order  of  the 
■  state  fire  marshal  stand  or  he  set  aside.     I  presume  as  an  at- 


§  2012  APPEALS   ON    SHEEP    CLAIMS,   ETC.  1676 

tendant  power  of  the  court,  it  might  modify  the  order.  By 
implication,  the  rules  applicable  to  the  trial  of  cases  to  a  court 
of  equity  should  be  followed,  and  the  law  applicable  to  the  trial 
of  the  matter  of  an  abatement  of  a  public  nuisance  should  be 
observed. 

The  decision  of  the  Probate  Court  is  final.  This  statute  so 
far  as  I  know  has  received  no  judicial  construction.  Consider- 
ing the  extent  of  the  authority  vesting  in  the  legislature  in  the 
exercise  of  the  police  power,  in  the  abatement  of  what  might 
be  termed  public  nuisance,  the  law  is  within  its  authority  and 
valid.  If  the  order  of  the  state  fire  marshal  is  sustained,  or 
the  appeal  is  dismissed  for  any  cause,  the  costs  are  to  be  assessed 
against  the  appellant.  If  the  order  of  the  state  fire  marshal  is 
not  sustained — that  is,  modified  or  set  aside — the  costs  would 
be  assessed  against  him.  The  following  might  serve  as  a  form 
for  a  final  entry: 

ENTRY  AND  FINDING. 
[Title.] 

This  cause  came  on  to  be  heard  pursuant  to  former  order  of  the  court 
and  was  submitted  upon  the  evidence  and  argument  of  counsel;  whereupon, 
after  due  consideration  the  court  finds  the  final  order  made  by  the  state 
fire  marshal  in  the  above  matter,  and  which  was  appealed  to  this  court  is 
proper  and  reasonable,  and  the  same  is  approved  and  confirmed  and  the 

costs  of  this  proceeding  taxed  at  $ ,  is  assessed  against  the  appellant 

and  judgment  therefore  is  rendered  against  him  for  the  same. 


1677 


INHERITANCE   TAX 


CHAPTER  CVI. 
INHERITANCE  TAX/ 


§2013    Origin.  §2039 

§  2014     Ohio    state,   historical. 

§  2015     Constitutionality.  §  2040 

§2016     Not  a  tax  on  property,  but 

right  to  receive.  §  2041 

§  2017     Object   and   purpose. 

§  201S     When    law   talces   effect.  §  2042 

§  2019     Subsequent  increase. 

§2020     Definition     of   terms 

(§5331).  §2043 

§  2021     Property      on      which     tax 

levied    (§5332).  §2044 

§2022     Conditions       of       transfer 

which    create    liability    for      §  2045 
tax. 

'§  2023     Resident  of   state.  §  2046 

§  2024     Non-resident. 

§  2025     Widows'     year's     allowance      §  2047 
(§5332-1). 

§  2026     When  subject  to  tax  in  an- 
other state    (§5333).  §2048 

§  2027     Property    in    foreign    juris- 
diction. §  2049 

§  2028    Deduction     for     tax     paid      §  2050 
under   U.   S.   law. 

§  2029     General   deductions.  §  2051 

§  2030     Situs  of  property. 

§  2031     Property  not  subject  to  tax      §  2052 
(§5334).  §2053 

§2032     Exemptions;     public     char-      §2054 
ities. 

§  2033     Institutions       within       the      §  2055 
state. 

§  2034     Exemptions,     personal.  §  2056 

§  2035    Rates    of   tax    on   property 

(§5335).  §2057 

§  2036     Schedule    of    rates    and    ex- 
emptions. §  2058 

§  2037     Taxes   when    due    and    pay- 
able   (§5336).  §2059 

§  2038     Time  of  payment  of  tax.  §  2000 


Personal  liability  of  execu- 
tor. 

Personal  liability  of  bene- 
ficiaries. 

Tax  on  legacy  retained 
(§5337). 

When  property  is  charged 
with  payment  of  legacy, 
etc. 

Tax,    to    whom    paid,    dis- 
count,   etc,    (§5338). 
Time  limit  for  payment  of 
tax. 

Petition  to  remit  interest; 
form. 

Notice  of  motion  to  remit; 
form. 

remitting      interest 
8     to     5     per     cent. 


Order 
from 
form, 

Wlien 


to 


legatee    entitled 
refunder    (§5339). 

Refunder  of  tax. 

Powers   and  duties  of  Pro- 
bate  Court    (§5340). 

Jurisdiction       of      Probate 
Court. 

Essentials  of   application. 

Filing   and   notice. 

Application    for    determina- 
tion of  tax;  form. 

Application,   etc.,  wlicre  no 
administration;    form. 

Application,    etc.,    non-resi- 
dent;   form. 

Application,       etc.,       small 
estate:    form. 

AppraisciiH'iit      by      county 
auditor    (§5341)'. 

Appraisnl  by  auditor. 

Entry;    ordoriiig  auditor  to 
appraise;    form. 


1  For  United  States  inheritance 
tax  the  internal  revenue  collector 
of  the  district  will,  on  inquiry,  fur- 


nish law  and   blanks,  etc.     It  only 
applies  to  estates  over  .$50,000.00. 


INHERITANCE   TAX 


1678 


§2061     Writ     to     auditor     to     ap-      §2091 
raise  J    form. 

§  2062     Duties   of   auditor.  §  2092 

§  2063     ]\'otice    of    hearing    ibefore      §  2093 
auditor;   form.  §  2094 

'§2064     FLxing  value  of  real  estate.      §2095 

1§2065     Appraisal  of  personal  prop- 
erty. §  2096 

§  2066     Value  of   future  or  limited 
estate   (§5342). 

§2067     Fixing   value   of   future  or      §  2097 
contingent  interest. 

§2068     Application    to    superinten-       §2098 
dent   of   insurance;    form. 

§  2069     Inheritance   taxation   table.       §  2099 

§2070     Computation,  etc. 

§2071     Taxation    of    estate    depen-       §2100 
dent      upon      contingencies 
(§5343).  §2101 

§2072     \\Tien    contingencies    exist; 

higher  rate.  §  2102 

§2073     Estates    held    in     abeyance 
(§5344). 

§  2074     When    tax    has    not    been       §  2103 
paid,   etc. 

§2075    Report  of  auditor;   form. 

§  2076     Findings   of   Probate   Court      §  2104 
(§5345). 

§2077     Proceedings  of  court  on  re-      §2105 
port  of  auditor. 

§2078     Journal  entry;   determining      §2106 
tax     after     auditor's     ap- 
praisal;   form.  §2107 

§2079     Notice  and  how  served. 

§2080     Form  of  notice  fixing   tax.      §  2108 

§2081     Form  order  exempting  from 

tax.  §  2109 

§2082     \Mio     may     file    exceptions 

(§5346).  §2110 

§2083     Filing    exceptions. 

§2084     Form  of  exceptions.  §2111 

§2085     Order     for    hearing    excep-      §  2111a 
tions;   form. 

§2086     Notice     of    hearing     excep-      §2112 
tions;    form.  §2113 

§2087     Entry  on  hearing;    form. 

§2088     When    certified    to    auditor      §2114 

(§5347). 
§2089     Certifving  finding  to   audi- 
tor.   '  §2115 
§  2090     ^Motion   to  modify   findings, 
etc. 


Appeal     from     final    order 

(§5348). 
Appeal;   how  perfected. 
Who  may  prosecute  appeal. 
Tax  receipt,  etc.   (§5348-1). 
Transfer     of     securities 
(§5348-2). 

Notice  of  transfer  to  audi- 
tor and  tax  comission; 
form. 

Transfer  without  knowledge 
(§5348-2a). 

Transfer  of  stocks  in  cor- 
poration, etc. 

Application       to       transfer 
stock,   etc. ;    form. 
Delivery      of      custody      of 
securities. 

Application    for    consent   to 
transfer;    form. 
Application       for       release 
when     no     administration ; 
form. 

Collection  of  tax  after 
eighteen  months 

(§5348-3). 

Prosecuting  attorney  to 
represent  county  (  §  5348-4 ) . 
County  auditor  appoints 
deputies    (§5348-5). 

Tax  commission  may  desig- 
nate  examiners    (§5348-6). 

Eecords  to  be  made  by  Pro- 
bate  Judge    (§5348-7). 

Monthly  reports  to  state 
auditor    (§5348-8). 

Reports  by  recorder 
(§5348-8a).  * 

Accounts  kept  by  county 
treasurer    (§5348-9). 

Fees,  etc.    (§5348-10). 

Probate  Judges'  Fees 
(§5348-10a). 

Division  of  tax  (§5348-11). 

Distribution  of  tax 
(§5348-12). 

^^^lere  tax  deemed  to  origi- 
nate on  property  in  state 
(§5348-13). 

\Miere  tax  deemed  to  origi- 
nate   on    property    not    in 

state    (§5348-14). 


1679 


ORIGIN  §  2013 


§  2013.    Origin. 

The  raising  of  revenue  by  tax  on  inheritance  for  govern- 
mental support,  is  of  very  ancient  origin.  It  was  employed 
hy  the  Ptolomies  in  Egypt,  and  introduced  into  Kome  by 
Augustus.  It  first  came  into  use  in  England  in  1780  and  now 
it  exists  in  almost  all  civilized  nations.  The  United  States 
adopted  this  form  of  taxation,  perhaps  more  as  a  war  measure 
than  anything  else,  in  1916,  In  the  opinion  of  the  writer,  the 
United  States  statute  should  be  repealed  and  this  form  of  taxa- 
tion left  to  the  states  at  the  very  earliest  time  practicable,  and 
then  it  should  be  made  uniform  in  all  the  States.  This  form 
of  taxation  is  now  in  force  in  most  of  the  States.- 

It  first  became  a  law  in  New  York  in  1885,  and  is  of  much 
more  recent  date  in  the  other  States.  The  first  statutes  generally 
only  related  to  collaterals  as  distinguished  from  direct.  The 
more  recent,  made  no  distinction,  except  as  to  the  amount  of 
tax.  They  vary  considerably  as  to  the  amount  of  the  exemp- 
tions allowed.  The  present  Ohio  statute  seems  to  be  taken 
largely  from  the  New  York  statute. 

§  2014.     Ohio  statute — Historical. 

The  first  law  was  passed  in  Ohio  in  1893.^  In  1894  the  law 
of  1893  was  amended,  confining  it  to  the  collateral  kindred,* 
and  in  the  same  year  a  separate  act  was  passed  imposing  a 
direct  inheritance  tax.^  The  latter  was  declared  unconstitu- 
tional," on  the  ground  that  the  exemptions  allowed  were  not 
uniform.  The  former  was  declared  valid  and  constitutional,^ 
later.  The  law  was  later  amended  by  including  collateral 
kindred  or  persons  in  1900,*  and  so  remained  until  1919,"  when 

2  Arizona,    Arkansas,    California,  Wyoming.       A    synopsis     of    tlu-se 

Colorado,      Connecticut,     Delaware,  statutes   will   he   found    in   Clcason 

Georgia,     Idaho,     Illinois,    Indiana,  and   Otis   on   Inheritance  Taxation. 

Iowa,  Kansas,  Louisiana,  Maryland,  3  nO  vs.  14. 

Massachusetts,      Michigan,      Minne-  *  01  vs.  169. 

sota,     Mississippi,    Missouri,    Mon-  5  91  vs.  16G. 

tana,  Xevada,  Xcw  Hampshire,  New  6  State  vs.  Ferris,  53  O.  S,  314. 

Jersey,    New    Mexico,    New    York,  7  Haggerty    vs.    State,    55   O.    S. 

North      Carolina,     North     i)akota,  214. 

Ohio,    Oklahoma,    Oregon,    Pcnnsyl-  8  94  vs.  101. 

vania,  Rhode  Island,  South  Dakota,  9  108  vs.  506. 

Tennessee,    Texas,    Utah,    Vermont,  10  108  vs.  — . 
Virginia,  West  Virginia,  Wisconsin, 


§  2015  •  INHERITANCE   TAX  1680 

it  was  amended,  and  again  in  1920  ^**  in  its  present  form.  In 
this  law  there  is  no  distinction  between  direct  and  collateral 
persons  except  in  the  exemptions  and  the  rate  of  the  tax.  Much 
of  the  law  is  similar  to  the  present  law  of  New  York. 


§  2015.    Constitutionality. 

In  order  that  all  doubts  as  to  the  power  of  the  legislature  to 
pass  laws  of  this  character  be  dispelled,  the  constitutional  con- 
vention of  1912  proposed  the  following  amendment,  which  was 
adopted,  and  became  See.  7  of  Art.  12  of  our  State  constitution.^^ 
Inheritance  tax  laws  are  not  in  violation  of  the  fourteenth 
amendment  of  the  United  States  constitution.^^  However,  a 
statute  that  does  not  provide  for  a  hearing  is  unconstitutional.^^ 
"When  the  legislature  adopts  the  statutory  language  of  another 
State,  it  is  ordinarily  presumed  to  have  in  mind  the  existing 
decisions  of  such  state  defining  the  extent  and  purpose  of  the 
statute,  and  to  have  used  the  identical  phraseology  in  the  sense 
thus  indicated.^^ 


§  2016.    Not  a  tax  on  property,  but  on  the  Tight  to  receive  it. 

It  is  now  held  in  practically  all  jurisdictions  where  the  mat- 
ter has  been  under  consideration,  that  what  is  known  as  an 
inheritance  tax,  is  not  a  tax  on  the  property  but  on  the  right 
to  receive  it.    The  highest  court  in  the  land  has  said : 

"Thus  the  tax  is  not  upon  the  property  in  the  ordinary  sense 
of  the  term,  but  upon  the  right  to  dispose  of  it,  and  it  is  not 

11  §  7.     Laws  may  be  passed  pro-  12  Humphrey  vs.  State,  70  0.   S. 

viding  for  the  taxation,  of  the  r;ght  07;  Mungon  vs.  111.  Trust,  etc.,  170 

to  receive,  or  to  succeed  to,  estates,  U.   S.  2C3.     This  case  is  annotated 

and  such  taxation  may  be  uniform  in  42  Law  Ed.   1037.     It  is  not  a 

or   it   may   be   so   graduated   as   to  taking  without  due  process  of  law. 

tax  at  a  higher   rate  the   right  to  Plummer  vs.  Coler,  178  U.  S.   115; 

receive,  or  to  succeed  to  ,estates  of  Keeney  vs.  Xew  York,  222  U.  S.  525. 

receive,  or  to  succeed  to,  estates  of  13  Ferry  vs.   Campbell,   110  Iowa, 

smaller  value.     Such  tax  may  also  290;   Matter  of  ^IcPherson,   104  N. 

be    levied    at    different    rates    upon  Y.  306;   Keeney  vs.  New  York,  222 

collateral    and    direct    inheritances,  U.    S.    525.      The    parties    affected 

and  a  portion  of  each  estate  not  ex-  must  have  notice, 

ceeding     twenty     thousand     dollars  14  !}.rann  vs.  Carter,  74  N.  IT.  345; 

may  be  exempt  from  such  taxation.  People  vs.  Griffin,  245  111.  532. 
[Adopted  Sept.  3,  1912.] 


1681  OBJECT    AND    PURPOSE  •  §  2017 

until  it  has  yielded  its  contribution  to  the  state,  that  it  becomes 
the  property  of  the  legatee.  "^^ 

In  our  own  court  we  have  this: 

"As  the  majority  of  the  court  are  of  the  opinion  that  it  is 
not  a  tax  on  property,  but  upon  the  right  to  receive  property, 
the  statute,  must  as  to  this  point  be  sustained."  ^^ 

"This  court  in  the  Ferris  case  reached  the  conclusion  that 
the  direct  inheritance  tax  was  intended  by  the  legislature  to 
be  a  tax  upon  the  right  or  privilege  to  receive  property  and 
not  a  tax  upon  the  property  itself."  ^^ 


§2017.     Object  and  purpose. 

The  object  and  purpose  of  these  statutes  is  to  raise  revenue  to 
be  used  for  public  purposes.  If  used  for  private  purposes,  the 
law  is  invalid.^®  However,  the  mere  fact  that  the  revenue  is 
to  be  applied  to  a  public  purpose,  will  not  valididate  a  statute 
otherwise  defective.^^ 

There  is  no  constitutional  right  to  inherit,  and  therefore  the 
matter  as  to  the  rates  and  amount  charged,  rests  entirely  in  the 
legislature,  unless  it  should  be  so  large  as  to  be  confiscatory  and 
beyond  all  reason.^"  The  descent  of  property  is  founded  en  none 
other  than  a  right  given  by  statute.-^  Therefore  the  power  that 
gives  may  withhold.  The  right  to  control  the  devolution  rests 
in  the  States.  The  United  States  exercises  its  right  to  impo.se 
inheritance  taxes  under  its  power  to  levy  excise  duties  and 
imports.-* 

§  2018.    When  law  takes  efTect. 

The  law  being  on  the  right  to  receive  property,  and  not  on 
the  property,  itself,  it  can  not  take  dxect  until  after  tlie  death 
of  the  person  from  whom  the  property  is  reeeived.^^    Such  laws 

15  United  States  vs.  Perkins,  163  U.  S.  41.  The  fact  tliai  (lie  rates 
TT    S    fi'^i  ""'  P'"g''fssive  and  iiHreiise  as  the 

•  ^      .      ^„  ^    r.    oi^        iuiiouiit    increases,    docs    not    all'eet 

16  State  vs.  Ferns,  53  O.  S.  314.       ^j^^,  j.^^^      ^^^^^^  ^^    Mann,  70  Wis. 

iTHaggerty   vs.    State,   55    0.    S.  40!);  Posey  vs.  Com.,  90  S.  E.  (Va.) 

621.  771. 

IS  State  vs.  Luit^ler,  143  M.  285.  -  I^^T  v^^I^o;l%78  U.  S. 

The  presximption  ia  that  the  tax  is  ^j 

levied  for  a  public  purpose.     State  23  Estate    of    IJushncU,    2    N.    P. 

vs.  Mann,  76  Wis.  479;  Union  Trust  (N.S.)073.                         .,     „     t  , 

n            T>     f       lor  t\t;„v,    407  Sec  opinion    of   Atty.   Cjcn  1,   .July 

Co.  vs.  Durfee,  125  Mich.  487  ^    luui  M  IJull.  307/ an  to  general 

19  Curry  vs.  Spencer,  CI  ^.  11.  624.  j,,^p]i,,i,tion  of  hiw. 

20  See  Knowlton   vs.   Moore,    178 


§  2019  INHERITANCE   TAX  1682 

do  not  act  retroactively."*  When  the  law  is  repealed,  however, 
the  right  to  collect  the  tax  ceases  at  the  time  such  law  goes  into 
effect.-^  Neither  can  the  rate  be  increased  after  the  death  of 
the  person  from  whom  the  property  is  received.-*'  For  the  pur- 
pose of  the  inheritance  tax  the  property  vests  in  the  distributees 
at  the  death  of  decedent.^^ 


§  2019.    Subsequent  increase. 

As  the  tax  attaches  at  the  time  of  the  decedent's  death,  the 
value  of  the  property  at  that  time  is  the  basis  upon  which  the 
tax  is  assessed.  If  there  is  an  increase  before  distribution,  this 
can  not  be  included.-*  As  a  corollary  the  conversely  will  follow, 
that  the  value  of  the  property  upon  which  the  tax  is  to  be  cal- 
culated will  not  be  reduced  by  reason  of  losses  incurred  before 
distribution.-^  As  this  rule  sometimes  may  work  an  injustice, 
the  law  tixing  the  United  States  inheritance  tax  allows  a  deduc- 
tion for  certain  losses  that  may  result  between  the  time  of 
decedent's  death  and  distribution.  Khode  Island  has  a  similar 
provision.  ''The  justice  and  propriety  of  this  is  so  apparent," 
says  an  authority,  "that  these  statutes  will  doubtless  be  fol- 
lowed in  other  States.""** 

The  Ohio  statute  makes  provision  for  refunder  of  a  tax  where 
it  has  been  paid  in  ordinary  cases,  and  debts  are  proven  against 
the  estate  which  were  not  paid  at  the  time  the  tax  was  paid."^ 
Also  when  the  actual  value  of  the  property  or  interest  can  not 
be  fixed  by  reason  of  its  not  vesting  at  the  time  of  decedent's 
death,  it  then  becomes  due  and  payable  when  the  party  be- 
comes entitled  to  possession.  In  such  a  case  earnings  would 
probably  be  included.''-  In  the  usual  administration  of  estates 
this  will  not  work  much  difference,  and  generally' the  tax  will 
be  fixed  on  the  amount  the  executor  or  administrator  will  have 

24  Eury  vs.  State,  72  O.  S.  448.  29  :\Iatter  of  Meyer,  209  N.  Y.  3S6. . 

25  Friend  vs.  Levy,  76  0.  S.  26.  The  appraisal  fixes  tlie  value.  Mat- 
See  Atty.  Genl's  op.  1920,  p.  219.  ter  of  Penifield,  216  X.  Y.  163; 
20  State   vs.    S.    D.    &    T.    Co.    of  Hites'  Fstate    li9  Cal    392 

Baltimore,  103  Atl.  435.  ^^'^^^    Instate,  ioy  Lai.  dUZ. 

27  See  Atty.  Genl's  opinion  July  30  Gleason  and  Otis  on  Inhent- 
9,  1919,  64  Bull.  307.  ance  Taxation,  2nd  ed.  38. 

28  In  re  Williamson,  153  Pa.  508.  31  See  §  2048,  §  5339  G.  C;  §  2066, 
A  penalty  can  not  be  added  unless  g  5342  G.  C. 

authorized    by    statute.     Matter    of  ,9  o„„  o  oaot   «  cooc  n   n     <t  ot\o^ 

Vassar,  127  N.  Y.  1.  „  ''J''  §  2037,  §  5336  G.  C;  §  2021, 

§  5332,  par.  7,  G.  C. 


^^^3  DEFINITION    OF    TERMS  §  2020 

when  distribution  is  made  in  money,  and  on  real  estate,  the 
value  it  had  at  the  time  of  decedent's  death. 

§  2020.  Definition  of  terms.  (§  5331.)  As  used  in  this  sub- 
division  of  this  chapter : 

1.  [Estate  and  property.]  The  words  "estate"  and  "prop- 
erty" include  everything  capable  of  ownership,  or  any  interest 
therein  or  income  therefrom,  whether  tangible  or  intangible, 
and,  except  as  to  real  estate,  whether  within  or  without  this 
state,  which  passe  to  any  one  person,  institution  or  corpora- 
tion, from  any  one  person,  whether  by  a  single  succession  or  not. 

2.  [Succession.]  "Succession"  means  the  passing  of  prop- 
erty in  possession  or  enjoyment,  present  or  future. 

3.  [V/ithin  the  state.]  "Within  this  state,"  when  predi- 
cated of  tangible  property,  means  physically  located  within  this 
state ;  when  predicated  of  intangible  property,  that  the  succession 
thereto  is,  for  any  purpose,  subject  to,  or  governed  by  the  law 
of  this  state. 

4.  [Decedent.]  "Decedent"  includes  a  testator,  intestate, 
grantor,  assignor,  vendor  or  donor. 

5.  [Contemplation  of  death.]  "Contemplation  of  death" 
means  that  expectation  of  death  which  actuates  the  mind  of  a 
person  on  the  execution  of  his  will.     [108  y.  562.]  ^^ 

§  2021.  Property  on  which  tax  is  levied.  §  5332,  A  tax  is 
hereby  levied  upon  the  succession  to  any  property  passing,  in 
trust  or  otherwise,  to  or  for  the  use  of  a  person,  institution  or 
corporation,  in  the  following  cases: 

Resident.  1.  "When  the  succession  is  by  will  or  by  the 
intestate  laws  of  this  state  from  a  person  who  was  a  resident 
of  this  state  at  the  time  of  his  death. 

Non-Resident.  2.  When  the  succession  is  by  will  or  by  the 
intestate  laws  of  this  state  or  another  state  or  country,  to  prop- 
erty within  this  state,  from  a  person  who  was  not  a  resident  of 
this  .state  at  the  time  of  his  death. 

Deed,  grant,  gift,  etc.  3.  When  the  succession  is  to  prop- 
erty from  a  resident,  or  to  property  within  this  state  from  a 
non-resident,  by  deed,  grant,  sale,  assignment  or  gift,  made 
without  a  valuable  consideration  substantially  equivalent  in 
money  or  money's  worth  to  the  full  value  of  .such   property: 

(a)  In  contemplation  of  the  death  of  the  grantor,  vendor, 
assignor,  or  donor,  or  ^* 

(b)  Intended  to  take  effect  in  passession  or  enjoyment  at  or 
after  such  death, 

33  §  243   of  the  N.  Y.   inheritance  34  See    Gleason    and    Otis    on    In- 

tax  defines  terms,  Gleason  and  Otis  herilance  Tax,  'ind  ed.,  p.  U.")  ct  .s(  7, 

Inheritance   Tax,    7()(>.     The   present  See  Atty.  Ccnl's  ..j).   I!)'2(),  p.  TM, 

New  York  statute  is  given  on  pages  wlicn    property    was    given    in    <'on- 

732  to  708  of  Gleasfm  and  Otis  on  tiniplation     of     (hiath     and     other 

Inheritance  Taxation.  devised,    botli     for    inadecpiate    con- 
sideration   Mulijcct    to    tax. 


§  2021  INHERITANCE   TAX  1684 

By  exercise  of  power.  4.  Whenever  any  person  or  cor- 
poration shall  exercise  a  power  of  appointment  derived  from  any 
disposition  of  property  heretofore  or  hereafter  made,  such  ap- 
pointment when  made  shall  be  deemed  a  succession  taxable  under 
the  provisions  of  this  subdivision  of  this  chapter  in  the  same 
manner  as  if  the  property  to  which  such  appointment  relates 
belonged  absolutely  to  the  donee  of  such  power,  and  had  been 
bequeathed  or  devised  by  said  donee  by  will ;  and  whenever  any 
such  person  or  corporation  possessing  such  power  of  appoint- 
ment shall  omit  or  fail  to  exercise  the  same  within  the  time 
provided  therefor,  in  whole  or  in  part,  a  succession  taxable  under 
the  provisions  of  this  act  shall  be  deemed  to  take  place  to  the 
extent  of  such  omission  or  failure,  in  the  same  manner  as  if  the 
persons,  institutions  or  corporations  thereby  becoming  entitled  to 
the  possession  or  enjoyment  of  the  property  to  which  such 
power  related  had  succeeded  thereto  by  a  will  of  the  donee  of 
the  power  failing  to  exercise  the  same,  taking  effect  at  the  time 
of  such  omission  or  failure. 

Survivorship.  5.  Yv'henever  property  is  held  by  two  or 
more  persons  jointly,  so  that  upon  the  death  of  one  of  them  the 
survivor  or  survivors  have  a  right  to  the  immediate  ownership 
or  possession  and  enjoyment  of  the  whole  property,  the  accrual 
of  such  right  by  the  death  of  one  of  them  shall  be  deemed  a 
succession  taxable  under  the  provisions  of  this  subdivision  of 
this  chapter  in  the  same  manner  as  if  the  enhanced  value  of 
the  whole  property  belonged  absolutely  to  the  deceased  person, 
and  had  been  by  him  bequeathed  to  the  survivor  or  survivors  by 
will. 

To  executors.  6.  "When  a  decedent  appoints  one  or  more 
executors  or  trustees,  and  instead  of  their  lawful  allowance  makes 
a  bequeath  or  devise  of  property  to  them,  which  would  other- 
wise be  liable  to  such  taxes,  or  appoints  them  as  residuary 
legatees,  and  such  bequest,  devise  or  residuary  legacy  exceeds 
what  would  be  a  reasonable  compensation  for  their  services,  such 
excess  shall  be  a  succession  and  liable  to  such  tax,  and  the  pro- 
bate court  having  jurisdiction  of  their  accounts  shall  fix  such 
compensation. 

Profits  on  property  derived.  7.  "When  any  property  shall 
pass  subject  to  any  charge,  estate  or  interest,  determinable  by 
the  death  of  any  person,  or  at  any  period  ascertainable  only  by 
reference  to  death,  the  increase  accruing  to  any  person,  institu- 
tion or  corporation,  on  the  extinction  and  determination  of  such 
charge,  estate  or  interest,  shall  be  deemed  a  succession  taxable 
under  the  provisions  pf  this  subdivision  of  this  chapter,  in  the 
same  manner  as  if  the  person,  institution  or  corporation  bene- 
ficially entitled  thereto  had  then  acquired  such  increase  from 
the  person  from  whom  the  title  to  their  respective  estates  or 
interests  is  derived. 

Rate  of  tax.  Such  tax  shall  be  upon  the  excess  of  the 
actual  market  value  of  such  property  over  and  above  the  exemp- 


1685  RESIDENT    OP    STATE  §  2022 

tions  made  and  at  the  rates  prescribed  in  this  subdivision  of  this 
chapter.     [108  v.  563.]  ^^ 


§  2022.     Conditions  of  transfer  which  create  liability  for  tax. 

In  applying  the  above  statutory  provisions  it  is  well  to  bear 
in  mind  that  the  tax  is  not  on  the  transfer  of  property  of  a 
living  person  in  the  ordinary  conduct  of  business  affairs;  it 
only  applies  when  the  owner  has  ceased  such  conduct. 

No.  1  applies  when  the  transfer  occurs  by  will  or  inheritance 
of  a  resident.^° 

No.  2  when  the  transfer  occurs  by  will  or  inheritance  of  a 
non-resident,  owning  property  in  this  state.^^ 

No.  3  when  the  transfer  occurs  by  deed,  grant,  sale,  etc.,  of 
property  in  this  state,  by  resident  or  non-resident,  without 
receiving  full  value,  and,  provided  it  is  done  in  contemplation 
of  death  or  intended  to  take  effect  after  death  of  the  grantor.^* 

No.  4  applies  when  the  owner  gives  to  someone  else  the  power 
to  make'  the  transfer  after  his  death.^'-* 

No.  5  applies  when  the  property  passes  by  the  right  of  sur- 
vivorship.*° 

No,  6  applies  when  an  executor  takes  under  a  will  more  than 
his  statutory  allowance. 

No.  7  applies  to  the  increase  of  property  where  it  docs  not 
pass  on  death  of  the  owner,  but  on  the  occurrence  of  some  sub- 
sequent event. 

§2023.    Resident  of  state. 

Residence  is  synonymous  with  domicile,  and  although  the  stat- 
ute uses  the  word  resident,  the  residence  is  determined  by  apply- 
ing the  law  fixing  the  domicile  of  a  person.  Domicile  is  always 
a  question  of  fact;  while  not  conclusive,  the  decedent's  own 
declaration  is  evidence  of  high  character,  and  will  determine 
the  question,  in  the  absence  of  more  convincing  proof  to  the 
contrary .^^  However,  a  mere  expression,  without  some  evidence 
of  actual  residence,  might  overcome  his  declarations."*-  The 
general  rules  for  fixing  domicile  are  given  as  follows : 

35  Somewhat     similar     provislona  4i  Wildcrming,  Admr.  vs.   Millor,- 

are  found  in  N.  Y.  inheritance  tax,  00  O.  S.  28 ;   Moore  vs.  Prickgab.-r, 

§§  ''•^0  to  226  I'*'*  U.  S.  503. 

3GSee  Gloason    and   Otis,  Inherit-  *- ^vc  Cloason    and   Oils.   Tnhcnt- 

ance  Tax,  2.uJ  ed.,  p.  84.  ai.ce,  2nd  od.  215,  f'"'   '••'''^^'•'iVoX 

37  Id.     Aflectinff    gifts,    etc.,    pp.  See  Atly.  (.cnl  s  op.  1020   p.  U2.>, 

103-124  '^^   ^'*  didiiclion    of   vnino   of   dowcr 

38 /r/"  AfTectinp  testamentary  when  properly  given  to  wife  in  con- 
transfers,  pp.  130-154.  templation    of   death,    holding    it   18 

3»  Jd.     Transfer   by   probate,    173.  not  to  be  deducted. 

*oJd.     Joint  tenancy,  197. 


§  2024  INHERITANCE   TAX  1686 

1.  That  a  person  must  have  a  domicile  somewhere. 

2.  That  he  can  have  but  one. 

3.  That  the  domicile  of  origin  is  presumed  to  continue  until 
a  new  one  is  acquired, 

4.  That  the  burden  of  proof  rests  upon  the  party  alleging 
a  change  of  domicile. 

5.  That  to  maintain  this  burden,  both  a  change  of  residence 
and  intent  to  change  the  domicile  must  be  shown. 

6.  That  a  married  woman's  domicile  is  that  of  her  husband, 
unless  she  lives  apart  from  him  and  acquires  a  separate  resi- 
dence.*^ 

§  2024.     Non-resident. 

The  general  rule  is  that  the  personal  property  is  taxed  at 
the  domicile  of  the  decedent,**  and  therefore  as  a  general  rule 
only  real  estate  situate  in  this  State,  of  a  non-resident,  will  be 
subject  to  the  tax.  This  is  undoubtedly  true  where  the  personal 
property  is  not  physically  present  in  this  State,  When  it  is 
physically  present  in  this  State,  then  there  may  be  exceptions  to 
this  general  rule,*^  It  is  immaterial  where  the  beneficiary  may 
reside,  as  the  tax  is  not  on  the  person  that  receives,  but  upon 
the  right  to  receive  the  property  transmitted,  and  there  is  no 
discrimination  as  to  rate,  and  the  method  of  procedure  is  prac- 
tically the  same.**^ 

§2025.  Widow's  years  allowance.  §5332-1.  The  value  of 
any  property  set  off  and  allowed  to  a  widow  and  children  under 
the  provisions  of  section  ten  thousand  six  hundred  and  fifty-six 
of  the  General  Code  in  excess  of  three  thousand  dollars,  shall 
be  deemed  a  succession  taxable  under  the  provisions  of  this  sub- 
division of  this  chapter.  The  widow,  if  any,  shall  be  deemed 
the  successor  of  such  entire  succession ;  but  if  there  be  no  widow, 
each  child  shall  be  deemed  a  successor  of  his  share  thereof.  [108 
V.  1197.]  *«=! 

§  2026.    When  subject  to  tax  in  another  state.    §  5333.    If 

the  succession  to  any  property  from  a  resident  of  this  state  is 
locally  subject  in  another  state  or  country  to  a  tax  of  _  like 
character  and  amount  to  that  hereby  levied,  and  if  such  tax  be 
actually  paid  or  guaranteed  or  secured  in  accordance  with  law 
•in  such  other  state  or  country,  such  succession  shall  not  be  sub- 
ject to  the  tax  hereby  levied;  if  locally  subject  in  any  state  or 

43  Gleason  and  Otis,  Inheritance,  46a  The  widow  is  also  entitled  to 
2nd  ed.  213.                                                     an  exemption  of  $5000.00  as  well  as 

44  Snyder  vs.  Bnttman,  100  U.  S.       the  minor  child.     §2031. 

249.  See  In  rr  Kllerhorst,  6.5  Bull.  39S, 

45  See    §  2030,    Situs   of   property.      as  to  non-resident  having  securities, 

46  See  §  2020,  Definition  of  terms.       liberty    bonds     in    safety    boxes    in 
A  foreign   executer  may  marshall       bank  in  this  state,  subject  to  tax. 

the    assets,    etc.     See    Atty.    Gent's 
op.  1020,  p.  939. 


i 


1687  GENERAL  DEDUCTIONS  §  2027 

country  to  a  tax  of  like  character  but  of  less  amount  than  that 
hereby  levied  and  such  tax  be  actually  paid  or  guaranteed  or 
secured,  as  aforesaid,  such  succession  shall  be  taxable  under  this 
subdivision  of  this  chapter  to  the  extent  of  the  difference  between 
the  taxes  actually  paid,  guaranteed  or  secured,  and  the  amount 
for  which  such  succession  would  otherwise  be  taxable  hereunder. 
[108  V.  1193.] 


§  2027.    Property  in  foreign  jurisdiction. 

This  statute  applies  to  the  case  of  a  transfer  when  the  de- 
cedent was  a  resident,  but  the  property  is  located  in  another 
jurisdiction,  and  is  subject  to  a  tax  in  that  jurisdiction.  In  such 
cases  if  the  tax  in  that  jurisdiction  is  equal  to  or  in  excess  of 
that  in  this  State,  and  the  same  is  paid  or  guaranteed,  it  is  not 
liable  to  a  tax  here.  If  the  tax  of  such  jurisdiction  is  less  than 
here,  and  is  paid,  the  same  may  be  deducted  from  the  amount 
that  is  due  under  the  laws  of  this  State. 

§  2028.    Deduction  for  tax  paid  under  United  States  law. 

There  seems  to  be  no  special  provision  for  the  deduction  of 
inheritance  taxes  paid  the  United  States.  In  New  York  it  is 
held  that  they  can  not  be  deducted,*^  and  in  Wisconsin,  whose 
statute  is  somewhat  similar,  the  same  conclusion  has  been  arrived 
at.*^  However,  the  general  trend  of  authority  seems  to  be  the 
other  way — and  this  seems  to  be  more  in  accord  with  our  ideas 
of  justice,  and  we  think,  the  spirit  of  our  statute.*^ 

§  2029.    General  deductions. 

As  a  general  rule,  it  may  be  said  that  all  debts  of  decedent 
that  are  properly  chargeable  against  the  property  are  to  be 
deducted  in  fixing  the  amount  of  the  tax  to  be  paid.    In  general, 

47  Matter  of  Biestand,  178  App.  220  X.  E.  (111.)  286;  In  ;t  Kocbling 
Div.  836;  1G6  Supp.  168;  Matter  of  En.,  104  Att.  (X.  J.)  205;  People 
Sherman,  179  App.  Div.  497.  vs.  Northern  Trust  Co.,   12.')  N.  E. 

48  State  vs.  Week,  172  K  W.  732;  (Til.)  662;  Smith  vs.  llennepen,  139 
State  vs.  Eberling.  Minn.    210;    Knight's    Estate,    104 

48a  Atty.  Genl's  op.  1920,  p.  698.  Atl.     (Penn.)     76.1.      See    90    Cen. 

49  Hooper    vs.    Shaw,    176    Mass.      Law     Journal      (1920),     295,     415. 

\IT'  ,?''^T  Z%-    ^^""^"'^''"'^'n  M^  Since  the  above  was  written  Judge 

Att.    (Conn.)    647;   Corbm  vs.  Bald-  ..^    , ,  ,,,       ,      ,      ,         ,    ,  ,    xi 

win,  92  Conn.  8.34;   In  re  Mackey's  "addcn,    Cleveland,    has    held    the 

•Est.,  46  Col.  79;  People  vs.  Passfield,  same  way,  64  Bull.  113. 


§  2030  INHERITANCE   TAX  1688 

this  would  be  those  that  are  paid  in  the  ordinary  administra- 
tion of  the  estate.  This  would  include,  in  addition  to  ordinary 
debts,  the  costs  of  administration,  attorney  fees,  burial  expenses, 
cost  of  a  monument,  cemetery  lot,  commission  of  the  executor, 
taxes  due  or  payable,  costs  of  litigation  where  incurred  to  pre- 
serve the  estate.'^^  But  the  costs  of  litigation  between  distribu- 
tees as  to  the  value  of  their  interest  is  not  subject  to  deduction.^^ 

While  as  a  general  rule  the  personal  estate  is  primarily  liable 
for  all  these  matters,  yet  where  the  real  estate  is  specifically 
devised,  and  there  were  charges  attaching  to  it,  such  should  not 
be  deducted  from  the  personal  estate;  such  as  repairs  made 
after  the  death  of  the  decedent.'- 

Where  land  is  devised,  subject  to  a  mortgage,  and  the  mort- 
gage is  not  paid  from  the  personal  estate,  of  course  it  should 
be  deducted  from  the  value  of  the  land.  When  a  debt  is  for- 
given by  will  the  transfer  is  taxable.^^  But  a  debt  paid  by  a 
bequest  is  not  taxable.^^'^ 

§2030.     Situs  of  property. 

When  property  is  subject  to  a  tax  in  two  or  more  jurisdic- 
tions, it  becomes  very  important  to  determine  its  situs.  Of 
course  this  can  not  affect  real  estate;  this  is  only  taxable  in 
the  State  where  located,  and  the  doctrine  of  equitable  conver- 
sion is  not  applicable  even  though  the  testator  directs  the  sale 
of  foreign  real  estate,  and  the  payment  of  money  legacies  out 
of  the  proceeds.^-*  So  it  was  also  held  that  money  due  on  land 
contracts  to  pay  a  resident  decedent's  estate  the  purchase  price 
of  land  in  a  foreign  jurisdiction,  is  not  liable  to  the  local  tax.-^^ 

As  a  general  rule  the  situs  of  personal  property  follows  the 
domicile  of  the  owner,  but  not  absolutely,  so  far  as  the  matter 
of  inheritance  taxes  are  concerned.  Tangible  personal  property, 

50  Matter  of  Gihon,  169  X.  Y.  are  to  be  taken  into  consideration 
443.  Costs  of  contest  of  will  al-  as  encumbrances  upon  the  land  in 
lowed.  valuing    such    land    for    inlieritance 

51  In  re  Line  Est.,  155  Penn.  St.  tax  purposes,  in  so  far  as  they  may 
378;  Matter  of  Thrall,  157  N.  Y.  46.  atl'eet    the    actual   mari^et   vahie   of 

52  Matter  of  Kemp,  151  X.  Y.  the  hind  itself.  To  Tax  Commission 
619;  Matter  of  Baudouine,  39  Supp.  of  Ohio,  Columbus.  Atty.  Genl's. 
(N.  Y.)    1121.  op.  1921. 

See  Atty.  Genl's  op.  1920,  p.  1167,  ssa /^  re  Will  of  Hooper,  4  N.  P. 

this  applies  to  non-resident.   §2064,  (N.S.)    186;    6  Dec.  560. 

fixing  value.                        ,  ^*  McCiirdy     vs.     McCurdy,      197 

53  Gleason  and  Otis,  Inheritance,  ISIass.  248.  The  only  ground  upon 
2nd  ed.  377.  which  the  property  can  be  taxed  is 

Encumbrances  for  Inheritance  Tax  that   it   is   within   the   state.     Glea- 

Purposes.      Assessments     for      road  son    and  Otis,   Inheritance,   2nd   ed. 

improvements    which    are   a    charge  308. 

upon  the  property  of  a  decedent,  but  55  Matter   of   Wolcott,    157    N.   Y. 

not  a  personal  liability  of  his  estate,  Supp.  268. 


1689 


SITUS  OF  PROPERTY 


§2030 


will  generally  be  held  liable  to  the  jurisdiction  in  which  it  is 
located -«  and  corporate  stock  in  the  State  in  which  the  com- 
pany was  incorporated." 

In  cases  where  it  is  a  consolidated  company  organized  in  this 
as  well  as  in  other  States,  the  tax  applies  even  though  the  prin- 
cipal officer  is  in  another  State  and  the  stock  is  owned  by  a 
non-resident.'«  As  a  general  rule  it  is  said  that  the  transfer 
of  stock  in  a  foreign  corporation  is  not  taxable  against  a  non- 
resident decedent  merely  because  the  certificates  are  physically 
within  the  State.^^  Bank  deposits  in  banks  are  taxable  at  the 
place  of  deposit.*"'  This  case  holds  that  mortgages  may  be  taxed 
in  the  state  where  the  land  is  located,  and  there  are  instances 
where  it  could  also  be  taxed  at  the  domicile  of  decedent."^ 

As  to  the  situs  of  a  mortgage,  according  to  a  leading  authority 
there  are  three  theories:  It  may  be  held  to  have  a  situs  at 
the  domicile  of  the  owner,  or  where  the  land  is  located,  or  where 
the  mortgage  documents  happen  to  be  found.  It  is  possible 
under  these  conditions,  that  a  mortgage  held  by  a  decedent's 
estate  might  pay  taxes  in  three  States.**"  The  situs  of  bonds 
unless  physically  present,  even  though  issued  by  a  local  corpo- 
ration, have  been  held  to  be  at  the  domicile  of  a  non-resident."^ 
Property  "transiently"  in  the  State  has  not  its  situs  in  that 
State.«* 


56  See  §  2020,  §  5331  G.  C,  Defini- 
tion of  terms. 

57McDougal  vs.  Low,  164  Cal. 
107.  kShaits  in  a  national  bank 
where  the  banlc  is  located.  Atty. 
Genl's   op.    l'J48,   1921. 

^*  Attorney  Creneral's  opinion, 
September   i,  1920,  05  liull.  414. 

&y  Gleason  and  Otis,  Inheritance, 
2nd  ed.  322. 

60 /n  re  Speers,  4  N.  P.  23S;  In 
re  Rogers'  Estate,  149  Mich.  305. 
This  ease  holds  that  mortgages  may 
be  taxed  in  the  state  where  the  land 
is  located. 

61  Mann  vs.  Carter,  74  N.  IT.  345. 

6-  Gleason  and  Otis,  Inheritance, 
2nd  ed.  313.  The  case  of  Matter 
vs.  Fearing,  200  N.  Y.  340  is  au- 
thority for  fixing  the  domicile  of 
the  owner  of  the  mortgage  as  the 
situs,  and  Kinney  vs.  Stevens,  207 
Mass.  36S,  that  the  location  of  the 
land  is  the  proper  i)lacc. 

63  Walker  vs.  People.  171  Pac. 
,(Colo.)  747,  but  see  Bliss  vs.  Hliss, 
'221  Mass.  201,  where  the  contrary 
Beems  to  have  been   held. 


64  See  People  vs.  Griffin,  245  111. 
532.  In  this  case  it  was  held  stocks 
and  bonds  of  corporations  of  the 
state  where  found  of  a  nun-resident 
were  subject  to  the  tax,  but  slocks 
and  bonds  of  foreign  curpuratioiis, 
even  lliough  in  the  stale,  were  not 
subject  to  the  tax.  (Jleason  and 
Otis,  Inheritance,  2nd  ed.  307  to  344 
for  further  discussion.  See  §  2020, 
i;  5331  G.  C,  for  delinition  of 
"W  ithin  the  State." 

In  the  recent  case  of  Anderson  vs. 
Durr,  100  O.  S.  257,  it  is  held  that 
membership  in  N.  V.  stuck  ex- 
change, owned  by  a  resident  of  Oliio, 
is  sul)jcct  to  tax  in  Ohio. 

Tax  on  real  cuttilc  in  thia  state 
etc.  Inheritance  tax  can  not  be 
assessed  in  this  state  on  a  succes- 
sion to  stock  owned  by  a  non-resi- 
dent decedent  in  a  cDrporation. 
organized  and  existing  under  tlie 
laws  of  anotlier  state  but  which 
does  business  and  owns  real  estate 
in  Oliio.  Atty.  Genl'a  op.  (No. 
2433)    1921. 


§2031  INHERITANCE   TAX  1690 

§  2031.  Property  not  subject  to  tax.  §  5334.  The  succession 
to  any  property  passing  to  or  for  the  use  of  the  state  of  Ohio, 
or  to  or  for  the  use  of  a  municipal  corporation  or  other  polit- 
ical subdivision  thereof  for  exclusively  public  purposes, 

Public  institutions.  Or  public  institutions  of  learning,  or 
to  or  for  the  use  of  an  institution  for  purposes  only  of  public 
charity,  carried  on  in  whole  or  in  substantial  part  within  this 
state,  shall  not  be  subject  to  the  provisions  of  the  preceding  sec- 
tions of  this  subdivision  of  this  chapter.  Successions  passing 
to  other  persons  shall  be  subject  to  the  provisions  of  said  sections 
to  the  extent  only  of  the  value  of  the  property  transferred  above 
the  following  exemptions: 

To  wife  or  child.  1.  When  the  property  passes  to  or  for 
the  use  of  the  wife  or  a  child  of  the  decedent  who  is  a  minor 
at  the  death  of  the  decedent,  the  exemption  shall  be  five  thousand 
dollars. 

To  father,  etc.  2.  When  the  property  passes  to  or  for  the 
use  of  the  father,  mother,  husband,  adult  child  or  other  lineal 
descendant  of  the  decedent,  or  an  adopted  child,  or  person  recog- 
nized by  the  decedent  as  an  adopted  child  and  made  a  legal  heir 
under  the  provisions  of  a  statute  of  this  or  any  other  state  or 
country,  or  the  lineal  descendants  thereof,  or  a  lineal  descendant 
of  an  adopted  child,  the  exemption  shall  be  three  thousand  five 
hundred  dollars. 

For  brother,  etc.  3.  When  the  property  passes  to  or  for 
the  use  of  a  brother,  or  sister,  niece,  nephew,  the  wife  or  widow 
of  a  son,  the  husband  of  a  daughter  of  the  decedent,  or  to  any 
child  to  whom  the  decedent,  for  not  less  than  ten  years  prior  to 
the  succession  stood  in  the  mutually  acknowledged  relation  of  a 
parent,  the  exemption  shall  be  five  hundred  dollars.  [108  v. 
1193.1  «^      • 


§  2032.     Exemption :  Public  charities,  etc. 

The  first  of  the  enumerated  exemptions  is  where  property 
passes  to  the  State  of  Ohio. 

Second,  when  it  passes  to  any  municipal  corporation. 

Third,  when  it  passes  to  a  political  sub-division  of  the  State  to 
be  used  exclusively  for  public  purposes. 

Fourth,  public  institutions  of  learning. 

Fifth,  an  institution  for  purpases  only  of  public  charity,  car- 
ried on  in  whole  or  substantial  part  in  the  State. 

"Brother"    and    "sister"    includes 
65  See    §221,    N.    Y.    inheritance      half  brother  and  sister.  Atty.  Gcenl's 
tax,      for      exemptions,      etc.      Also      op.  1920,  p.  177,  64  Bull.  124. 
§  2025,  §  5331-1  G.  C,  widows  year's 
allowance. 


I 


1691 


EXEMPTION 


§2032 


The  first,  second  and  third  will  present  no  difficulty  in  appli- 
cation; the  fourth  and  fifth,  may.  In  the  first  place  we  are 
confronted  by  a  diversity  of  opinion  as  to  whether  the  statute 
should  be  liberally  construed  in  favor  of  the  exemption,  or 
strictly  against  it,  the  general  rule  being  in  favor  of  a  strict 
construction,  but  it  has  been  said  the  trend  of  recent  authorities 
is  for  a  liberal  construction.^^ 

The  language  should  not  be  extended  beyond  the  clear  import 
of  the  words  used  to  make  property  of  a  non-resident  subject 
to  the  tax,^®^  and  the  latter  is  the  rule  the  writer  thinks  will 
prevail  in  Ohio.  If  a  strict  rule  were  adopted  perhaps  a  great 
number  of  institutions  of  learning  might  not  come  within  the 
term  "Public  Institutions  of  Learning,"  which  really  ought  to 
be  exempt,  and  perhaps  no  religious  organization  would  be  "an 
institution  for  purposes  only  of  public  charity."*"^'*  The  language 


66  Gleason  and  Otis,  Inheritance, 
2nd  Ed.  55;  Matter  of  Rockafeller 
Foundation,  165  IST.  Y.  Supp.  154; 
Parkhurst  vs.  Burrill,  220  Mass. 
196. 

66a  People  vs.  Griffin,  245  111.  532. 

66b  Since  tlie  text  was  written  I 
have  had  placed  in  my  possession 
an  unreported  decision  of  the  Court 
of  Appeals  of  the  Fourth  District. 
This  was  made  on  a  like  provision 
under  the  collateral  inheritance  tax, 
and  holds  that  a  bequest  to  a  church 
is  not  exempt. 

Opinion. 

In  the  matter  of  the  estate  of 
Jane  Poe, 

Error  to  the  Court  of  Common 
Pleas  of  Ross  County,  Ohio. 

Merriman,  J.:  The  sole  question 
presented  in  this  matter  is:  Are 
bequests  to  churches  subject  to  the 
collateral  inheritance  tax? 

Section  5331  G.  C,  provides  for 
the  tax,  and  §  5332  makes  the  fol- 
lowing exemptions: 

"The  provisions  of  the  next  pre- 


ceding section  shall  not  apply  to 
property,  or  interests  in  property, 
transmitted  to  the  State  of  Ohio 
under  the  intestate  laws  of  the 
state,  or  embraced  in  a  bequest, 
devise,  transfer  or  conveyance  to, 
or  for  the  use  of  the  State  of  Ohio, 
or  to  or  for  the  use  of  a  municipal 
corporation  or  other  political  sub- 
division thereof  for  exclusively  pub- 
lic purposes,  or  public  institutions 
of  learning,  or  to  or  for  the  use  of 
an  institution  in  this  state  for  pur- 
pose only  of  public  charity  or  other 
exclusively  public  purposes.  The 
property,  or  interests  in  property 
so  transmitted  or  embraced  in  such 
devise,  bequest,  transfer  or  convey- 
ance, shall  be  exempt  from  all  in- 
heritance and  other  taxes  while  used 
exclusively  for  any  of  such  pur- 
poses." 

Exemptions  from  taxation  are  not 
favored;  the  general  rule  being,  that 
exemptions  will  never  be  presumed 
or  implied.  There  must  be  some 
express  grant  of  immunity.  There- 
fore, the  statute  must  be  strictly 
construed. 


§2032 


INHERITANCE   TAX 


1691a 


first  appears  in  the  act  of  1900.  Before  that'  there  were  no 
specific  exemptions,  and  it  is  difficult  to  say  just  what  the 
legislature  had  in  mind  should  be  included  in  the  language  used. 


No  doubt  the  Universalist  Cliurch 
does  mucli  cliarity  work;  but  its 
dispensation  of  charity  is  a  mere 
incident  to  its  real  mission,  wliich 
is  teaching  and  preaching  the 
Christian  religion. 

In  Watteison  v.  EalUday,  77  0. 
S.  178,  it  is  said: 

"  *  *  *  the  Catholic  Church  is 
not  an  institution  of  purely  public 
charity.  It  teaches  and  practices 
charity;  but  that  is  not  its  whole 
mission  in  the  world.  Its  character 
is  defined  by  the  tliird  and  fourth 
findings  made  by  the  Circuit  Court. 
There  it  is  said:  'The  Eoman 
Catholic  Church  is  an  institution 
which  has  for  its  chief  and  primary 
object  and  purpose  the  teaching  and 
extending  of  its  recognized  form  of 
religious  belief  and  worship  into  all 
parts  of  the  world,  and  was  founded 
to  continue  the  work  of  Christ  on 
earth,  and  to  teach,  govern,  sanctify 
and  save  all  men.' 

"  'Charity  is  included  in  its  teach- 
ings, purpo?.es  and  practices,  as  sub- 
ordinate to  its  spiritual  teaching 
and  purpose,  but  is  an  essential  part 
of  its  general  scheme  of  church 
work  *  *  *  .' 

"So  it  seems  that,  instead  of 
*  *  *  being  an  'institution  of  purely 
public  charity,'  it  is  a  religious  in- 
stitution primarily,  and  its  charity 
is  subordinate  to  its  spiritual 
teachings  *  *  *  ." 

While  the  Universalist  Church 
differs  from  the  Catholic  in  its  creed 
and  general  management,  yet  the 
object  for  which  it  was  founded  is 
the  same — the  teaching  of  the 
Christian  religion. 


It  can  not  be  said,  therefore,  that 
the  Universalist  Church  is  an  in- 
stitution for  the  purpose  only  of 
charity;  neither  can  it  be  said  to  be 
an  institution  for  exclusively  pub- 
lic purposes,  though  undoubtedly 
the  general  public  would  be  welcome, 
yet  the  church  was  formed  for  the 
purpose  of  advancing  certain  re- 
ligious ideas  and  the  property  of 
tlie  church  is  used  largely  for  the 
benefit  of  its  members. 

In  giving  the  legislature  power 
to  exempt  from  taxation  (-Art.  12, 
§  2),  the  makers  of  the  constitution 
expressly  referred  to  "houses  used 
exclusively  for  public  worship"  in 
contradiction  to  "institutions  of 
purely  public  charity  and  public 
property  used  exclusively  for  any 
public  purpose."  The  legislature, 
in  exacting  tlie  exemption  law,  also 
used  the  words  "houses  used  ex- 
clusively for  public  worship"  in 
contradiction  to  "houses  or  halls 
used  exclusively  for  public  pur- 
poses." It  would  thus  seem  that 
the  makers  of  the  constitution,  as 
well  as  the  legislature,  intended  to 
distinguish  between  churcli  property 
and  property  used  for  exclusively 
public  purposes. 

It  is  our  opinion  that  the 
Universalist  Church  is  not  an  insti- 
tution "for  the  purpose  only  of 
public  charity  or  other  exclusively 
public  purpose,"  and  that  the  be- 
quest thereto  is  subject  to  the  col- 
lateral   inheritance   tax. 

A  bequest  to  the  Bishop  of  a 
Catholic  diocese  to  educate  candi- 
dates for  priesthood,  and  a  bequest 
for  masses  for  repose  of  testator's 
soul  are  subject  to  tax.  Atty. 
Genl's  op.  1920,  p.  388. 


1691b  EXEMPTIONS  §  2032 

While  more  than  twenty  years  have  elapsed  we  have  no  Supreme 
Court  reported  decision  giving  direct  construction  to  these  words. 
Relying  largely  on  what  might  properly  be  implied  in  the 
holdings  of  the  Supreme  Court  of  our  State,®^  the  inferior  courts 
have  followed  the  rule  fixed  by  statute,  exempting  property 
generally  from  taxation.  The  inheritance  tax  statutes  in  some 
States  prescribe  that  this  rule  shall  be  followed,*'^  In  the 
Humphreys  case,""  the  testator,  a  resident  of  Cincinnati,  made 
the  following  bequests : 

1.  ''To  the  American  Bible  Society  the  sum  of  Five  Thousand 
Dollars." 

2.  "To  the  American  Tract  Society  the  sum  of  Five  Thousand 
Dollars." 

3.  "To  the  American  Sunday  School  Union  the  sum  of  Two 
Thousand  Dollars." 

4.  "To  the  Board  of  Foreign  Missions  of  the  Presbyterian 
Church  in  the  United  States  the  sum  of  Ten  Thousand  Dollars." 

5.  "To  the  Board  of  Home  Missions  of  the  Presbyterian 
Church  in  the  United  States  the  sum  of  Ten  Thousand  Dollars." 

5.  "To  the  Board  of  Church  Erection  Funds  of  the  Presby- 
terian Church  in  the  United  States  the  sum  of  Five  Thousand 
Dollars." 

7.  "To  the  Presbyterian  Committee  of  Missions  for  Freedmen 
in  the  United  States  the  sum  of  Five  Thousand  Dollars." 

8.  "To  the  Woman's  Foreign  Missionary  Society  of  the  Pres- 
byterian Church  of  the  United  States  the  sum  of  Five  Thousand 
Dollars." 

9.  "To  the  Woman's  Home  Missionary  Society  of  the  Pres- 
byterian Church  of  the  United  States  the  sum  of  Five  Thousand 
Dollars." 

10.  "To  the  Widow's  Home  on  Walnut  Hills,  Cincinnati, 
Ohio,  One  Thousand  Dollars." 

11.  "To  the  Ohio  Hospital  for  Women  and  Children,  One 
Thousand  Dollars." 

«7  Humphreys  vs.  State,  70  O.  S.  ation  of  care  to  be  furnished  to  13. 

67,  the  invalid  gislcr  of  A.  during  tho 

cs  Massachusetts,     Rhode     Island  rcmaindi  r  of  her  life.     IlrUl.w  (ax- 

and  California.  "hie    succession    <o    the    sanitorium 

09  70  0.  S.  07.  company.     No.     1!>71,    Atty.    d'cnl's 

A.  bequeaths  to  a  sanitorium  com-  op.  1921. 
"j)any  $1,000  per  annum  in  consider- 


§  2032  INHERITANCE   TAX  1692 

12.  "To  the  Sunday  School  of  the  Fifth  Presbyterian  Church 
in  Cincinnati,  Ohio,  the  sum  of  Three  Hundred  Dollars  to  pur- 
chase books  for  its  Sunday  School  Library." 

13.  "I  give  and  devise  my  oil  paintings  and  engravings  to 

,  should  they  desire  to  have  them,  and  if  they  do 

not  desire  to  have  them, to  the  "Women's  Christian 

Home  of  Cincinnati,  and  the  Young  Men's  Christian  Associa- 
tion of  Cincinnati,  share  and  share  alike." 

14."  All  the  rest  and  residue  to  the  Board  of  Foreign  Missions ; 
to  the  "Woman's  Foreign  Missionary  Society,  and  the  Board  of 
Home  Missions,  all  of  the  Presbyterian  Church  of  the  United 
States  to  be  divided  between  the  aforesaid  Societies  and  Boards, 
share  and  share  alike." 

The  Probate  Court  held  that  all  these  bequests  were  exempt. 
The  case  was  appealed  to  the  Common  Pleas  Court,  and  the 
question  that  was  raised,  there,  was  not  that  the  bequests  did 
not  come  within  the  terms  "public  institutions  of  learning*  or 
to  or  for  the  use  of  an  institution  for  purposes  only  of  public 
charity,"  but  that  the  devisee  institutions  were  not  "carried  on 
in  whole  or  in  substantial  part  within  the  State,"  Judge  Hollis- 
ter  of  the  Common  Pleas,  saying :  ''^ 

"It  is  conceded  by  counsel  for  the  state  that  these  bequests 
are  for  the  purpose  of  purely  public  charities,  but  it  is  claimed 
that  none  of  the  Boards  of  the  Presbyterian  Church,  named  in 
Mrs.  Brown's  will,  are  institutions  in  this  state,  within  the  mean- 
ing of  the  law." 

Further  along, 

**The  Presbyterian  Church  is  undoubtedly  an  'institution'  as 
the  word  is  usually  understood." 

After  naming  a  number  of  authorities,  the  judge  concludes : 

"From  these  cases  and  from  the  language  of  the  statute  strictly 
construed,  the  deduction  may  be  fairly  made  that  the  object  of 
the  law  .is  to  exempt  from  taxation  charitable  bequests  and 
devises,  when  made  to  permanent  organizations  in  this  state. 

'0  In  re  Estate  of  Brown,  13  Dec.   169. 


1693  EXEMPTIONS  §  2032 

corporate  or  otherwise,  capable  of  holding  property,  and  also  to 
exempt  charitable  bequests  or  devises  when  the  property  so 
devised  or  bequeathed  is  actually  located  in  this  state  and  used 
here  permanently  for  the  charitable  purpose  for  which  it  was 
given. ' ' 

In  the  opinion  in  the  ease  of  Gerke  vs.  Purcell,  25  0.  S.  229, 
where  it  was  decided  that  property  held  by  Archbishop  Purcell 
for  the  uses  of  the  parochial  schools  in  Cincinnati,  of  the  Catholic 
Church,  was  exempt  from  taxation  as  a  purely  public  charity, 
it  is  said: 

"A  college  consisting  of  a  private  corporation  and  having  a 
private  foundation,  is  devoted  to  a  public  use,  yet  the  use  is 
none  the  less  public  because  tuition  is  charged."'^ 

The  Brown  case  was  taken  to  the  Circuit  Court.'^  Here  it 
is  said: 

''The  bequests  are  to  institutions  organized  for  purely  public 
charities,  but  in  our  opinion  are  not  institutions  in  the  state  of 
Ohio." 

The  case  next  appears  in  the  Supreme  Court.^^  It  is  not  clear 
from  the  case  as  reported  whether  all  the  bequests  mentioned 
in  the  will  were  taken  up  or  not,  but  the  records  show  that  all 
the  bequests  were  not  included.^* 

But  it  is  clear  that  the  question  made  in  the  Supreme  Court 
was  not  that  the  bequests  were  to  an  institution  of  purely  public 
charity  or  other  exclusive  public  purpose,  but  that  they  were  not 
institutions  in  the  State  of  Ohio,  and  it  can  be  fairly  implied 
that  if  the  institutions  receiving  the  bequests  had  been  within 
the  State,  the  legacies  would  have  been  exempt. 

.71  Gerke  vs.  Purcell,  25  0.  S.  241.  licritance  tax  is  not  payable  upon 

72  Humphreys  vs.  State,  1  C.  C.  the  legacies  to  the  following  legatees, 
(N.S.)    1;  24  C.  C.  238.  viz.:      "American     Bible     Society; 

73  Humphreys  vs.  State,  70  0.  S.  American  Tract  Society;  American 
67.  Presbyterian     Church;      Board     of 

74  The  records  of  the  Common  Home  IMissions  of  the  Presbyterian 
Pleas  Court  of  Hamilton  County,  Church;  Board  of  Church  Erection 
Xo.  122847,  sliow  tlie  prosecuting  Funds  of  tho  Presbyterian  Chnreh; 
attorney  gives  notice  from  so  much  The  Woman's  Homo  Missionary 
of  such  order  as   finds   that  an   in-  Society  of  said  riiurch." 


§2032 


INHERITANCE   TAX 


1694 


We  may  then  fairly  come  to  the  conclusion  that  as  a  general 
rule  where  the  courts  have  not  otherwise  decided  that  if  legacies 
are  to  institutions  within  this  State,  which  are  exempt  from 
taxation  under  the  general  law,  or  our  constitution,  they  will 
be  exempt  under  the  inheritance  lawsJ^ 


The  constitution  provides  that 

"Burying  grounds,  public  school  houses,  houses  used  exclu- 
sively for  public  worship,  institutions  used  exclusively  for  char- 
itable purposes,  public  property  used  exclusively  for  any  public 
purpose     *     *     *     may  by  general  laws  be  exempted."^" 

In   other  States  the   following  have  been  held   as  exempt: 

Y.  M.  C.  A.;"  W.  C.  T.  U.;^«  New  York  Metropolitan 
Museum ;  ^^^  an  art  gallery ;  ^^  a  library ;  ^°  a  university  ;  ^'^  a 
drinking  fountain  for  horses ;  ^-  hospitals ;  ^^  found  a  home  for 
the  aged ;  ^^  public  ot!icers  as  trustees  for  charitable  purposes ;  *** 
a  Masonic  lodge ;  ^°  a  village  in  trust  for  indigent  women ;  *^ 


7  5  Our  statutes  exempt:  Burial 
lots  and  grounds,  §  5350,  §  10093 
G.  C;  Fire  engines,  §  10101  G.  C.; 
Fraternal  benefit  societies,  §  5365-1 
G.  C;  G.  A.  R.  posts,  §  5364  G.  C.; 
Historic  buildings,  §5363  G.  C; 
Indiana  meeting  of  Friends,  §  5365 
G.  C.;  Law  library  assns.,  §  3055 
G.  C. ;  Masons,  Odd  Fellows,  Knights 
of  Pythias,  §5364  G.  C;  Memorial 
assns.,  §3410-7  G.  C;  Municipal 
university,  §7915-1  G..  C;  Monu- 
ment sites  of  distinguished  persons, 
§5361  G.  C;  Ohio  university  lands, 
§§7433-7435  G.  C;  Pre-historic 
earthworks,  §5363  G.  C;  Religious 
benevolent  associations,  §  5364  G. 
C.;  Secret  benevolent  associations, 
§  5364  G.  C. ;  Soldiers  and  sailors 
township  memorial  assns.,  §.3410-7 
G.  C,;  Vault  companies'  property, 
§  10192  G.  C.;  Womens  homes, 
§5364  G.  C;  Armory  buildings, 
§5354  G.  C.;  Grave  yards,  §5350 
G.  C;  Public  colleges,  §  5349  G.  C; 
Churches,  §  5349  G.  C.;  Monumental 
buildings,  §  5359  G.  C. 

The   fact  that   U.    S.   bonds   are 


exempt  from  taxation  will  not  ex- 
empt them  from  an  inheritance  tax. 
Plummer  vs.  Coler,  178  U.  S.  117; 
44  L.   Ed.   1001. 

A  bequest  to  trustees  for  purpose 
of  founding  an  industrial  school 
open  to  all,  exempt.  Atty.  Genl's 
op.  1920,  p.  1233.  So  is  a  bequest  to 
a  public  hospital.  Id.,  p.  3S3.  So 
also  may  a  bequest  to  trustees  for 
establishing  a  children's  home.  Id., 
p.  1048.  Also  a  bequest  to  a  re- 
ligious order  for  relief  of  the  poor. 
Id.,  p.  388. 

76  Art.  XII,  §  2.  This  provision 
is  broader  than  that  m  the  consti- 
tution of  1851. 

"Matter  of  Moses,  123  N.  Y. 
Supp.  443;  Little  vs.  Newburyport, 
210  Mass.  414. 

78  Matter  of  Field,  130  N.  Y. 
Supp.  195. 

78a  Matter  of  Mergantine,  195  N. 
Y.  572. 

79  Matter  of  Arnot,  203  N.  Y.  627; 
145  N.  Y.  App.  Div.  708. 

80  Essex  vs.  Broolcs,  164  Mass.  79. 

81  Alfred  Universi  '  vs.  Hancock, 
69  N.  J.  Eq.  470. 

82  Matter  of  Graves,  242  111.  212. 

83  Matter  of  Higgins,  106  Supp. 
(N.  Y.)   465. 

84  Matter  of  Graves,  171  N".  Y.  40. 

85  In  re  Spangler,  148  la.  333. 

80  Morrow  vs.  Smith,  145  la.  514. 
87  Matter  of  Albright,   156  N.  Y. 
Supp.  821. 


1695  INSTITUTION   IN   THE  STATE  §  2033 

Methodist  church ;  *^  Congregational  and  Baptist  churches ;  ®* 
first  Universalist  Society ;  "'^  American  Baptist  Foreign  Mission- 
ary Society ;  **'  a  bishop  ; "-  property  of  the  United  States ;  ^^ 
bequest  to  priest  for  masses  to  be  said  is  not  exempt.^* 

§  2033.    Institution  in  the  state. 

What  will  constitute  an  institution  in  the  State  was  the  ques- 
tion directly  involved  in  the  Humphrey's  case.""'  In  this  case 
none  of  the  bequests  were  to  bodies  incorporated  in  this  State ; 
some  were  chartered  under  the  laws  of  the  State  of  New  York 
and  others  under  the  laws  of  Pennsylvania.  If  the  institution 
is  incorporated,  then  the  home  of  that  institution  is  the  State  of 
its  incorporation,  and  even  if  it  is  an  auxiliary  sociely  in  this 
State,  or  if  it  must  account  to  a  principal  incorporated  in  an- 
other State,  it  is  not  an  institution  in  this  State,  even  though 
the  work  is  done  in  this  State. 

If  the  institution  is  unincorporated,  then  the  place  where  it 
has  its  principal  place  of  business  would  determine  whether  it 
is  an  institution  in  this  State  or  not.  If  it  has  its  principal  place 
of  business  in  this  State,  or  if  all  the  bequest  is  to  be  used  for 
the  benefit  of  the  people  of  this  State,  then  it  would  be  con- 
sidered an  inheritance  in  this  State  and  be  exempt."^ 

"It  is  the  policy  of  society  to  encourage  benevolence  and 
charity ;  but  it  is  not  the.  proper  function  of  a  state  to  go  out- 
side of  its  own  limits  and  devote  its  resources  to  support  the 
cause  of  religion,  education  or  missions  for  the  benefit  of  man- 
kind at  large.  "^^ 

In  the  Humphreys-Brown  case  it  appeared  that 

"the  bequests  excepted  to  were  to  several  of  the  Boards  of  tlie 
Presbyterian  Church ;  that  these  Boards  are  incorporated  under 
the  supervision  and  control  of  the  General  As.srmbly  of  tliat 
church.     The  General  Assembly  is  a  representative  body  coni- 

88  Carter  vs.  Whitcomb,  74  N.  II.  G7.  Tlie  statute  of  the  inheritance 
482.  tax  is  a  little  broailor  than  the  col- 

89  Carter  vs.  Eaton,  75  X.  IT.  .'560.  lateral   inlieritancc  tax  in  that  tlie 

90  First  University  Society  vs.  institution  will  be  exempt  "if  a 
Ecdsford,  185  Mass.  185.  substantial    part    is    c.irried    on    in 

91  Matter    of    Lyon,    121    N.    Y.  (his  state." 

Supp.  1004.  "G  .'^ee  In  re  Bivina,  1.3  Dec.  172. 

92  Matter  of  Palmer,  5:?  N.  Y.  97  Quoted  from  IMatter  of  Estate 
Supp.  847.                                                     of  Prime,    13(1   N.  \.   347   in   llum. 

93  38  Eull.  281.     §5351  G.  C.  jjlireys  vs.   .^tate,  70  0.   S.   82.     Pee 

94  38  Pull.  281.  8  1^»  Situs  of  property. 

95  Humphreys  vs.  Ptate,  70  O.  8. 


§  2034  INHERITANCE  TAX  1696 

posed  of  delegates  from  Presbyterian  churches  in  all  parts  of 
the  United  States,  and  meets  annually.  Generally  speaking,  the 
moneys  disbursed  by  the  Boards  in  carrying  out  the  charitable 
work  of  the  church  is  spent  partly  in  Ohio,  but  the  major  part 
is  used  elsewhere.  For  instance,  the  Board  of  Foreign  Missions 
of  the  Presbyterian  Church  maintains  two  Homes  for  educa- 
tion in  Ohio,  of  the  children  of  foreign  missionaries ;  the  Board 
of  Church  Erection  Fund  has  erected  churches  in  the  state  at 
a  cost  of  $240,000;  the  Board  of  Home  Missions  assists  in  sus- 
taining the  preaching  of  the  gospel  in  churches  and  congrega- 
tions in  Ohio.  The  membership  of  that  church  in  this  state  is 
about  1/11  of  the  entire  membership  in  the  United  States  and 
contributes  largely  to  the  funds  of  the  church.  "^^ 

§2034.     Exemption,  personal. 

The  first  personal  exemption  is  that  to  a  wife,  or  a  minor 
child  of  the  decedent ;  wife  here  means  widow,  and  is  the  person 
who  was  legally  married  to  decedent  at  the  time  of  his  death.®^* 
There  is  more  difficulty  as  to  what  may  be  included  in  the  word 
child;  it  is  decided  that  it  does  not  include  stepchildren.^'' 

From  the  fact  that  the  next  exemption  uses  both  the  word 
child  and  adopted  child,  throws  some  doubt  on  whether  the 
word  cJiild  here  includes  an  adopted  child.  But  there  is  no 
good  reason  why  a  person  who  occupies  the  position  of  an  adopted 
child  should  be  entitled  to  the  exemption  under  the  second 
clause,  and  if  a  minor,  excluded  from  the  first ;  and  I  am  there- 
fore of  the  opinion  that  a  minor  adopted  child  is  entitled  to 
-  the  exemption.  Unless  an  illegitimate  child  would,  under  our 
law,  be  entitled  to  inherit  from  the  decedent,  such  child  would 
not  be  entitled  to  the  exemption.  The  statute  specifically  exempts 
the  widow's  year's  allowance  to  the  extent  of  $3,000.  This  is 
in  addition  to  the  exemption  here  allowed.^ 

The  second  exemption  is  father,  mother,  husband,  adult  child, 
adopted  child,  or  a  person  recognized  as  an  adopted  child  and 
made  a  legal  heir  under  the  pro\dsions  of  a  statute,  in  this 
State  or  any  other  country.  This  latter  clause  evidently  refers 
to  instances  where  a  person  is  declared  heir  under  Sec.  8598, 
G.  C.  (§1902),  and  similar  statutes.  It  would  probably  not 
include  recognition  as  child  in  any  other  manner.  As  a  general 
rule  it  may  be  said  that  adoption  must  always  be  pursuant  to 

98  Humphreys  vs.   State,   1   C.   C.  Value    of    the    right   to    remain    in 

(N.S.)   2;  24  C.  C.  238.  mansion  house  not  deducted.    Id.,  p. 

!>8a  The  Atty.  Genl.  has  held  that  1044.     Dower  and  curtesy  deducted. 

if  a  wife  takes  under  the  will,  she  Id.,  p.  961. 

waives  her  dower  right  and  is  not  ^^  In  re  Hooper,  4  N.   P.   186;    6 

entitled  to  a  deduction  of  its  value  Dec.  560. 

from   what   she   receives   under   the  i  §  5332-1  G.  C,  §  2025. 
will.     Atty.  Genl's  op.  1920,  p.  834. 


1697 


RATES  OF  TAX  ON  PROPERTY  §  2035 


some  statute,  and  in  tli6  absence  therefrom,  a  so-called  adopted 
child  is  a  stranger.-  Except  as  it  might  come  under  the  3rd 
paragraph  of  Sec.  5334,  G.  C.  (§2031).  It  has  been  held  that 
children  of  an  illegitimate  daughter  are  not  lineal  descendants.^ 
Whether  this  rule  would  be  followed  if  they  were  capable  of 
.  inheriting  from  their  mother,  I  think  is  questionable. 

The  third  provision  is  when  it  passes  to  a  brother,  sister,  niece, 
the  wife  or  widow  of  a  son.^  But  a  divorced  wife  is  not  a  wife.^ 
Brother  and  sister  would  probably  include  those  of  the  half 
blood,  the  husband  of  a  daughter  of  decedent,  not  so  in  the 
absence  of  statutes,*'  or  to  any  child  to  whom  the  decedent,  for 
not  less  than  ten  years  prior  to  the  succession,  stood  in  the 
mutually  acknowledged  relation  of  parent.  This  language  seems 
to  have  been  taken  from  the  New  York  law.'^  The  fact  that  the 
decedent  had  thought  enough  of  the  parties  to  make  them  bene- 
ficiaries, would  not  be  without  weight  in  such  cases. 

§  2035.  Rates  of  tax  on  property.  §  5335.  The  rate??  at 
which  such  tax  is  levied  are  as  follows: 

1.  On  successions  passing  to  any  person  mentioned  in  the  first 
and  second  sub-paragraphs  of  the  preceding  section: 

(a)  One  per  centum  on  the  excess  of  the  value  of  the  prop- 
erty over  the  exemptions  up  to  and  including  the  sum  of  twenty- 
five  thousand  dollars. 

(b)  Two  per  centum  on  the  next  seventy-five  thousand  dollars, 
or  any  part  thereof; 

(c)  Three  per  centum  on  the  next  one  hundred  thousand  dol- 
lars, or  any  part  thereof; 

(d)  Four  per  centum  on  the  amount  representing  the  balance 
of  the  value  of  each  individual  succession. 

2.  On  successions  passing  to  any  person  mentioned  in  the 
third  sub-paragraph  of  the  preceding  section, 

(a)  Five  per  centum  on  the  excess  of  the  value  of  the  prop- 
erty over  the  exemptions  up  to  and  including  twenty-five  thou- 
sand dollars; 

(b)  Six  per  centum  on  the  next  seventy-five  thousand  dollars, 
or  any  part  thereof; 

2  See  Commonwealth  vs.  Nan-  relation  exists  for  more  than  ten 
crede,  32  Pa.  St.  289.  yoar — they  come  within   (his   provi- 

3  Matter  of  Beach,  154  N.  Y.  252.  sion.    Atty.  (k-nl'H  op.  1!V20,  p.  1155. 

4  It  has  been  held  that  a  widow  7  See  (ileason  ami  (Mia,  Jiiherit- 
of  an  adopted  son  is  a  widow  of  a  anco,  2nd  od.  227,  and  it  is  said 
son.  Matter  of  Duryea,  112  N.  these  statutes  have  ocea.sionc>d  niudi 
Supp.   (N.  Y.)    611.  iitifjation.      These   avithors   pivc  the 

5  Matter  of  Merritt,  140  Supp.  following  cases,  and  excerpts  tliere- 
(N.  Y.)    13.  from  on  tlie  matter.    Matter  of  Hol- 

0  Matter  of  Edman,  128  Fed.  815.  ton,    210    N.     Y.    (518;     Matter    of 

«a  Where  a  boy  and  girl  were  tak-  I^itler,     12     (N.     Y.)      Supp.     201; 

en  into  the  home  of  their  aunt  and  Matter  of  Nichol,  :W  Supp.   (X.  Y.) 

remain   with   her   and    her    husband  538;    Matter    of    Capron,    10    Supp. 

during    their    entire    childhood— re-  (N.  Y.)    23;   Matter  of  Wheel.'r,  22 

ceiving  care  and  education,  and  re-  Supp.     (N.    Y.)      1075;     Matter    of 

turn   service   and  obedience,   if   the  Moulton,  33  Supp.   (N.  Y.)  578. 


§2036 


INHERITANCE   TAX 


1698 


(c)  Seven  per  centum  on  the  next  one  hundred  thousand  dol- 
lars, or  any  part  thereof; 

(d)  Eight  per  centum  on  the  amount  representing  the  balance 
of  the  value  of  each  individual  succession. 

3.  On  all  successions  passing  to  persons  other  than  those  here- 
inbefore mentioned,  or  to  institutions  or  corporations: 

(a)  Seven  per  centum  on  the  value  of  the  property  up  to  and 
including  the  sum  of  twenty-five  thousand  dollars; 

(b)  Eight  per  centum  on  the  next  seventy-five  thousand  dol- 
lars, or  any  part  thereof; 

(c)  Nine  per  centum  on  the  next  one  hundred  thousand  dol- 
lars, or  any  part  thereof; 

(d)  Ten  per  centum  on  the  amount  representing  the  balance 
of  the  value  of  each  individual  succession.      [108  v.  565.]^ 


§  2036.     Schedule  of  rates  and  exemptions  under  the  Ohio 
Inheritance  Tax  Law. 

Issued  by  the  Tax  Commission  of  Ohio 


SUCCESSORS 

Exemption 

On  $25,C0J 
or  part 
thereof 
over  the 

exemption 

On  next 

$75,OGO 
or  part 
thereof 

On  next 

$100,0:0 
or  part 
thereof 

On  the 
balance 

1st   Class: 

To  wiie  or  minor  child. 

$5,000 

1% 

2% 

3% 

4% 

2nd    Class: 

To    father,    mother,    husl^and, 
adult    child,    adopted    child    or 
person       recognized       as       an 
adopted     child     and     made     a 
legal  heir  under  the  provisions 
of    a    statute    of    this    or    any 
other  state  or  country,  or  the 
lineal     descendants    thereof,     or 
a      lineal      descendant      of      an 
adopted   child. 

$3,S0C 

1% 

2% 

3% 

4% 

3rd  Class: 

To      brother,      sister,      niece, 
nephew,   wife    or   widow   of   a 
son,  husband  of  a  daughter  of 
the      decedent,      or      any      child 
to    whom     the    decedent,    for 
not  less   than   ten  years   prior 
to  the  succession  stood  in  the 
mutual  acknowledged  relation 
relation    of   a  parent. 

$500 

5% 

6% 

7% 

8% 

4th  Class: 

To  all  persons,  institutions,  or 
corporations  not  named  in  the 
1st,  2nd  and  3rd  classes  above. 

0 

7% 

8% 

9% 

10% 

8  See     §  221a,    N.    Y.    inheritance 
tax    for    rates    fixed    in    the    state. 


Glcason    and    Otis    on    Inheritance 
taxation,  2nd  ed.  738. 


1699 


TAX  WHEK  DUE  AXD  PAYABLE 


^2037 


The  following  is  an  illustration  of  tlie  amount  of  tax  due  upon 
a  succession,  the  total  value  of  which  is  $250,000,  as  to  each 
class  of  successors: 


CLASS 

Exemp- 
tion 

"^n  $25,000  rr 
parf  thereof 

ov"r  the 
exemption 

On  next 
$75,0!_0  or 
part  therkof 

On  next 

$100,0C0or 
part  thereof 

On  the  balance 

Total  tax 

Rate 

Amount 
of  tax 

Rate 

Amount 
of  tax 

Rate 

Amount 
of  tax 

Am't  of 
balanc 

Rate 

Amount 
of  tax 

1st  Class 

"5,000 

1% 

?"250 

2%  $1,500 

2% '^3,000 

$45,000 

47c'«;i.<?p0     $6,550 

2nd  Class 

$3,500 

H 

J250 

2%  $1,500 

3%  $3,000 

$46,500 

4%'$1,860 

$6,610 

3rd  Class 

$550 

5% 

$1,250 

6%  $4,500 

7%  <^7,000 

$49,500     87c!$3,960 

$16,710 

Ath  Class 

0 

7% 

31,750 

8%b6,000  9%l$9,000 

$50,000 

10% 

:;  5,000 

$21,750 

§  2037.  Tax  as  when  due  and  payable.  §  5336.  Taxes  levied 
under  this  subdivision  of  this  chapter  shall  be  due  and  payable 
at  the  time  of  the  succession,  except  as  herein  otherwise  pro- 
vided, but  in  no  case  prior  to  the  death  of  the  decedent. 

When  can  not  be  determined.  Taxes  upon  the  succession  to 
any  estate  or  property,  or  interest  therein  limited,  dependent  or 
determinable  upon  the  happening  of  any  contingency  or  future 
event,  and  not  vested  at  the  death  of  the  decedent,  by  reason 
of  which  the  actual  market  value  thereof  can  not  be  ascertained 
at  the  time  of  such  death,  as  provided  in  this  subdivision  of  this 
chapter,  shall  accrue  and  become  due  and  payable  when  the 
persons  or  corporations  then  beneficially  entitled  tliereto  shall 
come  into  actual  possession  or  enjoyment  thereof. 

Taxes  a  lien.  Such  taxes  shall  be  and  remain  a  lieu  upon 
the  property  passing  until  paid,  and  the  successor  and  the 
executors  or  administrators  of  the  general  estate  of  the  decedent, 
and  the  trustees  of  such  property  shall  be  personally  liable  for 
all  such  taxes,  with  interest  as  hereinafter  provided,  until  they 
shall  have  been  paid  as  hereinafter  directed. 

Executor,  etc.,  to  collect.  Such  an  administrator,  executor 
or  trustee,  having  in  charge  or  in  trust  for  distribution  any 
property  the  succession  to  which  is  subject  to  such  taxes,  shall 
deduct  the  taxes  therefrom,  or  collect  the  same  from  the  pt-rson 
entitled  thereto. 

Shall  not  deliver  property  until  paid.  lie  shall  not  deliver, 
or  be  compelled  to  deliver,  any  speciiic  legacy  or  property,  the 
succession  to  which  is  subject  to  said  taxes,  to  any  person,  until 
he  shall  have  collected  the  taxes  thereon. 

May  sell  estate  to  pay.  ITe  may  sell  so  much  of  the  cstjito 
of  the  decedent  as  will  enable  him  to  pay  said  taxes  in  like 
manner  as  he  would  be  empowered  to  do  for  the  payment  of 
the  debts  of  the  decedent.     [108  v.  1194.  ]» 

9  iSee  §  222,  N.  Y.  inheritance  tax,  See  Atty.  Gcnl's.  opinion  .Tnly  '••, 
for    persons    of    similar    character.      1919,  64  Bull.  307. 


§  2038  INHERITANCE   TAX  1700 

§  2038.    Time  of  payment  of  tax. 

The  tax  is  due  and  payable  at  the  time  succession  takes  place. 
This  is  usually  at  the  time  of  death  of  decedent.  There  seems 
to  be  only  one  exception  and  that  is  when  the  proparty  does 
not  vest  at  decedent's  death,  and  it  is  impossible  to  ascertain 
its  market  value ;  then  it  becomes  due  and  payable  when  the 
beneficiary  actually  comes  into  possession.  In  the  meantime  the 
property  remains  charged  with  the  payment  of  the  tax.  In 
such  case  the  trustees  are  held  responsible  for  the  tax  being 
finally  paid. 

As  a  matter  of  grace,  no  penalty  is  added  if  paid  within  one 
year  from  that  time,^''  and  to  encourage  an  early  settlement  a 
discount  of  1%  per  month  is  allowed  for  payment  previous  to 
the  end  of  the  year. 

I  apprehend  the  number  of  instances  will  not  be  large  where 
the  tax  will  not  have  to  be  paid  within  the  year,  unless  by  virtue 
of  subsequent  sections,  an  extension  is  granted.  The  trustee  or 
executor  is  positively  forbidden  to  deliver  any  property  to  an 
heir  or  beneficiary  until  the  tax  is  paid.  If  the  tax  is  not  paid 
"by  the  parties  entitled  to  the  property,  he  may  sell  it,  or  so 
much  of  the  estate  as  may  be  necessary,  to  get  the  money  with 
which  to  pay  it. 

§  2039.     Personal  liability  of  executor,  etc. 

It  is  the  duty  of  the  administrator  or  executor  in  every  case 
where  a  tax  is  due  under  this  act,  before  paying  over  a  legacy 
or  distributive  share,  to  exact  from  the  person  who  is  to  receive 
it,  or  retain  in  his  hands  out  of  the  legacy  or  distributive  share, 
a  sum  sufficient  to  pay  the  tax.  If  he  does  not  he  runs  the 
risk  of  paying  it  out  of  his  own  property.^^  But  he  is  not  liable 
if  the  property  never  comes  into  his  hands,^-  or  under  the  juris- 
diction of  the  court  making  his  appointment.^^  If  he  resigns 
without  having  paid  the  tax,  the  court  will  appoint  an  admin- 
istrator de  bonis  non  to  collect  it.^* 


10  See  §  362-10,  §  5338  G.  C.  13  Gleason    and   Otis,   Inheritance 

11  Hunter   vs.    Husted,    45    N.    C.  tax,  2nd  ed.  526. 

141.  14  Chamberlain  vs.  Steelier,  78  O. 

12  Gallup's  Appeal,  76  Conn.  617.  S.  271. 


1701  PERSONAL  LIABILITIES  OP  BENEFICIARIES  §  2040 

§  2040.     Personal  liabilities  of  beneficiaries. 

Our  statute  does  not  seem  to  make  the  beneficiaries  personally 
liable  for  the  tax.  The  duty  to  pay  the  tax  is  either  on  the 
executors  or  the  person  who  holds  the  property. 

If  a  person  receives  property  where  the  succession  to  which 
is  rightfully  subject  td  a  tax,  and  the  tax  thereon  has  never 
been  taken  therefrom,  such  facts  might  create  a  personal  liabil- 
ity upon  the  recipient,  and  the  same  might  be  recovered  in  a 
proper  action.  But  that  course  will  not  generally  be  pursued. 
The  property  and  not  the  person,  the  statute  makes  responsible 
for  payment  of  the  tax.^^ 

§  2041.  Tax  in  legacy  retained.  §  5337.  If  a  legacy  sub- 
ject to  such  taxes  is  charged  upon  or  payable  out  of  real  estate, 
the  heir  or  devisee,  before  paying  it,  shall  deduct  the  taxes 
therefrom  and  pay  such  taxes  to  the  executor,  administrator  or 
trustee,  and  the  taxes  shall  remain  a  charge  upon  the  real  estate 
until  it  is  paid ;  and  the  payment  thereof  shall  be  enforced  by 
the  executor,  administrator  or  trustee,  in  like  manner  as  the 
payment  of  the  legacy  itself  may  be  enforced,  or  by  the  prose- 
cuting attorney  as  provided  in  this  subdivision  of  this  chapter. 

Executor,  etc.,  to  retain.  If  such  legacy  shall  be  given  in 
money  to  a  person  for  a  limited  period,  such  administrator, 
executor  or  trustee  shall  retain  the  tax  on  the  whole  amount ; 

Application  to  court,  etc.  And  if  it  be  not  in  money  he 
shall  make  an  application  to  the  court  having  jurisdiction  of 
his  accounts  to  make  an  ascertainment,  if  the  case  require  it, 
of  the  sum  to  be  paid  into  his  hands  by  such  legatee  on  account 
of  the  taxes,  and  for  such  further  order  as  the  case  may  require. 
[108  v.  566.]  i« 

§  2042.     When  property  is  charged  with  payment  of  legacy,  etc. 

If  real  estate  is  charged  with  payment  of  a  legacy,  the  person 
entitled  to  the  real  estate,  before  he  lifts  the  legacy,  must  deduct 
the  tax,  or  see  that  it  is  paid.  In  the  meantime  it  remains  a 
charge  and  a  lien  on  the  real  estate.  The  executor  may  collect 
the  tax,  even  going  so  far  as  selling  the  real  estate. 

The  second  matter  referred  to  in  the  previous  section  is  whoro 
the  legacy  is  of  money  for  a  limited  period;  that  is,  for  life  or 
a  number  of  years.    In  such  cases,  the  executor  retains  the  tax 

15  See  cases  cited  in  Gleason  and  16  §  222  N.  Y.  inlieritnncc  tnx. 

Otis,  Inheritance  taxation,  2nd  ed. 
527. 


§  2043  INHERITANCE   TAX  1702 

on  the  whole  amount.  If  it  is  a  legacy  or  other  personal  prop- 
erty, on  application  to  the  court,  the  tax  shall  be  ascertained, 
of  the  sum  of  money  fixed  the  legatee  must  pay.  The  intent 
of  the  statute  undoubtedly  is  that  someone  must  pay  the  tax  on 
the  actual  value  of  the  whole  property  and  if  possible  within 
the  year  limit. 

§  2043.  Tax  to  whom  paid— Discount.  §  5388.  Taxes  levied 
by  this  subdivision  of  this  chapter  shall  be  paid  to  the  treasurer 
of  the  county  in  which  the  court  having  jurisdiction  of  pro- 
ceedings under  this  subdivision  of  this  chapter  is  held  by  the 
person  or  persons  charged  with  the  payment  thereof. 

Interest  when  not  paid.  If  such  taxes  are  not  paid  within 
one  year  after  the  accrual  thereof,  interest  at  the  rate  of  eight 
per  centum  per  annum  shall  thereafter  be  charged  and  collected 
thereon ; 

When  for  unavoidable  cause.  Unless  by  reason  of  claims 
made  upon  the  estate,  necessary  litigation,  or  other  unavoidable 
causes  of  delay,  such  taxes  can  not  be  determined  and  paid  as 
hereinbefore  provided,  in  which  case  interest  at  the  rate  of  five 
per  centum  per  annum  shall  be  charged  upon  such  taxes  from 
the  expiration  of  one  year  after  the  accrual  thereof  until  the 
cause  of  such  delay  is  removed,  after  which  eight  per  centum 
shall  be  charged. 

Discount  when.  If  such  taxes  are  paid  before  the  expira- 
tion of  one  year  after  the  accrual  thereof,  a  discount  of  one 
per  centum  per  mouth  for  each  full  month  that  payment  has 
been  made  prior  to  the  expiration  of  the  year,  shalLrbe  allowed 
on  the  amount  of  such  taxes.     [108  v.  1194.]" 

§  2044.    Time  limit  for  payment  of  tax. 

The  tax  must  be  paid  within  one  year  from  accrual,  that  is, 
the  death  of  decedent.  If  not  paid  within  that  time,  interest 
thereon  will  be  charged  at  S%  per  annum.  If  in  the  ordinary 
and  prudent  administration  of  the  estate,  it  can  not  be  definitely 
known  what  the  tax  may  be,  then  it  will  draw  interest  at  5% 
per  annum,  until  the  cause  of  delay  is  removed,  and  thereafter 
it  will  draw  8%. 

As  an  inducement  to  pay  the  tax  at  the  earliest  possible 
moment,  the  law  permits  a  discount  of  1%  per  month,  for  each 
month  of  the  time  before  the  expiration  of  the  year. 

The  Probate  Court  has  no  power  to  direct  that  no  interest  be 
charged ;  as  the  tax  would  be  the  same,  whether  the  deceased 

17  See  §223  X.  Y.  inheritance  tax.       1920,   is   full  four  months  prior  to 
See  Atty.  Genl's  op.  1920,  p.  592,      one  year  of  accrual  of  taxs  on  Aug. 
held     that    paj'iuent    on    April     30,       31,  1919,  and  4%  deducted. 


^^^^  PETITION   TO   REMIT  INTEREST  §  2045 

died  testate  or  intestate,  it  has  been  held  that  the  mere  contest 
of  a  will  is  not  such  unavoidable  delay  as  will  justify  a  reduc- 
tion of  interest/^  The  burden  of  proving  unavoidable  delay 
is  upon  the  estate.^^ 

Litigation  to  determine  doubtful  and  perplexing  questions 
as  to  the  liability  of  transferees  for  inheritance  tax  and  delays 
occasioned  thereby  constitute  necessary  litigation  or  other  un- 
avoidable delay.-'^  A  misnomer  of  a  trustee  named  in  the  will, 
not  discovered  for  some  time,  may  constitute  "unavoidable 
delay.  "-^ 

Relief  will  not  be  granted  merely  because  the  executors  were 
ignorant  of  the  law,  or  that  it  will  be  a  hardship  to  the  legatee.- 
The  order  made  on  an  application  to  remit  interest  is  not  sub- 
ject to  appeal.-^ 


§  2045.    Form — Petition  to  remit  interest. 

[Title.] 

To  the  Probate  Court  of  the  County  of   : 

The  petition  of respectfully  shows : 

That  your  petitioner   is  the    of  the  above  named  decedent,  who 

died  a  resident  of  the  county  of ,  State  of ,  on  the day 

of ,  19... 

That  proceedings  have  been  had  before  herein  for  the  determin- 
ation of  the  tax  upon  the  succession  of  the  property  of  said  decedent, 
which   tax  has   been   fixed  and  assessed,   by   order  entered   herein   on   the 

day  of    ,   19.  .  .,  at  the  sum  of  $ ,  as  by  reference  to 

the  order  ajforesaid,  will  more  fully  appear. 

That  the  succession  tax  assessed  herein  has  not  been  paid,  altliouf^h 
more  than  one  year  has  elapsed  since  the  accrual  thereof,  and  by  reason 
of  such  nonpayment,  interest  thereon  at  the  rate  of  eight  per  centum 
per  annum  lias  been  incurred  ns  provided  by  statute. 

Tiiat  by   reason  of    [liere  state  the  facts,  showing  the  statutory 

reasons  entitling  the  persons  liable  to  pay  the  tax  to  have  tlie  interest 
tliereon  remitted  to  five  per  cent.l  your  petitioner  believes  tliat  the 
interest  upon  said  tax  should  be  remitted  from  eight  per  cent,  to  live 
per  cent,  as  provided  bj'  statute. 

That  your  petitioner  is  desirous  of  paying  the  tax  as  (ixed  l)y  said 
order  herein,  as  soon  as  his  claim  for  tiie  remission  of  interest,  based 
upon  the  foregoing  reasons,  can  be  passed  upon  by  the  court. 

Wherefore   your   petitioner    prays   that   an   order   be   marie    and   entered 

herein   remitting  the  interest  upon  tlie  tax   assessed  to  live   per   cent.,  to 

be  charged  upon  said  tax  from  the  accrual  thereof  until  the  cau.se  of  such 

delay   was   removed,   after   which   eiglit   per   cent,    is   to   be   charged,   and 

that  your   petitioner  may  have   such   other  and  further   relief  us  to   the 

court  may  seem  just. 

Dated ,19...  •'liV.!-" 

Petitioner. 

[Add  verification.] 


690 


18  Shelton  vs.  Campbell,  109  Tenn.  21  in  re  Banks,  6  Pa.  County  Cit. 


614. 


19  People  vs.  Prout,  6  N.  Y.  Supp.        ^22  Matter  of  Piatt,  29  N.  Y.  Snpp. 

^'"^loRteele  vs    Pabst.  139  Wis.  .'^01:       "  ^3  Matter   of    DeCrnfr.    ir,:i    N.   Y. 
Matter  of  Morse,  35  X.  Y.  Supp.  7H2.       Sui)p.  i>9] . 


I§  2046  INHERITANCE   TAX  1704 

§2046.     Notice  of  motion  on  application  to  remit  interest. 

ITitle.] 

Please  take  notice  that  on  all  the  papers  and  proceedings  herein,  and 

the  verified  petition  of ,  hereto  annexed  and  bearing  date  the 

day  of   ,  19...,  application  will  be  made  to  the  Probate  Judge  of 

the  county  of at  Probate  Court  to  be  held  at on  the 

day  of ,  19 . . . ,  at o'clock,  for  an  order  remitting  the  interest 

upon   the   tax   heretofore   assessed    upon   the   estate    of    the   above   named 

decedent,  by  order  of  said  Probate  Judge   made  and  entered   the    

day  of    ,  19...,  from  eight  per  cent,  to  five  per  cent,  per  annum, 

to  be  computed  from  the  accrual  of  said  tax  until  the  circumstances  pre- 
venting the  earlier  payment  of  said  tax  were  removed,  and  for  such  other 
and  further  relief  as  to  the  court  may  seem  just. 

Dated  the   day  of   ,  19 . . . 


Attorney  for  Petitioner. 
To  Hon ,  Tax  Commission. 


§  2047.     Order  remitting  interest  from  eight  to  five  per  cent. 

[Title] 

On  reading  and  filing  the  verified  petition  of  ,  wherein  it  ap- 
pears that  payment  of  the  succession  tax  upon  the  estate  of  the  above 
named  decedent,  as  determined,  has  been  unavoidably  delayed,  by  reason 
of 

And  due  notice  of  this  application  and  motion  having  been  given  to 
tax  commission: 

Now,   on   motion   of    ,    Esq.,   attorney   for   the    petitioner   herein, 

appearing    [in    opposition    thereto    or    consenting    thereto],    it    is 

Ordered,  That  interest  at  the  rate  of  eight  per  cent,  upon  the  tax 
heretofore  assessed  herein,  be  remitted  to  five  per  cent,  per  annum,  to  be 

computed  from  the  accrual  thereof  until  the   day  of ,  19 ... , 

after  Avhich  date  interest  at  the  rate  of  eight  per  cent,  is  to  be  charged 
until  said  tax  is  paid,  as  provided  by  the  statute. 


Probate  Court. 


§  2048.  When  legatee  entitled  to  refunder.  §  5339.  If  any 
dei3ts  shall  be  proven  against  the  general  estate  of  a  decedent 
after  the  payment  of  any  legacy  or  distributive  share  thereof, 
from  which  any  such  tax  has  been  deducted  or  upon  which  it 
has  been  paid  by  the  person  entitled  to  such  legacy  or  dis- 
tributive share,  and  such  person  is  required  by  order  of  the 
probate  court  having  jurisdiction,  on  notice  of  the  tax  commis- 
sion of  Ohio,  to  refund  the  amount  of  such  debts,  or  any  part 
thereof,  an  equitable  proportion  of  the  tax  shall  be  repaid  to 
him  by  the  executor,  administrator  or  trustee,  if  the  tax  has 
not  been  paid  to  the  county  treasurer;  or  if  such  tax  has  been 
paid  to  the  county  treasurer,  be  shall,  on  the  warrant  of  the 
county  auditor,  refund  out  of  the  funds  in  his  hands  or  custody 
to  the  credit  of  inheritance  taxes,  such  equitable  proportion  of 
the  tax,  without  interest,  and  be  credited  therewith  in  his 
accounts. 

Anplication  to  refund.  Tf  after  the  payment  of  anv  tax,  in 
pursuance  of  an  order  fixing  such  tax,  made  by  the  probate  court 
having  jurisdiction,  such  order  be  modified  or  reversed  on  due 


1705  REFUNDEB  OP  TAX  §  2049 

notice  to  the  tax  commission  of  Ohio,  the  said  commission  shall, 
unless  further  proceedings  on  appeal  or  in  error  are  pending 
or  contemplated  by  order  direct  the  county  auditor  to  refund 
such  amount  in  the  same  manner;  but  no  such  application  for 
such  refunder  shall  be  made  after  one  year  from  such  reversal 
or  modification,  by  the  highest  court  to  which  error  may  be 
prosecuted.  The  fees  theretofore  allowed  upon  such  over-pay- 
ment shall  be  adjusted  in  accordance  with  such  refunder. 

Court  may  add  then.  Where  it  shall  be  shown  to  the  satis- 
faction of  the  probate  court  that  deductions  for  debts  were 
erroneously  allowed,  such  probate  court  may  enter  an  order 
assessing  the  taxes  upon  the  amount  wrongfully  or  erroneously 
deducted.     [108  v.  567.]-* 

§2049.     Refunder  of  tax,  etc. 

While  the  law  is  very  careful  to  provide  that  the  succession 
of  all  property  should  bear,  and  a  tax  thereon  be  paid,  yet  it 
also  provides  where  the  same  has  been  paid,  when  in  justice  it 
ought  not,  for  its  refunder.  That  is  the  purpose  of  the  preceding 
section.  The  order  to  make  such  refunder  rests  in  the  sound 
discretion  of  the  Probate  Court  having  jurisdiction.  The  forms 
used  to  remit  interest  under  the  preceding  sections,  might  be 
changed  to  be  used  when  a  refunder  is  asked.  The  order  made 
by  the  court  in  such  cases  is  probably  not  appealable.  This 
is  true  where  the  former  order  was  a  final  order.  However,  it 
would  seem  if  the  former  order  was  of  a  temporary  nature  as 
provided  in  sections  Nos.  5342,  G.  C.  (§2066),  5343,  G.  C. 
(§  2077)  and  5344,  G.  C.  (§  2073),  it  would  be  appealable. 

§  2050.  Powers  and  duties  of  probate  court.  §  5340.  The 
probate  court  of  any  county  of  the  state  having  jurisdiction  to 
grant  letters  testamentary  or  of  administration  upon  the  estate 
of  a  decedent,  on  the  succession  to  whose  property  a  tax  is 
levied  by  this  subdivision  of  this  chapter,  or  to  appoint  a  trustee 
of  such  estate,  or  any  part  thereof,  or  to  give  ancillary  letters 
thereon,  shall  have  jurisdiction  to  hear  and  determine  the  ques- 
tions arising  under  the  provisions  of  this  subdivision  of  tliis 
chapter,  and  to  do  any  act  in  relation  thereto  authorized  by  law 
to  be  done  by  a  probate  court  in  other  matters  or  proceedings 
coming  wkhin  its  jurisdiction; 

Jurisdiction.  And  if  two  or  more  probate  courts  shall  bo 
entitled  to  exercise  such  jurisdiction,  the  court  first  acquiring 
jurisdiction  hereunder  shall  retain  the  same  to  the  exclusion 
of  every  other  probate  court.  Such  jurisdiction  shall  exist  not 
only  with  respect  to  successions  in  which  the  jurisdiction  of 

24  See  §  225  N.  Y.  inheritance  tax. 


§  2051  INHERITANCE   TAX  1706 

such  court  would  otherwise  be  invoked,  but  shall  extend  to  all 
cases  covered  by  this  act,  to  the  end  that  succession  inter  vivos, 
taxable  under  the  provisions  of  this  subdivision  of  this  chapter, 
may  be  reached  thereby.     fl08  v.  567.]-^ 

§  2051.    Jurisdiction  of  probate  court. 

The  previous  section  makes  the  Probate  Court  the  forum  in 
which  all  matters  pertaining  to  the  inheritance  tax  are  to  be 
determined,  and  which  particular  court  is  to  exercise  jurisdic- 
tion is  to  be  determined  in  the  same  manner  as  in  the  settle- 
ment of  estates  of  deceased  persons.  This  matter  has  been  dis- 
cussed in  previous  sections  of  this  work.^*' 

This  matter  may  come  before  the  court  in  the  due  adminis- 
tration of  an  estate,  in  which  its  jurisdiction  has  already  been 
invoked  by  the  appointment  of  an  executor  or  administrator, 
and  then  it  may  be  brought  there  when  there  has  been  no  such 
appointment  by  an  interested  party,  or  the  tax  commission. 

If  the  matters  appearing  in  the  due  administration  of  an 
estate  are  such  that  the  court  knows  that  there  is  an  inheritance 
tax  to  be  paid,  the  court  ought  not  to  permit  any  estate  to  be 
settled  without  proceedings  to  fix  such  tax  and  have  its  payment 
made. 

Some  States  have  put  all  matters  relating  to  an  inheritance 
tax  in  the  jurisdiction  of  a  tax  commission,  but  the  method 
provided  by  our  State  is  preferable.  It  properly  belongs  to  the 
jurisdiction  of  the  Probate  Court.  It  will  usually  be  brought 
to  the  court's  attention  by  an  application  of  the  executor  or 
administrator  to  fix  the  tax ;  or  it  may  be  brought  by  an  heir  or 
beneficiary,  where  the  same  is  a  charge  on  the  transferment  of 
property  he  is  to  receive,  and  then  it  may  be,  by  the  tax  com- 
mission as  representing  the  public.  It  seems  from  the  wording 
of  subsequent  sections  that  if  the  application  be  made  by  the 
executor  or  administrator,  the  court  may  either  proceed  and 
fix  the  tax  without  further  appraisement,  or  have  the  auditor 
to  appraise  the  property.  If  the  application  be  made  by  an 
interested  party  or  the  tax  commission,  it  must  direct  the 
auditor  to  fix  the  value.     But  even  in  such  eases  if  the  prop- 

25  See  §  228  N.  Y.  inheritance  tax.  Some  Probate  Courts  now  require 

26  Chapter  2,  §  19-33.  The  Pro-  that  in  all  cases,  before  a  final  ac- 
hate Court  of  the  county  in  which  count  is  accepted  that  the  question 
the  general  office  of  a  company  in  of  inheritance  tax  be  determined 
this  state  is  located,  or  of  any  although  it  is  evident  there  will  be 
county  in  which  the  company  has  none,  and  county  auditors  will  not 
property  in  this  state,  has  jurisdic-  transfer  real  estate  of  a  decedent 
tion    to    determine    the    tax.     Atty.  imless  this  is  done. 

Genl's.    opinion    Sept.    7,    1920,    65 
Bull.  414. 


1'''07  ESSENTIALS  OF  APPLICATION  •  §  2052 

erty  passing  is  in  money  form,  or  if  the  court  can  fix  a  proper 
and  satisfactory  value,  it  is  questionable  whether  a  formal 
appraisement  by  the  auditor  is  required. 

By  reason  of  the  fact  that  a  discount  is  allowed  if  paid  before 
one  year  from  decedent's  death,  and  a  penalty  added  thereafter, 
the  tax  should  be  fixed  and  paid  at  the  earliest  time  possible. 


§  2052.    Essentials  of  application. 

There  wall  not  be  much  difference  in  the  essentials  required 
whether  filed  by  an  executor,  an  heir,  legatee  or  the  tax  com- 
mission. In  all  cases  it  should  show  sufficient  facts  to  enable 
the  court  to  grant  the  relief  desired.  First  it  should  allege 
facts  sufficient  to  give  the  court  jurisdiction.  This  would  in- 
volve a  showing  that  the  party  filing  the  application  had 
capacity  so  to  do,  and  the  deceased  either  died  a  resident  of 
the  county  in  which  the  application  is  made,  or  had  some  prop- 
erty in  such  county.  It  should  give,  if  an  administrator  or 
executor  has  been  appointed,  the  name  of  the  court,  date  of 
appointment;  if  a  will  has  been  probated,  the  name,  date  and 
court  probating  it.  If  this  appears  to  have  been  done  in  another 
court  a  copy  of  the  will  should  be  attached. 

Next  in  importance  is  to  give  the  names,  ages,  relationship 
and  address  of  all  the  persons  who  will  receive  any  part  of  the 
estate. 

Then  a  schedule  or  description  of  all  the  property  the  de- 
cedent owned.  If  any  property  is  specifically  devised  this  should 
be  stated.  If  it  is  desired  to  have  an  appraisal  by  tlio  auditor 
it  might  not  be  essential  to  put  a  value  on  it,  but  this  might 
even  in  such  cases  be  done,  and  always  if  the  court  is  to  fix  the 
value.  Such  description  of  the  real  estate  should  be  given,  that 
will  show  the  township  or  municipality  of  its  location.  If  there 
are  any  mortgages  or  charges  on  the  property,  especially  if 
specifically  devised,  these  should  be  given.  Then  a  statement 
of  all  the  personal  property  should  be  given.  If  there  has  been 
an  inventory  filed,  it  may  be  taken  from  that.  If  a  widow's 
allowance  has  been  made  this  should  be  statcid.  If  there  is  any 
property  in  a  foreign  jurisdiction,  the  fact  should  be  stated. 
All  the  debts  should  be  given.  This  would  include  costs  of 
administration  and  funeral  expanses.  The  name  and  amount 
of  all  specific  bequests  should  be  given. 

1  See  §  2064.  Fixing  vahie  of  See  §  2007.  Fixing  viiluo  of  lim- 
real  es.talc.  't<''J  e«lato. 

See  §  2005.     Fixing  value  of  per-  See   §  2070.     Notice   fixing  tax. 

eonal  property. 


§  2053  •  INHERITANCE   TAX  1708 

§  2053.     Filing  and  notice. 

The  above  application  is  not  an  application  to  appraise  the 
property,  but  to  fix  the  tax,  etc.,  and  therefore  the  services  of 
the  auditor  are  not  required,  and  it  seems  that  the  court  may 
proceed  to  fix  the  value  of  the  property  and  the  various  taxes 
without  further  notice.  The  notice  that  in  such  cases  is  required 
is  the  one  that  is  to  be  given  after  the  tax  has  been  fixed,  etc. 
However,  if  the  questions  involved  are  intricate  or  doubtful, 
notice  should  be  given  to  the  persons  interested  and  the  tax  com- 
mission, and  this  notice  might  be  given  by  mail,  or  the  parties 
could  enter  their  appearance. 

There  is  no  statutory  requirement  that  the  application  be 
sworn  to,  but  as  this  will  be  treated  as  evidence  by  the  court,  it 
should  be.  If  the  court  thinks  wise  or  if  there  be  doubtful  ques- 
tions, a  day  should  be  set  for  hearing,  and  interested  parties 
notified.  The  facts  will  be  so  diverse  that  it  will  be  impossible 
to  give  a  form,  that  will  be  more  than  in  a  general  way,  applicable. 

Just  when  the  application  should  be  filed  will  depend  on  the 
size  and  the  condition  of  the  estate.  Where  the  estate  is  small, 
and  there  may  be  some  question  whether  there  is  any  inheritance 
tax,  it  will  no  doubt  be  deferred  until  near  the  time  when  a  first 
account  is  filed.  When  large  it  would  best  be  attended  to  as 
soon  as  the  same  can  be  done.  Where  there  is  a  general  appraise- 
ment of  the  estate  this  may  be  done  soon  thereafter.  The  value 
to  be  fixed  is  the  actual  value  at  the  time  of  decedent 's  death ; 
a  discount  is  allowed  if  paid  before  one  year,  and  a  penalty 
added  thereafter. 

The  form  of  notice,  if  one  is  given  before  the  court  passes 
on  the  value,  is  the  same  as  that  where  an  auditor  makes  the 
appraisal.^ 


§  2054.  Form — Application  for   determination  of  inheritance 

tax. 

In  the  Probate  Court  of County,  Ohio.     No 

In  the  matter  of  the  estate  of ,  deceased. 

The  undersigned,  as    of  the  estate  of    ,   deceased,   hereby 

prays  the  court  for  an  order  of  determination  as  to  what  inheritance  tax, 
if  any,  is  due  upon  the  successions  to  such  estate  imder  the  inheritance 
tax  law  of  Oliio  and  in  support  of  this  application,  being  duly  sworn, 
deposes  and  says: 

1.  That  the  said  decedent  died  a  resident  of county  on  the 

day   of    ,    19...,    intestate — leaving   a   last   will    and   testament,    a 

copy  of  which  is  herewith  submitted,  which  was  duly  admitted  to  probate 

1  See  §  2063. 


1709  DETERMINATION   OF   INHERITANCE  TAX  §  2054 

and  record  by  the  Probate  Court  of   county,  on  the day  of 

,    I!)...    and    that    letters — of   administration — testamentary — were 

duly  issued  by  the  said  Probate  Court  on  the  day  of ,  19. . ., 

to  this  deponent,  whose  post  oifice  address  is 

2.  That  as  such — administrator — executor — deponent  is  personally 
familiar  with  the  affairs  of  said  estate,  the  property  constituting  the 
assets  thereof  and  their  fair  market  value,  and  with  the  debts,  expenses 
and  charges  properly  and  legally  allowable  as  deductions  therefrom. 

3.  That  schedule  A-1*  sets  forth  each  and  every  parcel  of  real  estate 
in  the  state  of  Ohio  of  which  decedent  died  seized,  or  in  which  ..he  had 
any  right,  title  or  interest,  and  the  book  and  page  of  the  record  of  the 
conveyance  thereof.  It  also  sets  forth  the  fair  value  of  such  real  estate 
together  with  a  statement  of  the  mortgages  and  other  incumbrances  thereon 
at  the  date  of  death,  giving  the  amount  and  date  of  each  incumbrance 
and  the  book  and  page  of  record  thereon. 

Schedule  A-2  sets  forth  all  of  the  moneys  left  by  the  decedent  at  the 
time  of  h..  death,  whether  in  h..  immediate  possession,  standing  to 
h..  credit  or  in  which  ..he  had  any  right,  title  or  interest,  in  banks  or 
other  institutions,  whether  individually  or  in  trust  for  or  jointly  with 
any  person,  giving  also  separately  the  accrued  interest  thereon. 

Schedule  A-3  sets  forth  all  other  personal  chattels  of  whatsoever  kind 
or  nature,  left  by  tlie  decedent,  together  with  the  fair  market  value 
thereon.  It  also  contains  a  statement  of  all  bonds  and  mortgages  held 
by  decedent  and  of  all  claims  due  and  owing  decedent  at  the  time  of 
death,  and  of  all  promissory  notes  or  other  instruments  in  writing  for 
the  payment  of  money  of  which  ..he  died  possessed,  with  interest  thereon 
[except  i^uch  as  are  included  in  the  statement  of  the  decedent's  interest  in 
a  co-partnership  or  business  set  forth  in  Schedule  A-5],  giving  the  face 
values  and  estimated  fair  market  values  thereof.  Said  schedule  also 
contains  a  statement  of  any  and  all  moneys  payable  to  the  estate  from 
life  insurance  policies  carried  by  decedent. 

Schedule  A-4  sets  forth  all  the  corporate  stocks,  bonds  and  accrued 
interest  thereon  to  the  date  of  decedent's  death,  or  other  invested  securities 
owned  by  the  decedent  at  the  time  of  death,  witli  the  market  value  thereof 
at  such  time,  and  in  the  case  of  unlisted  corporate  securities  giving  the 
state  of  incorporation  of  the  company  issuing  the  same,  its  capitalization, 
the  value  and  nature  of  its  assets,  its  liabilities,  and  any  other  facts 
which  may  be  pertinent  affecting  the  value  of  said  securities,  also  the 
amount  of  any  dividends  declared  on  such  stocks  but  unpaid  at  date  of 
death. 

'Schedule  A-5  sets  forth  the  interest  of  decedent  at  the  time  of  death  in 
any  co-partnership  or  business,  the  nature  and  location  of  such  business 
and  any  other  facts  pertaining  thereto  as  may  be  pertinent  to  a  fair 
and  just  appraisal  of  decedent's  interest  therein  and  the  good  will  tliereof. 

iSciiedule  A-6  sets  fortli  in  itemized  form,  together  with  the  fair  market 
value  thereof,  any  otlier  property  owned  or  left  by  decedent  at  the  time 
of  death  and  not  included  in  tlie  preceding  sciiedules,  together  with  all 
property  wheresoever  situated  of  which  decedent  made  any  grant,  bargain, 
sale  or  gift  in  contemplation  of  death  or  intended  to  take  effwt  in 
possession  or  enjovment  at  or  after  the  death  of  decedent. 

4.  That  schedule  IM  sets  fortli  the  fnneral  expenses  togetlier  with  the 
expenses  of  administration  and  coiinsel  fees  paid  or  estimated. 

Schedule  B-2  sets  forth  the  valid  debts  due  and  owing  by  decedent  at 
the  time  of  death  and  allowed  as  just  and  fair  l)y  this  deponent,  togetlier 
with  a  separate  list  of  such  claims  as  have  been  contested  or  rejected 
[except  such  as  enter  into  the  computation  of  decedent's  interest  in  any 
co-partnership  or  business  as  set  forth  in  Schedule  A-f)].  Schedule  n-2 
also  sets  forth  all  items  claimed  by  deponent  as  jiroper  deductions  herein, 
and  not  included  in  the  prior  schedules. 

.5.  Schedule  C*  contains  a  statement  of  the  names  of  all  persons 
beneficially  interested  in  this  estate  at  the  time  of  decedent's  death,  the 
nature  of  their  respective  interests,  their  relationship,  if  any.  to  tho 
decedent  together  with  the  ages  at  the  time  of  decedent's   death   of  all 


§2054 


INHERITANCE   TAX 


1710 


iniiiors,  annuitants  and  beneficiaries  for  life  under  decedent's  will,  if 
any.  It  also  contains  a  statement  showing  -which  of  the  beneficiaries 
nanied  in  such  will,  if  any,  died  prior  to  decedent,  the  dates  of  their  death, 
their  survivors,  and  the  relationship  of  each  such  survivor  to  decedent. 

6.  That  deponent  has  made  due  and  diligent  search  for  property  of 
every  kind,  nature  and  description  left  by  tlie  decedent,  and  has  been 
able'  to  discover  only  that  set  forth  in  Scliedule  A,  and  that  no  informa- 
tion of  any  other  property  of  the  decedent  has  come  to  h .  .  knowledge, 
and  that  ..he  verily  believes  tliat  decedent  left  no  property  except  as 
therein  set  forth.  Tliat  all  sums  claimed  as  deductions  in  Schedule  B 
are  lawful,  just  and  fair,  that  to  the  best  of  deponent's  knowledge,  in- 
formation and  belief  the  decedent  made  no  gift,  grant  or  convej-ance  of 
any  property,  real  or  personal,  in  contemplation  of  death,  or  to  take  effect 
at  or  after  death,  except  as  is  specifically  set  forth  in  the  appropriate 
schedule. 

Deponent  further  says  that  wherever  in  any  of  said  schedules  the  word 
"none"  has  been  written  or  wherever  such  schedule  has  been  left  blank, 
such  word  or  omission  is  to  be  taken  as  equivalent  to  an  affirmative 
allegation  by  deponent  that  the  decedent  left  no  property  of  the  kind  to 
which  the  schedule  relates. 

Sworn  to  before  me  and  in  mv  presence  subscribed  this   day  of 

,19... 


*  iSchedules  A  and  C  must  be  filed  in  triplicate,  one  copy  to  be  attached 
hereto,  the  other  copies  to  be  given  to  the  auditor  along  with  the  order 
to  appraise. 


Schedule  A 

A-l.    Real  property. 

Estimated 
Market  Value 


Value  as  Appraised 
in  This  Proceeding 


Schedule  A 
A-2.     Cash  on  hand  and  on  deposit. 


Amount 


Value  as  Appraised 
in  This  Proceeding 


Schedule  A 
A-3.     Personal  chattels — notes  and  moi^tgages,  etc. 


Estimated 
^Market  Value 


Value  as  Appraised 
in  This  Proceeding 


1711 


DETERMINATION    OF    INHERITANCE    TAX 


§2054 


Schedule  A 

A-4.     StocJcs  and  honds. 

Estimated 
Market  Value 


Value  as  Appraised 
in  This  Proceedinj' 


Schedule  A 
A-5.     Interest  of  decedent  in  amj  co-partnership. 


Estimated 
Market  Value 


Value  as  Appraised 
in  This  Proceeding 


Schedule  A 

'A-%.    Property  left  ly  decedent  not  included  in  the  foregoing  sul-schcdules 

hut  including  property  transferred  by  the  decedent  in  contemplation 

of  death  or  to  take  effect  at  death. 


Estimated 
Market  Value 


Value  as  Appraised 
in  This  Proceeding 


Schedule  B 
B-1.     Funeral  expenses,  costs  of  administration  and  attorney  fees. 


Claimed 


Allowed 


Schedule  B 

B-2.     Dehts  of  decedent.     Also  deductions  claimed  and  not 
included  in  the  pnceding  sub-schedule. 


Claimed 


Allowed 


Schedule  C 
Beneficiaries,  their  interests,  relationship  to  'flfceased,  do. 


§  2055  INHERITANCE   TAX  1712 

SCHEDULE  "A." 
In  the  Probate  Court  of  County,  Ohio. 

In  the  matter  of  the  estate  of   ,  deceased. 

The  undersigned  b»ing  all  of  the  heirs  at  law  of  ......  deceased,  hereby 

i'oin  in  the  prayer  of  the  petition  for  determination  is  to  inheritance  tax 
lerein. 


§  2055.    Form — Application  to  fix  inheritance  tax 
(no  administration). 

In  the  Probate  Court  of County,  Ohio. 

In  the  matter  of  the  estate  of doc€«a«o<i. 

rKTITlON. 

\ow   comes    ,  of   lawful   ape,  and    for   petition   herein   avers   that 

late  of  tiie   of   County,  Ohio,  died   intestate 

on  the   day  of   ,   19. .  .    leavinjr   h. .   widow.  .,  and  the 

following  named   jiersons  h..    only  lieirs  at  law  who  are  entitled  to  share 
in  till'  diistriliution   of  h..    estate: 

I 

Name  Agr  Rrlatinnthip  Ad^rcu 


The  only  property  of  whicii  dcceasitl  wa.**  the  owner,  or  in  which  ..he 
had  any  intt-re.st  at  the  tinu-  of  h..  drath,  is  set  forth  in  Schedule  "A,"' 
hereto  attached  and  nuide  a  part  hereof. 

The  following  is  a  description  of  all  the  pro|>erty  which  the  dece<lent 
in  h..  lifetime  conveyed,  di.striliuted.  sold  or  gave  away  in  contemplation 
of  death  or  witli  intent  to  have  sueli  conveyanee,  di»tril)Ution,  sale  or 
gift  take  etfect  in  possession  or  enjoyment  at  or  after  death  together  with 
tile  name  and  relationsliip  of  each  person  to  wlioni  such  conveyance,  dis- 
tribution, sale  or  gift  was  made,  to-wit:  . 


No  administration  is  being  had  on  the  estate  of  decedent. 

Petitioner  therefore  prays  this  court  1o  ascertain  and  determine  what 
inheritance  tax.  if  any,  is  due  from  said  estate  and  for  such  other  order 
herein  as  is  proper. 


The  State  of  Ohio,  County,  ss. 

,  being  first  duly  sworn  accordincr  to  law.  deposes  and  sars  that 

the  facts  stiited  in  the  foregoing  jietition  are  true. 


Sworn  to  before  me  and  iu  my  presence  subscribed  this    dav  of 

,19..- 


1713 


APPLICATION   TO  FIX  INHERITANCE  TAX 


§2056 


§2056.    Form—Application  to  fix  inheritance  tax— Non- 
resident. 

State  of  Oliio,  Probate  Court, County. 

[Tax  Commission  will  insert  court  having  jurisdiction.] 
Til  the  matter  of  the  inheritance  tax  on  the  succession  to  property 
in  the  State  of  Ohio. 

Estate  of ,  late  of  ,  deceased. 

To  tlie  Probate  Court  of County,  Ohio. 

The  petition  of  respectfully  represents: 

Tliat  he  is of  the  estate  of' who  died  testate  [or,  intestate] 

on  the day  of ,  If).  .  .,  being  at  the  time  a  non-resident  of  the 

State  of  Ohio,  but  a  resident  of   and  domiciled  at    in  the  state 

of 

That  at  the  time  of  Iiis  decease  said  decedent  was  possessed  of  certain 
property  which  is  under  the  jurisdiction  of  the  State  of  Ohio  for  inheritance 
tax  purposes.  Tliat  all  the  shares  of  stock  in  incorporations  organized  or 
existing  under  the  laws  of  Ohio  and  a  description  of  all  other  property 
subject  to  said  tax,  together  with  the  estimated  actual  market  value  of 
the  same  at  the  time  of  decedent's  death,  at  which  value  your  petitioner 
consents  tliat  the  same  be  appraised,  is  as  follows,  to-wit : 


No.  of  Shares  of  I 
Stock  and  Amount 
of  lOlher  Property 


Name  of  Corporation  and 
Description  of  Property 


•Location  of 

Principal  Office 

of  Corporation  or 

O'her  Property 


+Estimated 

Value  at  Date 

of  Death 


•  NOTE :  If  property  consists  of  real  estate  or  tangible  personal  property 
give  name  of  municipality  or  township  in  which  it  is  situated.  If 
property  consists  of  securities  or  other  assets  in  the  possession 
or  in  control  or  custody,  in  whole  or  in  part,  of  any  corporation, 
bank,  trust  company  or  other  institution,  person  or  persons  in 
Ohio,  give  the  location  of  such  corporation,  bank,  trust  company 
or  other  institution,  person  or  persons. 

t  XOTE :   In  case  of  mortgaged  real  estate  give  value  of  equity  only. 

That  decedent  was  possessed  of  no  other  property  of  any  kind,  real, 
personal  or  mixed,  or  any  interest  in  other  property  at  the  time  of  his 
death,  which  was  situate  in  or  which  may  be  construed  as  an  interest  in 
such  property  in  the  State  of  Ohio. 

That  said  property  passes  by  will  [or,  under  the  intestate  laws]  in  the 
proportions  and  amounts  and  to  the  persons  and  corporations  designated, 
with  the  relationship  of  the  persons  as  follows: 


RESIDENCE 


Age 

Propor- 
tion 

Relationship 


Amount  in 
Ohio  Property 


XOTE:    Indicate  life  estates,  terms  of  years,  giving  age  of  life  beneficiary 
at  the  date  of  decedent's  demise. 

That  the  total  of  decedent's  estate  is  the  sum  of  $ 

That  the  amount  of  debts,  exclusive  of  mortgages  on  real  estate,  is  the 
um  of  $ 


§  2057  INHERITANCE   TAX  1714 

That  the  decedent  during  his  lifetime  transferred  the  following  property 
within  the  State  of  Ohio  by  deed,  grant,  sale,  assignment  or  gift  made 
without  a  valuable  consideration  substantially  equivalent  in  money  or 
money's  worth  to  the  full  valut'  of  such  property,  in  contemplation  of  his 
death  or  intended  to  take  effect  in  possession  or  enjoyment  at  or  after 
such  death  

That  the  principal  administration  of  said  estate  is  now  pending  in  the 
court,  of   County.  State  of   

That  no  administration  has  been  had  in  the  State  of  Ohio  and  that  no 
reason  or  necessity  exists  for  ancillary  or  special  administration  on  said 
estate  in  Oliio. 

WIJEKKFORE,  your  petitioner  prays  that  summary  proceedings  be  had 
in  any  Probate  Court  in  the  State  of  (Jliio  solely  for  the  jiurpose  of  adjust- 
ment, determination  and  j>aynient  of  tlie  inheritance  tax  due  the  State 
of  Ohio  on  the  successions  hereinljcfore  described. 

Your  petitioner  further,  for  himself  and  on  behalf  of  all  the  legatees 
and  persons  interested,  hereby  expressly  waives  all  notices  which  otherwise 
would  by  law  be  required  to  be  given  and  consents  that  said  court  may 
determine  tlie  inheritance  tax  on  said  successions  forthwith  on  the  presenta- 
tion and  filing  of  tliis  petition,  it  being  understood,  however,  that  there 
shall  l»e  a  just  and  fair  ajipraisal.  and  tliat  said  tax  shall  be  determined 
at  the  lowest  lawful  rate  applicable  thereto  under  the  laws  of  the  State 
of  Ohio. 

Dated ,  19. . .  ,  Petitioner. 

P.  O.   Address    

State  of ,  County  of ,83. 

the  above  named  petitioner,  being  duly  sworn,  on  oath  says  that 

the  foregoing  ])etition  by  him  sub.scribed,  is  true  to  liis  own  knowledge 
except  as  to  those  matters  therein  stated  on  information  and  belief,  and 
as  to  those  matters  Ix-  l)elieves  it  to  l>e  true. 

Subscribed  and  sworn  tu  before  me  this   day  of   ,  10.  .  . 

Notary  rublic.  County  of ,  State  of 


§  2057.     Form — Application  to  fix  inheritance  tax — Small 

estate. 

state  of  Ohio,  Probate  Court,  Clark  County. 

Case  No ,  Docket ,  Page 

In  the  matter  of  the  inheritance  tax  on  the  succession  to  property. 

Estate  of late  of  Clark  County,  Ohio,  deceased. 

To  the  Probate  Court  of  Clark  County,  Ohio. 

Your  petitioner  respectfully  represents: 

That  he  is of  the  estate  of who  died on  the 

day  of   ,  19...,  being  at  the  time  a  resident  of  and  domiciled  at 

That  at  the  time  of  his  decease  said  decedent  was  possessed  of  certain 
property  which  is  under  the  jurisdiction  of  the  State  of  Ohio  for  inherit- 
ance tax  purposes.  That  a  dt^serii^t  ion  of  all  propertv  subject  to  determina- 
tion of  tax,  together  with  the  estimated  actual  market  value,  of  the  same 
at  the  time  of  decedent's  death,  at  which  value  your  petitioner  consents 
that  the  same  be  appraised,  if  necessary,  is  as  follows,  to-wit: 


1715 


APPRAISEMENT  BY   COUNTY  AUDITOR 


§2058 


Property  (a)   (b) 

DESCRIPTION 

Location 

Estimated   Value 

Tota.l 

That  decedent  was  possessed  of  no  other  property  of  any  kind,  real, 
personal  or  mixed,  or  any  interest  in  other  property  at  the  time  of  his 
deatli,  which  was  situate  in  or  wiiich  may  be  construed  as  an  interest  in 
such  property  in  tlio  J^tato  of  Oliio. 

Tliat  said  property  passes  by  will  [or,  under  the  intestate  laws]  in  the 
proportions  and  amounts  and  to  the  persons  and  corporations  designated, 
with  tiie  relationship  of  the  persons  as  follows: 


NAME         (c) 

RESIDENCE 

Age 

Proper 
tion 

Relationship 

Amourt  in 
Ohio  Property 

1 

) 

That  the  total  of  decedent's  estate  is  the  sum  of  $ 

That  the  amount  of  debts,  exclusive  of  mortgages  on  real  estate,  is  the 
sum  of  $ 

WHEREFORE,  your  petitioner  prays  that  summary  proceedings  be  had 
for  the  purpose  of  adjustment,  determination  and  payment  of  the  inherit- 
ance tax  due  the  State  of  Ohio  on  the  successions  hereinbefore  described, 
or  that  this  estate  be  certified  as  exempt  if  so  found  and  determined. 

Dated   ,  19 . .  .  ,  Petitioner. 


State  of  Ohio,  County  of  Clark,  ss. 

,   the   above   named    petitioner,   being   duly   sworn,   on   oath   says 

that  the  foregoing  petition  by  him  subscribed,  is  true  to  his  own  knowledge 
except  as  to  tiiose  matters  therein  stated  on  information  and  belief,  and 
as  to  those  matters  he  believes  it  to  be  true. 


Subscribed  and  sworn  to  before  mfe  this day  of ,  19 . 


(a) 


(b) 
(c) 


NOTE:  If  property  consists  of  real  estate  or  tangible  personal  prop- 
erty give  name  of  municipality  or  township  in  which  it  is 
situated.  If  property  consists  of  securities  or  other  assets  in 
the  possession  or  in  control  or  custody,  in  whole  or  in  part,  of 
any  corporation,  bank,  trust  company  or  other  institution, 
person  or  persons  in  Ohio,  give  location  of  such  corporation, 
bank,  trust  company  or  other  institution,  person  or  pcTSons. 

NOTE:    In  case  of  mortsaged  real  estate  give  value  of  equity  only. 

NOTE:  Indicate  life  estates,  terms  of  years,  giving  age  of  life  bene- 
ficiary at  the  date  of  decedent's  demise. 


§  2058.  Appraisement  by  county  auditor.  §  5341.  The 
county  auditor  shall  be  the  inheritance  tax  appraiser  for  his 
county.  The  probate  court,  unon  its  own  motion  may,  or  upon 
the  application  of  any  interested  person,  including  the  tax  com- 
mission of  Ohio,  shall  by  order  direct  the  county  auditor  to  fix 
the  actual  market  value  of  any  property  the  succession  to  which 
is  subject  to  the  tax  levied  by  this  subdivision  of  this  chapter. 


§  2059  INHERITANCE  TAX  1716 

Auditor  to  give  notice.  Such  auditor  shall  forthwith  give 
notice  by  mail  to  all  persons  known  to  him  to  have  a  claim  or 
interest  in  the  property  to  be  appraised,  including  the  tax 
commission  of  Ohio,  and  to  such  persons  as  the  probate  court 
may  by  order  direct,  of  the  time  and  place  when  he  will  ap- 
praise such  property. 

Appraised  at  market  value.  He  sha'l  at  such  time  and 
place  appraise  the  same  at  its  actual  market  value  as  of  the 
date  of  the  accrual  of  the  tax,  except  as  hereinafter  provided, 
and  subject  to  the  rules  hereinafter  prescibed. 

May  subpoena  witnesses.  Such  county  auditor  for  such 
purpase  is  hereby  authorized  to  issue  subpoenas  and  to  compel 
the  attendance  of  witnesses  and  the  production  of  books  and 
papers  before  him,  and  to  examine  such  witnesses  under  oath 
concerning  such  property,  the  value  thereof,  and  the  nature 
and  circumstances  of  the  succession.  Disobedience  of  such  sub- 
poena, or  refusal  to  testify  on  such  examination  shall  be  pun- 
ished as  a  contempt  of  the  probate  court. 

Report  of  finding.  The  county  auditor  shall  report  his 
findings  in  writing,  together  with  the  depositions  of  the  wit- 
nesses examined,  and  such  other  facts  in  relation  thereto  as 
the  probate  court  may  order.  Such  report  shall  be  made  in 
duplicate;  one  copy  thereof  shall  be  filed  with  the  probate 
court,  and  the  other  with  the  tax  commission  of  Ohio. 

Fees  of  sheriff,  etc.  The  fees  of  the  sheriff  or  other  officer, 
serving  such  subpoenas,  and  the  actual  and  necessary  traveling 
and  other  expenses  incurred  by  the  county  auditor  in  making 
the  appraisement  shall  be  certified  by  the  county  auditor  on 
such  report.  If  the  probate  judge  finds  such  fees  and  expenses 
to  be  correct,  he  shall  allow  such  fees,  and  so  much  of  such 
expenses  as  he  may  find  to  have  been  reasonable,  having  regard 
to  the  amount  of  the  state's  share  of  the  taxes,  and  certify  the 
amount  so  allowed  for  each  on  the  order  fixing  the  taxes. 

Entire  estate  to  be  appraised.  For  the  purpose  of  this  and 
succeeding  sections  of  this  subdivision  of  this  chapter  relating 
to  the  assessment  of  the  tax,  the  entire  estate  of  a  decedent, 
though  passing  to  several  persons,  institutions  or  corporations, 
shall  be  the  subject  of  inquiry  in  a  single  proceeding.  [108  v. 
568.]" 

§  2059.    Appraisal  of  property  by  auditor. 

The  court  may  of  its  own  motion,  direct  the  auditor  in  any 
case  to  make  an  appraisal.  But  in  most  cases  the  court  will 
be  able  to  fix  the  value  just  as  well  as  the  auditor,  and  unless 
especially  asked  for,  the  court  might  well  proceed  and  fix  the 
value  and  not  refer  the  same  to  the  auditor.    Whether  the  court 

2T  §  230  N.  Y.  inheritance  tax. 


1717  AUDITOR   TO  MAKE  APPRAISAL  §  2060 

could  refuse  to  so  refer,  if  requested,  is  doubtful.  In  New  York 
the  court  appoints  an  appraiser;  our  statute  practically  per- 
mits the  same  thing,  merely  designating  who  should  be  the 
appraiser.  The  New  York  statute  now  designates  the  county 
treasurer  to  act  where  there  is  no  salaried  appraiser.  When  the 
matter  is  so  referred  to  the  auditor  the  court  makes  an  order 
to  that  effect. 

§2060.      Form— Journal    entry    directing    auditor    to    make 

appraisal. 

In  the  Probate  Court  of County,  Ohio. 

In  the  matter  of  the  settlement  of  the  estate  of ,  deceased. 

DETERMINATION  OF  INHERITANCE  TAX. 

This    day  of    ,   19 .  .  .,  the  matter  of  the  determination  of 

what  inheritance  tax,  if  any,  is  due  in  connection  with  the  settlement  of 
the  estate  of ,  deceased,  came  on  to  be  heard. 

And  thereupon  the  court  [on  its  own  motion]   [on  the  motion  of 1 

directed  the  auditor  of    county  to  proceed  according  to  law  to  fix 

the  actual  market  value  of  each  share  of  said  estate  the  succession  to  which 
is  subject  to  inheritance  tax  under  tlie  laws  of  Ohio. 

It  is  further  ordered  that  a  writ  of  appraisal  be  issued  forthwith  to  said 
auditor.  Such  writ  shall  contain  a  list  of  names  of  the  persons  entitled 
to  succession  to  said  estate  or  any  part  thereof,  and  a  brief  description  of 
the  property  to  which  each  is  entitled  to  succeed. 

Of  his  proceedings  under  such  writ  the  said  auditor  is  directed  to  make 
due  return  to  this  court  without  unnecessary  delay. 

§  2061.     Form — Writ  to  auditor  to  appraise. 

In  the  Probate  Court  of County,  Ohio,    ^o 

In  the  matter  of  the  estate  of ,  deceased. 

ORDER  TO  APPRAISE. 

To  the  Honorable   County  Auditor  nnd  Tidieritance  Tax  Appraiser 

for County,  Ohio : 

Pursuant  to  an  order  of  the  Probate  Court  of county,  made  and 

entered  on  the   day  of   ,  19...,  and  under  the  provisions  of 

Section  5341  et  seq.  of  the  General  Code  you  are  hereby  directed  to  fix 
the  actual  market  value,  as  of  the  date  of  death,  of  tlie  property  of  the 

above  named    ,  who  died  on  tlie    day  of    ,   19...,  and 

who.se  place  of  residence  was  in   county.     Diiplifatc  itemized 

statements  of  the  jiroperty  to  be  appraised,  markyd  Schedule  A,*  and  a 
list  of  the  names  and  addresses  of  all  persons  known  to  the  court  to  liavo 
a  claim  or  interest  in  such  property,  marked  Scliedule  (',  are  herewith 
handed  you  for  your  use  in  making  your  report  hereon. 

Notice  of  the  time  and  place  of  your  api)raisal  must  be  jriven  as  pre- 
scribed by  law  to  the  tax  commission  of  Oiiio  and  to  tbe  persons  named 
in  Schedule  C*  and  also  to  the  following: 


When  completed  you  will  report  your  findings  in  writing  together  with 
+1)6  depositions  of  the  witnesses  examined  and   a  statement  of  the  fees  of 


§  2062  INHERITANCE    TAX  1718 

the  oHicer  who  may  serve  any  subpoenas  issued  by  you  and  of  your  own 
necessary  traveling  and  other  expenses.  Sucli  report  shall  be  in  duplicate; 
one  copy  thereof  shall  be  filed  with  this  court,  and  the  other  with  the 
tax  commission  of  Ohio. 

Witness  my  hand  and  the  seal  of  said  Probate  Court  at ,  Ohio, 

this day  of ,  19 . . . 

,  Probate  Judge. 

[seal] 

*  Two  copies  of  Schedule  A  and  a  copy  of  Schedule  C,  as  contained  in  the 
application  should  be  given  to  the  auditor  along  with  this  order. 


§  2032.    Duties  of  auditor. 

The  auditor  should  proceed  to  obey  the  orders  of  the  court. 
He  has  power  to  subpoena  witnesses,  and  compel  them  to  dis- 
close what  they  know  concerning  the  property  and  its  value. 
Disobedience  is  a  contempt  of  the  Probate  Court. 

When  the  auditor  has  fulfilled  the  commands  of  the  court,  he 
must  make  his  report  in  duplicate;  one  copy  he  gives  to  the 
Probate  Court,  the  other  to  the  tax  commission.  Ordinarily 
this  report  will  be  a  mere  finding  of  facts,  but  the  court  may 
order  the  testimony  of  witnesses  to  be  taken  in  writing  and  filed 
with  the  report.  The  report  should  show  the  costs  and  expenses 
of  making  the  appraisement.  This  report  must  show  that  it 
includes  all  the  property  of  the  decedent  and  value  at  the  time 
of  his  death.  It  must  also  show  the  township  or  municipality 
in  which  the  tax  originates. 

Under  the  former  New  York  statute  the  appraiser  found  not 
only  the  value  of  the  property,  but  the  assessments  as  well.  The 
present  New  York  statute  is  similar  to  ours.-^ 

In  that  State  it  is  held  that  his  powers  and  duties  are  of  a 
quasi  judicial  character,  and  call  for  the  exercise  of  sound 
judgment,  discretion  and  knowledge  of  legal  principles.-^  That 
his  functions  are  somewhat  similar  to  those  of  a  jury  called 
by  the  court  in  an  equity  case  to  aid  its  conscience.  The  whole 
matter  rests  with  the  surrogate  and  continues  with  him  until 
final  determination  after  appeal.^''  His  duties  do  not  include 
the  writing  of  legal  opinions.^^  He  can  not  determine  ques- 
tions of  residence.^-  He  can  administer  oaths  and  subpoena 
witnesses,  but  he  can  not  issue  a  commission  to  take  testimony 

28  §  230  N,  Y.  tax  law.  31  IMatter   of   Von    Bermuth,    171 

29  People    vs.    Glynn,    106   N.    Y.      N.  Y.  Sunp.  704. 

Supp.  956.  "  32:^!■at!er    of    Giant,    144    K    Y. 

30  Msitier  of  Thompson,  68  K  Y      Supp.  567. 
Supp.  063. 


]^719  HEARING   BEFORE  AUDITOR  §  2063 

in  a  foreign  jurisdiction."^  In  such  cases  an  expert's  opinion 
would  probably  be  the  best  evidence.  The  good  will  of  a  going 
concern  is  an  asset  but  very  difficult  of  ascertaining  its  value.^* 
Unless  of  definite  and  satisfactory  value,  and  probable  large 
amount,  it  will  generally  not  be  taken  into  consideration.  The 
value  of  partnership  interests  will  generally  be  fixed  in  the  same 
method  that  individual  property  is.  The  value  of  all  property 
is  to  be  fixed  as  of  the  date  of  death  of  decedent.  Where  life 
insurance  is  payable  to  the  estate  it  is  subject  to  tax;  where  not 
so  payable,  it  is  not."^  It  is  said  it  is  the  only  form  in  which 
property  can  pass  from  one  who  seeks  to  make  provision  for 
the  object  of  his  bounty  at  his  death,  without  inheritance  taxes 
at  his  death.'^ 

§  2063.    Notice  of  hearing  before  auditor. 

[Title. 

To ,  you  will  please  take  notice  tliat  pursuant  to  an  order  from 

Probate    Judge    of    County,    Ohio,    made    and    entered    on 

tlie day  of ,  10 .  .  .  I  will  on  the day  of ,  19 . .  . , 

at o'clock  at  the  auditor's  office  in  said  county,  proceed  to  appraise 

the  property  of   ,  deceased,  at  its  fair  market  value  at  the  time  of 

decedent's  death,  for  the  purpose  of  fixing  the  inheritance  tax  that  may 
be  due  and  payable  thereon.  Such  of  you  as  are  minors  or  unsound  mind 
or  other  disability  will  make  the  same  known,  that  the  court  may  act 
as  provided  in  sections  11249  to  11253  of  the  General  Code. 

,  Auditor. 

WAIVER. 

We  the  undersigned,  beneficiaries  of  the  estate  of    ,   do  hereby 

acknowledge  service  of  the  above  notice. 


RETURN. 

State  of  Ohio,   County,  ss. 

I    ,   the   auditor   of    Clark    County,   Ohio,   being   first    duly   sworn 

say  that  on  the day  of ,  19. , .   I  mailed  a  copy  of  the  aliove 

notice    to    ,    addressed    ;    to    ,    addressed    ;    to 

,  addressed 

,  Auditor. 

Sworn   to   and   subscribed  before  me  and    in   mv   presence   this    

day  of ,  19..  . 


33  Matter    of    Grant,    151    X.    Y.  35  Gleason    and    Otis,    Inheritance 
Supp.  1119.     See  Glrason  and  Otis,  tax,  2nd  ed.  162-165-173. 
Inheritance  taxation,  2nd  cd.  449.  3o  Under  the  U.  S.  inheritance  tax 

34  See  illustrations  in  Glca;-:on  and  all  above  $40,000  is  subject  to  tax. 
Otis,  Inheritance  tax,  2nd  ed.  358- 

"374. 


§  2064  INHERITANCE   TAX  1720 

§  2064.     Fixing  value  of  real  estate. 

The  assessed  value  of  property  for  taxation,  while  not  con- 
trolling,-' is  a  matter  for  consideration  in  fixing  the  value  of 
real  estate.  If  it  is  not  clearly  wrong  the  auditor  or  the  court 
as  the  case  might  be,  would  be  justified  in  following  it. 

But  it  is  said  the  best  evidence  is  the  price  obtained  for  hotia 
fide  sales  of  property  in  the  vicinity  within  a  short  time  prior 
to  decedent's  death.^^  The  price  realized  at  a  forced  sale  is 
no  fair  test  of  the  market  value,^^  Yet  is  is  a  matter  to  be  con- 
sidered where  property  is  put  up  for  public  sale,  freely  adver- 
tised and  sold  for  the  highest  bid  among  several  bidders,  this 
could  be  deemed  to  its  value.  The  rental  value  is  an  important 
element  to  consider  in  fixing  real  estate  values.  While  it  is 
held  that  undivided  interest  is  the  full  portion  of  the  whole,** 
yet  it  is  fair  to  assume  that  some  deduction  should  be  made 
because  it  is  undivided.  It  is  held  in  New  York  that  where  real 
estate  is  specifically  devised,  subject  to  mortgage  indebtedness, 
such  indebtedness  should  be  deducted.*^  Real  estate  should 
never  be  appraised  at  a  fancy  or  speculative  price.  The  value 
of  all  property  is  its  actual  value  at  time  of  decedent's  death. 
Estate  of  dower  and  tenancy  by  courtesy  are  not  subject  to 
taxation.*^ 

§  2065.    Appraisal  of  personal  property. 

Perhaps  the  best  rule  to  be  applied  in  fixing  the  value  of 
ordinary  personal  property  is  that  which  it  will  bring  at  public 
sale.  When  it  is  in  the  form  of  notes  and  accounts,  that  which 
can  be  collected  thereon,  lees  cost  of  sale  and  collection. 

In  the  matter  of  stocks  actually  dealt  with  on  the  market,  the 
average  price  a  reasonable  period  before  and  after  death  of  the 
decedent  is  the  best  measure  of  value.*^  When  the  stocks  are 
not  actually  on  the  market,  more  difficulty  is  experienced.  In 
such  cases  its  intrinsic  value  must  be  ascertained  by  a  determina- 
tion of  the  value  of  the  corporation  that  has  issued  it.*^ 

sTMcGee  vs.   State,  105  Iowa  9;  would   probably  follow   that   a  be- 

Wainer  vs.  Corbin,  91  Conn.  532.  quest   in   lieu   of   dower   or   curtesy 

38  Matter  of  Arnold,  99  N.  Y.  would  be  exempt  to  the  extent  of 
(Supp.)  740.  In  this  case  it  was  the  value  of  the  dower  or  curtesy 
held  it  was  error  for  the  appraising  interest. 

oflBcer  to  fix  a  higher  price.  If   wife   takes   under   will  waives 

39  Matter  of  Patmo,  169  N.  Y.  dmver  right.  Op.  Atty.  Genl.  1920, 
Supp.  765.  p.  834. 

40  Wingert  vs.  State,  129  Md.  28.  See  note  63,  §  2029  encumbrances. 

41  Matter  of  Murphy,  50  N,  Y.  43  Gleason  and  Otis,  Inheritance 
Supp.    1110;    Matter  of   Sutton,   38  taxation,  2nd  ed.  343. 

N.  Y.  Supp.  227.  44  IMatter  of  Jones,  172  N.  Y.  575 

See  note  2029.  See  illustration  from  N.  Y.  cases  in 

42  Gleason    and    Otis.    Inheritance 
tax,    2nd    ed.    185.      From    this    it 


1721  FUTURE   OR   LIMITED   ESTATE   DETERMINED  §  2066 

Great  difficulty  may  be  experienced  in  fixing  a  value  to  things 
that  liave  no  general  market  value,  such  as  heirlooms,  pictures, 
etc.  Also  where  some  portion  is  within  the  State  and  some 
without,  thus  when  a  non-resident  died  owning  stock  worth 
$50,000  in  a  consolidated  corporation,  organized  under  the  laws 
of  Ohio  and  other  States,  in  such  case  the  attorney  general  held 
such  stock  is  subject  to  tax  and  should  be  appraised  as  such 
proportion  of  its  market  value  as  is  determined  by  the  propor- 
tion of  the  entire  property  of  the  company  located  in  Ohio,  due 
allowance  being  made  for  the  location  of  particular  property 
in  this  and  other  States.*^ 

§  2066.     Value    of    future    or   limited    estate    determined. 

§  5342.  The  value  of  a  future  or  limited  estate,  income,  interest 
or  annuity  for  any  life  or  lives  in  being,  or  of  any  dower  interest 
or  other  estate  or  interest  upon  which  any  estate  or  interest  the 
succession  to  which  is  taxable  under  this  chapter  is  limited,  shall 
be  determined  by  the  rule,  method  and  standard  of  mortality 
and  value  employed  by  the  superintendent  of  insurance  in  ascer- 
taining the  value  of  annuities  for  the  determination  of  liabilities 
of  life  insurance  companies,  except  that  the  rate  of  interest  shall 
be  five  per  centum  per  annum. 

Superintendent  of  insurance  shall  determine.  The  super- 
intendent of  insurance  shall,  without  a  fee,  on  the  application 
of  any  probate  court  or  of  any  county  auditor,  determine  the 
value  of  any  such  estate,  income,  interest  or  annuity,  upon  the 
facts  contained  in  any  such  application,  and  other  facts  to  him 
submitted  by  such  court  or  auditor  and  certify  the  same  in 
duplicate  to  such  court  or  auditor,  and  his  certificate  thereof 
shall  be  conclusive  evidence  that  the  method  of  computation 
therein  i^  correct. 

Whole  estate  to  be  valued.  In  estimating  the  value  of  any 
estate  or  interest  in  property,  to  the  beneficial  enjoyment  or 
possession  whereof  there  are  persons  or  corporations  presently 
entitled,  no  allowance  shall  be  made  on  account  of  any  contingent 
encumbrance  thereon,  nor  on  account  of  any  contingency  upon 
the  happening  of  which  the  estate,  or  some  part  thereof,  or 
interest  therein,  may  be  abridged,  defeated  or  diminished;  but 
in  the  event  of  such  encumbrance  taking  effect  as  an  actual 
burden  upon  the  intere-st  of  the  beneficiary,  or  in  the  event 
of  the  abridgement,  defeat,  or  diminution  of  such  estate,  or 
interest  therein,  as  aforesaid, 

Refunder.  A  refunder  shall  be  made  in  the  manner  pro- 
vided by  section  5339  of  the  General  Code,  to  the  person  properly 
entitled  thereto  of  a  proportionate  amount  of  such  tax  on  account 
of  the  encumbrance  when  taking  effect,  or  so  much  as  will 
-reduce  the  same  to  the  amount  which  would  have  been  assessed 

Gloason  and   Otis,  Inheritance  tax.,  45  Atty.  Genl's.  op.,  Sept.  7,  1020. 

2nd  ed.  338-351.  05  Bull.  414. 


§  2067  INHERITANCE   TAX  1722 

on  account  of  the  actual  duration  or  extent  of  the  estate  enjoyed. 
[108  V.  1195.] « 

§  20C7.    Fixing  value  of  future  or  contingent  interests. 

Section  2066  (§  5342,  G.  C),  section  2071  (§  5343,  G.  C),  and 
section  2073  (§5344,  G.  C),  provide  for  the  fixing  of  future 
vested  or  contingent  interests. 

Two  things  should  be  borne  in  mind:  first,  the  value  is  to 
be  fixed  as  of  the  time  of  decedent's  death;  second,  it  is  payable 
within  a  year  of  decedent's  death,  no  matter  when  the  party 
entitled  gets  possession.  This  no  doubt  will  work  a  hardship 
in  some  instances.^'^ 

These  interests  are  to  be  fixed  by  the  rule,  method  and  standard 
of  mortality  and  value,  employed  by  the  superintendent  of 
insurance  of  Ohio.  The  table  he  follows  is  that  of  the  American 
experience  at  the  rate  of  5%.  For  all  practical  purposes  there 
is  not  much  difference  between  the  various  tables. 

Unless  the  statute  so  states — and  ours  does  not — estates  of 
dower  and  courtesy  are  not  subject  to  taxation.**'''  If  there  is  a 
contingent  incumbrance  no  allowance  shall  be  made  for  this. 
When  the  incumbrance  becomes  a  reality,  the  person  paying 
the  tax,  roay,  by  making  a  proper  application,  have  a  just  pro- 
portion refunded.  Of  course  if  the  incumbrance  is  such  that 
its  value  can  be  determined,  it  should  be  deducted. 

§  2068.     Application  to  superintendent  of  insurance. 

["Title.]  ,19... 

Dear  Sir: — In  pursuance  of  section  5342  General  Code,  you  are  hereby 
requested  to  determine  and  ascertain  the  value  of  the  following  estate, 
annuities  and  interests: 

Legacy  or                   Value  or 
Name                            Age                            Estate                       Amount 
$ 

To  superintendent  of  insurance  department. 

Respectfully, 

,  Probate  Judge." 

46  See  §§231   and  230,  N.  Y.  in-  ing  his,  the  son's,  natural  life.     The 

heritance  tax.  trustee   is   clothed   also  with   power 

4ca  If  widow  took  under  will  it  to  invade  the  principal  in  the  event 
would  not  be  deducted.  Atty.  that  it  becomes  necessary  to  do  so 
Genl's  op.  1920,  p.  834.  Right  to  for  the  support  of  the  beneficiary, 
remain  in  mansion  house  not  to  be  At  the  son's  death  his  funeral  ex- 
deducted.     Id.,   §  1044.  '  penses   are    to    be   paid   out   of   the 

4' See  §2037  G.  C,  Tax;  when  to  fund.     The    residue    is    then    to    be 

be  paid.  distributed   to   the  heirs   at  law  of 

(No.  1997.)  the   beneficiary,   if   he   should   leave 

R.   died   testate.     By  his  will  he  any  legitimate  issue,  but  if  no  such 

placed  all  his  property  in  the  Iwnds  issue   is    left   then    it   is   to   pass   to 

of  a  trustee  with  authority  to  pay  the  next  of  kin  of  the  testator. 

the  entire  income  thereon  to  the  son  Held: 

of  the  testator,  or  to  c-xpend  the  in-  (1)    Tho  beneficial  interest  of  the 

come  for  the  benefit  of  such  son  dur- 


1723 


INHERITANCE  Tx^XATION  TABLE 


§2069 


§2069.    Inheritance  taxation  table. 

AMERICAN  EXPERIENCE  TABLE— DISCOUNTED  AT 
FIVE  PER  CENT.  COMPOUND  INTEREST. 


Expectation 

Present 

Expectation 

Present 

Age 

of  Life 

Value  of  $1 

Age 

of  Life 

Value  of  $1 

in  Years 

per  Annum 

in  Years 

per  Annum 

0 

'11.45 

$12,813 

43 

22.35 

$12,133 

1 

47.94 

14.922 

49 

21.63 

11.901 

2 

50.16 

15.731 

50 

20.91 

11.662 

3 

50.91 

10.125 

51 

20.20 

11.416 

4 

51.23 

16..346 

52 

19.49 

11.164 

5 

51.13 

16.472 

53 

18.79 

10.905 

G 

50.83 

16.535 

54 

13.00 

10.640 

7  

50.41 

16.561 

55 

17.40 

10.370 

8 

40.90 

16.560 

53 

16.72 

10.095 

9 

40.33 

16.540 

57 

16.05 

9.8145 

10 

43.72 

16.505 

58  

15.39 

9.5299 

11   

48.09 

16.461 

50 

14.74 

9.2413 

12 

47.45 

16.415 

GO 

14.10 

8.9493 

13  

40.80 

16.366 

Gl   

13.47 

8.6545 

11 

40.16 

16.316 

62 

12.86 

8.3574 

15  

45.51 

16.263 

63 

12.26 

8.0588  1 

10 

44. P5 

16.207 

64 

11.67 

7.7590 

17  

44.19 

16.149 

65   

11.10 

7.4588 

13 

43.53 

16.088 

G6 

10.54 

7.1592 

10  

42.87 

16.024 

67 

10.00 

6.8607 

20 

42.20 

15.957 

G3 

9.47 

6.5642 

21 

41.53 

15.886 

69 

8.97 

6.2705 

22 

40.85 

15.813 

70 

8.48 

5.9801 

23 

40.17 

15.736 

71 

8.00 

5.6942 

21 

30.49 

15.655 

72 

7.55 

5.4129 

25 

38.81 

15.570 

73 

7.11 

5.13.59 

23 

33.12 

15.482 

74 

6.68 

4.8628 

27 

37.43 

15.3S9 

/  > 

6.27 

4.5926 

23 

36.73 

15.292 

76 

5.88 

4.3248 

£0 

36.03 

15.191 

77 

5.49 

4.0586 

30 

35.33 

15.084 

78 

5.11 

3.7939 

CI   

34.63 

14.973 

79 

4.75 

3.5311 

33.92 

14.857 

80 

4.39 

3.2702 

33 

33.21 

14.735 

81 

4.05 

3.0135 

31 

32.50 

14.603 

82 

3.71 

2.7606 

35 

31.78 

14.475 

83 

3.39 

2.5105 

30 

31.07 

14.336 

84 

3.08 

2.2607 

37   

30,35 

14.191 

85 

2^77 

2.0008 

S3  

20.63 

14.039 

86 

2.47 

1.7606 

SO  

23.(^0 

13.881 

87 

2.18 

1.5175 

40 

23.13 

13.716 

83  ..'..... 

1.91 

1.2861 

41  

27.45 

13.544 

CO 

1.66 

1.0670 

42 

26.72 

13.365 

90 

1.42 

0.85453 

43 

25.99 

13.179 

91 

1.10 

0.64497 

44 

25.27 

12.985 

02 

.98 

0.44851 

45 

24.54 

12.783 

93 

.80 

0.28761 

40 

23.81 

12.574 

94 

.64 

0.13605 

47  

23.08 

12.357 

C5  

.50 

son   is   to  be   appraised    as   a  life 
estate. 

(2)   The    cliarge    on    account    of 
.funeral  expensed  is  to  be  valued  by 
setting  aside  a  roasonal)le  sum  for 
that  purpose  at  its  present  worth. 


(3)   The  contingent  remainder  is 

to    bo    immediately    taxed    in    the 

seven   per   cent,    class   by   virtue   of 

§  5343  of  the  General   Code.     Atty. 

Genl's  op.  1920,  p.  660. 


§  2070  INHERITANCE   TAX  1724 

§  2070.     Computation. 

Almost  all  the  inheritance  laws  of  the  various  States  permit 
the  matter  of  the  computation  of  inheritance  tax  to  be  referred 
to  a  State  official  who  is  an  expert  along  that  line,  and  no  doubt, 
practically  in  all  cases  where  the  matter  is  any  way  complicated, 
such  reference  will  be  made.  But  there  will  be  a  good  many 
instances  in  ordinary  practice  where  the  matter  is  merely  a  life 
estate,  or  dower,  or  annunity,  etc.,  and  a  reference  to  the  state 
official  will  hardly  be  deemed  necessary. 

The  Ohio  State  superintendent  uses  the  American  Experience 
Table.  As  this  table  is  not  given  in  the  tables  elsewhere  given 
in  this  volume,  we  have  deemed  it  wise  to  insert  it  here.  The 
same  method  can  be  used  as  that  described  in  See.  2136  et 
sequor  at  the  end  of  the  work.*^ 

§  2071.  Taxation  of  estates  dependent  on  contingencies. 
§  5343.  When,  upon  any  succession,  the  rights,  interests,  or 
estates  of  the  successors  are  dependent  upon  contingencies  or 
condition.s  whereby  they  may  be  wholly  or  in  part  created,  de- 
feated, extended  or  abridged, 

Tax  at  highest  rate.  A  tax  shall  be  imposed  upon  such 
successions  at  the  highest  rate  which,  on  the  happening  of  any 
such  contingencies  or  conditions,  would  be  possible  under  the 
provisions  of  this  subdivision  of  this  chapter, 

Due  at  once.  And  such  taxes  shall  be  due  and  payable 
forthwith  out  of  the  property  pas.sing,  and  the  probate  court 
shall  enter  a  temporary  order  determining  the  amount  of  such 
taxes  in  accordance  with  this  section; 

Refunder.  But  on  the  happening  of  any  contingency 
whereby  the  said  property,  or  any  part  thereof,  passes  so  that 
such  ultimate  succession  would  be  exempt  from  taxation  under 
the  provisions  of  this  subdivision  of  this  chapter,  or  taxable  at 
a  rate  less  than  that  so  imposed  and  paid,  the  successor  shall 
be  entitled  to  a  refunder  of  the  diiference  between  the  amount 
so  paid  and  the  amount  payable  on  the  ultimate  succession  under 
the  provisions  of  this  chapter,  without  interest; 

Executor  to  apply  for.  And  the  executor  or  trustee  shall 
immediately  upon  the  happening  of  such  contingencies  or  condi- 
tions apply  to  the  probate  court  of  the  proper  county,  upon  a 
verified  petition  setting  forth  all  the  facts,  and  giving  at  least 
ten  days'  notice  by  mail  to  all  interested  parties,  for  an  order 
modifying  the  temporary  order  of  said  probate  court  so  as  to 
provide  for  a  final  as.sessment  and  determination  of  the  taxes 
in  accordance  with  such  ultimate  succession.  Such  refunder  shall 
be  made  in  the  manner  provided  by  section  5339  of  the  General 
Code.     [108  V.  569.]*^ 

48  See  Gleason  and  Otis  on  Inherit-  single  heir.     Atty.  Genl's  op.  1920, 

ance  tax,  2nd  ed.,  298,  etc.  p.  970. 

When  there  is  a  devise  to  A.  for  Assessment     of     inheritance     tax 

life  and  at  his  death  to  the  heirs  of  upon  a  devise  of  %  life  estate  to  a 

his  body,  the  contingent  remainder  widow  with  power  to  consume  the 

should  be  valued  on  the  hypothesis  principal,     remainder     to     children, 

that    it    will    become    vested    in    a  requires    the   valuation    of    the   life 


1725  WHEN   CONTINGENCIES  EXIST  §  2072 

§  2072.    When  contingencies  exist,  tax  to  be  at  higher  rate. 

The  provisions  of  the  previous  section  may  seem  to  work  an 
injustice,  in  the  collection  of  moneys  that  may  never  become 
due  or  payable,  and  was  not  found  in  the  earlier  statutory  pro- 
visions of  States,  relating  to  the  inheritance  tax.  But  the  State 
has  assumed  that  the  person  receiving  the  property,  should  run 
the  risk  of  the  contingencies,  and  allow  to  such  person  the  right 
to  come  into  court,  when  the  contingency  has  occurred,  and  have 
a  refunder  of  the  amount  he  has  paid.  Similar  provisions  have 
been  declared  constitutional.^" 

In  a  very  interesting  case — Matter  of  Parker,  226  N.  Y.  261 — 
this  question  is  considered,  and  the  court  holds  the  statute  should 
be  followed  to  the  letter.^^ 

When  the  contingency  happens  the  executor  or  trustee  shall 
immediately  apply  to  the  Probate  Court,  by  a  verified  petition 
setting  up  all  the  facts,  and  give  notice  by  mail  to  all  interested 
parties,  to  have  a  final  assessment  made. 

If  there  were  no  executor  or  trustee  I  have  no  doubt  a  party 
in  interest  could  make  the  application.  It  would  seem  that  the 
order  could  be  appealed  from  as  a  final  order. 

§  2073.     Estates  held  in  abeyance  or  expectancy.     §  5344. 

Estates  in  expectancy  which  are  contingent  or  defeasible,  and 
in  which  proceedings  for  the  determination  of  the  taxes  have 
not  been  taken,  or  have  been  held  in  abeyance,  shall  be  appraised 
at  their  full  undiminished  value,  when  the  persons  entitled 
thereto  shall  come  into  the  beneficial  enjoyment  or  possession 
thereof,  without  diminution  for  or  on  account  of  any  valuation 
theretofore  made  of  the  particular  estates  for  the  purpose  of 
this  subdivision  of  this  chapter,  upon  which  such  estates  in 
expectancy  may  have  been  limited. 

Estate  for  life.  An  estate  for  life  or  for  years  which  can 
be  divested  by  the  act  or  omission  of  the  legatee,  or  devisee,  shall 
be  appraised  and  taxed  as  if  there  were  no  possibility  of  any 
such  divesting.     [108  v.  570.] ''- 

§  2074.    When  tax  not  paid  on  estate  held  in  abeyance. 

If  for  any  reason  proceedings  have  not  been  taken — an  estate 
in  expectancy,  etc. — such  estate  shall  be  appraised  at  its  full 

estate  in  the  ordinary  way  without  sessments     and     adjustments.     Op. 

any   additionals   on   account  of  her  Atty.   Genl.    1920,   65   Bull.   431. 

power  to   invade  the  principal,  and  -^a  See  §  2,30,  N.  Y.  inheritance  tax. 

the  valuation  of  the  remainders  as  so  Matter  of  Brez.,  172  N.  Y.  GOO; 

ordinary  vested  remainder  ignoring  Matter  of  Vanderbilt,  172  N.  Y.  69; 

the    power   of    consumption    of    the  People  vs.  Loueston,  284  111.  119. 

principal    by    the    widow.     If    any  ^i  gee  Gleason  and  Otis,  Inherit- 

^ncroachment    on    the    principal    is  ance  tax,  2nd  ed.  271,  where  the  de- 

effoctod    the    remaindennen    will   be  cision    is    quoted    and   matter   fully 

entitled   to  a  refunder  on   final   as-  described. 

f>2  See  §  230,  N.  Y.  inheritance  tax. 


§.  2075  INHERITANCE    TAX  1726 

value  at  the  time  the  person  entitled  thereto  is  entitled  to  come 
into  possession,  without  any  diminution  from  the  preceding  es- 
tate. This  does  not  apply,  however,  to  estates  in  remainder, 
that  vested  prior  to  the  passage  of  the  law.  The  time  always 
dates  from  the  decedent's  death.  This  is  held  to  be  true  even 
though  the  remainder  be  defeasable.^^  This  would  seem  to 
allow  for  increased  or  diminished  valuation  between  the  death 
of  the  decedent  and  the  time  the  person  is  entitled  to  possession. 


§  2075.    Form— Report  of  auditor. 

In  the  Probate  Court  of County,  Ohio.    No. 

Ill  the  matter  of  tho  estate  of ,  deceased. 


DUPLICATE  REPOET  OF  THE  INHERITANCE  TAX  APPRAISER. 

To  Honorable    ,  Probate  Judge    County,  Ohio,  and  to  the 

Honorable  Tax  Commission  of  Ohio: 

Said    having  died   on  the    day  of    ,   19...,   I,   the 

undersigned   county   auditor   and   inlieritanee   tax   appraiser,  who   was   by 

an  order  of  the  Probate  Court  of   County,  duly  made  and  entered 

on   the    day   of    ,   19...,  directed   to   fix  the   actual   market 

value  of  all  tlie  property  of  said  decedent  the  succession  to  which  is  sub- 
ject to  tax  levied  under  the  provisions  of  the  Inheritance  Tax  (Law  of  Ohio, 
do  respectfully  report: 

First.  That  I  received  such  order  on  the   day  of   ,  19..., 

and  on  the   day  of    ,   19 ... ,  I  gave  notice  by  mail,  postage 

prepaid,  to  all  persons,  known  to  me  to  have  a  claim  or  interest  in  the 
property  to  be  appraised,  inchuling  the  tax  commission  of  Ohio,  and  to 
such  other  persons  as  said  Probate  Court  did  by'  its  order  direct,  of  the 
time  and  place  at  whicli  I  would  appraise  said  property,  a  true  copy  of 
which  notice  is  hereto  attached. 

That  the  names  of  those  to  whom  I  mailed  such  notice,  properly 
addressed,  are  as  follows: 

The  Tax  Commission  of  Ohio,  Columbus,  Ohio: 


Second.  At  the  time   and   place   in   said   notice   stated,   namely,   on   the 

day   of    ,    19...     Fand   at   other   and   subsequent   times    and 

divers  places  to  which  these  proceedings  were  regularlv  adjoiirned],  I 
appraised  at  its  actual  market  value  as  of  the  date  of  death  all  the  prop- 
erty, real  and  personal,  of  which  tiie  said  decedent  died  seized,  or  which 
was  in  any  way  subject  to  tlie  payment  of  said  inheritance  tax,  and  which 
was  itemized  in  the  statement,  marked  Schedule  A,  which  accompanied 
the  order  to  appraise.  The  value  of  each  item  has  been  inserted  bv  me 
opposite  the  same  where  it  appears  on  such  schedule  which  is  herewith 
returned  as  part  of  this  report. 

63  Gleason   and   Otis,    Inheritance  tax,  2nd  ed.  266. 


1727  PROBATE  COURT  SHALL  FIND  ACTUAL  VALUE  §  2076 


EEC  APITULATION , 


Third.   Total   value   of   decedent's   personal  estate  was   $ Total 

value  of  decedent's  real  estate  was  $ Total  $ 

Fourth.     I  further  report  that  the  following  interested  persons  appeared 
before  me  in  this  proceeding: 


Fifth.  I  do  further  report  that  in  this  proceeding  on  my  own  motion  I 
issued  subpoenas  to  the  sheriff  of  said  county  for  the  following  named 
persons  as  witnesses  herein: 


That  at  the  request  of I  issued  subpoenas  for  the  following  named 

persons: 


That  the  original  subpoena  so  issued  with  the  returns  of  said  sheriff' 
thereon  showing  his  fees  for  service  are  hereto  attached  and  filed  here- 
with, that  I  incurred  actual  and  necessary  traveling  and  other  expenses 
as  follows: 

Witness  and  mileage  paid  by  me $ 

Traveling  expenses   

Other  expenses  

Sheriff's  fees  as  follows 


Sixth.    I    further    report   that   attached   hereto   are   all   the   depositions 
taken  by  me  in  this  proceeding,  to-wit: 

Deposition  of  ,  marked  Exhibit 

Deposition  of   ,  marked  Exhibit 

Deposition  of   ,  marked  E^xhibit 

Deposition  of   ,  marked  Exhibit 

Seventh.     I  do  further  report: 


All   of   which    is   respectfully   submitted   at    this    day   of 

,19..- 


County  Auditor  and  Inheritance  Tax  Appraiser. 

§  2076.  Probate  court  shall  find  actual  value.  §  5345. 
From  the  report  of  appraisal  and  other  evidence  relating  to  any- 
such  estate  before  the  probate  court,  such  court  shall  forthwith 
upon  the  filing  of  such  report,  by  order  entered  upon  the  journal 
thereof,  find  and  determine,  a.s  of  course,  the  actual  market 
value  of  all  estates,  the  amount  of  taxes  to  which  the  succession 
or  successions  thereto  are  liabh',  the  successors  and  legal  repre- 
sentatives lifible  therefor;  and  the  townships  or  municipal  corpo- 
rations in  which  the  same  originated. 


§2077  INHERITANCE   TAX  1728 

May  find  where  no  application.  Provided,  however,  that  in 
case  no  application  for  appraisement  is  made  the  probate  court 
may  make  and  enter  such  findings  and  determinations  without 
sucli  appraisement. 

Notice  to  be  given.  Thereupon  the  judge  of  such  court 
shall  immediately  give  notice  of  such  order  to  all  persons  known 
to  be  interested  therein,  and  shall  immediately  forward  a  copy 
thereof  to  the  tax  commission  of  Ohio,  together  with  copies  of  all 
orders  entered  by  him  in  relation  to  or  affecting  in  any  way 
the  taxes  on  such  estate,  including  orders  of  exemption. 

When  it  appears,  a  minor,  etc.,  is  interested.  If  it  shall 
appear  at  any  stage  of  the  proceedings  that  any  of  such  persons 
known  to  be  interested  in  the  estate  is  an  infant  or  of  unsound 
mind,  the  probate  court  may  if  the  interest  of  such  person  is 
presently  involved  and  is  adverse  to  that  of  any  of  the  other 
persons  interested  therein,  exercise  the  powers  provided  for  in 
sections  11249  and  11253,  inclusive,  of  the  General  Code.  [108 
V.  570.]^^ 

§  2077.    Proceedings  of  court  on  filing  report  of  auditor,  etc. 

On  filing  of  the  report  of  the  auditor  when  appraisal  is  had, 
or  on  the  petition  of  an  interested  person  where  no  appraisal 
by  the  auditor  is  asked  for,  the  court  makes  a  finding  of  the 
value  of  the  property  and  the  amount  of  the  tax  that  is  due 
thereon,  and  the  portion  that  is  chargeable  to  the  succession  of 
the  various  portions  of  property,  and  that  is  charged  to  the 
parties  interested.  Where  an  appraisal  by  the  auditor  is  had, 
the  court  accepts  the  value  as  found  by  the  auditor.  When 
there  is  no  appraisal  by  the  auditor,  the  court  finds  the  value 
from  such  evidence  as  it  may  have  before  it,  and  the  finding  will 
be  very  much  similar  to  that  heretofore  given.^^ 

When  this  is  done,  notice  must  be  given  to  all  persons  known 
to  be  interested  therein,  and  a  copy  of  this  finding  must  be 
immediately  sent  to  the  tax  commission.  If  it  appears  that  a 
person  under  disability  has  an  interest,  then  a  guardian  ad  liteniy 
should  be  appointed,  and  such  guardian  should  file  a  general 
denial,  etc.''"' 

This  matter  of  notice  is  a  very  important  thing.  It  has  been 
held  that  a  statute  that  did  not  provide  for  notice  was  uncon- 

54  .See    §231,    N.    Y.    inheritance  55  §  2053. 

tax;  §  11249  G.  C,  provides  how  the  56  See  §  1384,  §  845,  §  1584,  §  845, 

defense   of   an   insane   person   shall       §  1417. 
be  made  and  §  11253  G.  C.,  how  an 
infant. 


1729  DETERMINING  TAX  AFTER  APPRAISAL         §  2078 

stitutional.^^  Likewise  that  if  notice  is  not  given  the  pro- 
ceedings are  invalid.^*  That  no  previous  notice  has  been  given, 
provided  the  one  here  provided  for  is  given,  will  not  invalidate 
the  proceedings. 

Parties  upon  whom  notice  has  once  been  served,  will  be  held 
to  have  notice  of  all  subsequent  proceedings.^**  In  the  absence 
of  proof  to  the  contrary,  it  will  be  presumed  that  the  proper 
notice  has  been  given.*^°  And  if  in  fact  no  notice  has  been  given 
the  matter  may  be  opened  up."^  If  it  is  impossible  to  give  notice 
then  it  can  be  excused.*^- 

If  the  proceedings  showed  that  a  certain  person  was  interested, 
and  no  notice  was  given,  I  would  be  inclined  to  believe  that 
on  motion  of  an  interested  party  the  entire  proceedings  would 
be  set  aside.  The  court  however  might  require  before  so  doing, 
that  the  interested  party  first  show  that  he  is  injuriously  affected 
by  the  order  made.  If  it  does  not  appear  that  the  court  knew 
that  the  party  had  an  interest,  the  proceedings  will  certainly 
not  be  set  aside,  unless  a  showing  be  made  that  the  party  is 
injuriously  affected  by  the  order.  The  court  however  should 
exercise  great  vigilance  in  finding  out  all  parties  that  have  an 
interest  and  then  seeing  that  they  have  notice. 

§2078.    Journal  entry — Determining  tax  after  auditor's 

appraisal. 

In  the  Probate  Court  of County,  Ohio. 

In  the  matter  of  the  settlement  of  the  estate  of ,  deceased. 

DETERMINATION  OF  INHERITANCE  TAX. 

This   day  of   ,  19 ... ,  the  return  on  the  writ  of  appraisal 

heretofore    issued    herein    having   been    made    by    the    auditor    of    

county,  upon  consideration  of  said  return  and  the  other  evidence,  the 
court  does  hereby  find  and  determine  that  the  gross  value  of  said  estate 

is    dollars,    the    debts    and    costs    of    administration    are     

dollars,  and  the  net  actual   market  value  thereof   is    dollars,  and 

that  the  persons  entitled  to  succeed  thereto,  their  ages  when  material, 
their  relationship,  if  any,  to  the  decedent,  the  value  of  the  succession  to 

57Keeney   vs.    N.    Y.,   222    V.    S.  60  Matter    of    Miller,    110    N.    Y. 

525;  Matter  of  MePherson,  104  N.  216. 

Y.    306;    Ferry   vs.    Campbell,    110  Gi  Matter  of  Daly,  69  N.  Y.  Supp. 

Iowa  290.  494.     In  this   case  the  party  was 

58  Union  Trust  Co.  vs.  Durfee,  notified  of  the  appraisement,  but 
125  Mich.  487;  Matter  of  Wolfe,  the  court  did  not  notify  him  of  the 
137  N.  Y.  306;  Hostetter  vs.  State,  order  made  by  it  fixing  the  value, 
26  0.  C.  C.  702.  etc. 

59  Hanberg  vs.  Morgan,  263  111.  62  People  vs.  Kellog,  268  III.  489. 
616. 


§2079 


INHERITANCE   TAX 


1730 


which  each  is  entitled,  the  exemption  allowed  to  each,  the  balance  of  each 
succession  subject  to  tax,  the  amount  of  tax  to  which  each  succession 
is  liable,  the  person  by  whom  such  tax  should  be  paid,  and  the  township 
or  municipality  in  which  such  tax  originates  are  as  follows: 


°  i 

"? 

> 

a 

E 

«2 

Il5 

<  o 

>.  °  .J 

o 
c  1 

Township  or 
Municipality 
in  which 
Property 
Located 

i-!       1 

^      1       U      1       '■;      1 

1 

! 

1 

1 

— 

1          1 

1      1      i 

1 

1          1 

I      1      1 

i 

The  court  further  finds  that  the  fees  of  the  sheriff  or  other  officer,  for 
serving  subpoenas,  and  the  actual  and  necessary  traveling  and  other  ex- 
penses incurred  by  tlie  county  auditor  in  making  the  said  appraisal,  as 
certified  by  such  auditor  are  as  follows: 

J  sheriff,  fees  on  subpoenas,  $ 

,  auditor,  actual  and  necessary  traveling  and  other  expenses,  $ 

The  court  further  finds  that  said  fees  and  expenses  are  correct  and 
should  be,  and  they  are  hereby,  allowed. 

It  is  further  ordered  that  such  fees,  together  with  the  court  cost  on  this 

proceeding  taxed  at  $ be  certified  to  the  county  auditor  at  the  time 

and  in  the  manner  required  by  law,  to  be  paid  and  credited  in  the  manner 
provided  by  law. 

.  .It  is  further  ordered  that  notice  of  this  adjudication  and  determination 
be  given  to  all  persons  known  to  be  interested  therein  and  that  a  copy  of 
this  entry,  together  with  copies  of  all  other  entries  in  relation  to  or  in 
any  way  affecting  the  inheritance  taxes  on  the  successions  of  said  estate 
and  the  exemptions  allowed  be  forwarded  forthwith  to  the  tax  commission 
of  Ohio. 

The  State  of  Ohio, County,  ss. 

T ,  judge  and  ex-officio  clerk  of  the  Probate  Court  of  said  county, 

do  liereby  certify  that  the  foregoing  is  a  true  copy  of  the  journal  entry 
containing  the  finding  and  order  of  the  court  as  to  the  liability  to  in- 
heritance tax  of  the  estate  of   ,  deceased,  or  any  of  the  successions 

therein,  made  and  entered  on  the   day  of ,  19 . .  . 

Witness  my  hand  and  the  seal  of  said  court  this  day  of  , 

19... 

,  Judge. 


§  2079.     Contents  of  notice  and  how  served. 

The  statute  does  not  say  what  this  notice  shall  contain  nor 
how  it  should  be  served.  It  ought  to  show  sufficient  to  apprize 
the  interested  party  of  the  manner  and  extent  to  which  the 
order  may  affect  him.  The  statute  provides  that  the  notice 
given  by  the  auditor  of  appraisement  may  be  by  mail,  and  I 
am  inclined  to  think  that  would  be  sufficient  in  this  case.  It 
could  be  made  in  any  manner  the  court  might  direct.  If  there 
are  a  number  of  persons  whose  address  is  unknown,  it  could 


1731  WHO   MAY   FILE  EXCEPTIONS  §  2080 

be  made  by  publication.  There  is  a  general  statute  that  pro- 
vides that  when  any  notice  is  required  by  law  and  the  manner 
of  giving  it  is  not  directed  by  statute,  it  may  be  in  such  manner 
as  the  court  may  direct/'"' 

§  2080.     Form  of  notice  fixing  of  tax. 

NOTICE  OF  ASSESSMENT  OF  TAX  [8  5345  G.  C], 
[Title.] 

To : 


You   are   hereby   notified   that  1    have,   by   order   made   and   entered  the 

day  of    ,   19...,  assessed  and  fixed  the  cash  value  of  such 

interest,  estate,  legacy  or  property,  as  you  are  entitled  to  receive  from 
the  estate  of  the  above  named  decedent,  and  the  amount  of  tax  to  wliich 
the  same  is  liable  under  the  laws  in  reference  to  the  taxable  transfers 
of  property  as  follows : 

Estate,  Interest  or 
Property  Transferred  Cash  Value  Tax  Assessed  Thereon 


You  will  further  take  notice  that  if  you  wish  to  file  exceptions  you 
must  do  so  within  sixty  days  from  the  day  this  order  of  assessment  was 
made  by  filing  such  exceptions  in  writing  in  this  court. 

Probate  Judge. 


§2081.     Form  order  exempting  estate  from  inheritance  tax. 

[Title.] 

This  day  this  matter  came  on  to  be  heard  in  application  of   ,  to 

fix  the  inlieritance  tax  on  the  property  of   ,  deceased,  and  the  same 

was  submitted  to  the  court  upon  the  evidence,  and  on  dne  consideration 
thereof,  the  court  finds  that  the  transfer  of  the  property  of  said  decedent 
is  exempt  from  tax  under  the  law  relating  to  taxable  transfers,  and  there 
is  no  tax  due  thereon. 64 

§  2082.  Who  may  file  exceptions.  §  5346.  The  tax  com- 
mission of  Ohio,  or  any  person  dissatisfied  with  the  appraisement 
and  determination  of  taxes,  may  file  exceptions  thereto  in  writing 
with  the  probate  court  within  sixty  days  from  the  entry  of  the 
order, -stating  the  grounds  upon  which  .such  exceptions  are  taken. 

Court  to  fix  time  of  hearing.  The  probate  court  sliall  there- 
upon by  order  fix  a  time  not  less  than  ten  days  thereafter  for 

63  §  37,  §11205  Cx.  C.  If  made  entry,  together  with  a  copy  of  all 
by  mail  it  should  be  by  registered  entries  in  relation  to  or  in  any  way 
letter.  afTocting  tlie  inlieritance  tax  of  said 

64  This  may  be  added:  "It  is  estate  be  certified  to  the  tax  com- 
further  ordered  that  a  copy  of  this  mission  of  Ohio. 


§  2083  INHERITANCE   TAX  1732 

the  hearing  of  such  exceptions,  and  shall  give  such  notice  thereof 
as  it  may  deem  necessary;  provided, 

Notice.  That  a  copj^  of  such  notice  and  of  such  exceptions 
shall  be  forthwith  mailed  to  the  tax  commission  and  the  county 
auditor. 

Finding.  Upon  the  hearing  of  such  exceptions,  said  court 
may  make  such  order  as  to  it  may  seem  just  and  proper  in  the 
premises.  No  costs  shall  be  allowed  by  the  probate  court  on 
such  exceptions.     [108  v.  570.]**^ 

§  2083.     Filing-  exceptions,  etc. 

When  the  order  is  made  under  the  above  section  a  dissatisfied 
person  has  two  remedie.s.  He  may  have  the  matter  re-heard 
before  the  Probate  Court  or  he  may  appeal  to  the  Court  of 
Common  Pleas.  As  the  finding  of  the  Probate  Court  may  have 
been  made  without  a  full  understanding  of  the  matter  it  may 
be  advisable  to  have  the  matter  re-heard  by  the  Probate  Court, 
and  then  if  relief  is  not  granted,  appeal  to  the  Court  of  Common 
Pleas.  These  exceptions  may  be  filed  any  time  w'ithin  sixty 
days  from  the  date  of  the  order.  If  no  exceptions  are  filed 
within  that  time,  nor  appeal  made,  or  proceedings  in  error  com- 
menced, the  order  is  final,  and  could  then  only  be  set  aside  in 
the  manner  that  findings  of  court  are  generally  attacked  or  set 
aside.  These  exceptions  must  state  the  grounds  upon  which 
they  are  taken.  When  they  are  filed  the  court  must  fix  a  time 
not  less  than  ten  days  thereafter,  and  must  mail  a  copy  of  such 
notice  and  exceptions  to  the  tax  commission  and  the  county 
auditor,  and  give  such  other  notice  as  it  may  deem  necessary. 
This  probably  would  be  all  persons  who  might  be  affected  by 
the  matters  raised  in  the  exceptions. 

.  It  is  not  clear  just  what  should  be  included  in  this  hearing 
on  exceptions.  If  the  entire  matter  may  be  gone  into — and  it 
should  be  if  it  is  necessary  to  do  justice — the  order  might  be 
such  that  the  rights  of  others  than  the  exceptors  would  be 
affected.  In  New  York  it  is  done  under  what  is  termed  an 
appeal.  Although  the  surrogate  has  made  a  finding,  there  may 
be  an  appeal  to  him  from  such  finding,  and  then  there  is  an 
appeal  from  this  second  hearing  to  the  higher  court. 

§  2084.     Form  of  exceptions. 

[Title] 

"The  undersigned,  a  party  interested  in  and  order  made  by  the  Probate 
Court  on  the   day  of   ,  19. .  .,  fixing  the  value  and  assessing 

65iSee    §232,    N.    Y,    inheritance  tax. 


1733  WHEN    CERTIFIED   TO    AUDITOR  §  2085 

the   inlieiitance   tax    in    respect   to   transfers   of   the   property   of    , 

deceased,  hereby  excepts  to  the  same  upon  the  following  grounds: 

First.  Tlie  value  fixed  on  tlie  real  estate  located  in  Bath  Township; 
this  value  is  not  its  actual  cash  value,  but  mucli  more  than  the  same. 

Second.  That  the  tax  assessed  against  the  undersigned  is  erroneous  in 
that  the  same  is  exempted  under  the  law. 

Third.  That  an  error  was  made  in  fixing  the  value  of  life  estate  of  the 
undersigned    in    the    above    mentioned  property. 

Fourth.    [Here  set  out  any  other  ground  claimed.] 

Wherefore,  the  undersigned  asks  that  the  court  fix  a  time  when  the  same 
may  be  heard,  and  such  other  and  further  relief  as  he  may  under  the 
statute  be  entitled  to. 


§  2085.    Journal  order  for  hearing  on  exceptions. 

[Title.] 

On  this  day  came    and  filed  herein  his  exceptions  to  the  order 

of  the  court  made  herein  on  the    day  of    ,  19 ... ,  finding  the 

value  of  certain  property  therein  designated  and  fixing  the  inheritance 
tax  on  the  transfers  made  on  certain  property  of  decedent.     It  is  therefore 

ordered  that  tlie   day  of    ,  li). .  .,  at  10  o'clock  a.  m.  be  fixed 

as  the  time  for  hearing  the  matters  excepted  to,  and  that  notice  thereof 
be  given  to  A.  B.,  executor  of  said  estate,  and  C.  D.,  widow  of  said  decedent, 
and  the  tax  commission  of  Ohio,  and  the  auditor  of  this  county,  by  mailing 
to  each  a  copy  of  this  notice  and  a  copy  of  the  exceptions  filed. 


§  2086.    Notice  of  hearing  of  exceptions. 

[Title.] 

You  are  hereby  notified  that  on  the day  of ,  19. .  .,  A.  B. 

filed  in  this  court  certain  exceptions,  a  copy  of  which  is  hereto  attached, 
to  a  finding  made  by  the  court,  and  assessments  fixed  in  the  matter  of 
the  inheritance  tax  on  transfers  of  certain  property  of  decedent.  The 
court  has  fixed  the  ......  day  of ,  19. .  .,  at  10  a.  m.  for  the  hear- 
ing of  the  same. 

'  ,  Probate  Judge. 

§  2087.     Form  of  entry  on  hearing. 

[Title.] 

This  day  this  matter  came  on  to  be  heard  on  the  exceptions  filed  herein 
by  A.  B.  to  the  finding  of  the  value  and  fixing  the  assessment  and  in- 
heritance tax  on  the  transfer  of  certain  property  of  said  decedent,  and 
the  court  finds  that  the  same  should  be  changed  and  modified  as  follows: 
[here  state  specifically  the  finding,  etc.] 


§  2088.  When  certified  to  auditor.  §  5347.  At  the  expira- 
tion of  such  period  of  sixty  days  if  no  exceptions  be  filed,  or 
at  any  time  within  such  period,  on  the  application  of  all  parties, 
including  the  tax  commission  of  Ohio,  the  probate  judge  shall' 
make  and  certify  to  the  county  auditor  a  copy  of  the  order 
provided  for  in  section  5345  of  the  General  Code.  If  such 
exceptions  are  filed  within  .such  period  the  probate  judpre  shall, 
within  five  days  after  the  entry  of  the  final  order,  make  and 
certify  such  copy  of  the  original  finding  and  determination,  to- 


§  2089  INHERITANCE    TAX  17C-4 

gether  with  any  modifications  thereof  ordered  upon  the  hearing 
of  sueli  exceptions. 

Duties  of  auditor.  The  county  auditor  shall  thereupon,  on 
a  form  to  be  prescribed  for  him  by  the  auditor  of  state,  make 
a  charge  based  upon  such  order  and  certify  a  duplicate  thereof 
to  the  county  treasurer,  who  shall  collect  the  taxes  so  charged. 
1 108  V.  571.  ]«« 

§  2089.     Certifying-  findinQ^  to  auditor. 

If  no  exceptions  are  filed  within  sixty  days,  or  if  exceptions 
are  filed  within  five  days  after  a  finding  is  made  on  such  ex- 
ceptions, the  probate  judge  makes  and  certifies  a  copy  of  his 
original  finding,  and  where  this  has  been  modified  by  any  sub- 
sequent order,  as  copy  of  the  same  showing  modifications,  to 
the  auditor,  who  in  turn  certifies  it  to  the  treasurer  for  collection. 

§  20S0.     Motion  to  modify  finding,  ets. 

If  it  should  appear  even  after  time  for  appeal  on  filing  ex- 
ceptions, that  there  has  been  a  manifest  error  in  the  finding, 
it  seems  that  on  the  discovery  of  such  error  the  court  should 
have  power  to  correct  the  former  finding  to  conform  to  the 
truth  and  justice. 

In  New  York  the  surrogate  on  motion  has  generally  made 
such  correction.  The  corrections  allowed,  however,  have  been 
those  that  related  to  fact,  and  not  questions  of  law.  Thus  wlien 
there  was  a  mistake  in  a  statement  that  stock  worth  $14,193 
was  appraised  at  $47,310."^ 

So  where  a  debt  was  overlooked,^®  where  notes  were  thought 
to  be  good  but  proved  worthless."''  So  where  the  mistake  was 
obvious,^"  as  that  of  a  mathematical  calculation."^  This  has  been 
done  where  there  was  a  failure  of  jurisdiction  such  as  the  giving 
of  an  improper  notice "-  or  payment  under  an  unconstitutional 
tax,"  even  after  the  time  for  appeal  had  expired.'^*     However 

esSee    §231,    N.    Y.    inheritance  70  Matter  of  Cameron,   89  N.  Y. 

tax.  Supp.  077. 

67  Matter    of    Boyle,    156    X.    Y.  7i  ^.latter  of  Scott,  20S  X.  Y.  602. 
Supp.  173.  72Matier   of  Bacliouse,  96  N.  Y. 

68  Matter  of  Campbell,  50  miscel.  Supp.  463. 

N.  Y.  485.  73'Morton  vs.  Selby  Co.,  118  U.  S. 

69  Matter    of    Sherar,    54    N.    Y.       425. 

Supp.  930.  74  Matter   of   Silliman,   SO   N.   Y. 

Supp.  336. 


1735  ^VPPEAL   FROM    FINAL   ORDER  §  2091 

mere  overvaluation  will  not  be  considered  on  such  motion/^  or, 
that  since,  they  have  sold  for  a  larger  sum/®  or,  if  the 
person  making  the  motion  is  guilty  of  "  or  if  there  is  bad  faith/^ 
In  Ohio  this  finding  of  the  Probate  Court  however  would 
probably  be  treated  like  any  other  final  order  by  it  made  and 
would  be  subject  to  correction  in  a  like  manner  J® 

§  2091.  Appeal  from  final  order.  §  5348.  An  appeal  may 
be  taken  by  any  party,  including  the  tax  commission  of  Ohio, 
from  the  final  order  of  the  probate  court  under  section  5346 
of  the  General  Code  in  the  manner  provided  by  law  for  appeals 
from  orders  of  the  probate  court  in  other  cases.  An  appeal 
by  the  tax  commission  of  Ohio  may  be  perfected  in  the  manner 
provided  by  section  11209  of  the  General  Code.     [108  v.  571.] 

§2092.    Appeal;  how  perfected,  etc. 

The  method  of  appeal  is  the  same  as  applies  generally  from 
orders  of  the  Probate  Court,  and  as  this  has  been  discussed  in 
other  places  in  this  work,  it  will  not  be  further  considered  here.^** 
But  it  is  not  clear  what  is  the  final  order  from  which  an  appeal 
may  be  prosecuted.  The  preceding  section  provides  that  the 
final  order  made  under  §5346,  G.  C.  (§2082),  is  the  one  that 
may  be  appealed  from,  and  if  this  be  literally  followed,  there 
is  no  appeal  from  an  order  made  on  the  finding  made  on  ex- 
ceptions that  may  be  filed,  although  the  order  made  in  such  cases 
is  referred  to  as  a  final  order. 

And  it  may  be  necessary  for  one  who  is  dissatisfied  with  the 
original  finding  to  determine  within  the  twenty-day  limit  relating 
to  appeals,  whether  he  will  appeal  or  raise  his  questions  by 
way  of  exceptions,  and  then  if  he  wishes  to  go  further,  to  prose- 
cute error.  If  he  wishes  to  pursue  the  latter  course,  it  is 
important  that  he  state  all  the  grounds  in  his  exceptions,  upon 
which  he  may  desire  the  opinion  of  the  higher  court,  should 
he  not  be  satisfied  with  the  decision  of  the  Probate  Court  on 
his  exceptions. 

75  Matter  of  Johnson,  75  N.  Y.  79  See  §5339  G.  C,  §2048,  pro- 
Supp.  1046.  vidcs    tliat   deductions    may   be    al- 

76  flatter  of  Bruce,  59  N.  Y.  lowed  and  refunder  made  in  certain 
Snpp.   1083.  cases    and    where    erroneous    deduc- 

77  Matter  of  Townscnd,  215  N.  Y.  tions  were  made. 
442.  so  See   §  39. 

78  Gleason    and    Otis,    Inlicritance 
taxation,  2nd  cd.  515. 


§  2093  INHERITANCE    TAX  1736 

It  may  be  that  the  order  made  on  the  exceptions  is  such  that 
it  is  considered  as  a  part  of  the  original  order,  and  an  appeal 
might  be  perfected  therefrom.  But  if  it  is,  I  apprehend  it 
would  only  carry  an  appeal  on  the  questions  and  grounds  stated 
in  the  exceptions,  and  not  all  those  contained  in  the  original 
finding.  There  is  no  doubt  but  that  proceedings  in  error  may 
be  prosecuted  to  the  original  order  as  well  as  to  the  one  made 
on  the  exceptions. 

§  2093.    Who  may  prosecute  appeal. 

The  statute  says  any  party,  including  the  tax  commission  may 
appeal.  Of  course  it  must  be  a  party  having  some  interest. 
There  has  been  some  question  whether  the  executor  had  such 
interest  that  he  could  appeal,  where  his  interest  was  nothing 
more  than  to  execute  the  trust.  The  general  opinion,  however, 
seems  to  be  that  he  has  such  interest  and  can  appeal.^^  Especially 
might  this  be  true  under  the  broad  language  of  our  statute: 

"The  true  rule,  propably  is,"  say  Gleason  and  Otis,  "that 
an  executor  can  appeal  only  so  far  as  he  protects  himself  from 
his  personal  liability ;  and  beyond  that,  the  expense  of  litigation 
should  be  borne  by  those  duly  interested. ' '  ^^ 

§  2094.  Tax  receipts,  etc.  §  5348-1.  Upon  the  payment  to 
the  county  treasurer  of  any  tax  due  under  this  subdivision  of 
this  chapter,  such  treasurer  shall  issue  a  receipt  therefor  in 
triplicate.  One  copy  thereof  he  shall  deliver  to  the  person  pay- 
ing such  taxes ;  and  the  original  and  one  copy  thereof  he  shall 
immediately  send  to  the  auditor  of  state  who  shall  certify  the 
original  and  immediately  transmit  it  to  the  judge  of  the  court 
fixing  the  tax.  An  executor,  administrator  or  trustee  shall  not 
be  entitled  to  credits  in  his  accounts,  nor  be  discharged  from 
liability  for  such  taxes,  nor  shall  the  estate  under  his  control 
be  distributed,  unless  such  certified  receipt  shall  have  been  filed 
with  the  court.  Any  person  shall,  upon  the  payment  of  teo 
cents  to  the  county  treasurer  issuing  such  receipt,  be  entitled 
to  a  duplicate  thereof,  to  be  signed  and  certified  in  thy  same 
manner  as  the.  original.     [108  v.  571] 

§  2095.  Transfer  of  securities,  etc.  §  5348-2.  No  corpora- 
tion organized  or  existing  under  the  laws  of  this  state,  shall 
transfer  on  its  books  or  issue  a  new  certificate  for  any  share  or 
shares  of  its  capital  stock  belonging  to  or  standing  in  the  name 

81  Matter    of    Cornell,    73    X.    Y.  S2  Reason    and    Otis,    Inheritance 

Supp.     167;     Matter    of    Dalsimer,      taxation,  2nd  ed.  503. 
153  N.  Y.  Supp.  58. 


1737  NOTICE  OP  TRANSFER  §  2096 

of  a  decedent  oi'  in  trust  for  a  decedent,  or  belonging  to  or 
standing  in  the  joint  names  of  a  decedent  and  one  or  more 
persons,  without  the  written  consent  of  the  tax  commission  of 
Ohio. 

Delivery  of  securities,  deposits,  etc.  No  safe  deposit  com- 
pany, trust  company,  corporation,  bank  or  other  institution, 
person  or  persons,  having  in  possession  or  in  control  or  custody, 
in  whole  or  in  part,  securities,  deposits,  as.sets  or  property  belong- 
ing to  or  standing  in  the  name  of  a  decedent,  or  belonging  to 
or  standing  in  the  joint  names  of  a  decedent  and  one  or  more 
persons,  including  the  shares  of  the  capital  stock  of,  or  other 
interest  in,  such  safe  deposit  company,  trust  company,  corpora- 
tion, bank  or  other  institution,  shall  deliver  or  transfer  the  same 
to  any  person  whatsoever  whether  in  a  representative  capacity 
or  not,  or  to  the  survivor  or  survivors  when  held  in  the  joint 
names  of  a  decedent  and  one  or  more  persons,  without  retaining 
a  sufficient  portion  or  amount  thereof  to  pay  any  taxes  or 
interest  which  would  thereafter  be  assessed  thereon  under  this 
subdivision  of  this  chapter, 

Notice  to  tax  commission.  And  unless  notice  of  the  time 
and  place  of  such  delivery  or  transfer  be  served  upon  the  tax 
commission  of  Ohio  and  the  county  auditor  at  least  ten  days 
prior  to  such  delivery  or  transfer; 

Consent  of  tax  commission.  But  the  tax  commission  of 
Ohio  may  consent  in  writing  to  such  delivery  or  transfer,  and 
such  consent  shall  relieve  said  safe  deposit  company,  trust  com- 
pany, corporation,  bank  or  other  institution,  person  or  persons, 
from  the  obligation  to  give  such  notice  or  to  retain  such  portion. 

County  auditor  may  examine.  The  tax  commission  or  the 
county  auditor,  personally  or  by  representatives,  may  examine 
such  securities,  deposits  or  other  assets  at  the  time  of  such 
delivery  or  otherwise. 

Failure  to  comply.  Failure  to  comply  with  the  provisions 
of  this  section  shall  render  such  safe  deposit  company,  trust 
company,  corporation,  bank  or  other  institution,  person  or  per- 
sons, liable  for  the  amount  of  the  taxes  and  interest  due  under 
this  subdivision  of  this  chapter  on  the  succession  of  such  secur- 
ities, deposits,  assets  or  property.  Such  liability  may  be  enforced 
by  action  brought  by  the  county  treasurer  in  the  name  of  the 
state  in  any  court  of  competent  jurisdiction.     [108  v.  572.]  ^ 


§  2096.     Notice  of  transfer  to  auditor  and  tax  commission. 

[Under  the  provisions  of  section  5348-2  G.  C.  as  approved  June  5,  1919.] 

Ohio,  ,  19... 

To  the  Tax  Commission  of  Ohio;  to  the  Auditor  of County,  Ohio. 

Notice  is  hereby  piven  that  the  undersigned  has  in  possession  or  in 
control  or  custody  in  wliole  or  in  jiart,  aocurities,  deposits,  assets  or  prop- 
erty belonging  to  or  standing  in  the  name  of    ,  deceased,  and  the 

1  See  Atty.  Genl's  op.  1920,  p.  199  to  partnerships  and  joint  interests, 
and   203   for   application   of   section 


§  2097  INHERITANCE   TAX  1738 

same   will   be   transferred    at    ,   to    ,   on   the    day   of 

,  19 ... ,  at   o'clock   m. 

Respectfully, 


NOTE:  This  notice  is  required  to  be  served  before  a  bank,  safe  deposit 
company,  trust  company  or  otlier  institution  may  turn  over  the 
contents  of  a  safe  deposit  box  to  any  person  whatsoever,  whether 
in  a  representative  capacity  or  not.  Such  service  must  be  made 
at  least  ten  days  prior  to  tlie  date  of  such  delivery  or  transfer 
on  the  auditor  and  tax  commission. 

§  2097.  Transfer  without  knowledge.  §  5348-2a.  In  any 
action  brought  under  tlie  preceding  section  it  shall  be  a  suffi- 
cient defense  that  the  transfer  of  shares  of  capital  stock,  or 
delivery  or  transfer  of  securities,  deposits,  assets  or  property, 
was  made  in  good  faith,  without  knowledge  of  the  death  of  the 
decedent  and  without  knowledge  of  circumstances  sufficient  to 
place  the  defendant  on  inquiry.     [108  v.  1197.] 

§  2098.     Transfer  of  stocks  of  corporation. 

The  object  and  purpose  of  the  above  section  is  to  give  the 
taxing  authorities  knowledge  of  the  holdings  of  stock  that  a 
deceased  person  may  have  in  corporations,  and  to  prevent  the 
same  from  being  transferred,  and  defeat  the  inheritance  tax. 
The  State  tax  commission  does  not  fix  the  tax,  but  if  the  tax 
is  not  paid  it  possesses  the  power  to  set  the  machinery  in  motion 
to  collect  the  tax.  In  a  great  many  States  the  tax  commission 
or  like  bodies  have  the  power  to  fix  and  collect  such  taxes.  But 
in  this  State,  the  power  to  fix  all  inheritance  tax  is  vested  in 
the  Probate  Court;  no  such  stock  can  be  transferred  without 
the  written  consent  of  the  tax  commission;  if  it  is  transferred 
withont  such  consent,  the  corporation  is  liable  to  pay  the  tax 
that  may  be  due  thereon. 

It  applies  to  a  corporation  organized  or  existing  under  the 
laws  of  Ohio.  I  hardly  know  what  is  meant  to  be  included  by 
the  word  "existing,"  unless  it  might  be  to  include  a  corporation 
that  was  organized  in  .«ome  other  State  and  had  its  principal 
office  and  place  of  business  in  this  state,  and  was  in  fact  a  local 
corporation. 

The  second  matter  is  that  the  stock  belongs  to  or  is  standing 
in  the  name  of  the  decedent,  or  in  trust  for  him  or  is  .iointly 
in  his  name  and  some  other  person.  It  may  be  doubted  whether 
a  transfer  of  such  stock  would  be  valid,  unless  the  written  con- 
sent of  the  tax  commission  was  first  obtained,  or  unless  it  was 
done  without  knowledge  of  the  death  of  decedent  and  without 


1739  CUSTODY  OF  SECURlTiKS,  ETC.  §  2099 

knowledge   of  circumstances  sufficient  to   put   the   corporation, 
bank,  etc.,  on  inquiry. 


§  20S9.    Application  to  transfer  shares  of  stock. 

,  Ohio,    ,  19... 

To  the  Tax  Commission  of  Ohio: 

Application  is  hereby  made  for  the  consent  of  your  commission  to  trans- 
fer upon  the  books  of  the  companies  the  following  shares  of  stock  of 
corporations  organized  under  the  laws  of  Ohio. 


No.  of  Sharrs 
Cora.              p,d. 

Name  of  Company 

Par  Value 

Actual 
Market  Value 

• 

from    deceased,   to    Deceased   was   a   resident   of  the   city 

[township]   of    ,  county  of    ,  state  of  Ohio,  and  his  estate   is 

in   process   of   settlement   in   the   Probate   Court   of    county,   Ohio. 

The  Ohio  inheritance  tax  on  the  succession  to  the  above  shares  of  stock 
has  been  paid.  The  name  and  address  of  the  executor — adminis- 
trator— ^of  the  estate  is   


The  State  of  Ohio, County,  ss. 

,   the   above   named   applicant,   being   duly   sworn   says   that   the 

statements  contained  in  the  foregoing  application  are  true. 


S-vvorn  to  and  subscribed  before  me  this    day  of    ,  19 . . . 

,  Notary  Public. 

*  If  the  transfers  are  to  be  made  to  more  than  one  person,  then  after 
describing  those  shares  which  go  to  one  person,  write  "From  Henry  Smith, 
deceased,  to  Mary  Smith,"  and  draw  a  heavy  line  under.  Then  go  on 
with  the  next  person,  and  so  on. 


§  2100.     Delivery  of  custody  of  securities,  deposits,  etc. 

The  second  matter  provided  by  section  5348-2  G.  C.  relates  to 
where  intangible  property  is  held  in  custody  for  a  decedent.  In 
such  cases  the  bank,  person  or  institution  holding  the  same  may 
deliver  the  same,  provided  sufficient  is  retained  to  pay  the  tax 
that  may  be  due  thereon,  when  the  amount  is  not  large,  and  the 
bank,  institution  or  person  holding  the  same  can  be  satisfied  that 
it  is  not  subject  to  an  inheritance  tax ;  or  where  it  is  delivered 
over  to  an  administrator  or  executor,  it  should  be  delivered 
without  any  written  consent  of  the  tax  commission. 

I  do  not  think  it  is  the  purpose  of  the  statute  to  require  the 
written  consent  of  the  tax  commission  in  every  instance ;  but 


§  2101  INHERITANCE    TAX  1740 

it  gives  the  party  holding  the  property  a  way  in  which  it  may 
deliver  the  property  and  not  be  liable  for  any  tax.  The  prop- 
erty intended  to  be  included  is  of  an  intangible  nature,  such 
as  notes,  securities,  mortgages,  stocks,  deposits,  etc.  The  tax 
commission  or  county  auditor  may  examine  such  securities  at 
the  time  of  delivery. 

§2101.    Application  for  consent  to  transfer  assets  in  posses- 
,  sion  or  control. 

,  Ohio,    ,   19... 

To  the  Tax  Commission  of  Ohio: 

Application  is  hereby  made  in  accordance  with  section  5348-2  of  the 
General   Code  for   the  written  consent  of  your  coramission  to   deliver   or 

transfer  certain  securities,  deposits,  assets  or  property  of ,  deceased, 

now  in  posses.sion   or  control  or  custody   in  whole  or   in  part  of    

The  description  and  value  of  such  securities,  etc.,  are  as  follows: 
[give  full  description  of  securities  or  assets.  In  case  of  stocks,  bonds, 
certiilcates  of  deposit,  or  choses  in  action,  give  dates,  rate  of  interest, 
accrued  interest,  par,  book  and  market  value.  State  the  character  of 
deposits,  whether  savings,  checking  or  commercial,  and  give  accrued 
interest,  if  any.  Give  number  of  safe  deposit  or  storage  and  value  or 
character  of  contents  if  known.  If  notes  or  choses  in  action,  give  date  and 
name  of  maker  or  debtor,  rate  of  interest  and  amount  accrued.  In  case 
of  other  personal  property  describe  fully  and  give  value.] 

DESCRIPTION  '  VALUE 


Such   delivery    or   transfer   is    proposed   to   be   made   to   the   following: 


Decedent  was  a  resident  of  city   [township]    of    ,  county  of    , 

state  of    ,  and  his  estate  is  in  process  of  settlement  in  the    

court  of   county,  state  of   The  Ohio  inheritance  tax  on  tlie 

succession  to  the  above  described  property  has    been  paid. 


P.  0.  Ad:lress   

The  State  of , County,  ss. 

,   the   above   named   applicant,   being   duly   sworn    says   that   the 

statements  contained  in  the  foregoing  application  are  true. 


Sworn  to  and  subscribed  before  me  this    day   of    ,    19... 

,  Notary  Public. 

§  2102.     Application  for  release  of  assets  when  no 
administration. 

[Do  not  use  this  form  when  decedent  left  real  estate.] 

The  State  of  Ohio, County,  ss. 

,  being  first  duly  sworn,  says  that    ,  late  of  the   of 

,    County,   Ohio,    died   on    the    day   of    ,    10..., 

leaving    h..    widow..,   and  the   following   persons   h..    only   heirs 


1741 


COLLECTION   OF   TAX 


§  2103 


at  law  who  are  entitled  to  share  in  the  distribution  of  h . ,  estate  and 
whose  names,  ages,  relationship  to  the  deceased  and  addresses  are  as 
follows : 


Name 

Age 

Relationship 

Address 

■ 

The  only  property  of  which  deceased  was  the  owner,  or  in  which    ..he 
had  any  estate  at  the  time  of  h . ,   death,  and  its  value,  is  as  follows : 

The  following  is  a  description  of  all  the  property  which  the  dccctlent 
in  h . .  lifetime  conveyed,  distributed  or  gave  away  in  contemplation  of 
death  or  with  intent  to  have  such  conveyance,  distribution  or  gift  take 
effect  in  possession  or  enjoyment  at  or  after  the  death  of  decedent,  and 
the  value  of  such  property,  together  with  the  name  or  relationship  of 
each  person  to  whom  such  conveyance,  distribution  or  gift  was  made, 
to-wit: 


It  is  not  intended  to  have  any  administration  on  the  estate  of  said 
decedent. 

Affiant  asks  for  the  written  consent  of  the  tax  commission  of  Ohio  to 
the  payment  or  transfer  by  to  of  said  item.,  above  men- 
tioned, to-wit: 


Furtlu'r  deponent  saith  not. 


Sworn    to    before    me    and    in    mv'  presence  subscribed  tliis    day 

of ,19... 


Notary  Public County,  Ohio. 


§  2103.  Collection  of  tax  after  eighteen  months.  §  5348-8. 
If,  after  the  expiration  of  eighteen  montlis  from  the  accrual  of 
any  tax  under  this  subdivision  of  this  chapter,  such  tax  shall 
remain  unpaid,  the  auditor  of  state  shall  notify  the  prosecuting 
attorney  of  the  proper  county,  in  writing,  of  such  failure  or 
neglect. 

After  delay  of  six  months.  If  the  determination  of  the  tax 
has  been  delayed  for  more  than  one  year  after  the  accrual  thereof 
such  notice  mi\y  be  issued  at  any  time  after  six  months  from 
the  date  of  the  order  determining  such  tax. 

Duty  of  prosecuting  attorney.  Such  prosecuting  attorney 
shall  thereupon  apply  to  the  probate  judge  in  the  name  of  the 
county  auditor  on  behalf  of  the  state  for  a  transcript  of  the 


§  2104  INHERITANCE  TAX  1742 

order  fixing  the  tax.  Such  transcript  shall  be  filed  in  the  office 
of  the  clerk  of  the  common  pleas  court  of  the  county,  and  the 
same  proceedings  shall  be  had  with  respect  thereto  as  are  pro- 
vided by  section  11659  of  the  General  Code  with  respect  to  tran- 
scripts of  judgments  rendered  by  justices  cf  the  peace  and 
mayors,  except  that  the  prosecuting  attorney  shall  not  be  required 
to  pay  the  costs  thereof  accniing  at  the  time  of  filing  the  same. 

Lien,  etc.  Thereupon  the  same  effect  shall  be  given  to  such 
transcripts  for  all  purposes  as  is  given  to  such  transcripts  of 
judgments  of  justices  of  the  peace  or  mayors  filed  in  like  manner. 

Property  subject  to.  Provided,  however,  that  nothing  in 
this  section  shall  be  construed  to  affect  the  date  of  the  lien  of 
such  taxes  on  the  property  passing,  nor  to  divest  such  lien  before 
the  payment  of  such  tax  in  the  event  of  failure  to  sue  out  exe- 
cution within  the  period  prescribed  by  section  11663  of  the  Gen- 
eral Code.     [108  V.  572.] 

§  2104.  Prosecuting  attorney  represents  county.  §  5384-4. 
The  prosecuting  attorney  shall  represent  the  county  auditor  of 
his  county  in  his  capacity  as  inheritance  tax  appraiser  when 
called  upon  by  him  for  that  purpose.  He  shall  also  represent 
the  interests  of  the  state  in  any  and  all  procceedings  under  this 
subdivision  of  this  chapter.  The  attorney  general  shall,  when 
requested  by  the  tax  commission  in  writing,  appear  for  the  state 
in  any  such  proceeding.     [108  v.  573.] 

§  2105.  County  auditor  appoints  deputies.  §  5348-5.  The 
county  auditor  may,  and  when  directed  by  the  tax  commission 
of  Ohio,  shall  appoint  such  number  of  deputies  as  the  tax  com- 
mission of  Ohio  may  prescribe  for  him,  who  shall  be  qualified 
to  assist  him  in  the  performance  of  his  duties  as  inheritance 
tax  appraiser  under  the  provisions  of  this  subdivision  of  this 
chapter.     [108  v.  573.] 

§  2106.  Tax  commission  may  designate  examiners.  §  5348-6. 
The  tax  commission  of  Ohio  may  designate  such  of  its  examiners, 
experts,  accountants  and  other  assistants  as  it  may  deem  neces- 
sary for  the  purpose  of  aiding  in  the  administration  of  the  pro- 
visions of  this  subdivision  of  this  chapter;  and  such  provisions 
shall  be  deemed  and  held  to  be  a  law  which  the  tax  commission 
is  required  to  administer  for  the  purposes  of  sections  1465-9,  and 
1465-12  to  1465-30,  inclusive,  section  1465-32,  and  section  1465-34 
of  the  General  Code.  It  shall  be  the  duty  of  the  tax  commission 
of  Ohi'O'  in  the  administration  of  this  subdivision  of  this  chapter 
to  see  that  the  proceedings  provided  for  herein  shall  be  instituted 
and  carried  to  determination  in  all  cases  in  Avhicli  a  tax  is  due 
hereunder.     [108  v.  573.] 

§  2107.  Eecord  made  by  probate  judge.  §  5348-7.  In  con- 
nection with  the  estates  of  decedents  on  the  succession  to  which 
any  inheritance  tax  is  found  to  be  due,  each  probate  judge  shall 
keep  a  docket,  the  form  whereof  shall  be  prescribed  by  the  aud- 
itor of  state,  which  shall  be  a  public  record,  and  in  which  such 
probate  judge  shall  enter  the  name  of  every  such  decedent  upon 
whose  estate  an  application  to  him  has  been  made  for  an  issue  of 


1743  REPORTS  TO  STATE  AUDITOR  §  2108 

letters  of  administration,  or  letters  testamentary,  or  ancillary- 
let  ters,  the  date  and  place  of  death  of  said  decedent,  the  estimat- 
ed value  of  his  real  and  pe-rsonal  property,  the  names,  places  of 
residence  and  relationship  to  him  of  his  heirs  at  law,  the  names 
and  places  of  residence  of  the  legatees  or  devisees  in  any  will  of 
any  such  decedent,  the  amount  of  each  legacy,  and  the  estimated 
value  of  any  real  property  devised  therein,  and  to  whom  devised. 
Such  entry  shall  be  made  from  the  data  contained  in  the  papers 
filed  on  any  such  application,  or  in  any  proceeding  relating  to 
the  estate  of  the  decedent.  The  probate  judge  shall  also  enter 
in  such  docket  the  amount  of  the  personal  property  of  any  such 
decedent,  as  shown  by  the  inventory  thereof  when  made  and  filed 
in  his  office,  and  the  returns  made  by  the  county  auditor  under 
the  subdivision  of  this  chapter,  and  the  value  of  annuities,  life 
estates,  terms  of  years  and  other  property  of  said  decedent,  or 
given  by  him  in  his  will  or  otherwise,  as  fixed  by  the  probate 
court,  and  the  taxes  assessed  thereon,  and  the  township  or  munic- 
ipal corporation  in  which  the  same  originated,  and  the  amounts 
of  any  receipts  for  payment  of  any  taxes  on  the  estate  of  such 
decedent  under  this  subdivision  of  this  chapter,  filed  with  him. 
The  auditor  of  state  shall  also  prescribe  forms  for  the  reports  to 
be  made  by  each  probate  judge  and  county  auditor,  which  shall 
correspond  with  the  entries  to  be  made  in  such  docket.  [108  v, 
1195.] 

§  2108.  Monthly  reports  to  state  auditor.  §5348-8.  Each 
probate  judge  shall  make  a  report  monthly  to  the  auditor  of 
state,  upon  a  form  prescribed  by  such  auditor.  Such  report 
shall  contain  all  the  matters  required  to  be  entered  on  the  docket 
provided  for  in  the  foregoing  section  and  shall  be  filed  at  such 
date  in  each  month  as  may  be  required  by  the  auditor  of  state. 
The  reports  made  in  the  months  of  February  and  August  of 
each  year  shall  be  filed  by  each  probate  judge  at  the  same  time 
that  the  county  auditor  of  his  county  makes  his  semi-annual  set- 
tlement.    [108  V.  1196.] 

§  2109.  Reports  by  recorder.  §  5348-8a.  On  the  first  day 
of  January  and  first  day  of  July  annually  the  county  recorder 
of  each  county  in  the  state  shall  make  report  to  the  tax  com- 
mission of  Ohio,  on  a  form  prescribed  by  such  commission,  con- 
taining a  statement  of  any  deed  or  other  conveyance  of  property 
filed  in  his  office  during  the  preceding  six  months,  which  appears 
to  have  been  made  in  contemplation  of  death,  or  intended  to  take 
effect  in  possession  or  enjoyment  after  the  death  of  the  grantor 
or  vendor,  with  tlie  name  and  place  of  residence  of  such  grantor 
or  vendor,  the  name  and  place  of  residence  of  the  grantee  or 
vendee,  and  a  description  of  the  property  transferred.  [108 
v.  1197.] 

§  2110.  Accounts  kept  by  county  treasurer.  §  5348-9.  The 
county  treasurer  shall  keep  an  account  showing  the  amount  of  all 
taxes  and  interest  by  him  received  under  the  provisions  of  this 
subdivision  of  this  chapter.  On  the  twenty-fifth  day  of  February 
and  the  twentieth  day  of  August  of  each  year  he  shall  settle 


§  2111  INHERITANCE  TAX  1744 

with  the  county  auditor  for  all  such  taxes  and  interest  so  received 
at  the  time  of  making  such  settlement,  not  included  in  any  pre- 
ceding settlement,  showing  for  what-  estate,  and  by  whom  and 
when  paid.  At  each  such  settlement  the  auditor  shall  allow  to 
the  treasurer  and  himself  on  the  moneys  so  collected  and  ac- 
counted for  by  him,  their  respective  fees,  at  the  percentages 
allowed  by  law.  The  correctness  thereof,  together  with  a  state- 
ment of  the  fees  allowed  at  such  settlement  and  the  fees  and 
expenses  allowed  to  the  probate  judge  and  other  officers  under 
this  subdivision  of  this  chapter  shall  be  certified  by  the  county 
auditor.     [108  v.  574.] 

§  2111.  Fees,  etc.  §  5348-10.  Such  fees  as  are  allow^ed  by 
law  to  the  probate  judge  for  services  performed  under  the  pro- 
visions of  this  subdivision  of  this  chapter,  shall  be  fixed  in  each 
case  and  certified  by  him  on  the  order  fixing  the  taxes,  together 
with  the  fees'of  the  sheriff  or  other  officers  and  the  expenses  of  the 
county  auditor.  The  county  auditor  shall  pay  such  fees  and  ex- 
penses out  of  the  state's  share  of  the  undivided  inheritance  taxes 
in  the  county  treasury  and  draw  his  warrants  on  the  treasurer 
in  favor  of  the  fee  funds  or  officers  personally  entitled  thereto, 
payable  from  such  taxes,  as  the  case  may  require.     [108  v.  1196.] 

§  2111a.  Probate  judge's  fees.  §  5348-lOa.  For  services 
performed  by  him  under  the  provisions  of  this  chapter  each 
probate  judge  shall  be  allowed  a  fee  of  five  dollars  in  each 
inheritance  tax  proceeding  in  his  court  in  which  tax  is  assessed 
and  collected  and  a  fee  of  three  dollars  in  each  such  proceeding 
in  which  no  tax  is  found,  which  fees  shall  be  allowed  and  paid 
to  such  judges  as  the  other  costs  in  such  proceedings  are  paid 
but  are  to  be  retained  by  them  personally  as  compensation  for 
the  p'erformance  by  them  of  the  additional  duties  imposed  on 
them  by  this  chapter.  Provided  always,  however,  that  the 
amount  paid  to  any  probate  judge  under  this  section  shall  in  no 
case  exceed  the  sum  of  three  thousand  dollars  in  any  one  year. 
[109  V.  531.] 

§  2112.  Division  of  tax.  §  5348-11.  Fifty  per  centum  of  the 
gross  amount  of  any  taxes  levied  and  paid  under  the  provisions 
of  this  subdivision  of  this  chapter  shall  be  for  the  use  of  the 
municipal  corporation  or  township  in  which  the  tax  originates, 
and  shall  be  credited,  one-half  to  the  sinking  fund,  if  any,  of 
such  municipal  corporation  or  township,  and  the  residue  to  the 
general  revenue  fund  thereof ;  the  remainder  of  such  taxes,  after 
•deducting  the  fees  and  costs  charged  against  the  proceeds  there- 
of under  this  subdivision  of  this  chapter,  shall  be  for  the  use  of 
the  state,  and  shall  be  paid  into  the  state  treasury  to  the  credit 
of  the  general  revenue  fund  therein.    [108  v.  575.] 

§  2113.  Distribution  of  tax.  §  5348-12.  At  each  semi- 
annual settlement  provided  for  under  this  subdivision  of  this 
chapter,  the  county  auditor  shall  certify  to  the  auditor  of  any 
other  county  in  which  may  be  located  in  whole  or  in  part,  any 
municipal  corporation  or  town.ship,  to  which  any  part  of  the 
taxes  collected  under  this  subdivision  of  this  chapter,  and  not 


1745  DISTRIBUTION    OF    TAX  §  2114 

previously  accounted  for,  is  due,  a  statement  of  the  amount  of 
such  taxes  due  to  each  municipal  corporation  or  township  in 
such  county  entitled  to  share  in  the  distribution  thereof. 

Amount  due  township,  etc.  The  amount  respectively  due 
upon  such  settlement  to  each  such  municipal  corporation  or 
township,  and  to  each  municipality  or  township  in  the  county 
in  which  the  taxes  are  collected  shall  be  paid  upon  the  warrant 
of  the  county  auditor  to  the  treasurer  or  other  proper  officer  of 
such  municipal  corporation  or  township. 

Amount  of  refunder.  The  amount  of  any  refunder  charge- 
able against  any  such  municipal  corporation  or  township  at  the 
time  of  making  such  settlement,  shall  be  adjusted  in  determining 
the  amount  due  to  such  municipal  corporation  or  township  at 
such  settlement ;  provided,  however,  that  if  the  municipal  corpo- 
ration or  township  against  which  such  refunder  is  chargeable 
is  not  entitled  to  share  in  the  fund  to  be  distributed  at  such 
settlement,  the  county  auditor  shall  draw  his  warrant  for  the 
amount  thereof  in  favor  of  the  county  treasurer  payable  from 
any  undivided  general  taxes  in  the  possession  of  such  treasurer, 
unless  such  municipal  corporation  or  township  is  located  in 
another  county,  in  which  event  the  county  auditor  shall  issue 
a  certificate  for  such  amount  to  the  auditor  of  the  proper  county, 
who  shall  draw  a  like  warrant  therefor  payable  from  any  un- 
divided general  taxes  in  the  possession  of  the  treasurer  of  such 
county  ;  and  in  either  case  at  the  next  semi-annual  settlement  of 
such  undivided  general  taxes,  the  amount  'of  such  warrant  shall 
be  deducted  from  the  distribution  of  taxes  of  such  municipal  cor- 
poration or  township  and  charged  against  the  proceeds  of  levies 
for  the  general  revenue  fund  of  such  municipal  corporation  or 
township.     [108  v.  575.] 

§  2114.  Where  tax  deemed  to  originate  on  property  in  this 
state.  §  5348-13.  When  the  property  passing  is  real  estate  or 
tangible  personal  property  within  this  state  the  tax  on  the  succes- 
sion thereto  shall  be  deemed  to  have  originated  in  the  municipal 
corporation  or  township  in  which  such  property  is  physically 
located.  In  case  of  real  estate  located  in  more  than  one  munic- 
ipal corporation  or  township  the  tax  on  the  succession  thereto, 
or  to  any  interest  therein,  shall  be  apportioned  between  the  mu- 
nicipal corporation  or  townships  in  which  it  is  located  in  the 
proportions  in  which  the  tract  is  assessed  for  general  property 
taxaton  in  such  townships  or  municipal  corporations  respectively. 
[108  V.  576.] 

§  2115.  Where  tax  deemed  to  originate  on  property  not 
within  state.  §  5348-14.  The  tax  on  the  succession  to  in- 
tangible property  or  tangible  personal  property  not  within  this 
state  from  a  resident  of  this  state  shall  be  deemed  to  have  origi- 
nated in  the  municipal  corporation  or  township  in  which  the 
decedent  resided. 

The  municipal  corporation  or  township  in  which  the  tax  on 
the  succession  to  the  intangible  property  of  a  non-resident  ac- 
cruing under  the  provisions  of  tliis  subdivision  of  this  chapter, 
shall  be  deemed  to  have  originated,  shall  be  determined  as  follows : 


§  2115a  INHERITANCE   TAX  1746 

Stock  of  corporation.  1.  In  the  case  of  shares  of  stock  in 
a  corporation  organized  or  existing  under  the  laws  of  this  state, 
such  taxes  shall  be  deemed  to  have  originated  in  the  municipal 
corporation  or  township  in  which  such  corporation  has  its  prin- 
cipal place  of  business  in  this  state. 

.  Bonds,  notes, .  etc.  2.  In  case  of  bonds,  notes,  or  other 
securities  or  assets,  in  the  possession  or  in  the  control  or  custody 
of  a  corporation,  institution  or  person  in  this  state,  such  taxes 
shall  be  deemed  to  have  originated  in  the  municipal  corporation 
or  township  in  which  such  corporation,  institution  or  person 
had  the  same  in  possession,  control  or  custody  at  the  time  of 
the  succession. 

Moneys  en  deposit.  3,  In  case  of  moneys  on  deposit 
W'ith  any  corporation,  bank,  or  other  institution,  person  or  per- 
sons, such  tax  shall  be  deemed  to  have  originated  in  the  munici- 
pal corporation  or  township  in  which  such  corporation,  bank 
or  other  institution  had  its  principal  place  of  business,  or  in 
which  such  person  or  persons  resided  at  the  time  of  such  suc- 
cession.    [108  V.  576]^^ 

§  2115a.  Sale  of  Property  under  Section  G.  C.  5332.  In  giv- 
ing a  construction  to  Paragraph  4  of  Sec.  5332  G.  C,  the  Attor- 
ney General  has  paraphrased  the  same  as  follows: 

"Whenever  the  owTier  of  property  bj'  deed  or  will  grants,  be- 
queaths or  devises  it  to  another  person  for  a  limited  period,  and 
empowers  such  other  person  to  appoint  the  ultimate  successors 
to  it,  or  whenever  the  original  owner  by  will  leaves  the  property 
to  such  person  as  may  be  selected  by  some  designated  person,  the 
taxable  succession  for  the  purposes  of  the  act  shall  be  that  which 
occurs  when  the  selection  is  made  by  the  person  so  empowered, 
rather  than  that  which  occurs  when  the  estate  passes  out  of  the 
original  owner ;  and  if  the  person  so  empowered  fails  to  exercise 
the  power,  so  that  the  estates  descend  or  are  distributed  accord- 
ing to  law,  yet  such  descent  or  distribution  shall  be  regarded  as 
taking  place  through  the  agency  or  will  of  the  person  who  failed 
to  exercise  the  power,  so  that  the  taxable  succession  shall  be 
deemed  to  have  taken  place  at  the  time  such  person  should  have 
exercised  such  power;  and  in  order  to  bring  about  such  result 
the  succession  shall  be  considered  in  the  same  light  for  the  pur- 
pose of  a  tax  as  if  the  person,  who  exercised  the  power  or  failed 
to  exercise  it,  as  the  case  may  be,  had  died  on  the  date  of  such 
failure  to  exercise,  leaving  a  will  by  which  the  estates  ultimately 
vesting  had  been  immediately  created.  This  shall  be  the  result 
whether  the  instrument  of  the  original  donor  creating  the  orig- 
inal power  was  efifective  for  that  purpose  before  or  after  the 
taking  effect  of  this  act. '  '®* 

83  See   Atty.   Genl's   op.,   Sept.    7,  state,    and    it    is    the    duty    of    the 

1920,    where    it    is    a    consolidated  corporation  to  have  a  general  office 

corporation    and    the    property    be-  in  this  state.     65  Bull.  414. 

lon<rs  to  a  non-resident,  it  will  where  §*  See  opinion  of  Attorney  Gener- 

a   general   office  is  located   in   this  al,  1919. 


1747 


MARRIAGE    LICENSE 


§2116 


CHAPTEE  CVII 
MISCELLANEOUS. 


§2116 

Introductory. 

§  2128a 

§2117 

Marriage  license. 

§2129 

§2118 

Inquests  of  lunacy. 

§2119 

Removal   of   drifts. 

§2130 

§2120 

Railroad  drains. 

§2121 

Proceedings    to    oust    muni- 
cipal   officer. 

§2131 

§2122 

Same    proceedings. 

§2132 

§2123 

Same.      Trial. 

§2133 

§2124 

Removal  of  county  auditor. 

§2134 

§2125 

Examination      of      charges; 

removal ;    successor. 

§2135 

§2126 

Amercement. 

§  2127 

Attendance  of  witnesses. 

§2128 

Justices   of   the   peace. 

Miscellaneous. 

Change  of  name,  definition, 
etc. 

Proceedings  to  change  name 
of    person. 

Reissue  of  certificates  lost 
or   destroyed. 

Parties    and    notiee. 

Finding  and  order  of  court. 

Rights  and  liabilities  under 
new    certificate. 

Proceedings  may  be  had  by 
administrators  and  execu- 
tors. 


§  2116.     Introductory. 

In  tlie  previous  parts  of  this  work  have  been  discussed  some- 
what in  detail,  the  more  important  matter.s  that  come  within 
the  practice  of  tlie  law  in  the  Prohate  Courts  cf  cur  State. 
Some  matters  coming  within  the  jurisdiction  of  the  Probate 
Court  have  thus  far  been  omitted  for  the  reason  that  they  are 
either  seldomly  used  or  relate  more  particularly  to  duties  en- 
joined upon  the  Probate  Judge.  The  fact  is  that,  seemingly 
from  a  want  of  a  better  forum,  the  Legislature  is  constantly 
placing  upon  the  Probate  Judge  new  duties,  both  of  a  judicial 
character  and  ministerial  nature.  It  will  be  the  province  of 
this  chapter  to  briefly  refer  to  some  of  these  omitted  subjects. 


§2117.    Marriage  license. 

By  the  fifth  paragraph  of  Sec.  10492,  G.  C,  jurisdiction  is 
conferred  upon  the  Probate  Judge  to  grant  marriage  licenses  and 
licenses  to  a  minister  of  the  Go.spcl  to  solemnize  marriages. 
The  sections  of  the  General  Cede  defining  the  duties  of  the 
Probate  Judge  are  contained  in  numbers  from  11181-11198  G.  C. 


§  2117  MISCELLANEOUS  1748 

These  sections  define  who  may  marry,^  who  may  solemnize 
marriages,"  how  ministers  may  obtain  license  to  perform  mar- 
riage ceremony,^  how  marriages  may  be  performed  without  a 
license,*  how  a  license  can  be  procured  from  the  Probate  Judge, ^ 
and  the  duty  of  the  minister  performing  the  marriage  cere- 
mony to  transmit  a  certificate  of  the  same,  and  penalty  for 
failure  to  perform  such  duty.^ 

Age. —  The  questions  that  usually  interest  the  Probate  Judge 
in  granting  a  license  to  marry  are,  first,  as  to  the  age  of  the 
parties ;  second,  as  to  their  residence,  and,  third,  their  relation- 
ship. In  our  State,  males  above  twenty-one  and  females 
eighteen  years  of  age  are  "  of  age,"  ^  and  may  enter  into  any 
contract.  In  reference  to  the  marriage  contract,  a  male  per- 
son above  the  age  of  eighteen  years  and  a  female  above  the  age 
of  sixteen  years  may  enter  into  such  contract,  provided  such 
persons  in  minority  first  obtain  the  consent  of  their  fathers,  or 
in  case  of  the  death  or  incapacity  of  their  fathers,  then  their 
mothers  or  guardians.  The  Probate  Judge  has  no  right  to 
issue  a  marriage  license  to  a  person  in  minority,  although  above 
the  age  of  consent,  unless  the  father  if  living,  or  mother  if  the 
father  be  dead,  and  if  both  be  dead,  the  legal  guardian  gives 
consent  as  provided  by  statute.  This  consent  must  be  given 
either  personally  to  the  judge  or  in  writing,  the  signature  of  I 
the  parent  or  guardian  attested  by  two  witnesses,  one  of  whom 
shall  appear  before  said  judge  and  make  oatli  that  he  saw  the 
parent  subscribe  his  name.  A  diflSculty  sometimes  occurs  in 
these  consents  to  secure  a  strict  compliance  with  the  statute, 
which  often  results  from  an  impossibility,  or  if  not  an  impossi- 
bility, a  very  great  inconvenience.  For  instance,  the  parent 
may  reside  in  a  foreig-n  State,  and  no  witness  can,  without 
great  cost  and  inconvenience,  appear  before  the  Probate  Judge. 
In  such  cases  the  judge  must  exercise  a  reasonable  discretion, 
and  ought  to  require  that  if  the  consent  is  given  in  another.* 

1  §  11181  G.  C.  *  Can    not    issue   a   license    to    a 

2§11182G.  C  drunkard,    epileptic    or    insane    per- 

3  §§11183.  11184  G.  C.  son.      [97  vs.  8.3]    (in04). 

4  §  11186  G.  C.  The  jiul.se  of  tlie  Juvenile   Court 

5  §§11188  to  11104  G.  C.  may,   in   cases   where  the   female   is 

6  §§  11195,  11196  G.  C.  approaching    maternity,    give    con- 

7  §  8023  G.  C,  §  1020.  sent.     §  11181-1  G.  C. 


1749  MARRIAGE    LICENSE  §  2117 

State,  that  the  signatures  be  acknowledged  before  some  official 
of  such  State/ 

Residence. —  The  second  matter  is  the  residence  of  the  party. 
There  is  no  direct  provision  on  this  subject,  except  that  before 
any  one  can  perform  the  marriage  ceremony  the  statute  requires 
that  a  license  shall  be  obtained  for  that  purpose  from  the  Pro- 
bate Judge  in  the  county  where  such  female  resides.  This 
section  is  very  much  evaded ;  a  person  <  f  age  may  at  any  time 
choose  her  residence,  and  consequently  where  the  bride-to-be  is 
of  age,  she  can  very  easily  go  to  some  other  county,  and  for  the 
time  being  claim  that  as  her  residence.  In  case  of  minors,  such 
would  not  be  the  case,  and  license  could  not  be  granted  in  any 
other  county  except  the  residence  of  the  parent  having  control 
of  the  minor.^ 

Relationship. —  The  third  matter  that  comes  tO'  the  Probate 
Judge  is  the  matter  of  relationship.  Our  statute  provides  ^" 
that  the  parties  should  not  be  nearer  of  kin  than  second  cousins. 
There  is  a  great  deal  of  discussion  in  books  as  to  what  constitutes 
a  cousin,  etc.,  dependent  somewhat  upon  whether  the  common 
or  the  civil  law  is  followed.  But  for  all  practical  purposes  it 
may  be  said  that  the  statute  forbids  the  marriage  of  uncles  and 
nieces,  aunts  and  nephews,  either  of  the  whole  or  the  half  blood, 
and  persons  who  are  first  cousins,  that  is,  who  have  the  same 
grand  parents.     Those  not  nearer  related  may  legally  marry. 

Ministers  License. —  Another  duty  that  the  Probate  Judge 
must  perform  is  to  gi'ant  licenses  to  solemnize  marriages  to  any 
minister  of  the  Gospel  upon  producing  to  the  judge  of  his  Court 
credentials  of  his  being  a  regularly  ordained  minister  of  any 
religious  society  or  congregation,"  and  the  law  intends  that  no 
minister  shall  perform  a  ceremony  in  any  county  until  he  has 
obtained  such  permit.^^ 

8  See  §  11188  to  11194  G.  C.  12  §  11183  G.  C. 

9  It  evidently,  however,  was  the  in-  The  minister  need  not  reside  nor 
tontion  of  the  legislature  that  these  have  a  charge  in  the  county  in  which 
licenses  should  only  be  granted  in  he  applies  for  a  permit,  etc.  It  is 
the  county  of  the  actual,  commonly  sufllcient.  if  he  intends  to  o'fTiciate 
known  and  recognized  residence  of  therein  and  perform  the  marriage 
the  bride  to  be.  ceremony. 

-     10  §  11181  G.  C.  13  As  to  what  will  constitute  a  re- 


§2118 


MISCELLANEOUS 


1750 


§  2118.  Inquests  of  lunacy. 
Paragraph  6  of  Sec.  10492,  G.  C,  confers  exclusive  jurisdiction 
upon  the  Probate  Courl;  to  make  inquests  respecting  lunatics 
and  insane  persons,  etc.  A  very  interesting  historical  resume 
of  this  matter  is  found  in  a  Supreme  Court  decision  of  our 
State.--      These   proceedings   are   analogous   to   proceedings   in 


ligious  society  or  congregation  is  one 
upon  wliicli  tliere  may  be  a  difference 
of  opinion.  Probate  judges  have 
construed  tbis  liberally  and  general- 
ly grant  sueb  permits  wbere  tlie  per- 
son applying  is  recognized  by  any  re- 
ligious society  or  congregation  as  a 
minister.  Salvation  Army  captains. 
Christian  Scientists,  Saints,  Dun- 
kards,  etc.,  have  been  granted 
license.  A  marriage  performed  by  a 
person  witliout  such  a  license  if  fol- 
lowed by  cohabitation,  would  be  a 
valid  legal  marriage,  and  the  only 
effect  would  be  that  the  party  per- 
forming the  same  would  be  liable 
to  a  fine. 

§  11197  G.  C. 

The  entire  object  of  the  law  relat- 
ing to  licenses,  etc.,  so  far  as  the 
same  may  affect  the  legality  of  the 
marriage  seems  to  be  to  put  upon 
record  the  proof  of  such  marriage, 
for  our  court  has  held  that  there 
may  be  a  valid  marriage  without  any 
license  or  ceremony  whatever.  Car- 
michael  vs.  The  State,  12  0.  S.  553. 

See  §  945,  As  to  what  will  consti- 
tute valid  marriage. 

22  In  Wheeler  vs.  the  State,  34  0. 
S.  395,  Judge  Olcey  gives  the  follow- 
ing: "Under  the  territorial  govern- 
ment, jurisdiction  to  hold  inquests 
concerning  persons  alleged  to  be  in- 
sane was  vested  in  the  judge  of  Pro- 
bate. 1  Chase,  127,  191,^339.  By 
the  act  of  1S05,  the  jurisdiction  was 
vested  in  the  Court  of  Common 
Pleas,  1  Chase  489.  In  1815  it  was 
transferred  to  justices  of  the  peace 
(2  Chase,  869),  where  it  remained 


except  as  to  non-residents  (2  Chase, 
1009),  until  1838,  when  it  was  vest- 
ed in  the  associate  judges.  1  Cur- 
wen,  407.  In  the  proceeding  under 
all  these  statutes,  the  question  of 
sanity  was  tried  by  a  jury,  consist- 
ing, in  some  instances,  of  five  men; 
in  others  of  seven  men;  and  in  still 
others  of  twelve  men.  It  was  anal- 
ogous to  a  commission  in  the  En- 
glish practice  and  the  practice  of 
many  states. 

In  ISoO  the  ancient  feature  of  the 
proceeding — the  determination  of 
the  question  by  a  jury — ceased  to 
exist  in  this  state;  but  the  effect  of 
the  adjudication  remained  the  same. 
By  a  statute  passed  in  that  year  the 
power  to  hold  such  inquests  was 
vested  in  two  justices  of  the  peace. 
They  were  required  to  hear  evidence 
and  set  fortli  in  writing  whether  the 
person  complained  of  was  sane  or 
insane  and  the  history  of  the  case 
is  developed  in  the  evidence.  2  Cur- 
wen,  1554. 

While  the  Act  of  1850  was  in 
force,  jurisdiction  was  conferred  by 
the  Act  of  1852  (3  Curwen,  1717) 
on  the  Probate  Court  to  hold  "in- 
quests as  to  lunatics,  insane  persons, 
and  idiots;"  and  by  the  Probate 
Code  of  1853  (3  Curwen,  2041),  re- 
enacted  in  1854  (4  Curwen,  2630) 
exclusive  jurisdiction  was  conferred 
on  that  court  "to  make  inquests  re- 
specting lunatics,  insane  persons, 
idiots,  and  deaf  and  dumb  persons, 
subject  by  law  to  guardianship." 

The  Act  of  1850  was  repealed  in 
1856  (4  Curwen,  2740),  and  the  lat- 


1751 


INQUESTS   OF   LUNACY 


§2118 


rem,  affecting  the  general  and  public  interest,  and  no  one  can 
strictly  be  regarded  as  a  stranger  to  them.^^  The  law  relating 
to  such  inquests  will  be  found  in  sections  of  the  General  Code 
from  1947  to  2034.  The  statute  points  out  -*  who  may  make 
the  application  and  the  fonn  of  the  same,  and  unless  some  one 
disputes  the  insanity,  it  seems  that  the  inquest  may  be  held 
without  any  other  than  medical  testimony.^^  The  statute, 
however,  is  mandatory  that  if  the  judge  deems  the  party  to  be 
unsuitable  to  appear  in  Court,  that  he  must  then  personally 
visit  such  person  and  ascertain  the  condition  by  actual  inspec- 
tion. Further  proceedings  may  then  be  had  in  the  absence  of 
the  person  charged  t  ,<  insane."'^  It  is  evidently  the  intention 
of  the  statute  that  the  finding  required  to  be  made  in  inquests 
of  lunacy  is  a  judicial  act,  and  cannot  be  performed  by  a 
deputy  clerk."^ 


ter  Act  remained  in  force,  except  as 
modified  by  other  Acts  (see  67  Ohio 
Laws  43)  until  1878,  when  it  was  re- 
pealed and  re-enacted.  75  Ohio 
Laws  64. 

The  Act  of  1856  provided  that  be- 
fore any  person  can  be  admitted  into 
an  insane  asylum,  the  judge  of  the 
Probate  Court  "  shall  proceed  to  ex- 
amine the  witness  in  attendance,  and 
if,  upon  hearing  of  the  testimony, 
such  judge  shall  be  satisfied  that  the 
person  so  charged  is  insane,"  proper 
steps  shall  be  taken  for  his  admis- 
sion to  such  asylum.  The  finding,  it 
will  be  seen,  was  in  effect  the  same 
as  where  a  guardian  was  appointed. 
§§41,  63.  It  was  an  adjudication 
concerning  the  status  of  a  person  by 
a  Court  clothed  with  jurisdiction, 
and,  except  as  otherwise  provided  by 
statute,  the  record  imported  absolute 
verity  that  he  was  then  a  proper 
person  to  be  confined  in  an  insane 
asylum.  Shroyer  vs.  Richmond,  16 
O.  S.  455.  And,  while  the  proceed- 
ing in  this  State  differs  from  an  in- 
quisition of  lunacy  in  the  English 
practice  and  in  the  practice  of  many 


States  (Shelford  on  Lunatics,  ch. 
4;  2  Barbour's  Ch.  Pr.,  book  5,  ch. 
6 )  the  effect  of  the  inquest,  as  to  the 
matter  now  before  us,  is  the  same." 

See  Heckman  vs.  Adams,  50  0.  S. 
305,  as  to  changes  made  by  codifiers 
in  1880. 

23  Wheeler  vs.  The  State,  34  0.  S. 
394. 

21  §  1953  G.  C. 

23  §  1954  G.  C. 

20  When  the  writer  occupied  the 
position  of  probate  judge,  lie  made 
it  a  rule  of  his  Court  that  no  person 
should  be  adjudged  insane  unless  the 
facts  were  sup^xirted  by  ^ne  testi- 
mony of  at  least  two  disinterested 
witnesses  who  were  not  related  to 
the  person  charged. 

27  The  general  practice,  where  for 
some  reason  the  judge  cannot  per- 
sonally hear  such  matters,  is  for 
liim  io  make  the  finding  and  him- 
self sign  the  journal  entry.  There 
ouglit  to  be  some  provision  made 
for  tlie  judge  of  the  Court  of  Cora- 
n:on  Pleas  to  try  such  cases  in  the 
absence  or  inability  of  the  probate 
jiulgc  to  act. 

There  is  now  such  provision.  See 
§  10a,   §  1592   G.   C. 


§  2119  MISCELLANEOUS  1752 

See.  1956,  G.  C,  provides  that  a  physician  shall  make  an  ex- 
amination and  set  forth  in  a  certificate  the  condition  of  the  pa- 
tient ;  sees.  1958  to  1961,  G.  C,  how  application  shall  be  made  for 
admission  and  form  of  Avarrant ;  sees.  1962  to  1964,  G.  C,  that 
the  judge  shall  see  that  the  patient  has  proper  clothing.  While 
it  has  been  held  by  our  Supreme  Court  -^  that  when  the  jurisdic- 
tion once  attaches  it  exists  until  the  patient  is  discharged,  yet 
the  authorities  in  charge  of  tlie  insane  hospitals  generally  assume 
complete  control  over  the  patient  after  he  has  been  admitted, 
and  refuse  to  discharge  even  if  the  Probate  Judge  so  orders 
if  they  think  the  interest  of  the  patient  demand  his  furtker 
detention;  and  the  usual  practice  in  such  cases  is  to  institute 
proceedings  by  writ  of  habeas  cor-pus  to  test  the  insanity  of  the 
person  after  he  has  been  admitted  to  an  insane  hospital.*^ 

For  other  matters  relating  to  such  inquests,  the  reader  is  re- 
ferred to  the  general  statutes  relating  thereto. 

§  2119.     Removal  of  drifts. 

Jurisdiction  is  conferred  upon  the  Probate  Court  by  way  of 
appeal  in  the  matter  of  removal  of  drifts,  a  proceeding  which  is 
originally  begiin  before  the  county  commissioners.^"  The  pro- 
ceedings in  appeal  are  vers'  much  similar  to  those  in  county 
ditch   appeals,   and  while  the  statute  relating  thereto   differs 

28  Heckman  vs.   Adams,   50   0.    S.  person  insane  and  turns  him  at  large 
305.  no  one  knows  what  injurious  action 

29  The  matter  of  adjudging  a  per-  may  be  done  to  society.  If  he  finds 
son  to  be  insane  is  one  of  extreme  the  person  insane  when  his  faculties 
delicacy;  and  often  great  difficulty  are  not  deranged  great  injustice 
is  encountered  in  ascertaining  wheth-  and  injury  may  be  inflicted  on  the 
er  or  not  the  party  really  be  insane.  person  by  such  action.  The  only 
No  physician  or  other  person  is  wise  thing  that  the  judge  can  do  in  such 
enough  to  exactly  understand  and  de-  cases  is  to  exercise  his  very  best 
fine  with  precision,  the  workings  of  judgment,  taking  exceedingly  great 
the  human  mind.  The  experienced  care  that  neither  the  rights  of  so- 
person,  however,  can  generally  tell  ciety  nor  of  the  individual  are  un- 
when  there  is  a  mental  derangement,  justly  imposed  upon  by  his  action, 
but  there  are  cases  upon  the  border  ^^  See  §§  6725  to  6727  G.  C,  now 
line  when  the  judge  hardly  knows  repealed. 

how  to  act.     If  he  fails  to  find  the 


1753  RAILROAD  DRAINS  §  2120 

somewhat  in  detail,  yet  the  forms  and  suggestions  given  in  the 
chapter  relating  to  ditch  appeals  may  be  consulted  with  profit 
where  an  appeal  is  had  in  the  matter  of  removal  of  drift;  and 
as  the  proceeding  is  one  of  not  very  frequent  occurrence,  no 
further  comments  will  be  made  thereon  in  this  work,  except  to 
caution  the  practitioner  to  carefully  consult  the  statutes  in  all 
his  proceedings.^^ 


§2120.    Railroad  drains. 

Our  statute  provides  that  every  railroad  is  required  to  con- 
struct and  keep  open  along  its  road  bed  ditches  or  drains  of 
sufficient  depth,  grade  and  width  to  conduct  to  some  proper  out- 
let the  water  which  accumulates  thereon,^''  and,  if  after  ten 
days'  notice  or  request  to  any  person  or  ticket  agent  of  the 
company,  the  person  operating  the  company  fails  to  provide 
such  drain  or  ditch,  the  person  interested  may  institute  proceed- 
ings in  the  Probate  Court  to  compel  such  clearing  out  of  the 
ditch  or  drain.^** 

The  statute  further  provides  that  upon  receipt  of  the  notice 
the  Probate  Judge  shall  appoint  a  commission  of  three  disinter- 
ested free  holders,  who,  with  the  county  surveyor,  shall  view  the 
ditch  complained  of ;  and  subsequent  sections  provide  *^  that 
the  Probate  Judge  may  let  out  the  work,  etc.  Forms  are  given 
for  proceedings  under  these  sections  in  Whittaker's  Probate 
Code,  under  Sec.  8912,  G.  C.*^ 


31  See  Gilmore's  Prob.  Prac,  198  stitutional.     C.  &  E.  K.  vs.  Keith, 

for  forms,  etc.  48  Bull.  118;  67  0.  S.  279. 

39  §  8908  G.  C.  41  §  8010  G.  C. 

40  §  8909   G.   C.,  declared  uncon-  42  Gilmore's  Prob.  Practice,  229. 


§  2121  MISCELLANEOUS  1754 

§  2121.     Proceeding's  to  oust  municipal  ofScers. 

Certain  sections  of  the  General  Code  ***  specifically  provide 
that  the  commission  of  certain  acts  by  municipal  officers  are 
forbidden,^"  and  other  sections  ^°  specifically  point  out  that  pro- 
ceedings shall  be  brought  in  the  Probate  Court,  making  such 
Court  one  of  original  and  exclusive  jurisdiction  to  oust  the 
olTcnding  official.''^  The  action  contemplated  by  sees.  4u70  to 
4u80,  G.  C,  is  one  of  a  quasi  criminal  character ;  and  the  statute 
must  be  strictly  construed,  and  before  a  ccnvicticn  can  be  had 
the  jury  must  be  satisfied  beyond  a  reasonable  doubt  that  the 
person  charged  has  been  guilty  of  malfeasance  or  misfeasance 
in  his  office  as  prescribed  by  the  statute.^-  The  section  of  the 
General  Code  conferring  such  jurisdiction  is  as  follows : 

"When  complaint  under  oath  is  filed  with  the  probate  judge 
of  the  county  in  which  the  municipality,  or  the  larger  part 
thereof  is  situated,  by  any  elector  of  the  corporation,  signed 
and  approved  by  four  other  electors  thereof,  charging  any  one 
or  mere  of  the  following:  That  a  member  of  the  council  has 
received,  directly  or  indirectly,  compensation  for  his  serAdces  as 
councilman,  committeeman,  or  otherwise,  contrary  to  law;  or 
that  a  member  of  the  council  or  an  officer  of  the  corporation  is 
or  has  been  interested,  directly  or  indirectly,  in  the  profits  of  a 
contract,  job,  work  or  service,  or  is  or  has  been  acting  as  com- 
missioner, architect,  superintendent  or  engineer  in  work  under- 


*"  §  12912    G.    C.  exclusive  one,  and  quo  icarranto  will 

40  Other   sections   relate    to   other  not  lie. 

ofHcers     to-wit,     §  5  24C5-5C     K.     S.,  See  also  State  ex  rel.  Grisell  vs. 

Which  provide  that  oCiccrs  shall  be  Marlow,  15  O.  S.  114,  and  State  ex 

removed  as  in  the  manner  provided  rel.  Jordan  vs.  Funk,  16  C.  C.  155;  8 

for  the  removal  of  officers.  C.  D.  782. 

f'O  §  4070  G.  C.  52  Malfeasance  has  been  defined  as 
51  State   ex  rel  Atty.   General  vs.  the  doing  of  an  act  wholly  unlawful 
McLain,   58   O.   S.   213.  and  wrongful.     Misfeasance  is  a  de- 
It  is  held  wiiere  the  causes  of  re-  fault  in  an  office  in  not  doing  a  law- 
moval  from  office  are  prescribed  by  ful  act  in  a  proper  manner,  omitting 
statute  w'hich    ilso   provi,a'os   a  spe-  to  do  it  as  it  should  be  done.     Col- 
cial  mode  of  procedure  for  such  re-  burn  vs.  Neufarth,  Goebel,  Probate 
moval,  the  statutory  remedy  is  the  Reports,  24,  which  contains  the  en- 
tire charge  of  the  Court  to  the  jury. 


1755  OUSTER    OF    MUNICIPAL    OPPICEES  §  2122 

taken  or  prosecuted  by  the  corporation,  contrary  to  law ;  or  that 
a  member  of  council  or  an  officer  of  the  corporation  has  been 
guilty  of  misfeasance  or  malfeasance  in  office,  such  probate  judge 
shall  forthwith  issue  a  citation  to  the  parties  charged  in  such 
complaint  for  his  appearance  before  him  within  ten  days  from 
the  filing  thereof,  and  also  furnish  the  accused  and  city  solicitor 
with  a  copy  thereof,  but,  before  acting  upon  such  complaint, 
such  judge  shall  require  the  party  complaining  to  furnish  suffi- 
cient surety  for  costs."     [R.  S.  §  1732.]^=' 

§  2122.     Same  proceedings. 

The  action  is  begun  and  prosecuted  by  the  filing  of  a  com- 
plaint with  the  Probate  Judge  of  the  ooimty  in  which  the  mu- 
nicipal corporation  or  a.  larger  part  thereof  is  situate.  This 
complaint  must  be  brought  by  at  least  four  electors  of  such 
corporation  and  should  set  out  with  certainty  the  matter  charged 
against  the  offending  officer.  The  action  being  quasi  criminal, 
the  complaint  should  set  out  the  matter  charged  with  almost  the 
same  degree  of  certainty  as  is  required  in  an  indictment.  The 
Court  might  not  enforce  to  the  fullest  extent,  the  same  certainty 
as  in  criminal  cases.  The  complaint  should  be  titled,  giving 
the  names  of  the  persons  filing  the  complaint  as  plaintiffs  and 
the  officer  charged  as  defendant. 

The  complaint  may  be  in  the  following  form : 

A.  B.,  E.  F.,  G.  H.  and  I.  K.  "j  Probate  Court, County,  Ohio. 


vs. 


Q  J)  J  co:mplaint. 

A.  B.,  E.  F.,  H.  G.  and  I.  K.  respectfully  represent  that  they  are  electors 

of  the  corporation  of ,  which  is  situate  in  the  county  of 

;  that  C.  D.  is  the  duly  elected,  qualified  and  acting 

,  an  oi!icer  in  the  city  of ,  a  municipal  corporation 

under  the  laws  of  this  State,  situate  in county.     That  on  or 

about  the day  of ,  said  C.  D..  while  so  acting  as 

of  said  corporation,  received  compensation  for  his  services,  con- 
trary to  the  provision  of  the  statute  in  such  cases  made  and  provided. 
(Here  set  out  in  detail  the  specific  matters  which  are  charged  against  the 
defendant. ) 

53  §  4670  G.  C.  '      the  reasons  specifically  stated,  none 

This   section   authorizes   tlie  Pro-       other.    Mastick  vs.  Lakcwood,  18  O. 
bate  Judge  to  remove  an  ofiicer  for       C.   (N.S.)   407.     See  §4203  G.  C. 


§  2122  MISCELLANEOUS  1756 

Wherefore  your  complainants  pray  that  the  Probate  Judge  of 

county,  will  forthwith  issue  a  citation  to  the  said  C.  D.  charged  in  this 
complaint,  for  his  appearance  before  him  within  ten  days  from  the  filing 
of  such  complaint,  and  that  such  other  proceedings  may  be  had  thereunder 
as  provided  by  law. 

State  of  Ohio, County,   ss. 

A.  B.,  one  of  the  above  complainants,  being  first  duly  sworn,  says  that 
the  statements  in  the  foregoing  complaint  are  true  as  he  verily  believes. 

Sworn   to   before   me   and    subscribed    in   my    presence   this day   of 

190.  ..54 


Upon  the  filing  of  such  complaint,  and  security  for  costs  be- 
ing given,  the  case  should  be  docketed,  and  the  following  journal 
entry  made: 

(Title. ) 
This  day  came  A.  B.,  et  al.,  and  filed  their  complaint  in  this  Court,  alleging 

that  C.  D.,  an  official  in corporation,  situate  in  this  county, 

has  been  guilty  of and  praying  that  proceedings  may  be 

had   thereunder,  as  provided  by  statute,   it  is  ordered  that  a  citation  be 
issued  forthwith  to  such  party  charged  in  the  complaint,  for  his  appearance 

before  this  Court,  on  the day  of (within  ten  days  from 

the  time  of  filing  the  complaint)  to  answer  to  such  charges.     And  it  is  also 
ordered  that  the  complainant  furnish  the  said  C.  D.  and  the  city  solicitor  of 

with  a  copy  of  the  complaint  in  this  ease,  and  the  order  of 

the  Court  thereon  made,   and   said   matter   is   continued   to  the day 

of for   further   hearing. 

The  form  of  citation  may  be  as  follows: 

To  the  Sheriff  of County,  Greeting: 

You  are  hereby  commanded  to  cite  C.  D.  to  appear  before  the  Probate 

Court  in  the county  of on  the day  of ... 

at o'clock,  to  answer  to  a  certain  complaint  filed  against  him.     A 

copy  of  which  you  are  also  ordered  to  deliver  to  said  C.  D. 

Witnesseth  my  hand  and  seal  of  said  Court,  this day  of 

,   Probate  Judge. 

The  following  is  the  provision  of  the  General  Code,  which 
relates  to  what  shall  be  done  upon  the  day  fixed  by  the  judge 
for  the  return  of  citation : 

"On  the  day  fixed  by  such  juds:e  for  the  return  of  the  citation, 
the  solicitor  shall  appear  on  behalf  of  the  complainant  to  conduct 

54  It  will  be  observed  that  the  pro-       ing  the  following  endorsement  on  the 
bate   judge  shall   require   the   party       back  of  the  complaint: 
complained  to   give  security  for  all  We  acknowledge  ourselves  security 

costs    before    acting    on    such    com-       for  all  costs  accruing  in  this  proceed- 
plaint.     This  may  be  done  by  mak-       ing.     A.  B.,  E.  F.,  G.  H.,  I.  K.,  com- 
plainants  in  this  proceeding. 


1757  OUSTER  OF  MUNICIPAL  OFFICERS  §  2123 

the  prosecution,  and  the  accused  may  also  appear  by  counsel. 
A  time  shall  be  set  for  hearing  the  case,  which  shall  be  not 
more  than  ten  days  after  such  return.  If  a  jury  is  demanded 
by  either  party,  the  probate  judge  shall  direct  the  summoning 
of  twelve  men  in  the  manner  provided  for  the  appropriation 
of  property  by  the  municipality.  In  municipalities  having  no 
solicitor,  or  in  case  the  solicitor  is  accused  of  any  misfeasance 
or  malfeasance  in  his  office,  the  prosecuting  attorney  of  the 
county  shall  appear  on  behalf  of  the  complainant  to  conduct 
the  prosecution."     [R.  S.  §  1733.] ^» 

On  the  day  fixed  for  the  return  of  the  citation,  then  the  judge 
should  fix  a  time  for  trial,  and  if  a  jury  is  demanded,  the  sum- 
moning of  a  jury.  It  is  probably  intended  that  at  this  time 
preliminary  questions  should  be  heard  and  the  defendant 
should  be  required  to  answer  or  plead  to  the  charges.  If  he 
admits  the  truth  of  the  charges,  or  pleads  guilty,  no  trial  will 
be  necessary.  If  he  answer  not  guilty,  the  following  journal 
entiy  should  be  made : 

(Title.) 

This  day  this  cause  came  on  to  be  further  heard,  the  complainants  being 
represented  by ,  said  solicitor  of corpora- 
tion, and  the  accused  by ,  his  counsel;  and  thereupon  said 

accused  filed  his  answer  therein  denying  the  charges  against  him  specified 
in  said  complaint  (or  if  no  answer  is  filed  and  defendant  pleads  not  guilty, 
said  statement  may  be  made).     It  is  thereupon  ordered  that  this  cause  be 

set  for  hearing  on  the day  of ,  at o'clock,  and  a 

jury   being  demanded  by ,   it  is  ordered   that  such   jury   be 

drawn  and  summoned,  as  required  by  law,  to  appear  on  the  day  above  named 

and  serve  as  the  jury  thereon,  and  this  cause  is  continued  until  said 

day  of ,  190... 

§  2123.    Same.    Trial. 

'*0n  the  day  fixed  for  trial,  if  a  jury  is  impaneled,  either 
party,  in  addition  to  the  peremptory  challenges  allowed  by  law 
in  other  cases,  may  object  for  good  cause  to  any  juryman,  sum- 
moned,   and   any   vacancies   occuring   for   any    cause   may   be 

55  §  4671   G.   C.  of  a  jury  refer  to  the  appropriation 

The  section  of  the  General  Code  of    private    property    by    municipal 

referred    to    in    the    above    section,  corporations. 

§  4671   G.  C,  as  to  the  summoning  See  §  1748  et  seq. 


§  2123  MISCELLANEOUS  1758 

filled  by  the  Probate  Judge  from  the  bystanders  until  the  panel 
is  full,  unless  the  party  charged,  or  his  counsel,  demand  a  spe- 
cial venire  to  fill  such  vacancy."  ^'^ 

It  is  tlie  duty  of  the  city  solicitor  to  appear  for  the  prosecu- 
tion, examine  witnesses  designated  by  the  complainant,  and 
such  others  as  he  may  discover,^^  and  the  trial  is  to  proceed  in 
the  same  manner  as  trials  are  usually  conducted.  After  the 
evidence  has  been  introduced,  the  arguments  of  counsel  heard, 
the  charge  of  the  Court  given  as  provided  by  law  applicable  to 
trials  for  criminal  causes,  the  jury  should  retire  and  return 
their  verdict.  The  following  would  serv^e  as  a  ioumal  entry 
made  upon  such  return  : 

(Title.) 

This  day  came  the  parties  again,  by  their  counsel,  and  the  said  C.  D.  being 
represented  in  person,  thereupon  came  the  following  named  persons  (here 
insert  names),  who  were  duly  impaneled  and  sworn,  according  to  law,  and 
the  jury  having  heard  the  evidence  and  arguments  of  counsel  and  charge 
of  the  Court,  retired  to  their  room  for  deliberation,  and  on  due  time  returned 
to  Court  and  delivered  their  verdict  in  words  and  figures  following,  to-wit: 
(Here  copy  verdict.) 

We,  the  jury  duly  impaneled  in  this  case,  do  find  that  the  said  defendant 

is guilty  of  the  matters  charged  against  him  in  said  complaint. 

(Signed  by  each  member  of  jury.)  58 

It  is  therefore  considered,  ordered  and  adjudged  by  the  Court,  that  the 

said  C.   D.   be  and   hereby   is  removed   from   his  office  of of 

,  in corporation. 

And   it   is   further   considered   that   said pay   the   costs   of 

this  proceeding,  taxed  at dollars.      (If  the  defendant  is  not 

found  guilty,  the  Court  should  make  an  order  that  he  be  discharged  and 
the  complainants  pay  the  costs. 

The  following  is  tlie  section  of  the  General  Code  relating 
to  the  removal  of  such  officer.  It  will  be  observed  that  the 
Court  may  apportion  the  costs  as  it  sees  proper.  The  Court 
must  also  transmit  a  certified  copy  of  the  journal  entry  remov- 
ing such  official  to  the  presiding  officer  of  the  Council : 

"If,  on  the  trial,  the  charges  in  the  complaint  are  sustained 
by  the  verdict  of  the  jury,  or  bj^  the  decision  of  the  probate 
judge,  when  there  is  no  jury,  such  judge  shall  enter  the  charges 
and  findings  thereon  upon  the  record  of  the  court,  make  an 
order  removing  such  officer  from  office,  and  forthwith  transmit 
a  certified  copy  thereof  to  the  presiding  officer  of  the  council, 

tse  §  4G72  G.  C.  ^s  it   would  perhaps   be  safer   for 

67  §  4675  G.  C.  all  the  members  of  the  jury  to  sign 


1759  REMOVAL  OP  AUDITOR  §  2124 

whereupon  the  vacancy  shall  be  filled  as  provided  by  law." 

[R.  S.  §1736.]s» 

How  costs  shall  be  paid.  "The  cost  and  expenses  of  such 
trial  shall  be  charged  upon  the  party  filing  the  camplaint,  the 
accused,  or  the  municipal  corporation,  or  apportioned  among 
them,  as  the  judge  may  see  fit  to  direct,  and  collected  as  in  other 
cases.  No  costs  or  expenses  shall  be  charged  to  the  accused,  if 
upon  trial,  he  is  acquitted.  If  proceedings  in  error  are  instituted 
by  the  officer  complained  of,  to  reverse  or  vacate  the  order  of 
the  probate  court,  such  officer  shall  not  exercise  tlie  functions 
of  his  office  until  such  order  is  finally  reversed  or  vacated." 
[R.  S.  §1736.]^''* 

§  2124.  Removal  of  county  auditor.  "  If  a  county  auditor 
refuses  or  neglects  to  make  any  settlement  with  the  county 
treasurer  as  required  by  law,  or  willfully  fails  to  perform  any 
other  duty  required  of  him  by  law,  in  addition  to  criminal 
prosecution  therefor,  he  shall  forfeit  his  office.  Upon  an  affi- 
davit made  before  the  probate  judge  of  the  county  that  the 
auditor  thereof  is  guilty  of  a  violation  of  the  provisions  of  this 
chapter  or  of  any  duty  herein  enjoined,  such  judge  shall  imme- 
diately issue  a  summons  to  the  auditor,  returnable  as  in  other 
civil  suits."     [R.  S.  §  1031.] «« 

§2125.      Examination  of  charges;  removal,  successor.    "If 

satisfied  upon  examination  that  there  are  reasonable  grounds 
for  such  complaint,  the  court  may  report  the  complaint  to  the 
county  commissioners,  who  shall  immediately  suspend  the 
auditor  and  appoint  a  suitable  person  to  perform  the  duties  of 
auditor  until  he  is  restored  to  the  possession  of  his  office,  or  his 
successor  is  duly  elected  and  qualified.  Upon  such  successor 
giving  bond  and  taking  the  oath  of  office  as  required  of  county 
auditors,  he  shall  ])o  authorized  to  perform  all  duties  and  be 
subject  to  all  obligations  and  liabilities  of  county  auditors.  The 
bond  shall  be  filed  and  recorded  as  bonds  of  county  auditors." 
[R.  S.  §1031.]«° 

The  above  section  seems  to  make  the  action  somewhat  of  a 
civil  suit,  yet  it  occurs  to  the  writer  that  the  same  general 
method  of  procedure  might  be  followed  as  in  the  previous  sec- 
tion, except  that  a  summons  should  be  issued,  which  should  be 

this  verdict  as   such   is  the  law   in  ^^*  §  4675  G.  C. 

reference  to   iurics  in  condemnation  «<>  §  257f)  O.  C. 

t       ■     .  ,  •"'    §  2580  G.   C. 

01   private   properly. 

59  §  4074  G.  C. 


§  2126  MISCELLANEOUS  1760 

returned  as  summons  in  other  civil  suits.  While  the  word  sum- 
mons is  used,  from  the  nature  of  the  proceedings,  its  form 
should  be  very  much  similar  to  that  of  the  citation  given  in  the 
last  section.  The  finding  of  the  Court  under  the  above  statute 
will  merely  suspend  the  oflSoer  until  the  next  session  of  the 
grand  jury,  and  if  the  grand  jury  fails  to  find  and  present  an 
indictment,  or  if  upon  trial  of  the  indictment  it  is  found  that 
the  officer  is  not  guilty,  he  shall  be  restored  to  his  office.®^ 

Upon  this  hearing  before  the  Probate  Court,  the  auditor  is 
not  entitled  to  a  jury  trial,  and  if  the  Court  finds  him  guilty  as 
charged  in  the  affidavit,  or  that  there  is  a  strong  probability  of 
the  truth  of  the  affidavit,  then  the  Court  should  make  a  finding, 
which  may  be  as  follows; 

( Title. ) 

This  day  this  matter  came  on  to  be  heard  upon  an  affidavit  filed  in  this 

Court  that ,  auditor  of county,  has  failed  r  ";^1 

neglected,  and  still  fails  and  neglects,  to  deliver  to  the  county  treasurer 
a  true  copy  or  duplicate  of  the  book  containing  the  tax  list  required  to  be 
made  by  him  for  the  year,  which  he  is  required  by  law  to  do;  and  there- 
upon this  cause  was  further  heard,  the  said ,  auditor  being 

present  and  having  answered  to  said  charge,  and  the  Court  having  heard  the 
evidence  and  arguments  of  coimsel,  does  find  that  there  are  reasonable 
ground  for  such  complaint.  (Or  if  there  are  not  reasonable  ground,  so 
state.) 

It  is  ordered  that  a  certified  copy  of  this  entry  be  sent  to  the  county 
commissioners  as  provided  by  law.62 

§  2126.     Amercement. 

It  is  provided  by  law  that  "  sheriffs,  deputy  sheriffs,  coroners 
and  constables  shall,  when  required  by  the  Probate  Judge,  at- 
tend his  Court  and  shall  serve  and  return  all  process  directed 
to  them  by  the  judge."  ^^ 

The  subsequent  section  ^*  further  provides,  "  If  a  sheriff, 
coroner  or  constable  neglects  or  refuses  to  serve  and  return  a 
process  issued  by  a  Probate  Judge,  and  to  him  directed  and 
delivered,  or  neglects  or  refuses  to  pay  over  any  moneys  by  him 

61  §  2581  G.  C.  public    good,    the    county    commis- 

62  There  seems  to  be  no  provision  sioners   should   pny   the   costs, 
for    the    payment    of    costs,   but    as  63  §  1596  G.  C. 
prosecution  is  somewhat  in  the  char-  6*  §  1596  G.  C. 

acter  of   a   public   one   and    for   the 


1761  ATTENDANCE    OP    WITNESS  "  §  2127 

collected  to  the  Probate  Judge,  or  any  other  person,  when  so 
directed  by  such  Probate  Judge,  he  shall  be  subject  to  a  tine  and 
amercement  as  in  the  next  section  provided." 

The  next  section  provides  in  detail  the  method  of  procedure 
that  shall  be  followed.  A  summons  shall  be  issued,  which  must 
be  served  within  two  days,  and  it  must  specify  the  causes,  etc., 
and  if  the  party  is  found  guilty,  the  judge  may  fine  him  not  ex- 
ceeding one  hundred  dollars.  If  the  cause  for  the  amercement 
is  his  refusal  to  pay  over  money  paid  over  to  him,  he  shall  be 
amerced  the  full  amount,  with  the  penalty  of  ten  per  cent.,  and 
the  court  may  enforce  such  a  judgment  in  the  same  manner  as  a 
contempt.''^ 

A  number  of  Ohio  decisions  have  held  that  amercement  pro- 
ceedings are  strictly  construed,  and  that  the  party  is  not  en- 
titled to  a  jury  trial. '^'^ 

This  proceeding  is  usually  brought  into  requisition  where  a 
sheritf  fails  and  neglects  to  turn  over  money,  etc.,  and  as  the 
party  interested  can  get  the  same  relief  by  suit  on  the  bond,  it 
is  not  a  very  common  proceeding  in  the  Common  Pleas  Court, 
even  much  less  in  the  Probate  Court,  where  executions  are  but 
seldomly  issued.  It  will  therefore  not  be  within  the  province 
of  this  work  to  go  into  the  matter  in  detail,  but  reference  will 
be  given  to  standard  works  where  forms  and  suggestions  may 
be  found.^' 

§  2127.    Attendance  of  witness. 

Judges  of  the  Probate  Court  are  under  the  same  obligation 
to  issue  subpoenas  for  witnesses  as  are  clerks  of  Courts  of  Com- 
mon Pleas,'""*  and  a  failure  to  obey  a  subpoena,  or  a  refusal  to  be 
sworn,  may  be  punished  as  a  contempt,'''''  and  if  a  witness  fails 
to  attend  he  may  be  attached.'" 

The  usual  practice,  when  it  is  shown  that  a  witness  has  been 
properly  served,  is  to  make  a  rule  against  such  witness  to  show 
cause  why  he  has  failed  to  obey  the  order  of  the  subpoena.  As 
the  practice  in  the  Probate  Court  in  such  cases  is  similar  to  that 
in  the  Court  of  Common  Pleas,  reference  will  merely  be  given 
to   other  standard  works  containing  forms,  suggestions,   etc.'^ 

65  §  1597  G.  C.  often  work  manifest   injustice,  and 

66  Langdon  vs.  Summers,  10  O.  S.  convert  its  wholesome  provisions,  in 
78.  the  hands  of  crafty   and   unscrupu- 

In    another    case    it    was    said:  lous   parties,    into   mere   snares   for 

"The  statute  was,  no  doubt,  intended  the  unsuspectinfi.  though  honest  and 

to    enforce    and    secure    tlie    proper  faithful  officer.   Conl<Iing  vs.  Parker, 

execution   of   process   hy   the   minis-  10  0.  S.  3.3. 

terial    officer    to    whom    it    may    be  67  Yaple's   Code   Prac.  and   Prcce- 

directed.      But    where    the    require-  dents,  232  to  236. 
ments  of  the  statute  have  been  sub-  Gilmore's  Prob.  Prac,  248  to  252. 

stantially  complied  with,  so  far  as  Nash's  pleading  and  prac,  1135. 

the  interests  of  either  party  can  re-  68  §  11.50I  G.  C. 

quire,  a  construction  closely  adher-  69  §11511   Q    c. 

ing  to   its   letter,  without   reference  70§  11511   Q_   Q. 

to  its  spirit  and   substance,  would  ^i  See  Yaple's  Code  Pleading,  469 


§  2128  *  MISCELLANEOUS  1762 

§  2128.    Justices  of  the  peace. 

Two  matters  in  relation  to  justices  of  the  peace  come  within 
the  jurisdiction  of  the  Probate  Court.  First,  the  court  has 
power  to  increase  the  number  in  any  township  upon  a  proper 
application  being  made.'-  Proceedings  in  such  a  case  should 
probably  be  had  upon  the  application  of  a  reasonable  number 
of  citizens  of  such  township  setting  forth  the  necessity  of  the 
desired  increase.  If  the  court  finds  in  favor  of  the  increase, 
then  the  trustees  must  give  notice  of  the  election.'^ 

The  second  matter  that  may  come  before  the  Probate  Court 
is  where  there  is  a  contest  of  election  by  various  persons,  who 
have  been  voted  for,  for  that  office.'*  The  statute  distinctly 
points  out  the  method  of  procedure  that  shall  be  followed.  The 
contestant  must,  within  ten  days  after  the  election,  file  a  formal 
application  or  notification  with  the  probate  judge  that  he  in- 
tends to  contest  the  same,  and  the  judge  shall  notify  the  person 
whose  election  is  contested  and  cite  him  to  appear  on  a  day  not 
more  tlian  fifteen  days  distant.^^  The  judge  on  the  same  day 
that  he  issues  a  notice  of  contest  must  also^  select  three  persons 
not  resident  of  the  township,  who  shall  be  a  jury  to  try  the  mat- 
ter contested.^®  The  judge  may  subpoena  witnesses  for  either 
party.^^ 

The  jui'y  so  selected  shall  be  sworn,  and  the  trial  should  be 
had  as  adversary  proceedings  are  generally  conducted,  and  the 
jury  in  returning  their  verdict  should  all  sign  the  same.^*  But 
no  election  should  be  set  aside  merely  because  of  illegal  votes 
being  cast  at  such  election.^® 

If  any  person  selected  as  a  juror  fails  to  attend,  the  judge 
shall  appoint  some  other  person,  and  if  the  judge  fails  to  attend 
the  trial,  a  justice  of  the  peace  may  perform  the  duties.*"  If 
the  contestor  fails,  he  must  pay  the  costs,  etc.*^ 

to  476,  complete  series  of  forms  ap-  "3  Form  of  notice  and  journal  en- 

plicable    to    sucli    cases.      Gilmore's  try  in  Whittaker's  Probate  Code. 

Prob.  Prac,  274  to  281;   Kinl^ead's  74  §  572  et  scq. 

Prac,    S§  455   to  467.  '5  §  5162  G.  C. 

"The    fees    of    witnesses,    jurors.  Pee  form  of  application  to  be  filed 
sheriffs,  coroners,  and  constables,  for  with    the    probate    judge    in    Whit- 
all  services  rendered  in  the  Probate  taker's  Probate  Code,  573. 
Court,   or  by   order  of  the  Probate  ^6  §  5163  G.  C. 
Judge,  shall  be  the  same  as  is  pro-  '•''  §  5164  G.  C. 
vided   by   law,   for   like   services   in  "S  §  5165  G.  C. 
the  Court  of  Common  Pleas."     [51  79§5166   G.   C 
vs.  167,  §  57;  S.  &  C.  1217.]     §  6405  ««  §  5167  G.  C. 
E.  S.  ^M  5168  G.  C. 

72  §  568  E.  S.  -^  complete  set  of  forms  is  given 

in  Gilmore'    Probate  Practice,  14  to 
•  18. 


1763  CHANGE  OP  NAME  §  2128a 

§  2128a.    Miscellaneous. 

Other  matters  that  come  within  the  jurisdiction  of  the  Pro- 
bate Court,  but  the  treatment  of  which  space  will  not  permit 
in  these  volumes  is  that  of  assisting  in  the  appointment  of  county 
commissioners  to  fill  vacancies,^^  committing  boys  to  industrial 
schools,°^  and  girls  to  industrial  home/°°  appointing  persons  to 
examine  county  treasury/"^  to  have  jurisdiction  in  cases  of  con- 
test for  county  seats/°^  to  take  charge  of  property  found  on  dead 
person/"*  to  compel  banks  to  make  return/"^  and  assist  county 
boards  of  equalization/""  to  settle  controversy  between  railroads 
and  telegraph  companies  as  to  the  location  of  telegraph  lines/°^ 
and  to  have  annual  report  made  by  banks  of  unknown  depositors. 

§  2129.     Change  of  name,  definition,  etc. 

At  common  law,  a  man  might  lawfully  change  his  name  or 
by  general  usage,  or  habit,  acquire  a  name  other  than  that 
which  was  originally  given  to  him,  and  tliis  might  be  done 
without  the  consent  of  either  a  sovereign,  any  court  or  act  of 
Parliament;  and  this  common  law  rule  exists  in  the  United 
States,  unless  changed  by  statute.^ ^° 

A  name  applied  to  a  person  has  been  judicially  defined  as 

"A  discriminative  appellation  or  designation  of  an  indi- 
vidual."iii 

Or,  as  elsewhere  stated  it  is. 

See    Gilinore's    Probate    Practice,  i"*  §  2804  G.  C. 

pp.  41  to  48,   for  forms,  etc.  los  §  5413  Q.  c. 

97  §7811  to  7815  G.  C.  los  §§  55S0-57rj  G.  C. 

98  §§2397  to  3001  G.  C.  10s  §  9175  G.  C. 

99  §  2083  G.  C.  no  21st  Amer.  &  Eng.  Ency.,  2nd 

100  §2103  G.  C.  jrj.  311,  and  cases  therein  cited. 

101  §§  2690  to  2708  G.  C.  ,     ,„  p       1,  ,.3    y  ,,^  gtli  Cow. 
103§57.'^4  G.  C.                                        (X.  Y.);ilG. 


§  2129  MISCELLANEOUS  1764 

"One  or  more  words  used  to  distinguish  a  particular  in- 
dividual."ii2 

There  is  no  statute  iu  our  state  jirohibiting  a  man  from  tak- 
ing to  himself  Avhatever  name  he  may  please  and  therefore,  by 
virtue  of  the  common  law,  Avhich  may  still  be  said  to  be  in  ex- 
istence here,  he  may  assume  and  take  to  himself  whatever 
name  he  may  choose.^^^* 

Both  the  Christian  and  surnames  are  proper  names.  The 
former  is  now  usually  besto^ved  by  the  parents,^ ^^  and  tlie  lat- 
ter is  that  name  which  is  added  to  the  Christian  name  and 
may  be  said  to  be  the  family  name.-'^^ 

The  father  it  is  said,  to  the  exclusion  of  its  mother,  has  the 
right  to  bestow  the  name  on  the  child.  This  rests  upon  the  fact 
that  he  is  the  natural  guardian  of  such  child.  If  the  father 
were  dead,  the  mother  would  then  have  the  right,  or  if  both 
parents  were  deceased,  a  guardian. 

As  before  stated,  the  party  might  assume  a  certain  name, 
in  which  he  could  make  legal  contracts  and  sue  and  be  sued,  or 
might  acquire  such  name  by  reputation.  Our  Legislature  has 
petition,  the  cause  for  which  the  change  of  name  is  sought, 

112  Donaldson  vs.  Donaldson,  31st  name,  is  not  derogatory  to  common 

Bull.  102.  law. 

11-*  New    York,    Sept.    26,    1910.  "At    common    law    a    man    could 

Justice  Smith,  in  the  City  Court,  in  change  his  name,  without  interven- 

handing  dowTi  a  decision,  holds  that  tion    of    either    the    sovereign,    the 

a    person   might   assume   any   name  Courts,  or  parliament,  and  the  com- 

other  than  his  o^\ti,   and  that  sujli  mon  law,  unless  changed  by  statute, 

person    might    sue    under    that    as-  of    course,    obtains    in    the    United 

sumed  name  legally;   also  that  such  Statts. 

assumed  name  was  to  all  intents  and  "A  man  may  lawfully  change  his 

purposes  as  legally  that  person's  as  name   without   resort   to   legal    pro- 

thougli    he    or    she    had    been    born  ceedings,    and    for    all    purposes    the 

with  it.  name   thus   assumed  will   constitute 

The  decision  was  rendered  in  sus-  his  legal  name,  just  as  much  as  if 

taining    a    demurrer    in    a    suit    for  he   had   borne   it   from  birth." 

breach   of   promise.  n^  Usually    at    baptism,    and    is 

Justice    Smith,   in    sustaining  the  therfore  so  called, 

decision,   said:  m  See    article    in   22d    Cen.    Law 

"The     code     of     civil     procedure.  Journal,  220. 
which     authorizes     the     change     of 


i 


1765 


CHANGE  OF   NAME 


§2130 


provided,  that  a  party  miaj  change  his  name  by  certain  court 
procedure.  This  legislative  provision  is,  no  doubt,  made  for 
the  purpose  of  preventing  fraud  and  providing  a  means  for 
identification.^  ^^ 

Formerly  a  petition  for  a  change  of  name  could  only  be 
filed  in  the  Common  Pleas  Court.^^^ 

But  more  recently  it  was  provided,  that  application  might 
be  made  in  probate  court  or  Court  of  Common  Pleas. 

It  has,  likewise,  imtil  recent  years,  been  a  frequent  practice 
for  the  legislature  to  pass  an  act,  changing  a  person's  name. 

The  statute  relating  thereto  is  as  follows: 

§  2130.  Froceeding  to  change  name  of  person.  ' '  A  person 
desiring  to  change  his  name  may  file  a  petition  in  the  common 
pleas,  or  probate  court  of  the  county  in  which  he  resides,  set- 
ting forth  that  he  has  been  a  bona  fide  resident  of  such  county 


115  Under  sections  5852  and  5853, 
a  person  desiring  to  change  his 
name  may  prove  in  the  common 
pleas  of  the  county  of  his  residence 
that  he  has  been  a  bona  fide  resi- 
dent for  one  year  prior  to  his  appli- 
cation, the  cause  for  which  tlie 
change  is  sought  and  new  name  de- 
sired. He  shall  publish  in  a  news- 
paper for  thirty  days,  and  if  the 
court  is  satisfied  that  the  ground 
for  the  change  is  reasonable,  may 
order  it  changed.  It  might  seem 
that  one  couJd  not  change  one's 
name  without  these  proceedings,  or 
by  act  of  legislature,  but  the  re- 
quiiement  of  the  statute  for  pub- 
licity by  notice,  and  the  fact  that 
the  proceedings  are  had  in  a  court 
of  record,  show  clearly  that  its  pur- 
pose is  to  protect  the  public  from 
any  injury  which  miglit  arise  from 
a  capricious  or  designing  change  an 
the  name  by  which  a  man  is  known, 
and  under  which  he  does  business, 
into  some  other  by  which  he  would 


be  entirely  unknown  until  long  as- 
sociation had  made  it  a  part  of  his 
identity.  Where  one  has  always 
been  known  by  a  certaiin  name,  that 
is  his  name  so  far  as  the  man  and 
his  appellation  are  associated  in 
people's  minds.  A  sudden  change 
from  that  name  to  one  which  is  in 
fact  a  combination  of  his  real 
Christian  name  and  the  patronymic 
borne  by  his  father  and  ancestors, 
would  be  as  confusing  to  the  com- 
munity as  the  adoption  by  him  of 
any  other  than  the  name  he  is  en- 
titled to  by  birth  and  the  caprice 
of  his  parents.  The  plaintiff  has 
been  known  from  boyhood  by  the 
name  set  forth  in  the  caption,  it 
is  sufficient.  England  vs.  New 
York  Pub.  Co.,  8  Daly,  375;  Mat- 
ter of  Snook,  2  Hilt  (N.  Y.),  566; 
Doe  vs.  Yates,  5  Barn  and  Aid.  544. 

Donaldson  vs.  Donaldson,  3l8t 
Bull.   102. 

118  S.  &  C.   1138. 


§  2130  MISCELLANEOUS  1766 

for  at  least  one  year  prior  to  the  filing  of  the  petition,  the  cause 
for  which  the  change  of  name  is  sought,  and  the  new  name  asked 
for.  bpon  being  bausUeu,  oy  pruot  m  open  eourc,  of  the.  truth 
of  the  facts  set  forth  in  the  petition,  that  there  exists  reasonable 
and  proper  cause  for  changing  the  name  of  the  petitioner,  and 
that  notice  of  the  intended  application  has  been  given  by  one 
publicatioa  in  a  newspaper  of  general  circulation  in  such  county 
at  least  thirty  days  prior  to  the  filing  of  the  petition,  the  court 
may  order  such  change  of  name.  The  probate  judge  is  authorized 
to  charge  for  his  services  in  the  proceedings,  the  sum  of  three 
dollars,  and  no  more."     [R.  S.  §  5853.]  "^ 


PROCEDURE-APPLICATION,  NOTICE,  ETC. 

For  the  reason  that  a  person  might  change  his  name  with- 
out the  approbation  of  any  court,  sovereign,  or  act  of  Parlia- 
ment, it  is  probable  that  a,  strict  compliance  with  the  above 
statute  would  not  be  essential,  but  the  statute  ought  to  be  fol- 
lowed if  the  full  benefit  is  to  be  derived  therefrom.  A  peti- 
tion may  be  in  the  following  form: 

Probate  Court,  Clark  County,  0. 
In  the  matter  of  Samuel  Smith.  Change  of  Name. 

Petition. 

The  undersigned  respectfully  represents  that  he  is  a  bona  fide  resi- 
dent of  the  County  of  Clark,  now  and  has  been  during  one  year  prior 
to  the  time  of  the  filing  of  this  petition;  that  he  is  now  Icnown  and 
has  the  name  of  Samuel  Smith;  that  when  he  was  about  five  years 
of  age,  he  was  taken  to  raise  by  a  family,  who  changed  his  name  to 
Johnson,  and  thereafter  he  was  known  by  the  name  of  Samuel  Johnson 
(or  allege  any  other  cause  which  mciy  exist  for  the  desired  change  of  name.) 

Wherefore  he  asks  that  the  court  may  order  that  his  said  name  be 
changed  from  Samuel  Smith  to  Samuel  Johnson,  as  in  such  case  pro- 
vided by  the  Revised  Statutes  of  Ohio. 


State  of  Ohio,    Clark  County,   ss. 

being    duly    sworn    according    to    law    says 

that   the  matter  and  facts  stated   in  his   foregoing  petition   are  true,    as 
he   verily    believes. 


Sworn  to  and  subscribed  before  me  and  in  my  presence  this 
dav   of    ,    19 


117  §  12209   G.   C 


1767  CHANGE   OP  NAME  §  2130 

FILING  AND  ENTRY. 

The  statute  seems  to  contennplate  that  the  notice  should  be 
given  before  tlie  petition  is  filed,  but  it  tends  more  to  regu- 
larity to  have  the  petition  first  filed  and  then  it  would  be 
proper  when  the  petition  is  filed,  for  the  court  to  make  a  jour- 
nal entry,  which  might  be  in  the  following  form : 

(Title.) 

This  day  came  Samuel  Smith,  and  filed  in  this  Court  his  petition, 
asking  for  an  order  to  change  liis  name  from  Samuel  Smith  to  Samuel 
Johnson,    and    it    is    ordered    that    said    petition    be    fo»  hearing    on    the 

day   of    (which   must  be  at  such  a  length  of  time 

that  notice  of  thirty  days  may  be  given)  and  it  is  further  ordered  that 
notice  of  the  hearing  of  this  petition  and  intended  application  be  given 
by  publication  in  a  newspaper  of  general  circulation  in  this  county, 
at  least  thirty  days  prior   to  the  time  of  said  hearing. 

NOTICE. 

The  following  may  serve  as  a  form  of  notice: 

{To   ivhom  it   may   concern.) 

Samuel  Smith,  of  Clark  County,  Ohio,  has  filed  his  petition  in  the 
Probate  Court  of  said  County,  praying  for  an  order  of  said  court,  au- 
thorizing the  change  of  his  name  from  Samuel  Smith  to  Samuel  John- 
son, and  said  application  and  petition  will  be  for  hearing  on  the 

day  of 

If  it  is  intended  to  give  the  notice  first  and  then  file  the  pe- 
tition, in  strict  conformity  of  statute,  the  following  would  be 
a  proper  notice : 

(To  whom   it   may   concern.) 
Samuel   Smith,    of  Clark   County,    Ohio,    will  on   the    day  of 

file    his    petition    in    the    Probate    Court    of    said    County, 

nuking  for  an  order  changing  his  name  from  that  of  Samuel  Smith  fo 
that  of  Samuel  Johnson  for  the  reason  that  [here  state  reason]  and  the 
same  will  be  for  hearing  on  that  day  or  such  otiior  time  as  the  court  may 

HEARING,  ENTRY,  ETC. 

At  the  time  set  for  hearing,  or  where  notice  has  been 
given  prior  to  the  filing  of  the  pe'Lilion,  at  the  filing  of  the  pe- 
tition, the  court  should  take  up  the  matter,  and  if  it  is  satis- 
fied by  proof  of  the  facts  set  forth  m  the  petition  and  that 


§  2131  MISCELLANEOUS  1768 

there  exists  reasonable  and  proper  cause  for  changing  the 
name  and  that  tlie  notice  required  by  the  statute  has  been 
given,  then  it  should  order  such  change  of  name.  The  entry 
might  be  in  the  following  form: 

(Title.  ) 

This  day  this  matter  came  on  to  be  heard  upon  the  petition  filed 
herein,  of  Samuel  Smith,  praying  for  a  change  of  his  name  to  that  of 
Samuel  Johnson,    and  same  was  heard  upon  the  testimony  and  exhibits. 

Wherefore  the  court  finds  that  notice  of  the  intended  application  has 
been  given,  as  required  by  statute,  and  upon  proof  in  open  court  finds 
that  the  facts  set  forth  in  the  petition  are  true  and  there  exists  reason- 
able and   proper .<-ause   for   the   change   of   name   of  the   petitioner. 

Wherefore  it  is  ordered  that  the  name  of  Samuesl  Smith  be  and  tlie 
same  is  hereby  changed  to  Samuel  .Johnson. 

§  2131.      Re-issuing  of  certificates  of  stock  lost  or  destroyed. 

"In  case  a  certificate  of  stock  in  a  corporation  is  lost  or  de- 
stroyed, the  owner  thereof  may  file  his  i)etition  in  the  probate 
court  of  the  county  where  the  principal  business  office  of  such 
corporation  is  located  in  this  state,  setting  forth  a  pertinent 
description  of  the  certificate,  and  a  full  statement  of  the  facts 
relating  to  its  destruction  or  loss ;  that  he  is  the  owner  of  such 
certificate,  and  was  at  the  time  of  its  loss  or  destruction ;  that 
he  had  not  assigned,  transferred  or  disposed  of  it;  and  that  it 
was  not  pledged  to  anyone,  or  if  so,  stating  to  Avhom,  with  the 
facts  relating  thereto."     [R.  S.  §  3254-1 ;  88  v.  336,  §  1.]'^^ 

§  2132.  Parties  and  notice.  ' '  Such  petitioner  shall  make 
the  corporation  and  any  pledgee  defendants  to  such  proceeding, 
and  serve  a  certified  copy  of  his  petition  on  some  chief  officer  of 
the  corporation,  and  such  pledgee,  on  Avhich  copies  the  probate 
judge  over  his  signature  shall  state  when  the  petition  will  be 
heard.  Such  copies  shall  be  so  served  not  less  than  twenty  days 
before  the  hearing.  In  a  newspaper  pul)lished  and  of  general 
circulation  in  the  coimty  where  the  proceeding  is  pending,  and 
also  in  the  county  where  he  resides,  tlie  petitioner  sliall  publish 
a  notice  containing  the  substance  and  prayer  of  his  petition,  for 
three  consecutive  weeks  immediately  l)efore  the  day  of  hear- 
ing, and  stating  when  and  where  it  will  be  lieard. "  [R.  S.  §  3254- 
1;  88  V.  336,  §1.]^^«* 

About  the  only  comments  tliat  are  necessary  under  the  above 
section,  is  that  the  statute  should  be  strictly  followed.  This  is 
necessary   for   several    reasons,   the   principal    one   of   which    is 

i"§8677  G.  C.  ''  vs.  Water  Works,  22  C.   C.    (N.S.) 

118*  §  8678  G.  C.  529;    Bank    vs.    Voiglit,    13    C.    C. 

See  When  court  will  not  issue  an  (X.S.)  267. 
order  for  reissue  of  stock,  etc.    Bank 


1769  RE-ISSUING    OF    CERTIFICATES  §  2132 

that  the  defendant  corporation  may  be  protected  in  case  it 
should  afterwards  develop  that  the  certificate  was  not,  in  fact, 
lost  or  destroyed.     The  essentials  of  the  petition  seem  to  he, 

1st.  That  the  person  filing  the  application  is  the  owner 
of  the  stock. 

2d.  That  the  petition  be  filed  in  the  Probate  Court  of  the 
county  in  which  the  corporation  has  its  principal  office. 

3d.     That  a  pertinent  description  of  the  certificate  be  given. 

4th.  A  full  statement  of  the  facts,  relating  to  such  destruc- 
tion or  loss. 

5th.  If  it  has  not  been  assigned,  transferred  or  disposed 
of,  and  if  it  has  been  assigned,  transferred  or  disposed  of,  that 
the  person  to  whom  it  was  pledged  and  the  facts  relating  there- 
to should  be  stated,  and  the  petition  may  be  in  the  following 

form: 

Probate   Court,    Clark    County,    0. 
John   Jones,    Plaintiff, 

vs. 
The   Springfield  Building   and  Loan  Association,    Defendant. 

Petition. 

Plaintiff  alleges  that  the  defendant,  The  Springfield  Building  and  Loan 
Association,    is  a  corporation,    whose  principal   business   office  is   located 

in  the  County  of  Clark  and  State  of  Ohio ;   that  on  the   day  of 

,    the  said   defendant   corporation   issued   and   delivered   to 

him  a  certain  certificate  of  its  capital   stock,    which   said  certificate  was 

numbered    (and   such   other   facts   in   relation   to   the   certificate 

as  will  make  a  complete  and  pertinent  description  of  the  same)  ;  that 
on  the  1st  day  of  March,  1903,  the  plaintiff's  dwelling  house  and  all 
its  contents  were  destroyed  by  fire,  and  that  said  certificate  of  stock 
was  among  his  papers,  which  were  destroyed  in  said  fire  (or  allege 
fully  any  other  manner  in  which  the  certificate  might  have  become  lost 
or  destroyed)  ;  that  he  had  not  assigned,  transferred  or  disposed  of  the 
same,  and  at  the  time  of  its  destruction,  he  was  the  owner  thereof, 
and  that  the  same  was  not  pledged  to  any  one  (or  if  it  had  been  pledged 
to  any  one,  set  forth  the  name  of  such  person  and  the  facts  relating 
thereto   and   the   conditions   upon   which   the   pledge   has   been  made.) 

Wherefore  plaintiff  asks  that  such  proceedings  may  be  had  for  the 
re-issue  of  said  stock,  as  is  provided  by  sections  3254-1  and  3254-2  Re- 
vised Statutes  of  Ohio,  and  that  the  defendant  corporation.  The  Spring- 
field Building  and  Loan  Association  may  be  ordered  to  issue  and  deliver 
a  new  certificate  of  stock  to  the  plaintiff  petitioner,  for  the  original 
amount  and  of  the  same  amount  of  stock  as  the  one  that  was  destroyed, 
as  set  forth  in  the  petition  (if  the  same  was  pledged  to  any  one,  such 
facts  should  be  here  stated),  and  that  he  may  have  such  other  and 
proper   relief    as    provided    by    law. 


§  2132  MISCELLANEOUS  1770 


State  of  Ohio,    Clark   County,   ss. 

•Fohn  Jones,  being  duly  sworn,  says  he  is  the  plaintiff  above  named, 
and  that  the  matter  and  facts  stated  in  his  foregoing  petition  are  true, 
as   he   verily   believes. 


Sworn  to  and  subscribed  in  my  presence  this  day  of , 

190 

Upon  the  filing  of  this  petition,  the  court  should  make  a 
Journal  entry,  of  which  the  following  might  serve  as  a  form: 

(Title.  ) 

This  day  came  John  Jones,  and  filed  herein  his  petition  against  The 
Springfield  Building  and  Loan  Association,  for  an  order  of  this  court 
to  direct  and  require  the  said  defendant  corporation  to  issue  and  deliver 
to  him  a  new  certificate  of  stock,  alleged  in  said  petition  to  Ibe  de- 
stroyed . 

\^Tierefore  it  is  ordered  that  said  cause  be  set  for  hearing  on  the 
day  of  (this  should  be  far  enough  ahead  to  al- 
low the  service  of  notice,  etc.,  probably  thirty  days),  and  it  is  further 
ordered  that  the  plaintiff  shall  serve  a  certified  copy  of  said  petition  on 
some  chief  officer  of  said  corporation  (and  if  there  is  any  pledgee,  also 
upon  such  person)  stating  the  time  when  same  will  be  heard  in  this  court, 
Avhich  copy  shall  be  served  not  less  than  twenty  days  before  such  hear- 
ing, and  he  shall  also  publish  for  three  consecutive  weeks  in  some  news- 
paper published  and  of  general  circulation  in  this  county  (and  if  plain- 
tiff resides  in  another  county,  the  notice  must  also  be  published  therein) 
a  notice  containing  the  substan^'e  of  the  prayer  of  the  petition  and  the 
date  of  hearing  same. 

NOTICE. 

The  statute  is  specific  in  the  kind  of  notice  that  shall  be 
given  and  also  in  its  manner  of  service.  If  possible,  this  ser- 
vice should  be  made  personally  upon  the  chief  ofiicer,  having 
charge  of  the  business  of  the  corporation.  In  addition  if  the 
stock  has  been  pledged,  a  like  service  must  be  made  upon  the 
pledgee,  also  there  must  be  a  notice  published  in  a  newspaper 
in  the  county,  in  which  the  action  is  brought,  and  if  the  plain- 
tiff resides  in  another  county,  a  notice  must  also  be  published 
in  such  county.  After  the  defendant  has  given  notice,  as  re- 
quired by  statute,  he  should  make  an  affidavit  of  that  fact, 
likewise  the  newspaper  owner  should  file  proof  of  service.  No- 
tice in  a  newspaper  should  be  for  three  full  weeks,  that  is, 


1771  EE-ISSUING    OP    CERTIFICATES  §  2133 

the  order  should  not  be  made  until  at  least  twenty-two  days 
has  expired  after  the  first  publication;  likewise  the  order  can 
ftot  be  made  until  at  least  twenty  days  has  expired  from  the 
time  that  the  notice  has  been  given  to  the  defendant.  The 
follomng  may  serve  as  a  form  of  notice: 

To  The  Springfield  Building  &  Loan  Association: 

You  ave  hereby  riotilied,    that  on   the    day  of    , 

John  Joues  filed  his  certain  petition  in  this  court,  which  is  in  the  words 
and  figures  as  follows,  to  wit:    (here  insert     copy     of     petition     in     full 

as   filed   in   court)  .      Said   petition   will    be   heard   on   the    day 

of   ,    at    ....   a.    m. ,   at  the  office  of  the  Probate  Judge,   in 

the  County  of  Clark,   State  of  Ohio.  A.   B.,   Probate  Judge. 

§2133.  Finding  and  order  of  the  court.  "If,  upon  the 
heanng,  the  probate  court  finds  that  the  foregoing  provisions 
have  been  complied  with,  that  such  certificate  was  lost  or  de- 
stroyed, and  that  at  tliat  time  the  petitioner  was  and  is  its  owner, 
an  order  shall  be  made  that  such  corporation  issue  and  deliver  a 
new  certificate  to  him  for  the  original  amount  and  kind  of 
stock,  unless  the  certificate  was  pledged  to  some  one  at  the  time 
of  its  loss  or  destruction,  and  the  pledgee  yet  has  a  claim  against 
it,  in  whicli  case  the  order  shall  direct  that  such  new  certificate 
be  delivered  to  the  pledgee  on  such  terms  as  the  court  directs. 
The  corporation  shall  comply  '\A'ith  such  orders,  and  it  shall  in 
no  wise  be  prejudiced  thereby,  or  by  paying  dividends  on  such 
new  certificate,  so  long  as  it  is  not  made  known  to  it  that  the 
original  certifinnte  is  in  existence  and  owned  by  a  person  other 
than  the  petitioner."     [R.  S.  §  3254-2;  88  v.  337,  §  2.]"^ 

§  2134.    Rights  and  liabilities  under  new  certificate.     "All 

rights  and  liabilities  attaching  to  tiie  original  certificate  shall 
attach  to  such  re-issued  certificate,  while  in  force.  Upon  the 
production  of  the  original  certificate  to  such  corporation  by  the 
owner  or  pledgee,  the  re-issued  certificate  shall  be  cancelled,  sur- 
rendered and  void."     [R.  S.  §  3254-2;  88  v.  337  §  2.]"''* 

§  2135.  Proceedings  may  be  had  by  administrators  or 
executors.  "Executors  and  administrators,  on  behalf  of 
estates  of  deceased  owner.s  of  such  lost  or  destroyed  certificates 
of  stock,  may  proceed  under  the  next  three  preceding  sections, 
and  have  all  the  rights  and  benefits  thereof."  [R.  S.  §  3254-2; 
88  v.  337,  §2.j''n 

110  §  8679  G.  C.  "Of  §  8(>S1  G.  C. 

110*  §  8680  G.  C. 


§  2135  MISCELLANEOUS  1772 

On  the  day  set  for  the  hearing,  the  Judge  should  require 
that  proof  of  service  of  notice  be  filed  in  his  court  and  should 
ascertain  that  service  has  been  made,  as  required  by  sta+utc,' 
and  then  he  should  hear  evidence  as  to  the  fact  of  the  loss  or 
destruction  of  the  certificate  of  stock,  and  after  being  satis- 
fied that  the  allegations  of  the  petition  are  true,  and  that  the 
stock  ought  to  be  re-issued,  should  make  his  order,  which  may 
be    in    the    following    form: 

(Title.) 

Entry. 
This  day  this  cause  came  on  to  be  lieard  and  was  submitted  to  the 
oourt  upon  the  testimony  of  witnesses  and  exhibits  in  the  ease.  Where- 
upon, after  due  consideration,  the  court  finds  that  the  allegations  of 
the  petition  are  true,  and  that  notice  of  the  filing  and  hearing  thereof 
has  been  given,    as  provided  by   statute;    that  the  plaintiflF  is  the  owTier 

of    stock    Number    (here    describe    the    same   as    alleged    in    the 

petition)  and  that  said  certificate  of  stock  is  destroyed  (or  lost,  as 
the  case  may  be).  (If  it  was  held  by  a  pledgee,  make  the  entry  to 
conform  to  the  facts)  .  It  is  therefore  ordered,  that  the  defendant,  The 
Springfield  Building  and  Loan  Association,  shall  issue  and  deliver  a 
new  certificate  of  stock,  to  said  plaintifl",  for  the  original  amount  and 
of  the  same  amount  and  description  as  the  same  was,  at  the  time  of 
its  destruction,  and  upon  said  defendant's  compliance  thereof,  it  shall 
not  be  liable  to  any  other  holder  of  such  original  certificate,  until  it 
shall  have  full  notice  thereof,  but  upon  the  production  of  the  original 
certificate  to  such  corporation  by  the  owner  or  pledgee,  such  re-issued 
certificate  shall  be  cancelled  and  surrendered  and  that  the  cost  of  this 
application   be  taxed  against  the  plaintiflf. 


1773  INTRODUCTORY  §  2136 


CHAPTER  CVIII. 
DOWER,  ANNUITY,  AND  PRESENT  VALUE  TABLES. 

§  2136.  Introductory.  §  2141.  Calculation     of     contingent 

§  2137.  Mortality  tables.  dower. 

§  2138.  Calculation  for  consummate  §  2142.  Contingent  dower  table. 

dower,  and  life  annuity.  §  2143.  Expectation  of  life  table. 

§  2139.  Dower  and  life  annuity  table  §  2144.  Table  for  ascertaining  pres- 

based     upon     tbe     Carlisle  ent  value  of  certain  annuity. 

table.  §  2145.  Table  for  ascertaining  pres- 
§  2140.  Dower  and  life  annuity  table  ent  value  of  a  sum  certain 

based  upon  American  table.  due  and  payable  at  end  of 

a  stated  number  of  years. 

§  2136.     Introductory. 

It  has  long  been  a  settled  practice  in  this  State,  in  ascertain- 
ing the  present  value  of  dower  in  real  estate  or  of  an  annuity, 
payable  either  at  a  stated  annual  period  or  at  some  future  date, 
to  use  tables  based  upon  the  expectation  of  life.  In  one  Ohio 
case  ^  it  was  said :  "  Where  lands  are  sold  by  an  administrator 
for  the  payment  of  debts,  and  a  widow  who  is  entitled  to  dower 
therein  consents  to  such  sale,  free  from  her  right  to  dower,  it  is 
the  familiar  practice  to  order  the  sale  to  be  made  and  to  make 
compensation  to  the  widow  out  of  the  proceeds  of  such  sale. 
*  *  *  *  In  such  a  case,  the  exact  value  of  the  widow's 
dower  cannot  be  kno^vn  with  absolute  certainty.  It  will  depend 
largely  upon  the  length  of  her  life,  which  can  not  be  foreseen  by 
the  Court.  Yet  its  present  value  can  be  approximately  ascer- 
tained. Tables  have  been  constructed,  based  on  wide  and  long 
observation,  from  which,  the  age  of  the  widow  being  known,  the 
probable  duration  of  her  life,  and  the  present  value  of  her  dower 
right  may  be  ascertained  with  reasonable  certainty." 

1  Black  vs.  Kuhlman,  30  O.  S.  See  §  20G!)  for  American  Experi- 
199,  ence  table. 


§  2137  DOWER   AND   ANNUITY    TABLES  1774 

These  tables  have  also  been  used  for  fixing  a  measure  of  dam- 
ages in  an  action  brought  for  the  wrongful  death  of  an  indi- 
vidual." It  will  be  the  purpose  of  this  chapter  to  give  several 
tables  Avhich  M'ill  aid  in  ascertaining  the  present  value  of  con- 
summate dower,  contingent  dower,  as  well  as  the  present  value 
of  life,  and  certain  annuities.^ 

§  2137.    Mortality  tables". 

In  the  ascertainment  of  the  present  values  of  dower,  etc., 
tables  are  used  based  upon  the  expectation  of  life.  These  are 
called  mortality  tables.  The  Carlisle,  based  upon,  statistics 
kept  in  Carlisle,  England,  is  the  one  which  has  been  most  fre- 
quently used  in  the  various  Courts  of  the  United  States.* 

Another  table  that  was  formerly  somewhat  used  was  known 
as  the  ^Northampton,  and  based  on  statistics,  in  the  town  of 
Northampton,  England.  This  table  shows  a  higher  rate  of 
mortality  and  is  not  now  very  frequently  used.  Another  Eng>- 
lish  table  is  known  as  the  Farr  table,  and  was  prepared  by 
Dr.  Farr  of  England,  and  was  based  upon  the  census  return  of 
England  and  Wales.  The  combined  experience,  or  actuaries, 
or  seventeen  offices'  experience  table  of  mortality  was  prepared 
by  a  committee  of  eminent  actuaries  on  data  afforded  by  the 
combined  experience  of  seventeen  of  the  principal  life  insur- 
ance offices  in  England  and  Scotland. 

2  Wasner  vs.  Rawlins,  64  O.  S.  ary  annuity  is  one  that  does  not  be- 
585;  reported  in  full,  46  Bull.  147.  gin   till    after   a   certain    period   or 

3  An  annuity  is  defined  to  be  a  number  of  years,  or  till  the  decease 
periodical  payment  of  money,  of  a  person,  or  some  future  event, 
amounting  to  a  fixed  sum  in  each  An  annuity  in  possession  is  one 
year,  the  moneys  paid  being  either  which  has  already  begun.  Cent. 
a  gift  or  in  consideration  of  a  gross  Die. 

sum   received.     When   the   payment  See   §  692,  Legacies  in  nature  of 

is    continued    for    a    certain    period  incomes  and  annuities. 

annually,   as   10,   20,   or   100  years.  See   §    945   as   to   dower  assigned 

it     is     called     a     certain     annuity.  to     two     different     persons,     tables 

When  it  continues  for  an  uncertain  showing     chance     of     survivorship 

period  a  contingent  annuity.     When  may  be  used. 

the  period  is  determined  by  the  du-  4  See   Citation   of  Cases,   Giauque 

ration  of  one  or  more  lines,  a   life  &    McCIure's    Present   value    tables, 

annuiti/.     A  deferred  or  reversion-  186. 


1775 


VARIOUS   TABLES 


§2137 


Tlie  American  experience  table  of  mortality  was  constructed 
from  statistics  based  chiefly  on  the  experience  of  the  Mutual 
Life  Insurance  Company  of  New  York  to  ascertain  the  laws  of 
mortality  as  applicable  to  healthy  lives  in  this  comitry. 

The  Thirty  Offices'  experience  table  of  mortality  is  based  on 
the  experience  of  thirty  of  the  leading  life  insurance  companies 
of  the  United  States.^  Some  of  tliese  various  tables  have  been 
designated  by  statute  to  be  used  in  different  States.  So  far  as 
jal'culation  of  dower  or  annuity  is  concerned,  no  statute  provi- 
sion exists  in  this  State.  The  Legislature  has  provided,*'  in 
reference  to  life  insurance  companies,  that  the  combined  ex- 
perience table,  or  actuaries  table  of  mortality,  shall  be  used,  and 
the  same  table  is  referred  to  in  the  collateral  inheritance  tax.' 
The  Supreme  Court  of  our  State,  however,  has  on  two  different 
occasions  approved  calculations  made  upon  the  basis  of  the  Oar- 
lisle  table.  ^ 


5  For  more  extended  description, 
see  Gianquo  &  ]McCliire  Present 
Value  Tables,   185  ct  srq. 

6  §  3C31-20  R.  S.,  repealed. 

7  §  5343   G.  C. 

8  Black  vs.  Kuhlman,  30  0.  S.  199. 
Wasner  vs.  Rawlins,  64  O.  S.  585; 

46  iiull.   147. 

Kinkead  in  his  recent  work  on 
probate  law  and  practice  says,  that 
the  American  experience  table  of 
mortality  is  the  legal  basis  of  valu- 
ation in  Ohio.  From  the  author's 
investigation  he  fails  to  find,  either 
by  legislative  act  or  judicial  deci- 
sion an  adoption  of  the  American 
experience  table.  As  above  stated 
in  the  text,  the  Legislature  has  on 
several  occasions  adopted  the  Ac- 
tuaries or  Combined  experience  ta- 
bles; and  the  Courts  have  given 
sanction  to  the  use  of  the  Carlisle 
table.  By  noticing  the  expectancy 
of  life  as  given  subsequently  in  a 
table  herein,  it  will  be  observed 
that  the  American  table  is  higher 
'  than    either    the   Combined    or    the 


Carlisle  table,  until  sixty  years  of 
age,  after  which  time  the  Carlisle 
table  is  higher  than  either  of  the 
others.  Generally,  however,  the 
Carlisle  table  is  nearer  the  Com- 
bined experience  table  than  the 
American  table,  and  therefore  in 
computing  annuities  under  the  col- 
lateral inheritance  tax  the  table 
based  thereon,  would  be  nearer  cor- 
rect than  if  based  upon  the  Amer- 
ican table  of  mortality. 

Mr.  Kinkead  gives  a  table  for 
the  calculation  of  dower  based  up- 
on the  American  table  of  mortality, 
which  by  his  kind  consent  is  in- 
serted herein.  However,  from  the 
fact  that  the  Carlisle  table  has  been 
sanctioned  by  the  Supreme  Court 
and  by  long  and  continued  use  by 
the  bar  of  Ohio,  as  well  as  recog- 
nized writers  upon  the  Ohio  law 
(Giauque  &  McClure's  Present  Val- 
ue Tables,  p.  2),  the  author  has 
come  to  the  conclusion  that  until 
otherwise  determined  by  an  act  of 
the   Legislature,   the    Carlisle   table 


§  2138  DOWER   AND  ANNUITY   TABLES  1776 

§2138.     Calculation  of  consummate  dower,  and  life  annuity. 

The  statute  in  giving  a  widow  power  to  waive  the  assignment 
of  dower  by  metes  and  bounds,  provides  that  she  may  have  such 
sum  of  money  in  lieu  of  such  dower  out  of  the  proceeds  as  the 
Court  deems  a  just  and  reasonable  value  of  such  dower  inter- 
est.® In  order  to  aid  the  Court,  in  determining  what  is  the  rea- 
sonable value  of  dower,  or  life  annuity,  the  Carlisle  table  of 
mortality  is  usually  used.  Of  course,  this  table  is  based  upon 
tlie  general  expectation  of  life  of  a  person  in  ordinary  good 
health.  If  a  person  entitled  to  dower  or  life  annuity  was 
afflicted  in  such  a  manner  that  she  could  not  live  veiy  long,  such 
matter  should  be  taken  into  consideration.  The  table  does  not 
furnish  an  arbitrary  rule,  although  it  is  usually  followed.  A 
table  for  contingent  right  of  dower  is  given  in  the  next  section. 
The  widow  or  widower  being  entitled  to  the  same  dower,  the 
method  of  calculation  vdll  be  the  same  for  each. 

The  value  of  a  widow's  dower  is  foimded  by  computing  the 
interest  for  one  year  at  six,  or  five,  per  cent.,  or  whatever  rate  is 
desired,^"  on  one-third  the  value  of  the  entire  property,  and 
multiplying  the  amount  by  the  amount  set  opposite  the  widow's 
age.  If  the  widow  is  aged  40,  and  the  entire  estate  is  sold  for 
$15,000,  the  value  of  her  dower  will  be  the  interest  on  one- 
third  of  that  sum  for  one  year,  $300,  multiplied  by  12.002 
(the  amount  opposite  the  widow's  age),  or  $3,660.60.     If  the 

is  entitled  to  preference.  Another  order,  however,  that  the  practitioner 
reason  suggests  itself  for  giving  the  and  the  Courts  may  have  the  ben- 
Carlisle  table  the  preference,  and  efit  of  tables  founded  upon  the  Car- 
that  is,  that  the  Carlisle  table  is  lisle  and  American  tables  both  are 
based  upon  the  lives  of  unselected  inserted. 
persons.  While  the  other  tables  are  »  §  12018  G.  C. 
based  upon  selected  lives,  and  it  is  lo  Six  per  cent,  is  used  because 
reasonably  safe  to  assume  that  the  that  is  the  legal  rate  in  Ohio,  §  8315 
rate  of  mortality  would  be  lower  q  q^  but  in  calculating  dower,  the 
among  selected  lives  than  unselect-  Court  is  not  bound  to  follow  this 
ed  lives,  and  it  is  hardly  fair  to  j-^te.  Although  generally  used,  it 
base  an  expectation  of  life  for  or-  ^^^^  ^^^  too  high,  as  real  estate  does 
dinary  purposes  upon  a  table  ^^t  usually  yield  as  high  a  rate 
founded  upon  the  lives  of  persona  p^j.  ^^^^  ^^  j^^tes,  etc.,  to  which 
who  were  able  to  pass  an  examina-  g  gggg  q  (^  particularly  applies. 
tion  and  secure  life  insurance.     In 


1777 


CARLISLE    TABLE 


§2139 


widow  is  entitled  to  a.  life  estate,  interest  would  be  calculated  on 
the  $15,000  for  one  year,  etc.^^  If  there  is  an  annuity  of  $300 
per  year,  and  the  person  entitled  to  same  is  40  years  of  age,  its 
present  value,  calculated  at  six  per  cent.,  would  be  $300  ^ 
12.002  =  $3,660.60.  If  tlie  annuity  was  $300  per  year  to  run 
30  years,  it  would  be  $300  X  13.7648  =  $4,129.44." 

§  2139.    Dower  and  life  annuity  table  based  upon  Carlisle  table. 


Age. 

3  per  cent. 

■  4  per  cent. 

5  per  cent. 

6  per  cent. 

i7  percent. 

10 

23.512 

19.58339 

16.6689 

14.4486 

12.717 

11 

23.327 

19.45857 

16.5813 

14 . 3845 

12.669 

12 

23.143 

19.33493 

16.4946 

14.3215 

12.621 

13 

22.957 

19.20937 

16.4064 

14.2570 

12.572 

14 

22.769 

19.08182 

16.3165 

14.1912 

12.522 

15 

22.582 

18.95534 

16.2275 

14.1262 

12.473 

16 

22.404 

18.83636 

16.1450 

14.0671 

12.429 

17 

22.232 

18.72111 

10.0667 

14.0118 

12.389 

18 

22.058 

18.60656 

15.9875 

13.9559 

12 . 348 

19 

21.879 

18.48649 

15.9046 

13.8970 

12.305 

20 

21.694 

18.36170 

15.8177 

13.8349 

12.259 

21 

21.504 

18.23196 

15.7267 

13.7692 

12.210 

22 

21.304 

18.09386 

15.6285 

13.6974 

12.156 

23 

21.098 

17.95016 

15.5256 

13.6215 

12.098 

24 

20.885 

17.80058 

15.4175 

13.5413 

12.037 

25 

20.665 

17.64486 

15.3040 

13.4563 

11.972 

26 

20.442 

17.48586 

15.1876 

13.3688 

11.904 

27 

20.212 

17.32023 

15.0653 

13.2761 

11.832 

28 

19.981 

17.15412 

14.9424 

13.1828 

11.759 

29 

19.761 

16.99683 

14.8272 

13.0964 

11.693 

30 

19  556 

16.85215 

14.7231 

13.0200 

11.636 

31 

19.348 

16.70511 

14.6171 

12.9420 

11.578 

32 

19.134 

16.55246 

14.5062 

12.8600 

11.516 

33 

18.910 

16.39072 

14.3874 

12.7711 

11.448 

34 

18.675 

16.21943 

14.2601 

12.6748 

11.374 

35 

18.433 

16.04123 

14.1267 

12.5731 

11.295 

36 

18.183 

15.85577 

13.9868 

12.4656 

11.211 

37 

17.928 

15.66586 

13.8427 

12.3545 

11.124 

38 

17.669 

15.47129 

13.6944 

12.2394 

11.033 

39 

17.405 

15.27184 

13.5415 

12.1203 

10.939 

40 

17.143 

15.07363 

13.3894 

12.0019 

10.845 

41 

16 . 890 

14.88314 

13.2441 

11.8897 

10.757 

11  For  table  of  31/2  per  cent..  4V2, 
8,  9,  and  10  per  cent.,  see  Giauque 
A  McClure's  Present  Value  Tables, 
page   10. 


12  See  §  2023,  This  is  a  certain  an- 
nuity. 


U139 


DOWER   AND    ANNUITY   TABLES 


1778 


Age. 

3  per  cent. 

4  per  cent. 

5  per  cent. 

6  per  cent. 

7  per  cent. 

42 

16.640 

14.69466 

13.1006 

11.7791 

10.671 

43 

16.389 

14.50529 

12.9562 

11.6679 

10.585 

44 

16.130 

14.30874 

12.8053 

11.5510 

10.494 

45 

15.863 

14.10460 

12.6475 

11.4280 

10.397 

46 

15.585  ■ 

13.88928 

12.4795 

11.29.57 

10.292 

47 

15.294 

13.66208 

12.3006 

11.1536 

10.178 

48 

14.986 

13.41914 

12.1070 

10.9980 

10.052 

49 

14.654 

13.15312 

11.8920 

10.8226 

9.908 

50 

14.303 

12.86902 

11.6598 

10.6311 

9.749 

51 

13.932 

12.56581 

11.4093 

10.4223 

9.573 

52 

13.558 

12.25793 

11.1535 

10.2078 

9.392 

53 

13.180 

11.94503 

10.8920 

9.98726 

9.205 

54 

12.798 

11.02673 

10.6243 

9.76025 

9.011 

55 

12.408 

11.29961 

10.3472 

9.52367 

8 .  807 

56 

12.014 

10.96607 

10.0628 

9.27933 

8.595 

57 

11.614 

10.62559 

9.77061 

9.02659 

8.375 

58 

11.218 

10.28047 

9.47810 

8.77240 

8.153 

59 

10.841 

9.96331 

9.19889 

8.52942 

7.940 

60 

10.491 

9.66333 

8.93987 

8.30426 

7.743 

61 

10.180 

9.39809 

8.71212 

8.10751 

7.572 

62 

9.875 

9.13676 

8.48722 

7.91291 

7.403 

63 

9.567 

8.87150 

8.25790 

7.71365 

7.229 

64 

9.246 

8.59330 

8.01565 

7.50165 

7.042 

65 

8.917 

8.30719 

7.76502 

7.28110 

6.847 

66 

8.578 

8.00966 

7.50262 

7.04866 

6.641 

67 

8.238 

7.69980 

7.22743 

6.80323 

6.421 

68 

7.869 

7.37970 

6.94131 

6.54640 

6.189 

69 

7.499 

7.04881 

6.64341 

6.27721 

5.945 

70 

7.123 

6.70936 

6.33583 

5.99748 

5.690 

71 

6.737 

6.35773 

6.01491 

5.70353 

5.420 

72 

6.373 

6.02548 

5.71057 

5.42378 

5.162 

73 

6.044 

5 . 72465 

5.43447 

5.16953 

4.927 

74 

5.752 

5.45812 

5.18972 

4.94403 

4.719 

75 

5.512 

5.23901 

4.98924 

4.76004 

4.549 

76 

5.277 

5.02399 

4.79197 

4.57852 

4.382 

77 

5 .  059 

4.82473 

4.60914 

4.410.i3 

4.227 

78 

4.838 

4.62166 

4.42210 

4.23765 

4.067 

79 

4.592 

4.39345 

4.21019 

4.04041 

3.883 

80 

4.365 

4.18289 

4.01445 

3.85807 

3.713 

81 

4.119 

3.95309 

3.79936 

3.65632 

3.523 

82 

3.898 

3.74634 

3.60561 

3.47444 

3.352 

83 

3.672 

3 . 5.3409 

3.40573 

3.28588 

3.174 

84 

3.454 

3.32856 

3.21145 

3.10195 

2.999 

85 

3.229 

3.11515 

3 . 00854 

2.90873 

2.815 

86 

3 .  033 

2.92831 

2.83036 

2.73855 

2.652 

87 

2.873 

2.77.593 

2.68472 

2.59916 

2.519 

88 

2.776 

2.68337 

2.59660 

2.51514 

2.439 

89 

2.605 

2.57704 

2.49465 

2.41725 

2.344 

1779 


AMERICAN    TABLE 


2140 


Affe, 


4  per  cent.       5  per  cent. 


6  per  cent.    |7i5ercent. 


90 

2.499 

2.41621 

2.33879 

2.26601 

2.198 

91 

2.481 

2.39835 

2.32108 

2.24838 

2.180 

92 

2.577 

2.49199 

2.41199 

2.33660 

2.266 

93 

2.687 

2.59955 

2.51749 

2.43999 

2.367 

94 

2.736 

2.64976 

2.56854 

2.49163 

2.419 

95 

2.757 

2.67433 

2.59595 

2.52151 

2.451 

96 

2.704 

2.62779 

2.55532 

2.48626 

2.420 

97 

2.559 

2.49204 

2.42839 

2.36750 

2.309 

98 

2.388 

2.33222 

2.27833 

2.22656 

2.177 

99 

2.131 

2.08700 

2.04468 

2.00383 

1.964 

100 

1 .  683 

1.652S2 

1.62400 

1.59608 

1.569 

101 

1.228 

1.21005 

1.19240 

1.17523 

1.159 

102 

0.771 

0.76183 

0.75283 

0.74404 

0.735 

103 

0.324 

0.32051 

0.31746 

0.31447 

0.312 

§  2140.     Dower  and  life  annuity  table  based  upon  American  table, 

The  following  table  is  founded  upon  the  American  table  of 
mortality.  The  method  of  calculation  to  ascertain  dower,  etc., 
is  similar  to  that  given  under  the  Carlisle  table.  The  Amer- 
ican table  of  mortality  gives  a  longer  expectation  of  life  than 
the  Carlisle  table,  and  therefore  a  higher  present  value  to  an 
annuity  or  dower  interest: 


Age. 

3  per  cent. 

3^2  percent. 

4  per  cent. 

4%  per  cent. 

6  per  cent. 

10 

24.343 

22 . 225 

20.414 

18.855 

15.293 

11 

24.225 

22.134 

20 . 343 

18.800 

15.265 

12 

24.102 

22.039 

20.269 

18.741 

15.236 

13 

23.976 

21.941 

20.192 

18.681 

15.204 

14 

23.846 

21.839 

20.112 

18.617 

15.171 

15 

23.712 

21.733 

20.028 

18.551 

15.137 

16 

23.573 

21.624 

19.942 

18.482 

15.100 

17 

23.430 

21.511 

19.851 

18.409 

15.062 

18 

23 . 282 

21.303 

19.757 

18.334 

15.021 

19 

23.129 

21.271 

19.600 

18.255 

14.978 

20 

22.971 

21.144 

19.558 

18.173 

14.932 

21 

22.808 

21.013 

19.452 

18.086 

14.885 

22 

22.640 

20.878 

19 . 342 

17.907 

14.834 

23 

22.467 

20.737 

19.228 

17.903 

14.781 

24 

22.289 

20.592 

19.109 

17.805 

14.725 

25 

22.104 

20. 4i^ 

18.985 

17.704 

14.666 

26 

21.914 

20.286 

18.857 

17.597 

14.604 

^2140 


DOWER   AND    ANNUITY  TABLES 


1780 


Age. 

3  per  cent. 

3  Mi  per  cent. 

4  per  cent. 

4%  per  cent. 

6  per  cent. 

27 

21.718 

20.124 

18.723 

17.486 

14.538 

28 

21.516 

19.957 

18.585 

17.370 

14.469 

29 

21.308 

19.784 

18.440 

17.250 

14.396 

30 

21.093 

19.605 

18.291 

17.124 

14.320 

31 

20.872 

19.420 

18.135 

16.993 

14.239 

32 

20.643 

19.229 

17.973 

16.856 

14.154 

33 

20.408 

19.030 

17.806 

16.713 

14.064 

34 

20.166 

18.826 

17.632 

16.565 

13.969 

35 

19.917 

18.614 

17.451 

16.410 

13.870 

36 

19.661 

18.395 

17.263 

16.249 

13.765 

37 

19.397 

18.169 

17.069 

16.081 

13.655 

38 

19.125 

17.935 

16.868 

15.907 

13.540 

39 

18.846 

17.695 

16.659 

15.725 

13.418 

40 

18.560 

17.446 

16.443 

15.537 

13.291 

41 

18.265 

17.190 

16.220 

15.341 

13.157 

42 

17.963 

16.926 

15.988 

15.138 

13.017 

43 

17.653 

16.654 

15.749 

14.927 

12.870 

44 

17.335 

16.374 

15.502 

14.709 

12.716 

45 

17.009 

16.087 

15.248 

14.483 

12.555 

46 

16.676 

15.791 

14.985 

14.248 

12.38. 

47 

16.335 

15.488 

14.714 

14 . 006 

12.211 

48 

15.987 

15.177 

14.436 

13.757 

12.028 

49 

15.632 

14.859 

14.151 

13.500 

11.838 

50 

15.271 

14.535 

13.858 

13.236 

11.640 

51 

14 . 904 

14.204 

13.559 

12.965 

11.436 

52 

14.533 

13.868 

13.255 

12.688 

11.226 

53 

14.157 

13.526 

12.944 

12.405 

11.009 

54 

13.776 

13.180 

12.628 

12.116 

10.786 

55 

13.393 

12.830 

12.307 

11.822 

10.556 

56 

13.006 

12.475 

11.982 

11.523 

10.321 

57 

12.617 

12.118 

11.653 

11.219 

10.081 

58 

12.227 

11.758 

11.321 

10.912 

9.836 

59 

11.835 

11.396 

10.985 

10.601 

9.586 

60 

11.443 

11.032 

10.648 

10.288 

9.332 

61 

11.051 

10.668 

10.. 309 

9.972 

9.074 

62 

10.660 

10.304 

9.969 

9 .  654 

8.813 

63 

10.272 

9.941 

9.630 

9.336 

8.549 

64 

9.885 

9.579 

9.290 

9.017 

8.283 

65 

9.502 

9.219 

8.952 

8.699 

8.016 

66 

9.123 

8.863 

8.616 

8.381 

7.747 

67 

8.749 

8.510 

8.282 

8.066 

7.479 

68 

8.381 

8.161 

7.952 

7.754 

7.212 

69 

8.020 

7.819 

7.627 

7.445 

6.945 

70 

7.665 

7.482 

7.307 

7.140 

6.681 

71 

7.319 

7.152 

6.993 

6.840 

6.420 

72 

6.981 

6.830 

6.685 

6.546 

6.163 

73 

6.651 

6.514 

6.383 

6.257 

5.908 

74 

6.328 

6.205 

6.086 

5.972 

5.656 

1781 


CONTINGENT  DOWER 


§2141 


Age.       3  per  cent. 


3%  per  cent. 


4  per  cent.     4%  per  cent.  6  per  cent. 


75 

6.011 

5.900 

5.794 

5.691 

5.406 

76 

5.699 

5.600 

5.505 

5.413 

5.157 

77 

5.391 

5.304 

5.219 

5.138 

4.908 

78 

5.088 

5.011 

4.936 

4.864 

4.660 

79 

4.790 

4.722 

4.656 

4.593 

4.413 

80 

4.496 

4.437 

4.380 

4.324 

4.167 

81 

4.208 

4.158 

4.108 

4.060 

3.924 

82 

3.928 

3.884 

3.842 

3.801 

3.683 

83 

3.652 

3.615 

3.580 

3.545 

3.445 

84' 

3.379 

3.348 

3.318 

3.289 

3.205 

85 

3.107 

3.082 

3.057 

3.033 

2.964 

86 

2.839 

2.819 

2.799 

2.780 

2.724 

87 

2.579 

2.563 

2.548 

2.C32 

2.488 

88 

2.334 

2 .  322 

2.310 

2.298 

2.263 

89 

2.103 

2 .  094 

2.085 

2.076 

2.050 

90 

1.880 

1.874 

1.867 

1.861 

1.842 

91 

1.662 

1.658 

1 .  654 

1.649 

1.637 

92 

1.459 

1.457 

1.454 

1.451 

1.443 

93 

.       1.294 

1 .  292 

1.291 

1.289 

1.285 

94 

1.139 

1.138 

1.137 

1.137 

1.135 

95 

1.000 

1.000 

1.000 

1.000 

1.000 

§  2141.     Calculation  of  contingent  dower. 

Our  Supreme  Court  lias  declared  tkat  the  contingent  right 
of  a  wife  during  her  husband's  life  to  be  endowed  of  his  real 
estate  at  his  death  is  property  having  a  substantial  value  that 
may  be  ascertained  with  reasonable  certainty  from  established 
tables  of  mortality,  aided  by  evidence  respecting  the  state  of 
health  and  constitutional  vigor  of  the  husband  and  wife  re- 
spectively.^^ It  will  therefore  be  very  proper  to  insert  a  table 
upon  which  the  calculation  is  usually  to  be  made.  This  table 
is  prepared,  I  have  no  doubt,  upon  the  assumption  that  both 
parties  are  in  a  state  of  reasonable  good  health.  If  eitlier  one 
was  an  invalid  whose  chance  of  life  was  very  materially  less- 
ened, that  matter  should  be  taken  into  account.  Following 
this  table  for  determining  the  contingent  dower  right  is  a  table 
giving  the  general  expectation  of  life.  This  might  be  of  some 
aid  where  parties  for  some  physical  reason  were  not  possessed 


13  Mandel   vs.    McCave,    46    0.    S. 
407;  Unger  vs.  Liter,  32  O.  S.  210; 


Moerlein  Brewing  Co.  vs.  Weatmeier, 
4  C.  C.  296,  2  C.  D.  668. 


§  2141  DOWER   AND   ANNUITY   TABLES .  1782 

of  the  ordinary  expectation  of  life.  The  following  table  is  a 
table  prepared  by  Mr.  Bowditch,  and  is  found  in  2nd  Scribuer 
on  Dower,  sec.  820,  and  Gianque  &  McClure's  Present  Value 
Tables,  sec.  182.  Some  years  ai*e  omitted,  but  enough  are 
given  to  enable  a  reasonable  safe  calculation  to  be  made.  In 
using  tlie  table,  the  age  of  the  wife  will  be  found  at  the  side, 
and  the  husband  at  the  top,  where  they  meet,  will  be  the  present 
value  of  the  dower  right  in  an  estate  worth  one  hundred  dollars. 
Thus,  if  the  age  of  the  husband  is  50,  and  that  of  the  wife  32, 
the  present  value  of  the  dower  on  one  hundred  dollars  is  $6.70. 
So  that  if  the  estate  be  worth  $10,000,  the  present  value  of  tlie 
dower  right  would  be  $670.^* 

14  The    Bowditch    table    has   been  used,  but  if  a  greater  degree  of  ac- 

referred    to    with    approval    by   our  curacy   is   desired,    Giauque   &   Mc- 

Supreme    Court.     Black    vs.    Kuhl-  Clure's    present    value    tables    from 

man,   30   O.    S.   200.     This   table   is  page  21  to  138  should  be  consulted, 

based   upon  the  Carlisle  table,  and  where    calculation    is    given,    based 

interest  at  6   per   cent.     It  will  be  upon  the  Carlisle  table,  and  giving 

observed  that  only  alternate  years  various   rates   of  per   cent,   as   well 

are  used   from  the   ages  of  sixteen  as  each  j^ear  of  life  of  husband  or 

to  ninety.     The  table  was  prepared  wife. 

by  J.  Ingersoll  Bowditch,  a  self-ed-  Table  maj'^  be  used  for  ascertain- 

ucated   New    England   mariner   and  ing  value  of  alimony,  etc. 

mathematician.     For      all      general  Tate  vs.  Tate,  19  C  C.  532,  10  C. 

purposes   the   above  table   could   be  D.  321. 


1783 


CONTINGENT  DOWKR 


§  2142 


§  2142.     Contingent  dower  table. 
AGE  OF  HUSBAND. 


22 
1 

26 

30 

32 

34 

36 

38 

40 

42 

44 

16 

3.68 

4.10 

4.58 

4.85 

5.14 

5.43 

5.73 

6.06 

6.42 

6.81 

18 

3.57 

3.99 

4.51 

4.70 

5.03 

5.29 

5.65 

5.99 

6.35 

6.73 

20 

3.45 

3.88 

4.38 

4.64 

4.92 

5.15 

5.49 

5.86 

6.22 

6.60 

22 

3.33 

3.77 

4.25 

4.46 

4.74 

5.00 

5.33 

5.69 

6.03 

6.43 

24 

3 .  23 

3 . 6.1 

4.11 

4.32 

4.57 

4.85 

5.17 

5.52 

5.85 

6.18 

26 

3.12 

3 .  53 

3.97 

4.18 

4.42 

4.70 

5.01 

5.35 

5.66 

5.98 

28 

3.01 

3.41 

3.83 

4.03 

4.26 

4.54 

4.84 

5.17 

5.47 

5.78 

30 

2.90 

3.28 

3.69 

3.88 

4.10 

4.38 

4.66 

4.99 

5.28 

5.58 

32 

2.79 

3.15 

3.55 

3.73 

3.94 

4.21 

4.48 

4.80 

5.09 

5.38 

34 

2.68 

3.02 

3.40 

3.57 

3.78 

4.03 

4.30 

4.60 

4.88 

5.17 

36 

2.56 

2.89 

3.25 

3.41 

3.61 

3.85 

4.11 

4.40 

4.06 

4.94 

38 

2.44 

2.76 

3.10 

3.25 

3.44 

3.67 

3.92 

4.19 

4.44 

4.70 

40 

2.32 

2.62 

2.95 

3.09 

3.27 

3.49 

3.72 

3.98 

4.22 

4.46 

42 

2.20 

2.48 

2.79 

2.93 

3.10 

3.30 

3.52 

3.76 

3.99 

4.22 

44 

2.07 

2.34 

2.63 

2.76 

2.92 

3.11 

3.32 

3.54 

.^.75 

3.98 

46 

1.94 

2.21 

2.47 

2.59 

2.73 

2.92 

3.12 

3.32 

3.50 

3.71 

48 

1.85 

2.10 

2.31 

2.42 

2.54 

2.76 

2.91 

3.10 

3.25 

3.44 

50 

1.71 

1.92 

2.15 

2.24 

2.35 

2.56 

2.71 

2.87 

3.00 

3.17 

52 

1.54 

1.74 

1.95 

2.06 

2.18 

2.31 

2.45 

2.60 

2.76 

2.90 

54 

1.40 

1.58 

1.77 

1.87 

1.97 

2.08 

2.21 

2.34 

2.48 

2.63 

56 

1.30 

1.44 

1.61 

1.70 

1.79 

:.89 

1.99 

2.10 

2.22 

2.35 

58 

1.17 

1.32 

1.48 

1..56 

1.64 

1.72 

1.81 

1.90 

2.00 

2.11 

60 

1.03 

1.17 

1.32 

1.40 

1.48 

1.56 

1.65 

1.74 

1.84 

1.95 

62 

0.91 

1.03 

1.16 

1.23 

1.30 

1.37 

1.45 

1.54 

1 .  63 

1.73 

64 

0.82 

0.92 

1.03 

1.09 

1.16 

1.23 

1.30 

1.37 

1.44 

1.51 

66 

0.74 

0.82 

0.92 

0.97 

1.02 

1.08 

1.13 

1.19 

1 .  25 

1.31 

68 

0.65 

0.73 

0.82 

0.86 

0.91 

0.96 

1.01 

1.06 

1.10 

1.15 

70 

0.54 

0.62 

0.70 

0.74 

0.78 

0.83 

0.87 

0.92 

0.97 

1.02 

72 

0.44 

0.50 

0.57 

0.61 

0.65 

0.69 

0.73 

0.77 

0.81 

0.85 

74 

0.38 

0.43 

0.49 

0.52 

0.55 

0.58 

0.61 

0.64 

0.68 

0.71 

76 

0.35 

0.38 

0.42 

0.45 

0.48 

0.51 

0.53 

0.56 

0.58 

0.60 

78 

0.30 

0.34 

0.38 

0.40 

0.43 

0.45 

0.47 

0.49 

0.50 

0.52 

80 

0.24 

0.28 

0.32 

0.34 

0.30 

0.38 

0.41 

0.43 

0.44 

0.4b 

82 

0.20 

0.22 

0.25 

0.27 

0.29 

0.32 

0.34 

0.36 

0.38 

0.40 

84 

0..17 

0.18 

0.21 

0.23 

0.24 

0.25 

0.27 

0.29 

1  0.30 

0.32 

86 

0.14 

0.16 

0.18 

0.19 

0.20 

0.21 

0.22 

0.23 

0.25 

0.26 

88 

0.13 

0.15 

0.17 

0.18 

0.19 

0.20 

0.21 

0.21 

0.22 

0.22 

90 

0.11 

0.13 

0.15 

0.16 

0-.17 

0.18 

0.19 

0.20 

0.21 

0.21 

^2142 


DOWER   AND   ANNUITY   TABLES 


1784 


AGE  OF  HUSBAND. 


46 

48 

50 

52 

54 

56 

58 

60 

62 

64 

16 

7.25 

7.74 

8.42 

9.18 

9 .  93 

10.69 

11.62 

12.48 

13.20 

13.86 

18 

7.08 

7.57 

8.21 

8.96 

9.71 

10.51 

11.40 

12.24 

12.96 

13.63 

20 

6.90 

7.38 

8.00 

8.74 

9.49 

10.30 

11.18 

12.03 

12.72 

13.40 

22 

6.72 

7.19 

7.79 

8 .  52 

9.27 

10.09 

10.95 

11.80 

12.48 

13.17 

24 

6.54 

6.99 

7.58 

8.30 

9.05 

9.86 

10.71 

11.. 56 

12.23 

12.94 

26 

6.36 

6.79 

7.37 

8.08 

8.83 

9.62 

10.47 

11.30 

11.97 

12.69 

28 

6.17 

6.59 

7.15 

7.85 

8.60 

9.37 

10.22 

11.03 

11.70 

12.42 

30 

5.96 

6.38 

6.93 

7.61 

8.35 

9.11 

9.96 

10.75 

11.42 

12.13 

32 

5.74 

6.16 

6.70 

7.36 

8.08 

8.84 

9.69 

10.46 

11.13 

11.82 

34 

5.51 

5.92 

6.45 

7.10 

7.80 

8.56 

9.40 

10.15 

10.82 

11.50 

36 

5.26 

5.66 

6.18 

6.83 

7.51 

8.26 

9.08 

9.82 

10.49 

11.16 

38 

5.00 

5.39 

5.90 

6.53 

7.21 

7.95 

8.75 

9.48 

10.13 

10.80 

40 

4.74 

5.11 

5.61 

6.22 

6.89 

7.62 

8.41 

9.13 

9.76 

10.42 

42 

4.48 

4.83 

5.31 

5.90 

6.56 

7.27 

8.04 

8.76 

9.37 

10.02 

44 

4.22 

4.55 

4.99 

5.57 

6.21 

6.91 

7.65 

8.37 

8.96 

9.60 

46 

3.96 

4.26 

4.67 

5.22 

5.84 

6.53 

7.25 

7.95 

8.52 

9.15 

48 

3.71 

3.97 

4.35 

4.85 

5.45 

6.10 

6.84 

7.49 

8.041  8.66 

50 

3.49 

3.75 

4.03 

4.48 

5.05 

5.64 

6.17 

7.01 

7.52 

8.12 

52 

3.18 

3.46 

3.78 

4.12 

4.63 

5.22 

5.56 

6.22 

6.97 

7.54 

54 

2.81 

3.05 

3.37 

3.77 

4.21 

4.78 

5.18 

5.72 

6.30 

6.92 

56 

2.50 

2.72 

3 .  00 

3 .  36 

3.80 

4.30 

4.81 

5.33 

5.85 

6.37 

58 

2.24 

2.39 

2 .  59 

2.87 

3.27 

3.79 

4.30 

4.96 

5.40 

6.00 

60 

2"  07 

2.20 

2.35 

2.57 

2.89 

3.31 

3.83 

4.41 

4.95 

5.47 

62 

1.85 

1.99 

2.17 

2.38 

2.64 

2.97 

3.36 

3.82 

'4.33 

4.87 

64 

1.61 

1.75 

1.93 

2.15 

2.41 

2.70 

3.03 

3.39 

3.78 

4.22 

66 

1.37 

1.47 

1.63 

1.85 

2.12 

2.43 

2.74 

3.06 

3.39 

3.74 

68 

1.20 

1.25 

1.36 

1.54 

1.79 

2.09 

2.44 

2.77 

3.07 

3.38 

70 

1.07 

1.12 

1.17 

1.27 

1.43 

1.67 

1.98 

2.36 

2.70 

3.01 

72 

0.90 

0.96 

1.03 

1.11 

1.22 

1.36 

1.57 

1.85 

2.17 

2.50 

74 

0.75 

0.86 

0.89 

0.93 

1.08 

1.20 

1.35 

1.54 

1.77 

2.03 

76 

0.63 

0.67 

0.73 

0.82 

0.94 

1.09 

1.25 

1.42 

1.59 

1.76 

78 

0.53 

0.55 

0.60 

0.68 

0.79 

0.94 

1.12 

1.29 

1.45 

1.60 

80 

0.47 

0.48 

0.50 

0.55 

0.64 

0.77 

0.94 

1.10 

1.26 

1.41 

82 

0.41 

0.43 

0.45 

0.47 

0.52 

0.60 

0.71 

0.84 

1.00 

1.16 

84 

0.34 

0.37 

0.40 

0.42 

0.45 

0.50 

0.58 

0.68 

0.79 

0.90 

86 

0.27 

0.29 

0.32 

0.36 

0.40 

0.45 

0.51 

0.58 

0.66 

0.74 

88 

0.23 

0.24 

0.26 

0.30 

0.35 

0.41 

0.48 

0 .  55 

0.62|  0.69 

90 

0.22 

0.22 

0.23 

0.25 

0.29 

0.35 

0.42 

0.51 

0.601  0.68 

1785 


CONTINGENT  DOWER 


§2142 


AGE  OF  HUSBAND. 


66 

68 

70 

72 

74 

76 

80 

84 

16 

14.67 

15.63 

16.62 

17.74 

18.53 

19.27 

20.78 

22.10 

18 

14.45 

15.39 

16.41 

17.51 

18.31 

19.03 

20.48 

21.86 

20 

14.22 

15.15 

16.18 

17.26 

18.08 

18.78 

20.18 

21.62 

22 

13.98 

14.90 

15.93 

16.99 

17.85 

18.56 

19.87 

21.34 

24 

13.73 

14.63 

15.66 

16.74 

17.60 

18.25 

19.57 

21.05 

26 

13.46 

14.35 

15.37 

16.46 

17.34 

17.96 

19.26 

20.77 

28 

13.18 

14.05 

15.06 

16.15 

17.06 

17.66 

18.96 

20.47 

30 

12.88 

13.74 

14.74 

15.82 

16.75 

17.34 

18.65 

20.14 

32 

12.57 

13.42 

14.41 

15.48 

16.40 

17.00 

18.32 

19.78 

34 

12.25 

13.09 

14.07 

15.12 

16.01 

16.65 

17.96 

19 .  39 

36 

11.92 

12.75 

13.71 

14.74 

15.62 

16.28 

17.57 

19.00 

38 

11.57 

12.39 

13.33 

14.34 

15.22 

15.89 

17.15 

18.59 

40 

11.19 

12.00 

12.93 

13.93 

14.80 

15.47 

16.72 

18.16 

42 

10.78 

11.58 

12.50 

13.52 

14.47 

15.03 

16.26 

17.70 

44 

10.34 

11.13 

12.04 

13.08 

13.92 

14.56 

15.76 

17.22 

46 

9.87 

10.65 

11.54 

12.59 

13.52 

14.06 

15.22 

16.70 

48 

9.37 

10.15 

11.00 

12 .  03 

12.72 

13.50 

14.65 

16.10 

50 

8.83 

9.61 

10.43 

11.39 

11.90 

12.87 

14.05 

15.41 

52 

8.24 

9.02 

9.82 

10.68 

11.27 

12.16 

13.32 

14.63 

54 

7.59 

8.37 

9.18 

9.97 

10.72 

11.37 

12.81 

13.77 

56 

6.89 

7.68 

8.48 

9.26 

9.62 

10.50 

12.01 

13.12 

58 

6.46 

6.89 

7.77 

8.56 

8.64 

9.37 

10.90 

12.06 

60 

5.98 

6.48 

6.98 

7.85 

8.08 

8.69 

9.99 

11.23 

62 

5.43 

6.00 

6.57 

7.15 

7.72 

8.28 

9.36 

10.37 

64 

4.71 

5.25 

5.84 

0.47 

7.14 

7.76 

8.84 

9.70 

66 

4.12 

4.55 

5.04 

5.60 

6.22 

6.88 

8.05 

9.02 

68 

3.69 

4.02 

4.39 

4.82 

5.32 

4.89 

7.08 

8.08 

70 

3.32 

3.65 

3.94 

4.27 

4.65 

5.09 

6.15 

7.12 

72 

2.84 

3.18 

3.53 

3.88 

4.24 

4.61 

5.38 

6.23 

74 

2.33 

2.67 

3.05 

3.43 

3.77 

4.11 

4.80 

5.49 

76 

1.94 

2.16 

2.43 

2.76 

3.15 

■   3.60 

4.35 

5.03 

78 

1.75 

1.90 

2.08 

2.31 

2.51 

2.98 

3.78 

4.46 

80 

1.56 

1.71 

1.87 

2.06 

2.28 

2.54 

3.20 

3.85 

82 

1.33 

1 .  50 

1.68 

1.87 

2.07 

2.29 

2.75 

3.28 

84 

1.03 

1.18 

1 .  36 

1.57 

1.81 

2.04 

2 .  45 

2.80 

86 

0.83 

0.94 

1.08 

1.25 

1.44 

1.66 

2.09 

2.48 

88 

0.76 

0.83 

0.92 

1.04 

1.20 

1.39 

1.79 

2.17 

90 

0.75 

0.81 

0.87 

0.96 

1.08 

1.23 

1.57 

1.92 

§  2143  DOWER   AND   ANNUITY    TABLES  1786 

§  2143.    Expectation  of  life  table. 

Table  of  expectancy  of  life,  as  shown  by  the  following  tables  of  mortality.i** 


Thi 

rty 

Farr 

\o.  .3 

-35  ^ 

3  c  S  ^ 

z 

C 

Ufh 

;es'  1- 

x;ierience 

o 

Ma 

les 

Females 

Males 

Females 

•£  2 

o 

WSlO'-^ 

■" 

'^ 

X  s 

1 

44.68 
47.55 
49 .  82 
50. 7G 
51.25 
51.17 

46.65 
48.83 
49.61 
49.81 
49.71 
49 .  39 

47.31 
49.40 
50.20 
50.43 
50.33 
50.00 

32.74 

2 

37  79 

3 

39 .  55 

4 

40  58 

5 

40  84 

6 

41.07 

7 

50 .  80 

48.92 

49.53 

41.03 

8 

50  24 

48  37 

48  98 

40  79 

9 

49.57 
48.82 

48 .  CO 

47.74 
47.05 

48.35 
47.67 

40  36 

10 

48 

72 

49 

99 

48 

05 

39.78 

11 

48.04 

47.68 

48 

08 

49 

32 

47 

21 

46.31 

46 .  95 

39.14 

12 

47.27 

47.01 

47 

44 

48 

04 

46 

40 

45.54 

46.20 

38.49 

13 

46.51 

46.33 

46 

82 

47 

95 

46 

64 

44.76 

45 .  44 

37.83 

14 

45.75 

45.64 

46 

16 

47 

26 

44 

91 

43.97 

44.66 

37.17 

15 

45.00 

44.96 

45 

50 

46 

Ol 

44 

19 

43.18 

43.90 

36.51 

16 

44.27 

44.27 

44 

85 

45 

88 

43 

48 

42.40 

43.14 

35.85 

17 

43.57 

43.58 

44 

19 

45 

18 

42 

79 

41.00 

42.40 

35.20 

18 

42 .  87 

42.88 

43 

53 

44 

48 

42 

12 

40.90 

41.67 

34.58 

19 

42.17 

42.19 

42 

87 

43 

78 

41 

46 

40.17 

40.97 

33 .  99 

20 

41.46 

41.49 

42 

20 

43 

07 

40 

82 

39.48 

40.29 

33.43 

21 

40.75 

40.79 

41 

53 

42 

36 

40 

19 

38.80 

39.63 

32.90 

22 

40.04 

40.09 

40 

85 

41 

65 

39 

56 

38.13 

38.98 

32.39 

23 

39.31 

39.39 

40 

17 

40 

93 

38 

96 

37.46 

38 .  33 

31.88 

24 

38.59 

38.63 

39 

49 

40 

21 

38 

38 

36.79 

37.68 

31.36 

25 

37.86 

37.93 

38 

81 

39 

49 

37 

80 

36.12 

37.04 

30.85 

26 

37.14 

37.27 

38 

11 

38 

77 

37 

23 

35.44 

36.39 

30.33 

27 

36.41 

36.56 

37 

43 

38 

04 

36 

06 

34.77 

35.75 

29.82 

28 

35.69 

35 .  86 

36 

73 

37 

31 

36 

08 

34.10 

35 .  10 

29.30 

29 

35.00 

35.15 

36 

03 

36 

58 

35 

49 

33.43 

34.46 

28.79 

30 

34.34 

34.43 

35 

33 

35 

85 

34 

89 

32.76 

33.81 

28.27 

31 

33.68 

33.72 

34 

62 

35 

12 

34 

29 

32.09 

33.17 

27.76 

32 

33.03 

33.01 

33 

92 

34 

38 

33 

69 

31.42 

32 .  53 

27.24 

33 

32.36 

32.30 

33 

21 

33 

65 

33 

06 

30.74 

31.88 

26.72 

34 

31.68 

31.58 

32 

50 

32 

91 

82 

42 

30.07 

31.23 

26.20 

35 

31.00 

30 .  87 

31 

78 

32 

17 

31 

78 

29.40 

30.59 

25.68 

36 

30.32 

30 .  15 

3! 

07 

31 

43 

31 

13 

28.73 

29.94 

25.16 

37 

29.64 

29.44 

30 

35 

30 

70 

30 

47 

28.06 

29.29 

24.64 

38 

28.96 

28.72 

29 

62 

29 

96 

29 

81 

27.39 

28.64 

24.12 

1**  This  table  is  taken  from  Giau- 
qiie  &  McClurc's  Present  Value  Ta- 
bles, etc.  In  actions  for  damages 
for  wrongful  death,  "etc.,"  Courts  do 
not  permit  life  annuity  tables  to  be 
given  in  evidence  to  determine  the 
probable  present  value  of  decedent's 
earnin.TS,  but  tables  of  expectancy  of 
life   niav  be   introduced   in  evidence 


and  considered  in  estimating  the 
amount  of  damages  recoverable  in 
such  suits.  Wasmcr  vs.  Rawlin,  40 
Bull.    147;    64    0.    S.   5S5. 

See  55  Gen.  Law  J.  101  (1902), 
for  cases  on  this  subject. 

See  cases  cited  in  Giauque  &, 
IMcClure's  tables,  pages  8,  184,  185, 
186,  187,  190. 


1787 


EXPECTATION  OF  LIFE 


§2143 


o 

Thi 

rty 

Farr 

No.   3 

u 

3.1 

Offices'  E 

xperience 

.  c 

tA 

s  ?  £  t 

'u  ^ 

•=  2 

eI 

Males 

Females 

Males 

Females 

t,  a. 

< 

U 

Uv-.OiJ 

<U) 

39 

28 .  28 

28.00 

28.90 

29 .  22 

29.16 

26.72 

27.99 

23.60 

40 

27.61 

27.28 

28.18 

28.48 

28.48 

26.06 

27.34 

23.08 

41 

26.97 

26.56 

27.45 

27.75 

27.82 

25.39 

26.69 

22.56 

42 

26.34 

25 .  84 

26.72 

27.01 

27.15 

24.73 

26.03 

22.04 

43 

25.71 

25.12 

25.99 

26.28 

26.45 

24.07 

25.38 

21.54 

44 

25.09 

24.40 

25.27 

25 .  55 

25.74 

23.41 

24.72 

21.03 

45 

24.46 

23 .  69 

24.54 

24.82 

25.02 

22.76 

24.06 

20.52 

46 

23.82 

22.97 

23 .  80 

24 .  09 

24.30 

22.11 

23.40 

20.02 

.    47 

23.17 

22.27 

23.08 

23.38 

23.57 

21.46 

22.74 

19.51 

48 

22.50 

21.56 

22 .  36 

22.66 

22 .  83 

20.82 

22.08 

19.00 

49 

21.81 

20.87 

21.63 

21.95 

22 .  08 

20.17 

21.42 

18.49 

60 

21.11 

20.18 

20.91 

21.24 

21.33 

19.54 

20.75 

17.99 

61 

20.39 

19.50 

20.20 

20.54 

20.59 

18.90 

20.09 

17.50 

52 

19.68 

18.82 

19.49 

19.84 

19.87 

18.28 

19.42 

17.02 

63 

18.97 

18.16 

18.79 

19.15 

19.15 

17.67 

18.75 

16.54 

64 

18.28 

17.50 

18.09 

18.47 

18.44 

17.06 

18.08 

16.06 

55 

17.58 

16.86 

17.40 

17.80 

17.73 

16.45 

17.43 

15.58 

66 

16.89 

16.22 

16.72 

17.13 

17.03 

15.86 

16.79 

15.10 

57 

16,.  21 

15.59 

16.05 

16.47 

16.35 

15.26 

16.17 

14.63 

68 

15.55 

14.97 

15.39 

15.83 

15.67 

14.68 

15 .  55 

14.15 

59 

14.92 

14.37 

14.74 

15.19 

15.02 

14.10 

14.94 

13.68 

60 

14.34 

13.77 

14.09 

14.56 

14.37 

13.53 

14.34 

13.21 

61 

13.82 

13.18 

13.47 

13.94 

13 .  73 

12.96 

13.75 

12.75 

62 

13.31 

12.61 

12.86 

13.34 

13.10 

12.41 

13.17 

12.28 

63 

12.81 

12.05 

12.26 

12.74 

12.49 

11.87 

12.60 

11.81 

64 

12.30 

11.51 

11.68 

12.16 

11.90 

11.34 

12.05 

11.35 

65 

11.70 

10.97 

11.10 

11.60 

11.31 

10.82 

11.51 

10.88 

66 

11.27 

10.46 

10.54 

11.04 

10.74 

10.32 

10.98 

10.42 

67 

10.75 

9.9G 

10.00 

10.50 

10.19 

9.83 

10.47 

9.96 

68 

10.23 

9.47 

9.48 

9.97 

9.6o 

9.36 

9.97 

9.50 

69 

9.70 

9.00 

8.98 

9.40 

9.13 

8.90 

9.48 

9.05 

70 

9.18 

8.54 

8.48 

8.97 

8.62 

8.45 

9.02 

8.60 

71 

8.65 

8.10 

8.00 

8.49 

8.13 

8.03 

8.57 

8.17 

72 

8.16 

7.67 

7.54 

8.02 

7.65 

7.62 

8.13 

7.74 

73 

7.72 

7.20 

7.10 

7.57 

7.20 

7  .22 

7.71 

7.33 

74 

7.33 

6.86 

6.08 

7.14 

6.76 

6 .  85 

7.31 

0.92 

75 

7.01 

6.48 

6.28 

6.72 

6.34 

6.49 

6.93 

6.54 

76 

6.69 

6.11 

5.88 

6.32 

5.93 

6.15 

6 .  56 

6.18 

77 

6.40 

5.76 

5.48 

5.93 

5 .  55 

5 .  82 

6.21 

5 .  83 

78 

6.12 

5.42 

5.10 

5.57 

5.18 

5.51 

5 .  88 

5.48 

79 

5.80 

5.09 

4.74 

5.21 

4.82 

5.21 

5 .  56 

5.11 

80 

5.51 

4. 78 

4.38 

4.87 

4.49 

4.93 

5.26 

4 .  75 

81 

5.21 

4.48 

4.04 

4.55 

4.17 

4.06 

4.98 

4.41 

82 

4.93 

4.18 

3.71 

4.24 

3.88 

4.41 

4.71 

4.09 

83 

4 .  65 

3.90 

3.39 

3.95 

3.59 

4.17 

4.45 

3.80 

84 

4.39 

3.63 

3.08 

3.67 

3 .  33 

3.95 

4.21 

3.58 

85 

4.12 

3 .  36 

2.77 

3.40 

3.08 

3.73 

3.98 

3.37 

86 

3.90 

3.10 

2.47 

3.14 

2.84 

3.53 

3.76 

3.19 

87 

3.71 

2.84 

2.19 

2.89 

2 .  02 

3.34 

3 .  56 

3.01 

88 

3 .  59 

2.59 

1.91 

2.04 

2.42 

3.16 

3 .  36 

2.86 

89 

3.47 

2.35 

1.06 

2 .  39 

2 .  33 

3.00 

3.18 

2.66 

90 

3.28 

2.11 

]  .42 

2.17 

2 .  05 

2.84 

3.01 

2.41 

91 

3.26 

1   89 

1.19 

1.98 

1.89 

2.69 

2 .  85 

2.09 

92 

3.37 

1   67 

.98 

1.81 

1.73 

2.55 

2.70 

1.75 

§2144 


DOWER   AND   ANNUITY   TABLES 


17! 


u 

a 
U 

Combined   or 
Seventeen 
Offices' 
Experience 

H  >? 

Thirty 
Offices'  Experience 

Farr 

No.  3 

1^ 

< 

Males 

Females 

Males 

Females 

.  c 

•B2 
u  a 

93 

3.48 

1.47 

.80 

1.64 

1.59 

2.41 

2.55 

1.37 

94 

3.53 

1.28 

.64 

1.49 

46 

2.29 

2.42 

1.05 

95 

3.53 

1.12 

.50 

1.34 

34 

2.17 

2.29 

.75 

96 

3.46 

.99 

1.18 

23 

2.06 

2.17 

.50 

97 

3.28 

.89 

1.03 

09 

1.95 

2.06 

98 

3.07 

.75 

.83 

93 

1.85 

1.96 

99 

2.77 

.50 

.50 

50 

1.76 

1.86 

100 

2.28 

1.68 

1.76 

101 

1.79 

102 

1.30 

103 

.83 

104 

.50 

§  2144.    Table  for  ascertaining  present  value  of  certain  annuity. 

The  following  table  is  for  the  purpose  of  showing  the  present 
value  of  a  certain  sum,  payable  annually  for  a  stated  period 
of  years,  which  comes  within  the  definition  of  a  certain  annuity. 
Thus,  if  by  A.'s  will,  B.  is  given  the  sum  of  $500  annually  for 
a  period  of  30  years,  this  would  be  an  annuity  certain.  If  the 
annuity  was  given  for  the  life  of  B.,  it  would  be  a  life  annuity; 
and  if  the  present  value  of  a  life  annuity  was  desired,  the  table 
for  the  ascertainment  of  dower  might  be  used.  There  is  a  dif- 
ference between  the  present  value  of  an  annuity  which  ceases 
upon  a  certain  person's  death  and  one  which  terminates  in  a 
certain  number  of  years.  Thus,  if  a  person  of  the  age  of  35 
years  has  granted  to  him  an  annuity  for  31  years,  the  present 
value  of  $1.00  at  six  per  cent.  Avould  be  $13.93.  If  the  same 
person  had  given  to  them  an  annuity  for  life,  such  person  would 
have  an  expectation  of  life  of  31  years  by  the  Carlisle  table,  yet 
the  present  value  of  $1.00  for  the  life  annuity  would  be 
$12.57." 


15  See  Giauque  &  McClure's  Pres- 
ent Value  Tables,  4,  where  this  mat- 
ter is  explained.  Here  it  is  said 
"  Many  persons,  with  but  an  im- 
perfect knowledge  of  the  subject, 
erroneously  suppose  that,  the  value 
of    a    vested    dower    or    curtesy    is 


found  by  calculating  the  value  of 
an  annuity  certain  for  a  number 
of  years  equal  to  the  expectation  of 
life  of  the  widow  or  widower.  This, 
however,  is  by  no  means  the  case, 
as  is  well  known  to  actuaries  and 
those  who   have  more  carefully   in- 


1789  PRESENT   VALUE    CERTAIN    ANNUITY  §  2144 

The  following  table  might  also  be  used  to  ascertain  the 
amount  of  damages  to  be  properly  awarded  for  death  or  per- 
manent injury.  Where  by  death  of  such  party  the  family  was 
deprived  of  a  known  and  fixed  amount  of  earnings  for  a  definite 
number  of  years.  The  table,  however,  for  that  purpose  would 
not  be  absolutely  reliable.  Allowance  would  neeed  be  made 
for  sickness  and  other  contingencies  that  might  deprive  the  per- 
son of  his  ability  to  continue  in  such  services.^® 

Rule  for  Finding  Present  Value. —  Multiply  the  number  of 
dollars  per  year  of  such  annuity  or  sum  by  the  amount  found 
in  both  the  column  of  the  adopted  rate  per  cent,  and  to  the  right 
of  the  number  of  years,  in  the  "  Years  "  column,  which  indi- 
cates the  time  the  annuity  has  to  run.  For  instance :  If  a 
person  (or  his  heirs,  etc.,  in  case  of  his  death)  is  to  receive  an 
annuity  certain,  or  other  net  income,  etc.,  of  $500  per  year  for 
33  years,  its  present  value,  at  six  per  cent.,  would  be  found  by 
multiplying  14.2302,  found  in  the  '^  6  per  cent."  column,  oppo- 
site "  33  "  in  the  "  Years  "  column,  by  500,  which  would  be 
$7,115.10.  Three  hundred  dollars  per  year  for  15  years  would 
be,  at  four  per  cent.,  300  X  11.1184  =  $3,335.52." 

vestigated   the   methods    of   eomput-  ment    to    the    extremity    of    human 

ing      life      annuities.     Indeed,     the  life,   which,    according   to    the    Car- 

tiMmber  of  years  given  as  the  expec-  lisle   Table^   is    104  years;    the   sum 

nation  is  not  used   in  computing  a  of   all    these   present  values   is   the 

life   annuity   at   all.     For   example,  present  value  of  the  annuity." 

suppose    the    value    of    a    widow's  is  In  such  cases  the  mortality  ta- 

dower  to  be   $100  and  her  age  30.  bles  are  admissible  to  show  the  ex- 

fo    find   the   present   value    of   her  pectation  of  life.     Wasner  v.  Raw- 

Jower,    first    the    present   value    of  lins,     46     Bull,     147,     reported     in 

$100   due   one  year  hence  is  found  full,   64  0.  S.   585,   without  report, 

and  multiplied  by  the  chance  of  the  See  8  Am.  &  Eng.  Ency.  of  Law, 

widow's   living  one  year;    then   the  2nd   ed.,    947,    940,    and    cases   cited 

present  value  of  $100,   due   in   two  in    Giauque    &    McClure's    Present 

years,    is    found    and    multiplied    by  Value  Tables,  184  et  .leq. 

the  chance  of  her  living  two  years;  i7  See  Giauque  &  McClure's  Pres- 

%nd  finding  in  th«  same  manner  the  ent  Value  Tables,  190,  for  same  ta- 

present   value   of   each    year's    pay-  ble. 


§2144 


DOWER   AKD    ANNUITY   TABLES 


179C 


Yrs. 


I  2  per  ct  2.y-2  per  ct  3  per  ct 
1        1 


1 

2 
3 
4 
5 

6 

7 

8 

9 

10 

11 
12 
13 
14 
15 

16 
17 
18 
19 
20 

21 
22 
23 
24 
25 

26 
27 
28 
29 
30 

31 
32 
33 
34 
35 

36 
37 
38 
39 
40 

41 
42 
43 
44 
45 

46 
47 
48 


.9804 
1.9416 

2.8839 
3.8077 
4.71.35 

5.6014 
6.4720 
7 . 3255 
8.1622 
8.9S26 

9.7868 
10.5753 
11.3484 
12.1062 
12.8493 

13.5777 
14.2919 
14.9920 
15.6785 
16.3514 

17.0112 
17.0580 
18.2922 
18.9139 
19.5235 

20.1210 
20.7069 
21.2813 
21.8444 
22.3965 

22.9377 
23.4683 
23.9886 
24.4986 
24.9986 

25.4888 
25.9695 
26 . 4406 
26 . 9026 
27.3555 

27.7995 
28.2348 
28.6616 
29.0800 
29.4902 

29.8923 
30.2866 
30.6731 


.9756 
1.9274 
2.8560 
3.7020 
4.6458 

5. 5081 
6.3494 
7.1701 
7.9709 
8.7521 

9.5142 
10.2578 
10.9832 
11.6909 
12.3814 

13.0550 
13.7122 
14.3534 
14.9789 
15.5892 

16.1845 
16.7654 
17.3321 
17.8850 
18.4244 

18.9506 
19.4640 
19.4649 
20.4536 
20.9303 

21.3954 
21.8492 
22.2919 
22.7238 
23.1452 

23.5563 
23.9573 
24.3486 
24.7303 
25.1028 

25.4661 
25.8206 
26 . 1064 
26.5038 
26.8330 

27.1.542 
27.4675 
27.7732 


.9709 
1.9135 

2.8286 
3.7171 
4.5797 

5.4172 
6.2303 
7.0197 
7.7801 
8.5302 

9.2526 

9.9540 

10.6350 

11.2961 

11.9379 

12.5611 
13.1601 
13. 7535 
14.3238 
14.8775 

15.4150 
15.9369 
16.4436 
16.9355 
17.4131 

17.8768 
18.3270 
18.7641 
19.1885 
19.6004 

20.0004 
20.3888 
20.7658 
21.1318 
21.4872 

21.8323 
22.1672 
22.4925 
22.8082 
23.1148 

23.4124 
23.7014 
23.9819 
24 . 2543 
24.5187 

I 

24.7754  I 
25.0247  I 
25.2667 


3i^perct 


.9602 
1.8997 
2.8016 
3.6731 
4.5151 

5.3286 
6.1145 

6.8740 
7.6077 
8.3166 

9.0016 

9.6633 

10.3027 

10.9205 

11.5174 

12.0941 
12.6513 
13.1897 
13.7098 
14.2124 

14.6980 
15.1671 
15.6204 
16.0584 
16.4815 

16.8904 
17.2854 
17.6670 
18.0358 
18.3920 

18.7363 
19.0689 
19.3902 
19.7007 
20.0007 

20.2905 
20.5705 
20.8411 
21.1025 
21.3551 

21.5991 
21.8349 
22.0627 
22.2828 
22.4954 

22.7009 
22.8994 
23.0912 


4  per  ct 


.9615 
1.8861 
2.7751 
3.6299 

4.4518 

5.2421 
6.0021 
6.7327 
7.4353 
8.1109 

8.7605 

9.3851 

9.9850 

10.5631 

11.1184 

11.6523 
12.1657 
12.6593 
13.1339 
13.5903 

14.0292 
14.4511 
14.8568 
15.2470 
15.6221 

15.9828 
16.3296 
16.6631 
16.9837 
17.2920 

17.5885 
17.8736 
18.1476 
18.4112 
18.6646 

18.9083 
19.1426 
19.3679 
19.5845 
19.7928 

19.9931 

20.1856 
20.3708 
20.5488 
20.7200 

20.8847 
21 . 0429 
21.1951 


4%  perct 


.9569 
1.8727 
2.7490 
3.5875 
4.3900 

5.1579 
5.8927 
6.5959 
7.2688 
7.9127 

8.5289 

9.1186 

9.6829 

10.2228 

10.7395 

11.2340 
11.7072 
12.1600 
12.5933 
13.0079 

13.4047 
13.7844 
14.1478 
14.4955 
14.8282 

15.1466 
15.4513 
15.7429 
16.0219 
16.2889 

16.5444 
16.7889 
17 . 0229 
17.2468 
17.4610 

17.6660 
17.8622 
18.0500 
18.2297 
18.4016 

18.5661 
18.7235 
18.8742 
19.0184 
19.1563 

19.2884 
19.4147 
19.5356 


1791 


PRESENT    VALUE    CERTAIN    ANNUITY 


§2144 


Yrs. 

2  per  ct 

21^  per  ct 

3  per  ct 

3^2  per  ct 

4  per  ct 

4 1/^  per  ct 

49 

31.0521 

28.0714 

25.5017 

23.2766 

21.3415 

19.6513 

50 

31.4236 

28.3623 

25.7298 

23.4556 

21.4822 

19.7620 

51 

31.7878 

28.6462 

25.9512 

23.6286 

21.6175 

19.8679 

52 

32.1450 

28.9231 

26.1662 

23.7958 

21.7476 

19.9693 

53 

32.4950 

29.1932 

26.3750 

23.9573 

21.8727 

20.0663 

54 

32.8383 

29.4568 

26.5777 

24.1133 

21.9930 

20.1592 

65 

33.1748 

29.7140 

26.7744 

24.2641 

22.1086 

20.2480 

56 

33.5047 

29.9649 

26.9655 

24.4097 

22.2198 

20.3330 

57 

33.8281 

30.2096 

27.1509 

24 . 5504 

22.3267 

20.4144 

58 

34.1452 

30.4484 

27.3310 

24.6864 

22.4296 

20.4922 

59 

34.4561 

30.6814 

27.5058 

24.8178 

22.5284 

20.5007 

60 

34.7609 

30.9087 

27.6756 

24.9447 

22.6235 

20.6380 

61 

35.0597 

31.1304 

27.8404 

25.0674 

22.7149 

20.7062 

62 

35.3526 

31.3467 

28.0003 

25.1859 

22.8028 

20.7715 

63 

35.6398 

31.5578 

28.1557 

25.3004 

22.8873 

20.8340 

64 

35.9214 

31.7637 

28.3065 

25.4110 

22.9685 

20.8938 

65 

36.1975 

31.9646 

28.4529 

25.5178 

23.0467 

20.9510 

66 

36.4681 

32.1606 

28.5950 

25.6211 

23.1218 

21.0057 

67 

36.7334 

32.3518 

28.7330 

25.7209 

23.1940 

21.0581 

68 

36.9936 

32.5383 

28.8670 

25.8173 

23.2635 

21.1082 

69 

37.2486 

32.7203 

28.9971 

25.9104 

23.3303 

21.1562 

70 

37.4986 

32.8979 

29.1234 

26.0004 

23.3945 

21.2021 

71 

37.7437 

33.0711 

29.2460 

26.0873 

23.4563 

21.2460 

72 

37.9841 

33.2401 

29.3651 

26.1713 

23.5156 

21.2881 

73 

38.2197 

33.4050 

29.4807 

26.2525 

23.5727 

21.3283 

74 

38.4507 

33 . 5658 

29 . 5929 

26.3309 

23.6276 

21.3008 

75 

38.6771 

33.7227 

29.7018 

26.4067 

23.6804 

21.4036 

76 

38.8991 

33.8758 

29.8076 

26.4799 

23.7312 

21.4389 

77 

39.1168 

34.0252 

29.9103 

26.5506 

23.7800 

21.4726 

78 

39 . 3302 

34.1709 

30.0100 

26.6190 

23.8269 

21 .5049 

79 

39 . 5394 

34.3131 

30.1068 

26.6850 

23.8720 

21.5358 

80 

39.7445 

34.4518 

30.2008 

26.7488 

23.9154 

21.5653 

Yrs. 

1 
5  per  ct. 

6  per  ct. 

1 
7  per  ct. 

8  per  ct. 

9  per  ct. 

10  per  ct. 

1 

.9524 

.9434 

.9346 

.9259 

.9174 

.9091 

2 

1 . 8594 

1 . 8334 

1.8080 

1.7833 

1.7591 

1 . 7355 

3 

2.7232 

2.0730 

2.0243 

2.5771 

2.5313 

2 . 4869 

4 

3 . 5400 

3.4051 

3.3872 

3.3121 

3.2397 

3.1099 

5 

4.3295 

4.2124 

4.1002 

3.9927 

3.8897 

3 . 7908 

6 

5.0757 

4.9173 

4 . 7665 

4.6229 

4.4859 

4.3553 

7 

5.7864 

5.5824 

5 . 3893 

5.2064 

5 . 0330 

4 . 8084 

8 

6.4032 

6.2098 

5.9713 

5.7460 

5.5348 

5.3340 

9 

7.1078 

6.8017 

6.5152 

6 . 2409 

5.9952 

5.7590 

10 

7.7217 

7 . 3001 

7.0236 

6.7101 

6.4177 

6.1446 

11 

8 . 3064 

7 . 8869 

7.4987 

7.1390 

6 . 8052 

6.4951 

12 

8 . 8633 

8 . 3838 

7 . 9427 

7.5361 

7.1607 

6.8137 

§2144 


DOWER    AND    ANNUITY   TABLES 


1792 


Yrs. 

5  per  ct. 

6  per  ct. 

7  per  ct. 

8  per  ct. 

9  per  ct. 

10  per  ct. 

13 

9.3936 

8.8527 

8.3577 

7.9038 

1   7.4869 

7 . 1034 

14 

9.8986 

9.2950 

8.7455 

8 . 2442 

7 . 7862 

7.3667 

15 

10.3797 

9.7122 

9.1079 

8.5595 

8.0607 

7.6061 

16 

10.8378 

10.1059 

9.4466 

8.8514 

8.3126 

7.8237 

17 

11.2741 

10.4773 

9.7632 

9.1216 

8 . 5436 

8.0216 

18 

11.6896 

10.8276 

10.0591 

9.3719 

8.7556 

8.2014 

19 

12.0853 

11.1581 

10.3356 

9.6036 

8.9501 

8 . 3649 

20 

12.4622 

11.4699 

10.5940 

9.8181 

9.1285 

8.5136 

21 

12.8212 

11.7641 

10.8355 

10.0168 

9.2922 

8.6487 

22 

13.1630 

12.0416 

11.0612 

10.2007 

9.4424 

8.7715 

23 

13.4886 

12.3034 

11.2722 

10.3711 

9.5802 

8.8832 

24 

13.7986 

12.5504 

11.4693 

10.5288 

9.7066 

8.9847 

25 

14.0939 

12.7834 

11.6536 

10.6748 

9.8226 

9.0770 

26 

14.3752 

13.0032 

11.8258 

10.8100 

9.9290 

•  9.1609 

27 

14.6430 

13.2105 

11.9867 

10.9352 

10.0266 

9.2372 

28 

14.8981 

13.4062 

12.1371 

11.0511 

10.1161 

9 . 3066 

29 

15.1411 

13.5907 

12.2777 

11.1584 

10.1983 

9.3696 

30 

15.3725 

13.7648 

12.4090 

11.2578 

10.2737 

9 . 4269 

31 

15.5928 

13.9291 

12.5318 

11.3498 

10.3428 

9.4790 

32 

15.8027 

14.0840 

12.6466 

11.4350 

10.4062 

9 . 5264 

33 

16.0025 

14.2302 

12.7538 

11.5139 

10.4644 

9.5694 

34 

16.1929 

14.. 3681 

12.8540 

11.5869 

10.5178 

9.6086 

35 

16.3742 

14.4982 

12.9477 

11.6546 

10.5668 

9 . 6442 

36 

16.5469 

14.6210 

13.0352 

11.7172 

10.6118 

9.6765 

37 

16.7113 

14.7368 

13.1170 

11.7752 

10.6530 

9.7059 

38 

16.8679 

14.8460 

13.1935 

11.8289 

10.6908 

9.7327 

39 

17.0170 

14.9491 

13.2649 

11.8786 

10.7255 

9.7570 

40 

H.1591 

15.0463 

13.3317 

11.9246 

10.7574 

9.7791 

41 

17.2944 

15.1380 

13.3941 

11.9672 

10.7866 

9.7991 

42 

17.4232 

15.2245 

13.4524 

12.0067 

10.8134 

9.8174 

43 

17.5459 

15.3062 

13 . 5070 

12 . 0432 

10.8380 

9.8340 

44 

17.6628 

15.3832 

13.5.579 

12.0771 

10.8605 

9.8491 

45 

17.7741 

15.4558 

13.6055 

12.1084 

10.8812 

9.8628 

46 

17.8801 

15.5244 

13.6500 

12.1374 

10.9002 

9 . 8753 

47 

17.9810 

15.5890 

13.6916 

12.1643 

10.9176 

9.8866 

48 

18.0772 

15.6500 

13.7305 

12.1891 

10.9336 

9.8969 

49 

18.1687 

15.7076 

13.7668 

12.2122 

10.9482 

9.9063 

50 

18.2559 

15.7619 

13.8007 

12.2335 

10.9617 

9.9148 

51 

18.3390 

15.8131 

13.8325 

12.2532 

10.9740 

9 . 9226 

52 

18.4181 

15.8614 

13.8621 

12.2715 

10.9853 

9.9296 

53 

18.4934 

15.9070 

13.8898 

12.2884 

10.9957 

9 .  !>360 

54 

18.5651 

15.9500 

13.9157 

12.3041 

11.0053 

9.9418 

55 

18.6335 

15.9905 

13.9399 

12.3186 

11.0140 

9.9471 

56 

18.6985 

16.0288 

13.9626 

12.3320 

11.0220 

9.9519 

57 

18.8607 

16.0649 

13.9837 

12.3445 

11.0294 

9 . 9563 

58 

18.8195 

16.0990 

14.0035 

12.3560 

11.0361 

9.9603 

59 

18.8758 

16.1311 

14.0219 

12.3667 

11.0423 

9 . P639 

60 

18.9293 

16.1614 

14.0392 

12.3766 

11.0480 

9.9672 

1793 


PRESENT  VALUE  OF  STATED  SUM,  ETC. 


§2145 


Yrs. 

5  per  ct. 

6  per  ct. 

7  per  ct. 

8  per  ct. 

9  per  ct. 

10  per  ct. 

"61" 

18.9803 

16.1900 

14.0553 

12.3857 

11.0532 

9.9701 

62 

19.0288 

16.2170 

14.0704 

12.3942 

11.0580 

9.9729 

63 

19.0751 

16.2425 

14.0845 

12.4020 

11.0624 

9.9753 

64 

19.1191 

16.2665 

14.0976 

12.4093 

1 1 . 0664 

9.9776 

65 

19.1611 

10.2891 

14.1099 

12.4160 

11.0701 

9.9796 

66 

19.2010 

16.3105 

14.1214 

12.4222 

11.0735 

9.9815 

67 

19.2391 

16.3307 

14.1322 

12.4280 

11.0766 

9.9831 

68 

19.2753 

16.3497 

14 . 1422 

12.4333 

11.0794 

9.9S47 

69 

19.3098 

16.3676 

14.1516 

12.4382 

11.0820 

9.9861 

70 

19.3427 

16.3845 

14.1604 

12.4428 

11.0844 

9.9873 

71 

19.3740 

10.4005 

14.1686 

12.4471 

11.0866 

9.9885 

72 

19.4038 

16.4156 

14.1763 

12.4510 

11.0887 

9.9895 

73 

19.4322 

16.4298 

14.1834 

12.4546 

11.0905 

9.9905 

74 

19.4592 

16.4432 

14.1901 

12.4580 

1 1 . 0922 

9.9914 

75 

19.4850 

16.4558 

14.1964 

12.4611 

11.0938 

9.9921 

76 

19.5095 

16.4678 

14.2022 

12.4640 

11.0952 

9.9929 

77 

19.5329 

16.4790 

14.2077 

12.4666 

11.0965 

9.9935 

78 

19.5551 

16.4897 

14.2128 

12.4691 

11.0977 

9.9941 

79 

19.5763 

16.4997 

14.2175 

12.4714 

11.0988 

9 . 9946 

80 

19.1965 

16.5091 

14.2220 

12.4735 

11.0998 

9.9951 

§  2145.     Table  for  ascertaining  present  value  of  a  sum  certain 
due  and  payable  at  end  of  a  stated  number  of  years. 

In  the  administration  of  estates,  especially  in  the  termination 
of  a  trust,  it  becomes  important  to  ascertain  the  present  value 
of  an  amount  payable  at  the  end  of  a  certain  number  of  years. 
Thus  A.  may  by  will  or  deed  provide  that  B.  ten  years  after  his 
death  shall  be  paid  a  certain  sum  of  money.  If  no  limitations 
are  placed  upon  this  provision,  B.  and  other  interested  parties 
consenting,  this  trust  may  be  tenninated  and  B.  paid  his  legacy 
at  once.  If  the  sum  so  devised  to  A.  was  $5,000,  and  we  de- 
sired to  find  the  present  value,  by  looking  at  the  table  under  the 
six  per  cent,  column  we  would  find  the  present  value  of  one 
dollar  to  be  .5584,  and  $5,000  would  be  5,000  times  .5584, 
which  would  give  2.792  as  its  present  value.  The  interest  by 
this  table  is  based  upon  calculation  at  a  compound  rate,  and  is 
taken  from  a  calculation  made  by  the  Mutual  Life  Insurance 
Company  of  New  York.^* 


18  If  it  is  desired  to  find  the 
present  value  of  the  use  of  a  cer- 
tain sum  during  the  life  of  another, 


the  table  for  ascertaining  dower  is 
the  one  to  be  used.  Thus  if  B., 
being  thirty-five  years  of  age,   had 


^  2145 


DOWER    AND    AXXT'lTY    TABLES 


1794 


Yrs. 

1  3perct. 

.3 1/2  per  ct. 

4  per  ct. 

41/2  perct. 

5  per  ct. 

1 

6  per  ct. 

1 

.9709  " 

.9692 

.9651 

.9569 

.9524 

.9434 

2 

.  9426 

.9335 

.9246 

.9157 

.9070 

.8900 

3 

.9151 

.9019 

.8890 

.8763 

.8638 

.8396 

4 

.8885 

.8714 

.8548 

.8386 

.8227 

.7921 

5 

.8626 

.8420 

.8219 

.8025 

.7835 

.7473 

6 

.8375 

.8135 

.7903 

.7679 

.7462 

.7050 

7 

.8131 

.7860 

.7599 

.7348 

.7107 

.6651 

8 

.7894 

.7594 

.7307 

.  7032 

.6768 

.6274 

9 

.7664 

.7337 

.  7026 

.6729 

.6446 

.5919 

10 

.7441 

.7089 

.6756 

.6439 

.6139 

.5584 

11 

.7224 

.6849 

.6496 

.6162 

.5847 

.5268 

12 

.7014 

.6618 

.6246 

.5897 

.5568 

.4970 

13 

.6810 

.6394 

.6006 

.  5643 

.5303 

.4688 

14 

.6611 

.6178 

.5775 

.5400 

.5051 

.4423 

15 

.6419 

.  5969 

.  5553 

.5167 

.4810 

.4173 

16 

.6232 

.5767 

.5339 

.4945 

.4581 

.3936 

17 

.6050 

.5572 

.5134 

.4732 

.4363 

.3714 

18 

.5874 

.5384 

.4936 

.4528 

.4155 

.3503 

19 

.5703 

.5202 

.4746 

.4333 

.3957 

.  3305 

20 

.5537 

.5026 

.4564 

.4146 

.3769 

.3118 

21 

.5375 

.4856 

.4388 

.  3968 

.3589 

.2942 

22 

.5219 

.4692 

.4220 

.3797 

.3419 

.2775 

23 

.5067 

.4533 

.4057 

.3634 

.3256 

.2618 

24 

.4919 

.4380 

.  3901 

.3477 

.3101 

.2470 

25 

.4776 

.4231 

.3751 

.3327 

.2953 

.2330 

26 

.4637 

.4088 

.3607 

.3184 

.2812 

.2198 

27 

.4502 

.3950 

.3468 

.3047 

.2678 

.2074 

28 

.4371 

.3817 

.3335 

.2916 

.2551 

.1956 

29 

.4243 

.  3687 

.3206 

.2790 

.2429 

.1846 

30 

.4120 

.  3563 

.  3083 

.2670 

.2314 

.1741 

31 

.4000 

.3442 

.2965 

2555 

.2204 

.1643 

32 

.3883 

.3326 

.2851 

.2445 

.2099 

.1550 

33 

.3770 

.3213 

.2741 

.  2340 

.1999 

.1462 

34 

.3660 

.3105 

.2636 

.2239 

.1904 

.1379 

35 

.3554 

.  3000 

.2534 

.2143 

.1813 

.1301 

36 

.3450 

.2898 

.2437 

.2050 

.1727 

.1227 

37 

.3350 

.2800 

.2343 

.1962 

.1644 

.1158 

38 

.3252 

.2706 

.2253 

.1878 

.1566 

.1092 

39 

.3158 

.2614 

.2166 

.1797 

.1491 

.1031 

40 

.  3066 

.  2526 

.2083 

.1719 

.1420  1 

.0972 

the  use  or  was  entitled  to  the  in- 
come of  five  thousand  dollars  dur- 
ing his  life,  the  present  value  would 
be  found  by  calculating  the  inter- 
est on  five  thousand  dollars  for  one 
year  at  six  per  cent,  (if  that  rate  is 
the  one  to  be  used),  which  would 
be  three  hundred  dollars,  and  then 
multiply    three   hundred   dollars    by 


(Carlisle  table)  12.5731,  the 
amount  in  the  six  per  cent,  column 
opposite  thirty-five  years,  we  would 
have  $3,671.93  as  its  present  value. 
If  present  value  of  an  annuity  cer- 
tain is  desired  the  table  in  the 
previous  section  is  the  one  to  be 
used. 


1795 


PRESENT  VALUE  OF  STATED  SUM,  ETC. 


^2145 


Yrs. 

Sperct.  3V 

i  per  ct.  4 

1 

per  ct. 

41/2  per  ct. 

5  per  ct. 

6  per  ct. 

41 

.2976 

2440 

2003 

.1645 

.1353 

.0917 

42 

.2800 

2358 

1926 

.1574 

.1288 

.0865 

43 

.2805 

2278 

1852 

.1507 

.1227 

.0816 

44 

.2724 

2-201 

1780 

.1442 

.1169 

.0770 

45 

.2644 

2127 

1712 

.1380 

.ni3 

.0727 

46 

.2567 

2055 

1646 

.1320 

.1060 

.0685 

47 

.2493 

1985 

1583 

.1263 

.1009 

.0647 

48 

.2420 

1918 

1522 

.1209 

.0961 

.0610 

49 

.2350 

1853 

1463 

.1157 

.0916 

.0575 

50 

.2281 

1791  1 

1407 

.1107 

.087-2 

.0543 

JUVENILE   COURT 


1796 


CHAPTER  CIX. 


JUVENILE  COURT. 


§  2147     Nature  of  court.  §  2181 

§  2148     Historical.  §  2182 

§  2149     Object  and  purpose. 

§2150     Judjie   of   court.  §218.3 

§  2151     What    courts    have   jurisdic- 
tion   (§1639).  §2184 

§  2152     Designation  of  judge. 

§2153     Juvenile        Court        defined       §2185 
(§1639-1). 

§2154     Seal    of    court— what    court       §2186 
(§1640).  §2187 

§  2155     Appearance       docket       and       §  2188 
journal     (§1641).  §2189 

§  2156     Jurisdiction  of  subject  mat- 
ter   (§  1642).  §2190 

§  2157     Jurisdiction,   comments.  §  2191 

§  2158     Continuing   jurisdiction. 

§  2159     When      jurisdiction      termi-       §  2192 
nates    (§  1643).        .,  §2193 

§  2160     Delinquent       child       defined 

(§1644).  §2194 

§  2161     Wlio  is  delinquent   child. 

§  2162     Dependent       child       defined       §  2195 
(§  1645). 

§2163     Who   is   dependent   child.  §2196 

§  2164     Proper     parental     care     de- 
fined   (§1646).  §2197 

§  2165     What  is  not  proper  parental       §  2198 
care.  §  2199 

§  2166     Who     mav     file     complaint 

(§1647).'  §2200 

§  2167     Procedure.         Filing       com- 
plaint, etc.  §2201 

§  2168     Form    complaint,    child. 

§  2169     Citation,       Warrants,       etc.       §  2202 
(§1648).  §  2202a 

§  2170     Citation    or    Warrant.  §  2202b 

§  2171     Journal     entry,     entry     for 

hearing,  etc.  §  2203 

§  2172     Form   citation    to   child   and 

custodian.  §  2204 

§  2173     Form   notice   to   parents. 

§  2174     Service     of     citation,      etc.,       §  2205 
personally. 

§  2175     Sennce   of   notice   by   publi-       §  2206 
cation. 

§2176     Form   of   affidavit   for.  §2207 

§  2177     Journal     entry,     order     for       §  2208 
publication. 

§2178     Form    of    notice    for    publi-       §2209 
cation  and  for  sending  by       §  2210 
mail,    when    parent,    etc., 
are   out   of   state   or   resi-       §2211 
dence    unknown. 

§  2179     Form     Warrant     to     arrest       §  2212 
minors. 

§  2180     Form  complaint  delinquency. 


Warrants  to  arrest,  etc. 

Journal  entry  order  for 
warrant   to   arrest. 

Form  warrant  to  arrest  on 
complaint. 

Provisions  to  avoid  incar- 
ceration. 

Special  juvenile  court  room 
(§1649). 

Hearing    (§1650). 

Trial  of  juvenile. 

Trial  of  adult. 

Jury  trial;  costs,  etc. 
(§^1651). 

Right  to  jury  trial. 

Commitment  of  child 
(§1652). 

Commitment  of  minors,  etc. 

Examination  of  physicians 
(§  16.52-1). 

Commitment  to  institution 
or  suitable   person. 

Commitment  of  dependent 
or  neglected  child  (§  16.53). 

Journal  entry — placing  child, 
etc. 

.Journal   entry. 

Age  limitations. 

Penalty  for  abuse  or  aiding 
delinquency    (§1654). 

Commitment  for  causing  de- 
linquency. 

.Journal  entry — plea  of 
guilty. 

.Journal   entry — judgment. 

Entry — verdict. 

Entry — judgment.     Trial  by 

■  jury. 

Failure  or  neglect,  etc. 
(§  1655). 

Form  complaint.  Abandon- 
ment. 

Commitment  for  non-sup- 
port. 

Journal  entry — non-support, 
etc. 

Form  bond  to  support. 

Sentenced  to  jail  or  work- 
house. 

.lournal   entry — workhouse. 

Provisions  in  case  of  work- 
house  sentence    (§  1656). 

Commitment  to  county  jail, 
etc.    (§  1657). 

Citation,  etc.,  on  hearing 
(§  1658). 


1797 


NATURE   OF 


2147 


§  2213     Journal   entry   for   arrest.  §  2233 

§  2214     Form  warrant  to  arrest. 

§  2215     Transfer  of  ease  to  .Juvenile       §  2234 
Court    (§1659). 

§  2216     Child    arrested    on    warrant       §  2235 
from  .Justice  of  the  Peace 
or    Police    Court,    etc. 

§  2217     Writs       to      whom      issued       §  2236 
(§1660). 

§  2218     Expense— how  paid  ( §  1661 ) .       §  2237 

§  2219     Probation      officer — appoint- 
ment    (§1662).  §2238 

§  2220     Appointment — probation  offi- 
cer. §  2239 

§  2221     Form     appointment — proba- 
tion  officer.  §  2240 

§2222     Form    oaths.  §2241 

§  2223     Duties  and  powers  of  proba- 
tion officer   (§  1663).  §2242 

§  2224     Prosecuting  attorneys,  duty 

(§1664).  §2243 

§2225     Bail    (§  1665). 

§  2226     Suspension    of    sentence       §  2244 
(§1666). 

§2227     Forfeit  of  bond   (§  1667).  §2245 

§2228     Error    proceedings     (§1668).       §2246 

§  2229     Appeal    and    error.  §  2247 

§  2230     Findings,     not     lawful     evi- 
dence   (§1669).  §2248 

§2231     Detention   home    (§1670). 

§2232     Expense  of  home    (§1671).        §2249 


When  child's  commitment 
is  temporary    (§  1672). 

Commitment  temporary  or 
permanent. 

Agreement  with  incorpo- 
rated institution  for  care 
of   child    (§  1673). 

Agents  of  institution 
(§1674). 

Judge  to  require  report 
(§1675). 

Association  in  other  states 
(§1677). 

Penalty  for  violation,  etc. 
(§1678). 

Religious    belief    (§1679). 

How  construed  as  to  indus- 
trial  schools    (§  16S0). 

When  child  charged  with 
felony     (§1681). 

Binding  over  to  Court  of 
Common    Pleas. 

Journal  entry — binding  to 
coirrt. 

Form  recognizance. 

Fees  and  costs,  how  paid. 

Chapter  liberally  construed 
(§1683). 

Jurisdiction  additional 
(§1683-1). 

Misdemeanors  against  chil- 
dren. 


§  2147.    Nature  of. 

The  Juvenile  Court  as  it  exists  in  Ohio  can  hardly  be  said  to 
be  a  separate  and  independent  court  but  rather  a  mere  adjunct 
of  the  court  of  which  the  judge  designated  to  be  judge  of  the 
Juvenile  Court,  is  a  member.  The  jurisdiction  of  the  Juvenile 
Court  is  not  that  however  which  belongs  to  the  court  of  which 
the  judge  is  a  member,  but  that  which  is  conferred  on  the 
Juvenile  Court.  All  the  writs  are  issued  in  the  name  of  the 
court  of  which  the  judge  of  the  Juvenile  Court  is  a  judge.  Thus 
if  he  is  selected  from  the  Common  Pleas  Court,  they  would  be 
issued  in  the  name  of  this  court ;  if  from  the  Probate  Court,  in 
the  name  of  that  court.  It  would  be  well,  however,  in  all  such 
cases,  to  have  added  in  addition  the  words  "Juvenile  Court 
Division." 

The  records  are  kept  separately  and  all  matters  are  concluded 
the  same  as  if  the  court  wa.s  absolutely  a  separate  and  inde- 
pendent court.  "The  provisions  of  this  humane  law,"  says 
the  Illinois  court,  "are  not  new  in  principle;  the  novelty  is  in 
•  the  procedure  only.    The  State  has  always  retained  the  ultimate 


§  2148  JUVENILE  COUET  1798 

control  of  minors.  The  right  and  duty  of  the  parent  primarily 
to  care  for  and  bring  up  the  child,  is  not  exclusive  or  final.  In 
case  the  child  is  abandoned  or  neglected,  or  what  is  worse,  its 
home  is  unfit  for  the  child,  the  State  has  the  right  and  it  is  its 
duty  to  take  the  child  from  the  parents  in  order  that  it  may 
have  the  chance  to  grow  up  into  a  law  abiding  citizen.  With- 
out the  enabling  statutes,  this  right  in  England  and  in  this 
country,  is  invested  in  Courts  of  Chancery."^  Construing  our 
statute  it  has  been  said  it  "is  not  penal,  delinquency  not  being 
a  crime,  but  is  an  administrative  police  regulation  of  a  corrective 
character."'  While  our  statute  punishes  the  person  contrib- 
uting to  the  child's  misfortune  and  thus  to  such  person  becomes 
penal  in  its  nature,  yet  the  ultimate  object  is  the  welfare  of 
the  child. 

§  2148.     Historical. 

It  is  generally  recognized  that  the  first  Juvenile  Court  in  this 
country  was  organized  in  Chicago,  Illinois,  in  1899.  The  act 
providing  for  this  court  bears  some  similarity  as  to  organization 
of  the  court,  to  that  of  Ohio,  in  that  it  provided  that  the  judge 
to  preside  therein  should  be  taken  from  another  court  and 
should  be  designated  as  the  Juvenile  Court.^  There  were,  how- 
ever, previous  to  this  time  in  some  of  the  States,  courts  some- 
what similar  in  character.  Thus  Massachusetts  in  1883  passed 
a  law  providing  for  children's  courts  for  separate  hearing  of 
children's  eases.  New  York  followed  in  1892.  providing  in  its 
penal  code  that  children's  cases  should  be  heard  separate  and 
apart  from  adults.  In  far  away  Australia,  South  Adelaide, 
December  20,  1895,  a  juvenile  or  children's  court  was  established. 

While  the  idea  therefore  was  not  a  new  one,  which  the  Chicago 
law  established,  the  satisfactory  workings  of  that  court  under 
the  able  judge  who  was  designated  to  preside  in  the  court,  gave 
great  impetus  to  the  movement  for  such  courts. 

Judge  Lindsey's  work  in  Denver,  Colorado,  did  very  much  to 
awaken  the  people  to  the  beneficial  infiuence  that  might  be 
expected  from  courts  of  this  character.  At  this  time  such  a 
court  exists  in  a  great  majority  of  the  states  of  our  commonr 
wealth,  and  in  the  leading  foreign  nations  of  the  world. 

In  Ohio  the  first  law  was  passed  in  1902  (95  v.  785),  and 
applied  alone  to  Cuyahoga  County,  and  conferred  jurisdiction 

i  In  re  Brown,  117  111.  App.  335.  ^  In    re    Januszewski,    196    Fed. 

123;  10  0.  L.  R.  151. 


1799  OBJECT  AND  PURPOSE  §  2149 

on  the  Insolvency  Court,  and  for  convenience,  provided  it  might 
be  the  ** Juvenile  Court,"  This  act  was  amended  in  lSO-4  (97 
v.  561),  providing  that  Courts  of  Common  Pleas,  Probate  Courts, 
Insolvency  Courts  and  Superior  Courts  might  have  concurrent 
jurisdiction,  and  should  designate  one  of  their  number  as  judge, 
etc.  This  act  was  again  amended  in  1908  (99  v,  192)  ;  in  1913 
(103  V.  864)  ;  in  1914  (104  v.  176)  ;  in  1919  (108  v.  260)  and 
in  1920  (108  V.  1130). 


§2149.    Object  and  purpose. 

The  object  and  purpose  of  the  Juvenile  Court  in  being  a 
separate  body  from  the  ordinary  criminal  court  is  to  keep  youth- 
ful offenders  away  from  the  environments  of  such  courts  and 
the  criminals  who  congregate  there.  Its  object  and  purpose  is 
correctional  and  educational.  It  is  not  punishment  except  as 
the  same  may  follow  attendant  to  the  betterment  of  the  minor 
offenders.  The  child  is  not  regarded  as  a  prisoner,  but  merely 
one  retained  until,  the  great  father,  the  State,  through  the 
court  may  determine  what  should  be  done  for  his  best  welfare. 
The  statute  is  intended  to  be  educational  and  charitable ;  thereby 
the  State  reaches  out  and  takes  hold  of  those  who  are  bereft 
of  that  parental  care  to  which  they  are  by  nature  entitled.* 
"In  a  general  way,"  says  a  Kansas  court,  "it  may  be  said  that 
the  statutes  instead  of  attempting  to  punish  juvenile  offenders 
for  misconduct,  criminal  or  otherwise,  try  to  remove  them  from 
the  path  of  temptation,  and  by  preventive  and  corrective  means 
seek  to  direct  them  in  tlie  paths  of  rectitude.  It  is  an  assertion 
on  the  part  of  the  State  of  the  right  to  exercise  its  power  as 
parens  patria  for  the  welfare  of  such  of  its  minor  citizens  as 
are  deprived  of  proper  parental  control  and  oversight  and  are 
disposed  to  go  wrong.  "^ 

In  another  jurisdiction  it  was  said,  "such  laws  are  most 
salutary,  and  are  in  no  sense  criminal  and  not  intended  as 
punishment,  but  are  calculated  to  save  the  child  from  becoming 
a  criminal.  The  whole  and  only  object  of  such  laws  is  to  pro- 
vide the  child  with  an  environment  such  as  will  save  him  to 
the  State  and  society  as  a  useful  and  law  abiding  citizen  and 

3  §  .3388  111.  Stats.  ^  In  re  Turner,  94  Kans.  115;   145 

i  L'x  parte  Small,  IIG  Tac.  118.  Pac  87U. 


§  2150  JUVENILE  COURT  1800 

give  him  the  educational  requirements  necessary  to  attain  that 
end.     To  effect  this  purpose  some  restraint  is  essentiah ' '  ^ 

"The  purpose  of  this  statute  is  to  extend  a  protecting  hand 
to  unfortunate  boys  and  girls  who  by  reason  of  their  own 
conduct,  evil  tendencies  or  improper  environments,  have  proven 
that  the  best  interests  of  society,  the  welfare  of  the  State  and 
their  own  good,  demand  that  the  guardianship  of  the  State  be 
substituted  for  the  natural  parents.  To  accomplish  that  purpose 
the  statute  should  be  given  a  broad  and  liberal  construction, 
but  it  should  not  be  held  to  extend  to  cases  where  there  is 
merely  a  difference  of  opinion  as  to  the  best  course  to  pursue 
in  rearing  a  child.  There  should  be  evidence  of  neglect,  aban- 
donment, incapacity,  or  cruelty  on  the  part  of  the  parent,  or 
that  the  child  is  being  exposed  to  immorality  or  vice."' 

*  *  I  wish  to  call  your  attention  to  one  thing,  which  seems  to  me 
to  be  a  grand  feature  of  this  juvenile  law.  It  is  a  wonderful 
law,  gentlemen  of  the  jury.  It  contemplates  wonderful  results, 
and  I  am  glad  to  say  that  it  has  accomplished  good.  The  ordi- 
nary way  of  the  world  is  that,  when  a  man  falls,  or  when  a 
woman  falls,  to  let  them  go,  and  if  anything,  give  them  a  little 
push  down  to  hell,  a  little  kick  to  the  infernal  regions.  The 
juvenile  law  says:  No.  It  says  that  the  boy  or  girl,  no  matter 
how  delinquent,  is  worth  saving ;  has  a  soul  of  commercial  value, 
beyond  all  estimation;  because  we  are  told:  'What  shall  it 
profit  a  man  if  he  shall  gain  the  whole  world,  and  lose  his  own 
souir 

"So  that  this  juvenile  law  comes  to  every  fallen  or  delinquent 
juvenile,  and  to  every  bad  boy  and  girl,  and  says:  'You  are 
worth  saving;  you  are  worth  the  protection  of  the  law,  and  are 
worth  saving;  no  matter  whether  you  are  already  guilty,  and 
stained  with  guilt  through  and  through ;  if  any  man  or  woman 
still  further  offends  and  further  contributes  to  your  delinquency, 
and  still  further  drags  you  down  towards  perdition,  he,  or  she, 
shall  be  held  amenable  to  the  law.' 

"Now,  that  is  the  theory  of  the  juvenile  law."^ 

§  2150.    Judge  of  the  court. 
In  order  to  best  administer  the  Juvenile  Coart  the  judge 
should  possess  some  very  high  moral  and  social  characteristics. 
Someone  in  speaking  of  the  qualifiation  necessary  for  ideal 

6  Mill  vs.  Brown,  31  Utah  473;  s  j.  Brister  in  State  vs.  Hawkins, 
86  Pac.  609.                                                  51  Bull.  166. 

7  Lindsay    vs.    Lindsay,    257    111. 
328;  45  L.'  R.  A.  908, 


1801  WHAT  COURTS  HAVING  POWER  §  2151 

Juvenile  Court  work,  said  ''that  the  judge  should  have  the 
magnetism  of  Moses ;  the  patience  of  Job ;  the  firmness  of  Abra- 
ham; the  wisdom  of  Solomon  and  the  unselfishness  and  love  of 
our  Lord  and  Master."  In  addition  it  might  be  said  he  should 
be  of  high  moral  character  and  very  exemplary  habits.  The 
infant  mind  is  very  much  impressed  by  what  its  bright  eyes 
see,  and  its  sharp  ears  hear,  and  the  judge  may  rest  assured 
these  eyes  and  ears  are  always  open,  looking  for  what  they  may 
see  and  listening  for  what  they  may  hear.  If  the  child  learns 
that  the  judge  preaches  and  teaches  that  which  he  does  not 
practice,  his  influence  is  gone,  and  with  that  particular  child 
he  has  lost  the  mission  the  law  placed  in  his  hands. 

§2151.      What    courts    having    powers    and    jurisdiction. 

§  1639.  Courts  of  common  pleas,  probate  courts,  and  insolvency 
courts  and  superior  courts,  where  established  shall  have  and 
exercise,  concurrently,  the  powers  and  jurisdiction  conferred  in 
this  chapter.  The  judges  of  such  courts  in  each  county,  at  such 
times  as  they  determine,  shall  designate  one  of  their  number 
to  transact  the  business  arising  under  such  jurisdiction.  When 
the  term  of  the  judge  so  designated  expires,  or  his  office  termi- 
nates, another  designation  shall  be  made  in  like  manner. 

Procedure  in  absence  of  judge.  In  case  of  the  temporary 
absence  or  disability  of  the  judge  so  designated  another  designa- 
tion shall  be  made  in  like  manner  to  cover  the  period  of  such 
absence  or  disability. 

Definitions.  The  words,  juvenile  court  when  used  in  the 
statutes  of  Ohio  shall  be  understood  as  meaning  the  court  in 
which  the  judge  so  designated  may  be  sitting  while  exercising 
such  jurisdiction,  and  the  words  "judge  of  the  juvenile  court" 
or  "juvenile  judge"  as  meaning  such  judge  while  exercising 
such  jurisdiction. 

Jurisdiction  in  Hamilton  county.  The  foregoing  provisions 
shall  not  apply  to  Hamilton  county,  in  which  county  the  powers 
and  jurisdiction  conferred  in  this  chapter  shall  be  exercised 
by  the  court  of  common  pleas,  and  in  1914  and  every  sixth  year 
thereafter,  one  of  the  common  pleas  judges  to  be  elected  at 
said  times  shall  be  elected  as  a  judge  of  the  court  of  common 
pleas,  division  of  domestic  relations.  To  him  shall  be  assigned 
all  juvenile  court  work  arising  under  this  chapter,  and  all 
divorce  and  alimony  cases,  and  whenever  said  judge  of  the  court 
of  common  pleas,  division  of  domestic  relations,  shall  be  sick, 
absent  or  unable  to  perform  his  duties,  the  presiding  judge  of 
the  common  pleas  court  shall  assign  another  common  pleas  judge 
to  perform  his  duties  during  his  illness,  absence  or  indisposition. 
[99  v.  192,  §  1;  103  v.  864  (868)  j  104  v.  176;  108  v.  1130.] 


§  2152  JUVENILE  COURT  1802 

§2152.    Designation  of  judge. 

The  designation  of  the  judge  determines  the  court  that  shall 
have  jurisdiction  in  juvenile  cases.  If  he  be  from  the  Common 
Pleas,  then  that  court  has  jurisdiction;  if  from  the  Probate 
Court,  then  that  court  has  jurisdiction.  This  law  permitting, 
or  rather  requiring  the  judges  of  the  various  courts  to  select 
one  of  their  number  to  act  as  juvenile  judge,  is  within  the  power 
of  the  legislature  and  does  not  conflict  with  the  constitution 
of  our  State.^ 

"The  act  in  question  authorizes  the  judges  of  the  several 
courts  of  equal  original  jurisdiction  to  designate  the  one  that 
shall  hear  and  dispose  of  the  business  in  which  each  is  given 
equal  original  authority.  Jurisdiction  consists  of  the  power 
to  hear  and  determine.  The  source  of  this  power  resides  in  the 
legislature.  In  this  act  it  is  conferred  upon  the  several  courts 
named  by  that  authority,  and  the  mere  selection  of  one  to  dis- 
pose of  the  business  by  the  several  judges  is  not  conferring 
jurisdiction.  For,  without  such  designation,  either  of  the  courts 
named  could  entertain  jurisdiction  of  the  matter  specified  in 
the  act ;  whilst  if  the  autliority  was  conferred  upon  the  judges, 
neither  of  said  courts  could  exercise  the  power  to  hear  and 
determine  unless  authorized  by  the  judges  before  hand. 

"The  court  first  acquiring  jurisdiction  would  hold  it  until 
the  action  was  finally  dispo.sed  of. 

"The  constitutionality  of  the  act  was  challenged  in  the  case 
of  Giltman  vs.  State,  before  this  court  in  Clark  County.  We 
were  then  of  the  opinion  that  the  act  did  not  contravene  any 
of  the  provisions  of  that  instrument.  A  re-examination  of  the 
act  does  not  convince  us  that  our  opinion  in  the  Giltman  case 
was  wrong;  and  it  is,  therefore,  adhered  to  here."^° 

When  there  is  a  vacancy  in  the  position  of  judge  of  the 
Juvenile  Court,  then  it  is  the  duty  of  the  judges  of  the  Courts 
of  Common  Pleas,  Probate  Court  and  (where  established)  the 
Insolvency  Court  and  Superior  Court,  to  meet  and  select  one 
of  their  number  to  act  as  judge  of  the  Juvenile  Court.  In  doing 
so  they  may  fix  the  length  of  time  he  should  serve ;  not  to  exceed 
the  time  for  which  he  is  elected.  If  no  time  is  fixed  I  assume  he 
will  serve  until  the  expiration  of  his  term.  In  a  number  of 
counties  there  is  one  common  pleas  judge  and  one  probate  judge. 
If  they  could  not  agree  on  which  one  should  act,  some  difficulty 

9  Travis  vs.  State,   31   C.  C.  4n2 :  lO  See   Mill    vs.    Brown,    31    Utah 

12  C.  C.   (N.S.)  374;  affirmed  no  op.       47.3:  88  Pac.  fiOfl :  ^Slarlowe  vs.  Com., 
82  O.  S.  — .  142  Ky.   106;   133  S.  W.  1137. 


1803  "juvenile  court"  DEFINED  §2153 

miglit  be  experienced  in  the  matter  of  who  should  act  as  such 
judge/^ 

If  the  person  designated  as  judge  of  the  Juvenile  Court  is 
temporarily  absent  or  suffering  disability,  another  judge  within 
the  selected  class  is  to  be  designated  to  act  during  such  absence 
or  disability.  Whenever  a  designation  is  made  an  entry  should 
be  put  upon  the  records  of  the  Juvenile  Court  showing  such 
fact.  In  all  the  counties  of  Ohio  as  I  am  now  informed,  in  but 
five  the  judge  of  the  Probate  Court  acts  as  juvenile  judge/^ 

In  three  other  counties  the  Common  Pleas  Court  and  Probate 
Court  are  combined,  and  there  as  a  matter  of  course  the  judge 
of  such  courts  would  also  be  judge  of  the  Juvenile  Court,  and 
while  he  might  act  as  juvenile  judge  under  either  his  common 
pleas  or  probate  jurisdiction,  I  think  it  preferable  that  he  act 
under  his  common  pleas  jurisdiction.  In  order  to  determine 
this  matter  it  would  be  advisable  to  place  an  entry  on  the 
records  of  the  Juvenile   Court,  settling  it  beyond  question.^^ 


§2153.  "Juvenile  Court"  defined.  (§1639-1.)  §2.  The 
term  "juvenile  court"  as  used  in  this  act  [G.  C.  §§  1648,  1672, 
and  3093]  shall  be  construed  as  applying  to  such  courts  as 
are  created  by  section  1639  and  all  other  courts  now  or  hereafter 
created  to  administer  the  provisions  of  law  relating  to  dependent, 
delinquent  and  neglected  children.  [108  v.  Pt.  I  260  (262), 
§2.]- 

§  2154.  Seal.  §  1640.  The  seal  of  the  court,  the  judge  of 
which  is  designated  to  transact  such  business,  shall  be  attached 
to  aU  writs  and  processes.     [99  v.  192,  §  2.]^^ 

§  2155.  Appearance  docket  and  journal.  §  1641.  The  clerk 
of  the  court  of  the  judge  exercising  the  jurisdiction  shall  keep 
an  appearance  docket  and  a  journal,  in  the  former  of  which 
shall  be  entered  the  style  of  the  case  and  a  minute  of  each 

11  It  might  be  well  to  have  some  i*  §  3093    refers    to    county    ehil- 
legislation  on  this   matter,   permit-  dren's   homes,   and   makes   that  ap- 
ting   the   Chief   Justice   of   the   Su-  ply  to  the  provisions  of  §  1072. 
preme  Court  to  determine  the  ques-  is  This  means  that  when  a  judge 
tion  in  such  cases.  of  the   Court   of   Common   Plras   is 

12  These  five  are  Hamilton,  designated  to  act  as  Juvenile  Judge, 
Preble,  Drake,  Warren,  Clark  and  then  the  writs  are  issuod  under  the 
now  Montgomery.  name  of  that  court.     If  a  judge  of 

13  These  three" counties  are  Adams,  the  Probate  Court,  then  under  that 
Henry  and  Wyandotte.  name. 


§  2156  JUVENILE  COURT  1804 

proceeding  and  in   the   latter   of  which   shall   be    entered   all 
orders,  judgments  and  findings  of  the  court.     [99  v.  192,  §  3.]^^ 

§  2156.  Jurisdiction  statute.  §  16'42.  Such  courts  of  com- 
mon pleas,  probate  courts,  insolvency  courts  and  superior  courts 
within  the  provisions  of  this  chapter  shall  have  jurisdiction 
over  and  with  respect  to  delinquent,  neglected  and  dependent 
minors,  under  the  age  of  eighteen  years,  not  inmates  of  a  state 
institution,  or  any  institution  incorporated  under  the  laws  of 
the  state  for  the  care  and  correction  of  delinquent,  neglected 
and  dependent  children,  and  their  parents,  guardians,  or  any 
person,  persons,  corporation  or  agent  of  a  corporation,  re- 
sponsible for,  or  guilty  of  causing,  encouraging,  aiding,  abet- 
ting or  contributing  toward  the  delinquency,  neglect  or  de- 
pendency of  such  minor,  and  such  courts  shall  have  jurisdic- 
tion to  hear  and  determine  any  charge  or  prosecution  against 
any  person,  persons,  corporations,  or  their  agents,  for  the  com- 
mission of  any  misdemeanor  involving  the  care,  protection,  edu- 
cation or  comfort  of  any  such  minor  under  the  age  of  eighteen 
years.     [99  v.  192,  §  4;  103  v.  864  (868).]" 

§2157.    Jurisdiction  of  court. 

This  section  gives  equal  and  concurrent  jurisdiction  to  the 
Courts  of  Common  Pleas,  Insolvency,  Superior  and  Probate,  in 
the  matters  coming  within  the  province  of  the  Juvenile  Court; 
and  therefore  the  court  first  exercising  the  jurisdiction  would 
have  jurisdiction  to  the  exclusion  of  all  others;  and  the  judges 
of  the  various  courts  having  designated  the  judge  to  act  as  such 
juvenile  judge,  the  judges  of  such  other  courts  would  not  have 
jurisdiction  in  matters  conferred  on  the  judge  of  the  Juvenile 
Court,  and  it  has  therefore  been  held  that  the  Juvenile  Court 
has  exclusive  jurisdiction  over  minors  who  are  under  eighteen 
years  of  age,  not  inmates  of  a  state  institution,  etc.,  and  charged 
with  some  misdemeanor.^* 

The  court  has  no  jurisdiction  other  than  that  conferred  by 
statute,  and  the  jurisdiction  conferred  is,  first,  over  minors 
under  eighteen  years  of  age  who  are  either  delinquent,  neglected 
or  dependent,  who  are  not  inmates  of  some  institution,  etc. ; 
second,  over  the  person  who  causes  such  delinquency.     This 

16  Under  the  above  section  it  is  17  See     §  1683-1     for     additional 

intended    that    the    records    of    the  jurisdiction  conferred,  §  2248, 
Juvenile  Court  are  to  be  kept  sepa-  is  State  vs.  Forest  Joiner,  20  N. 

rate  from  the  records  of  the  court  P.   (N.S.)   313. 

of  which  the  designated  judge  has  The    statute    now    wives    to    the 

been  selected.     It  does  not  seem  to  .Juvenile  Court  .jurisdiction  in  cases 

provide   for   a   final    record,   but   it  of  truancy.    §  7774  G.  C.  [109  V. — ]. 
seems  such  should  be  made. 


1805  CONTINUING    JURISDICTION  §  2158 

latter  class  includes  parents,  guardians  or  any  person,  persons, 
or  corporation,  or  agent  of  corporation  responsible  for,  or  guilty 
of  causing,  encouraging,  aiding,  abetting  or  contributing  to  the. 
neglect,  delinquency  or  dependency  of  such  minor.  What  con- 
stitutes a  dependent  or  delinquent  child  is  defined  by  future 
sections.^^ 

It  has  been  held  that  Probate  Courts  or  Juvenile  Courts  are 
courts  of  record,  and  their  jurisdiction  being  attached,  it  is 
exclusive,  and  can  not  be  assailed  by  any  other  court  in  an 
independent  proceeding.-" 

In  addition  to  the  offenses  heretofore  mentioned,  a  subsequent 
section  '^  gives  jurisdiction  of  all  misdemeanors  against  minors 
and  offenses  therein  prescribed.^^ 

§  2158.    Continuing  jurisdiction. 

"When  the  court  once  comes  into  custody  of  a  child  under 
eighteen  years  of  age  then  for  the  discipline  and  protection  of 
that  person,  it  remains  a  ward  of  the  court  until  it  is  twenty-one 
years  old;  the  exception  is  when  the  child  is  placed  in  the  per- 
manent care  of  the  Ohio  Board  of  Administration,  etc.,  with 
permission  and  power  to  place  the  child  in  a  home  with  probabil- 
ity of  adoption;  then  the  jurisdiction  ceases  at  the  time  of 
commitment 

If  the  child  is  once  under  the  jurisdiction  of  the  Juvenile 
Court,  then  no  other  court  can  acquire  jurisdiction,-^  and  if 
the  child  is  under  the  jurisdiction  of  some  other  court  the 
Juvenile  Court  can  acquire  no  jurisdiction.-* 

Thus  when  in  a  divorce  proceedings  the  child  was  awarded 
to  the  mother,  afterwards  proceedings  was  brought  in  the  Juve- 
nile Court  on  the  ground  that  the  child  did  not  have  proper 
care,  etc.,  and  was  adjudged  by  the  Juvenile  Court  to  be  such 

19  Dependent,  §  1645,  G.  C.  §2162.  S  12674  G.  C.  Selling  poisons,  etc. 
Delinquent,  §  1644,  G.  C.  §  2160.  §  12787  G.  C.  Failure  to  report 
Proper  parental  care,  §  1646,  G.  C.  with  diseased  eyes.  §  13031  G.  C. 
§  2164.  Keeping  liouse  of  ill  fame.    §  13035 

20  Cliildren's  Home  vs.  Felter,  90  G.  C.  iSelling  obscene  literature. 
O.   S.  110.  §  1303S   G.   C.     Delivering   immoral 

21  §  1683  G.  C,  §2248.  literature. 

22  §  928  G.  C.  No  ofTense  seems  23  Cliildren's  Home  vs.  Felter,  90 
to  be  charged  in  this  section.    §  6344  O.  S.  110. 

G.    C.      Articles    pawned    belonging  24  Orphan   Asylum   vs.    Soule,    36 

to  minor.     §6345  G.  C.     Minor  em-  O.  0.  C.   135;   5  App.  70;   36  C.  C. 

ployed  as  pawnbroker.     §  6373  G.  C.  (N.S.)    138. 
Second    hand    dealer    with    minor. 


§  2159  JUVENILE  COUKT  1806 

and  ordered  committed,  etc.,  it  was  held  that  the  Juvenile 
Court  had  no  jurisdiction,  and  sustained  an  action  in  habeas 
corpus.'^ 

In  the  other  case  the  child  was  adjudged  a  delinquent  child 
by  a  Juvenile  Court,  and  it  was  held  no  other  court  could 
review  the  action  on  writ  of  habeas  corpus."*^ 

In  the  light  of  the  two  decisions  referred  to,  the  latter  part 
of  the  following  section  as  to  writ  of  habeas  corpus,  does  not 
seem  to  be  of  much  effect.  It  therefore  appears  that  if  a  divorce 
proceeding  was  afterwards  had  between  the  parents,  the  court 
in  such  action  could  not  make  an  order  as  to  the  custody  of 
the  child  that  could  interfere  with  the  orders  or  continuing 
power  of  the  Juvenile  Court. 

§  2159.  When  jurisdiction  terminates.  §  1643.  "When  a 
child  under  the  age  of  eighteen  years  eome.s  into  the  custody 
of  the  court  under  the  provisions  of  this  chapter,  such  child 
shall  continue  for  all  necessary  purposes  of  discipline  and  pro- 
tection, a  ward  of  the  court,  until  he  or  she  attain  the  age  of 
twenty-one  years.  The  power  of  the  court  over  such  child  shall 
continue  until  the  child  attains  such  age. 

Exception.  Provided,  in  case  such  child  is  committed  to  the 
permanent  care  and  guardianship  of  the  Ohio  board  of  admin- 
istration, or  the  board  of  state  charities,  or  of  an  institution  or 
association,  certified  by  the  board  of  state  charities,  with  per- 
mission and  power  to  place  such  child  in  a  foster  home,  with  the 
probability  of  adoption,  such  jurisdiction  shall  cease  at  the  time 
of  commitment. 

When  writ  of  habeas  corpus  may  issue.  No  court  shall 
issue  a  writ  of  habeas  corpus  against  any  parties  holding  a 
child  by  reason  of  a  commitment  of  the  juvenile  court  before 
such  parties  have  been  heard  by  the  court  to  which  applica- 
tion has  been  made  for  such  writ  and  their  rights  to  hold  such 
child  have  been  finally  determined  by  the  proper  court.  [108 
V.  260.] 

§  2160.  Delinquent  child  defined.  §  1644.  "DELINQUENT 
CHILD  DEFINED."  For  the  purpose  of  this  chapter,  the 
words  "Delinquent  child"  includes  any  child  under  eighteen 

25  Orphan  Asylum  vs.  Soule,  It  is  in  the  power  of  that  court 
supra.  if   it   deem   it   desirable   to    restore 

26  Children's  Home  vs.  Felter,  00  the  child  to  its  parents.  But  tliere 
O.  'S.  110.  The  presumption  is  that  is  no  authority  for  any  other  court 
the  Juvenile  Court  when  it  com-  to  interfere  in  an  independent  pro- 
mitted  the  child  to  the  home,  was  ceeding,  with  the  custody  of  tlie 
actiiicf  with  reference  to  the  best  child  thus  entrusted  by  law  to  the 
interest  and  welfare  of  the  child,  jurisdiction  of  tlie  Juvenile  Court. 


1807  WHO. IS  A  DELINQUENT  CHILD  §2161 

years  of  age  who  violates  a  law  of  this  state,  or  a  city  or  village 
ordinance,  or  who  is  incorrigible;  or  who  knowingly  associates 
with  thieves,  vicious  or  immoral  persons ;  or  who  is  growing 
up  in  idleness  or  crime;  or  who  knowingly  visits  or  enters  a 
house  of  ill  repute;  or  who  knowingly  patronizes  or  visits  a 
policy  shop  or  place  where  any  gambling  device  or  gambling 
scheme  is,  or  shall  be,  operated  or  conducted ;  or  who  patronizes 
or  visits  a  saloon  or  dram  shop  where  intoxicating  liquors  are 
sold ;  or  who  patronizes  or  visits  a  public  pool  or  billiard  room 
or  bucket  shop ;  or  who  wanders  about  the  streets  in  the  night 
time;  or  who  wanders  about  railroad  yards  or  tracks,  or  jumps 
or  catches  on  to  a  moving  train,  traction  or  street  car,  or  enters 
a  car  or  engine  without  lawful  authority,  or  who  uses  vile, 
obscene,  vulgar,  profane  or  indecent  language;  or  who  is  guilty 
of  immoral  conduct ;  or  who  uses  cigarettes,  cigarette  wrapper 
or  substitute  for  either,  or  cigars,  or  tobacco ;  or  who  visits  or 
frequents  any  theater,  gallery,  penny  arcade  or  moving  picture 
show  where  lewd,  vulgar  or  indecent  pictures,  exhibitions  or 
performances  are  displayed,  exhibited  or  given,  or  who  is  an 
habitual  truant ;  or  who  uses  any  injurious  or  narcotic  drug. 
A  child  committing  any  of  the  acts  herein  mentioned  shall  be 
deemed  a  juvenile  delinquent  person,  and  be  proceeded  against 
in  the  manner  hereinafter  provided.     [106  v.  458.] 


§  2161.    Who  is  a  delinquent  cliild. 
A  child  is  delinquent  when  it  is  under  eighteen  years  of  age, 
and  when 

1.  It  violates  a  State  law  or  city  ordinance. 

2.  It  is  incorrigible. 

3.  It  knowingly  associates  with  thieves  or  immoral  persons. 

4.  It  is  growing  up  in  idleness  or  crime. 

5.  It  knowingly  visits  or  enters  a  house  of  ill  repute. 

6.  It  knowingly  patronizes  or  visits  a  policy  shop. 

7.  It  knowingly  patronizes  or  visits  a  gambling  place. 

8.  It  patronizes  or  visits  a  saloon. 

9.  It  patronizes  or  visits  a  pool  room,  bucket  shop,  etc. 

10.  It  wanders  about  the  streets  in  the  night  time. 

11.  It  wanders  about  railroad  yards  or  tracks. 

12.  It  jumps  or  catches  on  moving  trains  or  street  cars. 

13.  It  enters  a  car  or  engine  without  authority. 

14.  It  uses  vile,  obscene,  vulgar  or  profane  language, 

15.  It  is  guilty  of  immoral  conduct. 

16.  It  uses  cigarettes  or  cignrs  or  tobacco. 

17.  It  visits  or  frequents  a  show  of  lewd  or  vulgar  exhibitions. 


§  2162  JUVENILE   COURT    .    "  1808 

18.  It  is  an  habitual  truant. 

19.  It  uses  an  injurious  drug. 

This  category  seems  to  be  wide  enough  to  cover  any  possible 
case  where  the  child  might  be  had  or  become  bad. 

§2162.  Dependent  child  defined.  §1645.  "DEPENDENT 
CHILD"  Defined.  For  the  purpose  of  this  chapter,  the  words 
"dependent  child"  shall  mean  any  child  under  eighteen  years 
of  age  who  is  dependent  upon  the  public  for  support ;  or  who 
is  destitute,  homeless  or  abandoned ;  or  who  has  not  proper 
parental  care  or  guardianship ;  or  who  begs  or  receives  alms ; 
or  who  is  given  away  or  disposed  of  in  any  employment,  service, 
exhibition,  occupation  or  vocation  contrary  to  any  law  of  this 
state;  who  is  found  living  in  a  house  of  ill  fame,  or  with  any 
vicious  or  disreputable  persons  or  whose  home,  by  reason  of 
neglect,  cruelty  or  depravity  on  the  part  of  its  parent;  step- 
parent, guardian  or  other  person  in  whose  care  it  may  be,  is 
an  unfit  place  for  such  child ;  or  who  is  prevented  from  receiving 
proper  education  because  of  the  conduct  or  neglect  of  its  parent, 
step-parent,  guardian  or  other  person  in  whose  care  it  may  be ; 
or  whose  environment  is  such  as  to  warrant  the  state,  in  the 
interest  of  the  child,  in  assuming  its  guardianship.  [106  v. 
458  (459).] 

§  2163.    Who  is  a  dependant  child. 
A  dependent  child  is  one  who  is  under  eighteen  years  of  age, 
and  when 

1.  Dependent  on  the  public  for  support. 

2.  Destitute,  homeless  or  abandoned. 

3.  Has  not  proper  parental  care  or  guardianship. 

4.  Who  begs  or  receives  alms. 

5.  Is  engaged  in  an  occupation  forbidden  by  law. 

6.  Is  living  in  a  house  of  ill  fame. 

7.  Is  living  with  vicious  or  disreputable  persons. 

8.  Its  home  is  an  unfit  place  for  it  to  live,  etc. 

9.  Is  prevented  from  receiving  a  proper  education,  etc. 

10.  Its  environment  is  such  that  the  State  may  take  charge 
of  it.i 

§  2164.  "Proper  parental  care"  defined.  §  1646.  A  child 
within  the  provisions  of  this  chapter  whose  parents,  step  par- 
ents or  guardian  permits  it  to  use  or  become  addicted  to  the  use 
of  tobacco,  or  intoxicating  liquors  as  a  beverage  and  not  for 
medicinal  purposes,  or  any  injurious  or  narcotic  drug,  or  whose 
parents  or  guardian  rears,  keeps  or  permits  it  in  or  about  a 
saloon  or  place  where  intoxicating  liquors  are  sold,  or  a  gambling 

1  This  would  include  truancy  from   school.     §  7774  G.  C.  [109  v.  — 1. 


1809  PROCEDURE — FILING   COMPLAINT  ,        §  2165 

house  or  place  where  gambling  is  practiced  or  carried  on,  or  a 
house  of  ill  fame,  or  ill  repute,  shall  be  deemed  to  be  without 
proper  parental  care  or  guardianship. 

Child  defined.  The  word  "child"  or  "children"  may  mean 
one  or  more  children  and  includes  males  and  females. 

Parent  defined.  The  w^ord  "parent"  may  mean  one  or  both 
parents  or  step  parents  when  consistent  with  the  intent  of  this 
chapter. 

Minor  defined.  The  word  "minor"  means  child.  [99  v.  193, 
§6;103  V.  864  (870).] 


§  2165.    What  is  not  proper  parental  care. 
A  child  has  not  proper  parental  care  when  its  parents,  step- 
parents or  guardian  permits  it 

1.  To  use  or  become  addicted  to  the  use  of  tobacco  or  intox- 
icating liquors. 

2.  To  use  or  become  addicted  to  the  use  of  an  injurious  drug. 

3.  To  be  about  a  place  where  intoxicating  liquors  are  sold. 

4.  To  be  about  a  place  where  gambling  is  practiced. 

5.  To  be  about  a  house  of  ill  fame  or  ill  repute. 

§  2166.  Who  may  file  complaint.  §  1^47.  Any  person  hav- 
ing knowledge  of  a  minor  under  the  age  of  eighteen  years  who 
appears  to  be  either  a  delinquent,  neglected  or  dependent  child, 
may  file  with  such  juvenile  court  a  complaint,  sworn  to,  which 
may  be  upon  information  and  belief,  and  for  that  purpose  such 
complaint  shall  be  sufficiently  definite  by  using  the  word  delin- 
quent, or  dependent,  as  the  facts  may  be.     [103  v.  864  (870).] 

§  2167.  Procedure — Filing  complaint,  etc. 
While  the  Juvenile  Court  is  not  considered  as  a  criminal 
court  and  the  minor  charged  with  a  violation  of  the  laws  within 
the  jurisdiction  of  that  court,  not  a  criminal,  yet  the  procedure 
is  much  nearer  allied  to  that  of  a  criminal  court  than  a  civil 
court.  Originally  the  delinquent  was  not  entitled  to  a  jury 
trial,  and  the  law  was  held  constitutional.-''  And  it  was  also 
held  the  law  was  not  invalid  because  a  trial  might  be  had  on 
affidavit,  and  not  on  an  indictment.-^  The  complaint  must  be 
drawn  with  sufficient  certainty  that  it  will  show  who  the  person 

27  In    re    .Tanuszewski,    1<J6    Fed.  2S  /»  re  Januszewski,  196  Fed.  123. 

R.  123;   10  O.  L.  R.  151. 


§2167 


JUVENILE    COURT 


1810 


is  that  is  charged  with  the  offense  and  what  the  offense  is.-" 
If  the  case  is  submitted  to  a  jury  the  offense  must  be  proven 
beyond  a  reasonable  doubt.^° 


29Willison  vs.  State,  21  C.  C. 
(N.S.)  526;  3  App.  244.  In  a 
prosecution  for  contributing  to  the 
delinquency  of  a  minor  tlie  affidavit, 
in  order  to  charge  a  crime  must, 
allege  that  the  minor  is  under 
eighteen  years  of  age,  and  is  a  de- 
linquent within  the  meaning  of  the 
statute,  and  that  the  defendant  is 
guilty  of  contributing  to  such  de- 
linquency. Id.  State  vs.  Joiner, 
20  N.  P.  313. 

30  State  vs.  Smith,  34  C.  C.  661; 
14  C.  C.  (N.S.)  257.  In  this  case 
charge  of  court  is  given.  State  vs. 
Joiner,  20  N.  P.  316;  State  vs.  Haw- 
kins, 56  Bull.  166.     Charge  of  court. 

See  State  vs.  Tollinger,  66  Bull. 
141,  for  very  clear  and  succinct 
statement  of  law,  in  charge  of  Judge 
F.  W.  Geiger,  who  has  been  a  judge 
of  the  Juvenile  Court  since  its  crea- 
tion, and  as  it  is  a  splendid  exposi- 
tion of  the  law,  will  insert  it. 

"The  complaint  in  this  case 
charges,  in  substance,  that  JD.  C.  is 
a  minor  under  eighteen  years  of  age, 
to-wit,  about  the  age  of  fourteen 
years,  and  is  a  delinquent  child 
in  that  she  did,  on  or  about  April 
1,  1920,  and  other  clays  and  times 
between  said  day  and  April  17,  un- 
lawfully and  knowingly  associate 
with  certain  viscious  and  immoral 
persons,  one  of  said  viscious  and 
immoral  persons  being  D.  Lewis 
Tollinger;  that  said  D.  C.  did  then 
and  there  have  unlawful  sexual  in- 
tercourse with  the  said  D.  Lewis 
Tollinger;  that  the  said  D.  C.  was 
thereby  guilty  of  immoral  conduct. 

"The  complaint  furtlior  alleges 
that  the  said  D.  Lewis  Tollinger, 
on  or  about  April  1,  1920,  and  at 
divers  other  times  between  said  day 
and  April  17,  1920,  did  unlawfully 
aid,  abet,  induce,  cause,  encourage 
and  contribute  to  the  delinquency 
of  said  D.  C,  in  that  the  said  Tol- 
linger did  unlawfully  and  know- 
ingly aid,  abet,  cause  and  encourage 
the  said  D.  C.  to  associate  with 
viscious  and  immoral  persons,  one 
of  said  viscious  and  immoral  per- 
sons being  the  said  Tollinger;  and 
the    said    Tollinger    did    then    and 


there  have  unlawful  sexual  inter- 
course with  the  said  D.  C. :  that 
the  said  Tollinger  did  then  and 
there  unlawfully  aid,  abet,  cause, 
contribute  and  encourage  said  D.  C. 
to  be  thereby  guilty  of  immoral 
conduct. 

"Before  the  defendant  can  be 
found  guilty  as  he  stands  charged 
in  the  complaint,  the  state  must 
prove  beyond  a  reasonable  doubt, 
the  material  allegations  of  the  com- 
plaint, among  wliich  are  that  the 
female  D.  C.  is  under  the  age  of 
eighteen  years,  to-wit,  about  the 
age  of  fourteen  years:  that  she  is  a 
delinquent  child  in  that  she  did,  at 
the  time  and  place  named  in  the 
complaint,  associate  with  viscious 
and  immoral  persons,  one  of  said 
viscious  and  immoral  persons  being 
D.  Lewis  Tollinger,  and  further  that 
the  said  D.  Lewis  Tollinger  did 
contribute  to  the  delinquency  of  the 
said  D.  C.  by  having  unlawful  sex- 
ual  intercourse  with  her. 

"This  charge  is  based  upon  two 
sections  of  the  statute,  the  one 
defining  who  is  to  be  considered  a 
delinquent  child,  providing  in  brief, 
so  far  as  it  relates  to  this  case,  that 
a  delinquent  child  includes  any 
child  under  the  age  of  eighteen 
years,  who  knowingly  associates 
with  viscious  or  immoral  persons, 
or  who  is  guilty  of  immoral  conduct. 

"The  other  section  provides  that 
whoever  aids,  abets,  induces,  causes, 
encourages  or  contributes  towards 
the  delinquency  of  a  minor  under 
the  age  of  eighteen  years,  shall  be 
punished  as  therein  provided. 

"It  will  be  observed  tliat  the  com- 
plaint charges  that  the  child  is  a 
delinquent  in  two  respects.  First, 
that  she  has  associated  with  vis- 
cious and  immoral  persons,  one  of 
said  viscious  and  immoral  persons 
being  the  defendant  Tollinger;  and 
next,  tliat  she  is  guilty  of  immoral 
conduct  in  that  she  had  illicit  sex- 
ual relations  with  the  defendant 
Tollinger. 

"Tlie  juvenile  laws  were  enacted 
to  protect  and  correct  delinquent 
children,  and  to  punish  those  adults 


1811 


CHARGE  OP  COURT 


§2167 


It  must  be  shown,  that  the  offense  was  committed  within  the 
county  when  the  affidavit  is  filed;  the  verdict  would  have  to 


who   may   be   I'esponsible   foi'   said 

delinquency. 

"The  statute  fixes  tlae  age  under 
wliicli  a  cliild  may  be  regarded  as 
delinquent,  as  eighteen  years,  and 
the  comiDlaint  alleges  that  D.  C.  is 
about  fourteen  years  of  age.  It  is 
not  necessary  that  the  state  prove 
her  exact  age.  If  you  are  satis- 
fied beyond  a  reasonable  doubt,  that 
she  is  under  eighteen  years  of  age, 
and  about  the  age  stated  in  the 
complaint,  that  is  sufficient. 

"If  you  find  that  D.  C,  is  a 
delinquent  child,  as  stated  in  the 
complaint,  you  may  then  proceed  to 
the  consideration  of  the  question 
whether  the  state  has  proved,  be- 
yond a  reasonable  doubt,  that  D. 
Lewis  Tollinger  at  tlie  time  and 
place  named  in  the  complaint,  did 
abet,  aid,'  induce,  cause,  encourage 
or  contribute  to  the  delinquency  of 
the  said  female  by  aiding  and  en- 
couraging her  to  associate  with  vis- 
cious  and  immoral  persons,  one  of 
said  viscious  and  immoral  persons 
being  the  said  D.  Lewis  Tollinger, 
and  further,  whether  or  not  the  said 
D.  C,  or  her  association  with  vis- 
cious and  immoral  persons,  did  en- 
courage and  contribute  to  the 
delinquency  of  the  said  female  by 
having  illicit  sexual  intercourse 
with  her. 

"It  is  not  necessary  for  the  court 
to  define  more  at  length  the  terms 
used  in  the  complaint, — aid,  abet, 
induce,  caiise,  and  encourage  the 
delinquency  of  the  said  D.  C.  or 
her  association  with  viscious  and 
immoral  persons;  neither  is  it  nec- 
essary for  the  court  to  determine 
to  yoa  what  would  constitute  a  vis- 
cious or  immoral  person ;  whether 
or  not  a  person  is  viscious  or  im- 
moral in  his  actions  is  a  matter  for 
your  determination. 

"If  you  find  that  D.  C.  was  a 
child  under  eighteen  years  of  age, 
to-wit,  about  fourteen  years  of  a'/e, 
that  she  had  illicit  sexual  relations 
with  the  defendant  Tollinger,  as 
claimed  by  the  state,  you  would  be 
justified  in  finding  the  defendant 
guilty,  if  in  your  judgement  that 
constitutes  immoral  conduct  on  her 
part. 


"If  the  state  has  proved  beyond  a 
reasonable  doubt  that  Tollinger 
himself  was  a  viscious  and  immoral 
person,  and  that  he  immorally  as- 
sociated with  the  female  D.  C.  and 
that  by  encouraging  said  asssocia- 
tion  with  himself  he  thereby  con- 
tributed to  her  delinquency,  you 
should  find  him  guilty,  provided  all 
the  other  elements  of  the  offenpe 
have  been  proved  beyond  a  reason- 
able doubt. 

"It  is  not  claimed  by  the  state 
that  D.  C,  is  anything  other  t!ian 
her  admissions  on  the  stand  indi- 
cate— that  is,  an  immoral  young 
woman;  but  this  fact  will  not  ex- 
cuse the  defendant  if  he  in  any  way, 
as  I  have  pointed  out,  contributed 
to  her  further  delinquency. 

"The  fact  that  a  girl  under  eigh- 
teen years  of  age  with  M'hom  a  man 
conducts  immoral  relations,  or  aids, 
induces,  or  encourages  to  associate 
with  immoral  persons,  is  already 
immoral,  Avill  not  excuse  the  man 
except  in  so  far  as  it  may  be  a 
lesser  offense  to  immorally  assoc'.a- 
ate  with  one  Avho  is  already  im- 
moral, or  to  further  contribute  to 
her  delinquency  than  it  is  to  cause 
the  first  immorality  or  delinquency. 

"If  it  is  true  that  when  a  girl 
first  becomes  immoral,  she  there- 
by forfeits  all  protection  and  be- 
comes the  easy  victim  of  men, 
there  would  be  little  pi-obability 
of  her  reformation.  The  law 
is  designed  to  protect  females 
under  the  age  of  eighteen  years,  and 
while  such  females  may  be  immoral 
on  account  of  their  former  associa- 
tions, the  law  has  endeavoored  to 
protect  them  against  anyone  who 
further  contributes  to  their  delin- 
quency  or   immorality. 

"Those  who  afford  opportunity 
to  and  encourage  girls  under  the 
age  of  eighteen,  to  indulge  in  im- 
moral practices,  should  not  escape 
because  such  young  persons  may 
have  been  immoral  at  other  timca 
and  places. 

"If  the  defendant  be  foimd  guilty 
it  13  the  right  and  duty  of  the 
court  imposing  sentence  to  take  into 
consideration  all  questions  that 
may  bear  upon  the  enormity  of  the 


§  2167  JUVENILE  COURT  1812 

be  unanimous  before  a  conviction  could  be  had.    Also  the  gen- 


defendant's  offense,  and  to  mete  out 
punishment  in  accordance  there- 
with. 

"If  you  find  beyond  a  reasonable 
doubt,  that  the  girl  D.  C.  was 
immoral  before  she  associated  with 
the  said  D,  T.  but  that  D,  T.  in  the 
manner  alleged  in  the  complaint, 
further  contributed  to  her  immor- 
ality, and  all  other  elements  have 
been  proved,  it  is  your  duty  to  find 
the  defendant  guilty,  leaving  to  the 
court  the  exercise  of  a  discretion  in 
the  measure  of  the  punishment  to  be 
imposed. 

"The  defendant  in  this  case  is  not 
charged  with  contributing  to  the 
delinquency  of  any  other  of  the 
parties  concerned  in  the  transaction 
than  D.  C,  and  you  should  only 
consider  his  relations  with  said 
other  persons,  if  any  have  been 
proved,  in  order  to  determine 
whether  said  defendant  is  a  viscious 
and  immoral  person,  as  charged  in 
the  complaint,  and  as  throwing  such 
light  as  it  may  upon  the  question 
whether  the  defendant  thereby 
caused  the  said  D.  C.  to  associate 
with  himself,  if  you  find  him  to  be 
a  viscious  and  immoral  person. 

"The  law  makes  it  an  ofl'ense  to 
contribute  to  the  delinquency  of*  a 
minor  under  eighteen  years  of  age, 
and  if  you  find  this  female  is  in 
fact  under  eighteen  years  of  age,  it 
makes  no  difference  what  her  age 
may  have  appeared  to  be,  nor  what 
the  defendant  may  have  thought  it 
Avas,  nor  what  the  child  may  have 
alleged  it  to  be — the  only  question 
is,  Avhat  her  real  age  as  a  matter 
of  fact,  is. 

"If  you  are  convinced  beyond  a 
reasonable  doubt  of  the  defendant's 
guilt,  it  is  your  duty  to  say  so,  and 
the  jurors  should  not  fail  in  their 
duty  or  return  a  verdict  of  not 
guilty,  when  in  their  own  minds 
they  are  convinced,  beyond  a  reason- 
able doubt,  that  the  defendant  is 
guilty,  simply  because  of  good-fel- 
lowship, kind  heartedness,  or  a 
desire  not  to  work  a  hardship  on  a 
fellow  citizen. 

"On  the  other  hand,  you  are  not 
to  find  the  defendant  guilty,  unless 
the  state  has  proved,  beyond  a 
reasonable  doubt,  all  the  elements 
of  the  offense  charged.    A  mere  sus- 


picion of  the  defendant's  guilt  will 
not  be  sufficient,  but  you  must  be 
satisfied  beyond  a  reasonable  doubt 
of  his  guilt. 

"The  court  has  instructed  you 
that  all  the  material  elements  of  the 
charge  against  the  defendant  must 
be  proved  beyond  a  reasonable 
doubt.  A  reasonable  doubt  is  such 
a  doubt  as  would  exist  in  the  mind 
of  a  reasonable  man  after  a  full, 
fair  and  careful  examination  and 
comparison  of  all  the  evidence.  It 
is  svich  a  doubt  as  would  cause  a 
careful  and  prudent  man  to  pause 
and  consider  before  acting  in  the 
gi'ave  and  important  affairs  of  life. 
It  is  not  a  mere  possible  doubt, 
because  everything  relating  to  hu- 
man affairs  and  depending  on  moral 
evidence  is  open  to  some  possible 
or  imaginary  doubt.  Kor  is  it  a 
mere  captious,  ingenious,  artificial 
doubt,  formed  in  the  mind  of  a 
juror  in  order  to  escape  the  per- 
formance of  a  disagreeable  duty. 
Kor  does  proof  beyond  a  reasonable 
doubt  mean  absolute  certainty — 
but  a  reasonable  doubt,  as  the  term 
is  used  in  these  instructions,  must 
be  one  arising  from  a  candid  and 
impartial  investigation  of  all  the 
evidence.  A  doubt  produced  by  an 
undue  sensibility  in  the  mind  of  a 
juror,  in  view  of  the  consequences 
of  his  verdict  is  not  a  reasonable 
doubt  and  the  jury  is  not  allowed 
to  create  sources  of  materials  of 
doubt  by  resorting  to  trivial  or 
fanciful  suppositions  and  remote 
conjectures  as  to  a  possible  state 
of  facts  differing  from  those  estab- 
lished by  tlie  evidence.  You  are  not 
at  liberty  to  disbelieve  as  jurors, 
if  from  all  the  evidence  you  believe 
as  men.  Your  oath  imposes  on  you 
no  obligation  to  doubt,  where  no 
doubt  would  exist  if  no  oath  had 
been  administered.  If,  after  a  care- 
ful and  impartial  examination  and 
consideration  of  all  the  evidence  in 
the  case,  yovi  can  say  that  you  feel 
an  abiding  conviction  of  the  guilt 
of  the  defendant,  and  are  fully  sat- 
isfied to  a  moral  certainty  of  the 
truth  of  the  charge  against  him, 
then  you  are  satisfied  beyond  a 
reasonable  doubt.  You  will  look 
then,  to  all  the  evidence,  and  if 
that  satisfies  you  beyond  a  reason- 


1813 


COMPLAINT 


§2168 


eral  rules  of  evidence  as  applicable  to  criminal  cases  would 
apply.^' 

§2168.    Complaint — A  delinquent,  etc.,  child. 

The  State  of  Ohio, County,  Probate  Court. 

Before  the  Probate  Court  of  said  county  [juvenile  division],  personally 

came residing  at who  being  first  duly  sworn,  says  that  he 

has  knowledge  of  A.  B.,  a  minor  under  the  age  of  eighteen  years,  to-wit: 

about  the  age  of years,  who  is  not  an  inmate  of  a  state  institution, 

or  any  institution  incorporated  under  the  laws  of  the  state  for  the  care 
and  correction  of  delinquent,  neglected  and  dependent  children;  that 
said  minor  is  in  the  custody  or  control  of  * 

and  that  said  A.  B.,  a  minor,  resides  in   County,  Ohio;   that  said 

minor  appears  a  delinquent  child  in  this,  that  in County,  Ohio  from 

to ,  19. . .  the  said  A.  B.  did  knowingly  associate  witli  viscious 

and  immoral  persons,  said  viscious  and  immoral  persons  being  C.  D.,  E.  F. 
and  G.  H.,  and  that  the  said  C.  D.,  E.  F.  and  G.  H.  have  aided,  caused, 
encouraged  and  contributed  to  the  delinquency  of  said  A.  B.  b}^  aiding, 
causing  and  encouraging  said  A.  B.  to  associate  with  viscious  and  immoral 
persons  being  said  C.  D.,  E.  F.  and  G.  H.,  that  said  C.  D.,  E,  F.  and  G.  H. 
did  then  and  there  unlawfully  aid,  cause  and  encourage  the  said  A.  B. 
to  be  then  and  there  guilty  of  immoral  conduct,  contrary  to  the  statute 


able  doubt  of  the  defendant's  guilt, 
you  must  find  that  to  be  the  fact  by 
your  verdict.  If  you  are  not  so 
fully  satisfied,  but  find  there  are 
only  strong  probabilities  of  guilt, 
your  only  safe  course  is  to  acquit. 

"You  are  the  sole  judges  of  the 
facts  in  this  case  and  of  the  weight 
and  credibility  to  be  given  to  the 
testimony  of  the  diff'erent  witnesses. 
The  court  is  the  sole  judge  of  the 
law,  but  it  is  the  duty  of  the  jury 
to  find  -and  determine  the  facts  and 
apply  thereto  the  law  as  given  by 
the  court. 

"In  determining  the  credit  you 
Avill  give  a  witness  and  the  weight 
and  value  you  will  attach  to  his 
testimony,  you  should  consider  his 
conduct  and  appearance  before  you ; 
his  interest,  if  any,  in  the  result  of 
the  case;  his  motives;  his  bias  or 
prejudice,  if  any  lias  boon  disclosed; 
the  opportunity  the  witness  had  to 
be  informed  or  to  observe  as  to  the 
matters  testified  to  by  him;  his 
intelligence;  his  inclination  and 
disposition  to  tell  the  truth  or 
otherwise,  and  the  probability  or 
improbability  of  his  statements 
taken  togetlier  in  connection  with 
the   other   facts    and    circumstances 


shown  in  evidence.  Taking  all  these 
matters  into  account,  it  is  your 
duty  to  give  to  each  of  the  witnesses 
such  credit,  and  to  the  testimony  of 
each  witness  such  value  as  you  may 
think  proper. 

"The  forms  of  verdict  will  be 
given  you.  If  under  the  evidence 
and  charge  of  the  court,  you  find 
the  defendant  guilty  as  he  stands 
charged  in  the  complaint,  you  will 
use  the  form  of  verdict  marked 
No.  1.  If  under  said  evidence  and 
instructions  you  find  the  defendant 
is  not  guilty,  you  will  iise  tlie 
form  of  verdict  marked  No.  2. 

"In  criminal  cases  the  verdict  of 
the  jury  must  be  imanimous,  and 
signed  by  one  of  your  number  as 
foreman,  whom  you  will  select  when 
you  retire  to  your  jurv  room. 

31  See  state  vs.  "Sniith,  34  C.  C. 
601  as  to  resident  of  house  of  ill 
fame.  Peter  vs.  State,  25  C.  C.  (N. 
S.)    255  as  to  proof  of  delinquency. 

See  State  vs.  Hawkins,  56  Bull 
166  as  to  evidence  of  former  itn- 
moral  conduct.  State  vs.  Fisher, 
84  O.  S.  360  as  to  record  of  cliild's 
delinquonCA\ 

See  §  1651  G.  C,  §2180,  as  to 
right  to  jury  trial. 


§  2169  JUVENILE  COURT  1814 

in  such  case  made  and  provided  and  against  the  peace  and  dignity  of  the 
State  of  Ohio. 


Sworn  to  before  me  and  signed  in  my   presence  this    day  of 

>  •!■"••• 

,  Judge  of  the  Probate  Court. 

By ,  Deputy  Clerk. 

*  Besides  naming  the  custodian,  state  who  are  the  parents,  or  guardian, 
etc. 

§  2169.  Citation,  warrant,  contempt.  §  1648.  Upon  filing 
of  the  complaint,  a  citation  shall  issue,  requiring  such  minor  to 
appear,  and  the  parents  or  guardian  or.  other  person,  if  any, 
having  custody  or  control  of  the  child,  or  with  whom  it  may  be, 
to  appear  with  the  minor  at  a  time  and  place  to  be  stated  in 
the  citation; 

Warrant.  Or  the  judge  may  in  the  first  instance,  issue  a 
warrant  for  the  arrest  of  such  minor  or  for  any  person  named 
in  the  complaint  and  charged  therein  with  having  abused  or 
abandoned,  or  charged  therein  with  neglect  of  or  being  respon- 
sible for  or  having  encouraged,  aided  or  abetted  the  delinquency 
or  dependency  of  such  child,  or  having  acted  in  a  way  tending 
to  cause  delinquency  in  such  child. 

Parent,  step  parent  subpoenaed.  A  parent,  step  parent, 
guardian  or  other  person  not  cited  may  be  subpoenaed  to  appear 
and  testify  at  the  hearing. 

Contempt.  Any  one  cited  or  subpoenaed  to  appear  who 
fails  to  do  so,  may  be  punished  as  in  other  cases  in  the  com- 
mon pleas  court  for  contempt  of  court. 

Residence  unknown.  Whenever  it  shall  appear  from  affi- 
davit that  a  parent  or  guardian  or  other  person  having  the 
custody  of  such  child  resides  or  has  gone  out  of  the  state  or 
that  his  or  her  place  of  residence  is  unknown  so  that  such  cita- 
tion can  not  be  served  on  him  or  her,  the  clerk  shall  cause  such 
citation  to  be  publi.shed  once  in  a  newspaper  of  general  circu- 
lation throughout  the  county,  and  published  in  the  county,  if 
there  be  one  so  published. 

Publication.  The  citation  shall  state  the  nature  of  the  com- 
plaint, and  the  time  and  place  of  the  hearing,  which  shall  be 
held  at  least  two  weeks  later  than  the  date  of  the  publication; 
and  a  copy  of  such  citation  shall  be  sent  by  mail  to  the  last 
known  address  of  such  parent,  guardian  or  other  person  having 
custody  of  such  child,  unless  said  affidavit,  shows  that  a  rea- 
sonable effort  has  been  made  without  success  to  ascertain  such 
address.  The  certificate  of  the  clerk  that  such  publication  has 
been  made  or  such  citation  mailed  shall  be  sufficient  evidence 
thereof.  Until  the  time  for  the  hearing  arrives,  the  court  shall 
make  such  temporary  disposition  of  such  child  as  it  may  deem 
b'^st.  When  said  period  of  two  weeks  from  the  time  of  publica- 
tion shall  have  elapsed,  said  court  shall  have  full  jurisdiction 
to  deal  with  such  child  as  provided  by  this  chapter. 


1815  CITATION  OR  WARRANT  §  2170 

Fugitive.  When  a  person  charged  with  violating  a  pro- 
vision of  this  chapter  shall  have  fled  from  justice  in  this  state, 
such  judge  shall  have  all  the  powers  of  a  magistrate  under  the 
laws  of  this  state  relating  to  fugitives  from  justice.  [103  v. 
864  (870).] 

§2170.     Citation  or  warrant. 

On  the  complaint  being  filed  the  court  may  issue  either  a 
citation  or  a  warrant.  If  the  matter  sought  to  be  brought 
before  the  court  is  that  which  affects  the  child,  and  not  that  of- 
whether  or  not  someone  is  guilty  of  causing  the  child's  delin- 
quency; and  it  is  not  necessary  to  acquire  immediate  control 
or  possession  of  the  child,  it  would  be  proper,  and  the  law  so 
intends  a  citation  should  issue.  In  case'  where  it  is  sought  to 
bring  some  one  before  the  court  for  contributing  to  the  delin- 
quency of  the  child,  a  warrant  of  arrest  is  proper.  The  statute 
probably  intends  that  ordinarily  it  is  better  to  leave  the  child 
in  its  present  surroundings  until  an  investigation  can  be  made 
than  to  take  immediate  charge,  and  besides  the  word  citation 
has  a  less  criminal  significance  to  the  ordinary  mind  than 
arrest  or  warrant.  It  is  in  the  discretion  of  the  judge,  which 
shall  issue.  If  a  citation,  it  is  for  the  minor  to  appear,  and 
the  parents,  guardian  or  other  person  having  the  custody  or 
control  of  the  minor.    Any  person  not  cited  may  be  subpoenaed. 

The  citation  must  state  the  nature  of  the  complaint ;  that  is, 
the  matter  of  delinquency  with  which  the  child  is  charged  in 
the  complaint  filed  under  §1647  (§2166),  and  the  time  and 
place  of  hearing.  If  service  is  made  on  the  parent  by  publi- 
cation, the  time  fixed  for  hearing  must  be  at  least  two  weeks 
after  the  date  of  publication ;  otherwise  it  may  be  fixed  at 
such  time  as  the  court  shall  designate.  It  should  be  long  enough 
ahead,  to  give  the  minor  and  parents  reasonable  opportunity 
to  prepare  whatever  defense  they  may  have,  as  well  as  to  per- 
mit the  probation  officer,  under  §1663  (§2223),  to  make  his 
investigations,  etc.  "When  the  citation  is  issued  it  is  directed 
to  the  probation  officer  who  is  to  serve  the  same. 

§  2171.    Journal  entry,  entry  for  hearing,  etc. 

State  of  Oliio  vs [Alleged  delinquent,  neprlected  or  dependent  cbild] 

This  day  camo ,  and  filed  herein  a  complaint  alleging  that 

is  ai   child,  and  that  said  child  is  in  the  control  of   

Wherefore    it    is    by    the    court    ordered    that    said    case    be    set    for 

hearing  on  the    day  of    ,   10 at    o'clock,    ...    m., 

and  it  is  ordered  tliat  a2    directed  to3    of  this  county,  bo 


§  2172  JUVENILE  COURT  1816 

issued  for  said  child  and  the  person  having  the  custody  of  the  same  to 
•bring  said  child  with   him   and  appear  in  this  court  at  the  time  set  for 

hearing  thereof.     This  writ  to  be  returned  on  the    day  of    

and  subpoenas  be  issued  for   


1  "Delinquent"  or  "dependent." 

2  "Citation"  or  "warrant." 

3  "Sheriff"  or  "probation  officer." 


§2172.     Form — Citation  to  child  and  custodian. 

[Title.] 

To Probation  OfHcer  of  said  County : 

you  are  commanded  to  cite   a  minor  to  appear,  and    the 

person  having  custody  or  control  of  said  minor,  or  with  w^hom  the  same 
may  be,  to  personally  be  and  appear  with  said  minor..,  before  the  judge 

of  the  Probate  Court  on  the day  of ,  A.  D.  19 . .  . ,  at 

o'clock,  .  .  .  m.,  at  the  court  house  in  said  county,  in  a  certain  case  in 
said  court,  in  the  matter  of  said  child;  and  this  they  shall  in  no  wise 
omit  under  penalty  of  the  law.  A  person  so  cited,  and  failing  to  appear, 
may  be  punished  as  in  other  cases  for  contempt  of  court. 

Said  probation  officer  Avill  take  notice  that  it  is  his  duty  to  proceed  to 
inquire  and  make  full  examination  and  investigation  into  the  facts  and 
circumstances  surrounding  tlie  alleged  delinquency,  etc.,  or  dependency  of 
said  child  in  reference  to  his  exact  age,  habits,  school  record,  etc.,  and 
be  present  in  court  to  represent  the  interests  of  the  said  child,  when  the 
case  is  heard,  etc.,  and  said  officer  shall  make  due  return  of  this  citation 
on  the   day  of   ,  Ifl .  . . . 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal 

of  said  court  this    day  of    ,   19 . .  . 

,  Judge  of  the  Probate  Court, 

By    ,  Deputy  Clerk. 


§  2173.    Notice  to  parent,  etc. 

[Title.] 

To residing  at : 

As  the    of  the  above  named  child  you  are  hereby  notified  that 

proceedings  have  been  instituted  in  the  Probate  Court  of  said  county  in 
behalf  of  said  child,  under  the  laws  concerning  delinquent,  neglected  or 
dependent  children,  and  that  said  case  will  be  heard  by  the  judge  of  said 

court  on  the    day   of    ,   19 ... ,  at   o'clock    . .  .   m.,  at 

the  court  house  in  said  county,  when  and  where  you  are  requested,  to  be 
present. 

The  nature  of  said  case  as  charged  is    

Parents,  guardians,  or  if  there  be  neither,  then  any  relative  of  such 
child,  are  expected  to  be  present  with  it  in  open  court.  Serious  con- 
sequences may  be  avoided  by  a  compliance  with  this  notice.  Any  excuse 
for  failure  to  appear  should  be  communicated  to  the  judge  before  the  date 
set  for  hearing. 


§  2174.     Service  of  citation,  etc.,  personally. 

The  statute  contemplates  that  the  service  be  made  person- 
ally upon  the  minor  and  also  upon  the  parent  or  other  person 
in  charge.    It  is  only  when  the  parent  or  other  person  in  charge 


1817 


SERVICE  BY  PUBLICATION 


§  2175 


of  such  minor  resides  or  has  gone  out  of  the  State,  or  his  place 
of  residence  is  unknown,  that  personal  service  is  excused. 

The  question  whether  or  not  a  statute  authorizing  the  court 
to  assume  control  of  a  minor  without  notice  to  the  parent  or 
person  in  charge,  would  be  constitutional,  is  a  mooted  one,  but 
not  material  in  this  State  where  notice  is  required.  If  no  notice 
has  been  given  under  an  assumed  state  of  facts  which  did  not 
exist,  the  court  on  motion  of  the  parent  must  open  up  the  ease 
and  give  the  parent  a  right  to  be  heard.^^ 

§  2175.    Service  by  publication. 

If  no  personal  service  can  be  made  on  the  parent  or  person 
having  the  infant  in  charge,  because  he  resides  or  has  gone  out 
of  the  State,  or  his  residence  is  unknown,  an  affidavit  of  the 
fact  should  be  made  by  the  probation  officer  or  other  person 
having  knowledge,  and  then  the  clerk  must  have  such  citation 


32  Where  an  order  has  been  made 
and  entered  by  a  juvenile  court, 
finding  that  certain  children  are 
neglected  and  abandoned  by  their 
mother,  and  committing  their  cus- 
tody to  an  institution  named  in  the 
sections  of  the  General  Code  relat- 
ing to  juvenile  courts,  upon  an 
affidavit  filed  in  that  court  charging 
in  substance  that  the  minor  chil- 
dren named  therein  are  dependent 
and  neglected  children,  that  their 
mother  has  deserted  and  abandoned 
them  and  is  an  unfit  person  to  have 
the  care  and  custody  of  them,  and 
that  the  residence  of  the  mother  is 
unknown,  a  petition  filed  in  that 
court  by  the  mother,  after  such 
order  has  been  entered,  asking  the 
court  to  open  up  and  vacate  the 
same,  averring  in  substance  that 
the  affidavit  was  false,  that  affiant 
knew  at  the  time  he  filed  such  affi- 
davit or  with  reasonable  diligence 
could  have  discovered  her  residence, 
that  she  had  no  notice  of  such  pro- 
ceeding, that  she  had  not  abandoned 
and  deserted  her  minor  children, 
that  the  affidavit  and  the  proceed- 


ings had  thereunder  and  the  evi- 
dence offered  in  support  thereof 
was  false  and  a  fraud  upon  the 
court  and  in  fraud  of  petitioner's 
rights,  that  the  order  was  irregu- 
larly obtained,  and  that  the  peti- 
tioner, the  mother,  had  no  notice  of 
such  proceedings  whatever  and  by 
unavoidable  casualty  and  misfor- 
tune and  without  any  fault  or  want 
of  diligence  on  her  part  was  pre- 
vented from  appearing  in  court 
and  defending  her  parental  rights 
and  vindicating  herself  against  the 
charges  made  in  the  affidavit,  anl 
from  having  an  opportunity  to  be 
heard  in  the  proceedings,  states 
facts  sufficient,  either  as  a  petition 
or  motion,  to  invoke  the  jurisdiction 
of  the  court  to  hear  and  determine 
the  truth  of  these  averments. 

It  is  the  duty  of  the  court  making 
such  order,  and  in  which  the  peti- 
tion is  filed,  to  hear  the  same  upon 
evidence,  and  to  make  such  order 
and  judgment  in  the  premises  as  to 
it  seems  just  and  proper.  State  vs. 
Bristline,  06  0.  S.  582. 


§  2176  JUVENILE  COURT  1818 

published  in  a  newspaper  of  general  circulation  in  the  county, 
once  J  and  the  time  of  hearing  must  be  at  least  two  weeks  later 
than  such  publication.  If  the  address  of  the  parent  is  known,  a 
copy  of  the  complaint  must  also  be  sent  to  him  by  mail.  The 
statute  does  not  so  say  but  it  would  be  advisable  to  send  it  by 
registered  mail. 


§2176.    Form— Affidavit  for  publication. 
ITitle.] 

State  of  Ohio,  Clark  County,  ss. 

being  first  duly  sworn  says  that  he  has  made  diligent  inquiry 

and  effort  to  ascertain  the  residence  of    ,  the  parent   [or,  guardian 

or  other   person   having  the  custody   of]    ,   minors,   charged   in   the 

above  entitled  case  as  being  delinquents,  and  that  the  residence   of  said 

is  at [or,  is  unknown]   not  within  the  State  of  Ohio,  and 

that  citation  can  not  be  served  on  him  personally. 

Sworn  to  and  subscribed  before  me  and  in  my  presence  this day 

of ,19... 

,  Notary  Public. 


§  2177.    Journal  entry  for  publication. 

[Title.] 

On  this  day  came    ,  and  filed  his  affidavit  herein;   that   , 

parent  of    ,  resides  at    [or,  is  unknown,   etc.]    and  citation 

can  not  be  served  on  him  personally;  wherefore  it  is  ordered  that  the 
clerk  shall  cause  such  citation  to  be  published  once  in  a  newspaper  of 
general  circulation  in  the  county;  that  said  citation  shall  state  tlie  nature 
of  the  complaint  and  the  time  and  place  of  hearing,  which  time  of  hearing 

is  here  fixed  at    at    a.   m.,  on   the    day  of    , 

19...,  at  least  two  weeks  after  the  date  of  said  publication.  It  is  also 
ordered  that  tlie  clerk  mail  a  copy  of  such  citation  by  registered  letter 
to  the  last  known  residence  of   


§  2178.  Notice  for  publication  and  for  sending  by  mail,  when 
affidavit  shows  parent,  etc.,  out  of  ctate,  or  residence 
unknown,  etc. 

CITATION  TO  CHILD  AND  CUSTODIAN. 

The  State  of  Ohio, County.    Probate  Court. 

In  the  matter  of ,  a  minor. 

Said  minor  is  hereby  cited  to  appear,  and    the   of  said 

minor,  and  any  other  person  having  custodv  or  control  of  said  minor, 
or  with  whom  the  same  may  be,  to  personally  be  and  appear  with  said 

minor..,   before   the   judge   of   the   Probate   Court   on   the    day   of 

,  A.  D.  19 ... ,  at   o'clock    .  .  .    m..  at  the  court  house  in  said 

county,  in  a  certain  case  in  said  court,  in  the  matter  of  said  child;  and 
this  they  shall  in  no  wise  omit  under  penalty  of  the  law.  A  person  so 
cited,  and  failing  to  appear  may  be  punished  as  in  other  cases  for  con- 
tempt of  court.  , 


1819  FORMS  ^  2179 


The  nature  of  the  complaint  in  the  case  is  as  follows: 


In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal 

of  said  court  this day  of  ,  19 . , . 

)  Judge  and  Ex-officio  Clerk  of  the  Probate  Court. 

PBOOF  OF  NOTICE  BY  PUBLICATION. 
The  State  of  Ohio, County. 

On  this    day  of   ,   19...,  personally  came  before  me  the 

undersigned   authority    who   being    first   duly   sworn,   deposes   and 

says  that  the  foregoing  notice  was  published  in  the    a  newspaper 

printed  in  and  of  general  circulation  in    County,  Ohio,  for   

consecutive  weeks;  the  first  publication  being  on  the day  of , 

19. .  .,  and  that  he  has  personal  knowledge  of  such  publication  being  made, 
as  herein  alleged. 


Sworn   to   before  me,  and   signed   in   my   presence,   this    day   of 

>  1 J . . . 


,  Probate  Judge. 

By   Deputy  Clerk. 

§2179.     Form — Warrant  to  arrest  minors. 

The  'State  of  Ohio,   County.     Probate  Court. 

To of  said  county : 

A  complaint  has  been  filed  in  this  court,  duly  verified  as  provided  by 
statute,  that  the  following  named  children  are  under  eighteen  years  of 
age,  residing  as  follows: 


and  that  said  children  are*    children,  within  the  provisions  of  the 

laws  to  regulate  the  treatment  and  control  of  delinquent,  neglected  and 

dependent  children.      Said   case   has   been   set  for   hearing  on   the    

day  of ,  19. .  .,  at o'clock   ...  m. 

You  are  therefore  commanded  to  take  said  children  and  have  them  at 
the  appointed  time  above  specified  before  this  court. 

The  probation  ofiicer  will  take  notice  that  it  is  his  duty  to  proceed  to 
inquire  and  make  full  examination  and  investigation  into  the  facts  and 
circumstances  surrounding  the  alleged  delinquency  or  dependency  of  said 
children  in  reference  to  their  exact  age,  habits  and  school  record,  and  be 
present  in  court  to  represent  the  interests  of   said   children.     Said  officer 

will  make  due  return  of  this  writ  on  the day  of   ,  19 .  .  . 

,  Judge  of  the  Probate  Court. 

By  ,  Deputy  Clerk. 

•  "Delinquent"  or  "dependent." 

§  2180.    Complaint  charging-  contributing  to  delinquency,  etc., 

of  children. 

The  State  of  Ohio, County. 

Probate  Court  [Juvenile  Division]. 

Before  the  Probate  Court  of  said  county,  personally  came residing 

at    ,   wlio   being   first   duly   sworn,   says   that   he   has   knowledge  of 

certain  minors  under  the  age  of  eighteen  years,  to-wit:    


§  2181  JUVENILE  COURT  1820 

^vho  are  not  inmates  of  a  state  institution,  or  any  institution  incorporated 
under  the  laws  of  the  state  for  the  care  and  correction  of  delinquent, 
neglected  and  dependent  children;  that  said  minors  are  in  the  custody  or 

control   of   * 

and  that  said  minors  appear  to  be   children  in  this,  that   

[here    describe    the    matter    charged    constituting    the    delinquency,    etc.] 


And   that  one    ,    residing   at    has    said   child 

at  the  county  of    in  the  State  of  Ohio. 


Sworn    to    before    me    and    signed    in    mv    presence   this    day    of 

19... 


*  Besides  naming  the  custodian,  who  are  the  parents,  or  guardian,  etc. 

§  2181.    Warrant  to  arrest,  etc. 

The  juvenile  law  of  our  State  has  two  kinds  of  offenders  to 
deal  with ;  one  is  the  child  who  is  delinquent,  and  the  other  is 
the  person  who  is  responsible  for  the  delinquency,  the  object 
of  both,  however,  being  the  welfare  of  the  child.  The  court 
may,  on  complaint  being  filed,  order  arrest  of  the  child,  but 
this  should  rarely  be  done;  however  when  it  is  an  adult  who 
is  charged  with  causing  the  delinquency  of  the  child,  then  it 
will  generally  be  found  advisable  to  order  a  warrant  for  arrest. 
"When  an  adult  is  charged  with  a  violation  of  the  provisions 
of  the  juvenile  law,  the  matter  is,  characteristically,  more  of 
a  criminal  nature,  than  when  it  is  a  child  who  is  charged. 
The  object  then,  to  such  adult  person,  is  not  reformatory,  cor- 
rectional and  educational,  but  punitive.  A  subsequent  section 
provides  such  warrant  may  be  issued  when  it  appears  on  hear- 
ing that  a  person  is  guilty  of  some  offense.  §1658  (§2212). 
The  order  ought  to  set  out  definitely  the  offense  charged. 


§  2182.     Journal  entry — Order  for  v^arrant  to  arrest. 

[Title] 


[Name  of  person  to  be  arrested.] 

v.„,    -...o  ^«.3^  ^„...^   ^...  .V,.    ...„ring  at  complaint  1 
the"^  hearing    it    appearing    that     ,    residing 


This  day  this  case  came  on  for  hearing  at  complaint  herein  filed;   and 

upon    the"^  hearing    it    appearing    that     ,    residing    at has 

probably   ["Aided"  "induced"  "caused"  "encouraged"  or  "contributed  to'"] 


the  delinquency  of  minors. 

Therefore  it  is  ordered  tliat  a  warrant  issue  to    of  this  county 

to   arrest  the  said    and  bring  h..    before  the  judge  of  this  court 

forthwith. 


1821  HEARING  §  2183 

§2183.    Form — Warrant  to  arrest,  on  complaint. 

The  State  of  Ohio, County. 

Probate  Court  [Juvenile  Division]. 
To  the of  said  County : 

A  complaint  has  been  filed  in  this  court,  duly  verified  as  provided  by 

statute,    in   the   matter   of    a   delinquent,    neglected   or   dependent 

chikl,    that    one    residing    at    has    the    said    child; 

and  thereupon  the  judge  made  an  order  upon  the  journal  of  the  court, 
that  a  warrant  issue  for  the  arrest  of  said    ; 

These  are  therefore   to  command  you  to  take  the  said    if    . .  he 

be  found  in  your  county,  or,  if  . .  he  has  fled,  that  you  pursue  after  h . . 
into  any  other   county   in  the  state,   and  take  and   safely   keep  the   said 

so  that  you  liave  h . .   body  forthwith  before  said  court,  to  answer 

the  said  order,  and  be  further  dealt  with  according  to  law. 

Given  under  my  hand  and  the  seal  of  said  court,   this    day  of 

,19..- 

,  Judge  of  the  Probate  Court. 

By   ,  Deputy  Clerk. 

§2184.  Provision  to  avoid  incarceration.  §  1648-1.  In  any 
ease  where  a  child  under  the  age  of  eighteen  years  is  arrested 
with  or  without  a  warrant,  in  order  to  avoid  the  incarceration 
of  such '  child,  if  practicable,  the  officer  so  arresting,  unless 
otherwise  ordered  by  the  court,  shall  accept  the  written  promise 
of  the  parent,  guardian  or  other  person  with  whom  such  child 
resides,  or  any  other  reputable  person,  to  be  responsible  for 
the  presence  of  said  child  in  the  proper  court  at  the  time  and 
place  when  such  child  is  to  appear,  and  at  any  other  time  to 
which  the  hearing  in  the  case  may  be  continued  or  adjourned 
by  the  court.  Nothing  herein  contained  shall  be  construed 
to  prevent  the  admitting  of  such  child  to  bail,  in  accordance 
with  the  general  provisions  of  the  crimes  act.  [103  v.  864 
(871). f=^ 

§  2185.  Special  room  for  juvenile  court.  §  1649.  The 
county  commissioners  shall  provide  a  special  room  not  used 
for  the  trial  of  criminal  cases,  when  avoidable,  for  the  hearing 
of  juvenile  cases.     [99  v.  194,  §  9.]3* 

§  2186.  Hearing.  §  1G50.  On  the  day  named  in  the  cita- 
tion or  upon  [he  return  of  the  warrant  of  arrest,  or  as  soon 
thereafter  as  may  be,  the  judge  shall  proceed,  in  a  summary 

33  This  means  that  unless  the  ing  the  child  away  from  all  sur- 
child  he  charged  with  a  crime  under  roundings  of  matters  pertaining  to 
the  criminal  laws,  it  is  not  to  be  crime,  when  possible  it  would  be 
placed  in  jail  until  time  of  hear-  wise  if  this  room  were  in  the  de- 
ing,  or  even  in  a  house  of  detention,  tention  home.  This  would  not  only 
unless  there  is  no  one  who  will  keep  tlio  child  away  from  courts, 
answer   for    its   presence   who    is    a  etc.,    but   would    put   the    judge    in 

.  proper  person  so  to  do.  closer  touch  with  the  matters  in  the 

34  This  is  for  the  purpose  of  keep-      home. 


§  2187  JUVENILE  COURT  1822 

manner  to  hear  and  dispose  of  the  ease,  and  the  person  arrested 
or  cited  to  appear  may  be  punished  in  the  manner  hereinafter 
provided.     [99  v.  194,  §  10] 

§2187.     Trial  of  juvenile. 

The  trial  of  the  juvenile  should  be  conducted  in  as  informal 
a  way  as  is  proper  in  the  hearing  of  judicial  matters.  It 
would  differ  in  this  respect  from  the  trial  of  an  adult  even  in 
Juvenile  Court.  Only  in  rare  instances  should  an  oath  be  ad- 
ministered to  the  child;  the  judge  should  as  much  as  possible 
put  himself  on  a  common  plane  with  the  child.  The  practice 
of  the  judge  sitting  high  above  the  child  on  a  bench,  and  look- 
ing down  upon  him  as  a  culprit  has  been  severely  condemned. 
Even  the  room  in  which  the  hearing  is  had,  it  is  said,  should 
not  appear  as  a  place  where  punishment  is  doled  out,  but  more 
like  a  living  room  in  a  private  home,  and  the  proceedings  con- 
ducted like  a  father  with  his  child. 

The  prosecuting  attorney  should  not  be  called  in  such  cases. 
The  officials  are  the  judge  and  the  probation  officer.  The  judge 
represents  the  great  commonwealth  of  Ohio :  the  probation  officer, 
the  child.  The  office  and  province  of  both  is  to  do  that  which 
is  to  the  best  interests  of  the  child.  The  probation  officeer  is  not 
a  prosecution  official,  neither  is  the  court.  The  probation  officer, 
will  make  his  report,  and  must  be  present  at  the  hearing.  The 
judge  will  make  such  inquiries  of  the  witnesses,  parents  and 
others  as  he  may  think  necessary  to  place  before  his  mind  the 
true  condition  as  to  the  matters  charged,  and  what  disposition 
should  be  made  of  the  child.  If  the  child  has  no  home,  of 
necessity  the  court  must  provide  one,  or  if  the  home  is  an 
improper  one  some  other  place  must  be  provided.  When  a  child 
has  a  home,  rarely  for  a  first  offense  should  he  be  taken  there- 
from ;  only  as  a  last  resort  should  he  be  sent  to  a  reformatory. 
Here  is  where  a  difficult  matter  comes  up  to  the  judge.  Some- 
times then,  from  the  things  provided  that  he  may  do,  there  is 
little  discretion. 

But  whatever  is  done  must  be  that  which  in  the  mind  of  the 
judge  will  do  the  child  the  most  good.  The  interest  of  parents 
and  others  is  only  secondary  to  that  of  the  child.  The  law  seems 
to  provide  that  the  question  as  to  the  child's  delinquency  may, 
on  demand  before  trial,  made  on  behalf  of  the  child,  be  deter- 
mined by  a  jury.    But  such  is  not  the  general  procedure  intended 


1823  JURY    TRIAL  ;    COSTS  §  2188 

by  the  juvenile  law  as  to  juvenile  offenders.     It  has  little  to 
commend  it  as  to  such  offenders. 


§  2188.    Trial  of  adult. 

The  trial  of  an  adult  person  contributing  to  the  delinquency 
of  a  minor  or  for  the  support  of  a  minor,  etc.,  under  the  juve- 
nile law,  need  not  be  conducted  in  any  different  manner  from 
that  when  a  person  is  on  trial  for  commitment  of  any  crime. 
If  the  adult  so  desires  he  may,  if  he  makes  such  demand  before 
the  time  of  hearing,  have  the  fact  of  whether  or  not  he  is 
guilty  of  the  matter  charged,  submitted  to  a  jury.  In  such 
cases  he  has  a  right  to,  and  should  be  represented  by  counsel, 
and  the  prosecution  should  be  represented  by  the  prosecuting 
attorney.  If  found  guilty  the  judge  fixes  the  sentence  within 
the  limits  provided  by  law.^^ 


§2189.     Jury  trial;  costs.     §1651.     Any  person  charged 

with  violating  any  of  the  provisions  of  this  chapter  or  being 
responsible  for  or  with  causing,  aiding  or  contributing  to  the 
delinquency,  dependency  or  neglect  of  a  child,  or  with  acting 
in  a  way  tending  to  cause  delinquency  in  a  child,  arrested  or 
cited  to  appear  before  such  court,  at  any  time  before  hearing, 
may  demand  a  trial  by  jury,  or  the  judge  upon  his  own  motion 
may  call  a  jury. 

Drawing  jury.  The  statutes  relating  to  the  drawing  and 
impaneling  of  jurors  in  criminal  cases  in  the  court  of  common 
pleas,  other  than  in  capital  cases,  shall  apply  to  such  jury  trial. 

Compensation.  The  compensation  of  jurors  and  costs  of  the 
clerk  and  sheriff  shall  be  taxed  and  paid  as  in  criminal  cases 
in  the  court  of  common  pleas.  [99  v.  194,  §11;  103  v.  864 
(871).]"" 


36 


35  As  to  law  see  charges  of  court.  jury  and  see  §§  11447  G.  C.  to  11468 

State  vs.  Smith,  34  C.   C.   661;    14  G.  C.  as  to  trial  by  jury,  general 

C.  C.    (X.S.)   257.     Contributing  to  provisions.     See   §§  13642  to  13679 

delinquency  by  going  to  house  of  ill-  Patterson's  Wilson's  Criminal  Code, 

fame  with   minor.     State  vs.   Haw-  criminal    provisions   and    see   pages 

kins,  56  Bull.  166.     By  having  sex-  1437    to    1499    same   volume   as  "to 

ual  intercourse  with  minor.     State  criminal  evidence;    also   §13533  as 

vs.  Tollinger,  66  Bull.   141;    §2167.  to    forms    of   commitments.      If   no 

Same  offense.     See  Patterson's  Wil-  demand    is    made,    and    the    record 

son's  Cr.  Code,  §§  13642-136S7.  shows  none,  the  defendant  will  be 

36  §§11427  G.  C.  to  11446  G.  C.  deemed  to  have  waived  it.     Billig. 
relate  to  drawing  and  impaneling  a  heimer  vs.  State,  32  O.  S.  435. 


§  2190  JUVENILE  COUKT  1824 

§  2190.    Right  to  jury  trial. 

The  previous  section  as  it  originally  stood  only  provided  that 
the  right  to  jury  trial  should  be  given  to  the  person  who  was 
charged  with  being  responsible  for  or  causing,  aiding  or  con- 
tributing to  the  delinquency  of  the  child.  The  statute  as  it 
now  is,  seems  to  be  broad  enough  to  include  cases  where  the 
child  itself  is  on  trial.  Of  course  to  have  the  right  it  must  be 
demanded ;  if  not  demanded  it  will  be  conclusively  presumed  to 
have  been  waived,  and  the  waiver  need  not  be  in  writing.^^ 
Even  if  the  law  did  not  give  to  the  minor  a  right  to  a  jury  trial, 
the  law  would  not  be  unconstitutional,  and  this  would  be  true 
even  though  the  charge  in  the  affidavit  was  a  felony .^^ 


§  2191.  Commitment  continued.  §  1652.  In  ease  of  a  de- 
linquent child  the  judge  may  continue  the  hearing  from  time 
to  time  and  may  commit  the  child  to  the  care  or  custody  of  a 
probation  officer,  and  may  allow  such  child  to  remain  at  its  own 
home,  subject  to  the  visitation  of  the  probation  officer  or  other- 
wise, as  the  court  may  direct,  and  subject  to  be  returned  to  the 
judge  for  further  or  other  proceedings  whenever  such  action 
may  appear  to  be  necessary ;  or  the  judge  may  cause  the  child 
to  be  placed  in  a  suitable  family  home,  subject  to  the  friendly 
supervision  of  a  probation  officer,  and  the  further  order  of  the 
judge,  or  he  may  authorize  the  child  to  be  boarded  in  some  suit- 
able family  home  in  case  provision  be  made  by  voluntary  con- 
tribution or  otherwise  for  the  payment  of  the  board  of  such 
child,  until  suitable  provision  be  made  for  it  in  a  home  without 
such  payment ;  or  the  judge  may  commit  such  child,  if  a  boy, 
to  a  training  school  for  boys,  or,  if  a  girl,  to  an  industrial  school 
for  girls,  or  commit  the  child  to  any  institution  within  the 
county  that  may  care  for  delinquent  children,  or  be  provided 
by  a  city  or  county  suitable  for  the  care  of  such  children. 

Limitation.  In  no  case  shall  a  child,  committed  to  such  in- 
stitutions, be  confined  under  such  commitment  after  attaining 
the  age  of  twenty-one  years ;  or  the  judge  may  commit  the  child 
to  the  care  and  custody  of  an  association  that  will  receive  it, 
embracing  in  its  objects,  the  care  of  neglected  or  dependent  chil- 
dren, if  duly  approved  by  the  board  of  state  charities,  as  pro- 
vided by  law.  Where  it  appears  at  the  hearing  of  a  male 
delinquent  child,  that  he  is  16  years  of  age,  or  over,  and  has 
committed  a  felony,  the  juvenile  court  may  commit  such  child 

37  Walton  vs.  State,  3  App.  97;  vs.  Com.,  142  Kv.  106;  133  S.  W. 
19  C.  C.    (NjS.)   452.  1137:  IMill  vs.  Browu,  31  Utah  473; 

38  In   re    Janiiszpwski,    19(5    Fed.  88  Pae,  809. 
123;  10  O.  L.  R.  151.    See  Marlowe 


1825  COMMITMENT  §  2192 

to  the   Ohio  state  reformatory.      [99  v.   194,   §12;   103  v.  864 

(871.)]'' 


§  2192.     Commitment  of  minor  delinquent. 

There  are  three  classes  of  persons  that  the  court  has  juris- 
diction over  to  commit  to  institutions,  etc.  The  first  is  the  de- 
linquent child,  second  the  dependent  child  and  third  the  person, 
if  he  be  a  minor  under  eighteen  years  of  age,  who  has  caused, 
aided  or  contributed  to  the  delinquency  or  dependency  of  the 
child. 

The  previous  section  refers  to  the  first  and  third  of  these,  and 
means  the  order  the  court  may  make  when  the  matter  comes 
up  for  hearing.  The  first  commitment  is  of  a  probationary  char- 
acter by  continuing  the  case  and  committing  the  child  to  the 
care  and  custody  of  the  probation  ofiicer,  etc.  The  second  is 
of  like  character  by  causing  the  child  to  be  placed  in  a  suitable 
family  home,  etc.  The  third,  if  a  boy,  he  is  to  be  committed 
to  a  training  school  for  boys;  if  a  girl,  to  an  industrial  school. 
These  would  seem  to  mean  to  include  the  penal  institutions  of 
the  boys  industrial  school  and  the  girls  industrial  school.  The 
fourth  to  any  institution  within  the  county  that  may  care  for 
such  children.  In  all  cases  the  institution  must  be  one  certified 
by  the  Ohio  Board  of  State  Charities,  as  proper.**'  If  the  child 
is  sixteen  years  of  age  and  not  over  twenty-one,  and  has  com- 
mitted a  felony,  it  may  be  sent  to  the  Ohio  State  Reformatory.*^ 

§  2193.  Examination  by  competent  physician.  §  1652-1. 
Any  child  coming  within  the  provision  of  this  chapter  may  be 
subjected  to  a  physical  and  mental  examination  by  a  competent 
physician  or  physicians,  to  be  appointed  by  the  Juvenile  Court. 
"Whenever  any  such  child  is  committed  to  any  institution  by 
virtue  of  the  provision  of  this  chapter,  a  record  of  such  exami- 
nation or  examinations  shall  be  sent  with  the  commitment  to 
such  institution.  The  Juvenile  Court  shall  tax  as  part  of  the 
costs,  a  reasonable  fee  for  such  examination.     [109  v.  523.] 

§2194.      Commitment    to    institution    or    suitable    person. 

§  1653.    When  a  minor  under  the  age  of  eighteen  years,  or  any 
ward  of  the  court  under  this  chapter,  is  found  to  be  dependent 

39  See    §  1672    G.    C,    §  2233,    as  Reformatory  is  not  intended  exclu- 

temporary  and  permanent  custody.  sively  as  a  place  of  confinement  of 

•<o  §  1352  G.  C.,  §  2101.  criminals.     [Leonard  vs.   Licker,   23 

41  §2131  G.  C.     The  Ohio  State  O.  C.  C.  (N.S.)  444;  3  App  377. 


§  2195  JUVENILE  COURT  1826 

or  neglected,  the  .iudge  may  make  an  order  committing  such 
child  to  the  care  of  the  children's  home  if  there  be  one  in  the 
county  where  such  court  is  held,  if  not,  to  such  a  home  in  an- 
other county,  if  willing  to  receive  such  child,  for  which  the 
county  commissioners  of  the  county  in  which  it  has  a  settlement, 
shall  pay  reasonable  board ;  or  he  may  commit  such  child  to  the 
board  of  state  charities  or  to  some  suitable  state  or  county 
institution,  or  to  the  care  of  some  reputable  citizen  of  good 
moral  character,  or  to  the  care  of  some  training  school  or  an 
industrial  school,  as  provided  by  law,  or  to  the  care  of  some 
association  willing  to  receive  it,  which  embraces  within  its  ob- 
jects the  purposes  of  caring  for  or  obtaining  homes  for  de- 
pendent, neglected  or  delinquent  children  or  any  of  them,  and 
which  has  been  approved  by  the  board  of  state  charities  as 
provided  by  law. 

Hospital.  AVhen  the  health  or  condition  of  the  child  shall 
require  it,  the  judge  may  cause  the  child  to  be  placed  in  a  public 
hospital  or  institution  for  treatment  or  special  care,  or  in  a 
private  hospital  or  institution  which  will  receive  it  for  like 
purposes  without  charge. 

Charge  maintenance  to  parent.  The  court  may  make  an 
examination  regarding  the  income  of  the  parents  or  guardian 
of  a  minor  committed  as  provided  by  this  section  and  may 
then  order  that  such  parent  or  guardian  pay  the  institution 
or  board  to  which  the  minor  has  been  committed  reasonable 
board  for  such  minor,  which  order,  if  disobeyed,  may  be  en- 
forced by  attachment  as  for  contempt.      [103  v.   864    (872).] 


§  2195.    Commitment  of  dependent  or  neglected  children. 

If  the  child  is  not  a  delinquent  under  Sec.  1644,  G.  C. 
(§2160),  but  the  court  has  found  that  he  is  dependent  under 
Sec.  1645,  G.  C.  (§2162),  or  neglected  under  Sec.  1646,  G.  C. 
(§2164),  it  may  be  committed  first,  to  the  children's  home  of 
the  county,  etc.;  second,  to  the  Board  of  State  Charities;  third, 
to  some  suitable  State  or  county  institution;  fourth,  to  some 
reputable  citizen;  fifth,  to  some  training  or  industrial  school; 
sixth,  to  some  association  willing  to  receive  it  which  has  been 
approved  by  the  Ohio  Board  of  State  Charities.  But  no  de- 
pendent or  neglected  child  is  to  be  committed  to  the  boys  indus- 
trial school  or  the  girls  industrial  school.  The  Ohio  Board  of 
State  Charities  shall,  when  able  to  do  so,  receive  such  children," 
and  when  it  does  it  becomes  vested  with  the  exclusive  guardian- 
ship of  such  child  and  may  place  the  children  in  homes.     The 

42  §  1672  G.  C,  §2233. 


1827  FORMS  §  2196 

court  may  make  an  order  that  the  parent  pay  a  certain  amount 
for   the    child's   maintenance. 


§2196.     Journal  entry — Orders  on  hearing,  placing  child  in 
care  and  custody  and  suspending  final  judgment. 

[Title.] 

This  day  this  case  came  on  for  hearing.  The  said  child  was  brought 
before  the  court;  and  it  appearing  that  the  citation — warrant  to  arrest 
heretofore  issued  has  been  duly  served,  and  that  all  persons  interested 
are  now  before  the  court.     And  the  judge  having  heard  the  evidence  and 

being  fully  advised  in  the  premises,  finds  that  said    is  under  the 

age  of  eighteen  years,  to-wit,  about  the  age  of    years;   and   is  ai 

child,  as  alleged   in  the  petition;    that    ..he    and  therefore 

comes  into  the  custody  of  the  court,  and  will  continue  for  all  necessary 
purposes  of  discipline  and  protection,  a  ward  of  the  court,  until  ..he  shall 
attain  the  age  of  twenty-one  years. 

It  is  ordered  that  until  tlie  further  order  of  the  judge  the  said  child  be 

placed  in  the  care  and  custody  of, and,  subject  to  future  discipline, 

disposition  and  conditions  as  may  be  imposed  by  the  judge,  final  judg- 
ment herein,  or  final  commitment  to  any  other  place,  person  or  institu- 
tion, is  hereby  stayed  and  suspended. 

,  Judge. 

1  Dependent,  neglegted  or  delinquent. 


§  2197.     Journal  entry — Finding,  judgment  and  order  of  the 

Court. 

[Title.] 

Juvenile  No 

Commitment  for  2temporary   [permanent]    care 
ai   cTiild. 

Tills   day  of ,  19.  . ., was  brought  before  the  c6urt, 

complained  of  by3   with  being  ai child  and  the  court  having 

instituted  an  investigation,  and  having  heard  all  the  evidence  finds: 

That  the  law  has  been  duly  complied  with  in  this  case; 

That  the  said   child  was  born  on  or  about  the    day  of    , 

19 ... ,  in  the   of   ,  county  of    ,  state  of   ; 

That  the  name,  residence,  nationality,  and  occupation  of  each  parent 
is  as  follows: 

Father    

Mother*   

That  said  child  isl    in  this,  'that    


and  therefore  comes  into  the  jurisdiction  of  this  court,  being  in  all  respects 
witliin  the  provisions  of  the  law  concerning  delinquent,  dependent,  and 
neglected  children. 

The  court,  finding  further  that  it  is  for  the  best  interests  of  said  child 
that  its5  be  deprived  of  its  care  and  custody  temporarily  [perma- 
nently]   for   the   reason   that  6 therefore   orders   that  said  child   be 

committed  to  the  temporary  [permanent]  care  and  custody  of  the  7 , 

it  appearing  that  said  child   is  a  suitable  person  to  be  so  committed. 

The  court,  finding  further  that  the  said  5 residing  [Number  and 

Street  or  R.  F.  D.],  [City],  [County],  [State],  is  able  to  contribute  toward 


§  2198  JUVENILE  COURT  1828 

the  support  of  said  child,  orders  the  said  5 to  pay  to  the  said  7 , 

the  Slim  of per from  and  after ,  19 . . .,  first  payment 

to  be  made  on  or  before and thereafter. 

It  is   further   ordered   that   a  warrant   issue  to    to   convey   and 

deliver  said  child  to  '^ and  due  return  thereof  be  made  to  this  court. 

,  Judge  of  the  Probate  Court. 

1  "Dependent,"  "neglected"  or  "delinquent." 

2  Strike  out  "temporary"  or  "permanent"  according  to  character  of  com- 

mitment. 

3  Name  of  party  making  complaint. 
■1  Give  maiden  name  of  mother. 

5  Designate  by  name  "parents,"  "father,"  "mother"  or  "guardian." 

6  State  reasons  order  is  temporary  or  permanent. 

7  Name  of   institution,   child-caring  agency  or  state  board   to  which   child 

is  committed. 
[A  copy  of  this  journal  entry  and  family  history  sheet  must  accompany 
each  child.] 

§  2198.  Age  limitations.  §  1653-1.  The  provisions  of  sec- 
tion 1652  shall  not  apply  to  the  girls'  industrial  school  or  the 
boys'  industrial  school,  so  far  as  the  same  allows  the  commit- 
ment of  a  child  under  ten  years  or  over  eighteen  years  of  age 
to  such  institution.  In  no  case  shall  a  child  found  to  be  a 
dependent  or  neglected  child  be  committed  to  such  institution, 
nor  shall  any  child  under  ten  years  or  over  eighteen  years  of 
age,  be  committed  to  such  schools  except  as  provided  in  section 
2111  of  the  General  Code.     [101  v.  379;  103  v.  864  (873).]*^ 

§  2199.  Penalty  for  abuse  or  aidinT  and  abetting  delin- 
quency. §  1654.  AYhoever  abuses  a  child  or  aids,  abets,  in- 
duces, causes,  encourages  or  contributes  toward  the  dependency, 
neglect  or  delinquency,  as  herein  defined,  of  a  minor  under  the 
age  of  eighteen  years,  or  acts  in  a  way  tending  to  cause  delin- 
quency in  such  minor,  shall  be  fined  not  less  than  ten  dollars,  nor 
more  than  one  thousand  dollars  or  imprisoned  not  less  than  ten 
days  nor  more  than  one  year,  or  both. 

Each  day  additional  offense.  Each  day  of  such  contribu- 
tion to  such  dependency,  neglect  or  delinquencj^,  shall  be  deemed 
a  separate  offense.  If  in  his  judgment  it  is  for  the  best  interest 
of  a  delinquent  minor,  under  the  age  of  eighteen  years,  the 
judge  may  impose  a  fine  upon  such  delinquent  not  exceeding 
ten  dollars,  and  he  may  order  such  person  to  stand  committed 
until  fineand  costs  are  paid.    [99  v.  195,  §  14 ;  103  v.  864  (873).] 

§  2200.     Commitment  for  causing  delinquency,   etc. 

Either  a  minor  or  an  adult  might  be  committed  under  the 
previous  section.     The  act  for  which  he  may  be  found  guilty 

43  §2111,    permits    a    girl    under  ferred  to  the  girls  industrial  school, 

eighteen  years   of   age  sentenced  to  on   written   order   of   the   board   of 

the     penitentiary,     county     jail     or  administration, 
other  penal  institution  to  be  trans- 


1829  POEMS  §  2201 

is  for  either  aiding,  abetting,  inducing,  causing,  encouraging  or 
contributing  toward  the  dependency,**  or  the  neglect,*^  or  delin- 
quency ^'^  of  a  minor  under  eighteen  years  of  age.  If  a  minor 
under  eighteen  years  of  age  is  the  guilty  party  he  may  be  fined 
not  exceeding  ten  dollars,  and  he  may  be  committed  to  some 
place  of  detention  until  paid.  If  found  guilty  he  would  also 
be  a  delinquent  child  and  might  be  committed  as  such.*^  If 
the  guilty  party  is  over  eighteen  years  of  age  the  fine  is  not 
less  than  ten  dollars  nor  more  than  one  thousand,  and  imprison- 
ment not  less  than  ten  days  nor  more  than  one  year,  or  both 
fine  and  imprisonment.  The  nature  of  the  crime  is  not  felony 
but  misdemeanor.*^  In  all  cases  where  the  penalty  is  imprison- 
ment, it  means  the  county  jail  when  the  imprisonment  is  not 
more  than  one  year;  if  longer  it  means  penitentiary.*^  If  the 
party  is  over  sixteen  years  of  age  the  court  may  sentence  it  to 
a  workhouse.^**  Each  element  of  the  crime  must  be  proved 
beyond  a  reasonable  doubt.^^ 

§  2201.    Journal  entry  on  arraignment,  plea  of  guilty. 

[Title.] 

This   daj^  came  the   prosecuting  attorney   of   said   county,   on   behalf   of 

the  State  of  Ohio,  and  the  said  defendant   was  brought  before  the 

court  in  custody  of  the    and  arranged  upon   the  information  filed 

in   the    said    case.      And    having    liad    a    reasonable    time    to    examine    the 

charge   preferred  against    tlie  charge  was   then   distinctly   read  to 

,  and    was  required  to  plead  thereto.     Whereupon  the  said 

defendant    pleads   guilty    to    the    offense    charged    against    in    said 

information;    and    being    inquired    if    had    anything    to    say    why 

judgment  should  not  be  pronounced   against    ,   and  having  nothing 

but  what    hath   already  said   and   showing   no  good   and   sufficient 

cause  why  judgment  sliould  not  be  pronounced;   it  is  therefore  the  sentence 

of  the  said   court  that    be   imprisoned   in  the    the  term   of 

and  to  pay  a  fine  of dollars,  and  costs  taxed  at dollars. 

The  court  hereby  suspends  the  imprisonment  upon  the  payment  of  the 
fine  and  costs  and  during  good  behavior. 

,  Probate  Judge. 

The  State  of  Ohio, County.    Probate  Court. 

I    the   undersigned,   judge    and   ex-officio   clerk   of   the   Probate   Court, 
witliin  and  for  said  county,  and  in  whose  custody  the  files,  journals  and 

44  §  1645  G.  C,  §  2162.  51  State  vs.  Hawkin,  56  Bull.  166. 

45  §  1646  G.  C,  §  2164.  See  this   case  for  charge  of  court, 

46  §  1647  G.  C,  §  2160.  also  Smith  vs.  State,  14  C.  C.  (N.S.) 

47  §1652  G.  C,  §2191.  257;    34  C.  C.  661   for  charge,  etc. 

48  State  vs.  Eose,  89  O.  S.  383.  See  Patterson's   Wilson's   Cr.   Code, 

49  §  12370  G.  C.  p.  1477  for  evidence. 

50  §  4128  G.  C;  Walton  vs.  State,  See  notes  §  2167. 
'S  App.  97;  10  C.  C.  (N.<S.)  452. 


§  2202  JUVENILE  COURT  1830 

records  of  said  court  are  required  by  the  laws  of  the  State  of  Ohio  to  be 
kept,  do  hereby  certify  that  the  foregoing  is  taken  and  copied  from  the 
journal  of  the  proceedings  of  said  court;  that  the  foregoing  has  been 
compared  by  me  with  tlie  original  entry  on  said  journal,  and  that  the 
same  is  a  true  and  correct  copy  thereof. 

In  testimony  whereof,  I  herexinto  subscribe  my  name  officially,  and  affix 

the  seal  of  said  court,  at  the  court  house,  in   in  said  county,  this 

day  of ,  19. . . 

Judge  and  ex-officio  clerk  of  said  Probate  Court. 

By   ,  Deputy  Clerk. 


§  2202.    Journal  entry — Judgment. 

The  State  of  Ohio  vs , 

Contributing   to   delinquency   of    

This  day  this  cause  came  on  for  hearing  upon  the  complaint  heretofore 
filed  herein,  and  the  defendant  was  brought  before  the  court.  The  court 
having    duly    heard    and    considered    the   evidence    in    the   case,    finds    that 

said  defendant has,  as  alleged  in  the  complaint,  contributed  to  the 

delinquency   of    said    a   child.,    eighteen   years   of   age   or   under, 

which  said  child   heretofore  duly  found  to  be  a  delinquent  child. . 

as  defined  by  the  statutes  of  this  state. 

The  court  orders   that   said    defendant  be   fined   in  the   sum  of 

dollars,  and  imprisoned  in  the for  a  period  of 

The  court  hereby  suspends  the  foregoing  sentence  upon  condition  that 
said   defendant  shall   furnish   a   good   and  sufficient  bond   or  undertaking 

to  the  people  of  the  State  of  Ohio   in  the  penal   sum  of    dollars, 

conditioned  for  the  payment  of   dollars  per  month  in  money  or  its 

equivalent,  for  [liere  specify  the  monthly  amount  for  each  child]  for  the 
support,  care  and  maintenance  of  said  child.,  while  under  the  guardian- 
ship or  in  the  custody  of 


§  2202a.    Entry— Verdict  of  jury. 

,  Plaintiff,  vs ,  Defendant. 

This  day  this  cause  came  on  further  to  be  heard,  and  came  the  defend- 
ant     '.,   in   person   and  by   council,   and   came  the    by    ■, 

prosecuting  attorney,  and  thereupon  came  the  jurors. 

Thereupon,  after  argument  of  counsel  and  the  charge  of  the  court,  the 
cause  was  submitted  to  the  jury  for  its  consideration,  and  the  jury  having 
considered  said  cause,  returned  into  court  tlie  following  verdict: 

Verdict:     We,   the   jury,   duly    impaneled    and   swoi-n    to   try   the    issues 

joined   between   the    and   the   defendant   herein,   do    fiind   the   said 

defendant    ,  guilty   in  manner   and   form  as   he  stands   charged   in 

the  complaint  herein. 

,  Foreman. 

And  this  cause  is  continued. 

J. 


§  2202b.    Entry — Judgment — Trial  by  jury. 

Court,    County,  Ohio. 

. .  . ,  Plaintiff,  vs ,  Defendants, 


This   day   this   cause   came   on   further  to  be  heard,   and  came  the  de- 
fendant,  ,  in  person  and  by  counsel,  and  came    by    , 


1831  FAILURE  OR  NEGLECT  TO  SUPPORT  §  2203 

prosecuting  attorney,  and  thereupon  the  motion  of  the  defendant  for  a  new 
trial  was  argued  by  counsel  and  submitted  to  the  court,  upon  considera- 
tion whereof  the  court  finds  said  motion  not  well  made,  and  the  same  is 
by  the  court  overruled.  To  which  ruling  of  the  court  the  defendant  by 
his  counsel  excepts. 

Thereupon  the  court  informed  the  defendant  of  the  verdict  of  the  jury 
and  inquired  of  said  defendant  if  he  had  any  reason  to  state  why  sentence 
should  not  be  passed  upon  him,  said  defendant,  not  having  sufficient 
reason,  it  is  by  the  court  ordered,  adjudged  and  decreed  tliat  said  de- 
fendant     ,  be  committed  to  tlie    work  house,    ,  for  the 

period  of  six  months,  and  that  he  pay  a  fine  in  the  sum  of  two  hundred 
dollars  and  the  costs  of  prosecution  taxed  herein  at  thirty-four  dollars 
and  ten  cents   ($34.10)    and  it  is  ordered  that  said  defendant  be  confined 

in   the    work   house,    ,   until   said   fine   and   costs   are  either 

paid  or  secured  to  be  paid,  or  until  he  be  discharged  therefrom  by  allow- 
ing a  credit  of  sixty  cents  per  day  on  such  fine  and  costs  for  each  day  of 
confinement  in  such  work  house,  or  he  be  otherwise  legally  discharged. 

And  it  is  ordered  that  warrant  issue  to  probation  ofiicer  to  convey  the 

said   to  said   work  house  and  that  due  return  of  such  writ 

be  made  to  this  court. 

,J. 


§  2203.     Failure  or  neglect  to  support — Penalty.     §  1655. 

Whoever  is  charged  by  law  with  the  care,  support,  maintenance 
or  education  of  a  minor  under  the  age  of  eighteen  years,  and 
is  able  to  support  or  contribute  toward  the  support  or  educa- 
tion of  such  minor,  fails,  neglects,  or  refuses  so  to  do,  or  who 
abandons  such  minor,  or  who  unlawfully  beats,  injures,  or 
otherwise  ill  treats  such  minor,  or  causes  or  allows  him  or  her 
to  engage  in  common  begging,  upon  complaint  filed  in  the 
juvenile  court,  as  provided  in  this  chapter,  shall  be  fined  not 
less  than  ten  dollars,  nor  more  than  five  hundred  dollars,  or 
imprisoned  not  less  than  ten  days  nor  more  than  one  year,  or 
both. 

In  county,  etc.  Such  neglect,  non-support,  or  abandon- 
ment shall  be  deemed  to  have  been  committed  in  the  county  in 
which  such  minor  may  be  at  the  time  of  such  neglect,  non-sup- 
port, or  abandonment. 

Each  day  additional  offense.  Each  day  of  such  failure, 
neglect,  or  refusal  shall  constitute  a  separate  offense,  and  the 
judge  may  order  that  sucli  person  stand  committed  until  such 
fines  and  costs  are  paid.     199  v.  196,  §  15;  103  v.  864  (873).] 


§  2204.     Form — Complaint  charging-  abandonment,  etc. 

The  State  of  Ohio, County.    Probate  Court. 

Before  the  Probate  Court  of  said  county,  personally  came    ,  who 

being  first  duly  sworn,  says  that  he  resides  at in  said  county,  and 

upon  information   and  belief  says  that    residing  at    in  said 

county,  is  the  parent  of  the  following  named  child . .,    


who    under  eighteen  years  of  age,  to-wit: 


§  2205  JUVENILE  COURT  1832 


and  is  charged  by  law  with  the  care,  support,  maintenance  and  education 
of  said  child..,  and  is  able  to  perform  such  duty,  or  to  contribute  toward 

such  support  or  education,  but  fails,  neglects,  and  refuses  so  to  do,  *, 

at  the  county  of in  the  State  of  Ohio. 


Sworn  to  before  me  and  signed   in  my  presence,  this    day  of 

,  19..- 

,  Judge  of  the  Probate  Court. 

By   ,  Deputy  Clerk. 

Or  "abandons  said  child." 


§  2205.     Commitment  for  non-support,  etc. 

The  person  who  could  be  found  guilty  under  the  previous 
section  might  be  a  minor  under  eighteen  years  of  age,  but  that 
would  be  very  unusual.  The  minor,  to  come  within  the  above 
section,  might  be  termed  a  dependent  child  within  Sec.  1645 
(§2162)  or  within  Sec.  1646  (§2164),  but  the  latter  relates 
more  to  parental  duties,  than  otherwise.  It  applies  to  whoever 
is  charged  by  law  with  the  care,  support,  maintenance  or  educa- 
tion of  a  minor  under  eighteen  years  of  age;  and  if  able,  fails 
to  do  so;  or  if  such  person  abandons  the  minor,  or  unlawfully 
beats,  injures  or  mistreats  him,  or  suffers  the  child  to  engage 
in  common  begging,  etc. 

The  four  things  to  be  shown  are,  -first,  the  minor  must  be 
under  eighteen  years  of  age ;  second,  the  party  charged  must 
be  one  charged  by  law  to  support  the  minor;  third,  the  party 
charged  must  be  able  to  render  support ;  fourth,  that  the  party 
charged,  neglected  to  do  so,  or  when  the  charge  of  abandonment 
is  made,  etc.,  that  he  did  abandon  the  minor,  etc.  In  all  ca.ses 
it  must  be  shown  that  the  offense  was  committed  in  the  county. 
However,  when  it  is  non-support,  if  the  child  is  in  the  county, 
the  non-support  will  be  presumed  to  have  occurred  in  the  county. 
But  it  is  not  necessary  that  the  parent  reside  in  county  or  even 
in  the  State.°- 


§  2206.     Journal  entry — Judgement,  non-support. 

ITitlc] 

This  day  this  case  came  on  for  hearing  upon  the  complaint  heretofore 
filed  herein,  and  the  defendant  was  brought  before  the  court.     The  court 

52  State  vs.  Sauner,  81  O.  S.  393.       comments;  also  §  13511  and  §  13515 
For  form  of  mittimus.     See  Patter-       for  commitment  of  witness, 
son's    Wilson's     Cr.     Code    §  13510, 


1833  FORMS  §  2207 

having  duly  heard  and  considered  the  evidence  in  the  case,  finds  that  said 

defendant   is  charged  by  law  with  the  care,  support,  maintenance 

and  education  of  the  following  named  child . . :    


all  of  said  child.  .  being  under  eighteen  years  of  age,-  that  said  defendant 
is  able  to  support  or  contribute  to  the  support  and  education  of  said 
minor;  and  further  that  said  defendant,  as  alleged  in  the  complaint,  fails, 
neglects  and  refuses  so  to  do,  * 

Tile  court   orders   that   said    defendant  be  fined   in  the  sum  of 

dollars,  and  imprisoned  in  the for  a  period  of   

The  court  hereby  suspends  the  foregoing  sentence  upon  condition  that 
said   defendant  shall   furnish   a   good   and  sufficient  bond   or   undertaking 

to  the  people  of  the   State  of  Ohio   in  the  penal  sum  of    dollars, 

conditioned  for  the  payment  of dollars  per  month  in  money  or  its 

equivalent,  for  [here  specify  the  monthly  amount  for  each  child]  for 
the  support,  care  and  maintenance  of  said  child . .  while  under  the  guardian- 
ship or  in  the  custody  of 

*  Or  "has  abandoned  said  child." 


§  2207.     Form — Bond   to   support    delinquent,    neglected    or 
dependent  child. 

Know  All   Men   by  these   Pkesents,  That    ....'..    as   principal   and 

as  sureties  are  held  and  firmly  bound  unto  the  State  of  Oliio  in 

the   penal    sum   of    dollars,   to   the   payment   of   which   we   hereby 

jointly  and  severally  bind  ourselves,  our  heirs,  executors  and  administra- 
tors firmly  by  these  presents. 

iSigned  by  us  at   ,  Ohio,  this    day  of   ,  A.  D.   19 . . . 

The  condition  of  the  above  obligation  is  such  that  whereas  the  above 

bound    was  on  the    day  of    ,   19...,   in   the   Probate 

Court  of county,  adjudged  to  be  responsible  for  the  abandonment, 

or  by  an  act  causing,  encouraging,  or  contributing  to  the  delinquency, 
neglect  or  dependence  of  the  following  described  child..,  eighteen  years 
of  age  or  under,  to- wit:    who  is  about years  of  age,   


and  this  day  the  court  sentenced  the  said   to 

And  whereas  the  court^ required  as  one  of  the  conditions  of  suspending 

said  sentence,  that  said    give  bond  that  he  will  furnish  to   

or  to  such  persons  as  the  court  may  direct,  money  or  its  equivalent  amount- 
ing to    dollars  per  montli  for  said  child..,  payable  on  the    

day  of  each  month,  and  beginning    ,  and  continuing    ...-...;   unless 

before  tliat  time  the  court  or  other  proper  authority  change  this  order. 

Now   if   the   said    shall    faithfully   comply   with   the   terms    and 

conditions  of  this  bond,  tlien  these  presents  shall  be  void,  otherwise  to 
remain  in  full  force  and  effect. 


The    above    l)ond    taken     and    approved    by    me    this     day    of 

,  19. .. 

,  Judge  of  the  Probate  Court. 


§2208  JUVENILE   COURT  1834 

§2208.    Sentenced  to  jail  or  workhouse. 

It  is  a  general  provision  of  law,  Sec.  4128,  G.  C,  tliat  when 
a  person  over  sixteen  years  of  age  is  found  guilty  of  an  offense 
for  which  the  court  may  sentence  him  to  county  jail;  the  court 
may  sentence  him  to  a  workhouse,  and  the  courts  have  held 
that  "imprisoned"  as  used  in  these  juvenile  statutes  means 
imprisonment  in  the  county  jail,  and  therefore  whenever  a  per- 
son under  these  juvenile  laws  commits  an  offense  which  sub- 
jects him  to  imprisonment,  he  may  be  sentenced  to  the  work- 
house,^^ and  another  general  provision  is  that  in  all  cases  when 
a  fine  may  be  imposed  in  whole  or  in  part  in  punishment  of  an 
offense,  the  court  may  order  the  person  committed  to  the  county 
jail  until  the  fine  and  costs  are  paid,  or  to  a  workhouse  until 
the  fine  is  paid,  or  until  he  is  discharged  by  allowing  him  sixty 
cents  per  day  for  each  day  of  confinement.^* 

It  will  be  observed  that  under  the  juvenile  laws,  that  a  minor, 
if  he  is  guilty  of  causing  delinquency,  might  be  sentenced  to 
imprisonment,^'^  and  also  if  he  is  guilty  of  non-support,  etc., 
when  that  could  be,^^  and  if  he  was  over  sixteen  he  might  be 
sent  to  the  workhouse ;  a  dependent  child  could  not.^^  An  adult 
if  guilty  of  causing  a  delinquency,  etc.,^^  or  for  non-support, 
etc.,*^^  is  subject  to  imprisonment,  and  therefore  can  be  sent 
either  to  the  county  jail  or  workhouse. 

If  the  child  is  himself  a  delinquent,  he  is  not  subject  to  fine 
and  imprisonment,  and  therefore  can  not  be  sent  to  a  work- 
house. If  he  is  guilty  of  a  felony  he  may  be  sent  to  the  State 
reformatory.^"     The  industrial  .school  is  not  a  prison.®^ 


§  2209.     Journal  entry — Sentence  to  workhouse. 

[Title.] 

This  day  this  cause  came  on  for  hoarinjj  upon  the  complaint  heretofore 
filed  herein,  and  the  defendant  was  brought  into  court.  The  court  having 
duly  heard  and  considered  the  case  \or,  the  defendant  having  demanded 
a  jury  and  entered  a  plea  of  not  guilty  and  the  jury  having  rendered  a 

verdict  of  guilty,  etc.],  finds  that  said  defendant   ,  has,  as  alleged 

in  the  complaint,  contributed  to  the  delinquency  [or,  has  failed  to  support, 

etc.],  of  said    ,  a  child    years  of  age,  which  said  child  has 

heretofore  been  duly  found  to  be  a  delinquent  child  [or,  that  said  defend- 

53  Walton  vs.   State,  3  App.  97;  ss  §  1654  G.  C,  §2199. 
19  C.  C.  (N.S.)  4.52.  59  §  165.5  G.  C,  §2203. 

54  §  123S7  G.  C.  GO  §  1652. 

55  §  1654  G.  C,  §  2199.  61  Prescott  vs.  State,  19  0.  S.  184. 
5G  §  lfi.55  G.  C.,  §2203.  See  §§4148  and  12387  Patterson's 
57  §  1653  G.  C,  §  2195.                          Wilson's  Cr.  Code  for  comments,  etc. 


1835  CITATION    OR    ARREST  §  2210 

ant  is  able  to  support,  or  contribute  to  the  support  of  said  minor,  etc 
and  fails  and  neglects  so  to  do].     The  court  oruers  that  said  defendant 

pay  a  fine  of  $ and  the  costs  of  this  prosecution,  fixed  at  $. . . 

and  it  is  further  ordered  that  said  defendant ,  stand  committed  "to 

the   . . woric  house,  there  to  remain  confined  and  kept  at  labor  until 

such  fine  and  costs  are  paid,  or  he  is  discharged  therefrom  by  allowing 
a  credit  of  sixty  cents  per  day  on  the  fine  and  costs  for  each  day  of  con- 
finement, or  until  otherwise  legally  discharged. 

§  2210.    Provisions  in  case  of  workhouse  sentence.    §  1656. 

When  a  person  is  convicted  and  sentenced  under  this  chapter 
for  the  abandonment  of,  or  for  the  neglect  of,  or  faihire  to 
maintain  or  support  a  minor,  to  imprisonment  in  a  workhouse,  the 
county  from  which  such  prisoner  is  so  sentenced,  shall  pay  from 
the  general  revenue  fund  fifty  cents,  for  each  day  such  prisoner 
is  so  confined,  to  the  chief  probation  officer  of  such  county,  to 
be  by  him  expended,  under  the  direction  of  the  judge,  for  the 
maintenance  of  the  dependent  minors  of  such  prisoner,  of  which 
expenditure  such  officer  shall  make  monthly  reports  to  the  judge. 
The  county  commissioners  of  such  county  shall  make  the  allow- 
ances herein  provided  for,  which  shall  be  paid  by  the  county 
treasurer  from  the  county  treasury  upon  the  warrant  of  the 
county  auditor  in  favor  of  such  probation  ofScer.  [99  v.  196, 
§16;  103  V.  864  (873).] 

§  2211.  Commitment  to  county  jail,  etc.  §  1657.  Pending 
final  disposition  of  a  case,  tlie  judge  may  commit  any  person 
arrested  or  cited  to  appear,  except  the  minor  under  fourteen 
years  of  age,  to  the  county  jail  until  the  case  is  disposed  of, 
but  such  trial  shall  be  commenced  within  four  days  of  such 
commitment  unless  upon  the  request  of  the  defendant.  Pend- 
ing final  disposition,  the  judge  may  direct  that  the  minor  in 
question  be  left  in  the  possession  of  the  person  having  charge 
of  him,  or  that  he  be  kept  in  some  suitable  place  provided  by 
the  county  or  city  authorities.     [99  v.  196,  §  17.] 

§  2212.  Citation  or  arrest  ordered  after  hearing.  §  1658. 
If  it  appear  upon  the  hearing  that  any  person  not  cited  to 
appear,  has  probably  abused  or  has  aided,  induced,  caused,  en- 
couraged, or  contributed  to  the  dependency,  neglect  or  delin- 
quency of  a  minor  under  the  age  of  eighteen  years,  or  acted  in 
a  way  tending  to  cause  delinquency  in  such  minor,  or  that  a 
person,  charged  by  law,  with  the  care,  support,  education  and 
maintenance  of  any  minor,  has  abandoned,  failed,  refused,  or 
neglected,  being  able  to  do  so,  to  support,  or  sufficiently  con- 
tribute toward  the  support,  education  and  maintenance  of  such 
minor,  the  judge  may  order  such  person  to  be  cited  to  appear 
at  a  subsequent  day,  or  may  issue  a  warrant  to  arrest  such 
person  as  hereinbefore  provided,  and  upon  citation,  warrant  and 
hearing  the  same  proceedings  may  be  had  as  in  the  first  instance. 
[99  v.  196,  §  18;  103  v.  864  (874).] 


§  2213  JUVENILE  COUKT  1836 

§  2213.    Journal  entry — Order  for  arrest  on  hearing",  etc. 

[Title.] 

It  appearing  to  the  court  on  the   of    ,  that   ,  who 

was  not  cited  to  appear  in  said  cause,  has  probably  abused    ,  or 

contributed   to  the  delinquency   of   said    ,   a  minor   under  eighteen 

years  of  age,  etc.  [or,  other  matter  mentioned  in  section  1658],  it  is  ordered 

that  a  warrant  be  issued  for  the  arrest  of  said ,  and  he  be  brought 

forthwith  before  this  court. 

§  2214.     Warrant  to  arrest,  after  hearing. 

The  State  of  Ohio, County.    Probate  Court. 

To  the of  said  county : 

Whereas,  in  the  matter  of   a  delinquent,  neglected  or  dependent 

child,  it  appearing  at  the  hearing  of  said  matter  in  this  court,  that  one 

residing  at   has    the  said  child;   and  thereupon  the 

judge  made  an  order  upon  the  journal  of  the  court,  that  a  warrant  issue 
for  the  arrest  of  said   ; 

These  are  therefore  to  command  you  to  take  the   said    if    . .  he 

be  found  in  your  county,  or,  if   . .  he  has  fled,  that  you  pursue  after  h . . 
into  any  other   county   in   the   state,   and   take   and   safely  keep  the  said 

so  that  you  have  h . .  body  forthwith  before  me,  to  answer  the  said 

order,  and  be  further  dealt  Avith  according  to  law. 

Given  under  my  hand  and  the  seal   of   said  court,  this    day  ot 

,  19... 

Judge  of  the  Probate  Court. 

By  ,  Deputy  Clerk. 

§  2215.  Transfer  of  case  to  juvenile  court.  §  1659.  When 
a  minor  under  the  age  of  eighteen  years  is  arrested,  such  child, 
instead  of  being  taken  before  a  justice  of  the  peace  or  police 
judge,  shall  be  taken  directly  before  such  juvenile  judge ;  or, 
if  the  child  is  taken  before  a  justice  of  the  peace  or  a  judge  of 
the  police  court,  it  shall  be  the  duty  of  such  justice  of  the  peace 
or  such  judge  of  the  police  court,  to  tran.sfer  the  case  to  the 
judge  exercising  the  jurisdiction  herein  provided.  The  officers 
having  such  child  in  charge  shall  take  it  before  such  judge,  who 
shall  proceed  to  hear  and  di.spose  of  the  case  in  the  same  man- 
ner as  if  the  child  had  been  brought  before  the  judge  in  the 
first  instance.     [99  v.  197,  §19;  103  v.  864  (874).] 


§  2216.     Child  arrested  on  warrant  from  justice  of  peace  or 

police  court. 

The  previous  section  removes  all  jurisdiction  over  a  child  who 
violates  the  law  who  is  under  eighteen  years  of  age.  No  matter 
where,  or  when  such  child  is  arrested,  it  is  not  to  be  taken  to  a 
police  court  or  a  justice  of  the  peace.  One  object  of  the  law 
is  to  keep  children  away  from  such  courts ;  the  other  is  to  have 
the  child  dealt  with  as  the  juvenile  law  provides. 


1837  PROBATION  OFFICERS  §  2217 

When  the  child  is  taken  to  the  Juvenile  Court  the  ease  is 
then  proceeded  with  the  same  as  if  the  citation  or  warrant  had 
issued  from  that  court  in  the  first  instance. 

The  police  court  or  justice  of  the  peace  should  note  on  his 
docket  that  the  case  is  transferred  to  the  Juvenile  Court  and 
send  all  the  papers  to  that  court.  If  the  offense  charged  is  a 
felony,  the  Juvenile  Court  may  bind  the  child  over  to  the  Court 
of  Common  Pleas,  the  same  as  the  police  court  or  justice  of  the 
peace  might  have  done,  had  that  court  retained  jurisdiction.^- 

§  2217.  Writs,  to  whom  issued.  §1660.  The  summons, 
warrants,  citations,  subpoenas  and  other  writs  of  such  judge 
may  issue  to  a  probation  officer  of  any  such  court  or  to  the  sheriff 
of  any  county,  and  the  provisions  of  law  relating  to  the  sub- 
poenaing of  witnesses  in  criminal  cases  shall  apply  in  so  far 
as  they  are  applicable.     [99  v.  197,  §  20;  103  v.  864  (874).] 

§  2218.  Expense,  how  paid.  §  1661.  When  a  summons  or 
warrant  is  issued  to  any  such  officer,  the  expense  in  pursuing 
and  bringing  the  person  named  therein,  before  such  judge,  shall 
be  paid  by  the  county  in  the  manner  prescribed  by  law  for  the 
payment  of  deputies,  assistants  and  other  employes  of  county 
officers.     [99  v.  197,  §21;  103  v.  864   (874).] 

§  2219.  Probation  oiRcers— Appointment.  §  1662.  The 
judge  designated  to  exercise  jurisdiction  may  appoint  one  or 
more  discreet  persons  of  good  moral  character,  one  or  more  of 
whom  may  be  a  woman,  to  serve  as  probation  officers,  during 
the  pleasure  of  the  judge.  One  of  such  officers  shall  be  known 
as  chief  probation  officer  and  there  may  be  one  or  more  assistants. 
Such  chief  probation  officer  and  assistants  shall  receive  such 
compensation  as  the  judge  appointing  them  may  designate  at 
the  time  of  the  appointment; 

Compensation.  Provided,  however,  that  such  compensation 
may  be  increased  or  decreased  at  any  time  by  said  judge,  but 
the  compensation  of  the  chief  probation  officer  shall  not  exceed 
three  thousand  dollars  per  annum  and  that  of  the  assistants 
shall  not  exceed  twenty-four  hundred  dollars  per  annum.  The 
judge  may  appoint  other  probation  officers,  with  or  without 
compensation,  when  the  interests  of  the  county  require  it. 

How  paid.  The  compensation  of  the  probation  officers  shall 
be  paid  by  the  county  treasurer  from  the  county  treasury  upon 
the  warrant  of  the  county  auditor,  which  shall  be  issued  upon 
itemized  vouchers  sworn  to  by  the  probation  officers  and  cer- 
tified to  by  the  judge  of  the  juvenile  court.  The  county  auditor 
shall  issue  his  warrant  upon  the  treasury  and  the  treasurer 

62  §  1681  G.  C,  §  2242. 


§  2220  JUVENILE  COURT  1838 

shall  honor  and  pay  the  same,  for  all  salaries,  compensation 
and  expenses  provided  for  in  this  act,  in  the  order  in  which 
proper  vouchers  therefor  are  presented  to  him.      [109  v.  527.] 

§2220.  Appointment  of  probation  oflBcer. 
On  no  one  person  rests  greater  opportunity  to  accomplish 
the  purposes  of  the  juvenile  law,  than  the  probation  officer. 
All  that  was  said  concerning  the  attributes  of  the  judge,  pre- 
siding over  this  court,  apply  to  this  official.  The  law  says  he 
must  be  a  discreet  person  and  of  good  moral  character,  but 
this  is  not  all;  he  should  be  industrious  and  have  the  faculty 
of  getting  along  with  children  and  getting  into  their  confidence. 
He  should  be  absolutely  free  from  prejudice,  with  a  judicial 
mind  that  would  make  him  free  from  bias  or  influence  in  the 
performance  of  his  duties.  Necessarily  the  judge  must  rely  upon 
his  reports.  Then  too,  in  all  hearings  he  must  be  present  and 
represent,  not  the  State,  not  the  person  filing  the  complaint,  hut 
the  child.  He  must  never  forget  that  he  represents  the  child. 
The  object  and  purpose  of  the  law  is  the  child's  welfare,  and 
it  is  his  duty  to  do  that  and  that  only,  which  will  contribute 
to  that  result.  He  may  fail  in  many  instances,  but  that  should 
always  be  his  sole  aim. 

§  2221.    Form— Appointment  of  probation  ofiBcer. 

Probate  Court, County,  0., ,  A.  D.  19 .  .  . 

In  the  matter  of   , ,  probation  officer. 

APPOIXTilENT. 

Pursuant  to  the  laws  of  Ohio  concerning  delinquent,  neglected  or  de- 
pendent children,  the  Probate  Court  of  this  county,  believing  that   

residing  at    is  a  discreet  person  of  good  moral   character,  hereby 

appoints  the  said to  serve  as probation  officer  of  said  court. 

Tlie  law  provides  that  said  appointment  shall  continnue  during  the 
pleasure  of  the  judge. 

It  is  the  duty  of  said  probation  officer,  when  any  child  is  to  be  brought 
before  the  judge,  pursuant  to  the  above-mentioned  law,  to  make  investiga- 
tion of  such  ase;  to  be  present  in  court  to  represent  the  interest  of  the 
child  when  the  case  is  heard;  to  furnish  to  the  judge  such  information  and 
assistance  as  he  may  require;  and  to  take  charge  of  any  child  before  and 
after  the  trial  as  may  be  directed  by  the  judge. 

And  it  is  ordered' by  the  judge  that  a  certificate  of  this  appointment 
under  the  seal  of  said  court  as  evidence  of  the  same,  issue  to  said  person 
so  appointed. 

,  Judge  of  the  Probate  Court. 

CERTIFICATE. 

The  State  of  Ohio,   County. 

I,  the  undersigned  judge  of  the  Probate  Court  within  and  for  said 
county,  hereby  certify  "that  the  foregoing  is  a  true  copy  from  the  journal 


1839  PROSECUTING  ATTORNEY ;  DUTY  OF  §  2222 

of  the  proceedings  of  said  court  within  and  for  said  county. 

In  testimony  whereof,  I  do  hereunto  subscribe  my  name  ofBcially,  and 

affix  the  seal  of  said  court,  this  day  of  ,  19 . , . 

,  Judge  of  the  Probate  Court. 

[SEAL] 

§  2222.    Oath  of  office  of  probation  officer. 

The  State  of  Ohioj  County. 

being  duly  sworn  says  that  .  .he  will  support  the  Constitution  of 

the  United  States  and  the  Constitution  of  the  State  of  Ohio,  and  will 
faithfully  discharge  the  duties  devolving  upon  h..  as  probation  officer 
of County,  Ohio. 


Sworn  to  before  me  and  signed  in  my  presence,  this    dav  of 

A.D.19... 


§  2223.     Duties  and  powers  of  probation  officers.     §  1663. 

When  a  complaint  is  made  or  filed  again.st  a  minor,  the  proba- 
tion officer  shall  inquire  into  and  make  examination  and  investi- 
gation into  the  facts  and  circumstances  surrounding  the  alleged 
delinquency,  neglect,  or  dependency,  the  parentage  and  sur- 
roundings of  such  minor,  his  exact  age,  habits,  school  record, 
and  every  fact  that  will  tend  to  throw  light  upon  his  life  and 
character. 

Shall  be  present  in  court.  He  shall  be  present  in  court  to 
represent  the  interests  of  the  child  when  the  case  is  heard, 
furnish  to  the  judge  such  information  and  assistance  as  he  may 
require,  and  take  charge  of  any  child  before  and  after  the  trial 
as  the  judge  may  direct. 

Shall  serve  warrants  within  and  without  county.  He  shall 
serve  the  warrants  and  other  process  of  the  court  within  or 
without  the  county,  and  in  that  respect  is  hereby  clothed  with 
the  powers  and  authority  of  sheriffs. 

May  make  arrests  on  view,  etc.  He  may  make  arrests  with- 
out warrant  upon  reasonable  information  or  upon  view  of  the 
violation  of  any  of  the  provisions  of  this  chapter,  detain  the 
person  so  arrested  pending  the  issuance  of  a  warrant,  and  per- 
form such  other  duties,  incident  to  their  offices,  as  the  judge 
directs. 

All  sheriffs  shall  assist.  All  sheriffs,  deputy  sheriffs,  con- 
stables, mar.shals  and  police  officers  shall  render  assistance  to 
probation  officers,  in  the  performance  of  their  duties,  when  re- 
quested so  to  do.     [99  V.  198,  §  23.1 

§  2224.  Prosecuting  attorney,  duty  of.  §  1664.  On  the 
request  of  the  judge  exercising  such  jurisdiction,  the  prosecuting 
attorney  of  the  county  shall  prosecute  all  persons  charged  with 
violating  any  of  the  provisions  of  this  chapter.      [99  v.  198, 

§  24.  f  2 

«3  The  court  has  no  power  to  ap-  prosecuting  attorney.  Atty.  Genl's. 
point    an    attorney    to    assist    the      opinion   (1921),  G6  Bull.  165. 


§  2225  JUVENILE  COURT  1840 

§  2225.  Bail.  §  1G65.  The  provisions  of  law  relating  to 
bail  in  criminal  cases  in  the  common  pleas  court  shall  apply  to 
persons  committed  or  held  under  the  provisions  of  this  chapter 
so  far  as  they  are  applicable.     [99  v.  198,  §  25.]**^^ 

§  2226.  Suspension  of  sentence.  §  1666.  In  every  case  of 
conviction  and  where  imprisonment  is  imposed  as  part  of  the 
punishment,  such  judge  may  suspend  sentence  upon  such  condi- 
tions as  he  imposes.     [99  v.  198,  §  26.] 

§  2227.  Forfeit  of  bond.  §  1667.  When,  as  a  condition  of 
suspension  of  sentence,  bond  is  required  and  given,  upon  the 
failure  of  a  person  giving  such  bond  to  comply  with  the  terms 
and  conditions  thereof,  such  bond  may  be  forfeited,  the  sus- 
pension terminated  by  the  judge,  the  original  .sentence  executed 
as  though  it  had  not  been  suspended,  and  the  term  of  any  jail 
or  workhouse  sentence  imposed  in  such  case  shall  commence 
from  the  date  of  imprisonment  of  such  person  after  such  for- 
feiture and  termination  of  suspension.  Any  part  of  such  sentence 
which  may  theretofore  have  been  served,  shall  be  deducted  from 
any  such  period  of  imprisonment.     [99  v.  198,  §  27.  Y^ 

§  2228.  Error  proceedings.  §  1668.  The  provisions  of  the 
law  relating  to  error  proceedings  from  the  court  of  common 
pleas,  including  the  allowance  and  signing  of  bills  of  excep- 
tions shall  apply  to  prosecutions  of  persons  over  eighteen  years 
of  age  under  this  chapter,  and  from  the  judgment  of  a  judge 
of  the  court  of  common  pleas  in  such  prosecutions  error  may 
be  prosecuted  to  the  circuit  court  of  the  county  under  laws 
governing  prosecution  of  proceedings  in  error  in  other  criminal 
cases  to  such  circuit  court ;  and  from  the  judgment  of  a  judge 
of  the  probate  court  in  such  prosecution,  error  may  be  prose- 
cuted to  the  common  pleas  court  of  the  county  under  the  laws 
governing  prosecution  of  proceedings  in  error  from  the  probate 
court  to  the  court  of  common  pleas. 

Lease  obtained.  A  petition  in  error  shall  not  be  filed  either 
in  the  circuit  court  or  court  of  common  pleas  except  upon  good 
cause  shown,  upon  motion  and  notice  to  the  prosecuting  attor- 
ney, as  in  civil  cases,  or  unless  such  motion  is  allowed  by  such 
courts.     [103  V.  405   (416)  ;  103  v.  864  (875).]^^ 

§  2229.     Appeal  and  error. 

It  is  a  well-settled  rule  in  Ohio  that  the  matter  of  appeal 
and  error  are  purely  statutory  matters,  and  if  the  statute  does 

63a  See  §§13492  to  13757  G.  C.  proceedings    preliminary    to    error, 

64  See  §  13545  G.  C,  for  forms  of  and    §§  13751    to    13764    G.    C.    for 

forfeiture.     Patterson's  Wilson's  Cr.  error    proceedings     and    notes     and 

Code  §  13552,  forms  of  recognizances.  forms    in    Patterson's   Wilson's    Cr. 

.  65  See  §§  13745  to  13750  G.  C.  for  Code. 


1841  APPEAL  AND  ERROR  §  2229 

not  provide  for  sueli,  none  exists,*"^  and  this  rule  applies  to 
criminal  as  well  as  civil  cases.''^ 

It  would  therefore  follow  that  there  is  no  right  of  appeal  of 
any  case  from  the  decision  of  the  Juvenile  Court,  and  no  right 
to  prosecute  error  in  any  case,  unless  the  person  charged  is 
over  eighteen  years  of  age;  it  makes  no  difference  what  the 
offense  may  be  with  which  he  is  charged.  If  the  offender  is 
over  eighteen  years  of  age,  then  he  may  prosecute  error  to  the 
Court  of  Common  pleas  if  the  probate  judge  is  presiding  as 
judge  in  the  Juvenile  Court,  and  to  the  Court  of  Appeals  if  the 
judge  presiding  in  the  Juvenile  Court  be  a  common  pleas  judge. 

However,  no  such  error  can  be  prosecuted  unless  by  leave  of 
the  higher  court,  on  good  cause  shown  and  notice  to  the  prose- 
cuting attorney. 

If,  however,  the  offense  committed  be  such  that  under  our 
law  it  is  not  only  such  as  may  be  covered  by  the  juvenile  law, 
but  also  one  recognized  as  a  crime  by  the  laws  of  our  State,  it 
seems  he  might  be  amenable  to  punishment  under  such  criminal 
laws,  notwithstanding  the  fact  that  he  had  been  tried  in  the 
Juvenile  Court.  This  is  so  because  the  juvenile  laws  are  special, 
statutory  and  correctional,  but  not  criminal.  Thus  if  a  minor 
under  eighteen  years  of  age  shot  a  person  and  killed  him,  and 

66  In  re  Janviszewski,  196  Fed.  by  an  appelate  court  of  the  final 
123;  10  0.  L.  R.  661;  Barr  vs.  judgment  in  a  criminal  case,  liow- 
Closterman,  2  C.  C.  390;  Karb  vs.  ever  grave  the  offense  of  which  the 
State,  54  0.  S.  383.  It  is  a  rule  of  accused  is  convicted,  was  not  at  com- 
construction  that  when  a  new  right  mon  law  and  is  not  now  a  necessary 
with  its  remedy  is  given  by  statute  element  of  due  process  of  law.  It 
and  there  is  no  provision  for  review  is  wholly  within  the  discretion  of 
or  appeal  from  those  Avho  admin-  the  state  to  allow  or  not  to  allow 
ister  the  statute  creating  such  such  a  review.  It  is  therefore,  clear 
right,  such  determination  is  us-  that  the  right  of  appeal  may  be 
ually  final.  In  such  case  an  ad-  accorded  by  the  state  to  the  ac- 
vcrse  decision  cannot  bo  overcome  cused  upon  such  terms  as  in  its 
by  appeal  or  original  petition  in  a  wisdom  may  be  proper;  and 
court  of  justice.     Id — .  whether  an  appeal  should  be  allowed, 

67  In  Andrews  vs.  Swartz,  Lie  U.  and  if  so,  under  what  circumstances 
S.  272,  Mr.  Justice  Harlan,  quoting  or  on  what  conditions  are  matters 
with  approval  McKane  vs,  Durston,  for  each  state  to  determine  for 
153  U.  e.  684,  687,  said:  itself." 

"An  appeal  from  a  judgment  of  It  is  not  urged  and  can  not  be 

conviction   is   not   a   matter   of   ab-  successfully      maintained      that     a 

solute   right,   independently   of   con-  laxer    rule   obtains    in    distinctively 

stitutional    or   statutory    provisions  criminal    cases   than   in   those   of   a 

allowing    such     appeal.       A     review  civil  or  quasi-criminal  nature. 


§  2230  JUVENILE  COURT  1842 

was  afterwards  charged  in  the  Juvenile  Court  with  a  delin- 
quency for  the  same  act  and  found  guilty,  this  would  not  pre- 
vent the  grand  jury  from  indicting  the  child  for  murder,  and 
the  child  being  tried  and  convicted  thereon.  The  fact  that  the 
next  section  provides  that  the  proceedings  of  the  Juvenile  Court 
are  not  admissible  in  any  other  legal  proceedings  against  the 
child,  bears  out  the  view  that  it  may  be  subject  to  such  further 
criminal  proceedings. 

The  twice  in  jeopardy  rule  could  not  be  applied,  because  the 
same  offense,  although  it  may  be  the  same  act,  is  not  charged 
in  each  case.  Whether  or  not  the  child  after  he  was  within  the 
jurisdiction  of  the  Juvenile  Court  could  be  punished  for  such 
crime  until  he  was  twenty-one  years  old,  or  the  jurisdiction  of 
the  Juvenile  Court  had  terminated,  may  be  one  of  some  doubt. 
If  a  felony  has  been  committed,  the  judge  may,  instead  of  pro- 
ceeding under  the  juvenile  law,  bind  him  over  to  the  grand  jury, 
to  be  proceeded  with  as  a  criminal,^^  and  probably  in  such  cases 
unless  there  are  some  great  mitigating  circumstances,  this  should 
be  done  instead  of  proceeding  under  the  juvenile  law.  Whether 
if  the  proceedings  be  in  the  Probate  Court  or  not,  the  statute 
providing  that  the  court  shall  have  monthly  terms  or  quarterly 
terms,  is  not  clear,  but  as  the  proceeding  is  more  in  the  nature 
of  a  criminal  proceeding  than  a  civil  action,  I  am  inclined  to 
believe  that  the  terms  are  monthly,  beginning  on  the  first  Mon- 
day of  each  month.^^ 

§  2230.  Findings,  not  lawful  evidence.  §  1669.  The  dis- 
position of,  or  any  order,  judgment,  or  finding  against  a  child 
under  this  chapter,  or  any  evidence  given  in  any  proceeding 
thereunder,  shall  not  in  any  civil,  criminal  or  other  cause  or 
proceeding  whatever  in  any  court,  be  lawful  or  proper  evidence 
against  such  child  for  any  purpose  whatever,  except  in  subse- 
quent cases  herein  against  the  same  child.      [99  v.  199,  §  29.] 

§  2231.     Detention  home,  how  established  and  conducted. 

§  1670.  Upon  the  advice  and  recommendation  of  the  judge 
exercising  the  jurisdiction  provided  herein,  the  county  com- 
missioners shall  provide  by  purchase  or  lease,  a  place  to  be 
known  as  a  "detention  home"  within  a  convenient  distance  of 
the  court  house,  not  used  for  the  confinement  of  adult  persons 
charged  with  criminal  offenses,  where  delinquent,  dependent  or 
neglected  minors  under  the  age  of  eighteen  years  may  be  de- 
tained until  final  disposition,  which  place  shall  be  maintained  by 
the  county  as  in  other  like  cases. 

68  §  1681  G.  C,  §  2242.  «9  §  3457  G.  C,  §  5. 


1843  EXPENSES   OF   DETENTION    HOME  §  2232 

Superintendent  and  matron.  In  counties  having  a  popula- 
tion in  excess  of  forty  thousand,  the  judge  may  appoint  a  super- 
intendent and  matron  who  shall  have  charge  of  said  home,  and 
of  the  delinquent,  dependent  and  neglected  minors,  detained 
therein. 

Qualifications.  Such  superintendent  and  matron  shall  be 
suitable  and  discreet  persons,  qualified  as  teachers  of  children. 

How  furnished.  Such  home  shall  be  furnished  in  a  com- 
fortable manner  as  nearly  as  may  be  as  a  family  home. 

Delinquent  and  dependent  children  separate.  So  far  as 
possible  delinquent  children  shall  be  kept  separate  from  depend- 
ent children  in  such  home.  The  compensation  of  the  superin- 
tendent and  matron  shall  be  fixed  by  the  county  commissioners. 

Compensation.  Such  compensation  and  the  expense  of 
maintaining  the  home  shall  be  paid  from  the  county  treasury 
upon  the  warrant  of  the  county  auditor,  which  shall  be  issued 
upon  the  itemized  voucher,  sworn  to  by  the  superintendent  and 
certified  by  the  judge. 

Sexes  separate.  In  all  such  homes  the  sexes  shall  be  kept 
separate^  so  far  as  practicable.  [99  v.  199,  §30;  103  v.  864 
(875).] 

§  2232.  Expenses  of  detention  home.  §  1671.  "When  such 
detention  home  is  provided  by  the  county  commissioners,  and 
upon  such  home  being  recommended  by  the  judge,  the  com- 
missioners shall  enter  an  order  on  their  journal  transferring  to 
the  proper  fund  from  any  other  fund  or  funds  of  the  county, 
in  their  discretion,  such  sums  as  may  be  necessary  to  purchase 
or  lease  such  ho2ue  and  properly  furnish  and  conduct  it  and 
pay  the  compensation  of  the  superintendent  and  matron.  The 
commissioners  shall  likewise  upon  the  appointment  of  probation 
officers,  transfer  to  the  proper  fund  from  any  other  fund  or 
funds  of  the  county,  in  their  discretion,  such  sums  as  may  be 
necessary  to  pay  them,  and  such  transfers  shall  be  made  upon 
the  authority  of  this  chapter.  At  the  next  tax  levying  period, 
provisions  shall  be  made  for  the  expenses  of  the  court.  [99  v. 
199,  §30.1 

§  2233.  When  child  is  in  temporary  or  permanent  care  and 
custody.  §  1672.  If  the  court  awards  a  child  to  the  care  of 
an  institution,  association,  or  a  state  board  in  accordance  with 
the  provisions  of  this  and  other  chapters,  the  judge  shall  in  the 
award  or  commitment  designate  whether  it  is  for  temporary  or 
permanent  care  and  custody. 

Limitation  of  temporary  care.  If  for  temporary  care,  the 
award  or  commitment  shall  not  be  for  more  than  twelve  months, 
and  before  the  expiration  of  such  period  the  court  shall  make 
other  disposition  of  the  matter,  or  recommit  the  child  in  the 
same  manner.     During  such  period  of  temporary  care  the  in- 


§  2234  JUVENILE   COURT  1844 

stitution,  association  or  state  board  to  which  such  child  is  com- 
mitted shall  not  place  it  in  a  permanent  foster  home,  but  shall 
keep  it  in  readiness  for  return  to  parents  or  guardian  when- 
ever the  court  shall  so  direct. 

Require  permission  to  place  in  home.  At  any  time  during 
such  temporary  custody  the  institution  or  board  to  whom  such 
child  is  committed,  may,  whenever  there  is  an  opportunity  to 
place  such  child  in  a  foster  home  by  adoption,  request  the  court 
to  determine  whether  such  commitment  should  be  modified  to 
include  permanent  care  and  custody. 

Permanent  care  may  place  in  home.  AYhenever  a  child  is 
committed  to  the  permanent  care  of  an  institution,  association 
or  a  state  board,  it  shall  ipso  facto  come  under  the  sole  and 
exclusive  guardianship  of  such  institution,  association  or  state 
hoard,  whereupon  the  jurisdiction  of  the  court  shall  cease  and 
determine,  except  that  such  institution,  association  or  board,  to 
which  .such  child  is  permanently  committed  may  petition  said 
court  to  make  other  disposition  of  such  child  because  of  physical, 
mental  or  moral  defects. 

Procedure  in  adoption.  Such  institution,  association  or 
state  board  may  place  such  child  in  a  foster  family  home  and 
shall  be  made  a  party  to  any  proceedings  for  the  legal  adoption 
of  the  child.  Assent  on  the  part  of  such  institution,  association 
or  state  board  shall  be  sufficient  to  authorize  the  judge  to  enter 
the  proper  order  or  decree  of  adoption.  In  a  similar  manner 
the  court  may  award  a  child  to  the  care  or  guardianship  of  an 
individual,  but  such  individual  shall  not  place  such  child  in  the 
care  of  another  person  or  assent  to  adoption  except  upon  order 
of  said  juvenile  court;  such  guardianship  shall  not  include  the 
guardianship  of  any  estate  of  the  child. 

Monthly  report  by  juvenile  court  to  board  of  state  charities. 
For  the  purpose  of  information  and  co-operative  supervision  the 
juvenile  court  shall  report  monthly  to  the  board  of  state  charities 
the  names  of  children  committed  to  institutions  and  individuals; 
provided  that  such  report  shall  not  include  a  child  coming  under 
the  supervision  and  custody  of  the  court  but  permitted  to  remain 
with  parents  or  guardian.  The  board  of  state  charities  shall 
prepare  and  furnish  suitable  blanks  for  such  reports.  [108  v. 
Pt.  I  260.] 


§  2234.     Commitment  temporarily  or  permanently. 

This  is  a  recent  amendment  and  is  now  a  requirement  of  all 
commitments.  If  the'  commitment  is  temporary,  which  shall  not 
be  for  more  than  twelve  months,  the  court  shall  make  some  other 
disposition  of  the  child  or  re-commit  the  same.  During  the  time 
of  this  temporary  commitment,  the  institution  must  keep  the 
child  in  readiness  to  return  it  when  the  court  orders.     If  the 


1845  AGENT  OP  CERTAIN  INSTITUTIONS  §  2235 

opportunity  is  presented  to  the  institution  to  place  it  in  a  foster 
home  by  adoption,  the  juvenile  judge  shall  be  notified  and  the 
court  shall  determine  whether  the  temporary  commitment  shall 
be  made  a  permanent  one.  If  the  commitment  is  a  permanent 
one,  then  the  institution  becomes  possessed  of  the  sole  control 
of  the  child,  and  the  jurisdiction  of  the  court  shall  cease,  except 
because  of  physical,  mental  or  moral  defects  it  may  petition  the 
court  to  make  some  other  disposition  of  the  child.  The  institu- 
tion then  places  the  child  in  a  foster  home  and  has  it  adopted 
there. 

The  court  may  place  the  child  with  an  individual,  but  such 
individual  can  not  have  the  child  adopted  except  on  a  special 
order  of  the  court. 

§  2235.  Agreement  with  incorporated  institution  for  care 
of  child.  §  1673.  The  parents,  parent,  o-uardian  or  other  per- 
son or  persons  having  the  right  to  dispose  of  a  dependent  or 
neglected  childmay  enter  into  an  agreementwith  any  association 
or  institution,  incorporated  under  any  law  of  this  state  which  has 
been  approved  by  the  board  of  state  charities  as  provided  by  law, 
for  the  purpose  of  aiding,  caring  for  or  placing  in  homes  such 
children,  or  for  the  surrender  of  such  child  to  such  association  or 
institution,  to  be  taken  and  cared  for  by  such  association  or  in- 
stitution, or  put  into  a  family  home.  Such  agreement  may  con- 
tain any  and  all  proper  stipulations  to  that  end,  and  may  author- 
ize the  association  or  institution,  to  appear  in  any  proceeding, 
for  the  legal  adoption  of  such  child,  and  consent  to  its  adoption. 
The  order  of  the  judge  made  upon  such  consent  shall  be  binding 
upon  the  child  and  its  parents,  guardian  or  other  person,  as  if 
such  persons  were  personally  in  court  and  consented  thereto, 
whether  made  party  to  the  proceeding  or  not.  [103  v.  864 
(876.)] 

§  2236.  Agent  of  certain  institutions,  duties  of.  §  1674. 
The  chief  officer  of  the  boys'  industrial  school,  and  of  the  girls' 
industrial  school,  and  the  manager  of  any  other  institution  to 
which  juvenile  delinquents  may  be  committed,  shall,  each,  main- 
tain agents  of  such  institution,  who  shall  examine  the  homes 
of  children  paroled  for  the  purpose  of  reporting  to  such  chief 
officer  or  manager,  whether  they  are  suitable  homes,  and  assist 
children  paroled  or  discharged  from  such  institution  in  finding 
suitable  employment,  and  maintain  a  friendly  supervision  over 
paroled  inmates. 

Compensation.  Such  agents  shall  hold  office  subject  to  the 
pleasure  of  the  chief  officer  or  manager  making  the  appointment 
and  shall  receive  such  compensation  as  the  Ohio  board  of  ad- 
ministration may  determine.     [103  v.  864  (876).] 


^  2237  JUVENILE  COURT  1846 

§  2237.    Judge  may  require  report  from  institution.     §  1675. 

At  any  time  the  judge  may  require  from  an  association  receiving 
or  desiring  so  to  receive  children,  such  reports,  information  and 
statements  as  he  deems  proper  and  necessary.  He  may  at  any 
time  require  from  an  association  or  institution,  reports,  informa- 
tion or  statements  concerning  any  child  or  children  committed 
to  it  by  him,  under  the  provisions  of  this  chapter.  [103  v. 
864   (877). 1 

§  2238.  Associations  of  other  states.  §  1677.  No  association 
of  another  state,  incorporated  or  otherwise,  shall  place  a  child  in 
a  family  home  within  the  boundaries  of  this  state,  either  with 
or  without  indenture  or  for  adoption,  unless  such  association 
shall  have  furnished  the  board  of  state  charities  with  such 
guaranty  as  it  may  require  that  no  child  having  a  contagious 
disease,  deformity,  feeble  mind  or  vicious  character,  shall  be 
brought  into  this  state  by  such  association  or  its  agents,  and 
that  such  association  will  promptly  receive  and  remove  from 
the  state,  a  child  brought  into  the  state  by  its  agents,  which 
shall  become  a  public  charge,  within  the  period  of  five  years 
thereafter.      [103  v.  864    (877).] 

§  2239.  Penalty.  §  1678.  Whoever  violates  any  of  the  pro- 
visions of  section  1677  shall  be  imprisoned  in  the  county  jail 
not  more  than  thirty  days,  or  fined  not  less  than  five  dollars 
or  more  than  one  hundred  dollars,  or  both,  in  the  discretion  of 
the  judge.     [103  V.  864  (877).] 

§  2240.  Religious  belief.  §  1679.  The  judge  in  committing 
children  shall  place  them,  so  far  as  practicable,  in  the  care  and' 
custody  of  an  individual  holding  the  same  religious  belief  as 
such  child  or  its  parents,  or  with  some  association  which  is  con- 
trolled by  persons  of  like  religious  faith  as  such  child  or  its 
parents.      [99  v.   202,   §37.] 

§  2241.     How  chapter  construed  as  to  industrial  schools. 

§  1680.  Nothing  herein  shall  be  construed  to  repeal  any  pro- 
vision of  law  relating  to  the  bovs'  industrial  school  or  the  girls' 
industrial  school.     [99  v.  202, '§38;  103  v.  864  (877).]^" 

§  2242.  When  child  is  charged  with  felony.  §  1681.  When 
any  information  or  complaint  shall  be  filed  against  a  delinquent 
child  under  these  provisions,  charging  him  with  a  felony,  the 
judge  may  order  such  child  to  enter  into  a  recognizance,  with 
good  and  sufficient  surety,  in  such  amount  as  he  deems  reason- 
able, for  his  appearance  before  the  court  of  common  pleas  at 

70  See  §§2083  to  2100  G.  C,  as  to       School,    and    notes    and    forms    ia 
Boys  Industrial  School  and  §§2101       Patterson's  Wilson's  Cr.  Code, 
to  2119  G.  C.,  as  to  Girls  Industrial 


1847  BINDING   OVER   TO    COMMON   PLEAS   COURT  §  2243 

the  next  term  thereof.  The  same  proceedings  shall  be  had 
thereafter  upon  such  complaint  as  now  authorized  by  law  for 
the  indictment,  trial,  judgment  and  sentence  of  any  other  per- 
son charged  with  a  felony.     [99  v.  202,  §  39.] 


§  2243.    Binding  over  to  court  of  common  pleas. 

The  previous  section  is  not  mandatory  but  rests  in  the  dis- 
cretion of  the  juvenile  judge  whether  he  shall  proceed  under 
the  juvenile  law,  or  require  the  persons  charged  to  appear  before 
the  Court  of  Common  Pleas  to  answer  for  the  offense  he  has 
committed. 

In  such  cases  the  child's  welfare  becomes  subordinate  to  that 
of  the  State  as  protector  of  the  peoples'  common  welfare.  If 
the  crime  charged  is  a  heinous  one  and  the  child  of  sufficient 
years  of  discretion  to  know  the  nature  of  the  offense,  and  there 
is  a  probability  of  his  commission  of  the  act,  and  the  surround- 
ing circumstances  are  of  an  unmitigating  character,  the  court 
can  do  nothing  less  than  to  bind  him  over  to  the  grand  jury. 
However,  if  the  act  is  of  a  mild  type,  and  the  child  may  be 
reclaimed  and  become  a  useful  member  of  society,  the  court 
would  be  justified  in  not  making  the  order.  It  is  one  of  the 
many  instances  where  wisdom  is  a  very  essential  element  of 
the  judge  of  the  Juvenile  Court. 


§  2244.  Form — Journal  entry — Binding  over  to  common  pleas. 

[Title.] 

This  day  this  cause  came  on  to  be  heard  upon  the  evidence  and  was 
submitted  to  the  court,  and  uj)on  due  consideration  the  court  finds  that 
the  defendant  is  probably  guilty  of  the  commission  of  the  act  against  the 
laws  of  the  State  of  Ohio  as  set  forth  in  the  complaint  filed  herein,  and 
the  same  is  a  felony  under  the  laws  of  Ohio;   it  is  therefore  ordered  that 

,    the    defendant    herein    enter    into    a    recognizance    in    the    sum   of 

$ ,   with   good   and   sufficient  surety    for   his    appearance    before   the 

Court  of  Common   Pleas  of    County,  Ohio,  at  the  first  day  of  its 

next  term,  or  in  default  thereof,  he  be  committed  to  the  jail  of    

County,  Ohio,  there  to  remain  until  discharged  by  law. 


§  2245.     Form  of  recognizance,  etc. 

State  of  Ohio, County,  ss. 

Be   it   remembered   that  on   the    day  of    ,   19,..,    ., 

E.  F.  and  C.  D.  personally  appeared  before  me,  and  jointly  and  severally 

acknowledged   themselves   to   owe   the   State   of   Ohio   the   sum   of   $ 

[ dollars!  to  1)0  levied  on  their  goods  and  chattels,  lands  and  tene- 
ments, if  default  be  made  in  the  condition  following,  to-wit :  The  con- 
dition of  this  recognizance  is  such  that  if  tlie  abovo  bound  E,   F.  shall 


§  2246  JUVENILE  COURT  1848 

personally  be  and  appear  before  the   Court  of   Common  Pleas  of    

County,  Ohio,  on  the  first  day  of  the  next  term  thereof,   then  and  there 

to  answer  to  the  charge  of    and  abide  the  judgment  of  the  court, 

and  not  depart  without  leave,  then  this  recognizance  shall  be  void;  other- 
wise it  shall  remain  in  full  force  and  virtue  in  law. 

Taken  and  acknowledged  before  me  on  the  dav  and  vear  above  ■written.^l 


§  2246.  Fees  and  costs,  how  paid.  §  1682,  Fees  and  costs 
in  all  such  cases  with  such  sums  as  are  necessary  for  the  inci- 
dental expenses  of  the  court  and  its  officers,  and  the  expense  of 
transportation  of  children  to  places  to  which  they  have  been 
committed,  except  the  fees  of  the  court  and  the  fees  and  expenses 
of  the  .sheriff  and  his  deputies,  shall  be  paid  from  the  county 
treasury  upon  specificallv  itemized  vouchers,  verified  by  oath 
and  certified  to  bv  judge  of  the  court.  [99  v.  202,  §40;  108 
V.  Pt.  II  1203  (1218).! 

§2247.  Chapter  to  be  liberally  construed.  §1683.  This 
chapter  shall  be  liberally  construed  to  the  end  that  proper 
guardianship  may  be  provided  for  the  child,  in  order  that  it 
may  be  educated  and  cared  for,  as  far  as  practicable  in  such 
manner  as  best  subserves  its  moral  and  physical  welfare,  and 
that,  as  far  a.s  practicable  in  proper  cases,  the  parent,  parents 
or  guardian  of  such  child  may  be  compelled  to  perform  their 
moral  and  legal  duty  in  the  interest  of  the  child.    [99  v.  202,  §  40.] 

§  2248.  Jurisdiction  additional.  §  1683-1!  The  judge  desig- 
nated to  transact  the  business  arising  under  the  jurisdiction 
conferred  in  this  chapter  shall  have  jurisdiction  of  all  mis- 
demeanors against  minors,  and  of  offenses  prescribed  in  sections 
nine  hundred  and  twentj'-eight,  six  thousand  three  hundred  and 
forty-four,  six  thousand  three  hundred  and  forty-five,  six  thou- 
sand three  hundred  and  seventy-three,  twelve  thousand  six  hun- 
dred and  sixty-four,  twelve  thousand  six  hundred  and  sixty-six, 
twelve  thousand  seven  hundred  and  eighty-seven,  thirteen  thou- 
sand and  thirty-one,  thirteen  thousand  and  thirty-five,  and 
thirteen  thousand  and  thirty-eight.  In  all  such  cases  any  person 
may  file  with  the  clerk  of  the  judge  exercising  the  jurisdiction 
an  affidavit,  setting  forth  briefly,  in  plain  and  ordinary  language, 
the  charges  against  the  accused,  and  he  shall  be  tried  thereon, 
and  in  such  prosecutions  an  indictment  by  the  grand  jury  or 
information  by  the  prosecuting  attorney  shall  not  be  required. 
The  judge  shall  forthwith  issue  his  warrant  for  the  arrest  of 
the  accused,  who,  when  arrested,  shall  be  taken  before  said 
judge,  and  tried  according  to  the  provisions  of  this  chapter,  and, 
if  found  guilty,  shall  be  punished  in  the  manner  provided  for  by 
law.     [102  V.  425.] 

71  See  §§  13552  and  13553  G.  C,  for  forms  and  mittimus. 


1849 


MISDEMEANORS    AGAINST    MINORS 


§2249 


§  2249.    Misdemeanors  against  minors,  etc. 

Previous  sections  conferred  ou  the  Juvenile  Court  jurisdic- 
tion in  respect  to  delinquent,  neglected  and  dependent  minors/- 
and  otliers  who  contributed  to  or  were  responsible  for  such 
conditious.'^^ 

The  previous  section  confers  jurisdiction  on  the  Juvenile 
Court  over  other  misdemeanors  committed  by  minors. 

A  previous  section  1659  (§  2215),  required  that  when  a  minor 
under  eighteen  years  of  age  was  arrested  he  should  be  taken  to 
the  Juvenile  Court.  This  allows  certain  matters  to  be  originally 
brought  on  an  ai^idavit  filed  in  the  Juvenile  Court,  and  proceed- 
ings shall  then  he  had  as  in  cases  of  delinquency.  Not  all  mis- 
demeanors may  be  thus  heard;  the  statute  enumerates  those 
that  may.'^* 


72  §  1642  G.  C,  §  2156. 

'3  §  1644  G.  C,  §  2160;  §  1646  G. 
C,  §2164;  §1645  G.  C,  §2162; 
§  1651   G.  C,   §2159. 

•?4  §  928  G.  C,  does  not  describe 
any  offense  and  therefore  must  be  a 
misprint  or  mistake.  It  probably 
means  §  944,  which  seems  previously 
to  have  had  this  number  and  pro- 
vides that  no  person  shall  employ  a 
boy  under  fourteen,  etc.  §  6344  G. 
C.  relates  to  pawnbrokers  taking 
property  from  a  minor  or  a  person 
intoxicated ;  §  6345  to  same  employ- 
ing a  person  under  sixteen  years  of 
age  as  a  pawnbroker;  §6373,  to 
secondhand  dealers  purchasing  from 


minor  any  article  mentioned  in 
chapter  relating  to  junk  shops,  be- 
tween 9  p.  m.  and  7  a.  m.;  §  12664 
to  careless  distribution  of  samples 
containing  poisonous  drugs  to  a 
minor;  §  12666,  to  selling  poisons 
to  a  minor;  §  127S7,  to  midwife 
failing  to  report  diseased  eyes  in  in- 
fant; §  13031,  keeping  house  of  ill- 
fame  and  harboring  child  therein; 
§  13035,  selling  obscene  literature; 
§  13038,  mailing  or  delivering  same 
to  child. 

Under  the  recent  law  the  truants 
from  school  are  to  be  tried  by  the 
Juvenile  Judge.  See  §  7774  G.  C. 
[109  v.  — ]. 


§  2250  mother's  pension  1850 


CHAPTER  ex. 
MOTHER'S  PENSION. 

§2250  Who    entitled    to    (§1683-2).  §  2262  Journal    entry    refusing    al- 

§  2251  Persons  who  may  receive.  lowance. 

§  2252  Amount  allowed  §  2263  ^\^len    allowance    shall   cease 

§2253  Conditions   of  allowance.  (§1083-4). 

§2254  Additional   requirements.  §2264  Disposal  of  funds    (§1683-5). 

§  2255  Form     application     for     sup-  §  2265  To  whom  act  does  not  apply 

port.  (§1683-6). 

§  2256  Journal     entry      preliminary  §  2266  Attempts  to  obtain  by  fraud 

examination.  (§1683-7). 

§  2257  Form    report    of    preliminary  §  2267  Record       of       proceedings 

examination.  (§  1683-8). 

§  2258  Journal    entry    allowance.  §  2268  Appeal   and   error. 

§  225!)  Order    to    auditor.  §  2269  Form    detailed   record,   etc. 

§  2260  Journal  entry  discontinuance.  §  2270  Provisions      for      tax      levy 
§2261  Journal   entry   extending   al-  (§1683-9). 

lowance.  §  2271  Commissioners   may   transfer 

surplus    (§1683-10). 

§2250.  Mother's  pensions,  who  entitled  to.  §1683-2.  For 
the  support  of  women  whose  husbands  are  dead,  or  become  per- 
manently disabled  by  reason  of  physical  or  mental  infinnity,  or 
whose  husbands  are  prisoners  or  whose  husbands  have  deserted, 
and  such  desertion  has  continued  for  a  period  of  three  years, 
wheu  such  women  are  poor,  and  are  the  mothers  of  children  not 
entitled  to  receive  age  and  schooling  certificate,  and  such  mothers 
and  children  have  a  legal  residence  in  any  county  of  the  state 
for  two  years,  the  juvenile  court  may  make  an  allowance  to  each 
of  such  women  as  follows : 

Allowance,  etc.  Not  to  exceed  thirty-five  dollars  a  month 
when  she  has  but  one  child  not  entitled  to  an  age  and  schooling 
certificate,  and  if  she  has  more  than  one  child  not  entitled  to  an 
age  and  schooling  certificate,  it  shall  not  exceed  thirty-five  dol- 
lars a  month  for  the  first  child  and  ten  dollars  a  month  for  each 
of  the  other  children  not  entitled  to  an  age  and  schooling 
certificate. 

Length  of  order.  The  order  making  such  allowance  shall 
not  be  effective  for  a  longer  period  than  six  months,  but  upon 
the  expiration  of  such  period,  said  court  may,  from  time  to  time, 
extend  such  allowance  for  a  period  of  six  months  or  less. 

Visitation  of  homes  and  reports.  Such  homes  shall  be 
visited  from  time  to  time  by  a  probation  officer,  the  agent  of 


1851  AMOUNT   ALLOWED  §  2251 

an  associated  charities  organization,  or  of  a  humane  society  as 
the  court  may  direct,  or  in  the  absence  of  such  probation  officer, 
society  or  organization  in  any  county,  the  sheriff  of  said  county 
shall  make  such  visits  as  directed  by  the  probate  court ;  pro- 
vided that  the  person,  other  than  the  sheriff,  who  actually  makes 
such  visits,  shall  be  thoroughly  trained  in  charitable  relief  work, 
and  the  report  or  reports  of  such  visiting  agent  shall  be  con- 
sidered by  the  court  in  making  such  order  for  relief.  [106  v. 
436;  103  V.  864  (877)  ;  109  v.  70.] 


§  2251.    Person  entitled  to  receive. 

The  previous  and  the  following  sections  have  for  their  pri- 
mary object  the  welfare  of  the  child.  It  is  a  recognition  of  the 
fact  that  the  home  is  the  proper,  and  other  conditions  being 
equal,  the  best  place  for  a  child  to  be  reared;  that  the  mother's 
control  is  better  than  the  State 's,  and  the  first  requirement  then 
of  the  law  is  that  the  person  entitled  to  receive  the  pension 
must  be  a  mother,  and  that  the  child  is  not  entitled  to  receive 
an  age  and  schooling  certificate.  This  certificate  is  granted  to 
minors  over  sixteen  years  of  age.^ 

The  next  requisite  is  that  the  person  must  be  one  whose 
husband  is  dead,  or  permanently  disabled,  or  a  prisoner,  or  has 
been  guilty  of  desertion  for  three  years.  The  statute  would 
evidently  include  the  mother  of  an  illegitimate  child. 

The  next  essential  is  that  mother  and  child  must  have  a  legal 
residence  of  two  years'  duration  in  the  county,  and  the  last  is 
that  the  mother  must  be  poor.  The  word  "poor"  as  here  used 
does  not  mean  that  she  must  be  destitute,  or  own  no  property 
whatever.  It  means  that  she  has  not  sufficient  property  at  his  dis- 
posal to  give  to  her  children  a  proper  home  with  the  use  of 
proper  efforts  on  her  part  towards  that  end.  Purposely  a  wide 
discretion  is  here  allowed  the  judge. 

§  2252.     Amount  allowed. 

The  amount  allowed,  if  there  is  but  one  child  within  the 
limited  age,  is  thirty-five  dollars  per  month,  and  not  to  exceed 
ten  dollars  per  month  for  each  additional  child.  This  runs  for 
six  months  at  a  time,  subject  to  repeated  extension  of  six 
months;  when  the  child  reaches  the  age  of  legal  employment, 
it  ceases.     It  may  be  changed  or  "cut  off  at  any  time  by  order 

1  §  7766  G.  C. 


§  2253  MOTHER 's   PENSION  1852 

of  the  court.  The  amounts  above  stated  are  maxims ;  the  court 
may  fix  any  amount  thereunder.  The  court  can  only  properly 
perform  his  duties  when  he  acquaints  himself  with  all  the  sur- 
rounding circumstances,  and  bearing  in  mind  the  welfare  of  the 
child  and  society  in  general.  The  next  section  gives  further 
conditions  under  which  the  pension  can  be  granted. 

§  2253.  Conditions  of  allowance.  §  1683-3.  Such  allowance 
may  be  made  by  the  juvenile  court,  only  upon  the  following 
conditions : 

Living  with  mother.  First,  the  child  or  children  for  whose 
benefit  the  allowance  is  made  must  be  living  with  the  mother 
of  such  child  or  children  j 

Mother  working,  etc.  Second,  the  allowance  shall  be  made 
only  when  in  the  absence  of  such  allowance,  the  mother  would 
be  required  to  work  regularly  away  from  her  home  and  children, 
and  when  by  means  of  such  allowance  she  will  be  able  to  remain 
at  home  with  her  children,  except  that  she  may  be  absent  for 
work  for  such  time  as  the  court  deems  advisable; 

Mother  proper  person.  Third,  the  mother  must  in  the  judg- 
ment of  the  juvenile  court  be  a  proper  person,  morally,  physi- 
cally and  mentally  for  the  bringing  up  of  her  children ; 

Allowance  necessary.  Fourth,  such  allowance  shall  in  the 
judgment  of  the  court  be  necessary  to  save  the  child  or  children 
from  neglect  and  to  avoid  the  breaking  up  of  the  home  of  such 
woman ; 

Benefit  of  child.  Fifth,  it  must  appear  to  be  for  the  benefit 
of  the  child  to  remain  with  such  mother; 

Preliminary  examination.  Sixth,  a  careful  preliminary  ex- 
amination of  the  home  of  such  mother  must  first  have  been 
made  under  the  direction  of  the  court  by  the  probation  officer, 
the  agent  of  an  associated  charities  organization  or  humane 
society,  or  in  the  absence  of  such  probation  officer,  society  or 
organization  in  any  county,  the  sheriff  of  such  county  shall 
make  .such  investigations  as  the  court  may  direct,  and  a  written 
report  of  the  result  of  such  examination  or  investigation  shall 
be  filed  with  the  juvenile  court,  for  the  guidance  of  the  court 
in  making  or  withholding  such  allowance.  [106  v.  436;  103 
V.  864;  (878).] 

§  2254.    Additional  requirements. 

In  addition  to  the  matter  heretofore  mentioned  in  section 
2250  (§  1683-2),  make  the  following  as  conditions  upon  which 
the  relief  may  be  granted : 

First,  the  child  must  be  living  with  the  mother. 


1853  APPLICATION   FOR   SUPPORT  §  2255 

Second,  it  can  only  be  made  when,  if  it  were  not  for  such 
allowance,  the  mother  would  have  to  work  regularly  from  home 
and  children,  and  with  such  allowance  she  will  be  able  to  remain 
at  home.  The  court  may  allow  her  to  be  absent  a  certain  por- 
tion of  the  time  at  his  discretion. 

Third,  the  mother  must  be  a  proper  person  morally,  physi- 
cally and  mentally  to  train  and  bring  up  the  child. 

Fourth,  the  allowance  must  be  necessary  to  save  the  child 
from  neglect,  and  to  avoid  breaking  up  the  home  of  the  mother. 

Fifth,  it  must  be  for  the  benefit  of  the  child  to  remain  with, 
such  mother. 

Sixth,  a  careful'  preliminary  survey  must  have  been  made, 
of  the  home  of  such  mother,  by  the  probation  officer,  or  some 
other  designated  official, 

I  have  gone  over  these  statutory  matters  in  detail  because, 
they  are  essential,  and  the  judge  should  make  no  order  until 
they  are  all  shown  to  exist.  Another  provision  exists  in  a  sub- 
sequent statute." 

§  2255.    Application  for  support  of  indigent  mother  of  young 

Children. 

Probate  Court,    County,  Ohio. 

To  the  Probate  Court  of  said  County: 

The  undersigned  hereby  makes  application  for  partial  support  as  pro- 
vided by  law,  on  the  ground  that  her  huusband, ,  and  said  applicant 

being  poor  and  the  mother  of  [''children"  or  "a  child"]  not  entitled  to 
receive  an  age  and  schooling  certificate,  and  said  mother  and  children 
being  legal  residents  of  tliis  county  for  two  years  last  past. 

Said  mother  alleges  furthermore  as  follows : 

Firfit — The  child  or  chiklren  named  herein  are  living  with  her,  tlie  said 
mother  and  are  as  follows: 


Name  of  Child 


Age  of  Child 


Schooling,  Etc. 


Second — In  the  absence  of  such  allowance,  she  the  said  mother  would 
be  required  to  work  regularly  away  from  her  home  and  children. 

The  State  of  Ohio,  County. 

The  above  named    ,  being   first   duly   sworn,   says  that  the  facts 

and   allegations    in  the   foregoing   application   contained,   are  true  as   she 
verily  believes. 

Sworn   to   before   me  and   signed   in  my   presence,  this    day   of 

,19... 

,Prol)ate  Judge. 

2  §  168.3-G. 


§  2256  mother's  pension  *  1854 

§  2256.     Journal  entry — Order  for  preliminary  examination. 

In  the  matter  of  Support  of  [Alleged  indigent  mother  of  young  children]. 

This  day  came ,  and  made  application  for  Partial  Support  under 

•Sec.   1683-2  of  the  General   Code.     Tlie  court  directs  that   make  a 

careful   preliminary  examination  of  the  home  of  said    as  required 

by  Sec.  1683-3,  and  make  to  the  court  a  written  report  thereof. 


§  2257.    Report  of  preliminary  examination. 

Probate  Court,   County,  Ohio,   ,  19 . . . 

To  the  Honorable  Probate  Court: 

As  directed  by  you  we  have  made  a  careful  preliminary  examination  of 
the  home  of    ,  living  at   

We  find  that  her  husband    

We  also  find  further  as  follows: 

First — The  said  applicant  is  the  mother  of children  not  entitled 

to  an  age  and  schooling  certificate  and  who  are  living  with  her;  and  that 
both  she  and  the  said  children  are  and  have  been  legal  residents  of  this 
county  since ,  19 . .  . 

Said  children  as  to  age,  etc.,  are  as  follows: 

Xame ,  Age   ,  Schooling,  etc 


Second — In  the  absence  of  an  allowance  by  the  court,  the  mother  would 
be  required  to  work  regularly  away  from  her  home  and  children;   and  by 

means  of  an  allowance  of dollars  a  month  she  will  be  able  to  remain 

at  home  with   her  said  children. 


Thir^d — As  to  her  moral,  physical  and  mental  fitness  for  the  bringing 
up  of  her  children  we  find    

Fourth — The  allowance  is  necessary  to  save  the  child.,  from  neglect 
and  to  avoid  the  breaking  up  of  the  home  of  said  woman. 


Fifth — It  will    be  for  the  benefit  of  the  said  child.,   to  remain 

with  the  mother. 


SixtJi — Further  circumstances  as  to  said  home  are  as  follows; 


J 


1855  FORMS  i  2258 

§2258.     Journal  entry — Allowance. 

[Title.] 

A  written  report  was  this  day  filed  in  the  court  in  pursuance  of  the 
order  heretofore  made  for  a  careful  preliminary  examination  in  this  case 
as  required  by  law. 

Upon  consideration  thereof   it  appears   to  the  court  that  the  husband 

of  said and  that  she  is  poor  and  is  the  mother  of children 

not  entitled  to  receive  an  age  and  schooling  certificate,  and  that  said 
mother  and  children  have  been  legal  residents  of  this  county  for  two 
years  last  past.  Said  case  also  fulfills  the  conditions  prescribed  by 
section  1683-3  of  the  General  Code. 

Therefore  the  court  allows  to  said  mother  for  the  benefit  of  her  said 

children,  the  sum  of dollars  per  month.     It  is  ordered  that 

a  certificate  issue  to  the  county  auditor  for  the  monthly  payment  of 
said  allowance. 


§2259.     Form — Order  to  county  auditor. 

Probate  Court,   County,  Ohio,   ,  19 . . . 

To  the  Auditor: 

This  is  to  certify  that  pursuant  to  the  provisions  of  the  law  for  support 
of   indigent  mothers   of   young  cliildren  the   Probate   Court  has   this   day 

made    an    order    upon    its    journal    for    paying    an    allowance    of    

dollars   per   month    from   date   hereof   for   the   period   of    months, 

to residing  at ,  for  the  benefit  of  her   children. 

You  are  therefore  authorized  to  issue  your  warrant  upon  the  county 
treasury,  each  month  during  said  period,  for  said  allowance,  as  pro- 
vided by  section  1683-9  of  the  General  Code. 

,  Probate  Judge 

By Deputy  Clerk. 


§  2260.      Journal   entry — Order   discontinuing    allowance. 

[Title]  ' 

This  day  it  appearing  to  the  court  that   

It  is  ordered  that  the  allowance  heretofore  made  to be  and  hereby  is 

discontinued.    The  county  auditor  will  therefore  cease  the  issue  of  warranto 
under  the  former  order  made  herein. 

,  Judge. 


§  2261.     Journal  entry — Order  extending  allowance. 

[Title.] 

It  appearing  that  the  allowance  made  to   under  date  of   , 

19...,  to  continue  for  a  period  of   months,  expired    ,  19...; 

it  is  ordered  that  said  allowance  be  and  hereby  is  extended  for  the  period 

of   months  from  tlie  date  of  such  expiration.     Tlie  county  auditor 

will    therefore    issue    his    warrant   on    the    county    treasurer   each   month 
as  heretofore  ordered,  during  such  extended  period. 

,  Judge, 


§  2262  mother's  pension  1856 

§  2262.    Journal  entry — Orders  on  refusing  allowance. 

[Title.] 

This  day  tliis  case  came  on  for  hearing,  and  the  written  report  of  the 

preliminary  examination  of  the  home  of  said    ,  heretofore  directed 

to  be  made,  being  filed  herein,  and  the  court  having  examined  said  ap- 
plicant and  considered  said  report,  and  having  heard  all  the  evidence  and 
testimony,  and  being  fully  advised  in  the  premises,  doth  refuse  to  make 
the  allowance  asked  for,  and  the  application  therefor  is  dismissed  without 
prejudice  and  without  record. 


§  2263.  When  allowance  shall  cease.  §  1683-4,  Whenever 
any  child  shall  reach  the  age  for  legal  employment,  any  allow- 
ance made  to  the  mother  of  such  child  for  the  benefit  of  such 
child  shall  cease.  The  juvenile  court  may,  in  its  discretion,  at 
any  time  before  such  child  reaches  such  age,  discontinue  or 
modify  the  allowance  to  any  mother  and  for  any  child.  [103 
V.  864  (878).] 

§  2264.  Disposal  of  fund  when  amount  insufficient.  §  1683-5. 
Should  the  fund  at  the  disposal  of  the  court  for  this  purpose  be 
sufficient  to  permit  an  allowance  to  only  part  of  the  persons  com- 
ing within  the  provisions  of  this  act,  the  juvenile  court  shall 
select  those  cases  in  most  urgent  need  of  such  allowance.  [103 
V.  864   (878).] 

§  2265.  To  whom  act  does  not  apply.  §  1683-6.  The  pro- 
visions of  this  act  shall  not  apply  to  any  woman  who,  while  her 
husband  is  imprisoned  receives  sufficient  of  his  wages  to  support 
the  child  or  children.      [103  v.  864   (878).] 

§  2266.     Attempt  to  obtain  allowance  by  fraud — Penalty. 

§  1683-7.  Any  person  or  persons  fraudulently  attempting  to 
obtain  any  allowance  for  a  person  not  entitled  thereto,  shall  be 
deemed  guilty  of  a  misdemeanor  and  on  conviction  thereof, 
shall  be  punished  by  a  fine  of  not  less  than  five  nor  more  than 
fifty  dollars,  or  imprisonment  in  the  county  jail,  for  a  period 
of  not  less  than  two  months,  or  both.     [103  v.  864  (878).] 

§  2267.  Record  of  proceeding's.  §  1683-8.  In  each  case 
where  an  allowance  is  made  to  any  woman  under  the  provisions 
of  this  act,  a  record  shall  be  kept  of  the  proceedings,  and  any 
citizen  of  the  county  may,  at  any  time,  file  a  motion  to  set  aside, 
or  vacate  or  modify  such  judgment  and  on  such  motion  said 
juvenile  court  shall  hear  evidence,  and  may  make  a  new  order 
sustaining  the  former  allowance,  modify  or  vacate  the  same, 
and  from  such  order. 

Appeal,  error.  Error  may  be  prosecuted,  or  an  appeal  may 
be  taken  as  in  civil  actions.  If  the  judgment  be  not  appealed 
from,  or  error  prosecuted,  or  if  appealed  or  error  prosecuted, 


1857  APPEAL  AND  ERROR  §  2268 

and  the  judgment  of  the  juvenile  court  be  sustained  or  affirmed, 
the  person  tiling  such  motion  shall  pay  all  the  costs  incident 
to  the  hearing  of  such  motion.     [103  v.  864  (878).] 


§  2268.     Appeal  and  error,  etc. 

At  any  time  any  citizen  of  the  county  may  file  a  motion  to 
set  aside  or  modify  an  order  that  the  court  has  made.  When 
such  motion  is  filed,  the  court  shall  hear  the'  same  on  evidence, 
and  make  whatever  order  it  sees  fit  to  make.  From  this  order 
any  interested  party  may  appeal,  or  take  it  up  to  the  next 
higher  court,  the  same  as  in  any  other  civil  action.  This  matter 
is  not  very  clear;  probably  if  the  case  is  heard  by  a  juvenile 
judge  selected  from  the  Probate  Court,  then  the  provisions  of 
Sec.  11206,  G.  C.  (§39),  would  control  the  appeal.  If  the 
cause  is  heard  by  a  juvenile  judge  selected  from  the  Common 
Pleas  Court,  then  the  provisions  of  Sec.  12224,  G.  C,  would 
control,  If  error,  then  either  Sees.  11643,  G.  C,  or  12247,  G.  C. 
I  assume  that  this  will  be  very  seldomly  used  in  the  right  of 
appeal  or  error.  It  seems  to  be  more  of  a  saving  provision  than 
anything  else. 

Record,  etc.  The  court  should  keep  a  record  of  the  pro- 
ceedings. This  means  that  the  application,  and  the  orders  of 
the  court  should  be  placed  on  the  records  of  the  court;  for 
the  information  of  the  court  a  detailed  statement  made  out  and 
filed  with  the  papers  would  be  of  much  value.  It  might  be  in 
the  following  form: 


§2269 


MOTHER  S   PENSION 


1858 


§2269.    Detailed  statement  and  record  conditions. 


No. 


GROUNDS  FOR  APPLICATION. 
1.  Resident    of    state    for     

of    county    for    


years. 

2.  Resident 
years. 

3.  Husband  is  dead,  dying  on 

day  of at 

4.  Husband  permanently  disabled 
for  work  by  reason  of  pbysical 
incapacity. 

5.  Husband  permanently  disabled 
for  work  by  reason  of  mental 
incapacity. 

6.  Husband  is  a  prisoner  at 

sentenced  from county  on 

,    19 ... ,    and    no    support 

received  therefrom. 

7.  Husband     deserted     on      , 

19 ... ,  at  ,  Ohio,  and  last 

place  of  residence  was 

8.  Mother  is  poor  and  unable  to 
support  child. 

(Reasons  alleged  marked  X) 

DESCRIPTION   OF   HOME. 

Frame,  brick    story  house 

rooms.       Rent     per 

month.     Own,  buying  home.     Home 

reported   in    condition  when 

oflicor  called.  Should  sanitary  of- 
ficer call?  Neighborhood  surround- 
ings        Home  influence   

FAMILY  HISTORY. 

Father,  Residence    

Birthplace        Nationality 

Attends  Church,  In- 
temperate        Criminal    

Age Occupation Repu- 
tation        Income   $ per 

Employer Uses  wages 

for     Ever    arrested     

Charge  of    If   living,   where 

now      Physical      condition 

Mental     condition      

Mother     —     Birthplace      

Maiden    name     Nationality 

Church    Intemperate 


Criminal Age 

Occupation         Reputation 

Income  $ per    

Employer    Uses    wages    for 

Ever  arrested Charge 

of Married  before To 

whom     Divorced    when    and 

where     Phj'sical     condition 

Mental  condition Moral  con- 
dition              Boarders       

Cliaracter  of   Should  mother 

be  allowed  to  work  away  from  home 

and  cliildren  ?      Why    

Where  does  mother  spend  evenings? 

Attend  picture  shows 

Is  mother  of  saving  habits?   

Pay  bills  promptly    


CHILDREN. 


Do 


any     work     Names 

Where     employed      

W'ages  $ per Any  live 

away   from  mother    Do  any 

contribute    to    support    of    mother? 

Who    Amount   $ per 

Have   any   of   children   ever 

been    arrested    for    crime?     

Have  any  been  adjudged  neglected, 
delinquent  or  dependent  children? 
Names  of  such   

PROPERTY. 
Real  or  personal  property  owned 

by   father,  mother,   children    

Is  outside  assistance  received  now? 

Who  from  ?    Related 

as  Any  property  in  ex- 
pectancy, or  remainder  for  father, 
mother,  children   


Date 
Date 
Date 


VISITS   MADE. 

ty 

by   

by 


ALLOWANCE. 

Date    $ for    

Modified ,  19.  .  .  Discontinued 

,     19...      Extended      , 

19... 


§  2270.  Provisions  for  mothers '  pensions — Tax  levy.  §  16'83-9. 
It  is  hereby  made  the  duty  of  the  county  commissioners  to  pro- 
vide out  of  the  money  in  the  county  treasury  such  sura  each 
year  thereafter  as  will  meet  the  requirements  of  the  court  in 
these  proceedings.  To  provide  the  same  they  shall  le^y  a  tax 
not  to  exceed  one-fifth  of  a  mill  on  the  dollar  valuation  of  the 
taxable  property  of  the  county.     Such  levy  shall  be  subject  to 


1859  COUNTY  COMMISSIONERS  MAY  TRANSFER  SURPLUS        §  2271 

all  the  limitations  provided  by  law  upon  the  aggregate  amount, 
rate,  maximum  rate  and  combined  maximum  rate  of  taxation. 
The  county  auditor  shall  issue  a  warrant  upon  the  county 
treasurer  for  the  payment  of  such  allowance  as  may  be  ordered 
by  the  juvenile  judge.     [103  v.  864  (879)  ;  108  v.  Pt.  I  624.] 

§  2271.       County     commissioners     may     transfer     surplus. 

(§  1683-10.)  §  1.  For  the  purpose  of  providing  a  sum  which 
will  meet  the  requirements  of  the  juvenile  court  until  the  pro- 
ceeds of  the  tax  required  to  be  levied  under  the  provisions  of 
section  1683-9  of  the  General  Code,  shall  become  available,  any 
board  of  county  commissioners  may  transfer  from  any  surplus 
moneys  in  the  county  treasury  to  the  credit  of  any  fund  therein 
to  a  fund  for  the  use  of  the  juvenile  court  under  the  provisions 
of  sections  1683-2  to  1683-9,  inclusive,  of  the  General  Code,  the 
creation  of  which  for  such  purpose  is  hereby  authorized.  The 
moneys  so  transferred  shall  be  paid  as  provided  in  section  1683-9 
of  the  General  Code,  upon  the  order  of  the  juvenile  judge,  under 
allowances  made  either  before  or  after  this  act  shall  become 
effective.     [104  v.  199,  §  1.] 


INDEX. 


(References  are  to  sections.) 
A. 

ABANDONMENT  — 

Of  appropriation,  proceedings  by  corporation,  1726 

when  presumed,   1725 
Of  child,    1906 

What  roads  may  be  abandoned,  2001 
ABATEMENT  — 

Action  by  guardian  of  idiot,  etc.,  does  not  abate  by  death,  removal, 
etc.,  1521,  1355,  1383,  1487 
ABSENT  FROM  STATE  — 

Rights  of  persons,  to  contest  will,  1112 

ABSOLUTE  LEGACY,  680 
ABSTRACT  OF  TITLE— 

To  be  furnished  by  guardian  to  court,  when,  1323 
ACCEPTANCE  — 

Of  assignment  presumed,  1553 
Trust  can  not  be  renounced  after,  1553 
ACCOUNTANTS  — 

Examination  of  under  oath,  733 
ACKNOWLEDGMENT  — 

Probate  judge  may  take,  of  deeds,  13 

Of  deeds  of  assignment  necessary  to  convey  real  estate,  1550 
Of  wills,  1034 
ACCOUNT  OF  ADMINISTRATOR,  ETC.— 
See  Administrator  and  Executor. 
Appeal  from  order  settling,  39 
Appeal,  747 

Amovmt  of  sale  bill,  711 
Ancillary,  749 
Court  cannot  excuse,  702 
Credits  entitled  to,  720 
Compelled    to    render,    742 
who  may,  742 
when  may,  742 
Chargeable  with  what,  710,  717 
of  insolvent  estates,  992 
with  property  retained  or  consumed,  717 
not  chargeable  with  what,  719 
Consequence  of  failure  to  render,  741 
Duty  to,  702 

Dut.y  of  probate  judge  to  examine,  734 
Dt'ciease   not   allected  by,   when,   718 
Error,  747 

Examination    on   oatli    as    to,    703,    733 
Exceptions   to,   further   time   to   file,  729 
Executor,  etc.,  of  deceased  insane  or   incompetent  executor,  to  render 

when,   707 
Executor,   etc.,   witli    the   will   annexed,   duties  of,   703 
Exceptions,  736 

how    made,    736 
form  of  737 

1861 


1862  INDEX 

(References  are   to  sections.) 

ACCOUNT  OF  ADMINISTRATOR,  ETC.— Continued 
Exceptions,  who  niiiy  file,  314 
Final   receipt,   797 
Final    settlement,   231 

what  is,   231 
Filing  first  account,  when,  703,  728 

subsequent  account,  703 

entry  on,  728 
Guardian  of  insane  or  incompetent  executor,  etc.,  to  render  when,  707 
Goods  and  chattels  not  included,  712 
Governed  by  equitable   principles,   740 
Hearing   when   no   exceptions   are   filed,    734 

entry,  735. 
Impeachment  of,   744 
Increase  not  permitted  to  profit  by,  718 
Insolvent  estate,   how   accounts,   etc.,   992 
Interest  charged  in,   715 
Joint,  709 

Mistakes  in  former  m'ay  be  corrected,  when,  743 
Not  opened   after   time    limit,    746 
Notice  of  filing,  729 

costs  of,   729 

form  of,    709 

entry  and  order  of   publication,   731 

importance  of,  732 

must  be  in  English  language,  732 

cannot  be  collaterally  attacked,  732 
Opened   for   error,    747 
Opened   up    after   settlement.    743 

how,   743. 

absence  of    party,   744. 

correction   of  errors  and   mistakes,   745 

what  matters  cannnot  be  opened  up,  745 
Opened  after  eight  months,  746 
Object  of,    702 
Oath  to,  726 

form  of,    727 
Probate  Court  cannot  review  foreign,   187 
Proceeds  of  real    estate,    714,   810 
Profit  and  income,   716 
Preparation  of,  725 

inventory  consulted,   etc.,    725 

prior  account  consulted,  725 

itemized  statement  for  extra  compen.sation,  725 

itemized   statement  of  attorney,  725 
Records  of,  what  to  contain  and  when  to  be  made,  15947  G.  C. 
Reference  of,   739 
Reference   to   commissioner,   738 
Removal  of  trustee  does  not  oust   Court  of  jurisdiction  to  pass  upon 

account,  232 
Rendered  by  two,  allowed  on  oath  of  one,  709 
Rights  and  credits  of  decedent,  713 
Rents,  716 

Successive  administration,   708 
Statement  in  lieu  of,  748 

form  of,  748 
Trial  of  exceptions,  739 

nature  of,  739 

jurisdiction  of,  739 

evidence   in,   740 


INDEX 


(References  are  to  sections.) 

ACCOUNT  OF  ADMINISTRATOR.   ETC.— Continued. 
Time  extended.   705 
Time  of  filing  first  account,  83,  124,  703 

subsequent  accounts.   703 

on  death,  insanity,  etc.,  of  executor,  etc.,  703 
Time  allowed  to  collect  assets,  706 
Tombstone  allowed- on  settlement  of,  651 
Vouchers  to  be  filed  for  all  payments  made,  721 

when  and  what  items  allowed  without  vouchers,  723 

shall  not  exceed  two  hundred  dollars  in  affffregate.  723 
Voucher,  722 

what  is  proper,  722 

aflSdavit  to,  724 
form  of,  724 
Where  removed  or  resigns,  229,  231 
When  to  file,  703 
Where  to  be  filed,  704 
When   can   be   opened,   742 
ACCOUNT— 
Assignees : 

See  Assignments. 
Appeal  from  order  settling,  39 
Contents,  165-3 
Costs  of  notice  filing,  729 
Enforcement  of  filing  and  settlement,  1573 
Examination  of  assignee  as  to,  733 
Exceptions  to,  further  time  for,  729 
Filing,  time  of,   1653 
Jurisdiction  of  probate  court,   27 
Notice  of  filing  to  be  published,  729 
Settlement  on  resignation,  removal  or  death,  1573 
Guardians  and  trustees: 

See  Guardians. 
Appeal  from  settlement  of,   1493,  39 
Compelled  to  render,  1362 

Deceased  or  insane,  how  account  settled,  1499 
Examination  under  oath,  733 
Exceptions  to  further  time  to  file,  729 
Failure  to  render  after  notice,  effect,   1367 
Female  guardian  on  marriage  must  settle,   1356 
Jurisdiction  of  probate  court  over,  27 
Notice  of  filing  to  be  published,  729 

costs  of,  729 
Of  person  and  estate,  must  render,  when,  1367 
Of  idiot,  lunatic,  imbecile,  etc.,  must  settle,  1513 
Probate  judge  or  clerk  can  not  make,  for  guardian,  7 
Reference  of,   1492 

Review  of  settlement,  wiitn  and  how,   1403,  1298 
Settlement,  final,  except  when.  1493 
Superseded  guardian  must  settle,   1354 
Time  of  rendering,  1367,  1293 
When  probate  judge  interested,  settled  in  Common  Pleas,  0 

ACCRETIONS  — 

Administrator  responsible  for,   718 

ACTION  — 

Appeals,  39 

Appropriation  of  property  by  municipal  corporations,  1750 
by  private  corporations,   1679 
Assignment  of  creditors: 

Abatement,  none  as  to  pending  suit,   11151   G.  C. 


1863 


1864  ,  INDEX 

(Referpiiees  are  to  sections.) 

ACTION  —  Continued. 

Bond,  action  on,  limitation,  4984,   11226  G.  C. 
Deliver  effects  to  successor,  failure  to,  1573 
File  and  settle  account,  failure  to.  1573 
Fraudulent  conveyance,  to  set  aside,  1580 
See  Assignments. 
notice  given,  how,  1580 

how  creditors  may  become  parties,    1580  • 
Liens,  to  adjust,   1618 
Limitation  of,  on  rejected  claim,  1628 
Trustee  may  compel  delivery  of  trust  effects,  1572 
Action  by  executor  or  administrator : 

Against  persons  concealing  or  embezzling  assets,  395 

Asking  direction  of  court  in  matters  respecting  estate,  33 

For  injury  by  wrongful  death.     See  Wrongful  Death. 

Land  fraudulently  conveyed,  may  bring  action  to  recover,  when,  823 

May  sue  without  joining  party  in  interest.  11244  G.  C. 

Mortgage,  may  bring  action  to  foreclose,  388 

Preceding    executor    or    administrator,    may    be    brought    against    by, 

when,  157 
Revivor  of  actions  by,  et  seq.,  11401  G.  C. 
Sale  of  real  estate  to  pay  debts,  813 
Sale  of  equitable  interest  of  deceased  in  land,  825 
Action  against  executor  or  administrator : 

Administrator  de  bonis  non,  liable  to,  when,  619,  620 

Assets,  received  after  two  years,  action  to  be  brought  within  one  year 

after  notice  of  receipt,  615 
Bond  of,  when  may  be  brought  against,  262 
Cause   of   action   accruing   after   two  years,   to  be   prosecuted   within 

one  year,  613 
Claims  not   due   in   two  years,   suit  on,   against   executor   within   six 

months,  when,  580 
Suit  on,  against  executor,  when;  on  bond,  581 

on  bond  of  heir,  when,  581 
Creditors   may    sue   an   estate   reported   insolvent   after   three   years, 
when,  991 
must  bring  against,   within  two  years  from   the   time   of  giving 

bond,  613 
when  to  be  brought  against  by,  on  disallowed  claim,  561 
when  to  be  brought  against  by,  in  general,  611 
Distribution,  may  be  brought  against  to  enforce  order  of,  761,  783 
Insolvent  estate,  when  may  be  brought  against  executor  or  adminis- 
trator of,  985 
limitation  of  action  against,  when  claim  disallowed,  971 
Limitation  of  action  against  new  administrator  when  former  failed  to 
give  notice  of  appointment,  620 
begins  to  run  from  time  of  granting  letters,  150 
how  effected  by  failure  to  give  notice  of  appointment,  548 
in  case  of  special  administrator  time  begins  to  run  from  the  grant- 
ing of  letters  in  usual  form,  150 
time  for   bringing  extended   in   case    of   death,   removal,   etc.,   of 
executor  or  administrator,  618 
Revival  of,  against,  what  does  not  constitute,  622,  624 
Right  of  action  accruing  after  two  years,   barred   in  one  year   after 

accruing,  613 
Special  administrator,  action  cannot  be  brought  against,  by  creditor 

of  deceased,  150 
Successor  to  executor  or  administrator  liable  to,  when,  623 
Venue  of  action  against.  Code  of  Civil  Procedure,  11299  G.  C. 


INDEX  1865 

(References  are  to  sections.) 

ACTION  —  Continued. 

Waste  may  be  brought,  628 
Action  for  injury  by  wrongful  death : 
See  Wrongful  Death. 
Executor  or  administrator  bring  the  action,  536 
For  whose  benefit,  530 
Liability  of  person  or  corporation,   534 
Limit  of  damages,  536 
Limitation  of  action,  535,  536 

Power  of  executor,  etc.,  to  settle  amount  to  be  paid  before  or  after 
suit,  536 
apportionment  of  amount  among  beneficiaries,  536 
When  death  caused  by  wrongful  act  in  another  State,  etc.,  535 
Action    against    heirs,    legatees,    etc. : 

Bond,  when  to  be  brought  on,  given  by  heir,  etc.,  for  payment  of  claim 
due  two  years  after  administration  bond  given,  581 
pleadings  in  such  case,  582 
See  Limitation  of  Actions. 
Creditors  to  proceed  against  all  in  one  action,  590 

Creditors  may  bring,  after  settlement  of  estate,  when  and  how,  585,  593 
Defendants,  not  to  be  dismissed  for  want  of,  592 
Direction  in  matters  respecting  estate  may  be  brought,  33 
Estate  of  heir,  etc.,  liable  to  suit  of  creditor  of  deceased  from  whom 

property  received,  when,  589 
Limitation  of  action  against,  587 

Parties;   heirs,   etc..  may  be  made  to  action  by  executor  or  adminis- 
trator to  sell  land,  833 
Action  on  bond  of  executor  or  administrator: 
See  Bonds. 
Allowance  of  claim  only  prima  facie  evidence  of  its  validity  in,  277 
Costs,  how  awarded  in  certain  cases,  276.  261 
Creditors  may  bring,  when,  262 
Court  in  which  to  be  brought,  261 
Defense  which  may  be  made,  1398 
Heir,  legatee,  etc.,  may  sue,  when,  265 
In  case  of  unfaithful  administration,  255 
Limitation  of  action,  11226  G.  C. 
Parties,  who  to  be  made,  261 

Succeeding  executor  or  administrator  may  sue,  157,  31,  278 
Sureties  may  be  made  parties  to,  to  enforce  order  of  distribution,  783 
When  court  may  authorize  suit  to  be  brought,  269 
Guardian  and  trustee : 

Foreign,  may  obtain  property  of  non-resident  ward  by,  1480 
Guardian  must  appear  and  defend  suits  against  ward,  1383 

may  bring  action,  asking  direction  of  court,  etc.,  33 
Of  guardian  of  idiot,  etc.,  1521 

See  Guardians. 
Of  minor  ward  to  review  settlement,  1493 

where  action  may  be  brought,  1493 
Sale  of  real  estate  of  ward.   1405 

of  idiot,  etc.,  1522 
Survivor  of,  385 
Trustee  of  non-resident  minor,  idiot,  etc.,  liable  to,  1277 

ADJUSTMENT,  456 

See  Desperate  Claims. 

ADEMPTION,  685 

See  Legacies. 


1866  INDEX 

(References  are  to  sections.) 

ADMINISTHATION  — 

Creditor,  when  entitled  to,  114,  170 
Definition,  55 
Officiating  without,  61 

Letters  testamentary  and  of  administration  may  be  granted  and 
voked  by  Probate  Court,  27 
See  Letters  of  Administration. 
See  Letters  Testamentary. 

authority  of,  extends  throughout  state,  72 

county,  must  issue  from,  in  which  deceased  was  domiciled,  72 

issue,  with  will  annexed,  when,  100 

jurisdiction  in  matters  relating  to,  denied  to  other  courts,  72 

Probate  Court  has  exclusive  jurisdiction  in  granting,  27 

probate  judge,  not  to  issue  to,  9 

time  within  which,  letter  granted,  64 
Not  granted  as  of  right  after  twenty  years,  64 
Not  required  at  common  law,  54 
Necessity  for,  55 

Partnership  assets,  on  death  of  partner,  417,  437 
When  judge  interested,  9 
When  there  ought  to  be  none,  56 
When  there  need  be  none,  57 

Will,  letters  testamentary  on,  may  issue  to  whom,  71 
When  does  not  exist  as  of  right,  64 

application  on  such,  65 

notice,  65 
ADMINISTRATION  BY  TRUST  COMPANIES— 
Administrator  may  act  as,  353 
Act,  when  company  can,  347 
Agent,  may  act  as,  351 
Banking  act,  part  of,  342 
Bond,  when  not  required,  353 
Bond,  when  required,  353 
Capital  rc<juired,  343,  354 
Charter  must  permit,  342 

Compelled  to  act,  not  without  its  consent,  353 
Compliance  witii  law  before  acting,  347 
Consent,  before  compelled  to  act,  353 
Court  may  order  investigation,  355 
Court  may  order  money  deposited  in,  350 
Deposit  required,  343 
Deposit  with  state  treasurer,  354 
Empowered  to  act  as  agent,  351 
Examination  of  company  expenses,  346 
Examination  of  company,  court  may  order,  346 
Executor,  may  act  as,  353 
Expense  of  examination,  346 
File  certificate  with  tax  commission,  345 
Foreign,  entitled  to  act,  when,  347 

when  may  retire,  348 

when  may  be  administrator,  344 

license  for,  344 
From  whom  moneys  received,  349 
Fund,  reserve  required,  360 
Guardian,  may  act  as,  353 

not  of  person,  353 
Has  same  rigiit  as  natural  person,  352 
Historical,  342 
Investment  of  money  held  by,  357 

court  may  order,  355 

trust  funds,  359  * 


INDEX  1867 

(Referoncfs  are  to  sections.) 

ADMINISTRATION   BY   TRU8T   COMFAl^lEU  — Continued 
Law,  compliance  with,  347 

first  in  Ohio,  unconstitutional,  342 
License,  foreign  must  have,  344 
May  hold  title  to  real  estate,  353 
May  accept  trust,  343 
Mingling  of  securities  prohibited,  358 
Moneys  held  on  terms  agreed,  etc.,  349 
Money,  how  invested,  357 
Money  deposited  on  order  of  court,  350 

from  whom  may  be  received,  349 
Notice  of  retirement,  348 
Officers  compelled  to  answer  questions,  356 
Power  to  act  as  agent,  351 
Person,  can  not  be  guardian  of,  353 
Probate  court  may  appoint  to  act: 

as  administrator,  353 

as  assignee,  353 

as  executor,  353 

as  guardian,  353 

as  receiver,  353 

as  trustee,  353 
Publication  of  notice  to  retire,  348 
Retirement  from  state,  notice,  348 
Reserve  fund  required,  360 
Right  rests  on  statute,  342 
Securities,  mingling  forbidden,  358 
Sign  papers  in  court,  may,  356 
Trust-fund,  investment,  359 
Trusts,  may  manage,  351 
Will  to  govern,  357 

Account,    may   be   compelled    to,    in    ease   estate   is    insolvent,    when, 
992,  702,   749 
See  Accounting. 

property  retained  or  consumed  by,  must  account  for  in  double  its 
appraised  value,  717 
Account,  appeal  may  be  taken  from  order  settling,  39 

compelled  to  render,  when,  741 

charged  with  what,  in,  710 

must  render   in   eighteen  months,    703 

when  to  render  subsequent,  703 

oath,  may  be  examined  on,  as  to,  703,  733 

rendered  by  two  or  more  joint,  may  be  allowed  on  oath  of  one,  709 

rendered  when,  of  deceased  or  insane  executor,  707 

unclaimed  money  may  be  invested  by,  on  order  of  Court,  786 

vouchers  to  be  produced  by,  on  settlement  of,  721 

what  may  be  allowed  in,  without,  723 
Action  for  wrongful  death,  533,  542 

who  must  bring,  536 

Probate  Court  to  make  appointment,  541 
Action,  direction  asking,  may  be  brought  by,  33 

against  by  creditors,   613 

for  damages  for  wrongful  death,  how  brought  by,  536 

may  settle  for,  536 

on  claim  not  due,  581 

when  death   caused   in  another   State,  535 

may    be    brouglit    by,    without    joining    real    party    in    interest, 
Code  Civil  Pro.,  1383 

successor  to,  when  and  how  brought  against,  623 

pending  suits,  to  prosecute,   162 
Acts  done  before  appointment.  62 


1868  INDEX 


(References  are  to  sections.) 

ADMINISTRATOR  AND  EXECUTOR  — Continued. 
Administrator  appointed  in  what  order,  114 

duty  of  probate  judge  with  respect  to  appointments  of,  114 
Administrator  continuing  business  of  partnership,  436 
Administrator    of    deceased    or    insane    administrator,    must    file    ac- 
count, 160 
Administration- unfaithful,  what  shall  be  deemed,  255 

liable  to  damages  for,  255 
Acts  after  removal,  230 
Adverse  party,  incompetency  to  testifv  against,  C.  C.  P.,  5242,  11495 

G.  C. 
Affidavit  in  proof  of  claim,  when  may  require,  557 
Appeal  from  order  to  enforce  distribution,  7S5 

bond  for,  need  not  give,  43,  1779 

may  be  prosecuted  by,   12228  G.  C. 

Application  to  be  filed  before  appointment  of;  what  to  contain,  114 

Appointment  of  administrator,   118-127 

Appointment  of  executor,  91-92 

Appointment  as,  does  not  discharge  debt  of,  due  testator,  389 

must  charge  himself  %vith  such  debt,  389 

must  distribute  same  as  part  of  personal  estate,  389 
Appraisers,  duty  of  with  respect  to  certificate  of,  286 
Appraisement,  must  serve  notice  of  time  and  place  of  making,  288 
Arbitration,  455 

when  may,  claim   in  favor  of  estate,   455 

of  claims,  594-60G 
Assets,  collections  of,  in  one  year,  440 
See  Assets. 

belonging  to,  363-393 

contingent  debts  and  claims,  and  claims  not  due,  may  with  the 
approval  of  the  Court  be  set  aside,  and  the  residue  of  the 
estate  distributed,  751 

care  and  management,  506-532 

See  Assets,  Care  and  Management. 

disbursement  of,  administrator  may  plead  when,  669 

distributees  to  give  bond  to  pay  claims  in  suit,  or  not  yet  due,  751 

emblements  are,  369 

extension,  limitation  of.  pejyod  of,   415 

further  time  can  not  be  allowed,  when,  448 

new,  received  after  return  of  first  inventoiy,  duty  of  as  to,  311 

payment  of  claim  of  administrator  of  estate,  not  to  be  retained 
for,  631 

proceeding  when  assets  concealed  or  embezzled,  395,  414 

proceedings  when  more  time  required  for  collection,  445 

affidavit  required  in  such  case.  446 

received  after  two  years,  paid  out,  how,  415 
.  Are  trustees,   1250,   1287 
Bond,  action  on,  limitation  of,  as  to,  607 
See  Bonds. 

administrator  required  to  give,  124 

administrator  appointed  during  minority  of  executor  must  give,  93 

executor  required  to  give;  its  conditions,  83 

when  not  required  to  give,  83 

on  appeal,  11227  G.  C. 

for  stay  of  execution,  12268  G.  C. 

diff"erent  bond  when  executor  is  residuary  legatee,  57 

sale  of  land,  when  bond  required  before,  873 

additional  bond  may  be  required,  875 

separate  or  joint  may  be  taken  when,  86 


INDEX  1869 

(References  are  to  sections.) 

ADMINISTRATOR  AND  EXECUTOR  — CoH^iwMed. 
special  administrator,  required  of,  133 
executor,  etc.,  may  prosecute  bond  of  special,   141 
surety,    released,    administrator,    etc.,    to    give    additional    bond, 

243,  252 
indemnifying  bond  to  surety,  when,  253 
Citation  to  executor,  101 
form  of,   101 
entry  ordering,  102 
Claim  of,  against  estate,  to  have  no  preference,  031 
See  Claims  of  Executor  and  Administrator. 
allowance  of,  to  be  presented  to  Probate  Court  for,  633 
Compounding,  450-455 
application  for,  452 
hearing  of,  453 
order  of  compromise,  454 

notice  of  presentation  of  such  claim,  to  give,  how,  633 
rejected  must  be  sued  on  within  six  months,  609 

See  Presentation  of  Claims. 
payment  of  such  claim,  not  to  retain  assets  in,  when,  631 
Cannot  revive  claim  barred  by  statute  of  limitations,  614,  608 
Commissioner,  administrator  may  act  as.  to  audit  and  allow  claims, 

when,  963 
Contingent  claims,  569 

See  Claims  Not  Due. 
Compensation,  allowed  what,  654 

See  Compensation  of  Administrator. 
Compromise  with  debtor  of  estate  may,  when  and  how,  450 
Creditors,  when  may  sue,  611 

surety  of  creditor  may  conipel  suit,  12192  G.  C. 
Cannot  be  guardian,   1331 
Chargeable   witli    debt   due   decedent,   390 
Choses  in  action,  385 

Damages,  action  for,  for  wTongful  death,  how  brought  by,  536 
may  settle  for,  and  how,  536 
See  Wrongful  Death. 
Debts  of  deceased,  in  what  order  to  pay,  647 

See  Payment  of  Debts. 
Distinction  between,  108 

Debt,  discharge  of,  in  will,  not  valid,  when,  391 
Debt  of  is  asset,  390 
Debts  due  from  estate,  when  liable  for,  628 

may   pay    debts    without   becoming   personally    liable   when    and 

how,  667 
may  pay  before  due  when  and  how,  570 

not  liable  for  debts  remaining  uncollected  without  his  fault,  719 
Deceased   executor,   etc.,    administrator   of,   must   file   account   in   six 

months,  707 
Decedent's  real   contract  completed  by,   523,  528 
Distribution,  account  of,  795-798 

See  Distribution. 
Decrease  of  estate,  not  liable  for,  718 
Deed  of  partnership,  439 

Disbursements  of  assets,  administrator  may  plead,  when,  669 
Distribution  of  money,  755-785 

See  Distribution. 
Discretion,  may  exercise,  as  to  order  in  which  articles  are  sold,  488 
Distinction  between  trustee  and,  1251 
Diligence  required,  442 


1870 


INDEX 


(References  are  to  sections.) 


ADMINISTRATOR  AND  EXECUTOR  — Con  finwed. 

Distribution;  after  order  of,  how  payment  enforced,  761 

appeal  in  action  to  enforce,  785 

effect  of  judgment  after  order  of  distribution,  777 

of  assets  in  kind,  when,  751 

of  estate,  duties  as,  921 

served  how,  in  action  to  enforce,  761 
Distribution  in  kind,  750-754 

See  Distribution. 
Dower,  duties  as  to,  12009  and  12016  G.  C. 

See  Dower. 
Duty  to  bring  suits,  etc.,  441 
Duty  to  collect  assets,  440,  449 
Emblements,  may  enter  on  lands  to  possess,  370 

See  Emblements. 
Equitable  interest  in  real  estate,  may  petition  for  sale  of,  825 
Evidence  of  settlement,  when  may  give,  671 
Extra   compensation,   659 

Executor  of  executor  can  not  administrator  estate  of  decedent,  &4 
Executor  as  surviving  partner,  433 
Executor  continuing  business  of  partnership,  435 
Executor  renounces,  administrator  appointed,  100 
Foreign,   186-200 

See  Foreign  Administrators  and  Executors. 
Foreign  will,  duties  of,  as  to,  1125,  1132,   169 

See  Foreign  Wills. 
Funeral  expenses,  may  pay  before  letters  issued,  70,  649 

See  Funeral  Expenses. 
Guardian,  administrator,  etc.,  not  eligible  as,  when,  1331 
Good  will  of  business,  382 

Guardian  must  make  out  account  of,  etc.,   1499 
Homestead,  set  off,  for  decedent's  family,  867 
Increase  of  estate,  not  to  profit  by,  718 
Indemnifying  bond  to  surety,  must  give,  when,  253 
Insolvency  of  estate,  may  be  compelled  to  account  in  case  of,  when,  992 
Insolvent,  when  may  represent  an  estate  as,  670 

liability  of  administrator  in  case  of,  990 

notice  when  estate  is  insolvent  what  must  be  given,  965 

suit  against  administrator  when  estate  is  insolvent,  when,  985 

to  what  extent  liable  in  such  case,  990 

when  not  required  to  declare,  669 
Interest  on  claims  paid,   672 
Inventory,  must  take  oath  to,  302 

to  return  within  three  months,  303 

removal  for  failure  to  return,  306 

to  retain  a  copy  of  and  send  original  to  Probate  Court,  300 
Invest  remaining  funds,  when  and  how,  786 

Judgment  against,  when  found  guilty  of  concealing  property  of  dece- 
dent, 408 

forfeits  compensation,  when  found  guilty  of  concealing,  408 

lien,  such  judgment  a  lien  upon  real  estate,  408 

against  administrator,  after  order  of  distribution,  its  effect,  777 

transcript  of,  to  obtain  and  file,  when  and  how,  413 
Joint  or   co-administration,  201-207 

Lands,  administrator  may  enter  on,  to  possess  emblements,  370 
Lands  devised  to  be  sold,  one  executor  may  sell,  if  two  or  more  ap- 
pointed and  neglect  to  act,  107 
Legacies,  to  sell  lands  for  payment  of.  819,  074-701 
See  Legacies. 


INDEX  1 S7 1 

(References  are  to  sections.) 

ADMINISTIL\TOR  AND  EXECUTOR  — Oontinwed. 

Legatee,  when  executor  is  residuary,  different  bond  required,  §7 

Lease,  cannot,  801 

Liability  of  for  debts  due  from  estate,  liable  for,  when.  628 

failure  to  give  notice  of  appointment,  for,  550 

insolvent  estates,  in  case  of,  990 

payment  of  debts  without  personal  liability,  667 
Liability  of  executors,  etc.: 

Account,   neglect  to   file,   741,   703 

See  Torts. 
Administrator  de  bonis  non,  621,  623. 
Assets  received  after  two  years,  615 

for  assets  in  hands  of,  only  when  estate  insolvent,  990 
Bond,  liability  on,  255,  277 

Chargeable  with  double  value  of  property  consumed,  etc.,  717 
Claims  accruing  after  two  years,  613 
Concealing  property  of  estate,  408 
Damages  for  unfaithful  administration,  for.  255 

Debts  due  from  estate,   liable  for,   when   execution  returned   unsatis- 
fied, 628 

to  suits  of  creditors,  611 

when  not  liable,  611 

not  liable  for  debts  uncollected  without  his  fault,  719 
See  Diligence. 

recovered  against,  after  order  of  distribution,  774 

when  may  pay  without  becoming  personally  liable  for  deficiency 
of  assets,  667 
See  Assets. 
Decrease  of  estate  without  fault  not  liable  for,  718 

See  Accounts. 
Final  discharge  exonerates  from,  unless,  etc.,  795 
Inventory,  for  neglect  to  return,  303 

Mortgaged  premises  selling  without  paying  off  mortgage,  902 
Notice  of  appointment,  for  failure  to  give,  550 
Promise  to  pay  decedent's  debt,  607 

See  Statute  of  Frauds. 
Resignation  not  to  effect  previous  liability,  229 
Sale  bill,  neglect  to  return,  491 

Sale  of  personal  property,  without  proper  security,  484 
Sale  of  personal  property  not  liable  for  loss,  when,  485 
Taxes,  liability  for  payment  of,  etc,  511,  1392 
Loss  on  sale  of  personal  property,  not  responsible  for,  when,  485 
Letters  of  administration,  see  Letters  of  Administration. 
Letters  testamentary,  see  Letters  Testamentary. 
Marriage,    no    disqualification    for    executrix    or    administratrix,    27, 

81,  115 
May  discharge  mortgage,  387 
May  foreclose  mortgage,  388 

Minor  may  be  admitted  as  co-executor,  on  attaining  majority,  93 
Minority  of  executor,  administrator  may  be  appointed  during,  93 
May  bring  action  to  construe,  34 
Mortgage,  may  foreclose,  how,  388 

cannot  mortgage  premises,  801 
Must  collect  claim,  before  barred  by  statute,  444 
Mortgaged  premises,  may  take  possession  of,  386 

release  of  mortgage  on  payment  of  debt,  387 

to    be    seized    in    trust    of,    for    persons    entitled    to    redemption 
money,  387 
Negligence  in   collecting,   443,    1287 


1872  INDEX 

(References  are  to  sections.) 

ADMINISTRATOR  AND  EXECUTOR  — Contiitued. 

Not  required  to  pay  claim  on  allowance  of  court,  when,  580 
Notice;   appointment;   liability  for  failure  of  give  notice  of,  550 

creditors,  to,  544,  621 

how  to  proceed  when  not  given,  548 

insolvency  of  estate,  notice  of.  965 

liability  for  omission  to  give,  551 

omitted;  petition  to  publish,  548 

sale  of  land,  of,  883 

to  executor  or  administrator  that  he  is  named  in  will,  1070 

when  and  how  must  give,  544 
Nuncupative  will,  duties  as  to,  1166 
Order  of  removal,  229 

Office  of,  not  +o  expire  with  limitation  of  time,  449 
Officiating  without  appointment,  61-70 
Partnership  assets,  416-439 

Partition  proceedings  by,  when  action  for  is  pending,  1880 
See  Partition. 

prior  partition,  not  barred  from  bringing  action  by,   1884 
Part   payment    take   valid    existing    claim    out   of    statute    of    limita- 
tions, 608 
Perpetuate  evidence  of  distribution,  may.  how,  795 
Payment  of  debts,  046 

See  Payment  of  Debts. 
Personal  property,  to  sell,  what  and  when,  470 
Payment  to  heir  before  final  settlement,  673 
Petition  by  to  complete  real  contract  of  decedent,  523 
Plead  disbursement  of  assets,  when  lie  may,  669 

full  administration  of  estate,  wlien  he  may  plead,  671 
Powers  of  administrator  de  bonis  non,  151-160 
Powers  of,  before  letters  issue,  70 

during  contest  of  will,  95 
may  boi'row  money,  96 
application,  97 
form  of,  97 
Probate,  must  produce  will  for,   1072,   1079 
Probata  Court  cannot  order  administrator  to  allow  claim,  610 
Payment  of  claims  not  due,  576 

Property  specifically  bequeathed  when  may  deliver,  474 
Property  conveyed  to  defraud  creditors,  383 
Presentation  of  claims  not  due,  569-583 
Prove  amount  applicable  to  claim,  he  may,  990 
Presentation  of  claims,  552-508 

See  Presentation  of  Claims. 
Purchasing  at  their  own  sale,  efi'cct,  492 

Real  estate;    action   by,   for  recovery  of  fraudulently  conveyed   or   to 
avoid   such   conveyance,   823 
See  Sale  of  Real  Estate. 

limitation  of,  822 

proceedings  for  authority  to  sell,  where  to  begin,  813 

successor  to  continue  if  executor  or  administrator  die  during,  835 

when  to  begin,  816 

remedy  when  sale  invalid,  902 

to  subject  fraudulently  conveyed  to  sale,  822 

will  authorizing  sale,  no  order  required,  802 
Referees  may  agree  to  submit  claim  to,  when,  594 


INDEX  -|  873 

(References  are, to  sections.) 

ADMINISTRATOR  AND  EXECUTOR  — Continued. 
Rejection  of  claims,  552-568 

See  Presentation  of  Claims. 
Reject  claim  on  requisition  of  heir,  etc.,  when,  561 
Release  of  surety,  243,  252 

See  Surety. 
Removal  of,  co-executor  may  continue  to  act  on,  213 

predecessor,  on  removal  of,  administrator  may  be  appointed,  213. 
Return  of  sale,  must  make,  how    890 
Resignation,  210 
Revocation  of  letters,  208-232 
Revivor  of  action,  by  and  against,  1S13  G.  C. 
Revivor  of  judgment,  627 
Road  materials,  duties  and  rights  as  to,  799 
Sale  of  real  estate;  may  begin  proceedings  for.  when,  816 
See  Sale  of  Real  Estate. 
bond  required  of,  before  sold,  873 
by  Court  proceedings,  810-906 
additional  bond.  Court  may  require,  when,  875 
equitable  interests,  may  petition  for  sale  of,  825 
fraudulently  conveyed,  822,  823 
legacies  for  pa}^nent  of,  819 

less  than  appointed  niuiiber  may  make  sale  of,  107 
notice  of  sale,  when  and  how  given,  883 
return  of  sale,  must  take,  how,  890 
summons  may  be  served  by,  when,  838 
Sale  of  personal  property,  485 

See  Sale  of  Personal  Property. 
Securities;  in  what  may  invest  trust  funds,  514 
Security  for  costs  need  not  be  given  by,  when,  441 
Service  on  non-resident  by  publication,  840 
Special  administrator,  action,  commenced  by,  regular  may  be  admitted 

to  prosecute,  141,  128-150 
Sale  of  desperate  claims,  456,   468 

See  Sale  of  Desperate  Claims. 
bond  required  of,  133 

citation  and  attachment  may  be  had  against,  when,  142 
executor  may  prosecute  bond  of,  142 
powers,  duties,  etc.,  of.  137 
cease  when,  141 
Successor,  action  may  be  brought  against,  when  and  how,  623 
may  bring  suit  on  bond  of  predecessor,  157 
prosecute  pending  actions,  1G2 
take  possession  of  assets  and  effects,  157 
Sureties;  administrator  to  give  additional  bond  on  release  of,  243,  252 
must  give  indemnity  bond  to,  when,  253 
required  on  sale  notes,  two  or  more,  483 
Surety  for,  how  made  party  to  judgment  against,  11652  G.  C. 
Time  within  which  claim  collected,  445 
Taxation,  nuist  list  property,  663 
Testamentary  trustee,  1250 
Taxes,  lien  of,  for  taxes  advanced,  511.  (Ui.S 
on  personal  property,  95 
on  lands,  95 
payment  of,  663 
Testify,  party  shall  not  when  adverse  party  claims  exceptions,  11495  G.  C^ 
Tombstone  for  decedent,  651 
Termination  of  authority  by  completion  of  trust,  231 


1 874  INDEX 


(References  are  to  sections.) 

ADMINISTRATOR  AND  EXECUTOR  — Continued. 
only  when,  231 
how  terminates,  231 
Time  within  which  will  be  appointed,  64 
Transfer  of  actions  from  Probate  to  Common  Pleas  Court,  779 
Trust,  when  renounces  duty  of  Probate  Court,  100 

See  Termination  of  Trusts. 
Venue  of  actions  against,  607 

Will,  executor  party  to  action  to  contest  of,  12080  G.  C. 
When  need  not  be  appointed,  55,  50,  57 
Where  will  has  been  established,   164,  96 
When  not  liable  to  creditors,  614 

ADMINISTRATOR  DE  BONIS  If  ON  WITH  THE  WILL  ANNEXED. 

Appointment  of,  162 
Definition,  161 
Must  give  bond.  162 
Powers  of,  164 

ADMINISTRATOR  DE  BONIS  NON  —  See  Administrator  and  Executoe. 
Application,  essentials,  156 
Appointment  of,  in  what  cases,   152,  306 

does  not  revive  cause  of  action  previously  barred,  622 
Conveyance  of  land  sold  by  predecessor,  to  make,  835 

may  be  required  to  give  additional  bond,  835 
Can    be   appointed    before    account   of   former    administrators    passed 

upon,  154 
Definition,  151 
Duties  and  powers  of,  157 

in  contest  of  will,  95 
Inventory  when  not  required,   160,  281,  282 
Liable  for  assets  in  the  same  manner  as  predecessor,  623 
Limitation  of  action  against,  618-620 

extension  of  limitation,  619 
May  sue  former  administrator  individually  on  bond,  157,  158,  310 

leave  of  court  need  not  be  obtained,  158 

account  need  not  be  passed  upon,  158 
Must  be  estate  to  administer,  153,  154 
May  annul  fraudulent  sale,  159 
Must  give  bond,   160 
Must  give  notice  of  appointment,  160 
Not  liable  for  warranty  of  predecessor,  159 
Notice  of  appointment,  when  and  how  given,  621 

effect  of  failure  to  give,  548 

when  former  executor,  etc.,  fails  to  give,  620 
Recovery  of  assets,  158 
To  whom  letters  granted,  155 
Within  what  time  appointed,  154 
Who  may  secure  appointment,  153 

ADMINISTRATOR  WITH  THE  WILL  ANNEXED— See  Administbatob 
and  Executor. 
Acts  of  previous  executor  valid,  107 
Application  for  appointment,  104 

Action,  may  prosecute  and  defend  brought  by  predecessor,   162 
Appointed  in  what  cases,  100,  152,  306 

Appointment  of,  if  will  found  after  administration  granted,  162 
Bond  of,  and  its  conditions,  83,  105 

of  predecessor,  may  bring  snit  on.  when.  157,  310 
Contest  of  will,  powers  and  duties  of  during,  95 


INDEX  1875 


(References  are  to  sections.) 

ADMINISTRATOR  WITH  THE  WILL  ANNEXED  —  Continued. 
Convey  land  sold  by  predecessor  may,  when,  835 
Creditors,  liability  to  be  sued  by,  618 
Citation  of  executor,   101 

application  for,  101 

entry  ordering,  102 

form  of  to  take  or  renounce,  103 
Definition,  99 

Foreign  will,  powers  and  duties  of  administrator  under.  169,  1132 
Land;  sold  by  predecessor,  may  convey  when,  835 
Liability  to  be  sued  by  creditors,  618 

Minority  of  executor,  may  be  appointed  during,  unless,  etc.,  93 
Must  give  bond,   104 
Powers,  rights  and  duties,   106,  309 

real  estate,  when  ordered  to  be  sold,    107,  819 
Personal  trust  cannot  be  exercised  by,  etc.,  106 
Sell  land  under  will,  802 
When  will   is  broken  duties  cease,  99 
ADMINISTRATRIX  — 

See  Administrator,  etc. 
Marriage  does  not,  81 
Extinguish  authority,  79 
ADMISSIONS  — 

Not    to    preclude    executor,     etc.,     contesting    claim    against    estate^ 
when,  277 
ADOPTION  OF  CHILD  — 

By  married  or  single  person,  1888 
By  stepfather,    1890 

how  consent  of  wife  ascertained,   1893 

order  of  court,  1895 

effect  of  order,  1898 
Consent  of  child,   1894 
Consent  of  parents,   1894 
Definition,    1887 
Entry  of,  1897 
Effect  of  order,  1898 
Extra  territorial  effect,   1899 
Hearing,    1896 
Heir,  adoption  of  child  as,  1902 

property  of  adopting  parent  descends,  how,  etc.,   18W 
'  Must  be  strictly  followed,   1887 
Purely  statutory,  1887 
Petition  for,   1892 

where  filed,  1889 

form,   1892 
Power  to  revoke  order,   1901 
Rights  of  inheritance,  1898,  1900 
Who  may,   1889,   1890 
Who  may  be  adopted,  1891 
ADVANCEMENT  — 

A  gift  to  constitute  irrevocable,  929 
What  constitutes,  930 

a  purchase  presumably  is,  930  , 

intention  controls,  930 
When    presumed,    929 
To  be  accounted  for,  928 
Applies    to    realty    and    personalty.    929 
'  How   piovon,    931 

declarations   of   grantor,    931 

relation  of  parties,  931. 


1876  INDEX 

(References  are  to  sections.) 

ADVANCEMENT  —  Continued. 

Where  greater  or  less  than  share,  932 

Exists  on  presumption  of  equal  aflfection  to  all  children,  928 
Considered  part  of  estate,  928 
When  wholly  real  or  wholly  personal,  933 
Definition,   929 

Small  gifts  for  support  not,  931 
If  value  expressed  in  deed,  934 
Heir   not   required   to  refund,   932 
Kind   of   assets.    36.5 
Compensation   of  administrator  on,   655 

Considered  in  settling  with  child  absent,  born  after  executioa  of  will, 
or  reported  dead,  1065,  1210 

ADVERTISEMENT  —  See  Notice. 

For  sale  of  land  by  executor,  etc.,  883 

of  personal  property,  479,  495 
Of  property  of  insolvent  debtor  by  assignee,  etc.,  1602 

AFFIDAVIT  —  See  Oath. 
See  Forms. 
Appraisers,  in  proceeding  to  sell  minor  ward's  real  estate,  1421 

in  making  inventory  of  decedent's   estate,   290 
Appropriation  proceedings,  proof  of  service  by  publication,  1692 
Assignment  for  creditors,  proof  of  claim,  1632 

attorney's   fees,   1642 

compensation,  extra,   1642 

inventory   of   assignee,    etc.,    1594 

to  obtain  private,  479.  495 

to   obtain   service  by   publication,   840 

time,   further   to  collect  assets,  445,  446 

unknown,  name  and  residence  of  defendant,  838 

vouchers,  when  items  allowed  without,  723 

will,  of  administrator  that  none   exists,    114 
Executors,   and  administrators,   account  of  executors,   etc.,  as  to  cor- 
rectness,   703 

where  two  or  more  executors,  etc.,  709 

application  for  appointment,  114 

appraisers  of  personal  estate  to  discharge  duties,  290 

of  real  estate,  863 

compensation    for    additional,    654 

insolvent  estate,  of  claimant,  etc.,  to  claim  against,  1008 

to  remedy  omission,  to  appeal  from  decision  of  commissioners.  1008 

inventory  of  executor,  etc.,  annexed  to  proof  of  claim,  557 

before  what  officers,   557 

publication,  proof  of.  of  notice  of  appointment,  547 

for  constructive  service.   840 

sale,  before  confirmation  of  private,   882 

sale  bill,  489 
Fees   paid   to   predecessor    for    services    performed   by   probate   judge, 

].->SS  G.  C. 
Guardians,  etc.,  account,   1367 

inventory,  1367 

statement  of  ward's   estate,   1323 

as  to  value  of  mortgage  to  secure  bond,  1323 

private   sale,    882 

publication,  service  by,  840 
Orphan  asylum,  to  send  vagi-ant  child  to,  1906 
Sale,  before  confirmation  of.  private,  882 
Schedule  of  debts,  of  assignee,  etc.,  to,  1594 


INDEX  1877 

(References  are  to  sections.) 

AFFIRMATION  — 

Of  commissioners'  proceedings  in  county  road  appeals,   1791 
AGE  — 

When  wardship  ceases,    1354 
When   ward   may    choose   guardian,    1327 
When  ward  may  make  will,   1020 

When  ward  may  marry  without  guardian's  consent,  1997 
When  ward  may  marry,  1997 
Lease  to  determine  when  ward  arrives  at,  1445 
To  be  stated  in  petition  for  sale  of  ward's  lands,  1410 
Within  which  ward  may  be  bound  to  apprenticeship,   1370 
Child  cannot  act  as  executor  until  it  becomes  of,  93 
AGENT  — 

Employment  of,  660 
AGREEMENT  — 

To  arbitrate,  594  et  seq. 
To  distribute  in  kind,  750  et  seq. 
In  dower,  958 
ALDERMAN  — 

Proceedings  against,  guilty  of  misfeasance  or  malfeasance,  etc.,  2006 
ALIEN  — 

See  Naturalization. 
May  hold  land,  etc.,  935 
Heirs  of,  may  inherit  lands,  935 
Will  of,  effect  of  record  of,  1130 
ALIENATION  — 

Restraint  of,    1204 
ALLOWANCE  — 

Appeal  from  Probate  Court  as  to,  39 
Claim  against  estate  of  by  executor,  etc.,  557,  609 
See  Claims   of  Executor. 
by  Probate  Court  of  claim  due  executor,  631,  641 
due  after  two  years,  not  conclusive,  when,  580 

See  Presentation  of  Claims. 
prima  facie  evidence  only  of  validity  of  allowance  of  in  suit  OB 

bond,    277 
refusal  to  indorse  a  rejection,  609 
does  not  preclude  right  to  contest,  when,  277 
against  insolvent  debtor's  estate,   1632 
to  be  indorsed  by  assignee,  etc.,  1628 
of  compensation  to  assignee,  etc.,  1642 
See    Assignment. 
Guardian  to  receive  none  for  his  services,  when,  1367 

See  Guardian. 
Time  to  collect  assets,  how  obtained,  445,  446 

when  not  allowed,  448,  448« 
Widow  and  children  to  for  year's  support,  324 
See  Widow's  Allowance. 
record  of,  to  for  year's  support,  324 
of  what  to  consist,  324,  325 

to  be  stated  in  schedule  separate  from  inventory,  324 
may  be  increased  or  diminished  by  Court,  333 
a  preferred  claim,  647 

not  barred  by  election  to  take  under  will.   1221 
on  sale  of  real  estate  by  executor,  etc.,  816 

ALTERATION  — 

Effect  of,  of  will  by  deed,  etc.,   1059 
See  Revocation  of  Wills, 


1878  INDEX      . 

(References  are  to  seclicns.) 

ALTERATION  —  Continued. 

when  operates  as  revocation,  1059,  1000 
Of  State  or  county  road,  appeal  from  order,  1785 

township    road,    180") 
Allowed,  making  new  parties  in  proceedings  by  creditors  against  heirs, 
etc.,  of  deceased  debtors,  592 
AMERCEMENT  — 

Of  officer,  refusing  to  serve  or  return  process,  2010 
or  pay  over  money,  2010 
proceedings  against,  2010 
AMICABLE  PARTITION  — 

See  Partition. 
ANCESTOR,  908 
ANCESTRAL   PROPERTY,   90S 

See  Descent. 
ANCILLARY  ADMINISTRATION  — 
Application  for,   173 

form  of,   174,   175 
Definition,   165 

Difi'erence   between    principal    and,    167 
Estate  situate  in  different  States,  185 
Form   of   application  for   letters,    179 
Form  of  bond,   180 
Form  of  letters,   181 
Not  favored,  165 
Notice  required,   176 
Order  for  appointment,   178 
Payment   of   debts    and    distribution,    184 
Personal  estate  distributed  according  to  law,  domicile,  185 
Powers  and  duties,   183 

Real  estate  distributed  according  to  law  where  property  situate,  185 
When  appointed,   168 
Where  appointed,  171 
Who  appointed,   172 

Within  what  time  appointment  made,   172 
ANCILIARY^  GUARDIANS  — 
See  Guardian. 

ANIMALS— 

Appeal  for  injured,  1996  et  seq.,  G.  C. 
ANNUITY— 

For  estimating  value  of  Avidow's  dower,  21ZZ 

What  is.  374,  2136 

Certain,  2136 

In  possession.  2136 

Interest  on,  6!>4 

(Legacy  in  nature  of,  fi!)2 

Tables,  2015,  2024. 

When  mav  be  assigned.  1253 
ANNUAL  CROPS,  368 

See  Emblements. 
ANSWER— 

Of  guardian  a'l   litem,  845 

Of  widow  waiving  assignment  of  dower  by  metes  and  bounds,  etc.,  S46 

Of  wife  of  assignor  waiving  assignment  of  dower.  1602 

Of  defendant  in  action  for  sale  of  land,  846 
ANSWER  AND  CROSS-PETITION— 

Of  creditor  in  suit  to  set  aside  fraudulent  convevance,   1580 
ANTENUPTIAL  CONTRACTS— 

As  to  widow's  alluwance,  327 

As  to  dower,  947 


INDEX  1879 

(References  are  to  secttone. ) 

APPEAI^— 
Generally: 

Amendments  allowed  on,  42 
Animals,  injured  by  dogs,  1996^ 
Appointment   ox   guardians,    1173 
bow  effects,  151i5 
Bond,  when  must  be  given,  44 

to  whom  payable,  46 

when  filed,  45 

amount  of  penalty,  47 

form  of,  47 
Contempt,   1994 
Claim  not  due,  583 
Claim  of  executor,  642 
Ditch  appeals : 

See  Ditch  Appeals,  1850 
Exceptions  to  inventory,  317 
Foreign    T\il],    1123 
From  order  of   [.robate  of  will,   1153 
Error  may  be   })rosecuted   at  same  time,  40 
From  Probate  Court  on  lunacy  takes  up  whole  case,  39 
Guardian's  sale  of  real  estate,   1431 
Guardian's  accounting.   1495 
Guardian  must  be  appointed  before.    i;?^2 
Guardian  of   lunatic,    1515 
Hearing   on,    dismisses   error.    52 
JlahroF;    royijiis.    li'To 

In  distribution  of  personalty,  785 
In  real  estate  proceedings,  906 
In  aid  of  execution,   1950 
Lies  from  a  final  order,  40 
Notice  of,  45 

must  be  in  ^ATiting,  45 
Only  exists  when  allowed  by  statute,  40 
Party  not  in  interest  must  give  bond,  44 
Presvimption  is  that  trustee  take  up  in  that  capacity,  45 
Proceedings   certified    back,    51 
Probate  of  wills,  1116 
Questions  to  be  considered,  42 
Removal  and  resignation,  232 
Removal  of  assignee,  1575 
Road  appeals: 

.See  Road  Appeals,  1784 
Removal  of  assignee,  1575 
Second  not  allowed,  42 
Sheep  claim  appeals,  2115 

iSuspends  execution  of  judgment  during  pendency  of,  40 
Spoliated    will,    1153 
To  exception  of  account,  736 
Transcript,  49 

party  interested  must  file,  50 
Trial  on,*^42 

What  may  be  appealed.   40 
Who  may  prosecute  appeal,  41 
Widow's    allowance,    340 
Appropriation  of  property  by  cities  and  villages: 
Appeal   of  Common  Pleas,   1777 
Bond,    1778 

when   not   required,    1779 
Married  woman's  liability,   1779 
Notice    of    appeal,    1778 
Original   papers  may  be  used,   1781 
Transcript,  etc.,  probate  judge  to  furnish,   1780 


1880  INDEX 

(References  are  to  sections.) 

APPEAL  —  Continued. 
Assignment  for  creditors: 

Account,  from  order  settling  of  assignee,  39 
Appeal  to  Common  Pleas,  39 
Bond,   43 

when  not  required,  43 
Original  papers  may  be  used,  49 
Proceedings   in  Common   Pleas,   etc.,   51 
Real  contracts,  completion  of,  39 
Sale  of  property  for  paym^ent  of  debts,  39 
Transcript,  when  to  be  filed,  49 
Trial  in  Common  Pleas,  51 
Executor  and  administrator: 

Account,  from  order  settling,  39 

Allowance  to  widow,  from  order  increasing  or  diminishing,   39 

embezzling  assets,  39 
Bond.  43.  641,   1004 

when  not   required,   43.    1779 
Distribution,  proceedings  to  enforce,   785 
Insolvency,   1010 

appeal  to  Circuit  Court,  785 
Insolvency,  from  decision  of  commissioners,  disallowing  claim,   1004 
bond,'   1004 

failure  to  appeal,  how  remedied,   1008 
when   petition   to   be   presented,    1008 
Inventory,  on  hearing  exceptions  to,  312 
Of  claim   of  executor,   etc.,   against  estate,   641 
Proceedings  in  Common  Pleas,  51 

Proceedings  against  persons  suspected  of  having  embezzled  assets,  etc.,  39 
Real  contracts,   for  completion  of.   39 
Record  of  will  destroyed,  contest  of,  1157 
Sale  of  real  estate,  for  payment  of  debts,  39 
Transcript,  when  to  be  filed,  49 
Will,  from  refusal  to  admit  to  probate,   1116 

how  appeal  perfected  and  proceedings  in  Common  Pleas,  1117 
in  proceedings  to  contest  supplied  record  of,  1157 
Guardians  and  trustees: 

Account,   from  order  settling.   1493,   39 

Appointment  of  guardians  or  trustees  for  lunatics,  etc.,  39 

Bond,  43 

when   not  required,   43,    177f*,    1787 
Distribution,   enforcement  of  order  of.   785 
Proceedings  in  Common  Pleas,  etc.,  51 
Real  contracts  to  complete,   39 
Sale  of  real  estate  for  payment  of  debts,  39 
Transcript,  when  to  be  filed,  49 
Trustees'  accounts,   1297 
Bank  deposits: 

To  recover  unclaimed,  9869  G.  C. 
Ditch : 

See  Ditch  Appeal. 
Sheep : 

See  Sheep  Appeal. 
Fire  marshal: 

See  Fire  Marshal  Appeal. 
Road: 

See  Road  Appeals. 
Ditch  appeal: 

Action  to  enjoin,  lS74f 
Actual  benefit  may  be  shown,  1874b 
Answer  need  not  be  filed,  1861,  1863 
Assessment,  action  to  enjoin,  1874f 
action  to  recover,  1824d 


INDEX  j81 

(References. iue  to  sections.) 


APPEAL  —  Continued. 

Assessment  appealed  from,  1852 

Auditor  to  file  transcript,  1861 

Bond,  1850 

Construction  and  appeal,  1850 

Construction  not  stopped,  wlien,  1874a 

County  commissioners,  jurisdiction,  etc.,  1850 

Compensation  appealed  from,  1852 

Court  shall  separate  issues,  1868 

trial  by,  1868 
Damages,  appeal  from,  1852 
Defendant,  who  is,  1859 
Dismissal,  appeal  from,  1850 
Docketed,  how,  1857 
Equity  to  be  done,  1874d 
Error,  not  suspended  judgment  when,  1874 

when  not  enjoined  for,  1874f 

proceedings  in,  1873 

governed  by  rule  in  civil  cases,  1873 

who  made  parties,  1873 

who  deemed  parties,  1873 
Evidence  in  action  to  recover  assessment,  1874d 
Filing  transcript,  1862 
Finding  for  improvement,  1852 
Final  order,  what  deemed,  1851 

Avhat  is,  1852 
Forms,  notice  of  appeal,  1855 
Historical,  1850 
Injunction,  when  granted,   1874f 

when  not,  1874g 
Issue,  how  made  up,  1863 
Joinder  of  interested  party,  1861 
Judgment,  when  not  suspended,  1874 

motion  for,  1870 

transcript  after,  1872 
Jurisdiction,  Probate  Court,  1850 

Common  Pleas,  1850 
Jury,  trial  bv,  1866 

verdict  of,   1867,   1868 
Location,  A'iew  of,  1861 
Manifest  error  before  injunction,  1874d 
Motion  for  new  trial,  1870 
New  trial,  1871 

motion  for,  1871 
Notice  of  appeal,  1855 

when  owner  has  none,  1874e 

put  on  journal.  1853 
Owner  may  recover,  when,   1874b 

wlien  no  notice,  1874c 
Plaintiff,  who  is,  1859 
Pleadings  not  required,  1861 
Perfection  of  appeal,  1857 
Persons  who  may  appeal,   1854 
Proceedings  in  error,  1874 
Proceedings,  when  stayed,   lS74a 
Questions  for  appeal : 

amount  of  gssessment.  1852 

compensation,  land  taken,  1852 

damage  sustained,  1852 

dismissal  of  j)etition,  1852 

finding  for  improvement,  1852 
Statement  of  matter  of  appeal,  1861 

form  of,   1862 

filed  in  court,  1859 
Stay  of  proceedings,  etc.,  1874a 


1882  INDEX 

(References  are  to  sections.) 

APPEAL  —  Continued. 

Tax,  when  owner  may  recover,  lS74b 

evidence  in  action,  1874d 
Taxation  of  costs,  1870 
Trial  by  court,  1865 

by  jury,  1866 

governed  by  rule  in  civil  cases,  1864 

procedure  of,  1864 
Time  of  filing  appeal,  1857 
Transcript,  auditor  to  file,  1861 

after  judgment,  1872 
View  of  location,  1S67 
Verdict  by  jurv,  1868 

by  court,  1865 

matters  pertaining  to,  1869 
Wliat  deemed  final  order,  1851 
Wlien  owner  may  recover  assessment,  1874b 
When  petition  dismissed,  1857 
Who  may  appeal,  1853 
Appeal  to  Circuit  Court: 

Proeeedinfrs  to  enforce  distribution,  785 
APPEAL  BOND— 

See  Appeal,  43. 
A])propriation  of  property  by  municipal  corporation,  1778 

who  mav  appeal  without,  1770 
Ditch,  county,  1833 
Road,  countv.  1787 

state.  1787 

who  mav  appeal  without,  1787 
APPEAIIANCE,*843 

See  Sale  of  Real  Estate. 

APPLICATION  — 

See  Forms. 
Appropriation  of  property  by  private  corporations,   1679 

municipal,   1750 
A^ssignnient  for  creditors,  appointment  of  additional  trustees,  1561 

to  continiie  assignor's  business,   1602 

examination  of  assignor  as  to  honesty  of  assignment,  etc.,  1585 
Executor's  and  administrator's,  for  appointment,   114 

for    sale   of   desperate   claims,    456 
Guardian  of  insane  ward,  for  authority  to  make  long  lease.   1527 

of  foreign,  for  authority  to  sell  real  estate,  1481 
Habeas  corpus,  writ  of,  1955 

Partnership,  by  surviving  partner  to  appoint  appraisers,  etc.,  417. 
Proceedings  in  aid  of  execution,  after  return,  1911 

before  return,   1920 

APPOINTMENT  — 

Of   attorney  for   party  under   disability  in   condemnation   proceedings, 

1694 
Of  executor  or  administrator,  notice  of,  544 

affidavit   as   evidence,    546 

gives  jurisdiction,  543 

failure  to  give,  hpw  remedied,  548 

proof   of   publication,   547 

liability  for  failure  to  give,  550 

object  and  purpose,  543 

form  of  J  545 
Of  assignee  or  trustee  of  insolvent  estate,  notice  of,  1557 
Of  guardian.     See  Guardian, 


INDEX  1888 

(References  are  to  sections.) 

APPORTIONMENT  — 

See   Annuities. 
See  Rents. 

APPRAISEMENT  — 

See   Inventoky. 
Assignment  for  creditors,   1594 
See  Assignments. 

return  of,   1594 

real  estate  not  to  be  sold  for  less  than  two-thirds  of,  1602 

when  personal  property  may  be  sold  at  less  than  two-thirds  of,  1602 

real  estate,  without  State,  none  required  of,  1594 
Decedent's  personal  property,  281 
See  Appkajseks. 

will  may  direct  none  to  be  made,  470 

Court  may  notwithstanding  require,  470 

when  to  be  made,  281 

may  include  real  estate  by  order  of  Court,  299 
Decedent's  real  estate,  when  included  in  inventory,  299 
See  Sale  of  Real  Estate. 

when  appraisement  of  to  be  made,  299,  856,  825 

how  appraisement  made  when  land  in  two  or  more  countries,  857 

of  dower,  857 

when  no  dower  is  assigned,  856 

return  of,   863 

when  Court  may  set  aside  and  order  new,  880 
Guardian's  sale  of  ward's  lands,   1418,   1425 
See   GxTAEDiANS. 

lease   of,    1438,    1528 
Partner,  on  application  of  surviving,  417 

to  be  filed  but  not  recorded,  417 

APPRAISERS  — 

See  In\t;ntory. 
Assignment  for  creditors,  appointment,   1594 

when  justice  may  appoint,  1594 

duties  of,  1594 

return  of  inventory  and  appraisement,   1594 
Decedent's  personal  estate,  appointment,  oath  and  duties,  290 

appointed   how,   284 

justice  may  appoint  when  property  is  out  of  county,  284 

or  in  case  of  sickness  or  negligence,  285 

form  of  appointment  of,  by  justice,  286 

in  whose  presence  to  act,   292 

must  sign  inventory,  300 

set  down  each  item  separately,  292 

fees,   301 
Decedent's  real  estate,  appointment,  857 
See  Sale  of  Real  Estate. 

qualifications.  857 

oath  and  duties,  857,  863 

duty   in  assignment  of   dower,    857 

how  appointed  to  fill  vacancies,  801 

when    land    is   in   more   than   one   county,   857 

certificate   of   appointment,    861 

return  of,  in  writing,  863 

can  not  purchase,  889 

compensation,  872 
Fees  of,  301,  872 


1884  INDEX 

(References  are  to  sections.) 

APPRAISERS  —  Continued. 

Guardians  and  trustees,  appointment  of  for  sale  of  ward's  land,  1418 
See  GuARDiAxs. 
qualifications,    141S 
oath,  1421 

tor   lease   of   ward's   land,    1438,    1528 
duties   of,    1438,    1528 
Partner,   on   application   of   surviving,   417 
Partnership  assets,  418,  420 

APPREXTTCE  — 

Wards  may  be  bound  out  on  approval  of  Probate  Court,  1370 
APPROPETATION  PROCEEDINGS  — 

Two  distinct   parties  cannot  join   as  plaintiffs,   1686 
APPROPRIATION   OF   PROPERTY  — 
Greneral  provisions: 

Attaches   to  every  kind  of  property,    1662 
Additional  servitudes,   1670 

telephone  poles  in  sidewalks  are,   1670 

poles  for  electric  light  are,    1670 

pipes  for  natviral  gas  are,    1670 

railroad  in  highway  is,   1670 

poles  for   electric   railway   are  not,    1670 

sewers  in  street  is  not,  1670 

electric  railway  in  city  is  not.    1670 

interurban  on  highway  is,   1670 

when  change  of  grade  may  be,  1670 
Benefits,  1672 

general  definition,   1672 

cannot  be  considered,  1672 

special,   1672 

definition,    1672 

what   con.stitutes,   1672 

instances,    1672 
Compensation,   1671 

meaning  of,   1671 

in  constitutional  sense  includes  both  compensation  and  damages, 
1671 

should  be  adequate  to  cover  all  loss  sustained,  1671 
Constitutional  provisions.   1664 

reason  for  two  sections,   1664 
County  road,  1786-1806 
Definition  of  power,  1663 
Distinction  between  and  taxation.  1662 
Evidence,  1673 

general  rules  apply,  1673 

burden  of  proof  rests  on  land  owner  to  prove  value,  1673 

witness  may  give  opinion.   1673 

form  of  question,   1673 

sales  of  similar  property,   1673 

taxes  returns,  1673 

expert  not  necessary,   1673 

is  the  view,  1710 
Guardian  cannot  dedicate  ward's  real  estate,   1398 
How  grant  to  exercise  construed,   1666 

examples  of.   1666 

must  strictly  come  within  granted  power,   1666 
Original  jurisdiction  of  Probate  Court,  1662 
Power  rests  upon  what,   1663 
Pleadings  not  required,    1679 


INDEX  1885 


(References  are  to  sections.) 

APPROPRIATION  OF  PROPERTY  —  Continued. 
Taking  without  right,    1669 

choice  of  remedies,  1669 

what  is,  1669 

whatever  abridges,  destroys  or  curtails  use  of  property  is,  1669 

construction  of  tile  ditch  is,   1669 

running  sewage  in  natural  water  course  is,  1669 
What  and  how  much  may  be  taken,   1668 

every  kind  of  property   may,   1668 

rules  for,  where  property  already  appropriated,  166S 

only  so  long  as  the  public  uses  it,   1668 

an  easement  or  fee  simple  may  be,  1668 

not  more  than  the  law  provides,   1668 

land  under  water  may  be,   1668 

owner  of  the  fee  retains  trees,  shrubs,  etc.,   1668 

also   right  of   spring,    1668 
Who  may  exercise  power,   1665 

•  legislature   determines    necessity,    1665 

Court  determines  amount  of  compensation,    1665 

an   individual   or   corporation  may,    1665 
When  may  be  exercised,   1667 

only  for  a  public  use,  1667 

is  a  question  for  the  Courts,   1667 

difficulty    of   defining   public   use,    1667 

examples  of  what  are,   1667 
By  cities  and  villages: 

Appeal  to  Common  Pleas,  1777 

proceedings  same  as  in  Probate  Court,    1777 

but  corporation  not  required  to  give  notice  of  application,  1777 

corporation  can  not  appeal,   1782 

by   guardian,   executor,   etc.,    1779 

by  married  woman,    1779 
Application  to  Court,  1750 

essentials  of,  1751 

form  of,  1752 

precipea   for  witnesses,    1752 

filing,   1753 

notice  form   of,    1755 

when  to  be  heard,    1756 
Bond  to  pay  damages  by  any  person  interested,  1772 

for  appeal,  1778 

when  not  required,  1779 

when  execution  of  order  suspended  on  error,  1776 
Building  partly  on  land  taken,   1763 
Compensation,  how  assessed,  1763 

when  building  partly  on  land  to  be  taken,  1763 
Concurrence  of  two-thirds  of  council  necessary  for  condemnation,  1749 
Costs.   1770 

effect  of  filing  written  offer  to  confess  judgment  for  stated  amount, 
etc.,  1770 
Distribution  of  funds,   1769 

Empaneling  jury,    1761  • 

Entry  on  preliminary  questions,  etc.,  1759 
Error,  review  of  proceedings  on,   1773 

when  execution  of  order  may  be  suspended,  1776 

when  right  to  take  effect  not  affected  by  review,  1778 
Forms,  1750,  1754,  17.58 
Guardian  ad  litem  for  infants,   1756 


1886  mDEX 

(References  are  to  sections.) 

APPROPRIATION  OF  FUOFBRTY —  Continued. 
Inquiry  to  be  had  at  time  fixed,   1759 

Court  to   fix  time  for,    1758 
Jurisdiction  of  Common  Pleas  and  Probate  Courts,  1750 
Jurisdictional  questions,  1757 
Jui-ors,  how  drawn,   17 GO 

sworn  to  make  whole  inquiry,  etc.,   1765 

but  may  render  verdict  as  to  part,  1765 

view  of  premises  by,    1762 
Maps,  plats,  etc.,  may  be  required  of  corporation,  1761 
Married  woman's  liability  on  appeal,  1779 
Mortgagee,  when  entitled  to  notice,  1754,  1755 
New  trial,  motion   for,   1773,    1774 
Notice  of  application,  service  of,  1754 
Notice  of  intention  to,   1778 

Notice  of  resolution  declaring  intention  to  appropriate,  when  and  hoW 
served,   1749 

of  appeal,   1778  •  , 

Open  and  close,  1763 
Owner,   doubt  as   to,  effect,   1771 

Original  papers  may  be  used  in  Common  Pleas,    1781 
Ordering  jury,   1759 
Payment  of  deposit,   1767 

adverse  claimants  required  to   interplead,    17GV 

no  delay  from  doubt  of  ownership,  1771 

must  pay  in  six  months,    1783 
Possession,  time  and  manner  of  delivery,  1769 

no  delay  from  doubt  of  ownership,  1771 

must  take  in   six  months,    1783 

when  petition  in  error   filed,   1776 
Purposes  for  which   appropriations  may  be  made.   1749 
Resolution  of  council  declaring  condemnation  necf ss.nry.    1749 

notice  of,   when   and   how  given,    1749 
Statute  must  be  strictly   followed,    1748 
Trial,    1764 
Transcript  to  be  furnished  on   appeal,    1780 

when  to  be  filed,    1780 
Verdict,  1763 

when  structure  partly  on  land  sought  to  be  taken.  1763 

confirmation  of,   1775 

election  of  owner  to  remove  or  accept  value,   1763 

effect  of   failure  to  make  election,    1T63 

form  of,   1766 

return  of,   1766 

may  be  returned  as  to  part,   1765 
View  of  premises.    1762 
By  private  corporation: 

Abandonment  by  corporation,   1725 

when  presumed,   1725 

judgment  against  corporation,  1725 

what  is.   1726 

when  action  may  }>(-  brouuht  for  costs  and  expenses,  11061  G.  C. 
Amendments,  may  be  ollowed,  1684 
Appropriations  can  only  be  made,  when,  1676 
Attorney  appointed   for   absent  parties,   etc.,    1694 

fees  in   such    casps,    1604 

fees  in  case  of  abandonment.   1725 
Common  pleas  has  jurisdiction,  when,   1682,   1733 


INDEX  1887 

(References  are  to  sections.) 

APPROPRIATION  OF  PROPERTY —  Continued. 

Compensation,  how  assessed  when  structure  partly  on  land  Bought  to 

be  taken,  1715 
Conflicting  claims  not  to  be  passed  upon,   1728 
but  to  be  adjudicated  in  Common  Pleas,  1729 
such  proceedings  a  civil  action,   1730 
to  be  determined  by  Court  or  jury,  how,  1730 
Costs  and  fees,  how  taxed,  etc.,   1746 

when  costs  may  be  apportioned,  1746 
on  new  trial  granted,    1718 

of  more  than  three  witnesses  on  same  point,  1713 
on  abandonment,  1725 

in  proceedings  to  condemn  unfinished  road-bed  railroad,   1732 
judgment   for    expenses   against   corporation,    1725 
Cost  bill  expense  of  view  to  be  taxed  in,   1708 

Director's  individual  liability  on  judgment  against  corporation,   1725 
Distribution  of  proceeds,    1727 

entry  where  there  are  no  conflicting  claims,  1727 
Error  when  may  be  prosecuted,  1721 

Evidence,  none  to  be  given  before  jury  viewing  premises,   1708 
witnesses  may  be  examined  after  return  of  jury,  1713 
burden  of  proof  on  corporation,   1695 
Fees,    1746 

Interurban   railway   included,    1675 
Insane  person,  appropriation  of  property  of,   1677 

application  by  guardian  for  authority  to  convey,   1677 
Jurisdiction,  exclusive,  of  Probate  Court,  27 

of   Common    Pleas,   when,    1682,    1733 
Jurisdictional  questions  to  be  first  determined.   1695 
Jury,   how  drawn,    1701 

fees   not   taxed   against   plaintiff,    1701 

impaneling,   1703 

challenges,  how  vacancies  filled.   1704.    1705 

entry  for,   1702 

entry  empaneling,   1709 

entry  appointing  attorney,  1709 

oath  of,  1706 

order  to  draw,   1702 

order -to   empanel,    1702 

qualifications  when   tried   in   Common   Pleas,    1722 

view  of  premises  by,  writ  for,  1707 

is  it  evidence,   1710 
verdict  of,   1716 
who  to  be  present,   1708 
return  of  sheriff,  1708 

expense  of  view  to  be  taxed  in  cost  bill.   1708 
no   evidence   to   be   given.    1708 
must  strictly  comply  with  statute,   1674 
Minor,   appropriation   of   property   of,    1678 
entry  ordering  conveyance,    1678 
deed,  form  of,  1678 
guardian  may  file  application  for  authority  to  convey,  1677 

form  of,^  1678 
notice   of   application,    1677 
entry  ordering,   1678 
form  of,  1678 
New   parties,   may   be  made,    1684 
New  tri.il.    1718,"^  1717 

conducted  according  to  provisions  governing  first,   1718 


1888  INDEX 

(References  are  to  sections.) 

APPROPRIATION  OF  PROPERTY  —  Continued. 

proceedings   on,    1718 

Probate  Judge  to  retain  amount  of  verdict  if  new  trial  granted. 
1718 

verdict,   how  paid   after  second   trial,    1718 

costs  of  second  trial,  how  and  by  whom  to  be  paid,  1718 
Nature  of  proceedings,   1683 
Notice  by  land  owner  or  school  officers  when  corppration  takes  land 

without  condemnation  proceedings,  1735 
Petition   for   appropriation,    1679 

filing  of,  1689 

essentials  of,  1686 

form  of,   1688 

in  what  Court  to  be  filed,   1679 
where  land  is  located,  1680 

entry  on  filing,   1689 

in  what   county,    1681 

may  include  all  parcels  in  county  sought  to  be  taken,  1679 

must  contain  what,   1679 

by  land  owner,  etc.,  when  land  taken  without  condemnation  pro- 
ceedings, 1735 

by  party   claiming  interest  in  property   or  money  arising  there- 
from, 1729 
Petition  in  error,   either  party  may  file,   1720 

but  corporation  may  enter  on  property  sought  to  be  appropriated, 
how,  1720 

proceedings  in  Common  Pleas,   1722 

in  judgment  reversed,  how  trial  conducted,   1722 

when  had  in  Common  Pleas,  1722 
Parties,   1687 

all  interested  should  be,   1687 
Possession,  when  and  how  corporation  may  have,  1723 

entry  when  deposit  made,   1724 

judge  to  enter  on  record  an  order  of  possession  when  money  is 
paid,  1723 

and  may  issue  process  to  put  corporation  in  possession,  when,  1723 

when  land  taken  without  condemnation  proceedings,  1735 
Preliminary  questions,  when  to  be  heard,   1696 

existence  of   corporation,   how  shown,    1697  • 

right  to  make  appropriation,  how  shown,   1698 

inability  to  agree,  what  is,  1699 

necessity  for  appropriation,  who  to  determine,  1700 

finding  on,  1701 
Reversal   of   condemnation,   Common  Pleas  to  retain   cause  for  trial, 

etc..   1722 
School   lands,   how   appropriated,    1747 

money  arising  therefrom,  how  disposed  of,   1747 

proceedings  when  taken   without  condemnation,    1735 
Separate  trial,  who  entitled  to,  1711,   1712 
Service  by  publication  may  be  issued,  when,  1692 
Sheriff,  judge  to  deliver  copies  of  petition,  etc.,  to,  1708 
Structure   partly    on   land    sought   to   be   appropriated,   how   compen- 
sation assessed,  1715 

owner  may  elect  to  retain  structure  or  accept  value  fixed.  1715 

when  election  not  made  in  time  specified  retention  presumed,  1715 

when  owner  elects  to  take  value  structure  belongs  to  corporation. 
1715 
Summons,  its  command  and  service,   1690 


INDEX  1889 


(References  are  to  sections.) 

APPROPRIATION  OF  FROFERTY  —  Continued. 

every  interested  party  should  have,  1691 

must  be  made  as  law  provides,   1691 

served  and  returned  as  in  civil  action,   1690 

strict  construction  of  law  applied,    1691 

record  of  proceeding  must  show,   1691 

when  no  service  made,  new  writ  may  issue,  1690 

service  by   publication,    1692 
affidavit  for,  1693 

when   corporation   takes   land   without  condemnation  proceedings 
1742 
Time  of  trial,  adjournment,  etc.,   1685 
Trial,  how  conducted,   1711 

may  be  adjourned  and  continued,    1685 

owner  of  separate  parcel,  etc.,  entitled  to  separate  trial,  1711 

shall  hold  affirmative  on  trial,   1711 

on  reversal  of  judgment  in  Common  Pleas,   1722 
Unfinished  road  bed  of  railroad  may  be  condemned,  1731 

answer   of   defendant   company,    1731 

service  by  publication,  1731 

judgment  and   costs,    1732 

in  what  Courts  such  proceedings  may  be  begun,  1733 

case  may  be  taken  out  of  its  order,  1733 

proceedings  in  error  may  be  begun  directly  in  Supreme  Court,  1733 

provisions  as  to  viewers  not  to  apply,   1733 

sworn  statement  of  president  of  intention  to  complete  road,  1733 

twenty-five  per  cent,  of  cost  of  completion  to  be  expended  within  a 
year,    1733 
.  Verdict  and  confirmation,  1719 

form    of    verdict,    1716 

confirmation  of  verdict,  1719 
When  appropriations  can  be  made,   1676 
When    Probate   Court   cannot,    1728 
When  Probate  Judge  interested,   1682 

proceedings  to  be  commenced  in  Common  Pleas,  1682 

special  term  of,   1682 

and  to  be  conducted  according  to  provisions  of  this  ohapter,  1682 
When  corporation  takes  land  without  condemning  it,  1735 

notice  by  land  owner  of  school  officer  to  corporation,  1735 

petition   on   failure  of   corporation   to  act,    1735 

summons  in  such   case,   1742 

judgment  and  execution,  1742 

when  injunction  may  issue  against  corporation,  1744 
\^Tien  provisions  of  chapter  do  not  apply,    1675 
Witnesses,  examination  of  before  jury  after  its  return  to  Court,  1713 

costs  of  calling  more  than  three  on  same  point,  1713 
When  land  owner  may  compel,  1734 

demand  of  description  of  property,   1739 

motion    for    injunction,    1745 

notice  to  corporation,  1738 

procedure,    1743 

petition  essential  of,   1740 
form   of,    1741 

summons,  1742 
When   corporation   may   be  enjoined,    1744 
Where  action  brought,    1737 
Who  may  bring  action,  1736 


1890  INDEX 


(References  are  to  sections.! 

APPROVAL,  — See  Coxfibmation. 
See  Partition. 
See  DowKR. 
Of  bonds  by   Probate  Court,   238 
Of  assignee. 

See  Assignments. 
Of  Court,  on  sale  of  desperate  claims,  etc..  by  assignee.   1611 
ARBITRATION  — 

Agicement  to  refer,  598 

form,    598 
Award  has  no  judicial  force,   595 
Claims  in  favor  of  estate,  455 
Claims   against    estate,    594-606 
Confirmation  of  award,  606 
Duties    of   justices   of    peace,    598 
Duties  of  Probate  Judge,   600 
Doubtful   claims  against  estate  may  be  referred,  594 

procedure  when  claim  is  less  than  one  hundred  dollars,  597 
when  it  exceeds  one  hundred  dollars,  599 
proceedings,  powers  and  compensation  of  referees.  602 
report  of  referees,  602 
proceedings  of  Court  on,  602 
Filing  of  award,  605 
Guardian  may  submit,   1382 
Hearing,  603* 

Insolvent  estates,   reference  of  disallowed  claims,   969 
costs  awarded,  972 
judgment   on   award,   973 
Notice  and  oath  to  referees,  601 
Order  of  reference,  600 
Referee's  power,  etc.,  602 
Witnesses  how  procured,  604 
When  mav,  595 
ARREST  — 

See  Arrests. 
See  CiTSTODY  of  Will. 
Proceedings   in   aid   of  execution,    1911 
ASSENT  — 

To  distribution  of  notes,  bonds,  etc..  in  kind  of  decedent's  estat*.  751 
ASSESSMENT  — 

Administrator  should  pay  on  stocks  when,   522 
Notice  is  served  on  executor,  506 
See  AppKiVL. 
See  Taxation. 
ASSETS  — 

See  Claims,  etc.;  Debts,  etc. 
See  Administrator  and  Executor. 
Arbitration,  455 

when  may,  455 
Administrator  de  bonis  non  entitled  to  possession  of.  157 

liable  foi    new,  623 
Administration,  what  not  deemed  for  purpose  of.  3-20 
Appraised  and  sold  though  will  forbids  it.  470 
Advancements,   kind,  -365 
Chattel    mortgage,    when,    365 
Oil,    when;    straw,    when,    368. 

Cannot  be  retained  by  executor,  etc.,  in  payment  vi  his  own  debt,  631 
•Collection  of,  440-449 

affidavit  necessary,  446 
administrator's    duty,    etc.,    440 
duty  to  brins  suit,  441 
diligence  required,  442 
n^ligence  in,  443 


INDEX  1891 

(References  are  to  sections.) 

ASSETS  —  Continued. 

statute   of   limitations,   444 

extensions   of   time,   445-448 

when  further  time  can  not  be  allowed,  448 

when  further  time  will  be  allowed,  448a 
Concealed  or  embezzled,  394-415 

nature  of  proceedings,  394 

object  of,  394 

like  bill  of  discovery,   394 

Court  having  jurisdiction,  397 

complaint,  398 
form,  400 

parties,   399 

ordering   citation,   401 

commitment  to  jail,  403 

examination  of  accused,  407 

trial,  409,  4l0 

verdict,  411 

judgment,   412 
Compounding  claim,  450,  455 

who   may,  450 

authority  to,   451 

application  for,  452 

hearing,  453 

order    to    compromise,    454 
Care  and  management,  506,  532 

preservation  of  property,  506 

notes  given  by  administrator,   507 

employment   of   attorney,    508 
when  allowed,  509 
fees  allowed,  510 

taxation  of,  511 

custody  of  funds,  512 

failure    of   bank,    513 

investment  of  funds,  514 
when  to  be  made,  515 

insurance,  517 

carrying    on    business,    518 

carrying  out   contracts   of   deceased,   519 

contracts  not  binding,  520 

mortgages,    521 

stocks,   522 

completion,  contract  for  sale  of  land,  523 
nature  of  proceeding,   524 
parties,  525 
petition,   526 
notice,  etc.,  527 
form  of  deed,  531 
Discovered  after  return  of  inventory,  proceedings.  311 
Debt  of  executor   or   administrator,    3!i0 
Debt  of   heir  is,   3H3 
Definition,   303 
Distribiition  of  notes,  bonds,  etc.,  in  kind,  751 

of    insolvent    estate,    1011,    988,    989 
Dividends,   978,    1289,   374,   692 
Emblements  to  be,  in  hands  of  executor,  etc.,  369 
Foreign  executor,  etc.,  duty  of  as  to,  188 

wasting  may  be  required  to  indemnify  distributees,  193 
Gain  and   loss,   1290 
Insolvent  estate,  distribution  among  creditors  of,  1011 


1892  INDEX 

(References  are  to  sections.) 

ASSETS  —  Continued. 

Inventory  of  decedent.  281,  303 

to  include  all,  298 

when  further  assets  come  to  executor's  hands,  980 

disposition    of    surplus,    988,    989 

of  residue  after  paying  contingent  claim  against,  984 
Life  insurance  is,  380 
Marshaled   in   conformity   to   will,   832 

when  devised  property  taken  to  pay  debts,   1209 
Mortgaged   premises   considered   as,   386 
New  assets  after  return  of  first  inventory,  311,  616 
Not  to  be  retained  by  executor,  etc.,  in  payment  of  his  claim,  631 
Non-resident's  administration  of,  170 
Order  of  payment,  647 
Partnership,   416,   439 
Partnership    real    estate,    438 
Principal   and   income,    1288 
•    Preferred   debts  exhausted   in  payment  of,   671 
Property  specifically  bequeathed,  474 
Real  estate,  when  considered  personal,  438 
Received  after  two  years  go   to  creditors,   615 
Retention  of  to  pay  claini  not  due,  577 

Surplus  to  be  paid  into  Court,  on  non-resident  decedent,  170 
Sale  of  desperate  claims,  456,  468 

disposition   of,   456 

jurisdiction  of  Court,  457 

application    for,    458 

notice  for,  459,  460 

proof  of  notice,  461.  462 

public   sale  of,   463.   467 

private  sale.  466,  467 

effect  of  order  of  sale,  468 
Sale  of  personal  property,  469.  505 

See  Sale  of  Personal  Property. 
Time  to  collect,  440 

may   be   extended,   445,   446 

when  can  not  be  extended,  448,  448a 
What  are.  365,  393 

fixture.    365 

wood.   366 

manure.    367 

emblements,  368 

rent   of   farm    land,    371 

rents  generally,  372 
—-leases,    373 

annuities,   374 

dividends,  374 

copywrights,    375 

patents.  375 

pension   money,   376 

trust  property,  377 

money   on  deposit,   378 

fire  insurance  money,  379 

life  insurance  money,  380 

mutual   benefit    insurance,    381 

goodwill    of   business,    382 

property  conveyed  to  defraud  creditors,  383 

proceeds  of  real  estate.  384 

choses  in  action,  385 

debt   of   executor.    390 

debt  from  heir  or  legatee,  392 

not  possessed  by  deceased.  393 


INDEX  1893 

(References  are  to  sections.) 

ASSETS  —  Continued. 

widow's   allowance,   393 
fruit,   366 
fence,   366 

unfinished  structure,  366 
What  deemed,    320 
Wrongful  death,  etc.,  533 

is  not  in   ordinary  sense,  533 
Assignment  for  creditors: 

To  be  converted  into  money,   1602 
Guardian   and   trustee: 

Received  from  administrator,  etc.,  to  be  adjusted,  etc.,  1367 
retained  with  approval  of  Court,   1367 

ASSIGNEE  — 

See  Assignment. 
ASSIGNMENT  FOR  CREDITORS  — 
ASSIGNINIENT  — 

Insolvent  corporation,  when  made    1547 

Appeal   from  order  settling,  39 

Contents  of  report,    1653 

Examination  of  assignor  and  assignee  as  to,  1585,  733 

Exceptions  to,  1653 

further  time  to  file,  729 
How  filing  and  settlement  of  enforced,   1573 
Jurisdiction  of  Probate  Court  over,  27,  1544 
Notice  of  filing  and  hearing,  how  and  by  whom  given,  1653,  729 

costs   of,   729 
On  resignation,  removal  or  death  of  assignee  who  shall  file,  and  settlej 

when,  1573 
Time  ior  filing,  1653 
hearing,    1653,    729 
settling,  1573 
Application    for    appointment,     1553 
entry,   1555 
Action : 

Common  Pleas  to  deliver  property,   1572 

to   settle  question   of   lien,    1618 
Fraudulent  conveyance,  action  to  set  aside,   1580 
notice  of  by  creditors,  1580 
how  creditors  made  parties,  1580 
Liens,  action  to  sell  real  estate  and  settle,   1618 
Limitation  of  action  on  rejected  claim,   1628 
Sale  of  real  estate,  action  for,   1618 

'     in  Common  Pieas,  when,   1618 
Successor    may    proceed   on   bond    of    assignee   to    compel    delivery   of 

trust  effects.   1573 
Trustees  may  compel  delivery  of  trust  property  by,  1572 
in  what  Courts,  1572 
Appointment : 

Of  assignee,  1546 

trustee,  1559,  1564 
Notice  of,   1557 

When  property  fraudulently  assigned,   1580 
Appraisement    and    Inventory: 

Appraisement  must  oe  filed  within  30  days,  1593 
Appointment  of  appraisers,   1594 

when    justice   may   appoint,    1594 
qualification   of,    159,5 
Homestead,  etc.,  to  be  set  off  by  appraisers,  when  and  how,  1598 
Inventory,    1594 


1894 


INDEX 


(References  are  to  sections.) 


ASSIGNMENT  FOR  CREDITORS  —  Contmued. 
when  to  be  filed,   1594 
Personal  property  not  to  be  sold  for  less  than  two-thirds,  etc.,  1610 
Real  estate  not  to  be  sold  for  less  than  two-thirds,  etc.,  1610 
subject   to   re-appraisement,    1610 
without  the  State  need  not  be  appraised,  1594 
Return    of    appraisement,    1597 
Schedule  of  debts  to  be  filed,  when,  1594 
When  part  of  estate  in  another  county,   1594 
What  must  be  appraised,    1596 
Assets,  to  convert,  1602 
Assignee,  qualification,  1553 

must  be  within  ten  days,    1553 
acceptance    presumed,     1553 
may  carry  on  business,  1587 
liability   of,    1588 
application  for  order  to,  1589 
form  of  application,   1590 
entry  permitting,   1590 
Assignments   in  contemplation  of   insolvency: 

Assignments    made    in    contemplation    of,    shall    inure    to    benefit    of 

creditors,    1570 
Trusts  arising  thereunder  must  be  administered  as  herein  provided,  1579 
Assignee  may  complete  sales  of  real  estate,  1591 
Assignee,  duties  similar  to  trustee  and  receiver,  1542 
Assignments  to  defraud,  etc.,  creditors: 

Conveyances  made  to  hinder,  delay  or  defraud  creditors,  void,  how,  1580 
administered  upon  as  in  other  cases  of  assignment,  1580 
Court  not  administering  trust,  or  on  failure  to  give  notice  copy 

of  certified  judgment  to  be  certified  to  Probate  Court,  1580 
which  shall  then,  on  its  own  motion,  appoint  a  trustee,   1580 
who  shall  administer  trust;   how,   1580 
distribution,  creditors  entitled  to  priority  in,  when,  1580 
notice,  publication  of,   in   such  case,   1580 
surplus,  creditors  failing  to  answer,  share  in,  1580 
trustee.  Probate  Judge  to  appoint,  after  conveyance  declared  void, 
1580 
Bail: 

Assignee  heretofore  appointed  may  be  required  to  give,  1576 
Removal  for  failure  to  give,  1576 
Bond: 

Action,   1573 
Appeal,  43 
Assignee's,    1546 

additional,  when  required,   1546 
form,    1554 
Failure  to.  give,  cause  for  removal,   1559,   1572 
Form  of,   1554 

Fraudulent  conveyance,  to  secure  costs  of  suit  to  set  aside,  1580 
New  bond  on  application  of  sureties,   1562 

discharges    sureties    on   original,    1562 
On  requisition  to  reject  claims,  to  pay  costs,  1635 
Trustee's,    1572 
Business  of  assignor: 

See  Carrying  on  Business. 
When  Court  may  order  to  he  carried  on  by  assignee,  1587 
Common  Pleas  Court,  jurisdiction  of,  1545 

only  where  power  of  Probate  Court  inadequate.  1545 
Collection  oif  assets,  1602 


INDEX  1 895 

(References  are  to  sections.) 

ASSIGNMENT  FOR  CREDITORS  —  Continued. 

diligence  required,   1G03 
Claims : 

Account  of,  to  be  filed,   1653 

when  to  be  filed,   1652,   1654 

what  it  should  contain,  1655 

form   of,    1656 

entry  and  order  of  notice,  1657 

hearing,    1658 

exceptions,    1659 

dividend   ordered,    1659 

notice  to  creditors  of  dividends,  1660 

report  of  payment,  1661 
form  of,   1661 
entry  on,  1661 
Affidavit,  to  be  filed  with  before  allowance  or  payment,    1632 
Bond,  assignee  or  creditor  must  give  when  filing  requisition,   1635 
Secured  by  mortgage,  1631 
Chattel   mortgage,    1608 

application  for  allowance,   1608 

entry,    1608 

creditors  notified,   1608 
Costs  may  be  allowed,  how,  1628 

Creditors  must  file  their  claims  when  and  how,  1629 
Desperate,  sale  or  compromise  of,   1602 
Disallowance  of,  on  requisition  of  creditor,   1635 

though  previously  allowed,  1635 

bond  of  creditor,  1635 

notice   of    disallowance,    1635 

procedure  on,    1636 

where  to  be  entered,  1638 

when  suit  must  be  entered,    1637 
Distribution  in  proportion  to  amount  of,    1579 

only  on  allowed  claims,   1629 

must  be  according  to  law  of  domicile,    1654 
Dividends,  payment  of,  1653 

report  of  payment,  and  of  those  remaining  uncalled  for  and  unpaid 
when  due,   1653 

notice  to  owner  of  unpaid  dividend,  1653 

distribution  of  unpaid  dividends,   1653 

on   what  amount,   etc.,    1631 

of    dividends    reserved    for    claims    disallowed    or    held    under    ad- 
vertisement,   1653 
Examination  of  claimant  under  oath  by  assignee,   1632 
Fraudulent,  power  of  Court  to  prevent  allowance  or  payment  of,  1585 
Fraudulent  conveyance,  in  action  to  set  aside,  creditors  cross-petition- 
ers to  set  forth  amount  of,  etc.,  1580 
Indorsement  by  assignee,  etc.,  of  rejection  or  allowance,  1628 
Judgment  against  assignee  on  rejected  claim,  how  awarded,  1628 
Laborer's   wages,   what  preferred,    1647 
Preferred  claims,   1647 

payment  of,   1640 

cost  of  administration,   1641 

lien  holder  not  to  be  cliarged  with,   1641 

commission   of  assignee,    1642 

ordinary  services,   1643 

extraordinary   services,    1644 
afTidavit  to.    1644 

attornev  fees,   1644 


1896  INDEX 

(Referencps  are  to  sections.) 

ASSIGNMENT  FOR  CREDITORS  — Cow^inwed. 
itemized  bill..   1645 

affidavit   to,    1645 
lien  existing  at  time  of  assignment,  1646 
by  statute,  1647 
taxes,    1648 
affidavit  when  services  performed  by  others,  1642 
labor  claims,   1649 

operative,    1649 
labor   liens,    1650 
rights  between  various,  1651 
Presentment  for  allowance,  when,   1628 
when  to  be  presented,  1629 
effect  of  failure  to,   1629 
should  be  within  six  months,  1629 
allowed  how,   1634 
what  to  be  presented,  1630 

contingent,    1630 
secured  by  mortgage,  1631 

entitled  to  dividend  on,   1631 
how  presented,  1632 
in  writing,   1632 
affidavit,    1632 
and  affidavit  that  services   were  performed,  etc.,   1642 

form  of.  1633 
rejected,  how,  1634 
Rejected,  when  action  to  be  brought,  1628 
Report  of  assignee  and  when  to  be  filed,  1628 
Report  of,  filed,    1639 

form   of,    1639 
Surety  may   present  and  prove.    1632 

but  dividend  must  be  paid  to  owner,  1632 
when  owner  proves  claim,   1632 
Taxes,    preferred   claims,    1647 
Validity  of  not  affected  by  determination  of  Court,  as  to,  in  election  of 

trustee,    1564 
Wages  due  operatives  preferred  claims,   1647 
Compensation    of   assignee: 

See  above  Preferred  Ci-aims. 
Commissions    usually   allowed.    1642 
Extra  for  carrying  on  assignor's  business,  1587 
Further  allowance  for  extraordinary  expenses  and  services,   1642 
and  reasonable  counsel   fees.   1642 
whether  performed  by  assignee  or  not,   1642 
but  bill  of  items  must  be  filed  for  further  allowance,  1642 
oy  statute,   1647 
Maladministering   not    entitled    to,    1643 

No  allowance  for  expense  of  employing  auctioneer,  unless,  etc.,  1644 
Corporation : 

Can  not  give  preferences,   1581 
May   assign,    1547 
Creditors  may  elect,    1564 
Costs : 

Fraudulent  conveyance,  in  action  to   set  aside,  when  creditors  to  se- 
cure,  1580 
Of  contesting  claim  when  disallowed  on  requisition  of  creditor,  etc., 

1635 
Of  notice  of  filing  accounts,  729 
Rejected  claim,  of  action  on.  1628 
Effect  of  order  and  issue  of  letters,   1556 


INDEX  1897 

(References   are   to  sections.) 

ASSIGNMENT  FOR  CREDITORS  —  Continued. 

Definition,  1542 
Death  of  assignee  or  trustee: 

Account,   legal   representative  must  file,    1573 
Court  may  appoint  successor,   1561 
Duties  of  assignee,  1578 

similar  to  trustee  and  administrator,  1578 
Deed: 

Acknowledgment  necessary  to  convey  real  estate,  1550 
Form    of,    1550 

Should  be  filed  in  recorder's  office,   1552 
Time  of  delivery  of  assignment  to  be  indorsee?   on,   1546 
Where  must  be  filed,  1551 

Wife's  answer  as  to  dower  has  same  effect  as,  of  release,  1600 
When  takes  effect,  1551 
Distribution : 

Cannot  be  made  before  eight  months,  1614 
Only  on  allowed  claims,   1659 

partnership,    1659 
Assignee  bound  by  Court's,   1659 
Must  be  according  to  law  of  domicile,  1542 
Dividends:     See  above  Preferred  Claims. 
By  whom  and  when  declared,   1653 

Notice  of  making  and  time  and  place  of  payment,  1653 
Report  of  payment,  and  of  those  remaining  uncalled  for  and  unpaid 

to  be  made  when,  1653 
New  notice  to  owners   of  unpaid,    1653 

distribution,    when    not    demanded    within   twelve    months    there- 
after,   1653 
Of  dividends  reserved  for  claims  disallowed  or  held  under  advisement, 
1653 
Dower,  assignment  of,  1600 
Effect  of  bankrupt  act,   1543 
Exempt   Property: 

Excepted  unless  expressly  waived,  1598 
From   levy,    1598 

Homestead,  etc.,  to  be  set  off  by  appraisers,  when  and  how,  1598 
five  hundred  dollars  in  lieu  of,  1601a 
petition   for   allowance,    1600 
Wife's  property  excepted,   1598 
Examination  of  assignee,   1585 

procedure,    1586 
Foreign  assignment: 

Does  not  affect  real  estate  in  Ohio,  1542 

Of  Ohio  land,  superior  to  subsequent  foreign  attachment,  1542 

Of    personalty,    superior    to    subsequent    attachment    of    Ohio    debtor, 

when,    1542 
When  deed  takes  effect,  1546 
How  made,  1550 

Incumbrances,  to  pay  on  order  of  Court,   1618 
Liens: 

Action  in  Common  Pleas  to  marshall,  and  quiet  title,   1618 
decree  and  order  of,   1618 

report  of  proceedings  certified  to  Probate  Court,  1618 
sale  of  real  estate  on,  1618 
Assignee  takes  subject  to,   1592 
Assignment  does  not  affect  priority  of,  1631 
Probate  Court  to  order  payment  of  in  order  of  priority,  1618 
Letters,   form   of,    1556 


1898  INDEX 

(References  are  to  sections.) 

ASSIGNIVIENT  FOR  CREDITORS  —  Continued. 
Mortgage : 

Claims  secured  by,   1631 

Rights  of  assignee  in  respect  to,  1549,  1608,  1592 
Notice: 

Accounts,   filing  and   hearing,   729 

Appeal,  of  intention  to,  43 

Appointment  of   assignee,   etc.,    1557 

Disallowance  of  claim  on  requsition  of  creditors,  etc.,  1635 

Dividend,  of  making  and  paying,  1653 

to    owner    of    unpaid    dividend,    1653 
Fraudulent  conveyance,  of  action  to  set  aside,   1580 
Form  of,   1557 
Of  appointment,   1557 
Sale  of  assigned  property,  1625,  1601 
Trustee,  of  time  and  place  for  election  of,   1564 
Property  that  may  be  assigned,   1549 

homestead  rights  reserved,    1549 
subsequent  services  of  assignor  not,  1549 
goods  in  transitu   not,   1549 
lease,  etc.,   1549 
Partnership : 

Partner  can  not  make  assignment  for  firm  unless,  etc.,   1547 
Sole  surviving  insolvent  partner  can  assign,  1547 
Where  there  are  joint  and  separate  assets,  1659 
Assignment  of  individual  members  after  dissolution,  1547 
Probate  Court  jurisdiction,  1544 
is  exclusive  when,   1544 
cannot  hear  action  to  set  aside,  1544 
Removal : 

Election  of   trustee.    1565 

to  qualify,   1560 
Election   by   creditors,   1570 
entry,   1571 
form  of  petition,  1566 
entry  ordering  citation,    1567 
form  of  citation,  1568 
hearing,    1569 
entry,   1569 
For  failure  to  file  assignment  or  give  bond,  1559 
to  give  new  bond  on  application  of  surety,  1562 
to   appear   when  cited   or   give   bail,    1576 
Appeal  and  error,   1575 
Procedure,    1563 
Power  of  Court  as  to,   1562 
Settlement  must  be  filed  by  assignee  on,  1573 
Trustee  appointed,  1572 
Rights  of.insolvent  debtor,  1572 
Resignation: 

•    Of  assignee  or  trustee,  when  and  how,   1561,    1573 
Raising,   1577 

form  of  application,   1577 
entry  ordering,  1577 
Sale: 

Application   for   of   personal   property,    1607 
form,   1607 
entry,    1607 
Appeal,  none  lies  from  order  refusing  to  confirm,  906 
Appraisers,   appointment,    1594 


INDEX  ] 899 

(References  are  to  sections.) 

ASSIGNMENT  FOR  CREDITORS  —  Continued. 

when  part  of  property  is  in  another  countj^   1594 

return  of  inventory  and  appraisement,   1394 
Assignee  can  not  purchase  at,  889 
Claims  in  favor  of  estate  may  be  sold,  when,  1611 
Confirmaiion  of,    1594,    1613 
Contemplation  of  insolvency  void,   1579 

how  set  aside,   1580 

what   sufficient   causes,    1581 

burden  of  proof  is  upon  person  assailing,  1581 

presumed   fraudulent   when,    1582 

who  should  bring  action,   1583 

in  what  Court  brought,  1584 
Desperate   claims,    1611 
Dower  not  extinguished  by,  1600,   1601 

answer  of  wife  to  contingent  right  of,  1600 
Election  of  husband  or  wife  to  be  endowed  out  of  proceeds  of  sale,  1600 

when  Court  to  order  sale  free  of  contingent,  etc..  1601,  1618 
Homestead  exemption  not  affected  by  provisions  with  respect  to,   1618 
How  to  be  sold,   1605 
Of  real  estate,   1617 

petition   should   always   be   filed,    1617 

nature   of   action,    1619 

where   brought,    1620 

parties,  1621 

form  of  petition,   1622 

procedure,    1623 

laying  out  of  town  lots,   1624 

notice  of,   1625 

return  of,   1626 

confirmation,   1626 
Liens,  action  to  settle,   1618 
Notice  to  lien  holders,    1607 
Notice  of,    1624 

of  personal  property,   1609 
Price  for  which  real  estate  to  be  sold,  1625 

limitation  as  to  not  to  apply  to  land  out  of  State,  1610 
Public,  of  personal  property,   1609 

conduct  of,  1009 

when  not  sold,  1611,   1612 

application  for  resale,   1612 

entry,   1612 

report  of  sale,   1614 

confirmation,   1614 
Private,   when   property  may  be  sold  at,    1610 

affidavit  as   to  making,   882 

price  at  which  property  to  be  sold,  1610 

property  not  sold  at.  officred  at  7)ublic  auction,  1611 
Return  of  sale  to  be  made,  when,   1613 
Terms  of  sale,  on  what  to  be  made,  1625,  1606 
When  and  what  must  be  sold,  1604 
When  may  order  sale  to  be  made,   1601 
TowTi  lots,  when  petition  seeks  to  have  laid  out.  1624 
Schedule  of  debts  must  be  returned  with  inventory,  1597 
Successor  of.  Probate  Judge  to  appoint,   1561 
Taxes : 

A    preferred    claim,    1647 
Trustees  elected  by  creditors: 

Application   for   election,   how  made,    1564 


1900  INDEX 

(References  are  to  sections.) 

ASSIGNMENT  FOR  CREDITOES  —  Continued. 
Bond,  trustee  to  give,  when  and  how,  1564 
Court   may   approve   choice,    1564 
Creditors  may  elect,   when   and  how,    1564 
Notice  to  creditors  of  meeting  to  elect  trustee,  how,  1564 
Number  of  creditors  required  to  be  present,   1564 
Number  of  creditors  required  for  choice  of  trustee,   lo64 
Proceedings  of  meeting,   how  conducted,    1564 
Record   to   be  kept,    1564 
Title  to  be  conveyed  to  insolvent  debtor,  1574 
Trustees  appointed  by  Probate  Court: 

Bond,  trustee  to  give,  when  and  liow,   1572 

Failure  to  give  bond  held  to  be  a  declination,  1572 

Order   to   put  new  trustee  in   possession  of   property,   Court  may  eii' 

force,   1572 
Real  estate,  assignee  and  debtor  shall  convey  to  trustee,  1574 
Taking  possession  of  property  by  another  under  lien  or  execution,  1592 

right  of  lienor  retained,  1592 
Time: 

When  assignee  to  file  and  produce  assignment  in  Probate  Court,  1546 
WTien  assignment  to  take  effect,  1546 
Who  may   make,    1547 

not  required  to  be  in   failing   circumstances,   1547 
when  member   of   partnership  may,    1547 
corporation  may,   1547 
surviving  partner,   1547 
Who  may  be  assignee,  1548 
Wif**  of  assignor: 

Real  estate  of,  excepted,  1598 

Ref»l  estate,  wife  to  be  made  party  to  proceedings  to  sell,  1600 

answer,  may  file,  asking  for  value  of  her  contingent  right  of  dower 

in  money,  1600 
effect  of  answer,  1600 
mortgage  proceedings  when  wife  has   executed   a  joint  mortgage 

with  husband,  1601 
proceedings  wiien  husband  executed  alone,   1601 
provisions  of  Sec.  6350f  as  to  the  right  of  wife  of  assignor  made  ap- 
plicable to  proceedings  to  sell  encumbered  real  estate,  1618 

ASSIGNMENTS  TO  AVOID  ARREST  — 
See  Revised  Statutes. 
Accounts,   Probate   Court  to  settle,   27 
appeal   from   order   settling.   39 

examination  of  commissioner  under  oath  as  to,  733 
notice   of   filing  and   hearing,    729 
cost  of,  729 
ASSIGNMENTS  WITH   INTENT  TO  DEFRAUD,   ETC.,   CREDITORS  — 
See  Assignments. 
Action   of   creditor   to   set   aside,    1580 
Appointment  and  duties  of  trustee,   1580 
"  By  a  Court  of  competent   jurisdiction,"   1584 
Evidence  of  fraud,  etc.,   1581 
Notice   of   action   by   publication,    1580 
"  Or  procured  by  him  to  be  made,"  1582 
Parties  to  action,  1580 

answer  of,  when  to  be  filed,   1580 
costs  to  secure,  1580 
Pleading,  1586 
What  Court  to  administer  trust,  1580 


KNDEX  1901 

(References   are   to   sections.) 

ASSIGNMENTS  WITH  INTENT  TO  DEFRAUD,   ETC.,  CREDITORS  — 
Continued. 
proceedings   when   Court   does   not  administer   or   notice  not   giv- 
en, 1580 

What  is  a  fraudulent  conveyance  and  what  is  not,  1582,  1581 

Inure  to  equal  benefit  of  all,   1579 

How  preferences  may  be  given,  1582 
ASSIGNOR  — 

Incompetent  to   testify,  when,    11495  G.   C. 
ASYLUM  — 

Orphan  asylum,  1906 

Admission  of  patient  to,   1999 

Affidavit  for  admission  to,   1999 
ATTACHMENT  — 

Power  of  Probate  Judge  to  issue,  17,  1976 

Property  exempt  from,    1598 

Heir's  interest  may,  590 

Against  person  guilty  of  contempt  of  Court,  1980 

^uministrator's  commission  cannot,  655 

Against  executor  or  administrator  failing  to  return  sale  bill,  303 
or  to  file  account,  741 

When  administrator  or  executor  may  file  petition  in  error  to  reverse 
order  discharging,  etc.,  11867  G.  C. 

Attendance  of  witnesses,  20 
ATTESTATION  — 

Definition,   1041 

Of  wills,  1034,  1040 

Presumption  as  to,  1106 

Form  of  clause,  1041,   1106 

Administration  of  estate  when   Probate  Judge  interested  aSj  ^ 

ATTORNEY  — 
Attorney    Fees : 

Administrator  may  act,  508 

Appointment  in  appropriation  proceedings,   1694 

Appointment  of  to  file  motion  for  contempt,  1982 

Employment  generally,   508 

Estate  not  primarily  liable  therefor^  509 

Employment  of  by  guardian,    1402 

Emploj'ment  of  by  ward,  1519 

For  what  services  allowed,   508,   509 

Fees   allowed,    amount,    510 

how  stated   in   account,   725 

In  assignments,  1644 

affidavit  to  claim,   1644 

Must  be  for  benefit  of  estate,  511 

Must  represent  assignee's  creditors  at  meeting  to  elect  trustees,   1564 

Notice  to,  on  application  to -admit  lost  will  to  probate,  1144 

Priority  of,  508 

When  charged  to  beneficiaries,  508 

Court  passes  upon  account,  508 

When   to   share  with   litigant,   509 

Preferred   claims,    when,   509 

Court  does  not  determine  amount,  510 

Probate  judge  or  deputy  imt  to  act  as,  7 

Should  employ  in  real  estate  sale,  829 

When  not  allowed,  509 

When    allowed.    509 

AUCTION  — 

See  Sale  of  Real  Estate, 
Assignee's  sale  must  be  at,  when,   1602 
ExecAitor's,  etc.,  sale  of  j)ersonal  property  at,  479,  495 

See  Sale  of  Personal  Pboperty. 

AUCTIONEER  — 

See  Sales  of  Personal  Property. 


1902  INDEX 

(References   are   to   sections.) 

AUCTIONEER—  CoHimwed. 

No  allowance  to  assignee  for  expense  of  employing,  unless,  etc.,  660 
See  Sale  of  Real  Estate. 
AUDITOR  — 

in  road  appeals  generally,  1787,  1789 
in  county  ditch  appeals,  18.50 

concerning  property  of  unknown  decedent,  2862  G.  C. 
Probate  Judge  to  report  fees  to,  when,  545,  3046  G.  C. 
Proceedings  on  complaint  against  for  neglect  of  duties,  2121 
AUTHENTICATED  COPIES  17a— 
Of  foreign  wills,  1132,  16!) 

B. 
BANK— 

Liability  of  trustee,  executor,  etc.,  for  loss  of  money  deposited  in,  578 

See  Money  on  Deposit. 
Unknown  banking  depositors   and   deposits  annual   report   to   Probate 
Judge,  501) 
BANKRUPTCY— 

Effect  of  on  insolvency,  1543 
State  laws  as  to  exemption  followed,   1543 
BANS— 

When  to  be  published  before  marriage,  2117 

BASTARDS  — 

See  GuARDLiNS. 
Capability  of  as  to  inheritance,   936 
When  legitimated,  937 

BEDS  — 

Widow  and  children  entitled  to.  320,  322 

BENEFITS  — 

Assessment  of.   compensation  for   property  condemned  irrespective  of, 

1706 
Special,  1672 
General,   1672 
BEQLTEST  — 

Charitable,  when  valid,   1028 
See  Charitable  Use. 
Debt,  bequest  of  to  executor  to  be  construed  as  a  specifi.-  'cgacy,  391 
Definition,    1013 

Land,  sale  of  to  pay,  when,  819 
Legatee  must  pay  back,  when,  159 

Specific,  exempt  from  sale  unless  required  for  payment  of  debts,  1208, 
1209,  470 
See  Payment  of  Legacies. 
to  witness  void,  when,    1044 
how  delivered  to  legatee,  474 

See  Legatee. 
when  paid  within  two  years,  696 
See  Residuary  Legatee. 
Who  may  make,  1018 

BIBLE  — 

Widow  and  children  entitled  to,  320 
BILL  OF  EXCEPTIONS  — 
See  Error. 

Allowance  of,  signing,  11564  G.  C. 

In  proceedings  on  allowance  of  claims  of  executor,  etc.,  641 


INDEX  ■  1  ()q;^ 

(References   are   to   sections.) 

BILL  OF  ITEMS  — 

To  be  filed  and  verified  to  entitle  assignee  to  extra  compensation,   \G4i 
BIRTHS  — 

Statistics  of  to  be  kept  by  Probate  Judge,  2014 
BLIND  — 

May  make  will,  1023 
BOARD   OF   EDUCATION  — 

Duties  of  in  establishing  joint  sub-districts,  2013 
BOARD  OF  EQUALIZATION  — 

Proceedings  on  refusal  of  witness  to  appear  or  answer  before.,  2014 
BOND  — 
Administration  of  estates: 

Accepting  forged  bond,  239 
Action  on  administration  bond,  255 
by  creditors,  262 
legatee  or  distributee,  265,  269 
succeeding  administrator,  etc.,  278 
in  what  courts,  261 
Administrator's,   124,  86,  93,   105,   114 

additional  required,  when,  95,  873,  875.  248,  258 
distinction  between,  and  new,  258 
corporation  may  give,  241 
administrator  de  bonis  non,  95-124 
foreign  administrator,  199,  200,  190 
refunding,  192 
to   secure   distributee,    194 
special  administrator,  133,  134 
with  the  will  annexed,  105 
Action  in  what  Courts,  261 
Appeal,  43 

when  need  not  be  given,  44 
when  must  file,  45 
to  whom  payable,  46 
amount  of  penalty,  47 
form,  48 
Appeal  of  executor's,  etc.,  claim  against  estate,  43,  641 
Claim  against  estate,  requisition  of  heir,  561 

creditor,  when  may  sue  on,  262 
Distributees  to  give  bond  to  executor,  etc.,  to  return  assets,  when,  751 
Construed  strictly,  259,  237,  234,  236 
Executor's,  83 

additional,  executor  must  give  when,  95,  873,  875. 
conditions,  83 
cannot  act  without,  71 
creditor,  when  may  put  in  suit,  262 
legatee,  widow,  etc.,  may  put  in  suit,  when,  265 
form  of,  84 

when  need  not  be  given,  85 
liable  on,  when  executor  is,  255 
may  be  separate,  86 

in  what  courts  action  on,  may  be  brought,  261 
not  required  when  so  provided  in  will,  83 
when  required  nevertheless.  83 
residuary  legatee,  bond  of  when  executoi-  is,  57 
form  of,  58 
liability  on.  59 
not  to  disfhargp  lien  on  testator's  property  unlesa,  60 
suit  on,  310,  262-277 


J 904  '  INDEX 

(References  are  to  sections.) 

BOND  —  Continued. 

such  bond  not  to  discharge  liens  on  testator's  property  except,  60 

when  sells  more  land  than  necessary  for  payment  of  debts,  873 

when  liable  on,  255 

where  to  be  filed,  86 

when  is  residuary  legatee,  57 

widow,  etc.,  may  put  in  suit,  when,  265 
Filed  in  Court  taking  same,  86 

Probate  Court,  238 
Foreign  executor,  etc.,  to  give  bond,  when,  199 

to  give  further  bond  to   account  for  surplus  when  he  sells  more 
land  than  necessary,  etc.,  200 

refunding  bond  may  be  required  by  of  heirs,  when,  190 

may  be  required  to  indemnify  sureties,  193 
Heirs,   bond    of   to   creditor    for   payment   of   claim   not   due   in   two 
years,  581 

action  on  such  bond,   581 

bond  of  for  rejection  of  claim  against  estate,  561 
Joint  or  co-administrator,  202 
Joint  or  several,  86,  1271 
Judge  not  liable  for  judicial  act,   14 

Non-resident,  administrator  may  be  granted  on  estate  of,  170 
New  bond,  when  required,  875,  248-250 

removal  for  failure  to  give,  243,  252 

sureties  on,  250 
Limitation  of  action  on,  4984  R.  S. 
Legatee's  for  delivery  of  property  to,  474,  475 

payment  of  legacy  within  two  years,  696 

when  executor  is  residuary  legatee,  57 
Reduction  of  bond,  25na 
Requirement  of,  233 
Sale  of  land,  to  account  for  surplus,  873 

additional  may  be  required,  875 

by  foreign  executor,  etc.,  199,  200 

by  persons  interested  to  prevent  sale,  826 
Sureties,  bond  to  indemnify,  must  be  given,  when,  253 

order  takes  effect  when,  248 

examination,  242 

number  of,  241 

liability  on  different  bond,  251 

application  for  indemnity,  254 
form,  255 

how  sureties  may  be  released,  243 

notice,  247 

cause  for  release,  243,  244 

need  not  be  named  in  body  of,  236 

liability  generally.  259 
when  liable,  259 
not  discharged  by  death,   259 
acts  done  colore  officii,  259 

when  sureties  insufficient,  new  bond  may  be  required,  248 

form  of  application,  245 

valid  if  one  sign,  236 

order  of  removal,  247 

qualifications  of  sureties,  86,  240,  241 

signing  conditional  bond,  236 
Where  to  be  signed,  237 
Appeal : 

See  Appeal. 
Appeal  bond,  43  i 


INDEX  1905 

(References   are   to   sections.) 

BOND  —  Continued. 

amount  of  penalty,  47 
form,  48 
In  road  cases,  1787,  1805 
county  ditch  case,  1833 
to  whom  payable,  46 
township  ditch  case,  1857 
when  need  not  be  given,  44 
when  must  file,  1806 
Appropriation  of  property,  etc. : 
By  interested  parties,  1772 
For  appeal,   1778 

by  guardian,  executor,  etc.,  1779 
Appointment   without  voidable,    233 
Approval  and  custody,  238 
Assignment  for  creditors: 

Action  on  to  compel  settlement  of  accounts,  1573 
Assignee's,  1546 

effect  of  failure  to  give,  1559 
Court  may  require  additional,   1546 
New,  on  application  of  sureties,  1562 

To  pay  costs  on  application  of  assignor  or  creditor  to  reject  claim,  1635 
To  secure  costs  of  suit  to  set  aside  fraudulent  conveyance,  1580 
Trustee's,   1572 

effect  of  failure  to  give,  1572 
Filing,  238 
Guardians  and  trustees: 

Additional,  by  guardian  of  insane  person,  when,  1528,  1398 
Appeal,  43 

when  not  required,  43 
Foreign  guardian  of  foreign  idiot  must  give,  1483 
Non-resident  minor  ward,  of  guardian,  1481 
Not  invalid  for  informality,  1337 
One  for  two  or  more  wards,  1338 

Sale  of  real  estate,  additional  before,  1422,  1522,  1334 
Testamentary,  1310 

Testamentary,  when  not  required,  1310 
Trustee  of  non-resident, 

of  non-resident  lunatic,  etc.,  1277 
when  wife  appointed,  of  idiot,  etc.,  1512 
Conditions  of,  236 
Liability  of  judge  in  accepting,  239 
Miscellaneous: 

Bond  company's  approved  by  Probate  Judge,  241 

Legatee  to  give  refunding,  G96 

Official  bonds,  duties  of  Probate  Judge  as  to  in  absence  of  prosecuting 

attorney,   2020   G.    C. 
Partner,  surviving  to  give  on  taking  assets,  427,  429 
Probate  Judge's,   14 

Prosecuting  attorney's  approved  by  Probate  Judge,  2911  G.  C. 
Requisition  not  to  allow  claim,  564 
Road  appeals.   1787,  1805 
Penalty,  amount,  240 
Signed  in  blank,  235 

See  Appeal  Bond. 
Sureties  on,  how  released,  243 

qualifications,  86 
Trustee,   testamentary.    107 

when  not  required,  1256 


1906  INDEX 

(References   are   to   sections.) 

BOND  —  Continued. 

when  required  notwithstanding  provisions  of  will,  1256 

removed  by  Court  for  not  giving,  1258 

separate  or  joint  may  be  taken,  1264 

under  foreign  will,  1268 

when  Probate  Court  appoints,  1271 

appointed  by  foreign  Court,   1269 

on  non-resident  lunatic,  1277 
To  whom  made  payable,  234 
To  secure  claims  not  due,  578 

form  of,  579 
To  prevent  sale  of  real  estate,  826 

form  of,  828 
iNduction  of,  250a 
Suit  on.  2fi0-279 

procedure  remedy,  260 

remedy  is  statutory.  260 

what  authorizes  suit,  260 

jurisdiction  of,  261 

by  creditor  on  liquidated  demand,  282 

kind  of  creditors  claim^  263 

when  can  bring  suit,  264 

legatee  may  bring  when,  266 

distributee  may  bring  when,  266 

widow  may  bring  when,  266 

at  what  time  may  be  brought,  237 

on  unliquidated  demand,  268 

Court  must  authorize,  269 

application  for  leave,  270 
form  of,  271 
entry.  272 
notice,  273 
hearing,  274 

entry  granting  leave,  275 

defence  in  suit  on,  276 

suit  by  succeeding  administrator,  278 

time  within,  must  be  brought,  279 
Executors,  etc.,  and  guardians  to  invest,  in  what,  1367,  514 
Of  insolvent  debtor,  must  be  sold  when  and  how,  1602 
Inventory  of  decedent's  estate,  to  contain  particular  statement  of,  296 

not  to  be  sold,  when,  470 

may  be  distributed  in  kind,  when,  751 

BOOK  ACCOUNTS  — 

How  inventoried,  295 

BOOKS  — 

Delivery  of  to  trustees  of  insolvent,  how  enforced,  1572 
Widow  and  children  entitled  to,  what,  320 

BOYS'  INDUSTRIAL  SCHOOL  — 

("••:rm!ttal   and  discharge  of  youths  to.  212S 
BROTHER  — 

See  Descent — r 
Inheritance  of  real  and  personal  property  by.  915.  917,  920,  921    . 

BURIAL  OF  DECEDENT  — 

See  Funeral  Expense.s. 
Expenses  a  preferred  claim.  647 

BUSINESS  — 

See  Carryixg  on  Business. 
When  assignee  may  carry  on,  of  assignor,  l.^ST 


INDEX  1907 

(References  are  to  sections.)  • 

c. 

CANAL  — 

Appropriation  of  private  property  for,  1749 
CANCELLING  — 

Revocation  of  will  by,  1049 

See  Revocation  of  Will. 
CARRYING   ON  BUSINESS  — 
Carrying  out  contracts  of  deceased: 
Growing  timber,  519 
Parties   to   proceed   with   same.   519 
Indefinite   contract   not  enforced,    519 
By  guardian,  1379 
By  admr.,  518 
By  extr.,  435 
CARE  AND  DILIGENCE,  506  et  seq.— 

See  Assets. 
CAPACITY  — 

See  Wills,  1018 
See  Testamentary  Capacity. 
Appropriation  of  private  property  for,  1749 

not  confined  to  land  within  the  corporation,  1749 
what  land  can  not  be  taken  for,  1749 
CERTIFICATE  — 

Of  appointment  of  appraisers  of  decedent's  real  property.  861 
to  be  returned  with  appraisement,  861 
of  decedent's  personal  property,  286 
to  be  returned  with  inventory,  286 
Of   Probate   Court  to   executor,   when   proceedings  for   partition   com- 
menced and  deficiency  of  assets  found,  1880 
Of  Probate  Court's  approval  binding  out  ward,  1370 

See  Guardian. 
Of  deposit  of  will  in  Probate  Court,   1067 
CERTIFIED  COPY — 
Autlicnticatcd,   17a 

Of  appointment  of  foreign  trustee,   1269 
Of  foreign  will,  effect,  1119 

Of  will  and  order  of  probate,  effect,  1110,   1111 

Of  order  of  Probate  Court   setting  aside  will   to  be  filed   in    Common 
Pleas  on  appeal,  1117 
of   foreitrn  court   setting  aside   will    to   be   filed,   in   what   Probate 
Court.   1133 
CHAILLENGES— See  Jury. 

In  condemnation  cases,  1704 

In  road  appeals,  1808 

In  county  ditch  cases,  1864 

CHARGE  UPON  LAND  — 

By  will,  not  deemed  a  revocation,  1058 
devisee  take  subject,  10.'^8 
See  Devisee. 
Dower  especiallv  assigned,  to  be,  870 

CHARITABLE  USE  — 

Gifts  to  receive  liberal  construction,  1030 

What  are,  1030 

Bequest  to,  when  valid,  1028.  1030 

When  applies,  1028 

Object  of  statute,  1030 
CHATTF.L  ]\10RTGA<:JE  — 

Assets  when,   365 

Cannot  be  foreclosed,  388 

In  assignments,   1601,   1592 

Unfilwl  void  as  to  creditors,  388,  365 
CHILD— See  Heir,  Infaxt,  Guardian,  Will, 

Absent  to  have  portion  of  estate  when  will  made,  1064 


1908  INDEX 

(References   are   to   sections.) 

CHILD  —  Continued. 

Adoption  of,  1888,  1898 

See  Adoption  of  Child. 
Advancements  made  to,  928,  93-4,   1065 

See  ^-Vdvancement.s. 
Apprenticeship  of,  1370 

See  Guardian. 
Action  in  habeas  corpus. 

See  Habeas  Corpus. 
Bastard,  right  of  inheritance,  936 

legitimated,  when,  937 
Can  not  act  as  executor  until  of  age,  93 
Can  not  be  separated  from  mother,  when,  9 
Damages  for  death  by  wrongful  act,  534,  536 

See  Wrongful  Death. 
Descent  and  distribution  to,  915 
Distributive  share,  938 
may  be  attacked,  759 
See  Distribution. 
Effect  of  birth  of.  after  execution  of  will.  1062,  1064,  1210 
Entitled  to  be  present  at  making  of  appraisement,  292 
to  one  year's  allowance  for  support,  324 
to  what  personal  property  of  decedent.  320,  322 
to  full  share  of  testator's  estate,  when  absent  born  s-.fter  execution 

of  will,  oi  erroneously  supposed  to  be  dead.  1064 
contribution  in  such  case,   1064,   1210 
Improvement  of  real  estate,  1530,  1533 
Lease  of  real  estate,  1525,  1527 
Posthumous,  inherits,  941 
Right  to  contest  will,  1112 

to  contest  supplied  record  of  will,  continues,  till,  etc.,  1157 
Rights  of.  under  foreign  will,  not  included  until,  etc.,  1133 
Sale  of  real  estate,  1.522 

Vagrant,  or  incorrigible,  sent  to  asylum,  etc.,  1906 
proceedings.  1907 
entry.  1908 

order  child  committed,   1909 
When  incompetent  to  testify,  11493  G.  C. 
CHILDREN'S  HOME  — 

Vagrant  or  incorrigible  child  may  be  sent  to,  1906 

CHOSES  IX  ACTION  — 
Are  assets,  385 

Damages  for  right  of  way,  385 
Debts  of  executor,  389,  390 
Debts  of  heir,  392 
Judgments  ar",  385 
Mortgaged  premises.  386 
Tort  does  not  survive,  385 
Vendors  lien.  388 
CITATION  — 

Assignee  of,  to  give  bail  in  case  of  unsettled  assignments,  1576 
Executor,  etc..  of  to  return  inventory,  303 

additional   inventory,   311 

to  return  sale  bill,  491 

to  render  an  account.  741 

to  compel  settlement  of  insane  or  deceased  guardian,  1499 

for  failure  to  return  sale  bill.  491 

to  render  account  of  insolvent  estate,  992 


INDEX  ;i909 

(References   are   to   sections.) 

CITATION  —  Continued. 

to  compel  distribution.  761 

service  and  return,  761,  774 

Forms,  101,  1984,  768,  401,  304,  1073 

Officer  of  municipal  corporation  guilty  of  misfeasance,  etc.,  2006 
Person  of,  to  attend  settlement  of  trustees,  etc.,  1294 
Person  of,  suspected  of  concealing,  etc.,  assets  of  estate,  395 
Person  of,  to  produce  papers  or  give  evidence  relative  to  lost  record. 

12345  G.  C. 
Special  administrator  of,  to  deliver  over  property  to  executor,  etc.,  142 
Trustee  of,  non-resident  minor,  etc.,  1294 
Widow  or  widower  of,  to  make  election  under  will,  1215 
Will,  to  enforce  production  of  for  probate,  1072,  1077 
See  Custody  of  Will. 
CITY  — 

Appropriation  of  private  property  for,  1750  et  seq. 

See  Appeoprlation  of  Property. 
Devise  or  bequest  to,  when  valid,  1028 
Guardian  may  invest  in  bonds  of,  1367 

CITY  SOLICITOR  — 

To  be  furnished  with  copy  of  complaint  against  municipal  officer,  2006 
to  appear  on  behalf  of  complainant,  2006 

CIVIL  DEATH  — 

Administration  cannot  be  granted  on,  109 

CLAIMS  NOT  DUE  — 

See  Presentation  of  Claims. 
Allowance  not  conclusive,  580 
Action  by  heir,  581 
Appeal  and  error,  583 
Contingent  claims,  572,  569 

when  should  be  presented,  569 
Form  of  application,  573 
How  presented,  573 
Notice,  574 
Order  of  Court,  575 
Ordering  claim  paid,  576 
Ordering  assets  retained.  577 
Ordering  giving  bond,  578 

form  of,  579 
When  to  be  paid  by  administrator,  570 
When  allowed  by  Court,  571 
What  included,  572 

CLAIMS  UNPAID  AT  SETTLEMENT  — 

Creditor  need  not  present  claim,  etc.,  584 
Estate  in  hands  of  heirs  liable,  585 

how  suit  brought,  586 
Estate  of  heir  liable  after  his  death,  589 
Heir  to  contribute,  etc.,  587 
Heirs  contribution,  593 
Insolvency  of  heir,  591 
Suit  against  all  heirs,  590 
Claims  in   favor  of   estate: 
See  Assignment. 

See  Payment  of  Debts  of  Decedent. 
Death  by  wrongful  act,  for,  534,  536 

Desperate,  when  may  be  sold,  compounded  or  filed  in  court,  456,  463 
notice  of  application  to  Court  for  sale,  459 


1910  INDEX 

(References   are   to   sections.) 

CLAIMS  UNPAID  AT  SETTLEMENT— Com ^mwed. 

notice  of  sale,  how  given,  and  how  sale  made,  463 
Discharge  of  in  will  against  executor,   effect,   391 
Mortgage,  when  secured  by,  387,  388 

See  Secueed  Claim. 
Naming  person  executor,  not  to  extinguish,  389 
Neglect  to  collect  or  pay,  unfaithful  administration,  255 
Sale   of,    470 

what   must   not   be    sold,    470 
Time  for  collecting,  440 

may  be  extended,  445,  446 

when  can  not  be  extended,  448,  448o 
See  Assets. 
CLAIMS  AGAINST  ESTATE— 

See  Prese.ntation  of  Claims. 
Allowance  of,  inilorscniont  of,  558 

refusal  to  indorse  a  rejection,  449 

does  not  preclude  disputing  validity  of,  when,  277 

of  claims  not  due  in  two  years,  571 
Barred,  when,   622 

See  Statute  of  Limitations. 
Bond  to  pay,  to  prevent  sale  of  land,  826 

claim  nob  due  in  two  years,  571 
Contested  in  suit  on  administration  bond,  277 
Contingent,  of  insolvent  estate,  provisions  for,  982 

when  such  debt  becomes  absolute,  9S3 
Contribution,  when  devised  or  bequeathed  property  taken  to  pay,  1207 

except  when    will   otherwise   provides,    1208 
Costs  of  suits,  against  whom  taxed,  629 

disallowed  at  instance  of  creditor  or  heir,  561 

disallowed   claims   against   insolvent  estate,   972 
Deficiency'  of  assets,  when  may  proceed  to  pay,  without  being  liable 

for,   667 
Discharged    from    payment    of,    on    proof    of    disbursement    of    assets, 

when,   669 
Disputed,  when  action  to  be  brought  on,  609 
Doubtful,  may  be  referred  to  arbitrators,  594 
See  Arbitration. 

proceedings  when  claim  does  not  exceed  one  hundred  dollars,  697 

when  it  exceeds  one  hundred  dollars,  599 

report  of  referee,   602 

proceedings   of   Court  on  report,   602 
Executor,  etc.,  claims  of,  not  entitled  to  preference,  647 
See  Claims  of  Executor. 

not  to  retain  assets  in  payment  of,  when,  631 

such  claims  to  be  presented  to  Probate  Court  for  allowance,  633 

notice  of  such  claims,  633 

exceptions   and   appeal,   641 
Insolvent  estates,   action   against  executor   or   administrator,   985 

appeal  from  decision  of  commissioners,   1004 
See  Insolvent   Estates. 

omission,  how  remedied,  1008 

allowance  not  to  disturb  prior  distribution.    1010 

appointment  of  commissioners  to  audit,  993 

barred,   if  not  presented   as  prescribed,   987 

commissioners  may  examine  claimants,  etc.,  under  oath,  1000 

contingent  debts,  provisions  for,  982 

when  they  become  absolute,  983 

costs  of  suit  on  disallowed  claim,  972 

disallowed  claim  may  be  referred,  969 


!.\1)KX  1911 

I  Rileiviiccs  ;iii'  t(i  sections.) 

CL  M.MS  AOAIXST   ESTATE— Caul inucfl 

if  not  referred,  creditors  to  commence  suit  or  barred,  971 
Court  or   referee  to   award   costs,   972 
how  jud^ient  rendered,   973 
Of  executor,  etc.,  against  estate  not  entitled  to  preference,  631 
not  to  retain  assets  in  payment  of.   when,  631 
such  claims  to  be  presented  to  Probate  Court  for  allowance  633 
notice  of  such  claim,   633 
exceptions   and  appeal,  641 
Order  of  payment,  647 

when   to   be  paid   ratably,   647 
restriction  on  order  of  payment,  647 
liens   not   affected,    666 
Preferred,   what  are,    647 

See  Payment  of  Debts. 
not  affected  by  solvency  or  insolvency,  671 

if    assets    exhausted    in    payment    of,    executor,    etc.,    may    ple;id 
that  he  has  fully  administered,  671 
Presentation  when  residue  insufficient  to  satisfy,  670 
Proof  of,  how  required,   557 

before  whom  oath  may  be  taken,  557 
expenses  of,  by  whom  paid,  557 
Provisions  as  to,  not  due  within  two  years,  571 
Referees,  compensation  of,  how  paid,  602 
Rejected,  when  action  to  be  broucrht  on,  609-971 

executor    or    administrator    to    act    when    commissioners    not    ap- 
pointed.  963 
limitation  of  action  on  disallowed  claim.  971 
when  creditor  may  su'e  after  three  years  on  claim   not  presented, 

991 
list  of  claims  to  be  filed,   967 
notice  to  creditors   by  executor,   etc.,   965 
form  of  notice,  966 

presentment,    time    allowed    for,    to    commissioners,    998 
td  executors,   etc.,   967 
Interest,   debts   not   due   paid   on   rebate   of,   570 
Joint  contract,  e.state  liable  on  as  if  joint  and  several,  624 
Liens  not  affected  by  §   6090  providing  for  manner  of  application  oi 

assets,  666 
Limitation  of  action  bj^  creditors,  613 

proviso  as  to  claims  accruing  after  two  years,  613 
assets  received  after  two  years,  015 
claims  not  due  in  two  years,  when  disputed,  580 
claims  disputed  or  rejected  by  executor,  etc.,  609 
of  insolvent  estate,  971 

when  rejected  at  instance  of  heir  or  creditor,  561 
what  deemed  a  rejection.   609 
at  instance  of  heir  or  creditor,  561 
Requisition  on   executor,   etc.,   to   reject,   who   may   file,    561 
Revivor  of  barred  claim,  622 

See  Statute  of  Limitations. 
appointment  of  administrator  dc  bonis  non  does  not  revive,  62? 
Right  of  action,  when  accrues  after  two  years,  571 
See  Limitation  of  Actions. 
Court  with  consent  of  creditor  may  order  discharge  of  such  claim- 
when,   571 
Undevised  real  estate  first  to  be  applied,  to  pay,  1206 
When   whole  estate  to  be  administered   does   not   exceed   twenty   dol- 
lars,   152 


1912 


liSlDEX 


(References   are   to   sections.) 


CLAIMS  UNPAID  AT  SETTLEMENT  — Co>i<mwed. 
When  not  due,  how  paid,  570 
See  Assignments. 

CLAIMS  OF  EXECUTOR  OR  ADMINISTRATOR  — 
Application  to   Probate  Court,  636 

form  of,  636 

entry  and  notice,  637 

notice  of  to  non-residents,  638 
Allowance    of   claim,    640 

entry,  640 
Appeal,    641-643 

form  of  bond,  644 
Cannot  retain  assets  in  payment  of,  631 
Claim  barred  by  statute,  632 
Character   of    proof    required,    639 
Court  has  jurisdiction  to  determine,  633 

own  affidavit  not  sufficient,  639 
Creditor  may  ask  Court  to  disallow.  645 
Error,  642 

For  services  rendered  to  estate  by  others.  645 
For  advances  made  to  legatees,  subrogated  to  their  rights,  632 
Kinds  of  debts  due,  637 
Need   not  where  under   $50,   634 
Pays   debts  in  excess  of  assets  at  his  peril,   632 
Probate  Court  to  pass  on,  633 
Proceeding  is  an  action,  633 
Where  claim  over  $50,  635 

CLERGYMEN  — 

May  solemnize  marriages,  how,   1997 

CLERK  — 

Duties  of  on  sale  of  decedent's  personal  property,  487-489 
of  deputy  clerk  of  Probate  Court,  11 

See    Deputy    Clerk. 
can   not   practice   law,    7 
Probate  Judge  may  appoint,  11 
Probate  Judge  maj'^  perform   duties  of,   11 
of  Common  Pleas,  when  Probate  Judge  is  interested,  9 
of  Common  Pleas,   on  appeal,   51 
CLOCK  — 

When  widow  and  children  entitled  to,  320 

CLOTH  — 

What  widow  and  children  entitled  to,  320 

CODICIL  — 

Construction   of  with    will,    1176 

Definition,    1174,   1052 

Depends   on   will,   1174 

Execution,    1175 

Form  of,   1179 

Origin  of,   1174 

Probate   of,   1082-1178 

Revocation,  1175 

Republication  of  will,  by,  1177 

Stealing,  destroying  or  secreting,  how  punislicd,   12451  G.  C. 

Term  "  will  "  includes,   1033 

Will  revoked  by,  1052,  1049 

Will  construed"^  to  include,  1033 

COLLATERAL   ATTACK  — 

Only  such   as  is  not  on  record,  4 

Appointment  of  trustee  cannot  be  raised,  4 
COLLECTION  OF  ASSETS  — 
.See  Assets. 


INDEX  1913 

(Rcferonces  aro  to  sections.) 

COLLATERAL  ATTACK— 

Probate  of  will  not  subject  to,  1114 

Judgment  of  Probate  Court  can  not  be,  1319,  3,  22,  42,  90,  1316,  1339, 
1508.   1999.  §  208. 
COLLECTION  OF  CLAIMS— 440  et  seq. 

See  Assets. 
COMITY  — 

See  Foreign   Administration. 

OOAOIISSION  — 

Court  may  apportion  commission  between  joint  executors,  207 
When  entitled  to,  fi55 

See  COMPENSATioif  OF  Administrator. 
Assignee's  or  trustee's.  1642 

Executor's  or  administrator's,  654  . 

To  take  deposition  of  witness  to  will,  1146    —    //-'/ 
To  take  widow's  election  as  to  will,  1231 

COMMON  PLEAS  COURT—  . 

Action  where  Probate  Judge  interested,  10 

See  Appeal. 
Appeal  to,  39 

from  refusal  to  admit  will  to  probate,  1116,  1117 
Award  of  arbitrators,  effect  of  judgment  in  Common  Pleas  on,  602 
Claim   of  executor,   etc.,   against  estate,   641 
Injunctions  granted  in  Probate  Court,  25 

Jurisdiction    in    action    asking    direction    of    Court    respecting    trust, 
etc.,    33 

when    favored,    34 

account,   to  compel   filing  of  in   action  on   assignee'^  or  trustee's 
bond,   1573 

to  compel  foreign  executor,  etc.,  to  account.  190 

to  review  settlement  of  guardian's  account,   1493 

appropriation  of  property  by  municipal  corporation,   1750 

by  private  corporation,  when,    1682,   1733 

bond,   action   on   administration,   261 

on  assignee's  or  trustee's,   1573 

distribution,   to  enforce  order  of,   781 

in  assignments,  1545 

foreign  executor,  etc.,  to  compel  to  account.  190 

iraudulent  conveyance  to  set  aside,  823-1580 

injury  by   wrongful   death,    action   for,    534 

liens  in   action   for   sale  of   real   estate  by  executor,   etc.,   to  ad- 
just, 814 

by  assignee,    1618 

proceedings    by    creditors    against    heirs,    etc.,    after    settlement, 
585-587 

to    condemn    unfinished    road   bed    of   railroad,    1733 

sale  of  land  by  executor,   813 

and  recover  lands  fraudulently  conveyed,  822 

by  guardian,  28 

by  assignee  of  insolvent  debtor  to  adjust  liens,  1618 

when  Probate  Judge  interested,  9,  1682 
May  determine  payment  of  legacies,  34 
May  ascertain  title,  34 

May    order   payment  of  year's   allowance,    34 
May  construe  trust,   33 
Powers   of  depend   on  statute,    19 
Powers  and  duties  as  to  foreign  executors,  etc,  10764  G.  C. 

as  to  award  of  arbitrators.   599.   602 
Party  invoking  must  show  interest.   34 

Rules  of,  to  be  observed  by  Probate  Court  so  far  as  applicable,  32 
Receivers  appointed  in  Probate  Court,  36 


1914  INDEX 

(References  are  to  sections.j 

COMMON  PLEAS  COURT  — Continued. 

Transcript  of  judgment  of  Probate  Court  delivered  to  clerk  of.   and 

execution  issued  on,  when,  413 
When  will  give  relief,  34 
COMirOX  PLEAS  .JUDGE  — 

When  may  act  for  probate  judge,   10a 
COMPENSATION  OF  ADMINISTRATORS  — 
Administrator's  and  executor's,   854 
effect  of,  provided  by  will,  654 
of  special  administrator,   137 
of  administrator,  etc.,  of  deceased  guardian,  1499 
Advancements,   G55 

Cannot  be  reached  by  attachment  against  administrator.  655 
Distribution  in  kind,  655 
Double,   657 
Extra,    659 

when    allowed,    659 
not  for  ordinary  services,  659 
employment  of  help,   660 
clerical  services,  660 
caring  for  estate,  660 
auctioneer,   etc.,   660 
attorney,   660 

See  Attorney. 
statement  in  account,  725 
Failing  to  render  account,  to  receive  none  unless,  etc.,  83,  124 
Fixed  by  will,  657 
Fixed  by  agreement,  657 
How  calculated,  656 
Joint  administrators,  207,  658 
division  of,  207,  658 
entitled  t^  equal  when.  658 
action  by  one  against  other,  658 
Property   set  apart   to  widow,   655 
Real  estate  covered  by  mortgage,  655 
Stateu  in  account,  725 
Uncollectibk  debt,  655 
Unfaithful  administrations,  etc.,  655 
When  entitled  to,  654,  655 
COMPENSATION   OF   GUARDIANS  — 

See  Guardians. 
COMPENSATION   OF  ASSIGNEE  — 

See  Assignments. 
COMPENSATION— 

Appropriation  of  property  for  ditch,   county,    1852 
municipal  corporation.  1763 
private  corporation.   1676,  1671 
roads,  1822 
Trustee's,  1299,  1642 
Assignee's  or  trustee's,   1642,   1587 
Commissioner  of  insolvent  estate,   1012 
COMPLAINT— 

See  FoKMS. 
Against  municipal  officer  guilty  of  misfeasance,  etc.,  2006 

county  auditor,   2006 
\Mien  assets  of  estate  are  concealed,  embezzled,  etc..  395 
COMPLETION  OF  CONTRACTS  — 
By  administrator,  523 
By  assignee.  1591 

See  Contracts. 


INDEX  1915 


(References  are  to  sections.) 


COMPOUNDING  DEBTS,   ETC.— 

See  Assets. 
By  executor,  etc.,  450,  456 
Guardian  may,  1382 
COMPROMISE  — 

See   Arbitration. 
Of  desperate  claims  by  executor,  etc.,  456,  463 
See  Desperate  Claims. 
by  assignee  of  insolvent  debtor,  1602,  1611 
Of  insane  widow's  dower  by  guardian,  1523 
CONCEALING,  EMBEZZLING  ASSETS,  ETC.— 

Proceedings  against  persons  suspected  of,  395,  414 
See  Assets. 
conveyance  to  evade  proceedings  void,  415 
examination  to  be  in  writing,  405,  406 
imprisonment  for  disobeying  citation,  402 
judgment  of  Court,  408 
lien  of  judgment,  408 

prosecuting  attorney  to  attend  to  judgment  in  favor  of  State,  414 
transcript  to  be  filed  in  Common  Pleas  and  execution  issuod.  413 
CONCURRENT  JURISDICTION  —  2S 
When  Courts  have,  28 

See  Jurisdiction. 
CONDEMNATION  OF  PROPERTY  — 

See  Appropriation  of  Property,  1674,  1675 

Condemnation  of  road   material,   1S.1."> 
CONDITIONS— 

See  Construction  of  Wills. 
CONFIRJVIATION  — 

Of  sale  of  real  estate  by  executor,  etc.,  890 
See  Sale  of  Real  Estate. 
by  assignee  of  insolvent  debtor,  1613 
by  guardian,   1429 
Of  viewer's  or  reviewer's  report  in  road  appeals,  1797 
CONSENT  — 

See  Guardians. 
Of  parent  or  guardian  to  marriage  of  minor,  1997 

See  Parent. 
Of  creditors   of  insolvent  debtor   that  business  be  carried   on   by   as- 
signee, 1587 
Of  guardian,  etc.,  to  sale  of  land,   838 

See  Sale  of  Real  Estate. 
Of  parents  to  adoption  of  child,  1888 
CONSERVATOR  — 

Powers  of  foreign,  of  idiot,  imbecile,  etc.,  1483 
CONSOLIDATION  — 

Of  appeals  in  county  ditch  cases,  1850 
Road  appeals,  1825 

CONST  ablp:— 

Amercement  of,  guilty  of  misconduct,  2125 
To  attend  court,  serve  process,  etc.,  2125 
CONSTITUTIONAL  PROVISIONS— 

As  to  establishment  of  Probate  Court,  3 
jurisdiction  of  Probate  Court,  18 
"appropriation  of  property,  1664 
CONSTRUCTION— 

Of  "living"    and    "died"    under    statutes    of    distribution    aiul    descent, 

940 
Of  term  "will"  in  statute,  1033 
Inheritance  tax  law,  2015 


1916 


INDEX 


(References  are  to  sections.) 

CONSTRUCTIOX  OF  WILLS— 

Where  Probate  Court  may  give,  20n 
Agreement  as  to,   1180 

All  parts  to  be  construed  in  rcL^tion  to  each  other,  1180    1181 
Action  to  obtain,  33 
After  acquired   property,    1191 

Assets,  how  marshaled  by  claimants  under  will    1209 
Claim  appointing  debtor  executor  does  not  discharge,  389 
Contribution  when  devised  property  taken  to  pay  debts,  1206-1213 
Contest  ot  foreign  not  allowed   in  this   State,    1133 
Construed  as  an  entirety,    1171 
Children    construed,    1193 

Contribution    when    devised    or    benueatlied     property    taken    to    nav 
debts,   1207  i      i       .  f  j 

Court  of  Equity  will  not -reform.   1180 
Devise  for  life,  remainder  to  heirs  in  fee,   1188 
Devise  in,  how  affected  by  debts  by  testator.   1026 
Domicile  controls  when.  1118,  1016" 
Definition.   1180 
Declarations   of  testator,    1187 

not  admissible  to  affect  construction.   1187 

admissible  in  fraud,  undue  influence,  1187 

admissible  to  show  state  of  testator's  mind,  1187 

made  to  scrivener  not,   1187 
Devise  not  to  lapse  by  death  of  devisee,  1194,  1195 
Descendants'  construed,   1201 
Disinheriting  heirs,    1202 

how,   1202 

not  by  implication,  1202 

not  by  doubtful  words  of  exclusion,  1202 

not  of  undevised  real  estate,  1202 
Extrinsic  evidence,    1185 

admissible    when,    1185 

not  admissible'where  no  am.biguity,  1185 

patent  ambiguity,   1185 

latent  ambiguity,   1185 

Wigram's    Rules,    1185 
Entire  will  construed  as  a  whole,   1181,   1182 
Estate  directed  to  he  sold,   death  of   executor.    1053 
Estate  vests,  tiiough   in  control  of  trustee,   1190 

Executors,    when    one    or    two    or    more    qualifies    or    survives,    how 
Express   provisions  to   prevail,    1180 

powers,    107. 
Fee    passes    witliout    word    '"heirs,"    1189 
ForeigTi,  effect  of  setting  aside,   1133 
Heir,   how  construed,    1196 

as  used  in  will,  flexible  term,  1196 
Intestacy  never   presumed.    1181,    1182 
Irreconcilable   clauses,    1180 
Issue   construed,    1197 

offspring  synonymous,    1197 
Intention    to    prevail,    1182 
Intention,   rviles   as  to,    1182 

must  be  expressed  In  will,  1182 

general,    control,  ,  11S2 

express,  control.   1182 

words   ordinary  meaning.    1182 

clearly    expressed    controls    doubtful,    1182 

punctuation    not    authority,    1182 

will  upheld  as  far  as  practicable,    1182 

some  meaning  to  be  given,  1182 

extraneous  facts  may  aid  but  not  control,    1182 

child   not  to  be   disi'nlierited   by  doubtful   construction.    1182 
Location  controls  dispositon  of  real  estate,  1118 


INDEX  1917 

(References  are  to  sections.) 

CONSTRUCTION  OF  WIIA.S  —  Continued. 
Life  estate  with  power  of  disposal,   1193 

constructon    of   power,    1193 
Lapsed  bequest,  1195 

when    does    not,    1195 
Next  of  kin  construed,    1199 
Operation   and,    1133 

Purchaser   without   knowledge   of   foreign   will,   protected,    1133 
Property  acquired  subsequent  to  making  vnl\  passes,   1191 
Presumption    and    person    making    will    intends    all    his    property    to 

pass,    1191,    1192 
Provision  against  contesting,  1203 

valid  in  Ohio,   1203 
Parol  evidence,   1186 

admissible  when,  1186 

not  admissible  to  alter,  detract  from  or  add,  1188 
See  Instances  in  Text. 
Perpetuities,    1031 
JRelation  construed,  1200 
Repugnancy,  rules  as  to,,  1183 

must  arise  on  face  of  will,  1183 

charge  on  land  not  to  sale  of  land,  1183 

not  except  from  necessity,  1183 

general  and  specific  word,   1183 

last  portion  controls.   1183 
Restraint  of  alienation,  1204 

fee    cannot    be,    1204 

against   execution,    1204 

against   partition,    1204 
Restraint  of  marriage,   1205 

absolute,   1205 

remarriage,   1205 

to  certain  person,   1205 

for   divorce,    1205 
Rules   of,    1181 

to  ascertain  intention,  1180 

domicile  controls  personalty,  1181 

location,    realty,    1181 

technical  words  not  necessary,   1181 

speaks  from  what  date,  1181 

heir  how  dininherited,  1181 

not  by  negative  words,   1181 

extrinsic  evidence  not  admissible  to  vary,   1181 

Court  looks  at  all  circumstances,  1181 

absurdity   of    devise,    1181 

not  strained  to  bring  within,   1181 

favor   nor   disfavor,    1181 

ordinary  sense  of  words,   1181 

presumption  as  to  technical  words,   1181 

subsequent  events,   1181 

independent  devises,  1181 

presumption  as  to  taking  effect,   1181 
Record,  must  be  offered  for,  when,  1133 
Rights  of  persons  under  disability  as  to,  1133 
Sale  of  lands  under  authority  of  will,  who  may  make,  107 

See  Sale  of  Real  Estate  Under  Power. 
Statutory  meaning  of  certain  words,  1033 
Supplication   of  words,    1184 

by   intendment,    1184 

by    reference,    1184 

by  codicil,  1184 

transposition,   1184 
Shelley's   Case,   rules   in,    1189 

does  not  apply  to  wills,  1189 

point  never  strained  to  bring  within,  1189 


1918  INDEX 

(References  are  to  sections.) 

CONSTRUCTION  OF  WILLS  — Continuea. 

law  favors  a  fee  to  an  estate  tail,   11  Sn 
intent  governs,  1189 
Term  "  will,"  1033 
Undevised   real  estate  to  be  applied  to  payment   of  debts  instead  oi 

devised  personal  property,  1206 
Vesting  of  estates,   1190 
law  favors,   1190 
equitable  vest  how,   1190 
devise  for  life,  1190 
devise  for  years,   1190 
controlled  by  intent,  1190 
With  coJicil.   1176 
When  under  will,    1190 

When   clear    and    obvious,    nothing    to    construe,    1180 
Where  open  to,   1180 
Whole  estate  to  pass,   1192 

examples,   1192 
Words  construed, 

Words  of  survivorship,  relation  to,  when,    1190. 
Words  given  ordinary  meaning,    1182 
See  Defixitiox. 
CONTEMPT  OF  COURT  — 
Appeal,   1994 

Commitment,   form  of,    1990 
Court  may  enforce  sale,   889 
Definition,"  1976 
Discharge  of  party,  1992 

form   of.    1992 
Error,   1994 

Entry  appointing  attorney  to  bring  action,  1982 
Entry    ordering  summons,    1984 
Entry  ordering  attachment,  1984 
Form    of    summons.    1985 
Form  of  attachment,   1985 
Final  judgment,   1993 
Form   of   charge,    1983 
Imprisoned  till   order  obeyed,   1989 
Inherent,   1976 
In  presence  of  judge,    1978 

entry,    1978 
Jurisdiction  ot  Probate  Court,   1976 
Kinds  of,   1977 

Mittimus,  what  should  contain,  1990 
Not  in  presence  of  judge,   1979 

Power  to  enforce  order  in  proceeding  in  aid  of  execution,  1936 
Punishment   if   found   guilty,    1988 

form  of  entry,  1988 
Power  of   judge   to   punish.    17 
Pixjperty   vests  when,    1190 
Punishment  for,  1980 
Right  of  accused  to  bail,  1986 

bond  to  satisfaction  of  clerk,  1986 
Trial,   1987 

cannot  demand  jury,  1987 
cannot  be  tried  on  affidavits,  1987 
What  are,    1980,    1979 
Written   charges  should   be   filed,    1981 
When  party  fails  to   appear,    1991 

CONTEST  OF  WILL— §§  12079-12087  G.  ^C. 
Acts  of  testator  when  to  be  shown,  1187 
Common  Pleas  can  not  appoint  receiver,  1113 
who  may,  1113 


INDEX  If  19 

(References  are  to  sections.) 

CONTEST  OF  WILL  —  Continued. 

Duty  of  judge  on  notice  of,  1113 

Of   foreign,    cannot   be  made   in    this    Stat«,    1133 

Uncontested,   probate  after  two  years  binding,   1112 

sav-ing  of  rights  of  infants^  insane  persons,  etc.,    1112 
Of  supplied   record  of  will,   1157 

limitation  and  saving  of  right,  1157 
Powers  of  executors,  etc.,  during,  95 

COXTIXGENT  CLAIMS  — 

Distribution  will  not  be  striven  for,  5G9 
CONTINGENT  DEBTS  — 

Against  insolvent  estate  of  decedent,  provisions  for,  982,  983 

CONTINGENT  DOWER  — 
See  DowEE. 
Contingent  Legacv,  695 
CONTINGENT   REMAINDER— 
Definition,   10.33 

Continuing  business,  1589 

CONTRACTS  — 

Between  guardian  and  ward,  1399,   1497 

Completion  by  guardian,    1398 

Carrying  out  deceased,  519 

Dower  waived  by,  946 

Distinction  between  and  will,   1014 

For  sale  of  real  estate,  523 

nature  proceedings,  524 

parties,  525 

petition,  526 

notice,  527 

order  of  deed,   528 
hearing,   529 
entry,  530 

form  of  deed,   532 

heir  may  enforce,  532 
Liability  of  estate  of  deceased  on  joint,  624 
Not  binding,   520 
Of  insolvent  debtor,  1611 
Power  of  ward  to  make  after  finding  of  guardianship,  1511 

after  notice  of,   1519,   1538 
Will  to  make,   1032 

CONTRIBUTION  — 

Among  heirs,  devisees,  etc.,  to  raise  portion  of  child  dead,  born  after 

execution  of  will,  etc.,  1064,  1210 
to  raise  portion  of  devisee  witness  to  will,  when,  1044 
when  devised  or  bequeathed  property  taken  to  pay  debts,  1207 
except  when  will  otherwise  provides,   1208 
portion  of  child,  born  after  execution  of  will   or  supposed  to  be 

dead,   subject  to,   1210 
if  any  liable  to  are  insolvenS,  how  others  to  make  up  deficiency, 

1211 
such  cases  may  be  determined  in  a  single  action,  1212 
or  adjusted,  etc.,  upon  order  of  sale  to  pay  debts,  1213 
Among  heirs,  devisees,  etc.,  to  pay  claims  after  settlement  of  estate, 

587 
effect  of  provisions  of  wi\i,  for,  587 
limitation  of  action  by  creditors,   587 
estate  of  any  heir,  etc.,  liable  after  his  death,  589 
when   two    or    more    liable,    creditor    may    proceed    against   all    in 

one  action^  590 
effect   of   insolvency,   etc.,   of  heir  or  devisee,   591 
liable  to  indemnify  others,  503 
'  how   indemnity   recovered,   593 

CONVEYANCE  — 

See  Deed.   Fraudulent   Conveyance.   Gift.   Sale. 
To   hinder,    delay   or   defraud   creditors,   void,    1530 


1920  INDEX 

(References  are  to  sections.) 

CONVEYANCE— 

See  Deed,  Fraudulent  Conveyance,  Gift.  Sale. 
To  hinder,  delay  or  defraud  creditors,  void.   l.)3l) 
To   avoid   proceedings    against   persons   suspected   of   concealing,   etc, 

assets  of  estate  void,  415 
Of  real  estate  of  decedent,  sold  to  pay  debts,  890 
On  judgment  for  specific  performance  of  real'  contract,  528 
Will,  how  affected  by  conveyance  of  testator,  1057,  1059 
COOKING  UTENSILS  — 

Widow    and    children    entitled    to,    320 

COPYRIGHTS  — 

Pass  to  administrator,  875 

COPY— 

See  Certified  Copy. 
Assignment  of  to  be  filed  in  Court,  1546 
Authenticated.   17a 

Will,    appeal   from    Probate   Court,   copy   of   the  order   rejecting  will 
sent  to  Common  Pleas,  on,  1117 
authenticated  copv  of,  and  of  order  of  probate  in  another  coun- 
ty,   effect  of,"  1111 
certified  copy  of  record  of,  effect  of,   1110 

destroyed,  authenticated  copy  of,  may  be  admitted  to  probate  or 
record,   1154,   1157 
See  Spoliated  Wills. 
foreign  copy  of,  may  record  here,  1119 
sale  of  lands,  copy  of  will  to  be  exhibited  to  Court  on,  832 

CORPORATION  — 

Appropriation  of  property  by  municipal,   1750  et  seq. 

private,    1674,    1675 
Assignment    by,    1547 

can   not   give   preferences,    1579 
How  stock  of  sold  by  executor,  etc.,  502 
CORPSK  — 

C'annot  be  dispDSed  of  by  will,  049 

COSTS  — 

Administration    of    estates : 

Accounts,  notice  of  filing,  729 

in  action  for  not  filing,  276 
Action  for  wrongfully  causing  death,  deducted  from  damages,  536 
Appeal  from  decision  of  commissioners  of  insolvency,  etc.,   1004 
Bond,  to  pay  costs  of  contesting  claim,  561 

to  pay  debts  and  prevent  sale,  826 

of    executor,    in    action    on,    261 

amount   of   recovery    in   action   on   administration   bond   for   not 
filing  account,  276 

when  defendant  to  recover  costs,  276 
Claim  rejected  at  instance  of  heir  or  creditor,  561 
Distribution  in  action  to  enforce  order  of,  774,  777 
Insolvent  estate,  on  appeal  from  commissioner's  rejection  of  claim,  1004 

compensation  of  commissioners  paid  as  part  of,  1012 

on  reference  of  disallowed  claim,  972 
Inventory,   hearing  exceptions  to,  312 
Liability  of  executors,  etc.,  for,  629 
Preferred  claim,  647 
Reference  of  claim,  602 

of  insolvent  estate,  972 
Rejected  claim,  how  paid  on  judgment  against  executor,  561 
Sale  of  real  estate,  application  of  money  to  pay,  903 

must  be  set  out  in  petition  for,  830 

bond  to  pay,  and  prevent  sale,  826 

when   order   of  sale   objected   to,    854 


INDEX  1921 

(References  aro  to  sections.) 

COSTS..  Continued. 

■Security  for,  when  executor,  etc.,  not  required  to  give,  441 
Surety  of  executor,  etc.,  applying  for  release,  243 
Appropriation  of  property: 

See  Ditch  Appeals,  Road  Appeals,  Etc.,  infra. 
By   municipal    corporations,    1770,    1777 
By  private  corporations,  1713,  1723,  1682,  1732 
new  trial,  who  to  pay  costs  of,    1718 

unfinished  road  bed,  costs  in  proceedings  to  appropriate,  1732 
view  of  property,  expense  of  taking  taxed  in  bill  of,  1708 
when  costs  may  be  apportioned,   1746 

when  action  may  be  brought  against  corporation  for,  1726a 
Assignment  for  creditors: 

Accounts,   of  notice  of  filing,   729 

Fraudulent  conveyance,    in   action  to   set  aside,    1580 

Rejected   claim,  suit  on,   1628 

When  claim  disallowed  on  application  of  assignor  or  creditor,  1635 

Guardian  and  ward: 

Guardianship,  letters  oi,  cost  of  issuing,  how  taxed,  1338 
Tax  title  of  ward,  guardian  tendering  release  of,  provision  as  to  costs, 
1395 

COUNCIL  — 

Concurrence  of  two-thirds  necessary  for  condemnation  of  property,  1749 
Proceedings    on    complaint    against    members    guilty    of    misfeasance, 
etc.,   2006 
COUNSEL  — 

See  Attorney. 
COUNTERCLAIM  — 

To  be  set  forth  in  affidavit  to  claim  against  insolvent  estate,  1632 

COUNTY  — 

Authenticated  copy  of  will  filed  in  other,  effect,   1119 
Devise  or  bequest  to,  when  valid,   1028 
Guardian  may  invest  in  bonds  of,  1367 

Where   actions   against  executor,   etc.,   guardian   and   trustee   may   be 
brought,  607 
COUNTY  AUDITOR  — 

See  Auditor. 
COUNTY  COMMISSIONERS  — 
See   Commissioners. 

COUNTY  DITCH   APPEALS  — 

See   Appeal,    1833. 
COUNTY  INFIRMARY  — 

See  Infirmary. 

COUNTY  ROAD  APPEALS  — 

See  Appeal,  1787 
COURT  — 

See  Common   Pleas,    Probate  Court,   Superior  Court,  In- 
solvency Court. 

COURT  HOUSE  — 

Plans,  etc.,  of,  approved  by  Probate  Judge,  2348  G.  C. 

COW  — 

Widow  and   children  entitled  to,   or  what  else,   320. 

CREDIT  — 

Given  by  executor,  etc.,  in  sales  of  personal  property.  482,  483 

CREDITS  — 

See   Accounts. 
To  be  returned  in  inventory  and  administerr-d.  83.  124 


1922  INDEX 

(References  are  to  sections.) 

CREDITORS  — 

See  Presentation  of  Claims. 
Administration  of  estates: 

Ancillary  administration,   170 

Bond,  Court  may  authorize  suit  on  bond  of  executor,  2G9 

when  creditor  may  sue  on,  262,  204 
Desperate  claims  may  be  filed  for  benefit  of,  456 
Direction  of  Court  may  be  asked  respecting  estate,  33 
Distribution   may   compel,    when,   761 
Disallowed  claims,  when  suit  on  to  be  brought  against  administrator, 

971 
Insolvent  estate   of   decedent,    creditors   of   barred    from    recovering   if 
claim   not  presented,   987 

when    estate    is    declared    probably    insolvent,    creditors    have    six 
months  to  present  claims,  967 
Heir  subrogated  to  share  of,   750 
Inventory,  may  be  present  at  taking,  292 

may  compel  filing  of,  303 
Letters  of  administration,   122 
Lien  on  personal  property  .when  not  aflfected,  6G6 
Legacy    to,    688 
Limitation  of  action  by,   613 

as  to  claims  accruing  after  two  years,  613 

assets  received  after  two  years.  615 

when  administrator  de  bonis  non  appointed,  618 

extension  of  limitation,  619 

claims  not  due  in  two  years,  580 

•on  rejected  claim,   609,   561 
See    Limitation    of    Actions. 
May  ask  Court  to  allow  claim  for  services  rendered  administrator,  645 
Proceedings   on  complaint  against  person  suspected  of  concealing  as- 
sets, 395,  414 
Proceedings  against  heirs,  etc.,  after  settlement.  585 
Refund,    not    compellable    to    when    debt    presented    to    executor,    etc., 

after   one  year,   670 
Requisition  on  executor,  etc.,  to  reject  claim,  561 
Suit  on  bond   by,   264 
When  to  be  paid  pro  rata,  647 
When  entitled  to  administration,  114,  170 
When  may  be  paid  before  debt  due,  570,   571 
When  executor,   etc.,  liable  to  suit  of  creditor,  611 
When  may  sue  on  administration  bond,  262 
Assignment    for    creditors: 

Assignment  preferring,  inure  to  the  benefit  of  all,  15V9 

to  hinder,  delay  and  defraud,  void,   1580 
Limitation  of  time  for  filing  claims,  1628 

of  action    on    rejected    claim,    1628 
May  carry  on  assignor's  business  when.  1587 
Removal  of  assignee  on  application  of.  1559 

CROPS— 

See  Emblements. 
Assets  in  hands  of  executor,  etc.,   369 

See  Assets. 
Purchaser  may  enter  premises  to  gather,   370 
Sale  of.  what  may  be  deferred,  470 

CROSS-PETITION  — 

Of  creditor  in  action  to  set  aside  fraudulent  conveyance,   1580 
CURTESY  — 

See   DowEU. 


INDEX  1923 

(References  are  to  sections.) 

CUSTODY  — 

See  Wills. 
Of  files,  etc.,  of  Probate  Court,   11 
Or  minor,  by  guardian  of  person  and  estate,   1366 

D. 
DAMAGES  — 

See  Appuopriation,  etc. 
For  appropriation  of  property,   1671 
ditch,   county,    1852 
municipal   corporation,    1763 
private  corporation,    1715a. 
roads,  county,  state  and  township,  1812,  1822 
For  death  by  wronfjful  act,  534 
refusal  to  produce  will,   1079 
unfaithful  administration,   255 
DEAD  BODY— 

Disposition  of  property  found  on,  2S59  to  2864  G.  C. 
DEAF  PERSON  — 

May  make  a  will,   1023,   1018 
DEATH  — 

See  Wills,  Probate  of  Wills,  Letters  of  Administration. 
See  Gifts  causa  mortis. 
Administration  not  granted  unless  party  dead,  109 
Action  for  injury  by  wrongful,  534,  535 
See  Wrongful   Death. 
for  whose  benefit  and  by  whom  to  be  brought,  536 
limit  and  distribution  of  damages,  536 
limitation  of  action,  536,  535 

power  of  executor,  etc.,  to  settle  amount  to  be  paid,  536 
when  death  caused  by  wrongful  act  in  another  State  or  county,  538 
Assignee's,  Court  must  appoint  trustee,  1561 
See  Assignment. 
legal  representative  must  settle  account,  1573 
Executor's  or  administrator's  when  and  by  whom  final  account  may  be 
rendered,   707 
of     sole     executor,     administration     with     will     annexed,     to     1^ 

granted,  94 
of  estate  directed  or  devised  to  be  sold,  107 
when  there  are  two  or  more  executors,  107 
Guardian's,  executor,  etc.,  to  settle  account,  1499 
Presumption  of,  109 

Surety's  of  non-resident  on  bond,  of  executor,  etc.,  releases,  243 
Trustee's,  of  non-resident  executor,  etc.,  to  render  final  account,  1295 
•  Ward's  to  terminate  lea.se,  unless,  etc.,  1445 
of  one  of  several  wards,  ell'ect,  144.1 
lien  of  tenant  for  improvements,  1445 
of  imbecile  waril  to  terminate  lease,  unless,  etc.,  1525 
lien  of  tenant  for  improvements,  1525 
DEBTS— 

See  Life  Estate. 
See  Payment  of  Debts. 
See  Claims,  Presentation  of. 
Debt  barred  can  not  be  set  ofi"  against  interest  of  heir,  798a 
Heirs  chargeable  with,  393 
Turning  over  notes  in  payment,  048n 
DEBTOR— 

Legacv  to,  689 
DECEDENT'S  ESTATE- 

See  Letters  Testamentary. 
See  Letters  of  Administration. 


1924  INDEX 

(References  are  to  sections.) 

DECISION  —  See  Judgment. 
DECLARATIONS  — 

Testator  not  admissible  to  afiect  construction  of  will,  1187 
Admissible  to  show  state  of  mind,  1187 
In  gifts  causa  mortis,  1248 
DECLINATION  — 

By  widow  or  next  of  kin,  of  administration,  114 

See  Letters  of  Ajjministration. 
By   trustee  of  insolvent   estate,    1572 
DECREE  —  See  Judgment. 
DEED  — 

See   Forms. 
Assignment  for  creditors,  1550 

See  Assignments. 
Assignee's  of  insolvent  debtor,  1602 

Executor's  or  administrator's,  under  power  of  will,  107 
See  Power. 
under  order  of  Court  to  sell  land,  890 

See  Sale  of  Real  Estate. 
when  survivor  puchases  partnership  property,  437 

See  Partnership  Assets. 
on  completion  of  decedent's  real  contract,  528 

See  Contracts. 
guardian's,  on  sale  of  ward's  land,  1429 

See  Guardians. 
releasing  insane  widow's  dower,  1523 
releasing  ward's  tax  title,  1395 
Testator's,  affects  will  how,  1058,  1060 
Trustee's,  for  non-resident  minor,  etc.,  593 
DEED  OF  GIFT  — 

See  Descent. 
Order  of  descent  of  real  estate,  where  title  came  by,  915,  918 
What  constitutes,  910 

See  Gifts  causa  mortis. 
See  Wills. 
DEFENSE  — 

Of  infant  by  guardian  ad  litem  —  1384 

Of  in.sane  person  by  guardian,  1384 

In  action  on  administration  bond  for  not  filing  account,  276 

DEFINITIONS  — 

Administrator  with  the  will  annexed,  99 

Administrator,  108 

Administrator  de  bonis  »ion,  151 

Ancillary  administration,    165 

Administrator  de  bonis  non  with  the  will  annexed,  161 

Assets,  363 

Advancements,  929 

Attestation.  1040 

Annuity,  374 

Absolute  legacy,  680 

Adeemed  legacy,  685 

Ancestor,  908 

Ancestral  property,  908 

Assignment.  1542 

Adoption,  1887 

Bequest,  1013 

Clearly  and   manifestly  in  will,    1191 

Continuing  business,   1589 


INDEX  1925 


(References  are  to  sections.^ 


DEFINITIONS  —  Continued. 

Contempt,  1976 

Codicil,   1174,  1052 

Construction  of  wills,  1180 

Contingent  claim,  569 

Contingent  legacy,  679 

Conditional  legacy,  680 

Cumulative  legacy,  681 

Disputed  claim,   560 

Demonstrative  legacy,  677 

Distribution,  755 

Descent,  907 

Dower,  943 

Devisor,  1013 

Devisee,  1013 

Descendants,  1201 

Domicile,  74 

Executor,  68 

Emblements,  368 

Eminent  domain,  1662 

Foreign  will,  1118 

Foreign  administrator,  186 

Fraudulent  conduct,  223 

Fixture,  365 

Freehold,  373 

Gifts  causa  mortis,  1240 

Gifts  intcrvivos,  1240 

Guardians,  1305 

General  benefits,  1672 

Gross  neglect  of  duty,  221 

Good  will  of  business,  382 

General  legacy,  676 

Heirs,   1196 

Habitation,  74 

Habitual  drunkenness,  220 

Habeas  corpus,  1951 

Imbecile,  1503 

Insane  delusion,  1022 

Insanity,  1022,  1503 

Interested  person,  737,  1142 

Intestate,  110,  907 

Incompetency,  222 

Inventory,  280 

Imbecility,   1022 

Issue,   1197 

In  rem,  543 

In  personam,  543 

Joint  will,  1170 

Joint  or  co-administration,  201 

Judicial  act,  239 

Lunatic,  1503 

Last  sickness,  1160 

Legacy,  1013 
Legatee,  1013 

Legal  heirs,  11  DO 

Legal  representative.  912 

Lapsed    legacy,    083 

Last   illness,    052 

Last,  as  a])plied  to  wills,  1139 
'      Ministerial  act,  239 
Name,  2129 
Nuncupative  wills,  1158 


1926  INDEX 

(References  are  to  sections.; 

DEFINITIONS  —  Contmuea. 
Next  of  kin,  1199,  913,  121 
Operative.  1049 
Public  charity,  what  is,  1029 
Public  use,  1667 
Partition,  1879 
Personal  property,  364 
Power,  907 
Rejected  claim,  560 
Real  chattels,  373 
Relation,  1200 
Revocation  of  wills,  1048 
Residence,  74 
Real  estate,  1409 
Special  benefits,  1672 
Special  administration,  128 
Sound  mind  and  memory,  1021 
Senile  dernctia,  1022 
Specific  legacy.  <375 
Spoliated  will,  1134 
Satisfied  legacy,  686 
Testament,  1013 
Testator,  1013 
Trusts,  1250,   1361 

Taking"  property  without  right,   1669 
Vested  legacy,  679 
Void  legacy,  684 
Wearing  apparel,  321 
Will,   1013 
What  is, 

DEPOSIT  — 

See  Money  on  Deposit. 
In  bank,  funds,  513 
Of  amount  of  verdict  in  appropriation  proceedings  entitles  corporation 

to  possession,  1723 
Of  will  with  Probate  Judge.     See  Will,  1067,  1070 

DEPOSITION  — 

See  Evidence. 

See  Code  of  Civil  Procedure^    11522-11549    G.    C. 
On  trial  in  Probate  Court,  38 
Probate  Judge  may  take,  13 

DEPUTY  CLERK  — 

Cannot  act  for  judge,   wlien,   12 
Probate  Jlidge  may  appoint,  11 

liability  of,  for  acts  of,  13 

may  take  security  from,  11 

may  perform  duties  of.  11 
How  appointed,   12 
Oath  and  powers  of,  11 
Cannot  perform  judicial  act,  12 
Can  not  practice  law,  7 

nor  prepare  pleadings,  etc.,  7 

nor  make  out  accounts  or  records,  etc.,  7 
Who  may  be,  12 

DESCENT  — 

See  Distribution. 
Ancestor,  meaning,  908 
Ancestral  property,  908 


INDEX  1927 

(References  are  to  sections.) 

DESCENT  —  Continued. 

Applied  on  legal  not  equitable  principles,  908 
Advancements,  928 

law  presumes  equal  tlivision,  928 

what  is,  929 

characteristics,  929,  930 

when  greater  than  heir's  share,  932 

real  or  personal  estate,  933 

value  of,  934 
'     Aliens  may  inherit,  935 
Bastards  may  inherit,  936 
Curtesy,  estate  by  abolished,  938 
Dower,  944 
Definition,  907,  909 
Difference  between  distribution,  907 
Devise  and  descent,  use  of  words,  909 
Deed  of  gift,  910 

what  constitutes,  910 
Heir  at  law,  how  designated,   1902 
Illegitimate  children,  may  when,  937 
Living  and  dead,  construction  of,  940 
Law  controlling,  755,  757,  907 
Legal  and   equitable,   legal   controls,   911 
Legal  representative,  912 
Next  of  kin,  913 

how  computed,  913 

our  Court  adopts  civil  law,  913 

rules  of  common  law,  913 
Permanent  leases,  941,  942 
Partnership  real  estate,  917 

See  Partnership  Assets. 
Personal  estate,  distribution  of,  921,  938 
Posthumous  child,  941 
Relict  of  deceased  husband,  914 

how  applied,   914 

former  husband,  914 
Real  estate  converted  into  money  by  guardian,  911 

Real  estate,  order  of  descent  where  title  came  by  descent  devise  or  deed 
of  gift,  915 

where  title  came  by  purchaser,  917 

when  to  next  of  kin  of  intestate,  918 

when  to  children  of  former  husband  or  wife,  919 
Real  and  personal  estate,  when  to  descend  to  children  of  intestate  and 
how,  923 

when  all  descendants  of  equal  degree  of  consanguinity,  924 

when   there   are  living  both   children    and   heirs   of   deceased    chil- 
dren, 925 

extent  of  application  of  such  provision,  920 

of  estate  which  came  from  former  husband  or  wife,  920 
Statute  emlnaces  whole  subject,  907 
Statute  applies  when,  907 
Title  by  purchase,  911 

meaning,  911 

partition  among  heirs  is  not,  911 

when  is.  Oil 
Widow  or  widower  entitled  to  what  amount  of  personalty,  938 

of  realty,  944 


1928  INDEX        ' 

(References  are  to  sections.) 

DESIGNATING  HEIR-AT-LAW  — 
By  declaration  in  Court,  1902 
Entry.   1905 

form  of,  1904 
Nature  of  proceedings,  1903 

DESPERATE  CLAIMS  — 

See  Sale  of  Desperate  Claims. 
Terms  of  compounding  fixed  in  order,  463 
Sale  of,  how  conducted,  463 
Disposition  of,  of  decedent's  estate,  456,  463  i 

of  insolvent  debtor,  1602 
What  are,  456 
Notice  of  application  to  Court  for  sale,  459 

Notice  of  sale,  463 
Uncollectible,  etc.,  725 

DESTROYED  RECORDS  — 

See  Records,  Will,  1154,  1157 

DESTROYED  WILL  — 

New  record  or  probate  of,  1154,  1157 
See  Spoliated  Wills. 

DEVISE  OF  LAND  — 

See  Devisee;  Will:  Receipts. 
Action  to  obtain  construction,  33 

See  Construction  of  Wills. 
Charge  upon  not  revocation,  1058 
Charitable,  when  valid,  1028 
See  Charitable  Use. 
Debts  of  decedent,  devise  subject  to,  1206 
Descent  of  land  of  intestate  that  came  by,  915,  918 

See  Descent. 
Forfeited  by  neglect  to  probate  will.   1084 

See  Probate  of  Wills. 
How  land  that  came  by  passes,  915,  918 
Lapses,  when,   1194 
See  Legacy. 
Title  to  in  other  county,  how  perfected,  1111 
To  witness,  void,  when,   1044 
To  whom  may  be  made,  1018,  1028 
WTiat  passes  by,  1192 
Who  may  make,  1018 
DEVISEE  — 

Assets  of  estate  of  decedent  embezzled,  proceedings  by,  395 
Bond,  may  be  party  to  or  may  bring  suit  on,  261 

when  may  give  to  creditor  of  estate  for  payment  of  claim  accruing 
after  two  years,  571 
Charged  by  will  with  payment  of  debt  or  legacy,  effect,  587 

takes  land  subject  to  charge,   1058 
Claims  may  be  filed  in  Court  for  benefit  of,  456 
Complaint  against  person  suspected  of  concealing  assets,  etc.,  395 
Contribution  by  to  raise  portion  for  absent  or  posthumous  child,  1064 
1210 
when  not  required  to  contribute,    1064 
to  raise  portion  of  devisee,  witness  to  will,  when,  1044 
when  devised  property  taken  to  pay  debts,  1207 
unless  will  otherwise  provides,  1208 
in  case  of  insolvency,  etc.,  1211 
to  pay  claims  after  settlement  of  estate,  587,  593 
Death  of,  before  testator,  effect,  1194 


INDEX  1929 

(References  are  to  sections.) 

DEVISEE  —  Continued. 

Executor,  etc.,  foreign  rights  of  devisee  as  to,  195 
Liability  of  after  settlement  of  estates  by  executor,  etc.,  585,  593 
Neglect  to  probate  will  in  three  years,  effect,  1084 
Notice  to,  of  hearing  of  executor,  etc.,  claim  against  estate,  633 
Party  in  action  to  contest  will,  12080  G.  C. 
for  sale  of  land,  833 
to  complete  contract  for.  523 
on  administration  bond,  261 
Residuary,    takes    deceased    child's    share    of    real    estate,    when,    1194 
Revivor  of  action  against.     Code  C.  P.,  11409  G.  C. 
Service  upon  unknown.  Id. 

See  Sale  of  Real  Estate. 
Specific  performance  by,  532 

against,  on  decedent's  agreement  to  convey  land,  1057 
Title  of,  to  land,  may  be  ordered  sold,  850 
When  Probate  Judge  is  interested  as,  effect,  9 
Who  may  be,  1018,  1028 
Witness  to  will,  effect,  1044 
DEVOLUTION  — 

Of  property.  54 
DILIGENCE  — 

Required,   442 
DISABILITIES  — 

See  Guardians  —  Statute  of  Limitations. 
Appropriation     proceedings,     appointment    of     attorney     for     persons 

under,  1694 
Saving  of  rights  of  persons  in  contest  of  will,  1112 
of  supplied  record  of  will,  1157 
as  record  of  foreign  will,  1133 

in  proceedings  by  creditors  against  heirs,  «'tc.,  after  settlement  of 
estate,  587 
DISALLOWANCE  — 

Of  claims  against  decedent's  estate,  609 
See  Presentation  of  Claims. 
limitation  of  action  after,  609 

when  claim  disallowed  at  instance  of  heir  or  creditor,  561 
Of  claim  against  insolvent  debtor,  to  be  indorsed,  etc.,  1628 
See  Assignments. 
limitation  of  action,  after,  1628 

when  claim  disallowed  at  instance  of  assignor  or  creditor,  1635 
DISCHARGE  — 

See  Accounting. 
See  Termination  of  Trust. 
Of  debt  in  will  against  executor  effect,  391 

naming  a  person  executor  does  not  operate  as,  389 
final  discharge,  how  executor  or  administrator  to  obtain,  795 
Of  surety  on  administration  bond,  243 

on  bond  of  assignee  or  trustee  of  insolvent  debtor,  1562 
Of  prisoner  in  jail,  proceedings  for,  13530  to  13535  G.  C. 

DISCOUNT  — 

Of  debt  against  decedent's  estate  paid  before  due,  571 

DISCOVERY  OF  WILL  — 

Effect  on  distribution,  775,  169,  152 
DISINTERESTED  PERSONS  — 
Appraisers  must  be.  857 
Arbitrators  must  be,  594 


1930  INDEX 

(References  are  to  sections  - 

DISPUTED  CLAIMS  — 

See  Assets  —  Arbitration,  etc.     Claims. 
Assignment   for   creditors.   Id. 

Limitation  of  action  on.  by  creditor  of  decedent,  609,  971 
of  insolvent  debtor,  1628 

DISTRIBUTEE  — 

See  Devisee,  Legatee. 
See  Heirs. 
To  give  indemnifying  bond  to  executor,  etc.,  when,  751 
When  may  sue  on  administration  bond,  265 
form  of  petition,  265 

DISTRIBUTION  — 
Account  of,  795 
object  of,  796 
form  of,  797 

entry  and  order  of  discharge,  798 
Action  to  enforce  order  of,  761 

citation  against  executor,  etc.,  to  appear,  761 
when  returnable,  761 

Common  Pleas  has  concurrent  jurisdiction,  781 
Probate  Court,  on  motion  of  either  party  may  send  case  to  Com- 
mon pleas,  779 
execution,  service  and  return,  774 
hearing  and  judgment,  774,  777 
lien  of  judgment,  774 

parties,  Probate  Court  may  bring  in  all  necessary,  777 
petition  for,  761 
service  on  non-resident,  770 

sureties  may  be  made  pirties  to  judgment,  783 
defense  of,  in  case  of  service  by  publication,  783 
Appeal  from  Probate  and  Common  Pleas  Courts,  785 
Assets  in  kind,  may  be  made  of,  when  and  how.  751 
Creditor  of  heirs  may  be  subrogated  to  right  of  heir,  759 
Child's  share,  how  barred,  938,  939 
Definition,  755 

Debt  of  heir  may  be  set  off  against  heir's  share,  760 
Evidence  of  may  be  perpetuated  how,  795 

record  of.  how  made,  795 
Enforcement  of,  761 

nature  of  proceedings,  762 
where  brought,  761,  752,  781 
parties,  763 

sureties  may  be,  783,  784 
petition,  764 

form  of,   765 
citation,  765 

entry  ordering,  767 
forni  of,  768 
service  of,  769,  770 
order  for  publication.  771 
form  of,  772 
proof  of  service,  773 
hearing  and  judgment,  774 
trial,  775 
proof.  775 
judgment.  776 
entrv,  776 


INDEX  1931 

(References  are  to  sections.) 

DISTRIBUTION  —  Continued. 

Court  may  bring  all  necessary  parties,  777,  778 

case  may  be  taken  to  Common  Pleas,  779 
motion    for,    780 

appeals,  785 
Insolvent  estates,  959-1012 

See  Insolvent  Estates. 

allowance   of,   appeal   on   disallowed   claim   not  to   disturb  prior, 
1010,  1298 

distribution  after  commissioner's  return,  536 

when  Court  to  make  order  of  on  return  of  list  of  debts,  976 

when  Court  to  make  further  order  of,  980 
Investment  of  unclaimed  money,  786 
Insolvent  debtor's  estate,  1653 
In  kind,  751 

what  may  be,  751 

application  for,  752 

liearing  and  order,  753 

indemnity  bond,  754 
Kind  and  when  made,  756 

voluntary,  756 

involuntary,   756 

in  money,  755-785 

in  kind,  751-754 

real  estate,  757 

personal  estate,  757 
Law  controlling,  758 

domicile  controls  personalty,  758 

location  real  estate,  758 
Method  of,  750 

Non-resident,  interested  in  business  here,  170 
Notes,  stocks,  etc.,  may  be  distributed  in  kind,  751 
Order  of,  921 

how  enforced,  761-781 
Right  to,  accrues  when,  938 
Statute  directing,  907,  938 

Sale  of  land,  of  money  arising  from,  814,  903 
Widow's  share,  938 

how    barred,  939 
Distribution  of  funds  by  trustee,  1303 

at  his  own  peril,  1303 

unless  by  order  of  Court,  1303 
See  Guardian, 

DITCH  — 

County    ditch    appeals,    1850 

DIVIDENDS  — 

Assignments,   1631,   1659 

how  calculated,   1631,   1659 
Declaring    and    payment    of    by    assignee    of    insolvent    debtor,    1653, 
984,   1011,  976 
when  report  of  payment,  etc.,  to  be  made,   1653 
of  claim  of  surety  jointly  liable  with  assignor,  1632 
Payment  of,  978,  974 
To  whom  payable,   1289,  692 
When  assets,  374 
DIVORCE  — 

Guardinn   cannot  bring,    1383 


1932  INDEX 

(Rt'fercnces  are  to  sections.) 

DOCKETS  KEPT  BY  PROBATE  JUDGE— 
Administration,  15947  G.  C. 
Civil,  15497  G.  C. 
Execution,  15497  G.  C. 
Guardian's,  15497  G.  C. 
DOMICILE— 

When  court  may  determine,  75 
As   to   wills,    1016 

controls  construction,   1016  * 

Definition,  74 

Place  of  probate  of  will,   1086 
Of  minor,  1322 

how  fixed,  1322 
guardian  cannot  change,  1322 
DOWER  — 

Assignment  of  in  sale  of  real  estate,  869,  857 
in  metes  and  bounds,  869 
in  proceedings  of  sale,  869 
how  where  homestead  claimed.  869.  950 
where  she  dies  before,  869,  950 
of  rents  and  profits,  857 
on  sale  of  equitable  interest  in  land,  825 
See  Sale  of  Real  Estate. 
Adultery  of  husband,   954 
Assignment  of  by   action,   943 

in   Court  of  Common  Pleas,  943 
in  Probate  Court,  947 
applies  when,  957 
application  for.  958 
entry,   958 
Assignment  for  creditors,   1600 
Assignment  of  by  heir  or  guardian  to  be  approved  by  Probate  Judge, 

951 
Assignee's  sale  free  of  contingent  right  of  husband  or  wife,  1600,  1618 
See  Assignments. 
answer  of  husband  or  wife  to  be  endowed  out  of  proceeds,  1600 
when  wife  has  executed  a  mortgage  jointly  with  her  husband,  or 
husband   has   executed    it   for   purchase   price,    1601 
Barred  how,  954,  122.  943,  947 
by  adultery,    947 
by  waste,  947 
by  delinquent  tax  sale,  947 
by  actions,   947 
by  statute  of  limitation,  947 
by  accepting  under  will,  947 
by  judicial    proceeding,    947 
Consort  must  be  dead,  948 
Can  be  sold  when,  943 

Calculation  of  in  proceeds,  —  , 

See  Annuity  Tables,  Sale  of  Real  Estate. 
Charge  on  land,  when  specially  assigned,  870 
Conveyance  in  lieu  of,  effect,  951 
of  defective  conveyance,   952 
effect  of  eviction  from  premises,  953 
Definition,    943 
Eviction  of  premises,  953 
Election  of  widow  or  widower  to  take,  or  take  under  will,  1215,  1235 

See  Election  Under  Will. 
Guardian's  sale  of  land,  of  contingent  right  of  wife  of,  in  the  same 
ward,  1522 
of  dower  of  insane  person,  1523 


INDEX  1933 

(References  are  to  sections.) 

DO  WER— f  OH  tinned. 

Guardian  niav  act  for  ward,  1396 
Inchoate,  943 

is  not  an  estate.  043 
Insane  woman,   proceedings  to  discharge  land   of   dower  of,   12021   et 

seq.,  G.   C. 
Land  sold  fraudulently,  955 

what    is,    943,    946,    955 
Legacy  in  lieu,  687 
Liberal  construction  applied,  943 
Not  a  vested  right,  943 

Of  what  estates  a  widow  or  widower  endowed,  944 
Property  to  which  attaches,  949 

not  in  public  land,  949 

in    leasehold,    949 

partnership    lands,   949 

vested   remainder,   949 

in  trust,  949 

exchange  of  properties,  949 

burial  ground,  949 

land  taken  by  condemnation,  949 
Relinquishment   oif,   946 

by  joining  in  deed,  946 

by  postnuptial  contract,  946 

by  antenuptial  contract,  946 

equitable  jointure,  946 

contract  in-  writing,  946 

election  of  proceeds  of  sale,  946,  947  /S^ 

Table  for  establishing  value  of,  2015-2024-    .^/^*^ 
Value  when  land  sold,  950 

as  to  purchase  money  mortgage,  950 

ante-marriage   mortgage,    950 

vendor's  lien,  950 

mechanic's  lien,  950 

sale  by  administrator,  950 

sale  on  execution,  950 

insurance  money,  950 

bankruptcy,  950 

assignee.  1601,  950 
When  becomes  fixed,  943 
When  exists,  944 
Widow  or  widower,  945 

marriage  relation  must  exist,  945 

cohabitation  alone  not  sufficient,  945 

divorce  by  aggression  of  husband,  945 
See  Election  under  Will. 
Waste,  forfeits.  956 

When  lands  are  given  up,  fraud,  etc.,  955 
When   statute  of   limitations  run  against,   947 
Interest  of,  950 
DRAIN— See  Ditch,  1850 

DRUNKARD  — 

Appointment  of  guardian  for,   1535 
See  Guardians. 
notice  to  be  served  on  party,  etc.,  1537 
sale  thereafter  invalid,   1537 
when  guardianship  shall  terminate,  1540 
appeal  from   appointment,  39 
Can  not  make  will  unless,  1022 

See  Testamentary  Capacitt. 
Guardian  may  borrow  money  and  mortgage  real  estate,  1460,  1472 


19:U  INDEX 

(.References  are  to  sections.) 

DRUNKENNESS  — 
Habitual,  220 

Koinoval   of  guardian   for,   1338 
See  Guardians. 
See  Tkustee. 
of   executor    or   administrator,    213 
See  Removal  of  Administrator. 
DUMB  PERSON  — 

May  make  a  will,  1018,  1023 

E. 

EDUCATION  — 

Of  ward,   when  guardian   controls,    1311,   1366,   1367,   1375 
See  Guardian. 
when  father  controls,   1366 
when  mother  controls,   1366 
sale  of  property  to  provide,   i405 
lease  of  property  to  provide,  1433 
ELECTION  UNDER  WILL  BY  WIDOW  OR  WIDOWER. 
Application  for  commission,  1232 

form  of,  1232 
By  acts  of  parties,  1226 

must  be  with  full  knowledge,  1226 
qualifying,  as  executor  not  an  election,   1226 
Court  admitting  will  to  probate  only  has  power  to  take,  1224 
Citation,  when  should  issue,  1216 
to  issue  for,   1215 
to   whom   issued,    1217 
divorced  wife  need  not,  1216 
form   of,    1218 
Commission  to  take,   1233 
Commissioners'  report,    1233 

entry,  1234 
Can  not  take  both  unless,  etc.,  1215 

Construction  of  will,  may  file  petition  asking  before  election,  1215 
Devisee  how   affected  by,    1230 

compensation  by,  1230 
Definition,  1214 

Duty  of  Court  to  explain  to  her,  her  right?,  1221 
Does  not  bar  right  to  remain  in  mansion  house  or  to  year's  support, 

1221 
Entitled  to  both  dower  and  provisions  of  will,  1220,  1221 
Entry  of,  1225 
Effect  of  election  to  take,    1227 

only  as  to  property  devised,  1227 

may  cause  relinquishment  of  right  to  other  property,  1227 
does  not  relinquish  homestead  right,  1227 
nor  year's  allowance,   1227 
Except  in  case  of  proceedings  to  contest  will,   1215 
Entered  on  journal,   1221 
Effect  of  not  to  take,  1228 

entitled  to  dower  in  real  estate,  1228 
can  take  nothing  under  the  will,  1228 
distributee's  share  of  personalty,   1228 
Failing  to  make  election  to  retain  dower,  etc.,   1221 
How  set  aside,    1229 

Probate  Judge  cannot,    1229 
Chancery  Court  may  when,   122fi 
Insane  or  imbecile  widow,  1235 
application  for,  1236 

form  of   commission,    1237 
duty  of  commissioner^  1238 
duty  of   Court,    1239 
form  of  entry,  1239 


INDEX  1935 

(References  are  to  sections.) 

ELECTION  UNDER  WILL  BY  WIDOW  OR  WIDOWER  — Continued. 
Judge  to  explains  wills,   1223 

includes   what,    1223 
Made  in  person,   1221,   1222 
Must  be  made  in  one  year,  1215 
Taking  under  will  bars  dower,   1221 
To  be  recorded,   1224 
Time  within  which  to  be  made,  1219 

when   construction   of  will   is   asked,    1219 
Court  of  Chancery  may  extend,  1219 
To  take  under  will  or  take  dower,   1215-1235 
Where  widow  unable  to  appear,   1231 

Where  widow  dies  within  one  year  and  before  election,   1222 
When  entitled  to  make  election  after  such  proceedings,   1215 
ELECTION  — 
Election  of  widow : 

Deputy  can  not  make,    1223 
Insolvents,  election  of  trustees  of,   1564 
Time  of  election  of  Probate  Judge,  7 
ELIGIBILITY   AND   QUALIFICATION  — 
for  administrators,  115-123 
for  executors,   79-82 
for  Probate  Judge,  6 
EMINENT  DOMAIN  —  See  Appropriation  of  Property,    1674 
Catholic  school   property   may  be  taken,    1608 
Electriic.   road    is    not    additional    servitude,    KidS 
Land  for  sidetrack  may  be  taken,   1608 
Legislature    may    confer    power,    1666 
Park   property   may   be   taken,    1668 
Power  of  Probate  Court,  20 
Public    use,    what   is,    1666 
Right    strictly    construed,    1604 
Taking  what  constitutes,   1668 
Unused    property    mav   be   taken,    1668 
EMBEZZLEMENT  — 

Of  assets,  etc.,  of  estate,  proceedings  in  case  of,  395,  414 
See  Assets. 
appeal  from  order  of  Probate  Court  in,  39 

EMBLEMENTS  — 

Are  assets  of  estate  —  see  Crops,  369 

Definition,  368 

Duty  as  to  sale  of,  476 

Limitation  of,  1030 

May  be  sold  before  severance,  470 

Purchaser  may  enter  upon  and  possess,  370 

Issue  of  first  donee  in  tail  to  have  fee,   1030 

Sale  deferred  beyond  three  months,  470 

Who  entitled  to  at  judicial  sale,  368 
ENTRIES  —  See  Forms. 
ENTAILED  ESTATE  — 

Limited  to  issue  of  first  donee,  1030 

Law  favors  a  fee  in  preference  to,   1189 

Rule  against  perpetuities,  1031 

EPILEPTICS  — 

Ohio  Hospital   for,  admission  to,  29.    1999 

EQUITABLE    INTERESTS  — 

In  real  estate  sold  by  admr.,  820 
EQUITY  — 

Will   not   reform   will,    1180 

Will   preserve   a  trust,    1275 
ERROR  — 

Appeal    and  may  bw   prosecuted   simultaneously,   40 


1936  INDEX 

(References  are  to  sections.) 

ERROR  —  Continued. 

Appropriation    of    proj3(^rty    bv    private    corporations,    proceedings    in 
1720,    1722,   1733  ' 
by  municipal   corporations,    1773 

Appointment   of   guardian,    1173 

Can  not  be  prosecuted  to  Circuit  Court,  52 

Claim   not  due,    583 

Claim  of  executor,  642 

Contempt  of  Court,   1993,   1994 

Election  under  will,  1229 

Foreign  will,  1123 

From  Common  Pleas  to  Probate,  52 

Guardian  sale  of  real  estate,   1431 

Guardian's    accounting,    1495 

Guardians  of  lunatics,  etc.,  1515 
Hearing  on  appeal   dismisses  error,   52 

How  commenced,  52 
Habeas    corpus.    1975 

In  aid  of  execution,  1950 

In  construing  will  for  widow, 1223 

In  real  estate  proceedings,  906 

In    distribution    of    personalty,    785 

Interested   party  may   prosecute,   93 

Jurisdiction  and  procedure  in,  12258-12282  G.  C. 

Must   be   from   judicial   act,   52 

Must  be  commenced   when,   52 

None  from  Common  Pleas  to  Circuit  on  probate  of  will,   1153 

~Nunc  pro  tunc  entry,  53 
power  under,  53 

On  hearing  of  executor's,  etc.,  claim  against  estate,  641 

Proceedings  in  general,  52 

Probate  of  wills,   1114 

Resignation   and   removal,   232 

Removal   of  assignee,   1575 

Removal  of  executor,  etc.,  lies  from  order  of,  213 

Spoliated  will,   1153 

Same  rules  apply  as  Common  Pleas,  52 

To  exceptions  of  account,  736 

To  removal  of  trustee,   1302 

Widow's  allowance,  340 

What  is  final  order,  52 

What  may  he  reviewed,  52 
ESCHEAT  — 

Of  chattels,   921 

Of  lands,  919 
ESTOPPEL  —  See  Appropriation  of  Property. 
EVIDENCE  — See  Deposition. 

Action  for  breach  of  administrator's  bond,  etc.,  what  may  be  given  in 
evidence  in,  276 

Allowance  of  claim  in  suit  on  administrator's  bond  by  creditor,  277 

Appropriation  proceedings  by  private  corporations,   1711,   1673 
burden  of  proof,  1695 
iact  of    publication  of   service,   how   proved,    1692 

View   as,    1710 

View  of  jury,  1711 

Claimant  cannot  testify  when,  040 

Deed  of  execution,  etc.,  under  order  of  Court   to   sell  and   is  evidence 
of  what,  899 

Injury    by    wrongful    death,    in    action    for,    536 

Inventory,   evidence   of   what,    318 

In   appropriation  proceeding,   1673 

Of  minister's  license  to  solemnize  marriages.   1997 

Of  notice  of  appointment  of  executor  or  administrator,   546 


INDEX  1937 

(ReferL'UCfs  ju-e  to  sections.) 

EVIDENCE— C'o«  tin  uccl. 

Of  fraudulent  conveyance,    1580 

On    examination    of    person    suspected    of    concealing    assets    of    estate 

405.    406 
Party  can  not  testify  when  adverse  party  is  executor;  etc.,  execpt,  etc., 

11495  G.   C. 
To  prove  contract  to  make  will,    1170 
Will,  certified  copy  of  is,    1110 

admiission  of,  to  construe  will.   113.3 
spoliated,  testimony  as  to,   1146,   1148 
what  necessary  before  will  is  admitted  to  probate.   1105 
revocation,    to   rebut   presumption    of   revocation   of   bv   birth   of 
child,    1062 
EXAJVIINATION  — 

Of  assignor  and  assignee  as  to  assignment,   1585 
Of  creditor  of  insolvent  as  to  claim,   1632 
Of  debtor  in  proceedings  in  aid  of  execution,  1911 
Of  assignee,  executor,  guardian,  etc.,  as  to  accounts  filed,  733 
Of  person  suspected  of  concealing,  etc.,  assets  of  estate,  395,  408 
Of  witnesses  to  will,   1095 
Of  witnesses  on  exceptions  to  inventory,  312 
EXCEPTIOlSrS  — 

See   Ereob. 
Code  of  Civil  Procedure,  see  §  11599  G.  C. 
Account  of  admr.,  737 

Bills  of,  from  decision  of  Probate  Judge,  how  taken  and  allowed,  785 
How  tried,  739 

To  accounts  of  executors,  etc.,  743 
further  time  allowed  to  file,  729 
of  assignee,  etc.,  1653 
To  guardian's  bond,   1343 
To  inventory  of  estate,  312 

appeal  to  Common  Pleas,  312 
Evidence,   740 

In  proceedings  as  to  insolvent  estates,  976 
Error  and  appeal,   747 

form  of,   737 
In  proceedings  to  enforce  order  of  distribution.  785 
On  hearing  of  executor's  etc.,  claim  against  estate,  641 
Road  appeals,  to  report  of  viewers,  1830 
EXECUTION  — 

Cannot  be  had  against  estate  of  deceased,  816 
Distribution,   to  enforce  order   of,   774,   777 
How  and  when  may  issue  against  executors,  etc.,  626 
when  account   has  been  rendered   and  settled,   626 
runs  against  goods,  etc.,  of  deceased  in  their  hands,  628 
when  returned  unsatisfied,  effect,   628 
Insolvent  estate,   in   proceedings   against,   990 

made  to  evade  proceedings  void,  415 
On  judgment  for  goods  of  estate  concealed  or  embezzled,  413 
Proceedings  in  aid  of,  1911 

See  Proceedings  in  Aid  of  Execution. 
Reference  of  doubtful  claims  against  estate,  on  judgment  in  ease  of, 

597 
Stay  of,  on  error.  Code  of  Civil  Procedure,   10825  G.  C. 

on  appeal,  12233  G.  C. 
Waste  on   judgment  for,  G28 
EXECUTION  boCKKT— 

To  be  kept  by  Piobate  Court,  1594  G.  C. 
KXECUTOll— 

See  Administrator  and  Executor. 
EXECUTRIX— 

Marriage  of  does  not  extinguish  authority,   115 
EXEMPT  PROPERTY— See  Homestead. 

?]xpmj)ie(l    from  assionment    unless  expressly   waived,   1598 
Property  exempt  from   execution,   807,   1598 


1938  INDEX 

(References  are  to  sections.) 

T:XEl\rPTION  — 

Determined    at    time    of    distribution.    1601 
Previous  allowance  will  not  bar  when.    1601 
KXHIBTTION    QP    CLAIMS    AGAINST   ESTATE— 

See  Pkesentatiox  of  Claims. 
EXPECTANCY  — 

Of  heins  assignable,  800 
Can  not  be  devised,   1026 
EXPENSEiS  — 

Court  may  order   account   shown,   653 

See  Accounts. 
Administrator's  and   executor's,   654 

See  Payment  of  Debts. 
Assignee's,   1642 

See  Assignments. 
Guardian's   1490 

See  Guardians. 
Of  administration  of  estate.     See  Costs,  647 
last  sickness  and  funeral,  647 

See  Funeral  Expenses. 
proving  claim  against  estate,  557 
sale  of  real  e.state,   903 
EXEMPTIONS  — 

See  Widow's  Allowance. 
Who  entitled  to,   1598 
^Vhat  entitled  to,    1598 
EXTRA    CO^MPENSATION  — 

What  CDUstitutes,  659 
FATHER  — 

See  Parent. 
Consent  of,  necessary  on  marriage  of  minor,  1997 
Entitled  to  custody  and  control  of  education  of  minor,  1366 
See  Guardians. 
duty  of  guardian  when  father  unable  to  maintain,  etc..  1.'367,  1313 
May  appoint  guardian  by  will,   1307 

May  be  appointed  guardian  for  his  children,  when,  1311 
When  he  inherits  property,  917 
See  Descent. 
FEE  BILL  — 

C»f  I'rohato  .Tudgc  to  be  filled  and  recorded,   1600  G.  C. 
FEES — See  Cosi.s. 

Administrator's   and   executor's,   654,    1499 

special,  137 
Appraisers'  of  personal  property   of   estate,   301 

of  real   property,  872 
Appropriation  of  property  by  private  corporation,  875 
Assignee's,  1642 
Attorney's,  of  assignee  of  insolvent  debtor,    1642 

of  party  under  disability,  etc.,  in  appropriation  proceedings,  1694 
Clerk's  in  appropriation  proceedings,  1746 
Commissioner  of  insolvent  debtor,   1012 

Ditch,  appeal  county,  

railroad,  8912  G.  C. 
Elections: 

contest  of  Justice  of  the  Peace,  5168  G.  C. 
Examiners'  of  county  treasury.  2699  G.  C. 
Girls'  Industrial  Home,  commitment  to,  2109  G.  C. 
Guardians',  1490 

when  appointed  for  minors  of  same  parentage,  1338 
no  extra  for  investing  trust  funds,   1367 
Inquest  of  lunacv.  1999 
Jurors,  3008,  11204  G.  C. 

approj)riation  of  property,  1746 
ditch   appeal,   county,  


INDEX  1939 

(Referpncps  are  tf>  soctlons.) 

FEES— Continued. 

township,   1873 
Justice  of  the  Peace,  for  issuing  orders  to  appraisers,  286 
Levee,  construction  of.     See  Ditch. 

Physicians  attending  insane  patient  in  infirmary,   1081   G.  C. 
Probate  Judge's,  generally,  1600  G.  C. 

account  of  verified  by,  1600  G.  C. 

itemized,  to  be  filed  in  eacli  case,  1600  G.  C. 

administration  of  estate,   1602  G.  C. 

appropriation  of  property,  

assignment  for  creditors,  11145  G.  C. 

bank  deposits  unclaimed,  for  record  of,  

bounty  cases,  1604 

ditch,  countv.     See  Ditch. 

railroad,  8012  G.  C. 

contest  of  Justice  of  the  Peace,  5768  G.  C. 

girls'  industrial  home,  commitment  to,  2109  G.  C. 

habeas  corpus.   12179  G.  C. 

levee,  construction.     See  Ditch. 

marriage  license,  issuing,  11188  G.  C. 

pension  cases,  1619  G.  C. 

proceedings  in  aid  of  execution,  11786 

proceedings   in  case  of  fees   paid  to   predecessor  for  services   per- 
formed by  Probate  Judge,  1587  G.  C. 

judge  to  make  sworn  statement  of  such  services  and  prosecuting 
attorney  to  sue  on  bond  of  predecessor  for  same,  1588  G.  C. 
road,  state.     See  Roads. 

sale  of   real  estate,   action   by   executor,  guardian,   etc.,  for   entry 
releasing  liens,  814 

tobacco  inspector,  appointment  of,  6044  G.  C. 

warehouseman,  issuing  license,  6044  G.  C. 

trustee's  accounts,  settling,   1299 

will,  deposit  of  with,  1067 
Prosecuting  attornev's   in  inquests  of  lunacy,    1980-2029  G.   C. 
Railroad  ditch,  etc.,'  8912  G.  C. 
Road,  state.     See  Roads. 
Sheriff's,  11204  G.  C. 

appropriation  of  property,  11089  G.  C. 

ditch,  county,  

Trustee  of  insolvent  debtor,  1642 

of  non-resident,  etc.,  1299 
Unclaimed,  Probate  Judge  to  make  list  of  and  post  in  office,  3040  G.  C. 

fees  for,  3040  G.  C. 

how  disposed  of,  3042  G.  C. 
Will,  deposit  of  with  Probate  Judge,  1067 
Witnesses,  1 1204  G.  C. 

appropriation  of  property,   11089  G.  C. 

ditch,  county, 

F. 

FEE  SIMPLE— 

See  Construction  of  Will. 
Devisee  for  life,  remainder  to  heirs  in,  construed,  1188 

See  Descent. 
Passes  without  words,  heirs,  in  will,  1189 
See  Shelley's  Case. 

FILES— 

Probate  Judge  to  liave  custody  of,  of  Probate  Court,  11 

.FILING— 

Of  desperate  claims  in  Court  fqr  benefit  of  heirs,  etc.,  456 
Of  wills  in  Prf)hatc  Court,  1109 


1940  INDEX 

(References  are  to  sections.) 

FINAL   ACCOUNT— 

See  Account,  Administeators  and  Executors,  Assignment 
FOR  Creditors,  Guardians,  etc. 
FINAL  DISCHARGE— 

See  Termination  of  Trust — Account. 
How  executor,  etc.,  may  obtain,  795 
Exempt  from  liability,  unless,  etc.,  795 
FINAL  ORDER— 

See  Roads — Ditches,  etc. 
What  is,  906 

What  is,  in  appointment  of  guardian,  1511 
What  is,  in  condemnation,  52 
In  appropriation  proceeding,  1674 

FINAL  record- 
To  be  kept  by  Probate  Court,  1594  G.  C. 
what  to  contain,  1594  G.  C. 
wben  to  be  made  up,   1594  G.  C. 
FINAL  SETTLEMENTS— 

See  Account,  Settlement — Termination  Trust — Guardian. 
FINE — See  Amercement,  Penalty. 

Imposed  by  Probate  Judge  to  be  paid  into  county  treasury,  13460  G.  C. 

how  collected,  13460  G.  C. 
Marriage,  for  breach   of  provisions  as   to   solemnizing,   1997 
FIRE  MARSHAL— 

Appeal  from  order  of,  2006. 
FIXTURE— 

Agriculture,  365 
Definition.    365 
Domestic,   365 
Fence,  385 

Rules  governing,   365 
Trees,  wood,  etc.,  366 
FOREIGN  ADMINISTRATOR  AND  EXECUTOR  — 

Account,  may  be  compelled  to  render  at  suit  of  heir  or  legatee,  190 
Action  may  be  brought  by  in  this  State,  195 

under  like  restrictions  as  non-resident,  195 
or  against,  187 

service  in,  for  failure  to  pay  heirs,  etc.,  after  order  of  distribution, 
770 
Action  against  by  heirs,  legatee,  etc.,   190,  191 
Bond  may  be  required  of  before  sale,   199 

unless  he  has  already  given  one  in  foreign  State  and  filed  copy 

here,  199 
for  distribution  of  surplus  proceeds  of  sale,  200 
Courts  have  like  power  over  as  if  appointed  under  laws  of  this  State, 

188 
Cannot  attack  judgment  in  other  State,  187 
Caimot  be  charged  with  assets  in  another  State  when,  187 
Contirmance  ot   verdict  in  condemnation   2>roceeding,   1711 
Definitiori.   180 

Form  of  refunding  bond,  192 
Form   of  bond   to   secure  distributee,    194 
Foreign  executor  must  give  bond,  199,  200 
Laws  governing  settlement  of  estates  generally  control,  189 
Laws   applicable  to,   198 

Letters  testamentary  when  to  issue  to,   1132,   169 
May   be  sued   here,    198 

May  be  compelled  in  equity  to  disclose  funds,   191 
•  May  be  required  to  secure  distributees,  etc.,   193 
May  prosecute  stiits  in  this  State,   195 


INDEX  1941 

(References  are  to  sections.) 

FOREIGN  ADMINISTRATOR  AND  EXECUTOR  —  Con^i^iwed. 
Must  give  an  appeal  bond.  195 
May  be  authorized  to  sell  real  estate,  197 
Powers  of,  1132,   169,  187,  195,  197 

Refunding  bond  may  be  required  of  heirs,  etc.,  when,  190 
Sale  of  land  by,  for  payment  of  debts,  197 

power  to  sell  real  or  personal  estate,   1132,   169 
Sureties  on  bond  may  require  indemnity,  when,  193 
Validity   of  payment  to   foreign  administrator,    196 
What  petition  must  show,   198 
FOREIGN  GUARDIAN  — 

Cannot  give  title  unless  law  authorizes,  1478 
Guardian  here,  removed,  1477 

what  done  in  such  cases,   1479 
How  may  collect  money,  1282 
Idiot,   imbecile  or   lunatic,    1483 

Improvement  of  real  estate  of  imbecile,  etc.,  1452,  1456 
May  recover  property  in  this  State  and  how,  1480 
May  sue  and  be  sued  here,  1481 
Rights  of  in  this  State,  1480,  1481,  1475 
Removal   of  ward,    1476 
Sale  of  land  of  non-resident  ward,  1481,  1482 

additional  security  may  be  required  of,  1481 
Foreign  assignments: 

See  Assignments. 
FOREIGN  WILLS  — 

Admission  and  effect  of  admission  to  record    1130 

Definition,    1118 

Executed  in  other  State,   1119 

how   admitted,    1020 

application,   1121 
form,   1121 

form  of  entry,  1122 

appeal,   1123 

error,  1123 
Executed  in  other  country,   1124 

proceedings,   1125 

motion  to  admit,   1126 

form  of,   1126 

ordering  notice,  1127 

form  of,  1128 

admission  to  probate,   1129 

efTect  of,  1130 

entry  ordering  probate,  1131 

effect  of,   1131o 
Has  same  validity  as  original,   1130 
Motion  to  admit  continued  for  two  months,  1125 
Notice  of  filing  application,  1125 
Not  defeated  by  production  of,   1133 
No  contest  of  in  this  State,  1133 
Of  will  of  alien,   1130 
Power  of  executor,  etc.,  under,   1132,   169 
Probate  Court  may  appoint,  1271 
Proceedings  to  admit  to  record,   1125 
Record  of  will  of  alien,   1130,    1119 
Rights  of  purchaser  without  knowledge  of,  1133 
Saving  of  rights  of  infants,  etc.,  1133 
Set  aside  in  foreign  State,  how  far  invalid  here,  1133 
Trustee  named  in  to  give  bond,  etc.,   1268 

appointed  by  foreign  Court,   1269 

by  Probate  Court  of  county  where  property  is,  1271 
Trust  created  by,  how  executed,   1267,   1271 


1942  INDEX 


(References  are  to  sections.) 

FOREIGN  WII.LS  — Continued. 

Unless  offered  for  record  with  four  years,  etc.,   1133 
When  trustee  not  required  to  give  bond,  1133 
What  determines,    1118 
Where  to  be  probated,   1086 

Where  admitted  to  probate  effect  on  earlier  will,   1131o 
FORMS  — 

Appeal    bonds,    47 

Administrator   with   the  will   annexed 

citation,  application  for  executor,   101 

entry  ordering,    102 

to   renounce  or   take,    103 
Ancillary  Administration : 

application  for,   174,    175 

entry  ordering,   178 

application    for   letters,    179 

bond,    180 

letters,    182 
Appointment,  notice  to  administrator,  545 

proof   of  publication,    547 

petition  where  not  given,   549 

entiy,    550 
Arbitration : 

agreement   to   refer,   596 

order  of  reference,  600 

notice   and   oath    to   referees,   601 

subpoena,    etc.,    604 

finding   of    referees,    604 

confirming  of  award,   606 
Accounts,  Administrators : 

affidavit   to   voucher,   724 

oath   to  account,  726 

administrator's  account,  727 
entry,    728 

notice   of   filing,    730 
entry  on.  731 

account  hearing  of,   733 

exceptions  to  account,  737 
order  of   reference,   741 

statement   in   lieu   of   account,    748 
Assignment : 

deed   of,    1550 

application    for    appointment,    1553 

bond,  1554 

letters,  1556 

notice    of    appointment,    1557 

application   to   elect  trustee,    1566 

entry   ordering   citation,    1567 

entry  ordering  election,  1569 

confirmation  of  election,  1571 

application  to   raise,    1577 
entry,    1577 

application  to  continue  business,    1590 
entry,    1590 

application  for  sale  of  personal  property,  1607 

notice  to  lien  holder,   1607 

answer  of  chattel  mortgage  claim,   1608 

order   where  property   not   sold,    1612 

confirmation  of  sale,  1614 


INDEX  1  ^)4:] 

(References  are  to  sections.) 


FORMS  —  Continued. 

petition  for  exemption,  1601 

petition  for  sale  of  real  estate,   1622 

assignee's  deed,   1627 

affidavit  to  claim,  1633 

report   of    claims    filed,    1639 

affidavit  to  attorney  fees,   1645 

account,    1656 

exception  to  account,   1659 

report  of  payment,    1661 

confirmation  of  report,   1661 
Appropriation    of    Property   by    Private    Corporations: 
Application  for  minor,   1678 

entry   ordering  notice,    1678 

notice,    1678 

order  of  deed,  1678 

deed,  1678 

petition,  1688 

entry  ordering  jury,    1702 

entry    ordering   venire,    1702 

oath,  1706 

view    of    premises,    1707 

empaneling  jury,  1709 

appointing    attorney,    1709 

verdict,    1716 

confirmation,    1716,    '719 

on  payment   of  amount,    1724 

petition  of  owner,   1740 

notice  to  corporation,  1738 
demand  of  aescription,   1739 
motion   for    injunction,    1745 
entry   on,    1745 
Appropriation   of   Property   by   Mvmcipal    Corporations 

petition,    1752 

precipe,    1752 

entry  on  filing,   1753 

notice,    1755 

ordering  jury,  1759 

confirmation  of  verdict,   1775 
Appeal,  County  Roads: 

bond,    1788 

entry  on  filing  transcript,  1790 

entry  approving,   1793 

entry    reversing,    1794 

entry   confirming    report,    1799 

motion    for    review,    1801 
ordering,    1802 
Appeal.     Road.     Compensation : 

entry  drawing  jury,   1817 

final  entry,   1824 
Appeal,  County  Ditches : 

exceptions,    1832 

entry    on   transcript,    1838 

consolidation  of  cases,   1840 

ordering  jury,    1843 

oath,    1848 

verdict,    1852 

confirmation  of  verdict,    1854 
Appeal,  Township  Ditches: 


1944  INDEX 

(References  are  to  sections.) 

FORMS  —  Continued. 

notice.    1862 

ordering  jury,   1864 
Aid  of  execution : 

appplication,    1915 

order,   1917 

notice,    1918 

warrant  to  arrest,   1924 

order  after  arrest,    1925 

order  to  apply  property,   1941 

order  to  sell  real  estate,   1947 
Adoption : 

petition,    1892 

consent,    1894 

entry,  1897 
Bonds : 

See  various  subheads  for  particular  bonds. 

approval  of  trust  company,  241 

examination  of  sureties,  242 
Bonds,  Suit  on: 

leave  to  bring,  suit,  application,  271 
entry.  272 

granting  leave  to  bring,  275 
Compounding  claims,  452 

entry,    454 
Completion   of    contract   for   land: 

sale  of  real  estate  on  contract,  526 
entry,  530 
deed,  531 
Claim   not  due,   573 

notice,  574 

ordering  paid,  576 

ordering  assets  retained,   577 

ordering  bond   given,   578 
bond,  579 
Claim  of  executor,  636 

entry,  637 

notice,    637 

notice  non-residence,  638 

allowance  of,  640 

appeal  bond,  644 
approval,   644 
Contempt : 

order  when  made  in  presence  of  judge,   1978 

appointing  attorney  to  bring  action,   1982 

charge  of,   1983 

summons,  1984,  1985 

attachment,    1984,    1985 

entry  of  guilty.  1988 

commitment.    1990 

order    of   discharge,    1992 
Designation  of  heir,  1904 

entry,  1905 
Dower : 

assignment   of,   958 

entry,  958 
Distribution  in  kind.  752 

entry  on,  753 

indemnity  bond,  754 


INDEX  1945 

(References  are  to  sections.) 

FORMS  —  Continued. 
Distribution  of  Personal  Property-. 

account  of,  797 

entry  ordering  discharge,  798 

entry  ordering  citation,  767 

petition,  765 

citation,  768 

notice  by  publication,  771 
form  of,   772 

judgment,  776 

motion  to  take  case  to  Common  Pleas,  780 
Embezzled   assets : 

complaint  against  person,  400 
entry   ordering  citation,   401 
citation,  402 

commitment  to  jail,   404 

examination   in  embezzlement,  407 

order  to  draw  jury,  409 

report  of  clerk  of  jurors,  409 

venire   for  jury,  409 

verdict   in  embezzlement,  411 

finding  on  embezzled  goods,  412 
Election  under  will : 

citation  to  widow,   1218 

election.  1225 

entry,  1225 

commission  for  absent,  1232 

journal  entry,  1232 

commission,  1233 

commissioners'  report,   1233 
entry,   1234 

commission  for  insane,   1237 
entry,    1239 
Franchise  for   street: 

petition,    1877  , 

Foreign  guardian.      Application  to  pay  money  to,    1283 

entry,   1284 

notice,    1284 

order,    1285 
Foreign  administration: 

refunding  bond.   192 

bond  to  secure  distributee  from  foreign  executor,  194 
Guardians : 

application  for  appointment,  1325 

choice   of,    1328 

bond,  1334 

property   statement  of   sureties,    1334 

mortgage    security,    1335 

entry   appointment,    1340 

letters.   1341 

exceptions  to  bond,   1345 

notice.    1346 

order  additional  bond,   1347 

order   releasing  surety,    1351 

application  for  citation,   1364 
entry,    1364 

inventory,    1368 

indenture,    1371 

judge's  certificate,   1371 


1946  INDEX 

(References  are  to  sections.) 

FORMS  —  Continued. 

entry  of  approval,  1371 
application  to  invest  in  land,   1387 

entry,   1387 
application   to   sell    land^    1387 

entry,   1387 
petition  to  sell  real  estate,  1412 

order  of  notice,   1414 

form   of   notice^    1416 

order  to  appraise,   1420 

order  to  give  additional  bond,   1421 

form   of   additional   bond,    1423 

order  of  sale,  1426 
guardian's  deed,  1430 
petition  for  a   lease,    1436 

entry   on,    1437 

appointment   of    appraiser.    1439 

order  to  appraise,    1440 

report    of    appraisement,    1440 

order   to  lease,    1442 

report  of  guardians,   1444 
application   to   borrow.    1470 
order  and  report  of,   1471 

entry    confirming,    1473 
guardian's  mortgage,  1474o 
Guardian  of  lunatic: 

application,    1506 

entry  ordering  notice,   1506 

notice,   1507 

entry  ordering,  1510 
fixing  dower,  1513a 
Habeas  Corpus: 

application  by  person  imprisoned,  1956 
application  by  third  person,  1956 
application   by  parent   for   child,    1956 
entry  ordering  Avrit,   1959 
writ  when  not  in  custody  of  officer,   1963 

when  in  custody  of  officer,  1964 

return  of,   1968 

answer   of   respondent.    1968 
entry  discharging  person,  1972 
entry  remanding  prisoner,   1973 
Inventory : 

statement  in  lieu  of  inventory,  283 

entry,  283 
appointment  of  appraiser  by  justice,  286 
notice  of  appraisement,   289 

affidavit  of  service,  289 
oath  of  appraisers,  291 
citation   to   return    inventory,    304 

entry  and  writ,  305 
entry  for  removal  for  not, filing  inventory,  308 
exceptions  to  inventory,  313 

entry  ordering  notice,  314 

notice.    315 

hearing  of  entry,   316 
Inheritance  tax : 

notice  to  collect.  348 

entry  on.  353 
appraisement  for,  357 


INDEX  1947 

(References  are  to  sections.) 

FORMS  —  Continued. 

entry   allowing,   357 
Investment  of  funds,  516 

entry,  516 
Investment  of  unclaimed  money,  787 

entry   authorizing,    788 

return  of,    789 

application  to  pay  money  to  owner,  792 

entry  ordering,  793 
Incumbrances,  application,  7986 

entry,  notice,  798c 

order,   798d 
Insolvent  estate  settled  by  administrator: 

oath  to  insolvent  commissioner,  994 

report  of  commissioner,  975 
to  Probate  Judge,    1007 

appeal    insolvent  judge,    1006 
form  of  bond,   1006 

application  for  insolvency,  961 
entry  declaring,  964 

notice  of   insolvency,   966 

presentation  of  claim  insolvency,  968 

report  of  insolvency,  978 
entry    on^    979 
Judge  where  interested: 

application,   10 

entry,  10 
Letters  of   administration,    127 

application    for^    112 

administrator's  bond,   125 
Letters  beyond  twenty-one  years: 

notice  of  hearing  for  appointment  of  administrator,  66 

entry,  66 

grant  of  letters,   66 
Letters  Testamentary : 

application   for^   78 

executor's  bond,  84 

executor's  letters,  87 

entry  appointing  executor,  89 

application  of  executor  to  borrow  money,  97 
entry  granting,  98 
Legacy,  application  for,  698 

entry,   699 

bond,   700 
Proceedings  to  oust  municipal  officers:  • 

complaint,  2007 

entry  on,  2007 

empaneling  of  jury,  2007 

verdict  of  jury.  2008 
Partition : 

application  for  certificate  of  Probate  Court,   1881 

entry  on,   1882 

certificate,   1883 

motion  in  Common  Pleas,   1886 
entry  in,  1886 
Partnership   assets : 

application   for   appraisement,   419 

entry  ordering  notice,  420 

form    of   notice.    421 


1948  '  INDEX 

(References  are  to  sections.) 

FORMS  —  Continued. 

entry  ordering  appraisal,  422 
appraisement  of,  423 
entrj'   confirming,   424 
bond  of  surviving  partner,  429 
approval  of  partner's  election,  430 
deed  of  partnership,  439 
Real  Estate: 

deed,  of  executor,  private  sale,  809 
bond  to  prevent  sale  of,  826 
petition  of  administrator  to  sell,  836 

filing  of,   837 
notice   of   sale   of,    841 
waiver  of  summons,  843 
guardian  ad  litem  appointment,  845 

answer,   845 
widow's  answer  of,   846 
decree  of  sale  of,  852 
order  of  appraisement  of,  858,  852 

copy  of,  859 

return  of,  859 
oath  of  appraisers,  863,  859 
bond  in  sale  of.  874 
confirmation  of  appraisement,  876 
order  of  sale  of,  878 
report  of  sale  of,  public,  878 
report  of  sale  of,  private,  878 
notice  of  sale,  887 
confirmation  of  sale,  895 
distribution  of  proceeds  of  sale,  895 
resale  of,   896 

motion  to  set  aside  appraisement,  898 
deed,  administrators,  public  sale,  901 
Removal  of  administrator: 
resignation,   212 

entry,  212 
removal,   application   for,   216 

entry,    217 

notice,  219 

order,  228 
Release  of  surety,  245 
entry,  245 

notice  for  new  surety,  247 
indemnity  bond,  256 
Rejection  of  claim:, 

afEda\at  to  claim,  558 
requisition  to  reject,  563 

bond  for,  564 

entry  ordering,  565 

notice,  566 
Sale  of  desperate  claims    458 

entry  ordering  notice,  460 
notice  for,  461 
entry  for  public  sale,  464 
return  of  sale,  465 
private  sale,  466 

return  of,  467 
Sale  of  personal  property: 

redelivery  bond,  475 


INDEX  1949 

(References  are  to  sections.) 


FORMS  —  Continued. 

order  to  sell  property  disposed  of  by  will,  477 
property  not  sold  within  three  months,  478 

entry,  478 
notice  of  public  sale^  480 
sale  bill,  490 
private  sale,  496 

less  than  appraised  value,  497 
affidavit  for,  497 

order  for,  498 

return  of,  500 

affidavit  to,  500 
Sale  of  stocks,  503 

entry  authorizing,  503 
Special  administrator's  bond,   134 
appointment,    135 
letters,    136 
application  for  citation,  144 

entry  ordering  citation,  145 
citation    for   special   administrator,    146 
attachment,   147 

entry  ordering,  147 

writ  of,   148 
commitment  to  jail,    149 
Trustees'   bond,    1259 

application   for  appointment,   1255 

entry,    1261 
form  of  letters,  1262 
Vagrant  child: 

application  to  declare,    1907 
entry  ordering  notice,   1908 
entry  ordering  child  committed,   1909 
Widow's  allowance: 

increase  of,  336 
decrease,   336 
•entry,    337 

notice,  338 

entry  on  hearing,  339 
Wrongful  death,   settlement  in,   538 
entry  allowing,   539 
report,   540 
approval,  540 
apportionment,  542 
Will,   1047 

deposit  of,  1067 
order  for,  1067 
citation  to  produce,  1073 

form  of,   1074 

entry  for,  1074 
attachment,   1075 
commitment,   1080 
probate    of : 

application,   1088 

entry  fixing,    1090 

notice  of,    1093 

testimony  of  witnesses,  1097 

commission,   1103 

order,    absent   witnesses,    1102 

subscribing   witness,    1111 

return  of  commissioner,  1104 


1950  INDEX 

(References  are  to  sections.) 

FORMS  —  Continued. 

order  of,   1107 
foreign : 

Application  for,  executed  in  other  State,  1121 
entry    ordering   record,    1122 

application    for    will    made    in    other    county,    1126 
order  of  notice,   1127 
form  of  notice,   1128 
order  admitting  to  probate,  1131 
spoliated : 

application,    1143 
order   of   notice,    1145 
order  establishing,  1151 
nuncupative,    1 1 69 

testimony  in,  1169 
codicil,  1179 
FRANCHISES  — 

See  Appropriation. 
Hearing   and   decree,    1878 
How    acquired,    1876 
Petition,    1877 

form,    1877 
Use  of  street  granted  to  corporation.   1875 
FRAUDULENT  CONVEYANCE  — 

Action  to  set  aside  by  creditor  of  insolvent  debtor,  1580 
appointment  of  trustee  to  recover  possession,   1580 
notice  of  object  of  suit  to  be  published,   1580 
what  Court  to  administer  trust,  1580 
Sale  of  land  of  decedent,  may  be  set  aside  in  action  for,   823 
when  it  can  not..  822 

in  what  Court  action  to  be  brought,   823 
limitation  of,  822 
parties   to,    8.33 
FRAUDULENT  CONDUCT  — 

Removal    of   guardian    for,    1358 
See  Guardian. 
of  executor  or  administrator,  213 

See  Removal  of   Administrator,   Etc. 
FRAUDULENT  CONVEYED  LAND  —  383,  1579 

Dower  in,  955,  939,   1249 
FREEHOLDERS  —  • 

Appraisers  of  decedent's  real  estate  must  be,  857 
of   ward's   real   estate,    1418 
to  report  as  to  leasing  ward's  real  estate.  1438 
Definition.    373 
FRUITS  —  366 

See  Emblements. 
FUGITIVES  FROM  JUSTICE  — 

Proceedings  relating  to,  §§  13520-13522  G.  C. 

FUNDS  — 

Bank  —  deposited,    513 
Custody  of,  512 

In  hands  of  guardian   at  final   settlement,   1388 
Investtnent  of,  by  executor,  etc.,  guardians  and  trustees,  514 
See  Money  on  Deposit. 
by  guardian  of  person  and  estate,  1367 
unclaimed,  belonging  to  heirs,  etc.,  786 
FUNERAL  EXPENSES  — 
Amount  of.  649.  650 

extravagance  not  encouraged,  650 


INDEX  1951 

(References  are  to  sections.) 

FUNERAL  EXPENSES  —  Continued. 

position    in   life   largely   controls,   650 

undertaker  should  be  held  to  make  proper  charge,  650 
Claims  for  should  be  presented,   649 
Court  will   limit  amount,   650 
Executors  may  pay  before  letters  granted,  70 
Friend,  when  not  entitled  for  payment,  649 
First  paid,  647 

Husband  liable   for  wife's,   etc.,   649 
Includes  what,   649 

wake,    649 

mourning  apparel,   649 

carriage    hire,    649 

claims  of  relatives  attending,   649 

taking  up  body,  649 

communication  of  death,  649 
Order  of  payment,  649 
Of  unknown  person,  2S62  G.  C. 
Tombstone  in  same  class,   651 
Wife   not   for   husband's,   etc.,   649 
■  Who  entitled  to,  649 

G. 

GAIN  AND  LOSS  — 

How  apportioned  between  life  tenant  and    remainderman,    1290 
GENDER  ^ 

Words  importing  masculine  applied  to  feminine,  1033 
GIFT  — 

Evidence   of,    1248 

Of  real  estate  by  drunkard  void,  when,  1537 

To  avoid   proceedings  against   persons  suspected  of  concealing  assets, 

etc.,  of  estate,  void,   415 
What   constitutes,    1242 
When   is  established,   1248 
GIFT   CAUSA    MORTIS  — 
Definition,    1240 

Distinction  between  gifts,  inter  vivos,  1240 
Drafts  and  checks  unpaid  not,   1241 
Evidence    of,    124S 

Intention  to  give  is  not  a  gift,   1246 
Inter  vivos,  what  are,   929 
Makers  own  note  cannot,    1241 

Must  be  clear  and  convincing  declarations,  when  not  admissible,  1248 
Requisites  of,  1242 

in  view  of  death,  1243 

what  constitutes,  1243 
death  of  donor,  1244 
delivery  of,    1245 

owner  must  part  with  possession,  1245 
must   be   with    intention,    1245 
Revocation  of  gift,  1247 
Right  of  creditors  and  family,  1240 
cannot  defeat  debts,    1249 
nor   wife  of  marital  rights,    1249 
but  may  of  distributive  share,   1249 
Should  be  absolute,   1240 
Subsequent  birth  of  child,   1247 
What  may  be  given,   1241 
GIRLS'   INDUSTRIAL  HOME  — 

Comrnitnicnt  to,  proceedings,  2128 
'GOODWILL  OF   BUSINESS^ 
Definition,  416,   425 
Wiicii  assets,  382 


1952  INDEX 

(References  are  to  sections.) 

GOODS  AND  CHATTELS  — 

Executor  and  administrator  to  make  inventory  of  and  administer,  83, 
124.    137 
See  Assets,  Accounts,  Choses  in  Action,  etc. 
Proceedings   asfainst   persons   suspected   of  concealing,   etc.,   of  estate, 

395.    414 
Widow  and  children  entitled  to  what,  320,  322 
GRANDCHILDREN  — 

Inheritance  of  property  by,  924 

See  Descent,  Construction  of  Wills. 
GRAVESTONES  — 

See   Tombstones. 
GUARDIANS  — 

Account,  when  may  be  opened.  1494 
Accounting,   1484 

appeal   from  settlement  of,    39 
appeal,   1495 

appeal  over  appointment  of  same,   1515 
barred  by  time,  1486 
compensation  how  determined,  1490 

Common  Pleas  to  settle  when  Probate  Judge  interested,  7 
deceased,  insane  or  incompetent,  executor,  administrator  or  giiard- 
ian  to  settle,    1499 
how    settlement    enforced,     1499 
duty  to,    1484 
exceptions,   1492 

further    time    to    file,    729 
effect  of  settlement,  1493 
each  is  final,  1494 
error,    1495 

entitled   to   what  credits,    1489 
enforcement  of  filing.    1362 
examination  under  oath  as  to,   733 
female  guardian  on  marriage  must  settle,  1356 
final,  what  is,   1494 

guardian    should   be   charged   with,    1488 
hearing,    1492 
how   opened   out,    1494 
how    finding    enforced,    1498,    1499 
intermediate  what  is,  1494 
idiot,  etc.,  guardian  of  must  settle,  when,  1513 

when  guardian  becomes  insane,  his  executor,  etc..  or  guardiar: 

to  settle,    1499 
when  executor,  etc.,  becomes  insane  or  incompetent,  his  exec- 
utor, etc.,  guardian  to  render  final  account,  when,  707 
jurisdiction  of  Probate  Court  over,  27 
notice,    1492 

notice,  none  required  to  non-resident,  37n 
notice  of  filing  to  be  published,  729 

costs  of,  729 
Probate  Judge  or  clerk  can  not  prepare  accounts,  7.  1491 
review  of,  1493 
record  of  to  be  kept  by  Probate  Court,  1594  G.  C. 

what  to  contain  and  when  to  be  made,  1594  G.  C. 
removed,  must  render  final,   1354 

review  of  settlement  for  fraud,  etc..  when  and  how.  1493 
settlement  with  succeeding  guardian.  1496 
settlement  with  ward,   1497 

settlement  by  executors  of  deceased  guardian,  1409,  1500 
what  included.   1494 
when  to  be  filed,  1485 
where  to  be  filed,  1485 


LNDEX  1953 

(Ret'erences  are  to  sections.) 

GUARDIANS  —  Continued. 

what  should  contain,  1487 

when  to  be  rendered,   1367 

when  estate  does  not  exceed  two  hundred  dollars,  1367 
Authority  dates  from   order  of  appointment,   13 
Attorney,    employment   of,    1402 
Arbitration,    1382 

may   compound,   etc.,    1382 

should  have  order  of  Court  in  doubtful  case,  1382 
Ancillary,    1314 
Application  for  appointment,  1324 

what  it  should  show,  1324 

form    of,     1325 
Action    and    defenses : 

Against  ward,  383,  1384 

Answer  of.    Code  C.  P.,  11326  Q.  C. 

Bond,  action  on.     Code  C.  P.,  11242,  11243  G.  C. 

Completion   of   real   contracts,   et   seq.,   523 

of   idiot,   etc.,    1398 
Direction   of   Court,    to   obtain,    33 
Foreign  guardian  may  recover  property  of  foreign  ward  by,  1480 

right  to  sue  in  this  State,  1481 
Infant,  when  action  to  be  brought  by,  1383 

defense  of  by   guardian   ad   litem.     Id.,    1384 

even   if  a  guardian,    1384 
Insane  person,  action  to  be  brought  by.      Id.,  1383 

who   may  bring  action,   1383 

defense  by.     Id.,   1384 
Lease  of   ward's   real   estate,    1434,    1527 
May  sue  without  joining  party  in  interest,  1383 
Sale  of  ward's  real  estate,   1410,  1522 
Where  action  against  may  be  brought,  11278  G.  C. 
Appeal :  ""^ 

Accounts,  as  to  settlement  of,  39 
Appointment  of,  39 
Bond   not  required,   when,  43 
Completion   of   real  contracts,  39 
Distribution,    from    order    of,    785 
From    appointment,    1342 
From    order    of    Court,    1495 
Road  cases,   1785 

bond  not  required,   when,   1787 
Proceedings   in  Common   Pleas,   51 
Sale    of    real    estate.    39 
Transcript,  when  to  be  filed,   49 
Appointment,    1319 
Appeal   as  to.   39 
Application   toi,   1323 

for  idiot,  lunatic,  etc.,  1501 

for   drunkard,    1535 
Jurisdiction  of  Probate  Court  as  to,  1319 
Not  to  be  unless  there  is  an  estate,  1320 
Not   to   be  of   person   if   father   is   capable,    1320 
Proceedings   is  in   rem,   1319 
When   minor   may   choose,    1327 

minor  can  not  select  one  of  person  and  another  of  estate  unless, 
etc.,   1327 

appointed  before  minor  had  right  to  select,  how  long  to  act,  1354 

when  minor  fails  to  select  suitable,  court  may  appoint,  1327 
When  necessary,    1320 
Who  ineligible  as.  1331 


1954  INDEX 

(References  are  to  sections.) 

GUARDIANS  —  Continued. 

Ward's  presence,  etc.,  1319 
Appropriation  of  property,  1397 

By    private    corporations,     1676 
By  municipal  corporations,  appeal  in.   1779 
Has  no  right  unless  under  order  of  Court    1397 
Bond: 

Action  must  be  within  10  years  from  time  Court  passes  on  account,  1353 
Action  on,  how  and  bv  whom  brought.     Code  of  Civil  Procedure,  12242 
G.  C. 

limitation  of  action.     Id.,  12226  G.  C. 
Additional  may  be  required,   1343 

before  sale  of  real  estate,   1422 

exceptions   to,    1343 

who  may  file,   1344 

from  guardian  of  idiot,  etc.,   1522 

from   foreign   guardian,    1481 

notice  and   form,    1346 
entry  ordering,  1346 

ordering  additional  bond.  1347 
Appeal  bond,  when  not  required.     Code  of  Civil  Procedure,  43 
Approval   of,   by  Court,   1323 

Exceptions  to,  how  and  by  whom  made  notice  of  filing,  1343 
Foreign  guardian,  on  sale  of  land  to  give,   1481 
Form   1334 

Finding  on  account  fixes   amount  of  sureties  liability,   1352 
Informality  or  illegality,  etc.,  not  to  render  void,  1337 
Joint  bond  when  wards  of  sale  parentage,   1338 

fees  in  such  case,  1338 
Mortgage  security  in  lieu  of  freehold  sureties  may  be  given,  1323 
No  authority  until  given,  1333 

Of  guardian  of  person  and  estate  or  estate  only,  1323 
Of  guardian  of  person  only,  1314 
Penalty  in,    1333 

Road  cases,  appeal  bond  required,  1827 
Responsibility  of  judge,   1333 
Sale  of  real  estate,  bond  for,    1422,   1522 
Sureties  must  be  freeholders,  1323,  1333 

release  of,  extent  of  liability,  1348 

application,  1349 

notice,  1350 

entry    ordering,    1351 
Testamentary   guardian   to   give,    1310 

when  not  required,    1310 
Wife  of  idiot,  etc.,  appointed  his  guardian,  to  give,  1512 
Who  may  sue  for  breach,   1352 

When  required  on  completion  of  real  contract  of  idiot,  etc.,  1398 
Compensation : 

For   services,    1490 

Failing  to  render  account  within  thirty  days  after  notification,  etc.,  to 

receive  none,  1367 
Of  executor,  etc.,  of  deceased  guardian  for  settlement,  1499 
Complete  contract  for  real  estate,  1398 
Contracts  between,  and  ward,   1399 

cannot  make,  valid.   1399 

always    viewed    with    suspicion,    1399 

guardian  must  show  otherwise,   1399 
Choice  of.   1327 

when    minor   mav   make.    1327 

how  made.   1328' 


INDEX  1955 

(References  are  to  sections.) 

GUARDIANS  —  Continued. 

cannot  choose  one  person  as  guardian  for  estate  and  another  for 

his-  person,   1328 
Court   need   not   appoint   unless   suitable,    1328 
once  exercised  cannot  again,    1328 
does  not  extend  to  testamentary,    1328 
where  made,   1328 
form    of,    1328 
parents,     1329 

dying    requests    of,    1329 
Courts,    1330 
duty  of,    1330 

must   act    before   allowed,    1490 
Custody  of  ward,  duties  as  to,   1369 
may    enforce    right,    1369 
may    apprentice    ward,    1370 
form   of   indenture,    1371 
form  of  judge's   certificate,   1371 
entry  of  approval,   1371 
Carrying    on    business    of    ward,    1379 

guardian  does  so  on  his  own  responsibility,  1379 
should  not  be  done  without  order  of  Court,  1379 
Conversion  of  real  estate  into  personalty  loses  its  ancestral  quality,  911, 

921 
Can  not  purchase  property  of,  1403 
Death : 

Executor   or   administrator   of  guardian   to   settle  account,    1499 
Distribution : 

Of  assets  in  kind,  power  as  to,  751 
Received  in,  liability,  1380 

Of  funds  from  proceeds  of  sale  of  ancestral  real  estate,  915,  921 
Duties,    etc..    Statutory : 

Of  guardian  of  person  and  estate,   1367 
account  to  render,  how  and  when,  1367 
effect  of  failure  to  render,   1367 
no  extra  fees  allowed,   1367 
education  of  ward,  to  attend  to,  when,    1367 
funds,  full  itemized  statement  of,  to  render,  1367 
insurance  of  buildings  on  which  money  loaned,  1367 
inventory  to  make  and  file,   how  and  when,   1367 
effect  of  failure  to   make,   etc.,    1367 
loan  or  invest  money  of  ward,  when  and  how,  1367 
effect  of  failure  to   loan,   etc.,   1367 
management  of  estate,  1367 
payment    of   debts,    1367 
prescribed  by  statute,    1367 
settlement  of  estate,  1367 
suits  to  attend  to,   1367 
Of  guardian  of  estate.  1316 
Of  guardian  of  person,  1313 
Definition,     1305 
Domicile,   what   is,    1322 

minor  cannot  change,  1322 
mother  cannot  when,  1322 
guardian    cannot,    1322 
at  death  of  parent  fixes,  1322 
Distinction  between  and  executor,  1361 
Debts,    collection    of,    1381 

guardian  must  collect  promptly,   1381 
if   not   acts   at   his    peril,    1381 
should    be    cash,    1381 


1956  .  INDEX 

(References  are  to  sections.) 

GUARDIANS  —  Continued. 
Debts,  of  ward,   1380 

cannot  pay  if  barred  by  statute,  1381 
guardian  must  pay,  1380 
when   Court  may  order,    1380 
promise  to  pay  not  within  statute  of  frauds    1380 
Deposit  of  fund,  1389 
Divorce  cannot   bring,    13S3 
Evidence : 

party  can  not  testify  when  adverse  party  is,  except,  11495  G.  C. 
when  assignee  or  vendee  of  guardian  is  "adverse  party,  11494  G.  C. 
Error  from  appointment,   1342 
Education,  duties  as  to,  1375 

according  to  ward's  estate,  1375 
must  be  proper,   1375 
Father    T^ii'-t    consent    when,    1312 
Foreign  guardian,   1475 

See  Foreign   Guardian. 
Has  no   right  to   convert  personalty   into   realty  or  realty   into   per- 
sonalty, 1386 
How  duties  enforced,  1362 
Inventory : 

form,    1368 

record  of,  when  to  be  made,  1594  G.  C. 

when  to  be  filed,   1368 

when  guardian  to  file  and  what  to  contain,  1367 

effect  of  failure  to  file,   1367 
what    should    contain,    1368 
Investment  of  funds,   1385 

duties  of  guardian  to   make,   1367,   1405,   1398 
effect   of   failure   to    make,    1367 
first  mortgage,  1385 

good   faith   and   diligence  required,   1385 
how    invested,    1385 

in  what  securities  to  be  made,    1367,   1398 
must  make  as  provided  by  law  or  at  his  own  peril,  1385 
testamentary,   follow   will,    1385 
United   States   bonds,    1385 
Investment  of  funds  in  lands,  1386 
application   for,    1386 
when   filed,    1385 
form    of,    1387 
entry  on,   1387 
application  to  sell  such  land,  1387 

entry  on,   1387 
how  made,   1386 

must  be  productive  real   estate,    1386 
Interest  on  funds,  1388 
rate    on,     1388 
when  charged  with,   1388 
when  guardian  uses  funds,   1388 
Kinds,    1305 
Letters  of.  1341 

form  of,  1341 
Lease  of  real  estate: 

Appointment  of  appraisers,  1439. 
Order   to   appraise,    1440 

Power  of  guardian  to  make  for  three  years,  1432 
When  guardian  may  make  for  fifteen  years,  1433 
application  for  such  lease,   1434 
essentials  of,   1435 
form  of,  1435 


INDEX  1957 

(References  are  to  sections.) 

GUAKDIANS  —  Continued. 

notice,   1437 

joint    application   for,    1438 

report  of  appraisers  as   to,    1438,    1440 

hearing  and  orders  thereon,  1441 

order  authorizing,    1442 

provisions    as    to    improvements,    1443 

extending  beyond  minority  to  determine,  unless,  etc.,  1445 

effect   of    death    of    ward,    1445 

effect  of  death  of  one  of  several,    1445 

lien  of  tenant  for  improvements,   1445 
Power  of  guardian  of  idiot,  etc.,  to  make,   1525 

when  such  lease  to  determine,  1525 

lien  of  tenant   for   improvements,   1525 

lease  for  three  years,  without  order  of  Court,   1526 

when  guardian  of  idiot,  etc.,  may  make  long  lease,   1526 

application   for,    1527 

proceedings  on  application,  1528 

report  of  appraisers  as  to,  1528 

when  guardian  to  give  bond,   1528 

hearing  and  orders,  1529 
Heport  of  guardian,   1444 
Termination  of,    1445 

Power  to  lease  real  estate  for  petroleum  oil  or  natural  gas  purposes, 
1452,  1446,  1447 

Court    to    prescribe    terms,    1450 

petition   therefor,    1453,    1448 
what  to  contain,   1448 

notice   of    hearing,    1454,    1449 

Court  to  prescribe  terms,  etc.,  1455 
Power  to  lease  real  estate  for  mining  purposes,  1456,  1451,  1452 

appraisement,    1454 

petition;    time   for   hearing,    1457,    1453 

land   to   be  viewed   by   disinterested   freeholders,    1458 

order  to,   1455 

Probate  Court  to  order  lease,  1447 

royalty;    report  of  by  guardian,  bond  to  recover,   1448,   1456 

report  of  guardian,   1456 

change  in  terms  of  lea.sing,  1448,  1457 

lands  owned  in  common  by  minor,   1449 

owned    in    common,     1458 
Liability : 

For  failure  to  invest  ward's  money,  1367 
For  failure  to  list  or  pay  taxes,   1392 
For    failure   to   file   inventory,    1367 
For  failure  to  render  account,   1367 

For  loss  of  money  deposited  in  bank,  when,   1385,  1389 
For  lease  of  ward's  premises  for  sale  of  liquors,   1378,  1432 
Of   married   woman,    guardian   of   idiot,   etc.,    1512 
Marriage : 

Of    female   guardian    determine    guardianship,    1356 
Of  female  ward  determines  guardianship  of  person  but  not  of  estate, 
1356 

consent  of  guardian  to  marriage  of,  necessary,  when,     27-2117 

before   license   issues   for,    1997 

or  before  marriage  solemnized  after  publication  of  bans,  1997 
May  bring  action  to  construe  trust,  34 
Minor,  who   is,   1321 

Money  on  iiands  at  final   settlement,    1388 
Mortgage   in  lieu   of   surety,    1335 

form  of,   1335 

/ 


1958  INDEX 

(References  are  to  sections.) 

GUARDIANS  —  Continued. 
Maintenance,   duties   as  to,    1373 

fixed   allowance  made  by  Court,    1377 
not  responsible   unless   he  contract  for   same,    1373 
not  limited  to  income,    1373 
no  rigid  rule  can  be  adopted,   1373 
cannot   desert   ward,    1373 
examples  of  amount  allowed,   1373 
Management  of  estate,  1378 

guardian  has  absolute  control,   1378 
liable  if  acts  result  injuriously,   1378 
must    act    honestly,    1378 
Management  of  real  estate,  1392 
has    full    control,    1392 

can  neither  sell  nor  release  except  as  provided  by  statute,  1392 
must  list   for   taxation,    1392 
Mortgage  of   lands,    1459 

statute  must  be  followed,  1459 
where  action  brought,   1461 
when  may,  1461 
for   whom   may,    1462 
application,  when  filed,  1463 
what  should  contain.  1464 
essentials  of,  1465 
form  of,  1466 
proceedings   upon   filing  petition.    1467 
viewers    when    appointed.    14G8 
amount  to  be  borrowed.   HdO 
report  of  rate,  etc.,  1470 
order  to  guardian,  1471 
confirmation   of  report,    1472 

entry,  1473 
report  of  execution  of  mortgage,   1474 
mortgage,   form  of,   1474a 
Natural,    1306 

only  exists  as  to  person,   1306 
when  recognized,  1306 
when  mother  is,  1306 
Notice   to   parties,    1326 

not  essential   unless  statute  requires,   1326 
parent  must  have.    1326 
Non-resident    guardian    and    ward : 

Application  for  sale  of  real  estate  by,  where  to  be  made,  1491 
Property  in  this  State  may  be  recovered  by,   1480 
Provisions  as  to  resident  guardian  apply  to,  1481 
Rights    of,    in   this    State.    1480,    1481 
Sale    of   land    of   non-resident   ward.    1481 
Security,   additional,   may  be  required   of.    1481 
Of    estate : 

Appointment  of,  1311 

Chosen   by   minor.    1327 

Executor   or  administrator   can   not  be.    1331 

Power  to  sell  ward's  lands,  1405 

to  lease  ward's  lands,   1432,   1433 
Statutory  duties,  1316 
Of  person: 

Appointment,    1311 

Bond,    1314 

Chosen  by  minor.   1327 

Executor  or  administrator  may  be,    1331 


INDEX  1959 

(References  are  to  sections.) 

GUARDIANS  —  Continued. 
Statutory  duties,    1313 
Of  persop   and  estate: 
Appointment,  1311 

Executor  or  administrator  can  not  be,   1331 
Power    to   sell    ward's    lands,    1405 

to   lease  ward's   lands,    1432,    1433 
Statutory'  duties,  1367 
Order  of  appointment,    1339 

cannot  be  impeached  collaterally,  1339 
form  of  entry,   1340 
should   show   jurisdiction,    1340 
should  show  parents'  consent  or  notice.  1340 
Oath: 

Of  guardian  of  person  and  estate  or  either,  1367,  1314 
to    accounts,    1367 
examination  under,  as  to,  733 
to  inventory,   1367 
to  statement  of  ward's  estate,  1323 
to  petition  for  leave  to  sell  real  estate,   1413 
who  may  administer,    1336 
Of  freeholders,  on  report  as  to  lease  of  ward's  estate,    1438 
Occupying  claimant: 

In  proceedings  as  to,  §  11915  G.  C. 

Rights  of,  holding  under-  sale  and  conveyance  made  by,  11908  G.  C. 
Partition: 

May  assign  dower,    1396 
Power  of,  to  act  for  ward  in,   1383,   1396 
Person   under,   may  make  will,    1024 
Power   of   Court   over,    1363 

guardian's   discretion,   1363 
should  not  be  exercised  when,  1363 
Procedure  when  Court  directs  manner  of  executing  trust,  1364 
application,   1365 
entry,  1364 

form   of   citation,    1364 
Power   over   person   and   estate,    1366 

Parent,  when  may  receive  compensation   for  maintenance,   1374 
father   ordinarily   not,    1374 

exceptions   where   child's   estate  abundant,    1374 
mother   usually   allowed,    1374 
Personalty  received  from  ancestor  of  ward,  1390 
S3ust  be  approved  by  guardian,    1390 
if   not  must  convert  into  money,    1390 
Residence,  how  determined,   1322 
Rosident  of   county,    1322 
Responsible  when,   1361 
Rights  of  parents,    1366 
Rights  to  services  of  ward,  1372 

when   lives   in   family,    1372 
when  makes  earnings  elsewhere,   1371 
Religious  instruction.  1376 

should  be  that  which  accords  with  ward's  relations  and   friends 
1376 
Rents,    1393 

guardian  should  collect,   1393 
Repairs,   1443,   1394 

should    make   ordinary,    1394 
extensive  not  without  order  of  Court,   1394 
Rights   of  action   against  ward,   1401 


1960  INDEX 

(References  are  to  sections.) 

GUARDIANS  —  Continued. 
Removal : 

See   Removal    of    Guardian. 
Causes  for,   1358 

same  as  trustee,  1360 

religious    teachings,    1360 

attempt    to    alienate    from    parent,    1360 

improper    education,    1360 
Failure  to  give  new  bond,  for,  1348 
How  long  powers  shall  continue,  1354 
Inventory,  may  be  removed  for  failure  to  file,   1367 
Jurisdiction  of  Probate  Court  over,  27,   1359 
Marriage  of   female  guardian,   effect,    1356 

of   female  ward,   effect,    1356 
Notice  to  guardian,  1358,  1477 
Procedure    for,    1359 
Removal  from   State  of  guardian,    1358 

of  ward  and  appointment  of  foreign  guardian,  1476 

removes  resident  guardian,  when,   1477 

notice  to  guardian,  1477 

order   of  Court,   1479 
When   guardian    discharged,    1355 
Resignation : 

Court  may   accept   and   appoint   another,    1357 
Road  cases: 

Appeals    in,    1785,    1787 
Sale: 

Coal,   fire  clay,   etc.,    1522 
Sale  of  personal  property: 

Guardian  has  full  power,   1391 
No    order   necessary,    1391 
Not  usual  to  sell  family  pictures,   1391 
Purchaser   not   bound   to   inquire,    1391 
When  may  be  made,    1405 
Sele  of  real  estate: 

Appraisers,   appointment  of,    1418 

oath    of,    1421 
Appraised  value,  not  to  be  sold  at  less  than  two-thirds  of,  1425 
Appeal,    1431 
Bond  to  be  given  before,  1422 

Court  can  not  waive  giving,   1422 

form  of,    1423 

giving  is  jurisdictional,   1422,    1424 
Confirmation  of,  and  deed,  1429 
Court  must  look  after  interests  of  ward,  1417 
Consent  to  sale  by  executor,  etc..  may  be  signed  by  legal  guardian,  838 

but  not  by  guardian  of  person,   838 
Deed,    form    of,    1430 
Error,   1431 
Foreign  guardian  of  foreign  ward   may  make,   1481 

additional   security  may  be  required  of.   1481 

when  land  situated  in  more  than  one  county,    1481 
GuardiaK.  ad  litem,  when  should  be  appointed,  1417 
power  to  appeal  cas^,  844 
Hearing,    1418 

Insane   person   of,    1522 

sale  or  adjustment  of  dower,   1523 
Joint  application  for,   1405 
Jurisdiction  of  Probate  and  Common  Pleas,  28 
Liens,  Court  to  determine  priority  of,  814 
Nature  of  action,   1404 
Order   to   appraise,    1420 


INDEX  1961 

(References  are  to  sections.) 

GUARDIANS  —  Continued. 

Order  of  sale,  how  made,   1425 

form,   1426 
Petition  for,   1410 

essentials    of,    1411 

form   of,    1412 

notice  of  filing  and  hearing,   1413 
ordering  notice,   1414 
service   of   notice,    1415 
form  of  notice,    1416 

of  idiot,  etc.,    1522 

wife  of,  to  be  made  party,  1522 

answer  of,  consenting  to  sale,  effect,  1522 
Parties  to   action,    1408 

when  next  of  inheritance,  1408 

when   liens   on    property,    1408 
Private  sale,  when,   1425,   1428 

terms,   1425 

of  idiot,  etc.,  1522 
Proceedings  when  actions  determined  by  Probate  Court,  814 
Purchaser,  who  can  not  be,  492,  889 
Purposes  for  which  sale  may  be  had,  1405 

of  real   estate  of  idiot,   etc.,    1522 
Public  sale,    1427 
Release  and  satisfaction  of  liens  to   be  entered  of  record,   814 

fee  for  recorder,  814 
Remedy   of   purchaser   at  invalid   sale,   902 
Report  of,   1429 

Survey  of  into  town  lots,  may  be  made,  1410,  1418,  1425 
Terms    of,     1425 
Where  brought,   1406,    1407 
What  may  be  sold,  1409 
When  order  should  be  granted,   1419 
Service : 

Service  on  by  summons,  839 

by  publication,  when,  841 

in  appeals  in   road   cases,    1818 
Guardian  ad  litem  can  not  waive  notice  or  service  of,  in  action  for  sale 
of  real  estate  by  executor,  etc.,  844 
Settlement : 

By   executors   of   deceased,    1499,    1500 
Effect    of,    1493 
Review   of,    1493 
With   succeeding  guardian,   1496 
With  ward,   1496 
Sureties   on  guardian's   bond: 
Exceptions    to,     1343 

notice  of,   1343 
Liability,  limited  to  penalty  in  bond,  1353 

fixed  by  order  of  Probate  Court,  1353 

conditions  of  bond  control,   1353 

where  there  are  different  bonds,    1353 

on  bond  for  sale  of  real  estate,   1353 

when  receipt  of  ward  does  not  release,   1353 
Release   of,    1348 

notice  of  application,  1348 

extent  of  liability  of  original,   1348 
Statement  of  ward's  estate  to  be  filed,  1323 
Same  powers  as  trustee,  1361 
Termination  of  trust,   1355 


1962  INDEX 

(References  are  to  sections.) 

GUARDIANS  —  Continued. 

no  power  after,  1355 
Taxation   of   costs    of   account,    1494 
Taxes : 

May  release  ward's  tax  title,    1395 

tender  of  release,  its  effect  on  subsequent  costs,  27 
Must  list  and  pay  taxes  on  ward's  land,    1392 

compensation  for  money,  etc.,  advanced  to  pay,  1392 
Unreasonable  delay  in  collecting  and  paying  debts,  255 
Various  kinds,   1317 
Who  may  be,   1331 

administrator  or  executor  cannot,   1331 
Probate  Judge  cannot,  1331 
non-resident  of  State  cannot,   1331 
married  woman  can  be,  1331 
Who  should  not  be  appointed,   1332 

ought  to  possess  ability  of  ordinary  trustee,  1332 
ought  to  have  confidence  of  ward,  1332 
Ward's  right  of  action  against,  1400 
GUARDIANSHIP  — 

Appeal  from  removal,  1342 

Appointment  before  appeal  can  be  taken,  1342 
Circuit    Court    to    review   order,    1342 
GUARDIAN  AD  LITEM  — 
Appointment,  845 
Answer,  845 
Appropriation    of    property    by    municipal    corporation,    appointment 

of,  1756 
By  whom  appointed,  1384 
Cannot  enter  appearance  of  ward,  1384 
Defense  of  infant  must  be  made  by,  Id.,  1384 
Duties  and  compensation.  Id.,  845,  844 
Duty  as  to  appraisement  of  property,    1396 
In  sale  of  real  estate  by  guardian,  1417 

Need  not  be  appointed  in  action  for  sale  of  real  estate  by  executor,  etc., 
unless,  etc.j  844 
entry,  845 
Can  not  waive  notice  or  service  of  summons  in  such  action,  844,  843 

GUARDI.IN  OF  DRUNKARDS  — 
Appeal  from  order  appointing,  39 
Appointment  of  for,  when  and  how,  1535 
.  Duties,  rights  and  liabilities,  1535 

Guardian  of  drunkards  minor  children  unless,  etc.,  1535 
Incapacity  to  contract,  1538 

Law  relating  to  guardians  generally,  applicable,  1534 
Mortgage  of  real  estate  by  guardian,  1460-1472 
Notice  to  be  served  on  person  before  application,  1537 

sale  thereafter  void,  1537 
Procedure  to  appoint.  1536 
Procedure  to  terminate,  1541 

Sale,  gift  or  conveyance  after  service  of  notice  void,  1537 
Termination  of,  1540 
When  order  to  be  made,  1539 
When  to  be  appointed,  1535 

GUARDIANS  OF  LUNATICS,  ETC.— 
Application  for,  1504 
form  of,  1505 
entry  on,  1506 
notice,   1506 

form  of,  1507 
Appeal,  1515 
Accounting : 

See  Guardians. 
exceptions  to,.  1517 


INDEX  1968 

(References  are  to  sections.) 

GUARDIANS  OF  LUNATICS,  ETC.— Continued. 

how  opened  up,  1517 

settled,  1513 

when  and  how,  1499 
Action  by,  1521 

not  to  abate  by  termination  of  guardianship,   1521 
Answer  of,  845 

Appeal  from  order  appointing,  39 
Appointment  of,  when,   1501 

when  wife  to  be  appointed,  1512 

liability  and  sureties,  1512 
Court  having  jurisdiction,   1502 
Completion  of,  of  real  contract  of,  1398 

when  additional  bond  required,  1398 
Dower,  sale  of  insane  widow's^   1523 

procedure  in  assignment,   1525 

answer  of  wife  of  idiot,  etc.,  consenting  to  sale  of  contingent,  1522 
Defense  of,  by  guardian,  1384 
Duty  as  to  existing  contracts,  1519 

may  pay  attorney  of  ward,  1519 
Duties  of,  as  to  welfare,  1518 

not  limited  to  income,  1518 

fancied  enjoyments  allowed,   1518 

wards  should  be  kept  comfortable.  1518 
Entry  finding  person  incapacitated,  1510 
Effect  of  finding  of  disability,  1511 

right  to  marry,   1511 

right  to  make  will^  1511 

right  to  contract,  1511 
Error,  1515 
For  whom  made,  1503 

Foreign,  of  foreign  idiot,  etc.,  may  .'lell  property  in  this  state  when,  1483 
See  Foreign  Guardians. 

may  collect  money,  how,  1282 
Guardian  of  ward's  minor  children,  unless,  etc.,  1501 
Hearing,   1508 
Insolvency  of  estate^  1520 

suit  for  wardj   1521 
Imbecile  defined,  1501 
Improvement  of  real  estate,  1530,  1398 

proceedings,   1531 

may  unite  with  owners  of  adjacent  property,  1532 

guardian's  report,  1533 
Lunatic,  imbecile,  etc.,   1533 
Laws  of  ordinary  guardians  apply,  1516 
Lease  of  real  estate  of  ward,  when  and  how,  1525 

when  to  determine,  1525 

lease  for  three  years  without  order  of  Court,  1526 

lien  of  tenant  for  improvements,   1525 

when  long  lease  may  be  authorized,   1526 

application  for,  how  made,  1527 

what  petition  must  contain,  1527 

proceedings  on  petition.  1528 

report  of  appraisers,   1528 

final  order  on  hearing,  etc.,  1529 
Mortgage  of  real  estate  by  guardian,  1460 

petition  therefor,  1464 

proceedings  upon  filing  a  petition,  1467 

amount  to  be  borrowed,  1469 


1964  INDEX 

(References  are  to  sections.) 

GUARDIANS  OF  LUNATICS,  BTC. —  Continued. 

acceptance  and  confirmation  of  report  and  terms,  1472 
Notice  of  guardians  appointment,   1501 
Notice  of  filing  account  to  be  published,  729 
Nature  of  proceedings,   1508 
Partition,  power  to  act  for  wards  in,  1383 

of  foreign  guardian,  Id.,    12045  G.  C. 
Review  of  settlement,  when  and  by  whom,  1516 

notice  of  motion  for,  1516 
Removal,  1514 

Sale  of  lands  by  foreign,  1481,  1483 
Sale  of  dower  of  insane  widow,   1523 
Sale  of  real  estate  of  idiot,  etc.,  when,  1522 

petition  for,   1522 

terms  of  sale,  1522 

private  sale,  when,  1522 

wife  may  be  made  a  party,  1522 

effect  of  her  answer  consenting  to  sale.  1522 
Vouchers  signed  by  ward  not  allowed  on  settlement,  1516,  1517 

heretofore  signed  and  allowed  void,  1516 
When  order  should  be  made,  1509 
Who  should  be  appointed,  1512 

Ward,  minor  children  of  to  be  guardian  of  when,  1501 
Wife  to  be  appointed,  when,  1512 

bond  of  and  its  eflFect^  1512 

liabilities  of  sureties  of,  1512 
When  and  how  guardianship  shall  terminate,  1513 
Wrongful  death,  compromise  for,  1367.  1387 

H. 

HABEAS  CORPUS  — 

Answer  of  respondent,   1968 

form  of,  1968 
Adjournment  of  cause,  1969 
Appeal,  1975 
A  statutory  right,  1951 
Application,  who  may  make,  1954 

requisites  of,  1955,   1962 

form  of,  1956 

what  should  be  stated  in,  1956 
Cannot  be  used  to  review  or  revise  error,  1953 
Definition,   1951 
Entry  discharging,  1972 
Entry  remanding  prisoner,  1973 
Error,  1975 
Essentially  civil,    1951 
Entry  ordering  writ,  1959 
Form  of,  when  not  in  custody  of  officer,  1963 
Form  of,  when  in  custody  of  officer,  1964 
How  prisoner  designated,  1961 
How  servedj   1965 
Hearing,  1971 

Is  a  special  proceeding,  1951 
Jury,  not  entitled  to.  1971 
Jurisdiction  of  Probate  Court.  1952,  28 
Return  of  writ,  1966 

what  it  shall  contain^  1968 

form  of,   1968 
Second  application,  1974 


INDEX 


(References  are  to  sections.) 


1965 


HABEAS  CORPUS  —  Continued. 

Should  be  brought  where  defendant  is,  1952 

Venue,  1952 

Who  entitled  to,  1953 

When  must  be  granted,  1958 

Who  may  issue,  1960 

When  prisoner  discharged,  1970 
HABITUAL— 

Drunkenness,  220 

Habitation,  74 
HEIR— 

See  Devisee  —  Distribution  —  Legatee. 
Adopted,  right  of,  1888,  1898 
Advancements  made  to,  928,  934 
Allowance  to  widow,  may  ask  review  of,  333 
Appraisement,  must  be  notified  of,  288 

may  be  present  at,  292 
Claim  against  estate,  may  require  executor,  etc.,  to  reject,  561 

must  file  bond  in  such  case,  561 

may  give  bond  to  creditor  to  prevent  payment  of  claim  not  due  in 
two  years,  571 
Contribution  to  pay  claims  after  settlement,  587,  588,  593 

See  Contribution, 
Concealing  assets,  etc.,  of  estate,  may  complain  against  person,  395 
Completion  of  real  contracts,  parties  in  action  for,  523 

may  have  an  action  for,  532 
Contest  of  will,  parties  to,      12080  G.  C. 
Contribution  by,  to  pay  claims,  etc.     See  Contribution,  Devisee,  1064, 

1210,  587,  593 
Creditors,  proceedings  by,  against,  585,  593.  590 

of   subrogated  to   right,  etc.,   751) 

attachment,  759 
Debt  of  to  estate  may  be  taken  out  of  share  of,  760 

statute  of  limitation  as  to,  760 
Debt  due  from  is  in  asset,  392 

Descent  and  distribution,  order  of.     See  Descent  and  Distribution,  915 
Disinheritance  of   1181,   1202 
Designation  of  heir  at  law,  1902 

See  Designating  Heir  at  Law. 
Desperate  claims  may  be  filed  in  Court  for  the  benefit  of,  456 
Distribution,  may  compel  payment  of  order  of,  761 
Dower,  assignment  of  by,  951 
See  Dower. 

minor  not  to  be  prejudiced  by,  957 
Entitled  to  possession  of  real  estate,  799 
Estate  of  liable,  after  death,  589 
Foreign  executor,  rights  of  as  to,  190 

Guardian's  sale  of  real  estate,  parties  to  proceedings,  1522 
How  construed,  1196 

Inherits  property,  if  will  not  probated,  when,  1084 
Inventory,  may  compel  filing  of,  303 
Insolvency  of  not  to  affect  others,  591 
Liability  of,  for  claims  against  estate,  587,  585 
Provision  against  contesting  will.  1203 
Parties  to  action  for  sale  of  land,  833 

on  administration  bond,  261 

on  rejected  claim,  561 

to  complete  real  contract,  523 

to  contest  will,  12080  G.  C. 
Requisition  to  reject  claim,  561-568 
Revivor  of  action  bv  and  against,  when.     Id.,   11407-11409  G.  C. 

of  judgment,  11649  G.  C. 
Restraint  of  alienation,  1204 


1966  INDEX 

(References  are  to  sections.) 

HEIR — Continued. 

Sale  of  real  estate,  parties  to  action  for,  833 

may  sell  interest  in  subject  to  debts,  749,  847 

title  of,  to  land  be  sold,  850 
Transfer  of  real  estate  to.  1111a 
Unknown,  proceedin«rs  against  C.  C.  P.,  11298  G.  C. 

service  by  publication.    Id.,  11298  G.  C. 
When  party  may  testify,  when  adverse  party  claims  as.     Id..    1149.5 

G.C. 
When  Probate  judge  interested  as,  effect,  9 
HEIRS,  LEGATEES,  DEVISEES  AND  DISTRIBUTEES  — 

Account,  foreign  executor,  etc.,  may  be  compelled  to,  at  suit  of,  190 
Action  by  to  enforce  order  of  distribution,  761,  779 

to  enforce  contribution,  593 

on  administration  bond  to  recover  share,  etc.,  265 

for  maladministration,  269 

to  review  widow's  allowance,  333 

asking  direction  of  Court  respecting  estate,  when,  33 
Action  against  by  creditors  after  settlement,  585 
See  Attachment. 

contribution  to  be  made,  how,  587 

creditors  to  proceed  against  all  in  one  action,  590 

estate  liable  after  death,  589 

heirs  to  indemnify  one  another  in  what  cases,  593 

jury  may  be  called,  when,  590 

liability,  in  case  of  insolvency  of  heir,  etc.,  591 

limitation  of  liability  under  will,  587 

limitation  of  bringing  action,  587 

new   parties   may   be   made,   592 
Action  against  by  executor,  etc.,  asking  direction  of  Court  respecting 

estate,  33 
Appeal  in  action  to  enforce  order  of  distribution,  785 
Appraisement,  notice  to  be  served  on,  at  taking  of,  299 
Bond  to  secure  claim  rejected  at  instance  of  heir,  561 

to  executor,  etc.,  for  payment  of  legacy,  etc.,  within  two  years,  696 

to  prevent  sale  of  land,  826 

to  creditor  for  payment  of  claims  not  due  in  two  years,  571 

refunding,  to  foreign  executor  when  suits  pending,  etc.,  190 

indemnifying,  when  distributees  to  give  to  executor,  etc.,  751 
Contribution  may  be  required  of,  when  and  how,  1207,  1213 
Contribution  to  raise  portion  for  absent  or  posthumous  child,  1064 

portion  of  child,  when  subject  to,  1210 

when  devised  or  bequeathed  property  taken  to  pay  debts,  1207 

when  any  liable  are  insolvent,  1211 

in  action  by  creditors  to  pay  claims  after  settlement  of  estate,  587 

heirs,  etc.,  liable  to  contribution  among  themselves,  593 

action  to  enforce.  593 
Desperate  claims  may  be  sold  or  filed  in  court  for  benefit  of,  etc.,  456 
Debt  against,  79Sa. 
Foreign  executor,  etc.,  may  be  compelled  to  account  at  suit,  190 

refunding  bond  to,  190 
Inventory,  may  attend  at  making  of,  292 

notice  of  taking  to  Le  served  on,  288 
Parties  in  action  for  sale  of  land,  833 

on  administration  bond^  261 
Proceedings  by  against  persons  suspected  of  concealing  assets  of  estate. 

395,  414 
Property  specifically  bequeathed  delivery  of  to,  474 
Sale  of  land,  parties  in  action  for,  833 

may  give  bond  to  prevent,  when,  826 

interest  of  in  premises  set  off  to  widow  may  be  sold,  when,  850 


INDEX  1967 

(References  are  to  sections.) 

HEIRS,  LEGATEES,  DEVISEES   AND   DISTRIBUTEES— Continued. 

When  party  can  testify  when  adverse  party  claims  or  defends  as.    Codn 
of  Civil  Procedure,  11495  G.  C. 

heirlooms- 
No  right  in  equity  to  recover,  397 
HOME  OF  THE  FRIENDLESS— 

Commitment  of  girls  to,  515 
HOMESTEAD— 

See  Sale  of  Real  Estate,  Exemptions. 
Assignment  of,  who  entitled  to,  etc.,  1598,  868,  867 
on  sale  of  land  by  executor,  857 
by  assignee  of  insolvent  debtor,   1598,  1618 
Property  assigned  subject  to,   1549 
Five  hundred  dollars  in  lieu  of, 1600 
application  for,  1600 
HOSPITAL— 

Admission  to  of  epileptics,  10498  G.  C. 
HUSBAND  AND  WIFE— 

See  Wife. 
Husband : 

Not  relation  of  wife,  wlien,   1104 

Action  for  wrongful  death  brought  for  benefit  of,  536 

Adoption  of  children  by,  1888,  1898 

Assignment  for  creditors,  election  to  be  endowed   out  of   proceeds  of 

sale,  1600 
Dower   of.     See  Dower,   944 

in  ward's  real  estate,  provisions  as  to,  on  sale  of.  by  guardian.  1413 
When  they  inherit  from  each  other.     See  Descent,  915,  918,  921,  938 
When  entitled  to  letters  of  administration,  114,  120. 
See  Letters  of  Administration. 

I. 
IDIOT  — 

See  Insane  Person. 
Action  of,  by  guardian,  1521 

See  Guardian  of  Lunatic,  etc. 
Appeal  —  see  Appeal,  Guardian. 
Appropriation  of  property  of,  1677 
Can  not  make  will,  1022',  1020 
Contracts,  completion  of  real  estate,  1398 
Dower  of,  power  of  guardian  to  sell,  1523 
Foreign  guardian  may  dispose  of  effects  of,  1483 
Guardian  appointed  for,  1501 

powers  and  duties,  1516 

power  of  to  borrow  money  and  mortgage  real  estate,  1460-1472 

wife  of,  may  be,  1612 
Improvement  of  real  estate,  1530-1533 
Inquest  as  to,  1999 
Lease  of  real  estate,  1525,  1529 
Sale  of  real  estate,  1522 
Trustee  of  non-resident,  powers  and  duties  of,  1274 

ILLEGITIMATE  CHILD- 
See  Bastard. 

ILLITERACY  — 

How  affecting  qualification  of  executors,  79.   115 
No  ground  for  removal,  222,  226 

IMBECILE  — 

Idiot.     See  Guardian,  1501,   1513 
Defined,  1501 

Improvement  of  real  estate,  1530-1533 
Power  to  make  will,  1022 


1968  i^^^ 

(References  are  to  sections.) 

IMPRISONMENT  — 

See  Contempt. 
Of  person  refusing  to  produce  will,  1079 
Of  person  suspected  of  concealing  assets,  etc.,  of  estate,  402 
IMPROVEMENTS  — 

Executor   cannot   nial<e   permanent,   506 
Lease  of  ward's  lands  to  secure,  1433,  1525 
Lien  to  tenant  for,  1447 
Of  real  estate  of  imbecile,  1530-1533 
INALIENABLE  RIGHTS  — 

Power  to  make  will  is  not,  1017 
INCOME  — 

Alteration  and  repairs: 
To  be  used  before  principal,  1288 
What  is,  1290 
INCOMPETENCY  — 

Removal  of  executor  or  administrator  for,  213,  222 
of  guardian,  1358 
INCOMPETENT— See  Guardian. 
INCUMBRANCE  — 
See  Liens. 
Upon  real  or  personal  estate  no  revocation  of  devise,  1058 
Devisee  takes  subject  to,  1058 
Court  may  order  receipt  filed,  etc.,  798a. 
application,  7986. 
entry,  798c. 
notice,  798c. 

hearing  and  order,  798d. 
hearing  and  order,  798f/ 
receipt  ordered  recorded,   798a 
INCHOATE  DOWER  — 
What  it  is,  943 

inde:mnity  — 

Distributee  to  give  bond  of  to  executor,  etc.,  when,  751 
Executor,  etc.,  before  paying  legacy  may  require  bond  of,  696 
Surety  of  executor,  etc.,  wasting  estate  may  require  bond  of,  253 
of  foreign  executor,  etc.,  193 
INDEX  — 

Omitted  by  predecessor,  probate  Judge  must  make,  1586  G.  C. 
To  records  and  dockets  kept  by  Probate  Court,  1594  G.  C. 
INDORSEMENT— 

Of  allowance  or  rejection  of  claim  against  insolvent's  estate,   1628 
decedent's  estate,  609 

See  Presentation  of  Claims. 
On  will  deposited  with  Probate  Judge,  1068 
INDUSTRIAL  HOME— 

Commitment  of  girls  to,  2128 

See  Girl's  Industrial  Home. 
INDUSTRIAL  SCHOOL— 

Commitment  and  discharge  of  boys,  2128 
See  Boy's  Industrial  School. 
INFANT  — 

See  Child,  Guardian,  Heir,  Minor. 
Appropriation  of  property  of,  1677 
Action  of  by  guardian  or  next  friend,  1383 
Adoption  of,  and  change  of  name,  1888,  1898 
Answer,  what  guardian  of  to  deny  in,  1383,  1384 

See  Guardian  Ad  Litem.  " 
Cannot  make  will,  1020 
Contest  of  ^vill,  rights  as  to,  1112 
Defense  by  guardian  ad  litem,  1383,  1384 
Foreign  will,  rights  of,  as  to  record  of,  1133 


INDEX  1969 

(References  are  to  sections.) 

INYANT—Gontinucd. 

Guardian  of,  rights  and  duties,  etc.,   1319 

See  Guardian. 
Limitation  of  action  against  heir,  etc.,  after  settlement,  587 
Service  of  summons  on,  841 

When   incompetent  to  testify  under  ten  years  of  age.      Code  of  Civil 
Procedure,  11493  G.  C. 
INHERITANCE— 
Rules,  of,  915 
INHERITANCE  TAX— 

Administrators  and  executors,  duties.     See  Executor,  2041 

legacy  shall  be  retained,  2041 

payment  to  county  treasurer,  2041 
Accounts  kept  by  treasurer,  2210 
Actual  value,  court  shall  find,  2076 
Appeal  from  final  orders,  2091 

how  perfected,  2091 

what  is,  2092 

who  may,  2091 
Application  to  transfer  stock,  2099 
Application  to  transfer  assets,  2101 
Application  to  release  securities,  2102 
Auditor  reports  to  Probate  Court,  2075 
Auditor  may  examine  deposits,  2095 
Auditor  appoints  deputies,  2204 
Appraisement  of  property,  2058 
Bank  deposits,  situs  of,  2030 

delivery  of,  2100 
Bank  corporation  liable,  when,  2096 
Beneficiary  liable  to  tax,  2040 
Bonds,  situs  of,  2030 
Brother,  subject  to  tax,  2031 
Burial  expenses,  exempt,  2029 
Charities  exempt,  2032 

wlmt  are,  2032 
Child  exemption  to,  2031 
City,  distribution  to,  2213 
Col'lection  of  tax,  2203 
Collateral,  2014 

Conditions  of  transfer,  tax,  2022 
Computation  of  tax,  2070 
Commission  of  executor  exempt,  2029 
Constitutionality,  2015 
Contemplation  of  death  defined,  2020 
Corporate  stock  situs,  2030 
Costs  of  administration  exempt,  2029 
Costs  of  legislation  exempt,  2029 
Corporation  not  to  transfer  securities,  2095 
Corporation  not  to  give  up  deposits,  2095 

liability,  2095 

may  give  notice,  2095 

transfer  of  stocks  of,  2098 
Court  to  determine  amount  on  legacy,  2041 
Courtesv — not  subject  to,  20(i4 
Decedent  defined,  2020 
Deductions  for  United  Stales  tax,  2028 
Deductions  for  general  tax,  2029 
Definition  of  terms.  2020 

estates,  2020 

property,  2020 

succession,  2020 

within  state.  2020 

decedent,  2020 

contemplation  (jf  death,  2020 
Delay  of  payment  of  tax,  2203 


1970  INDEX 

(References  are  to  sections.) 

INHERITANCE  TAX  —  Continued. 
Delivery  of  securities,  2100 
Deposits,  delivery  of,  2100 

Determination  of  value  of  limited  estate,  2066,  2067 
Diseotint  on  payment,  2043 
Distribution  of  tax,  2213 
Division  of  tax,  2212 
Dower  not  subject  to,  2064 
Duties  of  auditor,  2058,  2062 

Duties  of  Probate  Court,  2051,  2062,  2076,  2082,  2088,  2107 
Estate  defined,  2020 
Estates  held  in  abeyance,  2072 
Estates  for  life,  how  appraised,  2073 
Erroneous,  court  may  add,  2048 
Error  may  be  prosecuted,  2092 
Essentials  of  application  to  fix  tax,  2052 
Exceptions,  order  finding  value,  2080 

filing,  2083 

court  to  fix  time,  2080 

notice  of  time,  2086 

hearing,  2084 

entry,  2087 

order  of  hearing,  2085 
Executor,  above  commission,  subject  to,  2021 
See  Administrator. 

to  collect  tax,  2037 

to  retain,  2041 

to  apply  for  order  to  modify,  2071 

not  discharged  until  he  files  certified  receipt,  2094 
Exemptions,  proj^erty  subject  to,  2029 
See  General  Deductions. 

widows  allowance,  2025 

public  charities,  2032 
Father,  exemption  to,  2031,  2034 
Fees,  2211 

Filing  a  notice  of  application,  2053 
Final  order,  what  is,  2092 
Fixing  value  on  real  estate,  2064 
Fixing  value  on  personal  property,  2065 
Fixing  value  on  limited  estate,  2066,  2067 
Foreign  institutions  not  exempt,  2032 
Forms,  petition  to  remit  interest,  2045 

notice  of  application  to  remit,  2045 

order  remitting  interest,  2045 

application  to  fix  tax  generally,  2054 
on  administration.  2055 
on  non-resident,  2056 
small  estate,  2057 

order  to  appraise,  2060 

writ  to  appraise,  2061 

notice  of  hearing  before  auditor,  2063 

application  to  state  insurance  superintendent,  2068 

report  of  auditor,  2075 

entry  determining  tax,  2078 

notice  to  fix  tax,  20fi0 

order  exempting  from  tax,  2081 

exceptions,  2084 

order  for  hearing,  2085 

notice  of  hearing,  20S6 

entry,  finding,  etc.,  2087 

certifying  finding  to  auditor,  2089 

of  transfer   to  auditor,   2096 

application  to  transfer  stock,  2099 

application  to  transfer  assets,  2101 

application  to  release  assets,  2102 


INDEX  1971 

(References  are  to  sections.) 

INHERITANCE  TAX  —  Continued. 
General  deductions,  2029 

costs  of  administration,  2029 

attorney  fees,  2029 

burial  expense,  2029 

commission  of  executor,  2029 

costs  of  litigation,  2029 
General  rules  for  fixing  residence,  2023 
Good  will  asset,  2062 
Grant,  gift,  etc.,  2021 
Hearing,  unconstitutional  witliout,  2015 
Highest  rate  assessed,  2071,  2072 
Historical,  2014 

Husband,  exemption  of,  2031,  2032 
Husband  of  daughter,  exemption  of,  2031,  2032 
Increase,  subsequent,  2019 
Institutions  within  state,  exempt,  2032 
Interest,  future,  how  determined,  2066 
Interest  on  tax,  due,  2043 
^nterest,  petition  to  remit,  2045 
Jurisdiction  of  Probate  Court,  2050,  2051 
Land  contracts,  situs,  2030 
Law  takes  effect,  when,  2018 
Liability  of  executor,  2039 
Liability  of  beneficiary,  2039 
Liability  of  corporations  holding  deposits,  2095 
Lien  of 'tax,  2103 

Life  insurance,  not  subject  to,  2062 
Life  insurance,  when  subject  to,  2062 
Market  value,  to  determine,  2076 
Minor,  when  interested,  2076 
Monthly  reports  to  state  auditor,  2208 
Motion  to  modify  finding,  2090 
Mother,  exemption  of,  2031,  2034 
Mortgages,  situs  of,  2030 
Municipal  corporation,  share  of  tax,  2213 
Mutually  considered  child,  exempt,  2031,  2034 
Niece,  exemption  of,  2031,  2034 
Nephew,  exemption  of,  2031,  2034 
Non-resident,  general  rule,  2024 
Notice  of  application  to  remit  interest,  2046 

of  application  to  fix  tax,  2055 

of  hearing  before  auditor,  2063 

of  finding  of  tax,  etc.,  2076,  2077 

how  served,  2079 

that  tax  is  fixed,  2080 

of  time  of  hearing  exceptions,  2082 

of  transfer  of  deposits  to  auditor,  2096 

of  hearing  exceptions,  2086 
Object  and  purpose,  2017 
Origin  of  law,  2013 
Originates,  when,  2214,  2215 
Order.     See  Forms,  2045 
Order  to  appraise,  2061 

to  exempt  from  tax,  2080 

determining  tax,  2080 

hearing  exceptions,  2085 
Payment,  delay,  2103 

on  property  charged  with  legacy,  2042 

within  one  vear,  2043 

time  limit,  2044 


1972  INDEX 

(References  are  to  sections.) 

INHERITANCE  TAX— Continued. 
Personal  property,  situs  of,  2030 
property,  valuation  of,  2065 
liability  of  executor,  2040 
liability  of  beneficiaries,  2040 
Petition  to  remit  interest,  2045 
Power,  conveyance  by,  2021 
Powers  and  duties  of  Probate  Court,  2050 
Probate  Court,  jurisdiction,  2050,  2051 
motion  to  modify  judgment,  2091 
powers  and  duties,  2000,  2001 
to  final  tax,  2076 
to  certify  finding  to  auditor,  2088 
record,  to  keep,  2107 
Property  defined,  2020 
Property  tax,  tax  is.  2016 
Property  in  another  state,  2026 
Propertv  not  subject  to  tax,  2031 
wife,  2031 
child,  2031 
father,  2031 
mother,  2031 
husband,  2031 
adult  child,  2031 
adopted  child,  2031 
brother,  2031 
sister,  2031 
niece.  2031 
nephew,  2031 
wife  of  son,  2031 
widow  of  son,  2031 
husband  of  daughter,  2031 
mutual  relatives  of  child,  2031 
widows  year's  allowance,  2025 
Propertv  on  "which  tax  is  levied,  2021 
resident,  2021 
non-resident,  2021 
grant,  gift  ordered,  2021 
power,  etc.,  2021 
Property  not  delivered  until  tax  paid,  2037 
may  be  sold  for  tax,  2037 
charged  with  legacy,  2042 
subject  to  lien,  2102 
Proceedings  on  report  of  auditor,  2077 
Prosecuting  attorney,  represents  county,  2104 

duty   as   to  collection,  2104 
Public  charities  exempt,  2032 
Purpose  of  law,  2017 
Eates  of  taxation,  2035 
Real  estate  valuation,  2064 
Record  to  be  kept,  2107 
Receipt,  treasurer  to  give,  2094 
Refunder,  when  incumbrance,  2066 

over  payment,  2071 
Report  of  auditor  to  court.  2075 
charged  to  whom,  2113 
of  auditor  considered,  2077 
Reports  to  recorder,  2109 
Residence,  general  rule  fixing.  2023 
Resident  of  state,  who  is,  2023 
Right  to  tax  rests  on  property,  2016 
Schedule  of  rates,  2031 
of  exemptions,  2031 


INDEX  1973 

(References  are  to  sections.) 

INHERITANCE  TAX— Continued. 
Securities,  transfer  of,  2095 
Shares  of  stock,  transfer  of,  2095,  2097,  2098 
Situs  of  property,  2030 

land,  2030 

personal  property,  2030 

corporate  stocks,  2030 

bank  deposits,  2030 

tangible  personal  property,  2030 

mortgages,  2030 

bonds,  2030 
Sister,  exemptions,  2031,  2032 
Stock,  transfer  of,  2095 

delivery  of  custody,  2100 
Subsequent  increase,  2019 
Succession  defined,  2020 

•Superintendent  of  insurance  to  calculate  tax,  2066 
Survivorship,  tax  on,  2021 
Tax,  property  on  wliich  it  is  levied,  2021 

when  due  and  payable,  2037 

collection  of,  2102 

time  of  succession,  2037 

when  can  not  be  determined,  2037 

executor  to  collect,  2037 

property   not   delivered   until   paid,   2037 

property  may  be  sold,  2037 

time  of  payment,  2038 

certified  receipt  of  its  payment,  2094 

on  legacy,  retained,  2041 

to  whom  paid,  2043 

distribution,  2113 

computation,  2070 

division,  2112 

at  higher  rate,  2071 

dependent  upon  contingencies,  2071 

on  estates  in  abeyance,  2072 

where  deemed  to  originate,  2114,  2115 
Time  of  payment  of  tax,  2038 
Time  Timit  for  payment,  2044 
Tax  commission,  consent  to  transfer,  2095 

duty,  to  see  provisions  of  law  complied  with,  2106 

appoints  deputies,  2106 
Taxation,  rates,  2035 
Township,  distribution  to,  2113 
Transfer  of  securities,  etc.,  2095 

stocks,  etc.,  2098 

without  knowledge,  2097 
Treasurer  to  give  receipts,  2094 

to  keep  accounts,  2110 
United  States  deduction  of  tax  of,  etc.,  2028 
Valuation  of  future  limited  estate,  2066 

personal  property,  2065 

real  estate,  2064 
Widows,  year's  allowance  exempt,  2025 
Wife  of  son,  exemption  of,  2031,  2034 
Wife,  exemption  of,  2031,  2034 
Within  the  state  defined,  2020 
When  inheritance  is  foreign,  2032 

is  not  foreign,  2033 
When  law  takes  effect,  2018 
Year's  allowance  of  widow  exempt,  2025 

INJUNCTIONS— 

See  Appbopriation  of  Property. 


1974  INDEX 

(References  are  to  sections.) 

INJUNCTIONS  —  Continued. 

Power  of  Probate  Court  to  grant,,  25 

In  actions  in  Court  of  Common  Pleas,  25 

When  may  be  granted  by  Probate  Court,  25 

Granted  in  appropriation  proceedings,  1745 

Proceedings  in  aid  of  execution,  1944 
INJURY  — 

Action  for,  by  wrongful  death,  534,  536 
See  Wrongful  Death. 

INQUEST  — 

See  Asylum. 
Of  lunacy,  1999 
IN  REM  — 

See  Definitions,  543 
IN  PERSONAM— 

Defined,  543 
INSANE  ASYLUM— 

See  Asylum,  1999 
INSANE  PERSON— 

See  Idiot,  Guardians,  etc. 
Action  of,  1383 

Appropriation  of  property  of,  1677 
Can  not  make  will,  1018-1026 
Contest  of  will,  rights  as  to,  1112 
Defense  of,  1384 
Dower  of.     See  Dower. 
Election  to  take  dower,  or  under  will,  how  made  for  insane  or  imbecile 

widow,   1235 
Guardian  of,  1501,  1513 

See  Guardian  of  Lunatics. 
power  of,  to  borrow  money  or  mortgage  real  estate,   1460-1472 
Improvement  of  real  estate  of  imbecile,  1530-1533 
Incompetent  to  testify,  11493  G.  C. 
Inquest  as  to,  1999 
Lease  of  lands,  1525,  1529 

Limitation  of  action  by  and  against.     See  Disabilities. 
Sale  of  lands,  1522 

Trustee  of  non-resident,  powers  and  duties  of,  1274,  1300 
INSANE  DELUSION,  1022. 

INSOLVENT  ESTATES  SETTLED  BY  ADMINISTRATOR  — 
Application  for,  961 

form  of,  962 
Action  on  rejected  claim,  986 
Act  when  commissioners  not  appointed,  963 
Account,  when  and  how  compelled  to  render,  992 
Action  against  when  estate  represented  insolvent,  985 
Claims  to  be  presented,  970 
Confirmation  of  distribution,  980 
Commissioners  appointed  to  audit  claims,  993 
contingent  debts,  provisions  for,  982 
dividend  thereon  and  of  residue,  984 
when  they  become  absolute,  983 
Creditor  may  sue  estate  represented  insolvent,  when,  991 
are  barred  from  recovering  claim  when,  987 
payment  to  after  estate  represented  insolvent.  670 
previously  paid  not  liable  to  refund,  670 
Claims  not  presented  barred,  unless,  etc.,  987 
Costs  when  disallowed  claim  referred  or  litigated.  972 
Disputed  claim,  in  action  on.  may  prove  assets.  990 
Distribution  on  return  of  list  of  debts,  976 


INDEX  1975 

(References  are  to  sections.) 

INSOLVENT   ESTATES   SETTLED- BY   ADMINISTRATOR  —  aon^inwed. 
Exceptions  to  report,  981 

Exceptions  to  allowance  of  debts,  liearing  of,  976 
Extention  of  time,  968 

form  of,  968 

entry,  968 
Entitled  to  preference  for  a  demand,  etc.,  985 
Form  of  notice,  966 

How  divided  between  two  or  more  creditors,   989 
Judgment  on  disallowed  claim,  973 
Limitation  of  action  on  disallowed  claim,  971 
List  of  claims  to  be  filed,  967 
Liable  only  for  assets  in  his  hands,  988,  990 
Notice  to  creditors  after  insolvency  declared,  965 
Order  declaring,  964 
Order  of  distribution,  977 

entry,  977 
Presentation  and  proof  of  claims,  970 
Prepartion  of  report,  974 

hearing,  977 
Report  of  payment  of  dividends,  978 

form  of,  978 
Reference  of  disallowed  claim,  969 
Time  allowed  creditors  to  present  claims,  967 
When  not  to  be  declared,  959,  671 
When  to  be  declared,  960,  670 

When  claim  is  presented  and  rejected,  before  estate  is  represented  in- 
solvent,  985 
When   suit  is   brought   against,   of  estate   represented   insolvent   upon 

claim  disallowed,  985 
When  action  may  be  discontinued,  985 
When  demand  is  disputed,  how  action  may  be  tried,  985 
When  Court  to  make  further  order  of,  980 
When  creditor  may  sue  after  three  years,  991 
When  surplus  remains  after  paying  debts  allowed,  988 
INSOLVENT  ESTATE  SETTLED  BY  COMMISSIONER  — 
Appeal  from  decision  of,  1004,  1008 

procedure  on,   1005 

form  of  bond,  1006 

form  of  notice,  1006 

report  to  Probate  Judge,  1007 
Appointed  to  audit  claims,  993 
Appeal  from  decision  on  disallowed  claim,  1004 
Allowance  of,  not  to  disturb  prior  distribution,  1010 
Bond  for,  by  creditor,  1004 
Bond  on  appeal,  1004 
Costs,   1004 

Compensation  of  commissioners,  1012 
Contingent  debts,  provisions  for.  982 
Creditor  may  appeal  from  decision  of,  1004 

may  sue  estate  represented  insolvent,  when,  991 

is  barred  from  recovering  claim,  when,  987 

payment  to  after  estate  represented  insolvent,  670 
Duties  "of.  995 

Dividend  thereon,  and  of  residue,  984 
Distribution  after  commissioner's  return,  1011 
Examination  of  claimants  under  oath,  1000 
,       Eligibility  of  commissioners,  994 
Hearing  on  claim,  1002 


1976  INDEX 

(References  are  to  sections.) 

INSOLVENT  ESTATE   SETTLED  BY  COMMISSIONER  —  Conftnued. 
May  swear  claimants  and  witnesses,  1001 

May  reject  claim,  if  claimant  refuses  to  be  examined  under  oath.  1000 
Notice  of  meetingj  996 
Notice  of  appointment,  996 

form  of,  997 
Notice  by  executor,  etc.,  1004 
Omission  to  appeal,  how  remedied,   1008 
Oath  of,  994 

Presentation  of  claims,  999 
Reference  to,  994 
Report  of  to  Court,  998,  1003 

Time  allowed  creditors  to  present  and  prove  claims,  998 
When  proceedings  to  be  instituted,  1008 
When  they  become  absolute,  983 
INSURANCE  — 
Fire,  379 

admr.  to  collect,  379 
Life,  380 

admr.  to  collect  when,  380 
devise  of,   1026. 
Mutual  benefit,  381 

not  an  asset,  381 
Executor  to  keep  property  insured,  517 
By  life  tenant,  1292 
INTENTION  — 

Governs  in  construction  of  will,  1182 
•  Essential  to  revocation  of  will,  1049 
INTESTATE  — 

Inheritance  of  estate  of,  915 
defined,  110,  907 
INTEREST— 

Dower   entitled   to,   950 

Discount  of,  of  debt  against  decedent's  estate  paid  before  due,  570,  571 
On  sale  of  land  by  executor,  etc.,  deferred  payments  to  bear,  879 
On  sale  of  land  by  guardian,  1425 
On  legacies,  694,  r)75 
On    annuities,    694 
On  widows  distributive  share,  756 
On  claims  paid,  672 
On  investments,  515 
On  release  of  ward's  tax  title,  1395 
Rate  of,  515 

Chargeable  to  admr.,  715 

When  executor,  etc.,  chargeable  with,  710,  515 
When  guardian  chargeable  with,  1367,  1388 
INTEREST  OF  PROBATE  JUDGE  — 
Duty  in  case  of,  9 

in  appropriation  proceedings,  1682 
INTERESTED  PERSON,  S4n,  1142 
INTOXICATION— 

As  to  making  will,  1022 
As  to  removal  of  administrator,  220 
INVENTORY  — 

See  Appraisement. 
Additional,  when  new  assets  discovered,  311 
return  of,  311 

judge  must  enforce,  282 
Administrator  de  bonis  non  need  not  file,  282.  281 
Allowance  to  widow  and  children,  324 
money  to  be  set  oflF  is  necessary,  325 
stated  in  separate  schedule,  324 


INDEX  1977 

(References  arc  to  sections.) 

INVENTORY  —  Continued. 

Appraisement  in  whose  presence  and  how  made,  292 

appraisers  must  sign,  300 

articles  to  be  included  in,  but  not  appraised,  320 
Appraisers,  284 

how  appointed,  284 

when  justice  may  appoint,  284 

fees,  301 
Bond,  notes,  and  other  securities  included  in,  296 
Condition  of  bond,  requirement  as  to,  83,  124 
Contents,  281 
Copy  to  be  retained  by  administrator,  etc.,  original  to  be  returned  to 

Court,  300 
Debts  and  accounts,  295 
Debts  of  executor  discharged  in  will,  391 

due  testator  from  executor  must  be  returned  in,  389 
Dead  body,  of  property  found  on,    2859  G.  C. 
Definition,  280 

Detailed  statement  required,  293 
Emblements  to  be  included  in,  369 
Exceptions  to,  312 

costs  of,  312 

examination  of  witnesses  under  oath,  312 

finding  to  be  entered  on  journal,  312 

form   of,   313 

entry  ordering  notice,  314 

notice,  315,  312 

hearing  and  order,  316,  312 

appeal,  317,  312 
Executor  and  administrator  together  with  appraisers  to  make,  287 
Entry  on,  308 

EflFect  of  revocation  of  letters,  309 
Effect  of  as  evidence,  318 

administrator  liable  for,  318 

administrator  may  show  actual  value,  318 

is  prima  facie  value,  318 
Executor  and  administrator,  inventory  by,  389,  281,  303,  391 

appraisement  included   in,  281 

compensation  of  Probate  Judge,  300 

monthly  statement  of  Probate  Court  to  county  auditor,  300 

neglect  or  refusal  to  return,  303 

priority  of  debt  for  taxes  or  penalty,  300 

retention    of   copy   and   return   of   original,    300 

removal  for  failure  to  return,  306 

signing  of,  300 

tax  inquisitors  no  allowance  for,  300 

taxation.   Probate  Court   to  send  statement  of  to  county  auditor 
for,  300 
Fees  of  appraisers,  301 
Guardian,  filed  by,  when  to  be,  1367  * 

removal  of,  for  failure  to  file,  1367 

return   of,  may  be  compelled,    1362 
Insolvent  debtors,  assignee  of,  what  inventory  to  contain,  1594 
Importance  of,  280 
Includes  appraisement,  280 
Include  what,  298 

all   a.ssets  of  estate,  298 

administrator's  own  indebtedness,  298 

leasehold  estate,  298 


,1978  INDEX 

(References  are  to  sections.) 

INVENTORY  —  Continued. 

property  not  in  possession,  298 

animals  feroe  natura,  298 
Limitation  of  time,  282 
Money  and  bank  bills,  how  inventoried,  297 
Notice  of  time  and  place  of  making,  when  and  to  whom  given,  287,  288 

of  hearing  exceptions,  312 
Notice  for,  289 

service  of,   289 

form  of,  289 
New  assets,  211 

Oath  of  appraisers  inserted  in  or  annexed  to,  290 
form   of,   291 

of  executor,  etc.,  as  to  contents,  302 

by   whom   administered,   302 

indorsed  upon  or  annexed  to  inventory,  302 
Omitted  when,  282 

Original  to  be  returned  to  Court  copy  retained  by  executor,  etc.,  300 
Partnership  estate,  420-431 
Probate  Judge  must  inforce,  282 
Real  estate,  299 

when  included,  299 
Return  of,  83,  124,  281 

how  enforced,  303 

application  for  citation,  304 

entry  and  writ  of  citation,  305 

removal  for  not,  306 

excuse  for  not,  307 

personalty  discovered  after,  311 

revocation  of  letters  on  failure  to  return,  ^06 
Residuary  legatee  need  not  return  when,   57,  281 
Separate' enumeration  of  each  item,  292 
Signed  by  appraisers,  300 
Special  administrator  must  return,   133 
Statement  in  lieu  of,  283 

form  of.  283 

entry,  283 
Taxation,  monthly  statement  of  Probate  Judge  to  county  auditor  for, 

300 
Value,  how  made,  294 

bond,  295 

debts  generally,  296 

bank  bills,  297 
When  should  be  made,  280,  281 

What  articles  shall  remain  in  possession  of  widow,  322 
When  will  directs  that  none  be  made,  Court  may  require,  470 
When  may  be  omitted,  282 
Who  may  attend,  292 
INVESTMENT  — 

See  Money  on  Deposit. 
By  guardian,  1385- 

in    land,    1386 
Court  may  order  same  paid  over,  when,  791 

See  Trustee. 
Executor  or  administrator  to  make  of  unclainuil   money,   786 

See   Assets. 
Guardian  to  make  certain,  for  ward,    1367 
Interest  on,  515 

when    chargeable   to    administrator,    515 
•    Securities,  in  what  executor,  guardian,  etc.,   may  make,  514 
Trustee,   when  liable,   512 


i 


INDEX  ig'^g 

(References  are  to  sections^) 

INVESTMENT  —  Continued. 

When   executor   to   make,    515 
application    for,    510 
INVESTMENT  OF  UNCLAIMED  MONEY  — 

Application  for,    787 

Entry  authorizing,  788 

Executors  may,  514 

How,  786 

How  paid  to   owner,   791 
application   for,    792 
entry    ordering,    793 

Ju'ii?:;  accountable  for  safe  keeping,  794 

Return  of,    789 

When  cannot  be,   790 
ISSUE— 

Defined,  1197 

J. 
JOINT  CONTRACT— 

Liability  of  estate  of  decedent  on,  624 
JOINTURE  — 

What   bars   dower,    951 

Effect  of  eviction  from,  953 
JOINT   OBLIGATION  — 

Estate  of  decedent,  624 
JOINT  OR  CO- ADMINISTRATION  — 

Definition,  201 

Division  of  commission,   207 
Court  may  divide,   207 
parties  may  agree,  207 

If  they  divide  the  work  each  will  be  liable  for  his  own  devastavit.  20S 

Joint  letters  not  to  bei  issued  when,  201 

Liability  on  bond,  202 

Listing  property  for  taxation,   205 

must  be   where  executor  resides,   205 
how  where  reside  in  different  place,  205 

May  act  independently  of  each   other,   201 

Notice   of    protest   to    one    sufficient,    203 

One  cannot   bind  other  in  judgment,  203 

'"ne  can  collect  all  assets  to  pay  debts,  203 

Remedies  against  each  other,  206 

Sale  of  real  estate  all  must  join,  203 

Separate,   joint  bonds,   202 

When  liable  for  acts  of  coadministrator,  202,  204 
passive  conduct  not   sufficient,    202 
JOINT  EXECUTORS  — 

Court  may  apportion  commission  between,  207 

Debt  wlien  cliargeablo  to,  390 
JOINT  WILLS  — 

Contract  to   make,    1170 

Definition,  1170 

Ohio  decisions,  1171 

Revocability,   1173 

When  admissible  to  probate,  1172 
JOURNAL  — 

To  be  kept  by  Probate  Court,  1594  G.  C. 

Approval    of    court    as    to    distribution    of    notes,    etc.,    to    be    entered 
on,  751 
JOURNAL  ENTRlES^See  Form.s. 
-JUDGE — See    1'kobate   Juuge. 


1980  INDEX 

(References  are  to  sections.) 

JUDGMENT  — See  Order. 

Adjusting  and  settling  various  matters  as  to  decedent's  estate,  261 

Appeal    from,    39 

Appropriation  of  lands  by  private  corporation,  confirming  verdict  in, 

1715a,    1726a 
Award  of  referees,   C97 
Collateral  attack,  3-90 
Claim   rejected  at  instance  of  heir  or  creditor  of  decedent,   561 

against   assignee   or   trustee,    1628 

disallowed  against  insolvent  estate,  how  rendered.  973,  985 

report  of  referees  as  to  disputed  claim,   602 
Concealing  or  embezzling  assets  of  estate,  against  persons  suspected  of, 
408 

lien    of,    408 
Distribution,  to  enforce  order  of,  774,  777 

lien  of,  774 

transcript,  when  to  be  filed  with  clerk  of  Common  Pleas,  413 

duty  of  prosecuting  attorney  if  judgment   rendered  in   favor  of 
State,  414 
Fraudulent  conveyances,  judgment  as   to   certain,    1580 
Guardian  must  obey,   what,    1367,    1313,    1362 
Insolvent,  apportioned  when  estate  is,  990 
Levees,    judgment    as    to,    2002 
Joint  contract,   liability   of  estate,  624 
Lien  of,  408,  413,  774 
Revivor,    627 

Road  cases,  appeals  in,  1797 

Vacation  of  modification  of,  11631  G.  C.  to  11043  Ci.  U. 
When  Court  can  modify,  6 

See  Terms  of  Court. 
JUDICIAL  ACT— 

Deputy  cannot  perform,  13 
Definition,  239 
Error  lies  from,  52 
When  acts  of  judge  are,  13 
JURISDICTION  OF  COM.MOX  PLEAS— 

See  Appeal  Common  Pleas. 
When  Probate  Judge  interested,  9,  1682 
JURISDICTION— 

Can  not  be  taken  away  by  Federal  Court,  55 

Appointment   of  executor,    72 

Appointment  of  administrator,   111 

Appointment    of   special   administrator,    131 

Appointment  of  administrator  de  bonis  nov.  155 

Appointment  of  ancillary  administrator,   171 

Arbitration   of  claims   in   favor  of  estate,   455 

Appointment  of  trustee,  1276 

Appointment  of  guardian,   1319,   1339 

Appellate    Court,    30 

Assignee's   sale   of   real   estate,    1620 

Appointment  of  guardian  for  lunatic,   1502 

Adoption  of  child,   1901 

Aid  of  execution,  1912 

Can    direct    administrator    to   carrv    out    contract,   27 

Cannot   direct   administrator    to    allow   claim,   27 

Constitutional    provision,    18 

Common  law  actions,  21 

may  hear  and  empanel  jury,  21 
Concurrent,  28 

.Contempt,  1976  ^       _^^     _.,      ___ 

Distribution    of    personal    property,    756,    781,     m 
Election  under  will.    1214 

to   set  aside.   1229 


INDEX  1981 1 

(References  are  to  sections.) 

JURISDICTION  —  Contmi^ed. 
Execution  of  trust,  1295 
Equitable,  20,  24 

when  has   such   power,   20 
Exclusive,  27 

Guardian's  sale  of  real  estate,  1406 
Guardians  generally,   1363,   1380 
Growth  of  in  Probate  Court,  24 
Habeas  corpus,  1952 

In  appropriation  proceedings,   1737,   1728,   1662 
In  appointment  of  assignees,   1544 
In  proceedings  for  embezzlement,  397 
In  management  of  trusts,   1253 
Indenture   of   wards,    1369 
Limited,   22,   3 

what  is*  meant  by  term,  22 
Qver   foreign   administrator,    187,    189 
Origin  of,    1 

Power  of  Court  to  appoint  trustee,   1253 
Probate  Court  has  common  law,  19 

Probate  Court  can  direct  administrator  to  receive  payment  of  claim,  27 
Probate  Court  cannot  direct  admdnistrator  to  purchase  monnnient.  27 
Probate   of   will,    1086 

contest  of,   113,    1086a 
Probate  Court  has  only  such  as  statute  gives,   19,  22 
Removal    of    administrators    and    executors,    208-209 
Removal  of  guardian,  1359 
Rejected   claim  in  assignments,    1638 
Suit   on   bonds,   261,    266,    269 
Sale  of  desperate  claim,   457 
Suit   against  heirs  for  unpaid  claims,   586 
Suit  on  rejected  claim,   610 
Sale  of  real  estate,  808,  813 

Same  rules  to  govern  as  Court  of  Common  Pleas,   32 
To  review  inferior  courts,   31 
To  review  widow's  tillowance,   335 
To  grant    injunctions,    25 
To  appoint   receivers,   26 
To  quiet  title,   23 
To  open  up  accounts,  745 
Tennination    of   trust,    1304 
To  set  aside  fraudulent   sales,    1584 
To  construe  a   will   or  trust,   33 

Common    Pleas    Court    has   jurisdiction,    33 

must  be  trust  before  Court  will  act,  34 

not  on   after   acquired   property,   34 

who    may    bring    action,    34 

for  payment  of  legacies,  34 

in  order  to  ascertain  title,  34 

by  guardian,    34 

for  year's  allowance,  34 

appealable,    34 
When    attaches   prior    to   any   other    Court,    29 
When   Probate   Judge  interested,   9,    1682 
JURY  — 

Administration  of  estates  on  bond  of  executor,  etc.,   277 

in    action    by    creditor    against    heirs,    etc.,    590 

in  action  for  damages  for  wrongful   death,  etc.,  536 

for    concealing    or    embezzling    assets,    408 
Appropriation  of  property  by  private  corporations,   1701 

challenges,    1704 

impaneling,    1703 

oath.  1706 

verdict.    1715a 


1982  INDEX 

(Referencfs  are  to  sections.) 

JURY — Con  tin  tied. 

view  of  premises,  1707 

by  municipal  corporations,   1758 

drawing  of,  1760 

verdict  of,  1763 

view  of  premises,  1762 
Ditch  appeals,  county,  1850 
See  Ditch  Appeals. 

view  of  premises,  1849 
Clerk's   certilicate,  409 
Concealed  assets,  409 
Drift,  removal  of,  2000 
Tees.     Code  Civil  Procedure,  §§  11203,  3008  G.  C. 

appropriation  of  property,  11089  G.  C. 

election  of  justice,  contest  of,  578  R.  S. 
In  sale  of  real  estate,  813 
Order  for,  409 
Power  to  empanel,  21 
Road  appeals.    See  Road  Appeals. 
Venire  for,  409 

JUSTICE  OF  THE  PEACE— 

Arbitration  of  claims  against  estate,  duties  as  to,  594,  597 

Claim  against  estate,  may  take  affidavit  of,  557 

Contest  of  election  of,  2012 

Decedent's  personal  property,  may  appoint  appraisers  for  when,  284, 
285 
form  of  certificate  of  appointment.  2S6 
oath  to  inventory  may  be  administered  by,  when,  302 
real  property,  may  appoint  appraisers  for,  when,  406 
certificate  of  appointment,  to  make,  etc.,  406 
oath  of  appraisers  may  be  administered  by,  862 

Insolvent  debtor's  property,  may   appoint  appraisers   for,   when,    1594 

Marriage: 

duties  of,  before  solemnizing,  2117  G.  C. 

JUVENILE  COURT— 

Absence  of  judges,  2151 

Additional  offense  each  day,  2199 

Adoption  procedure  for,  2231 

Affidavit,  2166 

Agents  of  institution,  2236 

Age  limitations,  2198 

Agreement  to  incorporate.  2231 

Aiding  or  abetting  delinquent,  2199 

Appearance  docket,  2159 

Appeal  and  error,  2229 

Appointment  of  probation  officer,  2220 

Association,  committed  to,  2194 

in  other  states,  2238 
Bail,  2225 

Benevolent  or  charitable  institution.  2187 
Binding  over  to  Common  Pleas.  2241 
Bond,  forfeit.  2227 
Bond,  recognizance.  2245 
Boys'  industrial  school,  etc.,  2187 
Child  under  age  taken  to  juvenile  court,  2215 

arrested,  in  police  court,  2216 

abusing,  penaltv,  2199 

commitment,  2187 


INDEX  1983 , 

(References  are  to  sections.). 


JUVENILE  COVRT— Continued. 
Child,  etc. — ^Continued. 

contract  for  care,  2235 

delinquent  defined,  2164 

deformed,  not  bronj^lit  into  state,  2230 

dependent  defined,  21(57 

failure  to  support,  2203 

penalty,  charged  with,  2242 

trial  of,  2187 
Citation,  2169 

after  hearing,  2212 

form,  2172 

warrant,  2170 

care,  parental  defined,  2164 

chapter  liberal  construction,  2247 

clerk  of  court,  duties,  2155 
Commitment,  2200 

aiding  delinquency,  2200 

child,  2200 

delinquent,  2200 

institution,  2200 

non-support,  2203 

on  continuance.  2211 

temporary,  2211 
Compensation  of  jiirors,  2185 
Condition  of  suspension  of  sentence,  2226 
Contempt  of  court,  2160 
Continuing  guardian,  2168 
Costs,  2185 
Courts  having  jurisdiction,  2151 

judge  of,  2150 
Definitions,  2155 

delinquency,  aiding,  etc.,  2199 

delinquent  child  defined,  2160 

delinquent,  institution  for,  2187 

dependent  child  defined,  2162 

designation  of  judge,  2152 
Detention  home: 

agents  of  specified  institutions,  duties,  2236 

association,  incorporation,  etc.,  2235 

association  of  other  states,  2239 

association,  report  of,  2237 

board  of  state  charities,  etc.,  2237 

boys'  industrial  home,  etc.,  2241 

construction  of  statute,  2247 

county  commissioners  may  establish,  2231 

expense  of,  2232 

felony,  child  charged  with,  2242 

girls'  industrial  home,  2241 

institution,  to,  2235 

matron,   2231 

penalty,  etc..  2242 

religious  belief,  2240 

tax  levy,  2232 

ward  when  child  becomes,  2233 
Drawing  jury,  2185 

Duty  and  ])ower  as  to  dependent  children.  2243 
Duties  and    powers  of  probation   officer,  2223 
Each  day  additional  offense,  2199,  2203 
Error  proceedings  in,  2228 


1984  INDEX 

(References  are  to  sections.  > 

JUVENILE  COURT— Continued. 

Evidence  when  may  not  be  used,  2230 
Expense,  detention  home,  2242 

pursuit,  capture,  etc.,  2218 
Failure  to  support  cliild,  2203 
Felony,  cliild  charged  with,  2242 
Finding  of  court  not  evidence,  2230 
Forfeit  of  Lond,  2227 
Fugitive  from  justice,  2169 
Forms: 

affidavit  for  publication,  2176 

appointment  probation  officer,  2222 

bond,  non-support,  2207 

citation,  2172 

complaint  for  child,  2168 

complaint  delinquency,  2180 

complaint  non-support,  etc.,  2204 

entry : 

arrest  at  hearing,  2213 

binding  over  to  court,  2244  ' 

citation,  order  for,  2176 

order  for  publication,  2179 

order  for  warrant,  2183 

placing  child,  2104 

plea  of  guiltv,  2201 

finding  guilty,  2202 

non-support,  2204 

workhouse,  2200 

notice  to  parents,  2173 

oath   probation  officer,  2221 

recognizance,  2245 

warrant,  2183 
Girl,  age  may  be  committed  to  industrial  school,  2198 
Girls'  industrial  home,  commitment  to,  2187 

dependent  not  committed  to,  2198 
Habeas  corpus,  when  writ  may  issue,  2159 
Hearing,  2186 
Historical,  2148 

Home,  private,  may  be  placed  in,  2187 
Hospital,  private,  may  be  placed  in,  2189 
Hospital,  public,  may  be  placed  in,  2188 
Industrial  schools,  how  construed,  2241 
Industrial  schools,  commitment  to,  2187 
Institutions,  2189 
Institutions  for  treatment,  2188 
Jail,  commitment  to,  2211 
Journal.     See  Forms  Entry. 

docket,  etc..  2155 
Jury,  that  may  demand,  2185 
Jury,  drawing,  2185 
Jurisdiction  of  court,  2156.  2244 

when  it  terminates,  2199 

non-support,  2159 
Justice  of  peace,  transfer.  2215 
Juvenile  court  defined,  2153 
Juvenile  judge  defined.  2150 
Judge,  how  designated.  2152 
Judge  to  request  report,  2237 


INDEX  1985 

(References  are  to  -eetlons. ) 

JUVENILE  COURT— Continued. 
Law,  liberally  construed,  2247 

Maintenance,  charged  to  parent,  

Matron,  qualifications  of,  2231 
Minors.     See  Child  Defined,  2164 

warrant  for,  2179 
Misdemeanors,  against  children,  2250 
Nature  of  court,  2147 
Neglect,  2213 
Non-support,  2203 
Notice  to  parents,  2169 
Notice  by  publication,  2175 
Ohio  state  reformatory,  commitment  to,  2187 
Parental  care  defined,  2168 

Parent  defined,  maintenance  charged  to,  2164 
Penalty  when  child  charged  with,  2242 
Permanent  commitment,  2233 
Physician's  certificate,  2189 
Police  court,  transfer  from,  2215 

Probation,  statute  relating  to  sentence  not  applicable,  1374  G.  C. 
Probation  officer: 

appointment,  2219 

compensation,  2219 

duties,  2223 

oath,  2222 

warrants,  etc.,  issued  to,  2217 

when  delinquent  child  to  custody  of,  2291 
Procedure  for  adoption,  2233 
Proper  parental  care,  2268 
Prosecuting  attorney's  duty,  2224 
Publication,  notice  by,  2175 
Recognizance,  form,  2245 
Religious  belief,  2240 

Reputable  citizen,  cliild  in  custody  of,  2187 
Residence  unknown,  2169 
Seal  of  court.  2154 

Separation  of  delinquent  and  dependent  children,  2231 
Sexes  separate,  2231 
Special  room  for  trial,  2185 
Suspension  of  sentence,  2226 
Temporary  commitment,  2233 
Training  school,  commitment  to,  2187,  2189 
Trial,  right  to  jury,  2185 

by  court,  2186 

special  room  for,  2185 
Warrant,  right  to  issue,  2160,  2214 
Who  may  file  complaint,  2166 
Workhouse,  sentence,  etc.,  2210 


L. 

LABOR  CLAIMS— 

In  settlement  of  estates,  647,  664 
Preference  in  assignments,  1649,  1650.  1651 

LABORERS— 

Wages  of,  a  preferred  claim  against   insolvent  debtor's  estate,  when, 
1647 
,  against  estate  of  decedent,  647 


1986  INDEX 

(References  are  to  s^PCtions. ) 

LAND — See  Real  Estate — Title — Descent — Wills. 
LANDLORD  AND  TENANT— -See  Liquor  Laws. 

Lien   of   tenant   for    improvements   made   under   lease   of   guardian    of 
minor,  idiot,  etc.,  1445,  1525 
LAPSED  LEGACY,   683 
LAST  SICKNESS— 

Order  of  payment,  652 
\Yhat  it  includes,  652 
Expenses  of,  a  preferred  claim,  647 
Expenses  incurred  in,  652 
LAST  ILLNESS  DEFINED,  652 
LAST  AS  APPLIED  TO  WILLS,  1139 
LEASE  —  • 

Duties  of  administrator,  373 
Guardian  of  minor  to  make,  1432,  1445 
See  Guardians. 

of  idiot,   1525,   1529 

for  petroleimi  oil  or  natural  gas  purposes,  1452 

for  mining  purposes,  1456 
Freehold,  what  is,  373 

Permanent  leasehold  estate  descend  same  as  fee  simple,  942 
Permanent  are  freeholds,  373 
Trustee  of  minor.  Idiot,  etc.,  may  make,  1278 
WTiere  deceased,  lessee,  assets,  373 
LEASEHOLD  — 

Descends  as  real  estate,   942 

dower  in,  949 
LEGACIES  — See  Legatee. 

AflFects   settlement  of  estates   how,   674 
Absolute,  680 
Adeemed.    685 

distinction  between  and  satisfaction,  685 
Annuities  in  nature  of,  692 

what  are,  692 
Abatement  of,  693 

order  of.   693 
Creditor  to,   688 

order  of  abatement.  688 
Collection  where  enforced,  674 
Conditional,  680 
Cumulative,  681 
Contingent,   679 
Demonstrative,  677 

defined,  677 
Dower  in  lieu  of,  687 

order  of  abatement^   687 
Debtor   to,    689 

is  assets,  689 
Discharge  of  debts  in  will  against  executor  construed  as,  391 

must  be  included  in  inventory,  391 
General,   676 

defined,   676 

gifts  of  stock,  678 
Income,  in   nature  of,  692 

what  are.   692 
Land,   charge  on,   690 
Life,  for,  691 
Lapsed,   683 

what  is, 


INDEX  II S7 

(References  are  to  sections.) 

LEGACIES  —  Continued. 
what  is,   683 
how   occurs,   683 
when  does  not,  683 
Payment  rules  as  to,  694 
■  when  should  be,  GiJo,  266 
administrator  may  require  bond,  696 

form  of,  700 
entry,  701 

sale  of  real  estate  for,   819 
Paid  within  two  years  requires  bond,  696 

sale  of  real  estate  to  pay,  819 
Repeated,   681 
Residuary,   682 

See   Residuary  Legatee. 
defined.  682 
Satisfied,   686 
Substituted,  681 
Stated  amount,  682 
Specific,   675 

what  is,  675 
gifts  of  stock,  678 
delivered  how,  474,   675 
abatement  of,   675 
Unpaid  not  subject  to  chattel  mortgage,  674 
Vested,    679 
Void,  684 

differs  from  lapsed,   684 
LEGAL  ADVERTISEMENT  — 

See  Sale  of  Real  Estate. 
See  Arsignme^n'ts. 
LEGAL   HEIRS   DEFLXED,    1196 
LEGAL  REPRESENTATIVES  —  See  Heirs,  etc.,  912 
LEGAL  SERVICES  — See  Attorney. 

LEGATEE  —  See  Legacies,  Devisee,  Residuary  Legates. 
Allowance  to  widow,  may  ask  review  of,  333 
Appraisement,  notice  to  'of,   288 

may  be  present  at,   292 
Bond,  to  give  for  payment  of  legacy,  when,  474,  696 
redelivery,   475 

when  may  bring  suit  on  bond  of  administrator,  etc.,  265 
when  Court  may  authorize   suit  on   bond   of  administrator,   ste.. 
by,  269 
Charged  by  will   with   payment  of  debt,   effect,   587 

takes  land  subject  to  charge,   1058 
Concealing  assets,   rights   against  persons,   395 

Contribution  by,  to  raise  portion  for  absent  child,  etc.,  1064,   1210 
to  pay  share  of  devisee  witnesses  to  will,  when,  1044 
to  pay  legacies,  etc.,  when  devised  property  taken  to  pay  debts, 

1207,   1212 
to  pay  claims  against  estate  after  settlement,  etc.     See  Contribu- 
tion, ?iQ1,  593 
Creditors  may  bring  action  against,  after  settlement,  when,  587 
Debt  due  from  is  an  asset,  392 
Death  of,  legacy  not  to  relapse,  when,  1194 
Distribution,   may  enforce  order  of,   761 
Foreign    executors,    etc.,    rights    as    to,    190,    193 
How  may  obtain   letjacy  by  action,  265 
How  may  obtain  legacy  within  two  years,  696 
Inventory,   may   compel    filing  of,   303 


1988  INDEX 

(References  are  to  sections.) 

LEGATEE  —  Continued. 

may  be  present  at  taking  of,  292 
Not  to  be  sold  unless  required  to  pay  debts,  474 
Notice  to,  of  hearing  of  executor's,  etc.,  claim  against  estate,  633 

of  making  inventory  and  appraisement  to  be  given  to.  288 
Party  to  contest  of  will,  C.  C.  P.,  12080  G.  C. 

in  action  on  administration  bond,  261 

in  action  for   sale  of  land,   833 
Personal  property  specifically  bequeathed  to  be  delivered,  when,  474 
Probate  Judge,  when  interested  as,  9 

Property   bequeathed,   takes  subject  to   encumbrance,    1058 
Residuary  defined,   1033 

See  Hesiduary   Legatee. 

bond  of  executor,  who  is,  57 

not  to  discharge  lien  on  real  estate  for  payment  of  debts,  except, 
60 

inventory,  when  not  required  to  return,   57,  281 

lien  of  decedent's  creditors,  land  passing  to,  is  subject  to,  60,  281 

takes   deceased   child's  share  of  real   estate,  when,    1194 
Bale  of  real  estate  to  pay  legacy  of,  819 
Sums   paid   to  may   be   recovered,   when,    159 
Testimony,  when  adverse  party  claims  as,  11495  G.  C. 
Witness  to  will,  eftect  of  beign,   1044 
LEGITIMACY— 

Of  persons  born  bastards,  how  effected.     See  Wills — Dkscext,  937 
LETTERS  OF  ADMINISTRATION.     See  Administrator  and  Execijtob. 
Application  for,  to  file  affidavit  and  give  bond,  114,  124 

when  and  where  made,   111 

form   of,    113 
Bond  must  be  given,  124 

form   of,    125 
County  in   which  granted,   72 
Court   should   not  appoint   non-resident,    116 
Creditor,   122 
Definition,  108 

Death  of  party  for  whom  application  is  made,   109 
Husband   or   widow   entitled   to,    120 

abandonment,  120 

adultery,    120 

ante-nuptial    agreement,    120 

living   apart,    120 
In    what   county   issued,    72 

Jurisdiction,    fifst  obtained  excludes  others.   72 
New,    when   tc   be   gi-anted,    306 
Not  to  issue  on  estate  of  a  life  convict,  109 
Not  to  issue  as  of  right  after  twenty  years.  04 

when  may  issue  after  twenty  years,  64 

notice  of  appointment  for,  64 
Not  to  issue  to  Probate  Judge,  9 
Non-resident  interested   in  business  here,  170 
No  presumption  of  will,  110 
Next  of  kin,  121 

who  are.,  121 
Order  for,   129 

form    of.    129 
Order  of  priority  among  tho«e  entitled,   117 
Residence  of  adininistrator,   116 
Renunciation,   waiver,   etc..    119 

may  be  conditional,   119 
Revocation  of,  306,  741,  992 


INDEX  1989 

(References  are  to  sections.) 

LETTERS    OF   ADMINISTRATION  —  Cona'wMed. 

by   discovery  of  will,    162 
To  whom  granted,   114 

when  in  case  of  will  probated  without  the  State,   169,  1132 

when  persons  entitled  to  are  incompetent  or  neglect  to  take  out, 
114 

To  special  administrator,   129 

administrator  with  the  will  annexed,   100,  93 

administrator  de  bonis  non,   152,  64 
To  such  person  as  the  Court  may  see  fit,  123 
When  in  same  degree,   118 
Who  entitled  to,  114 

Probate    Judge    is   not,   9 
Who  is  intestate,   110 
Who  may  be  appointed,   115 

evidently  unsuitable.    1 15 
Will  not  issue  of  right  after  twenty  years,   64 

may  issue,   on  petition,  etc.,   64 
LMTERS  OF  GUARDIANSHIP  — 

See  Guardians. 
LEITERS  OF  ASSIGNEE  — 

See  Assignee. 
LETTERS  OF  TRUSTEE  — 

See  Tbustee. 
LETTERS  TESTAMENTARY  — 
Application  for,   114 
Apprication   when  made,   71 
Application  for  appointment,  76 

must  state  jurisdictional  facts,   76 

oath    to,    77 

foim    of,    78 
Bond,   b3 

must  be  given,   83 

amount.   84 

form  of,  84 

when  need  not  be  given,  85 
County  in  which   granted,   72 
Definition  of  executor,  68 

Distinction   between  administrator   and   executor,   69 
Decedent  resident  or  inhabitant  of  county,    74 
Estate  to  be  administered,   75 

judgment  is,  75 

unliquidated  demand  is.  75 
How  granted  during  minority,  93 
In  what  county  granted,   72 
Issue  to  person  named  in  will,  when,  71 

on    estate   of   non-resident,    72 

under  will  probated  without  the  State,  1132,  169 
Jurisdiction,  first  obtained  excludes  all  others,   72 

exclusive  jurisdiction  to  grant  and  revoke,  27 
Not  to  issue  to  Probate  Judge,  9 
Order  of  appointment,  88 

form  of  letters,  87 

form  of  entrj',   89 

efl'ect  of,  90 

how  may  be  attacked,  91 
Power  prior  to  letters,   70 
Revocation   of,    306,    741,   992,   491,   213 
See  Resignation.  Removal,  etc. 


1990  INDEX 

(References  are  to  sections.) 

LETTERS  TESTAMENTARY  —  Continued. 
Renunciation  of  executor,  92 
Who  entitled  to,  71 

minor  must  attain  majority,  93 
Probate  Judge  not  entitled  to,  9 
when  to  issue  to  foreign  executor,  1124,  1132,  169 
What   Court  should  grant,    72 
Will  must  be  duly   probated,  73 
Who  may  be  appointed,  79 
named  in  the  will,  80 
legally   com.petent,   81 
residence  of  the  executor,  82 
LIABILITY  — 

Death   by   wrongful   act,   534,   536 
See  Wrongful  Death. 
Executors   and   administrators.     Inventory, 

See  Administrators  and  Executors. 
Guardians.     See   Guardians. 

Heirs,   devisees,    etc.,   to  contribution.     See  Contribution,    1064,    1207, 

1212,   587,   523 
Lease  of  premises  for  sale  of  liquors,  1378,  1432 
Person  refusing  to  produce  will,  1079 
Trustee  for  loss  of  money  deposited  in  bank,  512,  513 

See  Money  on  Deposit. 
Officer  neglecting  to  serve  or  return  process  or  pay  over  money,  2010 
See  Amercement. 
LICENSE  — 

Minister  of  the  Gospel,  of,  to  solemnize  marriage,  1997 

to  be  produced  to   Probate  Judge   of  county   in  which   marriage 
solemnized,  1997 
Parties  of  applying  for  marriage,   1997 
LIENS  — 
Administration  of  estates: 

Bond  of  residuary  legatee  does  not  discharge,  except,  60 
Concealing  assets,  of  judgment  against  persons,  408 
Debts,  on  undevised  real  estate   for  payment  of,   1206,   1209 

unaffected  by  provisions  as  to  payment  of,  666 
Distribution,  against  executor,  etc.,  to  enforce  order  of,  774 
Judgment  of,   774 

embezzling,  etc.,   estate,   408 
Mechanics,  rights  and  duties  of  executors,  etc.,  519 
On  personal  property  of  decedent  created  during  his  life  time,  order 

of  payment,   666 
Residuary  legatee,  bond  of  to  j)ay  debts  does  not  release,  60 
Sale  of  real  estate,  holders  of  parties  in  action  for,  833 
priorities  of,  adjusted  in  such  action.  814 
proceeds,  applied  to  satisfy,  order  of,  903 
Taxes,  of  executors,   etc.,  for  jayment  of,   1392 
Assignment  for   creditors : 

See  Assignments. 
Assignee  takes  subject  to,   1631 
Assignment  does  not  affect   priority  of.    1647 

judgment   can   not   attach    after   assignment,    1646 
Payment  of  by  order  bf  Probate  Court.    1618 
Sale   of   real   estate   free  from,    1602 

Title   requiring   decree  to   settle  action   for   sale   may   be  brought  in 
Common   Pleas,    1618 
Guardians,   etc. : 

See    Guardians. 


INDEX  1991 

(References  are  to  sections.) 

LIENS  — Continued. 

Lease  of  real  estate  to  discharge,    1433 

of  tenant  for   improvements,   1445.   1525 
Of  drvinkard,  after  notice  of  appointment  of  guardian  void,   1537 
Sale   of  real   estate  to   discharge,    1405 

petition   to  describe,    1410 
Sale  of  liquors  on  ward's  premises,  1432 
Taxes   paid,    of  guardian   for,    1392 

LIFE  — 

Expectation  of,   2142 

LIFE   ESTATE  — 

Devise  for  life,  limited  to  heirs,  how  construed.  1188 

With   power   of  disposal,   821,    1193 
construction   of  power,    1193 

Rule  in  Shelley's  case  abolished  as  to  wills,   1189 

Given  by  will  not  enlarged  to  fee  by  power  of  sale,  etc.,  1193,  821 

And   remainders   in  shares   of   stock,    692  • 

Wlicn  widow  may  dispose  of  property.  1193 
LIFE  TENANT  — 

Alteration  and  repairs  aflfects  how,   1291 

Gain  and  loss,  affects  how,  1290 

Insurance  of  property,    1292 

Principal  and  income  affect  show,  1288 

Special  assessments,   1292 

Taxes   of  property,    1292 

LIMITATION  OF  ACTIONS  — 
Administration  of  estates: 

Administrator  has  no  right  to  pay  when  barred,   608 

Administrator  cannot  waive,   614 

Action  against  heir,  617 

Action  against  administrator  de  bonis  non,  618-620 

Barred   if  not  sued   in   six  months,   609 

Barred   by   General    Statute,    608 

Bond  of  executor,  etc.,  267 

Creditors  by,  against  executors  and  administrators,  613 

cannot    acquire   superior    right,    612 

on  claims  accruing  after  two  years,  613 

when  administrator  maj'  be  sued,  613 

when  assets  received  after  two  years,   615 

new  assets,   616 

claim   must   ha\e  been   presented,   613 

on  claim  rejected  by  executor,  etc.,  609,  580,  610 

assets   received   after   two  years,   615 

of   insolvent   estate,   971 

at  instance  of  lieir  or  creditor,  561 

when  administrator,  etc.,  dies,  etc.,  and  new  one  appointed,  618 

against  administrator  de  bonis  non,  619 

when  former  administrator,  etc.,  has  not  given  notice  of  appoint- 
ment,   etc.,    620 

when  notice  of  appointment  is  not  given  within  proper  time,  and 
is  given  afterward,   548 

special  administrator,  limitation  of  action  when  appointed,   150 

time  within   which   brought,   611 

against  heirs,    devisees,   etc.,   after   settlement,    587 

where  brought,  610 

on    bond    of   executor,    etc.,    267 
Pifferent  j)rovisions,   607 
Executors,  etc.,  by.  for  death  by  negligence,  536,  535 

to  subject  land  fraudulently  conveyed.  822 


1992  INDEX 

(References  are  to  sections.) 

LIMITATION  OF  ACTIONS  —  Continued. 

Insolvent  estate,  failure  by  creditor  to  present  claims  a  bar  to  recov- 
ery, when,  987 
action  against,  when  barred,  971 

to  remedy  an  omission  to  appeal   from  decision  of  commissioners 
of  insolvent  estate,  1008 
Rejection  of  claim,  what  is,  560-610 
Will,  contest  of,   1112 
Assignment  for  creditors: 

On  claims  rejected  by  assignee  or  trustee,   1628 
Fraudulent  conveyance,   action  to  set  aside,   1581 
Guardian   and   ward: 

To   open   and  review   settlement   of  guardian,    1493 
of   guardian   of   limatic,    1516 

LIQUOR  LAWS  — 

Liability  under,  for  lease  of  premises  for  sale  of  liquors,  1432 

LIVING  PERSONS  — 

Administration  on  estates  of,   109 

LOANS  — 

Duty  of  guardian  to  make,  of  money  of  ward,   1367 
See   Investments. 
of  trustee  of  minor,  idiot,  etc.,   1286 

LOST  RECORDS  — 

ilow   restored.     See  Record,   12345  G.  C. 

LOST  stock- 
How  restored.    See  Recced,  12345  G.  C. 

LOST  stock- 
How  re-issued,  2131 

LOST  WILLS— 

Admission  to  probate,  1135 
See  Spoliated  Wills. 

lunatic — See  Insane  Person,  Guardian. 
Power  to  make  will,   1022 
Election  for  under  will,  1233 

M. 

MACHINERY,  365 

See  Fixtures. 
MAINTENANCE— 

Duty  of  guardian  of  person  to  furnish  ward,  when,   1313 
Sfee  Guardians. 
MALFE AS AN  CE— 

Proceedings  on  complaint  against  municipal  oiRcer  for,  2121 

manda:\ius— 

To  compel  judge  to  grant  Jiabcas  corpus,  1958 
MANSION  HOUSE— See  Widow. 

Rent  for,  372 

Right  of  widow  or  widower  to  remain  in  for  one  year,  944 

election  of  widow  to  take  under  will  does  not  bar  right,  1221 
MANURE— 

Personalty  when,  367 

Real  when,  367 
MARK— 

Testator's  signature  by,  1038 

Attesting  witness'  signature,  1041 
MARRIAGE— 

Certificate  of  to  be  transmitted  to  Probate  Court  for  record,  2117 
penalty  for  neglect  to  make  record,  2117 
for  neglect  to  return  certificate,  2117 

Condition  in  will   restraining,   1205 

Dissolution  of,  effect  on  legitimacy  of  issue,  937 

Does  not  revoke  will,  1061 


INDEX  1993 

(References  are  to  s.^tions. ) 

MAHmAGE— Continued. 

Disability  of  guardianship,  1511 

Effect  on  previously  born  children,  937 

Fines  for  illegal  solemnization  of,  etc.,  how  recovered,  27 

License  of  minister  to  solemnize,  2117 

Mayor  may  solemnize,  11182  G.  C. 

Must  be  valid  before  dower  attaches,  945 

Of  administratrix   and   executrix,   does   not  revoke   her   authority.   70, 

115,  81,  27 
Of  female  ward,   determines  guardianship   as   to   person,   but    not   as 

to  estate,  1356 
Of  female  guardian,  determines  guardianship,  1356 
Of  woman,  does  not  revoke  her  will,  1061 
.    Publication  of  bans  for,  2117 

evidence  thereof  required,  when,  2117 

evidence  of  consent  of  parent  or  guardian  required,  2117 
Record  to  be  kept  by  Pro1)ate  Court,  1594  G.  C. 

what  to  contain",  1594  G.  C. 
Who  may  solemnize  and  how,  2117 

penalty   against  minister  or  justice   for   illegal   solemnization   of, 

12921  G.  C. 
penalty  for  solemnization  by  unauthorized  person,  12921  G.  C. 
Who  may  contract,  2117 

when  consent  of  parent  or  guardian  necessary,  2117 

MARRIAGE  LICENSE— 
Age,  27,  2117 
Ministers,  2117 
Residence,    2117 
Relationship,  2117 

MARRIED  WO:\IAN— See  Marriage. 

Liability  on  appeal  in  condemnation  proceeding,  1779 
Liability  as  guardian  of  idiot,  etc.,  1512 
May  make  a  will,  1018 

Saving  of  rights  in  proceedings  by  creditors  against  heirs,  etc.,  after 
settlement  of  estate,   1410 
as  to  foreign  wills,  1133 

MARSHALING  ASSETS— 
See  Assets. 
In  conformity  with  will,  832 
When  devised  property  taken  to  pay  debts,  1207,  1209 

MECHANIC'S  LIEN— 

Administrator's  relation  to,  519 

MENTAL  CAPACITY,  1021 

See  Testamentary  Capacity. 
MILITIA— 

Bond  of  adjutant-general,  sufficiency  certified  by  Probate  Judge,  2128 

of  treasurer  of,  to  be  approved  by  Probate  Judge,  2128 
Drafts,  how  conducted,  2128 

MINING— 

Power  of  guardian  to  lease  real  estate  for,  1456 

MINISTER— 

May  solemnize  marriage  and  how.     See  Marriage,  2117 
To  keep  registry  of  deaths  and  report  to  Probate  Judge,  when,  2117 
penalty  for  neglect,  2117 

MINISTERIAL  ACT— 

Deputy  can  perform,  13 

Definition,  239 

Error  docs  not  lie  from,  52 


1994  INDEX 

'  (References  are  to  't-ctlons. ) 

MINOR — See  Child,  Guardian,  Infant. 
Appropriation  of  property  of,  1677 
Indenture  of,  1370 

See  Guardian  for  rights,  etc.,  in  relation  to. 
Can  not  make  will,  1020 

Consent  of  parents  necessary  for  marriage  of,  2117 
Guardian  for,  1321 

To  whom  administration  granted  while  executor  is,  93 
Guardian  may  consent  to  appropriation  of  property,   1678 
form  of,  1678 
entry  of  notice,  1678 
ordering  conveyance,  1678 
deed  for,  1678 
When  entitled  to  homestead  exemptions,  867 
MISFEASANCE— 

Proceedings  on  complaint  against  municipal  officer  for,  2121 
MISTAKE  — 

See  Construction  of  Wills. 
When  and  how  accounts  of  executors,  etc.,  may  be  opened  to  correct 
743 
of  guardians,    1493 
of  trustees,   1298 
MONEY  — 

Assignee  must  deliver  to  successor,   1573 

Assignor's  property  must  be  converted  into,   1602 

Distribution,   order   of,   how   enforced,    761 

Executor's  etc.,  commissions   on  amount  collected,   654 

Foreign  guardian  of  non-resident  ward  can  get,  how,  1480 

Found  on  body  of  unknown  person,  how  disposed  of,  2014 

Inventory  must  contain  account  of,   297 

and   if  none,   must   so   state,   297 
Investment   of,   by   executors,   tru.stees,   etc.,   514 
by  guardians,   1367,  514 
belonging  to  heirs  unclaimed,   786 
Liability  for  deposit  in  bank,  1264 
I  See  Money  on  Deposit. 

Must  be  inventoried  and  administered,  83,  124 
Officer  refusing  to  pay  over,  how  punished,  2010 
Order   for  payment  of,  how   enforced,   2010 

Proceedings  against  persons  suspected  of  concealing,  etc.,  395.  414 
Sale  of  real  estate,  proceeds  arising  from,  how  applied,  903 
Trustees  may  get  possession  of,  how,    1572 
Unclaimed,   how   invested,   786 

Widow  and  children  entitled  to,  how  much   at  appraisement.   325 
Widow  may  receive  in  lieu  of  dower,  859,  825 

Wife  of  assignor  may  receive  in  lieu  of  contingent   right   of  dower, 
1600 
MONEY  ON  DEPOSIT  — 
By  guardian,   1389 
Custody,   512 
Failure   of  bank,   513 
Not  assets,  378 
When   is,    378 
MONOMANIA  — 

See  Testamentary  Capacity. 
MONUMENT  — 

Court  may  allow  for  and  credit  to  executor,  etc.,  651 
See   Funeral   Expenses. 
executor,  etc.,  not  bound  to  procure,  651 


i 


INDEX  1995 

(References  are  to  sections.) 

MOURNING  CLOTHES,  649 

See  Funeral  Expenses. 
MORTALITY  TABLES  — 

See  Tables. 
MORTGAGE  — 
Administration  of  estates: 
By  guardian,   1459 

Inventory  must  contain  particular  statement  of,  296 
Mortgaged  premises  considered  as  personal  assets,  386 
executor  or  administrator  may  take  possession  of,  386 
may  release  and  discharge,   387 
may  foreclose,  388 
Mortgagees  necessary  parties  when,   833 
Order  of  priority  as  to  payment,  666 

Sale  of  real  estate,  priorities  adjusted  in  action  for,   814 
duty  as  to,   521 

administrator   cannot,   real   estate,    802,    815 
application   of  proceeds   for   payment   of,   903 
payment  on,   897 
cannot  be  sold  subject  to,  815 
deferred    payments    secured    by,    890 
Assignment  for  creditors: 

When  executed  by  husband   and  wife,    1601 

by  husband  alone  for  purchase  money,   1601 
Void   as  to   creditors,  void   as   to   assignee,   1549 
Rights   of  assignee  as   to,    1579 
Guardian,  etc.: 

May  give  in  lieu  of  bond,    1323 

Must  take  on  loan  of  ward's  money,   1367 

Proceedings  by  to  borrow  money  and  mortgage  real  estate  of  ward, 

1460-1472 
Sale  of  ward's  land  to  satisfy,  1405 

deferred    payments    secured    by,    1425 

MOTHER— 

See  Parent. 
Consent  of,  when  necessary  for  marriage  of  minor  cbild,  2117 

See  Education. 
Inherits  property,  when,  917 

See  Descent. 
may  inherit  from  or  transmit  inheritance  to  bastard,  936 
May   appoint  guardian   by  will,    1307 

See  Guardians. 
MOTHER'S  PENSION— 

Act,  to  whom  applies,  2250,  2269 
Additional  requirements,  2254 
Allowance,  to  cease  when,  2261 
Amount  allowed,  2252 
Appeal  and  error,  2268 
Application  for  support,  2261 
Attempts  to  obtain  bv  fraud,  2266 
Benefit  of  child,  2253' 
Child,  allowance  for,  2255 
Child,  living  with  motlier,  2250 
Commissioners  may  transfer  fund,  2264 
Conditions   of  allowance,  2253 
Detailed  record,  2260 
Disposal  of  funds,  2264 


1996  INDEX 

(References  are  to  &?etlons. ) 

MOTHER'S   PENSION  — Con ^m«ecZ. 
Forms : 

Application  for  support,  2255 

detailed  record,  2269 

entries,  pending  examination,  2256 
allowance,  2258 
discontinuance,  2260 
extending  allowance,  2261 
refusing  allowance,  2262 

order  to  auditor,  2259 
Fund,  when  insufficient,  2264 
Journal  entry.     See  Forms. 
Length  of  time  of  allowance,  2250 
Modification  of  allowance,  2263 
Motion  to  set  aside,  2267 
Penalty,  to  obtain  by  fraud,  2266 
Persons,  who  may  receive,  2251 
Preliminary  examinations,  2255 
Probation  officer  to  visit,  2250 
Proceedings,  record  of,  2269 
Provisions  for  tax  levy,  2270 
Qualifications  of  mother,  2253 
Record,  detailed,  2269 
Record  of  proceedings,  2267 
Tax  levy,  2270 

To  whom  act  does  not  apply,  2265 
Urgent  cases  to  have  preference,  2264 
Visitation  of  homes,  2250 
When  allowance  shall  cease,  2263 
Who  entitled  to,  2250 

MOTION— 

See  FoEMS. 
Appropriation  proceedings,  for  new  trial,  1715a. 

for  abandonment  of  proceedings,  1725 
Compel  guardian  to  render  account,  1367 
Extension  of  time  to  collect  assets,  445 
Open  guardian's  settlement,  1516 

notice  of,  1516 
Payment  of  ward's  money  to  foreign  guardian,  1282 
Road  cases,  for  new  trial,  1822 

Transfer   of   proceedings   to   Common   Pleas   when    Probate   Judge   in- 
terested, 9 

MUNICIPAL  CORPORATIONS— 

Appropriation    of    property    by,    for    public    use.      See    Appropriation 

of  Property,  1750-1783 
Device  of  bequest  to,  when  valid,  1028 


INDEX  1997 

(References  are  to  sections.) 

MUNICIPAL    CORPORATION"  —  Continued. 

Proceedings  against  officers  of,  for  malfeasance  or  misfeasance,  2006 
citation  for  accused,  2000 

order  of,  2007 
complaint,  by  whom  and  how  made,  200G 

form  of,  2007 
costs,  2008 

security  for,  required  of  complainant  jury,  may  be  demanded,  2007 
challenges   of,   2008 
prosecution,  by  whom  conducted,  2007 
removal  of  officer  found  guilty,  2008 
trial,  2008 
aiUTUAL  WILLS— 

Power  to  make,  1173 


N. 
NAME— 

Change  of,  of  adopted  child,  1888 
adult,  2129 
NECESSITY  OF  ADMINISTRATION  — 

See  Administration. 
NEGLIGENCE  — 

See  Administrators  and   Executors. 
See  Assets. 
Guardian,  etc..  Liability: 

Libility  for  death  caused  by,  534,  536 
See  Wrongful  Death. 
NEWSPAPER  —  See  Notice. 
NEW  TRIAL  — 

Appropriation   of   property  by   corporations,    1718 
For  what  causes  granted,  52 
Motion  cannot  be  made  after  term,  52 
Road  appeals,  1822 

When  and  how  application  made  during  term,  52 
When  and  how  application  made  after  term,  52 
NEXT  FRIEND  — 

Action  of  infant  must  be  brought  by,  or  guardian,  1383 

See   Guardians. 
May  select  certain  property  for  minor  child  at  appraisement,  320 
NEXT  OF  KIN  — 
Defined,  122 

See  Definitions. 
Damages  to,  for  death  by  wrongful  act,  536 
Entitled  to  administration,  when,   114 
Inherit  property,  when,  915 
Meaning  in  will,   1199 
Notice  to,  before  probate  of  will,  1067 

before  granting  letters   to,    114 
Parties  in  action  on  administration  bond,  261 
Remedy  against,  on  decedent's  bond  to  convey  land,   1057 
When  legacy  demanded  before  two  years,  must  give  bond,  696 
When  may  sue  on  administration  bond,   269 
NON-HESIDENT  — 

Administration   on  estate  of,   in  business  here,   170 
to  whowi  letters  granted,   170 
disposition   of  assets,    170 
Appropriation  of  property,  service  on,  1692 


1908  INDEX 

(References  are  to  sections.) 

NON-RESIDENT  —  Continued. 

Claims  of  executor,  etc.,  against  estate,   service  of  notice  of  hearing 

on,    633 
Distribution,  to  enforce  order  of,  service  on,  770 
Foreign  executor,  etc.     See  Administration  of  Estates,  188 
Guardian  may   recover  property  in  this   State,   1480 

of   minor,    idiot,   etc.,    1282 

may   enforce  collection   of  judgments,    1481 

may  sell  lands,   1481 
Road  appeals,  notice  to  appellants  and  obligors,   1818 
Sale  of  lands  by  executor,  etc.,  service  on,  838 
Service  by  publication,   840 

Trustees  of,  powers  and  duties.     See  Trustees,   1274-1300 
Widow's   election,   how  taken,    1231 

NOTES  — 

Inventory  to  contain  particular  statement  of,  296 

May  be  distributed  in  kind,  when  and  how,   751 

Negotiable  cannot  bind  estate,  651 

Not   to  be  sold,   when,  470 

Promissory,  given  to  secure  resignation  void,  210 

not  to  be  sold,  471 

how    inventoried,    297 

given  to  administrator,  507 
duty   as   to,    507 

not  subject  of  gift  causa  mortis,  1241 
On  sale  of  personal  property,  how  taken,  483 
Surviving  partner  purchasing  partnership  property  may  give,  427 
NOTICE  — 
Administration  of  estates: 

Account  of  administrator,  etc.,  of  filing,  etc.,  729,  732 

costs   of,    729 
Appeal,   43,   45,    1008 
Administrator  de  bonis  non,   160 
Appointment  of  administrator  or  e.xecutor,  544,  543,  551 

filing  of,  purjM)se  of,  540 
See  Appointment. 
Object  and  purpose,   543 

when  and  how  given,  544 

proof  of,  546,  547 

form  of,  545 

aflidavit   for,   546 

liability  of  executor,  etc.,  and  sureties  for  failure  to  give,  550,  531, 
543 

failure  to  give  extends  time  for  bringing  action,  620,  548 

by  administrator  de  bonis  non,  621 

when  Court  may  allow,  after  proper  time,  548 
Petition  for,  549 

entry,  550 

eflfect  on  limitation  of  action,  548 

of  application  for,  after  twenty  years,  64,  66 

application  for,  66 
Bond,  notice  to  executor,  etc.,  that  new  bond  is  required,  248,  249 
Claims  of  executors,  etc.,  against  estate,  of  hearing,  633 

filing  requisition   to   reject,   561 
Desperate  claims,  of  application  for  sale,  etc.,  459 

of  sale  of  such  claims,  463 
Disallowance  of  claim  at  instance  of  heir  or  creditor,  561 
Evidence  of,  what  is,  546 
For  leave  of  Court  to  bring  suit,  273 
Failure  to  pay  over  money,   of  filing  petition   against   executor,   etc, 


INDEX  1999 

(References  are  to  sections.) 

NOTICE  —  Continued. 

for,    761,    770 
General  for   ancillary   administrator,    176 
How  given  when  law  does  not  direct,  37 
Insolvency  of  estate,  965 
form  of,   966 

of  meeting  of  commissioners  to  receive  claims,  996 
of  appeal  from  decision  of  commissioners,   1004 
of  filing  petition  on  omission  to  appeal,  1008 
Inventory  and  appraisement,  of  making,  288,  289 

of  filing  and  hearing  exceptions  to  inventory,  312 
must  be  in  writing,  45 
Non-resident : 

See  Non-resident. 
Next  of  kin,   111 
Public  sale,   480 

Removal   of  executor,  etc.,  twenty  days'  notice,   213 
Sale  of  personal  property,  479,  495 

See  Sale  of  Personal  Property. 
of   desperate  claims,   application  for,   459 
sale    of,    463 
of   real   estate,    883 

See  Sale  of  Real  Est.vte. 
notice  of,  in  German  or  Bohemian  newspaper,  885 
of   filing  petition   for,    838 
waiver  of,    838,  844 
Sale  of  real  estate,  841,  887 
Surety's  application  for  release,  243 
new,  245,  246,  247 

to  executors,  etc.,  when  sureties  insufficient,  248 
To  executor,   101 
Will,  of  probate  of,  1067 

of  application  to  probate  lost,  spoliated  or  destroyed  will,  1144 
to  admit  foreign  will  to  record,  1125 
of  existence  of  will  deposited  with  Probate  Judge,  1070 
publication  of,  to  admit  will  to  record  when  record  destroyed,  1157 
of  appeal  from  refusal  to  admit  Avill  to  probate,   1116 
Appropriation  of   property : 

TJy  private  corporation,  by  landowner  to  compel,  1735 

to  unknown  or  non-resident,   1692 
By  municipal  corporation  to  property  owners,   1754 
of  intention  to  appeal,  1778 
Assignment  for  creditors: 

Accounts,  of  filing  and  hearing,  1653,  729 

Appointment   of   assignee,   etc.,    1557 

Disallowance  of  claim  on  application  of  assignor  or  creditor,  1635 

Dividends,  of  making  and  paying,  1653 

to  owners  of  unpaid  dividends,   1653 
Fraudulent  conveyance,  etc.,  of  action  to  set  aside,    1580 
Sale    of    property,    1611,    1609 

how  given,   1625,   1609 
Trustees'  election,   of  time  and  place,   1564 
of  appointment,  1557 
Ditch   appeal : 

County,  1833 
Drift: 

Removal  of,  appeal,  2119 
Guardians,  etc.: 


2000  INDEX 

(References  are  to  sections.) 

NOTICE  —  Continued. 

Accounts,  of  filing  and  hearing,   729 

Filing  exceptions  to  bond,  1343 

Idiot,   etc.,   appointment  of   guardian,    1501 

Foreign  guardian,  application  of,  for  settlement  by  resident  guardian, 
1477 

Lease  of  real  estate,  1454,   1457 

Motion  to  review  settlement  of  guardian  of  lunatic,  etc.,  1516 
how  given,   1516 

Of  petition  to  pay  ward's  money  to  foreign  guardian,   1282 

Of  application  for  appointment  of  guardian  of  drunkard,   1537 
of  termination  of  guardianship  to  be  given  to  guardian,  1540 

Removal    of    guardian,    1358,    1477 

Road,  of  appeals,   1818 

Sale  of  land,  of  filing  petition  for,   1413 
notice  of  sale,   1425 

Surety's  application  for  release,   1348 
Inquest  of  lunacy: 

To  Probate  Judge  for  removal  of  patient,  2117 
Marriage: 

Notice  of  to  be  given  before  solemnization,  2117 
Partnership: 

To   administrator,    etc.,   of    deceased    partner    for   appointment    of    ap- 
praisers, 417 
Proceedings  in  aid  of  execution: 

Of  order  against  judgment  debtor,  1911,  1920 

Railroad  ditch,  etc.,  2120 
Road.     See  Road  Appeal. 
Trustee : 

Accounts,  of  filing  and  hearing,  729 

Bond,  of  giving  by  testamentary,   1256 

Settlement  of,  etc.,    1294 
NUMBER  — 

Words  importing  plural  applied  to  singular,   1033 

NUNC  PRO  TUNC  — 

Power  of  Probate  Court,  53 
NUNCUPATIVE    WILLS  — 

Appraisers  of  decedent's  personal  property,  284,  290 

Expenses  and  fees  of  Probate,  etc.,  by  whom  paid,   1112 

Definition,    1158 

For    personal    property    only,    1161 

Form  of  will,   1169,    1159 

Form  of  testimony,    1169 

How  made,  1169,  1159 

How  probated,   1167 

In  last  sickness,   1160 

definition,    1160 
Proof   required,    1168 
Reduced  to  writing,   1162 

within  ten  days,   1162 


INDEX  2001 

(References  are  to  sections.) 

NUNCUPATIVE  WILLS  —  Continued. 

Rogatia  testium,  what  sufficient,   1164 
Subscribed    by    competent   witnesses,    1163 
Testator   must   call   upon   person    present,    1164 

no  set  words   necessary,    1164 

what  sufficient,   1164 
Testamentary  words,    1165 

what   constitutes,    1165 
Time  within  which  must  be  admitted  to  probate,   116C 

O. 

OATH — See  Affidavit — Forms. 

Administrator's  and  executor's,  302,  703 

real  property,  863 
Appropriation  of  property,  of  jury,  1706 
Deputy  clerk  of  Probate  Court  may  administer,  11 
Ditch  appeal,  county,  of  jury,  1847 
Guardian,  etc.,  on  application  for  appointment,  1323 
to  accounts  of,  1367 
to  inventory,   1367 
of  appraisers  of  real  property,  1421 
of  freeholders  on  report  of  lease  of  ward's  land,  1438 
Insolvent  estate,  witness  and  claimant  may  be  examined  under,   1000, 

1001 
Marriage  license,  on  procuring,  when,  2117 
Probate  Judge  may  administer,  13 
Road  appeals,  of  jury,   1820 
OFFICE  — 

Of  Probate  Court,  where  kept  and  how  furnished,  4 
Term  of,  of  Probate  Judge,  5 
OHIO  — 

When  property  escheats  to,  919,  921 
OMISSION  — 

Of  executor,  etc.,  to  give  notice  of  appointment,  liability,  550 
OPEN  AND  CLOSE  — 

In    proceedings    to    appropriate   property    by    municipal    corporations, 

1763 
In  county  ditch  appeals,   1851 

by   private   corporations,    1711 
OPENING  SETTLEMENTS  — 
See  Accounts. 
Of  executors,  etc.,  743 
guardian,    1493 

See  Guardians. 
trustee,   1298 
See  Tbusteb. 
OPERATIVE— 

Defined,  1649 
ORDER— 

See  Forms. 
Administrator  of  estates: 

Account,  appeal  from  final,  39 

Appealable,  in  what  cases,  39 

Arbitrator's  award,  002 

Claims,  payment  of  falling  due  after  two  years,  571 


2002  INDEX 

(References  are  to  sections  J 

ORDER —  Continued. 
bond   for,    571 
as  to  disposition  of  desperate  claims  a  sufficient  voucher,  456 

Debts,   of   payment  of,   647 

Distribution,  27 

to   enforce,   761 

of   insolvent  estate,    1011,   976,   980 

Execution  on  judgment  against  executor,  etc.,  626 

Inventory,  as  to,  281,  303,  470 

Liens,   determining,   priority   of,   814 

Money  belonging  to  unknown  heirs,  investment  of,  786 
distribtuion  of,  arising  from  sale  of  lands,  814 

Notice  of  hearing  of  executor's,  etc.,  claim  against  estate,  633 

Sale  of  lands  to  pay  debts,  816,  814,  850,  856,  890,  903,  825 

Will,  certified  copy  of,  in  other  county,   1111 
of  foreign,   filing  and  recording,   1130 
Appropriation  of  property: 

To  draw  jury,  1701 

Conduct  jury  to  view  premises,   1707 
Assignment  for  creditors: 

Continue  assignor's  business,   1587 

Fraudulent  transfer,   to  prohibit,   1585 

Payment  of  dividends,   1653 

Sale  of   property,    1625 

To  put  trustee  in  possession,  etc.,   1572 
Ditch,  ai^jjeal: 

County,  to  draw  jury,   1842 

conduct  jury  to   premises,    1847 
Guardians,  etc.: 

Drunkard,   terminating  guardianship  of,    154C 

Duties  of,  to  enforce,   1302 

Guardian  must  obey  all,  etc.,   1367 

Lease    of    real    estate,    1441,    1529 

Sale  of   real   estate,    1425,    1522 

Inquest  of  lunacy,  1999 
Money : 

Payment  of,  how  enforced,  1599  G.  C 
See  Contempt. 
Municipal    officer : 

In  proceedings  against,  to  draw  jury,  2006 
Payment : 

By  executor  of  decedent's  debts,  647 

Of  money  arising  from  sale  of  land,  903 

By  assignee  of  insolvent  debtor,   1647 
Punishment : 

For  refusal  to  obey,  2010 
Road  appeal: 

County,  to  conduct  jury  to  view  premises,  1822 
conduct  jury  to  view  premises,  1822 

ORPHAN  ASYLUM  — 

Vagrant   or  incorrigible  children  may  be  sent  to,    1616 

OUTLETS  — 

See  Appeals,  County  Ditches. 


INDEX  2003 

(References  are  to  sections.) 
P. 

PAPERS  — 

Filing,  must  be  docketed,   1998,   16 

Surrender  of  to  trustee  of  insolvent  debtor  enforced,   1572 
PARDON  — 

Duties  of  Probate  Judge  on  violation  of  conditional,      158S  G.  C 
PARENTS  — 
Action  in  habeas  corpus: 

See  Habeas  Corpus. 
Allowance  for  maintenance,   1374 
Adoption  of   children   by,    1888,    1894 

See  Adoption  of  Child. 
Consent  of,   necessary    for  marriage   of  child,  when,  "1997 
CSonsent  as  to  guardian,    1312 
Custody   of  ward,   when  to  have,    1366 
Choice  of  guardian,    1329 
Damage  to,  for  death  by  wrongful  act,  534 
Is   natural   guardian,    1306 
Inherit  property,  when,  917,  936 
Marriage   of.   effect   on   children,    937 
of   dissolution   of  marriage,   937 
May  appoint  guardian  by  will,  1307 

Notice  must  be  given  of  appointment  of  guardian,  1326 
Religion  of,  should  be  followed  by  guardian,   1376 
Service  on,  when  child  under  fourteen,  841 
When  entitled  to  administration  of  estate,   114 

PARTIES    TO   ACTIONS  — 

Administrator,   to   action  on  bond  of,   261 
Appropriation  of  property  by  private  corporation,   1684 

of  unfinished  railroad  bed,   1731 
Claim  of  executor,  etc.,  against  estate,  633 

rejected  by  executor,  etc.,  at  instance  of  heir  or  creditor,  561 

may  be  contested  though  previously  allowed,  277 
Complete  real   contracts,   523 
Distribution,  in  action  to  enforce  order  of,  777 

Fraudulent  conveyance,  to  set  aside  by  creditors  of  insolvent   debtor, 
1580 

in  action  for  sale  of  land  by  executor,  etc.,  833 
Lease  of  ward's  land  by  guardian,   1438 

of  idiot,  etc.,   1527 
Proceedings  by  creditors  against  heirs,  etc.,  after  settlement  of  estate, 

592 
Revivor  of  action  by  guardian  of  idiot,  etc.,   1521 
Sale  of  real  estate  by  executor,  etc.,  833 

when  fraudulent  conveyance  is  sought  to  be  set  aside,  833 

how  summoned,  838 

waiver  of  service  and  consent  to  sale,  838 

Court  may  adjust  all  liens,  etc.,  814 

of  equitable  interest  of  deceased  in  land,   825 

of  ward's  land  by  guardian,   1413 

of  idiot,  etc.,   1522 

of   insolvent   debtor's   land,    1602 

of  insolvent  debtor's  land  to  adjust  liens,  1618 
PARTITION  - 

Affects   title  how,   911 

Action  for  in  Common   Pleas,    187!) 

Action  of  administrator   to   sell   supersedes,  817 

Certificate  from  Probate  Court  to  C\)niiiion  Pleas,  1880 


2004  INDEX 

(References  are  to  sections.) 

PARTITION  —  Continued. 

form  of,   1881,   1883 
Creditor  not  to  be  made  a  party,   1880 

Common  Pleas  must  order  paid  over  to  administrator,  1884 
proceedings   in,    1885 
motion,  1886 
entry,    1886 
Definition,    1879 
Does    not    prevent   administrator    from    bringing   action   to    sell    real 

estate,    1879 
Guardian  mav  act  for  ward,  1396 
Order  of  Court,   1882 
entry,   1882 

can  not  be  attacked  in  Common  Pleas  Court,  1882 
Restraints  as  to  in  will,  1204 
When  will  lie,  1879 
PARTNERS  — 

See  Paktnekship  Assets. 
Administration  of  estate  of  non-resident,  doing  business  in  this  State, 

170 
Assignment  for  creditors  by,  effect,  1547,  1550 
Surviving,  duties  and  rights  of,  417 

notice    to    administrator    of    deceased,    for    appointment    of    ap- 
praisers,  417 
inventory  to  be  delivered  to  surviving  partner  and  filed,  417 
when  executor,  etc.,  to  have  appraisement  made,  426 
when  executor  apointed  in  county  other  than  that  in  which  part- 
nership existed,  426 
when  surivor   may   purchase   partnership  property,  and   on  what 

terms,  427 
receiver   to   wind   up   partnership   if   surviving  partner   does   not 

purchase  property,  427 
interest  of  deceased  partner  disposed  in  accordance  with  articles 

of   co-partnership  or   provisions  of  will,   427 
how  partnership  real  estate  to  be  conveyed,  .437 
Testimony  in  action  by  or  against  C.  C.  P.,  11495  G.  C. 
PARTNERSHIP  —  See  Pabtnership  Assets. 
Dividends   in.    1059 

Surviving   partner    no    right    to    appointment,    418 
When   partner    make   assignment,    1547 
PASSBOOKS  DEPOSIT  — 

Gift    causa    mortis,    1245 
PARTNERSHIP  ASSETS  — 

Application    for    appraisement,    418 
entry    on   filing,    419 
form  of,  419 
form  of  notice,  420 
what  to   contain,   419 
Appraisement,  how  made,  425 
Application  to  take  at  appraisement,  428 

form  of,  428 
Administrator   continuing  business,   436 
Duty  of  partner,   417 
Entry  confirming  appraisement,  424 
Executor    may   have   appraisement,    426 
Entry  approving  election,  430 
Executor  continuing  business,   435 
Form    of   executor's    deed,    439 
Form  of  bond,  429 
Inventory   and    appraisement,   423 


I 


INDEX 


(References  are  to  sections.) 


2005 


PARTNERSHIP  ASSETS  —  Continued. 
Insolvent  estates,   977 
Ordering    appraisement,    422 
Oath  of  appraisers,  423 
Report  of  appraisers,  423 
Right  of  administrator  at  common  law,  416 
Rights  of  surviving  partner,   433 
Value  of  good  will,  425 
When  partner  fails  to  take,   431 
When  statute  does   not  apply,   432 
Where  executor  is  surviving  partner,  434 
What  is  partnership  real  estate,  438 
PATENTS  — 

Belong  to   administrator,   375 
PAYMENT  OF  DEBTS  OF  DECEDENT  — 

See  Claims,  Presentation  of  Claims,  Limitation  of  Actions, 
Statute  of  Limitation,  and  Legacies,  Payment  of. 
Sale  of  Real  Estate: 

Action  on  bond  for  neglect  of,  255 

All  general   creditors  stand  alike,  646 

Administrator  is  entitled  to  charge  estate  only  what  he  pays,  646 

Allowance  to  widow,   661 

Administrator  liable  if  order  not  followed,  648 

Before  final  settlement,  673 

Cannot  pay  in  order  other  than  statute  directs,  648 

Cause  of  violation  of  order,   648 

Compensation   of   executor   or  administrator,  654 

when  entitled  to,  655 

how  calculated,  656 

fixed   by   will,   657 

joint  administrators,   658 

extra,  659 
Debts   due  United   States,   662 

Debt  of  executor,  etc.,  against  the  estate,  how  paid,  631,  641 
Expenses  of  administrator,  653 
Employment  of  agent,  office  rent,  etc.,  660 
Expenses  of  administrator,  653 
Funeral   expenses,   649 

when   to   be   paid,    649 

in  first  class,  649 

person  furnishing  entitled  to  be  paid,  649 

administrator  personally  liable  when,  649 

what  are,  649 

amount  to  be  allowed,  650 

tombstone,  651 
General  creditors,  665 

Heir  maj'  give  bond  to  prevent  sale  of  real  estate,  826 
Interest  on  claims,  672 
Insolvency,  how  made  in  case  of,  976,  980 
Last  sickness,  652 

in  preferred  class,  652 

what  included,  652 
Limitation  of   actions   by  creditors,   613,   571 

on   rejected    claim,    609,    561 
Notice  of  demands,  668 
Order   of,   647 

liens  not  affected,  6^6 
Principal  function  of  administrator,  etc.,  646 
Personal  property  is  primary  fund  for,  646 


2006 


INDEX 


(References  are  to  sections.) 


PAYIVIENT  OF  DEBTS  OF  DECEDENT  — Con itnwed. 
Residuary  legatee  may  give  bond  for,  60,  281 
Secured   creditors,   666 
Taxes,  663 

Undevised  real  estate  to  be  first  applied,  1206 
Wages,  664 

When  may  be  paid  without  liability,  667,  669,  670,  671 
Sale  of  real  estate  for,  819,  816 

allegation  of  petition,  830 
When  not  due,  570 

in  two  years,  613,  571 
When  provisions  made  for  by  will,  1208,  1209 
Whole  estate  liable  for,  1209 
PENALTY 

Guardian,   against   failing   to    file   inventory,    1367 
to  list  or  pay  taxes,  1392 

refusing  to  serve  process  or  pay  over  money,  2125 
Probate  Judge  or  clerk  practicing  law,  7 

Probate  Judge  improperly  issuing  marriage  license,  11104  G.  C. 
Justice,  minister  or  clerk,  etc.,  failing  to  transmit  marriage  certificate 

to  Probate  Judge,  2117 
Justice  or  minister  for  illegally  solemnizing  marriage,  2117 
Unauthorized  person  solemnizing  marriage,  2117 
how  and  in  what  Court  covered,  2117 
PENSION  CASES— 

Duty  of  Probate  Judge  in,  1604  G.  C. 
PERISHABLE  PROPERTY— 

Sale  of,  505 
PENSION  MONEY— 

When  belong  to  administrator,  376 
PERMANENT  LEASEHOLD  ESTATE— 

Descends  same  as  fee  simple,  942 
PERPETUITIES— 

Applies  to  real  estate,  1031 
Application  to  personalty,  1031 
Rule  against,  1031 
Who  comes  within,  1030,  1031 
PERSONAL  PROPERTY— 

See  Assets — Ixvextory — Sale  of  Persottai   Property. 
Administration  on,  not  necessary  if  less  than  twenty  dellars,  192 
Distributed  according  to  law,  domicile   185. 
PERSONAL   ESTATE  — 
Distribution   of,    938 
Distribution  of,  921 

See  Distribution. 
how  order   of  enforced,   761 
Definition,  364 

Goes  to  administrator  when  not  to  heir,  54 
Guardian    cannot   change   real    into   personalty,    1386 
Invenory  of,   of  decedent,   281 
See  Inventory. 
See  Forms. 
of  insolvent  debtor,    1594 
of  ward,   1367 
Liable  for  debts,   55 

Legatee  takes  subject  to  charge  on,  1058 
Preservation   of,    506 


INDEX  2007 

(References  are  to  sections.) 

PERSONAL    PROPERTY  —  Continued. 

Primary    fund    for    payment   of    debts,    646 
Real    estate,    when    considered    personal,    438 
Received   by  guardian  from   administrator,    1390 
Rule  of   perpetuities,    1031 
Sale  of,  of  decedent,  470 

See  Sale  of  Personal  Pkoi'ekty. 

private   sale,   479,   495 

liability  of  executor,   etc.,   for   not   selling,    717 

what  not  to  be  sold,  470 

specifically  bequeatlied  exempt  from,  unless  required  for  payment 
of  debts,   1208,  391 

of  insolvent  debtor,   1602 

of  ward,  1405 
Sale  of  by  guardian,  1391 

Widow    and   children   entitled   to    wliat,    exempt    from    adniinistiiitimi. 
320,   322 
See    Widow's   Allowance. 

allowance    for   one   year's    support,    324 
Will  to  be  probated  before  title  passes,    1108 

subsequently   acquired,   passes,    1191 
Construction  of,   domicile  controls,    1016 
PERSON    INTERESTED  — 

Account,    may    file    exceptions    to,    743 

Bond  may   be  required  by   from  executor,   etc.,   though    will   dispenses 
with  giving,  83 

to  use  of  on  appeal  of  executor's  etc.,  claim  against  estate,  641 

new  bond  may  be  required  by  of  sureties,  248 
Claim  due  after  two  years  may  be  disputed  by,  571 

may  give  bond  to  creditor  for  payment  of.  571 

action  on  such  bond,  581,  582 

must  be  notified  of  trial  of  executor's  etc.   claini  against  estate, 
633 

may  appeal   from  decision  of  Court  in  such   case.   641 
Distribution,  may  sue  executor,  etc.,  to  compel.   761 

parties  to  action  to   enforce,   777 
Guardian's   settlement,  may  open  up,  etc.,    1516 
Inventory,  may  file  exceptions  to,  312 

May   complain   against   persons   concealing   assets,    etc.,    395 
May  bring  action  asking  direction  of  Court  respecting  estate,  etc.,  33 
May  sue  on  administration  bond,  269 
Mortgaged  premises  held  in  trust  for,  when.  387 
Parties  in  action  for  sale  of  land,  833 

to  enforce  distribution,  777 
Sale  of  personal  property  may  be  had  on  application  of,  notwithstand- 
ing will,  470 

may  give  bond  to  pay  debts  and  prevent  sale  of  real  estate,  826 
Will,  to  be  notified  of  deposit  of,   1070 

may   enforce   production   of,    1072 

appeal  from  refusal  to  probate.   1116 

application  to  probate  foreign  will,   1125 

notice  of  application,    1125 

right  to  contest  supplied  record  of  will,   1157 
When   Probate  Judge  is,   effect,   9 
PETITION  — 

See  Forms. 
Adoption  of  children,  1888 
Administration  after  twenty  years,  64 
Appeal  of  claim  disallowed  by  commissioner  of  insolvent  estate,   1008 


2008  INDEX 

(References  are  to  sections.) 

PETITION  —  Continued. 

Appropriation   of  property   by  private   corporations,   1679 

by   land  owner  to  compel,    1735 

by  municipal  corporations,   1750 
Distribution,  to  enforce  order  of,  761 
Improvement  of  real  estate  of  imbecile,  etc.,  1530 
Injury  by  wrongful  death,   536 
Lease  of  ward's  land  by  guardian,  1434 

of  idiot,  lunatic,  etc.,   1527 

for  petroleum  oil  or  natural  gas  purposes,  1452 

for   mining  purposes,    1457 
Levee,  construction  of,  2002 

Mortgage,  real  estate  of  ward  by  guardian,   1460 
Road,   abandonment  of,   2001 
Sale  of  land  by  executor,  etc.,  833 

of  equitable  interest  of  deceased  in  land,  825 

by   guardian  of   minor,    1410 

of  lunatic,    1522 

by  assignee  of  insolvent  debtor,  1618 

by  trustee  of  non-resident,  1278 
PETITION  IN  ERROR  — 

Filing  in  Supreme  Court  with  leave,   12250 
Review  of  proceedings  to  appropriate  propertv  bv    1773 
PHYSICIAN—  f     f      J     J, 

Certificate  of,  for  admission  of  patient  to  insane  asylum,  2118 
PICTURES— 

What  v.'idow  and  children  entitled  to,  320 
PLANS  — 

Probate  Judge  to  approve  of,  of  court-house,  jail,  etc.,  9 
PLEADINGS  — 

See  Petition. 
See  Forms. 

Appropriation  of  property,   1686 

Code  of  Procedure  governs,  36 

Not  necessary  on  appeal  of  executor's  etc.,  claim  against  estate,  641 

Rule  days  for,  837 

POSTHUMOUS   CHILD  — 

Inherits  when,    941 

Birth   of,    revokes  will,    unless,   etc.,    1062 
POSTNUPTIAL   CONTRACT  — 

As  to  widow's  year's   allowance,   327 

As  to  dower,   947 
PO\YER  — 

Construction  of,  805 

Cannot  be  delegated,  806 

Control   of  Court  over,   807 

Defined,   803 

Disposal    of   life   estate,    1193 

Expiration  of,   807 

How,    801 

Life  estate  with  power  of  sale,  821 

May   be   applied,    803 

vVhat  is.  to  sell,   803 


INDEX  2009 

(References  are  to  sections.) 


PRACTICE  LAW  — 

Judge   and   deputy   clerk   cannot,    7 
PREFEKRED   CLAIMS  — 

See  Labor  Claims. 
Against  estate  of   decedent,   647,   666 
See  Payment  of  Debts. 
of   insolvent   debtor,    1647 
See  Assignments. 
PREFERRED  CREDITORS  — 

Assignments  inure  to  equal  benefit  of  all,  1579 
PREMISES  — 

View  of  by  jury.     See  Jury. 
PRESENTATION   OF   CLAIMS  — 

Against  estate  of  decedent,  557,  609 

when  insolvent,  998,  967 
Administrator  must  give  notice  of  appointment,  552 
Affidavit  to,    557 
form  of,  558 
when  not  required,  558 
Allowance  of,  559 
Action   on   rejected,    568 
Creditor  may  lose  right  by  laches,   552 
Creditor   must    be    diligent,    552 
Contingent  claims,  569,  982 
how  presented,   570 
when  allowed  by  Court,   571 
what  included,  572 
how  presented,  573 
Claims  not  due,  569,  583 
application,    573 
notice,   574 
order  of  Court,  575 
ordering   paid,    576 
ordering  assets  retained,  577 
ordering   giving   bond,    578 
action   on,    581 
form  of,   579 
allowance  of  Court  not  conclusive,   580 
Disputed  or   rejected,   when   is,   560 
Funeral  expenses  should  be,   649 
Liability  of  executor  in  ignoring  claim,  560 
Literal  compliance  with  statute  necessary,  555 
Insolvent  estates,  993-1112 
Must    creditor    be    noWtied,    559 
Need   not   be  formally   presented,    554 
Payment  of  interest  is  allowance,  559 
Of  insolvent  debtor,    1628 
Object  and  purpose,   552 
Rejection,  what  constitutes,   560 

indorsement   not   necessary,    560 
Rejected  at  instance  of  heir,  561 
purpose  of,  562 
requisition,    563 
bond,   564 

ordering   notice,    565 
form    of    notice,    566 
action  on  real   estate  stayed,   567 
Sufficient    ])resoiitati()n,    555 
Voucher  for,  479b 
When  once  allowed  sufficient,  554 
When  should  be,  608 
What  must  be,  553 
What  need  not  be,  554 
When  waived,  556 
Wliat  amount  of,  559 


2010  INDEX 

( References  are  to  sections. ) 

PRESENT  VALUE— 

Vested  dower,  2138 
Table  for,  2139-2140 
Contingent  dower,  2141 
table,  2142 

PRICE  — 

For  which  property  of  insolvent  debtor  may  be  sold,  1610 

of   real   estate   without  State,    1610 
Real  estate  of  ward,  1425 

cf  decedent,  880,  879 

personal  property,  479,  495 

PRINCIPAL  — 

Trustee   must   maintain,    1288 
When  used  for  repairs,  1291 
When  suffers  loss,   1290 

PRIORITY  — 

Of  liens  on  real  estate  of  decedent,  how  adjusted,  814 
See  Dividends. 
on   insolvent  debtor,    1618 
Of  payment  of  claims  against  decedent's  estate,  647,  666 
insolvent    debtor's    estate,     1647 

PRIVATE   PROPERTY  — 

Condemnation    of,    for    public    purposes    by    municipal    corporation, 
1748-1783 
by  private  corporation,   1674 

PRIVATE  SALE—  J 

Of  insolvent  debtor's   property,  1610                                                                        I 

ward's   real  estate,   1425 

decedent's   real  estate,   879 

personal  property,  479,  495  . 

Affidavit  before  confirmation  of,  882                                                                          I 

PROBATE  —  " 

See  Probate  of  Wills. 
Admission  of  will  to,  how  and  when,  1067,   1044,   1105,  1155 

not  admitted   to   probate   without  notice  to  widow   and   next  of 
kin,    1067 
Appeal  to  Common  Pleas,  if  probate  of  will  refused,  1116 
Enforcement  of  production  of  will  for,   1072,   1079 
Foreign  will  admitted  to  record,  how,   1119,  1124 
Jurisdiction  of  probate  of  wills,  in  Probate  Court,  27 

in  Common   Pleas  Court,   27 
Lost,  spoliated,  etc.,  will,  probate  of,   1135,   1157 
Nuncupative  will,   probate   of,    1166 
Testimony  as  to,   1095,   1101 
Will,  probate  of,   lost  or  spoliated,   1135.    1157 
See    Spoliated    Wills. 
necessary  to  its  validity,  1108 
nuncupative  will,  1166 

See  Nuncupative  Will. 
record,  when  and  how  made,  1109 

PROBATE  COURT  AND  JUDGE- 

See  JuRiSDicmox,  etc. — Inheritance  Tax. 
Accounts,  to  publish  notice  of  filing,  729 
may  examine  accountant  under  oath,  733 
may  reduce  such  examination  to  writing,  733 
and  require  accountant  to  subscribe  same,  733 


INDPLX  201 1 

(References  are  to  sections.) 

PROBATE  COURT  AND  J\JI>GFj  —  Continued. 
Acts  judicially,   13 
Acts  ministerially,   13 
Acknowledgements,  may  take,  13 
Action  for  sale  of  real  estate,  24 
Adoption  of  child,   1888,   1898 
Administration  of  estates.     See  Infra. 
Appeals.     See  Infra,  39 
Appropriation  of  property.     See  Infra. 
Assignment  for  creditors.     See  Infra. 
Asylum,  duties  in  reference  to  admission,  2118 
Bond  of,  14 

duties  as  to  guardians,  1334 

deposited  where,   14 

liability   under,   14 

to  be  filed  in  office  of,  238 

to  have  control  and  custody  of,  11 
Cannot  be  guardian,  1331 
Cannot  act  where  interested,  8 
Cannot   hold   any   other   office,   6 
Cannot  practice  law,  etc.,  6,  7 

difficulty  in  following  law,  6 
Can   order   contract  executed. 
Cannot  direct  administrator  to  allow  claim,  27 
Cannot  direct  executor  to  purchase  monument,  27 
Cannot  modify  judgment,  6 

Commission  from  Governor  to  receive,  1588  G.  C. 
Choice  of  guardian,   1330 
Commission  Pleas,  to  act  for,  when,  9 
When  Common  Pleas  may  act  for,  10a 

has  same  powers,  32 
Contempt,  power  to  punish,  17 

proceedings  for,  1980 
Constitutional  provision,  18 

status  under,  19 
Costs.  See  Costs. 

County  auditor,  examination  of  complaint  against,  2124 
County  commissioners,  judge's  duty  as  to  filling  vacancy,  2397  G.  C, 
County  seat.  Probate  Court  to  be  held  at,  4 
Depositions,  may  take: 

may  be  used  in  evidence  in,  38 
Deputy  clerk,  powers,  etc.,  11 

can  not  practice  law,  7 

Probate  Judge  may  perform  duties  of,  11 

to  appoint,   12,  13 
Designation  of  in  various  States,  1 
Ditch  appeal,  county,  duty  on,  1833 
Dower,  assignment  of  approved  by: 

code  civil  procedure,  95 
Drift,  removal  of,  appeal  to,  2000 

Duty  to  examine  accounts  whether  exceptions  be  filed  or  not,  734 
Election  of  judge,  2 
Election  of  widow  or  widower,  1223 

can  not  set  aside,  1229 
Entries,  etc.,  omitted  by  predecessor  to  make,  1586  G.  C. 
Error  from  to  Common  Pleas  C.  C.  P.,  12241  G.  C. 

to  Supreme  Court,  C.  C.  P.,  12250  G.  C. 

transcript  to  furnish  or  tender  of  fees  C.  C.  P.   12264 
Execution  from,  1599  G.  C. 

proceedings  in  aid  of,  1911 
Execution  of  judgment  of,  stay  of,  C.  C.  P.,  12265 
Fee  bill  and  report  of  fees,  1600 

must  return  list  of,  16 

fees  of,  1601  G.  C. 
See  Fees. 


2012  INDEX 

(References  are  to  sections.) 

PROBATE  COURT  AND  JUDGE— Continued.  ^ 
Fugitives  from  justice,  arrest  of  by,  etc.,  71 
Girls'  Industrial  Home,  may  commit  to,  2107  G.  C. 
Guardian  ad  litem  may  be  appointed  by.     See  Guardian  ad  litem. 
Guardians,  duties  as  to,  1319 

duties  as  to  bond,  1334 
See  GUAKDIAN  Infra. 
Habeas  corpus,  may  grant  writ  of,  1552 
Has  common-law  jurisdiction,  19 
High  character  required,  6 
Heir  at  law,  how  clesignated,  1902 

Home  of  the  Friendless,  commitment  of  girl  to,  4100  G.  C. 
Incumbrances,   receipt   for  recorded,   798a. 

See  Incumbrances. 
Ineligible  to  certain  other  offices,  6 
Infants,  may  be  taken  from  parents,  when,  1906 
Inquest  of  lunacy,  duties  as  to,  1999 
Insolvent  estates'.     See  Assignment  for  Creditors,  infra. 
Interested,  duty,  when.  9,  1682 
Inventory,  must  require,  282 

duties  as  to,  293 
Investment  of  trust  funds,  to  direct,  514 
Joint  sub-district,  when  petition  for  mav  be  filed  with,  2013 
Judgment  in,  how  vacated,  11631  to  11643  G.  C. 
Judgment  debtor,  order  by  for  examination  of,  1911 
Jurisdiction,  concurrent,  28 

equity,  20 

exclusive.  27 

limited.  22 

acquired  by,  excludes  other  Probate  Courts,  29 

to  review  inferior  courts,  31 

in  habeas  corpus,  1952 
Justices  of  peace  in  township,  may  change  number  of,  2012 
Law,  not  to  practice,  7 
Levee,  construction  of,  duties  as  to,  2002 

Marriage  licenses  and  licenses  to  solemnize  marriages,  to  issue,  1997 
May  order  administrator  to  receive  payment  of  note,  27 
Must   finish   business  oi   predecessor,    16 
Municipal  officers,  proceedings  on  complaint  against,  2006 
New  trial.     See  new  trial. 

Non-residents,  appointment  of  trustees  of,  etc..  1274 
Notice  of  filing  accounts,  to  punish.     See  Notice,  729 

how  to  give  notice  not  otherwise  provided,  37 
Oaths,  may  administer,  13 
Office,  where  kept,  how  furnished,  4 
Omitted  entries  and  records,  how  supplied,  16 

proceedings  against  judge  on  default,  loSS  G.  O. 
Origin  of,  1 
Organization,  2 

Partnership  assets,  on  death  of  partner,  S117 
Place  where  held,  4 
Power  over  nunc  pro  tunc  entries,  53 
Power  as  clerk,  11 
Powers,  same  as  Common  Pleas,  32 

same  England.  1 
Practice  of  law  cannot,  6 
Procedure  where  interested,  10 

motion,   10 

action  of  Common  Pleas,  10 
Proceedings  in  aid  of  execution,  jurisdiction,  1912 
Power  to  hear  common  law  action,  21 
Power  'to  appoint  trustee,  1253 
Process,  etc.,  to  issue,   17.  2011 


INDEX  2013 

(References  are  to  sections.) 

PROBATE  COURT  AND  JUDGE  — Continued. 
Procedure  in,  36 

Code  governs,  36 

required    State   finding,    36 
Qualifications  of  judge,  6 
Questions  of  fact,  may  determine,  35 
Railroad  train,  duty  as  to,  2002 
Rank  of  court,   3 

Receiver  may  be  appointed  by,  when,  26 
Required  to  state  findings,  when,  36 
Road   appeals.     See  Appeal,   1785,   1805,    1812 

abandonment  of   roads,   2001 
Rooms  for,  etc.,  4 
Rules  of  practice,  to  make  and  submit  to  Supreme  Court,  15 

of  Common  Pleas  to  govern  when  applicable,  32 
Seal  of,  1591  G.  C. 
Sherifl's,  etc.,  to  attend,  2010 
iSubpoena  for  witnesses  issued  by,  2011 
Sureties  of,  application  for  discharge,  12195  G.  C. 
Telegraph  lines,  duty  as  to,  1875 
Terms,  wlien  exist,  5 

Terms  of  court  in  criminal  jurisdiction,  5 

TransQript  on  appeal.     See  Transcript  on  error,  12264  G.   C. 
Trust  funds,  to  direct  investment  of,  514 
Vacation  or  modification  of  judgment  by,   11643  G.  C. 
Wills,  duties  as  to.     See  Wills. 
Who  may  be,  6 
Administration  of  estates: 

Accounts,  may  require  filing  of,  741 

to  be  filed  in,  721 

may  allow  on  oath  of  one  of  two  or  more  executors,  etc.,  709 

may  refer  to  commissioner,  738 

may  open,  when,  743 

may  examine  executor,  etc.,  under  oath  as  to,  733 

may  give  further  time  to  file  exceptions  to,  729 

notice  of  filing  and  hearing  to  be  given  by,  729 
Administrator  de  bonis  non,  may  appoint,  1.52 

Appraisement   of   land,   may   order,   included   in   inventory  of   person- 
alty, 299 
Assets,  may  extend  time  for  collecting,  445,  448o 

proceedings  against  persons  suspected  of  concealing,  etc.,  395,  414 

judgment  a  lien  on  real  estate,  408 
Bond  of  executor  or  administrator  to  require,  83,  124 

may  authorize  suit  on,  269 

may    require    executor,    etc.,    to    execute    bond    of    indemnity    to 
surety,  when,  253 
Claim  of  executor  against  estate  presented  for  allowance,  633 

notice  required  to  be  given,  6.33 

requisition  to  reject  claim  against  estate,  when  filed  in,  561 

notice  to  be  issued  on,  561 

not  due  in  two  years,  may  order  executor,  etc.,  to  retain  funds 
to  pay,  571 

or  bond  to  be  taken  for,  571 

decision  of  court  not  conclusive  against  executor,  etc.,  580 
Compensation  of  executor,  etc.,  to  allow,  654 
Compounding  of  debts  due  estate,  may  approve  of,  450 
Damages  for  wrongful  death,  to  apportion  funds  on  settlement  of,  536 
Desperate  claims,  application  for  disposition  of,  made  to,  456 

proceedings  on,  459,  463 


2014  INDEX 

(References  are  to  sections.) 

PROBATE  COURT  AND  JXJDGE  — Continued. 
Distribution,  petition  to  enforce  filed  in,  761 

to  issue  citation  against  executor,  etc.,  761 

service  on  non-resident,  770 

hearing  and  judgment,  774 

all  necessary  parties  brought  in,  777 

may  send  case  to  Common  Pleas,  779 
Foreign  executor,  etc.,  power  of  court  over,  188 
Insolvent  estate,  to  appoint  commissioners,  993 

report  of  commissioners  to  be  made  to,  998 

to  make  provision  for  contingent  debts  of  estate,  982 

appeal  from,  if  commissioners  reject  claim,  1004.  1008 

order  of  distribution  made  by  on  return  of  list  of  debts,  976 

may  compel  rendition  of  account,  992 

to  fix  compensation  of  commissioners,  1012 
Inventory  of  personal  property  to  be  returned  to,  281 

proceedings  on  exceptions  to,  312 
Investment   of   moneys    belonging   to   heirs,    etc.,    unclaimed.     See   In- 
vestment, 786 

may  order  payment  of  invested  funds,  791 

responsible  for  safe  keeping  of,   794 
Legatee  may  be  required  by  to  give  bond  before  distribution,  696 
Letters  testamentary  to  grant,  when  and  how,  72,  71 
See  Letters  Testamentary. 

of  administration,   when  executor   renounces,    100 

on  death  of  executor,  94 

in  what  order.  114 
Notice  of   appointment  of   executor,   etc.,   how   evidence  of,   perfected 

in,  546 
Removal  of  executor,  etc.,  by,  213 
Resignation  of  executor,  etc.,  may  receive,  210 
Sale  bill  to  be  returned  to,  491 
Sale  of  lands,  jurisdiction  as  to,  813 
See  Sale  of  Lands. 

proceedings  for,  813,  833 

may  determine  equities  and  priorities.  814 

sale,  how  ordered,  847 

order  to  contain,  what,  850 

to  appoint  appraisers,  857.  861 

to  order  assignment  of  dower,  857 

may  set  aside  appraisement,  880 

may  fix  amount  for  which  to  be  sold,  880 

and  manner  and  place  of  sale,  633 

may  order  deed,   890 

and  secure  dower  when  specially  assigned,  870 
Sale  of  personal  property  though  will  directs  otherwise,  47C 

may  order  same  sold  at  private  sale.  479.  495 
Surety  may  apply  to  for  release  from  bond,  243 
Vouchers,  may  allow  what  expenditures,  without,  723 
When  Probate  Judge  is  interested,  etc.,  effect.  9 
Appeals  to.     See  Appeal. 

Accounts,  settlement  of,  of  executor,  guardian,  etc.,  39 
Administration  of  estates,  39 
Completion  of  real  contracts,  39 
Ditch,  county,  1833 

township,   1857 
Guardians  and  trustees,  39 
Insolvent  estates.  39 
Roads.  State  and  county,  etc.,  1785 

township,  1805 


INDEX  201 5 

(References  are  to  sections.) 

PROBATE  COURT  AND  JUDGE  —  Continued. 
for  damages,  1812 
Sale  of  real   estate  by  executors,  etc.,  39 
Widow,  allowance  to,  39 

See  Widow's  Allowance. 
Appropriation  of  property  by  private  corporations : 
Abandonment  of  property,  duty  on,  1725 
Costs,  may  apportion,  1746 
New  trial,  may  grant,  1718 
Petition  to  be  filed  in,  1679 

to  issue  summons  on,  1690 

proceedings  on,  how  conducted,  1692 
Proceedings  in  to  condemn  road-bed  of  unfinished  railroad,  1731,  173JI 
To  appoint  attorney  for  absent,  etc.,  parties,  1694 
When  interested,  what  proceedings  had,   1682 
Appropriation  of  property  by  municipal  corporations,  1748 
Assignment  for  Creditors: 

Accounts,  to  examine,   1653 

to  publish  notice  of  filing  and  hearing.  1653 
Assignee  to  appear  before,   1546 
Bond  of  assignee,  to  be  approved  by,  1546 

new  bond  may  be  required,   1562 

of  trustee,  1572 
Claims,  to  order  disallowance  of,  1635 
Compensation  of  assignee,  etc.,  to  fix,  1642 
Deed  of  assignment  to  be  filed  in,  1546 
Dividends,  to  declare,  1653 

Examination  of  assignor  or  assignee,  may  require,  1585 
Fees  allowed  to,  6358  R.  S. 

Former  assignment,  proceedings  by  in  case  of,  1576 
Fraud,  to  make  and  enforce  orders  to  prevent.  1585 
Fraudulent  assignment,  etc.,  proceedings,  when  set  aside,  1580 
Homestead,  may  order  set-off,   1598 
Incumbrances  on  real  estate,  to  order  payment  of,  1618 
Removal  of  assignee,  if  no  bond  ^ven,  1559 
Report  of  assignee  to  be  filed  in,  1628  ' 

report  and  settlement  to  be  made  to,   1653 
Resignation  of  assignee,  may  accept.  1561 
Sale  of  property,  to  fix  terms  of,  1610 
Trustee,  to  appoint,  when,   1561 

creditors  may  petition  for  election  of.    1564 

to  give  notice  of  meeting  for,  1564 

to  appoint  person  elected,  1564 

for  property  fraudulently  conveyed,   1580 
Guardians : 

Appointment  of,  1319 

Bond  of,  to  approve,  1323,  1314 

exceptions   to,    1343 
Lease  of  lands,  may  order,  1433 

application  for,   1434 

proceedings,  1438,   1441 
Removal  of  guardian  by,  1358,  1476,  1479 
Resident  guardian  may  be  required  to  settle,  1476.  1479 

and  give  way  to  foreign   guardian,   1477 
Resignation  of  guardian,  may  accept,  1357 
Sale  of  land,  to  require  service  of  notice  of  petition  for.  1413 

to  appoint  appraisers,  1418 

to  require  bond  before  sale.   1422  , 

to  issue  order  of  sale  for,  1425 

to  confirm  sale  and  order  deed.   1429 


2016  INDEX 

(References  are  to  sections.) 

PROBATE  COURT  AND  JUDGE  — Continued. 
Statement  required  of  applicant,   1323 
Sureties  released  on  bond  of  guardian  by,  1348 
Guardian  of  drunkards: 

Appointment  of,  by,  1535 
To  terminate  guardianship,  when,  1540 
Guardian  of  lunatics: 

Appointed  how,  1501 

Improvement  of  real  estate,  proceedings  for,   1513 
Lease  of  lands  of,  how  authorized,  1525,  1529 
Sale  of  lands  of,  how  authorized,  1522 

proceedings  to  authorize  foreign  guardian  to  sell  lands,  etc.,  1483 
•      To  terminate  guardianship,  when,  1513 
Wife  may  be  appointed,  when,  1512 
Marriage  licenses: 

To  be  issued  by,  how  and  to  whom,  1997 
Trustees  of  non-residents,   lunatics^  etc.: 
See  Trustees. 
Accounts  to  be  rendered  to  Probate  Court,  when,  1293 
Appointment  of,    1274 
Bond,  to  be  approved  by,   1277 
Citations  and  notices,  to  issue,   1294 
Compensation  of.  allowed  by,  1299 
Lease  of  sale  of  lands,  1278 
May  authorize  trustee  to  pay  over  money,  etc.,  to  foreign  guardian, 

when,  1280 
Resignation,  when  court  may  accept  or  remove,  1300 
To  determine  questions  of  settlement  of,  etc.,  1295 
appeal  from  determ.ination,  1297 
force  and  effect  of  determination,  1298 
PROBATE  OF  WILLS  — 
Appeal,  1116 

only  to  refusal  to  admit,  1118 
how  perfected,   1116 
Application    for,    1087 
statements  of,   1087 
time  of  hearing,    1089 
entry  fixing,  1090 
form  of,  1088 
Admission  of,  1105 

sufficient  proof,  1106 

preponderance,  1106 
forgetfulness  of  witness,  1106 
presumption,   1106 

judge  should  have  reasonable  assurance,  1106 
cannot  refuse  because  will  is  absurd,  1106 
testator  must  have   properly  executed  will,   1106 
importance  of  attestation   clause,    1106 
examination  of  witnesses,  1095 
what  witnesses  may,  1096 
form  of,   1197 
Binding  if  not  contested  within  two  years,  1112 
Contest  of  jurisdiction,  1086a 
Commission  to  take  testimony,  1101 
order  to  take,  1102 
entry,  1102 
form  of,  1103 
return  of,  1104 
Certified  copy,  1110 


INDEX  201' 

(References  are  to  sections.) 

PROBATE   OF   WILLS  —  Contimied. 
Codicils,  1178 

See  Codicils. 
Definition,   1081 
Error,  1114 

will  not  lie  to  admission,  1114 

will  to  refusal  to  admit,   1114 
Filing  and  recording  of,   1109 

where,   1111 
Foreign  wills,  1118-1133. 

See  Foreign  Wills. 
Joint  or  mutual  will,  1172 

See  Joint  Wills. 
Nuncupative  wills,   1158-1169 

See  Nuncupative  Wills. 
Notice,  1091 

to  whom  given,   1091 

service  of,   1092 

form  of,    1093 
Nature  of  proceedings,    1081 

common  form,  1081 

solemn  form,   1081 

is  ex  parte,  1081 

special,  1081 
Orde;r  of,   1107 

entry,  1107 

sufficient,   1107 

effect  of.    1108 
Proof,  essentials  of,  1094 

examination   of  witnesses,   1095 

what  witnesses  may,  1096 

form  of,   1097 

sufficient,  1106 
Refusal  of,  appeal  may  be  had  to  in  Common  Pleas,  1116 
Repropounding,    1115 
Spoliated  wills,  1134-11.57 

See  Spoliated  Wills. 
Testimony,  1097 

form  of,  1097 

where  witness  unknown  or  absent,   1098 
sufficient,  1099 
form  of.  1100 
Uncontestable  after  two  years,  1112 
Void  without,  1108 
When  becomes  effectual,  1108 
Witnesses,   1095 

what,  may  be  heard,  1096 

who  may  call,   1096 

only  person  interested  in  will,  1096 

unknown,  etc.,  1098 
What  may  be  admitted  to,  1082 

must  be  of  testamentary  character,  1082,  1014 

in  doubt  should  be,  1082 
When  should  be  presented,   1083 

no  time  limited,  1083 

effect  of  withholding,   1084 
only  party  holding,  1084 
Who  should  present  will,  1085 

any  party  in  interest,   1085  ' 

Where  to  be,   1086 


2018  INDEX 

(References  are  to  sections.) 

PROBATE   OF   WILLS  —  Continued. 

Probate  Court  has  exclusive  jurisdiction,   1108 

where  estate,  1086 

where  domiciled,  1086 
PROCEEDINGS  BY  CREDITOR  — 

After  settlement  of  estate,  584-593 
PROCEEDINGS  IN  AID   OF  EXECUTION  — 

Arrest,  when  order  of  may  issue,  and  proceedings  thereon,  1922    1921 
1925  ,  , 

warrant  to,  form,  1924 

form   of   order,    1925 
Ascertainable  interest  in  the  property,  proceedings  when  another  has. 

1946 
Appeal,  1950 

Attendance  of  parties  and  witnesses  enforced,  how,  1932 
Auxiliary  to  some  other,  1910 
Bond,  debtor  may  be  required  to  give,  when,  1922 

in  default,  may  be  committed  to  jail,  1922 
Common  Pleas  Court,  jurisdiction  of,  1911-1922 
Compensation  of,  clerks,  sheriff,  etc..  11 787  G.  C. 
Continuance  of  proceedings,  1931 

Probate  Judge,   11786  G.  C 
Costs,   11787  G.  C. 
Dismissal,  1949 
Debtor  of  judgment  debtor  may  be  examined,  1926 

effect  of  order  for  such  examination,   1926 

notice  may  be  given  to  any  party.    1926 

notice  to  judgment  debtor,    1928 

order  to  be  signed  by  judge  and  served  as  summons,  1948 

order  may  be  issued  before  issue  and  return   of  execution,   when, 
1926 

proceedings  for,  1927 
Debtor  may  pay  execution  against  his  creditor,  1936 

sheriff's  receipt  a  discharge  for  amount  paid,  1936 
Disobedience  of  order  for,  how  punished,   1934 
Error,   1950 

Examination  of  party,  1919 
Earnings  of  debtor,  when  and  what  cannot  be  applied  on  execution, 

1937 
Fraud,  fact  that  examination  may  lead  to  conviction  of.  not  to  excuse 

from  examination,  1929 
Injunction,  when  may  be  granted,  1943 
Hearing,  1916 
Judge  may  order  property  to  be  applied  on  execution,  1937 

when  and  what  personal  earnings  of  debtor  cannot  be  applied.  1937 
Judgment,  power  to  enforce  by  contempt  proceedings,  1935 
Jurisdiction  of  Common  Pleas  and  Probate  Courts,  1911,  1922 
Method  to  be  pursued,  1910 
Nature  of.   1910 

Oath,  examination  to  be  under.  1933 
Original  in  Probate  Court.   1910 
Order  for  examination,    1917 
Probate  Court,  jurisdiction  of.  1911.  1922 
Petition  on  motion  for,   1914 

form.   1915 
Notice,  1918 

Probate  Judge,  compensation  of  11786 
Order  to  apply  property  on  judgment,  1938 
Order  to  apply  money  on  judgment.  1941 
Proceedings  before  return  of  execution,    1921 


INDEX  2019 

(References  are  to  sections.) 

PROCEEDINGS   IN   AID   OF   EXECUTION  —  Con Hnwed. 

Proceedings  when  another  has  an   ascertainable  interest   in   the  prop- 
erty, 1946 
Proceedings  under,  1947 

receiver  may  be  ordered  to  sell  debtor's  interest.  1946 
order  to  sell,  1947 

sale  conducted  in  the  same  manner  as  sales  on  execution,   1946 
Property  that  may  be  reached,  1939 
Property  that  cannot  be  reached,  1940 

Receiver  may  be  appointed,  and  transfers,  etc.,  prohibited,  1942 
appointment  of,  1943 

liability  of  sheriff  on  bond  when  appointed  receiver,   1945 
may  be  ordered  to  sell  debtor's  interest  in  the  property.  1946 
oath  and  undertaking  by,  1945 
Reference  may  be  ordered,  1930 

examination  before  referee  to  be  certified.  1933 
must  be  under  oath,  1933 
Return  of  execution,  examination  after,  1911 

examination  before,  1920 
Second  proceeding,  1949 

Transfers  of  property  may  be  prohibited,  1942 
Who  can  bring,  1913 
Warrant  for  arrest,  may  issue,  when,  1922 

by  whom  to  be  issued  and  where  to  be  executed,  1922 
copy  of  warrant  and  testimony  to  be  delivered  to  debtor,  1922 
debtor  must  be  examined  under  oath,  1922 
When  and  where  to  be  brought,  1912 
must  be  a  valid  judgment,  1912 
execution  must  have  been  returned,  1912 
PROCEEDS  — 

Arising  from  sale  of  land  by  executor,  etc.,  how  applied,  903 
PROFITS  — 

Assignment  of  dower  in,   857 

Executor,  etc.,  not  to  derive  from  increase  of  estate,   718 
How  accounted  for,  716 
PROMISSORY  NOTE  — See  Notes. 
PROOF  — 

Appropriation    proceedings    by    private    corporation,    burden    of    proof, 

1695 
Of  claim  against  decedent's  estate,  557 

insolvent  debtors,  1632 
Of  publication  of  notice  of  appointment  of  executor,  etc.,  546 
To  obtain  service  on  non-resident  by  publication,  841 

See  Sale  of  Real  Estate. 
Of  mailing  notice  to  non-resident,  842 
PROPERTY  — 

Dead  bodies   is  not,    1013 
PROSECiUTINCx  ATTORNEY  — 

Escheated  personal  property,  to  collect,  921 
Municipal  officers,  to  prosecute  for  malfeasance,  when,  2006 
To  file  information  against  Probate  Judge  or  clerk  practicing  law,  7 
To  issiie  execution  and  pay  over  money  on  judgment  against  persons 
concealing  assets  of  estate,  etc.,  when,  414 
compensation,  414 
PROVISIONS  — 

Allowance  of  to  widow  and  children  for  support,  etc.,  324 
PUBLICATION  — See  Notice. 

Accounts  in  Probate  Court,  of  notice  of  filing,  729 
Appropriation  proceedings  by  private  corporations,  1692 
service  on  non-resident  or  imknown  person  by,  1692 
in  proceedings  to  appropriate  unfinishod   railroad  bed,   1731 
Mewspaper,  what  notices  to  be  published  in,  841,  855 


2020  INDEX 

(References  are  to  sections.) 

PUBLTCATTOX  —  Continued. 

Service  by.  in  what  cases,  840 
affidavit  to  obtain,  841 
PUBLIC  CHARITY  — 

Whsit  is,   1029 
PUBLIC  USE  — 

What  constitutes,   166G 

See  Appeopriation  of  Propeety. 
PUNISHMENT  —  1988 

See  Contempt. 
PURCHASE  — 

Title  by,  911 
PURCHASERS  — 

Appraisers,  executors  or  administrators  cannot  be,  at  sale  of  land  by 

executors,  etc.,  889,  492 
Guardian  cannot  be,  1391 
Title  of,  to  lands  fraudulently  conveyed,  822 

to  lands  derived  from  heir  without  knowledge  of  will,  1133 

Q. 
QUARANTINE  — 

Widows,  341 

R. 

RAILROAD  —  See  Appeopeiation  of  Propeety. 
Proceedings  to  compel  to  drain  land,  2003 
Unfinished  road-bed  of,  may  he  condemned,  1731 

proceedings  in  such  case,  1732 

in  what  courts  proceedings  may  be  commenced,  1733 
RAILROAD  DRAIN  —  See  Ditch.  2003 
REAL  ACTIONS— See  Sale  of  Reajl  Estate. 

Executors,  etc.,  by,  to  complete  contract  for  sale  of  land,  523 

conveyance  under,  who  to  execute  and  its  effect,  528 

parties,  523 

service,  when  petition  filed  in  Probate  Court,  523 
Form  of  petition  by  executor,  526.     See  Forms. 
Guardian  to  bring,  to  complete  real  contract  of  ward,  1398 
Heirs  of  deceased  purchaser  may  enforce  specific  performance,  523 
Jurisdiction  of  Probate  Court,  13 
REAL  CHATTELS— 

Defined,  373 
REAL  CONTRACTS  — 

Assignee  of  insolvent  debtor  may  complete,  when,  1602 
Executors,  etc.,  action  to  complete,  when,   1398  * 
REAL  ESTATE  — 

Appraisement  of,  of  decedent's  estate,  857 

of  insolvent  debtor's,  1610 

of  wards,   1418 
Action  to  sell  stayed,  when,  567 
Accounting  for,  sold,   714 
Appraised  with  personalty,  when,  299 
Completion  of  contract  for,  523 

nature  of  proceedings,  524 

petition,  526 

notice,  527 

order  for  deed,  528,  530 

hearing,   529 

form  of  deed,  531 
€are  of,  506 

Court  may  enforce  sale  by  contempt  proceedings,  889 
Error — what  is  final  judgment,  906 
Descends  to  the  heirs,  54,  915 

Distributed  according  to  law  where  situated,  757,   185.  810,  758 
Dower  in,  944 

See   Dower. 
Fraudulently  conveyed  may  be  sold,  822 


INDEX         -  2021 


(Refcrances  are   to  sections.) 


REAL  ESTATE  —  6'on(t«M6d. 

how  possession  gotten,  823 

proceeding  where,  824 
Guardian  cannot  dedicate,  1398 
Guardian,  foreign  may  sell,  1481 
Heir  takes  subject  to  debts,  800 
Heir  may  enforce  specific  performance,  532 

Improvement  of  real  estate  by  guardian  of  imbecile,  etc.,  1530-1533 
Investment   in,   by  guardian.   1367 
Jurisdiction,   when   presumed,   853 
Judgment  creditor  not  party  defendant,  when,  834 
Lease  of,   by  guardian,    1432,    1525 
Liens  on,   adjusted,   1618 
Liable  for  debts,  55,  800 
Legacy   on,    690 

Lease,   administrator  cannot,   801 
Mortgage,  administrator  cannot,  801 
Mortgage  of,  bj'  gviardian,   1400-1472 
Management  of,    by   guardian,    1392 
Not   subject  to  gift  causa   mortis,    1249 

cannot  change  real  estate  to  personalty,   1386 
Partition,   1879 

See  I'artitiox. 
Proceeds  of   sale  assets,   384 
Personal  property  first  applied  to  debts,  800 
Possession,  799 

administrator  generally  not,  799 
Record  of  payment  of  lien  created  by  will,  798a 
Rule  of  perpetuities,  1031 
iSale  of  by  guardian,  1404 
Sold  without  order  of  Court,  802,  804 

See  Sale  of  Real  Estate  Under  Power. 
Sale  by   foreign  administrator,   197-200 
Sale  by  joint   administrators,   203 

all  must  join,   203 
Sale  by  executor,  816 

See   Sale   of   Real   E-.state. 
Sale  by  assignee  of  insolvent  debtor,   1602,   1618 
Sale  by  county  auditor,  of  escheated  lands,  8599  G.  C. 
Transfer  of,  llllfi 
L^pset  price,  when  fixed,  877 

When  assets  marshaled  in  conformity  with  will,  832. 
When   action   to  sell   may  be  brought,   816 
When   considered    personal,    438 
RE-APPRAISEMENT  — 

when  to  be  ordered,  856,  880,   1625 
RECEIPTS  — See  Vouchers. 

Executor,   etc.,   required   to   produce   for   debts   and   legacies,  etc.,   paid 
and  filed  -with  account.  721 

what  items  may  be   allowed   without,   723 

order  of  record  for  payment  of  incumbrance,  798a 
RECEIVER  — 

Cannot  appoint  in  administration  of  estates,  26 
Court  cannot  appoint  during  contest   of   will,   96 
In  partnership,  26 

Probate  judge    may   appoint,   wlieii,    26 
In  aid  of  execution,   20,    1943 

Same  as  Court  of  Common  Pleas  in  actions  pending  therein,  26 
RECORD  — 

Authenticated  copy,  17a 

Account,  final,  of  administrator  or  executor  must  be  recorded,  795 

Adoption,  of  child,   1895 

of  heir,  1902 

will,  or  probate  of  will  of,   1154-1157 
Levee  ])roce('dings,  record  of,  2002 


2022  IxNDEX 

(References  are  to  sections.) 

RmjOUD— Continued. 

Tncumbrance,  paynipiit  of  798« 
^fairiaoe  records,  1!H)4 

of   ministers    authorized    to    solemnize,    1994 
Naturalization,   record  of,   1998 
Road   appeals,  of  proceedings  in,   1827 
non-cupative  will,  1166 

recorded  in  each  county  in  which  land  is  situated.  1111 
restoration  of  record  of  destroyed  will,  1154,  1157 
REDUCTTOX  OF  BOND— 
Application,   259a 
Entry,  2590. 
REFEREES  — 

Doubtful  claim  against  estate  may  be  referred  by  executor,  etc.,  to,  594 
by  wliom  approved,  594 

proceedings  when  claim  is  less  than  one  hundred  dollars,  597 
when  claim  exceeds  one  hundred  dollars,  599 
proceedings,  powers  and  compensation  of,  602 
costs,  how  awarded,  602 
Claim   disallowed   by   administrator,   etc.,   of  insolvent   estate   may   be 
submitted  to,  909 
costs  awarded  by.  972 
judgment  on  award,  973 
REFERENCE  — 

Court  may  refer   account,   1492 
Of  administrator's  account,  738 

Of  questions  arising  in  actions  in  Probate  Court,  35 
Of  doubtful  claims  against  estate,  594 
Proceedings  in  aid  of  execution,  reference  in,  1911.  1930 
REJECTION  — 

See  Presentation  of  Claims. 
Of  claims  against  estate  by  executor,  etc.,   609 
at  instance  of  heir  or  creditor,  561 
by  assignee  of  insolvent  debtor,  1628 
at  instance  of  assignor  or  creditor,  1625 
RELATIVE  DEFINED,  1200 
RELEASE  — 

See  Incumbrances. 
Effect  of,  of  debt  in  will  against  executor,  etc.,  391 
EflFect  of  assignment  providing  for,   1546 
Of  ward's  tax  title,  1395 

Of  sureties  on  administrator's,  etc.,  bond,  243 
assignee's,    1562 
guardian's,   1348 
RELEASE  OF   SURETIES  — 243  et  seq. 

See  Sureties. 
RELIGIOUS  TEACHINGS  — 

See  Guardian. 
REMAINDER  — 

Alteration  and  repairs,  affect  how,  1291 
Gain  and  loss,  affect  how,  1290 

Construction  of  devise  for  life,  remainder  to  heirs  in  fee.  1188 
of  life  estate  and  remainders  in  shares  of  stock. 
See    Dividends. 
See  Rents. 
Principal  and  income,  affect  how,  1288 
Rents.  371 

Contingent  remainder,    1033 
Dividends,   1289 
Street  assessments,   1292 
Tenant  for  life,  or  in  dower,  guilty  of  waste,  liable  to  remainderman, 

956 
Insurance  of  property,  1292 
Taxes  of  property,   1292 


INDEX  2023 

(References  are  to  sections.) 

REMOVAL  —  See  Resignation  and  Removal. 
Administrator  or  executor,  213 
Failure  to  return   inventory,   306 
Guardian,   1358,   1476,   1477 
Assignee  or  trustee,  1559,  1562,  1576 
Trustee  of  non-resident  minor,  idiot,  etc.,  1300 

of  unknown  and  non-resident  owners,  1286,  1277 
RENTS  — 

Apportionment,   371 
Accounting  for,  716 
Assignment  of  dower  in,  863 
Due  after  asi^ignmeut,    1042 
r.uardian  must  collect,    1393 
Farm  land,  371 

If  administrators  collect  must  account  for,  372 
Improvements  may  be  made  by  tenant  of  ward  as  part  of,  1443 
Mansion  house,  372 
When  will  directs  land  sold,  372 

Statement  of  value  of,  of  ward's  real  estate  in  application  for  appoint- 
ment as  guardian,  1323 

by  guardian  in  inventoiy,  1367 

in  petition  for  sale  of  ward's  real  estate,  1410 

in  application  to  make  long  lease,  1434 

of  real  estate  of  idiot,  etc.,  1528 
When  belongs  to  administrator,  371,  372 
When  it  accrues,  372 
RENUNCIATION  — 

Of  administration,  100,  119 
REPORT  — 

Appraiser's,  of  decedent's  real  estate,  863 

of  ward's  real  estate,  1422 
Assignee  or  trustee,  of  claims  presented  for  allowance,  1628 

of  payment  of  dividends,  when,  1653 
Commissioner  of  insolvent  estate,  998 
Examiner  of  county  treasury,  2014 
Executor's,  etc.,  sale  of  real  estate,  890 

when  no  sale  is  effected,  890 
Freeholder's,  as  to  lease  of  ward's  real  estate,  1522 

of  idiot,  etc.,  real  estate,  1528 
Guardian,  of  sale  of  real  estate,  1429 
Referee,  of  doubtful  claims,  against  estate,  602 
Viewers  or  reviewers  in  road  appeals,  1797 
REPRESENTATIVES  — 
Legal  —  see  Heirs,  etc. 
See  Definitions. 
Personal  —  see  Administrators  and  Executors. 
REQUISITION  — 

May  be  filed  on  executor,  etc.,  to  reject  claim  against  estate,  561.  566 

on  assignee  or  trustee  of  insolvent  estate.  1635 
Object  of,  562 

form,  563 

bond,  564 

entry  ordering,  565 

action  when  allowed,  562,  567,  568 
RESIDENCE  — 

See  Domicile. 
.Appointment  of  testamentary  guardian   without  reference  to,   1309 
Suit  as  to  determinin"  action  against  in  same  ward,  1384 
Defined,  74 


2024  INDEX 

(References  are  to  sPctions. ) 

RESIDUARY  LEGATEE— 

Discharges  lien  on  property,  60 
Form   of  bond,  58 
Is  liable  for  all  debts,  57 
Liability  upon  bond,  59 
Mnst  be  appointed  executor,  57 
Need  not  tile  inventory,  282 
When  no  administration.  57 
RESIGNATION  AND  REMOVAL  OF  ADMINISTRATOR  — 
Acceptance  of  by  court  granting  letters,  210 

Absconding  or  concealing  of  executor,  etc.,  of  insolvent  estate,  992 
Account,  for  failure  to  render,  741 

Account,  failure  to  file  by  executor  of  insolvent  estate,  992 
Acts  prior  to  removal  valid,  62,  63 
Acts  after  removal,  230 

can  only  turn  over  property  and  file  accounts,  230 
Appeal  and  error,   232 
Application  for  removal,  214 

who  must  file,  214 

essentials  of,  215 

form  of,   218 

entry,  217 

notice  of  hearing,  218 

form  of  notice,  219 
Bond,  for  failure  to  give,  83,  992 
Contest  terminating  in  favor  of  will,  162 
Court  having  jurisdiction,  209 
Causes  for  removal.,  220 

habitual  drunkenness,  220 
what  is,  220 

gross  neglect  of  duty,  221 

incompetency,  222 

hostility  between  heirs  and  executor,  221,  222 

what  constitutes  incompetency,  222 

fraudulent  conduct,  223 

removal  from  State,  224 

unsettled  demands,  225 

any  other  cause,  226 

failure  to  keep  account,  226 
refusal  to  obey  court,  226 
gross  carelessness,  226 
mismanagement,  226 

other  statutory  causes,  227 

neglect  to  file  inventory,  227 
return  of  sale  bill,  227 
file  account,  227 
new  bond,  227 
indemnity  bond,  227 
Court  should  order  filing  of  account,  229 
Discovery  of  will,  on,  102 
EflFect  of  removal,  229 

on  previous  liability,  229 

on  previous  sales  and  other  acts.  159 

is  a  judicial  proceeding,  229 
Error  and  appeal,  lies  from  order  of  removal,  232 
Failure  to  give  new  bond,  252 

to  give  bond  of  indemnity  to  surety,  253 
Fraudulent  conduct,  213 
Form  of  resignation,  212 

entry,  212 
Gross  neglect  of  duty,  213 
Habitual  drunkenness,  213 


INDEX  2025 

(References  are  to  sections.) 

KBSIGNATIOX  AND  REMOVAL  OF   ADMINISTRATOR— 6'ori<wM0d. 
Hearing,  etc.,  228 

How  authority  of  administrator  extinguished,  208 
How  may  resign,  210 
How  authority  terminated,  231 
Inventory,  failure  to  file,  308 

failure  to  return,  306 
Incompetency,  213 

Litigation  of  unsettled  demand  between  and  estate,  213 
Marriage  of  female  does  not  operate  as,   81 
Notice  of  removal,  twenty  days,  213 
Nature  of  proceedings,  208 
Notes  given  to  secure  void,  210 
Of  administrator  or  executor,  210 

not  to  affect  liability  previously  incurred,  229 
Of  assignee  or  trustee  for  creditors,  1561 

must  file  and  settle  accounts,  1573 
Of  guardian,   1357 

Of  trustee  of  non-resident  minor,  idiot,  etc.,  1295,  1300 
Power  of  court,  208 
Probate  of  will  after  granting  letters  of  administration,   162 

unless  petition  for  contest  filed  before  revocation,   162 
Removal  from  State,  213 

Revocation  where  order  wrongfully  made,  211 
,  in  wrong  county,  211 

decedent  alive,  211 

will  admitted  to  probate,  211 

where  there  is  no  estate,  211 

without  notice  and  insufficient  time,  211 
Sale  bill,  failure  to  return,  491 
Sale,  private,  failure  to  make  return,  491 
Waste,  for,  253 
RESTORATION  OF  RECORDS  — 

Will,  new  record  or  probate  when  record  destroyed,  1154,  1157 

copy   of  will,   authenticated,   may  alone  be   admitted   to   probate, 
1156 

copy  of  will  and  probate  admitted  to  record,  1154 

notice,  1157 

original  will  may  be  again  admitted  to  probate,  1155 
RESTRAINT— iSee  Wills. 
Against  execution,  1204 
Against  partition,  1204 
Against  marriage,  1205 
For  divorce,   1205 
Of  alienation,  1204 
Remarriage,  1205 
RETURN  —  See  Report,  Vekdict. 

Appropriation  of  property,  return  of  summons  m,  1690 
Assignee,  return  of  sale  by,  1613 

Assignments,  return  of  inventory  and  appraisements  in,  1594 
Guardians,  return  of  inventories  and  accounts  by,  enforced,  1362 
Sale  of  land  to  pay  decedent's  debts,  return  of,  890 

return  of  process  in  action  for,  838 
Will,  return  of  process  to  enforce  production  of,  1076,  1077 

REVERSAL  — 

Of  proceedings  in  road  appeals,  1791 

REVIEW  — 

Of  settlement  of  executor,  etc.,  743 

of  guardian,   1493 

of  trustee,  1298 
When  may   be  ordered   in   road   appeals,    1800 


2026 


INDEX 


(References  are  to  sections.) 

REVIEWERS  —  See  Viewers. 
See  Appeal  Roads. 
REVIVOR  — 

Of  action,  C.  C.   P.,   13009-11419  G.   C. 

See  Choses  in  Action. 
Of  judgment,  C.  C.  P.,  11644  G.  C. 
REVOCATION  —  See  Resignation. 

Of  letters   testamentary   or   of  administration.     See   Revocation,   eto,, 

213,   162,  306,  491 
Of  -svill.     See  Will,  1049,  1065 

REVOCATION   OF   WILLS  — 
See  WiLxs. 
Alterations,  1050 
Absent  child,  1064 

advancements  taken  into  account,  1065 
Bond  to  convey  property,  etc.,  not,    1057 
By  some  other  will,   1052 
By  sales  or  conveyance  of  property,  1056 

agreement  not  revocation,  1057 

charge  or  incumbrance  not,   1058 

may  revoke  bequest,   1059 
By  inconsistent  clauses  of  later  will,  1060 
Birth   of  child  revokes,   1062 

unless  provided  for,  1063 

provision  for,  what   is,   1063 
Cancellation,  1049,  1050 

cannot  be  in  part,  1050 
Cannot  until  after  made,  1051 
Change  of  property  not,    1058 

Conveyance  altering,  but  not  divesting  estate.  1059 
Definition,  1048 
Destruction  of  second  will,  1053 

does  not  revive  first,   1053,   1054 

in  order  to  revive  must  be  re-executed,  1054 
Expressly  revoked,  how,  1049.  1048 
Interlineation,  1051 
Implied,  when,   1049 
Intention,  necessary,   1049,   1048 
Marriage  of  woman  does  not  revoke,  1061 
New  will  or  codicil,  1049 
Obliteration,  1050 
Other  instrument  in  writing,  1055 
Of  subsequent,  not  to  revive  former,  unless,  1053 
Revocability  essential  to  will,   1014,  1048 
Tearing,   1049,   1050 

tearing,  cancelling,  etc.,  1050 

evidence  must  appear  on  will,  1050 

includes  cutting,  1050 
Will   must  show   intention,    1048 

must   have    existed    at   testator's   death,    1048 

what  constitutes,  1048 
When  provisions  inconsistent  with  terms  of  will.   1060 


INDEX  2027 

(RefercnocH  ,ire  to  sections.) 

ROAD   APPEALS— 

Abantlonment,   1825 

Additional  compensation  and  damages,  how  determined  and  paid,  1S21 

Appeals;   character  of,   1785 

Appeal  by  minors,   1707 

Appeal:    limitation,    1829 

Challenge  of  Jurors;    filling  of  panel,   1808 

Commissioners  shall  transmit  papers  to  court,   1798 

Costs   when   abandoned,    1824 

Date  when  notice  of   appeal   must  be  given,    1794 

Enforcement  of  judgment,    1818 

Entry  on  preliminary  hearing,  1806 

Error   proceedings   to   review   judgment,    1819 

Fees  and  compensation  of  officers,   1826 

Form  of  notice,   1702 

Form  of  appeal  bond,  1793 

Hearing  of   preliminary   questions   and   motions,    1801 

Journal  entry  confirming  verdict,  etc.,  1815 

Matters  upon  which  appeal  may  be  taken,  1787 

Matters  upon  which  appeal  lies,   1788 

Minors,  1797 

Notice  of  appeal  and  specifications  shall  be  in  writing,   1791 

Oath  of  jurors,  1809 

Order  as  to  payment  of  damages,  1822 

Procedure  when  proceedings  for  appropriation  of  land  abandoned,  1824 

Procedure  after  judgment   establishing   improvement,    1827 

Proceedings  after  trial,  1831 

Questions  for  preliminary   hearing,    1802 

Record  of  proceedings  in  probate  court,  1816 

Reversal  of  order  dismissing  proceedings,  1828 

Review  of  judgment  of  probate  court,    1830 

Right  to  view  premises  before  testimony  submitted,   1810 

Ta.v-ing  costs,   1817 

Ten  day  limit,   1785 

Transcript,    1799 

Tran.script  and  papers  certified  to  county  auditor,  1819 

Trial  bv  jury;  drawing  and  listing  of  names;   venire,   1805 

Trial,   1812 

Verdict  of  jury;   what  it  shall  contain;    rendition  of  judgment;   error 

proceedings,  1813 
Verdict,  etc.,   1814 
View,   etc.,    1811 
What   is   public   use,    1789 

When  order  to  open  road  shall  be  executed,   1784 
When  cases  shall  be  consolidated,   1807 
When    orders    for    payment   of    compensation    and    damages    sliall    h.' 

issued,    1820" 
Who  may  appeal,   1790 

ROADS— 

Condemnation  of  material,   1834 

power  to  purchase,   1833 

resolution,    1836 

what  mav  be  condemned,   1835 
Proceed inirs   in   Probate   Court,    1839 

appeal  bond,  1S4S 

conduct   of   trial,    1849 


2028  INDEX 

(References  are  to  sections.) 

RULES— 

Of  Commou  Pleas  to  govern  when  applicable,  32 

Of  practice,  Probate  Judges  to  make  and  submit  to  Supreme  Court    15 
RULE  DAYS^ 

For  pleading.  837 
RULE  IX  SHELLEY'S  CASE— 1189 
See  Shelley's  Case. 


SAFE  DEPOSIT  COMPANIES— See  Admixistbation  by  Trust  Companies. 

Maj  act  as  executor,  guardian,  etc.,  79 
SALE  — 

Assignee,  by  of  insolvent  debtor's  property.  1594,  1602,  1625-1601,  39 
Executor  or  administrator,  by,  of  decedent's  personal  property,  470 
See  Sale  of  Personal  Property. 

private,  not  to  be  confirmed  until  alBdavit  filed,  882 

real  estate,  816 

See  Sale  of  Real  Estate, 

notice  of  in  German  or  Bohemian  newspapers,  885 
Guardian,  by,  of  ward's  real  and  personal  property,  1405 

of  idiot  or  insane  person,  etc.     See  Guardians,  Sale,  1522 

of  non-resident  minor,  idiot,  etc.,  593 

of  ward's  coal  or  fire-clay,  1522 

sale  or  adjustment  of  dower,  1523 
SALE   BILL  — 

Of  decedent's  personal  property.     Sale  Bill,  489 
See  Sale  of  Personal  Property. 
SALE  OF  DESPERATE  CLAIMS  — 
Application  for^  458 

form  ofj  458 
Effect  of  order,   468 
Form  of  private  sale,  466 
How  sold,  456 
Jurisdiction  of  court,  457 
Kind  of  claims,  457 
Proof  required,  462 
Public  or  private,  463 
Notice  of,  459 

form  of,  461 

entry  ordering,  460 
Terms  of,  463 
SALE  OF  PERSONAL  PROPERTY  — 

Arrange  sale  bill  same  as  inventory,  488 
Affidavit  before  private  sale,  479,  495 
Clerk  of,  to  be  employed,  487 

how  sale  bill  made  by,  487 
Credit  given  unless  court  otherwise  direct,  482 
Desperate  claims,  disposition  of,  456 

See  Sale  of  Desperate  Claims. 
Discretion  of  executor,  etc.,  in  order  in  which  articles  to  be  sold,  488 
Emblements,  476 

may  be  sold  before  or  after  severance  from  land,  470 

sale  may  be  deferred  beyond  three  months,  470 

purchaser  may  enter  upon  and  possess,  370 
List  of  articles  sold  must  be  made  out.  487 

must  include  property  taken  by  widow  at  appraisement.  487 
Loss  resulting  from,  when  executor,  etc.,  not  responsible,  486 


INDEX  2029 

(References  are  to  sections.) 

SALE  OF  PERSONAL  PROPERTY  —  Continued. 
Not  to  be,  directed  by  will,  477 
Not  responsible  for  loss  on  sale  of,  when,  485 
Notes  or  bonds  for  payment  must  have  two  or  more  sureties,  483 
Notice  of  public  sale,  how  given,  479,  495 
Order  of  articles  offered,  same  on  sale  bill  as  in  inventory,  488 
Order  to  sell  personal  property  at  private  sale,  495  et  seq. 
Oath,  must  make  to  sale  bill  and  return  same,  when  and  how,  489 
Promissory  notes  not  to  be,  471 
Public  sale,  must  be  made  at,  479,  495 

when  court  may  order  sale  at  public  auction,  479,  495 

notice  of,  479,  495,  480 

form,  480 

conduct  of,  481 

credit  to  be  given,  482 

security  taken,  483 

sufficient  surety,  484 

payment,  486 

purchase  by  administrator,  etc.,  492 

warranty  of  title,   494 
Private  sale,  when  court  may  order,  495 

affidavit  required  before,  479,  495 

not  to  be  sold  for  less  than  two-thirds  appraisement,  unless,  etc., 
479,  495 

return  of,  489,  500 

how  made,  489 

terms  of,  fixed  by  Court,  how,  479,  495 

when  not  sold  within  six  months,  etc.,  479,  495 

when  made,  495 

application,  496 

form  of,  497 

entry  ordering,  498 
Personal   property   specifically   bequeathed   not  to   be  sold   until,   etc., 
470,  473  ■ 

when  and  what  personal  property  to  be  sold,  470 
Perishable,  505 

Record  of,  when  to  be  made,  16 
Regulated  by  statute,  469 
Return  of,  how  enforced,  491 
Stock,  how  sold,  502 

form  and  order,  503 

for  how  much  at  private  sale,  502 
Sureties  on  sale  notes,  must  require  two  or  more,  483 
Taken  by  widow,  472 
When  to  be  made,  478 
Without  order,  504 

When  property  discovered,  not  mentioned  in  inventory,  487 
Will  so  directing  sale  need  not  be  made,  470 

but  Court  may,  notwithstanding  order  it,  470 
SALE    OF    REAL    ESTATE  — BY    ORDER    OF    COURT  —  ADMINIS- 
TRATOR. 
Administrator  de  bonis  non,  conveyance  to  be  made  by  when,  835 

on  death  or  removal  of  executor,  etc.,  835 
Affidavit  as  to  how  private  sale  made,  882 
Answer  of  minor  defendants  by  guardian  ad  litem,  845 

of  widow  waiving  dower  by  metes  and  bounds,  etc.,  846 

and  cross  petition  of  lien  holders,  846 
Application  for  to  be  made  when  and  on  what  ground,  816 

in  what  Courts.  813 


2030  INDEX 

(References  are  to  sections.) 

SALE  OF  REAL  ESTATE  — BY  ORDER  OF  COURT  —  ADMINISTRA- 
TOR —  Continued. 
Appraised  value,  when  sale  not  to  be  made  for  less  than   two-thirds 

of,  880 
when  sale  to  be  made  for  less  than  one-third  of.  880 
Appraisement  judgment  and  order,  852,  855 

order  and  sale  may  be  made  at  same  time,  856 

where  and  how  to  be  made,  857,  863 

when  no  dower  to  be  assigned,  856 

object  and  purpose,  855 

appointment  of  appraisers,  857 

order  to  appraise,  858 

copy  of,  859 
appraisers  who  may  be,  860 

vacancy,   how  filled,   861 

to  be  sworn,  863 
valuation,  862 
actual  view,  864 
surveyor,  865 
assignment  of  homestead,  867 

who  entitled  to,  868 
assignment  of  dower,  869 

charge  on  land,  870 
report  of  appraisers,  871 
compensation  of  appraisers,  872 
confirmation  of  appraisement,  876 
Action  brought  for  what,  818 
debts,  831 
legacies,  819 

street  assessment  not,  818 
claim  of  creditor,  818 
Action,  commencement  of,  829 
v/hat  is,  829 

care  to  be  exercised,  829,  811 
Appeal,  906 
Appraisers,  appointment  of,  857 

when  land  situate  in  two  or  more  counties,  857 

can  not  purchase  at,  889 

compensation,  872 

duties,  857 

in  assignment  of,   dower,  857 

failing  to  serve,  861 

oath,  863 

order  to  appraise,  857 

report  of,  863 

where  there  is  more  than  one  tra<;t  and  dower  is  assigned  in  one 

for  all,  869 
when  dower  can  not  be  set  off,  and  rents  and  profits  are  set  off  in 

its  place,  869 
when  homestead  is  set  off,  857 
Assets,  when  to  be  marshaled  in  conformity  to  will,  832 
Bond   required   of   executor,   etc.,   to   account   for   surplus,   etc.,   before 

sale,  873 
additional  bond,  whpn,  875 
form  of,  874 

by  administrator  de  bonis  nan,  835 
to  prevent  sale,  826 

when  claim  rejected  at  instance  of  heir,  561 
of  foreign  executor.  199,  200 
Confirmation  of  sale  and  order  for  deed,  890,  892 


INDEX 


(References  are  to  sections.) 


2o:n 


8A'»E  OF  REAL  ESTATE  —  BY  ORDER  OF  COURT  —  ADMINISTRA- 
TOR—  Continued. 

collateral  attack,  892 

discretion  of  judge,  892 

refusal  for  insuflieient  nrice,  892 

title,  not  until,  892 

sufficient,  893 

may  be  presumed  when,  893 

error  cured  by,   894 

advertisement,  etc.,  894 

entry,  895 
Civil  action  is  a,  812 

Conveyance  to  be  made  by  administrator  de  bonis  non,  when,  835 
Costs,  when  objections  to  granting  order  of  sale,  854 
Death  of  administrator  or  executor,  effect,  835 
Deed  of  land  sold,  evidence  of  what,  899,  900 

vests  title  in  purchaser,  899 

form,  901 
Deferred  payments,  how  secured,  890 

Court  may  direct  sale  without  recourse  of  notes  taken  for,  890 
Distribution  of  proceeds,  895,  903,  904 

per  centum  of  administrator,  653.  663.  904 

when  Court  to  order,  814 

taxes,  346 

form  c  *  order,  895 

how  made,  903 
Dower,  answer  of  widow  waiving,  metes  and  bounds,  etc.,  846 

assignment  of,  when  and  how,  857 

specially  assigned,  a  charge  on  lands.  870 

adjustment  of  on  sale  of  equitable  interest  in  land,  825 
Entire  estate  sold,  815,  850 

or  part,  851 
Effect  of  order  of  sale,  853 

without,  sale  void,  853 

order  after  sale  voidj   853 
Error,  906 

lands  described  in  petition,  853 
Executor  or  administrator  can  not  purchase  at,  889 
Foreign  executor,  etc.,  authorized  to  sell,  when  and  how,  1132,  It»9.  I'.tT 

when  required  to  give  bond  in  this  state.  199 

to  account  for  surplus,  200 
Fraudulently  conveyed  land,  liable  to,  822 

how  set  aside,  823 

in  what  Court  action  to  be  brought,  823 

limitation  of  action,  822 

necessary  parties,  833 

title  of  bona  fide  purchaser  protected,  822 
Guardian  may  sign  consent  for  ward,  838 

but  not  guardian  of  person  only,  838 

when  guardian  ad  litem  may  be  appointed.  844 

can  not  waive  notice  or  service  of  summons,  844 

form  of  order  appointing  guardian  ad  litem,  844 

of  answer  of  minor  defendants  by,  844 
Guardian  at  litem,  844 

See  Guardian  and  Ward. 

when  appointed,  844 
entry,  845 

when  need  not  be,  844 

duties  of,  844 

answer,  845 


2032  INDEX 

(References  are  to  sections.) 

SALE  OF  REAL  ESTATE  — BY  ORDER  OF  COURT  —  ADMINISTRA- 

TOR  —  Continued. 
How  sale  prevented,  826 

Improved    lands    not   to    be    sold    for    less    than   two-thirds    appraise* 
ment,  880 

unimproved  not  less  than  one-half,  880 
Inventory  of  may  be  required,  83,  299 
In  what  Court  action  brought,  813 
Jury  trial  when,  812 
Judgment  and  order  of  sale,  852 

entry,  852 
Jurisdiction  of  Probate  and  Common  Pleas  Court,  28 
Judicial  when  is,  877,  810 

Legacy,  when  proceedings  authorized  to  sell  land  to  pay,  819 
Liens,   Court  to   determine  priorities,   814 

answer  and  cross-petition  of  lien  holder,  846 

lien  holders  and  mortgagees  necessary  parties,  833 

release  and  satisfaction  of  lien  to  be  entered  on  record,  814 

fee  for  recorder  to  be  taxed  in  cost  bill,  814 
Mortgage  cannot  be  sold  subject  to,  815 
Motion  to  set  aside,  898 

when  to  be  made,  898 

when  granted,  898 

rights  of  parties,  898 

form  of,  898 
Nature  of  proceedings,  812 

Non-resident,  affidavit  to  obtain  publication  for,  841 
Notice  to  parties  by  publication,  840 

of  sale  when  and  how  given,  883 

in  German  or  Bohemian  newspaper,  885 
Order  of  sale,  876,  878 

what  may  be  included  in,  850 

of  appraisement  and  sale  may  be  made  at  same  time,  when,  858 

must  be  complied  with,  877 

formal  not  required,  877 

return  of  public,  890.  878 

return  of  private,  890,  878 
Order  for  appraisement  and  assignment  of  dower,  897 

for  public  sale,  897 

private   sale,   897 
Partial  sale,  when  may  be  made,  851 
Parties   necessary,    833 

defendant,  834 

wife  of  heir,  834 

legatee,  834 
Partition  proceedings,  when  action  pending  for,   1880 

sale  in  partition  no  bar  to  sale  to  pay  debts,  1884 
Petition  for,  what  to  contain,  830 

for  sale  of  equitable  interest,  825 

essentials  of,  831 

names  of  parties,  831 

verified,  831 

rules  of  ordinary  pleadings  govern,  831 

form  of,  836 

filing,  837 

entry,  837 
Private,  when,  879,  881 

order  for,  897 

affidavit,  as  to  how  made,  882 
Publication,  notice  to  parties  by,  838 


INDEX  2033 

(References  are  to  sections.) 

SALE  OF  REAL  ESTATE  — BY  ORDER  OF  COURT  —  ADMINISTRA- 
TOR —  Continued. 
affidavit  to  obtain,  841 
Purchase  money  may  be  ordered  accepted  in  cash,  890 
Public,  when  to  be,  879 
notice  of,  883 

street  number,  etc.,  884 
German  newspaper,  885 
form  of,  887 

points  to  be  observed,  886 
conduct  of,  888 

ordinary  care,  888 
statement  of  administrator,  888 
sham  bidders,  etc.,  888 
Prevented  by  heir  giving  bond,  826 
by  widow,  827 
form  of,  828 
Proof  required,  848 

necessity  required  by  statute,  848 
Purchaser,  who  may  be,  889 
title,  893,  902 
writ  of  possession,  902 
caveat  emptor  applies,  902 
not  affected  by  reversal,  902 
as  to  emblements,  902 
taxes,  902 
Power  of  Court,  814 

determination  of  equities,  814 
release  of  heir,  814 
nature  of,  815 

according  to  issues  made,  815 
,   Re-appraisement  when  may  be  ordered,  856,  880 
Removal,  resignation,  etc.,  of  executor,  etc.,  effect,  835 

sales  of  former  executor,  etc.,  valid,  159 
Report  of  appraisers,  863 
Return  of  service,  838 
Return  of  order  of  sale,  878,  890 
when  to  be  made,  878,  890 
what  must  contain,  891 
form,    878 

when  no  sale  eifected,  878,  896 
of  private  sale,  878 
Re-sale,  896 

when  ordered,  896 
entry,  896 
Service  of  summons,  838 
actual,  839 
must  be,  838 
constructive,  840 
reason  for,  840 
affidavit  for,  841 
notice  of,  838,  841 
when  heir  or  devisee  unknown,  841 
newspaper  mailed,  842 

entry,  842 
waiver,  843 
form,    843 

guardian  ad  litem  cannot,  843,  844 
Stay  of  proceedings  when  claim  rejected  at  instance  of  heir,  etc.,  561 
Surplus  proceeds  how  considered,  905 


2():>4  INDEX 

(References  are  to  sections  ) 

SALE  OF   REAL  ESTATE  — BY  ORDER   OF  COURP  —  ADMINISTRA- 
TOR —  Continued. 

appeal,  906 

error,  906 

judicial  is,  877 
Surviving  executor  may  sell,  107 
Securing  payments,  897 

mortgage,  how  made,  897 
Statute  complied  with,  811 
Trial  if  contested,  849 

costs,  etc.,  854 
Title  may  be  quieted,  815 
Terms  of  sale,  847,  880,  879 

Title  of  heirs,  in  land  set  off  to  widow  for  dower  may  be  sold,  850 
Venue  of  action,  813 

When  sale  not  to  be  made  for  less  than  two-tliirds  appraised  value,  880 
When  Court  to  order  sale,  847 

Whole  estate  to  be  sold  when  partial  sale,  would  injure  residue,  851 
Will  authorizing  no  order  required,  802 
When  executor,  etc.,  authorized  to  sell  real  estate.  816,  802,  819 

when  authorized  by  terms  of  the  will,  802 

when  testator  has  given  a  legacy  by  will  that  if  effectual  to  charge 
the  real  estate  and  there  is  not  sufficient  personal  estate  to 
pay  it,  819 

when   personal   estate   is   insufficient  to   pay   the  debts  of   the  de- 
ceased, allowance  to  the  widow  and  children  and  charges  of 
administration,  816 
Will  or  statute  followed,  811 
When  action  to  be  brought,  816 

limitations  as  to,  817 

while  unpaid  debts  exist,  817 
What  may  be  sold,  820 

all  interest  of  deceased,  820 

equitable  interest,  825 

land  fraudulently  conveyed,  822 
What  cannot  be  sold,  821 

not  for  costs,  etc.,  821 
Who  may  become  purchaser,  506,  889 

appraiser  cannot,  889 

administrator  cannot,  889 

agent  for  administrator  cannot.  889 
Widow,  answer  of,  846 

cross-petition,  846 

heir  may  file,  846 
SALE  OF  REAL  ESTATE  —  UNDER  POWER  — 

Administrator  with  will  annexed  may  complete,  806 
Account  must  set  out  in  detail,  810 
Action   to  construe  power,   810 
Construction  of  power,  805 

must  be  strictly  pursued,  805 
Contingencies  complied  with,  power  ends,  807 
Control  of  Court  over  power,  808 
Deed,  form  of,  809 
Distributed  as  power  directs,  810 

same  as  under  order  of  Court,  903 
Debts  barred  by  statute,  805 
Expiration  of  power,  807 
Judicial  not,  810 
May  be  implied,   803 

not  further  than  necessary,  803 


I 


INDKX  2085 

(References  arc  to  seel  ions,  i 

SALE  OF  REAL  ESTATE— UNDER   VOW  KH— Con  tinned 
Naked  power,  805 
Power  defined,  803 

Purchaser  need  not  inquire  as  to  payment  of  del)ts,  805 
Power  can   not  be  delegated,  806 
Title  under  power,  804 

when   executor   has,   804 
When  authorized  by  will,  802 
What  constitutes   power,   803 
Who   can  execute  power,   806 
all  must  join,  806 
satisfied   legacy,   686 
SCHEDULE— 

Allowance  to  widow  or  children  to  be  stated  in  separate,  324 
Assignee   or  trustee  of   insolvent  to   file   schedule  of  debts   or    lial)ili- 

ties,  L594 
Insolvent  debtor,  schedule  of  debts  to  be  filed;   what  to  contain,    15!)4 
SCHOOL— 

Appropriation  of,    1748 

school   lands  by   railroad   company,   1747 
Decedent's   personal    property    escheated   to    State    applied    to   support 

of,   921 
Widow  and  children  entitled  to  books,  320 
SEAL— 

Of  Probate  Court,   1591  G.  C. 
SECURED  CLAIMS— 

Dividend  on,  974,  1631 
SECURITIES'— 

In   what,   executors,  trustees,  etc.,  may   invest.  514 
See  Investment  of  Funds. 
guardians,   1367,  514 
For  claim  against  insolvent  debtor  to  be  stated  in  affidavit  of  claim- 
ant.   1632 
examination   of  claimant  as  to,   1632 
SECURITY  FOR  COSTS— 

On  complaint  against  municipal   officer,  2006 

In    proceeding   to   establish   joint   sub-district,   2013 

When  plaintiff  must  give  C.  C.  P.,  12359  G.  C. 

•SENn.E  de:\ientia— 

Disqualifies  person   from  making  will,   1022 

See  Testamentary  Capacity. 
SEPARATE  TRIAL— 

In  condemnation  suits,   1711 

See  Appeals,  Ditches. 

SERVICE — See  Notice  and   Summons. 

Appropriation    proceedings,    in,    1690,    1731,    1742 

Actual,  841 

By  publication,  840 

affidavit  to  obtain,  840 
Lands,   in   action   by  executor,  etc.,  to  sell,   838 

Non-resident  executor,  on,  in  action  for  failure  to  pay  ln'ir,  etc.  after 
order  of  distribution,  770 
SET  OFF— 

Code  of  Civil  Procedure,  11323  G.  C. 

Affidavit  of  claim  against  insolvent  estate,  must  show,    1(132 
SETTLEMENT— 

See  Contracts. 
'■SETTLEMENT  OF  ACCOUNTS— 

See  Accounts,  Administrators,    KxEctnoRs.   GrAKniANs. 


2036  INDEX 

(References  are  to  sections.) 

SHEEP— 

Appeal    from   allowance    by   co-commissioners.    1990 
specific  legacy,  C75 

Widow  and  children  entitled  to,  320 
SHELLEY'S  CASE  — 

Does  not  apply  to  will,   1189 

Rules   in,   1189 
SHERIFF  — 

Amercement  of.  2010 

Jury  in  Probate  Court,  to  summon,  1690 

Will,  to  serve  process  to  enforce  production  of,   1076 
liability  for  neglect.   1077 
SICKNESS,  LAST  — 

Expenses    of,    a    preferred    claim,    647 
SIGNATURE  — 

Of  person  making  will,  at  each  end.  and  thereof,  1037 
how   made,    1039 
SISTER  — 

See  Descent. 

Inherits  property,  when,  915  et  seq. 
SOLICITOR  — 

To  prosecute  claim  against  municipal  officer.   2007 
SPECIAL    ADMINISTRATOR  — 

Action  cannot  be  brought  against  by  creditors  of  decedent,  150 

Application    for,     131 

Application    for   citation,    143 
entry    ordering,     145 
form    of,    144 

Appointment  of  to  preserve  effects  of  estate,  129 

Bond   and   conditions.    133 

Bond,   must  give,    133 
form    of,    134 

Compensation,   of,    137 

Committing  to  jail,   149 

Definition,    128 

Duties  and   powers,   137 

cease  on  appointment  of  regular  executor  or  administrator,  141 

Form   of  letters,    136 

Form   of  citation,   146 

Form  of  writ  of  attachment,    148 

How  proceeded  against  by  executor,  142 

In    discretion    of    Court,    132 

Need  not  file  inventory,   128 

Not  of   frequent   occurrence,    128 

Order   appointing,    135 

Ordering  writ  of  attachment,    147 

Powers  limited  to  collect  and  preservation  of  property,   128 

Power    to    sell,    139 

Power  to  pay  debts,   140 

Regular    administrator,    proceed   against,   how,    142 

What  delay  warrants  appointment,    130 

When  power  ceases,   141 

When   appointed,    129 
contest  of  will.  129 
other  causes  delay  granting  of  letters,   129 

Who  may  be,    132 
SPECIFIC  PERFOR^IANCE—  See  Appeal,  39 

Of  contracts   of  decedent,  523 

Of  contracts  of  idiot,  etc.,  1398 


INDEX  2037 

(Ri-fercnces  are  to  Rections.) 

SPENDTHRIFT— 

Guardians 
SPINNING  VVHEEI^— 

Widow  entitled  to,  320 
SPOLIATED    WILLS  — 

Application   for  probate,   1142 

who    may    offer,     1142 

essentials  of,    1142 

form  of,   1143 

notice   of,    1144 

ordering    notice,    1145 
entry  on,   1145 
Admission  to  record,   1154 
Authenticated   copy   recorded,    1156 

notice  that  copy  has   been  admitted,   1157 
Appeal,  1153 
As  applied  to  wills,  1139 
Burden  of  proof  is  on  proponent,   1136 
Court  to  find  and  establish  contents  of  when,  1148 
Definition,    1134 
Degree  of  proof,    1149 

must  satisfy  judge,    1149 
Effect  of  establishing,    1152 
Error,  1153 
Examination  of  witnesses,    1146 

same  as  original  wills,   1147 
How  admitted  to  probate,  etc.,  1135,  1152 

Lost  after  probate,  but  before  record,  may  be  recorded,  when,  1148 
Must  have  been  a   will,   1136 

Must   have   been    destroyed    before   death    of   testator,    1136 
Must  be  duly  executed,   1137 
Must  have  been  lost,   spoliated  or  destroyed,   1139 

evidence  as  to,   1139 
Must  have  been  lost  subsequent  to  death  of  testator,   1140 
Not  revoked  at  death  of  testator,   1138 
Nature    of    proceedings    to    establish,    1147 

same   as   ordinary   will,    1147 
Notice  of  application  to  admit  to  probate,  how  given,  1144 
On  what  proof  established,    1148 
Order    establishing,    1151 

entry,   1151 
Original    will    afterwards    admitted,    1155 
Probate  of,  1135 
Proof   of   contents,    1150 

Served,  who  must  be  on  application  to  admit  to  probate,   1144 
Testimony  of  absent  witnesses   ordered  taken,   1146 
Testimony  of  witnesses  reduced  to  writing,   1146 
Witness,  what  to  be  examined,   1146 

STATE   OF   OHIO  — 

Escheat    of    property    to,    919,    921 

STATE  ROAD  APPEAL  — See  Appeal,   1785 

STATEMENT  — 

In  lieu  of  inventory.     See  Inventory. 
Made  to  Court  by  executor,  etc.,  in  partition  sales,  1880 
Of  ward's  estate  on  application  for  appointment  as  guardian,   1323 
Of  money  in  county  treasury  to  be  furnished  by  auditor  to  examiners, 
etc.,   1129   R.   S. 

STATUTE    OF    FRAUDS  — 

Promise   of    administrator    within,    607 
Promise  of  guardian   not  within,   1380 


2038  INDEX 

(References  are  to  sections.) 

STATUTE    OF    LIMITATIONS  — 

See  Assignments:     Limitation  of  Action. 
Administrator  must  collect  claim  before  barred,   444 
Administrator  cannot  revive,  608 
Action   on   distribution   barred   in   six  years,   756 
Debt  of  executor,   632 

when  begins  to  run,  632 
Debt  of  heir,  760 
Dower   affected   by,   947 
General    provision,    607,    608 
Guardian   must  plead,    1384 

Not  sued  on  within  six  months  after  rejection  barred,  60n,  610 
On  guardian's  bond,    1352, 259 
Payment  prevents  running  of,  608 
Real  estate  cannot  be  sold  for  debt  barred,  805 
Testator  may  revive  by  will,   60S 
When   begins   to    run,    44  4 

When  begins  to  run  against  funeral  expenses,   552 
When  claim  once  allowed  by  administrator  statute  does  not  run,  808 

STAY   OF   EXECUTION  — 

Code  of  Clivil  Procedure,  12265  G.  C. 
STEALING  WILI^- 

Punishment  for,  12451  G.  C. 
STOCK — See  DividExNds. 

Care  of,  522 

Gift  of,  078 

How  sold  by  executor,  etc.,  502 
application  for,  503 

May  be  paid  over  in  kind,  when,  751 

Of  life  estates  and  remainders  in  shares  of,  6!)2 

Re-issue  of  last,  2014c 
proxy  to  vote,  522a 
STRAW— 

When  assets,   368 

Sale   of.    471 
SUBSCRIPTION— 1037-1040 
See    Signature. 

SUIT  — 

See  Action,  Limitation  of  Actions. 

SUI^BIONS  — 

Appropriation  proceedings  by  private  corporation,  in,  1690,  1747,  1742 

in  proceedings  to  appropriate  unfinished  roadbed  of  railroad,  1731 
Contempt,   Probate   Court  to   issue   in   proceedings  for   when,    1980 
Service  and  return  of  in  action  for  sale  of  land  by  executor,  etc.,  838 

waiver  of  service,  838 

guardian  ad  litem  can   not  waive,  844 
Service   by   publication.    840 
Manner   of  service   and   return   generally,   839 

how  served  on  corporations.  11201  G.  C. 

on   infants,    839 
Who    may    serve,    839 
What  equivalent  to  service,  840 
When    returnable,    840 

SUPERIOR  COURT  — 

to  compel  foreign  executor,  etc.,  to  account.  190 

in   action  on  administration   bond,  261 

in   proceedings   by   creditors   against  heirs,   etc.,   after   settlement, 

etc..    •'^85  _  __ 

in  proceedings  to  condemn  unfinished  roadbed  of  railroad.   1733 


liVDEX  2039 

(References  are  to  sections.) 

SUPPORT  — 

Ser    Widow's  Allowance. 
Lease  of   ward's    land   for,    1433,    1526 

See  Wrongful  Death. 
Sale   of   ward's    lands    for,    1405,    1522 
See  Guardians. 
SURETIES  — 

Application     for     indemnity,     252 

form  of,   254 

sufficient    cause,     255 

indemnity  bond,   25(5 
May  require  executor,  etc..  wasting  estate  to  give  indemnifying  t>ond, 
253 

foreign  executor,  193 

to  render  an  account,   253 
Bound   by  order  of  Probate  Court,   259 
Examination    of.    242 

Executors,  etc.,  of,  may  require  creditors  to  sue,  12191  G.  C. 
Entry    ordering    notice,    246 
General   liability,   259 
Liability    of    prior    sureties,    250 
Liability   of   new   sureties,   251 
Number  of,  must  be  two  or  more,  83,   124,  241 
Of  legatee  requiring  legacy  to  be  paid  within  two  years,  717 
On  appeal  of  executor,  etc.,  claim  against  estate,  641 
Order    takes    effect   when,    248 
On    notes    at    administration    sale,    483,    484 
Parties  in  action  to  enforce  distribution,  783 

on   administration   bond,   255 

what  defense  may  make,  783,  276 
Payment  of  claim  of,   of  deceased  insolvent  debtor,  082 
Qualifications    of,    of    executors,    etc.,    86,    240,    241 
Release    of,    of   executors,    etc.,    795,    243 

death  of  surety  operates  as,  243 

form    of    application,     245 

notice  to  executor,  etc.,   required,   243 

form    of    notice,     247 

not    released    until    executor,    etc.,    gives   bond,    243 

extent  of   liability   of,   243,   249 

costs  paid  by  surety  unless,   243 
Rights  of  certain  not  affected,  625 
Rights  on  additional  bond,   258 

When   insufficient,   new   bond    may  be  required,   248 
Appeal   bond,  43 
Assignnient  for  creditors:  , 

May  require  assignee  or  trustee  to  give  new  bond,   1562 

discharged  from  liability  on  new  bond  given,   1562 
Jointly   liable   with    assignor,   may   present  and   prove   claim   aguinst 
estate,   1632 
Guardians,    etc. : 

Exceptions    to,    sufficiency    of,    1343,    1353 
Additional   may   be    required,    1343 
Release    of,    how    obtained,    1348 

notice  of  application,   1348 

extent   of   liability,    1348 

SURVEY  — 

Of  ward's  land  into  town  lots  ordered,  when,  1418 

SURVEYOR   - 

See  Sale  of  Real  Estate. 
,         To  attend  viewers  in  State  and   county   road   apj)eals,    1795 


2040  81-1117  vol.  1  INDEX  §1118-2024  vol.  2 

(References  are  to  sections.) 

SURPLUS    PROCEEDS  — 

Of  sale  of  real  estate  by  executor,  etc.,  considered  and  disposed  of  as 

real  estate,  905 
Disposition  of,  of  estate  of  non-resident  decedent  in  business  here    17C 

SURVIVING   EXECUTOR  — 
Powers  of,   107 

SURVIVING  PARTNER  — 

See    Partnership    Assets. 
Rights   and   duties   of,    417 

SURVIVING  TRUSTEE  — 
May  execute  trust,  1265 

T. 

TABLES  — 

Contiiigtiil   (lo\\er,   2142 

Dower  on  Carlisle,  21.39 

Uower  on  American,  2140 

Expectation  of   life,  2142 

Mortality,  2138 

Present  value  of  certain  annuity,  2144 

Present  value  of  sum  certain,  due  at  end  of  number  of  ytai>.  214o 

TAXES  — 

All  in  hands  of  administrator  liable,  511 

Assessments,    663 

Assessments    special,   apportionment,    1292 

Direct  inheritance  tas:  —  see  Inheritance  Tax,  343 

Duty  of  executor  to  par,  506 

Estate  of  decedent,  taxes  a  preferred   claim  agniii-t.   047 

Guardian   must   list,    etc.,    1393 

Execution   for,    no   exemption   or   stay,    511 

Payment  of,   663 

order  of,   663 
Executor  or  administrator  must  pay,  when,  95.  663 
Must  be  where  administrator  resides,   205 
Executor  to  li.st  personalty,   511 

liable  for  real  tax,  when,  511.  663 

liable  to  devisee  for  neglect  to  list  or  ]):iv.  oil 

lien   for  taxes   advanced,  etc.,   1392,   511     ')03 
In  assignments,    1648 

Uen  for  taxes  advanced,  etc.,    1392.  51  i.   G63 
When  cliarged  to  income.  2li2 
When   become   a   lien,   511  ' 

When    executor,    663 
When  heirs  should  pay,  662 
When   listed,   511 

When  listed  in  co-administration,  205 
When  testamentary  trustee  liable,  511 
TAX  TITUE  — 

Release  of  ward's  by  guardian,   1395 

elfect    of   tender    to    release,    1395 

TELEPHONE  — 

See   Appuopkiation,   Franchises. 

TELEGRAPH,  ETC.,  COMPANIES  — 

See  Appropriation,  Franchises. 
Appropriation  of  property  by,    1876 
Public   grounds,    streets,    etc..    1876 

proceedings    in    Probate   Court   to   appropriate,    1876 

TENANT  — 

See  Life  Tenant. 
Life,  guilty  of  waste  forfeits  estate,  8503  G.  C. 
In  dower, "guilty  of  Avaste  forfeits  dower,  956 


INDEX  2041 

(References  are  to  sections.) 

TERM  — 

Of  office  of  probate  judge,  2 
TERMINATION   OF   TRUST  — 
Heirs   cannot,    1304 
Court  wdll  not,  when,   1304 
TER]\IS  OF  PROBATE  COURT  — 

Error  in  real  estate  proceeding,  898 
For  civil  business,  5 

criminal   business,   5 
Nunc  pro   tunc  entries,  53 
Proceeding  in  error,  52 
Probate  Court  has  wliat,  5 
TERISHS  OF  SALE  — 

Of  personal  property  of  decedent,  479,  495 

of  insolvent  debtor,    1610 
Of  real  estate  of  decedent,   880,  879 
of  ward,   1425 
of  insolvent  debtor,  1610 
TESTAMENT- See  Hill.     Definition. 

Forging,  altering  or  counterfeiting,  how  punished,  13083  G.  C. 
Stealing,  destroying,  or  secreting,  how  punished,  12451  G.  C. 

allegation  of  property  or  value  unnecessary,   13591,   13592  G.  0. 

TESTAMENTARY  CAPACITY  — 

Blind,  deaf  and  dumb  persons,  1023 
Idiots,  imbeciles  and  lunatics,  1022 
Not   under   any  restraint,    1025 

meaning  of,   1025 
Old   age,    1022 

Persons  under  guardianship,   1024 
Sound    mind   and    memory,    1021,    1082 

test   of,    1021 
Senile   dementia,    1022 
Testator,     lOiil 
TESTAMENTARY  DISPOSl  IION  — 
What    is,    1013 

TESTAMENTARY  GUARDIAN  — 
Bond  of,  1310 

when  not  required,  1310 
Duties    and    liabilities,    1309 
Entitled  to  preference,   1309 
Grandfather   cannot,    1307 
How    designated,    1307 
Investment   of   funds,    1385 
Need  not  be  express  designation,   1308 
Such    guardian    to   have   preference,    1309 
Who    is,    1307 
Who    may    appoint,    1307 
When  mother  may  be,   1307 
When   Court   must   appoint.    1309 
Who  can  not  be,  1.331 

TESTAMENTARY    POWER  — 

See  Testamentary  Capacitt. 

Right  nut  inalienable,  1017 
TESTAMENTARY  TRUSTEES  — 

Rules  governing  guardians  applied,   1250 

TESTIMONY  —  See    Evidence. 
Of   witnesses    to    will,    1095 

to  be  reduced  to  writing  and  filed  in  Court,  1095 
Depositions  on  trial  in   Probate  Court,  38 

TIME  — 

Administrators,  etc.,  of,  to  publish  notice  of  appointment,  544 
file   inventory,    83,    124,    303 
collect  assets,    440-448a 
file  accounts,  83,  124.  703.  707 


2042  INDEX 

CReferences  are  to  sections.) 

riME  —  Continued. 

make  sales  of  personal  property,   479,  495 

real    estate,    883 
Assignee  or  trustee  to  file  assignment  and  give  bond,  1546 

publish   notice  of  appointment,    1557 

file    inventoiy,    1594 

file  report  of  claims,  1628 

file  schedule  of  debts,  1594 

file  accounts.   1653 

make  sale.s,  1602 

report  payment  of  dividends,   1653 
Creditors  to  present  claims  against  insolvent  estate.  1628 

of  decedent,   998,    967 

to  bring  actions.     See  Limitation  of  Action.  Statute  of  Limitations. 
Filing    appeal    bond,    43 
Guardian,   to   file  inventory,   1367 

file   accounts,   1367 
Trustee  of  non-resident,  idiot,  etc.,  to  file  accounts,  1310 
Widow  or  widower,  to  make  election  under  will.  1215 

TIME  OF  COMMENCING  ACTIONS  — 

See  Limitation  of  Actions. —  Statute  of  Limitations. 

TITLE  — .  See  Real  Estate  ;  Receipts  ;  Will. 

Devise   to   sell,    804,    805 

By  descent  and  devise,  909 

Of   bona  fide  purchaser   to   land  not  defeated   by  production   of  will, 
when,  1133 

By  deed  of  gift,  910 

to   land    fraudulently   conveyed,    protected   when,    822 

By  purchase,   911 

Of  heirs,  ete.,  in  lands  set-off  to  widow  may  be  sold,  850 

Questions  as  to  on  assignee's  sale,  how  adjusted,  1618 

Statute   controls,   907 

Abstract  of,  to  be  furnished  by  applicant  for  appointment  as  guard- 
ian,  when,    1323 

Conversion   of,    etc.,    911,    921 

Release  of  ward's  tax,  by  guardian,   1395 

Warrant  of,  593,  902 
by    assignee,    1616 
TOMBSTONE— See  Funeral  Expense. 

Administrator's  discretion,  651 

Amount  allowed,  651 

Court  may  allow  for,  651 

Court  can  not  order  purchase,  651 

executor,  etc.,  not  bound  to  procure,  651 

Order  of  payment,  651 

Not  for  other  than  deceased,  651 
TORTS— See  Guardians. 

Action  on  does  not  survive,   385,  520 

Security  on  bond  not  liable  for  torts  of  administrator,  259,  261 

Estate  not  liable  for  torts  of  administrator,  888,  578    519 
TOWN  LOTS^See  Sale  of  Re.\l  E.state. 

Land  of  ward  may  he  ordered   laid   out  in,   1418    1425 


INLFX  2043 

(References  are  to  sections.) 

TRANSCRIPT  — 

Appeal  on,  generally,  when  to  be  filed,  49 

to  be  filed   in   Probate   Court,   51 

who    may    file,    50 
Appropriation  cases,  in,  1780 

Concealing    or    embezzling    assets,    proceedings    against    persons    sus- 
pected of,  413 
Distribution,   in  proceedings  to  enforce  order  of,   779 
Ditch  case,   county,   who   to   furnish,   1833 

to  be  sent  to  auditor,  1855 

township,  to  be  sent  to  township  clerk,  1874 
Drift,   removal   of,   2000 
Road  cases,  1789 

to  be  sent  to  township  clerk,   1827 
When  Probate  Judge  interested  in  cause,  9 
TRANSFER  — 

Fraudulent,   to  hinder,   etc.,   creditors,    1580 
TRANSFER  OF   REAL  ESTATE.   11 11a 
TREASURER  — 

Personal  property  escheated  to  State  paid  to,  921 
TREASURY  — 

Examiner  or  accountant  appointed  by  Probate  Judge,  when,  2024 
TREES,   WOOD,   ETC. 
Fruit,   366 
Rails,   366 

Right  to  in  highway,   1668 
When  assets,  366 

When  not  assets,  366  • 

TRIAL  — 

Appropriation  of  property  by  municipal   corporations,    1760 

by  private  corporations,   1708 
Complaint  against  municipal  officer,  2121 

against  county  aiuiitor,  2124 
Ditch  appeal,  county,  1849 

township,  1865 
Drift  appeal,  2000 
Exceptions  to  account,  739 
Election  of  Probate  Judge,  contest  of,  5151  G.  C. 

of  justice  of  the  peace,  5165 
In  action  on  distribution,  775 
In  sale  of  real   estate,   812,   849 
Levee  improvement   case,   2002 
On  appeal.  42 
Road  appeals,  1822 
What  may  be  heard,  42 
TRUST  — 

Assignments  preferring  creditors,  trust  arising  under,  how  adminis- 
tered, 1579 
Equity  will  not  permit  to  fail  for  want  of  a  trustee,  1275 
Fraudiilentlv  conveved  property,   1580 
Generally,  1293,  1300 

Non-resident  minors,  lunatics,  etc.,  how  administered,  1274,  128() 
Religious  institution,  when  valid,  when  made  in  will  in  favor  of,  1028 
Testamentary,  administered  how,   1256,   1271 
When  Probate  Judge  may  appoint  person  to  execute,  1266 
When  mortgaged  premises  held  by  executor,  etc.,  in,  387 

TRUSTEES  —  TESTAMENTARY  AND  OTHERS  — 

Administrator  and  executors  and  guardians  are,  1250 
Alterations  and  repairs,  1291 

when  should  get  order  of  Court,  1291 


2044  INDEX 

(References  are  to  sections.) 

TRUSTEES  —  TESTAMENTARY  AND  OTUERS  —  Continued. 
Accounts  of,  in  Probate  Court,  39 

must  render  when,  1293 
after  removal,  1301 

same  as  administrators,  1293 

citation,   1294 

duty  of  Court  in  relation  to,  1295 

may  involve,  construction  of  trust,  1296 

appeal  from  order  of  Court,  1297 

effect  of  settlement,  1298 

allowance  of  compensation,  1299 
Application  for,  1254,  33 

should  be  in  writing,   1254 

any  person  may  make,  1254 

form  of,  1255 
Appeal  may  be  taken  from  order  settling.  39 

biennially,  must  render,  1293 

citation  issued  for,  how,  1204 

examination  as  to,  in  Probate  Court.  733 

Probate  Court  to  pass  on,  1295 

appeal  from  determination,  1297 

settlement  of,  how  opened,  1298 

settlement,  mistakes  in,  how,  corrected,  1298 
Assets,  when  liable  to  refund  to  executor  or  administrator,  751 
Appointment,   1256 
Bond,  1256 

when  not  required,  1256 
•     when  required  notwithstanding  provisions  of  will,   1256 

when  new  bond  required,  1256 

removal  on  failure  to  give,  1258 

separate  or  joint  may  be  taken,  1264 
Contest  of  will,  powers  and  duties  of  trustees  during,  95 
Cannot  deal  with  estate  for  his  own  profit,  1287 
Cannot  purchase  from  trust,  1287 
Confined  to  use  of  income,  1288 
Causes  for  removal,  1302 
Court  will  appoint,  1266 
Court  may  appoint  under  foreign  will.   1271 

before  appointment,  will  must  be  recorded,  1272 
Care  of  estate,  1287 

Death,  removal  or  incapacity  effect,  1265.  1266 
Definition,  1250 

Distinction  between  executor  and,  1251 
Dividends,  belong  to  whom,  1289 
Distribution  of  funds,  1303 

makes  at  his  peril,  1303 

legal  advice  will  not  protect,  1303 

should  have  order  of  Court,  1303 
Entry  for  appointment,  1261 
Expenses,  how  charged,  1292 
Form  of  letters,  1262 

Foreign  Court  appointing,  to  give  bond,  etc.,  1269 
Foreign  will  creating,  to  execute  trust,  1268.  1270 

trustee  to  give  bond,  1268 

when  bond  not  required,  1268 

when  Probate  Court  may  appoint,  1271 

to  give  bond,  1271 
Gain  and  loss,  how  accounted  for.  1290 
How  designated  in  will,  126Q 


INDEX  2045 


(References  are  to  sections.) 


TRUSTEES  —  TESTAMENTARY  AND  OTHERS  —  Continued. 
In  doubt  devolves  upon  executor,  1251 
Income,  who  entitled  to,  1288 
Insurance  to  be  kept  on  property,  1292 
Inventory,  1263 

should  be  filed,  1263 
Jurisdiction  of  Probate  Court,  1253 

not  exclusive,  1253 

cannot  construe,  1253 

under  foreign  will,  1253 
Letters  should  be  issued,   1260 
Liable  for  what  errors,  1287 
Must  act  in  good  faith,  1287 
May  use  principal  when,  1288 
Must  give  bond,  1256 

when  may  be  omitted,  1257 

form  of,  1259 
Non-resident  should  not  be  appointed,  1260 
Power  of  testamentary  regulated  by  will,  1251 
Requires  utmost  good  faith,  1251 
Release  of,   506 

Removal  for  failure  to  give  bond,  1258 
Resignation,  1300 

Court  may  accept,   1300 
even  if  in  default,  1301 
Removed,  when  may  be,  1300 

how,  1301 

on  written  application,  1301 

made  by  one-half  of  heirs,  1301 

causes  for,  1302 
Separate  bonds,  1264 
Surviving  may  act,  1265 
Securities,  trustees  may  invest  in  what,  514 
Taxes  paid  by,    1202 
Taxe*,  when   Ixind  for,    1292 
Trust  created  under  foreign  wills,   1267 
Termination  of  trust,   1304 

by  expiration  of  time  limit,  1304 

where  no  cause  for  continuance,  1304 

Common  Pleas  Court  only  can  compel.  1304 
Under  foreign  will  must  give  bond,  1268 
Where  same  person  is  executor  and  trustee,  1251 
Who  may  be,   1252 

corporation  may,   1252 

estate  may  vest  in  infant,  1252 

should  be  fit  person,  1252 

relationship,  1252 

TRUSTEE  FOR  NON-RESIDENT  — 

Appointed  when  and  how,  1274,  1276 

Bond  of,  its  conditions,   etc.,   1277 

Court  may  appoint,  1273 

Duties  of,  1277 

Foreism  guardiac  may  collect  money  from,  1282 

petition   for,   1283 

entry   and   notice,    1284 

hearing,    1285 

may  loan  money,  1286 
How  long  to  hold  office,   1279 
Jurisdiction,    1276 
May  lease  real  estate,   1278 


2046  INDEX 

(References  are  to  sections.) 

TRUSTEE   FOR  XOX-RESIDEXT  —  CojifmwecZ. 
May  sell  real  estate,  1278 
Non-residents   or  unknown  parties,  appointment,   11022,    11023,    1102- 

G.  C. 
Powers   of,   money,   may   loan  in   certain   cases,   1286 

money  of  beneficiary,  when  and  to  whom  to  pay,  1280 
real  estate,  may  lease  or  sell,   1278 
When  appointment  to  be  made,   1275 

TRUST  PROPERTY  — 

Administrator  not  to  account  for,  377 
Does    not    belong    to    administrator,    377 
Indemnity   notes,    377 
What  is,' 377 

TRUST,  TERMINATION  OF,  1304,  4909 
Of  guardian,    1333 

Settlement    with    succeeding    guardian,    1496 
Settlement    with    ward,    1497 
Table  to  ascertain  present  value,  2145 
Table  to  ascertain  annuity,  2144 
Table  to  ascertain  consummated  dower,  2139 
Table  to  ascertain  contingent  dower,  2142 

U. 

UNCLAIMED  BANK  DEPOSITS— See  Bank. 

Annual  report  to  be  made  to  Probate  Judge  of,  509 
UNOLAIMED  COSTS— 

Clerk   of  Common   Pleas   and  Probate  Judge  to   make   list   of,   when 

3041  G.  C. 
Probate  Judge  to  post  list  in  office,  3041  G.  C. 
how  disposed  of,  3041   G.  C. 

UNCLAIMED  MONEY  — 

Belonging   to   heirs,    legatees,   etc.,   how   invested,   786 
how  obtained,  791 

UNDERTAKING  — See    Bond. 

UNFAITHFUL  ADMINISTRATION  —  255,  268,  274 
See  GoMPEXSATiON. 

UNITED    STATES  — 

Debts  due  to,  662 

Debts   against   estate   of   decedent   entitled   to    preference    under    law* 
"of,  647 

Guardian  may  invest  in  bonds  of.  1367 

Order   of   payment,   662 
UNKNOWN   HEIRS,   DEVISEES,   ETC.— 

How  service  made  upon.  841 
UPSET   PRICE  — 

When    Court    may    fix.    <S77 


INDEX  2047 

(References  are  to  sections.) 

V. 

VAGRANT  CHILDREN— 

May   be  sent  to  asylum   or   home,    1906 

VENIRE— 

Form,  409 

Appropriation,    proceedings    in   by   municipal   corporation,    1758 

by  private  corporation,   1701 
Ditch  appeal,  county,   1842 
Drift  appeals,  2000 
Road  appeals,  1*^16 

VENUE— 

See  Jurisdiction. 
Of  action  against  executor,  guardians,  etc.,  607 

VERDICT— 

See  Forms. 
Appropriation   proceedings   in   by  municipal   corporations,    1763 

by  private  corporations,  1715a 
Ditch  appeal,  county,  1852 
Drift,  removal  of,  2119 
Road  appeals,   1822 
Vested    legacy,    679 
Vesting  of  estates,   1190  .  • 

VIEW  BY  JURY— 

Of  premises  in  appropriations  by  municipalities,   1762 

by  private  corporations,  1707,  1708 

ditch   appeal   county,   1849 
When  not  evidence,  1711 

VILLAGES— 

Appropriation  of  property  by,  1748  et  seq. 
Void   legacy,   684 

VOUCHERS- 

See  Account. 
To  be  taken  by  executor,  etc.,  for  all  debts,  and  legacies  paid  and  filed 
witii  account,  721 
what  items  allowed  without,  723 

orders  of  Court  as  to  desperate  claims  sufficient,  4."6 
to  heirs  unclaimed,  786 
Guardian's  account  of  expenditures  verified  by,   1367 

signed  by  lunatic,  etc.,  and   allowed   as  credit  to   cruardian.  void, 
1516 
Probate  Judge  or  clerk  can  not  make  record  of,  unless,  etc.,   7 

on  presentation  of  claim,  14796 
Presentation  of  claim,  557 


W. 

WAGES— 

Of  laborers,  a  preferred  claim  against  estate  of  decedent.  647,  664 
Of  insolvent  debtor,   1647 


2048  INDEX 

(References  are  to  sections.) 

WARRANT  — 

See  Forms. 
of  judgment  debtor  in  proceedings  of  execution,   1922 

WASTE  — 

Executor  or  administrator  guilty  of,   required  to  indemnify  sureties, 

foreign  executor,  etc.,  to  secure  distributees  and  indemnify  sure- 
ties, 193 

when  liable  for,  to  creditors  of  estate^  628 
Tenant  for  life,  guilty  of,  forfeits  estate,  8593  G.  C. 

liable  in  damages  to  remainderman,  etc.,  8593  G.  C. 

tenant  in  dower  forfeits  dower,  etc,  956 

liable  to   remainderman,  956 
WEARING  APPAREL  — 
What   is.    321 
Widow  entitled  to,  when,  320,  322 

WIDOW  — 

See   Widow's   Allowance. 
Allowance  for  year's  support,   324 

money  to  be  set  off  if  necessary,  325 

appraisers    to    certify    amount,    325 

to   be   stated   in   separate   schedule,   324 

how  Probate  Court  may  increase  or  diminish,  333 

preferred  claim  against  estate,  647 

bond  to  pay  may  be  given  to  prevent  sale  of  land,  826 
Appeal  may  be  tajcen  from  order  of  Court  increasing  or  decreasing 

allowance  of,  39 
Appraisement,  notice  of  to  be  served  on.  288 

entitled  to  be  present  at  making,  292 

articles  to  be  included  in,  but  not  appraised  when  deceased  leaves 
a  widow,  320,  322 

articles  included  in  but  not  appraised,  belong  to  minor  child,  when, 
322 

property  at,   widow  may  take,  470,  472 
Concealing  assets,   etc.,   rights   against   persons,    395 
Contribution  to  pay  claims  against  estate,   587 
Damages   for    death   by  wrongful    act,    536 
Descent  of   property  to.     See   Descent  and  Distribution,   915 
Distribution  by  executor,  etc.,  may  enforce,  761 
Dower  of.     See  Dower,  944 

appraisers  to  set  off  in  action  for  sale  of  land,  857 

specially  assigned  a  charge  on  land,  870 

adjusted  on  petition  for  sale  of  equitable  interest  in  land,  825 

action  for.  12005  G.  C. 

assignment  of,  by  heirs,  957 

by  commissioners,  12009  G.  C. 

assignment  of  in  action  by  execution,  etc,  to  sell  lands  to  pa7 
debts,  861,  870 

election  to  be  endowed  out  of  proceeds  of  sale,  869 

evicted   from  jointure  to  be  endowed,   953 

forfeited  by  waste,   956 

guardian  of  insane,  etc.,  widow,  may  sell  dower  of,  how,  1623 
Distributive  share.  938 

amount  of,  938 

right  accrues  when,  938 

how   barred.    938 

gift  causa  mortis.  939 

where  advancement  made  to  children,  939 


I 


INDEX  2049 

(References  are  to  sections.) 

WIDOW  —  Continued. 

Entitled   to  administer  husband's  estate,   114 

when  cited  or  notified  for  that  purpose,  114 

to   funeral   expenses   of    husband,    649 

to   homestead,    when,    868 
assignment  of,  867 
Exemption  from  execution,   1598 
Homestead  assigned  in  action  for  sale  of  land,  857,  868 

assignment   of,    867 
How  interested  in  estate  of  husband,  319 

Liability  of  as  distributee  after  settlement  of  estate,  685,  593 
Life   estate  with   power   of   disposal,    1193 
May  sue  on  administration  bond  for  share  of  estate,  265 
Notice  ot  probate  of  will,   1067 

of  taking  of  appraisement,  288 

of  granting  letters  of  administration,  114 
Party  in  action  on  administration  bond,  261 

■for   sale   of  land,   833 
Portion  of  in  case  of  wrongful  death,  541 
Personal  property  entitled  to  on  distribution,  -938 

amount  of,  938 

included  in  inventory  but  not  appraised,   320,  322 

when  living  with  and  providing  for  minor  child,  322 

when  not,   322 

set  off  by  appraisers  for  year's  support,  324,  333 

may  tnUe  at  appraisement,  470. 
power  under  will  to  dispose  of  property,  1193 
Quarantine,  341 
Sale  of  lands  to  pay  debts,  allowance,  etc.,  963 

party  to  action  for,  833 

dower,  857,  825 

WIDOW'S  ALLOWANCE— See  Inhebitaxce  Tax. 

Action   may  be  brought  against  executor,   761,   779 
Action  on  bond  of  executor,  etc.,  when,  265 
Action  to  pay  debts,  widow  may  be  made  party,  833 
Allowance    for   year's   support,   324-333 

See   Widow. 
Allowance   to,    a    preferred    claim,    647 
Amount  raised  on  exception  to  inventory,  314 
Articles   allowed   to,   not   deemed   assets,   320 
Administrator  cannot  sell,  323 
Apportionment  between  widow  and  children,  330 
Amount  of,   331 

insolvent  estate,  331 

in    various    States,    331 

should  be  liberal,  331 

what  should  control,  331 
Appeal  from  order  of  Court  as  to  allowance  of.  may  be  taken,  39 
Barred  by  will  or  contract,  327 
Contract  strictly  scrutinized.  327 
Court  may  order  payment,   332 
Damages  for  death  by  wrongful  act,   536 
Descent  of  property  to,  915 

See  Descent  and  Distribution. 
Divorced  is  not  entitled,   323,  326 
Deserting  not  entitled,  323,  326 

Dower  to  be  assigned  in  action  to  pay  debts,  how,  857 
Executor  of  widow  may  collect,  328 
Homestead  assigned  in  action  for  sale  of  land,  857 
Husband  may  prevent  how,  328 
Husband,  when  widow  entitled  to  administer  estate  of,  114 


2050  l^^l^^'-^ 

(References  are  to  sections.) 

WIDOW'S  ALLOWANCE  —  Continued. 
Is  debt  of  estate,  328 
Increased  or  diminished,  334 
petition  for,  334 

what  should  contain,  334 
review  of,  334 
when  to  be  filed,  334 
who    may    file,    335 
form  of  petition,  336 
•  entry,   337 
notice,   338 

error   and   appeal,   340 
second  application,  340 
Made  regardless  of  will,  323 
Must  have  maintained  marriage  relation,  326 
Must   be   made  without   demand,    329 
Nature  of  claim,   328 
Non-resident  not  entitled  to,  326 
Notice   of   appraisement,    widow    entitled    to,    288 
Not  legally  married  not  entitled  to.  326 
Origin  of  laws  relating  to,  319 
wearing  apparel,  321 
what  is,  321 
Order  of  payment  of  allowance  to,  647 
Personal  property  of  decedent  entitled  to,  320.  322 
Question  as  right  to,  335 
Payment  of,  334 

Property  consumed  may  be  considered,  326 
Right  to,  323 
To   whom   payable,   332 
When  payable,  332 
When  appraisers  fail  to  make,  329 

Widow  may  bar  her  own  right  but  not  her  childrens',  327 
Widow  may  take  property  at  appraisement,  470 
WIDOW  AND  CHILDREN  — 

See  Widow's  Allowance. 
Homestead  assigned  in  action  for  sale  of  land,  857 
Personal  property  of  decedent,  entitled  to.  320,  322 
WIDOWER  — 

Curtesy  of,  abolished,  943 

vested  rights  as  to,  943 
Dower  of,  944 

See  Dower,  Widow. 
Election   to   take   under    will   or    dower,    1065 

See   Widow. 
Personal  property,  amount  entitled  to  on  distribution,  938 
WIFE  —  See  Husband  and  Wife.  Divorce,  Widow.  Etc. 
Contingent  dower  of,  of  insolvent  debtor,  1600 
See  Dower. 
of  idiot,   etc.,   1522 
Damages  for  death  by  wrongful   act,   536 
Descent  of  property  to,   927   et   seq. 

See  Descent  and  Distribution. 
Dower  of  barred  by  dwelling  in  adultery,  954 

expectancy  of!!  how  disposed  of  in  action  by  guardian  of  lunatic, 
etc.,  to  sell  real  estate,  1522 
Of  idiot,  etc.,  may  be  his  guardian,  1512 
Party  to  proceedings  to  sell  real  estate  of  insolvent  debtor,  1602,  1618 

WILLS  — 

See  Construction  of  Wills,  Revocation  of  \^  ills.  Spoliated 

Wills. 
Animus  testandi,  1014 


INDEX  2051 

(References  are  to  sections.) 

WIJ^.LS  —  Continued. 

Acknowledgment  of,   1034 

Administration   granted   effect   of   finding   will   after,    102 

Admission    to    probate,    1105 

probated    to    be    recorded    and    filed,    1109 

can  not  pass  real  or  personal  estate  without,  llOS 

admitted  to  record  in  each  county  where  land  situated,  1111 
Advajicement  taken  into  account  when,  1065 
After   acquired   property   passes,    1191 
Aliens,  effect  of  probate  of  will,   1130 
Alterations,  1050 

conveyance,  etc.,  altering,  etc.,  when  not  a  revocation,  1059 

when  provisions  inconsistent  with  terms  of  will.  lOGO 

how  punished,  13083  G.  C. 
Appeal  from  refusal  to  probate,   1116,  1117 
Appeal  from  order  of  probate,   1153 

not  of  foreign  will,  ]1?3 

how  perfected  and  proceedings  in  Common  Pleas,  1117 

in  proceedings  to  supply  destroyed  record  of  will,  1157 
Appointment,   power   of,   821-1193 
Assets   marshalled   in   conformity   with,   832 
Attestation  of,  1040 

witnesses  must  be  competent,   1043 
Bequest  defined,  1013 

See  Definitions. 

void   in   certain   cases,    1028 
Bond  directed  not  to  be  given  by,  1256,  1310,  83 

may  be  required  notwithstanding,   1256,   1310,  83 
Certified   copy   of,   evidence,    1110 

when   record   of  will   destroyed,   1154,    1156 

of  foreign  will  admitted  to  record  here,  1119,  1125 
Charge   on   property   not   a    revocation,    1058 

devisee   takes   subject  to,    1058 
Charitable  bequest  void  unless,  etc.,   1028 

Child  absent,  reported  dead  or  born  after  will  made  to  have  portion 
of  estate.   1064,   1210 

contribution  for  and  by,  1064,  1210 

advancements  to  be  taken  into   account,    1065 
Citation  to  widow  or  widower  to  make  election  under,   1215 

See  Election  Under  Will. 
Codicil,  term  will  includes,  1033 
See  Codicil. 

how  made,   1034 
Commission   to   take   testimony   of  witness   to,    1101 
Construction,  see  Construction  of  Wills, 
Concealment  of.  1072,  1079 

liability,  1079 

punishment,  12451  G.  C. 
Contest  of,   1124,   1235 

duty  of  Probate  Judge  on  notice  of,  1113 

what  papers  to  be  sent  to  Common  Pleas  and   what  returned  to 
Probate  Court,  1113 

of  spoliated,  lost  or  destroyed  will,   1152 

of  supplied  record   of  will,   1157 

not  contest  of  foreign,  1133 

powers   of  executors,   etc.,   during,   95 

uncontested  binding  after  two  years,   1112 
Contribution,  when  devised  or  bequeathed  property  taken  to  pay  debts, 

child  born  after  execution  of  will,  portion  of  liable  to.  1210 


2052  INDEX 

(References  are  to  sections.) 

WILLS  —  Continued. 
Contest  of.   1112 

cannot  after  two  years,    1112 

exceptions,  1112 

duty  of  Judge  on  notice,  1113 

provisions    against,     1203 
Contract  to  make,  1032,  1170 

may  lie  enforced,   1032 
how,    1032 
Custody  of,  1066 
Confusion  between  will  and  other  instruments.  1015 

contracts,  1015 

deeds,  1015 
Copies  of  record  of  probate  of  to  be  admitted  in  other  counties,  1119 

effect  of  same,  1119 
Copy  of  will  and  record  of  probate  of,  evidence,  1110 
Copy  of  destroyed  record  of  will,   1154 
See  Certified  Copy,  Supra. 

of  foreign  will  admitted  to  record,  1125 
Distinguishing  characteristics,    1014 
Devisees,  etc.,  liable  to,  when  portion  of  one  taken,  1207 

unless  exempted  by  will,  1208 

enforced,  how,   1212,   1213 

nothing  in  sections  5973  and  5974  pertaining  to.  to  impair  liability 
of  whole  estate  for  debts,  1209 

solvent  legatees  to  contribute  for  insolvent,  when.   1211 

witness  to  a  will,  portion  of,  liable  when,  1210 
Deaf,  dumb  and  blind  may  make,  1023 
Debts  against  executor  discharged  in  will,  how  construed,  391 

naming  person  executor  not  to  discharge  debt.  389 
Definition,  1033,  1013 
See  Definitions. 

definition    of    terms    u.sed,    1013 
Deposited   with   Probate  Judge,    1067 

fee    for,    1067 

certificate  given  for,  1067 

how  enclosed,   10()8 

indorsement    on    wrapper,    1068 

delivered  to  whom  during  life  time  of  testator.   1069 

after  his  death,   1069 

when  to  be  opened  and  how,  1070.  1071 

notice  thereof,  1070 
Drafting  wills,  suggestions,   1040 

form    of,    1047 
Destroyed  niaj'  be  admitted  to  record,   1135 

notice  of  application  for  record,    1144 

testimony,  what  and  how  taken,  1140 

record    of,    1148 

proceedings,    when    destroyed   after    probate   but   before   record   of, 
1148 

eflfect  of  will  so  established,  etc.,   1152 

proceedings,   when   record   of    will   destroyed,    1154 

original  will  may  be  admitted  to  probate.  11  ",5 

or  authenticated  copy  of  will  may  be  admitted  to  record.  1156 

notice  of  record,  etc..  to  be  published.  1157 

contest  of  supplied  record.   1157 

appeal  in  case  of  contest,  1157 

saving  of  rights  of  persons  under  disabilities.  1157 


INDEX  2053 

(lUfereuces  are  to  sections.) 

WIIiLS — Continued. 

Destroyed,  etc. — Continued. 

when  destroyed  by  iire,  riot,  or  civil  coniniotion,  12345  G.  C. 

Probate  Judge  to  niaUe  rules  as  to  testimony  and  appoint  com- 
missioner to  take,   12346,   12347   G.  C. 

costs,  how  paid,  12348  G.  C. 

punishment  for  destruction,  12451  G.  C. 

revocation  by  destruction,  1049 

second,  destroyed,   first   not  revived,    1053 
Devisee,  effect  of  witness  being,  1044 

when  share  of  saved  to  him,   1044 

contribution  of  heirs  and  devisees  in  such  case,  1044 

devisee  not  to  lapse  by  death  of,  1194 

contribution,  when  devised  property  taken  to  pay  debts,  1207 

effect  of  withholding  will  from  probate  for  three  years,  1084 
Discovery  of,  revokes  letters  of  administration,  162 
Drunkenness,  effect  on  testamentary  capacity,  1021,  1082 

testamentary  capacity,  1024 
Eccentricities   of   character    insufficient  to   invalidate,    1021 
Election  of  widow  or  widower  to  take  under,  1215 
See  Election,  etc. 

citation  to  issue  for,   1215 

construction  of,   may  ask  before  election,    1215 

entitled  to  make  election  when,  after  such  proceedings,    121.5 

dower,  effect  if  widow  or  widower  elects  to  take,   1221 

dower,  when  widow  or  widower  entitled  to  in  addition  to  provi- 
sion under  will,  1215 

effect  of  on  claim  for  year's  support,  1221 

insane  or  imbecile,  how  made,  1235 

journal  to  be  entered  on,  1221 

made  must  be,  how,  1221 

mansion  house,  widow  or  widower  may  remain  in  after  election, 
1221 

non-resident  or  unable  to  appear,  how  election  made  in  such  case, 
1231 

Probate  Judge,  duties  of  as  to,  1221 

may  appoint  person  to  take,  when,   1231 

Probate  Judge  to  make,  when  and  how,   1235 

time  within  which  must  be  made,   1215 
Entailed  estates  pass  to  issue  of  first  donee,  1030 
Equity  will  not  reform,   1180 
Evidence,  certified  copy  of.  111  0 

parol,  not  admitted  to  alter,  etc.,  1186 

when  and  for  what  purpose  admitted,  1186 
Executed   in  other   States  of  the   Union,   when  admitted  to  record  il) 

this,   1119 
Executor,  entitled  to  administration,  71 
See  Letters  Testamentary. 

administrator   during  minority  of   executor,   93 

discharge  of  debt  in,  against  executor,  how  construed,  391 

naming  perso"  executor  not  to  discharge  debt,  389 

when  estate  directed  to  be  sold,   107 

surviving  may   sell,   107 

no  order  required.   802 

powers  of  during  contest  of,  95 
Effect  of  order  to  probate;  1108 
Execution  of,  1034 

must  be  in  writing,  etc.,  1035 

lithographed    or   typewritten.    1035 
lead   pencil.    1035 
in    book,    1035 


2054  INDEX 

(References  are  to  sections.) 

WILLS  —  Continued. 

on  several  pieces  of  paper,  1036 

signed  at  end,    1037 

by  party  making  same,   1038 

what  constitutes   signature,    1038 

signed  by  other  person,  1039 

attestation  of,   1040 

subscription  to,  1041 

in    presence    of    testator,     1042 
what   constitutes,    1042 

witnesses,    1043 

effect  of  being  devisee  or  legatee,  1044 

who  saw  testator  subscribe  or  heard  him  acknowledge.  1045 
Filed  in  office  of  Probate  Judge,  1109 

Foreign,  1118-1133 
See  Foreign  Wills. 
Forging,  altering,  counterfeiting,  etc.,  how  punished,  13083  G.  C. 
Form   of.     See  Forms. 
Guardian  may  be  appointed  by,  1307 
How  made,  1034 
Infant  cannot  make,  1020 
Insane  person  cannot  make,  1022 
Intention  of  testator  governs,   1182 
Joint  wills,   1170-1173 

See  Joint  Wills. 
Law  governing,  1016 

at  time  of  death,  1016 

location  of  property,  1016 

domicile   of    testator,    1016 

controls   construction,    1016 
Legatee,  effect  of  witness  being,  1044 

effect  if  death,   1194 
Letters  testamentary,  etc.,  to  issue,  when,  71 

to  foreign  executor.   1132,   169 
Life  estates  in,  821,  1193 

of  contest  of,  1112 
Lost,  admitted  to  probate,  how.     See  Destroyed,  etc..  Supra,  1135,  1152 

See  Spoliated  Wills. 
Marriage  of  woman  does  not  revoke,  1061 

married  woman  may  make,  1061 
Monomania,  effect  of,  to  make,  1021-1025 
Neglect  to  probate  in  three  years,  forfeits  devise,  when,  1084 
New  record  of,  how  made,  when  destroyed,   1154,   1157 

appeal  from  order  of  Probate  Court  establishing,   1157 

contest  of  will  proceedings  to  establish  new  record  not  to  extend 
time  for,  1156 

copy  of  will  alone  may  be  admitted  to  probate,  1156 

copy  of  will  and  probate  may  be  admitted  to  record,  1154 

effect  of  new  record,  1156 

interested  parties  may  oppose,  1157 

made  how,   1154,   1156 

original  will  may  be  again  probated,  1155 

Probate  Judge  to  give  notice  that  copy  of  will  has  been  admitted 
to  record,  1157 

saving  of  rights  of  persons  under  disability,   1157 
Notice  of  probate,  1067 

of  application  to  admit  foreign  will  to  record.  1125 

to  admit  lost  or  destroyed,  etc..  will  to  record,  1144 

of  new  record  when  record  of  will  destroyed,  1157 


INDEX  2055 

(References  are  to  sections.) 

WILLS  —  Continued. 

of  appeal  or  refusal  to  probate,  1116 
Nuncupative  will,   1158-1169 

See  Nuncupative  Wills. 
Opened,  when  deposited  with  Probate  Judge,  how,  1070 
Operation,  etc.,  1133,  107 
Probate  of,   1081-1117 

See  Probate  of  Wills. 
Probate  Judge  witness  to  a  will,  proceedings,  9 
Perpetuities,   1030 

rule  against,   1031 

what  comes  within,  1031 
Power  of  administrator  during  contest,  96 
Power  where  set  aside,   164 
Property  specifically  devised,  473 
Production  enforced,   1072 

application  for  citation,  1073 

order  of  citation,   1074 

form  of  citation,   1074 

order  for  warrant,  1075 

entry,  1075 

into  what  counties  process  may  issue,   1076 

liability  of  officer  serving  same,  1077 

bearing,   1078 

punisnment,   1079 

commitment,   1080 
Proved  in  Probate  Court,  27 

in  Common  Pleas,  when,  27 

by  examination  of  witnesses,  1095 

when  witnesses  unknown,  incompetent,  etc.,   1098 

when  court  may  issue  commission  to  take  their  testimony,  HOI 
Purchasers  without  knowledge  of  foreign,  protected,  1133 
Republication  of  by  codicil,  1177 
Receiver  cannot  be  appointed  during  cont^=t.  96 
Revocation  of,   1048-10G5 

See  Revocation  of  Wills. 
Right  to  make,  1017 

regulated  by  legislature,  1017 
Revocability,  1014 
Record  of,  1109 

in  each  county  where  real  estate  is,   1111 

destroyed  bow  supplied.     See  Destroyed,  1154,  1157 

foreign,  how  admitted  to,  1119 
Refusal  to  admit  to  probate,  appeal  from,  1116,  1117 
Restoration  of  record  of,  1154,   1157 

Revivor,  destruction  of  second  will  not  to  operate  as  of  first,  1053 
Statutory  meaning  of  certain  words,  1033 
Sale  of  personal  property,  may  require  none  be  made,  47© 

court  may  order  notwithstanding,  470 

of  real  property  directed  by,  107 

powers  of  executors  under,  107 

no  order   required,    802 
Secreting,  how  punished,   12451   G.   C. 
'Senile  dementia  disqualifies,   1022 
Service   by   publication   in    actions  to  establish   or   set   aside     when   C 

C.  P.,  11296  G.  C. 
Set  aside  where  made,  how  far  iinvalid  here,  1133 
Signed,   how  and  wliere,    1034 
Spoliated,   1134-1157 

See  iSpoliated  Wills. 


2056 •  INDEX 

(References  are  to  sections.) 

WILLS — Continued. 

Stealing,  how  punished,  12451  G.  C. 

allegation  of  property  or  value  not  necessary,  13591,  13592  G.  C. 
Surviving  executor's  powers  under,   107 
Testimony  of  devisee,  when  competent,  1044 
Testimony  of  witnesses  to  will,  1095,  1109,  1146 

to  be  reduced  to  writing,  filed  and  recorded,  1095,  1109,  1146 
Trust,  when  Probate  Judge  niay  appoint  person  to  execute,  1266 
Trustees  appointed  by  to  give  bond,  1256 
when  not  required  to  give  bond,  1256 
See  Trustees. 
Uncontested  probate  binding  after  two  years,   1112 
Undue  influence,   1025 
Verbal,  how  made,  proved,  and  when  to  be  probated,  1159,  1166 

See  Nuncupative  Wills. 
What  instruments  held  to  be  a  will,  1014 

what  not,  1014 
Witnesses  to,  how  many  required,  1034 
must  be  competent,   1034 
effect  of,  being  devisees  or  legatees,   1044 
examined  in  open  court,  1095 

testimony  reduced  to  writing  and  filed,  1095,  1146 
and  record,  1109 
when  unknown,  incompetent  or  testimony  cannot  be  had,  how  wil. 

proved,    1098 
when  court  may  issue  commission  to  take  testimony,  1098 
or  will  lost,  spoliated  or  destroyed,  1146 
examination  of,   1146 

when  residing  out  of  jurisdiction,  infirm  or  unable  to  attend  court; 
1146 
Who  may  take  under,  1027 
charitable  bequests,  1028 

corporations  and  charitable  uses,  1029 
what  are,  1029 
Who  may  make,  1018 
any  person,   1019 
full  age,  1020 

sound  mind  and  memory,  1021 
test  of,  1021 
definition  of,  1021 
idiots,   imbeciles   and   lunatics,   1022 

who  are,   1022 
blind,  deaf  and  dumb  persons,   1023 
persons  under  guardianship,   1024-1511 
minor  cannot,  1020 
not  under  any  restraint,  1025 
what  is,   1025 
must  be  free  will,  1025 
having  property,  1026 

courts  not  in  accord,  1026 

WITNESS  — 

Attendance  of,  2126 

Certificate  of  medical   in   inquest  of   lunacy,  2118 

Competency,  1043 

Devise  or  bequest  when  void,    1044 

Fees  of  in  Probate  Court.   11204  G.  C. 

In  contest  of  election  of  justice,  5165  G.  C. 

Saw  testator  subscribe,  1045 


INDEX  2057 

(References  are  to  sections.) 

WITNBS^-Continued. 

To  consent  of  guardian  or  parent  to  marriage  of  ward,  2117 
Wills,  commission  may  issue  to  take  testimony  of,  when.     See   Will, 
supra,  1101,  1106,  1043 
devise  to,  when  void,  1044 
examination  of,  to  prove,  1095 
lost  or  spoliated  will,  witnesses  as  to,   1146 
number  of,  necessary  to  execution  of,  1034 

WOMAN  —  See  Marriage,  Widow. 

WOODS  — 366 

See  Trees. 

WORDS  —  See  Definition. 

"  Inventory  "  includes  appraisement,   281 

WRONGFUL  ACT  — 
WRONGFUL  DEtATH  — 

Action,    when   brought,    534 

Beneficiaries    die,   action   to  be    dismissed,    533 

If  action  commenced,   536 

Jury  should  consider  pecuniary   injury,  536 

Nonresident  does  not  defeat,  534 

Probate  Court  determines  matter  of   distribution,   536 

Settlement  not  binding  unless   Court  appioves,    536 

Action  for  death  by,  534 

Action  for,  did  not  exist  at  common  law,  533 

Administrator  must  bring  action,  533 

Action  brought  in  Common  Pleas  Court,  533 

Apportionment,  541 

entry,  542 

Probate  Court  to  approve,  541 
Court  shall  exercise  care  in  settlements,  537 
For  whose  benefit,  536 
Only  exists  by  statute,  533 
Settlement  of,  537 

application  for,  538 
form  of,   538 

entry  allowing,  539 

in  Probate  Court,  537 

report  of,  540 
When  liability  exists,  534 

Y. 

YEAR'S  ALLOWANCE  — 

See  Widow's  Aixowance, 
Inheritance 


I 


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